Dear Mr.Roy,
Thanks for your advice. The case has not been admitted and we defendants have not received any court notice yet, though the Commission has circulated a copy of the plaint submitted to the court to both of us the defendants. We are waiting for the court notice.
With regards,
Chitta behera
From: Sarbajit Roy <sroy.mb@gmail.com>
To: rti_india@yahoogroups.com
Sent: Sat, 23 October, 2010 8:16:04 AM
Subject: Re: [rti_india] Mr.D.N.Padhi Chief Orissa Information Commissioner: Mind your limits, please!
Dear Chitta
I am pleased to know that you are planning to actively defend your matter.
Now that the matter is sub-judice, you may also have to brush up laws like
the Contempt of Courts Act etc. For instance, it constitutes criminal
contempt to publish anything which may impede the proceedings or
lower the estimation of the Hon'ble Court.
Sarbajit
On 10/23/10, Chitta Behera <chittabehera1@yahoo.co.in> wrote:
> Mr.D.N.Padhi Chief Orissa Information Commissioner: Mind your limits,
> please!
>
> 1) Eureka! A silver lining is now pretty visible amidst the deep and
> dark clouds that hovered over the fate of RTI so long in the State of
> Orissa.
> After a long wait of almost 5 years, the RTI activists of the State have
> almost
> reached the very destination which they had cherished for long- a legal
> forum
> where they can freely articulate their cumulative charge-sheet against the
> malfunctioning and misdoing Orissa Information Commission and specifically
> its
> Chief Mr.D.N.Padhi. As irony would have it, this rare and much sought after
> opportunity has been offered to them on a platter by none else than Mr.Padhi
> himself as evident from a rapid round of 3 angry counter-mails followed soon
> by
> a defamation suit by him in the Court of Civil Judge (Senior Division),
> Bhubaneswar (C.S.No. 1723/ 2010-M) on 5.10.2010 against the self and eminent
> RTI
> activist Mr.Pradip Pradhan of Orissa Suchana Adhikar Abhijan. God willing,
> sooner the petition of plaintiff the Chief OSIC Mr.Padhi is taken up for
> hearing
> by the Court, the better for us the citizen-defendants.
>
>
> 2) Now that we have almost achieved what we had cherished –as
> already
> told, thanks to OSIC Chief Mr.D.N.Padhi himself- it is however pertinent to
> raise and reflect on a general question, which may be of topical interest to
> the
> RTI knowing public all across the country. The question is whether any
> Information Commission, or for that matter its Chief Commissioner in his
> 'official capacity' has at all the eligibility to approach a civil court for
> action against a citizen on the grounds of 'defamatory comments' by the
> latter?
> This question is inspired by the very opening line of the above suit that
> reads,
> 'That the plaintiff files this suit in his official capacity. The defendants
> on
> the other hand are sued in their respective individual capacities'. Further,
> this question has a unique importance in view of the fact that never before
> in
> the 5-year history of RTI in our country, any other Commission, Central or
> State
> has sued any citizen on any ground whatsoever, not to talk of 'defamatory
> comments'.
