Full Judgment Text
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PETITIONER:
STATE OF BIHAR ETC. ETC.
Vs.
RESPONDENT:
KRIPALU SHANKER ETC. ETC.
DATE OF JUDGMENT28/04/1987
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
OZA, G.L. (J)
CITATION:
1987 AIR 1554 1987 SCR (3) 1
1987 SCC (3) 34 JT 1987 (3) 49
1987 SCALE (1)1070
CITATOR INFO :
RF 1988 SC 782 (45)
ACT:
Contempt of Courts Act, 1971--Notings made by officers
on Government files cannot be made the basis of contempt
action against them.
HEADNOTE:
The first Respondent who was discharging the functions
of a Public Relations Officer in the Bihar Irrigation De-
partment when that post fell vacant in 1979, filed a writ
petition claiming the post for himself when another person
was appointed to that post for six months. At the time of
hearing, it was represented on behalf of the State that the
other person had been appointed only on ad hoc basis for a
period of six months and that after the expiry of that
period, the matter would be referred to the Public Service
Commission and that, at that stage, the case of the first
Respondent would also be considered. On this assurance, the
petition was allowed to be withdrawn on 19th December, 1979.
However, the assurance was not respected and no reference
was made to the Public Service Commission for making a
regular appointment to the post, and, in April, 1983, yet
another person was appointed to the post, again on ad hoc
basis, and the same was challenged by ’another writ peti-
tion. When that petition was heard, the Advocate General
informed the High Court that the appointment was only ad hoc
and gave the impression that a regular appointment would be
made after the expiry of six months and, on that representa-
tion, the High Court disposed of the petition on May 4,
1983, directing inter alia, that the post should be filled
up in a regular way, and that, in case the appointment was
not made within a period of six months, the ad hoc appoint-
ment shall stand terminated. The six months’ period was to
expire on October 17, 1983, and according to the State
Government, the Irrigation Department had written to the
Public Service Commission on April 4, 1983 to give concur-
rence to the appointment of the ad hoc incumbent since it
was an ex-cadre post and he had been selected by a Selection
Committee but that the concurrence was given only on. April
2, 1985 and thereafter the matter was further examined with
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reference to the provisions of the Rules governing reserva-
tions and a decision was taken to send a requisition to the
Public Service Commission for advertising the post. Accord-
ingly, the post was advertised on May 12, 1985, setting out
the eligibility criteria for selection to the post.The
2
advertisement was challenged by yet another petition on the
ground that the eligibility criteria had been so drafted as
to suit only the ad hoc incumbent of the post. The High
Court, which summoned the relevant records from the Govern-
ment, felt, on their examination, that the direction given
by it while disposing of the earlier writ petition on May 4,
1983 had been disregarded, and, issued notices to the appel-
lants calling upon them to show cause why they should not be
punished for contempt for ignoring the order dated May 4,
1983. The appellants expressed regret but contended that no
contempt had been committed by them for the reason that
expression of views in the notings made on the files, wheth-
er they were right or wrong, did not amount to contempt of
Court, as no order had been passed appointing the ad hoc
incumbent after October 17, 1983. The officials of the
Public Service Commission pleaded that the appointment of
the ad hoc incumbent from October 18, 1983 should be treated
as a fresh appointment, that they did not know about the
order passed by the High Court, and that though concurrence
was given, it had been withdrawn when the correct facts were
made known to them.
The High Court, after going through the relevant files
of the State Government and the Public Service Commission
came to the conclusion that, although the State of Bihar as
a juristic person was not liable for contempt for the reason
that the Chief Minister had minuted that its order must be
obeyed and the Chief Secretary had noted that the ad hoc
incumbent should not be granted further ad hoc appointment,
the appellants, inspire of the advice of the Advocate Gener-
al that taking any step to appoint the ad hoc incumbent
would amount to contempt of Court, were busy trying to find
out how to ignore its earlier order. The High Court further
observed that when its earlier direction was that regular
appointment should be made through the Public Service Com-
mission, there was no occasion for seeking the concurrence
of the latter for the appointment of the ad hoc incumbent.
According to the High Court, the whole file gave the impres-
sion that the appellant Officers were not reconciled to the
orders passed by it earlier. In these premises, the High
Court convicted the appellants for contempt and the ad hoc
incumbent of the post for abetting contempt sentencing each
of them to a fine of Rs.50 in default to suffer simple
imprisonment for two weeks.
