S.K. Kapur, J.
1. Plaintiff Raj Kumar Gujral filed a suit for a declaration to the effect that the order of termination of his services dated 1-2-1964 passed by Shri H.C. Joshi, Deputy Director, Animal Husbandry, Delhi, was void and illegal. The suit was contested by the Union of India, defendant, inter alia on the ground that the plaintiff was not a permanent employee but merely a temporary one and his services had been vaidly terminated under Rule 5 of the Central Civil Service (Temporary Services) Rules 1949, It appears that the plaintiff wanted to summon the Development Commissioner, Shri L.S. Titus, inter alia with the following documents:
'Order of termination of Dr. Raj Kumar passed by the Deputy Director, Animal Husbandry, Khyber Pass, Delhi, dated 31-1-1964 with subject 'Dr. Raj Kumar Gujral, Extension Officer (A. H) Shahdra Report or.'
2. When summons was issued the defendant claimed privilege and objected to the production of the said document. Shri L.S. Titus, Development Commissioner. Delhi Administration, filed an affidavit inter alia stating--
'I have carefully read and considered the said document and have come to the conclusion that the said document is an unpublished official record relating to the affairs of the 'State and that its disclosure will cause injury to public interest for the following reasons:
The above document is privileged document because the freedom and candour of expression of opinion in the determination and execution of public policy would be materially affected by its disclosure and I consider that this document should be kept secret for ensuring the proper functioning of the public service.'
3. It may be pointed out that in the application summoning this document the plain-tiff described it as 'order of termination' and in the affidavit filed by Shri L.S. Titus there was no allegation that the document had been wrongly described as 'order of termination' and, in fact, it was not so. The document was, however, produced in Court in a sealed cover pending decision on the claim of privilege by the Union of India. It appears that the plaintiff produced a document alleging that the same was a true copy of the order dated 31-1-1964. He also filed an affidavit stating that the original order was shown to him by Shri H.C. Joshi who also allowed him to take a copy thereof. Shri Joshi filed an affidavit denving that the plaintiff had ever been allowed access to the document. The trial Court felt that since the Union of India had not denied that the document filed by the plaintiff was a true copy, they should have another opportunity in this behalf. It, therefore, directed the Union of India to file an affidavit admitting or denying the correctness of the document. No such affidavit was, however, filed. The trial Court disallowed the claim of privilege on the grounds that--
(1) copy of the order having been filed it was no longer a secret document:
(2) the document could not be said to relate to the affairs of State; and
(3) the defendant in claiming privilege in respect of the order had acted merely to avoid an inconvenient disclosure of an important piece of evidence which might be used against the defendant.
4. Mr. Shanker, the learned counsel for the petitioner, has taken a strong exception to the procedure adopted by the trial Court in calling upon the Union of India to admit or deny the copy of the document filed by the plaintiff without deciding the claim of privilege. I agree with Mr. Shanker that if the document was privileged the trial Court could not indirectly, by calling upon the Union of India to admit or deny the same, have its contents proved. That may be so, but there was nothing in the way of the Union of India to at least say that that was not a true copy of the document and the original was something different. This the Union of India choose not to do. In this circumstances the trial Court may have been justified in coming to the conclusion that the document was not confidential I would, however, prefer to rest my decision on the ground that I am not satisfied that the document relate to the affairs of State. In State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 it was held that while deciding a claim of privilege under Section 123 of the Indian Evidence Act though the Court cannot hold an enquiry into the possible in-jury to public interest which which may result from the disclosure of the document but it is competent to the Court to hold a preliminary enquiry and determine the validity of the objections as 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. Gajendragadkar, J. while dealing with meaning of the words 'affairs of State', felt difficulty, in the absence of any definition, in putting the said expression into a straight jacket of a definition judicially evolved and held that the question as to whether any particular document or a class of documents answers the description must be determined in each case on the relevant facts and circumstances adduced before the Court. Subba Rao, J. (as he then was), laid down certain working rules of guidance for the Courts in the matter of deciding the question of privilege in regard to unpublished documents pertaining to matters of State in the following words :
'(a) 'records relating to affairs of State' mean documents of State whose production would endanger the public interest; (b) documents pertaining to public security, defence and foreign relations are documents relating to affairs of State; (c) unpublished documents relating to trading, commercial or contractual activities of the State are not, ordinarily, to be considered as documents relating to affairs of State; but in special circumstances they may partake of that character: (d) in cases of documents mentioned in (c) supra, it is a question of fact in each case whether they relate to affairs of State or not in the sense that if they are disclosed public interest would suffer.'
The learned counsel for the petitioner has placed a strong reliance on the following observations of Gajendragadkar J:
'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 candour 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 the determination of the said questions of policy. In the efficient administration of public affair* 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 such class of documents may also claim the status of documents relating to public affairs.'
In all cases where privilege is claimed it is always a matter of extreme difficulty for the Courts in arriving at a clear decision. The difficulty is added because the Courts are not entitled to inspect the document and have to rest their decision on an enquiry based on other circumstances. The decision always must he taken in the background of two factors--
(1) In such cases the Stale would always be tempted to claim privilege if the disclosure of a document is likely to provide material evidence against it; and
(2) When a subject is fighting the Government, the scales are always weighed against him and the Government should be loath to throw against him more weight in the scales by refusing disclosure of documents which are relevant to the issues in the suit.
It is no doubt true that Section 123 is a recognition of the principle that interest of all subjects of the Stale is superior to the interest of any one of them, but, at the same time, the State must show that the claim of privilege strictly falls within the four corners of the provisions of law which tends to deprive the subject of evidence on matters directly in issue. Mr. Shanker, the learned counsel for the petitioner, sought to substantiate his claim for privilege on the ground that maintenance of secrecy was necessary for proper functioning of the public service and such secrecy has been held sacred by the Supreme Court in Sodhi Sukhdev Singh's case, AIR 1961 SC 493. There can be no dispute about the principle as such. What Mr. Shanker says is this: When deciding that services of a particular employee should be terminated or not officers may have to express their opinions frankly and fairly about such employee and unless such officers are assured that their views would be kept secret, there is bound to arise a danger to the proper functioning of the public service He also says that the plaintiff admitted in the plaint that the order of termination of his services was passed on 1-2-1964 and, therefore, there could be no order of termination on 31-1-1964. On behalf of the respondent, on the other hand, the contention is that though the order dated 1-2-1964 was communicated to him that was merely communication on the basis of the order of termination passed en 31-1-1964. I have already said that in the affidavit filed by Shri Titus it has not been alleged that the order asked for was not an order of termination at all From the said order the plaintiff seeks to show that though purporting to act under Rule 5. the plaintiff was in fact punished. I am not satisfied that merely because some officer may have expressed a particular opinion in the said order of termination about the plaintiff, its disclosure will in any way prejudice the proper functioning of the public service. If that were so in all cases then no Government servant would be entitled to show that the order in substance amounts to punishment, which is his constitutional right. The affidavit of Mr. Titus merely states that the disclosure will materially affect the freedom and candour of expression, but it does not state that the document contains matters relating to public service. The authority may form such an opinion even about an innocuous document But that is not enough. They must show that the document is noxious. In these circumstances I am inclined to uphold the order of the trial Court and disallow the claim for privilege The petition, therefore, fails and is dismissed with no order as to costs.