TMI Blog2017 (4) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by him or that he should give some specific direction on the file placed before him. In our view therefore, if the appellant failed to take any action against the errant police officers, the entire official machinery starting from the Chief Minister down to the Chief Secretary and the Additional Chief Secretary are equally to blame. What is more important in this context is that the recommendation to take action against the errant police officers was made to the Chief Minister and not to the appellant. The second and more serious reason for the transfer (though it is not mentioned by the Chief Minister) is to be found in the first Note dated 26th May, 2016 of the Additional Chief Secretary (Home). Perhaps for this reason, it finds only a fleeting mention in the reply affidavit filed in the Central Administrative Tribunal and in this Court, but the detailed counter affidavit elaborates this reason. The allegation has been detailed above and it is not necessary to repeat it, except to say that according to the Home Secretary, the appellant attempted to interfere in the investigations relating to the Puttingal Temple tragedy. The law has been well-settled for many years now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the State Police Chief could be transferred out before completion of the tenure if the State Government is prima facie satisfied that it is necessary to do so, on certain grounds specified in sub-section (2) of Section 97 of the Act. We are concerned with clause (e) thereof relating to causing serious dissatisfaction in the general public about efficiency of police in his jurisdiction. 3. Ordinarily therefore, the appellant s tenure as State Police Chief should have continued till 21st May, 2017 and even thereafter till his superannuation sometime in June, 2017. However, the tenure was cut short and he was transferred out as Chairman and Managing Director of the Kerala Police Housing and Construction Corporation Ltd. on State deputation basis by an order dated 1st June, 2016. 4. The appellant challenged his displacement by filing a petition in the Central Administrative Tribunal, which was dismissed. He then preferred a writ petition in the Kerala High Court challenging the order of the Central Administrative Tribunal. The Division Bench hearing the writ petition dismissed it by the impugned judgment and order dated 25th January, 2017. It is under these circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent functioning of the police can and sometimes does get compromised at the hands of very important persons and those claiming proximity to very important persons. 8. Keeping this and other material in mind, including the fact that commitment, devotion and accountability of the police has to be only to the rule of law, this Court issued certain directions in exercise of powers under Article 32 read with Article 142 of the Constitution for doing complete justice in any cause or matter. This Court took the view that the directions and guidelines ought to be observed in the absence of legislation and implemented till the Legislatures pass appropriate legislations. 9. Resort to Article 32 read with Article 142 of the Constitution in such situations was in continuation of similar views expressed in Vishaka v. State of Rajasthan[(1997) 6 SCC 241] wherein this Court held in paragraph 16 of the Report that in the absence of enacted law, to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he three senior-most empanelled officers keeping in mind their length of service, very good record and range of experience for heading the police force. It was directed that the Director General of Police should have a minimum tenure of at least two years irrespective of his date of superannuation. It was further directed that the Director General of Police may be relieved of responsibilities by the State Government acting in consultation with the State Security Commission on certain specified grounds. All these directions were given by this Court so as to insulate the police from external pressures and maintain the rule of law and not of persons. The State legislation 12. A few years after the decision in Prakash Singh, the Kerala Legislature enacted the Kerala Police Act, 2011. 13. Section 18 of the Act provides for a State Police Chief vested with the administration, supervision, direction and control of the police throughout the State, subject to the control of the State Government. The State Police Chief should have the ability to lead the police force of the State and should be selected taking this into account as well as the overall history of service, professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me general policy guidelines for the functioning of the Police in the State; to issue directions for the implementation of crime prevention tasks and service oriented activities of the Police; to evaluate, from time to time, the performance of the Police in the State in general; to prepare an annual report of the activities of the Commission and submit it to the Government; and to prepare the guidelines for the changes to be carried out, from time to time, in the State Police; and to discharge such other functions as may be assigned to it by the Government. (2) The report submitted by the Commission under clause (d) of sub-section (1) shall, on receipt, be placed before the Legislative Assembly. (3) No Act or Proceedings of the Commission shall be deemed to be invalid merely by reason of any vacancy in the Commission at the time any such Act or Proceedings was done or issued. (4) Notwithstanding any guidelines or directions issued by the Commission, the Government may lawfully issue such directions as it deems necessary on any matter, if the situation so warrants, to meet any emergency. (5) The directions of the Commission shall be binding on the Police Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of this Court was not accepted by the Kerala Legislature, namely that of making the State Police Chief accountable only to the rule of law nor did the Kerala Legislature accept the warning of the Bureau of Police Research and Development against excessive control over the police by the political executive and its principal advisers. 