Saturday, May 26, 2012

REMANDING TO FAA BY GUJ INFO COM


https://www.box.com/s/ce66ed9f94947300562b

 Date: 24-05-2012                                                                               by email & post


To,
State Chief Information Commissioner,
Gujarat Information Commission,
Bureau of Eco and Statistics Bldg, 1st floor
Sector 18, Gandhinagar, Gujarat  382018

Hon’ble Sir,

Subject: Remanding Appeals / Complaints--Suggestion

I enclose copy of my letter dated 12-10-2010 addressed to your predecessor on the above subject. After receipt of this letter, practice of such remanding had practically stopped. However, of late I have come across following decisions wherein Hon’ble ICs have remanded appeals/complaints to FAA, even when appellants/complainants had filed first appeals before approaching GIC.

Appeal No. 1818/2012 dated 09-04-2012     Shri Rajagopalan, SCIC
Appeal No. 1603/2012 dated 03-04-2012     Shri Shula, IC
Appeal No. 115/2010-11 dated 19-03-2012  Shri Rajagopalan, SCIC
Appeal No. 119/2011-12 dated 29-03-2012  Shri Rajagopalan, SCIC
Appeal No. 1369/2012 dated 03-03-2012     Shri Balvant Singh, IC
Appeal No. 1378/2012 dated 13-03-2012     Shri Balvant Singh, IC
Appeal No. 1423/2012 dated 09-03-2012     Shri Balvant Singh, IC

02. I have my reservations if there is any provision of such remanding in RTI Act 2005 or that IC cannot decide second appeal without decision of FAA. FAAs are also flouting circular No. RTI2007/457297/RTI CELL dated 20-12-2008 of General Administration Dept, Govt of Gujarat, where-under attention is drawn to DoPT OM No. 10/23/2007-IR dated 09-07-2007.

03. I am aware that GIC has unwritten policy and history of not punishing govt officials even when they commit blatant mockery of RTI. None-the-less, at least GIC can seek explanation of defaulting PIO or recommend departmental action against PIO and FAA in cases mentioned above. Actual punishing is a later stage wherein Hon’ble IC may have “soft corner” for what ever reasons that can be engineered by officials, if at all they care to reply. Compensation to applicants is unimaginable at GIC as on today.

04. Citizens are realizing that ICs are making themselves deliberately toothless [not to even roar/warn/reprimand if not actually punish] at the cost of dignity and fundamental rights of 6 crore Gujaratis. Citizens never thought that Hon’ble ICs would be afraid of govt. officers [and their political masters] not to even warn them [let apart penalise]. It appears to common men that honour and mental peace of public servants are more dearer to GIC, than fundamental rights of  citizens [masters in democracy] and their dignity. This attitude also increases avoidable workload and pendency at GIC, since PIO and FAA do not care for RTI or GIC and also enjoy predicament of common men. It is shocking that though Information Commissions are guardians of RIGHT TO INFORMATION of citizens, they are themselves becoming instruments to dilute [and ultimately kill] this right by adopting anti-citizen and frustrating tactics.

05. I humbly quote paragraphs from judgement dated  05-11-1993 of Hon’ble Supreme Court of India in Lucknow Development Authority v/s M. K Gupta [CITATION: 1994 AIR 787 1994 SCC (1) 243 JT 1993 (6) 307    1993 SCALE (4)370]

“Harassment of a common man by public authorities is socially abhorring and  legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing          is more damaging than the feeling of  helplessness. An  ordinary  citizen instead of  complaining  and  fighting succumbs  to  the  pressure of undesirable  functioning  in offices instead of standing against it.      Therefore the award of compensation for harassment by public  authorities      not only  compensates the individual, satisfies  him  personally but helps in curing social evil.  It may result in improving the work culture and help in changing the outlook”

“Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented.  No functionary in exercise of statutory power can claim immunity, except to the extent protected  by the statute itself.  Public authorities acting in  violation of  constitutional or statutory provisions oppressively  are accountable for their behaviour before authorities  created under  the  statute  like  the commission  or the courts entrusted  with  responsibility of maintaining the  rule  of law.” 

06. I also state:

“We take it to be perfectly clear, that if a public servant abuses his office either an act of omission or commission and the consequences of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say that ' you may set aside an order on the ground of mala fide but you cannot hold me personally liable'. No public servant can arrogate to himself the power to act in a manner which is arbitrary "
--Supreme Court in Common Cause vs Union of India  [ 1996 (7) Scale 156]
 
07. I also invite your kind attention to judgement dated 28-04-2009 of hon’ble High Court of Delhi in W.P. (C) 3845/2007: MUJIBUR REHMAN v/s CIC on the matter of penalty etc.

08. I add from a judgement of High/Supreme Court “that forms of accountability may differ but the basic idea remains the same that the holders of High Public Office having access to Public funds must be able to publicly justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of the people. Every exercise of Power depends on this ideal for its validity.”

09. The basis of every law or every rule OR EVERY EXERCISE OF DISCRETION or every decision govt or govt agencies take, is on the premise of greatest good of the greatest number of people.

10. I request you to kindly cogitate on this feed back and social audit of decisions of ICs of GIC. I hope you and other ICs would listen to common men and would not act like other bureaucrats and politicians who listen to higher judiciary only.

11. I also enclose copy of an imaginary letter that a common man writes to an IC. This I had written in Oct 2007 and was mailed to many ICs all over India, including your predecessor. This letter was circulated at Central Information Commission, New Delhi in a meeting of ICs of CIC by Shri Wajahat Habibullah, India’s first Chief Information Commissioner.

Thanking you,

Yours faithfully,
J. P. Shah

Encl: a/a

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