State
of Bihar Vs. Kripalu Shanker [1987] INSC 136 (28 April 1987)
KHALID,
V. (J) KHALID, V. (J) OZA, G.L. (J) CITATION: 1987 AIR 1554 1987 SCR (3) 1 1987
SCC (3) 34 JT 1987 (3) 49 1987 SCALE (1)1070
CITATOR
INFO : RF 1988 SC 782 (45)
ACT:
Contempt
of Courts Act, 1971—Noteings made by officers on Government files cannot be
made the basis of contempt action against them.
HEADNOTE:
The
first Respondent who was discharging the functions of a Public Relations
Officer in the Bihar Irrigation Department when that post fell vacant in 1979,
filed a writ petition claiming the post for himself when another person was
appointed to that post for six months. At the time of hearing, it was
represented on behalf of the State that the other person had been appointed only
on ad hoc basis for a period of six months and that after the expiry of that
period, the matter would be referred to the Public Service Commission and that,
at that stage, the case of the first Respondent would also be considered. On
this assurance, the petition was allowed to be withdrawn on 19th December,
1979.
However,
the assurance was not respected and no reference was made to the Public Service
Commission for making a regular appointment to the post, and, in April, 1983,
yet another person was appointed to the post, again on ad hoc basis, and the
same was challenged by 'another writ petition. When that petition was heard,
the Advocate General informed the High Court that the appointment was only ad
hoc and gave the impression that a regular appointment would be made after the
expiry of six months and, on that representation, the High Court disposed of
the petition on May 4, 1983, directing inter alia, that the post should be
filled up in a regular way, and that, in case the appointment was not made
within a period of six months, the ad hoc appointment shall stand terminated.
The six months' period was to expire on October 17, 1983, and according to the
State Government, the Irrigation Department had written to the Public Service
Commission on April 4, 1983 to give concurrence to the appointment of the ad
hoc incumbent since it was an ex-cadre post and he had been selected by a
Selection Committee but that the concurrence was given only on. April 2, 1985
and thereafter the matter was further examined with reference to the provisions
of the Rules governing reservations and a decision was taken to send a
requisition to the Public Service Commission for advertising the post. Accordingly,
the post was advertised on May 12, 1985, setting out the eligibility criteria
for selection to the post. The 2 advertisement was challenged by yet another
petition on the ground that the eligibility criteria had been so drafted as to
suit only the ad hoc incumbent of the post. The High Court, which summoned the
relevant records from the Government, felt, on their examination, that the
direction given by it while disposing of the earlier writ petition on May 4,
1983 had been disregarded, and, issued notices to the appellants calling upon
them to show cause why they should not be punished for contempt for ignoring
the order dated May 4, 1983. The appellants expressed regret but contended that
no contempt had been committed by them for the reason that expression of views
in the notings made on the files, whether they were right or wrong, did not
amount to contempt of Court, as no order had been passed appointing the ad hoc
incumbent after October 17, 1983. The officials of the Public Service
Commission pleaded that the appointment of the ad hoc incumbent from October
18, 1983 should be treated as a fresh appointment, That they did not know about
the order passed by the High Court, and that though concurrence was given, it
had been withdrawn when the correct facts were made known to them.
The
High Court, after going through the relevant files of the State Government and
the Public Service Commission came to the conclusion that, although the State
of Bihar as a juristic person was not liable for contempt for the reason that
the Chief Minister had minute that its order must be obeyed and the Chief
Secretary had noted that the ad hoc incumbent should not be granted further ad
hoc appointment, the appellants, inspire of the advice of the Advocate General
that taking any step to appoint the ad hoc incumbent would amount to contempt
of Court, were busy trying to find out how to ignore its earlier order. The
High Court further observed that when its earlier direction was that regular
appointment should be made through the Public Service Com- mission, there was
no occasion for seeking the concurrence of the latter for the appointment of
the ad hoc incumbent.
According
to the High Court, the whole file gave the impression that the appellant
Officers were not reconciled to the orders passed by it earlier. In these
premises, the High Court convicted the appellants for contempt and the ad hoc
incumbent of the post for abetting contempt sentencing each of them to a fine
of Rs.50 in default to suffer simple imprisonment for two weeks.
