dear Chitta Behera, For this excellent interpretation and information, please accept my hearty thanks.
With regards, Hari Goyal ________________________________ From: Chitta Behera <[email protected]> Sent: Thu, 2 September, 2010 3:15:38 AM Subject: [rti_india] Orissa Information Commission: A buffoon at large ! Orissa Information Commission: A buffoon at large! There are as many meanings of the word ‘buffoon’ as there are dictionaries – stupid, ludicrous, prank, jester, joker, clown, frolic and so on. The grand showman of Indian cinema Raj Kapoor was famous for his world class buffoonery (Awaara and Mera Naam Joker etc). Birbal being a buffoon himself made Akbar into a buffoon on so many occasions. Shakespeare had a tremendous knack for reducing great, great heroes into buffoons par excellence (Mark Anthony, King Lear etc.). An all-time showman Charlie Chaplin had made a buffoon out of Hitler during the latter’s heyday (Great Dictator). The Sanskrit equivalent of buffoon is however ‘Bidushak’, meaning a venerable artist adept in the game of wisdom. Thus, a buffoon is not necessarily an illiterate or ignorant person; rather, he is a highly gifted person who cultivates the rare skill of making himself or his art work a laughing stock for others. Back home, we have a person who needn’t cultivate buffoonery, because it is in his DNA. He is none other than Mr.D.N.Padhi Chief Orissa Information Commissioner who has served in this Avatar for more than 4 years and 9 months. Right since the day when he stepped into this office he has been presenting one after another his gimmicks of a rare brand, creating revelry, if not revulsion, among many including this humble author. The latest in the series is his Decision on a Complaint Case (C.C. No. 1476 of 2008 filed by Pradip Pradhan decided on 18/05/2010 available on Commission’s website http://orissasoochanacommission.nic.in/OrderDetails.aspx?qname=II%20Quarterly%20(April%20~%20June)%20&year=2010&type=Complaint%20Cases). As you can see, it is a Complaint Case under Section-18 of RTI Act, where the Complainant is Mr.Pradip Pradhan and Opposite Party is the PIO, School and Mass Education Dept, Govt of Orissa. Now read the opening sentence of the decision- “Complainant Pradip Pradhan is absent on call. His absence cannot be condoned today under Rule 9(2) of Orissa Information Commission (Appeal Procedure) Rules, 2006, as he had been specifically informed by summons dated 17.4.2010, sent by speedpost, to appear in person to reach a quick conclusion”. Let’s now quickly go over to Rule 9(2), referred by Mr.Padhi to denounce Mr.Pradhan’s absence as un-condonable- “The appellant or the complainant, as the case may be, may at his discretion at the time of hearing of the appeal or complaint by the Commission be present in person or through his duly authorized representative or may opt not be present.” Do the readers find any congruity between the meaning that transpires from a plain reading of Rule 9(2) and the meaning Mr.Padhi read into it? While the said Rule explicitly allows a complainant to ‘opt not to be present’, how come Mr.Padhi, if not a buffoon, say ‘his absence cannot be condoned’? Now, let’s look at another loaded sub-text of the above decision, where Mr.Padhi condemns the absence of Mr.Pradhan because ‘he had been specifically informed by summons’. The moot point arises, can the Commission issue ‘summons’ to a complainant or appellant to appear in a hearing? I know, Mr.Padhi in his eagerness to score some brownie points would immediately cull a particular line from Section-18 (3) of RTI Act 2005 that lists out several powers of the Commission including the power for ‘summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things’. Only going by this sub-sentence, in isolation from the rest of the sentence, Mr.Padhi seems to be absolutely justified in issuing ‘summons’ to Mr.Pradhan, because Mr.Pradhan is certainly a ‘person’. However, if you read the whole sentence and get at its implications, then only you come to know who are the persons whom the ‘summons’ can be issued and whom the summons can’t. At the risk of taxing the readers’ patience, I however feel undone to quote the full sentence under Section 18(3), at least its quintessential part to drive home the point at issue- “The Central Information Commission or State Information Commission, as the case may be, shall while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure,1908 in respect of the following matters, namely: - (a) summoning and enforcing the attendance of persons . . . . . . .