18. In this background, what falls for our consideration is whether the State Police Chief can be removed from his tenure posting on a prima facie opinion that he or she caused serious dissatisfaction in the general public about efficiency of police in his jurisdiction and what are the restrictions and constraints in arriving at such a prima facie conclusion. Puttingal Temple Tragedy and the Note of 13th April, 2016 19. The appellant was given a tenure appointment as the State Police Chief on 22nd May, 2015 in accordance with Section 18 and Section 97 of the Act. It appears that his tenure did not involve any controversy until the night of 9th April, 2016. 20. Very briefly, on 9th April, 2016 a festival called Meena Bharani Utsavam was celebrated in district Kollam. As a part of the celebrations, the Temple Administration Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he District Magistrate. 24. From the report of the Director, State Intelligence Bureau, it appears that the District Police Chief (perhaps the Commissioner of Police) Kollam City was alerted on 31st March, 2016 for taking steps concerning issues relating to the temple festival. 25. On 9th April, 2016 at about 12.30 p.m. a meeting was held in the chambers of the Deputy Commissioner of Police, Kollam City where the temple authorities of Puttingal Devi temple and police officers participated. The Deputy Commissioner of Police gave instructions that the fireworks display could be conducted only after getting a proper license or permission from the Additional District Magistrate. The temple authorities apparently assured that the fireworks display would be conducted only in accordance with law. 26. The Note records several conclusions, some of the more important ones as far as we are concerned are as follows: Despite the warning given as early as on 31st March, 2016 there was no pro- active planning [by the police] to avert the tragedy. The Additional District Magistrate had passed an order on 8th April, 2016 prohibiting the display of fireworks and the Commissioner of Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officers at the field level in Kollam City, Chathanur and Paravur who were found to be at fault and their suspension and transfer was recommended. 28. At this stage, it may be mentioned that the results of the elections to the Kerala Legislative Assembly were declared on 19th May, 2016 and the political party of the incumbent Chief Minister did not secure a majority. Consequently, the present government with a different Chief Minister assumed office on 25th May, 2016. It seems that the concerned file was returned only around this time. Suo motu proceedings in the High Court 29. In the meanwhile, soon after the Puttingal Temple tragedy, the Kerala High Court took notice of the tragedy and registered a suo motu writ petition being W.P. (C) No.14978 of 2016. In this writ petition, an affidavit was filed by the Chief Secretary of the State on 13th April, 2016. The affidavit gives the sequence of events which is more or less the same as in the Note dated 13th April, 2016. With regard to the role of the police, he stated in paragraph 6 of the affidavit as follows: Subsequently on 09.04.2016, the police made all bandobust arrangements for the conduct of the festival and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrible incident occurred, namely, the brutal murder of a young Dalit girl Jisha within the jurisdiction of the Kuruppumpady police station. On 3rd May, 2016 the appellant sent a communication to the Additional Chief Secretary (N/C) giving the details of the crime and the initial investigation. The communication reads as follows: Crime No. 909/16 u/s 449, 302 IPC of Kuruppumpady Police Station was registered at 9.30 p.m. on 28.04.2016 on the basis of the statement given by one Anas, Panchayat Member there. This was related to the murder of Jisha, aged 30/2016 years who was found murdered in her house on the bank of a canal. Within a short time, District Police Chief, Ernakulam Rural also reached the spot and the entire team started investigation. The deceased was staying with her mother Smt. Rajeswari. It is known that, Jisha s father belongs to SC community and Smt. Rajeswari belongs to OBC community. All scientific investigation procedures are adopted in this case. IGP Ernakulam Range, who had experience of working in CBI for 7 years is personally supervising the investigation from 29.04.2016 onwards. They have formed a good investigation team with DySP, Perumbavoor as Investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escue services should also be held accountable. Action, if any, should be taken against all, he argued. Senkumar also pleaded not to take disciplinary action till the Crime Branch probe is over. I am not saying that there is no failure on the part of the police. When fault finding is being done it has to be done impartially and everyone responsible should be made accountable, he told Express. How did Thrissur Pooram go on? There was societal pressure. An all party meet was called, High Court had intervened and a collective decision was taken to take precaution and