Allowing
the appeals and discharging the contempt orders passed by the High Court,
HELD:
Notings made by officers in the files cannot be made the basis of contempt
action against each such officer who makes the notings. [10D] 3 (i) A
government functions by taking decisions on the strength of views and
suggestions expressed by the various officers at different levels, ultimately
getting finality at the hands of the Minister concerned. Till then, conflicting
opinions, views and suggestions would have emanated from various officers at
the lower level. There should not be any fetter on the fearless and independent
expression of opinions by officers on matters coming before them through the
files. The expression of opinion in internal files are for the use of the
department and not for outside exposure or for publicity. To find officers
guilty for expressing their independent opinion, even against orders of courts
in de- serving cases, would cause impediments in the smooth functioning of the
Government. [9H; 10A-C] (ii) Officers of the Government are often confronted with
orders of courts which are impossible of immediate compliance for various
reasons. They may find it difficult to meekly submit to such orders. On such
occasions, they will necessarily have to note in the files, the reasons why the
orders cannot be complied with and also indicate that the Court would not have
passed those orders if full facts were placed before them. The notings differ
from officer to officer. It may well be that the notes made by a particular
officer, technically speaking, is in disobedience of an order of the Court or
may be in violation of such order, but a more experienced officer sitting above
him can always correct him. We must guard against being over sensitive, when we
come across objectionable notings made by officers, some times out of
inexperience, some times out of over zealousness and some times out of
ignorance of the nuances of the question of law involved. [11A-B] (iii) The
functioning of the Government in a State is governed by Art. 166 of the
Constitution. A study of this Article makes it clear that the notings in a file
get culminated into an order affecting rights of parties only when it reaches
the head of the department and is expressed in the name of the Governor and
authenticated in the manner provided in Art. 166(2). Viewed in this light, it
cannot be said that what is contained in a notes file can ever be made the
basis of an action either in contempt or in defamation. The notings in a notes
file do not have behind them the sanction of law as an effective order. It is only
an expression of a feeling by the concerned officer on the subject under re-
view. To examine whether contempt is committed or not, what has to be looked
into is the ultimate order. The expression of opinion in notes file at
different levels by concerned officers will not constitute Criminal Contempt;
it would not constitute Civil Contempt either, for the reason that mere
expression of a view or suggestion will not bring it within the vice of sub-s.
(c) ors. 2 of the Contempt of Courts Act, 1971, [12A-E] 4 Bachhittar Singh v.
State of Punjab, [1961] Supp. 3 S.C.R. 713, relied on.
(iv)
The internal notes file of the Government, maintained according to the Rule of
Business, enjoys quasi- privilege and a disclosure in such communications
cannot be made the basis of an action in contempt. The general principle on
which confidentiality of State documents should be protected is that if a
person is involved in litigation, the Courts can order him to produce all the
documents he has which relate to the issues in the case. Even if they are
confidential, the Court can direct them to be produced when the party in
possession does not produce them, for the other side to see, or, at any rate,
for the Court to see. When the Court directs production of these documents there
is an implied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a
limitation that the side for whose purpose documents are summoned by the Court
cannot use them for any purpose other than the one relating to the case
involved. [10E-F] Home Office v. Harman, [1981] 2 W.L.R. 310; Harman v.
Secretary
of State for the Home Department, [1983] A.C. 280 and S.P. Gupta' v. Union of
India, [1982] 2 S.C.R. 365, referred to.
(v)
In this case, the Court, after looking into the notes file could have passed
appropriate orders giving relief to the affected party and expressing its
displeasure at the manner in which its order was implemented instead of
initiating action on the notings made in the file. That way the Court would
have enhanced its prestige. [18B-C]
Civil
Appellate Jurisdiction: Civil Appeal No. 871 of 1986 etc.
From
the Judgment and Order dated 29.1.1986 of the Patna High Court in Misc.
Judicial Case No. 356 of 1985.
K.K.
Venugopal, Jaya Narain, R.P. Singh, M.P. Jha, B.P. Singh, Ranjit Kumar, Ranjan
Dwivedi and P.P. Singh for the appearing parties.
The
Judgment of the Court was delivered by KHALID, J. These appeals are directed
against the Judg- ment of a Division Bench of Patna High Court in Misc. case
No. 356 of 1985. Appeal No. 871 of 1986 is by the State of Bihar, Appeal No.
916 5 jointly by Srideo Mishra, Judicial Commissioner, Ranchi (at the relevant
time, Secretary-cum-Legal Remembrance, Department of Law, Government of Bihar,
Patna) and Mrs. Radha Singh, Commissioner, Ranchi Division, Ranchi (at the
relevant time Additional Irrigation Commissioner., Patna), Appeal No. 933 by
Subh Chandra, Jha, Public Relation Officer, Irrigation Department, Government
of Bihar, Patna and Appeal No. 1178 by Birkeshwar Prasad Singh, now Professor
and Head of Department Political Science, Magadh University (Member, Bihar
Public Service Commission, Patna at the relevant time). The appellants have
been convicted by the High Court for contempt of its order and have been
sentenced to a fine of Rs.50 in default to suffer simple imprisonment for two
weeks. The High Court had issued contempt notice against some others also.
