Central Information Commission
Msasha Rani vs Government Of Nct Of Delhi on 13 March, 2014
CENTRAL INFORMATION COMMISSION
,
(Room No.315BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
File No.CIC/AD/A/2012/003170SA
(Ms. Asha Rani Vs. Dte. Of Education, Delhi)
Appellant : Ms. Asha Rani
Respondent : Dte. Of Education , Delhi
Date of hearing : 13.3.2014
Date of decision : 13.3.2014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)
Referred Sections : Sections 3, 19(3) of the
RTI Act
Result : Appeal allowed / disposed of
FACTS
The appellant is present. The Public Authority is represented by Ms. Rashmi Gahlaut, PIO/DDE(NWB), Ms. Shashi Saini, EO, ZoneXIII and Mr. Angel Bhardwaj, Advocate representing the St.Angel's School.
2. The appellant submitted that she is seeking information through her RTI application dated 2042012 copies of documents for the years 1994 to 2012 relating to staff statements of St. Angel's School and the details of the payment of arrears consequent upon the implementation of 6th Pay Commission recommendations, etc. The appellant has submitted that the management of the school is consisting of Manager and Principal, who are husband 1 and wife and the representative of the school, appearing before the Commission is their son. They were not paying the full salary to the teachers during the period of employment from the years 1994 to 2010. Their modus operandi of payment of salaries to the teachers, is to collect in advance the blank cheques signed by the teachers before crediting their salaries to their respective bank accounts and immediately withdraw some amount from their account with the help of the blank cheques, already collected by the school. The appellant has filed cheating case against the management under section 420 etc in the Court at Rohini and in AntiCorruption branch. The trial is pending before the Rohini court with the CC No. 355. The appellant submits that the school management had transferred the salary arrears of all the teachers due to them, consequent upon the implementation of 6th Pay Commission recommendations, to a benami trust under the title of Hem Chand Jain Memorial Trust by cheating all the teachers, and another criminal case in this regard is pending for trial in the court. The school does not give the appointment order, but instead gets a resignation letter signed by every teacher, in the beginning itself for using the same as per their convenience, appellant alleged.
3. The appellant also submitted that she was to teach two subjects - Hindi and Sanskrit. But her designation is intentionally given as Sanskrit Teacher and in order take to vengeance against her, the School management has abolished Sanskrit subject from their teaching schedule even though many students requested that subject. She was not given the duty to teach the other subject 'Hindi' either. When she went on fast for 5 days in 2010 over these issues, the school started paying them full salaries since then. The appellant also submitted that the required information, which she was seeking from the school will help to establish the real payments made by the school to the teachers and their service conditions, etc. which will be useful for strengthening the charges she has made in the court against the school management.
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4. The representative of the Respondentschool submitted that they supplied all the information to the appellant, except the staff statements relating to years 1994 to 2000 as the documents relating to this period were destroyed by the labor during the renovation work of the school building. Thus the school could supply the information for the years from 2001 2012, as available with them. He also submitted that the appellant can seek the required information from the Directorate of Education also, to whom all the schools in Delhi including their school, are regularly sending the staff statement for every year. But the respondent authority of Dpt. Of Education expressed helplessness in this regard as the record is very old before the coming into effect of the RTI Act and their efforts to trace that record failed. They also submitted that no policy has been framed by the Dte of Education in regard to keeping of the record, as per the Public Record Act, 1993. The PIO submitted to the commission about their difficulties in this regard and the task involved in keeping safe the records of over 300 schools in Delhi, when no infrastructure and assistance is available in their office.
5. The respondentschool also submitted that the appellant is doing all these activities only to harass the school management, as she was not promoted to the post of Vice Principal in the school and the management has appointed another efficient teacher to that post. He also submitted that she was forcing the teachers to give false statements against the management and an FIR has been lodged in this regard. Her case in the anticorruption branch is stayed by the Delhi High Court while the other case is pending before criminal court.
6. The appellant countered the argument of the respondentschool by saying that the claim of the school that the record has been destroyed by the labour during renovation in 2001, is false, as all other record of the school like bank account books, check books etc. 3 were safe and the information which she is seeking is only selectively claimed to have been destroyed in 2010.
