Does Making A First Appeal Bar Complaint ?

[colnrkurup]

When no reply is received from a PIO he is to be deemed refuced the information. One school of thought is to prefer a complaint to CIC/SIC u/s 18(1)(c). Such refusal often might not be intentional. May be due to ignorance or due to non-realisation of the gravity of RTI Act. A practical way is to report this to his superior officer viz., AA.If the appellant start prefering complaint to CIC/SIC whenever the PIOs deemed refuced, the Commission will be over-burdened. I personally feel that one should approach the Commission only when all the courses available under the Act is elaped. After all when a public servant ignore the provisions of the Act his superior authority need appraisal. The only legal way is to prefer first appeal. In majority of cases the AA is likely to direct the PIO to provide the reply. It might not be the information sought; but the appellant thereby led to second appeal if the information provided is false or misleading. But what is the solution if the AA also does not reply? One cannot prefer a second appeal u/s 19(3) as no decision what so ever has been received from PIO or AA. Section 19(3) is too specific that a second appeal shall lie only against the decision on first appeal. Hence the question arise as to what is the course of action when the PIO and AA deemed refusced the information. Is it a Complaint u/s 18(1)(c) or Second appeal u/s 19(3) ?

[vashisthvivek]

Respected Colonel Sir,
I agree with you that the information Commissions should not be overburdened and it will more in the fitness of things, if the first appeal is filed with the AA instead of making complaint under S.18.
As regards to the course of action to be followed if there is no response from the AA also, it is respectfully submitted here that in my view second appeal can be filed if the AA does not decide the appeal within the stipulated period i.e. 30/45 days. S.19(3) provides as under:-
"A second appeal against the decision under sub-section (1) shall lie within nintey dates from the date on which the decision should have been made or actually recieved, with the Central Information Commission or the State Information Commission."
The words "date on which the decision should have been made" make it clear that if the decision is not made by the AA within the stipulated period (30 or 45 days, as the case may be), the appellant can file second appeal.
In fact, I have filed 3-4 second appeals with the SIC of HP on not receiving the decision of the AA in time.

[colnrkurup]

I fully agree with your contention. My plea is that the option is on the appellant. He got a choice to make a complaint under Section 18(1)(c) or Second appeal under Section 19(3). But the Act does not debar an appellant from making a complaint just because he has made a first appeal.

[vashisthvivek]

Respected Sir,
I agree with you that the Act does not bar an appellant from making a complaint just because he has made a first appeal. But as per the principle of "res judicata" one can not file a complaint during the pendency of an appeal.

[karira]

colnrkurup & vashistvivek,

More than 2 years have passed since the RTI Act came into force.
The honeymoon period for everyone is surely over.

How come that even after 2 years the PIO should be ignorant or the PA should not have proper procedures in place ?

Does it take the Income Tax Officer 2 years to understand the finance bill after it is tabled in parliament ?
Does it take the Police Inspector 2 years to understand the hike in traffic penalties ?
Does it take the electricity meter reader 2 years to understand the hike in electricity charges ?

Then why does it take 2 years for the PIO to understand the RTI Act ?

Every PIO knows the latest details of the pay commission recommendations even before you can blink your eye. Every PIO knows the details of the promotion/transfers of people sitting in his vicinity before you can say "RTI Act 2005". Every PIO knows the ins and outs of politics that his happening in his office more than BJP/Congress/CPM put together.
Then why does he not know about the RTI Act even after 2 years ?

It is because he chooses to ignore it since it is not in his favour. I am tired of teaching PIO's their job and responsibilities under the Act. If he doesn't, put in another PIO in his place who is more efficient and does his job.

Friends it is time to stop being charitable and benevolent.

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Regarding Appeal/Complaint, it is correct to say that one cannot complain when a appeal is pending. Personally, I always prefer to go for First Appeal and have never had the need for a Second Appeal, if the PIO has not responded.

[abhijeet]

Dear Karira,
How nicely you have explained the point raised by them ! But I have to mention here that in certain cases the 1st AA is acting like a post office and is not at all interested to apply his mind. Once I produced documents in favour of my query during appeal hearing, but the AA did not even mention it in his order sent to me. AA simply quoted the PIO 's version --- No record is available. I specifically asked whether the record was destroyed or misplaced when I produced the proof of receiving the same by the Department concerned. But the AA remained silent. What should we do ? SIC is not that active to take proper action and only one Commissioner is there in WB SIC. So I am really frustrated with this type of PIOs who are only intersred to save the corrupt officers/persons by not providing correct information to us.--- Abhijeet

[colnrkurup]

You put it in the most appropriate words. Firstly there is nothing in the RTI Act which is hard to learn. There is absolutely no complications. I have been telling the PIOs that most of the offices hardly have any information falling under the exemptions. One should just give the information sought for so long as it is not very sensitive third party information falling under the given exemptions . All one has to do is to think as to what happens when one give the information. Nothing. The problem is that most of the PIOs want to know how to deny the information especially those information if given might expose corruption or illegal actions of PAs.
I dont think that when no reply is furnished to a first appeal, the clause of "appeal pending" will be applicable. When no repy is furnished within the prescribed period the first appeal is no more pending and the appellant is at liberty to file a complaint under Section 18(1)(c) though he can file a second appeal. But by availing the chance of second appeal when no reply is received to application and first appeal, one is likely to forgo his chance of second appeal as one cannot file two second appeals on same issue. Further one does not know as to what sort of reply the PIO will ultimately give. He has to reserve his right to make second appeal when the reply received if found false and misleading. Thus I am of the opinion that it is better to file complaint under Section 18(1)(c) if no reply is received and resort to second appeal only when the appellant is not satisfied with the contents of the reply when received. What I meant is that when no reply received the first appeal made on non-receipt of reply does not debar an appellant from making a complaint and resort to second appeal only when reply is received.