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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5227 OF 2017

Dr. T.P. Senkumar IPS     ...Appellant

Vs.

Union of  India & Ors.   ...Respondents

J U D G M E N T

Madan B. Lokur, J.

1. The  appellant  –  Dr.  T.P. Senkumar  -  is  said  to  be  an  outstanding

officer in the Indian Police Service and in view of his meritorious record and

service,  he  was  appointed  as  the  Director  General  of  Police  & Head  of

Police Force (the State Police Chief) in terms of Section 18 of The Kerala

Police Act, 2011 (for short “the Act”) on 22nd May, 2015.

2. Section 97 of the Act mandates that the State Government shall ensure

a minimum tenure of two years for the State Police Chief.  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

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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 circumstances that the appellant is now before us.

5. The  question  for  our  consideration  is  whether  the  appellant’s

displacement from the post of State Police Chief in Kerala before the expiry

of his tenure of two years was justified in law. In our opinion, the answer is

in the negative. The removal or displacement or transfer out of an officer

from a sensitive tenure post requires serious consideration and good reasons

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that can be tested so that the officer is not dealt with as a pawn in a game.

Unfortunately, the somewhat exacting standards are absent in the present

case and the appellant was displaced from the post of State Police Chief

summarily and without reasonable cause.   

Prakash Singh’s case

6. Before detailing the controversy before us it is necessary to refer to

the decision of this Court in Prakash Singh & Ors. v. Union of India and

Ors.1  In that case, this Court dealt with the issue of police reforms in the

context of the far-reaching changes that had taken place in the country after

the  enactment  of  the  Indian  Police  Act,  1861.  It  was  noted  that  no

comprehensive review had been undertaken in this  regard at  the national

level and therefore, the Government of India appointed a National Police

Commission on 15th November, 1977 which recommended significant police

reforms.  It was also noted that subsequently, there were other half a dozen

reports  on  the  same  or  similar  subject  but  no  substantive  reforms  were

brought about.

7. In the course of its judgment, this Court referred to a research paper

titled “Political and Administrative Manipulation of the Police” published in

1

(2006) 8 SCC 1

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1979 by the Bureau of  Police Research and Development.   The research

paper contained a caution to the effect that excessive control by the political

executive and its principal advisers over the police had the inherent danger

of making the police a tool for subverting the process of law, promoting the

growth of authoritarianism and shaking the very foundations of democracy.

We may add that one of the findings in the research paper is “The present

predicament  of  Police  is  that  they have  been exposed to  a  two pronged

pressure vertically  from  the  Administration  and laterally  from  the

politicians.”2 With these two pressures, the independent 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.

2

Research   Studies  on  Police  and  Prison  Issues  (1970-2009) [Compendium] published by the Bureau of Police Research and Training [page 81]

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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 Rajasthan3 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 hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose.  This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.”

A similar view was taken by this Court in Vineet Narain v. Union of India4

wherein this Court held in paragraph 49 of the Report as follows:

“There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of  this  Court  as provided in Article 144 of the Constitution.  In  a catena of decisions of this Court, this power has been recognised and exercised,  if  need  be,  by  issuing  necessary  directions  to  fill  the vacuum till such time the legislature steps in to cover the gap or the executive  discharges  its  role……… It  is  essential  and indeed the constitutional obligation of this Court under the aforesaid provisions to issue the  necessary  directions  in  this  behalf.  We now consider formulation  of  the  needed  directions  in  the  performance  of  this

3

(1997) 6 SCC 241 4

(1998) 1 SCC 226

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obligation. The directions issued herein for strict compliance are to operate till such time as they are replaced by suitable legislation in this behalf.”

10. One of the more significant directions given by this Court pertains to

the establishment of a State Security Commission.  It was directed that it

should be ensured that the State Government does not exercise unwarranted

influence or pressure on the State Police and, therefore, a watchdog body

called  the  State  Security  Commission  should  be  constituted  with  some

official  members  as  well  as  some  non-official  members  who  should  be

chosen  in  such  a  manner  that  they  are  able  to  function  independent  of

government control.   It was directed that the recommendations of the State

Security  Commission  shall  be  binding  on  the  State  Government.

Incidentally, on our asking we were informed by learned counsel  for  the

State Government that as of now, the State Security Commission does not

have any independent member.

11. Another  significant  direction  given was  that  the  State  Government

shall  select the Director General of Police of the State from amongst the

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

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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  knowledge and experience.   Section  18 of  the  Act  reads  as

follows:

“18.  State  Police  Chief -  (1)  The  administration,  supervision, direction and control of the Police throughout the State shall, subject to the control of the Government, be vested in an officer designated as the State Police Chief.

(2) The State Police Chief shall  be appointed by the Government from among those officers of the State Cadre of the Indian Police

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Service  who have already been promoted to  the  rank of  Director General of Police, taking into account the ability to lead the Police Force  of  the  State,  the  overall  history  of  service,  professional knowledge and experience:  

Provided that where in a case or disciplinary proceedings, for and on behalf of the State a charge has been given or is pending against an officer  before any Court  or  Tribunal  or  departmental  agency, that officer shall not be appointed as the State Police Chief.  

(3) Any person who performs any functions of the police in the State of Kerala in exercise of the powers under this Act shall be officers subordinate to the State Police Chief.  

(4) Such number of officers of different ranks as may be decided by the Government from time to time shall assist the State Police Chief.

(5) No officer senior to the State Police Chief shall be appointed in the Kerala Police.”   

