The attachment with this mail also have all the enclosures bundled in a single PDF File. Which may please be downloaded for taking further appropriate action on the matter.
RTIFED/SICP/Part-4/2014/064-D/0302
Despite HC Snub-its Business as Usual - 4
08 February 2014
THROUGH E-MAIL
| Mr. R.I. Singh Hon’ble State Chief Information Commissioner, State Information Commission Punjab SCO 84-85, Sector 17-C, Chandigarh -160017 Email: scic@punjabmail.gov.in
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| Mr. Naresh Gulati Hon’ble State Chief Information Commissioner State Information Commission Haryana, SCO No. 70-71, Sector 8-C, Chandigarh - 160008 Email: ussichry@yahoo.co.in | The working in the State Information Commission Haryana is even worse than that of their counterpart in Punjab. |
This Mail in original is also sent through e-mail to:
- Chief Justice, Hon'ble Punjab & Haryana High Court at Chandigarh
- Hon’ble Central Chief Information Commission;
- All Hon’ble Chief Information Commissioners of All Hon’ble State Information Commissions;
- Hon’ble Secretary, Department of Personnel & Training GOI New Delhi;
- All Chief Secretaries of All State of India;
- Home Secretary Chandigarh – the Hon'ble Punjab & Haryana High Court at Chandigarh had cast upon a responsibility on you for the compliance. – Please be kind to inform about the action taken and status report.
- A copy is also sent to all RTI NGOs for making similar plea to concerned authorities in their state/area of operation.
Part-4
Despite High Court Snub, It’s Business As Usual at SICP
Complaint Case No. CC-3327 of 2013 vis-à-vis P&H HC CWP-4787 of 2011
& Delhi HC WP(C)-3845 of 2007 on 28 April 2009
Hon'ble State Information Commissioner Punjab, for no apparent reasons, to either exceeded its jurisdiction or failed to exercise jurisdiction lawfully vested in it
«««««
Hon’ble Sirs,
Please refer to attached copy of letter of Mr. P.C. Bali letter No. Nil of 01 February 2014 (which has also been received by the RTIFED) regarding non-availability of the order dated 21 January 2014 of Mr. Harinder Pal Singh Mann, Hon'ble State Information Commission Punjab, in the case No. CC-3327 of 2013. Which is missing on the website of the commission[1].
It is pertinent to point out that on 21 January 2014, Mr. Harinder Pal Singh Mann, Hon'ble State Information Commission Punjab had heard a number of cases and the orders passed on those cases were uploaded, sans the order passed in the case No CC-3327, titled “Parbodh Chander Bali of Amritsar vs. Public Information Officer, o/o Secretary to Government of Punjab, Department of Local Bodies Punjab, Branch No. 1, Mini-Secretariat, Sector 9, Chandigarh”.
The list of cases heard on 21 January 2014 is as under:
| 1. Complaint No. 3965 of 2013 2. Complaint No. 3964 of 2013 3. Complaint No. 3963 of 2013 4. Complaint No. 3966 of 2013 5. Complaint No. 3967 of 2013 6. Appeal No. 2407 of 2013 7. Complaint No. 3670 of 2013 8. Appeal No. 2081 of 2013 9. Appeal No. 2106 of 2013 10. Appeal No. 2234 of 2013 11. Appeal No. 2346 of 2013 | 12. Complaint No. 3609 of 2013 13. Complaint No.3304 of 2013 14. Complaint No. 3938 of 2013 15. Complaint No. 3327 of 2013 16. Complaint No. 3888 of 2013 17. Appeal No. 2418 of 2013 18. Complaint No. 3919 of 2013 19. Appeal No. 2376 of 2013 20. Complaint No. 1894 of 2013 21. Appeal No. 2374 of 2013
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The practice at the commission is that all the orders passed on a day are bundled in a single MS Word Document file (although RTIFED has not appreciated this practice and a couple of communications were sent to the commission in this regards). It is surprising that the order relating to the above captioned case disappeared from the file named <21.01.2014Orders(HPS).doc> which contained all the other orders.