Those notices were discharged against them.
The
background facts necessary can be now stated in brief as follows:
In
the Irrigation Department of the State of Bihar, there existed a post of Public
Officer. This post became vacant some time in 1979. One Arun Kumar Verma was
appointed to that post for six months. At that time one Kripalu Shanker was
discharging the functions of Public Relation Officer. He laid claim to that
post. He did not succeed. The Secretary to the Department did not accede to his
request.
Therefore,
he filed C.W.J.C. No. 3632 of 1979. When the case came up for hearing, it was
represented on behalf of the State that Shri Verma was appointed only on ad hoc
basis for a period of six months and that after the expiry of six months, the
matter would be referred to the Public Service Commission for consideration and
at that stage the case of Kripalu Shankar also will be considered. It is
submitted that on this assurance by the State, the petition was al- lowed to be
withdrawn as per order dated 19.12.1979. It appears that this assurance was not
respected, no reference was made to the Public Service Commission for regular
appointment and the matter was kept in abeyance for a long time. It is stated
that in April, 1983, by which time Dr.
Jagannath
Mishra had become Chief Minister, the State Government appointed Subh Chandra
Jha as P.R.O. again on ad hoc basis. This gave rise to the filing of petition
no. 1534 of 1983 which was disposed of on 4.5.83. It was contended that this
appointment was made without any advertisement and without consultation with
the Public Service Commission. The learned Advocate General informed the Court
when the matter came up for heating that the appointment of Jha was only ad hoc
giving an impression that regular appointment would be made after the expiry of
six months. On this representation the following order was passed by the Court:
6
"In the circumstances we direct that the post of Public Relations Officer
in the Irrigation Department on which respondent 3 has been appointed on ad hoc
basis should be filled up in a regular way. In case the appointment is not made
within the period of six months, the ad hoc appointment shah stand terminated.
We further direct that the fact that the respondent No. 3 has worked on the
post on ad hoc basis will not be taken to be a qualification for the purpose of
any appointment through regular method on the post of Public Relations
Officer." The six months' period, according to the above order, was to
expire on 17.10.1983. The case of the State is that the Irrigation Department
had as early as 4.4.1983 written to the Public Service Commission to give
concurrence to the appointment of Shri Jha, since his post was an ex-cadre post
and since he was selected by a Selection Committee. Concurrence was given on
2.4.85. The Government thereafter examined the matter in consultation with the
Personnel (Administrative) Reforms Department, with reference to the provisions
of the Rules governing reservations. The Government took a decision to send a
requisition to the Bihar Public Service Commission for advertising the post.
The Commission finally advertised the post on 12.5.1985, setting out the
eligibility and criterion for selection.
Another
Writ Petition was filed in the High Court as C.W.J.C. No. 2354/85 with the
allegations that the advertisement was specially drafted to suit only Subh
Chandra Jha. The matter was listed for admission on 13.6.1985.
During
the hearing of this petition the High Court felt on going through the records
including the notes file summoned for production by the Court that its
direction in C.W.J.C.
No.
1534/83 was disregarded and, therefore, rule was issued upon the respondents to
show cause why they should not be punished for contempt of the Court for
ignoring its order dated 4.5.1983, in the above mentioned writ petition.
The
State of Bihar and the Commissioner-cum-Secretary, Irrigation Department who
were respondent nos. 1 & 2 before the High Court expressed regret but at
the same time con- tended that no contempt had been committed by them for the
reason that expression of views in the notings made on the files whether they
were right or wrong did not amount to contempt of court and that no order was
passed appointing Subh Chandra Jha after 17.10.1983 to invite any contempt
action. The third respondent also pleaded similarly and expressed regret for
any omission on his part. The Bihar Service Commission and its Executive
Officer stated that they had not 7 committed any contempt, that Subh Chandra
Jha's appointment from 18.10.1983 should be treated as a fresh appointment, that
they did not know about the order passed in petition no. 1534 of 1983, that
though concurrence was given, it was withdrawn when the correct facts were made
known to them and that the withdrawal of the concurrence was duly communicated.
The other respondents also adopted similar stand in the returns filed by the
end.
Arguments
in the contempt matter were heard for some time, and they were concluded on
12.8.1985 and the case was posted for Judgment. The Court went through the
Government files and the files of the Bihar Public Service Commission.
From
the noting in the file, the High Court discovered that Mrs. Radha Singh, the
then Additional Irrigation Commissioner and Birkeshwar Prasad Singh, Member
Bihar Public Service Commission and Sanjeevan Sharma, Section Officer, Bihar
Public Service Commission, had also a part in the matter.