>
> 3) Before proceeding further, it is relevant to quote the substance
> of
> the prayer made by the petitioner Mr.Padhi before the above Court– "(a) Pass
> a
> decree of damage for Rs.99,000/- against the defendants in favour of the
> plaintiff, (b) Pass a decree of permanent injunction restraining the
> defendants
> from using, publishing or circulating any defamatory comments either through
> internet/ press or in any form and manner against the plaintiff, (c ) Pass a
> decree for the cost of the suit and such other relief(s) which the plaintiff
> is
> entitled to get and this Hon'ble Court deems just and proper under the
> circumstances of the case". The kind of damage that Mr.Padhi Chief OSIC
> allegedly suffered from the 'defamatory comments' has been spaciously
> described
> in Para-5 of his petition, which though affected with grammatical slips
> typical
> of him, reads verbatim as follows - "That the power of tolerance of the
> plaintiff in person when crossed it's limits and the image of the
> institution
> when was going to be lowered down and the plaintiff Sri D.N.Padhi felt his
> life
> insecure due to the malafide intention of the defendants has no other option
> than to bring this fact to the court of law having the intention to (i)
> refrain
> the defendants from their unwarranted and unwanted activities, (ii) also to
> claim for damages due to his loss of reputation, image and estimation in the
> public eyes by filing this case also having the noble idea that the
> defendants
> will mend their attitude." However, let's not get stuck up at Padhi's
> grammatical indiscipline, since it is an open secret that many of OSIC's
> decisions drafted by him are replete with faux pas of the above sort. Then
> he
> continues, "The prestige, social status and reputation of the plaintiff have
> been tarnished and it has been tremendously ruined due to the oblique and
> malicious motives of the defendants who have been irresponsible, illegal,
> reckless and used purposefully defamatory comments which amounts to sadistic
> pleasure of the defendants and the slander targeting the image and social
> position of the plaintiff Sri D.N.Padhi who has conducted himself in
> exercising
> his quasi-judicial function under the Act". Afterwards the rationale of his
> petition is summed up as follows: "On the aforesaid premises the plaintiff
> Sri
> D.N.Padhi in person also as the Chief of the State Commission has sustained
> mental pain, suffering and agony and the image of the plaintiff institution
> is
> now going to be criticized before the public for the irresponsible
> activities of
> the defendants".
>
> 4) The last para i.e. para-7 of the petition provides an interesting
> read, "That this being a suit for damage and permanent injunction for the
> purpose of damage it is valued at Rs.99,900/- and for the purpose of
> permanent
> injunction it is valued at Rs.100/- and in total the suit is valued at
> Rs.1,00,000/- and accordingly the court fees worth Rs.4,185/- is paid for
> the
> same".
>
>
> 5) Since the introduction to the case describes the petitioner not
> by
> name, but by designation (State Chief Information Commissioner, Orissa
> represented by the Commissioner-cum-Secretary), it is presumed that expenses
> already incurred and to be incurred until the case is finally disposed of
> shall
> be borne by the Commission and that too even after the exit of Mr.Padhi, who
> is
> due to retire only in coming November. And see the fun! The plaintiff shall
> get
> the damage of Rs.1,00,000/- from the defendants, if granted by the Court
> whereas
> the expenses of the case from the start to finish shall continue to be borne
> by
> the Commission even though the plaintiff exits his office. Moreover,
> needless to
> say, the litigation triggered by Mr.Padhi shall turn into a millstone around
> the
> Commission's neck in years to come, and his successors shall continue to
> bear
> its burgeoning burdens financial or otherwise willy-nilly. A lingering and
> expensive litigation! This is the most 'precious' gift Mr.D.N.Padhi seeks to
> bequeath to his successors for all time to come.
>
>
> 6) There is still a more serious and critical point worth pondering
> in
> this connection. Since the ultimate outcome of a case in our labyrinthine
> judicial system is utterly unpredictable, it may so happen that Mr.Padhi the
> Chief OSIC who is the plaintiff in his official capacity loses out the case
> to
> the defendants. Has he ever bothered to know that such a loss would
> eventually
> inflict a permanent scar on the august, statutory status of the Orissa
> Information Commission in particular and that of all Information Commissions
> of
> the country in general? Won't this loss of face and legitimacy on the part
> of
> the Commission incite those very notorious elements of the society who may
> be
> harboring some personal grouse against the act or behavior of a Commissioner
> done in his personal or official capacity, to call his names publicly and
> even
> on the streets? Mr.Padhi ought to mind that by filing this case to satisfy
> his
> personal vendetta against his intellectual adversaries he is pushing the
> whole
> Commission into an irretrievable state of bankruptcy and indefensibility for
> all
> time to come.
>
> 7) Now coming to the moot question, whether the Commission or for
> that
> matter its Chief Commissioner in his official capacity has at all the
> eligibility to sue a citizen, the answer is a flat 'no' from the standpoint
> of
> RTI Act 2005. As a matter of fact, the said Act enables a common citizen to
> sue
> any Information Commissioner on the grounds of inefficiency, moral
> turpitude,
> corruption and vested interests etc before the President or Governor as the
> case
> may be, who has the power to suspend or even dismiss the said Commissioner
> on
> the alleged grounds if deemed genuine by him (vide Sections 14 and 17). But
> there is no vice versa provision in the said Act i.e. under no
> circumstances,
> can the Commission or a Commissioner in his official capacity sue a citizen
> on
> any ground. Of course, as always, Mr.D.N.Padhi in his individual capacity
> can
> very much sue any person on the ground of 'defamation' or any other personal
> ground, but in that case he can't use his official designation, and much
> less,
> squander away the Commission's money in pursuit of his case.
