WWW.LIVELAW.IN CENTRAL INFORMATION COMMISSION (Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)

Phone: 011- 26181927 | Fax: 011- 26185088

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar) Central Information Commissioner

CIC/BS/C/2016/000025

Balendra Kumar v. PIO, M/o Labour & Employment RTI FAO Complaint Hearing Complainant Public authority

: : : : : :

Decided on

:

29.05.2015 11.08.2015 11.01.2016 03.04.2017 Absent Shri Sitaram, Under Secretary Shri V.S.Negi, SO 20.04.2017

INTERIM ORDER FACTS: 1.

The complainant sought details with regard to the file notings of all

corresponding papers of file no. DGE&T-A-32013/1/1996-Adm-II. The CPIO replied by stating the concerned file was not traceable. First appeal was filed. The FAA vide his Order dater 11.08.2015 stated that the notes of pages 1 and 2 of file no. DGE&T-Z-16012/03/2015-Adm.II and the copy of circular dated 30.06.2015 were enclosed. Being dissatisfied, the complainant preferred a complaint before this Commission.

Decision : 2.

The respondent authorities submitted that they made all possible efforts

to find out the missing file in question and even went to different sections of the concerned departments but all their efforts bore no fruitful results. The Commission dealt with the issue of ‘missing file’ in its earlier order dated 29.08.2014 in Omprakash vs. GNCTD vide file no. CIC/DS/A/2013/001788-SA, and stated: “...4. .... prima facie, public authority cannot deny the right of the appellant to get an alternative plot, by putting forward an excuse of missing the file. The defense of missing file cannot be accepted even under the RTI Act. If the file is really not traceable, it reflects the inefficient and pathetic management of files by

WWW.LIVELAW.IN the Public Authority. If the file could not be traced in spite of best efforts, it is the duty of the respondent authority to reconstruct the file or develop a mechanism to address the issue raised by the appellant. 5. The Commission feels that lodging of FIR is not the remedy in such cases, as one cannot expect the Police to come to the office and trace the file. According to law, Police does not have any responsibility to trace the missing files, as they will come into picture only when there is theft of the files. It cannot be said that police should come to office and search for the files or things misplaced by negligence or deliberate action or by mistake etc. It is the duty of the PIO to make necessary efforts to trace the file and inform the same to the appellant in the form of an affidavit. Duty of the public authority 6.

The public authority has a duty to designate “Public Records Officer” as per

Public Records Act 1993. This Act is made to regulate the management, administration and preservation of public records of the Central Government, Union Territory Administrations, public sector undertakings, statutory bodies and corporations,

commissions

and

committees

constituted

by

the

Central

Government or a Union Territory Administration and matters connected therewith or incidental thereto. 7.

The definition of “Public Records” U/S 2(e) of Public Records Act, 1993

(PRA 1993) is almost identical with the definition of Records under the RTI Act 2005.

These Records can be sought under the RTI Act, 2005 as “Information”

through RTI Application. PRA 1993, S 5 (1) Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act. PRA 1993, Sec 6(1) The records officer shall be responsible for • proper arrangement, maintenance and preservation of public records under his charge; • periodical review of all public records and weeding out public records of ephemeral value; • appraisal of public records which are more than twenty-five years old in consultation with the National Archives of India or, as the case may be, the Archives of the Union territory with a view to retaining public records of permanent value; • destruction of public records in such manner and subject to such conditions as may be prescribed under sub-section (1) of section 8; • compilation of a schedule of retention for public records in consultation with the National Archives of India or, as the case may be, the Archives of the Union Territory; • periodical review for downgrading of classified public records in such manner as may be prescribed; • adoption of such standards, procedures and techniques as may be recommended from time to time by the National Archives of India for improvement of record management system and maintenance of security of public records; • compilation of annual indices of public records; • compilation of organizational history and annual supplement thereto;

WWW.LIVELAW.IN • • •

assisting the National Archives of India or, as the case may be, the Archives of the Union territory for public records management; submission of annual report to the Director General or, as the case may be head of the Archives in such manner as may be prescribed; transferring of records of any defunct body to the National Archives of India or the Archives of the Union Territory, as the case may be, for preservation.

