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Person seeking information under Right to Information
Act is not required to given reasons for information he seeks
Facts
In the present case information regarding medical report of
a convict admitted to hospital during period of imprisonment was sought under
Right to Information Act.
The said information was refused by placing reliance on the
Declaration of Geneva Convention (1948) adopted by the 2nd General Assembly of
World Medical Association, Geneva, Switzerland. The public information officer
also relied on Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations (2002).
Held
The contention of the private citizen seeking information
is that the larger public interest requires that this information be
disclosed, as persons in high office or high positions or the like, in order
to avoid serving their term in jail/prison or orders of detention or remand to
police custody or judicial remand with the connivance of officials get
themselves admitted into hospitals. The public, therefore, has a right to
know, as to whether such a person was genuinely admitted or admitted to avoid
punishment/custody and thus defeat judicial order. The public’s right in such
case, it is submitted, must prevail over the private interest of such third
person. The court must bear in mind the object of the Right to Information Act
which is to make the public authorities accountable and their actions open.
The court observed that the contention that the information may be misused is
of no consequence, as Parliament wherever it has chosen to deny such
information has so specifically provided. The right to privacy now forms a
part of right to life.
A consideration of provisions of Act would indicate that
ordinarily the information sought for by a person must be made available and
such person need not give reasons for the information he seeks. Another
important aspect of the matter is that in respect of information relating to a
third party the concerned Public Information Officer must give notice to the
third party and if such third party makes submissions then to consider the
said submissions. The test always in such matter is between private rights of
a citizen and the right of third person to be informed. The third person need
not give any reason for his information.
The Right to Information Act, is an enactment by Parliament
and the provisions contained in the enactment must, therefore, prevail over an
exercise in subordinate legislation, if there be a conflict between the two.
The Regulations framed under the Indian Medical Council
will have to be read with sec. 8(1)(j) of the Right to Information Act. So
read it is within the competence of the concerned Public Information Officer
to disclose the information in large public interest or where Parliament or
State Legislature could not be denied the information. If patients are to be
admitted in hospital for treatment then those employees in the hospital are
duty bound to admit only those who are eligible for admission and medical
treatment. The records of such institution, therefore, ought to be available
to Parliament or the State Legislature. The Parliament/Legislature and/or its
committees are entitled to the records even if they be confidential or
personal records of a patient. Once a patient admits himself to a hospital the
records must be available to Parliament/Legislature. Provided there is no
legal bar. The Right to Information Act would, therefore, prevail over the
said Regulations.
In the instant case information regarding medical report of
convict admitted to hospital was refused by placing reliance on the
Declaration of Geneva Convention (1948). Even if India is a signatory to the
said declaration, Parliament has not enacted any law making the declaration a
part of the Municipal Law. It is well settled that in the absence of
Parliament enacting any law adopting the convention, the convention by itself
cannot be enforced. It is only in the area of Private International Law. In
jurisdictions like admiralty/Maritime, that international conventions are
enforced based on customary usage and practice. That however, will be subject
to the Municipal law if there be any. In the absence of the convention being
recognized by law duly enacted, the provisions of the Convention cannot really
be enforced.
In the instant case considering that the petitioner was
convicted for contempt and was sent to jail and thereafter spent larger part
of his prison term in hospital the right of a public to be informed would
normally outweigh the right of the petitioner to hold on to his medical
records.
Surupsingh Hrya Naik vs. State of Maharashtra AIR 2007 Bom
121
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Power of Attorney is effective and operative only during
lifetime of donor
A power of attorney granted by the donor to the donee is
operative and effective only during the lifetime of the donor. The donor and
donee stand in relationship of master and agent. Since the actions done by the
donee are deemed to be actions done on the part of the donor, naturally such a
power of attorney cannot be operative or be effective after the demise of the
donor. Therefore, in the instance case the power of attorney granted by one
Mr. Jain on 28-5-1997 came to an end on 20-10-1997 upon his demise. Any
transaction entered by the donee after demise of the donor would be illegal
and void.
It is also not conceivable that the donee did not know
about the death of donor. For, the power of attorney is given to a person who
is a person of trust.
Prahlad & Ors vs. Laddevi & Ors AIR 2007 Raj 166
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Professional misconduct
Acquisition of additional qualification by member of
institute would neither amount to misconduct nor professional misconduct.
Facts
A notification dated 3-8-1989 was issued by the Council of
Institute of Chartered Accountants of India prescribing that if any member of
the said Institute obtained the qualification of the Chartered Financial
Analyst on or after 1-1-1990; or having obtained the said qualification
earlier did not surrender the same before the said date, would be held to be
guilty of professional misconduct in term of the provisions of the Chartered
Accountants Act, 1949 (for short, ‘the Act’). The validity of the said
notification was challenged.
