P M Ravindran
2/18, 'Aathira', Sivapuri, Kalpathy-678003
Tele: 0491-2576042; E-mail: firstname.lastname@example.org
File: Comp-prez-cic-300515 30 May 2015
Sri Pranab Kumar Mukherji
President of India
Rashtrapathi Bhavan, New Delhi-110001 - through e mail email@example.com
COMPLAINT-TREASON BY PUBLIC SERVANTS: BASANT SETH, INFORMATION COMMISSIONER
1. Please see the following two orders of Basant Seth, Information Commissioner (IC), Central Information Commission, New Delhi (copies attached for ready reference):
1.1. Order dated 8/5/15 in File No. CIC/BS/A/2014/001138/7578 on my 2nd appeal filed on 3/7/14 and
1.2. Order dated 15/5/15 in File No. CIC/BS/A/2014/001202/7631 on my 2nd appeal filed on 9/5/14
2. Both these orders pertain to BSNL, one against the PIO and FAA, o/o the Executive Engineer, BSNL, Nashik, Maharashtra (referred to as order 1 henceforth) and the other against the PIO and FAA, o/o the GM, BSNL, Palakkad, Kerala (referred to as order 2 henceforth). The information sought from these public authorities have been listed in the order itself. However they are reproduced here for ease of understanding.
2.1. Info sought from o/o the Executive Engineer, BSNL, Nashik, Maharashtra on 12/3/14, leading to order 1:
1. Please provide the following information and copies of the documents:
1.1.Information published in compliance with Sec4(1)(b) of the RTI Act.
1.2. The details of all works being carried out in your jurisdiction from 1/1/14 to 28/2/14. The details, in a table form, should include the name/description of the project, the purpose of the project, the estimated cost, whether executed directly or through contractors, in both the cases the name and designation of the officer of the BSNL responsible for supervision, the name and address of the contractor, date of commencement of work, expected date of completion, (based on the estimated cost) the percentage of work completed as on 28/2/14, the amounts for which bills have been presented/paid/pending. If a particular project is being executed at more than one site then the details should be provided project and sitewise.
1.3. The details of documents to be submitted by the contractors claiming payment and the details of the procedure followed till the payment is made. The details should include the name and designation of all those who handle the claim and the action taken by each of them including the time frame (prescribed and actual) till the payment is made.
1.4. The name and designation of the officer of BSNL who is responsible for ensuring that labour laws are being complied with where ever labourers are employed directly or through the contractors.,
1.5. In the cases where BSNL is directly executing projects provide the number of skilled and unskilled employees, sitewise alongwith the name and designation of the employees of the BSNL who have been supervising the work at the sites. Further, the number of permanent and casual/temporary employees in each category should also be provided. If an employee of the BSNL: is responsible for more than one site the distance between the sites should also be provided in the remarks column.
1.6. In the cases where projects are executed through contractors all the details as in para 1.5 above.
1.7. Copies of documents that are accepted as proof of compliance with applicable labour laws.
2.2. Info sought from o/o the GM, BSNL, Palakkad, Kerala on 1/1/14, leading to order 2:
1. Refer the following:
1.1. Report in the media regarding BSNL Palakkad Telephone Adalat in the 4th week of Jan 2014.
1.2. My complaint Comp-bsnl- 3g datacard-131207 dated 07 Dec 2013 addressed to the GM, BSNL, Palakkad and handed over to the EE, CSC, BSNL, HPO Complex, Palakkad-678001 but not acknowledged or receipted
1.3. Your office letter No PRO/GMT/Pkd/GC/2013-14/11 dated 17/12/13.
2. As per the report at para 1.1 above, no complaints submitted at the last adalat will be entertained this time. It indicates that there are complaints that cannot be resolved at these adalats. Given that only complaints that could not be resolved throuh normal course will be entertained during the adalats, please provide the following information:
2.1. What are the nature of these complaints that have not been resolved during the earlier adalats. Please provide the following information for the last three adalts- the nature/subject of the complaint/ number of such complaints at each adalat, reason why it could not be resolved
2.2. For the last three adalts, please provide the following information- the date, total number of complaints received, the number of complainants who had appeared for the adalat, the number of complaints that were resolved, the nature of these complaints, the reasons why they could not be resolved in the normal course and any subsequent action taken to resolve such complaints in normal course.