14. Section  24  of  the  Act  provides  for  the  constitution  of  the  State

Security  Commission  for  discharging  certain  functions  as  mentioned  in

Section  25  of  the  Act.  The  State  Security  Commission  consists  of  the

Minister in-charge of Home Department who shall be the Chairperson; the

Minister in-charge of Law; the Leader of Opposition; a retired Judge of the

High Court nominated by the Chief Justice of the High Court of Kerala; the

Chief  Secretary;   the  Secretary  to  State  Government  in  the  Home

Department  and  the  State  Police  Chief  as  ex-officio  members  and  three

non-official members of eminence nominated by the Governor of the State,

one of the non-official members being a woman. In other words, the State

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Security Commission is expected to be a relatively independent body, but is

not truly so in view of other provisions in the Act.  

15. The functions of the State Security Commission as given in Section

25 of the Act read as follows:

“25.  Functions of  the Commission.  – (1) The Commission shall have the following functions, namely:-

(a) to frame general policy guidelines for the functioning of the Police in the State;

(b) to issue directions for the implementation of crime prevention tasks and service oriented activities of the Police;

(c) to evaluate, from time to time, the performance of the Police in the State in general;

(d) to  prepare  an annual  report  of  the  activities  of  the  Commission and submit it to the Government; and

(e) to prepare the guidelines for the changes to be carried out, from time to time, in the State Police; and

(f) 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 Department:  

Provided that  the Government may, for reasons to be recorded in writing, fully or partially, reject or modify any recommendation or direction of the Commission.”

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16. With regard to the minimum tenure of police officers including the

State Police Chief, Section 97 of the Act provides as follows:

“97. Minimum tenure of police officers.- (1) The Government shall ensure a minimum tenure of two years for police officers posted as State  Police  Chief,  Inspectors  General  in  charge  of  Ranges, Superintendents  of  Police  or  Commissioners  in  charge  of  Police Districts and State House Officers:  

Provided  that  this  tenure  shall  not  be  applicable  in  cases  of superannuation, promotion, reversion, suspension, leave, etc.  

(2)  The  Government  or  the  appointing  authority  may,  without prejudice  to  the  right  to  initiate  any legal  or  departmental  action transfer any police officer before completing the normal tenure of two years, on being satisfied prime facie that it is necessary to do so on any of the following grounds stated in (a) to (f) namely:-

(a) the officer is subjected to disciplinary action; (b) it is found prima facie on investigation that the officer is involved in a

corrupt  practice  or  in  a  criminal  offence  involving  proclivity  for violence or moral turpitude;

(c) the officer is physically or mentally incapable of discharging his duties; (d) a superior officer evaluating the work of an officer, reports, in writing,

that the officer is not carrying out his duties efficiently; (e) cause serious dissatisfaction in the general public about efficiency of

police in his jurisdiction; (f) the officer requests, in writing, for a transfer from the place where he is

working.”

17. It will be seen from the above that some of the directions given by this

Court  were  not  accepted  by  the  Kerala  Legislature  in  enacting  the  Act.

Among  these  was  the  direction  regarding  the  binding  nature  of  the

recommendations  of  the  State  Security  Commission  and  the  direction

relating to the Director General of Police or the State Police Chief being

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relieved of responsibilities by the State Government acting in consultation

with  the  State  Security  Commission.  Consequently,  in  the  selection  or

removal of the Director General of Police or the State Police Chief, the State

Security Commission has no role to play under the Act.  In a sense therefore,

an important element in the spirit  of the judgment 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.   

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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 sought permission to have a fireworks

display  in  the  form  of  a  competition  at  the  Puttingal  Devi  Temple.

Permission  to  hold  such  a  competition  was  declined  by  the  District

Administration. An application was then made by the Temple Administration

Committee to hold a fireworks display (non-competitive) but even this was

declined  by  the  District  Administration.  However,  the  Temple

Administration Committee nevertheless went ahead with a fireworks display.

Late into the night (early morning of 10th April) an extremely unfortunate

tragedy occurred resulting in the stock of fireworks catching a spark. This

resulted in an explosion and the death of more than 100 persons and injuries

to more than 400 persons.   

21. The facts leading up to the tragedy are summarized in a Note dated

13th April, 2016 by the Additional Chief Secretary (Home) with regard to

what  is  now known  as  the  Puttingal  Temple  tragedy.  The  Note  of  the

Additional Chief Secretary (Home) is comprehensive and is based on reports

received from:

(1)  State Police Chief and Director General of Police (appellant) (2)  Commandant General Fire Police (3)  Director, State Intelligence

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(4)  Additional Director General of Police, Crimes (5)  District Collector and District Magistrate, Kollam (6)  Commissioner of Police, Kollam City

In  other  words,  the  Note  is  based  on  inputs  received  from  all  relevant

sources and is also based on contemporaneous information.

22. The Note records that the Temple Administration Committee sought

permission for a display of fireworks but this was declined by an order dated

8th April, 2016 by the Additional District Magistrate, Kollam.  The officer

declined  to  grant  any  permission  either  for  display  of  fireworks  or

competitive fireworks. While declining to grant permission, the Additional

District  Magistrate,  Kollam  specifically  instructed  the  Commissioner  of

Police, Kollam City to ensure that no violation of the order takes place.

23. The  Circle  Inspector  of  Police,  Paravur  was  present  at  the  site  of

display of fireworks and the tragic incident.  It was reported that the officer

“repeatedly asked the temple authorities to stop the display of fireworks” but

obviously to no effect. It appears that before the fireworks display started,

the temple authorities informed the Circle Inspector of Police that a sanction

order from the Additional District Magistrate was on the way but he failed to

verify this from the District Magistrate.

24. From the report of the Director, State Intelligence Bureau, it appears

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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:

(a) 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 Police had received this order.  The

Deputy Commissioner of Police held a meeting in his

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chamber on 9th April, 2016 wherein he is said to have

told the temple authorities to get an order from the

Additional  District  Magistrate  for  permitting  the

fireworks display after ensuring that there would be

no competition. It was concluded that apparently the

Deputy  Commissioner  of  Police  was  appeasing  the

temple authorities rather than trying to implement the

order of the Additional District Magistrate. (b)The  Circle  Inspector  of  Police  did  not  inform  any

officer senior to him in the chain of command when

the situation was going out of control.  As far as the

Commissioner  of  Police  is  concerned,  he  admitted

that  he got  information of the tragedy only when it

had  struck  (and  not  when  the  fireworks  display

started).  (c) The fireworks display started at about 11.30 p.m. on

9th April, 2016 but the Circle Inspector of Police and

other officers remained mute witnesses to a violation

of the order of the Additional District Magistrate.

