-: [rti4empowerment] सूचना आयुक्त - आरटीआई का संरक्षक या सुपारी-किलर :: उप्र में सूचना कानून का रक्षक ही बना भक्षक : मामले की न्यायिक जांच की मांग l

प्रिय मित्र,

अखिलेशराज में उत्तर प्रदेश में सरकारी तंत्र द्वारा आम जन को भयाक्रांत कर मनमानी करने की शुरुआत तो अखिलेश के सत्ता सँभालने के कुछ दिनों बाद ही हो गयी थी पर अब तो ये मामले आम हो गए हैं l लोक सभा चुनावों में मिली करारी शिकस्त के बाद राजनैतिक आकाओं की डाँट - डपट से बदहबास तंत्र अपना गुस्सा प्रदेश की निरीह जनता पर उतार रहा है l

इसी कड़ी में एक ऐसा अनोखा मामला सामने आया है जिसमे उत्तर प्रदेश के पूर्व मुख्य सूचना आयुक्त रंजीत सिंह पंकज ने बीते 6 जून को अपने अधिकार क्षेत्र से परे जाकर सूचना मांगने बाले को ही कारावास तक की सजा सुना दी है l राज्य सूचना आयोग कानूनन न्यायालय नहीं है पर पंकज ने बिना अधिकार के ही सीआरपीसी की धारा 345 के साथ पठित आईपीसी की धारा 228 के तहत न्यायालय की अवमानना की कार्यवाही में यह तुगलकी आदेश जारी किया है l

सीआरपीसी की धारा 345 में केवल किसी सिविल, दांडिक अथवा राजस्व कोर्ट द्वारा ही कार्यवाही की जा सकती है जबकि सर्वोच्च न्यायालय ने भारत सरकार बनाम नमित शर्मा की रिव्यू याचिका [ सिविल ] संख्या 2309 / 2012 के आदेश दिनांक 03 सितम्बर 2013 के द्वारा स्पष्ट कर दिया है.कि सूचना आयोग न्यायालय नहीं है इस लिए सीआरपीसी की धारा 345 इस मामले में लागू ही नहीं होती है l

आईपीसी की धारा 228 में केवल न्यायिक कार्य करने बाले लोकसेवक के मामले में ही कार्यवाही की जा सकती है जबकि सर्वोच्च न्यायालय ने भारत सरकार बनाम नमित शर्मा की रिव्यू याचिका [ सिविल ] संख्या 2309 / 2012 के आदेश दिनांक 03 सितम्बर 2013 के द्वारा स्पष्ट कर दिया है.कि सूचना आयुक्त न्यायिक कार्य नहीं करते हैं अपितु प्रशासनिक कार्य करते हैं इस लिए आईपीसी की धारा 228 भी इस मामले में लागू ही नहीं होती है l

आयोग किसी भी प्रकार से धारा 345 सीआरपीसी तथा/अथवा धारा 228 आईपीसी के अंतर्गत कार्यवाही करने का अधिकारी नहीं है l

आरटीआई एक्ट में सूचना आयुक्त की अवधारणा आरटीआई एक्ट के संरक्षक के रूप में की है पर मुझे यह कहने में कोई झिझक नहीं है कि यही सूचना आयुक्त आज भ्रष्टाचारियों से सुपारी लेकर आरटीआई एक्ट के किलर की भूमिका में सामने आये हैं और प्रदेश में आरटीआई एक्ट का गला घोंटकर आरटीआई एक्ट की मंशा की हत्या करने पर आमादा हैं l उत्तर प्रदेश में सूचना कानून के रक्षक के ही सूचना कानून के भक्षक बनने के इस मामले में मैंने उत्तर प्रदेश के राज्यपाल और सर्वोच्च न्यायालय के मुख्य न्यायाधीश को पत्र लिखकर न्यायिक जांच कराने की मांग की है l रंजीत सिंह पंकज हाल ही में सेवानिवृत हो चुके हैं अतः राज्यपाल द्वारा आरटीआई एक्ट की धारा 17 में प्रदत्त अधिकारों के अनुसार पंकज को पदच्युत किये जाने की आख्या मा० सर्वोच्च न्यायालय को अग्रिम कार्यवाही करने हेतु प्रेषित करने का कोई औचित्य नहीं होने के कारण ही मैंने न्यायिक जांच कराने की मांग की है l

