Right to Information
Filing an FIR is no answer for a missing file; PIO should reconstruct the file, rules CIC
Neither lodging a first information report (FIR) with the police nor denying information to a citizen under Right to Information Act (RTI) under the pretext of a missing file is acceptable. Last week’s order by the Central Information Commission (CIC) puts the onus further on the Public Information Officer (PIO) to reconstruct the missing file. The order states, “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.” The order also makes applicable the Public Records Act as well as the Indian Penal Code for the PIO.
 
In several earlier decisions, pioneered by Maharashtra’s former Information Commissioner Vijay Kuvalekar, lodging of FIR was made mandatory for the PIO in case he or she cannot trace the files which contain information required by the CIC. However, FIRs would be merely lodged with no further action. The latest order by Central Information Commissioner Prof Sridhar Acharyulu’ questions the validity of the FIR in such a case, stating, “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.”
 
Holding the PIO fully responsible for missing files and stating that every public authority should designate a Public Records officer and the Public Records Act 1993 should be made applicable to a PIO, Mr Acharyulu stated in his order of 4 May 2017, “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.”
 
Bringing out similarities between the two Acts, CIC Acharyulu stated that 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. 
 
What does the Public Records Act (PRA) 1993 say?
 
S 5 (1) Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act. Under PRA 1993, Sec 6(1) the records officer shall be responsible for:
 
  • Proper arrangement, maintenance and preservation of public records under his charge;
  • Periodic review of all public records and weeding out public records of ephemeral value;
  • Appraisal of public records which are more than 25 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 a 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;
  • Periodic 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 organisational history and annual supplement thereto;
  • 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. 
 
The CIC’s decision of 4th May was a result of a second appeal filed by a citizen, Balvendra Kumar, who sought details with regard to the file notings of all corresponding papers of a particular file in the Ministry of Labour and Employment. The CPIO replied by stating the concerned file was not traceable. An appeal was filed. The First Appellate Authority (FAA) provided two pages, but Balvendra Kumar was not satisfied. He made a second appeal to CIC. The PIO, during the CIC hearing, stated 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 CIC referred to an earlier order of 2014 on the issue of missing files which stated that, “... prima facie, public authority cannot deny the right of the appellant to get an alternative plot, by putting forward an excuse of missing 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.”
 
The CIC also observed that if the Right to Information Act, 2005 is read along with Public Records Act, 1993 and Indian Penal Code, “it will lead to serious consequences for those who lose the records, besides the disciplinary action from the top administration. The Right to Information Act cannot be effectively implemented without properly implementing the Public Records Act, 1993. But most employees and their bosses do not know that a law called Public Records Act exists in this country”.
 
If all these laws are put together, the CIC said, “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’.”
 
The CIC has directed CPIOs of the Ministry of Labour and Employment to give, by 12 May 2017, “report on action taken on the pathetic condition of their office losing a very important record like this, and inform the Commission what kind of measures they contemplate to address the grievance of the appellant…”
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005, and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book, “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte”, with Vinita Kamte, and is the author of “The Mighty Fall”.) 

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COMMENTS

Naveen Saraswat

3 weeks ago

In one case where i cought frodulant papaer submitted by someone to get labour department shop act registration to make it as proof to occupancy as tenant of the plot the department lost the file while earlier some years back they gave me copy of file papaers against my RTI. Now i feel department is mananaged to destroy the file as culprits are saying that they have not submitted the said frodulant papaer to labour department and department also informed police that file is lost against police FIR lodged by me. Now i feel as forensic investigation can not be done in absence of original paper as file lost my case against culprit may be weaken as they know original file can not be found now so forensic investigation can not be done of the paper they are claiming they have not submitted the said paper . Even they are blaming i or someone have got managed to get forged RTI.
What i should do please suggest if anybody know .

Lakshminath Mocherla

2 months ago

The CIC should have been punished by slapping Rs20000/- fine while asking him to amend the order of penalty. By this both the parties involved would have been educated and it is a reminder for the generation of officers who adorn the post.

Ramesh Bajaj

3 months ago

The FIR is not a solution. The file has to be found / reconstructed. FIR can easily be managed so that it is discussed

REPLY

Ramesh Bajaj

In Reply to Ramesh Bajaj 3 months ago

Correction: FIR can be managed to be dismissed

“Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant,” says Arvind Datar in SC
Senior counsel Arvind P Datar on Thursday, criticised the logic to link the UID to permanent account number (PAN) for which the government claims there are just 0.4% duplicates. The arguments in the SC on Thursday were live-tweeted by the public-spirited Prasanna S (@prasanna_s), based on which we have put together this article.
 
