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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 On this assurance,  the petition was allowed to be withdrawn on 19th December, 1979.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. 19