STATE OF WEST BENGAL v. Tulsiram Agarwalla — 1980 DIGILAW 300 (CAL)

JUDGMENT (1.) THIS Rule is directed against Order No. 170 dated july 24, 1976, made by Shri R. B. Goswami, learned Subordinate Judge at purulia. By the impugned order the. learned Subordinate Judge disallowed the claim of privilege put forward by the State of West Bengal in respect of two letters being letters Nos. 815 DEB and 816/deb dated August 30, 1965 addressed by the Superintendent of Police, Enforcement Branch, Purulia, to the deputy Inspector General of Police, enforcement Branch, Calcutta. privilege was claimed on the strength of the provisions of section 123 read with section 162 of the Indian Evidence Act. (2.) THE facts relevant for the purpose of the present Rule are as follows tulsiram Agarwalla, the opposite party No. 1, filed a suit against the State of West Bengal, the present petitioner, and the other opposite parties in the court of the Subordinate Judge at purulia claiming damages to the extent of Rs 1,00,000/- on the allegation that his detention under the Defence of india Rules was the result of a conspiracy among the opposite parties Nos., 2,3 and 4 and that those opposite parties were actuated by malice in detaining the Opposite Party No. 1. The following is the text of the said order of detention : "whereas the Governor is satisfied that with a view to preventing shri Tulsi Agarwal, son of Late bansidhar Agarwal of P. S. Purulia town, District Purulia, from acting in any manner prejudicial to the maintenance of supplies essential to the life of the community, it is necessary" to make an order directing that he be detained; now, therefore, the Governor in exercise of the power conferred by rule 30 of the Defence of India rules, 1962, is pleased hereby to direct that the said person be detained and be kept in custody in the Midnapore Central Jail during the period of such detention. " In the said suit being M. S. No. ' 4 of 1967 the opposite party No. 1 who was the plaintiff filed a petition praying for an order requiring the defendants therein to produce the two letters referred to above. " In the said suit being M. S. No. ' 4 of 1967 the opposite party No. 1 who was the plaintiff filed a petition praying for an order requiring the defendants therein to produce the two letters referred to above. As already stated, the State of West Bengal claimed, privilege in respect of those 2 documents and in support of that claim of theirs two affidavits were filed, the first of such affidavits was sworn by Shri. Mohini Mohan Kushari, the then Secretary, Home Department, Government of west Bengal, and the other was sworn by Shri Siddhartha - Sarkar Ray, the then Chief Minister of West Bengal. By an order dated April 3, 1973, Shri G.R. Bhattacharya, the then learned Subordinate Judge, Purulia, directed that the, said Chief Minister was to be summoned in the form of a request to attend the Court with a view to assisting the court in arriving at a decision on the claim of privilege by submitting himself to the examination by the Court. This order was made by the learned Subordinate Judge as, in his opinion, the examination of the' chief Minister was necessary for the purpose of determining whether the documents in question related to affairs of state. Even though, according to the petitioner, the learned Subordinate Judge acted illegally and with material irregularity in directing the then Chief Minister Of West Bengal to attend the Court for his examination by the Court, an application was filed on behalf of the present petitioner before the learned Subordinate Judge praying for issuing a commission to examine the Chief Minister in calcutta for reasons stated therein. On April 9, 1973, another application was filed on behalf of the State before the learned subordinate Judge praying for re-consideration and/or review of the said order, dated april 3,1973, in the light of the submissions made in that application It was also prayed that if the prayer for review and/or re-consideration were not allowed a date in the first week of May, 1973 might be fixed for examination of the then Chief Minister. The learned Subordinate Judge was of the view that as he had already held that the affidavits were not sufficient for the purpose of deciding the claim of privilege, it was no longer open to him to consider the submissions made in the said application dated April 9, 1973. The learned Subordinate Judge was of the view that as he had already held that the affidavits were not sufficient for the purpose of deciding the claim of privilege, it was no longer open to him to consider the submissions made in the said application dated April 9, 1973. He, accordingly, required the then Chief Minister to appear in Court either on May 2 or May 3, 1973, in terms of the order made by him on April 3,1973, and wanted that the summons in the form of request be communicated to the Chief minister through the learned Advocate appearing for the State. This was done by the order dated April 12, 1973. On being, aggrieved by the aforesaid orders dated April 3, and April 12, 1973, the present petitioner moved this Court in revision and obtained a Rule being C.R. Case No. 1338 of 1973. While making the Rule absolute and setting aside the impugned orders referred to above this Court gave the following directions : "the learned Subordinate Judge wilt consider the affidavit sworn in by mr. Kushari. If he requires further clarification he may have the same through him by further affidavit. In case the learned Judge still wants to have an affidavit affirmed by the Chief minister, the Court may direct for the same In case even after taking the above steps the Court thinks that the impugned documents require personal inspection it may inspect the same. After exhausting the courses indicated above it may very well be that the trial Court may no longer deem it necessary to cross-examine the deponent However, if the trial Court still considers the presence of any of the deponents for cross-examination steps in accordance with law as provided under Or. 19 R. 2 of the Code of Civil procedure may be taken. " (3.) THEREAFTER another affidavit which was affirmed on May 12, 1976 by Shri B. Mukhopadhay, the then Secretary. Home department, Government of West Bengal, was filed on behalf of the State of West Bengal claiming privilege in respect of said two documents. 