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  1. #9
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    jetley
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    Please also see point 39 (ii) of the attached DoPT OM, indicating FAA can himself give information

    Guidelines for FAA 1_3_2008_IR(Eng).pdf


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  2. #10
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    The following points are to be noted:
    1. The CPIO, and the appellate authority belong to the same public authority.
    2. Even though the CPIO's decision is defective, the appellate authority has inherent powers under RTI act, 2005, to decide INDEPENDENTLY and moreover, he also can provide the information himself.
    3. Hence, the decision of the appellate authority in an RTI application has a crucial bearing on the deficiency / otherwise of the service of the public authority.
    4. Hence, both the CPIO, appellate authority shares responsibility for the quality of service, if interpreted in terms of the CPA, 1986.
    I hope, this clarifies.
    vsprajan.
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  3. #11
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    C J Karira
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    The FAA is a quasi judicial authority.

    That DoPT circular is not 100% correct. It has those contents in order to facilitate the quick disclosure of information at the first appeal stage. Information can only be supplied by the PIO and under his own signature.

    If FAA supplied you information, then how will you invoke Sec 19(5) ? OR prove the later part of Sec 20(1) and 20(2) to demand penalty on the PIO ?

    Carrying the argument a bit further, you pay some fees to the High Court or Supreme Court for filing your case, etc. Can you also haul them up for deficiency of service ?

    The prescribed fees you pay for first appeals in some States is for the quasi judicial functions performed by the FAA under Sec 19(1) and not for providing you any service !
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  4. #12
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    NK Agarwal
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005



    I think DOPT obliges different Departments/Ministry by issuing multiple and/or conflicting OMs whenever a Department approaches it for relief for their misfeasance and malfeasance and to protect them from any judicial scrutiny. In umpteen nos. of cases it has been observed that whenever any issue of misdeeds comes under judicial review the Departments takes a stand under these multiple and conflicting OMs of DOPT. Otherwise how come DOPT has issued such a OM that protects a CPIO from penalty and FAA from imposition of departmental proceedings for not performing the Quasi-judicial duties and go scot free. It would be interesting to obtain certified copies of the whole decision making process inclusive of file notings and attendant documents of such OMs from DOPT. thnks.
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  5. #13
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    Dr.V.S.Prasanna Rajan
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    The following important points are to be noted:

    1. THE PENALTY IS LEVIED BASICALLY FOR DEFICIENCY IN ADMINISTRATIVE SERVICE AS MANDATED BY THE STATUTES.

    2. The PIO performs administrative task in providing / denying information under applicable sections of rti act,BY WRITTEN COMMUNICATION.

    2. Hence, inaction / lack of communication by PIO to the applicant in spite of the mandate of providing time bound reply by the pio by the rti act, makes him liable for penalty.

    3. However, the FAA performs a quasi judicial function. In case of inaction by the pio, he can direct the pio to either provide the information, or if exempted info is requested, he can direct the pio to justify the same under relevant reasons.


    4. THE DECISION BY A QUASI JUDICIAL FUNCTIONARY CANNOT BE CONSTRUED AS DEFICIENCY IN SERVICE, AS VIEWED BY THE SUPREME COURT IN S.P. Goel v. Collector of Stamps, Delhi .

    5. The Supreme Court, while holding that the authorities under the Registration Act and Stamp Act perform statutory duties which are at least quasi judicial and their acts cannot amount to under the Consumer Protection Act, held in paragraphs 31 to 33 as follows:

    31. Running through the twin Acts, namely, the Registration Act and the Stamp Act, we could not, at any stage, reconcile ourselves to the idea spoused by the appellant's counsel, that there is an element of commercialism involved in the whole process of registration of instruments or payment of Stamp Duty and that the executant of an instrument at the time of its presentation for registration becomes a "consumer" entitled to "service" within the ambit of Consumer Protection Act. The reasons are many.

    32. The Registration Act as also the Stamp Act are meant primarily to augment the State revenue by prescribing the stamp duty on various categories of instruments or documents and the procedure for collection of stamp duty through distress or other means including criminal prosecution as non-payment of stamp duty has been constituted as an offence. Payment of registration fee or registration charges including charges for issuing certified copies of the registered documents or fee for the inspection of various registers or documents
    kept in the Registrars or Sub-Registrars office etc. constitute another component of State revenue.