2.3. Regarding my complaint at para 1.2 please provide the information on action taken on my complaints referred to at para 1 and 3 therein. The action taken may be provided in chronological order till date of providing the information and should include action taken by any other authorities, if any, to whom the complaints have been referred.
3. Needless to say, most of the information sought was not provided leading to the 2nd appeals. But the decisions are not merely idiotic but treacherous.
4. In the context of the info sought, leading to order 1, please note the following:
4.1. the info sought at para 1.1 pertains to compliance with Sec 4 of the RTI Act
4.2. the info sought at para 1.2 pertains to only 2 months from 1/1/2014 to 28/2/2014.
4.3. the info sought at para 1.3 and 1.4 pertains to info required to be disclosed suo moto under Sec 4(1)(b)(iii)
4.4. the info sought at para 1.5 and 1.6 pertains to info required to be disclosed suo moto under Sec 4(1)(b)(i) and (ii)
4.5. the info sought at para 1.7 pertains to info required to be disclosed suo moto under Sec 4(1)(b)(v)
5. Against info sought at para 1.1 the IC has stated (see para 6 of order 1) 'As regards information relating to Section 4(1)(b) the respondent has submitted that the same is in public domain and is displayed on the department's website.' He has also quoted a subversive order of the Commission in Appeal No. CIC/AT/A/2007/00112 as ".....it would mean that once certain information is placed in public domain accessible to the citizens either freely or on payment of a predetermined price, that information cannot be said to be 'held' or 'under the control' of the public authority and thus would cease to be an 'information' accessible under the RTI Act."
In this context the following questions beg answers:
5.1. Has the PIO shown the available info on the website to the IC? If not, how has the IC come to the conclusion that the info is available on their website? I did look for it but could not find it. To the best of my knowledge and understanding the o/o the Executive Engineer, BSNL, Nashik does not have a website and the website of the parent organisation does not have the info pertaining to the o/o the Executive Engineer, BSNL, Nashik.
5.2. As far as the law is concerned nowhere does it state that any info available in public domain shall not be provided under the RTI Act. Specifically Sec 7(1) states that 'on receipt of a request under section 6 (the Central Public Information Officer) shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9'. And information published on a website in not included in either Sec 8 or 9!
6. Against info sought at para 1.3 to 1.7, the IC has stated (see para 6 of order 1) 'From the CPlO's representative submissions it appears that all information has been provided other than that sought under query 1.2 and that displayed on the website under Section 4(1)(b) of the RTI Act.
In this context the following question begs answer:
I had submitted copies of all documents received by me from the PIO/FAA along with the 2nd appeal. Did the IC see any of the information claimed to have been provided by the PIO in them? Or, did the PIO produce additional documents claiming to have been provided to me? Since the IC has also not provided them to me shouldn't this statement of the IC be viewed as a blatant lie?
7. Against info sought at para 1.2 the IC has stated (see para 5 of order 1) as follows:
We agree with the Respondents that collecting this information would disproportionately
divert their resources from the day to day work. The Appellant has not established any larger public interest, which would warrant a directive to the respondents to collect the information, sought by him, even at the cost of diverting their resources from their day to day work.
And the corresponding order is
'If, however, the appellant so desires, the CPIO should permit him to inspect the relevant records relating to his RTI application dated 12/03/2014 and also allow him to take photocopies/extracts there from, free of cost, upto 50 pages within 15 days from the date of receipt of this order.'
