GOSWAMI, J.:- This Rule was ob­tained against an order dated 24th Octo­ber, 1968, terminating the service of the petitioner, who was at the material time a temporary Assistant Station Master in the service of the Northeast Frontier Railway. The petitioner's case is that he joined service under the Railway as a temporary Signaller at the salary of Rs. HO/- per month in the scale of Rs. 110-200/-, sometime in March, 1962. In April, 1962. he was appointed to the post of Assistant Station Master (ASM). The petitioner states that he has rendered good and efficient service since his date of appointment and even after completion of about six years, he is still kept as a temporary employee. He is a member of the N. F. Railway Mazdoor Union which is a registered trade union of the non-gazetted railway servants and he is also an office-bearer of the same. The Union decided to call a token strike for one day on 19th September 1968 in accordance with the provisions of the Industrial Dis­putes Act with intimation to the autho­rities. The President of India promul­gated the Essential Services Maintenance Ordinance, 1968 (hereinafter called 'the Ordinance') on 13th September, 1968 and various orders were passed declaring the strike as illegal. That a strike took place, as notified, on 19th September. 1968 for a period of 24 hours commencing at 6 A.M. of the day. The petitioner was arrested by the police on the same day at about 8-30 A.M. under Sections 4 and 5 of the Ordinance, but was released on bail that very day. It may be useful to quote paras 18 to 21 of the petition: "18. That the Home Minister, Govern­ment of India made repeated directions for inflicting punishments on all those who were alleged to have participated in the aforesaid strike in the aforesaid man­ner namely by termination of service in case of temporary employees. Similar statements were made by the Home Minister and Prime Minister on the floor of the Parliament. 19. That in pursuance of the policy of the Government, the Ministry of Home Affairs, Government of India in its Office Memorandum issued under Nos. 13/9fS)/ 68 Est(B) dated 16-9-68 and 13/9(S)/68 Est(B) dated 24-9-68 issued orders directing and detailing the actions to be taken against the employees who participated in the strike. 19. That in pursuance of the policy of the Government, the Ministry of Home Affairs, Government of India in its Office Memorandum issued under Nos. 13/9fS)/ 68 Est(B) dated 16-9-68 and 13/9(S)/68 Est(B) dated 24-9-68 issued orders directing and detailing the actions to be taken against the employees who participated in the strike. In that instructions, inter alia, it was ordered to terminate the ser­vices of the temporary Government ser­vants who had taken active part in the strike by giving one month's pay in lieu of notice. 20. That prior to 19th September. 1968 and thereafter, the Railway Board also Issued instructions to all Zonal Railway directing repression and persecution of the railway employees who would parti­cipate in the token strike of 19th Septem­ber. 1968. In pursuance of the Govern­ment's policy of repression and persecu­tion the Railway Board under secret let­ter No. E(L)68STI-56 dated 17-9-68 fol­lowed by further instructions conveyed through the Secret Wireless Message No. E(L)68STI-56 dated 20th September. 1968 and Demi-official Secret Letter No. E(L) 68STI-56 dated 23rd September 1968 from Sri K. V. Kasthuri Rangam, Director (Establishment). Railway Board issued directions to the all Zonal Railway in­cluding Northeast Frontier Railway for taking action against the employees who would take part in the token strike of 19th September 1968. In that instruc­tions, inter alia, it was ordered to termi­nate the services of temporary employees who would be arrested in connection with the strike by giving pay and allowances In lieu of notice. 21. That before and after the strike several other communications were also received by the General Manager, North­east Frontier Railway (Respondent No. 2) and other officers in the Railway Head Quarters at Pandu directing disciplinary actions who according to the Administra­tion and their officers alleged to have taken active part in the aforesaid strike and the General Manager and its staff in the Railway Head Quarters issued consequential directions to his subordi­nate officer in the Northeast Frontier Railway." The petitioner states that on 23rd Septem­ber. 1968, the General Manager, respon­dent No. 2, issued orders instructing all his subordinate Gazetted Officers to sus­pend and terminate the services of the temporary employees who are arrested for any offence by application of Rule 149 RI, as per Annexure II to his petition. Further the petitioner states that on 30th September. 1968, the General Manager, respon­dent No. 2, issued orders instructing all his subordinate Gazetted Officers to sus­pend and terminate the services of the temporary employees who are arrested for any offence by application of Rule 149 RI, as per Annexure II to his petition. Further the petitioner states that on 30th September. 1968, the General Manager "again issued further secret orders to all his subordinate Gazetted Officers detail-Ing the guide-lines for taking action against the employees in connection with the strike of 19th September, 1968." The document containing these is marked as Annexure III to his petition. That on 23rd October. 