PRA 1993, Sec 7(1) The records officer shall, in the event of any unauthorized removal, destruction, defacement or alteration of any public records under his charge, forthwith take appropriate action for the recovery or restoration of such public records. PRA 1993, S 9. Whoever contravenes any of the provisions of section 4 or section 8 shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to ten thousand rupees or with both. The public records act and rules ban government departments from destroying documents that are more than 25 years old, unless they have been “appraised”.

8.

The National Archives of India, under the Culture Ministry, and similar

bodies at the State level are required to keep tabs on “public records”, and help government departments separate worthless files from those that must be saved. 9.

The documents considered to be of “permanent nature’’ — but no longer

required by the department which created them — are then shifted to the archives for safekeeping. There, they can be seen by research scholars. 10.

Loss of records that are required to be kept and maintained permanently, if

considered as evidence in a case, its missing should invite criminal complaint against officials under sections 201 of IPC (punishable with imprisonment which is directly proportional to seriousness of offence charged from 7 years to 10 years and for life). 11.

If these files are part of public record and forms evidence in any case, its

destruction would be a serious crime of destruction of evidence. Otherwise also it brings in the liability under Public Records Act 1993 which can extend to imprisonment up to five years and up to fine of Rs 10,000.

Reading Right to

Information Act, 2005 with Public Records Act, 1993 and Indian Penal Code, will lead to serious consequences for those who lose the records, besides the disciplinary action from the top administration. 3. The Right to Information Act, cannot be effectively implemented without properly implementing the Public Records Act, 1993. But most of employees and their bosses do not know that a law called Public Records Act exist in this country. This Act mandates appointing an officer as ‘Records Officer’, similar to PIO under RTI Act. It is not known whether any authority was caring to follow this mandate. This Act says that the records officer shall, in the event of any unauthorized removal, destruction, defacement or alteration of any public records under his charge, forthwith take appropriate action for the recovery or restoration of such public records.

In hundreds of cases of

second appeals, this Commission could not find that any public authority has a record to

WWW.LIVELAW.IN explain that any such appropriate action for recovery or restoration was taken. Appropriate action could be ordering an inquiry and holding the persons responsible for the disappearance of the files. There are three requirements, a) recovering the file, b) finding out which employee was responsible followed by disciplinary action and c) addressing problems arising out of ‘missing file’. No public authority has shown any such record that reflected their ‘appropriate action’. 4.

The Hon’ble Delhi High Court in Union Of India Vs. Vishwas Bhamburkar

[2013(297)ELT500(Del.)] with regard to the plea of the Respondent authority of record being not traceable, has observed as follows :

“5. The Right to Information Act is a progressive legislation aimed at providing, to the citizens, access to the information which before the said Act came into force could not be claimed as a matter of right. The intent behind enactment of the Act is to disclose the information to the maximum extent possible subject of course to certain safeguards and exemptions. Therefore, while interpreting the provisions of the Act, the Court needs to take a view which would advance the objectives behind enactment of the Act, instead of taking a restrictive and hyper-technical approach which would obstruct the flow of information to the citizens. 6. This can hardly be disputed that if certain information is available with a public authority, that information must necessarily be shared with the applicant under the Act unless such information is exempted from disclosure under one or more provisions of the Act. It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act. 7. Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/readily traceable/currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in

WWW.LIVELAW.IN fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. After all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as a deterrence against the willful suppression of the information, by vested interests. It would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case.”

5.

The Commission has to order an inquiry into every case of missing file, as

rightly pointed out by the Delhi High Court, “since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/readily traceable/currently traceable”. 6.

Thus it is clear that missing file is no defence and non-traceability of the

file cannot be used as an excuse to deny the information. The plea of missing file itself is the proof of denial of right to information of the appellant. It is pathetic that the CPIO or his public authority, who attend the second appeals simply spell the mantra of ‘missing file’ and keep silent. They do not show any paper to explain their efforts or inquiry or action taken.

