Date:
30-05-2014 By
email & post
To,
Ms. Manjula Prasher
Information Commissioner
Central Information Commission,
August Kranti Bhawan, Bhikaji Cama
Place
New Delhi110066
Email: m.prasher@nic.in
Hon’ble Madam,
Subject:
Decision No.
CIC/VS/A/2013/001127/MP Dated 15-05-2014
As part of social audit I happened to peruse your
captioned decision. You have upheld non-disclosure of note sent to RBI by
respondent bank and instructions issued to internal auditors, under section
8.1.e [fiduciary relationship].
With a view to improve quality of decisions and RTI,
I respectfully point out following infirmities in the said decision:
1.
The issue pertains to ATM failed transactions where in account is debited but
cash is not dispensed at ATM. RBI vide its circular dated 17-07-2009 had mandated that banks
should suo moto compensate customer @Rs.100/- per day of delay, if the amount
of such transaction is not credited back within 12 [reduced to 7 from
17-05-2011] working days from date of complaint by customer. Massive movement
from April 2010 by a senior citizen of Pune has revealed that majority of banks
are not paying compensation amount as directed by RBI. This amount is in crores
if all banks are put together. There was no reason to take assurance to you of
bank officers on face value that RBI directives are followed. Thus this issue
is in larger public interest.
2.
Instructions by way of circulars to internal auditors cannot be treated as
under fiduciary relationship, since such circulars are to be proactively
disclosed under section 4.1.b. [v]. Even RBI puts all its circulars on its
website.
3.
As per RBI instructions, a note is required to be placed before Boards of the
Banks and copy is to be sent to RBI on quarterly basis, to enable RBI to monitor
the issue. It contains only statistical data on ATM failed transactions and
steps taken to ensure that compensation is paid with failed amount of
transaction expeditiously. Pune crusader got these notes from RBI pertaining to
private banks under section 2f of RTI Act. Many Public Sector Banks also supplied
such note to him under RTI directly.
4.
Circular and note as above are prepared as part of official duty of bank
officers and hence cannot be treated as “voluntarily supplied by third party.”
5.
I have posted a write-up on fiduciary
relationship under RTI at following link, perusal of which will convince you
about error in said decision:
https://www.box.com/s/21403f11a9319dc332f8
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 your Honour for future
decisions. This will avoid wrong precedence by other CPIOs and 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.15000/- to public exchequer.
8.
May I quote from judgement dated 05-11-1993 of Hon’ble Supreme Court in LUCKNOW
….…..
. 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,
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