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nikunj.shah

Whether RTI act makes provision for party/person to be present at time of hearing of appeal in front of first appellate authority or not?

Question

nikunj.shah

Hi Friends,

 

I'm following up my RTI appeal with BSNL, Pune. I filed an appeal against information provided by CPIO and mentioned clearly in the form to First Appellate authority that I want my appeal to be heard in my presence. However they simply prepared a reply and when I asked about hearing, they turned me down on my request to be present during hearing and said I can ask for my presence during hearing of appeal in front of only CIC and not first appellate authority. Either they are not aware of rules or I misinterpreted the law/form. Kindly help me with my queries so as I can make them aware of the provisions in the rule for 1st appellate authority. This is my first post on the forum and I hope I've explained my query in easy and comprehensible manner. I'd be thankful for a reply from the experts. Kindly let me know if any more elaboration/explanation is required on the issue so as to answer my query. Thank you.

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MANOJ B. PATEL

It is better to remain present before first appealat authority during hearing of appeal to make your case strong but if you are unable remain present you must inform the first appealat authority to decide the appeal on merit and the reason for which you are unable to remain present.

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nikunj.shah

Hi Manoj,

 

First of all thanks for your prompt reply. I had clearly stated in my form that I want to be present while hearing of appeal by first appellate authority however the problem is that, they didn't intimate/inform me about hearing and all they said is your reply is ready and you can come and collect the same. When I told them that I want to be present while hearing, they say nothing such as "hearing" is there in the RTI act guidelines for first appellate authority and hence we can't do it. Now in order to arrange hearing of an appeal, I want to find out which rule/guideline/provision of RTI act states that I can ask the First appellate authority to arrange for a hearing, wherein I can be present and present myself. I hope you get the idea, what I want to ask. Kindly please help me, under which rule/guideline of RTI act, I can ask them to do so. Thank you.

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nikunj.shah

Thanks Ambrish.P for your reply. I went through the links you suggested. So far from the threads/discussion I've gone through, it is clear that if I request for my personal presence during hearing of appeal by first appellate authority, they have to conduct a hearing and intimate me in advance about the same (plz refer to second link) where you can see Mr.Karira discussing it. He was successful in passing common order, but it pertains to Andhra Pradesh govt and not CIC..

 

I'd further try to clarify my query, I want to be present during the hearing, I mentioned that in my appeal. Now the case is that, FAA didn't intimate me nor did it conduct any such hearing, as they claim that "hearings" are not carried out at FAA level but only at CIC level (for matters pertaining to Central govt, in my case about BSNL, it would be at Delhi). On the contrary, if they ask me to attend an appeal and if I'm unable to do so, I can notify them about my inability. So I want to attend a "hearing" by FAA and hence I want to know the rules/guidelines/orders passed by CIC which states that, upon request of appellant, a hearing is to be conducted.

 

As we can see on this link

http://www.rtiindia.org/forum/68941-whether-mandatory-under-rti-act-faa-give-decision-after-hearing-appellant-cpio.html

 

Mr.Parsar is saying,

 

Hearing in first appeal is not mandated in the Act. So FAA not bound to hear, however the FAA is not barred to hear. FAA can also hear and pass orders.

 

and also thr' link

http://www.rtiindia.org/forum/55506-faa-sic-should-conduct-hearing-after-issuing-due-notice-hearing.html.

I'm mentioning excerpt from the above link here,

 

"" FAA and SIC should conduct a hearing after issuing a due notice of hearing.

Some of our members have been confronted with situations where the FAA and even the SIC / CIC has passed orders without conducting a hearing, after passing the requisite notice of hearing.

 

Sometimes, this happened even if a specific prayer was made for a “personal hearing”.

 

It took me 2 years and over 182 + 96 pages (total 278 pages) of various representations, review petitions, written arguments , etc. to get this issues clarified with the APSIC.

 

 

I had filed a RTI application with the SPIO of APSIC and then duly followed the process of First and Second appeals under Sec 19(1) and 19(3).

 

Both the FAA (of APSIC itself) and the SIC passed their orders without serving

me a Notice of Hearing and without giving me an opportunity to be heard,

in spite of specific written prayers for such a hearing, in both the FA and SA.

 

Filed a Review petition and again had to pursue the matter vigorously

for a very long time.

 

The SIC has now ordered:

 

In light of the aforementioned discussion, it shall be the duty of every 1st Appellate Authority and 2nd Appellate Authority that they must invariably send notices to both parties and pass a just and proper order only after hearing their rival contentions.

 

The full order is attached to this post.""

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karira

Are you satisfied with the information you received and with the FAA sorder.

If yes, then just forget about the hearing part.

 

If FAA has passed an order, without hearing you, then the only alternative now is a second appeal.

Use the following arguments/citations in your second appeal (use only those applicable to your case) :

 

  1. There is no evidence on record to show that the First Appellate Authority conducted a hearing and as per Sec 19(5) of the RTI Act asked the PIO to justify the denial of information.

 

 

  1. The First Appellate Authority has done great prejudice to me by his failure to pass a speaking order with respect to my “prayers” No. 1 to 5

 

The question merely is “ has the FAA been fair in dealing with my first appeal?” If he has been casual, arbitrary, absent-minded, unreasonable or un-speaking then it should lead to the obvious conclusion that there has been no fair play.

 

“If no reasons are given in the appellate orders, then it is injustice to the natural justice because quasi judicial obligations are giving reasons for order, since justice is not expected to wear the inscrutable face of a sphinx” (Ibrahim Kunju v.State of Kerala AIR 1970 Ker 65).