उत्तर प्रदेश के राज्यपाल और सर्वोच्च न्यायालय के मुख्य न्यायाधीश को लिखे पत्र की प्रति इस पत्र के अंत मैं दी जा रही है जिसमे मैंने ये सभी बाते लिखी हैं l

पूर्व मुख्य सूचना आयुक्त रंजीत सिंह पंकज के तुगलकी आदेश की प्रति नीचे दिए वेबलिंक पर उपलब्ध है : http://upcpri.blogspot.in/2014/07/upsic-sentences-imprisonment-to-info.html

उत्तर प्रदेश के राज्यपाल और सर्वोच्च न्यायालय के मुख्य न्यायाधीश को लिखे पत्र की प्रति :

urvashi sharma

<rtimahilamanchup@gmail.com>

Fri, Jul 4, 2014 at 1:35 PM

To: hgovup <hgovup@nic.in>, hgovup <hgovup@up.nic.in>, hgovup <hgovup@gov.in>

Cc: supremecourt@nic.in

To,
By E-mail
Dr. Aziz Qureshi
The Governor of Uttar Pradesh
Uttar Pradesh Government,Lucknow
Uttar Pradesh, India,Pin Code-226001
hgovup[at]gov[dot]in "hgovup" <hgovup@nic.in>, "hgovup"
<hgovup@up.nic.in>, "hgovup" <hgovup@gov.in>,

Sub.: Ex. Chief Information Commissioner of Uttar Pradesh acted
arbitrarily beyond set principals of jurisprudence by sentencing
fine/imprisonment to info-seeker for his alleged act of contempt of
court : Request for a judicial probe into the matter

Sir,
This refers to order dated 06-06-2014, passed by Ex. Chief Information
Commissioner of Uttar Pradesh Sri Ranjit Singh Pankaj who acted
arbitrarily beyond set principals of jurisprudence and sentenced
fine/imprisonment to info-seeker for his alleged act of contempt of
court. Chief Information Commissioner passed the said order under
section 345 of CrPC read with section 228 of IPC.Scanned copies of
five pages of order of Chief Information Commissioner is attached with
this mail. Same can be downloaded from given web-link also:
http://upcpri.blogspot.in/2014/07/upsic-sentences-imprisonment-to-info.html

In this case my submissions are as given below :

1) Para 1 of order of State Chief Information Commissioner ( SCIC )
states background of case with details of base case related to seeking
the information by said info-seeker.

2) Para 2 & 3 of order of State Chief Information Commissioner ( SCIC
) elucidate allegations of biased & unlawful practices prevailing in
Uttar Pradesh State Information Commission ( UPSIC ) made by said
info-seeker. In the said order SCIC has not clarified his position on
VERACITY/FALSEHOOD of allegations as imposed by said info-seeker which
makes actions of SCIS dubious and needs to be investigated in the
light of base case related to seeking the information by said
info-seeker and subsequent proceedings of the case.

