Mr.D.N.Padhi Chief Orissa Information Commissioner: Mind your limits, please!
1)
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
No comments:
Post a Comment