Sunday, 31 July 2016

When files go missing from government offices

When files go missing from government offices*

Take help of Newton and government manuals

More than a month after it became public knowledge that crucial coal files – the exact number is not known – which contain proof of illegal allotment of coal blocks were missing, the CBI filed two preliminary enquiries (PEs) against “unknown persons”. 

The million-dollar question is: ‘How can government files go missing?’ We are talking of physical files. Since a file is not a self-propelled object, its movement can be explained only by Isaac Newton’s First Law of Motion: “An object either is at rest or moves at a constant velocity, unless acted upon by an external force.” If we rule out disasters such as earthquake, flood, bomb explosion and fire caused by, say, short-circuit –– as we should in this case – the external force is human being. While Newton explains the force that causes movement, the man-made rules ensure that every file is given a ‘registered identity’ – name and number entered in a prescribed register – at the time of its ‘birth’ (creation), a definite place of stay (exact location depending on its status), a custodian and that, when on move, it leaves behind easily traceable foot marks.

Barring secret organisations like IB and RAW where practically every file is ‘secret’, every department has two types of files, ‘unclassified’ and ‘classified’ (‘Top Secret’, ‘Secret’ and ‘Confidential’). We do not know how many of the missing files are ‘classified’ and how many are ‘unclassified’. The rules of record management – from creation to destruction – are prescribed in great detail: for unclassified files mainly in the “Central Secretariat Manual of Office Procedure” issued by the Department of Administrative Reforms and for classified files in the “Departmental Security Instructions’ issued by the Ministry of Home Affairs. The Home Ministry’s ‘instructions’ being ‘classified’ are not available to the public. Fortunately, an office manual prepared by an establishment under the control of that very Ministry has made available on the internet its own manual that contains those classified ‘instructions’. 

The custodian of a file could be anybody: a record keeper to a section officer for unclassified files; under secretary to secretary for classified files. For every category of files there are detailed rules regarding movement and for keeping written record of movement, whether within the Section/Department or outside or to the record room or to the archives and for destruction. The classified files are to be kept in lock and key in secured rooms. There are also rules for inspection to ascertain whether the prescribed provisions are being followed. The program to computerise movement of files has hardly taken off.

Despite all these measures, files go ‘missing’. Having worked in the Central Government for more than 37 years, I have fairly good idea of how and why it happens. It is all due to human action. The actions of a normal human being, the ‘external force’ behind a file’s movement, are driven by human brain, conscious or sub-conscious, own or someone else’s. The human brain is capable of being very kind and helpful as well as very mischievous and harmful, of having elephantine memory as well as short memory. And that explains the circumstances under which files can go ‘missing’, accidentally or by design, even in the absence of disasters listed above. Consider these circumstances which are not hypothetical: movement is not recorded (case of dereliction of duty) and not even remembered by anyone; a file is kept at a wrong place either deliberately (with ulterior motives) or accidentally; it is declared ‘missing/untraceable’ to harass someone or to save someone from embarrassment/harassment; it is ‘stolen’ (wrongfully taken away by somebody from the office) or destroyed with a purpose. Sometimes files are reported ‘missing’, again either due to mistake or by design, when there is a large-scale movement due to splitting of an organisation or shifting of the office to another place. Obviously, human errors cannot explain disappearance of large number of coal files.  

There could also be a situation when the very existence of a file is denied. I learnt it way back in 1969. During his interrogation by a Parliamentary committee, a Secretary denied the very existence of a file I had seen and read only a few weeks earlier. It contained two illegal orders passed by the then finance minister, one against a Cabinet minister and the other against me.  

Will the CBI be able to trace the missing files? It appears difficult, if not impossible. Mark the terms: ‘preliminary enquiries’ and ‘unknown persons’. Section 154 of the Criminal Procedure Code (Cr. P.C.) requires that a complaint of cognizable offence has to be in writing, signed by the complainant and has to be registered. The Cr. P.C. has no provision for ‘PE’. The term is the police’s contribution to the legal lexicon. Chapter 9 of the CBI Manual says: “When a complaint is received or information is available which may, after verification…. indicate serious misconduct on the part of the public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 of Cr. P. C., a preliminary enquiry may be registered after obtaining approval of the Competent Authority.” There are differences of opinion on the legality of PE. Those in favour argue that since registration has serious consequences for the accused - loss of reputation and liberty, mental anguish, stigma, etc – it should not be a mechanical task, rather police officers must first ensure that a cognizable office has been committed. Those against argue – not without any basis – that it gives enough time to offenders to destroy evidence. In different cases, different benches of the Supreme Court have given diverse judgements, ranging from ‘police officer has no option but to register the complaint’ to in an appropriate case, police officers have a duty to make a PE so as to find out whether the offence has been committed or not’. Since February 2012 the legal validity of ‘PE’ is under the consideration of a Constitution Bench headed by the Chief Justice of India. Whatever the final legal view, in the present case when the Coal Minister has publicly admitted that certain files are missing, there cannot be any justification for the CBI to take the plea that PEs are needed to ascertain whether files are really missing.  

Also, how can the CBI claim that those responsible are ‘unknown persons’? These files are neither very old nor orphans. Going by rules, custodians are easily identifiable and movements can be tracked. But what will CBI do if the registers in which movements are recorded are also ‘missing’? Or, if a few or all ‘missing’ files are discovered with crucial pages missing? Moreover, there may be problem in getting government sanction for action if the custodian is of the rank of joint secretary or above.

Can penal action be taken against those responsible for misplacing files? The Home Ministry instructions treat the loss of classified files as ‘breach of trust’ and prescribe various actions, including police action. I have not come across similar rules for unclassified files but a government file being a public property, action can surely be taken under law. I have not heard of penal action against anyone responsible for misplacing a file.

So, the search of ‘missing’ files may drag on, keeping on hold the main investigations. If the files are ultimately declared lost or found with crucial pages missing, it may be difficult to punish those who gave orders (in those files) for arbitrary allotment of coal blocks. Even if custodians of files are punished for negligence of duty, those actually involved in the scam will escape. Not a bad deal!

However, a Delhi High Court judgment gives a ray of hope to the PIL petitioners. The court has held that the Central Information Commission can conduct an enquiry by itself or ask the concerned department to track the missing files or fix the responsibility of the officers responsible for the files that go missing. The court has ruled that unless appropriate action is taken against the officials responsible and accountability fixed, “it would be possible for any department to deny information which otherwise is not exempted from disclosure”.

Devendra Narain
May 3, 2015

*The article was written in October 2013 after it was learnt that certain files containing information about illegal allotment of coal blocks were missing from the Ministry of Coal. The UPA was in power at that time. The issues discussed are permanent because it is a common explanation that ‘the file is missing.’

Latest episode is disappearance of files relating to Ishrat Jahan case.  Since no one would say who has done it - someone must have done at someone's behest - the government has filed FIR. It would be a miracle if police action discovers these files. Who knows, these files might have been burnt, like the film 'Kissa Kursi Ka" during the Emergency, i.e. Indira Gandhi's dictatorship.

October 2016