RTIFED Correspondence - 064A- 22 Jan 2014 - Despite HC Snub- Its Business as Usual at SICP

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RTIFED/SICP/DoPT dittos Calcutta HC/2014/064-A/2201

22 January 2014 THROUGH E-MAIL

Mr. R.I. Singh Hon’ble State Chief Information Commissioner, State Information Commission Punjab SCO 84-85, Sector 17-C, Chandigarh -160017 Email: [email protected]

Mr. Naresh Gulati Hon’ble State Chief Information Commissioner State Information Commission Haryana, SCO No. 70-71, Sector 8-C, Chandigarh - 160008 Email: [email protected]

The working in the State Information Commission Haryana is even worse than that of their counterpart in Punjab.

This Mail in original is also sent through e-mail to: - Chief Justice, Hon'ble Punjab & Haryana High Court - Hon’ble Central Chief Information Commission; - All Hon’ble Chief Information Commissioners of All Hon’ble State

Information Commissions; - Hon’ble Secretary, Department of Personnel & Training GOI New

Delhi; - All Chief Secretaries of All State of India; - Home Secretary Chandigarh – the Hon'ble Punjab & Haryana High

Court had cast upon a responsibility on you for the compliance. – Please be kind to inform about the action taken and status report.

- A copy is also sent to all RTI NGOs for making similar plea to concerned authorities in their state/area of operation.

CWP-4787 of 2011 (O&M),

Despite High Court Snub, Its Business As Usual

At State Information Commission Punjab

Hon’ble Sirs, The arbitrary practice while disposing appeals and complaints received by the transparency panel i.e., Hon’ble State Information Commission Punjab (here-in-after called the “Commission”) has been exposed by the Hon'ble Punjab & Haryana High Court in its judgement dated 02 December 2012 in a writ petition No. CWP-4787 of 2011 (O&M), copy attached, observing:

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This communication is sent through electronic media and as such does not require any signature.

Write at: 3056, Sector 37-D, Chandigarh – 160036 | Mobile +919-888-810-811 | Website: www.rtifed.com

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“The manner in which the case was dealt with by the first appellate authority as well as the Commission shows as if game of 'hide and seek' was being played. (Para-17)”

In this 14-pages Judgement, containing 26 Paragraphs, Hon'ble Punjab & Haryana High Court has dwelled into the arbitrary working of Commission, in at least in a dozen paragraphs (Paragraph 11 to 26) and passed various scathing strictures on the working of the Commission. These strictures were passed by Hon'ble Punjab & Haryana High Court on an arbitrary decision dated 03 March 2011 delivered by Mr. R.I. Singh, Hon’ble Chief Information Commissioner in a Complaint Case No. CC-341 of Shri Vinayak Sachdeva, Shop No.79, Wallah Subzi Mandi, Amritsar, Complainant versus The Public Information Officer o/o the District Mandi Officer, Amritsar (copy attached) which was challenged by Messer Fruit & Merchant Union (a Third Party) in the Hon'ble Punjab & Haryana High Court . This case was heard and decided by Justice Rajesh Bindal of Hon'ble Punjab & Haryana High Court. This Judgement has exposed serious crevices in the working of the commission. The gist of the same is appended at the end of this communication. This judgement of the Hon'ble Punjab & Haryana High Court, commission considered the same in 18th meeting of the full commission of the State Information Commission, Punjab, held under the chairmanship of Chief Information Commissioner, Punjab on 17 April 2013 i.e., after 5 and a half months of the passing of Hon'ble Punjab & Haryana High Court judgement, in a masquerading manner (copy enclosed). Out of the dozen paragraphs on which Hon’ble High Court smashed the practice of disposing of the appeals and complaints, the State Information Commission, Punjab could see only Paragraph 23 of the 26-para judgment worth consider and made it applicable through an internal order, adversely affecting the rights of the information seekers, in the absence of any amendment to the law on the basis of the judgement. How Commission can enforce a thing under the grab of Section 15(4) of the Right to Information Act 2005, contrary to the provision of the Act, and issue such internal order, which has no force of law1? Moreover the Calcutta High Court2 ruled and the DoPT3 has also dittoed it that RTI Applicants are not required to disclose his Identity except the 1 Section 6(2) of the Right to Information Act 2005 says that “An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him”.



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contact particulars and even says that even the Post Box will suffice for the purpose of contacting the information seeker. Commission recommended the government to amend the law to make it mandatory to attach ID proof RTI Applications, Appeals and Complaints, which government has refused to do so far. The matter that was placed in that meeting was as “Agenda Item No.2. Issue of I.D. Proof.”

The minutes, thus read as under:

Agenda Item No.2. Issue of I.D. Proof. The Commission considered the directions of the Punjab and Haryana

High Court in Civil Writ Petition No.4787 of 2011 titled “Fruit and

Merchant Union V/s Chief Information Commissioner and others.” In

judgment dated: 02.11.2012, the HC has observed as under:-

“23. Further, in all complaints before the Public Information Officer,

the appeal before the first appellate authority or any proceedings

before the Commission, it should be ensured that the applicant files

his proof of identity along with the application. It is for the reason that

in some cases, it has come to the notice of this court that the

applicants were not identifiable. It would ensure that only the genuine

persons file applications. applications.”

