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Thread: CIC seeks comment in 15 days

  1. #1
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    CIC seeks comment in 15 days


    As reported by Aditi Tandon in The Tribune on tribuneindia.com on 4 February 2008:
    The Tribune, Chandigarh, India - Chandigarh Stories

    CIC seeks comment in 15 days

    The Central Information Commission (CIC) has sought comments from the office of the UT Administrator on the matter pertaining to absence of central public information officer (CPIO) in the said office.

    The order was issued on a complaint of local resident Hemant Goswami who stated that the Administrator’s office, despite being a public authority, had no CPIO. Nor had it made proactive disclosures as prescribed under Section 4(1)(b) of the RTI Act.The matter was earlier highlighted by the Tribune.

    The complaint by Goswami states that there is no provision for acceptance of RTI application in the UT Administrator’s office. “We desired to see details of information as prescribed under Section 4(1)(b) from the office of UT Administrator but the same was not available anywhere. There was no disclosure about the Administrators office under Section 4(1)(b) even on the website of the Chandigarh Administration,” it adds.

    The complaint assumes significance as it makes a vital point pertaining to information on “life and liberty”. The RTI Act under Section 7(1) stipulates that any information pertaining to life and liberty and guaranteed by Article 21 of the Constitution should be supplied within 48 hours.

    The complainant had intended to seek from the UT Administrator’s office information regarding the announcement he made on remission of sentences of prisoners undergoing imprisonment in the jails of Chandigarh. Since the issue affects “life and liberty” of those whose sentence has been reduced, those who have been released and those who have not, the matter needed urgent response under RTI. “But that was not possible as the Administrator’s office has no provision for accepting RTI applications,” the complaint mentioned in his letter to the CIC.

    The CIC has now directed the office of the Administrator to give comments on the issue within 15 days from January 25, the date of issue of the letter. Interestingly, it has addressed its letter to the CPIO, office of UT Administrator. Therein it has also asked for “clear justification for denial of information,” adding: “The commission would like to draw your attention to Section 20(1) of the RTI Act which prescribes severe penalties on the CPIO personally for (a) refusal to receive an application for information; (b) delay in providing information beyond the stipulated time as specified wider sub-Section 7(1) of the Act; (c) denying the request for information with mala fide intent; (d) knowingly giving incomplete information; (e) destruction of record which was the subject matter of the request and (f) obstruction in any manner in furnishing the information.”





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    Re: CIC seeks comment in 15 days


    As reported by Express News Service on expressindia.com on 23 February 2008:

    Social activist seeks action against home secy/Saturday , February 23, 2008 at 12:46:21

    Social activist seeks action against home secy

    Chandigarh, February 22 On the issue of not providing information under the RTI Act at the UT administrator’s office, social activist Hemant Goswami today demanded action against the UT home secretary. In a rejoinder sent to the Chief information Commissioner (CIC), Goswami has stated that action should be initiated keeping in mind that the administration falsely claimed that no record is generated in the Chandigarh Administrator’s office.

    The rejoinder in the complaint against the administrator of Chandigarh reads: “The Home Secretary through the CPIO Home Department has provided factually incorrect information and there is a deliberate attempt to furnish false statement receivable as evidence before the honorable information commission.”

    The rejoinder mentions that the current administrator of Chandigarh was appointed in 2005 whereas the office of the Administrator of Chandigarh is in existence since 1984. Though the current Administrator rarely visited his office in the UT Secretariat, the previous administrators have been visiting their office and have been actively working.

    A large number of records have been generated during their tenure, which has invaluable archival value.

    It may be recalled that Goswami had made a complaint to the Chief Information Commissioner against the Administrator of Chandigarh for not following the RTI, for not appointing CPIO in his office and for not disclosing the required information under Section 4 of the RTI Act.

    The Home Department of Chandigarh had claimed that since no record was generated in the Administrator’s office, so there was no need to follow the RTI Act by the Administrator.

    The CIC had issued a notice to the Administrator’s office and asked Goswami to send a rejoinder.



  3. #3
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    Re: CIC seeks comment in 15 days


    Since the rejoinder has raised many important issues and has several points which members can use in other applications/appeals/etc..., it is reproduced below:
    ============================Quote
    Rejoinder to the reply received by the CPIO, Home Department, Chandigarh
    Administration No. IH(5)-2008/2683 - No reply received from the
    Administrator' s Office - Against whom a complaint was preferred

    Reference: Complaint No. CIC/WB/C/2008/ 00020

    Sir,

    Despite waiting for 15 days from the communication dated January 25, 2008
    sent by your office to the O/o the Administrator of Chandigarh with regard
    to complaint No. CIC/WB/C/2008/ 00020, no reply has been received from the
    said public authority.