It was then concluded:

“The conclusion is therefore inescapable that the field officers have failed  in  implementing  the  order  of  the  District  Magistrate;  in

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following up the field situation on a minute to minute basis so that this tragedy could have been averted.

There is absolute dereliction of duty and abdication of responsibility on the  part  of  the  ACP, Chathanur and DCP, Kollam City in  not effectively monitoring the situation in the temple in the night of 9th April, 2016, resulting in a tragedy claiming more than 110 human lives.

In the circumstances, it is not desirable to keep the three officers - Commissioner  of  Police,  Kollam City, Assistant Commissioner  of Police, Chathanur and Circle Inspector of Police, Paravur - in their present postings any longer. They should be kept out of their field postings pending disciplinary proceedings for major penalty. Their suspension is warranted in public interest.”

27. The Note dated 13th April, 2016 appears to have been placed before

the Chief Minister of the State on 14th April, 2016 but he did not pass any

order  thereon  and  the  file  was  returned  only  after  the  elections  to  the

Legislative  Assembly  were  over  in  May  2016.  However,  what  is  of

significance, as far as the present appeal is concerned, is that the appellant

was not found blameworthy in any manner whatsoever – it is only the three

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.

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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 there was a scheme prepared by the police for  crowd management as well  to  prevent commission of offences.  In the night of 09.04.2016 thousands of people gathered at the temple to watch the fire works display.  The police officials as well as the Tahsildar, Kollam were present at the temple premises.  The Circle Inspector of Police, Paravoor who was on duty in the temple compound, noticing the preparation made by the organizers for the fire works display after the lowering of the festival flag from the flag mast at 9.30 p.m. asked the office bearers of the Temple Committee to show the order granting permission of the  same.   They  said  that  sanction  had  been  obtained  from  the Additional District Magistrate and somebody would be bringing it to the  spot.  In  the  meanwhile  it  was  announced  through  the  public

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address system that the committee had permission to conduct display of fire works (Vedikkettu) from the Additional District Magistrate and there would be a display of fire words.  The Circle Inspector of Police asked to wait  until  the permit  was actually  shown to him. Instead, the temple authorities violating the law, defying the lawful direction of the authorities started to ignite the fire works abruptly. When the fire works (Vedikkettu) started huge crowd rushed forward to  view it.   All  officials  including the  Circle  Inspector  of  Police immediately went to the ground for managing the crowd, since there was  surge  of  people.   It  is  submitted  that  around  03.00  a.m.  on 10.04.2016 some spark from the fire works fell inside the fire works shed  (Kambappura)  and  resulting  in  explosion  causing  heavy casualties.”

30. In  his  affidavit,  the  Chief  Secretary  also  mentioned that  a  judicial

commission has been set up, headed by a former Judge of the Kerala High

Court, to look into all aspects of the Puttingal Temple tragedy.  It was noted

that investigation into the crime, which resulted in the tragedy was handed

over to the CB-CID and a team headed by the Additional Director General of

Police (Crime) was constituted.   We were told that  the investigation was

transferred  to  the  CB-CID  on  11th April,  2016.  It  appears  that  the  writ

petition is  still  pending disposal  and the judicial  commission has not  yet

given its report.

31. Significantly,  even  the  Chief  Secretary  did  not  make  any  adverse

comment against the appellant.  

Jisha Murder case

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32. On 28th April,  2016 another  terrible  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 Investigating Officer.  Efforts are taken to identify the accused through scientific methods.

The  post-mortem  report  of  the  deceased  has  revealed  that  the deceased had been attacked with more than one weapon.  Brutality of the attack is also noticed.  The time of the death is estimated to be between 4.30 p.m. and 5.00 p.m. on 28.04.2016.  The investigation is in full swing by one of the best team available in the state.  It is expected that the accused can be clearly found out within a short time.”

A  Special  Investigation  Team  consisting  of  28  officers  has  since  been

constituted to investigate and prosecute the crime. For the present, it is not

advisable to say anything more on this subject.  

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Notes of 26th May, 2016 and the appellant’s transfer  

33. Other than the terrible murder of Jisha nothing of significance seems

to have transpired between 13th April, 2016 and 26th May, 2016 or at least the

official files do not reveal anything of significance.  However, elections to

the  Legislative  Assembly  had  intervened  in  the  meantime  and  another

Government assumed office.

34. On 26th May, 2016 the Additional Chief Secretary (Home) put up two

Notes to the (recently elected) Chief Minister. The first Note suggests (by

way of an example) that it  was prompted by a report in the New Indian

Express of 18th April, 2016 wherein the appellant expressed the view that the

police  alone  cannot  be  blamed  for  the  Puttingal  Temple  tragedy.  The

newspaper report reads:

Don't Blame the Police Alone: DGP5 By Pradeep Pillai    |   Published: 18th April 2016 03:58 AM  |   Last Updated: 18th April 2016 03:58 AM  |   A+A A-   |   

KOCHI: DGP T P Senkumar has hit right back. “Where was the ADM and Tahasildar when tragedy struck Puttingal Devi Temple at  Paravur?  Why  there  is  no  action  against  Revenue  and  other officials  concerned,”  asked  Senkumar,  in  response  to  a  report

5

 http://epaper.newindianexpress.com/781747/The-New-Indian-Express-Kochi/1804201 6#page/1/2 and http://epaper.newindianexpress.com/c/9748784  

