Patna High Court
Union Of India (Uoi) vs Indradeo Kumar And Ors. on 20 September, 1962
Equivalent citations: AIR1963PAT129, AIR 1963 PATNA 129
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
1. The defendant petitioner in this case is the Union of India representing the General Manager and the Chief Personnel Officer, North Eastern Railway, Gorakhpur. The plaintiffs opposite party have filed Title Suit 273 of 1960 in the court of the 1st Munsif at Muzaffarpur for a declaration 'that the plaintiffs are entitled to promotion in the cadre of the T. T. I. of the grade of Rs. 200/- to 300/- with effect from 22-3-57 as per recommendation of the competent authority, the then Regional Superintendent.....'. The plaintiffs filed a petition on the 12th of August, 1961 for a direction to the petitioner to file the documents mentioned in their petition. On the 20th September, 1961, an affidavit of Mr. B.M. Kaul, Chief Personnel Officer, North Eastern Railway, was filed stating ;
"I have examined the relative documents and find that they have not been correctly specified. There is no recommendation of the Kegional Superintendent Muzaffarpur to the General Manager, Gorakhpur differing from the recommendation of the Selection Board dated 15-1-57. Subsequently, however, there is correspondence between the then Regional Superintendent, Muzaffarpur and the Chief Commercial Superintendent (P) and the Dy. General Manager (Personnel) bearing reference to the Selection held and provisionally finalised on 15-1-57.
I have carefully considered these references and the Mark Sheet of the candidates interviewed for file post of T.T.I. and Conductor and have come to the conclusion that they are un-published official records relating to the affairs of state and their disclosure will be prejudicial to public interest as they are confidential documents.
I do not, therefore, give permission to any one under Section 123 of the Indian Evidence Act, 1872 to produce the documents or to give any evidence derived therefrom.'' The matter was heard by the learned Munsif and, by his order dated 20th of December, 1961, he held that the affidavit of Mr. Kaul was not by a person who could claim the privilege on behalf of the Union of India under Section 123 of the Evidence Act, and that Mr. Kaul did not even state in the affidavit that he was the head of the department. Chiefly, in that view of the matter, he refused the privilege claimed on behalf of the Union of India and directed it to produce the papers by the 20th of January, 1962. On this date, however, another affidavit was filed, sworn by Mr. B.M. Kaul, Chief Personnel Officer, claiming the same privilege and only adding at the top that the deponent was the head of the personnel department and was in control and in charge of its records. On this fresh affidavit, the learned Munsif was asked to review and recall his previous order and allow the privilege claimed by the defendant under Section 123 of the Evidence Act. This application has again failed before the learned Munsif and therefore, the defendant has moved this Court is revision against the order dated 17th of March, 1962.
2. It seems to me that, even on the statement of Mr. Kaul in the second affidavit, he is not the head of department within the meaning of Section 123 of the Evidence Act, who could, by his affidavit, tell the court that the papers called for were the papers relating to the affairs of the State and it was not in the public interest to produce those papers in court.
In State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, the grounds on which such privilege can be claimed, the scope and manner of enquiry by the court when such privilege is claimed and the manner how it should be claimed have been elaborately considered by the Supreme Court. Gajendragadkar, J., who delivered the judgment on behalf of himself and B.P. Sinha, C.J., and Wanchoo, J., has stated at page 504 (column 2) :
"Since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the privilege it is necessary to lay down certain rules in respect of the manner in which the privilege should be claimed. We think that in such cases the privilege should be claimed generality by the Minister in charge who is the political head of the department concerned; if not, the Secretary of the department who is the departmental head should make the claim; and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary the Court may, in a proper case, require an affidavit of the Minister himself. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury."
Mr. Bose appearing for the petitioner submitted that the passage just extracted from the decision of the Supreme Court has got to be followed and appreciated with reference to the facts of that case in which the affidavit of either the Minister or the Secretary was necessary, but, in all cases, it is not necessary that the affidavit of the Minister or the Secretary should be there.
The section talks about the head of the department, and, Mr. Kaul is the head of the personnel department of the North Eastern Railway. That being so, his affidavit was the amdavit of the head of the department within the meaning of Section 123 of the Evidence Act. I am unable to accept this contention. It has been pointed out in the case decided by the Supreme Court reported in AIR 1961 SC 493 (supra) :
"Fair administration of justice between a citizen and a citizen or between a citizen and the State is itself a matter of great public importance; much more so would the administration of justice as a whole be a matter of very high public importance; even so, on principle, if there is a real, not Imaginary or fictitious, conflict between public interest and the interest of an individual in a pending case, it may reluctantly have to be conceded that the interest of the individual cannot prevail over the public interest. If social security and progress which are necessarily included in the concept of public goods are the ideal then injury to the said ideal must on principle be avoided even at the cost of the interest of an individual involved in a particular case. That is why Courts are and ought to be vigilant in dealing with a claim of privilege made under Section 123."
