Central Information Commission
Venu Akula vs Directorate General Of Foreign Trade on 12 June, 2020
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
File no.: CIC/DGOFT/A/2019/133695
In the matter of:
Venu Akula ...Appellant
VS
Central Public Information Officer,
Directorate General of Foreign Trade (DGFT),
4 Sector Room No- 210, Udyog Bhawan,
New Delhi- 110011
...Respondent
RTI application filed on : 24/01/2019 CPIO replied on : 12/02/2019 First appeal filed on : 13/03/2019 First Appellate Authority order : 09/04/2019 Second Appeal dated : 02/07/2019 Date of Hearing : 11/06/2020 Date of Decision : 11/06/2020 The following were present:
Appellant: Advocate Dominic Mario Fernandes, the representative of the appellant, heard over phone.
Respondent: Shri K V Tirumala, Deputy Director General of Foreign Trade & the FAA alongwith Ms Alka Bhateja, the CPIO, heard over phone.
Information Sought:
The appellant has sought the following information with regard to the non- applicability of Actual User Condition on transferred DFIA's:
1. Provide the appropriate provision of law/section/clause/paragraph/ notification/Public Notice/ Circular/ Trade Notice or any other official document which expressly states that:1
"Actual user condition is not applicable on transferred DFIAs", which is referred to by the Deputy Director General of Foreign Trade, DGFT, vide letter F.No-01/94/180/72/AM18/PC-4/17 dated 04.04.2018., as follows:
"3 (b) Actual user condition is not applicable on transferred DFIAs."
2. Copy of the documents connected to the information sought.
Grounds for filing Second Appeal The CPIO has not provided the specific information.
Submissions made by Appellant and Respondent during Hearing:
The representative of the appellant submitted that an unsatisfactory reply was given to the appellant by the then CPIO who in his reply has simply referred to the Chapter under which the desired information was to be available. However, he had specifically asked for the particular paragraph under that chapter which expressly states that the actual user condition is not applicable on transferred DFIAs, which was referred to by the Deputy Director General of Foreign Trade, DGFT, vide letter F.No-01/94/180/72/AM18/PC-4/17 dated 04.04.2018. He further submitted that in this case , the FAA had no authority to pass any order being of the same designation as the CPIO who gave the reply and also he passed a non-speaking order.
The FAA, Shri R V Tirumala submitted that an appropriate reply was given to the appellant by the CPIO on 12.02.2019 as there is no specific paragraph where it is mentioned that the actual user condition is not applicable on transferred DFIAs. There being no such specific paragraph in the policy, the reply given was based on a holistic reading of the policy which is how the DGFT interprets the matter.
At this point, the representative of the appellant raised an objection and submitted that if there is no particular paragraph in the chapter referred to by the CPIO which exclusively says that the actual user condition is not applicable on transferred DFIAs, then the CPIO was bound to inform the same in his reply rather than giving a vague and general reply.
Observations:
Having heard the submissions of both the parties and after perusal of the relevant case records, it is noted that the reply of the CPIO was not proper as 2 was rightly pointed out by the representative of the appellant during the hearing that the CPIO has failed to provide a categorical reply to the information sought by him. For clarity of the facts, the appellant through his RTI application sought information on the particular paragraph or provision which expressly states that the actual user condition is not applicable on transferred DFIAs, which was referred to by the Deputy Director General of Foreign Trade, DGFT, vide letter F.No-01/94/180/72/AM18/PC-4/17 dated 04.04.2018. However, the CPIO in his reply dated 12.02.2019 has simply referred to the Hand Book of Procedure and the relevant Para under the title Duty Free Import Authorisation (DFIA) chapter 4 of Foreign Trade Policy. There was no mention of any specific paragraph which can be referred to by the appellant for getting the desired information. During the hearing, the FAA explained that there is no specific para or provision which states that the actual user condition is not applicable on transferred DFIAs and hence the CPIO cannot create any information which is not available. nor. The contents of the letter dated 04.04.2018 referred to by the appellant was given by reading the policy in a holistic manner by such officers who deal with the subject matter day in and day out . Hence, what is not specifically mentioned or available on the records cannot be provided to the appellant. The Commission accepts the submissions of the FAA, however, the same was to be communicated to the appellant at the relevant time in the form of a reply. Under such circumstances, the present CPIO is directed to provide a categorical reply to the appellant in writing as per the oral submissions made by the FAA during the hearing.
It was also brought to the notice of the Commission that the CPIO and the FAA in this particular case were of the same designation/rank. It is pertinent to mention that under Section 19(1) of the RTI Act, 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 the 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 the State Public Information Officer, as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is 3 satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
From a plain reading of this section, it is clear that the First Appellate Authority should be senior in rank to the CPIO .. At the First Appellate stage, the CPIO's reply is under challenge mostly and the duty of the FAA is to address the issues raised by the appellant in his first appeal while passing a speaking order and as a general principle, the FAA should be in a commanding position vis a vis the CPIO so that any direction given by him should have been followed as an order by an officer who is subordinate to him This shows clear violations of the provisions of the RTI Act in the respondent organisation if this is factually correct..
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, 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:
In view of the above, the CPIO is directed to give a revised reply to the appellant on the same lines as per the oral submissions made by the FAA during the hearing. This direction is to be complied with within a period of 15 days after the lockdown is lifted under intimation to the Commission.4
An advisory u/s 25(5) of the RTI Act is also issued to the DGFT, New Delhi to look into the matter, particularly to ensure that the First Appellate Authority is senior to the CPIO and passes his own orders.
The appeal is disposed of accordingly.
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
Copy to:
2.The Director General Of Foreign Trade
Directorate General of Foreign Trade (DGFT),
4 Sector Room No- 210, Udyog Bhawan,
New Delhi- 110011
5