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karira

New File- Not job of the Commission to ensure recovery of penalties imposed

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karira

If the Information Commission itself is incapable of ensuring recovery of penalties and/or does not even allow the appellant to take part in the show cause / penalty proceedings, how can the poor citizen be expected to do so ?

 

Just another bizarre order !

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Dr V S Prasanna Rajan

The Information commissioner failed to recognize the provision given under Section 25 of the General Clauses Act, 1897 which provides statutory mechanism to recover fines, which have not been nullified or stayed by higher judicial forum.

 

General Clauses Act, 1897 is applicable to all central acts, and the rules and regulations formed under the central acts.

 

Section 25 read with Sections 14(1),(2) of the General Clauses Act, 1897 empowers the information commission to recover the fines so levied whose recovery have not been stayed or nullified by higher judicial forum, by filing a complaint before the jurisdictional magistrate court towards the non-recovery of the fine from the errant public information officer.

 

14 Powers conferred to be exercisable from time to time. —

 

(1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any power is conferred , then [unless a different intention appears] that power may be exercised from time to time as occasion requires.

(2) This section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887.

 

Section 25 Recovery of fines - —Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of the 48 Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule or bye-law contains an express provision to the contrary. said notification is specifically superseded or withdrawn or modified under the new notification

 

The above provision was judicially recognized by the supreme court in CASE NO.: Appeal (crl.) 1375 of 2007 : SHANTI LAL vs STATE OF M.P DATE OF JUDGMENT: 08/10/2007

 

In para 26 of the aforementioned case, the supreme court held -" Though Section 25 of the General Clauses Act, 1897 was not referred to in Bashiruddin Ashraf, in our opinion, bare reading of the said provision also makes it explicitly clear and leaves no room for doubt that Sections 63 to 70, IPC and the provisions of CrPC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the Act, Regulation, Rule or Bye-law contains an express provision to the contrary."

 

Hence, the information commission is not powerless to recover the fines levied under RTI act, 2005.

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Dr V S Prasanna Rajan

Based on post no.3, any activist can file RTI to information commission, asking for the total no. of cases in which sections 14(1),(2) of the General Clauses Act, 1897 were invoked for the recovery of the fines so levied, based on the judicial recognition given by the supreme court in para.26 in Appeal (crl.) 1375 of 2007.

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Prasad GLN

Three years back in 2009 , I have solicited information from CIC on how many cases have been imposed IC wise, demand notices sent, amount recovered and pending for recovery for more than 3 months.

CPIO simple reply from CIC is "No records are maintained". FAA agreed. I have dropped filing second appeal.

Can not they appoint one officer to monitor the system even after computerisation where templates can be generated and at any minute with a click of button of feeding name of officer the penality status appears. (Now they have implemented and their Decisions status portal is working fine and the same procedure with little modifications can be implemented. Now if one feeds name of appellant or complaint the entire data of appeals appears on screen with full particulars.)

Can not they do this atleast ? No there is no inclination as figure appears ridiculous when compared with appeals disposed.

 

Yes Mr.Rajan, even if RTI application is filed now the reply is "no such record is being maintained". We can not ask why they are maintaining such record under RTI as it amounts to questioning authority. I may be wrong. Please correct me .

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Dr V S Prasanna Rajan

With regard to the incidental and ancillary powers of the information commission to ensure the realization of the penalty, levied under Section 20(1) of the RTI act, 2005, I hereby place on record the relevant portion - para.18 of the judgement of the Supreme court in - Sakiri Vasu vs State Of U.P. And Others on 7 December, 2007.

 

Para 18.- It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

 

Hence, being well settled in law that when a power is conferred by a statute, it also includes all the incidental and ancillary powers to effectuate such power, as reinforced by the aforementioned portion of the judgement, the information commission has no valid and tenable excuse or reasons in law for being lax with regard to the realization of fines levied under the RTI act, 2005.

