P M
Ravindran
2/18, 'Aathira', Sivapuri, Kalpathy-678003
Tele: 0491-2576042; E-mail:
raviforjustice@gmail.com
File: Comp-prez-cic-300515 30 May 2015
Sri Pranab Kumar Mukherji
President of India
Rashtrapathi Bhavan, New Delhi-110001 - through e mail presidentofindia@rb.nic.in
COMPLAINT-TREASON BY PUBLIC SERVANTS: BASANT SETH,
INFORMATION COMMISSIONER
1. Please see the following two orders
of Basant Seth, Information Commissioner (IC), Central Information Commission,
New Delhi (copies attached for ready reference):
1.1. Order dated 8/5/15
in File No. CIC/BS/A/2014/001138/7578 on my 2nd appeal filed on 3/7/14 and
1.2. Order dated 15/5/15
in File No. CIC/BS/A/2014/001202/7631 on my 2nd appeal filed on 9/5/14
2. Both these orders pertain to BSNL,
one against the PIO and FAA, o/o the Executive Engineer, BSNL, Nashik,
Maharashtra (referred to as order 1
henceforth) and the other against the PIO and FAA, o/o the GM, BSNL, Palakkad,
Kerala (referred to as order 2 henceforth).
The information sought from these public authorities have been listed in the
order itself. However they are reproduced here for ease of understanding.
2.1. Info sought from o/o the Executive
Engineer, BSNL, Nashik, Maharashtra on 12/3/14,
leading to order 1:
1. Please provide the following information
and copies of the documents:
1.1.Information
published in compliance with Sec4(1)(b) of the RTI Act.
1.2. The
details of all works being carried out in your jurisdiction from 1/1/14 to
28/2/14. The details, in a table form, should include the name/description of
the project, the purpose of the project, the estimated cost, whether executed
directly or through contractors, in both the cases the name and designation of
the officer of the BSNL responsible for supervision, the name and address of
the contractor, date of commencement of work, expected date of completion,
(based on the estimated cost) the percentage of work completed as on 28/2/14,
the amounts for which bills have been presented/paid/pending. If a particular
project is being executed at more than one site then the details should be
provided project and sitewise.
1.3. The
details of documents to be submitted by the contractors claiming payment and
the details of the procedure followed till the payment is made. The details
should include the name and designation of all those who handle the claim and
the action taken by each of them including the time frame (prescribed and
actual) till the payment is made.
1.4. The name
and designation of the officer of BSNL who is responsible for ensuring that
labour laws are being complied with where ever labourers are employed directly
or through the contractors.,
Continued…
-2-
1.5. In the
cases where BSNL is directly executing projects provide the number of skilled
and unskilled employees, sitewise alongwith the name and designation of the
employees of the BSNL who have been supervising the work at the sites. Further,
the number of permanent and casual/temporary employees in each category should
also be provided. If an employee of the BSNL: is responsible for more than one
site the distance between the sites should also be provided in the remarks
column.
1.6. In the
cases where projects are executed through contractors all the details as in
para 1.5 above.
1.7. Copies of
documents that are accepted as proof of compliance with applicable labour laws.
2.2.
Info sought from o/o the GM, BSNL, Palakkad, Kerala on 1/1/14, leading to order 2:
1. Refer the following:
1.1. Report in the media regarding BSNL Palakkad
Telephone Adalat in the 4th week of Jan 2014.
1.2. My complaint Comp-bsnl- 3g datacard-131207
dated 07 Dec 2013 addressed to the GM, BSNL, Palakkad and handed over to the
EE, CSC, BSNL, HPO Complex, Palakkad-678001 but not acknowledged or receipted
1.3. Your office letter No
PRO/GMT/Pkd/GC/2013-14/11 dated 17/12/13.
2.
As per the report at para 1.1 above, no complaints
submitted at the last adalat will be entertained this time. It indicates that
there are complaints that cannot be resolved at these adalats. Given that only
complaints that could not be resolved throuh normal course will be entertained
during the adalats, please provide the following information:
2.1. What are the nature of these complaints
that have not been resolved during the earlier adalats. Please provide the
following information for the last three adalts- the nature/subject of the
complaint/ number of such complaints at each adalat, reason why it could not be
resolved
2.2. For the last three adalts, please provide
the following information- the date, total number of complaints received, the
number of complainants who had appeared for the adalat, the number of
complaints that were resolved, the nature of these complaints, the reasons why
they could not be resolved in the normal course and any subsequent action taken
to resolve such complaints in normal course.