The violation of right of the

applicant and breach of duty of the PIOs under both RTI Act, 2005 and Public Records Act, 1993 continues from the date of denial of information, during the course of first, on the date of filing second appeal and also during the hearing before the Commission. But the PIOs strangely come with empty hands saying just file is missing. The Commission noticed that even when the standing counsel appears on behalf of CPIO, simply saying ‘we provide information the moment file is traced” or ‘the file which went missing is yet to be traced’. If the Commission insists on response to question what did they do, they have nothing to say except saying we were searching the desk and record rooms. Some of the PIOs do not do even that. Unfortunately, the public authority is not initiating any effort to trace the file. They do not even bother to talk to appellant who mentioned the exact file number, which a citizen other than employee cannot have. The PIO should have consulted the applicant and found out the details of the file instead of protracting the proceedings without any response or communication. There are instances of missing files in public offices where they

WWW.LIVELAW.IN have to permanently maintain certain public records. For instance a University has to preserve and make accessible for verification, the records pertaining to education, such as BA BSc or MA, MSc, etc. Registration department also lost a registered sale deed, or will deed or marriage records. This can cause havoc in lives of married couples or successors to ancestral property. They go missing and none knows who the culprits are. Efforts to trace files and inquire into or to take alternative measures all go missing. 7.

It is also not known why they did not find the last holder or controller of

the file before it went missing or at least which officer was supposed to have the control of the file and initiated enquiry against him. In the past, Hon’ble Courts and Commissioners directed the public authorities in similar situations to register a case with the police and lodge an FIR, however, the effectiveness of this measure is totally doubtful because police system could not be used to search out a file in a department where ‘experts’ handle the files. If someone misplaces the file deliberately or by accident, how the police can investigate and find it out? Unless files are stolen or destroyed, which amounts crimes, the police has no role to play. Thus, registering an FIR in the cases of the missing files will amount to empty formality bearing no results. 8.

What is the policy of Government of India or concerned states to deal with

the cases of missing files? Under Section 4(1)(c) of RTI Act to publish all relevant facts while formulating important policies or announcing the decisions which affect public. If Government of India or a particular state does not have any policy to tackle the problem of missing files in public offices, that becomes the policy of the Government not to have anything to do with it. That naturally affects the entire administration and public at large. Then it has to give reasons to people why they have not drawn any policy as such, to prevent the frequent missing of files. Assuming the Public Records Act 1993 is their consolidated policy, it is the duty of the Government to explain what have they done to implement that Act? This is also an obligation under Right to Information Act. Surprisingly neither DoPT, the nodal agency to implement RTI Act, nor any other appropriate government or public authority developed any policy or guidelines or norms to resort to in cases of missing files.

WWW.LIVELAW.IN 9.

If the file could not be traced despite the best efforts, public authority has a

moral and legal duty to address the grievance of the appellant and solve it with all sincerity. No such effort appears to have happened in this case also. 10.

The Commission recommends DoPT to come up with comprehensive plan,

policy and action program to tackle the issue of the missing files which became a stumbling block in implementation of RTI, devise means and resources for implementing Public Records Act, 1993. Missing files could be a potential strategy to undermine the rule of law and criminal justice systems besides facilitating several white collar criminals in the public authorities to escape. Only a file which might contain proof of irregularities or corruption will go missing. I such cases it will be almost impossible to catch the criminal. Causing destruction of evidence is a crime under Indian Penal Code, which also need to be probed and culprits be prosecuted. 11.

The Commission directs Shri Sitaram, Under Secretary and Shri V.S.Negi

to show-cause why maximum penalty should not be imposed against them for not responding to the RTI application of the complainant in a time bound manner within 30 days from the date of receipt of this Order. The Commission also directs Shri Sitaram, Under Secretary and Shri V.S.Negi to explain why disciplinary action should not be recommended against them and also why it should not be directed to give compensation to the complainant for delaying in providing the information. 12.

The Commission directs the abovementioned CPIOs to give report on

action taken on the pathetic condition of their office loosing very important record like this, and inform the Commission what kind of measures they contemplate to address the grievance of the appellant in light of the claim of non-traceability in the letter written by University and screening committee report. All responses shall reach the Commission before 12th May, 2017.

SD/(M. Sridhar Acharyulu) Central Information Commissioner Authenticated true copy (Dinesh Kumar) Deputy Registrar

WWW.LIVELAW.IN Copy of decision given to the parties free of cost.

Addresses of the parties: 1. The CPIO under RTI, M/o Labour & Employment, DGET, Sharam Shakti Bhawan, Rafi Marg, New Delhi-110001. 2. Shri Balendra Kumar, C-75/3-C, Neelgiri-III, Sec-34, Noida-201301, UP.