3) Para 4 of order of SCIC states that notice of Contempt of Court was
issued to said info-seeker U/S 345 of CrPC read with section 228 of
IPC.
Section 345 in The Code Of Criminal Procedure, 1973
345. Procedure in certain cases of contempt.
(1) When any such offence as is described in section 175, section 178,
section 179, section 180 or section 228 of the Indian Penal Code (45
of 1860 ), is committed in the view or presence of any Civil, Criminal
or Revenue Court, the Court may cause the offender to be detained in
custody and may, at any time before the rising of the Court on the
same day, take cognizance of the offence and, after giving the
offender a reasonable opportunity of showing cause why he should not
be punished under this section, sentence the offender to fine not
exceeding two hundred rupees, and, in default of payment of fine, to
simple imprisonment for a term which may extend to one month, unless
such fine be sooner paid.
(2) In every such case the Court shall record the facts constituting
the offence, with the statement (if any) made by the offender, as well
as the finding and sentence.
(3) If the offence is under section 228 of the Indian Penal Code (45
of 1860 ), the record shall show the nature and stage of the judicial
proceeding in which the Court interrupted or insulted was sitting, and
the nature of the interruption or insult.
Section 228 in The Indian Penal Code
228. Intentional insult or interruption to public servant sitting in
judicial proceeding.—Whoever intentionally offers any insult, or
causes any interruption to any public servant, while such public
servant is sitting in any stage of a judicial proceeding, shall be
punished with simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thou¬sand rupees, or with
both. State Amendment Andhra Pradesh.—In Andhra Pradesh offence under
section 228 is cognizable. [Vide A.P.G.O. Ms. No. 732, dated 5th
December, 1991].

4) Para 5 of order of SCIC states facts as given in reply of Info-seeker.
5) Para 6 of order of SCIC makes it clear that SCIC was bent-upon to
penalize the info-seeker and that's why the order was passed against
the law of natural justice as it was passed without providing
reasonable opportunity of defense to said info-seeker.

6) Paras 7,8,9 & 10 of order of SCIC states Para 106 of order of
Hon'ble Supreme Court of India passed in WP(Civil) No. 210/2012 etc.
and these paras are primarily based on said order of Hon'ble Supreme
Court of India. Plea taken by SCIC in these Paras are false and
misconceived. Moreover SCIC, with a conspire mindset to punish the
info-seeker at any cost, deliberately took no cognizance of order of
Hon'ble Supreme Court of India passed in REVIEW PETITION [C] No.2309
OF 2012 IN Re. WRIT PETITION [C] NO.210 OF 2012 on September 03,
2013, operative portion of this order is being reproduced below :
32. Under Order XL of the Supreme Court Rules, 1966 this Court can
review its judgment or order on the ground of error apparent on the
face of record and on an application for review can reverse or modify
its decision on the ground of mistake of law or fact. As the
judgment under review suffers from mistake of law, we allow the
Review Petitions, recall the directions and declarations in the
judgment under review and dispose of Writ Petition (C) No. 210 of
2012 with the following declarations and directions:
i) We declare that Sections 12(5) and 15(5) of the Act are not
ultra vires the Constitution.
ii) We declare that Sections 12(6) and 15(6) of the Act do not
debar a Member of Parliament or Member of the Legislature of
any State or Union Territory, as the case may be, or a person
holding any other office of profit or connected with any political
party or carrying on any business or pursuing any profession from
being considered for appointment as Chief Information
Commissioner or Information Commissioner, but after such person is
appointed as Chief Information Commissioner or Information
Commissioner, he has to discontinue as Member of Parliament or
Member of the Legislature of any State or Union Territory, or
discontinue to hold any other office of profit or remain connected
with any political party or carry on any business or pursue
any profession during the period he functions as Chief
Information Commissioner or Information Commissioner.
iii) We direct that only persons of eminence in public life with
wide knowledge and experience in the fields mentioned in
Sections 12(5) and 15(5) of the Act be considered for
appointment as Information Commissioner and Chief Information
Commissioner.
iv) We further direct that persons of eminence in public life with
wide knowledge and experience in all the fields mentioned in
Sections 12(5) and 15(5) of the Act, namely, law, science and
technology, social service, management, journalism, mass media or
administration and governance, be considered by the Committees under
Sections 12(3) and 15(3) of the Act for appointment as Chief
Information Commissioner or information Commissioners.
v) We further direct that the Committees under Sections 12(3) and
15(3) of the Act while making recommendations to the President
or to the Governor, as the case may be, for appointment of
Chief Information Commissioner and Information Commissioners
must mention against the name of each candidate recommended,
the facts to indicate his eminence in public life, his
knowledge in the particular field and his experience in the
particular field and these facts must be accessible to the
citizens as part of their right to information under the Act after
the appointment is made.
vi) We also direct that wherever Chief Information Commissioner is
of the opinion that intricate questions of law will have to be
decided in a matter coming up before the Information Commission,
he will ensure that the matter is heard by an Information
Commissioner who has wide knowledge and experience in the field of
law.