ensure smooth conduct. When we take a deviant move from previous years it should be done sufficiently early and publicity given. Once you had decided to ban the fireworks the district administration should have called a meeting of officials concerned from all departments. What was the plan of action? Considering the large gathering during the fireworks display, a law and order situation should have been anticipated and suitable directions also should have been given. Revenue officers should have been present to help the police take action, he noted. The Tahasildar was supposed to be there. Instead of merely c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is probing the Puttingal temple tragedy, can be seen from the devious means adopted by him. In his letter dated nil, the DGP gave a panel of names for replacing ACP, Chathannur on the request of the ADGP (Crimes). But strangely enough, both the names given are those of officers who have been part of the investigating team of the Crime Branch. Even when the ADG Crimes requested that the investigating team should not be changed, no action was taken by the DGP. Finally a fresh panel had to be called for by the Government. Even if it is argued that the names were given inadvertently, not taking action on the request of the ADGP (Crimes) to retain his investigating team, is reason enough for presuming an undesirable motive. All these point to an inefficient and ineffective leadership, which is highly detrimental to a huge uniformed force like the State Police, entrusted with the dual responsibilities of maintaining law and order and prevention and detection of crime, in a transparent manner and to the satisfaction of the public at large. 37. On the same day, that is on 26th May, 2016 the Additional Chief Secretary (Home) put up a second Note to the Chief Minister and this was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e apparent from a reading of the decision that what weighed with the Chief Minister was only one ground, namely, the appellant s unsatisfactory leadership leading to serious dissatisfaction among the general public about the efficiency and transparency of the police force in the State, especially in regard to the Puttingal Temple tragedy and the Jisha murder case. Proceedings in the Central Administrative Tribunal 41. Feeling aggrieved by his transfer and consequent removal as the State Police Chief, the appellant challenged the order dated 1st June, 2016 in the Central Administrative Tribunal through O.A. No. 446 of 2016. 42. In response to the averments and allegations made by Senkumar, a reply affidavit was filed by the Joint Secretary to the Government of Kerala, General Administration Special (A C) Department on or about 24th June, 2016. In the affidavit there is a reference to lapses by the appellant in dealing with the Puttingal Temple tragedy. It is stated that he hesitated to suspend or initiate action against the delinquent police officers and instead adopted an attitude of safeguarding them. This created widespread dissatisfaction among the general public and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oughout the State, it took 5 days for the State Police Chief to report the matter to Government, that too, only after the news was widely flashed in the media. This caused wide spread criticism in the media and among the public about the police apathy. The report submitted by the State Police Chief even after 5 days of the incident did not indicate the time of registration of FIR. The report was an attempt to focus on the skill of the investigation team rather than informing the Government of the matters regarding the brutal murder. The Government received a second report on 04.05.2016, which was totally insensitive to the gravity of the situation. On 12.05.2016, Government received a third report highlighting the socio-economic scenario of the victim. It is also indicated that there are such vulnerable families and such crimes are bound to happen. In fact, there were many willful lapses on the part of the State Police Chief. He failed to act as the SPC. He was enthusiastic in protecting the delinquent officers. As a result, the image of the State Government before the public and sense of security to the public, were adversely affected. This has resulted in an unfortunate situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragedy. 50. It is against this decision of the High Court that the present appeal has been instituted. Proceedings in this Court 51. The appeal directed against the decision of the High Court was initially listed for preliminary hearing on 6th March, 2017 when notice was issued to the respondents. In response to the notice, the Chief Secretary of the State filed a counter affidavit on 23rd March, 2017 virtually reiterating the contents of the earlier affidavits. It is stated in the affidavit that Section 97(2)(e) of the Act which was invoked in the case, contemplates a prima facie satisfaction of the government that there is serious dissatisfaction in the general public about the efficiency of the police in the jurisdiction of a police officer. The prima facie satisfaction is the subjective satisfaction of the government and is not open to judicial scrutiny in the sense of propriety of the satisfaction on an objective appraisal of facts. 52. Significantly, it is reiterated that the primary responsibility for the Puttingal Temple tragedy rests fairly and squarely on the district police and there is no hiding from this fact. The appellant as head of the police force wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in the functioning of the CB-CID investigating team into the Puttingal Temple tragedy. 