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karira

CIC issues s'Show cause notice" to DoPT officers and threatens action under Sec 166, 187 188 of IPC

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karira

In a recent order (interim) the CIC has issued a "Show Cause Notice" for penalty to two DoPT officers and also threatened action under Sec 166, 187 and 188 of the IPC.

 

The matter involves the removal of the controversial statement in the FAQ available on DoPT website regarding file notings. Based on the said statement, DoPT denied file notings to an applicant. CIC ordered disclsoure. DoPT ignored it. The appellant complained about non compliance. DoPT stated that the matter was put up before the committee of secretaries and under their consideration. CIC has come down heavily on DoPT. The full order is attached to this post.

 

NOTE - Sections of IPC being invoked:

 

166. Public servant disobeying law, with intent to cause injury to any person

Whoever, being a public servant, knowingly disobeys any direction of the law as to

the way in which he is to conduct himself as such public servant, intending to cause,

or knowing it to be likely that he will, by such disobedience, cause injury to any

person, shall be punished with simple imprisonment for a term which may extend to

one year, or with fine, or with both.

 

Illustration

A, being an officer directed by law to take property in execution, in order to satisfy a

decree pronounced in Z's favour by a Court of Justice, knowingly disobeys that

direction of law, with the knowledge that he is likely thereby to cause injury to Z. A

has committed the offence defined in this section.

187. Omission to assist public servant when bound by law to give assistance

Whoever, being bound by law to render or furnish assistance to any public servant in

the execution of his public duty, intentionally omits to give such assistance, shall be

punished with simple imprisonment for a term which may extend to one month, or

with fine which may extend to two hundred rupees, or with both;

and if such assistance be demanded of him by a public servant legally competent to

make such demand for the purposes of executing any process lawfully issued by a

Court of Justice, or of preventing the commission of an offence, or of suppressing a

not, or affray, or of apprehending a person charged with or guilty of an offence, or of


having escaped from lawful custody, shall be punished with simple imprisonment for

a term which may extend to six months, or with fine which may extend to five

hundred rupees, or with both.

 

188. Disobedience to order duly promulgated by public servant

Whoever, knowing that, by an order promulgated by a public servant lawfully

empowered to promulgate such order, he is directed to abstain from a certain act, or

to take certain order with certain property in his possession or under his

management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or

injury, or risk of obstruction, annoyance or injury, to any person lawfully employed,

be punished with simple imprisonment for a term which may extend to one month or

with fine which may extend to two hundred rupees, or with both;

and if such disobedience causes or trends to cause danger to human life, health or

safety, or causes or tends to cause a not or affray, shall be punished with

imprisonment of either description for a term which may extend to six months, or

with fine which may extend to one thousand rupees, or with both.

 

Explanation- It is not necessary that the offender should intend to produce harm, or

contemplate his disobedience as likely to produce harm. It is sufficient that he knows

of the order which he disobeys, and that his disobedience produces, or is likely to

produce, harm.

 

Illustration

An order is promulgated by a public servant lawfully empowered to promulgate such

order, direction that a religious procession shall not pass down a certain street. A

knowingly disobeys the order, and thereby causes danger of not. A has committed

the offence defined in this section

WB-02062009-01.pdf

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rajub

CIC WB had initiated similar process against PIO and AA of President's Secretariat more than an year ago.

 

The issue with President's secretariat was also non compliance of CIC orders on file notings due to DoPT guidelines.

 

The CIC had contended that whatever be the guidelines of DoPT the Secretariat must obey the directions of CIC as judicial (or quasi judicial orders) must be obeyed despite contrary administrative orders.

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Shrawan

worth watching the outcome

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rajub

In President's Secretariat's case I mentioned in post # 2 above the secretariat obeyed the orders of CIC and matter was closed without imposition of penalty.

