Right of appeal to whom? On 5th December, 2014, the Delhi High Court passed an order in a writ petition: R.K. Jain vs. Chairman, Income Tax Settlement Commission (ITSC) & others. The issue was whether ITSC, a Public Authority, has right to appeal to Information Commission.
Delhi High Court held as under:
The impugned order is set aside. However, it will also be open for the respondent (ITSC) to approach the CIC to assail the orders dated 26-09-2013 and 21-10-2013 passed by respondent no. 2(PIO) and respondent no. 4 (FAA ) respectively. Needless to mention that if an appeal is filed before the CIC by the public authority (the Income Tax Settlement Commission), the same would be considered is accordance with law.
[R. K. Jain vs. Chairman, Income Tax Settlement Commission & ors. in W.P. (C) 2939/2014, Delhi High Court Single Judge]
My Note: RTI activists are divided on the correctness of this order. One view is that Public Authority has no right to appeal to CIC [just like IT department (Assessing (AO) or CIT) has no right to appeal against the order of AO].
This view is held by Venkatesh Nayak, Programme coordinator of Commonwealth Human Rights Commission. His detailed analysis is as given below:
An Analysis of the Delhi high court order
1. Basic Facts:
1.1 In 2013, Mr. R. K. Jain, the Petitioner, sought some information under the Right to Information Act, 2005 (RTI Act) from the Income Tax Settlement Commission (Respondent #1) established under the Government of India. The information was in respect of disposal and pendency of matters before that public authority.
1.2 In September 2013, the Central Public Information Officer (CPIO) and Joint Commissioner of Income Tax passed an order furnishing the Petitioner, some of the requested information while denying other categories of information.
1.3 Aggrieved by the PIO’s refusal to furnish all the information sought in the RTI Application, the Petitioner submitted a first appeal under the RTI Act. The First Appellate Authority (FAA ) issued an order in October, 2013 partially allowing disclosure of some information which had been denied by the CPIO.
1.4 The Petitioner sent a letter to the Public Authority, two days later, demanding compliance with the FAA ’s order. Later in March 2014, he sent another reminder demanding that the information be disclosed as per the FAA ’s order. Less than a week later, the Petitioner received a communication from an officer of the public authority informing him that Respondent #1 had passed an order setting aside the order of the FAA and the CPIO on grounds of non compliance. The Petitioner challenged this action of Respondent #1 of passing an administrative order annulling the orders of the CPIO and the FAA , before the Delhi High Court through the instant Writ Petition.
2. J udgement of the Hon’ble Delhi High Court with Reasons:
2.1 T he Hon’ble Delhi High Court ruled that orders such as those passed by the CPIO and the FAA in exercise of their statutory powers cannot be declared as a nullity or void through an administrative order. The Court cited a couple of judgements to hold that even if an order is a nullity, it would continue to be effective unless set aside by a competent body or Court. It held that the Respondent was not authorised under the RTI Act to interfere with the orders passed under the RTI Act. The order issued by Respondent #1 was set aside.
2.2 The Court however left it open to Respondent #1 to approach the Central Information Commission (CIC) to assail the orders of the CPIO and the FAA . The Court held as follows:
“13. … Needless to mention that is an appeal is filed before the CIC by the public authority (the Income Tax Settlement Commission), the same would be considered in accordance with law.”
3. A Critical Analysis of the Decision and the Reasoning:
3.1 The Court’s decision to set aside the administrative order issued by the Respondent holding the orders of the CPIO and the FAA a nullity on account of non compliance is to be welcomed. Henceforth, any officer of a public authority having no statutory authority under the RTI Act will not be able to interfere with the process furnishing information under the RTI Act after a matter has been decided by the CPIO or the FAA .
3.2 H owever, it is respectfully submitted that the Court’s direction to the Respondent to approach the CIC amounts to creating a right of appeal which is contrary to the scheme of appeals provided for in Section 19(1) of the RTI Act. Before putting forth our detailed reasons for arriving at this opinion, it is necessary to point to a similar order of the Hon’ble Andhra Pradesh High Court (APHC) which seeks to create a right of appeal for the public authority under the RTI Act.
