Central Information Commission
Vijendra Singh Jafa vs Ministry Of Social Justice & ... on 25 May, 2017
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/MOSJE/A/2017/181342
Vijendra Singh Jafa v. PIO, MOSJE
RTI : 22.06.2016
FAO : 21.09.2016
Second Appeal : 18.10.2016
Hearing : 22.05.2017
Appellant : Shri Bhartendra Singh Baswan (rep. of
the appellant)
Public authority : Shri Jossy Joseph, SO & CPIO
Shri Mukesh Kumar Yadav, ASO
Decided on : 25.05.2017
ORDER
FACTS:
1. The appellant Mr Vijendra Singh Jafa filed RTI application on 22.6.2016 seeking certified copies of (1) D. O. No. 17011/34/91-TDB dated 19th September 1995 (2) D. O. No. 17011/34/91-TDB dated 10th October 1995 (3) D. O. No. C-43040/5/93-Vig dated 29th November 1995 (4) D. O. No. C-
43043/5/93-Vig dated 11th December 1995 from Shri P. K. Mohanti, Joint Secretary, Ministry of Tribal Welfare, (MTA), GOI, to Shri G. Acharya, Joint Director, CBI, asking for "details of case, if any, pending against Mr. V. S. Jafa", the reply from the CBI, if any, to this letter. CPIO replied on 28.07.2016 that information sought at Sl. No. 3, 4, 6 and 8 pertain to Vigilance Unit of the undivided Ministry of Social Justice and Empowerment. On 4th July 2016, Mr. Jossy Joseph CPIO and section officer of Ministry of Tribal affairs Stated that MTA was carved out of Ministry of Social Justice and Empowerment (MSJE) in October, 1999 and the letters sought are not available in the files transferred to MTA from MSJE. The records of Vigilance Section of this Department have been checked, but the documents sought by appellant which pertain to the year 1995 and 1996 are not available in Vigilance Section of this Department. Vide order dated 21.09.2016, the First Appellate Authority (FAA) upheld the CPIO's response. Being dissatisfied, the appellant approached this Commission.
CIC/MOSJE/A/2017/181342 Page 1 Decision :
2. The appellant, a senior IAS officer retired 20 years ago, gave specific numbers and details of the files regarding complaints against him and wanted to know the status and consequences of those complaints. Shri Bhartendra Singh Baswan, reputed senior IAS officer represented him, as Mr Jafa was not healthy. Mr. Baswan explained that Mr, Jafa has high reputation as honest officer; he filed a complaint against the head of the department during his service after duly investigating into allegations; in retaliation that head authority has filed some baseless complaints against Mr. Jafa, about which he wanted to know under RTI. The CPIO of the Ministry of Tribal Welfare stated that the information sought was for the year 1995, i.e., much prior to the formation of the Ministry of Tribal Affairs; hence, they have transferred this RTI application to Ministry of Social Justice and Empowerment. He transferred it to CPIOP MSJE, TRIFED, CBI and CVC under section 6(3) of RTI Act. On 18.07.2016, Mr Deepak Kumar Sah, CPIO of the Ministry of Social Justice and Empowerment intimated the appellant information sought was 'nil' in their department that his RTI application was further transferred to concerned CPIOs in the same department. According to Section 6(3) of RTI Act, 2005, the CPIO cannot transfer an application within the department.
3. Ms. Indira Murthy, JS Vigilance Section intimated the appellant through a letter dated 07.09.2016 that the documents sought were not available with the section. It was represented that she also replied on behalf of Shri Shyam Kumar, CPIO- Establishment II, who also claimed that the documents are not available. The representative of the appellant wondered how such important documents containing the processing of complaints against a senior officer could not be found in the department. Mr. Baswan said as per the Manual of Office Procedure 2015 by Central Secretariat, DoPT, public authorities either MSJE or MTA are not supposed to lose the records pertaining to a public servant and possibly records are transferred from the Ministry of Social Justice and Empowerment to newly created Ministry for Tribal Welfare. The CPIO of MTA said it was not found in the transferred files. He neither gave the list of transferred files, nor authentic extract of register reflecting entry or removal of the removal of documents sought. He also could not show whether any efforts were taken to search out the records of their own seniors. If the records are not found, the department should CIC/MOSJE/A/2017/181342 Page 2 have been on alert and actively finding alternative rather than simply saying "that documents are not available". None of three CPIO's of the public authorities - MTA, MSJA, i.e., Mr. Jossy Joseph, and Mr. Shyam Kumar appeared to have taken any steps after kicking the RTI ball into the court of each others. This amounts to denial on an illegal ground of 'missing files', not based on any of valid exception under Sections 8 and 9 of RTI Act.