7) Hon'ble Apex court arrived at conclusions as given in Para 6 of
this letter on the basis of facts as detailed by Apex court in Paras
21,22,23 & 24 of order passed in REVIEW PETITION [C] No.2309 OF 2012
IN Re. WRIT PETITION [C] NO.210 OF 2012 on September 03, 2013 which
are being reproduced below :
21. In the judgment under review, this Court after
examining the provisions of the Act, however, has held that there is
a lis to be decided by the Information Commission in asmuch 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 withheld 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. As has been held by
Lord Greene, M.R. in B. Johnson & Co. (Builders), Ltd. v. Minister
of Health (supra):
"Lis, of course, implies the conception of an issue
joined between two parties. The decision of a lis, in the
ordinary use of legal language, is the decision of that issue. The
What is described here as a lis – the raising of the objections to
the order, the consideration of the matters so raised and
the representations of the local authority and the objectors – is
merely a stage in the process of arriving at an administrative
decision. It is a stage which the courts have always said
requires a certain method of approach and method of conduct, but it
is not a lis inter partes, and for the simple reason that the local
authority and the objectors are not parties to anything that
resembles litigation."
22. In the judgment under review, this Court has also held
after examining the provisions of the Act that the Information
Commission decides matters which may affect the rights of third
parties and hence there is requirement of judicial mind. For
example, under Section 8(1)(d) of the Act, there is no obligation
to furnish information including commercial confidence, trade
secrets, or intellectual property, the disclosure of which would
harm the competitive position of the third party, unless the
competent authority is satisfied that the larger public interest
warrants the disclosure of such information. Similarly, the right to
privacy of a third party, which is part of his personal liberty
under Article 21 of the Constitution, may be breached if a
particular kind of information, purely of personal nature may be
directed to be furnished by the concerned authority. To protect
the rights of third parties, Section 11 of the Act provides that
where a Central Public Information Officer or a State Public
Information Officer, as the case may be, intends to disclose
any information or record or part thereof, may on a request made
under the Act,which relates to or has been supplied by a third party
and has been treated as confidential by that third party, a written
notice will have to be given to such third party inviting such party
to make a submission in writing or orally, regarding whether the
information should be disclosed, and such submission of the third
party can be kept in view while taking a decision about disclosure
of the information. The decision taken by the Central Public
Information Officer or the State Public Information Officer, as the
case may be, under Section 11 of the Act is appealable under Section
19 of the Act before the information Commission and when the
Information Commission decides such an appeal, it decides only
whether or not the information should be furnished to the citizen
in view of the objection of the third party. Here also the
Information Commission does not decide the rights of a third party
but only whether the information which is held by or under the
control of a public authority in relation to or supplied by that
third party could be furnished to a citizen under the provisions
of the Act. Hence, the Information Commission discharges
administrative functions, not judicial functions.
23. While performing these administrative functions, however,
the Information Commissions are required to act in a fair and
just manner following the procedure laid down in Sections 18, 19 and
20 of the Act.But this does not mean that the Information
Commissioners are like Judges or Justices who must have judicial
experience, training and acumen. In Harinagar Sugar Mills Ltd. v.