19 R. 2 of the Code of Civil procedure may be taken. " (3.) THEREAFTER another affidavit which was affirmed on May 12, 1976 by Shri B. Mukhopadhay, the then Secretary. Home department, Government of West Bengal, was filed on behalf of the State of West Bengal claiming privilege in respect of said two documents. The matter was thereafter heard by Shri R.B. Goswami, the then subordinate Judge at Purulia who by his order No. 170 dated July 24, 1976, the order impugned herein, disallowed the claim of privilege and directed the defendant No. 1, the State of West Bengal, to disclose the grounds of detention of the plaintiff or in other words the specific instances of commission made by him as contained in the letters in question. The learned Subordinate Judge fixed August 14,1976, for the purpose. On being aggrieved by the said order dated July 24, 1976, the present petitioner, as already stated, moved the present application. (4.) MR. Arun Prakash Chatterjee, learned Senior Standing Counsel, appearing on behalf of the State of West Bengal, contended that the order impugned was bad inasmuch as the learned trial Judge proceeded on the basis that the said two letters being letters Nos. 815/deb and 816/deb contained the grounds for detention of the opposite party No. 1, Tulsiram Agarwalla, who was the plaintiff in the suit referred to above. Mr. Chatterjee in support of his contention placed reliance on the decision in State of Punjab vs. Sodhi Sukhdev Singh a. I. R. 1961 SC. 493 and the State of uttar Pradesh vs. Raj Narain, A.I.R. 1975 S.C. 865. Strictly speaking, the question that arises for consideration is not whether the letters in question contained grounds for detention. When the defendant petitioner the State of West Bengal, set up a claim of privilege in respect of those two letters, the trial Court is to ascertain whether having regard to the nature of the documents, the State is entitled to withhold production of those documents. In this regard the provisions of sections 123 and 162 of the Evidence Act are very material. Accordingly, we set out the provisions of sections 123 and 162 hereunder: "123. In this regard the provisions of sections 123 and 162 of the Evidence Act are very material. Accordingly, we set out the provisions of sections 123 and 162 hereunder: "123. 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. "162. A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it thinks fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. " The principle underlying the rule contained in said section 123 is founded on the general rule of public policy. General public interest must be considered to be of far greater importance than that of an individual suitor. The question whether the disclosure of a particular document in respect whereof privilege is claimed would cause injury to public interest has to be determined by the head of the Department concerned or the Minister-in-Charge of that department and not by the Court, for, if the court were to determine the question the object with which the rule in section 123 was introduced world be frustrated. If in open Court the contents of the documents in question are made known, such a course would do mischief which the provisions of section 123 were intended to guard against. The provisions of section 123 make a clear departure from one of the general principles of the law of evidence. According to that general principle both the parties to a litigation are to produce all relevant and material documents in their possession or power which are required for proving their respective cases. In this regard the question of onus of proof assumes great importance. If a party on whom the onus lies to prove a particular fact fails to bring in such evidence as is within his possession or power, the Court would be justified in drawing adverse inference. In this regard the question of onus of proof assumes great importance. If a party on whom the onus lies to prove a particular fact fails to bring in such evidence as is within his possession or power, the Court would be justified in drawing adverse inference. Under section 114 of the Evidence Act against the interest of such a person as withholds the evidence. But the provisions of section 123 provide an exception to the general principle referred to above. The question of administration of justice is of great importance in the matter of conduct of the affairs of the state but even that is to be subordinated to the question of general welfare of the state. That is why when the disclosure of any document would cause injury to the interest of the State or in other words, of the community as a whole, the State would be justified in withholding such a document. When there arises the question whether the State can legitimately claim privilege in respect of any document, the Court is to apply the test laid down in section 123 of the said Act. The evidence in respect whereof such privilege is claimed muse be such as is derived from unpublished official records relating to any affair of State. In the case now before us there is no dispute that the evidence in question is derived from unpublished official records. What remained for determination by the Court below was whether such records related to any affairs of State. In this regard we consider it both worthwhile and profitable to quote paragraph 15 from the decision in state Of Punjab vs. Sodhi Sukhdev singh (supra)"if under Sec. 123 a dispute arises as to whether the evidence in question is derived from unpublished official records that can be easily resolved; but what presents considerable difficulty is a dispute as; to whether the evidence in question relates to any affairs of State. What; are the affairs of State under Sec, 123 ?. In the latter half of the Nineteenth Century affairs of State may have had a comparatively narrow concept. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighborly relations. In the latter half of the Nineteenth Century affairs of State may have had a comparatively narrow concept. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighborly relations. Thus, if the contents, of the documents were such, that their disclosure would affect either the national defence or public security or good neighborly relations they could claim the character of a document relating to affairs of State. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candor of expression of opinion in the determination and execution of public policies, In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the course of determination of the said 'questions of policies. In the efficient administration of public affairs government may reasonably treat such a class of documents as confidential and urge that its disclosure should be prevented on the ground of possible injury to public interest. In other words, if the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or class of documents may also claim the status of documents relating to public affairs. ". (5.) FURTHER, it is held in that case that the concept of governmental functions and their extent were limited when the Evidence Act was passed and the concept of the words "affairs of state" was accordingly correspondingly limited and that by the passage of time there had been a change in the notion about governmental functions and duties and the consequence of the change in the concept of the State is that the State in pursuit of its welfare activities undertakes such activities as were previously considered as purely commercial and documents in relation to such commercial activities undertaken by the State in pursuit of public policies of social welfare can also claim the privilege of documents relating to affairs of State. Thus, even though previously the affairs' of State would have meant matters of political or administrative character such as, for instance, national defence, public peace and security and good neighborly relations, the present connotation of the expression "affairs of State" would comprehend commercial activities undertaken in pursuit of the State's welfare activities and the privilege would therefore be extended to documents in relation to such commercial activities as are undertaken by the State in pursuit of public policies of social welfare. Rule 30 of the Defence of India Rules, 1962 proceeds on this wider connotation of the expression "affairs of State" Under that rule the Central Govt. or the state Government may make an order directing a person to be detained if it is satisfied with respect to that person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the, public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary to make such an order. (6.) IT is further held in the case of Sodhi Sukhdev Singh (supra) that the first clause of section 162 requires that a witness summoned of produce a document must bring it to the Court and then raise an objection against either its production or its admissibility, and that it also authorizes the Court and indeed, makes it obligatory for the Court to decide the validity of either or both of the said objections. It further lays down that the objections to the production or admissibility of evidence as specified in section 162 relate to all claims of privilege provided by the relevant sections of Chapter IX of Part iii of the Evidence Act, Section 124 of the Act provides that no public officer shall be compelled to disclose communication made to him in official confidence when he considers that public interest would suffer by its disclosure. In a case where privilege is claimed under section 124 the Court won first determine whether the communication in. question has been made in official confidence. If the Court holds it to be so, it is then for the Officer concerned to decide whether the document should be disclosed or not. In a case where privilege is claimed under section 124 the Court won first determine whether the communication in. question has been made in official confidence. If the Court holds it to be so, it is then for the Officer concerned to decide whether the document should be disclosed or not. If the Court finds that the communication in question had not been made in official confidence the court may compel the production of such document. As already stated, two affidavits were sworn on behalf of State of West bengal. One of the affidavits was sworn by Shri Mohini Mohan Kushari, the then Home Secretary, Government of west Bengal, and the same was filed in the Court below on December 1, 1972, and another affidavit was sworn by shri Siddhartha Sarkar Ray, the then chief Minister of West Bengal arid the same was filed in the Court below on march 24, 1973. As already pointed out, the matter once came up before this court and by an order dated March 24, 1975 K. J. Sengupta and R. K. Sharma JJ. directed that the matter should be re-considered after giving an opportunity to the State Government of filing further affidavits. Thereafter another affidavit which was