RE: [HumJanenge] Power of Information Commission to reconsider its decision

All statutory authorities have to act within the four corners of the powers conferred by the Statute. The only exception recognized for acting beyond those powers is where an order has been passed ‘without jurisdiction’. An order passed without jurisdiction is a “nullity” and can be ignored by anyone, including the IC; but if an order passed is within jurisdiction, it is not capable of being reviewed. Principles of ‘natural justice’ do not include the supposed right to rectify an error. An authority which has jurisdiction to make an order has jurisdiction also to make an incorrect order, which can be set right only by a superior authority. ‘Natural justice’  is a concept of ‘procedure’ not of ‘substance’. Thus failure to give an opportunity before passing an adverse order is hit by ‘natural justice’, taking decision in a case in which the judge has an interest is against ‘natural justice’. Similarly ‘bias’ violates ‘natural justice’; but passing an erroneous order does not constitute failure of ‘natural justice’. Thus an order of Penalty under Section 20 of RTI  Act cannot be termed to be contrary to natural justice simply because some grounds are set out later to mitigate the penalty. If a penalty is imposed @ Rs 300/- per day or the maximum Penalty amount is fixed at more than Rs 25,000/-, it would be without jurisdiction and can be set aside.

 

            Regards,

              KN

 

 

 

 

 

From the Desk of :

Justice Kamleshwar Nath

Retd.	:	Up-Lokayukta ( Karnataka ), Vice Chairman – C.A.T ( Allahabad ), Judge – High Court ( Lucknow & Allahabad )
Address	:	`Gunjan', C - 105, Niralanagar, Lucknow : 226 020. Uttar Pradesh, India
Phone(s)	:	+91-522-2789033 & +91-522-4016459. Mobile : +91-9415010746

 

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From: humjanenge@googlegroups.com [mailto:humjanenge@googlegroups.com] On Behalf Of Amitabh Thakur
Sent: Monday, December 13, 2010 12:49 PM
To: humjanenge@googlegroups.com; rti_india@googlegroups.com
Subject: [HumJanenge] Power of Information Commission to reconsider its decision

 

Friends, As we all know Section 20(1) of the RTI Act says that where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO has, without any reasonable cause, refused to receive an application for information or has not furnished information within the specified time or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information etc., it shall impose a penalty of two hundred and fifty rupees each day till application is received with a maximum penalty of Rs 25,000. It has a proviso that says that the PIO shall be given a reasonable opportunity of being heard before any penalty is imposed on him. In a particular case in which I was a complainant before the UP State Information Commission (SIC), the SIC had said in its order dated 22/06/2010- On the last date, the PIO Mr X was asked to provide the information or make it clear if the info cannot be given. Today the PIO did not appear nor did he inform of his reason for absence. Hence a fine under section 20 is being imposed with effect from the last date, 31/05/2010. The fine never got imposed and meanwhile the PIO presented dome representation seeking reprieve from the penalty. I also resented facts before the SIC saying that section 20 of the RTI Act does not seem to have a provision for reconsideration by the Information Commission. But on 19/11/2010, the SIC waived off its fine saying- “PIO says that at that time, B’s case was pending in the Central Administrative Tribunal. Hence there was some delay in providing information. Moreover the PIO was also on Earned Leave between 26/05/2010 and 13/06/2010. The PIO assures on not repeating this in future. The Commission is of the view that if a fine has been imposed on a PIO without his/her fault and if these facts come in the notice of the Commission, then the Principle of Natural Justice says that an innocent person shall not be unnecessarily punished. In this case the information has been provided and the PIO has not intentionally made any mistake. Hence the fine imposed previously is waived off.” There are a few factual mistakes in the order including the facts like- 1. Very huge delays were made in providing the information. The letter was sent to PIO on 29/05/2009 and then to the Appellate Authority on 05/10/2009. The information was finally given on 02/08/2010 after the fine was imposed 2. On the date on which fine was imposed, the PIO was not on leave but had already come back Then there is also a question of law. When the SIC made an order on 22/06/2010, it must have been made taking into considerations all the facts and circumstances. Can the SIC/CIC reconsider their own decisions? In what ways and circumstances? What does law say on this? I place all these facts before you to kindly guide me on this vital issue, based on your knowledge of law, so that I might proceed accordingly.   http://nspindia.com/amitabh%20essays.htm Amitabh Thakur Currently at IIM Lucknow # 94155-34526 www.nationalrtiforum.org