Notices
were, therefore, directed to be issued to them as well. They appeared and were
heard on 25.9.1985.
The
High Court considered the question of contempt on the following facts, which
accord- ing to it were undisputed:
(i)
The ad hoc appointment of S.C. Jha must be terminated on 17.10.1983 as per its
order.
(ii)
He was still working as P.R.O. with the acquiescence of the concerned officers.
(iii)
Concurrence of the Public Service Commission was sought, for his fresh ad hoc
appointment.
(iv)
The Public Service Commissioner gave concurrence to the ad hoc appointment from
October, 1983, by its order in May, 1985.
The
High Court expressed itself, of what it felt about the disobedience of its
order in para 4 of the Judgment as follows:
"The
State Government has ignored the order of the High Court. It had, therefore, to
be made party. The Irrigation Commissioner-cum-Secretary is responsible for
every act of his Department. It was, therefore, but natural that the proceeding
should be drawn up against him also. Shrideo Mishra, Legal Remembrancer was
proceeded against, as he advised the State Government on 10.10.1983 to seek
concurrence from the Commission in the fresh ad hoc appointment of Subh Chandra
Jha knowing ball well the dictate of 8 this Court that services of Subh Chandra
Jha must be terminated after the expiry of six months. Incidentally, it may be
stated once again that the six months period had expired on 17.10.1983. The
Public Service Commission and the Special Executive Officer thereof have been
proceeded against for granting concurrence to the Ad hoc appointment of Subh
Chan- dra Jha. Subh Chandra Jha himself has been proceeded against for master
minding the whole affair. Proceeding is against him too on that score. The
proceeding was initiated against A.U. Sharma on the footing that he was the
Irrigation Commissioner in October, 1983 when the service of Subh Chandra Jha
had to be terminated. That is how the condemners have been proceeded
against." The High Court found the officers guilty for the reasons given
below in Paragraph 22 of the Judgment, which we read so that the approach of
the High Court could be properly appreciated.
"It
is necessary to consider the submission urged by learned Advocate-General on
behalf of the officers of the State and the public service commission. The
General submission was, that notings did not represent the concluded decision
of the Government, and there- fore, the officers were not liable for con- tempt
of court. The proposition advanced by learned Advocate General is rather too
wide. A Government file is not an individual's private property. It is public
property. The opinions expressed therein are liable to reduce the credibility
and the binding nature of the orders passed by the High Court, and that would
amount to denigration of the State Judiciary. No officer has the right to abuse
the High Court or to ignore the orders passed by the High Court. I do not for a
moment contend that for every noting in the file contrary to the view taken by
the High Court will amount to contempt of court. It will depend upon the nature
of the view noted in the file and whether the nothings are intended to set the
High Court's order at nought maliciously. In the present case, the order of the
High Court was explicit. The Advocate General had advised explicitly that
taking any steps to appoint Subh Chandra Jha ad hoc would amount to contempt of
court and yet the officers were busy trying to find out how to ignore the High
Court order. When the High Court's direction was to make the regular
appointment through the 9 B.P.S.C. where was the occasion for seeking
concurrence of ad hoc appointment of Subh Chandra Jha. The whole file gives the
impression that the officers in the state were not reconciled to the orders
passed by the High Court. I am, therefore, unable to hold that some of the
officers were not liable for contempt of court." After considering the
factual matrix before the Court, the Court held that there was no disobedience
of its order by the Government and that the Government had taken a decision not
to continue the ad hoc appointment but observed as follows:
"The
State of Bihar as a jurisdic person has certainly not committed contempt.
Because their Chief Minister Shri Chandresekhar Singh wrote on 8.1. 1984 that
the High Court order must be obeyed. On 10.3. 1984, the Chief Secretary noted
that Shri Jha should not be granted ad hoc appointment ...... the State of
Bihar therefore cannot be held to be guilty of contempt of this Hon'ble Court
...... " After this finding, the High Court held some of the officers of
the Government guilty solely on the basis of the views expressed by them in the
files, which were not, in fact, accepted by the Government and which were only
at the stage of suggestions and views. Shri K.K. Venugopal, the learned counsel
for the State contended that it would be unsafe to initiate action in contempt
merely on the strength of notings by officials on the files, expressing their
views and to do so would imperil the working of various departments in a
Government in a democracy and would have far reaching consequences. Some times
a view expressed by an officer may be incorrect. The view so expressed passes
through various hands and gets translated into action only at the ultimate
stage. The views so expressed are only for internal use. Such views may
indicate the line of thinking of a particular officer. Until the views so
expressed culminate into an executable order, the question of disobedience of
Court's order does not arise. Though the State Government have been found not
guilty, the State has filed the appeal to protect its officers from independent
and fearless expression of opinion and to see that the order under appeal does
not affect the proper functioning of the Government.
