Is First Appeal Obligatory prior to Complaint under Section 18

[colnrkurup]

As per Section 19 of the Act a Second Appeal shall lie only on decision on First Appeal. But in the case of Complaints, it is incumbant on the CIC/SIC to receive and inquire into a complaint on conditions stipulated in sub-section (a) to (f). As per Section 18(f), the CIC/SIC has to receive complaints in respect of any other matter relating to requesting or obtaining access to records under this Act. I could not find out any provision which stipulate first appeal as a precondition or making first appeal indumbent before prefering Complaint before CIC/SICs. I suggest that this aspect may please be discussed.

[sngupta]

Yes Mr. colnkurup as there is a provision to here the pio before awarding any punishment. If CIC is only giving the instructions to PIO to supply the information the purpose of approaching CIC may not be achieved. Hence it is suggested that the option of first appeal must be taken before approaching to CIC. After first appeal there is chance to get good relief from CIC.

[jps50]

Legally not, but it is advisable to prefer first appeal before lodging complaint with SCIC/CIC. This will make our case strong.

[karira]

Originally Posted by colnrkurup

As per Section 19 of the Act a Second Appeal shall lie only on decision on First Appeal. But in the case of Complaints, it is incumbant on the CIC/SIC to receive and inquire into a complaint on conditions stipulated in sub-section (a) to (f). As per Section 18(f), the CIC/SIC has to receive complaints in respect of any other matter relating to requesting or obtaining access to records under this Act. I could not find out any provision which stipulate first appeal as a precondition or making first appeal indumbent before prefering Complaint before CIC/SICs. I suggest that this aspect may please be discussed.

I would like to add that the term "Second Appeal" itself implies that it is second....so a "First Appeal" should have been made somewhere.

In the case of "Complaint" , one can complain directly to CIC and SIC.

In the case of CIC, I have seen several cases where the complaint was accepted directly.

However, some of the SIC's have been asking the applicant to go in for first appeal before even making a complaint. If any members or guests have such a case, they should gently remind the SIC that in case of "complaint", a first appeal is not neccessary as per the Act.

[colnrkurup]

Exactly. Thank you. As per the RTI Act it is not incumbant on making a first appeal before making a complaint. At least one SIC is found ignorant of this and seen replying the appellant to prefer first appeal when complained. Of course it is always advisable to prefer first appeal when it is possible. By complaining to theCIC/SIC, the appellant does not forgo his option to make Second appeal later.

[vashisthvivek]

Yes. However, the outcomes of the complaint and second appeal are different. The complaint is made under S.18 of the Act, which results into an inquiry. A complaint is a form of legal process which consists of formal allegation or charge against a party. Making a complaint does nor confer a right on the complainant. It is discretionary on the part of Information Commission to initiate an inquiry. If the Commission is satisfied that there is no substance in the complaint, it may not take a cognizance on the complaint and may not initiate an inquiry.
However, an appeal is the right of entering a superior court / forum and invoking its aid and interposition to redress the error of the court / forum below. It is obligatory on the part of the Commission to deliver a decision on the appeal. Moreover, the appeal results into a formal order. Therefore, the provision of second appeal under S.19 is more forceful than the provision of complaint under S.18

[ganpat1956]

Originally Posted by vashisthvivek

Therefore, the provision of second appeal under S.19 is more forceful than the provision of complaint under S.18

The remedy provided u/s 18 is meant for different circumstances than the one u/s 19. An appeal is a process under which the earlier decision of a PIO is contested before his superior. Suppose no decision is forthcoming in respect of a petition, then how does one make an appeal? It has to be only by way of a complaint for non-receipt of a decision. It will be better to analyse and discuss these matters based on specific individual cases, rather than making a generalised sweeping approach over the superiority of one section of the Act over the other.

[vashisthvivek]

Originally Posted by ganpat1956

The remedy provided u/s 18 is meant for different circumstances than the one u/s 19. An appeal is a process under which the earlier decision of a PIO is contested before his superior. Suppose no decision is forthcoming in respect of a petition, then how does one make an appeal? It has to be only by way of a complaint for non-receipt of a decision. It will be better to analyse and discuss these matters based on specific individual cases, rather than making a generalised sweeping approach over the superiority of one section of the Act over the other.

With due respect, I would like to submit that if the first AA does not decide the appeal with in the specified time (30 days or 45 days, as the case may be), the appellant is free to file a second appeal in the matter. Non-deciding of first appeal within the specified time is like a deemed refusal to decide the apeal. This can be compared with the deemed refusal of the PIO to provide the information. Since, we have not to wait for the PIO to reject the application for information and the first appeal can be filed after the lapse of statutory period of 30 days, similarly, if the first AA does not decide the appeal within the specified time, the second appeal may be filed. Moreover, under S.18 there seems to be no ground to make a complaint if the first appeal has not been decided. I think, the only recourse left is to file the second appeal.
I would also like to submit here, with due respect, that I had made the comparison of both the sections, in the light of discussion. I mean, if no decision is forthcoming from the PIO on the application or correct information has not been provided, then the better course is to file the first appeal, instead of making complaint. Moreover, it has been made clear under s.18 itself as to in which cases, the complaint can be made.