Central Information Commission
Mohit Kumar Gupta vs Institute Of Chartered Accoutant Of ... on 10 June, 2019
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
Decision no.: CIC/ICAOI/A/2018/629505/00854
File no.: CIC/ICAOI/A/2018/629505
In the matter of:
Mohit Kumar Gupta
... Appellant
VS
Central Public Information Officer
Institute of Chartered Accountants of India
ICAI Bhawan, Indraprasth Marg, New Delhi - 110 002
... Respondent
RTI application filed on : 16/12/2017 CPIO replied on : 15/01/2018 First appeal filed on : 17/03/2018 First Appellate Authority order : 17/04/2018 Second Appeal dated : 24/08/2018 Date of Hearing : 10/06/2019 Date of Decision : 10/06/2019 The following were present:
Appellant: Present alongwith Mr. Narvinder Thakran, Advocate. Respondent: Shri Dinesh Kumar Mishra, Assistant Secretary & CPIO, Mrs. Seema Gerotra, JD & FAA alongwith Ms Shaleen Suneja, Deputy Director & Shri S K Garg.
Information Sought:
The appellant has sought the following information:
1. Provide the number of CA students who have registered and de-registered/lapsed registration in each year 2005, 2006, 2007, 2008, 2009, 1 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017 (Details category and year wise be provided) for the following courses:
I. B.Com, BBA, M.Com and MBA programmes of Bharathiar University under MOU with ICAI.
II. B.Com and M.Com programmes of IGNOU under MOU with ICAI.
2. Provide the number of CA students who have applied for examinations (details of the candidates who filled the examination forms) in each year 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017 (Details category and year wise be provided) for the following courses:
I. B.Com, BBA, M.Com and MBA programmes of Bharathiar University under MOU with ICAI.
II. B.Com and M.Com programmes of IGNOU under MOU with ICAI.
3. Provide the number of CA students who have passed examination (provide along with PASSING PERCENTAGE) in each year 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017 (Details category and year wise be provided) for the following courses:
I. B.Com, BBA, M.Com and MBA programmes of Bharathiar University under MOU with ICAI.
II. B.Com and M.Com programmes of IGNOU under MOU with ICAI.
4. And other related information.
Grounds for Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that there has been a primary failure by the First Appellate Authority in refusing to entertain the request for personal appearance despite stating so categorically in his first appeal. His point was that the hearing was desired for placing his arguments for the condonation of delay in filing the First Appeal and the First Appeal itself. He further submitted that the day before his four First Appeals were out rightly rejected, he had a tele-conversation with the First Appellate Authority which was an informal conversation and on the basis of that conversation, the First Appellate Authority has rejected his prayer for condonation of delay alongwith dismissal of his First Appeal and there is no precedent that a tele-communication tantamounts to a personal hearing. He stated that this was only done because 2 File no.: CIC/ICAOI/A/2018/629505 as a final year student in the CA examination, he had filed a petition before the Hon'ble Delhi High Court against the Institute. He also submitted a copy of the CD wherein all his conversations with the First Appellate Authority were recorded.
At this point, the concerned officers of the respondent organization strongly objected with regard to the submission of call recordings in CD form stating that such evidence should not be taken on record as it was an informal conservation between both the parties and the recording was done without the consent and information of the other party. As a matter of fact, the FAA never calls any appellant on her own and it was only a return call to the appellant.
The Commission notes that the appellant has clandestinely recorded the conversation between him and the First Appellate Authority which cannot be accepted as evidence for the record of the Commission as this cannot be considered a formal communication. The appellant is advised not to repeat such activities in future.
To substantiate his submissions, he relied on an order passed by a coordinate bench of this Commission in the matter of R.K. Jain vs. Department of Legal Affairs, Government of India (CIC/SA/A/2014/000254), in which following observation was made:
"Passing orders in first appeal without hearing or sending hearing notice is illegal and will render the order invalid. The Commission sets aside the order of First Appellate Authority for violating RTI Act and breach of natural justice by denying the appellant a chance of presenting his case and by raising entirely a new defence which was never claimed. Commission finds it deserves action though the concerned officer retired from service and recommends Public Authority to initiate disciplinary action against the concerned FAO for acting totally against the RTI Act in this case."
The CPIO submitted that an appropriate reply was provided to the appellant and hence his First Appeal was rejected out rightly as no more relief could have been provided to the appellant.