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submitted by Additional Chief Secretary Nalini Netto in which she recommended suspension of three police officers. In a report submitted to the Chief Minister, the DGP pointed out that it was not fair to blame the police alone for the tragedy. Officials  of  the  district  administration,  Pollution  Control  Board, Directorate  of  Explosives,  Environmental  Engineering,  Fire  and Rescue 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 complaining to the police, he could also have called the District Collector and informed the possibility of a violation. It is reported that  he  went  home  after  midnight  and  returned  only  in  the morning.  If  the  CI  on  the  field  is  to  be  blamed,  the  Tahasildar should also be equally responsible. It is not correct to start looking for scapegoats once something goes wrong,” he said. Further stressing his  point,  Senkumar said:  “The ADM vanished from  the  scene.  Did  he  seek  permission  of  the  Chief  Electoral Officer before leaving the district for his home in Ernakulam? It is too much to say that  the police alone is  responsible after things went out of hand. It is wrong, partial,” the DGP said.

35. In the first Note dated 26th May, 2016 the Additional Chief Secretary

(Home) explained that the earlier Note dated 13th April, 2016 dealt mainly

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with the report of the State Police Chief dated 13th April, 2016. She had then

confined herself to examining the critical issues only and did not elaborate

on the “peripherals”.   Therefore,  she submitted the Note dated 26th May,

2016.   

36. On a reading of  the first  Note,  it  appears  to  be in  the nature of  a

counter  affidavit  to  certain  observations,  comments  and  conclusions

recorded more than a month earlier by Senkumar in his report dated 13th

April, 2016. In any event, the Additional Chief Secretary (Home) concluded

the Note by expressing the opinion that:

“….. Even if all  other departments are ticked off for contributory failure, it will in no way mitigate or absolve the District Police from its responsibility, as it is the police which has to publicise the ban order and implement it effectively.  The primary responsibility for the said tragedy therefore rests fairly and squarely on the District Police and there is no hiding from this fact.  The DGP as head of the police  force  is  expected  to  evaluate  without  fear  or  favour  the performance of his force and take to task those found remiss in the line of duty.  Here, instead of providing proper leadership, the DGP has gone overboard to protect erring police officials, sending a very wrong and dangerous message, not just to the force, but also to the public, which could have far reaching disastrous consequences. In addition to all these, the action of the DGP in trying to interfere in an undesirable manner the functioning of the investigating team of the Crime Branch which 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

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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 the Jisha murder case.  In the second Note, there is a reference to a report

made by the Director  General  of  Police (Senkumar) on the Jisha murder

case.  The only allegation made in the second Note is that the report of the

Director General of Police is silent on the issue why no action was taken

against  certain  officers  who  had  delayed  the  recording  of  the  First

Information Report in the Jisha murder or the delay in forwarding the First

Information Report to the concerned Magistrate.  It is also alleged that the

report of the Director General of Police is completely silent on the callous

handling of the scene of crime and the initial investigation steps. The second

Note then goes on to highlight certain contradictions between the report of

the Director General of Police, the First Information Report and the First

Information Statement.  We make no comment on this at all since this is a

matter that might come up during the trial.

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38. In the second Note, the Additional Chief Secretary (Home) concludes

from the above, that the control and discipline in the police force is lacking,

pointing to poor leadership and direction of the Director General of Police

and that there is a lack of integrity, transparency and efficiency of the police

force  in  general  in  handling  the  Jisha  murder  case  that  seems  to  have

seriously  eroded  the  confidence  of  the  public,  especially  women  in

particular, reflecting poorly on the leadership of the force.

The order cutting short the tenure

39. Acting on the above Notes, the Chief Minister took a decision on 27 th

May, 2016 to replace the appellant. This decision is under challenge and it

reads as follows:

“It  has  been  decided  to  replace  the  present  Director  General  of Police  and  State  Police  Chief  in  the  wake  of  the  fact  that  his leadership has not been satisfactory 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  Incident  and  the  Jisha  Murder  case.  The  Committee Constituted for the selection of the DGP may meet at the earliest and examine the profiles of the officers in the zone of consideration and place the facts before the Government for consideration to enable a decision to be taken.”  

The decision was ratified by the Cabinet on 1st June, 2016 and given effect to

on the same day.  

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40. It will be 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  in  the  media  which  the

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government was constrained to take seriously.  He tried to white wash the

police at the expense of other departments.  As the head of the police force

in  the  State,  he  was  expected  to  evaluate,  without  fear  or  favour,  the

performance of the force and take to task those found remiss in the line of

duty.   Instead  of  protecting  the  interests  of  the  State  and  acting  as  the

protector  of  the  people,  the  appellant  had  gone  overboard  in  protecting

erring police officers.  This sent a very wrong and dangerous message, not

just to the force but also to the people.  Such an attitude would have far

reaching and disastrous consequences which could not be tolerated in the

larger public interest.  

43. In the reply affidavit,  there is an allegation that  after  the Puttingal

Temple tragedy, the appellant attempted to interfere with the Crime Branch

investigation team probing the tragedy and that this raised serious concerns

for the State.

44. It was alleged as follows:

“In his letter dated nil, the Director General of Police gave a panel of names for replacing ACP, Chattannur 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 Director General of Police.  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)

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to retain his investigating team, is reason enough for presuming an undesirable motive.  In fact,  the co-ordination between the higher level police officers was also in question.”

45. With regard to the Jisha murder case it  was stated that  there were

several serious lapses on the part of the police officers which the appellant

tried to white wash, ignore or justify.  It was stated as follows:-

“The murder shocked the conscience of the nation and especially the people of Kerala.  The manner in which the police officer proceeded with the investigation of this crime is an everlasting shame to the state  police.  No  measures  were  taken  to  safeguard  the  available evidence.  The police took hasty steps to cremate the body.  In the night of 29.04.2016 though the incident came to the notice of the people throughout 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.  There was not only failure in prevention but also failure in detection.  The level of callousness and insensitivity with which the matter was handled by the SPC is appalling.  The entire issue was taken  over  by  the  media  and  civil  society.   On  the  whole, Government had no option but to replace the State Police Chief with an efficient and capable officer to deal with such a situation.”