4. The CPIO, MTA denied claiming that records are not available because they belonged to period before Ministry of Tribal Welfare. Do they not have any files relating to Tribal Welfare earlier held by Ministry of Social Justice? Have they begun the work of tribal welfare on a clean slate without having any history? Legitimately they should be in possession of files and be responsible for all the files relating to officers of Tribal Welfare from the beginning. The CPIO of MTA stated that some files were transferred files while MTA was being formed, but did not produce any record to show that documents sought were not available. If files are transferred to MTA they should possess them. Hence Commission can presume those files pertaining to Mr. Jafa are with the MTA. The CPIO, MTA should have taken initiative to verify whether such files are with MSJE.
5. Instead, the RTI application was kicked like football from one to another. No PIO is taking initiative to co-ordinate with other and solve this problem. Instead, they have build-up huge files with the voluminous correspondence leading to nowhere. The CPIO, MSJE also advanced same argument of non-availability of information.
6. Section 52 of the Manual of Office Procedure, 14th Edition of May 2015 of Department of Administrative Reforms and Public Grievances deals with Records Retention Schedule. It says:
To ensure that files etc. are neither prematurely destroyed, nor kept for periods longer than necessary, every Ministry/Department will, (b) in respect of records, relating to establishment, personnel and housekeeping matters common to all departments, follow the "Record Retention Schedule‟ in respect of Records Common to All Ministries/Departments‟, which is available on Department of Administrative Reforms and Public Grievances‟ website www.darpg.nic.in, as amended from time to time.
CIC/MOSJE/A/2017/181342 Page 3
7. Neither MTA nor MSJE appears to have followed this mandate of MoPT.
There are two more important rules of maintenance of records by officers and their personal staff. Section 53 says:
Records maintained by officers and their personal staff - Each Department may issue Departmental instructions to regulate the review and weeding out/deleting of paper records maintained by officers and their personal staff. In this regard procedure laid down in CSMOP shall be followed.
Section 54 deals with Requisitioning of records - (a) No recorded file shall be sent from the Sections, Departmental Record Room or Archival records except under a requisition in form prescribed under Public Records Act, 1993.
(b) Requisitions of files belonging to other Departments and are in the custody of the NAI, will have to be endorsed by that Department concerned, before they are sent by the Archives. Records, bearing security classification, are not transferred to the Archives, as per section 10 of the Public Records Act, 1993.
8. As per rules 53 and 54 of Manual 2015, the public authorities have to maintain the records if they are weeded out and they are not supposed to send any recorded file or archival records except under a requisition in the form prescribed under Public Records Act, 1993. The CPIOs did not show any requisition of such records. Hence, they are supposed to be with either Ministry of Tribal Affairs or Ministry of Social Justice and Empowerment. This Manual mandates not only maintenance of records but also easy retrieval. The public authorities have to explain why they are not in a position to retrieve the files sought by the appellant. It is also not known whether these two ministries have prepared any list of missing files or do they know at least what files they are having in their possession. They should have a mechanism to maintain the list of files which were not traced from RTI applications since 2005. The public authorities have developed an easy mechanism of denying information on the excuse of 'missing files', which was never provided either by Public Records Act, 1993 or by MoPT. It is also surprising that MoPT has not made any reference to the problem of missing files which was being cited by the public authorities in thousands of RTI responses since 2005. The MoPT should have addressed this serious lapse and prepared a set of guidelines to tackle.