Held
The Institute is constituted under a Parliamentary Act. It
is governed by the provisions thereof as also the rules and regulations framed
thereunder. It being a statutory authority must confine its activities within
the four corners of the statute. Section 7 of the Act debars a person from
using a qualification; it does not prohibit him from acquiring a
qualification. If, therefore, any member of the Institute intends to acquire a
qualification, the same being an inherent and human right cannot be a subject
matter of prohibition until and unless there exists any statutory interdict
therefore.
Whether misconduct has been conducted or not would depend
upon the nature of misconduct said to have been committed. A misconduct must
be definite or precise but subject to its generic meaning in absence of any
statutory definition. When a person is otherwise entitled to acquire any
additional qualification, such qualification per se cannot be termed to be a
misconduct in its generic sense. A distinction must be drawn between a
misconduct committed by an employee and a professional misconduct. In the case
of the latter, the person in the profession precisely knows that is expected
of him. It may not be possible to lay down all such misconducts but it would
be too much to contend that even an acquisition of an additional qualification
would come within the purview thereof. Such a broad meaning defy all norms.
The notification dated 3-8-1985 amount to excessive
restriction and it is well settled that excessive restriction which is not
required in the public interest is not reasonable and hence not saved by
Article 19(6) of Constitution of India and liable to be struck down.
Institute of Chartered Financial Analysts of India & Ors
vs. Council of Institute of Chartered Accountants of India & Ors. AIR 2007 SC
2091.
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Ex parte decree due to non appearance of counsel liable to
be set aside
Facts
The counsel engaged by the defendant did not appear before
the Court on the day fixed for hearing. The court decided to proceed ex parte
and examined the witnesses present in the court and heard the arguments and
reserved its judgment to be pronounced later in the day. The court rejected
the application for recall of the order to pronounce the ex parte judgment and
passed a ex parte order.
Held
Though counsel of the defendant were not careful enough to
inform the court about their preoccupation before the High Court which
prevented them from being present in his Court when the case was called for
hearing. But the passing of an ex parte decree in a case of such a nature
would be too harsh a consequence to be upheld. The defendant could not be made
to suffer an ex parte decree particularly when he was not at fault, having
duly instructed his counsel to appear before the Court. Further, though the
District Judge could not entertain an application under O. 9 R. 7 CPC, and
even the application under O. 9 R. 13 was dismissed as not pressed. But
nothing prevented the High Court from setting aside the ex parte decree in the
appeal preferred against it. The ex parte order was liable to be set aside.
Lal Devi & Anr vs. Vaneeta Jain & Ors AIR 2007 SC 1889
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Issuance of wrong mark sheet by Board of Secondary
Education amounts to deficiency in service. Consumer Protection Act, sec.
2(1)(g)
One of the candidates had lost one year due to issuance of
wrong mark sheet by the Board of Secondary Education. Due to such deficiency
the candidate had cascading and cumulative effect on his whole life.
The National Consumer Commission held that the Board of
Secondary Education is duty bound to issue error less mark sheet to its
candidates and the Board was liable to pay compensation to the candidate for
deficiency in service.
Secretary, Board of Secondary Education, Orissa vs. Ms.
Sasmita Moharana AIR 2007 (NOC) 1614 (NCC) – 2007 (3) ALJ 441 (DB)
Issuance of erroneous encumbrance certificate seriously
prejudice the rights of the parties and increases litigations and disputes
with regard to immovable property the Joint Sub-Registrar or concerned officer
could be proceeded under the Consumer Protection Act, 1986 in case of issuance
of encumbrance certificate without noting all the relevant transfers,
encumbrances or transactions with regard to immovable property since issuance
of enumbrance certificate is a service and facility to be provided under the
statutory rules for fees, further for carrying out search or for obtaining an
encumbrance certificate, a person is required to pay prescribed fees and in
case of emergent search, double the normal rates of the fees. Under the Rules,
the encumbrance certificate is required to contain complete list of
encumbrances affecting the immovable property. At the time of search and for
copying the entries, precautions are contemplated under the Rules and the
search is required to be carried out in the presence of the registering
officer. Joint Sub-registrar or the Registrar appointed under the registration
Act have to discharge duel function. One is statutory and the other is
administrative in the nature of rendering of service or facility to the
consumers. If the concerned officer acts negligently in omitting to note, the
encumbrances or transfer of immovable property it would certainly cause
prejudice to valuable rights of consumer/complainant and would amount to
deficiency in service consequently in case of deficiency in service in issuing
erroneous and defective encumbrance certificate, the concerned officer
including the Joint Sub-Registrar would be liable for deficiency in service
and could be proceeded under the Consumer Protection Act, 1986.
Joint Sub-Registrar District Registrar’s Office,
Shanmugapuram vs. TMT Maragathan AIR 2007 (NOC) 1616 (NCC) – 2007 (3) ALJ 451.
