The document appeared to be tampered as some sentences were added in different ink and different handwriting - CIC: The interested party should not hear the appeal as FAA - CIC- show cause notice for penalty and compensation issued
2. The appellant through his RTI application sought attendance related information about legal cell in NIOS (HQ) and its regional centres. The CPIO claimed information is not available. The appellant filed appeal before the first appellate authority (FAA) against the reply of the CPIO.
The FAA rejected his appeal. Dissatisfied, the appellant filed a second appeal before this Commission under section 19(3) of the RTI Act.
Proceedings Before the Commission:
3.The appellant was not present for hearing at stipulated time 12:30 PM. Mr. Sunil Kaura, Jt. Director (Admn), stated that the appellant was terminated due to his poor performance and since then harassing the public authority with vexatious and multiple RTI questions.
4. The appellant arrived at 2:30 PM as he was confused that the time given was 2:30 though it was 12:30 PM in the hearing notice. The Commission was satisfied with the reasons for delay and heard him. During the hearing the appellant stated that he has worked for two years as legal officer in NIOS and that the claim of the CPIO that he was not performing satisfactorily was not correct as his performance was graded as 8 on a scale of 10 in the performance report dated 13.10.2013 signed by Assistant Director (Admin.) and he was recommended for continuation. He said, later, in different ink, some other words were added (after word “recommended”) by Mr. Sunil Kaura which changed the recommendations totally, as after tampering, the sentence reads thus; ”......lack of experience in dealing with legal issues…. however recommended as he may pick up”. This document was also shown by appellant to the Commission and it appeared tampered as some sentences were added in different ink and different handwriting about his recommendations.
5. Appellant said that he wanted two months attendance records of Joint Director, Mr. Sunil Kaura to prove his “tampering” of his performance report as he was not present in office on the day. He further submitted that he was deprived of employment because he pointed out corruption in the institution. They have falsely projected that his performance was not satisfactory by manipulating the reports. Appellant said he is a post graduate in law and has served as a Judge of Senior Citizen Appellate Tribunal at New Delhi in past. He said now he is an active social worker. Appellant is seeking complete pointwise truthful information to prove misconduct of Mr. Sunil Kaura. He also mentioned that Mr. Sunil Kaura was the FAA and he had rejected the appeal.
6.In view of the aforesaid facts and circumstances and the principles of law the Commission finds that the public authority, NIOS has breached the law andthe settled principles of natural justice by allowing an interested party like Joint Director, Mr. Sunil Kaura to hear appeal of the appellant as FAA resulting in unjustified and biased judgement.
7.In Meenglas Tea Estate V. Workmen, AIR 1963 SC 1719, Supreme Court held that where it was alleged that the workmen had beaten the Manager; the Manager himself cannot conduct an enquiry against such workmen as he will be acting in his own cause.
8. In R. Vishwanathan v. Abdul Wajid AIR 1963 SC 1, it was observed that it is desirable that a judge should not take part in the determination of appeal against his own decision unless the statute expressly authorizes him to do so. The principle is that one who has made the decision having a judicial flavor should not participate in appeal arising from such a decision.
9. Commission noted that there is a strong prima facie case that Mr. Sunil Kaura might have tampered with the documents to wrongfully show that the appellant was not performing well. He along with other officers of NIOS has misled the Commission by misrepresenting facts in the hearing taking advantage of appellant’s absence.
10. Commission takes serious note of this, and exercising powers under section 19)(8) requires NIOS to submit concerned documents on which tampering was allegedly done for forensic examination and initiate necessary action against the culprit, based on the forensic report.
11. Commission directs CPIO and the Joint Director, Mr. Sunil Kaura to show cause why maximum penalty should not be imposed upon each of them for misleading the Commission and making allegations that the appellant was misusing the Act. Commission directs Mr. Sunil Kaura to show cause why disciplinary action should not be recommended against him for hearing first appeal being an interested party. Commission directs the public authority to explain why compensation of Rs. 50,000/ should not be paid to the appellant.
12. The above directions should be complied within 20 days from the receipt of this order. Commission orders accordingly.
(M. Sridhar Acharyulu)
Citation: Anil Kumar Gupta v. PIO, National Institute of Open Schooling in CIC/RM/A/2014/004572SA