Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959: Idol theft cases – Idol Wing of Crime Investigation Department handling investigation, detection and follow up of such cases – Hindu Religious and Charitable Endowments Department of the State controlling and managing the temples, idols and artefacts – Letter by Commissioner, Hindu Religious and Charitable Endowments to Director General of Police pointing out various complaints of his officers received by him against Idol Wing of Police – By G.O. dated 01.08.2018, State of Tamil Nadu transferring all the under investigation cases being investigated by the Special Team constituted for Idol theft cases and all such future cases to the CBI – Justification of – Held: It was known fact that there were allegations and FIRs against few officers of HR & CE and complaints submitted by the Commissioner against the Idol Wing of the Police ought not to have been accepted outrightly without conducting any enquiry – Even if there was some truth in the complaints made by the Commissioner, the same ought to have been enquired and informed decision ought to be taken by the Government – On a single letter of the Commissioner suddenly no opinion could have been formed that Idol Wing of the Department is not doing its job – Decision to transfer the cases to CBI was hurriedly taken within one day on a complaint received by the Commissioner without making any inquiry and the decision of the Government cannot be said to be an informed decision – When the matters pertaining to Idol Thefts were already under investigation by SIT constituted under the order of the High Court, it was appropriate that the State Government ought to have apprised the Court before issuing any Government order for transferring the cases – In any view of the matter looking to the large number of cases of idol thefts cases and cases to come in future regarding idol thefts, the CBI was not appropriate investigating agency to be requested by the State – CBI itself has expressed its inability to undertake such huge exercise – Thus, the High Court did not commit any error in quashing the Government order dated 01.08.2018.
Constitution of India:
Art. 226 – Jurisdiction under – Exercise of – Respondent no. 2-police officer, heading Idol Wing has been supervising Idol theft cases and efficiently traced and recovered several idols worth several crores – Direction by the High Court appointing respondent no 2 after his superannuation to head a Special Investigation Team (SIT) to carry out investigations and other functions, which can be exercised by a police officer under CrPC – Sustainability of – Held: Jurisdiction of constitutional courts u/Arts. 226 and 32 can be used to forge new methodology to achieve the constitutional objectives – For sufficient reason investigation can be handed over to a person who is retired or no longer in employment – Government can issue orders enabling respondent no. 2 to carry on functions as per the direction – High Court in exercise of jurisdiction u/Art. 226 could very well direct respondent No.2 to head the SIT to carry out investigation and other functions after attaining the age of superannuation – Thus, the directions of the High Court to continue respondent No.2 in Idol Wing of CID after his superannuation is sustainable.
Art. 226 – Jurisdiction under – Exercise of, by the High Court – Scope and ambit of – Held: Power given to the High Court u/Art.
226 is of very wide nature which does not contain any fetter except self-imposed restrictions – High Court while exercising jurisdiction u/Art. 226 shall not issue any direction which is contrary to law. Partly allowing the appeal, the Court
HELD: 1.1 In the letter dated 31.07.2018 by Commissioner, HR & CE to Director General of Police, the Commissioner pointed out various complaints of his officers which were received by him in writing and orally. The Commissioner stated that HR and CE Department is facing a crisis. The Commissioner wrote to the Director General to ensure a fair and confidential investigation and bring the culprits to book, without damaging the reputation of honest officials and the Department. By a letter of 31.07.2018 itself Additional Director General of Police made recommendation to the Director General of Police to transfer all cases under investigation being investigated by the Special Team constituted for the Idol Theft cases to the CBI. The Director General on the next day i.e. 01.08.2018 recommended for transferring the cases to the CBI, on the same day the GO dated 01.08.2018 was issued. The entire process for transferring cases to the CBI was completed within one day on complaints submitted by the Commissioner. The High Court order dated 21.07.2018 has directed for holding departmental inquiry against certain officers of HR & CE. FIRs were registered against the officers of the HR & CE Department and other accused. Thus, it was known fact that there were allegations and FIRs against the few officers and complaints submitted by the Commissioner against the Idol Wing of the Police ought not to have been accepted outrightly without conducting any enquiry. Even if there was some truth in the complaints made by the Commissioner, the same ought to have been enquired and informed decision ought to be taken by the Government. The Idol Wing had been carrying out its work for the last more than three decades, several Idols were recovered and cases launched and prosecutions were accomplished. On a single letter of the Commissioner suddenly no opinion could have been formed that Idol Wing of the Department is not doing its job. The Higher Police authorities and State was fully competent to take action against any officer of the Idol Wing, if any excess or misdeeds were reported against any officer of the Idol Wing. The letter of the Commissioner dated 31.07.2018 does not refer to any written complaint by HR & CE Department to Police, higher authorities or the Government in the above regard. The decision to transfer the cases to CBI was hurriedly taken within one day on a complaint received by the Commissioner without making any inquiry and the decision of the Government cannot be said to be an informed decision. [Para 32][798-F-H; 799-A-E]
