Sunday, October 20, 2013

SOCIAL AUDIT - Decision No. CIC/VS/A/2012/000727/04727 of 12-09-2013

Date: 16-10-2013                                                                                By email


To,
Central Information Commissioner
Central Information Commission,
Club Building, Old JNU Campus,
New Delhi-110067

Hon’ble Sir,

Subject: Decision No. CIC/VS/A/2012/000727/04727 of 12-09-2013- SOCIAL AUDIT

As part of social audit I happened to peruse your captioned decision, with a view to improve decisions and RTI. I respectfully point out following infirmities in the said order:

2. You have upheld decision of FAA denying information of deposit accounts of her late father under sub-sections d, e and j of section 8.1 just because amount in the accounts has been paid by bank to nominee.

3. The applicant is daughter of deceased account holder and hence as per nomination rules nominee is just a trustee of the property of deceased [ i. e. bank balance] which nominee has to receive from bank and then dispose off to heirs of the deceased. He does not become owner due to nomination. In this case true owner/co-owner [heir] has been denied information, which may result in her not getting correct share from the nominee.

4. It would have been appropriate if information of deposit accounts should have been ordered to be supplied, subject to her producing satisfactory evidence of her being daughter of deceased account holder. In fact CPIO has stated to you that she is the daughter [ref para 4 of decision] of account-holder. Due to non-supply, she is left at the mercy of nominee who may or may not be heir or even relative of deceased. Now daughters have equal rights in the properties of parents and your order has incapacitated her from availing this right.

5. Your decision has contravened following decisions of CIC itself against principle of precedence [Ref: judgement dated 01-06-2012 of Hon’ble High Court of Delhi in W.P.[C]/11271/2009 –Registrar of Companies v/s D. K. Garg]:

CIC/SM/A/2009/000187 dated 15-12-2009
CIC/SM/A/2009/000419 dated 15-02-2010
CIC/SM/A/2010/001093 dated 07-06-2011
CIC/SM/A/2011/000571/SG14694 dated 20-09-2011
CIC/DS /C /2011/002566/VS/01891 dated 23-01-2013
CIC/SM/A/2010/001109 dated 31-05-2011

6. Absence of appellant in hearing casts extra responsibility on IC to empathize with him/her, so that his/her non-presence does not become reason for injustice.

7. I hope my above feedback will be cogitated upon by yourgoodselves for future decisions. This will avoid wrong precedence by other CPIOs and SPIOs to block information against letter and spirit of RTI Act. Citizens rightly expect correct, unbiased and reasoned decisions [ref: Judgement of Hon’ble Supreme Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496], with total application of mind from IC of your stature and back-ground. I am also sure that you, as guardian of RTI of citizens, do not intend to take disadvantage of inability of common appellants to move High Courts against every defective decision. Each decision may now be costing nearly Rs.8000/- to Rs.10000/- to public exchequer.

8. May I quote from judgement dated 05-11-1993 of Hon’ble Supreme Court in LUCKNOW DEVELOPMENT AUTHORITY V/s. M.K. GUPTA:

….….. .  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.

…… Today   the  issue  thus  is  not   only  of  award of compensation but who should bear the brunt. ….. The authority empowered to  function under  a  statute while exercising power  discharges  public duty.  It has to act to subserve general welfare and  common good.  In discharging this duty honestly and bonafide, loss may  accrue  to any person.  And he may claim compensation which  may in circumstances be payable.          

But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose?  In a modern            society no authority can arrogate to itself the power to act in a manner which is arbitrary.  It is unfortunate that  matters which  require immediate attention linger on and the man  in the  street  is made to run from one end to  other  with  no result.  The culture of window clearance appears to be totally dead.  Even in ordinary matters a common man who has neither the political backing nor the financial strength  to match  the  inaction  in public oriented  departments gets frustrated  and  it erodes the credibility  in the  system.

Public administration, no doubt involves a vast amount of administrative discretion which shields the action  of administrative authority.   But where  it is  found that exercise of discretion was malafide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be  under  protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him  for capricious exercise of power ………..

[emphasis added]

Yours faithfully,

J. P. Shah

Copy to:
Chief Information Commissioner,
Central Information Commission,
New Delhi - 110 066 Email: d.sandhu@nic.in


--If such decisions are not checked, other Information Commissioners at CIC and SICs would be tempted to replicate it. You may order review to correct defect.

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