3.3 In the matter of Public Information Officer, Under RTI Act, Syndicate Bank, Regional Office, Mugulrajapuram, Vijayawada vs. Central Information Commission under Right to Information Act, New Delhi Etc., [2012 (2) ALT 348], the APHC ruled as follows:
“7. … in the opinion of this Court, the Public Information Officer cannot dawn [sic] the role of the Officer of the Public Authority in relation to orders passed by the appellate authorities against orders passed by him. If his order is reversed by the appellate authority, he cannot be treated as aggrieved party giving rise to a cause of action for him to question such Orders. It is only either the public authority, against whom the directions are given, or any other party, who feels application at hand. Aggrieved by such directions, that can question the orders passed by the appellate authorities.” [emphasis supplied]
3.4 The effect of the two judgments cited above is that a right of appeal is created for a public authority to challenge a decision of its own PIO or FAA before the CIC (or by logical extension before any other State Information Commission that may have jurisdiction in a given case).
3.5 In our humble opinion, Parliament had never intended for the appeals scheme to be used by other officers of a public authority to challenge the orders of their own PIO and FAA. Our detailed reasons are given below:
(I) Reason I, in our opinion, the two stage appeal process is created u/s. 19 of the RTI Act for the use of an aggrieved RTI applicant or any person who may be treated as a third party to an RTI application/ appeal. The relevant provisions are reproduced below:
“19. (1) Any person who, does not receive a decision within the time specified in sub section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: …
(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, u/s. 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.
(3) A second appeal against the decision u/s/s. (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: …”
The scheme of section 19 is crystal clear leaving no room for ambiguity. Only two categories of persons may challenge the decision of a PIO a) an aggrieved RTI applicant and b) a third party who is aggrieved by a PIO’s decision to disclose information pertaining to he/she/ it which is treated as being confidential by that third party. the PIO is statutorily empowered u/s. 5(4) read with section 5(5) of the RTI act to seek the assistance of any other officer of the public authority to perform his/ her appointed functions under the act. So, any reservations or reasons that other officers of that public authority might have against disclosure of the information sought by an RTI applicant must be placed before the Pio to arrive at a reasoned decision. Such reservations and reasons against disclosure are not binding on the Pio who is required to make a decision by applying his/her own mind to the RTI application at hand.
Further, section 19(1) only permits an aggrieved RTI applicant to submit a first appeal to an FAA on two grounds only, i.e., if no decision has been received from the Pio or if he is aggrieved by a decision of the Pio, namely, rejection of the request or partial disclosure. a third party to an RTI application may also submit a first appeal to the FAA u/s. 19(2). So, in our opinion, the scheme of the first appeal process does not contemplate any other right of appeal vesting in any other person including any other officer of the public authority.
Further, the opening line of section 19(3) is crystal clear it refers to a second appeal and not a fresh appeal against a decision made u/s. 19(1). in other words, an appeal that may be submitted against the faa’s order by the aggrieved RTI applicant or an aggrieved third party. It is not open for any other person including any officer of the public authority such as the concerned Pio to approach the concerned information Commission challenging the order of the faa. So in our opinion, a public authority does not have any right of appeal at the first or second appeal stage u/s.19 of the rti act.