Allowing the appeals and discharging the contempt orders
passed by the High Court,
HELD: Notings made by officers in the files cannot be
made the basis of contempt action against each such officer
who makes the notings. [10D]
3
(i) 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 opin-
ions by officers on matters coming before them through the
files. The expression of opinion in internal files are for
the use of the department and not for outside exposure or
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for publicity. To find officers guilty for expressing their
independent opinion, even against orders of courts in de-
serving cases, would cause impediments in the smooth func-
tioning of the Government. [9H; 10A-C]
(ii) Officers of the Government are often confronted
with orders of courts which are 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 the files, the reasons why
the orders cannot be complied with and also indicate that
the Court would not have passed those orders if full facts
were placed before them. The notings differ from officer to
officer. It may well be that the notes made by a particular
officer, technically speaking, is in disobedience of an
order of the Court or may be in violation of such order, but
a more experienced officer sitting above him can always
correct him. We must guard against being over sensitive,
when we come across objectionable notings made by officers,
some times out of inexperience, some times out of over
zealousness and some times out of ignorance of the nuances
of the question of law involved. [11A-B]
(iii) The functioning of the Government in a State is
governed by Art. 166 of the Constitution. A study of this
Article makes it clear that the notings in a file get culmi-
nated into an order affecting rights of parties only when it
reaches the head of the department and is expressed in the
name of the Governor and authenticated in the manner provid-
ed in Art. 166(2). Viewed in this light, it cannot be said
that what is contained in a notes file can ever be made the
basis of an action either in contempt or in defamation. The
notings in a notes file do not have behind them the sanction
of law as an effective order. It is only an expression of a
feeling by the concerned officer on the subject under re-
view. To examine whether contempt is committed or not, what
has to be looked into is the ultimate order. The expression
of opinion in notes file at different levels by concerned
officers will not constitute Criminal Contempt; it would not
constitute Civil Contempt either, for the reason that mere
expression of a view or suggestion will not bring it within
the vice of sub-s. (c) ors. 2 of the Contempt of Courts Act,
1971, [12A-E]
4
Bachhittar Singh v. State of Punjab, [1961] Supp. 3
S.C.R. 713, relied on.
(iv) The internal notes file of the Government, main-
tained according to the Rule of Business, enjoys quasi-
privilege and a disclosure in such communications cannot be
made the basis of an action in contempt. The general princi-
ple on which confidentiality of State documents should be
protected is that if a person is involved in litigation, the
Courts can order him to produce all the documents he has
which relate to the issues in the case. Even if they are
confidential, the Court can direct them to be produced when
the party in possession does not produce them, for the other
side to see, or, at any rate, for the Court to see. When the
Court directs production of these documents there is an
implied understanding that they will not be used for any
other purpose. The production of these documents in ordinary
cases is imposed with a limitation that the side for whose
purpose documents are summoned by the Court cannot use them
for any purpose other than the one relating to the case
involved. [10E-F]
Home Office v. Harman, [1981] 2 W.L.R. 310; Harman v.
Secretary of State for the Home Department, [1983] A.C. 280
and S.P. Gupta’ v. Union of India, [1982] 2 S.C.R. 365,
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referred to.
(v) In this case, the Court, after looking into the
notes file could have passed appropriate orders giving
relief to the affected party and expressing its displeasure
at the manner in which its order was implemented instead of
initiating action on the notings made in the file. That way
the Court would have enhanced its prestige. [18B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 871 of
1986 etc.
From the Judgment and Order dated 29.1.1986 of the Patna
High Court in Misc. Judicial Case No. 356 of 1985.
K.K. Venugopal, Jaya Narain, R.P. Singh, M.P. Jha, B.P.
Singh, Ranjit Kumar, Ranjan Dwivedi and P.P. Singh for the
appearing parties.
The Judgment of the Court was delivered by
KHALID, J. These appeals are directed against the Judg-
ment of a Division Bench of Patna High Court in Misc. case
No. 356 of 1985. Appeal No. 871 of 1986 is by the State of
Bihar, Appeal No. 916
5
jointly by Srideo Mishra, Judicial Commissioner, Ranchi (at
the relevant time, Secretary-cum-Legal Remembrancer, Depart-
ment of Law, Government of Bihar, Patna) and Mrs. Radha
Singh, Commissioner, Ranchi Division, Ranchi (at the rele-
vant time Additional Irrigation Commissioner., Patna),
Appeal No. 933 by Subh Chandra, Jha, Public Relation Offi-
cer, Irrigation Department, Government of Bihar, Patna and
Appeal No. 1178 by Birkeshwar Prasad Singh, now Professor
and Head of Department Political Science, Magadh University
(Member, Bihar Public Service Commission, Patna at the
relevant time). The appellants have been convicted by the
High Court for contempt of its order and have been sentenced
to a fine of Rs.50 in default to suffer simple imprisonment
for two weeks. The High Court had issued contempt notice
against some others also. Those notices were discharged
against them.