The Commission considered the matter. It was decided that the relevant

“Office Order” needs to be amended so as to incorporate a clause that

henceforth in all Complaint or Appeal Cases filed in the Commission

under Section 18 and 19 of the RTI Act, the Complainant or Appellant,

as the case may be, shall submit a self-attested copy of his or her

identity proof. Such self-attested copy of the identity proof may consist

of any of the documents listed below. :-

1. Copy of Passport; or

2. Copy of Identity Card issued by a government department; or

3. Copy of Voter Card issued by Election Commission of India; or

4. Copy of PAN card issued by Income Tax department; or

5. Copy of Adhaar Card – Unique Identity Card of Govt. of India; or

6. Copy of Ration Card issued by government department; or

7. Copy of Driving License.

2 WP 33290(W) of 2013 decided on 20 November 2013. 3 DoPT Circular 1-31-2013-IR 08 Jan 2014 - No personal Information of RTI Applicants



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It was also decided that the Commission should encourage parties to

cases before the Commission to disclose their telephone numbers as it

would facilitate easy communication with them to intimate dates of

hearing etc.

The Commission further decided that due publicity should be given to

these decisions so that public is educated.

The government should also be conveyed the directions of the High

Court in the above mentioned Judgment so that it may amend the

relevant RTI Rules regarding submission of “proof of identity” at the

level of Public Information Officer and First Appellate Authority.

Besides Mr. R.I. Singh, Hon'ble State Chief Information Commissioner, who chaired the meeting following Hon’ble Commissioners were present in the above state meeting,:

1. Smt. Jaspal Kaur,State Information Commissioner,Punjab.

2. Sh. B.C.Thakur, State Information Commissioner,Punjab.

3. Sh. Chander Parkash, State Information Commissioner,Punjab.

4. Sh. Parveen Kumar, State Information Commissioner,Punjab.

5. Sh.Ravinder Singh Nagi, State Information ommissioner,Punjab.

6. Sh. Satinder Pal Singh, State Information Commissioner,Punjab.

7. Sh. Harinder Pal Singh, State Information Commissioner,Punjab.

8. Sh. Narinderjit Singh, State Information Commissioner,Punjab.

9. Sh. Surinder Awashti, State Information Commissioner,Punjab.

In attendance:-

Sh. Ravinder Kumar,Arora,M.F.A.

Sh. K.R.Gupta, Deputy Registrar.

CONSIDERED NON-COMPLIANCE This is a classic case where the Hon'ble State Chief Information Commissioner of the commission has very cleverly bailed himself out from almost all the Strictures, observations, Orders, Directions etc., made in the aforesaid judgement of Hon'ble Punjab & Haryana High Court, and it is noticeably the non-compliance of the directions of the Hon'ble Punjab & Haryana High Court. There are numerous orders passed by the commission, where in the directions and observations made in the judgement of Hon'ble Punjab & Haryana High Court have not kept mind and the business is going on as usual at the commission. These intricacies are being compiled and a



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sample set for a period will be highlighted in the second part of this communication shortly. But one case is highlighted here below: The attention is invited towards the RTIFED Letter No. RTIFED/ SICP/2013/ 053/ 1311 dated 13 November 2013 (copy attached) regarding:

“ORDER DATED AC-985 OF 2013 OF 06 NOVEMBER 2013 OF SH. R.I. SINGH, HON’BLE STATE CHIEF INFORMATION COMMISSIONER SANS REASONABILITY TO BAIL OUT PUBLIC INFORMATION OFFICER”

This impugned order of Mr. R.I. Singh, Hon’ble State Chief Information Commissioner, Punjab (copy attached) was passed just two years after the captioned Hon'ble Punjab & Haryana High Court judgement dated 02 November 2011. In this case in the concluding paragraph of the order, reads as under:

6. Since the information has been furnished to the satisfaction of the appellant, I close the present case which was filed in the Commission on 23.4.2013 by accepting the explanation of the PIO concerned.

The appeal was made owing to violation of Section 7(1) of Right to Information Act 2005 as well on the grounds of malafide on the part of Public Information Officer concerned. In fact The Hon’ble Commission should have dwelled into the submission of the explanation of the Public Information Officer concerned and should have passed a reasoned order as to how the commission was satisfied with that explanation. Passing such orders defy the norms of natural justice and considered as depraved delivery of justice. The order sans in every sense the directions of the Hon'ble Punjab & Haryana High Court as pronounced in the above judgement and is a clearly a case of bailing out the law offender and violator Public Information Officer. This case belonged to the RTI Activist Mr. Parbodh Chander Bali, #16, Shiv Nagar, Batala Road, Amritsar-143001 - Appellant Versus The Public Information Officer, Municipal Corporation, Amritsar, who is an adherent RTI Activist and filing Public Interest Litigations as Petitioner-in-Person, in the Hon'ble Punjab & Haryana High Court as well as in Hon'ble Supreme Court.