(ii) Reason ii, the PIO is a serving officer of a public authority designated to perform the statutory duties of receiving an rti application and making a decision whether or not to disclose any or all of the requested information. Next, the FAA is an officer senior in rank designated by the said public authority to examine the correctness and validity of an order passed by the Pio. in effect, both officers are acting on behalf of the concerned public authority, even though they may be performing administrative or quasi judicial functions while making a decision on an rti application or appeal. in a complaint or second appeal submitted to the relevant information Commission, the PIO and the FAA appear as representatives of the public authority which appointed them. the RTI rules, 2012 notified by the Government of India do permit any other officer to represent the public authority in a second appeal proceeding along with or in lieu of the PIO or the FAA. 4 however nothing in the RTI act or the RTI rules, 2012 recognize the right of any other officer or the public authority itself to challenge a decision of its own Pio or faa through the appeals process. The only course of action available to a public authority to demand the setting aside of an order of the CIC is the route of judicial review by invoking the writ jurisdiction of the concerned high Court under article 226 of the Constitution. to hold that the public authority or any of its officers may challenge an order of their own Pio or faa amounts to acknowledging that the statutory authorities under the RTI act were not provided the required assistance at the application/first appeal stage for the Pio or the faa as the case may be to arrive at a reasoned decision. The failure of the public authority cannot be used as a ground for creating a right of appeal which was not originally contemplated by Parliament when it enacted the RTI Act.
(iii) Reason iii, there is authority to support the above opinion expressed by us. in the matter of Chief Information Commr. And Another vs. State of Manipur and Another [(2011) 15 SCC 1], the hon’ble Supreme Court of india explained the scheme of appeals provided for in the RTI Act in the following words:
“35. Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. …
42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. …
43. There is another aspect also. The procedure under Section 19 is an appellate procedure. a right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information.” [emphasis supplied]
Nowhere in its detailed explanation of the scheme of section 19 does the Hon’ble Supreme Court recognise the right of a public authority to any of its officers to challenge a decision of their PIO or FAA made under the RTI Act.
(iv) Reason iv, the manner of recognition of the right of a public authority or any of its officers to appeal against a decision of the designated PIO or FAA amounts to recognising a right that the public authority or its public officers may have in the information sought by the RTI applicant (except where the information is personal information of the concerned officers whose disclosure may cause unwarranted invasion of their privacy). In the matter of Union of India vs. Namit Sharma [(2013) 10 SCC 389] the Supreme Court explained the nature of an RTI-related dispute in the following words:
“21. In the judgment under review, this Court after ex- amining the provisions of the act, however, has held that there is a lis to be decided by the information Commission inasmuch as the request of a party seeking information is to be allowed or to be disallowed and hence requires a judicial mind. But we find that the lis that the information Commission has to decide was only with regard to the information in possession of a public authority and the information Commission was required to decide whether the information could be given to the person asking for it or should be with held in public interest or any other interest protected by the provisions of the Act. The information Commission, therefore, while deciding this lis does not really perform a judicial function, but performs an administrative function in accordance with the provisions of the act.” [emphasis supplied]
In deciding an appeal under the RTI act neither the FAA nor the information Commission is making a determination about the right that a public authority orany of its officers may have (except personal information of an officer whose disclosure may cause unwarranted invasion of his/ her privacy) in the information sought. A public authority is only a custodian of the information that it holds in material form which is an extension of its legally appointed role as the custodian of the public interest. All that the public authority is permitted to do is to put forth arguments regarding the public interest that must be protected by keeping the information confidential. This too must be done in the course of the first appeal or second appeal submitted by an aggrieved RTI applicant. The RTI act does not recognise any special right of either the public authority or any of its officers with regard to the information under dispute (except when it is personal information whose disclosure will cause unwarranted invasion of the privacy of an individual) which can be protected by invoking the appeals procedure provided u/s. 19.
4. Conclusion: in light of the foregoing critical analysis it is respectfully submitted that there is a strong case for challenging through appropriate proceedings, the directive of the Delhi High Court as well as the Andhra Pradesh High Court regarding the right of a public authority or any of its officers to invoke the appeals process against an order of disclosure of information made by their PIO or FAA under the RTI Act.
Against the said analysis and view, many other RTI activists hold the view that Public authority has a right to appeal to the Central information Commission.
Let us see when ITSC appeals to CIC, what view CIC holds or when R.K. Jain files appeal against the above delhi high Court order what the Supreme Court rules.
