Re: [HumJanenge] PIO’s RESPOBSIBILITY AFTER RETIREMENT - ADVICE SOUGHT FROM EXPERTS

Dear Arora ji,   In this case, the legal opinion was not given by any outsider legal consultant (Advocate) but i perceive was obtained from some officer probably from the Jt. Secy. of CIC.    In the past in 2007, CIC put the following advice tendered by an advocate on its website.  This is still available on the CIC website under heading 'Legal Opinion'..  The name Mr. Prasad, to who the advise has been sent is not clear to me.   Legal Advice down-loaded from CIC's website on 23.5.2011.   New Delhi, Dated July 17, 2007   Dear Mr Prasad:   This is in response to your e-mail dated June 15,2007 sent to our Chief, Shri Wajahat Habibullah, Chief Information Commissioner. I was required to send a reply to you, but I am sorry for the delay in writing to you because of my extremely busy work schedule. Anyway, we must thank you for conveying your appreciation for the work being done by the Central Information Commission, specially for rendering justice to the appellants by imposing penalty under Section 20 of the RTI Act in appropriate cases, and for having consistently and unanimously taken the view that under Section 2(i) (a) "record" includes "file notings", though there are some dissensions in some quarters which we cannot help in view of our democratic system of Government where everyone is entitled to have his or her opinion.   So far as regards your other point regarding Section 23 of the RTI Act is concerned, we may inform you that notwithstanding the provisions contained in that Section we are flooded with a number of cases in Delhi High Court and other High Courts in India and we are somehow trying to manage this situation. Legally speaking, the type of so-called ouster clause contained in Section 23, or even the provision like the one contained in Section 21 of the RTI Act, does not give an absolute immunity to any administrative or quasi-judicial authority from being proceeded against in a court of law. Confining myself, for the present, only to the provisions of Section 23 of the Act, I may remind you that as far back as the year 1997 the Supreme Court of India in the case of *L. Chandra* *Kumari* Vs. *Union of India* , AIR 1997 SC 1125, had held that even though the decisions of the Tribunals established under Articles 323A and 323B of the Constitution were supposed to be final they were still subject to the writ jurisdiction of the various High Courts in India under Article 226 of the Constitution. In any case, the jurisdiction of the Supreme Court of India under Article 136 will remain intact, notwithstanding any legislative provision like Section 23 of the RTI Act ousting the jurisdiction of courts, unless, perhaps, the Constitution itself is suitably amended expressly debarring the jurisdiction of the Supreme Court.   On the question whether one public authority can stand against another public authority or not, I may refer to at least one Article of the Constitution i.e. Article 131 which envisages that one State may file a case against another State, or even the Central Government itself may file a case against one of the States in India before the Supreme Court of India   I hope I have answered all your queries.   With regards and appreciating your concern and appreciation for the work being done by the Central Information Commission.   Sincerely yours Professor K. K. Nigam, Legal Advisor, Central Information Commission, New Delhi kk.nigam@nic.in . --- On Sun, 22/5/11, Arora H.C. (Advocate) <h_c_arora@yahoo.co.in> wrote: From: Arora H.C. (Advocate) <h_c_arora@yahoo.co.in> Subject: Re: [HumJanenge] PIO's RESPOBSIBILITY AFTER RETIREMENT - ADVICE SOUGHT FROM EXPERTS To: humjanenge@googlegroups.com Date: Sunday, 22 May, 2011, 6:48 PM Sandeep Ji,   Please search out various orders of R.I. Singh given by him immediately after he joine as CIC Punjab. He has given a detailed order to the effect that legal opinion given by an advocate to the Public authority is liable to be dislocse, as it is not in fiduciary capacity.   Regards,   H.C. Arora --- On Sat, 21/5/11, sandeep kumar <drsandgupta@gmail.com> wrote: From: sandeep kumar <drsandgupta@gmail.com> Subject: Re: [HumJanenge] PIO's RESPOBSIBILITY AFTER RETIREMENT - ADVICE SOUGHT FROM EXPERTS To: humjanenge@googlegroups.com Date: Saturday, 21 May, 2011, 8:02 AM The work carried out by the IC is public activity so no question of section 8(1)(j). The advice given by the legal expert is not done in fiduciary capacity. It is based on payment received from public authority and is very much public information. On 5/20/11, M.K. Gupta <mkgupta100@yahoo.co.in> wrote: > > PIO's RESPOBSIBILITY AFTER RETIREMENT - > > I requested a copy of the legal advice given to the Information Commissioner > from the PIO, CIC about the action that can be legally taken against the > retired CPIO under section 18 and 19 of the RTI Act. > > Shri G. Subramanian, CPIO denied the information citing section 18(1) (e) > (Fiduciary Relationship) and Section 8(1) (j) (no relationship to any public > activity or would cause unwarranted invasion of the privacy of the > individual).  The issue is of immense importance. > > My first appeal against the above decision is listed for hearing on 25th > May, 2011.  I request for forwarding the additional grounds for the > hearing. > > In the first appeal, I have made following points: > > 1.                 That Section 18 (1)(e) states that it is the duty of the > Information Commission to receive and inquire into a complaint from any > person who believes that he has been given incomplete, misleading or false > information under the RTI Act. Thus, this nowhere bars the PIO to disclose > the aforesaid information. > 2.                 That if the advice is disclosed and disseminated, it will > help the Central and State Information Commissioners in the discharge of > their duties viz in taking decision in the cases where the PIO has retired. > 3.                 That the disclosure will also assist the Public > Authorities and PIOs by guiding and assisting them in the discharge of their > duties. > 4.                 That the disclosure will also help the RTI applicants as > they will know the scope to the RTI Act in cases where PIOs have retired and > will thus reduce the number of complaints and appeals. > 5.                 That the disclosure will end the vagueness in the matter > and every stake will have the clarity in such circumstance and will not act > in dark. > 6.                 That the section 8(1) (j) bars personal information which > has no relationship to any public activity or interest or which would cause > unwarranted invasion of the privacy of the individual unless the PIO is > satisfied that the larger public interest justifies the disclosure of such > information.  This section also states that the information which cannot be > denied to the Parliament shall not be denied to any person. > 7.                 That the onus is on the PIO to substantiate as to how the > legal advice on the accountability of a retired PIO has no relationship to > any public activity, would cause unwarranted invasion on the privacy of the > individual (PIO) and is not in the larger public interest. > 8.                 That again the onus is on the PIO to justify as to how > the clarification obtained on the legal provisions/ service rules can be > denied to the Parliament. > 9.                 That retirement of PIOs and government servants is an > on-going process and every month hundreds PIOs retire and the retirement of > the PIO in the aforesaid case is not a stand alone case. > 10.             That by disclosure of information will enable the PIOs to > know in advance, before retirement, about the action that can or cannot be > or cannot be taken against them for the act of Commission and Omission while > discharging their official duties. > 11.             That the RTI appellants/ complainants  should also know > about the feasible action so that they can make a follow-up of their cases > in the right direction for taking their cases to the logical conclusion > without leaving them half way or do not drag the case unnecessary. > ON FIDUCIARY RELATIONSHIP > > 12.             That the advice has been taken by one Constitutional > Authority from the other Constitutional or Government Authority in the > discharge of official duties assigned to them.  There are many decisions > that in the above circumstances, the information cannot be treated in > fiduciary relationship and its disclosure is in warranted under the RTI Act. > M K Gupta > -- Dr. Sandeep Kumar Gupta 989, Sector 15-A, Opposite bishnoi Colony, Hisar-125001, INDIA Phone: 91-99929-31181