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46. The Central Administrative Tribunal in its order dated 21st July, 2016

took the view that the replacement or transfer of the appellant  as the State

Police Chief was not mala fide or with any oblique motive or for extraneous

or  political  considerations  but  on  the  ground  that  the  Government  was

satisfied,  prima facie, that the appellant’s shift was necessary as it caused

serious dissatisfaction in the general public about the efficiency of the police

force satisfying the conditions mentioned in Section 97(2)(e) of the Act.  

Proceedings in the High Court

47. Feeling  aggrieved  by  the  decision  of  the  Central  Administrative

Tribunal, the appellant  preferred a writ petition in the Kerala High Court

being O.P. (CAT) No. 205 of 2016.  This writ petition was heard and decided

by  a  Division  Bench  of  the  Kerala  High  Court  and  by  the  impugned

judgment  and  order  dated  25th January,  2017  it  was  dismissed.

Unfortunately the counter affidavit filed by the State (if any counter affidavit

was at all filed) is not on our record.

48. It was held by the High Court,  inter alia, that the Government was

prima  facie satisfied  that  action  was  required  to  be  taken  under  the

provisions of Section 97(2) (e) of the Act and that there were no mala fides

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in the transfer of  the appellant particularly due to the change of government.

It  was  held  that  the  displacement  of  the  appellant  was  based  on  the

subjective satisfaction of the government and that the action or inaction on

the  part  of  the  appellant  was  correct  or  sustainable  was  not  a  matter  of

scrutiny before the Court.  It was further held that the Central Administrative

Tribunal had approached the issue in the correct perspective and the finding

and reasoning given for declining interference did not warrant any exercise

of jurisdiction of the High Court to set aside its order.

49. It is important to note that the High Court made no reference to the

alleged interference by the appellant in the CB-CID investigations into the

Puttingal Temple tragedy.  

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

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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

was expected to evaluate without fear or favour the performance of his force

and take to task those found remiss in the line of duty.  Instead of providing

proper leadership, he went overboard in protecting erring police officials,

sending a very wrong and dangerous message, not just to the force, but also

to the public, which could have far reaching disastrous consequences. It is

further stated that all this points to an inefficient and ineffective leadership

which is highly detrimental to a huge uniformed force like the State Police,

entrusted  with  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. It is stated that a responsible government

is accountable to the general public and a responsible police officer acting in

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a manner not suitable to the occasion cannot be permitted to continue in the

post  when  the  issues  involved  are  sensitive  and  have  far-reaching

consequences. The Council of Ministers in the State was seized of the issues

and it was in pursuance of the decision of the Council of Ministers that the

appellant was transferred.  

53. In this affidavit,  a reference is made to the report dated 13 th April,

2016 forwarded by the appellant to the Additional Chief Secretary and which

has been referred to above.  It is stated that in the report, the appellant’s

attempt and attitude was more to insinuate the lapses resulting in the tragedy

on the district administration while seeking to assert that the entire blame

cannot  be put  on the police.   The  course of  events  clearly revealed  that

adequate action was not taken against the delinquent police officers or such

action was not recommended by the appellant at the appropriate time.  This

contributed to the dissatisfaction on the efficiency of the police in the minds

of the general public. In the counter affidavit there is no reference to the

Jisha murder case or to the alleged interference in the CB-CID investigations

in the Puttingal Temple tragedy.  

54. A further detailed counter affidavit was filed by the Chief Secretary on

10th April, 2017. In the detailed counter affidavit the facts and views relating

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to the Puttingal Temple tragedy are reiterated and it is not necessary to go

over them again.

55. However,  in  the  detailed  counter  affidavit  it  was  alleged  that  the

appellant  was  trying  to  interfere  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

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conclusion drawn by the Home Secretary was that  placing Gopakumaran

Nair  (or  Radhakrishnan)  as  the  Additional  Commissioner  of  Police,

Chathanur  would put  him under  the  jurisdiction of  the  Commissioner  of

Police, Kollam City, whose role was under investigation and therefore “these

circumstances  were  reasonable  enough  for  presuming  an  undesirable

motive” of the appellant.  

58. There is also a reference to a letter dated 10th May, 2016 sent by the

Home  Secretary  to  the  Director  General,  Election  Commission  of  India

wherein it is mentioned that the Government was not aware of the proposal

for the transfer of the Assistant Commissioner of Police, Chathanur until it

received the communication dated 4th May, 2016.  It is not clear why such a

reference  is  made  in  the  detailed  counter  affidavit  –  is  it  sought  to  be

suggested that the appellant had influenced the Director General, Election

Commission  of  India  to  transfer  the  Assistant  Commissioner  of  Police,

Chathanur.  If that is the suggestion it is extremely unfortunate.  

59. Adverting to the Jisha murder case, it was alleged that since details

were not made available to the government with regard to the murder which

had  raised  a  serious  public  outcry,  the  Home  Secretary  sent  a  detailed

questionnaire on 4th May, 2016 to the Inspector General of Police with a

copy to the appellant asking for full details as to the steps taken.

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60. In  response,  the  Inspector  General  of  Police  replied  to  the

questionnaire  but  the appellant  did not  do so but  only enclosed an order

establishing a Special Investigating Team of 28 officers to investigate the

murder.

61. On a subsequent occasion, the appellant submitted another report to

the  Home Secretary  on 12th May, 2016 wherein he failed  to  address  the

crucial issue of the cremation of the victim soon after the post mortem even

when forensic investigation was under way as to a possible sexual assault.

The appellant  also did not address any of  the controversies in the public

domain such as protest marches by various organizations.