Shyam Sunder Jhunjhunwala and Others (supra), Hidayatullah, J,
explained:
"33. In my opinion, a Court in 'the strict sense is a
tribunal which is a part of the ordinary hierarchy of
Courts of Civil Judicature maintained by the State under
its constitution to exercise the judicial power of the State. These
Courts perform all the judicial functions of the State except
those that are excluded by law from their jurisdiction. The word
"judicial", be it noted,is itself capable of two meanings. They were
admirably stated by Lopes, L.J. in Royal Aquarium and Summer and
Winter Garden Society v. Parkinson (1892) 1 QB 431(452) in these
words:
"The word 'judicial' has two meanings. It may refer to
the discharge of duties exercisable by a judge or by
justices in court, or to administrative duties which need not
be performed in court, but in respect of which it is necessary to
bring to bear a judicial mind - that is, a mind to determine
what is fair and just in respect of the matters under
consideration."
That an officer is required to decide matters before
him "judicially" in the second sense does not make him a
Court or even a tribunal, because that only establishes that he is
following a standard of conduct, and is free from bias or interest."
24.Once the Court is clear that Information Commissions do not
exercise judicial powers and actually discharge administrative
functions, the Court cannot rely on the constitutional principles of
separation of powers and independence of judiciary to
direct that Information Commissions must be manned by persons
with judicial training, experience and acumen or former Judges of
the High Court or the Supreme Court. The principles of separation
of powers and independence of judiciary embodied in our
Constitution no doubt require that judicial power should be
exercised by persons with judicial experience, training and acumen.
For this reason, when judicial powers vested in the High Court were
sought to be transferred to tribunals or judicial powers are vested
in tribunals by an Act of the legislature, this Court has insisted
that such tribunals be manned by persons with judicial experience
and training, such as High Court Judges and District Judges of
some experience. Accordingly, when the powers of the High Court
under Companies Act, 1956 were sought to be transferred to
Tribunals by the Companies (Amendment) Act, 2002, a
Constitution Bench of this Court has held in Union of India v. R.
Gandhi,
President Madras Bar Association (supra):
"When the legislature proposes to substitute a tribunal in
place of the High Court to exercise the jurisdiction which
the High Court is exercising, it goes without saying that the
standards expected from the judicial members of the Tribunal and
standards applied for appointing such members, should be as
nearly as possible as applicable to High Court Judges, which are
apart from a basic degree in law, rich experience in the practice
of law, independent outlook, integrity, character and good
reputation. It is also implied that only men of standing who have
special expertise in the field to which the Tribunal relates,
will be eligible for appointment as technical members. Therefore,
only persons with a judicial background, that is, those who
have been or are Judges of the High Court and lawyers with the
prescribed experience, who are eligible for appointment as High Court
Judges, can be considered for appointment as judicial members."
In Pareena Swarup v. Union of India (supra), having found that
judicial powers were to be exercised by the Appellate
Tribunals under the Prevention of Money- Laundering Act, 2002
this Court held that to protect the constitutional guarantee of
independence of judiciary, persons who are qualified to be
judges be appointed as members of the Appellate Tribunal.
But, as we have seen, the powers exercised by the Information
Commissions under the Act were not earlier vested in the High Court
or subordinate court or any other court and are not in any case
judicial powers and therefore the Legislature need not provide for
appointment of judicial members in the Information Commissions.