It
cannot be disputed that the appeal raises an important question of law bearing
upon the proper functioning of a democratic Government. A Government functions
by taking decisions on the strength of views and suggestions expressed by the
various officers at different levels, ultimately getting finality at the hands
of the Minister 10 concerned. Till then, conflicting opinions, views and sug-
gestions would have emanated from various officers at the lower level. There
should not be any fetter on the fearless and independent expression of opinions
by officers on matters coming before them through the files. This is so even
when they consider orders of courts. Officers of the Government are often times
confronted with orders of courts, impossible of immediate compliance for
various reasons. They may find it difficult to meekly submit to such orders. On
such occasions they will necessarily have to note in the files, the reasons why
the orders cannot be complied with and also indicate that the courts would not
have passed these orders if full facts were placed before them. The expression
of opinion by the officers in the internal files are for the use of the
department and not for outside expo- sure or for publicity. To find the
officers guilty for expressing their independent opinion, even against orders
of courts in deserving cases, would cause impediments in the smooth working and
functioning of the Government. These internal notings, in fact, are privileged
documents. Notings made by the officers in the files cannot, in our view, be
made the basis of contempt action against each such officer who makes the
notings. If the ultimate action does not constitute contempt, the intermediary
suggestions and views expressed in the notings, which may sometimes even amount
ex-facie disobedience of the courts orders, will nor amount to contempt of
court. These notings are not meant for publication.
In
our considered view the internal notes file of the Government, maintained
according to the vales of business, is a privilege document. if the Government
claims privilege or quasi-privilege regarding the notes file we will not be
justified in rejecting the claim outright. In this case, the notes file was
brought to the Court not voluntarily by the Government. It was summoned for by
the Court. The Court can always look into it. The right of the Court to look
into any files, can never be denied. The contents of the notes file brought to
Court got communicated to the Court because the Court looks into it. It would
be dangerous to find an action for contempt, for the views expressed in the
notes file, on the discovery of unpleasant or unsavory notes, on a perusal of the
notes file by the Court, after getting them summoned.
This
would impair the independent functioning of the civil service essential to
democracy. This would cause impediments in the fearless expression of opinion
by the officers of the Government. The notings on files differ from officer to
officer. It may well be that the notes made by a particular officer, in some
cases, technically speaking is in disobedience in an order of the Court or may
be in violation of such order but a more experienced officer sitting above him
can always correct him. To rely upon the notings in a file for the purpose of
initiating contempt, in our view, therefore, would be to put the functioning of
the Government out of gear. We must guard against being over sensitive, when we
come across, objectionable notings made by officers, sometimes out of
inexperience, sometimes out of over zealousness and sometimes out of ignorance
of the nuances of the question of law involved.
Now,
the functioning of Government in a State is governed by Article 166 of the
Constitution, which lays down that there shall be a council of ministers with
the Chief Minister at the head, to aid and advise the Governor in the exercise
of his functions except where he is required to exercise his functions under the
Constitution, in his discretion. Article 166 provides for the conduct of
Government business. It is useful to quote this Article:
"166.
(1) All executive action of the Government of a State shall be expressed to be
taken in the name of the Governor.
(2)
Orders and other instruments made and executed in the name of the Governor
shall be authenticated in such manner as may be specified in rules to be made
by the Governor, and the validity of an order or instrument which is so
authenticated shall not be called in question on the ground that it is not an
order or instrument made or executed by the Governor.
(3)
The Governor shall make rules for the more convenient transaction of the
business of the Government of the State and for the allocation among Ministers
of the said business in so far as it is not business with respect to which the
Governor is by or under this Constitution required to act in his
discretion." Articles 166(1) requires that all executive action of the
State Government shall be expressed to be taken in the name of the Governor.
This clause relates to cases where the executive action has to be expressed in
the shape of a formal order or notification. It prescribes the mode in which an
executive action has to be expressed. Noting by an official in the departmental
file will not, therefore, come within this Article nor even noting by a
Minister. Every executive decision need not be as laid down under Article
166(1) but when it takes the form of an order it has to comply with Article
166(1). Article 166(2) states that orders and other instruments made and
executed under Article 166(1), shall be authenticated in the manner prescribed.
While
clause (1) relates to the mode of expression, clause (2) lays down the manner
in 12 which the order is to be authenticated and clause (3) relates to the
making of the rules by the Governor for the more convenient transaction of the
business of the Government. A study of this Article, therefore, makes it clear
that the notings in a file get culminated into an order affecting right of
parties only when it reaches the head of the department and is expressed in the
name of the Governor, authenticated in the manner provided in Article 166(2).