This is a typical case where the Hon'ble State Chief Information Commissioner of the commission has very ingeniously bailed himself



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out from almost all the Strictures, observations, Orders, Directions etc., made in the aforesaid judgement of Hon'ble Punjab & Haryana High Court. The situation is extremely disheartened, forlorn, hopeless, despondent, desperate, distressed, frantic, fraught, anxious, worried, despairing and distracting that the people of this country are being taken for a ride by anyone who thinks s/he wields a little authority. The Commissioners are being paid hefty “remunerations and perks” from the money of the taxpayers and the toil of poor citizens, to serve them. But the bizarre situation is this that they act as if they are the Masters and brutalize the citizens as their slaves (in term of rendering injustice to them), This “Authority” is bestowed on them to serve the People and restore the “Constitution” of this country to Glory. But what is happening is Just the Opposite. There are numerous orders passed by the commission, where in the directions and observations made in the judgement of Hon'ble Punjab & Haryana High Court have not kept mind and the business is going on as usual. These intricacies are being compiled and a sample set of a period will be highlighted in the second part of this communication shortly. But one

case is highlighted here-in-below:

Thus the Hon’ble Full Commission has made a complete cynicism of the law in general and ridiculed the Judgement of Hon'ble Punjab & Haryana High Court in writ petition CWP-4787 of 2011 (O&M), in particular, with absolute impunity. This is a classic case, unmatched in the recent judicial parlance. The Hon'ble Punjab & Haryana High Court has impeded Central Information Commission, New Delhi, State Information Commission, Haryana and Home Secretary, Union Territory, Chandigarh, too, for compliance.

RTIFED is very much perturbed at the arbitrary and biased, inflexible and unlawful attitude of the commission towards the information seeking community. The happenings in the commissions have miserably failed to carry out the mandate of the Right to Information Act 2005 for the welfare of the state and its citizens, even after 8 years of its being in force. The commission is as immune to it, as the other officers/authorities obliged to perform under the Act are. There seems to be complete lack of professionalism and a clear link between all the performers and the regulator to fail the Act, so that the carcass of the mega-scale corruption that is prevalent in the system may not be exhumed.

RTIFED highly deplore this attitude in strongest terms ever.



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RTIFED finds that the practice of Hon'ble State Information Commission Punjab in relation to the exercise of its functions under Right to Information Act 2005 neither conform with the provisions and/or spirit of this Act, nor it has any respect of the orders/judgement pronounced by the honorable superior courts, including the one of the Hon'ble Punjab & Haryana High Court , being conversed here. RTIFED hopes that Hon'ble State Information Commission Punjab would like to sit with RTIFED in larger public interest to bring about a workaround to make the commission functional in true spirit and as per law, it is anticipated that the Hon'ble State Information Commission Punjab will comprehend the sensitivity of the matter, before things go out of control. With this RTIFED also demands that a “Transparency Committee” consisting of representative from Hon'ble State Information Commission Punjab, Government, Law fraternity, RTIFED and the public, may be formed suo-motu, to review the working of the commission as per mandate of law and to sort out the difficulties faced by the commission and the information seeking members of the public. This communication is sent through electronic media and as such does not require any signature. The receipt of this communication may please be acknowledged. This request is always made to the commission, which commission never fulfills, maybe owing to some superiority intricate or bureaucratic conviction? Thanking you & Warm Regards, Very cordially yours, Surendera M. Bhanot President RTIFED4 [email protected] enclosure: as stated please. A copy is also sent to all RTI NGOs for making similar plea to concerned authorities in their state/area of operation.

4RTIFED (formerly known as RTI Activists’ Federation and conceived and founded by the legendary

Advocate H.C. Arora) is a body looking after the rights of the RTI Applicants and keeping an eye over the happenings of the RTI related matters in various states.




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TRUE COPY as downloaded from the website of commission

STATE INFORMATION COMMISSION, PUNJAB

SCO No. 84-85, Sector 17-C, CHANDIGARH. (www.infocommpunjab.com)

Shri Parbodh Chander Bali, #16, Shiv Nagar, Batala Road, Amritsar-143001. -------------Appellant.. Vs. The Public Information Officer, Municipal Corporation, Amritsar FAA-Commissioner, Municipal Corporation, Amritsar. -------------Respondents.

Appeal Case No. 985 of 2013

Present:- Shri P.C. Bali complainant.

Shri S.K. Mohindroo, PIO alongwith Shri S.K. Sharma, Advocate on behalf of the respondent.

ORDER The appellant has raised a question as to the legal standing of an APIO

or deemed PIO to furnish the requested information to an information-seeker. The

plea of the appellant is that under law, request for information has to be made to the

PIO or to the APIO concerned. However, under Section 7 of the Right to Information

Act, 2005, only PIO has been bound to furnish the information within 30 days of the

receipt of the request.

2. The respondent on the other hand has argued that the information can

be furnished even by an APIO or deemed PIO under Section 5(4) and 5(5) of the RTI

Act.