56. It was stated that while the appellant has asked for the transfer of one Deputy Superintendent of Police, Tirur on 28th April, 2016 a communication was received from the Chief Electoral Officer on 5th May, 2016 mentioning the transfer of the Deputy Superintendent of Police, Tirur, as well as the transfer of the Assistant Commissioner of Police, Chathanur. 57. As a replacement, the appellant suggested Gopakumaran Nair and Radhakrishnan, but the Additional Director General of Police (Crimes) (investigating the Puttingal Temple tragedy) wrote to the appellant with a copy of the letter to the Home Secretary requesting that Gopakumaran Nair should not be transferred since he was part of the team investigating into the tragedy. Similarly and for the same reason, the Additional Director General of Police (Crimes) objected to Radhakrishnan being appointed as the Assistant Commissioner of Police, Chathanur. Eventually, Velayudhan Nair was posted as the Assistant Commissioner of Police, Chathanur. The conclusion drawn by the Home Secretary was that placing Gopakumaran Nair (or Radhakrishnan) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy in a temple complex and the second related to lapses in the investigation into the murder of a young law student. The Police Chief is not personally responsible either for supervising the conduct of events or adherence to safety measures in relation to large public gatherings nor is the Police Chief directly incharge of the investigations. However, where the conduct of the police appears to fall short of the standards demanded by the law, the Police Chief is expected to conduct himself in a manner that restores public faith and confidence in the police and in the Government and not to take a partisan view to protect his officers. A Police Chief who conduct himself in a manner that creates dissatisfaction in the general public about the efficiency of the police can be for that reason transferred by the executive government under the statute. The issue therefore is not really about the details of the Puttingal Temple tragedy or the Jisha murder case the issue is really of the appellant s conduct post these two events, the expectations of the general public (as learned counsel for the State put it) and the serious public dissatisfaction . Discussion on the legal issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of the Chief Secretary from his post in such a case would not be arbitrary and it would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without proper justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants. Secondly So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Articles 14 and 16. 67. In Royappa the concern of this Court was in relation to the post of the Chief Secretary of the State but which was not a tenure post. This Court observed that the post of Chief Secretary is a highly sensitive post and the person holding that post is the lynchpin in the administration. The Chief Minister of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Police Chief does not succumb to such pressure, that Prakash Singh provided for security of tenure and insulating the police from the Executive. 70. As far as Citizens for Justice Peace is concerned, that is clearly inapplicable. We are not concerned with the appointment of the State Police Chief but with his removal from a tenure post. That apart, it would be tragic if this Court were to come to a conclusion that the removal of a person from a sensitive but tenure appointment based on a stature is the prerogative of the government and judicial review is not available merely because the post concerned is a sensitive one. If such a view were to hold the field, Article 14 of the Constitution, the citizen s struggle against executive arbitrariness would become irrelevant and this Court would be surrendering its constitutional obligation. 71. We may also recall that the Bureau of Police Research and Development, in a publication referred to by this Court in Prakash Singh warned that excessive control by the political executive and its principal advisors over the police has the inherent danger of making the police a tool for subverting the process of law. That view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his that persuaded this Court to direct that three persons independent of the government should be members of the State Security Commission (provided they are appointed by the State Government!) and that the recommendations of the Commission shall be binding on the State Government. Furthermore, to provide security of tenure this Court directed that the Director General of Police should have a minimum tenure of at least two years irrespective of the date of superannuation. To maintain the independence of the police from government control in matters relating to investigations or crimes, preventive measures concerning law and order and public order, the Director General of Police may be relieved of responsibilities only in consultation with the State Security Commission and that too for limited reasons. 76. While the Kerala Legislature did not fully adopt the directions given by this Court while enacting the Act, the Legislature partially and only partially accepted the spirit of the directions issued by this Court in maintaining the requirement that the State Police Chief should have a minimum tenure of two years and the reasons for shifting the State Police Chief from his or he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given a different treatment or interpretation. The opinion of serious dissatisfaction must be based on verifiable material and not a perception that the Chief Minister or other senior functionary might have or the public expectation (as learned counsel for the State put it) that the Chief Minister might imagine. Quite often public opinion can be misleading or motivated. It is true that where an assessment of this nature is required to be made, there would be an element of subjectivity, but that subjective view must have some basis not a mere perception. 