 

Hence an activist can also file an application to get information on - the progress made on the administrative side of the commission to recover the penalties so levied under the rti act, 2005.

If no progress is made, then the reasons recorded therein under section 4(1)d of the rti act can be asked.

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jps50

Please refer point No 4 in the attachment which deals with recovery of penalties. I have already reminded on 20-01-2015 before filing RTI for action taken status.

CIC IMPROV 100614.pdf

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Prasad GLN

Sir,

Do CIC need that suggestion from Public even after 10 years of it's functioning ?-(When it is their duty to formulate a simple procedure for recovery of penalties.)

O. K. They are not aware of the procedure. But what CIC has done in a decade when applicants have brought to the attention of CIC about these penalties ?

CIC may throw the blame on DOPT but unless it is pointed out by some one how DOPT can enter into picture even in routine matters of common sense.

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mahendra kumar patel

फिर rti डालने का मतलब ही क्या रह जायेगा? penalty की recovery करवाई नहीं जा सकती, तो फिर डर किस बात का । sic या cic penalty लगाते रहे।

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RAVEENA_O

The Appropriate Government shall be required to frame rules for the effective implementation of the provisions of the Act. Such power is vested in Appropriate Government u/s 27 and in Competent Authority u/s 28 of RTI Act. Efforts should be to frame The Right to Information (Recovery of Penalty) Rules, 2015. The mode and method of recovery and the authorities responsible to recover and remit the penalty amount e.g FAA or HOD or Chief Accounts Officer; the time frame within which such recoveries should be made; the Account Head/Sub-Head to which such amount shall be credited; punitive measures in case such recovery is not made within prescribed period such as accrual of penal interest + disciplinary action; submission of compliance report to Information Commission by such authority responsible for recovery within prescribed period; necessity to maintain accountal of recovery of each penalty by CIC etc. shall be clearly defined in such rules so framed.

 

DoPT being the nodal ministry for RTI Act should frame such a Rule atleast in the 10th year of its implementation. The Government that speaks too much about transparency should show its intention by framing such a rule immediately.

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umapathi.s

supreme court judgement referred above in RTI matters may not be applicable since the supreme Court was referring to the power of the Court in such situation. on the other hand, the CIC or State Information Commissions are not Court but only quasi judicial authority. further, these information Commissions have no power of CRPC. the supreme court was holding that "power of IPC and the provisions of CrPC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the Act, Regulation, Rule or Bye-law contains an express provision to the contrary" . the fines imposed by information Commissions and other Courts are not similar.

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Dr V S Prasanna Rajan
these information Commissions have no power of CRPC. the supreme court was holding that "power of IPC and the provisions of CrPC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the Act, Regulation, Rule or Bye-law contains an express provision to the contrary" . the fines imposed by information Commissions and other Courts are not similar.

 

With regard to the recovery of the penalty imposed by the Information commission, which has not been stayed or nullified by higher judicial forum, though the information commission have no powers of CrPC, the information commission is free to lodge complaint before the jurisdictional magistrate court, through the registrar of the Information commission, so that the provisions of the general clauses act related to the recovery of fines can be invoked by the jurisdictional magistrate court on the errant PIO.

 

Also, as per the provision in the Section 25 of General Clauses Act dealing with the recovery of fine, it is explicitly stated that SUCH PROCEDURE IS APPLICABLE SHALL APPLY TO ALL FINES IMPOSED UNDER ANY ACT, REGULATION, RULE OR BYE-LAW unless the Act, Regulation, rule or bye-law, WHICH OBVIOUSLY Includes RTI ACT, 2005.

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Dr V S Prasanna Rajan

In continuation of my previous post, I further mention the following -

 

When the legislature, by an express provision in a statute confers the power of levying penalty to a tribunal, then it is implicit in that provision that all incidental and ancillary powers to effectuate such provision, in a manner authorized by law, is also provided to such tribunal.

