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  1. #1
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    Col NR Kurup (Retd)
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    Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    Does a First Appeal to the AA under Section 19(1) Bar a Complaint to SIC under Section 18(1)(c) ?

    To me, it does'nt. When a PIO does not reply, he shall be deemed to have refused the request. As per the RTI Act nothing bars an appellant from making a complaint to the CIC/SIC. If one resort to this the Commission will unnecessarily be flooded especially when it takes many months or even year for the Commission to respond.

    But it is felt to be better to report the above inaction of the PIO to his superior viz., his Appellate Authority. The only way to do is a First Appeal under Section19(1).It is likely that the problem could easily be solved within a month. At least a reply from PIO might be forthcoming.

    In case no reply is forthcoming from the AA also there is no solution other than making a complaint to SIC. I do not advice preferring a second appeal when both the PIO and AA do not reply. In case they were forced to reply on orders of theCommission subsequently and the reply so furnished turn out to be an unsatisfactory one, there will be requirement of filing Second appeal. If one use up the Second Appeal provision for not getting the reply one will be left with no chance to make a second appeal.

    But certain SIC has considered that a First appeal under 19(1) bar a complaint. The exact wording used by the SIC is that " The appellant himself had availed of an opportunity u/s 19(1) of theRTI Act, preferring a first appeal before the AA against the PIO. Having availed of a legal remedy u/s 19(1) the scheme of the RTI Act does not pemit one to prefer a complaint u/s 18(1) before the SIC" .

    The CIC also appears agreeing with me. The CIC in his Order No.CIC/WB/A/2007/00362 dated 24-12-2007 has ordered that " Appellant has pleaded no ground for making a direct complaint to us u/s 18 - Remanded -Free to move afresh second appeal before us u/s 19(3)"

    The CIC in his orders on CIC/WB/A/2007/00442 dated 21-12-2007 also sates that "....because appallant has pleaded no ground for making a direct complaint to us u/s 18...."

    The CIC is seen not appreciating a direct Complaint under section 18 before making a first appeal under 19(1). This categorically establish the requirement of prefering a first appeal under 19(1) before making a complaint. The orders of the SIC given above is therefore felt absolutely unlawful. A First Appeal under Section 19(1) does not bar a Complaint under Section 18(1) before the Commission. Any comments on the contra ?


    › Find content similar to: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    Last edited by ganpat1956; 27-12-07 at 06:38 PM.

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    Re: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    Quote Originally Posted by colnrkurup View Post
    Does a First Appeal to the AA under Section 19(1) Bar a Complaint to SIC under Section 18(1)(c) ?


    ..The CIC is seen not appreciating a direct Complaint under section 18 before making a first appeal under 19(1). This categorically establish the requirement of prefering a first appeal under 19(1) before making a complaint. .
    In the above mentioned context I have to add some thing. In some cases the Head of the Department had furnished certain information , as the PIO concerned directed the application, the reason of which is at all known to me. In that case the Head of that Dept should be treated as SPIO , So the AA is not 'superior/ senior ' to the Head of that Dept. How it will be possible to submit 1st appeal to AA. It is not clear to me. As such , in this type of 'reply' provide I had submitted 'complaint' under 18 to the SIC straightway, without submission of 1st appeal to AA. Was the procedure followed not correctly?
    Last edited by abhijeet; 27-12-07 at 06:50 PM. Reason: correction

  3. #3
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    Re: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    One should be very clear in one's mind as to one's AIM. In using RTI Act, there should be no doubt that the aim is to obtain the information. RTI Act is not a solution to one's problem but a very powerful means to get the solution. After getting the information using RTI Act one has to resort to the prescribed methods and procedures in resolving the issue.

    When we ask the information to the PIO, he may provide the informtion or provide wrong information or deny the information or not at all respond to the request. The cource opened in each of these cituation is laid down in the Act. In case of the PIO does not responding to the request, one can make a complaint to the Commission under 18(1)(c). This is time consuming and involving long procedure necessitating even attendance during hearing when some ignorant Commission summon the complainant for hearing.

    In normal cource, when a public servant does not abide by the laws of the country, one can complain to his superior. In the case of activities involving RTI Act the superior is specifically laid down as the Appellate Authority. There is no law against any one resorting to this. I prefer this method to a complaint to the Commission, as this is easy, less expensive with availability of time frame. Here an appellant has two choices. He can either make a complaint to the Commission or prefer a first appeal under 19(1). As per my interpretation there is no provision in the RTI Act barring use of any of these two cources nor use of one cource forbiding use of other.