3The first Appellate Authority submitted that under the RTI Act, there is no specific provision for giving an opportunity of personal hearing to the appellant. She also stated that undoubtedly the principles of natural justice has to be followed on case to case basis and unless and until the FAA feels that the matter is important and requires the appellant to be heard, in such cases only, a chance is given to the appellant to appear personally and to represent his case. It was her decision based on the perusal of the facts mentioned in the First Appeal memo that personal hearing was not provided to the appellant nor was the delay of 22 days condoned as there was no cogent reason on the part of the appellant for such delay.
Observations:
From a perusal of the relevant case records and considering the averments put forward by both the parties, the main issue for determination before the Commission is whether the First Appellate Authority's order of dismissing the First Appeal without affording an opportunity to explain the delay of 22 days in filing his First Appeal and also not providing him a chance to present his case of dissatisfaction on the reply of the CPIO is legal and justified.
The appellant submitted that the case merits remand to the First Appellate Authority for giving an opportunity of hearing to the appellant, first regarding the aspect of condonation of delay, and secondly on the subject matter of the RTI application. The concerned FAA who was also present during the hearing submitted that she has passed a reasoned order while dismissing the First Appeal. At this point, it is important to quote verbatim the observation given by the FAA in her order which is reproduced below:
"I have also perused the request of the appellant for condonation of delay in preferring this appeal and noted that the reasons furnished by the appellant are very vague and general in nature. The reason that the appellant was busy in preparation of CA Final Examination cannot be said to be a justified one, entitling the appellant for the condonation of delay in preferring this appeal."
Here, it is needless to say that rendering an opportunity of hearing to the parties is a fundamental principle of jurisprudence. It is conducive to fairness and transparency and is in accordance with the principles of natural justice. An 4 File no.: CIC/ICAOI/A/2018/629505 opportunity of hearing to the parties also brings greater clarity to the adjudicating authorities. This Commission always gives an opportunity of hearing to the parties but this does not appear to be usually done by the FAAs, as probably there are practical difficulties therein, partly arising out of the number of appeals involved and partly due to the limited time frame in which the matters are required to be decided. However, in cases where an appellant specially asks for such a hearing before the FAA, such an opportunity should be granted. The essence of the RTI Act is to provide complete, correct and timely information to the appellant. In this particular case, the FAA has also declined to condone the delay of 22 days in filing the First Appeal by the appellant and has not even granted hearing for hearing his reasons for such delay. The Commission notes that the reasons put forth by the appellant in his first appeal are genuine and reasonable and this short delay of 22 days could have been condoned by the First Appellate Authority. The least that could have been done was to provide a fair chance of representing his case before the Appellate Authority.
.. The principles of natural justice signify the basic minimum fair procedure which must be followed while exercising decision making powers. Natural justice forms the very backbone of a civilized society.
The wheels regarding the application of principles of natural justice to administrative and quasi-judicial proceedings started turning from 1963 when the House of Lords in the United Kingdom delivered the landmark and often quoted judgment of Ridge v. Baldwin [1963] UKHL 2. An order for dismissal of a Constable was quashed because he was not provided any opportunity to defend his actions. Presently, in our country, the principles of natural justice are applicable in totality to administrative and quasi-judicial proceedings. This is consistent and in line with the rapidly increasing role, functions and jurisdiction of such bodies in a welfare state like ours.
The below-mentioned passage of the Hon'ble Supreme Court in the case of Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 exhaustively explains the term natural justice which is reproduced below for ready reference:
5"6. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted Writ Petition No.6427/2017 considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009 issued by the DoPT while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
Decision:
The Commission notes that the manner of dismissal of the first appeal by the FAA without granting an opportunity for personal hearing after the appellant has specifically asked for a hearing goes against the principles of natural justice. The FAA in this case without hearing the appellant concluded that the case needs to be dismissed being time barred, without providing an ample opportunity to the appellant to justify the delay in filing the appeal and this 6 File no.: CIC/ICAOI/A/2018/629505 reflects unreasonable handling of the first appeal, driving the appellant to file Second Appeal. Therefore, the Commission advices the First Appellate Authority not to repeat this practice of not hearing the appellant when a hearing is specifically sought .Keeping in view the facts of the case and the submissions made by both the parties and in the light of the observations and decisions cited above, the Commission remands the matter to the FAA, Mrs. Seema Gerotra to re-examine the RTI application/ First Appeal and pass a reasoned decision after hearing both the parties, within a period of 30 days from the date of receipt of this order in accordance with the provisions of the RTI Act, 2005.
The appellant is at liberty to approach the Commission by way of a fresh Second Appeal with regard to the above mentioned RTI application in case such need arises.
The appeal is accordingly disposed of.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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