CIC/MOSJE/A/2017/181342 Page 4
9. Dr Jitendra Singh, MBBS (Stanley, Chennai), Minister of State (Independent Charge) of Ministry of Personnel, Public Grievances and Pensions, PMO, etc, in his message to this 14th Edition of the Central Secretariat Manual of Office Procedure (CSMOP) Manual, May 2015 stated: One of the important agenda of the Government is "Minimum Government & Maximum Governance". The revised edition of the CSMOP has been prepared with that endeavour in mind". The Minister assured that the revised edition of the CSMOP instils a greater sense of responsiveness, accountability, transparency and public service excellence in the current system of governance and also fulfil the need for further simplifying the Government procedures and processes". He also said: I am sure that the Manual would be of help to all who serve in the Central Secretariat to increase their efficiency and effectiveness and remove a lot of red tape, for which we are charged. I am sure the Manual will form the backbone of process management in our offices and make office work speedier and rewarding for all the stakeholders".
10. Mr. Alok Rawat, Secretary, Department of Administrative Reforms and Public Grievances, MoPT, in his message expressed belief that this will increase productivity in work and make the administration more responsive. The Introduction says: The ultimate object of all Government business is to meet the citizens‟ needs and further their welfare. At the same time, those who are accountable for fair conduct of business have to ensure that public funds are managed with utmost care and prudence. It is, therefore, necessary, in each case, to keep appropriate record not only of what has been done but also of why it was so done..... The procedures prescribed in the Central Secretariat Manual of Office Procedure (CSMOP), attempt to balance the conflicting considerations of speed, quality, transparency and propriety.
11. The Manual explains the duty of Dealing Hands (DH) to open, maintain and have custody of files, and they are responsible for ... (i) Opening, maintenance and custody of files; (ii) put up the file to Section Officer mentioning precedents/facts, rule position, pointing out any mistake, incorrect statements of facts ; (iii) go through the receipts and ensure that the receipts, with urgency grading, are dealt with first; (iv) move the receipt to a file; (v) if a file exists for this receipt, add the receipt to the existing file; (vi) in case a file CIC/MOSJE/A/2017/181342 Page 5 does not exist, a file will be opened; (vi) DH will add the data/metadata required for creating a new file. A number will be given by the dealing hand to the new file and in the case of e-file number will be assigned automatically by the system on the creation of e-file; (vii) reproduce remarks on the notes portion of the file, if any, made by an officer on the receipt. (viii) DH will have to give a serial number and page number to all the letters received and issued.
12. The Manual is also strikingly lacking on the management of records if subjected to crises of fire, flood, termites or rats etc or deliberate destruction of files to hide misdeeds or remove evidence of corruption. Mr. Baswan stated that all these issues are covered by due diligence clause and it is presumed that each department will duly diligent in protecting the records. The question is what if they are not diligent and that resulted in loss of records. It should have lead to internal inquiry to find out prima facie who the concerned public servant supposed to have secured those files or having last control of record before losing, followed by disciplinary action against the negligent officer or subordinate employee. If malicious destruction of records is proved, it should have penal consequences under Indian Penal Code as causing disappearance of evidence of offence etc, defined as crime under Section 201 punishable up to 7 years of imprisonment and fine. It says:
201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
CIC/MOSJE/A/2017/181342 Page 6 if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Illustration: A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.
13. In the second part categorized above to calculate sentence, the corruption or cheating could be included in the offences of which evidence is caused to have disappeared. This Commission stated in an earlier order dated 29.08.2014 in case Omprakash vs. GNCTD vide file no. CIC/DS/A/2013/001788-SA:
"...4. The Commission is of the view that, 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 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 CIC/MOSJE/A/2017/181342 Page 7 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.
4. No person shall take or cause to be taken out of India any public records without the prior approval of the Central Government;
Provided that no such prior approval shall be required if any public records are taken or sent out of India for any official purpose.
5. (1) Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act.
(2) Every records creating agency may set up such number of record rooms in such places as it deems fit and shall place each record room under the charge of a records officer.
6. (1) The records officer shall be responsible for -
i. proper arrangement, maintenance and preservation of public records under his charge;
ii. periodical review of all public records and weeding out public records of euphomeral value;
iii. 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;
iv. destruction of public records in such manner and subject to such conditions as may be prescribed under sub-section (1) of section 8;
v. 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;
vi. periodical review for downgrading of classified public records in such manner as may be prescribed;
vii. 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;
viii. compilation of annual indices of public records; ix. compilation of organizational history and annual supplement thereto;
x. assisting the National Archives of India or, as the case may be, the Archives of the Union territory for public records management;
xi. 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;
xii. 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.