Viewed
in this light, can it be said that what is contained in a notes file can ever
be made the basis of an action either in contempt or in defamation. The notings
in a notes file do not have behind them the sanction of law as an effective
order. It is only an expression of a feeling by the concerned officer on the
subject under review. To examine whether contempt is committed or not, what has
to be looked into is the ultimate order. A mere expression of a view in notes
file cannot be the sole basis for action in contempt. Business of a State is
not done by a single officer. It involves a complicated process. In a
democratic set up it is conducted through the agency of a large number of
officers. That being so, the noting by one officer, will not afford a valid
ground to initiate action in contempt. We have thus no hesitation to hold that
the expression of opinion in notes file at different levels by concerned
officers will not constitute criminal contempt. It would not, in our view,
constitute civil contempt either for the same reason as above since mere
expression of a view or suggestion will not bring it within the vice of
sub-section (c) of Section 2 of the Contempt of Courts Act, 1971, which defines
civil contempt. Expression of a view is only a part of the thinking process
preceding Government action.
In
the case of Bachhittar Singh v. The State of Punjab, [1962] Suppl. 3 SCR 713 a
Constitution Bench of this Court had to consider the effect of an order passed
by a Minister on a file. which order was not communicated. This Court, relying
upon Article 166(1) of the Constitution, held that the order of the Revenue
Minister, PEPSU could not amount to an order by the State Government unless it
was expressed in the name of Rajpramukh as required by the said Article and was
then communicated to the party concerned. This is how this Court dealt with the
effect of the noting by a Minister on the file:
"The
question, therefore, is whether he did in fact make such an order. Merely
writing some- thing on the file does not amount to an order.
Before
something amounts to an order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor 13 as required by
clause (1) of Article 166 and then if has to be communicated. As already
indicated, no formal order modifying the decision of the Revenue Secretary was
ever made. Until such an order is drawn up the State Government cannot, in our
opinion, be regarded as bound by what was stated in the file. As long as the
matter rested with him the Revenue Minister could well score out his remarks or
minutes on the file and write fresh ones." This Court observed in this
Judgment that business of State is a complicated one and has necessarily to be
con- ducted through the agency of a large number of official and authorities.
Before action is taken by the authority concerned in the name of the Rajpramukh
which formality is a Constitutional necessity, nothing done would amount to an
order creating rights or casting liabilities on third par- ties. It is
possible, observed this Court, that after ex- pressing one opinion about a
particular matter at a particular stage a Minister or Council of Ministers may
express quite a different opinion which may be opposed to the earlier opinion.
In such cases, which of the two opinions can be regarded as the order of the
State Government. It was held that an opinion becomes a decision of the
Government only when it must be communicated to the person concerned and that
this is the essence of the matter. We seek support from these observations for
our purpose that notings in a notes file, not only of officers but even that of
a Minister will not constitute an order to affect others unless it is done in
accordance with Article 166(1) and (2) and communicated to the person
concerned.
In
England, absolute privilege is given to statements made by one officer of a
State to another and such statements are protected in the context of law of
defamation.
Section
123 of the Evidence Act deals with privilege. We have already stated that State
communications or acts of State in Public interest, enjoy privilege and if that
be so, disclosure in such communications made to the court will not constitute
either contempt or defamation. In any case such internal communications enjoy
quasi-privilege and a disclosure in such communications cannot be made the
basis of an action in contempt.
We
have seen how the High Court approached the whole question from paragraph 22
extracted early in the Judgment.
It
is clear that the High Court based its conclusion purely on the notings in the
file. The High Court felt that the officers of the Government did not like the
orders passed by it and this, according to the High Court, was evident from the
files before it.
The
High Court summed up its conclusion as follows in para- graph 24 of the
Judgment:
"To
sum up, contempt of this Court has been committed by Shri Deo Mishra, Legal
Remembrancer, Mrs. Radha Sinha, I.A.S. then working as Additional Commissioner,
Irrigation Department and now working as Additional Finance Commissioner, Dr.
Birkeshwar Prasad Singh, Sanjeewan Sharma and Subh Chandra Jha and I convict
them accordingly. In regard to sentence, I am clearly of the view that there
was motivation for it. The hand of the moving spirit has, however, remained
concealed. It appears that the feeling amongst high officers of this state is
that the High Court will not punish them for contempt of the High Court, as
they are high officers and that all that the High Court will do in case of
contempt of court is to give lectures and at times rant at them. To remove this
misconception it is essential to impose upon them a fine of Rs.50 (Rupees
fifty) each on all the five persons mentioned above, in default to suffer
simple imprisonment for two weeks. The rule issued against J.C. Kundra, A.K.M.