(b)…………. (c)………(d)……. (e)…….. (f)……”. I bet Mr.Padhi to read it now since he seems to have skipped it in his decades-long career of civil service. It is absolutely clear from the above provision that the quasi-judicial ‘power to summon and enforce the attendance of persons’ or for that matter other five powers are not as such absolute, unconditional ones, but derivatives from the Code of Civil Procedure, 1908, which an Information Commission ought to exercise in the very manner prescribed in the said Code. Now Mr.Padhi ought to turn the pages of CCP to locate where his favourite ‘power to summon’ resides. For his benefit, here it is! - Sections 27 to 32 occurring in Part-1 of the Code 1908 that deal with ‘Summons and Discovery’. But unfortunately for him, the Section-27 itself is titled ‘Summons to Defendants’, which means that summons can only be issued against ‘Defendants’ or in the words of Commission against the ‘Opposite Party’, but never against a Plaintiff or in the words of RTI Act against a Complainant / Appellant. That being so, how come Mr.Padhi, if not a buffoon, dared at all to issue summons to Mr.Pradhan, who is but a complainant in the case. Now Mr.Padhi must also inform us, how many ‘summons’ by the Commission, in the exercise of their legitimate powers under Section-18(3) of RTI Act, were issued against the ‘defendants’ or in the words of Commission against the ‘Opposite Party’ and what sort of penalty, such as warrant for arrest, attachment of property, monetary fine and civil imprisonment, due against a defaulter of summons under Section 32 of the Code, awarded. To the best of my knowledge, not a single ‘summon’ proper has yet been issued against the opposite party, let alone award of punishment. On the contrary, Mr.Padhi has provided a safe haven to all the defaulting, fraudulent officers by a skewed interpretation, buffoon-like, of RTI law. Here is cited only a single instance to prove the point -S.A.No.119/2006 filed by Maheswar Padhy decided on 26/06/2008 available at http://orissasoochanacommission.nic.in/SecondAppeal.aspx?qname=II%20Quarterly%20(April%20~%20June)%20%20&year=2008%20&type=Second%20Appeal%20Cases). At Para-4 of the said decision, Mr.Padhi admits, “As regards the erring clerk Niranjan Pradhan (referred PIO) who is responsible for 10 days delay, it is reported that he is absconding from the office. The case is lingering due to his absence.” As such it is a fit case for issuing ‘summons’ against the said erring and absconding official under Section 18(3)(a) of RTI Act. But Mr.Padhi immediately marshals RTI Act itself in the service of the said absconder- “The first proviso to Section 20(1) of the Act mandates that before imposition of penalty on any erring official(s) he shall be given reasonable opportunity of being heard in as much as theburden of proof is on him as per the second proviso appended to the said Sub-section”. And the concluding line of the decision is more revealing, “The delay of 10 days caused by Niranjan Pradhan, Senior Clerk (referred PIO) will be taken up for consideration on receipt of information about his whereabouts from the Head of his office”. Needless to say, in the wake of such a decision by Mr.Padhi, the erring PIOs of the State have got a handy clue as to how to avoid the long arm of RTI law simply by absconding from the office altogether. It seems Mr.Padhi is again wanting in homework as regards the meaning of ‘burden of proof’. As a matter of fact, only a few statutes like RTI Act 2005 explicitly place the ‘burden of proof’ on the person against whom the complaint is made, other some examples being Section 304-B (Presumption as to Dowry Death) and 498A (Presumption as abetment to suicide of a married woman) of IPC 1860. In such situations, the concerned opposite parties are deemed guilty until and unless they prove their innocence before the court through the opportunity of hearing given to them through a due process of law. If an opposite party, for instance, simply absconds from his place to avoid his burden of proof, the court is competent enough, to issue ‘summons’ against that person to enforce his attendance, just as Section-18(3)(a) authorizes the Information Commission to do so. And if the opposite party still defaults, the Commission can proceed against him by taking recourse to the series of punitive measures as mentioned u/s 32 of CCP 1908. Alternatively, if the Commission sits back ad infinitum on the plea of absconding of the opposite party just as Mr.Padhi in his buffoon-like wisdom has done, the complainant shall never get justice nor shall the defaulter-absconder ever be brought to justice. It is further interesting to note that the Complainant Mr.Pradhan, soon after receiving Mr. Padhi’s high-voltage censure against his ‘un-condonable absence’ in defiance of ‘summons’, wanted to ascertain through RTI applications from horses’ mouths (namely Central Information Commission and State Information Commission) two simple facts- (1) whether summons can be issued against a complainant/ appellant at all, (2) if so, how many such summons have been issued in the past. While Orissa Commission completely evaded the answer except quoting verbatim Section-18(3) of RTI Act, the Central Commission however replied that no such summon has ever been issued till yet nor is there any provision under the Act to issue a summon against an appellant/ complainant. The moot point again arises, should Mr.D.N.Padhi not consult his peers at Central level and in other States instead of taking a unilateral, fanciful position on an all-important issue like summons? But as we know, Mr.Padhi won’t do it, since he is possessed of the bravado and genius of a master buffoon, which can only be matched by immediate conferment of a Nobel Prize for Peace. Chitta Behera, Cuttack, dt 2nd Sept 2010