7. The Commission recommends the Dte. Of Education, Delhi to implement Public Record Act, 1993 and see that every document that reaches the department is kept safe as mandated by S. 4(1) of the RTI Act which will help the Public Authority, in implementing the RTI Act without taking this defence of file missing. The RTI Act does not accept this kind of defense by the Public Authority.
8. The Public Records Act 1993 Sections 7 to 9 will apply to the respondent public authority and all those who are connected to them. The following is the text of Section 7 to 9 of the Public Records Act, 1993.
"Section 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. (2) The records officer shall submit a report in writing to the Director General or as the case may be the head of the Archives without any delay on any information about any unauthorized removal, destruction, defacement or alteration of any public records under his charge and about the action initiated by him and shall take action as he may deem necessary subject to the directions, if any given by the Director General or, as the case may be, head of the Archives.
(3) The records officer may seek assistance from any government officer or any other person for the purpose of recovery or restoration of public records and such officer or person shall render all assistance to the records officer.
Section 8.(1) Save as otherwise provided in any law for the time being in force, no public record shall be destroyed or otherwise disposed of excepts in such manner and subject to such conditions as may be prescribed.
(2) No record created before the year 1892 shall be destroyed except where in the opinion of the Director General or, as the case may be, the head of the Archives, it is so defaced or is in such condition that it cannot be put to any archival use. Section 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."
9. The Public Authority has a duty to implement above provisions and impose the penalties as prescribed under the Public Records Act. As the people have a right to information, to ensure 4 their access to records, those records should be protected as matter of statutory duty under both Public Records Act and RTI Act.
Delhi High Court in Union Of India vs Vishwas Bhamburkar on 13 September, 2013W.P. (C)3660/2012&CM7664/2012http://www.indiankanoon.org/doc/100391259/ has laid down law as to what to do when the claim of record not available or file is missing, as follows:
"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. 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 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 5 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."
10. In fact, if the files are missing it would reflect the nondiligent administration of the Department. It might also be interpreted as dereliction of duty on the part of the Public Authority, as they are under obligation to provide the information under RTI Act. The expression "Information held' used in RTI Act will not cease to exist by the claim that the relevant file is missing. The Public authority will be under obligation to substantiate the claim that the file is really missing and that they have taken immediate and required steps to trace the missing file which action has to be explained to the Commission by sufficient documentary evidence. The same rule will apply to the schools controlled by the Public Authority and they cannot make claims of records missing or destroyed without showing any substantial evidence having sincerely tried to trace the same, like initiatives taken by the school, to search the missing record, and action taken from the date they found the record is missing. The Commission also recommends the Public Authority to create sufficient assistance and infrastructure for the PIOs to maintain the records and to furnish the required information to the RTI applicants in future to avoid the hardships as faced by the appellant as in the present case.
11. The Commission directs the PIO of respondent authority to procure the reconstructed information from the Angel' School by exercising their regulatory authority available under the law within three weeks and furnish the same to the appellant. The Commission recommends the School Authorities to provide the information from the reconstructed records and report the effort they have undertaken to trace the files to the PIO who in turn has to furnish the same to the appellant. The Commission also directs the PIO to complain the Commission if the Angel's School does not cooperate in tracing the files and furnishing the information 6 sought by appellant, so that Commission can initiate/recommend action against all of those who obstructed the furnishing of information under both - RTI Act and Public Records Act.
12. Nonpayment of full salary, or taking back a cut from teachers' salary is the open secret of aided, nonaided schools. It is difficult for a single teacher who survives on meager salary and fear the loss of job because of impossibility of reemployment, to fight the mighty school management and the department of education which do not act against this open corruption. The Commission records its appreciation for the valiant fight put up by the appellant Ms. Asha Rani, and advises the Angel's School management to make their school a model school without any of the maladies alleged.
13. The case is disposed of accordingly.
(M.Sridhar Acharyulu) Information Commissioner Authenticated true copy:
(Ashwani K. Sharma) Designated Officer Address of the parties:
1. The CPIO under RTI Govt. of NCT of Delhi O/o Deputy Director of Education Distt. North West (B), F.U. Block Pitam pura DELHI
2. Mrs. Asha Rani 7 A-5/144, Sector-17 Rohini, Delhi-110089 8