Missing files is a serious issue

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

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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)