(2) The records officer shall act under the direction of the Director General or, as the case may be, head of the Archives while discharging the responsibilities specified in sub-section (1).
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 CIC/MOSJE/A/2017/181342 Page 8 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.
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.
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.
14. Section 6 imposes specific obligations to maintain of record and Section 7 says Records officer cannot remove without authorization. As per section 8 they cannot destroy the records. If these sections are violated, it may lead to imprisonment up to five years and also the fine. It is not known whether any dealing hand employee or public records officer was inquired into for non- maintenance or unauthorized destruction of records. Concerned public authority has to inform the appellant and the Commission why the Public Records Act, Section 9 was not implemented with regard to loss of records as claimed by the CPIOs.
15. 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.
16. 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 studied by concerned research scholars.
17. 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 CIC/MOSJE/A/2017/181342 Page 9 is directly proportional to seriousness of offence charged from 7 years to 10 years and for life).
18. 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. Thus, if prima facie, it is established that records concerned were destroyed deliberately, an FIR has to be booked to set the law in motion against that possible crime. This was not done in this case. 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.
19. Hon'ble Delhi High Court in Union Of India Vs. Vishwas Bhamburkar [2013 (297) ELT 500 (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 CIC/MOSJE/A/2017/181342 Page 10 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 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 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."
20. Thus the claim that they are not traceable proves the fact they had it in their possession, which binds them to provide the information by searching out the same. In case of Nand Lal V Department of Legal Affairs, CIC/SA/A/2015/001769 decided on 3.5.2016, this CIC said that a notary taking huge money through attestations cannot so negligently leave registers as food to termites. Notaries and Regulatory should understand that it amounts to irresponsibility towards records and inaction after the negligence is detrimental to 'governance'. Notary claiming experience of 25 years stated that the register of 2013 was partially damaged and record from 2008 was totally damaged by termites. The public authority could not show any system to protect extracts of register or to take action against negligent notaries. Both notary and CPIO claimed defence of 'Act Of God' while explaining in response to show-cause notice.
Maintain cat to save files from rats
21. The public authorities usually claim floods or fire accidents as the causes of file missing. Besides, they take excuse of rats and termites. Mr. Baswan said CIC/MOSJE/A/2017/181342 Page 11 that he remembered some allowance for maintaining cat to save the files from rats. They should secure files from termites also. Whether these 'accidents' or caused by 'negligence' or 'vested interests'? Whenever an RTI question brings out the 'missing file' incident to the notice of the public authority, it is the duty of the CPIO to place it before the public authority, which has to take immediate steps to know whether it was caused by carelessness or vested interests and then follow it up with necessary legal actions. No public servant should escape by causing disappearance of files to facilitate escape for other corrupt colleagues or cause trauma to honest public servant. The Commission found in many cases of second appeals, the public authorities, which pleaded that floods or fire caused loss of records do not present any lists of files destroyed or survived in such accident. This appears to be a mere lapse in administration, but it could be deliberate attempt to fail the 'transparency law' RTI Act. The DoPT should have issued some guidelines to tackle such 'accidents' by making it mandatory to find out immediately the list of files survived or dead and publish the same on the official website or keeping a copy of such list with CPIO or public records officer or boss of that public authority, so that no officer dishonestly cause disappearance and claim that they were lost in accident.
23. The frequent reference to 'missing files' as an excuse to deny the information is a major threat to transparency, accountability and also major reason for violation of Right to Information Act. Millions of RTI applications might have been rejected by PIOs on this ground during the last 11 years of RTI regime. With "missing files excuse" being around, it will be futile to talk about implementation of Right to Information Act. Reviewing the working and writing 'way forwards' or doing seminars on this great law, or giving a rank based on implementation, without addressing this issue will not take us anywhere. Most surprisingly, while using this excuse profusely, no public authority made any effort to address this issue. No manual of record management or record retention schedule even mentions this expression.
24. The claim of 'missing files' indicates possibility of deliberate destruction of records to hide the corruption, fraud or immoral practices of public servants, which is a crime under IPC. The missing documents will either allow a criminal to CIC/MOSJE/A/2017/181342 Page 12 go scot-free and does not facilitate the honest and innocent to prove his honesty. The criminals will not be punished and innocents will not be saved if records are not protected and accessed. In a society of ours, where strength and unity of criminals is far higher and they roam around freely due to lack of evidence while honest get into jails due to lack of access to records or absence of records. The senior-officer-applicant at this advance-age wanted to clear of the baseless charges, through this RTI application.
