RTI Act -
Applicability to Cooperative Societies
Analysis on: RTI ACT
for Cooperative Society, Applicability?
In general anticipation of atleast a consolation relief,
scores of Society members and related activists have been consistently yearning
for the Coop. Societies to come within the ambit of the Right to Information
Act.
CONTRARY to the
increasing yearning:
01.Direct application
of "Right To Information Act", CAN-NEVER-EVER be applicable to
Non-Aided Coop. Societies of any kind (including Housing Societies). Coop.
Society is a group of members, means OF the members, BY the members, FOR the
members, ONLY.
REASON: The
office-bearer of a Non-Aided Coop. Society “CANNOT” be classified as a “Public
Information Officer” (u/s 2(l)), simply because they are not within the pay
ambit defined for “Public Information Officer”, which further means that a
“Public Information Officer”, must mandatorily be a Public servant or a Govt.
Servant (refer section 20(2), who must be drawing Salary from the Public
coffers, which in any case cannot be stated /defined for a office-bearer of a
Coop. Society.
02. Applicability of
"Right To Information Act", to the Cooperative Society’s is
wishful thinking (flying Horses). However, selective information from a
Cooperative Society can be obtained by making an RTI Application u/s 2(f) to
the competent Public / Govt. Servant (example: to the Deputy / Assistant
Registrar of Cooperatives), since he alone is bound by law (as a State PIO) to
obtain relevant documents from the coop. Society AND THEN provide it to the RTI
applicant.
Quote u/s 2(f):
[Information relating to any private body which can be accessed by a public
authority under any other law for the time being in force]
a) NOTE: Such
procurable information under RTI, would only be in the nature of documents
relating to the Society Registration & Membership details, the Audited
Balance-Sheet, the registered Bye-Laws, the minute books of the Managing
Committee meetings, the minute books of the General Body meetings and so on.
BUT to the exclusion of any further documents concerning the Society’s
business.
b) NOTE: U/s 32
of the MCS Act, 1960, “restrictions” are already in place for providing
information about its own members to other members in the same Society, leave
aside providing information to non-members (means the Public). The provisions
of the RTI Act, would not be able to supersede the established “autonomous
provisions” of the MCS Act, and on the contrary would be contrary to the
established provisions of the MCS Act.c) For obtaining any & all
(information) copies of the various records & registers of the Society,
other legal options have to be adopted.
03. Scores of Coop.
Society members and related activists are being mislead by some
self-glorifiers, that the office-bearer of a Coop. Society, has become a
“Public authority" u/s 2(h), just simply because now the Coop. Society has
become a “self government established /constituted under the Constitution (97th
Amendment) and/or under the State Legislature”, WHEREAS to the contrary, a
“Public Authority” can only be a person who is a Public / Govt. servant, which
is mandatory. In the case of a Coop. Society, its office-bearers CAN NEVER be
classified as a Public / Govt. servant.
NOTE: The Gujarat
High Court has declared on 22-04-2013, that “Articles 243ZH to 243ZT" of
the 97th Constitutional amendment are “ultra vires”. These articles were
SPECIFICALLY & SPECIALLY related to the Coop. Society’s. The MCS
(Amendment) Ordinance, 2013, of 15-02-2013 is based on Constitution [97th
amendment] Act, 2011, making it as infructuous.
04. A non-aided Coop.
Society is not liable to answer ANYBODY (to the exclusion of its own
members), for the profit / loss earned OR on the admission /rejections of
memberships OR making expenses for the Society OR any other business (under MCS
Act) of the Society. The decision of a autonomous Coop. Society is
challengeable selectively /alternatively before the Coop. Registrar and/or
before the Coop. Court.
05. WHO IS A
"Public Authority u/s 2(h)" of the RTI Act.
a) A Public Authority is mandatorily a Public servant or a
Govt. Servant (u/s 20(2) and should necessarily be drawing Salary from the
Public coffers.
b)The senior most officer of the relevant Public /Govt.
dept., appoints a competent officer for the "additional" post of
"Public Information Officer (PIO)" (u/s 2(l), for the purposes of RTI
Act, who is classified as a "State PIO", meaning he works for the
particular State of India.
c) The PIO (u/s 2(l), is mandatorily a Public /Govt.