    However a letter dated Feb 6, 2008 from the Home Department of Chandigarh
    Administration bearing a Reference No. IH(5)-2008/2683 has been received by
    the undersigned complainant. The said letter refers to the complaint made by
    the undersigned complainant on 22.1.2008 to your office.

    The said letter by the Home Department primarily says that no CPIO has been
    appointed in the office of the Administrator because according to the Home
    Department no record is generated by the office of the Administrator and it
    further states that therefore there was no need to comply with the
    provisions of Section 4 too. The said contention of the Home Department is
    bad in law, factually incorrect and not made with salubrious intentions. The
    undersigned rejoins with the following reply;

    1. The contention of the Home Department of Chandigarh Administration
    that no CPIO or section 4 compliance is required where no record is
    generated is bad in law as GENERATION OF RECORD is not a precondition for
    following the RTI Act and/or appointment of a CPIO and/or for complying with
    the provisions of Section 4. The necessary direction of the law is contained
    in Section 4 which clearly reads that "4.(1) Every Public authority
    shall-...... a) publish all its record....b) publish within one hundred and
    twenty days....c) publish all relevant facts..d) provide reasons.. etc."
    Section 5 further reads that "5. (1) Every public authority shall, within
    one hundred days of the enactment of this Act, designate as many officers as
    the Central Public Information Officers or State Public Information
    Officers, as the case may be, in all administrative units or offices under
    it as may be necessary to provide information to persons requesting for the
    information under this Act."

    a. Public Authority under the RTI Act is defined under Section 2(h) as
    "(h) "public authority" means any authority or body or institution of self-
    government established or constituted- (a) by or under the Constitution;
    (b) by any other law made by Parliament;. ..etc."
    b. Further the office of Administrator is also specifically mentioned
    under the heading of "Competent Authority" under Section 2(e) as "(e)
    "competent authority" means- (v) the administrator appointed under article
    239 of the Constitution; "
    c. The office of the Administrator is clearly an office of a Public
    Authority as it has been created under Article 239 of the Constitution;
    which reads that "Article 239: Administration of Union territories. - (1)
    Save as otherwise provided by Parliament by law, every Union territory shall
    be administered by the President acting, to such extent as he thinks fit,
    through an administrator to be appointed by him with such designation as he
    may specify."

    Clearly the office of the Administrator is an office of a "Public Authority"
    under the constitution and creation of record is no precondition for
    following the RTI Act. The statement by the office of the Home Department of
    Chandigarh Administration is not only bad in law but also misleading and
    unfortunate.

    2. The contention by the "Home Department" that no record is being
    generated by the O/o the "Administrator" is also factually incorrect, as all
    files come to the office of the Administrator for approval and it is highly
    unlikely and against the practice of any office (Leave apart an office of a
    constitutional authority like the "Administrator" ) that a record and copy of
    the approvals granted and incoming and outgoing files/mails not be
    maintained.

    a. It appears that the Home Department means that the Administrator
    keeps no track of all approvals granted
    b. It also appears that the Home Department means that the
    Administrator keeps no track of all letter/mails received and forwarded and
    that there is either no follow up in the Administrator' s office or
    everything is confined to the sharp memory of the Administrator.
    c. It appears that the Home Department means that the Administrator
    keeps no track of the e-mail's and/or follow the e-mails at the address
    admr@chdut.nic. in which is published in the telephone directory of the
    Chandigarh Administrator.
    d. It also appears that the Home Department means that no records are
    generated as a result of the e-mails sent at the address admr@chdut.nic. in
    in the name of the Administrator.
    e. It also appears that the Administrator does not receive visitors as
    Chandigarh's Administrator and no track and record of people meeting the
    Administrator is maintained.