He said, "You can make a class because individuals are of course different from companies. But what is the nexus with the object? Aadhaar is sold as a panacea for all ills - black money, terrorism, and leakage, like some herbal medicine. Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant."
 
Citing a speech by Finance Minister Arun Jaitley on Aadhaar Bill, Mr Datar told the Court, "... he (Mr Jaitley) says a man must have a right to not join Aadhaar. Even as late as 30 November 2016, there have been representations that Aadhaar will always be voluntary."
 
Commenting on this, Justice AK Sikri says, "Earlier they said that they can deny benefits without Aadhaar. Will they now say you need not pay tax (if you do not link PAN with Aadhaar)?" This of course resulted in eruption loud laughter in the courtroom. 
 
The Bench of Justice Sikri, and Justice Ashok Bhushan, which is hearing three public interest litigations (PIL) about linking the Aadhaar number to the permanent account number (PAN) for filing income tax returns, has asked both the sides to submit written arguments by Monday. 
 
Mr Datar also pointed out before the apex court how the government is giving a wrong impression about fake permanent account number (PAN) and the difference between PAN holders and tax returns. "Wrong impression given to the Court that there are many fake or duplicate PANs and the difference between PAN holders and returns. Proliferation of PANs is because PAN became mandatory for procuring SIM cards, credit cards, and passports."
 
The argument put forward by government of linking PAN with Aadhaar was requirement under the FATCA. Refuting the contention, Mr Datar said, "There is absolutely nothing in the Foreign Account Tax Compliance Act (FATCA) of the US that requires Aadhaar! Under the FATCA, what is required is only verification, which may be any valid identification and Aadhaar not necessary. FATCA applies only for financial institutional investors (FIIs)."
 
An inter-governmental agreement between India and the US was signed in August 2015 for the implementation of FATCA, to ensure tax is paid on the income generated from abroad.
 
Interrupting Mr Datar, Additional Solicitor General (ASG) Arghya Sengupta told the Court that limited argument on FATCA is that the government needs to give PAN details of Indian taxpayers to the US government. "We cannot give duplicate PAN details... (as it) causes embarrassment...," the ASG said.
 
When Mr Datar pointed out that as per the government submission, there are only 11 lakh duplicates in the PAN, the ASG said this was based on 0.2% sampling. "That is even more shocking. Elementary mistake of statistical sampling. When your own statistics say only 0.4% is duplicate what is the logic in asking 99.6% to link it with Aadhaar?" Mr Datar asked. 
 
  
The senior counsel also questioned enforcement of Aadhaar on citizens under one or other pretext by the government and how absurd it would be if the income tax act makes Aadhaar mandatory while the Aadhaar Act says it is voluntary. He also reminded the court the the 15.10.2015 SC order has spoken unequivocally about voluntary nature of Aadhaar while limiting it to six schemes.
He said, “When the Supreme Court has given a direction, it is as much binding on Parliament as any other organisation. A SC directive or a judgment is sacrosanct unless it is set aside in a manner known to law. The Aadhaar Act must make it clear that the basis (of keeping Aadhaar voluntary) of the earlier orders have been removed. Unless the subsequent circumstances are fundamentally altered such that the earlier orders could not be passed today, the SC orders stand. Unless Aadhaar is made mandatory under Section 3, the earlier orders' basis is not removed by legislature. Even an interim order is a judicial order. As long as that judicial order remains, it (Aadhaar) is (limited to) six and six schemes alone.”
 
He asked, "Is the Supreme Court a mere debating society? Tomorrow they will make it mandatory for GST. MCA has the audacity to say it will be made mandatory soon for accessing MCA21 services despite the orders. I keep hearing '99% have enrolled, what is your problem?' That is the death knell of democracy when minorities are forced like this. They cannot do what they want. Constitution was designed to get the government off people's backs."
 
 
 
"This is a first encroachment of interim orders of the Court. It must be nipped in the bud. You cannot wait for a ripe time later. What this Bench will decide will have far reaching consequences for individual, salaried person, businessman, and partner," Mr Datar concluded.
 