Servant, mandatorily drawing his salary from the Public coffers alongwith the
relevant pay benefits, holidays, retirement benefits and so on.
d) A PIO cannot be honorary or a voluntary Public /Govt.
servant, simply because there is no such provision under the present laws, for
a “Public /Govt. servant” to work without Salary & other retirement
benefits.
e) The RTI-PIO, mandatorily being a “Public /Govt. servant”
and drawing Salary from the “Public Coffers” CANNOT hold any “office of
profit”, which in turn means that he cannot conduct any Business or join any
other private job, till he remains a Public servant or a Govt. Servant.
f) Presently no Public servant or Govt. servant is
designated as a stand-alone Public-Information-Officer. A PIO is logically a
person holding an additional post apart from his usual post. By example a PSU
bank manager, is a PIO for his branch, which means the bank manager is a
Bank-Manager cum PIO. The Appellate authority, mandatorily has to be next in
rank (u/s 19(1)), and in a PSU bank it is generally the Deputy General Manager
who holds multiple positions viz. Deputy General Manager cum (&) Appellate
Authority (RTI). Here the "Public Authority u/s 2(h), too would be the
Deputy General Manager cum Appellate Authority (RTI)
g) Information under RTI, can be sought from Public / Govt.
Dept., for any periods, even for the previous 30 years. Records have to be
mandatorily maintained, preserved and/or reconstructed by the departments PIO.
The PIO is liable to provide correct information on time and in the format it
is sought for. Refusal /Failure of which, the PIO can be subject to
“departmental disciplinary action” u/s 20(2) & imposition of “penalty upto
25,000/-“ u/s 20(1).
h) NOTE:
Disciplinary action against the PIO, is possible under the "Service
Rules" applicable to the PIO as provided for u/s 20(2), which reinforces
the fact that the PIO has “mandatorily” to be “Public / Govt. servant” and the
“Code of Conduct of services rules”, is applicable to the State PIO.i) The PIO
is liable under The “Public Records Act, 1993", to maintain, preserve
and/or reconstruct the missing / mutilated public documents.
06.WHY a Coop Society
CANNOT appoint an RTI-PIO:
a) The office-bearers of a Coop. Society cannot be defined
as a "Public /Govt. servant", hence do not derive authority to
appoint a "Public Authority u/s 2(h) .OR. a PIO u/s 2(l)". ONLY &
ONLY a "Public / Govt. servant", derives the lawful authority to
appoint an "Public Authority u/s 2(h) or a PIO u/s 2(l)".
b) The office-bearers of a Coop. Society, cannot draw Salary
from the Public coffers alongwith the relevant pay & retirement benefits
and so on, simply because they are not classified as a "Public /Govt.
servant".
c) The office-bearers of a Coop. Society have to mandatorily
work as "Honorary Workers", (means without Salary) simply because
under the provisions of the MCS Act, Rules & Bye-Laws, there is simply no
provision for payment of Salary, pay benefits, holidays, retirement benefits
and so on. In exceptional events & subject to various parameters &
subject to "income over expenditure", a token "Honorarium
fees", MAY be given to the office-bearers of a Coop. Society. Honorarium
Fees are not defined as Salaries.
d) “Code of Conduct of services rules”, DO NOT apply to the
office-bearers of a Coop. Society, simply because they CAN hold any “office of
profit”, which in turn means that they CAN conduct any Business or join any
other private job, since they are not a Public / Govt. Servant. Hence nobody
can be appointed as a PIO of a Coop. Society, which means that RTI Act cannot
be made applicable to a Coop. Society.
e) IF AT ALL, a Coop. Society were to appoint an PIO, THEN
it would have to be from the "duly constituted" Mg.Committee itself
AND NOT from the members of the General Body, due to authoritive hurdles and
due to the fact that only the Secretary is liable for safe-keeping and
assessing the Society records. IF a Society Secretary is made the PIO (u/s
2(l), THEN the Appellate Authority (u/s 2(h) would be the Society Chairman,
which by default would mean & result in gross failure of the RTI movement
in a Coop. Society, given the evidently consistent gross Apathy, Ignorance,
Arrogance, Ego being cultivated in Coop. Societies.
f) Under the various parameters prescribed under the
provisions of the MCS Act, Rules & Bye-Laws, a Coop. Society is bound to
preserve its records for a maximum of 10 years, to the exclusion of the Society
Registration documents, the Share Certificate Books, the various registers
pertaining to its members, the various minute books pertaining to Mg. Committee
and General Body meetings, which are to be preserved life-long, in its original
state.
g) The Officer-Bearers of a Coop. Society has no authority
to reconstruct any Society records & registers, without the express
approval of Society General Body and the Final directions of the Coop.