    The statement of the Home Secretary through the CPIO Home Department is
    factually incorrect and there is a deliberate attempt to furnish false
    statement receivable as evidence before the honorable information commission
    which is fully competent to receive any evidence and statement as provided
    under Section 18 of the RTI Act. That such an act also amount to a criminal
    offence under Section 199 of the Indian Penal Code, which reads that "
    Section 199: False statement made in declaration which is by law
    receivable as evidence:- Whoever, in any declaration made or subscribed by
    him, which declaration any Court of Justice, or any public servant or other
    person, is bound or authorized by law to receive as evidence of any fact,
    makes any statement which is false, and which he either knows or believes to
    be false or does not believe to be true, touching any point material to the
    object for which the declaration is made or used, shall be punished in the
    same manner as if he gave false evidence." That Section 193 of the Indian
    Penal Code provides for seven years of imprisonment and reads as " Section
    193: Punishment for false evidence: - Whoever intentionally gives false
    evidence in any stage of a judicial proceeding, or fabricates false evidence
    for the purpose of being used in any stage of a judicial proceeding, shall
    be punished with imprisonment of either description for a term which may
    extend to seven years, and shall also be liable to fine; And whoever
    intentionally gives or fabricates false evidence in any other case, shall be
    punished with imprisonment of either description for a term which may extend
    to three years, and shall also be liable to fine."

    3. That the current Administrator of the UT of Chandigarh was appointed
    only in the year 2005 whereas the office of the Administrator of Chandigarh
    is in existence since 1984. Though the current Administrator rarely visits
    his office in the UT Secretariat, but the previous Administrators have been
    visiting their office and have been actively working. A large number of
    records have been generated during their tenure which has invaluable
    archival value. However if the same is destroyed by anyone there is a
    punishment of up-to 5 years under Section 9 of the "Public record Act 1993."

    4. That even during the tenure of the present Administrator, various
    departments of Chandigarh Administration have been purchasing articles for
    the office of the Administrator, which clearly proves that an office of the
    Administrator exists and since there is a supply of articles and expenses
    made on behalf of the Administrator, there has to be a proper "Stock
    Register," "Movement Register" and also a budget. A copy of one such bill
    (No. 12248 dated 17/10/2005), supplied by the Director - Information
    Technology is annexed hereunder as "Annexure C-1" in support.
    5. That Section 4 contains many proactive disclosures which are not
    dependent on the generation of record in any office, some of the Section
    4(1)(b) disclosures which has no relation to record generation is (i) the
    particulars of its organisation, functions and duties; (ii) the powers and
    duties of its officers and employees; (iii) the procedure followed in the
    decision making process, including channels of supervision and
    accountability; (iv) the norms set by it for the discharge of its functions;
    (v) the rules, regulations, instructions, manuals and records, held by it or
    under its control or used by its employees for discharging its functions;
    (vi) a statement of the categories of documents that are held by it or under
    its control; (vii) the particulars of any arrangement that exists for
    consultation with, or representation by, the members of the public in
    relation to the formulation of its policy or implementation thereof; (viii)
    a statement of the boards, councils, committees and other bodies consisting
    of two or more persons constituted as its part or for the purpose of its
    advice, and as to whether meetings of those boards, councils, committees and
    other bodies are open to the public, or the minutes of such meetings are
    accessible for public; (ix) a directory of its officers and employees; (x)
    the monthly remuneration received by each of its officers and employees,
    including the system of compensation as provided in its regulations; (xi)
    the budget allocated to each of its agency, indicating the particulars of
    all plans, proposed expenditures and reports on disbursements made; (xii)
    the manner of execution of subsidy programmes, including the amounts
    allocated and the details of beneficiaries of such programmes; (xiii)
    particulars of recipients of concessions, permits or authorisations granted
    by it; (xiv) details in respect of the information, available to or held by
    it, reduced in an electronic form; (xv) the particulars of facilities
    available to citizens for obtaining information, including the working hours
    of a library or reading room, if maintained for public use; (xvi) the names,
    designations and other particulars of the Public Information Officers;
    (xvii) such other information as may be prescribed; and thereafter update
    these publications every year;

    That the O/o Administrator is bound to provide all the above mandatory
    proactive disclosure information under Section 4(1)(b) and there is enough
    relevant information to be furnished under Section 4.

