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Report No. 88

3.6. Departmental inquiries.-

The difficulty of deciding whether a matter is or is not an "affair of State" is also illustrated by the case-law relating to statements made by witnesses in the cases of a departmental enquiry into the conduct of a public officer. The question arises when, after the departmental enquiry, the guilty public servants are prosecuted-usually for the offence of accepting illegal gratification. It was held by the Calcutta High Court1 that such statements were not privileged under sections 123 to 125, and the accused was entitled to cross-examine the witnesses under section 153 with reference to the statements made by the witness at the departmental enquiry. The same view was taken by the Nagpur High Court.2 On the other hand, statements by witnesses in a secret and confidential investigation by the C.I.D. for ascertaining whether there is a prima facie case for a departmental enquiry against the public servant were held to be privileged by the Lahore and Orissa High Courts.3-4

In a Punjab case,5 the respondent Surjit Singh had filed a suit against the State of Punjab for a declaration that his retirement from service before he reached the age of superannuation was illegal and was violative of various provisions of the Constitution of India. He requested the trial court to direct the department to produce in Court the character Rolls and confidential reports maintained in the department, in respect of himself and some other inspectors who were junior to him but were retained in service. The State claimed privilege under section 123, on the ground that the documents were unpublished official, records relating to "affairs of State". The trial court disallowed the privilege, holding that these documents did not relate to "affairs of State."

The matter came up before the High Court in revision. The High Court allowed the petition filed by the State, and held that the character roll and confidential reports maintained for the purpose of providing an appraisal of the merit of State servants by their superiors from time to time were in the nature of confidential communications from one officer to another, and were meant to serve as part of the material designed to maintain the efficiency of the public servants. The High Court further held that those documents would relate to "affairs of State". It dissented from two earlier cases to the contrary.6 Thus, conflicting views exist within the same High Court.

1. Harbans v. R., 16 CWN 431.

2. Ibrahim v. Secretary of State, AIR 1936 Nag 25.

3. Nazir v. R., AIR 1944 Lah 424.

4. James Bashi v. Collector of Ganjam, AIR 1959 Ori 152.

5. State of Punjab v. Surjit Singh, AIR 1975 P&H 11.

6. (a) Union of India v. Raj Kumar, AIR 1967 Punj 387;

(b) Niranjan Dass v. State of Punjab, AIR 1968 Punj 255.



Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back




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