1.2 The High Court in the impugned judgment gave detail of reasons for quashing the order dated 01.08.2018. The High Court in its order dated 21.07.2017 has already directed to constitute a SIT of the Officers of the Idol Wing to carry on the investigation and follow up pending trial. The compliance of the said order was under consideration before the Court. The Additional Chief Secretary to the Government, after receiving letter from Additional Director General of Police, wrote a letter dated 01.08.2018 to the Additional Advocate General in making a request. The Advocate General brought to the notice of the Bench of the letter dated 01.08.2018 and wrote back to the Additional Chief Secretary to the Government that Division Bench of the High Court has observed that communication, decisions or orders be placed before the Court in the next hearing to be held on 08.08.2018. When the matters pertaining to Idol Thefts were already under investigation by SIT constituted under the order of the High Court, it was appropriate that the State Government ought to have apprised the Court before issuing any Government order for transferring the cases. In any view of the matter looking to the large number of cases of Idol Thefts cases and cases to come in future regarding Idol Thefts, the CBI was not appropriate investigating agency to be requested by the State. The CBI itself has expressed its inability to undertake such huge exercise, the High Court did not commit any error in quashing the Government order dated 01.08.2018. [Para 35, 36][800-E-H; 801-A-C]
2.1 Article 226 of the Constitution of India confers to the High Courts wide powers in the matter of issuing writs which they never possess before. Article 226 of the Constitution is couched in very wide words, power given to the High Court are both plenary and inherent. The power under Article 226 is not confined only to issue specified writs but power conferred to the High Court is to issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of the rights conferred by Part III and for any other purpose. The power given to the High Court under Article 226 is power of very wide nature which does not contain any fetter except self-imposed restrictions. It is well settled that the High Court while exercising jurisdiction under Article 226 shall not issue any direction which is contrary to law. [Para 38, 42][801-G-H; 802-A-B; 803-F]
Constitution of India by Durga Das Basu Vol.6 8th Edn 2010 – referred to.
2.2 Different High Courts and this Court have passed several orders constituting Special Investigation Team to carry out investigations in cases where such requirement was found necessary. Retired Police Officers have been included to be part of SIT or to head a SIT. The jurisdiction of constitutional courts under Article 226 and Article 32 can be used to forge new methodology to achieve the constitutional objectives. No fetter can be read in the jurisdiction under Article 32 or 226. For sufficient reason investigation can be handed over to a person who is retired or no longer in employment. The functions which are to be performed by that person is under authority of Court’s order. There may be varied situations and circumstances where a former officer is entrusted with an investigation or any other function to achieve an object or purpose. When the constitutional courts direct particular officer to carry on specific job that order cannot be treated to be put that person in office of that post with all necessary consequences. The particular object is entrusted or only a specific job is entrusted to the officer which he has to carry. The Court in issuing such direction neither creates any ex-cadre post nor affects the post of officer by giving any kind of appointment to a post. The violation of All India Services Act, 1951 or Rules framed thereunder cannot be read in entrustment of specific job to a retired officer. All India (Death-cum-Retirement Benefits) Rules, 1958 of the extension in service to the incumbents of the posts of the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such period as it may deem proper. There cannot be any quarrel to the said provision nor applicability of the provision in facts of the instant case. In the instant case the Government has not decided to extend the services of respondent No.2. The High Court issued direction appointing respondent No.2 as a Special Officer to head Idol Wing-CID, Chennai to deal with the cases of theft of Idols and antiques in all stages, for a period of one year, after his superannuation. The Court further directed “the Government to pass orders to that effect”. The