1968, the General Manager 'again relayed further confidential orders Issued by the Railway Board, to all his subordinate Gazetted Officers detailing the action to be taken in context of the token strike of 19th September, 1968." A copy of the said order is marked aa Annexure IV to his petition. The peti­tioner states that in pursuance of the aforesaid directions issued by the Gene­ral Manager, the Area Officer, respondent No. 4, suspended the petitioner with effect from 19th September. 1968 by his order dated 25th September. 1968 (Annexure V). That on 2nd October, 1968, the peti­tioner was served with a notice dated 26th September, 1968/2nd October, 1968 signed by the District Operating Superin­tendent, respondent No. 3, terminating forthwith his service and directing that he be paid a sum equivalent to the amount of his pay and allowance for one month in lieu of notice period under Rule 149 of the Indian Railway Establish­ment Code, Vol. I (Annexure VI). That on 5th October, 1968, the Deputy General Manager, by a telegram cancelled the said order of termination of service and also released the petitioner from supen-sion and directed the authority to issue a formal revocation order and to intimate the date on which the petitioner is to be put back to duty (Annexure VII). Even «o, the respondent No. 3, under the orders and directions of the General Manager passed the impugned order dated 24th October. 1968 terminating the petitioner's service with immediate effect under Rule 149 (Annexure VIII). The petitioner states that the Assistant Station Masters Working in the Railway who are junior in service to the petitioner are still con­tinuing in service. He states that no reasonable opportunity to show cause against the termination order was afford­ed to him. 2. 1968 terminating the petitioner's service with immediate effect under Rule 149 (Annexure VIII). The petitioner states that the Assistant Station Masters Working in the Railway who are junior in service to the petitioner are still con­tinuing in service. He states that no reasonable opportunity to show cause against the termination order was afford­ed to him. 2. The petitioner submits that the order of termination of service is by way of punishment and as such is violative of Article 311(2) of the Constitution. He also submits that the order is mala fide and has been made in colourable exercise of powers with the object of wrongfully removing the petitioner from service. The petitioner also submits that the im­pugned order is void and illegal and it contravenes the provisions of Section 25-F of the Industrial Disputes Act. 3. The learned Advocate-General, who represents the respondents in this pro­ceeding, submits on the other hand rely­ing on the several counter-affidavits that the order is in bona fide exercise of the powers under Rule 149 and is a termina­tion simpliciter and is not by way of punishment. With regard to the Anne-xures III and IV of the petition it Is claimed by the respondents that they are general, secret and confidential adminis­trative instructions and the petitioner should not be allowed to rely on them. The learned counsel also claims privilege under Section 123 of the Indian Evidence Act with regard to these documents. The respondents further submit that Sec­tion 25-F of the Industrial Disputes Act is not attracted in the instant case, as it is not a case of retrenchment. 4. Mr. Ghose, the learned counsel for the petitioner is conscious that he is arguing the case of a temporary railway employee. He also rests his case on the second test laid down in Parshotam Lai Dhingra's case, ( AIR 1958 SC 36 ), namely, that the order visits the petitioner with penal consequences. Indeed, he relies on the decision of the Supreme Court in the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 wherein, inter alia, the following propositions have been held to be established on a conspectus of the cases decided by the Supreme Court. "1. Indeed, he relies on the decision of the Supreme Court in the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 wherein, inter alia, the following propositions have been held to be established on a conspectus of the cases decided by the Supreme Court. "1. The services of a temporary ser­vant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Arti­cle 311 of the Constitution. 2. The circumstances preceding or at­tendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public ser­vant with any evil consequences or casts an aspersion against his character or inte­grity, it must be considered to be one by way of punishment, no matter whe­ther he was a mere probationer or a temporary servant. 