The correct perspective

62. However, what is important about the detailed counter affidavit is that

it places the entire case in the proper perspective in the following words:

“The question was not about his involvement directly in any of the incidents, the question was how he, as a Chief of the State Police, dealt with the situation where there was great public concern about these incidents.  The first related to the firework tragedy 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

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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

63. On the legal issues, it was submitted by learned counsel for the State

Government  that  only  a  prima  facie satisfaction  of  the  government  was

required to transfer the State Police Chief due to events subsequent to the

Puttingal Temple tragedy and the Jisha murder.  

64. It was submitted that the State Government was prima facie satisfied

that the conduct of the appellant post the two incidents did not inspire any

confidence  in  his  leadership  and  that  translated  into  serious  public

dissatisfaction on the efficiency and the role  of  the police.   This,  it  was

submitted, was more than enough to enable the government to conclude that

the appellant deserved to be transferred out as the State Police Chief.

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65. We are of  opinion that  the Puttingal  Temple tragedy and the Jisha

murder, both extremely tragic events, were not and were admittedly not the

basis for the transfer of the appellant.  The correct perspective was placed by

learned counsel for the State of Kerala and that is the subsequent conduct of

the appellant in failing to take action against the errant police officers for the

Puttingal Temple tragedy and that he failed to provide an adequate response

to the Jisha murder.   It was argued that cumulatively, this indicated that the

appellant was not suited to be in charge of the State Police and therefore

deserved to be replaced.

66. Our attention was drawn to E.P. Royappa v. State of Tamil Nadu6 and

particularly the following passage in paragraphs 87 and 88 of the Report:

“Now,  two  important  considerations  must  weigh  with  us  in determining our approach to these questions. First, the post of Chief Secretary is a highly sensitive post. It is a post of great confidence — a lynchpin in the administration — and smooth functioning of the administration requires  that  there  should be complete  rapport  and understanding between the Chief Secretary and the Chief Minister. The Chief  Minister  as the head of the Government is  in  ultimate charge  of  the  administration  and  it  is  he  who  is  politically answerable to the people for the achievements and failures of the Government. If, therefore,  for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post,  provided of course that does not involve violation of 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

6

(1974) 4 SCC 3   

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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 must, therefore, have complete confidence in him or

her and there must be complete rapport and understanding between the Chief

Secretary and the Chief Minister of the State.  Since the Chief Minister is in

ultimate charge of the administration of the State and is answerable to the

people for  the achievements and failures of  the government,  if  the Chief

Secretary forfeits the confidence of the Chief Minister, he or she may be

shifted to another post in the larger interest of administration provided there

is no violation of any legal or constitutional right.   

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68. Our attention was also drawn to an observation in Citizens for Justice

&  Peace  v.  State  of  Gujarat7 to  the  effect  that  “the  appointment  of  a

government  servant  is  the  prerogative  of  the  particular  Government,

particularly, when it is a sensitive appointment of the Director General of

Police.” It was then observed that this Court would not extend its hands to

upset such an appointment under the judicial doctrine review.

69. The broad principle laid down in Royappa is obviously applicable to

the present case, but with two distinctions, one of them being that it did not

deal with a tenure post or an appointment and replacement under a statute.

Of course and undoubtedly the post of Chief Secretary of a State and the

Director General of Police or the State Police Chief are both sensitive posts.

But the sensitivity attached to the post of a Chief Secretary has a different

dimension from the sensitivity attached to the post of the State Police Chief,

which is of a different genre. Unlike the Chief Secretary of the State, the

State  Police Chief  as  the head of  the police force  is  concerned with the

investigation  of  crimes,  law and order  and  public  order  and  not  general

executive administration.  Prakash Singh makes it very clear that the police

must be permitted to function without any regard to the status and position

7

(2009) 11 SCC 213

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of any person while investigating a crime or taking preventive measures.  In

other words, the rule of law should not become a casualty to the whims and

fancies of the political executive.  In that event, the State Police Chief might

be  pressurized  laterally  by  the  political  executive  and  vertically  by  the

Administration. It is to ensure (and that is the rationale for the decision of

this Court) that no such pressure is exerted on the State Police Chief and if

so exerted, then 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.  

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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 too would have to be thrown out

of the window if arbitrary removal from a tenure post based on a statute is

taken out of the purview of judicial review merely because the person holds

a sensitive post.  

72. We also cannot overlook the fact that in the event of any law and

order or public order situation, it is the policeman that is the first responder

and not an officer of the administration. If the authority of the first responder

were to get compromised, the citizen would not have anyone to turn to for

assistance resulting in the crumbling of the rule of law. This certainly cannot

be permitted.  This is  not  to say that  the police must  be treated with kid

gloves – all that is sought to be conveyed is that a certain degree of freedom

is required to be given to the police by insulating it from possible attempts to

control its independent functioning, and there is a good explanation for this.

73. The decision in Prakash Singh and the fashioning of the Act respect

the necessity of the tenure appointment of the State Police Chief.  Prakash

Singh made sure that the removal of the State Police Chief is not a routine

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sort of affair. However, the Act diluted this to some extent but retained the

broad contours of the law laid down by this Court in its decisions.  

74. In Royappa this Court cautioned (in the passage quoted above) against

the easy and mechanical displacement of the Chief Secretary of the State. In

our opinion the caution is equally, if not more, applicable in the case of the

Director General of Police or the State Police Chief. This Court observed

that the displacement of the Chief Secretary must be for the most compelling

reasons  and  should  not  be  arbitrary,  otherwise  it  “would  tend  to  affect

political neutrality” and lead to demoralization and frustration among public

servants.   