    33. In this situation, therefore, the person who presents a document for registration and pays the stamp duty on it or the registration fee does not become a consumer nor do the officers appointed to implement the provisions of the two Acts render any service within the meaning of Consumer Protection Act. They only perform their statutory duties (some of which, as earlier indicated, are judicial or at least quasi-judicial in nature) to raise and collect the State revenue which is a part of the sovereign power of the State.

    6. If the applicant is indeed aggrieved by the decision of the FAA, provision for further appeal to the Commission already exists in the act.

    7. Hence collectively based on all the facts stated above, it can be reasonably construed that there is no provision for penalty for FAA for his faulty decision. HOWEVER, THE FAA IS LIABLE UNDER DEPARTMENTAL RULES FOR HIS INACTION IN HIS REPLY TO THE APPLICATION WITHIN THE TIME MANDATED BY THE RTI ACT.

    8. EVEN UNDER THE CPA, THE PENALTY CAN ONLY BE IMPOSED ON THE PIO, AND EVEN IF PENALTY IS IMPOSED ON THE PUBLIC AUTHORITY, IT CAN AT MOST BE RECOVERED ONLY FROM THE PIO AND NOT FROM THE FAA SOLELY BASED ON THE DECISIONS BY THE FAA.


    I hope this clarifies.

    vsprajan
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  6. #14
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    J.P. SHAH
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    FAA can be punished if IC recommends or if Head of public authority initiates departmental action for not complying with provisions of law [in this case RTI Act] passed by parliament which every public servant is bound to comply.

    In case of consumer complaint for RTI, the penalty for deficiency in service will be on public authority and not personally on PIO or FAA etc. Public authority may take departmental action against these officers for deficiency in service and impose penalty under service rules. Under Consumer Protection Act, the service providing entity is held liable and not its officers or employees.

    Following decisions of CIC will also be relevant in the matter of FAA:


    No. CIC/SG/A/2010/001352/8407 dated 05-07-2010
    No.CIC/SG/A/2010/000085/6895Adjunct dated 05-07-2010
    No. CIC/AT/A/2008/00290 dated 17-07-2008
    No.CIC/AD/A/2010/000952 dated August 18, 2010
    No. CIC/AT/A/2010/000451 dated, the 18-11- 2010 [SBI]
    No. CIC/DS/A/2011/000220 dated 12-05-2011

    AND office memorandum No. 10/23/2007-IR dated 09-07-2007 of DoPT, Govt of India, New Delhi.
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    It takes each of us to make difference for all of us.

  7. #15
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    NK Agarwal
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    If FAA fails to perform the public duty as bestowed on him, should the appellant (1st Appeal) file an application to the PA for Departmental Proceedings under conduct rules against the FAA.
    As all public servants have to abide the provisions of RTI Act-2005 and failure of FAA to discharge his quasi judicial duties (may) invite conduct rules suo motu by the PAs. Since the Pas also fail to perform this onerous public duty, should the appellants need to remind the PAs to play his part of the Responsibilities before filing a 2nd Appeal to CIC ( keeping in view the long pendency in CIC) – my questions are (i) should this course be followed by a harassed applicant/appellant ? (ii) what if the FAA after a promotion becomes the PA of the concerned department, how he would treat the application of initiating Departmental Proceedings against himself?
    I think RTI Act-2005 has become a cat and mouse game at least where the CPIOs, FAAs and the PAs connive to deny information to the applicants/appellants knowing fully the current long pendency in CIC. thnks
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  8. #16
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    Default Re: Penalty provision for First Appellate Authority in RTI Act,2005


    Dear all,
    Thanks for the response to this post. I would also like to raise anther issue of delay tactics adopted by an FAA(First Appellate Authority) in giving his decision on the appeal while taking the side of CPIO in denying information. There is absolutely no need to allow a long period of 30 days to the FAA to give his 'reasoned reply' which is in fact not the case, as in most of the cases the FAA does not respond to the grounds submitted by the applicant refuting the grounds given by the CPIO in denying complete information.
    If the FAA is not in the channel of hierarchy with regard to CPIO, then there is some reason to permit 30 days to FAA to give his decision on an appeal. But when he is the immediate superior officer of the CPIO and he is likely to side with CPIO in denying information, the period of giving decision should be reduced to 7 days, so that the spirit and objective of RTI Act is better served.
    To conclude (1) there is an urgent need of amending the RTI Act to incorporate specific penalty provision for FAA, if the appeal for giving information is upheld by CIC and (2) to reduce the period of giving decision by an FAA on an appeal from 30 days to 7 days, if he is to endorse the decision of the CPIO in denying information.
    I further invite your esteemed views on the issue.
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