    In case of complaint under 18(1)(c) to the Commission the relief one seek is "to direct the PIO to provide the information or furnish the reply". The Commissin in such cases normally does not involve in anything other than directing the PIO to furnish the reply. When this relief can be obtained by approaching the AA why should one approach the Commission ? The CIC also in some of their judgements held the same view that the complainant did not justify his reason for not approaching the AA before preferring a complaint to them. Since the RTI Act has no provision barring a first appeal in making a complaint why can't we use this easy method of prefering a first appeal instead of directly making the complaint to the Commission ?
    I could not visualise any cituation where the Head of Department becoming the SPIO. Hypothetically speaking, in case repeat in case, a Head of Department is the PIO, the Government is its superior authority. As per the RTI Act the procedure followed by you is absolutely correct. But my contention is that it would be better and convenient in achieving the aim by preferring a First appeal before prefering a complaint to SIC. In this cituation the maximum the Commission can do and has been doing is remanding the case to the PIO or directing the PIO to reply your request. My plea is that, if this could be achieved easily within one month by prefering a first appeal, why get involve in a long and tedious process with SIC. In any case the reply so furnished by the PIO if turns not satisfactory one has to approach the SIC. My apprehension is that some Commission might object to it bringing in res judicata. Further, routing a case through the Commission is likely to involve a delay of at least one year. Is it worth it ? This is the issue.
    Last edited by colnrkurup; 28-12-07 at 10:22 AM.

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    I had a bitter experince received from tha PIO of Cooperation Dept. of West Bengal.
    Six applications submitted by different applicants during May- June ,2007, 1st appeal, 2nd appeal to SIC, (reminder also in some cases) , but PIO /AA did not furnish any reply whatsoever. Only SAPIO, wrt one application sent totally irrelevant 'reply(information!) ' ; that to of only one query out of six . So this is the way how these Secretaries of different designations are dealing with the RTI applications. RTI Act is not effective enough to solve these persons' "dedicated" misdeeds and or "sincere" efforts to help the corrupt !

    I had another experience of having no response from the SPIO, submitted 1st appeal to the AA of concerned .Then withput hearing , suddenly after 70 days of the appeal , SAPIO sent "information' wrt only one query , that too false as well as misleading. Now my question - is it possible for 1st appeal once again. or should I submit 2nd appeal or complaint as per Section 18 to the SIC. Normally the practice of this PIO not to send any information , at least before submission of 1st appeal. Even sometimes he does not bother at all to furnish any information( incomplete/ misleading/false) even after receiving request from the SIC for 'early reply'
    He has got another characteristic feature in attending RTI application. Mostly SAPIO is the person, who normally sends 'reply' mentioning ---" as directed "
    Is it OK to follow this procedure? SAPIO is supposed to do the other job. It is the PIO , who is supposed to furnish the information, isn't it ?
    Please clarify the proper steps to be taken etc.

  5. #5
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    Re: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    You are very correct that the responsibility to provide the information is on PIO and not APIO. You are not entitled to make one more 'First Appeal' on same issue. In the present case, you have to make the Second appeal. The behavior pattern of the PIOs are almost same everywhere. Presently we have not much choice other than following the book viz., Make a request, wait for 30 days and few days for the transit, make first appeal if required, wait for 45 days + transit time and make second appeal. In certain cases where no reply is received within the prescribed period I prefer complaint. Incidently the APIO is not expected to reply your First Appeal.
    Last edited by colnrkurup; 29-12-07 at 04:02 PM.

  6. #6
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    Re: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    abhijeet,

    Re the signature of APIO on your reply and the word "directed", please read the following threads:

    http://www.rtiindia.org/forum/138-cp...under-rti.html

    (The following thread contains a post by me wherein I asked for clarification form CIC on this same matter and they replied stating that PIO must sign the reply)

    http://www.rtiindia.org/forum/693-si...ust-reply.html

  7. #7

    Re: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    As per RTI Act 'Complaint' and 'Appeal' are two distinct courses of action. The Act does neither say explicitly nor implies that they are mutually exclusive. Under Sec 18 of the Act the CIC can only inquire into the complaint. But under Sec 19 of the Act the CIC can grant compensation and impose penalty also. Thus as already correctly opined by colnrkurup it is better to appeal rather than complain!!!
    Last edited by taurus; 30-12-07 at 08:19 PM.

  8. #8
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    Re: Let Us Know The Act - Does 19(1) Bar Complaint under 18(1)(c) ?


    I saw the following decision of the CIC:

    http://cic.gov.in/CIC-Orders/Decision_06112006_3.pdf

    Normally to avoid short-circuiting of the procedure for processing
    applications under the RTI such cases as seek remedy in complaint rather than
    appeal u/s 19 are advised to first exhaust the provisions of section 19 i.e. First
    Appeal. This also is intended to ease access to information as a First Appeal lies
    within the Public Authority providing the information, and therefore with direct
    access.

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