2.3. Regarding my complaint at para 1.2 please
provide the information on action taken on my complaints referred to at para 1
and 3 therein. The action taken may be provided in chronological order till
date of providing the information and should include action taken by any other
authorities, if any, to whom the complaints have been referred.
3.
Needless to say, most of the information sought was not provided leading
to the 2nd appeals. But the decisions
are not merely idiotic but treacherous.
Continued…
-3-
4. In the context of the info sought, leading to
order 1, please note the following:
4.1. the info sought at para 1.1
pertains to compliance with Sec 4 of the RTI Act
4.2. the info sought at para 1.2
pertains to only 2 months from
1/1/2014 to 28/2/2014.
4.3. the info sought at para 1.3 and 1.4
pertains to info required to be disclosed suo moto under Sec 4(1)(b)(iii)
4.4. the info sought at para 1.5 and 1.6
pertains to info required to be disclosed suo moto under Sec 4(1)(b)(i) and
(ii)
4.5. the info sought at para 1.7
pertains to info required to be disclosed suo moto under Sec 4(1)(b)(v)
5. Against info sought at para 1.1 the IC has stated (see para 6 of order 1) 'As regards information
relating to Section 4(1)(b) the respondent has submitted that the same is in
public domain and is displayed on the department's website.' He has also quoted
a subversive order of the Commission in Appeal No. CIC/AT/A/2007/00112 as
".....it would mean that once
certain information is placed in public domain accessible to the citizens
either freely or on payment of a predetermined price, that information cannot
be said to be 'held' or 'under the control' of the public authority and thus
would cease to be an 'information' accessible under the RTI Act."
In
this context the following questions beg answers:
5.1. Has the PIO shown the available info on the website to the IC? If
not, how has the IC come to the conclusion that the info is available on their
website? I did look for it but could not find it. To the best of my knowledge and understanding
the o/o the Executive Engineer, BSNL, Nashik does not have a website and the
website of the parent organisation does not have the info pertaining to the o/o
the Executive Engineer, BSNL, Nashik.
5.2. As far as the law is concerned nowhere does it state that any
info available in public domain shall not be provided under the RTI Act.
Specifically Sec 7(1) states that 'on receipt of a request under section 6 (the
Central Public Information Officer) shall, as expeditiously as possible,
and in any case within thirty days of the receipt of the request, either provide
the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections
8 and 9'. And information published
on a website in not included in either Sec 8 or 9!
6. Against info sought at para 1.3 to 1.7, the IC has stated (see para 6 of order 1)
'From the CPlO's representative submissions it appears that all information has been provided other than that
sought under query 1.2 and that displayed on the website under Section 4(1)(b)
of the RTI Act.
In
this context the following question begs answer:
Continued…
-4-
I had submitted copies of all documents received by me
from the PIO/FAA along with the 2nd appeal. Did the IC see any of the information claimed to have been provided by
the PIO in them? Or, did the PIO produce additional documents claiming to
have been provided to me? Since the IC has also not provided them to me shouldn't this statement of the IC be
viewed as a blatant lie?
7. Against info sought at para 1.2 the IC has
stated (see para 5 of order 1) as follows:
We agree with the Respondents that collecting this
information would disproportionately
divert their resources from the day to day work. The Appellant has not established any
larger public interest, which would warrant a directive to the respondents
to collect the information, sought by him, even at the cost of diverting their
resources from their day to day work.
And
the corresponding order is
'If, however, the appellant so desires, the CPIO
should permit him to inspect the relevant records relating to his RTI
application dated 12/03/2014 and also allow him to take photocopies/extracts
there from, free of cost, upto 50
pages within 15 days from the date of receipt of this order.'
Now,
the following questions beg answer:
7.1 Which
part of the RTI Act differentiates between public interest and private interest
in deciding the quantum of info to be provided? To put matters in their
correct perspective some relevant extracts of the RTI Act are reproduced below.
7.1.1. The Preamble says it is 'An Act
to provide for setting out the practical regime of right to information for
citizens to secure access to information
under the control of public authorities, in order to promote transparency and accountability in the working of every
public authority'
7.1.2. It also says as its objective
'whereas democracy requires an informed citizenry and transparency of
information which are vital to its functioning and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed'.