Registrar, failure of which it will be termed as “Fraud & Forgery”. The
“Public Records Act, 1993” will not be applicable to Coop. Society’s. The
members records & registers of a Coop. Society are held in a
Fiduciary-in-Confidence u/s 8(1)(e), the information-disclosure of the same
would not warrant any larger public interest.h) The Officer-Bearers of a Coop.
Society, not being a Public / Govt. servant, cannot be penalized upto 25000/-
u/s 20(1), for Refusal /Failure to provide Information and neither can be
subject to “departmental disciplinary action” u/s 20(2). IF the PIO is a
office-bearer of a Coop. society, THEN the penalty upto 25000/- (u/s 20(1)),
cannot be recovered, simply because the office-bearer of a coop society work on
honorary basis and further the said penalty amount cannot be recovered from the
Coop. Society Coffers (i.e. members funds), THUS “jinxing” the provisions u/s
20(1) & 20(2) of the RTI Act.i) On an average the gross yearly salary for a
“Public /Govt. servant” is approx. 300,000/- per annum, specifically for a
person who could be competent enough to be designated as a PIO (RTI) cum
regular post. Similarly for an Appellate Authority (RTI) cum regular post, the
average gross yearly salary for a “Public /Govt. servant” is approx. 500,000/-
per annum, for a person who could be competent enough to be designated as a
Appellate Authority (RTI) cum regular post.
NOTE: A Coop.
Society does not have any “Public Coffer” to afford around Ten Lakhs annually,
to pay such PIO & Appellate Authority, leave aside the decade-old pending
expenses of repairing & painting the society buildings. This being further
so when the Coop. Society maybe a small Society with only 20 members, wherein
logically the Society cannot annually spend around Ten Lakhs to pay as Salary
to the PIO and the Appellate Authority.
07. BUMPER
INTROSPECTION:
a) IT would be infructuous to imagine that the Govt. would
designate a PIO for each Coop. Society, especially so when the Govt. wants the
Coop. Society to function on Autonomous mode, without the interference of the
Govt. & other persons with vested interests.
b) IT would be a further gross misconception to imagine that
the Govt. would pay the salaries of the PIO’s that would be required to be
designated for each Coop. Society.
08. INSTANT
INFALLIBLE SOLUTION:
a) Depending on the State Governments inclination towards
upholding the Cooperative Movement, AND under the powers vested u/s 157 &
158 of the MCS Act, the State Govt. may depute a dedicated "visiting
PIO", from the Coop. Dept., to each Coop. Society, on "fee-recoverable
basis" from the coop. society, who would authoritively access the Society
records & registers (u/s 80(3), 81, 83, 84, 89A) & provide all the
relevant information to the RTI Applicant.
b)The next-in-rank, means the "Appellate
Authority" under RTI Act, would obviously be the Deputy Registrar of the
ward, who would obviously be forced to sit-up from his apathy-chair, to uphold
the Coop. Movement, using his Suo-Moto powers /authority, to rectify the defect
shown by his own departments PIO.
c) This OBIVOUSY would instantly truncate out ALL the
consistent gross Apathy, Ignorance, Arrogance, Ego being cultivated in Coop.
Societies, besides disciplining the over-all needs & discontent of the
Society members.d) This could also alleviate unemployment, which is over 40% of
the gross population of any State. The educated unemployed would be more than
happy and the Registrar could delegate his authority to a "authorized
officer" who would be appointed as the PIO (under delegated authority), whose
fees would be recoverable from the Coop. Society, since the so appointed
"Authorised Officer cum PIO" would be covered as a Public Servant u/s
21 of the Indian Penal Code.
Source Courtsey:-Hemant Agarwal
(Legal Consultants)