Nassan. A.U.
Sharma
and Arjun Prasad is discharged." We see that the High Court felt that
there was an at- tempt on the part of the officers to disobey its orders. The
officers had tendered apology. This was not accepted. We are concerned more
than anyone in upholding the dignity and prestige of the High Court, but we
have a duty at the same time to lay down the law correctly. We feel that the
conviction entered by the High Court purely on the basis of the notes file
cannot be justified.
The
High Court was under the impression that all the officers acted in unison to
help the 5th respondent. We now deal with his case separately. He is described
by the High Court as the Kingpin of the whole drama and according to the High
Court everybody concerned acted for his benefit. There is a veiled suggestion
that he would not have achieved what he wanted except with the help of
political forces and that there is an un-seen hand behind what he achieved. He
was found guilty of abetting the contempt. - According to him he has been made
a scape-goat, that his is an unfortunate case of a journalist, appointed as
Public Relation Officer on ad-hoc basis for six months as recommended by a
selection commit- 15 tee at an interview held along with seven other
candidates.
He
joined service after such a selection on 18-4-1983. As per the order of the
High Court, the period of six months for making the regular appointment to his
post was to expire on 17-10-1983. Long before this date, the Irrigation Department
had written to the Public Service Commission stating that the post held by the
appellant was an ex-cadre post and that concurrence may be accorded for his
appointment. This was an internal letter. The Government sent a requisition to
the Public Service Commission for advertising the post on 10-8-1984. The
Commission ultimately made the publication on 12-5-1985 stating the eligibility
and criteria for selection. It was this publication that promoted the filing of
the writ petition in question in which the order that gave rise to the contempt
proceeding was passed. Regular appointment pursuant to the advertisement was
stayed. The appellant thus continued at the post.
According
to him he has not disregarded the order of the High Court. The Bihar Public
Service Commission gave concurrence for his appointment for six months. The
post of P.R.O.
being
an ex-cadre post since its creation in 1955, the post could not be filled up by
giving promotion to anyone working in the department. It was constituted to
interview candidates and to recommend a suitable person. The appellant
continues to function on the strength of the orders passed in his favour and he
cannot be held to have committed con- tempt of the High Court's order. He has
stated that he had no notice in the writ petition filed by Kripalu Shankar or
the writ petition from which the present contempt arise.
Though
he was made a party no notice was ever issued to him and no direction was given
to him by the High Court. According to him, apart from a general observation
that he abetted in disregarding the order of the High Court nothing specific
has been attributed to him. His unqualified apology was also not accepted by
the High Court. He also relies upon the fact that he was not paid salary from
18-10-1983 to date in reinforcement of his submission that he has not committed
any contempt.
With
respect to the learned Judges, we find it difficult to agree wholly with them
regarding the finding that the appellant was guilty of contempt. We do not have
sufficient materials before us to conclude that the appellant exercised
political clout to further his interest in utter disregard of the orders of the
Court. Although it may be said that the conduct of the appellant is in some
measure suspect, we do not find sufficient justification to enter a finding
that he is guilty of contempt and that he acted in utter disregard of the High
Court's order. It is useful to remember that apart from the notes file, there
is no independent material before us to held that the appellant had committed
contempt. The Government pleader and the Advocate General had clearly advised the
Government to act in accordance with the directions given by the High Court.
The Minister who is the ultimate authority also acted in obedience to the
orders of the High Court. That being so, we find it difficult to agree with the
finding that he is guilty of criminal contempt. The High Court felt that his
was not a fit case to accept the unqualified apology tendered. However, we
find, that on materials placed before us, it is not proved beyond doubt that he
had committed contempt. We would, therefore, give him benefit of doubt and
purge him of the contempt found against him.
We
would like to outline the general principle on which confidentiality of State
documents should be protected. The general principle is that if a person is
involved in litigation, the Courts can order him to produce all the documents
he has which relate to the issues in the case. Even if they are confidential,
the Court can direct them to be produced when the party in possession does not
produce them, for the other side to see or at any rate for the Court to see.
When the Court directs production of those documents there is an implied
understanding that they will not be used for any other purpose. The production
of these documents in ordinary cases is imposed with a limitation that the side
for whose purpose documents are summoned by the Court cannot use them for any
purpose other than the one relating to the case involved.
