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.

COMMON MAN AND HON'BLE SUPREME COURT

                      COMMON MAN AND HON’BLE SUPREME COURT

 IMP EXTRACTS FROM:

 JUDGEMENT OF HON’BLE SUPREME COURT OF INDIA

IN LUCKNOW DEVELOPMENT AUTHORITY V/s. M.K. GUPTA

DATE OF JUDGMENT: 05/11/1993

CITATION: 1994 AIR 787  1994 SCC (1) 243 JT 1993 (6) 307    1993 SCALE (4)370

1] …………Still more important issue is   the liability of payment. That is, should the society or the tax payer be burdened for oppressive and capricious act of the public officers or it be paid by those responsible for it. The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has  taken  many strides.  It is now accepted both by this Court and English  Courts  that the  State  is  liable  to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees.  In State of Gujarat  v. Memon  Mahomed Haji  Hasam  the order     of  the  High  Court directing  payment  of compensation for disposal  of  seized vehicles  without  waiting for the outcome  of decision  in appeal was  upheld  both on principle of  bailee's  'legal obligation  to preserve the property intact  and  also       the obligation to take reasonable care of it ... to return it in the same condition in  5 (1976) 2 SCC 917 6 (1990) 4 SCC 21 : 1990 SCC (Cri) 522: AIR 1990 SC 1849

2] …. ‘it is immaterial that the respondents had acted bonafide and in the interest of preservation of public health.  Their motive may be good but their orders are illegal.  They would accordingly be liable for any loss caused to the  appellants by  their action.' The theoretical concept that King can do no wrong has been abandoned in England itself and the State is  now held responsible for tortuous act of  its  servants.

3]. 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.   

4]….. For  such  acts  or omissions  the  loss  suffered has to be made  good  by  the authority  itself.  But when the sufferance is due to malafide or oppressive or capricious acts etc. of  a  public servant,   then  the  nature  of  liability  changes.  The   omission under the Act could determine such amount if  in its  opinion  the consumer suffered injury due to  what  is called misfeasance of the officers by the  English  Courts. Even  in  England  where award of  exemplary  or  aggravated damages for insult etc. to a person has now been held to  be punitive, exception has been carved out if the injury is due to, 'oppressive, arbitrary or unconstitutional action by  servants of the Government' (Salmond and Heuston on     the Law of Torts).

5]. Misfeasance in public office is explained by Wade in his book on Administrative Law thus:

 "Even where there is no ministerial duty  as   above, and even where no recognised tort such as   trespass,  nuisance, or  negligence           is committed, public authorities or officers  may    be liable in damages for malicious, deliberate or  injurious  wrong-doing.  There is  thus  a  tort  which  has been  called  misfeasance  in        public  office, and which includes  malicious    abuse of power, deliberate  maladministration, and  perhaps also other unlawful acts  causing injury." (p. 777)

6] ….. The  jurisdiction  and power of the courts  to      indemnify a citizen for injury suffered due to abuse of power by  public authorities  is founded  as observed by  Lord   Hailsham  in Cassell & Co. Ltd. v. Broome13 on the principle  that,  an award  of  exemplary damages can serve a useful purpose  in vindicating the strength of law'.  An ordinary citizen or  a common man  is hardly equipped to match the  might  of  the State  or  its instrumentalities.  That is provided  by  the rule of law.  It acts as a check on arbitrary and capricious exercise of power.  In Rookes v. Barnard14 it was  observed by Lord Devlin, 'the servants of the government are also the servants  of  the  people and the use of  their power must always be subordinate to their duty of service'.  A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse.  No law provides protection against it. He who is responsible for it must suffer it. 

7]….. .  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.

8]….. or semi-govemment offices by holding the officers personally responsible for their capricious or even ultra vires  action resulting in injury or loss to a citizen by awarding damages against them.

9]….. In Smith v. East Elloe Rural District  Council17 the  House  of Lords held that an action for  damages  might proceed against the clerk of a local authority personally on the  ground that he had procured the compulsory purchase  of the  plaintiff's property wrongfully and in bad  faith.

10]. In Farrington  v. Thomson18  the Supreme  Court of  Victoria awarded damages for exercising a power the authorities knew they  did not possess.A licensing inspector and  a  police officer      ordered the plaintiff to close his hotel and  cease supplying  liquor.   He         obeyed and filed  a  suit  for  the resultant loss.  The Court observed:

              

 "Now I take it to be perfectly clear, that  if  a public officer abuses his office, either  by             an  act  of omission or  commission,  and the consequence  of  that  is an  injury  to          an individual, an action     may  be  maintained   against such public officer."

11]…… 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 ………..

12]…….When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man.  It        is  the  tax payers' money which is paid for inaction of those  who    are entrusted under the Act  to discharge  their  duties  in accordance  with law.  It is, therefore, necessary that          the Commission  when  it  is satisfied  that  a  complainant  is entitled  to compensation for harassment or mental agony  or oppression,  which  finding  of course should   be  recorded carefully  on material and convincing circumstances and  not lightly,  then it  should  further  direct  the  department concerned  to  pay the amount to the  complainant  from  the public fund immediately but to recover the same from  those who are found responsible for such unpardonable behaviour by dividing  it proportionately where there are more  than one functionaries.

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 [Emphasis added]

Note: Whenever you are harassed by public servants, please quote these extracts in your communication or attach it to your complaints. I have experienced positive effect of it in majority of cases, because now govt officers understand only legal language.

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