 

 

 

 

  1. As per Sec 19(1) of the RTI Act, the First Appellate Authority is a officer who is higher in rank than the PIO in a Public Authority. It is clear that the FAA normally performs Administrative functions in the Public Authority but while hearing First Appeals under the RTI Act, he is expected to perform a quasi-judicial function.

From the order of the FAA, it is quite obvious that he has routinely and casually passed the mentioned order without

bearing in mind the fact that he is now wearing a different “hat”. It is not uncommon for quasi judicial authorities, whose

normal functions are administrative in nature for most of the time, to blur the distinction between the two functions that

they perform. So much so, that even the Apex Court was constrained to observe in Orient Paper Mill Ltd. v/s Union of

India, AIR 1969 SC 48:

 

“It is regrettable that when administrative officers are entrusted with quasi judicial functions, they are often unable to keep aside administrative considerations, while discharging quasi judicial functions, though the two functions are separate. While functioning as quasi judicial officers, they should not allow their judgements to be influenced by administrative considerations”

 

 

  1. The First Appellate Authority has passed an order without giving me an opportunity of being heard.

 

 

Under the RTI Act, the role of the First Appellate Authority (FAA) is to decide a dispute arising

between the RTI Applicant and the PIO. It is precisely because of the powers vested in such a

authority that the Apex Court, while discussing this issue in Province of Bombay Vs.

Kusaldas S.Advani and Ors (AIR 1950 SC 222) and held in paragraph 173:

 

“……if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim which is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie in the absence of anything in the statute to the

contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act.”

 

Therefore, there can be no doubt that the First Appellate Authority is a “quasi-judicial”

authority under the RTI Act 2005. He must therefore not only do justice but must also be

seen to do justice. The FAA must follow the principles of natural justice. The rules of natural

justice are rooted in all legal and quasi-judicial systems, are not any 'new theology', and are

manifested in the twin principles of nemo judes in sua cause and audi alteram partem – right to

be heard.

It is therefore essential that the FAA must provide an opportunity to the appellant to be heard, after issuing due notice and setting a date, even though the RTI Act does not specifically provide for it and especially so, when the appellant has specifically “prayed” for such a personal hearing.

 

 

In the case of -- 'Bibi Nazma Khatoon v. R.P. Sinha', 1954 Pat 43 (AIR

V 41) (F), it was laid down as follows:

 

"It is a fundamental principle of justice that the party against whom a judgment or

order is to operate should have an opportunity of being heard. The principle is

embodied in the maxim 'audi alteram partem'. That is the general rule, and a

breach of this rule affects the jurisdiction of the Court or Tribunal which passes

final order."

 

Further, a Constitutional Bench of the Hon’ble Apex Court in the decision, A.K.Kraipak vs.

Union of India, reported in AIR 1970 SC on page 156, held that:

 

 

"20...The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propriacausa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules

came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries..."

 

In the case of Canara Bank v. Debasis Doss in 2003 (4) SCC 557 = J.T. 2003 (3) SC 183 at 185 and 186, the Hon'ble Supreme Court has inter alia observed as follows:

 

"21. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and

administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is “nemo judex in causa sua” or “nemo debet esse judex in propria causa sua” as stated in Earl of Derby’s case that is, “no man shall be a judge in his own cause”. Coke used the form “aliquis non debet esse judex in propria causa, quia non potest esse judex et par” (Co. Litt. 1418), that is, “no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party”. The form “nemo potest esse simul actor et judex”, that is, “no one can be at once suitor and judge” is also at times used. The second rule is “audi alteram partem”, that is, “hear the other side”. At times and particularly in continental countries, the form “audietur et altera pars” is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely “qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit” that is, “he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right” [see Boswel’s case (Co Rep at p.52-a)] or in other words, as it is now expressed, “justice should not only be done but should manifestly be seen to be done”.

 

More recently, in the case of M/s Nagarjuna Construction Company Limited v. Govt. of Andhra Pradesh and Ors. While deciding Civil Appeal 1438 of 2004, the Hon’ble Supreme Court has observed on 20th October 2008:

 

“35. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard.

Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of

fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In

the celebrated case of Cooper v. Wandsworth Board of Works (1963 (143) ER 414),

the principle was thus stated:

 

"Even God did not pass a sentence upon Adam,

before he was called upon to make his defence.

"Adam" says God, "where art thou has thou not

eaten of the tree whereof I commanded thee that

though should not eat".

 

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

36. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

 

The First Appellate Authority has not given me any notice of “hearing”, has not informed me

the date of hearing and has not heard me before passing his order. He has therefore grossly

violated the principles of Natural Justice and done me grave injustice by passing his order

mentioned above. [sec 18(1)(f)]

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jps50

Otherwise also, hearing at first appeal has no practical use, since CPIO would have obtained unofficial concurrence of FAA for CPIO's reply before dispatching it. and hence in 95% cases, first appeal is just an eyewash and formality to be completed wherein FAA concurs with CPIO. It is waste of time, money and energy of appellant to attend hearing of first appeal. No bank including RBI or Insurance Companies are holding such hearings.

 

You may prefer second appeal by referring:

 

SECOND APPEAL / COMPT GUIDE & FORMAT [CENTRAL]:

http://www.rtiindia.org/forum/blogs/jps50/16-second-appeal-complaint-cic-guidelines.html

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karira

What was the date of the order passed by first appellate authority ?

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MANOJ B. PATEL

dear nikunj, there is no provisions in RTI act to proceed for hearing. have a nice day.

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balaraghavan

In the post #5 it is stated that the full Order is attached but was unable to find. I request the Hon'ble member to attach the full order.

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