- (1.) THIS petition under Section 115 of the Code of Civil Procedure has been filed by the State of Punjab, the Director of Food and Supplies, Punjab, Chandigarh and the Collector, Kapurthala who are the defendants in a suit instituted by the plaintiff-respondent against them for a declaration that his retirement from service before he reached the age of superannuation was illegal and violative of various provisions of the Constitution of India. During the course of the proceedings before the trial Court the plaintiff filed an application requesting the Court to summon the Administrative Officer, Food and Supplies Department, Punjab, Chandigarh as a witness with a direction to him to produce in Court the character rolls and confidential reports maintained in the Department in respect of the plaintiff who, at the time of his retirement, was an Inspector in that Department, and of four other Inspectors who were junior to him but were retained in service. The defendants took exception to the production of those documents and claimed privilege under Section 123 of the Indian Evidence Act on the ground (which is contained in the affidavit filed by Mr. B. B. Mahajan, Secretary to Government, Punjab, Food and Supplies Department, Chandigarh) that the documents were unpublished official records relating to "affairs of State" and that their disclosure would be prejudicial to the public interest inasmuch as it would adversely affect the functioning of the public service because officers of the Government will not express their opinion freely and frankly while making entries in the character rolls or confidential reports relating to their subordinates if they (the said officers) knew that their remarks were likely to be made public. The learned Senior Sub-Judge, Kapurthala before whom the case is aending disallowed the privilege on the ground that the documents above mentioned did not relate to "affairs of State". For his view he sought support from the Union of India v. Raj Kumar Gujral, AIR 1967 Punj 387 and Ram Gopal v. Union of India, 1972 Serv LR 258 (Delhi), from which he cited various passages and then observed: "in the case in hand, the plaintiff has repeatedly asserted that his assessment by the defendants was in no way lower than the officials mentioned in the documents aforementioned and that the authorities had arbitrarily retired him from service though the other officials mentioned in these documents bad been retained in service and indeed promoted arbitrarily. Thus the aforesaid documents are quite relevant to the determination of the plaintiff's contention and indeed constitute a piece of best evidence relied upon by him. It is not possible to visualise the merits of the case which will be determined in the light of the full evidence to be adduced by the parties, uninfluenced by the observations (made in this order) which are confined to the determination of the claim of privilege only. In the context in view of the rule laid down in the aforesaid pronouncements. I conclude that the defendants have not made out sufficient grounds to the claim successfully of privilege for the production of the documents aforesaid under Section 123 of the Indian Evidence Act. " It is against the disallowance of the claim of privilege put forward by the defendants that they have come up in revision to this Court.
(2.) IN my opinion, the petition merits acceptance inasmuch as the character rolls and confidential reports which the plaintiff seeks to have produced at the trial are documents, evidence derived from which cannot be given in view of the provisions of Section 123 of the Indian Evidence Act which runs thus; "no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. "
(3.) IN Governor General in Council v. H. Peer Mohd. Khuda Bux, AIR 1950 EP 228 (FB ). Khosla. J. , gave a restricted meaning to the expression "affairs of State" in the following words : "i would define 'affairs of State' as matters of a public nature in which the State is concerned and the disclosure of which will be prejudicial to the public interest or injurious to national defence, or detrimental to good diplomatic relations. " In a separate judgment J. L. Kapur, J. , described the object underlying Section 123 thus: "but the sole object of this privilege * * * * is that the disclosure would be injurious to national defence or to good diplomatic relations or for the proper functioning of the public service and it is necessary to keep that document or that class of documents secret. " The view of Kapur, J. , therefore, as to the manning of "affairs of State" was substantially the same as that of Khosla. J. This view, however, did not find favour wilh their Lordships of the Supreme Court in the State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493. In that case Sodhi Sukhdev Singh, a former District and Sessions Judge in the erstwhile Patiala and East Punjab States Union, filed a suit against that Union for a declaration that the order of his removal from service was illegal and inoperative. At the trial he summoned various documents. Some of those were produced by the State but privilege was claimed in respect of the following : 1. Original recommendation by the then Chief Justice on the preliminary inquiry held by two Judges of the High Court against the plaintiff. 2. Original recommendation of the then Chief Justice on the report of the Judges recommending suspension of the plaintiff. 3. Report of the Public Service Commission on the representation by the plaintiff.;