Bharat Bhushan Srivastava vs Principal Director, The ...
2013 Latest Caselaw 3446 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 05.08.2013

+      W.P.(C) 4722/2013

       BHARAT BHUSHAN SRIVASTAVA                          ..... Petitioner

                          Through:Petitioner in person.

                          versus

       PRINCIPAL DIRECTOR, THE COMPTROLLER & AUDITOR
       GENERAL OF INDIA                    ..... Respondent

                          Through:

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

V.K.JAIN, J. (ORAL)

The petitioner before this Court applied to the CPIO in the Office of the

Comptroller and Auditor General of India, seeking certain information with respect

to the Departmental Promotion Committee meetings which took place in the years

1976, 1979 and 1980. Vide communication dated 30 th September, 2009, the

petitioner was informed that the information sought by him was not available and

therefore, it is not possible to furnish the said record to him. Being aggrieved, the

petitioner preferred an appeal before the Appellate Authority. Vide communication

dated 18th November, 2009, the Appellate Authority informed the petitioner that

since after making all out efforts by all concerned sections, the concerned records

and the documents were not traceable at that belated stage, his appeal was

dismissed. Being still aggrieved, the petitioner approached the Central Information

Commission. Vide order dated 9th June, 2010, the Central Information

Commission, inter alia, held as under:-

"3. Appellant claims that respondents could not take the plea of untraceability of the record no matter howsoever old because the Retention Schedule of the type of record mentioned in his RTI-application was over 35 years.

4. Respondents urged that they had made a diligent search to trace-out the record, which belong to the year 1976, and were unable to trace it.

5. I have no reason to disbelieve the agreement of the respondents. The record appears to be unavailable or untraceable. It is not possible to authorize any disclosure in respect of records confirmed to be untraceable."

2. The contention of the petitioner is that under the Manual of Office

Procedure in the Office of Comptroller and Auditor General of India

(Seventh Edition) 2003, the record, such as, the Minutes of DPC Meeting

and petitions, appeals, memorials on supersession by juniors are to be

preserved for a period of 35 years.

3. It is not known what was the period for which the aforesaid record

was required to be preserved before the year 2003. Be that as it may, the

fact remains that the PIO as well as the Appellate Authority were satisfied

that despite the efforts made by all the concerned sections, it had not been

possible to trace the records which the petitioner had sought under RTI Act.

The Central Information Commission noted that the respondent had made

diligent search to trace out the record which pertains to the year 1976 but

was unable to trace it. The Commission, therefore, was satisfied that the

aforesaid record is not traceable. In the absence of availability of the record,

it was not possible to supply the information which the petitioner had sought

under RTI Act. I see no reason to take a view different from the view taken

by the Central Information Commission in this regard.

4. The petitioner submits that in case the record was not traceable, the

Commission should have invoked its powers under Section 19(8)(b) of RTI

Act, which powers the Commission to direct the Public Authority concerned

to compensate the complainant for any loss or any other detriment suffered

by him. In my view, there was no occasion for the Commission to invoke

the aforesaid powers, in case it was satisfied that despite best efforts, the

respondents were not able to trace the aforesaid record. This provision, to

my mind, should be invoked only where the record, despite being available,

is not provided to the applicant and as a result thereof he suffers some loss

for which he needs to be compensated. A bona fide inability to trace the old

records cannot warrant levy of compensation.

The writ petition is devoid of any merits and is accordingly dismissed.

V.K. JAIN, J

AUGUST 05, 2013 KS