75. It is for this reason that as far as the police is concerned, commission

after commission recommended insulating the police from the Executive and

providing  the  force  a  degree  of  freedom,  without  political  or  executive

interference  so  that  it  could  impartially  investigate  crimes  and  take

preventive measures in law and order or public order situations.  It is this

that persuaded this Court in Prakash Singh to direct the setting up of a State

Security  Commission  so  that  the  State  Government  does  not  exercise

unwarranted  influence  or  pressure  on  the  State  police.   It  is  this  that

persuaded  this  Court  to  direct  that  three  persons  independent  of  the

government should be members of the State Security Commission (provided

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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 her post were limited and provided for in Section 97 of the

Act.  The Kerala Legislature was, perhaps, quite right in adding clause (e) to

Section  97(2)  of  the  Act  to  the  effect  that  if  there  is  serious  public

dissatisfaction about the efficiency of  the police,  a police officer may be

transferred even if he or she has not completed the normal tenure of two

years.  While  this  transfer  could be affected  by the government  on being

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prima  facie satisfied  of  public  dissatisfaction,  the  assessment  would

necessarily have to be made in an objective and not a subjective manner

otherwise  the  entre  purpose  of  a  secure  tenure  appointment  would  be

nullified. This is where there is a difference in the role of the Chief Secretary

as the chief executive of the State and the Director General of Police of a

State – their roles cannot be equated.   While the Chief Secretary can be

removed if he or she does not enjoy the confidence of the Chief Minister or

does  not  have  a  “complete  rapport  and  understanding”  with  the  Chief

Minister, the removal cannot be questioned, unless there is a violation of

some statutory or constitutional provision. But that is not so with the State

Police Chief.  The reason is not far to seek – the Cabinet colleagues of the

Chief Minister or senior bureaucrats (including the Chief Secretary) might

need to be investigated in an appropriate case. Can the Chief Minister then

remove the State Police Chief on the ground that in such an event he or she

does  not  enjoy  the  confidence  of  the  Chief  Minister  or  that  there  is  no

“complete rapport and understanding” between the State Police Chief and

the Chief Minister? The answer is quite obvious.

77. Indeed for this reason, considered in the background of the security of

tenure, each of the various clauses in Section 97(2) of the Act clearly and

unmistakably point to action being permitted against a police officer only on

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the basis of verifiable material, such as disciplinary action, involvement in a

corrupt  practice  or  a  criminal  offence,  physical  or  mental  incapacity,

assessment on the basis of evaluation of the work of an officer by a superior

etc. and not on the subjective whims and fancies of those in a position of

power. There is nothing to suggest that as compared to the other clauses in

Section 97(2) of the Act “serious dissatisfaction in the general public about

efficiency of police in his jurisdiction” must be 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

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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

Kerala8 are quite  telling  on  the  issue  of  ‘satisfaction’  of  an  executive

authority:  

“Where powers are conferred on public authorities to exercise the same when “they are  satisfied” or  when “it  appears  to  them”,  or when “in  their  opinion”  a  certain  state  of  affairs  exists;  or  when powers enable public authorities to take “such action as they think fit” in relation to a subject matter, the courts will not readily defer to the  conclusiveness  of  an  executive  authority’s  opinion  as  to  the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.

Where  reasonable  conduct  is  expected  the  criterion  of reasonableness  is  not  subjective,  but  objective.  Lord  Atkin  in Liversidge v. Anderson9 said:

“If  there  are  reasonable  grounds,  the  Judge  has  no  further duty  of  deciding  whether  he  would  have formed the  same belief any more than, if there is reasonable evidence to go to a jury,  the  Judge  is  concerned  with  whether  he  would  have come to the same verdict.”

The onus of establishing unreasonableness, however, rests upon the person challenging the validity of the acts.

Administrative decisions in exercise of powers even if conferred in subjective  terms  are  to  be  made  in  good  faith  on  relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on  the  law  or  the  facts  in  a  material  respect.  The  standard  of

8

(1974) 2 SCC 687 paragraphs 8 to  10 9

1942 AC 206, 228-229

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reasonableness  to  which  the  administrative  body  is  required  to conform  may  range  from  the  courts’  own  opinion  of  what  is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis.”

80. We are therefore clearly of opinion that the removal or displacement

of any senior level officer from a tenure appointment must be for compelling

reasons and must be justified by the concerned authority, if called upon to do

so, on material that can be objectively tested. This is what the rule of law

expects and this is what Section 97 of the Act expects - the law must be

faithfully implemented in a purposive manner.

Discussion on facts

81. We have referred to the various affidavits as well as the Notes of the

Additional  Chief Secretary for two reasons:  Firstly, no guilt  or  lapse has

been  directly  attributed  to  the  appellant  either  for  the  Puttingal  Temple

tragedy 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

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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,

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.   

82. As far as the Jisha murder case is concerned, the allegation against the

appellant is of a general nature highlighting  certain contradictions between

his report, the First Information Report and the First Information Statement.

We  ought  not  to  comment  on  these  alleged  contradictions.  The

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generalization  made  leads  to  the  conclusion  that  the  leadership  of  the

appellant was poor and that he lacked control and discipline over the police

force which eroded public confidence, notwithstanding the responsibility of

the large investigating team..

83. 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 26 th

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.  

84. The law has been well-settled for many years now that when an order

is passed in exercise of a statutory power on certain grounds, its validity

must be judged by the reasons mentioned in the order.  Those reasons cannot

be supplemented by other reasons through an affidavit or otherwise. Were

this  not  so,  an  order  otherwise  bad  in  law  at  the  very  outset  may  get

validated  through additional  grounds later  brought  out  in  the form of  an

affidavit.   

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85. In  this  context  it  is  worth  referring  to  Commissioner  of  Police  v.

Gordhandas Bhanji10 in which it was said:

“Public orders,  publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what 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.11    

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

10

AIR 1952 SC 16 11

1978 (1) SCC 405

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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 interfere in the investigations?   

