Appellate Authority can be recommended for Disciplinary action if he acts like a normal "senior officer"

[karira 5,896]

In a extensively discussed and elaborated order, CIC (order is by IC A N Tiwari) has ruled that a Appellate Authority can be recommended for Disciplinary action under Sec 20(2) of the RTI Act if he acts more like a senior officer discharging his normal administrative duties.

 

The appellant asked for some information from the CPIO of the LIC Zonal Office in Chennai. The information pertained to a lift which was not functioning properly in LIC's building. The CPIO gave vague replies and claimed that records are missing. The FAA did not give any reasoned order and just stated that as soon as records are found, they will be sent to the applicant. Moreover, the First Appeal Order was signed by the CPIO.

 

The FAA is the Zonal Manager of LIC in Chennai.

 

Matter went to Second Appeal and CIC:

 

- Issued a show cause notice to the CPIO for penalty

- Issued a show cause notice to FAA for disciplinary action

- Asked the Chairman of LIC to investigate the matter

- Asked Chairman of LIC to show cause as to why applicant should not be compensated

 

In the second hearing at the CIC (when the notices were "returnable"), the CPIO/FAA/LIC Chairman/PA were represented by Senior Supreme Court Advocate P.N. Lekhi and Advocate Kamal Mehta.

 

It is a 28 page order and members should read it because it not only raises several issues about the role of the Appellate Authority (as discussed many times in this forum) but also draws on many other High Court and Supreme Court orders.

 

The CIC concluded that:

 

 

1. First Appellate Authority only performs a "quasi-judicial function".

He cannot be equated to a court of law. Therefore he can be made a party

to the CIC's proceedings.

2. The CIC has a right to impleade the FAA as a party to the hearing

and also direct him to appear before it.

3. AA must sign the First appeal order himself and it cannot be signed by a CPIO.

If it is so done, it can be concluded that the AA is delegating his duty to a subordinate, who is a party to the proceeding.

4. The FAA must act as a Appellate Authority and not as a senior officer of

the Public Authority, discharging his normal administrative duties. If he does so, he is equally liable to Penalty under Sec 20(1) and Disciplinary Action under Sec 20(2), because he is acting like any other officer of the PA.

5. The head of the Public Authority (LIC Chairman) has been recommended to take disciplinary action against the FAA.

6. Compensation of Rs. 10,000 awarded to the applicant.

7. CIC asks the head of the Public Authority and CAG to to examine and study if Officers, who are found negligent in the matter of disclosure of information

under the RTI Act 2005 or preventing its disclosure, should be allowed

to defend themselves before the commission at the cost of the Public Authority - presumably, this means cost of expensive lawyers, advocates, legal advisers and other expenses like TA/DA which are all borne by the PA.

 

The full order is attached to this post.

AT-24102008-09.pdf

[ganpat1956 673]

Thanks Karira, for highlighting this CIC decision. When the last point mentioned in your post gets determined with a finality, our Colonel Saheb and Advocate Rajesh will feel justified.

[advocate rajesh 110]

Mr. Karira Jiiiiiiiiiiiiiiiiiii, You are always ahead. Hats off to you. Because of your hard work we are the boss of our city as far as RTI is concerned . Thanks a lot for the latest happening.

[rajub 229]

Karira!

 

This is a post of the life of rtiindia.org! (just like shot of the day, match or series)

 

My RTI life is not more than 3-4 months but what I have noticed (through personal experience and through perusal of various CIC/SIC decisions) is that,

 

1] The PIOs/AAs are "fearless" as far as RTI Act related responsbilities are concerned. I have many many first hand experiences to support my observations.

 

2] The ICs are inordinately lenient towards errants making PIOs/AAs fearless.

 

Your this post has freed me from the frustration that has engulfed me. I was feeling like not to file any more 2nd appeal as PIOs/AAs have so blatantly flouted the Act that I wondered whether they had received immunity from the commission.

 

Thanks on behalf of all of us!