8) Apex Court has made it clear that Information Commissions do
not exercise judicial powers and actually discharge administrative
functions only and also that the Information Commissions
discharges administrative functions, not judicial functions. Hence
pleas made by SCIC in Para 7,8,9, 10,11,12 & 13 are entirely
misconceived and on the face of it prove misuse of power by SCIC with
the mala fide intent to intimidate the class of awakened citizen who
are using Right to Information to expose irregularities to curb
corruption in public life.

9) It appears that SCIC was a dead corrupt person who was working as
an agent of the corruption ridden public servants. Perhaps this was
the reason that SCIC never issued notices of contempt to the
Government officials who failed to recover fines imposed U/S 20 of RTI
act 2005 or comply the other interlocutory orders passed by UPSIC. As
per details uploaded on website of UPSIC, there were 3479 cases in
which financial penalties were imposed on PIOs up-to 31-01-2014. The
details are available at http://upsic.up.nic.in/4-1-B.pdf weblink. A
large no. of these penalty orders have not been complied so far but
contempt proceedings have never been initiated against any of the
public servants who have failed to comply penalty orders of UPSIC.

10) The law has been settled in Grindlays Bank versus Central
Government Industrial Tribunal & others 1980(Supp) SCC 420 that the
power of statutory review must be conferred as one of law whereas the
power of procedural review is inherent or implied in any court. In
absence of so, no court or quasi judicial authority can exercise the
power of substantial review. Thus it is clear that no review lies on
merits unless a statue specifically provided for it. While deciding
appeals & complaints, SCIC works as a quasi-judicial authority.
Penalties imposed by SCIC under section 20 of RTI act 2005 are imposed
after giving reasonable opportunity of hearing. Rolling back of
imposed penalty is exercise of power of substantial review of its
earlier decision of imposition of penalty by SCIC. This is not a
procedural review at all so it cannot be done by SCIC unless clearly
specified in some rules. SCIC Sri Ranjit Singh Pankaj was said to be
withdrawing penalty orders after taking bribes from the PIOs. This
matter should also be investigated thoroughly.

11) RTI act 2005 envisages and conceptualizes State Chief information
Commissioner as the Apex custodian of RTI act in the state but facts
and figures as detailed in this letter of mine makes it clear that Ex.
State Chief information Commissioner Sri Ranjit Singh Pankaj has acted
as if he were a contract-killer hired by the corrupt public servants
to strangle RTI act in Uttar Pradesh and this is the reason that led
SCIC to deliberately ignore the law as laid down by apex court in
REVIEW PETITION [C] No.2309 OF 2012 IN Re. WRIT PETITION [C] NO.210
OF 2012 on September 03, 2013 and pass the said order against the
info-seeker. Ex. Chief Information Commissioner of Uttar Pradesh acted
arbitrarily beyond set principals of jurisprudence by sentencing
fine/imprisonment to info-seeker for his alleged act of contempt of
court.

12) Sec 17(1) of RTI act 2005 says that subject to the provisions of
sub-section (3), the State Chief Information Commissioner or a State
Information Commissioner shall be removed from his office only by
order of the Governor on the ground of proved misbehavior or
incapacity after the Supreme Court, on a reference made to it by the
Governor, has on inquiry, reported that the State Chief Information
Commissioner or a State Information Commissioner, as the case may be,
ought on such ground be removed and Sec 17(3) of RTI act 2005 says
that notwithstanding anything contained in sub-section (1), the
Governor may by order remove from office the State Chief Information
Commissioner or a State Information Commissioner if a State Chief
Information Commissioner or a State Information Commissioner, as the
case may be,— has acquired such financial or other interest as is
likely to affect prejudicially his functions as the State Chief
Information Commissioner or a State Information Commissioner. Since
SCIC has retired so there is no question of action of removal of SCIC
under these clauses of RTI act 2005 so through this letter of mine I
am requesting your goodself for a judicial probe into this matter and
punish Ex. Chief Information Commissioner of Uttar Pradesh Sri Ranjit
Singh Pankaj as per the law of the land.

Copy for information & necessary action to :
1- Hon'ble Mr. Justice R.M. Lodha
Hon'ble the Chief Justice of India
Supreme Court of India, New Delhi.
e-mail:supremecourt@nic.in

Attachments :1- Five scanned copies as detailed above
2- Text of complaint

Date : 04-07-2014

Sincerely yours,

Urvashi Sharma
Secretary - YAISHWARYAJ SEVA SANSTHAAN
101,Narayan Tower, Opposite F block Idgah
Rajajipuram,Lucknow-226017,Uttar Pradesh,India
Contact 9369613513
Right to Information Helpline 8081898081
Helpline Against Corruption 9455553838

http://upcpri.blogspot.in/

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