Miss
Harman's case Home office v. Harman, [1981] 2 WLR 310 may give some assistance
for this aspect of our discussion. The facts are as follows:
Miss
Harman, a Solicitor, acted for a criminal, Michael Williams who was in prison
serving a long sentence for robbery of the bank. He complained that he was
subjected to cruel and unusual punishments while in prison contrary to the Bill
of Rights and accordingly brought an action for damages against the Home
Office. Miss Harman acted for him as a legal aid counsel. Miss Harman got an
order for discovery against the Home Office. The Home Office did not raise any
objection regarding the production of the documents.
However,
it objected the use of the documents by the Group, called "The National
Council for Civil Liberties". Accordingly the documents were brought to
Court and they were read out in open Court. Miss Harman passed the bundles of
the documents to a journalist and a write up appeared in 'The Guardian' which
was highly critical of the Home Office. The Home 17 Office took proceedings
against Miss Harman for contempt of Court. She was held guilty for contempt by
the High Court and was confirmed by the Court of Appeal and by the House of
Lords. In the Court of Appeal, Lord Denning, despite his liberal views, while
upholding the right of the Court to read documents relating to cases while
conceding also the liberty to those present in Court to listen when those
documents were read and the reporter to take down what was read, did not extend
to the press a right to any further use of the confidential documents or any
further dissemination of their contents without the consent of the owner. It is
of no use to plead the freedom of the press, he said, that freedom is itself
subject to restriction. Public confidential documents, it was said, should be
kept confidential in the public interest and should not be exposed to the
ravages of outsiders. When the House of Lords' decision in Harman v. Secretary
of State for the Home Department, [1983] AC 280 upholding the Court of Appeals
was rendered, there was great hue and cry that the ruling meant "a black
day for press freedom .... ". Even so, Lord Denning regretted that the
Court ever ordered disclosure of the documents and observed that the
"legal milestone will have to be taken up and set back a bit." In
Bachittar Singh's case (supra), privilege was claimed regarding the production
of which was sought, embodied the minutes of the meetings of the Council of
Ministers showing the advice which the Council ultimately give to the Rajpramukh.
This Court held that these documents fell within the category of documents
relating to the affairs of State within the meaning of Section 123 of the
Evidence Act and were protected under the said Section. Though the ratio of
this decision outlines the conservative view in the law relating to privilege,
we are not unmindful of the fact that the doctrine of privilege received a
shock treatment against the State at the hands of this Court in the Judges'
case, S.P. Gupta & Ors. etc. etc. v. Union of India and others etc. etc.,
[1982] 2 SCR 365. May we say that the legal milestone in Gupta's case, also
needs a retreat, a bit.
Before
parting with this case we would like to observe the need for restraint and care
in dealing with the internal files of the Government. We have already indicated
its privileged position and limited areas where exposure is permissible of the
notings in the file. This is not to say that absolute privilege can be claimed
of its exposure and protection from the view of Courts. But what is to be borne
in mind is that the notings in the departmental files by the hierarchy of
officials are meant for the independent discharge of official duties and not
for exposure outside. In a democracy, it is absolutely necessary that its steel
frame in the form of civil service is permitted to express itself 18 freely
uninfluenced by extraneous considerations. It might well be that even orders of
Court come in for adverse re- marks by officers dealing with them, confronted
with difficult situations to straight away obey such orders. Notings made on
such occasions are only for the benefit of the officers concerned. When a
subordinate official commits a mistake higher official will always correct it.
It is necessary for Courts also to view such notings in the proper perspective.
In this case, the Court, after looking into the notes file could have passed
appropriate orders giving relief to the affected party and expressing its
displeasure at the manner in which its order was implemented instead of initiating
action on the notings made in the file. That way the Court would have enhanced
its prestige.
It
will not serve either the healthy working of the civil service, public interest
or democratic norms to proceed in contempt against officials solely on the
basis of minutes in the internal files, notings which might even be unsavory or
even derogatory to an order of the Court, but which get ultimately corrected by
the head of the department, ending with an order under Article 166(1) and (2)
in the name of the Governor in the proper form. We are conscious of the fact
that the learned Judges felt that there was a deliberate attempt to act against
their order. We are not unmindful of the indignation shown by them at the
notings in the file. The only reason why we feel constrained to disagree with
the High Court's order is our anxiety to delineate the limits of judicial power
while dealing with files of the Government and also of the Public Service
Commission, a high Constitutional authority. It is necessary to have mutual
respect among the various wings of the administration, in the process of
disposal of justice.
We
allow these appeals and discharge the contempt orders passed by the High Court
with utmost reluctance in view of the far reaching consequences that would flow
if the judgment was allowed to stand. We are happy that the appellants have
tendered their regret and apology to the High Court and have reiterated their
regret in this Court also.
H.L.C.
Appeals allowed.
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