7.1.3. The only places where the Act
mentions public interest are in Sec 8(1) (d), (e) and (j) which state
as follows:
8
(1) Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen,—
xxx
(d) information
including commercial confidence, trade secrets or intellectual property, the
disclosure of which would harm the competitive position of a third party,
unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
Continued…
-5-
(e) information
available to a person in his fiduciary relationship, unless the competent
authority is satisfied that the larger public
interest warrants the disclosure of such information;
xxx
(j) information
which relates to personal information the disclosure of which has no
relationship to any public activity or
interest, or which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the case may be, is
satisfied that the larger public
interest justifies the disclosure of such information:
Provided
that the information which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
So, where is the info sought at para 1.2 of the
application- The details of all works being carried out in your (EE, BSNL, Nashik) jurisdiction from 1/1/14 to 28/2/14-leading to order 1 covered by the
above sections? The answer is that it
is not covered by any of these sections!
7.2
Now when the PIO has claimed that the info sought at para 1.2 is
voluminous and the IC has accepted it at face value, isn’t it ridiculous to direct the PIO to ‘allow him (the appellant)
to take photocopies/extracts there from, free of cost, upto 50 pages’ only?
7.3 Then again, where is the legal or
moral authority for the IC to restrict the info to be provided to a certain
number of pages? Has the IC perused the available records and identified these
documents?
8. In the context of the info sought leading to
order 2, please note the following:
8.1. the info sought at para 2.1 and 2.2
pertains to clarification of an info
disseminated through the media
8.2. the info sought at para 2.3
pertains to action taken and status of two
complaints submitted by me for which there had been no response even though
one of them had been submitted by me as early as on 11/6/2013 (almost 6 months before filing the application seeking
info on 1/1/14)!
9.
Relevant extract of Order 2 is given
below:
…however,
eliciting answers to queries, redressal of grievance, reasons for non
compliance of rules/contesting the actions of the respondent public authority
are outside the purview of the Act.
Continued…
-6-
From the PIO's submissions it appears that
the information, as available on record, has
been provided. lf, however, the appellant
has any doubt in the matter the CPIO should permit him to inspect the relevant
records relating to his RTI application dated 01/01/2014 and also allow him to
take photocopies/extracts there from, free of cost, upto 1O pages within 15 days from the date of receipt of
this order.
10. Here again the following questions arise:
10.1. Where in the Act is seeking
information through querying prohibited? Isn’t
asking questions the most basic form of
seeking information?
10.2. Where in the application for
information have I sought redressal of grievance? Is seeking information on status of action taken on a complaint
redressal of grievance?
10.3. Where in the Act is seeking info on
reasons for failure to comply with orders prohibited? In fact the Act, right in
the preamble, states that its very purpose is ‘to promote transparency and
accountability in the working of every public authority' and ‘to hold
Governments and their instrumentalities accountable to the governed'.
10.4. What does the IC mean by stating ‘lf, however, the appellant has any doubt…’?
There is no doubt I had projected in my 2nd appeal!
11. Interestingly, the IC has not talked
about the public interest part. Here is para 9 (a) of the 2nd
appeal:
9. Ground for the prayer or
relief :
(a) The information sought is of public interest because the BSNL even when providing costly gadgets
like Datacards for their (3G) services do not ultimately provide the service,
that is broadband communication (in this
case). Also those claiming to be providing communication to the Nation and
‘connecting people’ cannot give absurd responses like misuse of fax facility provided in their Customer Service Centre!
It needs to be noted that info sought at para 2.3 of the application is about
the action taken on my complaints
whereas the response of the PIO at Point 1 is about having send my complaint to
another public authority and having got a report. But neither the action taken by the other public
authority has been communicated nor copies of the relevant report provided.
Similarly against Point 3 there is only a comment and not info about action
taken!
12. You are also request to note that
order 1, dated 8/5/15, is on a 2nd
appeal filed on 3/7/14 whereas order
2, dated 15/5/15, is on an appeal
filed on 9/5/14! How did the 2nd appeal filed
later get a senior number (1138 compared to 1202 for the one filed earlier)
and got decided earlier? Doesn’t it indicate the wayward manner of
processing the 2nd appeals by the information commission?
Continued…
-7-
13. That the
information commissioner has grossly failed to fulfill his assigned task should
be adequately clear from the above mentioned facts. But it is not an
isolated case. Your attention is invited to my very first complaint, dated 21/4/2007,
against the then CIC, seeking his removal under Section
14(3)(d) of the RTI Act! Copy of this
complaint (less appendices) is also attached for ready reference. More such
exposures of treason can be read at the following blogsites:
14. Not only their failure to impose
mandatory penalty has murdered the law for transparency, the loss to exchequer
can be considered to be of the magnitude of the Vadhragate or 2G and Coalgate
scams put together! There is also a
valid suspicion that the information
commissioners may actually be corrupt in that they could be taking bribes
from defaulting PIOs only to fail to
impose the mandatory penalty! This may need to be investigated by the CBI
under the supervison of the apex court itself!