25. The Commission directs Mr. Jossy Joseph to co-ordinate with CPIOs Mr. Deepak Kumar Sah, Est. II and Asokan P.K. CPIO vigilance section of MSJE to search out the records and provide the certified copies, and inform why there was no inquiry or action on the loss of records, or if there was an inquiry, inform the consequences of the inquiry, within 30 days from the date of receipt of this order. If there is no such inquiry, the Commission directs (as authorized by the order of Delhi High Court in Vishwas Bhambhurkar Case 2013, referred above) the MTA to conduct an inquiry into the non-traceability of the files, to fix responsibility on officers/employees concerned and provide report and action taken details to the appellant within 45 days from the date of receipt of this order.
24. The Commission takes into cognizance of the complaint by appellant that his RTI request was rejected on the pretext of loss of records or non-availability of documents sought regarding the complaints against him when he was in office twenty years ago, hence directs Mr. Jossy Joseph, CPIO of MTA, Mr. Deepak Kumar Sah, CPIO Est. II and Asokan P.K. CPIO Vigilance Section of Ministry of Social Justice and Empowerment, to provide the copies of documents sought within 45 days from the date of receipt of this Order and file a compliance report with the Commission.
26. The Commission also directs Mr. Jossy Joseph CPIO, Mr Deepak Kumar Sah and Asokan P K, the CPIOs, to produce before the Commission the files relating to transfer of files along with the lists, besides explaining what efforts have been initiated by them to trace the documents sought by the appellant, and also show-cause why maximum penalty should not be imposed on each of them for the reasons mentioned above, within 45 days from the date of receipt CIC/MOSJE/A/2017/181342 Page 13 of this order. It is posted for compliance and penalty proceedings on July 17, 2017 at 2.00pm.
27. The Commission recommends the Department of Personnel and Training, the nodal agency for implementation of Right to Information Act, to
a) Develop comprehensive set of guidelines to effectively handle the issue of missing files, through better preservation and retrieval systems
b) Specify steps to be taken up to retrace the untraceable,
c) Explain how and what alternative or shadow files need to be built, or process of rebuilding the files from offices with whom correspondence must have been made on the file in question, and
d) Explain steps to be taken to prevent the phenomenon of missing of files, and
e) Ensure appropriate disciplinary/legal action against deliberate destruction of records or unauthorized removal of permanent or significant records etc. Following websites may be referred to know the record preservation systems elsewhere, which were found useful by the research team of this Commission: http://www.grs.gov.hk/ws/english/engimages/grmp_e.pdf developed by Government of Hong Kong. Some more references: (i) National Archives of Australia http://www.naa.gov.au/records- management/index.aspx (ii) Library and Archives Canada http://www.collectionscanada.gc.ca/government/products-services/ 007002-3000-e.html (iii) National Archives of New Zealand http://continuum.archives.govt.nz/recordkeeping-publications.html (iv) The National Archives, United Kingdom http://www.nationalarchives.gov.uk/electronicrecords/default.htm (v) United States National Archives and Records Administration (http://www.archives.gov/records-mgmt/index.html).
SD/-
(M. Sridhar Acharyulu)
Central Information Commissioner
CIC/MOSJE/A/2017/181342 Page 14
Authenticated true copy
(Dinesh Kumar)
Deputy Registrar
Copy of decision given to the parties free of cost.
Addresses of the parties:
1. The CPIO under RTI,
Ministry of Tribal Affairs,
Room No. 750, A Wing, 7th Floor,
Shastri Bhawan, Rajendra Prasad
Road, Near Krishi Bhawan,
New Delhi-110052 (RTI Cell).
2. The CPIO under RTI,
M/o Social Justice & Empowerment,
Deptt. of Social Justice &
Empowerment, Vigilance Section,
Shastri Bhawan, New Delhi.
3. Vijendra Singh Jafa,
E-12/1, Vasant Vihar,
New Delhi-110057.
4. The CPIO under RTI,
Department of Personnel & Training,
North Block, Central Secretariat,
New Delhi, Delhi 110001.
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