The background facts necessary can be now stated in
brief as follows:
In the Irrigation Department of the State of Bihar,
there existed a post of Public Officer. This post became
vacant some time in 1979. One Arun Kumar Verma was appointed
to that post for six months. At that time one Kripalu Shan-
ker was discharging the functions of Public Relation Offi-
cer. He laid claim to that post. He did not succeed. The
Secretary to the Department did not accede to his request.
Therefore, he filed C.W.J.C. No. 3632 of 1979. When the case
came up for hearing, it was represented on behalf of the
State that Shri Verma was appointed only on ad hoc basis for
a period of six months and that after the expiry of six
months, the matter would be referred to the Public Service
Commission for consideration and at that stage the case of
Kripalu Shankar also will be considered. It is submitted
that on this assurance by the State, the petition was al-
lowed to be withdrawn as per order dated 19.12.1979. It
appears that this assurance was not respected, no reference
was made to the Public Service Commission for regular ap-
pointment and the matter was kept in abeyance for a long
time. It is stated that in April, 1983, by which time Dr.
Jagannath Mishra had become Chief Minister, the State Gov-
ernment appointed Subh Chandra Jha as P.R.O. again on ad hoc
basis. This gave rise to the filing of petition no. 1534 of
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1983 which was disposed of on 4.5.83. It was contended that
this appointment was made without any advertisement and
without consultation with the Public Service Commission. The
learned Advocate General informed the Court when the matter
came up for heating that the appointment of Jha was only ad
hoc giving an impression that regular appointment would be
made after the expiry of six months. On this representation
the following order was passed by the Court:
6
"In the circumstances we direct that the post
of Public Relations Officer in the Irrigation
Department on which respondent 3 has been
appointed on ad hoc basis should be filled up
in a regular way. In case the appointment is
not made within the period of six months, the
ad hoc appointment shah stand terminated. We
further direct that the fact that the respond-
ent No. 3 has worked on the post on ad hoc
basis will not be taken to be a qualification
for the purpose of any appointment through
regular method on the post of Public Relations
Officer."
The six months’ period, according to the above order,
was to expire on 17.10.1983. The case of the State is that
the Irrigation Department had as early as 4.4.1983 written
to the Public Service Commission to give concurrence to the
appointment of Shri Jha, since his post was an ex-cadre post
and since he was selected by a Selection Committee. Concur-
rence was given on 2.4.85. The Government thereafter exam-
ined the matter in consultation with the Personnel (Adminis-
trative) Reforms Department, with reference to the provi-
sions of the Rules governing reservations. The Government
took a decision to send a requisition to the Bihar Public
Service Commission for advertising the post. The Commission
finally advertised the post on 12.5.1985, setting out the
eligibility and criterion for selection.
Another Writ Petition was filed in the High Court as
C.W.J.C. No. 2354/85 with the allegations that the adver-
tisement was specially drafted to suit only Subh Chandra
Jha. The matter was listed for admission on 13.6.1985.
During the hearing of this petition the High Court felt on
going through the records including the notes file summoned
for production by the Court that its direction in C.W.J.C.
No. 1534/83 was disregarded and, therefore, rule was issued
upon the respondents to show cause why they should not be
punished for contempt of the Court for ignoring its order
dated 4.5.1983, in the above mentioned writ petition.
The State of Bihar and the Commissioner-cum-Secretary,
Irrigation Department who were respondent nos. 1 & 2 before
the High Court expressed regret but at the same time con-
tended that no contempt had been committed by them for the
reason that expression of views in the notings made on the
files whether they were right or wrong did not amount to
contempt of court and that no order was passed appointing
Subh Chandra Jha after 17.10.1983 to invite any contempt
action. The third respondent also pleaded similarly and
expressed regret for any omission on his part. The Bihar
Service Commission and its Executive Officer stated that
they had not
7
committed any contempt, that Subh Chandra Jha’s appointment
from 18.10.1983 should be treated as a fresh appointment,
that they did not know about the order passed in petition
no. 1534 of 1983, that though concurrence was given, it was
withdrawn when the correct facts were made known to them and
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that the withdrawal of the concurrence was duly communicat-
ed. The other respondents also adopted similar stand in the
returns filed by the end.
Arguments in the contempt matter were heard for some
time, and they were concluded on 12.8.1985 and the case was
posted for Judgment. The Court went through the Government
files and the files of the Bihar Public Service Commission.