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sngupta

Why it is needed to go such a harder step if CIC want transparency a penalty may be imposed on every officer not providing information under RTI Act 2005. The CIC may use the powers under RTI Act 2005 but same is not being used by CIC and execusing every officer not providng information. In my one appeal the CPIO replied the file missed and information is not possible. Ok file missed then pay penalty of Rs. 25000/- but this was not done by CIC and decided that information not availble may not be provided. In this way every PIO will get execuse of non availability of information.

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chanda_s

clash of the titans.

 

hopefully the issue of file notings will be closed once for all.

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karira

Members will recall that these controversial file notings on the DoPT website are from the beginning itself.

 

Since then, 2 DoPT Secretaries have become IC's in the CIC. Even they have not been able to influence DoPT to remove that statement.

 

In fact, some of the CIC orders asking DoPT to remove that statement were when the the 2 IC's were them selves the secretaries in DoPT.

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Bimal Kumar Khemani

The CPIO Mr. Harish Chander, Under Secretary at DOPT has written me in his letter dated 12-1-2008 posted on 14-01-09 aagainst my RTI application BK/244/RTI/08 dated 04-12-08 regarding appointment of CIC's, has also written me

The disclosure of file notings under RTIAct is under consideration of Government

I made 1st appeal on 02-02-09 against this before the FAA Mrs. Anuradha S.Chagati, who has not responded, but through her juniors invited telephonically to meet her for presenting my views

My appeal before CIC has been filed on 07-03-09, still pending with CIC.

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Atul Patankar

As reported by Himanshi Dhawan, TNN at timesofindia.indiatimes.com on 12 Jun 2009

 

NEW DELHI: With ideological differences at the highest levels in government on the issue of allowing access to file notings, the department of personnel and training (DoPT) has sought advice from the law ministry on the issue.

 

File notings have been disclosed by information commissions but government departments have often refused information. The DoPT, on its part, has done nothing to dispel the confusion mentioning the term "file notings" in its website's frequently asked questions.

 

In fact, there has been a tussle between the Central Information Commission (CIC) and the ministry. Sources in the ministry, however, said allowing disclosure of file notings was not a question between warring individuals. "It is not that DoPT has dug in its heels and does not want to give out file notings. There is a serious ideological difference between the government. We are trying to resolve this in an amicable manner. We appreciate the CIC's attempt to ensure transparency and we are not against it. We want to make the law more user friendly but that can only happen once these differences are sorted out," a source said.

 

Since the Right to Information Act (RTI) was made operational in October 2005, the government has been reluctant to part with file notings. While in some cases people were able to access this part of the information -- which includes notes and opinions made by government officials on a particular issue -- there were many others who were denied the information. In fact, DoPT on its website clearly points out that "file notings" were exempted under the Act leaving public information officers confused on its implementation.

 

In July 2006, the Union Cabinet decided to amend the RTI Act so that only file notings related to social and developmental projects could be made accessible to the public. The government's step was based on the logic that issues related to the people would be made public but decisions regarding sensitive subjects could be hampered if information was made public.

 

The amendment was to be cleared by Parliament in its monsoon session but vociferous complaints by activists and public furore prevented the government from doing so.

 

On its part, the CIC has been issuing orders over a period of time asking DoPT to correct its website. It sent DoPT the first reference in February 2006 and recently sent a showcause notice on why ministry officials should not be imprisoned for repeatedly ignoring the CIC's directions.

 

Source: File notings under RTI: DoPT seeks law ministry's opinion - India - The Times of India

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Atul Patankar

As reported online by Amitav Ranjan at ndianexpress.com on Jun 24, 2009

 

New Delhi : Under pressure from the Central Information Commission (CIC), the Government on Tuesday decided to make available file notings of government decisions—except those taken by the 18 exempted organizations—under the Right to Information Act (RTI). A government official said the “clarification” had been approved by the Prime Minister following the CIC’s outburst on June 2.

The CIC had issued notice to two officers of the Department of Personnel & Training (DoPT), saying they would be prosecuted for not following its orders.

Chief Information Commissioner Wajahat Habibullah told the officials to appear on June 17 to explain why DoPT continued to claim on its website that file notings were not part of the information that could be disclosed even after the CIC ruling that file notings were not exempt from disclosure.