Now, the following questions beg answer:
7.1 Which part of the RTI Act differentiates between public interest and private interest in deciding the quantum of info to be provided? To put matters in their correct perspective some relevant extracts of the RTI Act are reproduced below.
7.1.1. The Preamble says it is 'An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority'
7.1.2. It also says as its objective 'whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed'.
7.1.3. The only places where the Act mentions public interest are in Sec 8(1) (d), (e) and (j) which state as follows:
8 (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
So, where is the info sought at para 1.2 of the application- The details of all works being carried out in your (EE, BSNL, Nashik) jurisdiction from 1/1/14 to 28/2/14-leading to order 1 covered by the above sections? The answer is that it is not covered by any of these sections!
7.2 Now when the PIO has claimed that the info sought at para 1.2 is voluminous and the IC has accepted it at face value, isn’t it ridiculous to direct the PIO to ‘allow him (the appellant) to take photocopies/extracts there from, free of cost, upto 50 pages’ only?
7.3 Then again, where is the legal or moral authority for the IC to restrict the info to be provided to a certain number of pages? Has the IC perused the available records and identified these documents?
8. In the context of the info sought leading to order 2, please note the following:
8.1. the info sought at para 2.1 and 2.2 pertains to clarification of an info disseminated through the media
8.2. the info sought at para 2.3 pertains to action taken and status of two complaints submitted by me for which there had been no response even though one of them had been submitted by me as early as on 11/6/2013 (almost 6 months before filing the application seeking info on 1/1/14)!
9. Relevant extract of Order 2 is given below:
…however, eliciting answers to queries, redressal of grievance, reasons for non compliance of rules/contesting the actions of the respondent public authority are outside the purview of the Act.
From the PIO's submissions it appears that the information, as available on record, has
been provided. lf, however, the appellant has any doubt in the matter the CPIO should permit him to inspect the relevant records relating to his RTI application dated 01/01/2014 and also allow him to take photocopies/extracts there from, free of cost, upto 1O pages within 15 days from the date of receipt of this order.
10. Here again the following questions arise:
10.1. Where in the Act is seeking information through querying prohibited? Isn’t asking questions the most basic form of seeking information?
10.2. Where in the application for information have I sought redressal of grievance? Is seeking information on status of action taken on a complaint redressal of grievance?
10.3. Where in the Act is seeking info on reasons for failure to comply with orders prohibited? In fact the Act, right in the preamble, states that its very purpose is ‘to promote transparency and accountability in the working of every public authority' and ‘to hold Governments and their instrumentalities accountable to the governed'.
10.4. What does the IC mean by stating ‘lf, however, the appellant has any doubt…’? There is no doubt I had projected in my 2nd appeal!
11. Interestingly, the IC has not talked about the public interest part. Here is para 9 (a) of the 2nd appeal:
9. Ground for the
(a) The information sought is of public interest because the BSNL even when providing costly gadgets like Datacards for their (3G) services do not ultimately provide the service, that is broadband communication (in this case). Also those claiming to be providing communication to the Nation and ‘connecting people’ cannot give absurd responses like misuse of fax facility provided in their Customer Service Centre! It needs to be noted that info sought at para 2.3 of the application is about the action taken on my complaints whereas the response of the PIO at Point 1 is about having send my complaint to another public authority and having got a report. But neither the action taken by the other public authority has been communicated nor copies of the relevant report provided. Similarly against Point 3 there is only a comment and not info about action taken!
12. You are also request to note that order 1, dated 8/5/15, is on a 2nd appeal filed on 3/7/14 whereas order 2, dated 15/5/15, is on an appeal filed on 9/5/14! How did the 2nd appeal filed later get a senior number (1138 compared to 1202 for the one filed earlier) and got decided earlier? Doesn’t it indicate the wayward manner of processing the 2nd appeals by the information commission?