From the noting in the file, the High Court discovered that
Mrs. Radha Singh, the then Additional Irrigation Commission-
er and Birkeshwar Prasad Singh, Member Bihar Public Service
Commission and Sanjeevan Sharma, Section Officer, Bihar
Public Service Commission, had also a part in the matter.
Notices were, therefore, directed to be issued to them as
well. They appeared and were heard on 25.9.1985.
The High Court considered the question of
contempt on the following facts, which accord-
ing to it were undisputed:
(i) The ad hoc appointment of S.C. Jha must
be terminated on 17.10.1983 as per its order.
(ii) He was still working as P.R.O. with
the acquiescence of the concerned officers.
(iii) Concurrence of the Public Service
Commission was sought, for his fresh ad hoc
appointment.
(iv) The Public Service Commissioner gave
concurrence to the ad hoc appointment from
October, 1983, by its order in May, 1985.
The High Court expressed itself, of what
it felt about the disobedience of its order in
para 4 of the Judgment as follows:
"The State Government has ignored the order of
the High Court. It had, therefore, to be made
party. The Irrigation Commissioner-cum-Secre-
tary is responsible for every act of his
Department. It was, therefore, but natural
that the proceeding should be drawn up against
him also. Shrideo Mishra, Legal Remembrancer
was proceeded against, as he advised the State
Government on 10.10.1983 to seek concurrence
from the Commission in the fresh ad hoc ap-
pointment of Subh Chandra Jha knowing ball
well the dictate of
8
this Court that services of Subh Chandra Jha
must be terminated after the expirty of six
months. Incidentally, it may be stated once
again that the six months period had expired
on 17.10.1983. The Public Service Commission
and the Special Executive Officer thereof have
been proceeded against for granting concur-
rence to the Ad hoc appointment of Subh Chan-
dra Jha. Subh Chandra Jha himself has been
proceeded against for master minding the whole
affair. Proceeding is against him too on that
score. The proceeding was initiated against
A.U. Sharma on the footing that he was the
Irrigation Commissioner in October, 1983 when
the service of Subh Chandra Jha had to be
terminated. That is how the contemners have
been proceeded against."
The High Court found the officers guilty for the reasons
given below in Paragraph 22 of the Judgment, which we read
so that the approach of the High Court could be properly
appreciated.
"It is necessary to consider the submission
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urged by learned Advocate-General on behalf of
the officers of the State and the public
service commission. The General submission
was, that notings did not represent the con-
cluded decision of the Government, and there-
fore, the officers were not liable for con-
tempt of court. The proposition advanced by
learned Advocate General is rather too wide. A
Government file is not an individual’s private
property. It is public property. The opinions
expressed therein are liable to reduce the
credibility and the binding nature of the
orders passed by the High Court, and that
would amount to denigration of the State
Judiciary. No officer has the right to abuse
the High Court or to ignore the orders passed
by the High Court. I do not for a moment
contend that for every noting in the file
contrary to the view taken by the High Court
will amount to contempt of court. It will
depend upon the nature of the view noted in
the file and whether the nothings are intended
to set the High Court’s order at nought mali-
ciously. In the present case, the order of the
High Court was explicit. The Advocate General
had advised explicitly that taking any steps
to appoint Subh Chandra Jha ad hoc would
amount to contempt of court and yet the offi-
cers were busy trying to find out how to
ignore the High Court order. When the High
Court’s direction was to make the
regular appointment through the
9
B.P.S.C. where was the occasion for seeking
concurrence of ad hoc appointment of Subh
Chandra Jha. The whole file gives the impres-
sion that the officers in the state were not
reconciled to the orders passed by the High
Court. I am, therefore, unable to hold that
some of the officers were not liable for
contempt of court."
After considering the factual matrix before the Court,
the Court held that there was no disobedience of its order
by the Government and that the Government had taken a deci-
sion not to continue the ad hoc appointment but observed as
follows:
"The State of Bihar as a jurisdic person has
certainly not committed contempt. Because
their Chief Minister Shri Chandresekhar Singh
wrote on 8.1. 1984 that the High Court order
must be obeyed. On 10.3. 1984, the Chief
Secretary noted that Shri Jha should not be
granted ad hoc appointment ...... the State
of Bihar therefore cannot be held to be guilty
of contempt of this Hon’ble Court ...... "
After this finding, the High Court held some of the
officers of the Government guilty solely on the basis of the
views expressed by them in the files, which were not, in
fact, accepted by the Government and which were only at the
stage of suggestions and views. Shri K.K. Venugopal, the
learned counsel for the State contended that it would be
unsafe to initiate action in contempt merely on the strength
of notings by officials on the files, expressing their views
and to do so would imperil the working of various depart-
ments in a Government in a democracy and would have far
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reaching consequences. Some times a view expressed by an
officer may be incorrect. The view so expressed passes
through various hands and gets translated into action only
at the ultimate stage. The views so expressed are only for
internal use. Such views may indicate the line of thinking
of a particular officer. Until the views so expressed culmi-
nate into an executable order, the question of disobedience
of Court’s order does not arise. Though the State Government
have been found not guilty, the State has filed the appeal
to protect its officers from independent and fearless ex-
pression of opinion and to see that the order under appeal
does not affect the proper functioning of the Government.