3. Law on this issue is very clear that a public authority may appoint more

than one PIO or APIO at each sub divisional level or sub-district level. The role of

APIO is limited to receive the request for information and pass it on to the PIO

concerned. The duty to furnish the information is of the PIO and not of the APIO. It

logically follows that information is to be furnished under the signatures of the PIO or

at the best the order passed by the PIO on a request seeking information may be

conveyed in writing under the signatures of APIO making it clear in the letter that the

decision to furnish information or to deny information was taken by the PIO.

http://www.infocommpunjab.com/



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4. Similarly, a deemed PIO is a person whose assistance has been

sought by the PIO under Section 5(4) and (5). The deemed PIO, “shall render all

assistance” to the PIO. It naturally implies that information is to be furnished not by

the deemed PIO directly to the public but through the PIO.

5. In case where more than one PIO has been appointed, the public

authority should notify one of them as nodal PIO. Such Nodal PIO is one point

contact for public.

6. Since the information has been furnished to the satisfaction of the

appellant, I close the present case which was filed in the Commission on 23.4.2013

by accepting the explanation of the PIO concerned.

(R.I. Singh) Chief Information Commissioner Punjab November 6, 2013.



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Para wise Compilation of observation of the Hon'ble Punjab &

Haryana High Court in C.W.P. No. 4787 of 2011 (O&M) Date of

decision: 2.11.2012 in Fruit & Merchant Union v. Chief

Information Commissioner and others.

Para 1 to Para 09 are the history of the case observed buy the court,

which can be perused from the enclosed judgement. The observation

from Para 10 onwards are

Paragraph Number and the observation of the Hon'ble Punjab & Haryana High Court

The salient points of the observations

Paragraph 10. There is no definite information available on record

as to whether any notice was issued by the first appellate authority to respondent No. 3 before taking up the appeal. Even in his reply, respondent No. 3 has not taken any definite stand thereon. He merely stated that the appeal was not maintainable as no third party information had been sought. But the fact is clear that respondent No. 3 had the information about the order passed by the first appellate authority as it finds reference in the order passed by the Commission. Respondent No. 3 filed a complaint before the Commission, which was disposed of by passing a non-speaking order on 3.3.2011. Besides the order being non-speaking, the same was passed without even hearing the petitioner.

STRICTURE PASSED BY HON’BLE HIGH COURT Respondent No. 3 filed a complaint before the Commission, which was disposed of by passing a non-speaking order on 3.3.2011. Besides

the order being non-speaking, the same was passed without even hearing the petitioner.

Paragraph 11. Respondent No. 3 had preferred complaint before

the Commission during the pendency of appeal filed by the petitioner before the first appellate authority, as is evident from letter dated 2.2.2011 (Annexure P-6). Even in the reply sent by District Mandi Officer, Amritsar, to the Commission, it was mentioned that an appeal filed by the petitioner before the first appellate authority was pending for 24.2.2011 and further along with letter dated 1.3.2011, the petitioner had submitted copy of the order passed by the first appellate authority to the Commission. Still the Commission without issuing notice to the petitioner passed the order merely writing that the information sought is not the personal information or trade secrets of a third party. The text of the order passed by the Commission is reproduced hereunder:

Still the Commission without issuing notice to the petitioner passed the order merely writing that the information sought is not the personal information or trade secrets of a third party.

“ I have heard the parties through Video Conference Facility.

2. The PIO and the First Appellate Authority has wrongly interpreted the provisions of the Right to Information Act, 2005. The queries of the information seeker dated 29.11.2010 are reproduced below and these do not amount to personal information or trade secrets of a third party. “How many account checkings of the licence were made at Vallah Vegetable Market w.e.f. 1.4.2010 till today for the session 2009-10, i.e. Name of the firm, recovery of due fees/ amount as to R.D.F., amount as to recovered penalty and details of the record from which the due amount is calculated.”

3. This information shall be furnished to the complainant within 15 days from today and a compliance report should be sent to this office. The respondent shall further file a written reply to explain the delay in furnishing of the information.”