affirmed on may 12 1976 by Shri, B. Mukhopadhay who at that point of time was the Home Secretary to the Government of west Bengal and the Officer and head of the said department was filed In the said affidavit affirmed by Shri B. Mukhopadhay, it was stated, inter alia, that he as the head of the department concerned applied his mind to each of the documents referred to above carefully, read the contents thereof and considered whether the claim of privilege under section 123 of the Evidence Act against production of the said two documents should be made or not. It is further stated that after scrutinizing the said two documents and after a careful consideration of the same Shri B. Mukhopadhay was of the considered view that the said two documents contained evidence derived from unpublished official records relating to affairs of State and each of those two documents was a secret document containing confidential communication between the senior officials of the Police Department of the State of West Bengal. It was further averred that the said two documents were secret documents of political and administrative character compiled for reasons of State Shri Mukhopadhay was further of the view that production of the said documents would cause disclosure of the secrets of the affairs of State which would go against public interest, and such disclosure would affect public security and harm and injure public interest. It is further stated therein that the disclosure of the said two documents would materially affect the freedom and candor of opinion of the officials of the State Government in the determination, execution and in the discharge of their official duties. The documents in question are further said to contain opinion expressed and reports made and the gist of official opinion reached in the course of the determination of the question of the policy of the state Government. It is further asserted that the production of the two documents would expose to public view, the method and nature of working of the State security, and intelligence system which would be prejudicial to the security and interest of the state. Further the disclosure of those documents, it is stated, would cause danger to public good inasmuch as in compiling the secret reports made by the Superintendent of Police, District Enforcement Branch, to the Deputy Inspector General of Police, enforcement Branch, information was collected from a number of persons and they should not be exposed. (7.) FROM a perusal of the impugned order dated July 24, 1976, it would be clear that the directions given by his Court in the said earlier Rule wherein the propriety of the orders dated April 3 and April 12, 1973, was challenged, were not followed by the trial Court while making the said order dated july 24/ 1976. In that view of the matter the order impugned in the present Rule ought to be set aside. (8.) THE learned trial Judge in passing the order impugned herein did not, as already stated, follow the directions given by this Court and was swayed away by the fact that the two letters in question contained the ground of detention of the plaintiff. The courses, which the learned judge was to adopt in terms of this Court's order disposing of the said earlier Rule were not followed. The courses, which the learned judge was to adopt in terms of this Court's order disposing of the said earlier Rule were not followed. The question whether the grounds of detention were or were not contained in the two letters in question is not of importance when the issue before the court is whether the documents in question. contained matters which relate to affairs of state. The learned Judge was entirely wrong in observing to the following effect : "it may be that the letters contained such things which are privileged, but surely the grounds for detention of the plaintiff which the letters, admittedly contained, are not privileged. " The learned Judge does not dispute the fact that the letters contained such matters as are privileged but even then he wants such letters to be disclosed as they contain grounds for detention of the plaintiff. Thus the learned Judge acted illegally and with material irregularity in the exercise of his jurisdiction. Further there are other grounds on which we consider it proper that the said order dated July 24, 1976 of the trial Court should also be set aside. We shall be presently referring to those other grounds. According to the decision in State of Punjab vs. Sodhi Sukhdev Singh (supra) as already pointed out, there may be a class of documents which would claim privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed they would materially affect the freedom and candor of expression of opinion in the determination" and execution of public policies. This class of documents includes notes and minutes made by the respective Officer on the relevant files, opinion expressed, or reports made and gist of official decisions reached in the course of determination of the said questions of policies. Such confidential communication should not be allowed to be disclosed on the ground of possible injury to public interest. It will appear from the affidavit affirmed by Shri B. Mukhopadhay referred to above that the documents in question contained opinion expressed reports made and the gist of official opinion reached in the course of determination of the policy of the State Government. It will appear from the affidavit affirmed by Shri B. Mukhopadhay referred to above that the documents in question contained opinion expressed reports made and the gist of official opinion reached in the course of determination of the policy of the State Government. It is further asserted in that affidavit that the production of those two documents would expose to public view the