Food Corporation of India & Ors. v. S.K.Gupta

vide which application moved by the defendants/petitioners claiming privilege of certain documents for its production stands declined. The plaintiff/respondent filed a suit for declaration to challenge the order of punishment passed by the Senior Regional Manager, Food Corporation of India, respondent No.3, reducing the pay of the plaintiff by one stage in the time scale of pay for a period of one year. It was also CR No.2427 of 2005 2 ordered that after expiry of one year the plaintiff was to start earning increments from the reduced stage of pay. During the pendency of the suit the plaintiff/respondent moved an application for production of the following documents:- “1. Copy of the Memorandum No.Vig.21 (FDK-1821/95/252 dated 29.3.96 along with noting portion for initiating the disciplinary proceedings under regulation 60 of the FCI (Staff() Regulation, 1971.

2. Copy of the letter No.Giv.21 (FDK-1821)/95/3492 dated

20.3.98whereby the Memorandum No.Vig.21 (FDK-1821)/ 95/252 dated 29.3.96 was withdrawn along with noting portion for withdrawing the Memorandum.

3. Copy of the Memorandum No.Vig.-21 (FDK-1821)/ 95/3486 dated 28.3.98 under regulation 58 of the FCI(Staff) regulations 1971 along with noting portion for initiating the disciplinary proceeding under regulation 58.

4. Copy of the noting portion whereby the reply of the plaintiffdated20.8.98 was considered and I.O. And P.O. Was appointed.

5. Copy of noting portion whereby the representation of the plaintiff was considered and penalty was imposed upon the plaintiff.” The petitioner Corporation pleaded privilege qua noting. CR No.2427 of 2005 3 Application moved by the petitioner was not signed by the defendant or any officer nor it was supported by any affidavit. Learned trial court considered the application and found it to be contrary to Section 123 of the Indian Evidence Act which stipulates that privilege can be claimed by the Head of the Department to which the documents belong which is not the case in hand. Learned trial court rejected the application moved by the petitioner as it was not filed in terms of section 123 of the Evidence Act, as privilege could be claimed by the Head of the Department, but the application was not moved by the Head of the Department, nor it is verified nor supported by affidavit. It was signed by the counsel. The learned court dismissed the application. The learned counsel appearing on behalf of the petitioner has challenged the impugned order by contending that the order passed is contrary to Order 11 Rule 14 of the Code of Civil Procedure as it was incumbent upon the plaintiff/respondent to have shown relevance of the documents before these could be summoned. This contention is misconceived, as this court was not considering the legality of summoning the document, but the order passed on the application, wherein the applicant/petitioner claimed, the documents to be privilege document for being produced, therefore, this contention of the learned counsel for the petitioner deserves to be noticed to be rejected. Learned counsel for the petitioner thereafter contended, that noting portion are to be treated to be a privilege document, which cannot be CR No.2427 of 2005 4 directed to be produced in court. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Bihar etc.etc. Vs. Kripalu Shankar etc. etc. AIR 1987 SC 1554. Para No.12 of this judgment reads as under:- “12. 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 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. This is so even when they consider orders of courts. Officers of the Government are often times confronted with orders 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 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 CR No.2427 of 2005 5 the use of the department and not for outside exposure 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.” This judgment cannot help the case of the petitioner, as the Hon'ble Supreme Court in this case was considering, whether noting portion can be used to punish an officer for contempt of court. This judgment does not support the proposition that noting portion cannot be produced in court being a privileged document, nor it deals with Section 123 of the Evidence Act. Reliance was also placed by the learned counsel for the petitioner on the judgment of Hon'ble Supreme Court in the case of Sethi Auto Service Station & Anr.Vs.Delhi Development Authority & Ors. (2009) I Supreme Court Cases 180, wherein again Hon'ble Supreme CR No.2427 of 2005 6 Court merely discussed the status of noting portion to hold that noting in the file are not official order having force of law. Para No.14 of this judgment on which reliance was placed reads as under: “14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his view point on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminated into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated I to the person concerned.” This judgment is also of no help to the petitioner, as in the case in hand, the application was not moved in terms of Section 123 of the Evidence Act, therefore, was held to be not maintainable. This proposition raised otherwise also cannot be sustained, in view of the law laid down by this court in the case of Ram Nath Sahni Vs. The state of Haryana through the Chief Secretary 1972 SLR 352, wherein it was held as under:- “6. It is, therefore, clear that according to the Supreme CR No.2427 of 2005 7 Court, the affidavit in such cases has to be given generally by the Minister in-charge of the department and if not, then by the secretary of the department concerned. It might be stated that a similar objection, like the one raised by Mr.Mehtani, was taken in Union of India an Ors. Vs Sudhir Kumar Roy and others AIR 1963 Orissa 111 and there the learned Chief Justice R.L.Jarasimham repelled that contention on the basis of the Supreme Court rulling in Sodhi Sukhdev Singh's case.

7. Besides, the affidavit, in the instant ase, does not give any indication about the reasons as to why according to Mr.Sharma, it is apprehended that the public interest would suffer by the disclosure of the report of the Vigilance Department.

8. affidavit, in this case, therefore, suffers from the two objections stated above and the Government cannot, consequently, legally claim any privilege under section 123 of the Evidence Act on its basis.” Learned counsel for the plaintiff/respondent also placed reliance on the judgment of this court in the case of Shri Ram Dev Vs. The State of Haryana 1978 (2) SLR 68, wherein it was held that disclosure of notings and comments on the file pertaining to departmental inquiry cannot be held to impair the interest of administration or injure the public interest and therefore, privilege qua this cannot be claimed. CR No.2427 of 2005 8 Reliance was also placed on the judgment of this Court in in the case of State of Punjab Vs. Madan Lal Gupta 1992 (2) SLR 673, wherein again this court was pleased to lay down, that in the matter of departmental inquiry no privilege can be claimed by the state in respect of notings and opinions expressed on the file during such proceedings. Thus in view of the proposition of law referred to above, qua the noting portion in departmental inquiry, and also for the fact that the application moved by the petitioner was not in consonance with Section 123 of the Act, there is no merit in this revision petition, which is ordered to be dismissed.

13.07.2010 No costs. (Vinod K.Sharma) Judge