13. That the information commissioner has grossly failed to fulfill his assigned task should be adequately clear from the above mentioned facts. But it is not an isolated case. Your attention is invited to my very first complaint, dated 21/4/2007, against the then CIC, seeking his removal under Section 14(3)(d) of the RTI Act! Copy of this complaint (less appendices) is also attached for ready reference. More such exposures of treason can be read at the following blogsites:
14. Not only their failure to impose mandatory penalty has murdered the law for transparency, the loss to exchequer can be considered to be of the magnitude of the Vadhragate or 2G and Coalgate scams put together! There is also a valid suspicion that the information commissioners may actually be corrupt in that they could be taking bribes from defaulting PIOs only to fail to impose the mandatory penalty! This may need to be investigated by the CBI under the supervison of the apex court itself!
15. It may be pertinent to place on record the fact that the task of the information commissioners is easier than that of a munsif. Disposing of complaints should not take more than a minute. In the matter of appeals, it could be 10 minutes per appeal. The commissioners should be able to decide the basic questions of law involved- whether the info sought is disclosable or not and if disclosable the extent of default on a simple perusal of the appeal. There after the only thing required for the information commissioner to do is to provide an opportunity to being heard to the PIO seeking reasons for not imposing the penalty. After providing this opportunity, which need not be through a personal hearing, if the reasons given are not satisfactory or in precise terms, legally tenable the IC is required to mandatorily impose the prescribed penalty. Various high courts across the country have while dealing with cases involving the RTI Act, ruled that penalty has to be imposed even for mere delays and that reasons like records are not traceable/not available cannot be accepted as valid and the information commissioners can order inquiry to trace such records or to find out the reasons why those records are not available. Relevant extract s of certain orders of high courts and information commissioners are appended to this complaint.
16. The status and perks given to information commissioners under Secs 13(5) and 16(5) of the RTI Act has only reduced this imporant office to a rehabilitation home for the most useless clerks who had served in the government. Given the universally accepted norm of equal pay for equal work, it is important to amend the above sections of the RTI Act to read as ‘ The salaries and allowances payable to and other terms and conditions of service of the CIC and ICs shall be the same as that of a munsif. The CIC shall be paid an additional allowance equal to 10 pc of the basic pay‘.
17. While there is a need to introduce transparency right from the appointment of information commissioners, the government cannot absolve itself of its responsibility when it comes to making these public servants deliver what they are tasked, empowered, equipped and paid to deliver. Specifically in the context of the RTI Act, Sec 26 and 27 needs to be implemented in letter and spirit by the government and defaulters should be punished exemplarily.
(P M Ravindran)
1. Sri Hamid Ansari, Vice President through e mail firstname.lastname@example.org
2. Sri Narendra Modi, Prime Minister through e mail email@example.com, firstname.lastname@example.org
3. Speaker, Lok Sabha through e mail email@example.com
4. Sri H L Dattu, Chief Justice of India through e mail firstname.lastname@example.org
5. Basant Seth, Information Commissioner through e mail email@example.com
6. Media and NGOs through e mail
7. Blog at http://raviforjustice.blogspot.in
EXTRACTS OF CERTAIN HIGH COURT/ INFORMATION COMMISSION ORDERS
IN THE MATTER OF RTI ACT
Note: These are those orders that are in the letter and spirit of the RTI Act. There are more that are subversive of the law which are being quoted by PIOs and FAAs and are being accepted by the ICs to justify their illegal, anti-transparancy and anti-accountabilty decisions. Some examples are there in the copies of the orders attached with this complaint itself.
1. High Court of Delhi in W.P. (C) 3845/2007:
14. xxx… Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.
15. In the above circumstances, Court is of the opinion that the impugned order to the extent it discharges the sixth respondent of the notice under Section 19 (8) and does not impose the penalty sought for has to be declared illegal. In this case, the penalty amount (on account of the delay between 28.12.2005 and the first week of May, 2006 when the information was given) would work out to Rs.25,000/-. The third respondent is hereby directed to deduct the same from the sixth respondent's salary in five equal installments and deposit the amount, with the Commission.