 

It is not the intention of the legislature that even after levying the penalty as per the provisions of the statute (RTI act, 2005 in this case) , the penalty so imposed is rendered to nullity, by the non-recovery of such penalty.

 

Hence, on a prima-facie satisfaction of the information commission that the penalty which has attained finality in law, is not recovered, it is always open for the commission to lodge complaint before the jurisdictional magistrate court, for invoking necessary powers under the general clauses act and CrPC to recover such penalty through a procedure, known to law.

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Dr V S Prasanna Rajan

The penalty, levied by the information commission, which has attained finality in law, and which is not paid by the errant PIO then it also amounts to the contempt of the lawful authority of public servants, which is an offence under IPC, for which CrPC provisions can be invoked by filing a complaint before the jurisdictional magistrate court, by the registrar of the information commission.

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Prasad GLN

Filing criminal complaint before the jurisdictional Magistrate court by Registrar of Information Commission ?

Do you find any such possibility practically ?

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Dr V S Prasanna Rajan
Filing criminal complaint before the jurisdictional Magistrate court by Registrar of Information Commission ?

Do you find any such possibility practically ?

 

Activists has to force the commission to do it by filing RTI applications asking for:

 

(a) Total amount of penalty levied on PIOs for the period from ... to ... which has attained finality in law.

 

(b) Total amount of penalty recovered for the period from .........to ........which has attained finality in law.

 

© Total amount of penalty not-recovered for the period from ........to ........which has attained finality in law.

 

(d) Certified copies of the complaints filed by the commission before the jurisdictional magistrate court with regard to offence committed under 175 IPC by the errant PIOs by not paying the penalty levied by the commission, which has attained finality in law.

 

(e) If no info is available for para.d, then the certified copies of the records containing the information or reasons recorded under section 4(1)d regarding the same.

 

If one pursues at least up to second appeal, in this issue, the commission will be forced to initiate administrative reforms towards the recovery of penalty which has attained finality in law.

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jetley

Attention of the learned members of this esteemed forum is invited to the following provision of the RTI Act 2005-

Section 19(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to

(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act

 

Penalty is a provision of the RTI Act, and since the law has specifically empowered the commissions by specifically bestowing upon them powers to secure compliance with the provisions of the Act, it clearly implies in word and spirit of the RTI Act, that the honourable commissions are expected to ensure recovery of penalty from the respondents in cases where such penalties have been imposed by the commission.

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Prasad GLN

Commission means and includes the entire organisation and not IC's alone. The part of IC ends with delivering a decision, and DOPT has formulate a procedure for recovering penalty through some other designated official from Registry. But over a decade neither commissions cared to recover such penalties nor DOPT tried to give a clarity on such procedure to be followed for recovery of fines.

Forget about penalties and recommendation for punishment, PIOs are not even caring for implementation of decision and providing information as per AP IC Hon.Vijayababu.

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Dr V S Prasanna Rajan
Commission means and includes the entire organisation and not IC's alone. The part of IC ends with delivering a decision, and DOPT has formulate a procedure for recovering penalty through some other designated official from Registry. But over a decade neither commissions cared to recover such penalties nor DOPT tried to give a clarity on such procedure to be followed for recovery of fines.

Forget about penalties and recommendation for punishment, PIOs are not even caring for implementation of decision and providing information as per AP IC Hon.Vijayababu.

 

Sections 19(8)(a),22 of the RTI act, 2005, read with Sections 14,25 of the General Clauses Act, 1897 statutorily empowers the commission to recover those penalties which have been upheld by the higher judicial forum, though the procedure known to law.

 

Hence, the commission need not depend on DOPT in this regard.

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Prasad GLN

The meaning behind the reply is that when CIC has not formulated any procedure, DOPT as controlling authority atleast should advice or consult CIC to adopt a uniform and transparent procedure for recovery of such penalties. If Act empowers CIC, why CIC could not formulate a procedure for timely recovery is the question.