4. * * * * * 5 . * * * * * The learned counsel strenuously contends that his case comes within the purview of the second and third propositions men­tioned above. The learned Advocate-General, on the other hand contends em­phatically that the case comes squarely within the terms of the aforementioned proposition No. 1. In order to establish the petitioner's case in this behalf, Mr. Ghose draws our attention to Annexures II, III & IV of his application. In fact, his whole contention rests on the Anne­xures III & IV which are claimed as pri­vileged documents by the learned Advo­cate-General. The claim of privilege in this case assumes a great importance, as, if Annexures III & IV are left out, the petitioner will have no other material to make out his case. 5. The law regarding the claim of pri­vilege is now laid down in a decision of the Supreme Court in the case of State of Punjab v. Sodhi Sukhdev Singh. AIR 1961 SC 493 . The principles laid down therein have -been reiterated in AIR 1964 SC 1658 . The learned Advocate-General claims privilege under Section 123 of the Evidence Act read with Section 162. AIR 1961 SC 493 . The principles laid down therein have -been reiterated in AIR 1964 SC 1658 . The learned Advocate-General claims privilege under Section 123 of the Evidence Act read with Section 162. Sec­tion 123 runs as follows: - "No one shall be permitted to give any evidence derived from unpublished offi­cial records relating to any affairs of State, except with the permission of the officer at the head of the department con­cerned, who shall give or withhold such permission as he thinks fit." The law laid down in AIR 1961 SC 493 has been summarised thus: "It is perfectly true that In holding an enquiry into the validity of the objection under Section 123 the Court cannot per­mit any evidence about the contents of the document. If the document cannot be inspected its contents cannot indirect­ly be proved; but that is not to say that other collateral evidence cannot be pro­duced which may assist the Court in determining the validity of the objection. * * * * * Thus our conclusion is that reading Sec­tions 123 and 162 together the Court can­not hold an enquiry into the possible in­jury to public interest which may result from the disclosure of the document in question. That is a matter for the autho­rity concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its pro­duction, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not. In this enquiry, the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclu­sion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not." It is clear that the two documents are marked as secret and confidential ones by the Railway and these are unpublish­ed official records. The petitioner has not taken any steps to call for the origi­nals of these documents from the respon­dents. The petitioner also does not state how he has come by these confidential documents. The petitioner has not taken any steps to call for the origi­nals of these documents from the respon­dents. The petitioner also does not state how he has come by these confidential documents. The matter has therefore come before this Court in a rather irre­gular manner. Mr. Ghose, however, con­tends that the existence of these docu­ments of their genuineness is not question­ed by the respondents and hence they have waived their claim of privilege and no objection should be entertained with re­gard to it. It is true that in para 14 of the counter-affidavit of respondent No. 3, these documents are described as "gene­ral, secret and confidential administrative instructions and those instructions have no bearing with the instant case". There is no reference to any claim of privilege under Section 123 of the Evidence Act. In a matter such as this, we are not pre­pared to accept the submission of the learned counsel that the respondents have waived their claim of privilege with regard to these documents, particularly in view of the fact that the petitioner has not introduced these documents in ac­cordance with the procedure laid down under the law. We have therefore al­lowed the learned Advocate-General totake his obiection under Section 123 of the Evidence Act. 6. The law in India is now clear that when privilege is claimed with regard to a certain document, it is for the Court to determine at the first instance whether the document relates to the affairs of the State. This decision rests entirely with the Court. How that decision will be arrived at by the Court is however a tick­lish matter. The Court under Section 162 of the Evidence Act will not inspect the document, although it is brought to Court in order to determine whether it relates to the affairs of the State. It will how­ever have power to determine the point by entertaining collateral evidence or evidence aliunde. As the Supreme Court observed- "If the document cannot be Inspected, Its contents cannot indirectly be proved; but that is not to say that other collateral evidence cannot be produced which may assist the Court in determining the vali­dity of objection." Sodhi Sukhdev Singh, AIR 1961 SC 493 (supra). This view is in accord with the decision of the Privy Council in Henry Greer Robinson v. State of South Austra­lia. AIR 1934 PC 254. This view is in accord with the decision of the Privy Council in Henry Greer Robinson v. State of South Austra­lia. AIR 1934 PC 254. The Court is only debarred under Section 162 from inspect­ing the document in order to determine whether it relates to the affairs of the State; but is not prevented from arriving at its decision by entertaining other ap­propriate and relevant evidence. The law in England has undergone a change after the House of Lords decision in Dun­can v. Cammell Laird and Co. Ltd., 1942 AC 624, wherein it has been held that once the Crown makes the claim sup­ported by the affidavit of the appropriate Minister, it is the Judge's duty to reject the evidence even if the party who wants to prove it has it in possession. Once the Minister affirms that production of the evidence is against national interest the Judge cannot question whether the claim of privilege is justified or not. A decision of the House of Lords in Glasgow Corpn. v. Central Land Board. 