How it could be possible, without some intentional fiddling with the file. This order was removed either at the end of the Mr. Harinder Pal Singh Mann, Hon'ble State Information Commissioner Punjab, or his staff or at the end of the IT Section of the Commission at the behest of some officer of the commission who wield some authority to do this. Otherwise, in usual copy/paste/upload/FTP environment of digital handling, it is not possible.
This is a serious matter that in case of the High Profile Public Authority (offices), either the commission refuses to take the cognizance of the matter, or the appeals or complaints are dismissed out-rightly on vague reasons to bail out erring Public Information Officers, or the matters are diluted by taking a “lenient view”.
Commission took lenient view without passing any reasoned order as to why the commission so considers. What circumstances weigh heavy for talking lenient view and how commission arrived at a penalty of Rupees ten thousand only.
In this case too, the commission took a more than one lenient views:
Firstly, Commission, while agreeing in Para-5 of his order that “The facts and circumstances of the case justify the imposition of the maximum amount of penalty upon the PIO, O/o Department of Local Bodies, Punjab Branch-1. However, taking a lenient view in the matter, I impose a penalty of Rs. 10000/- (Rupees Ten thousand only) on the Respondent”.
Secondly, Commission has failed to the pin-point the Name and Designation of the erring Public Information Officer. Thus, in effect, this toned down penalty has been imposed on an unknown person, which may not be existing at all.
Thirdly, the Penalty order has not been posted online so that the matter may not go beyond the files of the commission.
Fourthly, Commission has not ordered to recover the amount of compensation from the erring Public Information Officer.
Fifthly, Sub-Section 2 of Section 20 of the Right to Information Act 2005 has not been invoked by the commission.
Coming back to Section 20(1) of the Right to Information Act 2005, it says as under:
Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:
Accordingly, commission has no discretion and penalty has to be imposed at the rate of two hundred and fifty rupees each day till the information is provided, subject to the maximum of Rupees twenty-five thousand only. Here two factor works for calculation of penalty:
Number 01 – the Number of days of default in providing the information; and
Number 02 – the penalty of Rupees two hundred and fifty for each day of default thus calculated.
There is a Third factor though, that amount of penalty “shall not exceed twenty-five thousand rupees.
Now the questions arise:
1. Under what provision of law commission draws power to take a “lenient View”.
2. Has the commission has any “discretion” in this regard and impose either no penalty or penalty at an amount which has no relevance to the provision of the Act and which defies all logics?
3. Under what provision of law commission imposes an “arbitrary” amount of penalty?
4. Is the imposition of penalty under section 20 is “a rule” or “an exception”?
In fact, in this case the Public Information Officer had already earned penalty, when he breached the legal threshold of 30-days[2] in supplying the information, and the Hon'ble State Information Commissioner Punjab was under statutory duty to impose penalty, after affording a reasonable opportunity of being heard to Public Information Officer.
There, it seems, however, some other factor that worked and that is what which provoked the Hon'ble State Information Commissioner Punjab to impose the penalty even after taking lenient view:
1. The default committed by the Public Information Officer, as it appears, was not the prime cause of imposing penalty. What had most the impelled, encouraged, driven, incited, pressed, provoked, prompted and inflamed the Hon'ble State Information Commission Punjab was the “continued non-compliance and evasion of the orders passed by the commission by the Public Information Officer”.
2. The commission has imposed penalty not for the violation of the Right to Information Act 2005, and for failing to perform his duty under the Act by the Public Information Officer, but out of the embarrassment, humiliation, mollification, disgraced the Commission felt for non-compliance of his orders. This fact emerges out clearly from this order dated 21 January 2014 of the Hon'ble State Information Commission Punjab.