Court clearly intended that in the above regard Government may pass appropriate orders. It is open for the Government to issue orders enabling respondent No.2 to carry on functions as per the direction. The Attorney took exception to direction No.3 by which it is directed that respondent No.2 shall draw the same pay and benefits that were available to him at the time of his retirement as Special Officer. On objection being raised to the said direction, the counsel for respondent No.2 submitted that respondent No.2 is ready to carry on and discharge his duties as per orders of this Court without drawing any pay and benefits as .directed by the High Court. The High Court instead of issuing direction No.3 ought to have given option to the State Government either to continue/re-employ respondent No.2 or in alternative fix some honorarium for the duties entrusted on respondent No.2. The State Government having not passed any order in consequence of which respondent No.2 may continue in the office of Inspector General of Police, justice would be served when the State Government is directed to pay some honorarium during the period respondent No.2 performed his duties under the order of the Court in addition to his pension. However, it is made clear that any pay and benefits which have already been extended to respondent No.2 shall neither be recovered nor adjusted. [Paras 48, 53][808-C; 811-B-H; 812-A-F]
2.3 The High Court in exercise of jurisdiction under Article
226 can very well direct respondent No.2 to head the SIT to carry out investigation and other functions after attaining the age of superannuation. The directions of the High Court to continue respondent No.2 in Idol Wing of CID after his superannuation is sustainable. [Para 54][812-G]
2.4 The High Court in the impugned judgment before issuing a direction to continue respondent No.2 in the Idol Wing has thoroughly examined the credential of respondent No.2. The High Court has noticed that there are no allegations against respondent No.2 as to come to the conclusion that he was not a fit person to be directed to continue in the idol wing except that he has not submitted the report to Additional Director General of Police. The reasons for directing respondent No.2 to continue have been set out by the High Court. The High Court has taken note of the fact that the Government order dated 01.08.2018 transferring the cases to CBI having been quashed, it has become just and necessary for the Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulate a solution. In paragraph 36 the Court has noticed the details of the work accomplished by Idol Wing and the Idols recovered by the SIT headed by respondent No.2. The High Court had after due examination of all relevant documents taken a decision to continue respondent No.2 to head the Idol Wing. The High Court has referred to various judgments of the High Court and this Court where work and conduct of respondent No.2 was appreciated. [Paras 56–58][813-D-F; G-H; 814-F; G-H]
2.5 The complaints which have been now referred to and relied by the appellant are the complaints which have been submitted after the judgment of the High Court. They are the complaints which were submitted even after the filing of the SLP in this Court. The High Court in its direction has observed that if there are materials against respondent No.2 the same can be placed before the High Court for further direction. On the strength of the complaints which are subsequently submitted after the judgment of the High Court, the submission of the appellant that respondent No.2 was not a fit person to be allowed to head the Idol Wing after 30.11.2018 cannot be accepted. In so far as submission of the appellant that after filing of the affidavit on 27.11.2018 by the respondent No.2 no opportunity was given to the appellant, it is useful to extract the judgment where High Court observed that as an affidavit was filed on 27.11.2018, again a direction was issued on similar lines by this Court to place any materials if available before this Court. However, till date no such materials have been placed before this Court. The High Court had given opportunity to place the materials, if any. The High Court did not commit any error in directing respondent No.2 to continue to head the Idol Wing after his superannuation. [Para 59][815-B-F]
Dwaraka Nath v. Income-tax Officer AIR 1966 SC 81: 1965 SCR 536 ; Rohtas Industries Ltd. And another v. Rohtas Industries Staff Union and others (1976) 2 SCC 82 : [1976] 3 SCR 12 ; Air India Statutory Corporation and others v. United Labour Union and others (1997) 9 SCC 377 : [1996] 9 Suppl. SCR 579 ; Vineet Narain and others v. Union of India and another (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 ; M.C. Mehta and another v. Union of India and others 1987
(1) SCC 395 : [1987] 1 SCR 819 ; Guruvayoor
Devaswom Managing Committee and another v. C.K. Rajan and others (2003) 7 SCC 546 : [2003] 2 Suppl. SCR 619; Ranjitsing Brahmajeetsing Sharma and Ors. v. Kisan Baburao Hazare and Ors. 2004 (3) MhLJ 760; R. Sankarasubbu v. The Commissioner of Police, Egmore, Chennai 2013 (1) CTC 1 ; Advocates
Association, Bangalore v. Union of India and others (2013) 10 SCC 611 : [2013] 10 SCR 813 ; Sunita Devi and Another v. Union of India and others (2018) 3 SCC
664 ; Board of Control for Cricket in India v. Cricket Association of Bihar and others 2014 (7) SCC 385 – referred to.