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COMMENTS

Amit Anam

2 months ago

http://greatgameindia.com/ch-2-information-technologists-ill-informed-monkeys/

Mahesh S Bhatt

3 months ago

US has reduced mail scanning our government want all without giving its anarchists state of affairs.Vijay Mallya's fly as MP's under the nose of Government/Sahara's donot pay /NPA's rise/UP Government Rs 36359 crores/Ajit Pawar's 21000 cr dam scam is under cover of Chagan Bhujbal's 8800 Crore Maharashtra sadan scam/Sharad Pawar gets Padma award resigns as BCCI Chief to recommend him as President/NPA's rise in all sectors/PPF interest goes down/No tax relief add on swach taxes/Farmer's Die/Solider's Die in Mera Bharat Mahaaan As Cybersecurity Expert National Data breaches are happening in USA/UK & Indian Ministries claim brazenly we are safe/No privacy laws ... Amen Mahesh Bhatt

Kamal Kant Mishra

3 months ago

Probably this is an experiment to control a Country which in a few years will have the largest population in the world.
Probably this is being done at the behest of some forces who work behind the scenes to control nations.
India was under Mughal Rule, Then under British Rule, Then Under Gandhi Clan, Now with Economic Open Policy & Foreign Institutional Investors investing heavily & owning almost 30 to 45 % of Indian companies via Mutual Funds, Loans, Seed Capital, etc etc - possibly this is the best way to control a country - By mapping all its citizens.
JUST THINK if this was true ... What would be one's fate ???

Kamal Kant Mishra

3 months ago

Imagine a scenario where Aadhar Linked with Google Maps can track & Trace you.
Imagine a Scenario where your FREEDOM / privacy is compromised.
You can be made to do things you don't wish as someone is watching / tracking you.
Imagine a scenario where someone hacks into your Aadhar - from which your Bank account, Your Mobile, Your Income Tax, Your Travels, Your family, Your Children can be mapped & tracked.
It is understandable that Aadhar was made for Voting - but adding more to it is making one a puppet in hands of those in power, hackers, Internet Service Providers.
Imagine a Judge / Minister / Businessman / Bank Manager Travelling in a Vehicle & a Hacker or Terrorist or Govt or Crooks / Kidnappers knowing which route is being taken - time to get there - knowing how much the person is worth by obtaining his income tax data, by where his children are, what time they get home, etc etc etc.
If AADHAR is allowed to expand it will be the worst blow of FREEDOM to HUMAN RACE & With Artificial Intelligence expanding so fast & Robots & Computer programmes controlling daily utilities in life, like Train Scheduling, Air Flights, All Humans will become numbers & trackable device. Reminds me of the movie "MATRIX".
Indians in India was a non taxpaying in early 1900's - Since past 68 years taxes have increased & almost all things are taxed - My suggestion is why not AADHAR pay a daily livelihood for food, house, electricity & phone & keep the rest instead of asking & using Income Tax as an excuse.

B. KRISHNAN

3 months ago

I think the fears about Adhaar invading privacy of individuals is exaggerated. When Government (from public funds) subsidises so many things, it is essential to see that only the targeted group are getting the benefits, in order to avoid leakage. In our country, everyone jumps in to criticise the Govt. Actually our anger should be turned against the courts for the delay the common man experiences today in getting justice!

REPLY

Aditya

In Reply to B. KRISHNAN 3 months ago

true, Aadhaar itself apart from PAN, Voter-Id, Vehicle Registration, Passport, Driving License just to name a few are all outsourced and subsidised huh? Beneficiaries obviously outsourced entities. What is all this subsidies for if some reports say there are people in this country who die of hunger everyday? Does it mean those reports are wrong OR probably they don't want to eat OR govts. just don't care about them, OR under the pretext of pursuing this end govts. devise means (such as the subject matter of this entire discussion) to control the population.
First link aadhaar with voter-Id.

Ramesh Bajaj

In Reply to B. KRISHNAN 3 months ago

The courts are hardly for the common man. An article, by Dr.S.D.Israni, in Moneylife, explains very well how courts are for a luxory which the well- heeled can approach. There is so much abuse of the process of law. Everyone must read this article.

Simple Indian

3 months ago

The very issuance of Aadhar, like PAN Card is dubious to say the least. In both cases, the concerned depts/org'ns merely accept any of the valid 'supporting' documents to issue the Aadhar / PAN Card, which is why millions of illegal immigrants, particularly from Bangladesh, and more recently Myanmar, have managed to procure Aadhar (which ironically states that it doesn't certify / bestow 'citizenship', yet is sufficient to avail of most Govt benefits meant for Indian Citizens). This itself is a big racket and scam being played on people of India, who will end up accommodating all these illegal immigrants' benefits by paying higher taxes to generate funds for Govt's welfare schemes. Hence, I wish Govt would discontinue Aadhar and instead start a new Citizenship Card which should be provided strictly on verification of all particulars of the applicant (as is done in case of Passport application). The USA has a robust Social Security No mechanism, which doesn't include biometric data, unlike Aadhar, yet has served its stated purpose of providing Govt benefits to the target groups. The very fact that a scheme which didn't even have any statutory backing, yet allowed the Govt (then UPA) to spend thousands of crores of public money was by itself questionable and sufficient reason for the SC to strike it down. Yet, the SC in its wisdom allowed the then UPA Govt to use Aadhar for limited Govt welfare schemes, which was bound to be misused/abused by the Govt. Also, the fact that Aadhar is being backed by the NDA Govt despite opposing it during UPA regime shows its sinister uses for the Govt, which may be unraveled over time.