16. In the circumstances of the case, the third respondent shall bear the cost of the proceedings quantified at Rs.50,000/- be paid to the petitioner within six weeks from today.
2. High Court of Punjab and Haryana in C.W.P. NO. 1924 of 2008:
A plain reading of sub-section (1) of Section 20 of the Act makes it obvious that the Commission could impose the penalty for the simple reasons of delay in furnishing the information within the period specified by sub-section (1) of Section 7 of the Act.
3. Madras High Court in W.P.NO.20372 of 2009 and M.P.NO.1 of 2009:
The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information.
4. High Court of Punjab and Haryana in C.W.P. NO. 15850 of 2010:
The primary contentions raised in the affidavit are the shortage of staff, joining of the petitioner after the notice had been issued, the extension of time for registration of the plots by the Government which led to the rush of registration of plots by the owners and essential duties of Census as per the directions of the Election Commission. These are internal matters which have to be dealt with and taken care of by the Administration and cannot be taken as a ground or a defence for not supplying the information within the time stipulated under the 2005 Act itself. The provisions as contained under the 2005 Act have to be given effect to achieve the objective of this Act which are to bring transparency and accountability of public officials and to establish the right of the citizen to have the information and these excuses, if taken into consideration, the 2005 Act itself will be rendered ineffective and the purpose with which the Statute has been brought into existence would be frustrated. Therefore, the reasons assigned for not supplying the information at an early date to the complainant cannot be accepted.
5. High Court of Punjab and Haryana (as reported in the media)
Chandigarh: Creating a precedent the Punjab and Haryana High Court has ruled that if the public Information Officer (PlO) of a department has been penalised by a State Information Commission on account of withholding information the officer cannot appeal against the order through the state. The court has held that the PIO will have to approach the court in personal capacity.
6. Delhi HC (as reported in the media):
The Delhi HC said the Chief Information Commission can direct a government department to inquire into "missing" files "wherever it is claimed...information sought is not traceable."
7. CIC, New Delhi in File No CIC/DS/A/2013/001788-SA:
13. Based on the above discussion, the Commission thus holds: Unless proved that record was destroyed as per the prescribed rules of destruction/ retention policy, it is deemed that record continues to be held by public authority. Claim of file missing or not traceable has no legality as it was not recognized as exception by RTI Act. By practice ‘missing file’ cannot be read into as exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record, in the form of ‘not traceable’ or ‘missing’. The Public Authority also has a duty to designate an officer as Records Officer and protect the
records. A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform.
8. CIC, New Delhi in Appeal No. CIC/SM/A/2011/000278/SG:
There are numerous instances where RTI applications have been transferred by one public authority to another and none of them appears to know where the information is. In this scenario for public authorities to take a position that they will only transfer to one public authority is unreasonable and the law certainly does not state this. Public Authorities claim that it would be difficult to transfer RTI applications to multiple authorities since it would mean putting a lot of resource. …. If public authorities do not meet commitments implied in the RTI Act, the citizen cannot be denied his fundamental right.
The Commission rules that DOPT’s office memorandum no. 10/02/2008-IR dated 12/06/2008 is not consistent with the law.
The PIO is directed to transfer the RTI application to various public authorities before 25 June 2011, who must provide information for the last two years to the Appellant as per the provisions of the RTI Act.
9. SIC, Maharashtra in Appeal no. 489 + 331/Pune, Dashrath Ghenbhau Shevkari versus First Appellate Authority and District Collector, Pune
"One month had been granted earlier for conducting a diligent search of the lost file, as mentioned eariler in this Order. That period is now being extended for another one month i.e. till 15.12.2007. The relevant information should then be promptly provided to the appellant. In case the file is yet not found then an FIR should be lodged against the concerned officer / staff member. This would be the responsibility of the Appellate Authority and the Collector, Pune. Completion of this procedure should be reported to the Commission by the Collector, Pune by 30.12.2007."