The Hans India: New Delhi: Tuesday,
March 28, 2017.
Missing file’
is a more serious problem than ‘missing funds.’ Misappropriation of public
funds is a crime and the investigation will necessarily take place. It is
surely a crime for which a system is in place to pursue the consequences up to
prosecution.
If the
missing file is allowed to prevail as a means of escape for the criminals in
government, entire system of criminal jurisprudence becomes meaningless. 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
this issue.
An RTI
question revealed mind-boggling defects in administration involving huge public
money meant for celebrating the Golden Jubilee of Indian Republic in 2000.
V R
Kamalapurkar exposed a brazen lacuna in the system, where disappearance of
funds and files regarding them in Ministry of Culture went unquestioned for a
long time. He sought to know the date of commencement of
Centenary/Commemoration Cell for celebration of 50th Anniversary of Indian
Republic in or around 2001, budget allocated for the cell, classification and
number of programmes undertaken, etc.
The CPIO
stated in his response that efforts were being made to trace the information
from the old records of the Ministry and the appellant would be informed
accordingly. There was no information given.
The appellant was compelled to approach the Central Information
Commission in second appeal as there was no further information as promised and
there was no trace of ‘records.’
Commemoration
Bureau
An Officer
from the Ministry of Culture told the Commission that commemoration bureau was
set up as a special cell under the Ministry of Culture for organising the
celebrations of 50th Anniversary of Indian Republic whose tenure was
co-terminus with that of the commemoration period. It is expected to continue
till the commemoration-related activities of all the major contributors and
philosophers of our country were completed.
The officer
further stated that as part of the commemorations in 2005, the Ministry of
Culture gave a contract worth Rs 2.5 crore to Vinay Dhumale to make a movie on
‘Bal Gangadhar Tilak,’ great leader of Indian National Movement. The money was
transferred to Vinay in two instalments. However, the movie was never made and
there was no inquiry into the disappearance of funds.
It was agreed
that the ministry was able to find about this embezzlement only after the RTI
application was filed by the appellant in 2011. Another officer said the CBI
was investigating the case and their report was awaited.
File goes
missing
In response
to the questions raised during the second appeal, the CPIO further explained
that the file containing the details of the film-project, sanctioning of the
project and the officers involved in the monetary transactions was not
traceable in the record room of the erstwhile Commemoration bureau.
It was
claimed that intensive search operations were conducted in the ministry record
rooms between the years 2013 and 2017 but to no avail. Hence the file had been
declared as missing. However, the officers could not show any document
reflecting their efforts, if any.
It is clear
that the public authority has not made up any case against any officer or found
anybody responsible for last custody or the loss, nor they filed any FIR
regarding the missing file. It is surprising that the details of Rs 100 crore
sanctioned by the Ministry for celebration of Golden Jubilee of Indian Republic
and release of Rs 2.5 crores to a person for making a movie on Bal Gangadhar
Tilak are not available and there is nothing to show that somebody followed up
with any action.
It is to the
credit of RTI Act that this major lapse has been exposed, but, still it remains
a tragedy that the Ministry declared as lost the entire record without any
consequent action. This is a criminal case of corruption that should have been
investigated. It also reflects a sad state of file keeping and complete
inaction within the Ministry.
The
Commission could not get any information on questions like who held the files
lost and where the research process was documented etc, regarding payment of Rs
2.5 crore to Vinay Dhumale for production of movie on Bal Gangadhar Tilak.
Except for some oral statements by the CPIO and Deputy Secretary, no record was
available.
The
Commission has directed the respondent authority to initiate enquiry into missing
files, and provide report and information about action taken in this regard to
the Commission, within 60 days and to furnish information sought by the
appellant pertaining to the budget allocation for the centenary celebrations
and the list of programs conducted under the celebrations within 30 days.
The
Commission also directed the office of CBI, New Delhi, to inform the Commission
and the appellant about the time they will need to finalise the investigation
report and take necessary steps into this scandal within 30 days.
‘Missing
file’ is a more serious problem than ‘missing funds.’ Misappropriation of
public funds is a crime and the investigation will necessarily take place. It
is surely a crime for which a system is in place to pursue the consequences up
to prosecution. The issue of missing file is a serious problem in the
governance system. It may not be defined as crime and prescribed with severe
punishment.
If the
missing file is allowed to prevail as a means of escape for the criminals in
government, entire system of criminal jurisprudence becomes meaningless. The
police will be punishing a cycle thief and leave out robbers of public money.
Criminal justice system will be tackling with poverty-based crimes but is
prevented totally from initiating the investigation or prosecution because of
lack of records in such crimes which affect the constitutional governance.
Public
authorities cannot make missing files an excuse for denying information in an
RTI request as such claims have no legality under the transparency law for
withholding the records. This was the
decision of the Central Information Commission in several cases. Unless proved
that the record was removed as per the prescribed rules of destruction/retention
policy, it is deemed that record continues to be held by the public authority.
In a
different case before the CIC, a Delhi citizen sought to know information from
Land and Building Department of Delhi Government regarding allotment of an
alternative plot in lieu of his land acquired by the government, the Department
admitted that the relevant file was missing and it could not be traced even
though the officers personally inspected the room of the Land and Building
Department. The officer said there was no possibility of retrieving the missing
record.
The
Commission observed that loss of records that are required to be kept and
maintained permanently, if considered as evidence in a case, should invite
criminal complaint against officials under section 201 of Indian Penal Code
(Punishable with imprisonment which is directly proportional to seriousness of
offence charged from seven years to 10 years and for life.)
The claim of file missing or not traceable has
no legality as it is not recognised as exception by the RTI Act.
It amounts to
breach of Public Records Act, 1993 and punishable with imprisonment up to a
term of five years or with fine or both. This law mandates public authority to
designate an officer as records officer and protect the records. A thorough
search for the file, inquiry to find out public servant responsible, disciplinary
action and action under Public Records Act, reconstruction of alternative file,
relief to the person affected by the loss of file are supposed to be initiated
by the public authority.
The public
authority cannot deny the right of the appellant by this excuse. 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 this issue. (Based on the order of CIC in V R
Kamalapurkar v. PIO, M/o Culture, CIC/SH/A/2016/000484 on 13.2.2017)