Union of India vs Indra Deo Kumar and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 579 of 1963

Decision Date: 27 January 1964

Coram: B.P. Sinha (CJ), K. Subbarao, R. Dayal, N.R. Ayyangar, J.R. Mudholkar

In this appeal, the Court recorded that the parties were Union of India as petitioner and Indra Deo Kumar together with three other travelling ticket examiners of the North Eastern Railway as respondents. The appeal, numbered 579 of 1963, was decided on 27 January 1964 by a Bench comprising Chief Justice B. P. Sinha, Justice K. Subbarao, Justice R. Dayal, Justice N. R. Ayyangar and Justice J. R. Mudholkar. The judgment was authored by Justice Raghubar Dayal. The respondents had originally instituted a suit in the Court of the Munsif, First Court, Muzaffarpur, seeking a declaration that they were entitled to be promoted to the grade of Travelling Ticket Inspectors with a salary range of two hundred rupees to three hundred rupees, effective from 22 March 1957, based on the recommendation of the competent authority, namely the Regional Superintendent at that time. They also claimed that the orders of Defendants 2 and 3 – the General Manager of the North Eastern Railway at Gorakhpur and the Chief Personnel Officer of the North Eastern Railway at Gorakhpur – which rejected their promotion, were illegal and beyond jurisdiction. Further, they sought a permanent injunction restraining the defendants, including the Union of India, from filling the vacancies that existed in January 1957 with any persons other than the plaintiffs.

The Union of India opposed the suit on several grounds, one of which was that the suit suffered from misjoinder of parties because Defendants 2 and 3, being civil servants of the Central Government, were neither necessary nor proper parties under Article 300 of the Constitution and Section 79 of the Code of Civil Procedure. On 12 August 1961 the plaintiffs filed an application requesting that the defendants be directed to produce four documents essential to substantiate the plaintiff’s allegations, noting that certified copies of these documents could not be obtained. The four documents sought were: (1) the recommendation of the Regional Superintendent, Muzaffarpur, to the General Manager, Gorakhpur, which differed from the Selection Board’s recommendation dated 15 January 1957; (2) the order issued by the General Manager rejecting the Regional Superintendent’s recommendation; (3) a letter from the General Manager to the Regional Superintendent informing him of the order passed on his recommendation; and (4) the mark sheets of the candidates interviewed for the positions of Travelling Ticket Inspector and Conductor by the Selection Board on 1 January, 10 January and 14 January 1957 at Muzaffarpur.

Subsequently, on 21 September 1961 the defendants filed an application seeking exemption from producing the aforesaid documents, relying on an affidavit submitted by the Head of the Department. The affidavit was signed by Shri B. M. Kaul, who held the position of Chief Personnel Officer, North Eastern Railway, Gorakhpur.

In this matter, the General Manager of the Railway at Gorakhpur issued a statement indicating that after a careful review of the references and the mark sheets of candidates interviewed for the positions of Temporary Ticket Inspector and Conductor, he concluded that these documents constituted unpublished official records concerning the affairs of the State. He further asserted that the disclosure of such records would be detrimental to the public interest because they were confidential in nature. Consequently, he declared that he would not permit anyone to produce the documents or to offer evidence derived from them under section 123 of the Indian Evidence Act, 1872.

On 20 December 1961, the learned Munsif rejected the application filed by the defendants seeking exemption from producing the documents. The Munsif ordered that the defendants must produce the requested documents by 20 January 1962. The basis for this order was that the affidavit submitted by the Chief Personnel Officer did not satisfy the requirement of being executed by the Head of the Department as mandated by section 123 of the Evidence Act. In reaching this conclusion, the Munsif relied upon the precedent set in State of Punjab v. Sodhi Sukhdev Singh, 1961 (2) SCR 371, which held that privilege under section 123 should ordinarily be claimed by the Minister‑in‑Charge of the department or by the Secretary of the department, who is the departmental head, and that such a claim must be made in the form of an affidavit. The affidavit of the Chief Personnel Officer failed to state that he was the Head of the Department.

A review petition was subsequently filed on 20 January 1962. In that petition, it was contended that Shri B. M. Kaul was indeed the Head of the Department and that his earlier affidavit had omitted this fact due to a clerical error. The petitioners sought to file a fresh affidavit by Shri Kaul and cited a notification dated 2 April 1959 issued by the Ministry of Railways, together with an amendment to Appendix XXXVIII‑RII dated 18 May 1960 to the Indian Railways Establishment Code, Volume II, in support of the claim that the Chief Personnel Officer occupied the position of Head of the Department. The new affidavit asserted that, as the Head of the Personnel Department, the deponent was in control of and responsible for the records, which were unpublished official records relating to State affairs, and that their disclosure would be prejudicial to public interest. The affidavit provided two reasons for this view: (a) the correspondence exchanged between the then Regional Superintendent of Muzaffarpur, the Deputy General Manager (Personnel), and the Chief Commercial Superintendent (Personnel) was made in official confidence and, for the proper functioning of the public service, should not be disclosed, as its disclosure would materially affect the freedom and candour of expression and could interfere with efficient public service operations, thereby injuring public interest; and (b) the mark sheets of candidates, referred to in item (iv), constituted a class of documents that the department traditionally kept confidential.

The learned Munsif held that the review application was not maintainable because the defendants were already aware, on the earlier occasion, that Shri Kaul was the Head of the Department as per the notification and rules now relied upon, and because, even on the facts, the privilege could not be claimed since the affidavit was not executed by the Minister‑in‑Charge of the Department, making it an unsuitable case for the allowance of such privilege.

