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
