K. Prabhakar Hegde v. Bank of Baroda

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 good 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.

15. If under Section 123 a dispute arises as to whether the evidence in question is derived from unpublished official records that can be easily resolved; but what presents considerable difficulty is a dispute as to whether the evidence in question relates to any affairs of State. What are the affairs of State under Section 123? In the latter half of the nineteenth century affairs of State may have had a comparatively narrow content. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy. In the efficient administration of public affairs Government may reasonably treat such a class of documents as confidential and urge that its disclosure should be prevented on the ground of

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possible injury to public interest. In other words, if the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs.

16. It may be that when the Act was passed the concept of governmental functions and their extent was limited, and so was the concept of the words ‘affairs of State’ correspondingly limited; but, as is often said, words are not static vehicles of ideas or concepts. As the content of the ideas or concepts conveyed by respective words expands, so does the content of the words keep pace with the said expanding content of the ideas or concepts, and that naturally tends to widen the field of public interest which the section wants to protect. The inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent activities which were formerly treated as purely commercial, and documents in relation to such commercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. It is in respect of such documents that we reach the marginal line in the application of Section 123; and it is precisely in determining the claim for privilege for such border-line cases that difficulty arises.

17. It is, however, necessary to remember that where the legislature has advisedly refrained from defining the expression ‘affairs of State’ it would be inexpedient for judicial decisions to attempt to put the said expression into a straight jacket of a definition judicially evolved. The question as to whether any particular document or a class of documents answers the description must be determined in each case on the relevant facts and circumstances adduced before the court. ‘Affairs of State’, according to Mr Seervai, are synonymous with public business and he contends that Section 123 provides for a general prohibition against the production of any document relating to public business unless permission for its production is given

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by the head of the department concerned. Mr Seervai has argued that documents in regard to affairs of State constitute a genus under which there are two species of documents, one the disclosure of which will cause no injury to public interest, and the other the disclosure of which may cause injury to public interest. In the light of the consequence which may flow from their disclosure the two species of documents can be described as innocuous and noxious respectively. According to Mr Seervai the effect of Section 123 is that there is a general prohibition against the production of all documents relating to public business subject to the exception that the head of the department can give permission for the production of such documents as are innocuous and not noxious. He contends that it is not possible to imagine that the section contemplates that the head of the department would give permission to produce a noxious document. It is on this interpretation of Section 123 that Mr Seervai seeks to build up similarity between Section 123 and the English law as it was understood in 1872. In other words, according to Mr Seervai the jurisdiction of the court in dealing with a claim of privilege under Section 123 is very limited and in most of the cases, if not all, the court would have to accept the claim without effective scrutiny.

18. On the other hand it has been urged by Mr Sastri that the expression ‘documents relating to any affairs of State’ should receive a narrow construction; and it should be confined only to the class of noxious documents. Even in regard to this class the argument is that the court should decide the character of the document and should not hesitate to enquire, incidentally if necessary, whether its disclosure would lead to injury to public interest. This contention seeks to make the jurisdiction of the court wider and the field of discretion entrusted to the department correspondingly narrower.

19. It would thus be seen that on the point in controversy between the parties three views are possible. The first view is that it is the head of the department who decides to which class the document belongs; if he comes to the

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conclusion that the document is innocuous he will give permission to its production; if, however, he comes to the conclusion that the document is noxious he will withhold such permission; in any case the court does not materially come into the picture. The other view is that it is for the court to determine the character of the document, and if necessary enquire into the possible consequences of its disclosure; on this view the jurisdiction of the court is very much wider. A third view which does not accept either of the two extreme positions would be that the court can determine the character of the document, and if it comes to the conclusion that the document belongs to the noxious class it may leave it to the head of the department to decide whether its production should be permitted or not; for it is not the policy of Section 123 that in the case of every noxious document the head of the department must always withhold permission. In deciding the question as to which of these three views correctly represents the true legal position under the Act it would be necessary to examine Section 162. Let us therefore, turn to that section.

66. A summary of the decision leads us to one irresistible conclusion – that the overriding interest must be of a public nature and only in such cases can the claim of privilege be sustained. The claim of privilege cannot be invoked as a matter of reflexive recourse but must be limited to instances wherein an actual concern to public interest is envisaged. Each instance must be evaluated on a case-by-case basis and the State must be wholly convinced that the disclosure of the documents would cause grave harm and injury to public interest.

67. We further refer to Amar Chand Butail v. Union of India38 where Hon’ble P.B. Gajendragadkar, CJI. speaking for this Court held that a claim for privilege cannot be made merely because it would go against the defence of the State. A claim for privilege can therefore only be made if it strictly meets the requirements present in the Evidence Act, failing which, if the Court after a preliminary enquiry is convinced that the claim of privilege cannot be sustained, the State may be directed to disclose the said document.