Paragraph 12. A perusal of the aforesaid order shows that the

same is totally non-speaking. It is lacking not even in reasons for STRICTURE

In the absence of brief facts and the



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which it was opined that the information sought by the applicant herein does not amount to personal information or trade secrets of a third party, even the facts of the case have not been referred to in detail. In the absence of brief facts and the reasons contained in the order, it is not possible for the next higher court to appreciate as to what weighed with the authority in reaching the conclusion and as to whether there was application of mind by the authority or the order is arbitrary. Hon'ble the Supreme Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496, while referring to its earlier judgments in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669; Som Datt Datta v. Union of India, AIR 1969 SC 414; Bhagat Raja v. Union of India, AIR 1967 SC 1606; Travancore Rayon Ltd. v. Union of India, (1969) 3 SCC 868; Mahabir Prasad Santosh Kumar v. State of U. P., (1970) 1 SCC 764; Keshav Mills Co. Ltd. v. Union of India, (1973) 1 SCC 380; Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836; Woolcombers of India Ltd. v. Workers Union, (1974) 3 SCC 318; Siemens Engg. And Mfg. Co. of India Ltd. v. Union of India, (1976) 2 SCC 981; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Rama Varma Bharathan Thampuram v. State of Kerala, (1979) 4 SCC 782; Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368; H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Deptt., (1979) 4 SCC 642; Bombay Oil Industries (P) Ltd. v. Union of India, (1984) 1 SCC 141; Ram Chander v. Union of India, (1986) 3 SCC 103; Star Enterprises v. City and Industrial Development Corpn. Of Maharashtra Ltd., (1990) 3 SCC 280; S. N. Mukherjee v. Union of India, (1990) 4 SCC 594; Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi, (1991) 2 SCC 716; M.L. Jaggi v. MTNL, (1996) 3 SCC 119 and Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668 opined that every order passed by quasi-judicial authority or even an administrative authority affecting the rights of parties, must be a speaking order. It must not be like the “inscrutable face of a sphinx”. The superior court cannot effectively exercise its power of judicial review unless in the order impugned, facts and reasons have been stated in detail. Merely giving an opportunity of hearing is not enough. Wherever an order can be subject to appeal or judicial review, the necessity to record reasons is even greater. It ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant facts and the law. It enables an aggrieved party to demonstrate before the higher court that the reasons on which his claim has been rejected, are erroneous. It operates as a deterrent against possible arbitrary action by any authority invested with judicial power. The aim is to prevent unfairness or arbitrariness in reaching conclusions. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. The faith of the people in administrative authorities can be sustained only if they act fairly and dispose of the matters before them by well-considered orders. The aforesaid judgment was followed by Hon'ble the Supreme Court in ORYX Fisheries Private Ltd. v. Union of India and others, (2010) 13 SCC 427.

reasons contained in the order, it is not possible for the next higher court to appreciate as to what weighed with the authority in reaching the conclusion and as to whether there was application of mind by the authority or the order is arbitrary.

Paragraph 13. The aforesaid ground is sufficient to set aside the

impugned order passed by the Commission. OBSERVATION

Paragraph 14. The impugned order deserves to be set aside even

on the ground of non-grant of opportunity of personal hearing to the petitioner before passing the same and further on account of the procedure adopted by the Commission, which is totally unknown in the judicial process.

STRICTURE The impugned order deserves to be set aside even on the ground of non-grant of opportunity of personal hearing to the petitioner before passing the same and further on account of the procedure adopted by the Commission, which is totally unknown in the judicial process.



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Paragraph 15. In the case in hand, respondent No. 3 filed an

application on 29.11.2010 seeking certain information. Having come to know that respondent No. 3 had sought information, which cannot be sought by any third party under the Right to Information Act, 2005 (for short, 'the Act'), an application was filed by the petitioner before the State Public Information Officer raising an objection thereto. The application having not been decided within a period of 30 days, in terms of the provisions of the Act, the petitioner filed appeal dated 23.12.2010 before the first appellate authority. The same was disposed of on 24.2.2011 providing liberty to the petitioner to raise whatever issues he wants to raise before the State Public Information Officer within 30 days of the passing of order and the State Public Information Officer was to decide the issue after affording opportunity of hearing to the petitioner. The fact as to whether the appellate authority had issued notice to respondent No. 3 before deciding the appeal filed by the petitioner is neither evident from the record produced nor the same was specifically pointed out by learned counsel for the petitioner. Even the order (Annexure P-5) passed by the first appellate authority also does not suggest the same as no presence of a counsel representing it has been marked. However, from an order passed on same date, as available on the file of the Commission, it is evident that respondent No. 3 was aware of the appeal filed by the petitioner.

Paragraph 16. As is evident from the record produced, respondent

No. 3 filed a complaint before the Commission on 4.2.2011 raising a grievance regarding non-furnishing of information on his request by the State Public Information Officer. The same was numbered as CC No. 341 of 2011. Vide communication dated 11.2.2011, the Commission sent a notice to respondent No. 3 intimating that his complaint has been received. In case he wants to be heard through video conferencing facility available in the office of Deputy Commissioner, he may respond so that date and time can be intimated. There is another letter dated 17.2.2011 on record requiring respondent No. 3-complainant to appear in the office of Deputy Commissioner, Amritsar on 3.3.2011 at 10.00 AM for hearing through video conferencing facility. Respondent No. 3 replied to the aforesaid communication in positive stating that he will appear on the date fixed for video conferencing. Before the date of hearing fixed before the Commission, the petitioner vide letter dated 1.3.2011, duly received in the office of the Commission, furnished a copy of the order passed on 24.2.2011 by the first appellate authority, whereby inter-alia, it was directed that the petitioner be heard before the application of respondent No. 3-complainant for providing information is decided. Not only this, even the District Mandi Officer, Amritsar in his letter dated 1.3.2011, addressed to the Commission, specifically pointed out the order passed in favour of the petitioner by the first appellate authority. Copies of appeal and the order passed by the appellate authority were annexed. Despite this fact being on record, the Commission did not think it appropriate to give any notice to the petitioner or take notice of the order passed by the first appellate authority, rather, the same has indirectly been set aside though not even impugned before it. The text of the order, as has already been reproduced above, gives an impression that availability of the order on record is not in dispute as the fact regarding the information sought being personal pertaining to a third party has been mentioned, which had not been raised in the complaint filed by respondent No. 3.

