Dear Col Kurup
I agree that this should be resolved for academic interest. As
requested, I am setting out all the sections I am relying on.
1) Once a request is submitted u/s 6 and PIO does not reply at all
(ie. "fails to give decision") in time, he is deemed to have "refused"
the request- qv.sub-section 7(2)
2) At this point it is open to Applicant to either file complainant
u/s 18(3) for "refusal" (PREFERRED option) or go in for First Appeal
u/s 19(1) which is also allowed ("does not receive a decision in the
time ..."). Since the word "may" is used in 19(1) it is NOT
"obligatory" to file First Appeal for deemed refusal as you have stated.
3) Once the Applicant files First Appeal to the Appellate u/s 19(1),
the alternate remedy of 18(3) gets barred to him. (NB: You may not
agree with this but it is true)
4) Section 19(3) also specifically provides that where the First
Appellate does not give decision within the time it *SHOULD HAVE BEEN
MADE*, then a 2nd Appeal lies to CIC/SIC. This is specifically
provided for by
"19(3) A second appeal against the decision under sub-section (1)
shall lie within ninety days from the date on which the decision
should have been made or was actually received, with the Central
Information Commission or the State Information Commission:".
Now by 19(6) it is defined that the time for decision in First Appeal
is 30 days (or 45 days in special circumstances).
5) So in the circumstances, IMHO the S'CIC was justified in treating
your Complaint as 2nd Appeal for your benefit.
6) Since this issue is quite important, I wish that other members may
also comment.
Sarbajit
--- In [email protected], "colnrkurup" <[EMAIL PROTECTED]> wrote:
>
> Dear Mr.Sarabajit,
> This time I find it diffcult to agree with you for a change. May
> I request you to have a look at Section 19(3) again ? "A second
> appeal against the decision under sub-section (1) shall lie
> within....." That means a second appeal can be made only against the
> decision on first appeal. When there is no decision at all, how can
> one make a second appeal ? Second appeal against what ? Section 18
> (c) is very specific ... " who has not been given a response to a
> request for information within the time imits ..." Here both the PIO
> and AA have not given a respnse. The Act does not say that a
> complaint to SIC is not maintainable when a First appeal is made.
> Again I would like to draw your attention to Section 19(1) which says
> that "Any person who does not receive a decision within the time
> specificed in sub-section (1).....may within thirtry days from the
> expiry of such period ......"
> Hence when I did not receive any response from PIO it is obligatory
> on my part to make a first qappeal under 19(1). When no decision
> under 19(1) also is not received I have absolutely no choice other
> than making a complaint. In case I make a second appeal on receipt
> of reply I am forgoing my chance to make second appeal when I receive
> the reply based on SIC's direction and the reply malafidely deny the
> information. I have absolutely no doubt on it. The Act also isvery
> clear in this respect without any ambiguity.I can convince you unless
> you can quotethe section of theAct in support of your view.
> Now, What is the use of my attending the hearing without knowing
> what to defend ? SIC is not a court. I need not PROVE my case.
> Whatever I have submitted in my complaint is adequate.This is more so
> when I have intimatted that I have nothing more than what is given in
> my complaint to add requestting the SIC to decide the case asper my
> pleading.Why should theSIC callme for hearing without intimating the
> purpose ? What stop him from communicatting the reply furnished by
> the PIO. This caseof mine is solid where theSIC has committed all
> possible irregularities. Ultimately how can theSIC dismiss my case
> suo motu converting my complaint into a second appeal when I had not
> made a second appeal. Shall we argue this out on accademic
> interest ?
>