15. It may be pertinent to place on record the
fact that the task of the information
commissioners is easier than that of a munsif. Disposing of complaints
should not take more than a minute. In the matter of appeals, it could be 10
minutes per appeal. The commissioners should be able to decide the basic
questions of law involved- whether the info sought is disclosable or not and if
disclosable the extent of default on a simple perusal of the appeal. There
after the only thing required for the information commissioner to do is to
provide an opportunity to being heard to the PIO seeking reasons for not
imposing the penalty. After providing this opportunity, which need not be through a personal hearing,
if the reasons given are not satisfactory or in precise terms, legally tenable
the IC is required to mandatorily impose the prescribed penalty. Various high courts across the country have
while dealing with cases involving the RTI Act, ruled that penalty has to be
imposed even for mere delays and that reasons like records are not
traceable/not available cannot be accepted as valid and the information
commissioners can order inquiry to trace such records or to find out the
reasons why those records are not available. Relevant extract s of certain
orders of high courts and information commissioners are appended to this
complaint.
Continued…
-8-
16. The
status and perks given to information commissioners under Secs 13(5) and 16(5) of the RTI Act has only reduced this imporant
office to a rehabilitation home for the most useless clerks who had served in
the government. Given the universally accepted norm of equal pay for equal
work, it is important to amend the above sections of the RTI Act to read as
‘ The
salaries and allowances payable to and other terms and conditions of service of
the CIC and ICs shall be the same as that of a munsif. The CIC shall be
paid an additional allowance equal to 10 pc of the basic pay‘.
17. While there is a need
to introduce transparency right from the appointment of information
commissioners, the government cannot absolve itself of its responsibility when
it comes to making these public servants
deliver what they are tasked, empowered, equipped and paid to deliver.
Specifically in the context of the RTI Act, Sec 26 and 27 needs to be implemented in letter and spirit by the
government and defaulters should be punished exemplarily.
Yours truly,
(P M Ravindran)
Copy to:
1.
Sri Hamid Ansari, Vice
President through e mail vpindia@sansad.nic.in
2.
Sri Narendra Modi,
Prime Minister through e mail pmindia@pmindia.nic.in, pmosb@pmo.nic.in
3.
Speaker, Lok Sabha
through e mail speakerloksabha@sansad.nic.in
4.
Sri H L Dattu, Chief
Justice of India through e mail supremecourt@nic.in
5.
Basant Seth,
Information Commissioner through e mail b.seth@nic.in
6.
Media and NGOs through
e mail
7.
Blog at http://raviforjustice.blogspot.in
EXTRACTS OF CERTAIN HIGH COURT/ INFORMATION COMMISSION
ORDERS
IN THE MATTER OF RTI ACT
Note: These are those orders that are in the letter and spirit
of the RTI Act. There are more that are subversive of the law which are being
quoted by PIOs and FAAs and are being accepted by the ICs to justify their illegal,
anti-transparancy and anti-accountabilty decisions. Some examples are there in
the copies of the orders attached with this complaint itself.
1. High Court of Delhi in W.P. (C) 3845/2007:
14. xxx… Information seekers are to be furnished what they
ask for, unless the Act prohibits disclosure; they are not to be driven away
through sheer inaction or filibustering tactics of the public authorities or
their officers. It is to ensure these ends that time limits have been
prescribed, in absolute terms, as well as penalty provisions. These are meant
to ensure a culture of information disclosure so necessary for a robust and
functioning democracy.
Continued…
-9-
15. In the above circumstances, Court is of the opinion
that the impugned order to the extent it discharges the sixth respondent of the
notice under Section 19 (8) and does not impose the penalty sought for has to
be declared illegal. In this case, the penalty amount (on account of the delay
between 28.12.2005 and the first week of May, 2006 when the information was
given) would work out to Rs.25,000/-. The
third respondent is hereby directed to deduct the same from the sixth
respondent's salary in five equal installments and deposit the amount, with the
Commission.
16. In the circumstances of the case, the third respondent shall bear the cost of the proceedings quantified
at Rs.50,000/- be paid to the petitioner within six weeks from today.
