Parmod Kumar Gupta vs Public Information Officer

Rajiv Shakdher, J.—The petitioner has filed an application on 13.07.2006, under the Right to Information Act, 2005 (RTI Act), with the Bharat Sanchar Nigam Limited (in short BSNL), seeking certain information. The said information was not provided by the PIO of BSNL. The petitioner filed an appeal with the First Appellate Authority. It is the case of the petitioner that the appeal was not actioned. Consequently, the petitioner preferred an appeal with the Central Information Commission (in short CIC). The CIC by the impugned order dated 05.07.2007, rejected the second appeal of the petitioner.

It is in this background that the petitioner has approached this court in a petition under Article 226 of the Constitution of India. Notice in this writ petition was issued on 06.02.2008. Since then several hearings have been held. Crucially, the proceedings of 20.07.2010 show that BSNL had sought time to produce the relevant records available in the office of the AGM (Legal), CGMT, BSNL, Agra. In subsequent proceedings a stand was taken on behalf of BSNL that the relevant file pertaining to the petitioner being file No. ST-42/Pro-Sr.TOA/CS/31 is not traceable. Accordingly, by an order dated 17.01.2011 this court directed BSNL to file an affidavit as to when it was discovered that the aforementioned file was not traceable. The court also directed BSNL to state in the affidavit, the circumstances under which the said file went missing and the consequential action taken by BSNL in that behalf.

Pursuant to the said order an affidavit was filed on behalf of BSNL, to which an affidavit in response was filed by the petitioner.

Ms. Varma, who appears for the petitioner, has argued that at some stage the petitioner was given inspection of some records pertaining to him. She states that apparently no inspection was given qua the file in issue which dealt with the promotion of the petitioner. She further submitted that in a subsequent proceeding involving another employee of BSNL, one Mr. Y.K. Rathore, it came to light that the file in issue was available with BSNL. For this purpose, Ms. Varma has drawn my attention to the affidavits dated 03.12.2010 and 09.12.2011 filed by the petitioner. These affidavits are appended at pages 130 and 152 of the paper book. Reliance is specifically placed on the averments made in paragraph 5 of both affidavits.

Mr. Agrawala, learned senior counsel who appears for BSNL, has sought to place reliance on the rejoinder affidavit dated 27.02.2012 (which was filed on 03.03.2012). The relevant extracts from that affidavit is noted hereinbelow:

Respondents 2 to 3 crave leave of this Hon''ble Court to file this short reply as the only averment relevant for the adjudication of the present lis, as contained in para 5 of the petitioners reply is that although the answering respondent discovered on 22.02.2007 that the file in question was missing but this stand of the answering respondents is falsified by the fact that in respect of another Applicant Mr Y.K. Rathore the answering respondents provided a reply dated 18/20.06.2008 in respect of an RTI query dated 07.06.2008? from the same allegedly missing file bearing No. ST-42/Pro-Sr./TOA-/-."The above file number is also given in the reply dated 18/20.06.2008 to Sh. Rathore relied and filed by the petitioner (at internal page 8) of his reply affidavit.

At page 8 supra the full file number from which Sh. Rathore was given reply is given as under:-

ST-42/Promo-Sr.TOA/CH.III/19/dated 16.06.2008

It is the respectful submission of the answering respondent that this particular file which is a part of the missing file was opened by the answering respondents on 17.01.2002. Therefore, there is no variance, much less falsity in the stand of the answering respondents....

Mr. Agrawala has also referred me to an earlier affidavit of 18.05.2011 filed on behalf of BSNL to demonstrate that it was not possible to carry out an inquiry and fix responsibility of the officials who were responsible for the aforementioned file going missing since the file had passed through several hands. More specifically, it is stated in paragraph 5 of the said affidavit that since 1994 the file has passed through six (6) chief superintendents of telegraph, four (4) section supervisors and three (3) AGMs besides other dealing officials. The stand taken is that, since most of these officers have superannuated and some of them have since passed away, it was administratively difficult to fix responsibility qua the missing file.

Having heard the learned counsels for the parties and perused the stand taken on affidavits, it is quite evident that BSNL has stuck to its stand that the aforementioned file is not traceable. I had put to Mr. Agrawala as to whether any attempt was made to reconstruct the file. Mr. Agrawala says that he has no instructions in that behalf.

On the issue, as to fixation of responsibility of officers who dealt with the file, I had specifically put to Mr. Agrawala as to whether BSNL still adhered to its stand that the file went missing, as indicated in their affidavit, on 20.02.2011. Mr. Agrawala says that BSNL adheres to this stand. Therefore, in these circumstances, BSNL is directed to produce before this court the reconstructed file. In case the file is not reconstructed; before the next date of hearing the file will be reconstructed and produced in court. Since, according to BSNL, the file went missing on 20.02.2007, an affidavit will be filed naming all the officers who would have in the ordinary course of their duties dealt with the file and, their present status, in BSNL, that is, whether they have retired or are still in service. Let the needful be done within three weeks.

List on 09.07.2013.