3. And, this is the main cause of penalty in most of the orders of the most of the Hon'ble State Information Commissioners. The violation of the law is considered secondary, as if nothing serious has been done. But when it comes to the hypothetical honor, pride and dignity of the self-worth, commissioner uses the penalty as a “punishment tool”, as appears from most such orders.
This order is also against the law settled by the higher courts. In a judgment decided on 28 April 2009 in the WP(C)-3845 of 2007 on Apr 24, 2009 (copy attached), Hon’ble Delhi High Court ordered that once it has been established that there has been a delay in supplying information without any reasonable cause, the Information Commission does not have any discretionary power on whether penalty has to be imposed or not. In this case the CIC, in its order, stated that, since this is the first violation of the department, penalty has not been imposed. This has been decided as illegal by the Delhi High Court and ordered that the penalty has to be imposed.
It is a well-established proposition that a Tribunal – as the information commissions undenybly are – the Hon'ble State Information Commissioner Punjab fails to exercise jurisdiction lawfully vested in it or acts beyond its jurisdiction, an expression that includes acting contrary to the provisions of law, or established principles of law or the Constitution, it is established that the Hon'ble State Information Commissioner Punjab, for no apparent reason, either exceeded its jurisdiction or failed to exercise jurisdiction lawfully vested in it.
This is a fit case to take serious notice. The State Information Commission, Punjab is not a department of the state so as to take an executive decision according to the circumstances and the keeping in view the status of the delinquent. Commission has been set up under the authority of an Act passed by the parliament, and it has to function under the provision of that Act, namely Right to Information Act 2005.
Of late commission has been severely reprimanded by the Hon'ble Punjab & Haryana High Court in the judgment CWP-4787 of 2011 wherein the various irregularities committed by the State Information Commission, Punjab were counted. Yet there is no change noticeable in the attitude of the State Information Commissioners, Punjab., despite RTIFED having already sent three communications to the commission under the series “Despite High Court Snub, It’s Business as Usual at SICP” on 22 January 2014, 25 January 2014 and 31 January 2014,
In the meanwhile, RTIFED reiterates its demands that a “Transparency Committee” consisting of representative from Hon'ble State Information Commission Punjab, Government, RTIFED, Law fraternity and the public, may be formed suo-motu, to review the working of the commission as per mandate of law and to sort out the difficulties faced by the commission and the information seeking members of the public.
The Judgement dated 02 December 2012 in a writ petition No. CWP-4787 of 2011 (O&M) by the Hon'ble Punjab & Haryana High Court and all other enclosures have already been sent vide earlier communication referred to above, and have not been sent herewith, the same may please be referred to.
This communication is sent through electronic media and as such does not require any signature.
The receipt of this communication may please be acknowledged.
Thanking you & Warm Regards,
Very cordially yours,
Surendera M. Bhanot
President RTIFED[3]
Camp at Delhi
Enclosure: as stated please.
1. ANNEXURE – A : Letter dated 01 February 2014 of Mr. Bali,
2. ANNEXURE – B : Copy of complete File No <<21.01.2014Orders(HPS).doc> as downloaded from the website of commission.
3. ANNEXURE – C : Copy of order dated 21 January 2014 in Complaint Case CC-3327, as received through post.
4. ANNEXURE – D : Delhi High Court judgment in WP(C)-3845 of 2007 on 28 April 2009 &
5. ANNEXURE – E : P&H High Court judgment in CWP-4787 of 2011
[1] However, later, this Order was received through ordinary post. But still this order was not available online, till the date of emailing this communication.
[2] Section 7(1) - Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
[3]RTIFED (formerly known as RTI Activists’ Federation and conceived and founded by the legendary Advocate H.C. Arora) is a body looking after the rights of the RTI Applicants and keeping an eye over the happenings of the RTI related matters in various states.
The attachment with this mail also have all the enclosures bundled in a single PDF File. Which may please be downloaded for taking further appropriate action on the matter.
Attachment(s) from RTIFED - Surendera M. Bhanot | View attachments on the web
1 of 1 File(s)
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