It cannot be disputed that the appeal raises an impor-
tant 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
10
concerned. Till then, conflicting opinions, views and sug-
gestions 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 mat-
ters coming before them through the files. This is so even
when they consider orders of courts. Officers of the Govern-
ment are often times confronted with orders of 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 the
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 the use of the department and not for outside expo-
sure 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 publi-
cation.
In our considered view the internal notes file of the
Government, maintained according to the vales of business,
is a privilege document. if the Government claims privilege
or quasi-privilege regarding the notes file we will not be
justified in rejecting the claim outright. In this case, the
notes file was brought to the Court not voluntarily by the
Government. It was summoned for by the Court. The Court can
always look into it. The right of the Court to look into any
files, can never be denied. The contents of the notes file
brought to Court got communicated to the Court because the
Court looks into it. It would be dangerous to find an action
for contempt, for the views expressed in the notes file, on
the discovery of unpleasant or unsavory notes, on a perusal
of the notes file by the Court, after getting them summoned.
This would impair the independent functioning of the civil
service essential to democracy. This would cause impediments
in the fearless expression of opinion by the officers of the
Government. The notings on files differ from officer to
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officer. It may well be that the notes made by a particular
officer, in some cases, technically speaking is in disobedi-
ence in an order of the Court or may be in violation of such
order but a more experienced officer sitting above him can
always correct him. To rely upon the notings in a file for
the purpose of initiat-
11
ing contempt, in our view, therefore, would be to put the
functioning of the Government out of gear. We must guard
against being over sensitive, when we come across, objec-
tionable notings made by officers, sometimes out of inexpe-
rience, sometimes out of over zealousness and sometimes out
of ignorance of the nuances of the question of law involved.
Now, the functioning of Government in a State is gov-
erned by Article 166 of the Constitution, which lays down
that there shall be a council of ministers with the Chief
Minister at the head, to aid and advise the Governor in the
exercise of his functions except where he is required to
exercise his functions under the Constitution, in his dis-
cretion. Article 166 provides for the conduct of Government
business. It is useful to quote this Article:
"166. (1) All executive action of the Govern-
ment of a State shall be expressed to be taken
in the name of the Governor.
(2) Orders and other instruments
made and executed in the name of the Governor
shall be authenticated in such manner as may
be specified in rules to be made by the Gover-
nor, and the validity of an order or instru-
ment which is so authenticated shall not be
called in question on the ground that it is
not an order or instrument made or executed by
the Governor.
(3) The Governor shall make rules for the more
convenient transaction of the business of the
Government of the State and for the allocation
among Ministers of the said business in so far
as it is not business with respect to which
the Governor is by or under this Constitution
required to act in his discretion."
Articles 166(1)requires that all executive action of the
State Government shall be expressed to be taken in the name
of the Governor. This clause relates to cases where the
executive action has to be expressed in the shape of a
formal order or notification. It prescribes the mode in
which an executive action has to be expressed. Noting by an
official in the departmental file will not, therefore, come
within this Article nor even noting by a Minister. Every
executive decision need not be as laid down under Article
166(1) but when it takes the form of an order it has to
comply with Article 166(1). Article 166(2) states that
orders and other instruments made and executed under Article
166(1), shall be authenticated in the manner prescribed.
While clause (1) relates to the mode of expression, clause
(2) lays down the manner in
12
which the order is to be authenticated and clause (3) re-
lates to the making of the rules by the Governor for the
more convenient transaction of the business of the Govern-
ment. A study of this Article, therefore, makes it clear
that the notings in a file get culminated into an order
affecting right of parties only when it reaches the head of
the department and is expressed in the name of the Governor,
authenticated in the manner provided in Article 166(2).
