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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