STRICTURE Despite this fact being on record, the Commission did not think it appropriate to give any notice to the petitioner or take notice of the order passed by the first appellate authority, rather, the same has indirectly been set aside though not even impugned before it.

Paragraph 17. The manner in which the case was dealt with by the

first appellate authority as well as the Commission shows as if game of 'hide and seek' was being played. At the first instance before the first appellate authority, in the appeal filed by the petitioner, apparently the complainant was not impleaded as party. When the matter was taken up before the Commission by the complainant, he did not think it appropriate to implead the petitioner who was objecting to the information being granted as third party.

STRICTURE The manner in which the case was dealt with by the first appellate authority as well as the Commission shows as if game of 'hide and seek' was being played. At the first instance before the first appellate authority, in the appeal filed by the petitioner,



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Further the Commission also did not consider it relevant to issue notice to the petitioner despite the fact that the first appellate authority had passed an order in his favour, which had been produced before the Commission. Such a procedure adopted is unknown in judicial process and even against the provision of Section 19(4) of the Act, which provides that in case a third party information is sought, he shall be granted opportunity of hearing. Grant of opportunity of hearing to a party, who may be affected by an order, is sine qua non. It has been consistently held so by the courts. The law on the issue was recently summed up in C.W.P. No. 10981 of 2012 —Ved Parkash and others v. State of Haryana and others, decided on 30.10.2012, whereby this court observed that no one can be condemned unheard. The relevant extracts of the same are as under:

apparently the complainant was not impleaded as party. Further the Commission also did not consider it relevant to issue notice to the petitioner despite the fact that the first appellate authority had passed an order in his favour, which had been produced before the Commission. Such a procedure adopted is unknown in judicial process and even against the provision of Section 19(4) of the Act, which provides that in case a third party information is sought, he shall be granted opportunity of hearing. DIRECTION Grant of opportunity of hearing to a party, who may be affected by an order, is sine qua non. The law on the issue was recently summed up in C.W.P. No. 10981 of 2012 —Ved Parkash and others v. State of Haryana

13. The grievance raised by learned counsel for the petitioners in the present case is also that before deciding the appeal, the petitioners were not given any opportunity of hearing by the Commission. It cannot be disputed that no one can be condemned unheard. Reference can be made to Sayeedur Rehman v. State of Bihar, (1973) 3 SCC 333; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Special Leave Petition (Civil) No. 23781 of 2007—Indu Bhushan Dwivedi v. State Jharkhand and another, decided on 5.7.2010. The same having not been done, it has resulted in prejudice to the petitioners. This ground alone is also sufficient to set aside an order passed by any authority.

STRICTURE WITH CITATIONS It cannot be disputed that no one can be condemned unheard. In case, the petitioners had filed appeal, minimum that was required was intimation of date of hearing to them so as to enable them to appear before the Commission and present their case. The same having not been done, it has resulted in prejudice to the petitioners. This ground alone is also sufficient to set aside an order passed by any authority.

14. A similar issue came up for consideration before this court in C.W.P. No. 17157 of 2010—M/s Mahindra and Mahindra Ltd. v. The Employees Provident Fund Appellate Tribunal and another, decided on 24.7.2012, where the Employees Provident Fund Appellate Tribunal, which has its principal seat at New Delhi, heard some cases by holding Camp Court . However, proper intimation about the date of hearing was not given to the party concerned. The order was set aside and the matter was remitted back. This Court had also made certain suggestions regarding conduct of proceedings, requirement of mentioning of name and designation of the Presiding Officer in all the interim and final orders and service of notice by use of technology. The same are extracted below:

25. Before parting with the order, this court would like to comment on the manner in which the proceedings have been conducted. As has already been noticed above, the case was not being taken up date-wise i.e. on a date fixed for hearing. There are two different orders passed on one date fixing two different dates of hearing. The Tribunal is discharging important quasi judicial function. The cases cannot be dealt with in the manner in which the same has been dealt with in the present case. In some of the zimni orders even it has not been mentioned as to who had signed that order. Neither the name of the person who had signed it nor his designation has been mentioned. In future it is directed that in all interim or final orders

COMMENT this court would like to comment on the manner in which the proceedings have been conducted. As has already been noticed above, the case was not being taken up date-wise i.e. on a date fixed for hearing. There are two different orders passed on one date fixing two different dates of hearing. STRICTURE The Tribunal is discharging important quasi judicial function. The cases cannot be dealt with in the manner in



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whatever are passed in an appeal or other proceedings by the Tribunal, the officer who signs those orders, his name and designation shall be clearly mentioned.

which the same has been dealt with in the present case. DEIRECTION In future it is directed that in all interim or final orders whatever are passed in an appeal or other proceedings by the Tribunal, the officer who signs those orders, his name and designation shall be clearly mentioned