    6. That the O/o Administrator is not following the direction of law and
    therefore trying to conceal the information available. The public is also
    kept in dark about the Powers, Functions and Duties of the Administrator.
    Since the Administrator appears to be exceeding his constitutional powers in
    most of the cases so he appears to be escaping the necessary disclosures
    regarding his Powers, Functions and Duties and other relevant facts. This is
    not only against the spirit of the RTI but also against the Constitutional
    and the democratic spirit and the guidelines.
    7. That instead of appointing a CPIO and following the RTI Act, the
    Administrator' s office, after the complaint made to your office, went
    public, and selectively leaked certain information, and thereafter, even
    issued a press note (Annexed as Annexure C-2) through the O/o Director
    Public Relation claiming that the Administrator of Chandigarh requires no
    CPIO and no Section 4 disclosure was required to be published. That the said
    press note issued by the DPR office is misuse of official machinery in
    aiding an illegal act. The said act also caused a lot of inconvenience, loss
    and damage to the complainant. The complainant was called by many people
    (including the media), which resulted in loss of valuable time, unnecessary
    harassment and loss of peace besides other damages. The commission may
    consider this too while awarding compensation and damages to the
    complainant.
    8. That the damage to the RTI Act did not limit to this alone; as a
    reaction to the complaint, the Administrator even went ahead and on Feb 13,
    2008 announced an increased fee of Rs. 50/- per application and Rs. 10/- as
    copying charges per page for the Union Territory of Chandigarh. This was
    done in great disregard for law, by-passing the parliament, and in violation
    of the powers conferred upon the Administrator.

    In the light of the reply, the undersigned complainant additionally requests
    you to;

    1. Instruct for immediate publishing of all relevant information under
    Section 4.
    2. Instruct for appointment of CPIO as provided under Section 5.
    3. Instruct providing information to all information seekers.
    4. Award damages and compensation to the complainant.
    5. Issue appropriate recommendations under Section 25(5) of the RTI
    Act.
    6. Instruct registration of a criminal case under Section 166 of the
    IPC against the erring persons for disobeying the direction of law as
    contained in Section 4 and 5 of the RTI Act.
    7. Instruct initiation of criminal case under Section 199 for giving
    false statement and leading false evidence.
    8. Pass any other orders as the commission may find appropriate.

    Thanking you,
    ====================Unquote

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    Re: CIC seeks comment in 15 days



    A press release by Citizens Voice as published on scoop.co.nz on 23 February 2008:
    Scoop: Social Activists Message To Chandigarh Admin.

    Social Activists Message To Chandigarh Admin.


    In a last ditch effort, the group of Civil Society Organisations, Citizen's Voice made another formal appeal to the Administrator to repeal the illegal rules made to increase the RTI fee in Chandigarh. The representation handed over to the Administrator said that it was incorrect for the administration to punish the public by raising the RTI fee for the inefficiency by its bureaucracy and the senior officials. It mentions that since the Chandigarh Administration has failed miserably in adhering to the law and fulfilling its obligations under the "Public Records Act of 1993," "Manual of Office Procedure Rules," provisions of Section 4 of "The Right to Information Act," and the necessary guidelines contained in the "Information Technology Act 2000." Since no proper record management and office procedure were followed, so the retrieval of information becomes a problem whenever there is an RTI application.

    The representation sent by Hemant Goswami, the convener of Citizen's Voice read "The problem faced by the Chandigarh Administration is a clear result of its own inefficiency. What is required is strict action against all civil servants whose departments do not have proper management and do not adhere to the directions of law. It is the highest official whose inefficiency percolates to the lower levels and setting the top in order will definitely contain the rot in the system. Such an action will also make it easy for various departments to provide information to the public."


    The Administrator has also been asked to consider the reasonableness of the action by the Chandigarh Administration to increase the RTI fee in the light of the fact that the Parliamentary Standing Committee on Public Grievances and Personnel, headed by Dr. E. M. Sudarasna Natchiappan, in January 2008 had actually recommended scrapping of the application fee of making an RTI application. This was done because the standing committee felt that there was a need to introduce greater transparency in dealing with RTI applications, as the majority of concerned officials were hesitant to part with information. Even The CIC Wajahat Habibullah, had also welcomed the recommendation of the parliamentary committee on scrapping of the fee, the appeal mentions.


    Goswami has also raised the question of legality of the notification and mentioned that it was even legally not sustainable. The increase fee also does not stand the test of reasonableness of the fee as mentioned under Section 7(5) of the RTI Act. A copy costs just 40 paisa per copy and the Central government had already incorporated an additional sum of 400 percent, i.e. Rs. 1.60 per page to compensate for all manpower used, storage charges, etc. It was improper to increase the charges to Rs. 10 per page. Hemant mentions that if there was any need to recommend any change in the fee; there was enough scope and margin to reduce it and/or scrap it altogether. There is already a move to scrap the application fee (as recommended by the Natchiappan committee) and enough scope to reduce the documentation charges to Rs. 1/- per page instead of Rs. 2/- charged at present. Besides, most of the information could also be provided free by way of the provisions enshrined under Section 4(1) of the RTI Act, mentions Amit Gulati, another RTI activist.



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