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HIGH COURT OF ORISSA
R. L. Narasimham, C. J.
UNION OF INDIA - Appellant
Versus
SUDHIR KUMAR ROY - Respondent
Civil Revn. 156 Of 1961
Decided On : DECEMBER 18, 1962
EVIDENCE ACT - SECTION 123 AND 124 - PRIVILEGE - HEAD OF DEPARTMENT - UNPUBLISHED OFFICIAL RECORDS - UNDISCLOSED COMMUNICATION - INTERPRETATION AND APPLICATION.
Fact of the Case:
In a suit alleging mala fide reversion of the plaintiff from a higher post in the National Savings Organization to his parent post in the Cuttack Collectorate, the plaintiff called for certain documents from the defendants, including the National Savings Commissioner, the Finance Secretary, and the Collector of Cuttack. The defendants claimed privilege under Sections 123 and 124 of the Indian Evidence Act, 1872.
Finding of the Court:
The court held that the National Savings Commissioner and the Collector of Cuttack were not "heads of department" within the meaning of Section 123 of the Evidence Act and, therefore, could not claim privilege under that section. The court also held that the documents in question were not "unpublished official records" or "undisclosed communications" within the meaning of Sections 123 and 124, respectively, because the plaintiff had been permitted to inspect and copy the documents.
Issues: 1. Who is a "head of department" within the meaning of Section 123 of the Evidence Act? 2. What constitutes an "unpublished official record" under Section 123 of the Evidence Act? 3. What constitutes an "undisclosed communication" under Section 124 of the Evidence Act?
Ratio Decidendi: 1. The expression "head of department" in Section 123 of the Evidence Act should be given a restricted meaning, referring to the heads of the departments of the Secretariat, namely, the secretaries of the departments, and not to the heads of departments of subordinate offices. 2. A document is not an "unpublished official record" within the meaning of Section 123 of the Evidence Act if it has been shown to the party against whom privilege is claimed and the party has been permitted to take copies of the document. 3. A communication is not an "undisclosed communication" within the meaning of Section 124 of the Evidence Act if it has been communicated to the party against whom privilege is claimed.
Final Decision: The court dismissed the revision petitions filed by the Union of India and the State Government, upholding the lower court's rejection of the claim of privilege under Sections 123 and 124 of the Evidence Act.
R. L. NARASIMHAM, C. J.
( 1 ) THESE two revisions arise out of two orders dated the 28th February 1961 and 29th April 1961, passed by the Second Munsif, Cuttack, in Title Suit No. 297 of 1960, rejecting the petitioner's claim of privilege under Section 123 and 124 of the indian Evidence Act, in respect of certain documents called for by the opposite party plaintiff.
( 2 ) THE plaintiff was formerly working as an Assistant in Cuttack Collectorate. Subsequently in 1950 he was appointed to the higher post of District Organiser and then of Assistant National Savings Officer in a Central Govt. Office known as the Regional National Savings Organisation and worked in those posts on a higher salary, for about 10 years. On the 20th July 1960, he was informed that the national Savings Commissioner had decided to revert him to his parent post in the office of the Cuttack Collectorate. He then filed a suit alleging that the reversion was made mala fide on account of some personal animosity towards him on the part of the National Savings commissioner (defendant No, 2) and some of his subordinate officials. The Union of India was made defendant No. x, the National Savings Commissioner Nagpur was made defendant No. 2, and the other subordinate officials of that Department were made defendants Nos. 3, 4, 5 and 6. In addition to these principal defendants, the plaintiff impleaded 4 pro forma defendants, namely the Chief secretary to the Government of Orissa (defendant No. 7) the finance Secretary (Sri Somenath Nanda) (defendant No. 8), the Collector of Cuttack (defendant No. 9) and the Additional District Magistrate of Cuttack (defendant No. 10 ).
( 3 ) APART from the allegations of mala fide it was further alleged that the plaintiff held a permanent post under the National Savings Organisation and that his reversion to his post in the Collectorate would amount to "reduction in rank" and that as Article 311 of the Constitution was not complied with, the order was invalid.
( 4 ) DURING the course of suit the plaintiff called for certain documents from the defendants alleging that they were very necessary for establishing his case. By his affidavit dated 20-2-61 he further stated that true copies or true extracts of those documents (mentioned in serials 1 to 14 of that affidavit) were already obtained by him partly during the course of his service under the National Savings organization and subsequently when he was permitted by the Officers concerned to go through the relevant papers. One of those documents (serial No. 12 attached to the said affidavit) is letter No. 1775/adm : 10 (3) P-dated the 4th June 1960 from the National Savings Commissioner, addressed to the Chief Secretary to the government of Orissa, The other document Serial No. 14 is DO No. 2110/adm 10 (s)-P-1 dated the 8th July 1960 addressed to Shri R. C. Patro the then Additional district Magistrate by Shri S. M. Mathur of the National Savings Organization. In respect of these two documents the Finance Secretary (Mr. Somenath Nanda) and the Collector of Cuttack (Mr. Chakravarty) claimed privilge, both under Section 123 and under Section 124 of the Evidence, Act and filed the necessary affidavits. The learned Munsif rejected their claim by his order dated the 28th February 1961. The claim of the Collector was rejected on the following two grounds:-
(i) That he is not a "head of Department" within the meaning of Section 123 of the Evidence Act; and (ii) That the letter (serial No. 14 of the affidavit of the opposite party dated 20-2-1961) was not addressed to him and hence he was not the "public officer" referred to in Section 124 of the Evidence Act. The claim of the Finance Secretary was rejected on the ground that the document in question (serial No. 12) did not deal with "affairs of State" and that his affidavit did not show the extent and nature of the injury to the public interest that would be caused by the disclosure of the contents of that document. Civil Revision No. 1
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