3. By direction No.1, respondent No.2 was directed to function as Special Officer to head Idol Wing-CID, Chennai on his superannuation on 30.11.2018. The Government was directed to pass orders to that effect. It has been held that respondent No.2 could have been directed to work as a Special Officer to head Idol Wing-CID, thus, there is no error in direction No.1. With regard to direction No.2, Special Team was already constituted by the earlier order of the High Court dated 21.07.2017 which was directed to be continued to which direction no exception can be taken. With regard to direction No.3, it was directed to respondent No.2 to draw the same pay and benefits that were available to him at the time of his retirement for the entire tenure of his term as Special Officer. Instead of such direction, the High Court ought to have given an option to the State Government either to pass an order for re-employment/reengagement or the liberty ought to have been given to State to fix some honorarium in addition to pension which would have been drawn by respondent No.2. During the course of hearing it was submitted for respondent No.2 that he is ready to carry on his duty as entrusted by the High Court even without receiving any emoluments. In the facts and circumstances of the case, direction No.3 is modified to the effect that the State shall fix a honorarium to be paid to respondent No.2 in addition to pension to be drawn by him. In the event any amount has already been paid to respondent No.2 in pursuance to the direction of the High Court, the same shall not be recovered and adjusted. By direction No.4 the High Court directed the Special Officer to investigate the cases thoroughly and submit all the reports before the Court in a sealed cover to enable the Court to monitor the investigation. It is noticed that an Additional Director General of Police was appointed to head the Idol Wing by order dated 29.11.2018, it was not necessary for the High Court to burden itself with scrutinizing each and every report and requiring each and every report to be submitted before the Court. There being a higher Officer posted in the Idol Wing, progress and result of the investigation ought to have been reported to Additional Director General of Police and the report in the High Court was necessary when certain directions were required by the Special Officer. Direction No.4 is modified to the effect that report of progress of the investigation shall be submitted to the Additional Director General of Police of Idol Wing and report to the High Court may be submitted by the Special Officer only when any further directions are required from the High Court. With regard to direction No.5, by this direction the Special Officer is directed to continue to not only investigate and file charge sheets and prosecute in the pending cases but also to continue to do so in the cases arising in future during his tenure. No exception can be taken. The direction No. 6 which requires CBI and other agencies of Central Government shall continue to give appropriate support to the Special Officer. No exception can be taken since CBI itself sent letter dated 19.09.2018 communicating its support. With regard to direction 7 serious objection has been raised by the Attorney General. He submits that the said direction gives exemption to respondent No.2. The respondent No.2 cannot be held above law. No one is above the law. The High Court has given liberty to the State or any competent authority to place the materials before the Court for further direction if there are any materials against respondent No.2. The liberty given in direction No.7 amply protects the interest of the State which needs no interference. Direction No.8 pertains to communications to concerned Departments to extend co–operation to the Special Team with which no exception can be taken. It is to be noted that Idol Wing has been created by the State in 1983 and for several decades Idol Wing has been continuing without provision of any separate division to handle the financial aspects. There was no such requirement to issue any direction to create such division to handle the financial aspects. The Idol Wing has to be run as per budget allocation and in any case of requirement it is always open to the higher Police authorities and State Government to do the needful. Direction No.9 as regards financial aspects is deleted. Direction No.10 is general direction to which no exception can be taken. [Para 60][815-G-H; 816-A-H; 817-A-H; 818-A-C]
4. By the Government order dated 29.11.2018 the post of Inspector General of Police was upgraded as Additional Director General of Police who was appointed by the State Government on 29.11.2018. The order dated 29.11.2018 being not under challenge in the writ petition, it was not necessary for the High Court to make any observation in that regard. The High Court was not right in observing that order dated 29.11.2018 has become redundant. The observation made by the High Court in paragraphs
47 and 48 that the order dated 29.11.2018 has become redundant is disapproved. Order dated 29.11.2018 was a Government order which was not challenged in the writ petition, the same shall remain effective that the Idol Wing shall be headed by the Additional Director General of Police appointed on 29.11.2018. However, the Special Officer shall take all appropriate steps along with his Team and he shall submit report to the Additional Director General of the result of the investigations so that appropriate further action be taken. [Para 62][819-B-E]
5. Insofar as filing of the statutory reports as per the procedure prescribed in the Code of Criminal Procedure, necessary reports have to be filed by the officer authorized as per Code of Criminal Procedure. There might arise exceptional cases where the direction for appointment of retired officers may be unavoidable to achieve the goal of justice but the High Court may resort to the power under Article 226 only after weighing all pros and cons and after exhausting all options and as a matter of last resort. Taking services of a retired police officer or any other retired personnel is not to be normally resorted to since in the State concerned, there is always no dearth of competent and able officers, hence whenever the Court finds it necessary to take assistance of services of the retired officers or personnel, it should be with necessary caution and resorted to only when there are very valid and unavoidable circumstances. [Para 63][819-F-H; 820-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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