2. High Court of Punjab and Haryana in C.W.P. NO. 1924 of 2008:
A plain reading of sub-section (1) of Section 20 of the Act makes it
obvious that the Commission could impose
the penalty for the simple reasons of delay in furnishing the information
within the period specified by sub-section (1) of Section 7 of the Act.
3. Madras High Court in W.P.NO.20372 of 2009 and M.P.NO.1 of 2009:
The right to information having been guaranteed by the law of
Parliament, the administrative
difficulties in providing information cannot be raised. Such pleas will
defeat the very right of citizens to have access to information.
4. High Court of Punjab and Haryana in C.W.P. NO. 15850 of 2010:
The primary contentions raised in the affidavit are the
shortage of staff, joining of the petitioner after the notice had been issued,
the extension of time for registration of the plots by the Government which led
to the rush of registration of plots by the owners and essential duties of
Census as per the directions of the Election Commission. These are internal matters which have to be dealt with and taken care
of by the Administration and cannot be taken as a ground or a defence for not
supplying the information within the time stipulated under the 2005 Act itself.
The provisions as contained under the 2005 Act have to be given effect to
achieve the objective of this Act which are to bring transparency and
accountability of public officials and to establish the right of the citizen to
have the information and these excuses, if taken into consideration, the 2005
Act itself will be rendered ineffective and the purpose with which the Statute
has been brought into existence would be frustrated. Therefore, the reasons
assigned for not supplying the information at an early date to the complainant
cannot be accepted.
5.
High Court of Punjab and
Haryana (as reported in the media)
Chandigarh: Creating a precedent the Punjab and Haryana High Court has
ruled that if the public Information Officer (PlO) of a department has been
penalised by a State Information
Commission on account of withholding information the officer cannot
appeal against the order through the
state. The court has held that the PIO
will have to approach the court in personal capacity.
Continued…
-10-
6.
Delhi HC (as reported in the media):
The Delhi HC said the Chief Information Commission can direct a
government department to inquire into "missing" files "wherever
it is claimed...information sought is not traceable."
7.
CIC, New
Delhi in File No CIC/DS/A/2013/001788-SA:
13. Based on the above discussion, the Commission thus holds:
Unless proved that record was destroyed
as per the prescribed rules of destruction/ retention policy, it is deemed that
record continues to be held by public authority. Claim of file missing or
not traceable has no legality as it was not recognized as exception by RTI Act.
By practice ‘missing file’ cannot be read into as exception in addition to
exceptions prescribed by RTI Act. It amounts to breach of Public Records Act,
1993 and punishable with imprisonment up to a term of five years or with fine
or both. Public Authority has a duty to initiate action for this kind of loss
of public record, in the form of ‘not traceable’ or ‘missing’. The Public
Authority also has a duty to designate an officer as Records Officer and
protect the
records. A thorough search for the file, inquiry to find out
public servant responsible, disciplinary action and action under Public Records
Act, reconstruction of alternative file, relief to the person affected by the
loss of file are the basic actions the Public Authority is legitimately
expected to perform.
8.
CIC, New
Delhi in Appeal No.
CIC/SM/A/2011/000278/SG:
There are numerous
instances where RTI applications have been transferred by one public authority
to another and none of them appears to know where the information is. In this
scenario for public authorities to take a position that they will only transfer
to one public authority is unreasonable and the law certainly does not state
this. Public Authorities claim that it would be difficult to transfer RTI
applications to multiple authorities since it would mean putting a lot of
resource. …. If public authorities do
not meet commitments implied in the RTI Act, the citizen cannot be denied his
fundamental right.
The Commission rules that DOPT’s office memorandum no. 10/02/2008-IR
dated 12/06/2008 is not consistent with the law.
The PIO is
directed to transfer the RTI application to various public authorities before
25 June 2011, who must provide information for the last two years to the
Appellant as per the provisions of the RTI Act.
9.
SIC, Maharashtra in Appeal no. 489 + 331/Pune, Dashrath Ghenbhau Shevkari
versus First Appellate Authority and District Collector, Pune
"One month had been granted earlier for
conducting a diligent search of the lost file, as mentioned eariler in this
Order. That period is now being extended for another one month i.e. till 15.12.2007.
The relevant information should then be promptly provided to the appellant. In case the file is yet not found then an FIR should be lodged
against the concerned officer / staff member. This would be the responsibility of the Appellate
Authority and the Collector, Pune. Completion of this procedure should be
reported to the Commission by the Collector, Pune by 30.12.2007."
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