Habibullah had warned that they could be punished under Section 166 of the Indian Penal Code (“public servant disobeying law, with intent to cause injury to any person”) with imprisonment up to one year. They were also liable to the maximum penalty of Rs 25,000 prescribed under Section 19(7) of the RTI Act. However, he deferred the hearing to July 2.

While giving the definition of information under the RTI, the DoPT website said that the expression “does not include file notings” even though the Law Ministry and the Supreme Court have long accepted the CIC’s ruling that file notings were not exempt from disclosure.

 

 

Source: Under CIC threat, Govt clarifies: file notings available under RTI

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kadalirao

At last by use of force, DOPT vide OM No. No.1/20/2009-IR dated 23-06-2009 clarified that file noting can be disclosed except file noting containing information exempt from disclosure under section 8 of the Act. (OM in the ATTACHMENT)

 

http://persmin.gov.in/WriteData/CircularNotification/ScanDocument/RTI/1_20_2009_IR_1.pdf

Disclosure of 'file noting' under the RTI Act, 2005 1_20_2009_IR_1.pdf

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karira

As reported in zeenews.com on 01 July 2009:

CIC says no penalty on DoPT officers in `file notings` issue

 

CIC says no penalty on DoPT officers in "file notings"

 

New Delhi, June 30: The CIC on Tuesday decided not to impose any penalties on two officers of the department of personnel and training who were issued showcause notices for "knowingly violating and disobeying" orders of the Commission related to disclosure of "file notings" under the RTI Act.

 

The decision comes a week after DoPT agreed that file notings can be made public under the RTI Act.

 

The notices were issued to Dr S K Sarkar, Joint Secretary and Deputy Secretary Anuradha Chagti of DoPT for violating and disobeying Commission's order for removal of controversial entry on the department's website which said "file notings" were not to be disclosed under the RTI Act.

 

The Commission has asked both the officers to explain why they should not be prosecuted under sections 166 (public servant disobeying law with intent to cause injury to any person), 187 (omission to assist a public servant when bound by law to give assistance) and 188 (disobedience to order duly promulgated by a public servant) of the Indian Penal Code.

 

In the hearing today, both the officers submitted that decisions to modify the RTI portal could be taken by the Central government with the approval of the Prime Minister.

 

The officials who were represented by counsel Satyendra Kumar Dubey mentioned during the hearing that they had forwarded the matter to the Minister of State for Personnel who then directed the matter to be placed before the Committee of secretaries for detailed examination.

 

The Committee of Secretaries decided that secretary of the department would put up a draft for amending the information given on its website by introducing the exemption clauses available under the RTI Act

 

"The draft will be examined and vetted by the department of legal affairs and submitted for Cabinet Secretary's approval," the counsel informed the Commission.

 

He argued that observation of the Commission that both the officers and the department violated and disobeyed the orders passed by it was not "factually correct" and that the noticees were not competent to take decisions on the direction of the Chief Information Commissioner.

 

Accepting the arguments put forth by the counsel, Chief Information Commissioner Wajahat Habibullah said that there would be no penalty on these officers but since there were several issues that emerged during hearing which may have bearings on the implementation of RTI Act, the matter may be referred to the full bench.

 

The case relates to RTI application of activist Subhash Chandra Agrawal who sought criterion for declaring birthdays of departed leaders as gazetted holidays and if leaders like Subhash Chandra Bose and Jawaharlal Nehru did not fulfill the criteria.

 

He demanded the file notings in the matter which were refused by the DoPT, which said these were not covered under the Act.

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advocate rajesh

applicability of the ABOVE IPC section can be tried by filing a complaint in the court . Thanks to all the esteemed members .

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zaveri

There is CIC Shailesh Gandhi sir's order to PIO to lodge FIR with Police for missing file / documents from govt. office & give one copy to RTI-applicant, if you want this order copy, Pls, let me inform i will upload it.

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