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jps50

A simple letter to Head of Public Authority of non-recovery/payment of penalty will be sufficient in 90% cases. Only 10% may require further judicial action for recovery. Penalty is not a big amount and PIO too will not risk disciplinary action for such an amount. In fact CIC/SICs are not serious and lack will to recover penalty. They want to create technical and procedure hurdles to puncture RTI. Guardians of RTI are themselves trying to scuttle RTI. If you have the will, you have the ways. However, we have to build up pressure on CIC/SICs for recovery.

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RAVEENA_O
The meaning behind the reply is that when CIC has not formulated any procedure, DOPT as controlling authority atleast should advice or consult CIC to adopt a uniform and transparent procedure for recovery of such penalties. If Act empowers CIC, why CIC could not formulate a procedure for timely recovery is the question.

 

The procedure needs to be laid down in the form of Rule for the implementation of the provisions of the Act. The power to frame such Rules lies on Appropriate Government or the Competent Authority. CIC is neither an Appropriate Government nor Competent Authority. It cannot therefore frame the Rules.

 

The Act only empowers CIC to impose penalty, which CIC is rightly imposing. However, modalities and method of recovery and remittance etc needs to be streamlined by framing Rules, so that the burden to comply with such Rules shift to the Head of Public Authorities or the Officer so designated under the Rules.

 

CIC has enough workload to deal with appeals and complaints and the public authorities are equally responsible for implementation of the provisions of the Act. Once CIC imposes a penalty, it becomes the moral duty of the public authority to recover and remit the same. Formulation of Rules for this purpose is therefore imperative to make the public authorities themselves responsible for recovery and remittance of such penalty amount as also to set an effective mechanism, wherein the appellant or complainant must have opportunity to see that the penalty is recovered by the pubic authority.

 

Keeping the burden on CIC would not solve the issue but only deteriorate the existing condition. Responsibility to implement the penalty must shift to public authority and the complaint / appellant must have an opportunity to watch the implementation, so that public authority and its officers shall not collude and evade recovery. Framing of such Rules shall give teeth to the judiciary to proceed against erring public authorities.

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G.R.Vidyaranya

Please note that WE are the guardians of RTI Act. We are the watchdogs who need to be vigilant and raise these issues at every forum possible to ensure proper implementation of the Act & Rules. Only active citizens with their collective effort can take the cases to their logical conclusions.

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karira

Let me give you my experience:

 

PA: Ministry of Consumer Affairs

IC: IC M L Sharma (now retired)

Relevant thread: http://www.rtiindia.org/forum/4013-pack-sizes-whom-ask-information.html

 

The total matter, upto CIC hearing took 4 years.

 

During the hearing (in person in Delhi) argued to no end with the Commissioner for imposing penalty for delay.

 

PIOs excuse: I was on leave for 10 days, I was busy with parliament session for 10 days.

 

Me: So, sir, please impose penalty for balance 10 days - ie Rs 2500/-

 

Then the bargaining started:

 

IC: I will not issue show cause notice because I have no plan to impose penalty.

Me: Sir, first issue show cause notice, then decide about penalty.

 

Bargained like I do while buying onions/potatoes from the neighborhood vegetable seller !

 

Finally, the IC agreed to issue Show Cause notice and later imposed Penalty of Rs. 1000.00 only

 

After 6 months I filed RTI to PA to get info regarding deduction of penalty of Rs 1000.00

 

No reply, no response to first appeal. Now in second appeal, in queue since 2013.

 

I am sure, when the turn comes, the file will be "missing" !

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jps50

Just for information of members:

 

CIC position:

 

Asper letter No. CIC/CPIO/2013/JS[PP]/24 dated 13-01-2014 in reply to my RTIdated 30-11-2013, I find that out of Rs.1.79 crores of penalties imposed till16-12-2013 only Rs.1.09 crores are recovered. Thus penalty amounting toRs.70.00 lakhs [39.10%] is un-recovered.

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