1956 SC (HL) 1, referring to Duncan's case, 1942 AC 624, observed that the Scotish law has always reserved to the courts the inherent power to inspect the documents and to override the certificate of the head of the depart­ment that production would be against the public interest. It has been held that impartial administration of justice in the courts of law is also a matter of public Interest, and that indeed it is of a higher order. The practice in the United States Is in accord with the principles laid down In the Privy Council case AIR 1934 PC 254 (supra). Even after the passing of the Crown Proceeding Act in England in 1947, the powers in England are much nar­rower than those conferred under Section 162 of the Evidence Act. Sodhi Sukh­dev, AIR 1961 SC 493 (supra). 7. The position in law therefore is that the Court without inspecting the documents will determine the validity of objection under Section 123, particularly with regard to the character of the docu­ment whether it relates to the affairs of the State. So far as this case is concern­ed, the position is however rather ano­malous as the documents are already pro­duced in court and the claim of privilege has been lodged afterwards, after service of the Rule. There are therefore two courses open to the Court. So far as this case is concern­ed, the position is however rather ano­malous as the documents are already pro­duced in court and the claim of privilege has been lodged afterwards, after service of the Rule. There are therefore two courses open to the Court. Firstly the Court may adopt a judicial blindness to these documents and proceed in accord­ance with lew. For that however, there is no application by the petitioner to the Court to direct the respondents to pro­duce the originals of these documents. There is therefore no question of taking collateral evidence in order to determine the validity of the objection. On this short ground alone, the documents in question can be ruled out of considera­tion in this proceeding. 8. The statute has clearly proscribed Inspection of documents relating to the affairs of the State. The rule of conduct which is prescribed by this law is that no person should pry into confidences of Governmental affairs. But the conduct of the petitioner clearly runs counter to the rule for conduct laid down by the sta­tute. It is significant, as Cohen has neatly observed in his "Ethical Systems" - "Words are frail packages for legisla­tive hopes. The voyage to the realm of law observance is long and dangerous." It is a question of serious import whether a person should be allowed to take ad­vantage of his illegitimate action in secur­ing by any means whatsoever secret and confidential documents of the Governmerit. It is not possible to show any leniency in a matter of this description and we cannot too strongly condemn this unlawful practice and would be loath to give the erring party any advantage of his wrong action. It should be a warn­ing to those who want to thrive from such unethical disclosures which are clearly opposed to the provisions of law. Where it is possible, as in this case, the Court will, without any hesitation, help law coincide with morality. We will be, therefore, justified in not looking into these two documents in assessing the submission of the learned counsel. 9. Mr. Ghose next contends that Sec­tion 123 is not attracted in this case as the documents do not relate to any affairs of the State. This argument will be in­admissible in view of our conclusion that the petitioner has not properly applied to this Court for production of the origi­nals by the appropriate authority. 9. Mr. Ghose next contends that Sec­tion 123 is not attracted in this case as the documents do not relate to any affairs of the State. This argument will be in­admissible in view of our conclusion that the petitioner has not properly applied to this Court for production of the origi­nals by the appropriate authority. But even excusing this absence of preliminaiv and having examined, out of hand, the contents of the two documents, we are satisfied that they relate to the affairs of the State. The concept of State has undergone a tremendous change. Besides, the State is a dynamic organisation. A idemocratic State, as is ours, being the 'creature of a written Constitution, holis but the picture of a welfare State. The affairs in the welfare State of today can-pot be compared with those which were obtaining prior to independence, and even during that period, as days rolled on. State activities were expanding. It is no longer the regal functions alone Which the State exercises. Its activities permeate through various fields and as­pects of the body politic. As observed in the majority judgment in Sukhdev Singh's case, AIR 1961 SC 493 (supra):- "The inevitable consequence of the change in the conception of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent activities which were formerly treated as purely commercial and documents in relation to such