[Dr.R.K.D.Goel 4]

07.11.2008

This is an excelent Order of the CIC which is eye opener for all the PA / FAA / PIO those are despite three years of RTI Act 05 not taking this Act seriously. How can in 2nd appeal the Suprme Court Advovates appear? when the Act provide that a respondent should appear prsonally befor the Hon'ble Chief Inforamtion Commissioner OR may depute some other person on his behalf. Representing the case by so costly Advocates should not be permited by the CIC.

 

I am also getting this type problems from the PA of Vadodara Municipal Corporation Vadodara. I will take my matters with the GSCIC on these lines

 

We are thankful to the Forum to bring all such important orders in th knowledg of the members.

Dr.R.K.D.Goel Vadodara.

[The Great 7]

Thank you Kariraji, for this very useful Post. Please read my thread " Can PIO Represent First Appellate Authority"

I have still time to make 2nd Appeal and will go on for it.

[nk agarwal 34]

Thnks Mr. Karira for posting the highlights along with the order.

Perhaps the same logic would apply in case CPIO acts as a Sr. officer of the applicant.

Statistically most of the applicants are either serving or retired Govt. servants and they seek info under RTI Act-2005 to address their long pending grievances or injustice (large number of Govt. servants indicate the situation prevailing in the Govt. deptt. today). If CPIO and /or Departmental AA acts like a superior officer then this issue needs to be tackled by CIC - IC A.N. Tiwari's decision is a milestone along the long pathway of RTI Act-2005.

[vijendra singh 30]

The IC Mr Tiwari deserves honour this time. It showed that CIC is trying to improve. All the ICs in India, all citizens , all activists must study it deeply. It will have far reaching effects . CIC might also request DoPT to circulate the decision among all the govt deptts / ministries necessarily. Once again I will appreciate Tiwari ji for his good output at least in some cases.

[MOHANDAS 14]

This is a land mark judgment by Hon'ble A.N Tiwari, I.C. Let the judgment be an eye opener one for the Frist A.A and CPIOs who are/were taking the RTI matters in a casual way. By imposing suitable penalties in erring cases, the spirit of RTI Act 2005 and its provisions can be made more effective and general public shall use the RTI Act 2005 as a powerful tool to derive information from the CPIOs/P.As in the larger public interest.

 

There are a few CPIOs/FAAs, who are/were in the habit of furnishing evasive and incorrect information for name sake specially in different PSUs and the FAAs act hand in glouse with the CPIOs and did not deliberate the First Appeal in its right perspective. Let those PIOs/FAA read this landmark judgment and try to inculcate a sense of responsibility in discharging the duties of RTI ACt 2005 and its different provisions for the real cause of RTI Act.

 

Mohandas.

[karira 5,896]

The PIO and the FAA of LIC, Chennai approached the Delhi High Court to set aside the above mentioned order of CIC.

 

The HC has ruled that although the imposition of penalty of Rs. 25,000 on the PIO was correct (since there was a delay in the provision of information), the comments of the IC against the FAA as well as the recommendation of Disciplinary Action under Sec 20(2) against the FAA were incorrect.

 

Although the facts and circumstances of this case highlighted the adverse conduct and omission of the officer, the RTI Act did not provide for any of the actions recommended by the IC in his order. Tribunals like the CIC were bound to function within the ambit of the RTI Act while exercising their powers.

 

The HC set aside the comments made by the IC in paras 31 to 48 of his order (attached to the first post in this thread).

 

Some of the other salient issues mentioned by the Delhi HC:

1. To pointed queries in a RTI application, specific information has to be given. If information is not available, that has also to be mentioned by the PIO.

2. CIC has the powers to convert a Complaint proceedings under Sec 18 to a Appeal proceedings under Sec 19 and combine the powers vested in it under Sec 18 and Sec 19, as it did in this case.

3. In this case, the applicant had a choice to either approach the CIC with a Complaint under Sec 18 or a Second Appeal under Sec 19, specially so since the FAA had not passed any orders based on the first appeal filed before him.