26. In courts all proceedings take place in writing. As the file shows in the present case after 21.9.2007 when the case was adjourned to 14.12.2007, only a notice is available on record fixing the date of hearing as 19.5.2010 . There is no order to take up the file on any date and directing for fixing next date of hearing and issuance of notice to the parties. In the absence thereof, under what authority a notice was issued to the parties is not available on record. The Principal seat of the Tribunal is at Delhi. As was informed, some times, it holds Circuit Bench at different places. Whichever cases are to be fixed at Circuit Bench, there has to be specific order in the file fixing the case in a particular bench. The aforesaid order should either be passed in the presence of the counsels or the parties when it listed at the Principal Bench or it should be ensured that the notice has, in fact, been served upon both the parties. Whatever the appeal is taken up for hearing there has to be an interim order on record passed on that date showing the proceedings. One of the method to ensure service of notice on the parties could be through the concerned Regional office of Employees' Provident Fund Organisation, as the establishment normally pertains to that area. We are living in the era of technology. For the means of communication, the same should be utilised. Wherever the establishments are having fax or email I.D. efforts should be made to sent a copy of the notice through that mode as well. In case it is successful, this can be adopted as the method of service of notice in future. In addition thereto, the counsel who filed the appeal should also be informed. The same can also be by way of emails. At the time of filing of the appeal, it should be a requirement that the party, and the counsel who has filed the appeal should provide their complete address, telephone number, fax number and email address so as to enable the Tribunal to communicate with them.” [Emphasis supplied]

DIRECTIONS In courts all proceedings take place in writing. The aforesaid order should either be passed in the presence of the counsels or the parties when it listed at the Principal Bench or it should be ensured that the notice has, in fact, been served upon both the parties. Whatever the appeal is taken up for hearing there has to be an interim order on record passed on that date showing the proceedings. We are living in the era of technology. For the means of communication, the same should be utilised. Wherever the establishments are having fax or email I.D. efforts should be made to sent a copy of the notice through that mode as well. In case it is successful, this can be adopted as the method of service of notice in future. At the time of filing of the appeal, it should be a requirement that the party, and the counsel who has filed the appeal should provide their complete address, telephone number, fax number and email address so as to enable the Tribunal to communicate with them.” [Emphasis supplied]

Paragraph 18. As there was clear violation of the principles of

natural justice, the order impugned deserves to be set aside on this score as well.

STRICTURE As there was clear violation of the principles of natural justice, the order impugned deserves to be set aside on this score as well.

Paragraph 19. To avoid passing of the orders of the kind in

question which is resulting in creation of unnecessary avoidable litigation, Hon'ble the Supreme Court had made certain observations regarding working of the Commissions under the Act and issued directions in Namit Sharma v. Union of India, JT 2012(9) SC 166. The relevant parts thereof are extracted below:

ADVISE Attention is invited towards Para 99 and 103 of the Hon’ble Suprem Court of India Namit Sharma Case WP(C) 210 of 2012 dwelling on the lack of legal mind of the Information Commissioners.

“99. ....... This discussion safely leads us to conclude that the functions of the Chief Information Commissioner and Information Commissioners may be better performed by a legally qualified and trained mind possessing the requisite experience. The same should also be applied to the designation of the first appellate authority, i.e., the senior

ADVISE Malcolm Gladwell said, “the key to good decision making is not knowledge. It is understands. We are swimming in the former. We are lacking in the latter”. The requirement of a



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officers to be designated at the Centre and State levels. However, in view of language of Section 5, it may not be necessary to apply this principle to the designation of Public Information Officer. 100. Moreover, as already noticed, the Information Commission, is performing quasi-judicial functions and essence of its adjudicatory powers is akin to the Court system. It also possesses the essential trappings of a Court and discharges the functions which have immense impact on the rights/obligations of the parties. Thus, it must be termed as a judicial Tribunal which requires to be manned by a person of judicial mind, expertise and experience in that field.........

judicial mind for manning the judicial tribunal is a well-accepted discipline in all the major international jurisdictions

xx xx xx xx

103. The above detailed analysis leads to an ad libitum conclusion that under the provisions and scheme of the Act of 2005, the persons eligible for appointment should be of public eminence, with knowledge and experience in the specified fields and should preferably have a judicial background. They should possess judicial acumen and experience to fairly and effectively deal with the intricate questions of law that would come up for determination before the Commission, in its day-to-day working. The Commission satisfies abecedarians of a judicial tribunal which has the trappings of a court. It will serve the ends of justice better, if the Information Commission was manned by persons of legal expertise and with adequate experience in the field of adjudication. We may further clarify that such judicial members could work individually or in Benches of two, one being a judicial member while the other being a qualified person from the specified fields to be called an expert member. Thus, in order to satisfy the test of constitutionality, we will have to read into Section 12(5) of the Act that the expression ‘knowledge and experience’ includes basic degree in that field and experience gained thereafter and secondly that legally qualified, trained and experienced persons would better administer justice to the people, particularly when they are expected to undertake an adjudicatory process which involves critical legal questions and niceties of law. Such appreciation and application of legal principles is a sine qua non to the determinative functioning of the Commission as it can tilt the balance of justice e ither way. Malcolm Gladwell said, “the key to good decision making is not knowledge. It is understanding. We are swimming in the former. We are lacking in the latter”. The requirement of a judicial mind for manning the judicial tribunal is a well-accepted discipline in all the major international jurisdictions with hardly with any exceptions......” [Emphasis supplied]