Viewed in this light, can it be said that what is con-
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tained in a notes file can ever be made the basis of an
action either in contempt or in defamation. The notings in a
notes file do not have behind them the sanction of law as an
effective order. It is only an expression of a feeling by
the concerned officer on the subject under review. To exam-
ine whether contempt is committed or not, what has to be
looked into is the ultimate order. A mere expression of a
view in notes file cannot be the sole basis for action in
contempt. Business of a State is not done by a single offi-
cer. It involves a complicated process. In a democratic set
up it is conducted through the agency of a large number of
officers. That being so, the noting by one officer, will not
afford a valid ground to initiate action in contempt. We
have thus no hesitation to hold that the expression of
opinion in notes file at different levels by concerned
officers will not constitute criminal contempt. It would
not, in our view, constitute civil contempt either for the
same reason as above since mere expression of a view or
suggestion will not bring it within the vice of sub-section
(c) of Section 2 of the Contempt of Courts Act, 1971, which
defines civil contempt. Expression of a view is only a part
of the thinking process preceding Government action.
In the case of Bachhittar Singh v. The State of Punjab,
[1962] Suppl. 3 SCR 713 a Constitution Bench of this Court
had to consider the effect of an order passed by a Minister
on a file. which order was not communicated. This Court,
relying upon Article 166(1) of the Constitution, held that
the order of the Revenue Minister, PEPSU could not amount to
an order by the State Government unless it was expressed in
the name of Rajpramukh as required by the said Article and
was then communicated to the party concerned. This is how
this Court dealt with the effect of the noting by a Minister
on the file:
"The question, therefore, is whether he did in
fact make such an order. Merely writing some-
thing on the file does not amount to an order.
Before something amounts to an order of the
State Government two things are necessary. The
order has to be expressed in the name of the
Governor
13
as required by clause (1) of Article 166 and
then if has to be communicated. As already
indicated, no formal order modifying the
decision of the Revenue Secretary was ever
made. Until such an order is drawn up the
State Government cannot, in our opinion, be
regarded as bound by what was stated in the
file. As long as the matter rested with him
the Revenue Minister could well score out his
remarks or minutes on the file and write fresh
ones."
This Court observed in this Judgment that business of
State is a complicated one and has necessarily to be con-
ducted through the agency of a large number of official and
authorities. Before action is taken by the authority con-
cerned in the name of the Rajpramukh which formality is a
Constitutional necessity, nothing done would amount to an
order creating rights or casting liabilities on third par-
ties. It is possible, observed this Court, that after ex-
pressing one opinion about a particular matter at a particu-
lar stage a Minister or Council of Ministers may express
quite a different opinion which may be opposed to the earli-
er opinion. In such cases, which of the two opinions can be
regarded as the order of the State Government. It was held
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that an opinion becomes a decision of the Government only
when it must be communicated to the person concerned and
that this is the essence of the matter. We seek support from
these observations for our purpose that notings in a notes
file, not only of officers but even that of a Minister will
not constitute an order to affect others unless it is done
in accordance with Article 166(1) and (2) and communicated
to the person concerned.
In England, absolute privilege is given to statements
made by one officer of a State to another and such state-
ments are protected in the context of law of defamation.
Section 123 of the Evidence Act deals with privilege. We
have already stated that State communications or acts of
State in Public interest, enjoy privilege and if that be so,
disclosure in such communications made to the court will not
constitute either contempt or defamation. In any case such
internal communications enjoy quasi-privilege and a disclo-
sure in such communications cannot be made the basis of an
action in contempt.
We have seen how the High Court approached the whole
question from paragraph 22 extracted early in the Judgment.
It is clear that the High Court based its conclusion
purely on the notings in the file. The High Court felt that
the officers of the Govern-
14
ment did not like the orders passed by it and this, accord-
ing to the High Court, was evident from the files before it.
The High Court summed up its conclusion as follows in para-
graph 24 of the Judgment:
"To sum up, contempt of this Court has been
committed by Shri Deo Mishra, Legal Remem-
brancer, Mrs. Radha Sinha, I.A.S. then working
as Additional Commissioner, Irrigation Depart-
ment and now working as Additional Finance
Commissioner, Dr. Birkeshwar Prasad Singh,
Sanjeewan Sharma and Subh Chandra Jha and I
convict them accordingly. In regard to sen-
tence, I am clearly of the view that there was
motivation for it. The hand of the moving
spirit has, however, remained concealed. It
appears that the feeling amongst high officers
of this state is that the High Court will not
punish them for contempt of the High Court, as
they are high officers and that all that the
High Court will do in case of contempt of
court is to give lectures and at times rant at
them. To remove this misconception it is
essential to impose upon them a fine of Rs.50
(Rupees fifty) each on all the five persons
mentioned above, in default to suffer simple
imprisonment for two weeks. The rule issued
against J.C. Kundra, A.K.M. Nassan. A.U.
Sharma and Arjun Prasad is discharged."