87. The facts and the record of the present case indicate that the Puttingal

Temple tragedy and the Jisha murder were not the flash points necessitating

the transfer of the appellant.  The reason for his transfer was his conduct post

the Puttingal Temple tragedy in not taking action against the errant police

officers (but supporting them) and in apportioning a part of the blame on the

district  administration.  The  reference  to  the  Jisha  murder  case  was  an

attempt  at  padding  up  the  reason  while  the  reference  to  the  alleged

interference in the investigations by the CB-CID was a red herring or a ruse

- the alleged interference was not even in the contemplation of the Chief

Minster. The addition of the allegation of interference with the investigations

in the Puttingal Temple tragedy is a further attempt in that direction – to

somehow or the other nail the appellant.  

88. As already indicated above, as far as taking action against the errant

police  officers  for  the  Puttingal  Temple  tragedy  is  concerned,  the  Chief

Minister of the State also took no action for more than a month after the

Note dated 13th April, 2016 was put up by the Additional Chief Secretary

(Home).  The Chief Minister did not take any action in spite of the Note

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pinpointing the three errant police officers against whom action was required

to be taken. It is difficult to hazard a guess why no action was taken.  But in

any event, the fact of the matter is that a suo motu writ petition concerning

the  incident  and  its  aftermath  was  pending  in  the  Kerala  High  Court,  a

judicial commission chaired a former Judge of the Kerala High Court was

appointed by the State Government and investigations had been referred to

the CB-CID in this regard. Surely Senkumar cannot alone be pre-judged and

blamed for this state of affairs.

89. As  far  as  apportioning  a  part  of  the  blame  on  the  district

administration is concerned, it cannot be anybody’s case and indeed no such

submission  was  made  before  us  that  the  district  administration  had

absolutely no role to play in the Puttingal Temple tragedy.  While it is true

that a major part of the blame must rest on the police force at the ground

level, the district administration perhaps cannot be completely absolved of

its  responsibility  in  the  enormous  tragedy  that  took  place,  but  this  is

ultimately an issue that may have to be decided by the Kerala 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.

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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 placed before us does not indicate the

circumstances in  which the Assistant  Commissioner  of  Police,  Chathanur

was  transferred  out  by  the  Election  Commission  but  we  are  entitled  to

assume that  the  decision  of  the  Election  Commission in  this  regard  was

completely  bona   fide.   However,  to  attribute  oblique  motives  to  the

appellant  for  recommending  the  posting  of  a  member  of  the  Special

Investigating Team as Assistant Commissioner of Police, Chathanur so that

he is under the jurisdiction of the Commissioner of Police, Kollam City is a

little far-fetched.  The appellant had nothing to fear in the investigations by

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the CB-CID since he was not involved in the ground level arrangement in

the Puttingal Temple. It cannot be said that the recommended officer was

indispensable  to  the  Special  Investigating  Team  even  if  the  Additional

Director General of Police (Crimes) may have objected to his transfer.  It

appears to us that too much is being read into this and a hypothesis that was

not even accepted by the Chief Minister or the State Government is being

advanced as a definite conclusion. It is being assumed that even though the

appellant was completely absolved of any lapse in respect of the Puttingal

Temple tragedy, he wanted to interfere with the investigation for no apparent

reason except perhaps to benefit the Commissioner of Police, Kollam City

for no apparent reason.  There is no evidence or material to arrive at any

such conclusive opinion.

92. Learned counsel for the State Government is right in submitting that it

is  only  a  prima  facie satisfaction  that  is  to  be  arrived  at  by  the  State

Government that the general public is dissatisfied with the efficiency of the

police so as to enable a shifting out of the State Police Chief.  However, that

prima facie satisfaction must  be based on some cogent and rational material.

Nothing has been placed before us in this regard except the view that there

was dissatisfaction among the general public on the efficiency of the police.

Mere  repetition  of  the  provisions  of  Section  97(2)(e)  of  the  Act  is  not

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sufficient - there must be some material on record (other than a newspaper

report)  but  unfortunately  nothing  has  been  pointed  out  to  us  during  the

course of  submissions.  It  is  not  enough to merely contend that  the State

Government  was  subjectively  satisfied  that  the  appellant  ought  to  be

transferred out as the State Police Chief.

93. 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

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assumed office. This might perhaps be a coincidence but it might also be

politically motivated, as suggested by learned counsel for the appellant.  It is

not necessary for us to delve into this controversy nor is it necessary for us

to consider the submission of learned counsel for the State Government that

there was no politics involved in the transfer of the appellant since the first

Note was put up before the Chief Minister by the Additional Chief Secretary

(Home) as far back as on 13th April, 2016.  While this is so, it must not be

forgotten that the Note dated 13th April, 2016 did not cast any aspersion on

the appellant.   In any event, if we are asked to choose between leaning in

favour of the State or the citizen, we would certainly lean in favour of the

citizen and give him or her benefit of the doubt.

95. We are also a little disturbed with the view expressed in the detailed

counter affidavit and elsewhere that the appointment of the appellant was

irregular if not illegal. If that is so and the State Government of Kerala is

bent upon making irregular or illegal appointments to sensitive posts, then

no one can help God’s own country.

Conclusion

96. On an overall consideration of the material on record and considering

the case in its proper perspective, that is the events post the Puttingal Temple

tragedy and the Jisha murder and not the two tragedies themselves, we have

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no  hesitation  in  concluding  that  the  appellant  has  been  unfairly  and

arbitrarily dealt  with.   Under the circumstances,  we are compelled to set

aside the judgment  and order of  the Central  Administrative Tribunal,  the

impugned judgment and order of the High Court as well as the order dated

1st June, 2016 and direct the State of Kerala to reinstate the appellant Dr. T.P.

Senkumar as the State Police Chief.

97. The appeal is allowed.   

……………………………J   (Madan B. Lokur)  

New Delhi; ……………………………J April 24, 2017              (Deepak Gupta)  

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