Aditya

3 months ago

Instead of all those arguments for / against linking aadhaar-PAN, a directive from SC to link Aadhaar-VoterID first, or just make Aadhaar itself the only VoterID to eliminate bogus/ multiple VoterIDs, would check-mate, those in favor of the former!

SuchindranathAiyerS

3 months ago

Modi is being distracted, quite easily, with crazy ideas instead of pursuing what needs to be done. Further he swears that the anti national Constitution is his religion. Instead of tackling issues head on he is being fooled with ideas and "technology" gimmicks that will not deliver any concrete results but only wate time and money. Corruption cannot be tackled with Aadhar, demonetization or GeoTagging. The corrupt are not being prosecuted. Instead citizens are being harassed. He has given a Padma vi Bhushan to his "guru" Sharad Pawar and has inducted SM Krishna into the BJP. Given more time, he will become even more Khangress-UPA than the Khangress UPA. That is the direction he has taken. He has not tackled the corrupt VIPs. instead he has given a 35% pay hike to the least productive and most corrupt section of Indian society. I am not at all convinced about his bonafides any more

Nifty, Sensex Moving Sideways – Thursday closing report
We had mentioned in Wednesday’s closing report that Nifty, Senses were still range-bound. The major indices of the Indian stock markets made a small rally on Thursday and closed with minor gains over Wednesday’s close. The trends of the major indices in the course of Thursday’s trading are given in the table below:
 
 
Indian equity markets cheered the decisions of the Cabinet Committee on Economic Affairs and traded on a buoyant note during the mid-afternoon trade session on Thursday. Banking stocks witnessed a surge of around 500 points or 2% after the cabinet, at a meeting chaired by Prime Minister Narendra Modi on Wednesday night, approved an ordinance to amend the Banking Regulation Act to tackle the mounting non-performing assets (NPAs) of public sector banks. Investors' sentiments got a filip after the cabinet approved the National Steel Policy, 2017, along with other major decisions. According to market observers, the US Federal Reserve's decision to keep key interest rates unchanged also boosted investors' sentiments. On the NSE, there were 784 advances, 735 declines and 79 unchanged. The BSE market breadth was bullish -- with 1,374 advances and 1,287 declines.
 
Entering the lucrative mango drinks market with its 'Slurp' brand, dairy major Parag Milk Foods Ltd. will take the brand to the national level soon, a top company official said on Thursday. "We will take the product nationally after seeing public response to the product in Chennai, Mumbai, Delhi and Kanpur," company Chairman Devendra Shah told reporters here while launching the product. Parag Milk manufactures a range of dairy products and had earlier entered the beverages segment with its flavoured milk. According to Shah, the company has identified the beverages segment as the growth driver. According to Mahesh Israni, Chief Marketing Officer, the Indian fruit drink market is worth over Rs10,000 crore and the mango-based drink market is the largest in the segment.  The company’s shares closed at Rs237.00, down 0.11% on the BSE.
 
India's services sector, which continued to expand for the third successive month in April, registered the lowest reading during the three-month period. The Nikkei India Services Purchasing Managers' Index (PMI) stood at 50.2 in April, down from 51.5 in March and compared to 50.3 in February.  An index reading of above 50 indicates an overall increase, while below 50 an overall decrease. "April PMI data for the Indian service sector show how jittery the current economic environment is, igniting concerns among some businesses, despite remaining in growth territory. Slower and only marginal increases in new work and activity were seen, with these indicators close to the stagnation mark," said Pollyanna De Lima, economist at IHS Markit and author of the report. Firms were cautiously optimistic towards future performance, and have been so for a while, pointed out the analyst. Some of the sectoral indices in the Indian stock markets are likely to be bearish for medium term investors in this context.
 
The top gainers and top losers of the major indices are given in the table below:
 
 
The closing values of the major Asian indices are given in the table below:
 

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