78. Section 97(2)(e) of the Act must, therefore, be read and understood in the context of the other clauses of that Section which relate to verifiable facts and events. Clause (e) is not a blanket clause that permits the State Government to take any decision on the basis of what it believes to be public dissatisfaction. Otherwise, the State Government can misuse it and justify an adverse action on the ground of prima facie satisfaction outside the ambit of judicial review. 79. In this context the following passages from M.A. Rasheed v. State of Kerala[(1974) 2 SCC 687 paragraphs 8 to 10] are quite telling on the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gedy or the Jisha murder case. On the contrary, as far as the Puttingal Temple tragedy is concerned, the Additional Chief Secretary recommended action against three specific police officers and placed the file before the Chief Minister. The appellant has been accused of failure to take action against these errant police officers (rather supporting them) and unjustifiably apportioning a part of the blame on the district administration. However, it must be noted that for more than one and a half months the Chief Minister took absolutely no action on the Note dated 13th April, 2016 but just seems to have kept it in his office. Under these circumstances, it is not clear what action could be taken by the appellant or any officer of the government including the Chief Secretary and the Additional Chief Secretary against the errant police officers while the matter was pending with the Chief Minister. Could they or should they have by-passed the Chief Minister? In any event, nothing has been shown to us to suggest that the Chief Minister was reminded that some action needed to be taken by him or that he should give some specific direction on the file placed before him. In our view therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. This view was affirmed by the Constitution Bench of this Court in Mohinder Singh Gill v. Chief Election Commissioner.[1978 (1) SCC 405] 86. Apart from the fact that it is not permissible for the State Government to provide reasons in the detailed counter affidavit for the transfer of the appellant, additional reasons that are not mentioned by the Chief Minister, we find the reference to interference in the investigation in the Puttingal Temple tragedy as somewhat incongruous. There is nothing to suggest what advantage could be gained by the appellant in scuttling the investigations in the Puttingal Temple tragedy, particularly since in an earlier part of the detailed counter affidavit it is admitted that the State Police Chief is not personally responsible for supervising the conduct of events or adherence to safety measures in relation to large public gatherings. Therefore, why would the appellant want to interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rala High Court or by the judicial commission or by the CB-CID. In any event, this can hardly be any justification for coming to the conclusion that the appellant alone deserved to be acted against only because he supported his subordinates, while seeking to apportion a part of the blame on the district administration. 90. Similarly, as far as the Jisha murder case is concerned some of the conclusions arrived at on the file placed before us are a little unfortunate and appear to be prejudging the investigation. What impact this might have on the trial is again anybody s guess but surely the State Police Chief cannot alone be blamed for any lapse in investigation or any delay in apprehending the accused. This is more so considering the fact that a Special Investigating Team had been appointed consisting of 28 officers to investigate the Jisha murder case. The appellant was not the investigating officer in the matter. 91. Perhaps, what might be a very serious infraction by the appellant is the allegation that he tried to interfere with the investigations in the Puttingal Temple tragedy. We have, therefore, very carefully considered this allegation. Unfortunately, the file place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The subjective satisfaction of the State Government must be based on some credible material, which this Court might not analyze but which can certainly be looked into. Having looked into the record placed before us we find that there is no material adverse to the interests of the appellant except an expression of opinion and views formed, as far as he is concerned, as late as on 26th May, 2016. This make-believe prima facie satisfaction by itself cannot take out judicial review of administrative action in the garb of subjective satisfaction of the State Government. 94. We are a little disturbed by the resurrection of the Puttingal Temple tragedy and the Jisha murder case on 26th May, 2016 as soon as the present government in Kerala assumed office. The so-called public dissatisfaction with regard to the role of the police in the Puttingal Temple tragedy lay dormant for more than one month and similarly, the role of the police in the investigations in the Jisha murder case also remained dormant for almost a month. Suddenly, these issues resurfaced as soon as the present government assumed office. This might perhaps be a coincidence but it might also be politically motivated, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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