com­mercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State." We therefore see no force in the conten­tion of the learned counsel that these documents do not relate to affairs of the State. They are administrative instruc­tions and guidance notes secretly given to various authorities at different levels and the subordinate officers in the depart­ments are entitled to such advice and in­structions from time to time in dealing with matters involving law and_ order and discipline in the entire organisation. No objection can be taken to such instruc­tions and guidance being given and no one can be allowed to make capital out of such confidential instructions which are not intended for outsiders or for pub­lication. No objection can be taken to such instruc­tions and guidance being given and no one can be allowed to make capital out of such confidential instructions which are not intended for outsiders or for pub­lication. As observed by the House of Lords in Duncan's case, 1942 AC 624 (supra) - "Practice of keeping a class of docu­ments secret is necessary for the proper functioning of the public service." Hence assuming for the moment that we have collateral evidence to determine the nature of the two documents, which how­ever in this case have already become public property, we are clearly of opinion that they are unpublished official records relating to affairs of the State and in ab­sence of a proper application through Court, enabling the appropriate authority itself to consider the question of public injury if these are disclosed, make these documents non-existent for judicial con­sideration in the present proceeding. We must not however be understood to mean that the contents of these documents even if proved and permitted to be disclosed would establish the petitioner's pleas in this case. 10. If these two documents go out of consideration, there is no case made out by the petitioner to bring his case within the second test laid down in Dhingra's case ( AIR 1958 SC 36 ), nor in the second and third propositions of Sukhdev's case. AIR 1961 SC 493 . The order is in full conformity with Rule 149 and it does not cast any slur or stigma on the petitioner. The order cannot be said to be by way of punishment, as the petitioner, being a temporary employee, had no lien to the post. The termination is thus in exercise of the power conferred under Rule 149 of the Railway Establishment Code and the order is not open to any valid objection under the law. 11. Mr. Ghose next contends that the order being in violation of Section 25-F of the Industrial Disputes Act, is void and illegal and as such should be quashed in our writ jurisdiction. In this context, he draws our attention to the amended Rule 149 by adding sub-rule (6) therein which runs as follows:- "6. Notwithstanding anything contain­ed in clauses (1). Mr. Ghose next contends that the order being in violation of Section 25-F of the Industrial Disputes Act, is void and illegal and as such should be quashed in our writ jurisdiction. In this context, he draws our attention to the amended Rule 149 by adding sub-rule (6) therein which runs as follows:- "6. Notwithstanding anything contain­ed in clauses (1). (2) and (4) of this Rule, if a Railway servant or apprentice is one to whom the provisions of the Industrial Disputes Act 1947 apply, he shall be en­titled to notice or wages in lieu thereof in accordance with the provisions of that Act." He therefore contends that since the ter­mination in question is retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. the provisions of Section 25-F thereof are clearly attract­ed. In this case. Mr. Ghose relied upon the State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 . He submits that the Supreme Court has approved of the decision of the Bombay High Court holding that the orders which dp not comply with the mandatory provisions of Section 25-F, were invalid and inopera­tive and did not interfere with the writs of mandamus issued by that Court. The learned counsel has failed to take note of the concession made by the appellants that the case was one of retrenchment. The chief question that was canvassed in that decision is one centering round the meaning of industry under Section 2(j) of the Industrial Disputes Act. In the instant case, the respondents do not ad­mit that it is a case of retrenchment with­in the meaning of Section 2(oo) of the Act. The Supreme Court has interpret­ed the definition of retrenchment in Sec­tion 2(oo) in Hard Prosad Shibsbankar Shukla v. A. D. Divikar. AIR 1957 SC 121 and has held that the ordinary mean­ing of retrenchment fulfils the require­ments of Section 2(bo), that is to say when a portion of the staff or the labour force is discharged as surplus. The present termination of the service of the petitioner is therefore not a case of re­trenchment within the meaning of Sec­tion 2(oo) and as such he cannot invoke the provisions of Section 25-F of the Act, which is mentioned in sub-rule (6) of Rule 149, sought to be invoked in his favour. The objection on this ground is therefore without any substance. 12. The objection on this ground is therefore without any substance. 12. In the result, the application fails and is dismissed, but we make no order as to costs. M. C. PATllAK, J.: 13. I agree. Application dismissed.