>
>
> 8) Moreover, Mr.Padhi Chief OIC while approaching the Civil Court in
> his
> official capacity to sue two citizens, has blatantly flouted Section 23 of
> RTI
> Act (Bar of Jurisdiction to Courts), which puts conspicuous limits on the
> power
> of the Courts in entertaining the RTI related cases. The said Section reads,
> "No
> court shall entertain any suit, application or other proceeding in respect
> of
> any order made under this Act and no such order shall be called in question
> otherwise than by way of an appeal under this Act". It is simply
> incomprehensible, how Mr. Padhi being himself the presiding authority over
> the
> RTI regime in the State has thrown into winds this all-important injunction
> stipulated by the RTI Act. Again, Mr.Padhi Chief OSIC while approaching the
> Civil Court at Bhubaneswar for suing two citizens for defamation under Civil
> Procedure Code (CPC) seems to have said a good-bye for good to another
> salient
> provision of RTI Act i.e. Section 22 (Act to have overriding effect),
> according
> to which the RTI Act 2005 has an overriding effect over the entire corpus of
> legislation in force including the CPC 1908.
>
> 9) A plausible question may still arise- given the statutory
> limitations
> of the Commission in moving the Court of law for suing the citizens, what
> should
> an embarrassed or 'agonized' Information Commissioner such as Mr.Padhi in
> the
> present instance, do to protect himself from the 'defamatory comments' by
> any
> person(s)? Of course, there are two legal way-outs open to him from the
> perspective of the RTI Act 2005. First, he should approach his swearing-in
> and
> disciplinary authority Governor and seek his counsel as to how to proceed
> against the 'defamatory comments' coming from the citizenry. Alternatively,
> he
> can pretty well file a suit in his individual capacity against the persons
> allegedly indulging in 'defamatory comments', but not in the official
> capacity
> of the Chief Commissioner and not involving the Commission in any manner.
> Besides, he should pay all the legal expenses from his pocket instead of
> making
> the Commission foot the bill for his personal case.
>
> 10) But Mr.Padhi has messed up the two distinct 'capacities' into an
> inchoate one in the instant case. Please read again his submission, "On the
> aforesaid premises the plaintiff Sri D.N.Padhi in person also as the Chief
> of
> the State Commission has sustained mental pain, suffering and agony and the
> image of the plaintiff institution is now going to be criticized before the
> public for the irresponsible activities of the defendants". As is evident
> from
> this messy averment, it seeks on one hand a redress of 'the mental pain,
> suffering and agony' suffered by Mr.Padhi as a person, and on the other,
> protection of the 'image of the plaintiff institution'- in nutshell, saving
> both
> individual and institution at one go. And here is the rut! As a matter of
> fact,
> Mr.Padhi if at all he be interested to succeed in his single-point mission
> to
> bring the RTI activists into book, ought to bifurcate the present case into
> two
> separate segments, each to be pursued discretely and distinctly on its
> exclusive
> merit. For instance, in order to avail the relief from 'the mental pain,
> suffering and agony', Mr.Padhi should pursue the case against his bete
> noires
> Mr.Pradip Pradhan and Mr.Chitta Behera in his individual capacity and at his
> personal expense without involving in any manner the name of the Commission
> or
> his designation as the Chief Orissa Information Commissioner. And to rescue
> the
> image of the Commission from the imminent vilification by such 'notorious'
> duo,
> Mr.Padhi as Chief OSIC should in his official capacity move his swearing-in
> and
> disciplinary boss Governor Orissa as to how to rein in such 'defamatory'
> elements and thereon act on the advice received, if any.
>
> Chitta Behera
> Cuttack, Orissa Dt 23rd October 2010
>
>
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