Personal Apperance in First Appeal compulsary? any court judgement?

[prasann j 0]

Hello,

A few of my First Appeals in a department have been disposed because I wasn't present during the appeal proceedings. The appealate authority said appellant not present and is not interested to persue the matter, so appeal is disposed in accordance to General Administration Department's circular.

On persuing the matter I found that the state General Administration Department, nodal department for RTI related matter has issued. Guideline type circular for In which it is stated that appellant should be compulsarily called for first appeal hearing and provided legal help if necessary.

I would be filing a second appeal with the State Information Commission but I don't think it would set aside the PIO's order easily given its past track record?

 

Beside section 19(5) what should I add to my grounds of appeal?

Is there any court judgement in the matter?

Requesting learned members help in the matter.

[Prasad GLN 1,760]

In view of these difficulties, we always advise for seeking excuse from personal appearance and filing of written arguments as information is urgent and important and second appeal decision takes a long time. Disposing of first appeal must be done by going through contents of Grounds of appeal and facts available on record and GAD circular is not in accordance with principles of natural justice.

Please upload the circular. At the same time write a separate complaint against the practice followed by the state to SIC and enclose such circular and Pray Chief Information Commissioner of that state to inform proper procedure to the concerned authorities as expeditiously as possible. Collect any CIC hearing notice, other states hearing notice and also enclose the same for ready information of SIC.

(Previously CIC has disposed such appeals in the same manner expecting an applicant from Kerala to come to New Delhi CIC for that information. Now in Hearing notice, they are clearly stating that it is at the option of applicant, and during his absence action will be taken based on facts of record. Even some states Hearing notice states the same thing)

[RAVEENA_O 529]

File Second Appeal before the SIC concerned. Notice of hearing is issued to ensure principles of natural justice. It is not mandatory to attend hearing before First Appellate Authority (FAA). If the appellant did not attend the hearing, the FAA is required to decide the matter based on material on record. The FAA erred in rejecting the appeal merely on the ground that the applicant was not present.

 

(A) The next stage as per the provisions of RTI Act is second appeal u/s 19(3) before the IC, within 90 days from the date of decision of FAA, on following grounds:

[1] I have submitted first appeal u/s 19(1) giving facts and grounds. Appellate Authority has called me for hearing on first appeal on .............. without forwarding me a copy of the say submitted by PIO. When a hearing is fixed suo moto at his discretion, it is mandatory to afford me opportunity to disprove the counter contention raised by the PIO, which is not possible unless the FAA give a copy of PIO's say to me.

 

[2] There is no mandatory provision under the RTI Act or State RTI Rules to call an appellant u/s 19(1) for hearing as a condition precedent for deciding appeal by appellate authority. Even then, FAA has malafidely and without endorsing copy of PIO's say called me for hearing only with a view to harass the appellant and to distort the process laid down under Section-19 of the Act.

 

[3] Since there is no mandatory provision under RTI Act to call the appellant for hearing, rejection of the appeal for the very reason that the appellant was not present for the hearing is illegal, malafide and contrary to the provisions of RTI Act. Decision of FAA dated ............. is therefore, illegal and malafide and not consistent with the provisions of RTI Act.

 

[4] The directions alleged to have been issued by the GAD is not a Rule framed by the appropriate authority as also not consistent with the provisions of the RTI Act and hence void ab initio and not binding on appellants. The Appeal should not have been rejected based on such illegal directions.

 

Prayer:

 

[1] direct the PIO to supply the information free of cost within 10 days from the date of decision of this appeal;

 

[2] hold that the directions contained in letter no. ............... dated .... issued by GAD is inconsistent with the provisions of RTI Act and give a direction to the State to withdraw the same.

 

[3] impose penalty of Rs.25,000/- to the PIO for malafide denial of information.

 

 

(B) Since the FAA malafidely rejected the first appeal, without considering the facts and grounds as well as the merit of the appeal, you may file a fresh RTI Application before the same PIO and seek the following information:

 

[1] certified copy of Rules framed by Appropriate Government under section-27 of RTI Act,2005, whereby an Appellant under section - 19(1) needs to be called for hearing or heard personally by Appellate Authority for deciding the Appeal under section 19(1) of RTI Act, 2005.

 

[2] certified copy of Rules framed by Competent Authority under section-28 of RTI Act,2005, whereby an Appellant under section - 19(1) needs to be called for hearing or heard personally by Appellate Authority for deciding the Appeal under section 19(1) of RTI Act, 2005.

 

[3] Certified copy of Rules framed under Section-27 and/or 28 of RTI Act, 2005, based on which Sh. ........................ (your name and address) had been called for hearing by Appellate Authority in Appeal dated ............... preferred by him against PIO's order no. ............... dt..............

 

[4] Certified copy of the say/remarks submitted or submissions made by PIO before First Appellate Authority in compliance of Section-19(5) of RTI Act, 2005, with respect to First Appeal dated ................arising out RTI Application dated ...................... preferred by Sh. ........... (your name and address)

 

[5] certified copy of the Note sheet indicating notings by various officials and decision of Appellate Authority on file, including reasons recorded for not considering & adjudicating the written appeal submitted by appellant including its facts and grounds in respect of First Appeal dated ................arising out RTI Application dated ...................... preferred by Sh. ........... (your name and address)

 

(Information gathered under this RTI application shall be useful to strengthen the grounds in Second Appeal and its hearing).

 

ALSO PLEASE REFER: IS IT MANDATORY TO APPEAR FOR HEARING BY FIRST APPELLATE AUTHORITY?

[prasann j 0]

Attached is such circular which was relied upon by PIO (point 9).

 

I don't think the circular has any legal binding standing but once FAA & PIO become adamant to follow that or rely upon it there is not much an applicant can do, unfortunately if the SIC or FAA don't want to listen to your argument you have no choice. They quote some old decision of SIC and dispose appeal.

I will fill second appeal which should probably come for hearing in 1&1/2 years.

circular 2006 1.pdf

circular 2013 2.pdf

[RAVEENA_O 529]

The stipulation in the circular is only to call all appellants for hearing. It is for the Appellant to attend or otherwise, since it is not a mandatory provision under the Act. The circular never stipulates that the FAA shall reject the Appeal if the appellant do not appear for hearing.

 

the situation is that the Appellant requested certain information from the PIO, who denied it or not responded to the request or information supplied is incomplete. The appellant file an appeal with the departmental appellate authority raising grounds with a prayer. The duty of the FAA is to ensure that his PIO has acted reasonably and within the framework of the RTI Act. FAA is required to pass reasoned order and give directions to the PIO to supply the information or reject the appeal with cogent reasons. The rights of the appellant is not annulled just because the appellant opted not to appear for the hearing.

 

Even otherwise, hearing is not an empty formality but it should be a meaningful exercise, for which it is necessary that the appellant must know the written submission or the buttressing points raised by the PIO against the grounds of appeal. FAA being an adjudicating authority, it is necessary for him to supply copy of PIO's say to Appellant along with notice, in order to understand the buttressing points, on which the Appellant can argue.

 

Also please refer:

CIC - IT IS NOT MANDATORY TO APPEAR FOR FAA HEARING - CIC_AD_A_2013_000875-SA_M_133244.pdf

[anilg. 0]

Please anyone help me I can't write my question in this fourem.what do I do?

[Prasad GLN 1,760]

The same way you have posted this query, use same procedure and see on TOP RIGHT PORTION and fill up the same (QUICK QUESTION)