In the matter before the Court, it was observed that although a notification and certain rules identified Shri Kaul as the Head of the Department, the privilege claimed could not be sustained because the affidavit in question had not been executed by the Minister‑in‑Charge of the Department, and the circumstances did not warrant the application of such privilege. The Union of India, acting on behalf of the General Manager and the Chief Personnel Officer of the North Eastern Railway, sought relief by filing a revision application before the High Court. The High Court dismissed the application, concurring with the learned Munsif that Shri Kaul did not qualify as the Head of the Department for the purposes of section 123 of the Evidence Act. The Court further held that only the Railway Minister or the Secretary to the Ministry of Railways could invoke the privilege contemplated by that provision. Dissatisfied with that decision, the Union of India obtained special leave to appeal to this Court. Counsel for the appellant, identified only as the representative for the Union of India, argued that the precedent set in Sukhdev Singh (1961 (2) SCR 371; 1961 AIR SC 493) required reconsideration. He contended that the term “department” in section 123 should not be restricted to the Ministry of Railways alone, but should extend to any department within a railway administration, each of which operates as an independent entity with its own set of departments. Accordingly, he submitted that any officer who serves as the head of such a department, including Shri Kaul as the head of the Personnel Department of the North Eastern Railway—by virtue of the Ministry of Railways notification and the entry in Appendix XXXVIII of Volume II of the Railway Establishment Code—should be deemed a “head of department” capable of claiming the privilege.

The Court indicated that it was unnecessary to engage in a detailed analysis of the appellant’s request to revisit the Sukhdev Singh decision, while affirming that no doubt was cast on the correctness of the earlier ruling. The Court expressed the view that even if the term “department” in section 123 were interpreted in the broad manner suggested by the appellant and the Personnel Department were recognized as a department, Shri Kaul would still not satisfy the statutory requirement of being the head of that department for the purpose of invoking the privilege. To support this conclusion, the Court examined the notification dated 2 April 1959 issued by the Ministry of Railways (Railway Board) in relation to the T.A. Rules governing Controlling Officers under rule 350‑RI. That notification stated that the President had decided to confer on the Chief Personnel Officer the status of a Head of the Department, thereby implying that the Chief Personnel Officer, although accorded the status, was not inherently the head of a department but was given that designation for administrative purposes.

The Court observed that, according to the notification issued on 2 April 1959, the Chief Personnel Officer would act as his own Controlling Officer for the purpose of countersigning his T A bill under Rule 350‑RI. Consequently, the list of officers identified as Heads of Departments, which appears in Appendix 38‑RII and was last amended by the Board’s letter No F.(E) 54/AL‑28 (6) dated 9‑5‑57, could be further altered by means of the enclosed correction slip. The correction slip dated 18 May 1960 amended Appendix 38‑RII by adding a new entry, as substituted by C.C. No 97 R‑II and last amended by C.S. No 125 R‑II dated 3‑2‑58, to read “18, Chief Personnel Officers.” The Court noted that the language of the notification makes it clear that the Chief Personnel Officer, in his own right, is not a “head of a department,” but that he is nevertheless conferred the status of a Head of Department for certain purposes. Rule 2202 R‑II defines several terms used in Chapter XXII of the Railway Supplementary Rules, provided there is no conflict with the subject matter of the rule. Sub‑rule (9) of that rule specifies that “head of a department” means an authority listed in Appendix XXXVIII. That appendix supplies the roster of officers declared Heads of Departments in relation to Rule 2202 (9). The entry numbered 18 in the appendix, made pursuant to the April 2 1959 notification, therefore designates a Chief Personnel Officer as head of department for the purposes of the rules contained in Chapter XXII R‑II, which address matters distinct from those governed by Section 123 of the Evidence Act. Chapter XXII is organised into seven divisions, A through G, covering General Compensatory Allowances, Fees, Leave Procedure, Joining Time, Foreign Service and Delegations. Appendix XXXII records the President’s delegations of authority under various rules to different officials. The Court held that the entry in Appendix XXXVIII naming the Chief Personnel Officer as head of department does not assist in treating him as head of department for the purposes of Section 123 of the Evidence Act. Moreover, the April 2 1959 notification expressly states that the Chief Personnel Officer’s status will be that of a head of department and that he will therefore be his own controlling officer for the purpose of countersigning his T A bill under Rule 350‑R1, which corresponds to Rule 344 of the Indian Railway Establishment Code, Volume I, as revised in 1959. Rule 344, under the heading “Controlling Officer,” provides that Heads of Departments shall be their own controlling officers. Accordingly, the Court concluded that the status granted to Shri Kaul, Chief Personnel Officer, by the April 2 1959 notification and the entry numbered 18 in Appendix 38‑RII makes him head of department only for the specific rules in Chapter XXII and only when there is no inconsistency with the subject matter of those rules.

In the case before the Court, it was observed that there is nothing repugnant in the context or subject of the rule that is being examined. The Court noted that the Chief Personnel Officer has not been given the status of a Head of Department for the purpose of claiming the privilege provided under section 123 of the Evidence Act. The Court further explained that, even if it were possible to confer such a status on a person who is not in fact a Head of Department, that conferment could not be effected by any notification issued by the Government or by the Railway Administration, as indicated by the reference to footnote 15. Accordingly, the Court expressed the view that the Chief Personnel Officer is not to be regarded as head of the department for the purposes of section 123 of the Evidence Act because the designation of head of department has been conferred on him only for particular purposes, and those particular purposes do not include the purpose of invoking privilege under section 123 of the Evidence Act. The Court therefore concluded that the request to rely on the evidentiary privilege was untenable. On this basis, the appeal was dismissed and the appellant was ordered to pay the costs of the proceedings.