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Board of Education v. Rice, 1911, A.C. 179; Local Government Board v. Arlidge, 1915 A.C. 120; Denby (William) and Sons Ltd. v. Minister of Health (1936) 1 KB 337; Robinson v. Minister of Town and Country Planning (1947) 1 All. E.R. 851; Johnson and Co. Ltd. v. Minister of Health; (1947) 2 All E.R. 395.
Mr. Kotwal in the alternative contends that the consulting the High Court about its observations, the Governor has only complied with the constitutional requirement of Article 233 which requires the Governor to consult the High Court. Consultation with the High Court constituted part of deliberation on the report of the Enquiry Officer and on the cause shown by the petitioner. In these circumstances, it cannot be a material relating to which the petitioner is entitled to have an opportunity of explaining. And lastly, Mr. Kotwal contends that, at any rate, the observations of the High Court is a privileged document which cannot be disclosed in the interest of public policy. He has in this connection referred to the following decisions:
(36) Lastly, we agree with the learned Government pleader that the observations of the High Court would be a privileged document and therefore no complaint can be made of non-disclosure of that document.
(37) In a complaint was made against non-disclosure or supply of the remarks of the Public Service Commission by the civil servant. On behalf of the Government privilege was claimed and it was held by the Supreme Court that the report of the Public Service Commission was a privileged document to the disclosure of which a public servant was not entitled.
(38) In , a question arose whether the correspondence between the High Court and the Government relating to the confirmation of a judicial officer was a privileged communication. On behalf of the petitioner it was claimed that he was entitled to its disclosure. It was his case that the High Court had recommended his case that the High Court had recommended his confirmation in the past but the Government wrongly did not confirm him. On behalf of the Government privilege was claimed and it was held that the correspondence was a privileged document.
(39) The second contention raised by Mr.Phadke also for the reason stated above must fail.
(40) Taking all the facts and circumstances of the case, in our opinion, the petitioner had a reasonable opportunity of showing cause against the action proposed to be taken against him. After considering the confidential report of Mr. Hadole the High Court had come to the conclusion that it was necessary to hold a departmental enquiry against the petitioner, the allegations made against the petitioner being one of corruption. Recommendation was made to the Governor by the High Court to hold a departmental enquiry and appoint Mr. Seth, District and Sessions Judge., Nagpur, as the Enquriy Officer. The Government accepted the recommendations of the High Court and Mr. Seth was appointed as an enquiry officer. It is not in dispute that Mr. Seth conducted the enquiry in good faith and with all fairness following fully the procedure which he had to follow under Rule 55 of the rules. The petitioner was served with a charge-sheet along with the allegations on which the charges were founded. Whatever document the petitioner wanted to have produced were produced. Witnesses were examined in his presence. He had an opportunity of cross-examining them. Throughout he was allowed assistance of a legal adviser. Witnesses which the petitioner wanted to be examined in his defence were examined. The petitioner wanted to make an oral statement in addition to the written statement filed by him and that was allowed, recorded and considered. After considering the entire evidence and the material before the Enquiry Officer, the Enquiry Officer held that the petitioner was guilty of corruption on one count. After consultation between the Governor and the High Court, a show cause notice was given to the petitioner asking him to show cause why penalty of dismissal should not be imposed on him.. The petitioner showed cause that was considered by the Governor and the Governor in consultation with the High Court and the Public Service Commission had imposed the penalty. These being the circumstances of the case, in our opinion, there had been no infringement of the provisions of Article 311 of the Constitution. The only grievance made by the petitioner was that the observations of the High Court made on the report of Mr. Seth as well as on the reply of the petitioner to show cause notice were not disclosed to him. We have held that the objection raised is not tenable. The observations of the High Court was not a material which was in the nature of evidence establishing the guilt or otherwise of the petitioner. On the other hand, the observations were made in the discharge of the constitutional duty cast on the High Court. Apart from this, as we have said, the observations is a privileged document, to the disclosure of which the petitioner is not entitled to. If disclosure of documents of this type is permitted it may possibly result in affecting free and frank expression of opinion which is very essential in the interest of public policy.