We see that the High Court felt that there was an at-
tempt on the part of the officers to disobey its orders. The
officers had tendered apology. This was not accepted. We are
concerned more than anyone in upholding the dignity and
prestige of the High Court, but we have a duty at the same
time to lay down the law correctly. We feel that the convic-
tion entered by the High Court purely on the basis of the
notes file cannot be justified.
The High Court was under the impression that all the
officers acted in unison to help the 5th respondent. We now
deal with his case separately. He is described by the High
Court as the Kingpin of the whole drama and according to the
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High Court everybody concerned acted for his benefit. There
is a veiled suggestion that he would not have achieved what
he wanted except with the help of political forces and that
there is an un-seen hand behind what he achieved. He was
found guilty of abetting the contempt. -
According to him he has been made a scape-goat, that his
is an unfortunate case of a journalist, appointed as Public
Relation Officer on ad-hoc basis for six months as recom-
mended by a selection commit-
15
tee at an interview held along with seven other candidates.
He joined service after such a selection on 18-4-1983. As
per the order of the High Court, the period of six months
for making the regular appointment to his post was to expire
on 17-10-1983. Long before this date, the Irrigation Depart-
ment had written to the Public Service Commission stating
that the post held by the appellant was an ex-cadre post and
that concurrence may be accorded for his appointment. This
was an internal letter. The Government sent a requisition to
the Public Service Commission for advertising the post on
10-8-1984. The Commission ultimately made the publication on
12-5-1985 stating the eligibility and criteria for selec-
tion. It was this publication that promoted the filing of
the writ petition in question in which the order that gave
rise to the contempt proceeding was passed. Regular appoint-
ment pursuant to the advertisement was stayed. The appellant
thus continued at the post.
According to him he has not disregarded the order of the
High Court. The Bihar Public Service Commission gave concur-
rence for his appointment for six months. The post of P.R.O.
being an ex-cadre post since its creation in 1955, the post
could not be filled up by giving promotion to anyone working
in the department. It was constituted to interview candi-
dates and to recommend a suitable person. The appellant
continues to function on the strength of the orders passed
in his favour and he cannot be held to have committed con-
tempt of the High Court’s order. He has stated that he had
no notice in the writ petition filed by Kripalu Shankar or
the writ petition from which the present contempt arise.
Though he was made a party no notice was ever issued to him
and no direction was given to him by the High Court. Accord-
ing to him, apart from a general observation that he abetted
in disregarding the order of the High Court nothing specific
has been attributed to him. His unqualified apology was also
not accepted by the High Court. He also relies upon the fact
that he was not paid salary from 18-10-1983 to date in re-
inforcement of his submission that he has not committed any
contempt.
With respect to the learned Judges, we find it difficult
to agree wholly with them regarding the finding that the
appellant was guilty of contempt. We do not have sufficient
materials before us to conclude that the appellant exercised
political clout to further his interest in utter disregard
of the orders of the Court. Although it may be said that the
conduct of the appellant is in some measure suspect, we do
not find sufficient justification to enter a finding that he
is guilty of contempt and that he acted in utter disregard
of the High Court’s order. It is useful to remember that
apart from the notes file, there is no indepen-
16
dent material before us to held that the appellant had
committed contempt. The Government pleader and the Advocate
General had clearly advised the Government to act in accord-
ance with the directions given by the High Court. The Minis-
ter who is the ultimate authority also acted in obedience to
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the orders of the High Court. That being so, we find it
difficult to agree with the finding that he is guilty of
criminal contempt. The High Court felt that his was not a
fit case to accept the unqualified apology tendered. Howev-
er, we find, that on materials placed before us, it is not
proved beyond doubt that he had committed contempt. We
would, therefore, give him benefit of doubt and purge him of
the contempt found against him.
We would like to outline the general principle on which
confidentiality of State documents should be protected. The
general principle is that if a person is involved in litiga-
tion, the Courts can order him to produce all the documents
he has which relate to the issues in the case. Even if they
are confidential, the Court can direct them to be produced
when the party in possession does not produce them, for the
other side to see or at any rate for the Court to see. When
the Court directs production of those documents there is an
implied understanding that they will not be used for any
other purpose. The production of these documents in ordinary
cases is imposed with a limitation that the side for whose
purpose documents are summoned by the Court cannot use them
for any purpose other than the one relating to the case
involved.
Miss Harman’s case Home office v. Harman, [1981] 2 WLR
310 may give some assistance for this aspect of our discus-
sion. The facts are as follows:
Miss Harman, a Solicitor, acted for a criminal, Michael
Williams who was in prison serving a long sentence for
robbery of the bank. He complained that he was subjected to
cruel and unusual punishments while in prison contrary to
the Bill of Rights and accordingly brought an action for
damages against the Home Office. Miss Harman acted for him
as a legal aid counsel. Miss Harman got an order for discov-
ery against the Home Office. The Home Office did not raise
any objection regarding the production of the documents.