 

The order of the Delhi HC is attached to this post.

LIC Chennai Penalty was correct but the other comments were not.pdf

[karira 5,896]

I sincerely hope that this puts an end to the habit of some IC's to pontificate in their orders/decisions - either against the PIO/FAA or even the appellant/complainant - and stick to the facts on hand as well as act within the four corners of the RTI Act.

[colnrkurup 390]

Unfortunately, this is one of the thread I had missed. Had I seen this early thread, I would have put forth views akin to that of the High Court in reply to the first post itself..

 

There are far too many similar orders of CIC and certain SICs like my boosom friend remain on record unchallenged due to hesitance (due various reasons like the fartherness of High Court etc.,) of the appellant to approach the High Courts. I have more than 10 such stupid orders. That does not mean that those orders are correct, just or reasonable. Thank God the CIC and SICs are NOT court of records.

 

Let us examine the above issue of bringing in the FAAs under the direct or indirect perview of Section 20(2). First, let us be clear that under the RTI Act the CIC or SICs have absolutely no powers of any sort to award ANY punishment or penalty (like my friend Mr.Shailesh Gandhi's Warning to PIOs) to anyone other than the CPIO or SPIO. Any dispute ? If anyone has an iota of doubt on this aspect, let us clear this first. Section 20 is very specific, Following are their statutory powers:

 

1.Award penalty under Section 20(1) to CPIO/SPIO

2.Recommend for disciplinary action against the CPIO or SPIO under the service rules applicable to him.

3. I prefer to include power of CIC/SIC to orders under Section 19(8)(b) also amount to a punishment (In fact a willing PA can doom an inconvenient PIO and FAA under this provision. I consider this is the most detrimental part of the Act provided the PA is cityzen-friendly)

 

Yes. A fertile mind of a PA can ffind ways and means to punish an FAA on the line of thought of Mr.Tiwari. Let us examine as to what happen when the CIC/SIC recommend for discipliniary action against the PIO. The PA normally order an enquiry or serve show cause notice. In case the FAA is at fault, the PIO in his effort protect himself will defenitely involve or blame the FAA. Similarly the Enquiry Officer also might involve or blame the FAA. Mind you at that stage they are not dealt as PIO or FAA; but government servants holding certain appointments. The enquiry or allegation of PIO if blame the FAA, naturally the discipliniary Authority of these officers have no way other than punishing the officer who has committed dereliction of duties or something to that effect while excercising the duties and powers of AA. He is thus get punished

 

Similar drill takes place when the CIC or SIC require the PA to cmpensatew the complainant for any loss or other detriment suffered under Section 19(8)(b)

[taurus 285]

Some times the ICs are carried away by the case and make some sweeping remarks, forgetting to grasp their far reaching implications. The High Court judgment has put the thing in the proper perspective.

[Guest pcbali]

Thanks, Mr. Karira, for appending the High Court order in this case further. This gives the latest development keep one ready while proceedings in the IC to expect what the respondent will bring forth. This has my special thanks for you to give the order setting aside the order of CIS partially. Three cheers for your devotions to RTI activities knowledge spreading in the activists lobby.

 

Thanks to Col. Karoop too for the commentary

 

I am using this information shortly in one appeal before SIC Punjab

[andithevar 3]

it is a good lesson to lic of india to obey orders of govt of india.

[andithevar 3]

lic people think they all are above law and they think lis is world for them nothing more in the world for them.it is right time to wake up from sleep at least now onwards

[harpreetdhanvi 0]

wow this order clears many many doubts. thanks to you sir

[syedshah1983 37]

Thanks for the post.. It shows the capability of CIC, their presence of mind and understanding of the act itself..

 

If possible, I request all the retired ICs to write a book on RTI Act and how it can be used to ensure transparency and accountability.

[Dr.S.ANANDKUMAR 19]

Thank you very much not only for such revelations but also the analysis. More so, your insights are valuable. Please, continue this noble job....