method and nature of the working of the State security and intelligence system and the disclosure of those documents would therefore be prejudicial to the security and interest of the State. The further assertion is that the disclosure of those documents would cause danger to public good inasmuch as in compiling a secret report made by the Superintendent of Police, district Enforcement Branch to the Deputy inspector General of Police Enforcement branch, information was collected from a number of persons and they should not be exposed. Thus the nature of the prejudice that will be caused to public interest by, disclosure of the documents was indicated clearly in the affidavit. Having regard to the decision in the State of Punjab vs. Sodhi Sukhdev Singh (supra) and having regard to the averments made in the said affidavit affirmed by Shri B. Mukhopadhay it cannot but be said that the two documents in question relate to affairs of state within the meaning to section 123 of the Evidence Act. It is further laid down in the decision referred to above that during the holding of an enquiry into the validity of the objection under section 124 of the evidence Act the court cannot permit any evidence about the contents of the documents and that if the documents cannot be inspected its contents cannot directly be proved but it cannot be said that other collateral evidence cannot be produced, which may assist the Court in determining the validity of the objection, under section 123 of the Evidence Act. In view of what is stated above, the Court below should have in the present Case held that the documents relate to affairs of State under section 123 of the Evidence Act. In view of what is stated above, the Court below should have in the present Case held that the documents relate to affairs of State under section 123 of the Evidence Act. After it is found that the documents in question relate to affairs of State the Court cannot decide the question whether possible injury to public interest would be caused as a result, of disclosure of the documents in question, the authority concerned, that is, the head of the department or the Minister-in-Charge of the department has to take a decision in that regard. In the present case, the decision of the head of the department is that the disclosure of the contents of the documents in question would cause injury to public interest. (9.) IN the case of Stats of Punjab Vs. S. Sukhdev Singh (supra) the majority opinion was that in view of the provision of section 162 of the Evidence Act, under no circumstances the Court can inspect the documents in question but in the later case of Amar Chahd Butaia Vs. Union of India air 1964 S. C. 1658 by an unanimous decision of the Constitutional Bench the Court recognized, the power of inspection of the court of the documents in respect whereof privilege is claimed. This view was also affirmed in the case of the State of Uttar pradesh Vs. Rajnarain (supra). In the present case, the two documents in question were brought before us in a sealed cover and after inspection by us they were made over to the learned Standing Counsel who produced them for inspection by this court. After having inspected the documents we are clearly and definitely of opinion that the contents of those documents relate to affairs of State and that the Home secretary or in other words, the head of the department concerned, was competent to take the view that disclosure of those documents would cause injury to public interest. That being so the Court below should have allowed the claim of privilege. (10.) S. Tebriwal, the learned Advocate appearing on behalf of the opposite party no. 1,contended that the confidential nature of the documents in question should be deemed to have lapsed on the ground that publication after so long a time would no longer prejudice public interest. In support of this contention of his Mr. (10.) S. Tebriwal, the learned Advocate appearing on behalf of the opposite party no. 1,contended that the confidential nature of the documents in question should be deemed to have lapsed on the ground that publication after so long a time would no longer prejudice public interest. In support of this contention of his Mr. Tebriwal relied on Attorney General v. Jonathan Cape Ltd. 1975 (3) All England law Reports 484. There in that case a person who was a Cabinet minister from 1964 to 1970 maintained diaries which contained details of discussions held in cabinet and in Cabinet Committee and disclosed the differences between Cabinet Ministers on particular issues and also details of communication made between that Minister and senior civil servants together with criticisms of certain other servants, those diaries were kept with the expressed intention of publication at some future date. The Minister's colleagues knew that, such a diary was being kept and for the purpose aforesaid. After the death of the Minister a firm of book publisher proposed to publish those diaries. At that time the existing Cabinet contained a number of individuals who had been the Cabinet colleagues of the said Minister between 1964 and 1970. When a newspaper, with the consent of the executors of the said minister, published extracts from what the book publisher intended to be the first volume of the said diaries, the Attorney-General brought two actions, one against the book publisher and the other against the newspaper, asking for permanent injunction restraining them from publishing the diaries or extracts there from. It was contended that the Courts had the power to restrain publication of Cabinet materials when it could be shown that such publication would be a breach of confidence and that the publication would be against the public interest inasmuch as it would prejudice the doctrine of