Monday, September 1, 2014

RTI act-PIO can't say "file missing or not traceable"-CIC


RTI ACT- PIO cant say "file missing or not traceable" -CIC

Sh.Om Prakash Vs. Land & Building Dept, GNCTD CIC File No.CIC/DS/A/2013/001788SA

RTI ACT- PIO cant say "file missing or not traceable"-CIC [Prof M. Sridhar -Member Commissioner ]

Moot Points :
  • PIO cant say "file missing or not traceable "it is not one of the exceptions of RTI act 

  • PIO has to prove that file was destroyed after following due procedure established by law [destruction of records] 
-- 


"Unless proved that record was destroyed as per the prescribed rules of destruction/ retention policy, it is deemed that record continues to be held by public authority. Claim of file missing or not traceable has no legality as it is not recognized as exception by RTI Act. By practice ‘missing file’
cannot be read into as exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record,
in the form of ‘not traceable’ or ‘missing’. The Public authority also has a duty to designate an officer as Records Officer and protect the records. A thorough search for the file, inquiry to find out public servant responsible,
disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform." 


Full Text of order of CIC 


http://www.rti.india.gov.in/cic_decisions/CIC_DS_A_2013_001788-SA_M_138483.pdf

Sunday, August 31, 2014

Fundamental Right to Travel Abroad-Delhi High Court

Fundamental Right to Travel Abroad:Delhi High Court

The Delhi High Court upheld "Right to Travel Abroad " :

Gist of the case :
Petitioner lost pass port ,the application for new pass port was rejected on the ground that petitioner was negligent in handling important document,the petitioner said " his antecedents are good and he traveled abroad many times".
Held : Delhi H.C ordered new pass port to be issued afresh to petitioner and directed the petitioner to pay Rs 50,000 as [cost]fine for negligent handling of pass port,the amount to be deposited in Lok Nayak Jai Prakash Narayan Hospital, New Delhi, within a period of four weeks..


Full Text of Judgment :

IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 5141/2013 & CM APPL. 11557/2013

SH. AVIKASH                                                    ..... Petitioner
Through: Ms. Suman Kapoor, Advocate with petitioner in person.

versus

UNION OF INDIA & ANR.                            ..... Respondents
Through: None.

Date of Decision : 07th July, 2014

CORAM:

HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T

MANMOHAN, J: (Oral)
1.Despite a pass over, none has appeared for the respondents.
Consequently, this Court has no other option, but to proceed ahead with the matter.
2. It is pertinent to mention that the present writ petition has been filed seeking re-issuance of Passport in favour of the petitioner or in the alternative issuance of fresh Passport in favour of the petitioner.
3. Admittedly, petitioner has lost his Passport thrice and the fourth time it has been returned in a damaged condition.
4. Respondents in their counter affidavit have taken the stand that petitioner has failed to keep a valuable Government document safely. They W.P.(C) 5141/2013 Page 2 of 3 have drawn this Court’s attention to the Passport Manual 2010 which states that  if an applicant loses his Passport thrice and thereafter damages his Passport, his  name shall be placed in the ‘Prior Approval Category’ for a maximum period of three years.
5. Learned counsel for petitioner states that petitioner has clear antecedents and had peacefully visited foreign countries on the Passport issued to him for short terms for recreational purposes on visitor visas.
6. Learned counsel for petitioner states that though the petitioner has lost his Passport thrice,yet there was no malafide on his part.She emphasises that the petitioner had not intentionally misplaced and/or damaged his Passport.
She denies that petitioner has taken any benefit of any loss or damage to the Passport.
7. Having heard learned counsel for petitioner and having perused the paper book, this Court is of the view that every citizen has a Fundamental Right to travel abroad and to have a Passport issued in his name. In Mrs. Maneka Gandhi vs. Union of India and Another, (1978) 1 SCC 248, the Supreme Court has held that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently, no person  can be deprived of this right except according to procedure prescribed by law.
8. Section 6(2) of the Passports Act, 1967 stipulates the grounds on which  a Passport can be refused.
9. It is not the stand of the respondents that the case falls in any of the  grounds mentioned in (a) to (i) enumerated in Section 6(2) of the Passports Act, 1967.
10. As far as the Passport Manual 2010 is concerned, this Court finds that  after loss of Passport on three occasions, the Ministry is empowered to place  the name of the said individual in ‘prior approval category’. However, the W.P.(C) 5141/2013
same is not mandatory. The power to place the name of the individual in ‘Prior  Approval Category’ is a discretionary one, to be exercised for valid and cogent  reasons like malafide intent as prescribed in paras 3.11 and 3.12 of Passport  c gb Manual.
11. In the present case, no material has been placed on record to show that there was any malafide intent on the part of the petitioner. No incident or event showing misuse of any of the lost/damaged Passport has been placed on record.
12. The fact that the damaged Passport was voluntarily got cancelled by petitioner through the respondents, proves the bonafide of the petitioner.
13. Since the petitioner’s brother is also stated to be settled in Australia, this Court is of the view that not issuing a Passport to the petitioner would amount to violation of his Fundamental Right.
14. Consequently, present writ petition and application are allowed and respondents are directed to re-issue Passport in favour of the petitioner or in alternative issue fresh Passport in favour of the petitioner.
15. However, as the petitioner has been remiss in taking care of his Passport, the petitioner is directed to pay costs of Rs.50,000/- to be paid to Lok Nayak Jai Prakash Narayan Hospital, New Delhi, within a period of four weeks.

 MANMOHAN, J

JULY 07, 2014

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