However, it objected the use of the documents by the Group,
called "The National Council for Civil Liberties". Accord-
ingly the documents were brought to Court and they were read
out in open Court. Miss Harman passed the bundles of the
documents to a journalist and a write up appeared in ’The
Guardian’ which was highly critical of the Home Office. The
Home
17
Office took proceedings against Miss Harman for contempt of
Court. She was held guilty for contempt by the High Court
and was confirmed by the Court of Appeal and by the House of
Lords. In the Court of Appeal, Lord Denning, despite his
liberal views, while upholding the right of the Court to
read documents relating to cases while conceding also the
liberty to those present in Court to listen when those
documents were read and the reporter to take down what was
read, did not extend to the press a right to any further use
of the confidential documents or any further dissemination
of their contents without the consent of the owner. It is of
no use to plead the freedom of the press, he said, that
freedom is itself subject to restriction. Public confiden-
tial documents, it was said, should be kept confidential in
the public interest and should not be exposed to the ravages
of outsiders. When the House of Lords’ decision in Harman v.
Secretary of State for the Home Department, [1983] AC 280
upholding the Court of Appeals was rendered, there was great
hue and cry that the ruling meant "a black day for press
freedom .... ". Even so, Lord Denning regretted that the
Court ever ordered disclosure of the documents and observed
that the "legal milestone will have to be taken up and set
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back a bit."
In Bachittar Singh’s case (supra), privilege was claimed
regarding the production of which was sought, embodied the
minutes of the meetings of the Council of Ministers showing
the advice which the Council ultimately give to the Rajpra-
mukh. This Court held that these documents fell within the
category of documents relating to the affairs of State
within the meaning of Section 123 of the Evidence Act and
were protected under the said Section. Though the ratio of
this decision outlines the conservative view in the law
relating to privilege, we are not unmindful of the fact that
the doctrine of privilege received a shock treatment against
the State at the hands of this Court in the Judges’ case,
S.P. Gupta & Ors. etc. etc. v. Union of India and others
etc. etc., [1982] 2 SCR 365. May we say that the legal
milestone in Gupta’s case, also needs a retreat, a bit.
Before parting with this case we would like to observe
the need for restraint and care in dealing with the internal
files of the Government. We have already indicated its
privileged position and limited areas where exposure is
permissible of the notings in the file. This is not to say
that absolute privilege can be claimed of its exposure and
protection from the view of Courts. But what is to be borne
in mind is that the notings in the departmental files by the
hierarchy of officials are meant for the independent dis-
charge of official duties and not for exposure outside. In a
democracy, it is absolutely necessary that its steel frame
in the form of civil service is permitted to express itself
18
freely uninfluenced by extraneous considerations. It might
well be that even orders of Court come in for adverse re-
marks by officers dealing with them, confronted with diffi-
cult situations to straight away obey such orders. Notings
made on such occasions are only for the benefit of the
officers concerned. When a subordinate official commits a
mistake higher official will always correct it. It is neces-
sary for Courts also to view such notings in the proper
perspective. In this case, the Court, after looking into the
notes file could have passed appropriate orders giving
relief to the affected party and expressing its displeasure
at the manner in which its order was implemented instead of
initiating action on the notings made in the file. That way
the Court would have enhanced its prestige.
It will not serve either the healthy working of the
civil service, public interest or democratic norms to pro-
ceed in contempt against officials solely on the basis of
minutes in the internal files, notings which might even be
unsavory or even derogatory to an order of the Court, but
which get ultimately corrected by the head of the depart-
ment, ending with an order under Article 166(1) and (2) in
the name of the Governor in the proper form. We are con-
scious of the fact that the learned Judges felt that there
was a deliberate attempt to act against their order. We are
not unmindful of the indignation shown by them at the not-
ings in the file. The only reason why we feel constrained to
disagree with the High Court’s order is our anxiety to
delineate the limits of judicial power while dealing with
files of the Government and also of the Public Service
Commission, a high Constitutional authority. It is necessary
to have mutual respect among the various wings of the admin-
istration, in the process of disposal of justice.
We allow these appeals and discharge the contempt orders
passed by the High Court with utmost reluctance in view of
the far reaching consequences that would flow if the judg-
ment was allowed to stand. We are happy that the appellants
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have tendered their regret and apology to the High Court and
have reiterated their regret in this Court also.
H.L.C. Appeals
allowed.
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