collective Cabinet responsibility. It was Held in that case that in all cases there would come a time when the confidential character of the material and the duty of the Court to restrain publication would lapse on the ground that publication would no longer prejudice the doctrine of maintainability of joint Cabinet responsibility. The case before us is distinguishable on facts from the English case referred to above. Further, in view of specific provisions contained in the Evidence act, we consider it not proper to place reliance on English decisions in the matter. The case before us is distinguishable on facts from the English case referred to above. Further, in view of specific provisions contained in the Evidence act, we consider it not proper to place reliance on English decisions in the matter. From the inspection of the documents in question which we did have, we are clearly of, opinion that even after the lapse of a period the disclosure of those documents would materially affect the freedom and candor of opinion of the- officials of the state Government in the determination, execution and discharge of their official duties. Further the disclosure of those documents would expose to public view the method and nature of the working of the state security and intelligence system. Accordingly their disclosure even after the lapse of a few years would be prejudicial to the security and interest of the State. Be it further noted that the necessity for protection from exposure of those persons from whom information was collected for the purpose of compiling the report of the superintendent of Police referred to above does not cease to be there even after the lapse of a few years. On this ground also such disclosure should not be permitted to be made and that in the interest of the State which is of paramount importance. In the circumstances we find no substance in the contention of Mr. Tebriwal. Mr. Tebriwal further contended that in case the privilege issue was decided against the plaintiff/opposite party No. 1 he would not be in a position to invoke the aid of section 114 of the Indian Evidence act. What is of importance is not whether the plaintiff can avail himself of the provision of section 114 of the Evidence Act in case the claim of privilege succeeds, the question to be determined is whether the claim of privilege, in the circumstances of a particular case, should be allowed or not. It is immaterial that in the event a claim of privilege succeeds the plaintiff would be prevented from requiring the Court to draw adverse inference under section 114 of the evidence Act. (11.) MR. Tebriwal further argued that the affidavits filed on behalf of the defendant/petitioner did not disclose the nature of the documents in question. It is immaterial that in the event a claim of privilege succeeds the plaintiff would be prevented from requiring the Court to draw adverse inference under section 114 of the evidence Act. (11.) MR. Tebriwal further argued that the affidavits filed on behalf of the defendant/petitioner did not disclose the nature of the documents in question. We have already referred to the contents of the affidavit which was affirmed by Shri B. Mukhopadhay who was the Home Secretary at the time when the affidavit was sworn. It will appear from the foregoing discussions that those contents clearly indicate the nature of the documents in question. (12.) MR. Tebriwal further contended on the strength of the decision in Niranjan dass Sehgal vs. State of, Punjab, A.I.R. 1968 Punj. 255 that where matters relating to the conduct of the plaintiff are in issue the state cannot claim privilege and refuse to disclose documents which contain such matters. In the case the question for determination was whether in the circumstances of that case a public servant should have been given seniority 11 years later and whether he should have been retained in government service when he in the past had been prosecuted on different occasions for offences alleged to have been committed by him under section 302 IPC and other offences when regarding him departmental enquiries had been instituted on grave charges including that of corruption and when he committed serious misconduct while in service including defence of the order of the Government withholding permission enabling him to proceed to U. K. In such circumstances, it was held that the state could not have claimed privilege in respect of departmental papers, for, they were not unpublished documents relating to affairs of State and that probity of the conduct of a public servant was the matter in issue. Thus, the case of Niranjan Das sehgal (supra) could be of no assistance to Mr. Tebriwal inasmuch as the documents in respect of which the privilege was claimed were departmental enquiry papers which were not unpublished documents and which contained matters relating to the conduct of the public servant concerned and were as such not matters secret and relating to affairs of State. Tebriwal inasmuch as the documents in respect of which the privilege was claimed were departmental enquiry papers which were not unpublished documents and which contained matters relating to the conduct of the public servant concerned and were as such not matters secret and relating to affairs of State. In view of the discussions and findings aforesaid we cannot but hold that the Court below in making the impugned order acted illegally and with material irregularity in exercise of its jurisdiction and that the order should accordingly be set aside. (13.) THE Rule is made absolute and the impugned order is set aside. The petitioner, the State of West Bengal, is found entitled to claim privilege in respect of the two letters referred to above. There will be no order for costs. Rule made absolute.