Referring to the case decided by the Privy Council in Robinson v. State of South Australia, 1931 AC 704, it has been observed (at page 508) :
"The judgment then proceeds to add that in, truth the fact that documents if produced might have any such effect upon the fortunes of the litigation is of itself a compelling reason for their production -- one only to be overborne by the gravest considerations of State policy or security."
In this background, it is to be remembered that such a privilege cannot be claimed by, and granted to, a person who is not the head of the department of the Government concerned. In this particular case, the Union of India is the defendant. It has got the Railway Department and there is a sepaparate Ministry which is known as the Ministry of Railways for this department. The Railway Minister is the political head of this department and the Secretary to the Ministry of Railways is the highest officer who is the head of this department. It is either the Railway Minister or the Secretary to the Ministry of Railways who can claim this privilege under Section 123 of the Evidence Act if he so thinks fit. He can call for the papers from the office of the railway administration concerned and, after examining the papers himself, he has first to decide as to whether the papers called for relate to any affairs of the State; if so, whether their production could cause public injury or impair public interest. It is only when he comes to this conclusion that he can withhold the permission for, or refuse, production of the document in court.
But then the gravity of such course has been pointed out, as discussed by the Supreme Court, in several English decisions as well as cases decided by Indian Courts. So, it seems to be the underlying principle that this privilege can be claimed by no lesser a person than the head of the department, meaning thereby, the particular department of the Government concerned. If the argument advanced by Mr. Bose is to be accepted, then in the Railway Department of the Government of India there are so many railway administrations throughout India and in one railway administration. there are so many departments as personnel department, engineering department, etc. Mr. Bose himself has drawn my attention to annexure 'I' to the petition in revision whereby as many as 18 officers are heads of departments mentioned in Appendix: XXXVIII of the Indian Railway Establishment Code, Volume II, wherein previously there were only 17 officers shown as heads of departments and to them 'Chief Personnel Officer' has also been added as evidence by annexure '1' to the petition. This appendix is in pursuance of Rule 2202 (9) of the Railway Supplementary Rules which provides :
"Head of a department for the purposes of these rules means an authority specified in Appendix XXXVIII.' It is obvious to me that for the grave purpose of Section 123 of the Evidence Act all these officers cannot be taken to be the heads of the Railway Department which is, in my opinion, the department of the Government of India spoken of, and envisaged in, Section 123 of the Evidence Act. In my judgment, therefore, on the affidavit of Mr. Kaul, the court rightly refused to allow the privilege under Section 123 of the Evidence Act on the first occasion and also was right in refusing to recall that order on the second occasion -- the order against which the present appliaction in revisioin has been filed.
Reference was made to the cases of Governor-General in Council v. H. Peer Mohd. Khuda Bux, AIR 1950 EP 228 (FB) and Lakhuram Hariram v. Union of India, AIR 1960 Pat 192. In the former case, the Director-General of Industries and Supplies was held to be the head of department of the Government concerned. It may be so in that case as he might be the head of the department of Industries and Supplies, which is a well known department of the Government, In the Patna Case the affidavit of the Chief Commercial Superintendent of the North Eastern Railway was treated to be an affidavit of the head of the department. But the point whether he was the head of the department or not was neither raised nor decided.
3. On the facts and in the circumstances of the case and also in the interest of justice however, I think it is necessary that a fresh opportuniy should be given to the petitioner, if it is so advised, to put in the affidavit of the head of the department in the light of the observations made above, claiming privilege under Section 123 of the Evidence Act in accordance with the rules laid down and principles of law enunciated by the Supreme Court in AIR 1961 SC 493. On such affidavit being filed the court below will, if necessary, hold the limited enquiry within the scope of the limits prescribed by the Supreme Court decision aforesaid and then come to its conclusion afresh as to whether the privilege claimed can be allowed or not. I would like to add that, in the affidavits filed by Mr. Kaul, it has been stated that some of the documents called for by the plaintiffs 'do not appear to have been correctly specified'. The court below may give an opportunity to the plaintiffs opposite party to correctly specify the documents called for by giving such extra particulars as may be necessary to trace them out and the head of the Railway Department, who may file the affidavit, may take into consideration the extra particulars supplied by the plaintiffs for specifying the documents called for. The plaintiffs should be directed to specify the documents by giving more particulars within two weeks from the receipt of the record from this Court and thereafter three months' time should be allowed to the defendant to put In the affidavit of the head of the department, if it is so advised, in the light of the observations made above.
4. In the result, the application fails subject to the observations made and direction given above and is dismissed but I would make no order as to cost.