38 AIR 1964 SC 1658

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68. In State of U.P. v. Raj Narain39, this Court held that public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court also held that it must proprio motu exclude evidence the production of which is contrary to public interest.

69. Moving closer to this century, this Court in People’s Union for Civil Liberties v. Union of India40 while dealing with the disclosure of certain sensitive information under the Atomic Energy Act, 1962 laid down the indicative criteria required to be fulfilled for the claim of privilege. The instructive passage on the issue reads as under: “70. For determining a question when a claim of privilege is made, the Court is required to pose the following questions: (1) whether the document in respect of which privilege is claimed, is really a document (unpublished) relating to any affairs of State; and (2) whether disclosure of the contents of the document would be against public interest?

71. When any claim of privilege is made by the State in respect of any document, the question whether the document belongs to the privileged class has first to be decided by the court. The court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. The claim of immunity and privilege has to be based on public interest.

72. The section does not say who is to decide the preliminary question viz. whether the document is one that relates to any affairs of State, or how it is to be decided, but the clue in respect thereof can be found in Section

162. Under Section 162 a person summoned to produce a document is bound to

39 (1975) 4 SCC 428 40 (2004) 2 SCC 476

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‘bring it to the court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court’. It further says that: ‘The court, if it seems fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.’

73. In order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of the State and disclosure thereof must be against interest of the State or public interest.”

70. In the present case, the appellate authority did not deny that there was indeed a recommendation of the CVC. However, the recommendation was denied by claiming privilege. We are inclined to the view that the claim of privilege was utterly misconceived. The recommendation of the CVC did not have anything to do with the “affairs of the State” or, if one were not to be guided by Section 123 of the Evidence Act, anything to do with national security; at least, no such attempt was made by Mr. Patil. We appreciate his predicament that at this distance of time (the appellate order having been made on 27th March, 2003) and Vijaya Bank having merged in the respondent in 2019, it is well-nigh difficult for him and the respondents to lay their hands on such recommendation. Yet, it cannot be ignored that the appellate order apart from claiming that the recommendation is a privileged document does not go further to assign any reason, far less cogent reason, as to how the same could at all be withheld from the appellant. Reasons that have been assigned are neither here nor there. Whether or not such a recommendation did exist was the question, not whether the appellant could have premised his challenge on such recommendation being an internal document.

71. We are ad idem with the view expressed in D.C. Aggarwal (supra) that the proposed punishment of compulsory retirement could not have been altered to dismissal from service based on the CVC recommendation without furnishing the same to the appellant. To this extent, the appellate order is legally flawed and cannot be sustained.

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Conclusion

72. In normal circumstances, the obvious direction that could follow the foregoing discussions is a remand to the disciplinary authority to re-start the inquiry from the stage the same stood vitiated, i.e., requiring the Inquiry Officer to scrupulously follow Regulation 6(17) of the 1981 Regulations. However, there are circumstances that impede an order for remand. The foremost being the lack of accessibility to the records because of the merger of Vijaya Bank with the respondent and the distance of time since the disciplinary proceedings came to a close. It is also to be noted that the disciplinary proceedings were continued beyond the date on which the appellant attained the age of superannuation. Because of the ultimate order we propose to make, we have not dealt with the third question noted in paragraph 16 (supra) and such question is kept open. No useful purpose, therefore, would be served in ordering a remand.

73. Considering the age of the appellant (he is now an octogenarian) as well as the fact that there were other disciplinary proceedings pending against him which were not taken to its logical conclusion because he stood dismissed from service, in our considered view, interest of justice would be sufficiently served if we make the following directions: (i) the appellant shall not be entitled to any terminal benefits except to the extent indicated hereafter; (ii) he shall only be entitled to a lump-sum amount equal to the quantum of gratuity which would have been payable to him had he not been fastened with the order of dismissal; (iii) such lump-sum amount may be released in favour of the appellant within a period of eight weeks from date; (iv) no amount on account of interest shall be payable to the appellant on the said amount; (v) however, interest @ 9% p.a. shall be payable on such amount if not released within the period stipulated above; and (vi) the order of dismissal, in the circumstances, shall stand quashed.

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74. It is ordered accordingly.

75. In the above result, the impugned order of the High Court is also set aside.

76. The appeal is disposed of on the above terms, without any order as to costs.

77. Criminal proceedings, if any, pending against the appellant may be taken to its logical conclusion in accordance with law.

Result of the case: Appeal disposed of.