Paragraph 20. On a perusal of the record of the Commission, it

was noticed that the procedure followed by them in dealing with the complaints is not in the manner it should have been by any quasi-judicial authority. Though this court appreciates the process adopted by the Commission for hearing of the parties through video conferencing making use of such infrastructure and avoiding harassment to the litigants, but still the manner in which record has been maintained certainly deserves comments by this court. There is no order sheet maintained by the Commission. The power of adjudication or passing of any interim order is conferred on the Commission, but a perusal of the file does not show that after receipt of the complaint filed by respondent No. 3, any order was passed by the Commission issuing notice to the opposite party fixing any date or the adjournment thereof. The filing of application by the petitioner placing on record the order passed by the first appellate authority has not even been noticed. The order though

DIRECTIONS The procedure followed by them in dealing with the complaints is not in the manner it should have been by any quasi-judicial authority. the manner in which record has been maintained certainly deserves comments by this court. There is no order sheet maintained by the Commission. The power of adjudication or passing of any interim order is conferred on the Commission, but a perusal of the file



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mentions the number of complaint as CC No. 341/2011, but its complete abbreviation has not been provided considering the fact that it is the final order, which can be subjected to judicial review. The date of filing of the complaint has not been mentioned on the order, which is sine qua non. In case any quasi-judicial or judicial authority decides any application/petition/appeal etc., the date of filing and date of decision is required to be mentioned. In the present case, though apparently the respondent in the complaint before the Commission as impleaded by respondent No. 3-complainant was merely the State Public Information Officer, however, there can be cases where there are more than one complainant/appellant before the Commission and so the respondents. The complete details of all the parties is required to be mentioned in the final order, which is generally termed as “memo of parties”. It enables the next higher court to know as to who were the parties before the authority/court below. The aforesaid discrepancies in the procedure is on account of the fact that the Commission is manned by the officers, who are not judicially trained.

does not show that after receipt of the complaint filed by respondent No. 3, any order was passed by the Commission issuing notice to the opposite party fixing any date or the adjournment thereof. The filing of application by the petitioner placing on record the order passed by the first appellate authority has not even been noticed. The order though mentions the number of complaint as CC No. 341/2011, but its complete abbreviation has not been provided considering the fact that it is the final order, which can be subjected to judicial review. The date of filing of the complaint has not been mentioned on the order, which is sine qua non (an indispensable

condition, element, or factor; something

essential)

In case any quasi-judicial or judicial authority decides any application/petition/appeal etc., the date of filing and date of decision is required to be mentioned. In the present case, though apparently the respondent in the complaint before the Commission as impleaded by respondent No. 3-complainant was merely the State Public Information Officer, however, there can be cases where there are more than one complainant/appellant before the Commission and so the respondents. The complete details of all the parties is required to be mentioned in the final order, which is generally termed as “memo of parties”.

It enables the next higher court to know as to who were the parties before the authority/court below. The aforesaid discrepancies in the procedure is on account of the fact that the Commission is manned by the officers, who are not judicially trained.. The aforesaid discrepancies in the procedure is on account of the fact that the Commission is manned by the officers, who are not judicially trained.

Paragraph 21. It is directed that in future the Commission shall

take care of the above factors while dealing with the cases. It is directed that in future the

Commission shall take care of the above factors while dealing with the cases.

Paragraph 22. Not only this, even the appeal decided by the first

appellate authority is not numbered. No date of filing of the same has been mentioned. These aspects of the matter shall be taken care of even by the appellate authorities and the State Public Information Officers.

Not only this, even the appeal decided by the first appellate authority is not numbered. No date of filing of the same has been mentioned. These aspects of the matter shall be taken care of even by the appellate



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authorities and the State Public Information Officers.

Paragraph 23. Further, in all complaints before the Public

Information Officer, the appeal before the first appellate authority or any proceedings before the Commission, it should be ensured that the applicant files his proof of identity along with the application. It is for the reason that in some cases, it has come to the notice of this court that the applicants were not identifiable. It would ensure that only the genuine persons file applications.

Only this paragraph was discussed and implemented by the Commission in its 18

th meeting.

Paragraph 24. For the reasons mentioned above, the writ petition

is allowed and the impugned order (Annexure-P8) passed by the Commission is set aside. The matter is remitted back to the Commission for hearing the parties concerned afresh including the petitioner and dispose of the same by passing a speaking order.

ORDER For the reasons mentioned above, the writ petition is allowed and the impugned order (Annexure-P8) passed by the Commission is set aside.

Paragraph 25. The parties shall appear before the Commission for

the purpose on 17.12.2012. As respondent No. 3-complainant before the Commission remained unrepresented before this court, notice may be issued to him by the Commission.

DIRECTION The case was not heard by the Commission on 17.12 2012 as per the online information available on the web site of the commission. It is a contempt of court.

Paragraph 26. A copy of the order be sent to Central Information

Commission, New Delhi, State Information Commission, Haryana and Home Secretary, Union Territory, Chandigarh, for compliance.

Parties impleaded for compliance.

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Documents

RTIFED Correspondence - 064A- 22 Jan 2014 - Despite HC Snub- Its Business as Usual at SICP