THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. RAJENDRAN & ORS. ETC.

A Central Bureau of Investigation for such period as it may deem proper. There cannot be any quarrel to the above provision nor applicability of the above provision in facts of the present case. Present is not a case where Government has decided to extend the services of respondent No.2. It is relevant to note that the High Court issued direction in paragraph 45(1) appointing respondent No.2 as a Special Officer to head Idol Wing- B 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 w.e.f. 30.11.2018. 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. Learned Attorney has taken 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, learned counsel for respondent No.2 has fairly submitted before us 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. We are of the view that 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 to 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. We, however, make it clear that any pay and benefits which have already been extended to respondent No.2 shall neither be recovered nor adjusted.

54Copy pinpoint54. We, thus, conclude that the High Court in exercise of jurisdiction under Article 226 can very well direct respondent No.2 to head the Special Investigation Team to carry out investigation and other functions after attaining the age of superannuation. We, further, hold that directions of the High Court dated 30.11.2018 to continue respondent No.2 in Idol Wing of CID after his superannuation is sustainable.

55Copy pinpoint55. Learned Attorney General as well as Shri Mukul Rohtagi further submitted that there are allegations against respondent No.2, several H

THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 813 RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]

complaints were filed and it cannot be said that the respondent No.2 is the competent officer to continue as head of the Idol Wing. It is submitted that respondent No.2 in the writ petition has filed affidavit on 27.11.2018 with regard to which there was no opportunity given to the appellant to file reply. Alongwith affidavit dated 27.11.2018 several self-serving documents were brought on record by respondent No.2 which were relied by the High Court. It is, further, submitted that alongwith I.A.No.180358 of 2018 as well as I.A.No.30023 of 2019 details of various complaints were brought on record before this Court. On the basis of which it is clear that respondent No.2 cannot claim to be an officer with clean records and officer having no complaints.

56Copy pinpoint56. Learned counsel appearing for the PIL refuting the above submission submitted that before the High Court no grievance was raised against respondent No.2 regarding his competence or complaints against him, it is only after the orders have been passed by the High Court on 30.11.2018 that certain complaints were obtained against respondent No.2 which are sought to be filed along with I.A.No.30023 of 2019. It is submitted that complaints which have been brought on record are complaints which were obtained in the third and fourth week of December, 2018. 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 in paragraph 34 of the judgment has noticed the statement of learned Additional E Advocate General that there are no allegations against respondent No.2 except that he has not submitted the report to Additional Director General of Police. Following observation was made by the High Court in paragraph 34: “34. Even earlier, during the earliest of hearings, when it was F mentioned before this Court about such conduct of the Police Department, the learned Additional Advocate General fairly submitted that the only blemish on the part of the officer is that he has not submitted the reports to the Additional Director General of Police and that apart there are no allegations against him.” G

57Copy pinpoint57. The reasons for directing respondent No.2 to continue have been set out by the High Court in paragraph Nos. 35 to 41. 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 H

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A 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. Following has been stated in paragraph 35: “35. Now, considering that the Government order has been quashed and that the State is not inclined to continue the cases, B the CBI has categorically refused to take up the cases and expressed its intention to assist the existing team; that the Central Government has so far remained silent, an extraordinary situation has arisen, by which, a vacuum has been created and this Court has to take a timely decision to protect the idols and treasures of the temples. Hence it has become just and necessary for this C Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulate a solution to bring about a continuity in the investigation and to safe guard the idols, which are valuable properties of this country. It has come to the knowledge of this Court that Mr.A.G.Pon Manickavel, I.P.S in the rank of Inspector General of Police is attaining superannuation in the forenoon of 30.11.2018. The credibility of the officer is evident from the fact he has been fair and impartial in his actions. This Court is also satisfied with the procedure followed by him in securing the accused. It was also brought to the knowledge of this Court, that even recently, more than 250 idols were unearthed by him based on the information received from credible sources. Some idols were also recovered during transit. He has been able to keep the informants intact and show tremendous progress.”

58Copy pinpoint58. 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. In paragraph 40 of the judgment, the High Court also noticed the Performance Appraisal Report of respondent No.2 and it noticed that respondent was assessed by 28 officers and he has been given excellent grading by 27 officers, except one officer who made adverse remarks which had been set aside by the Central Administrative G Tribunal. We, thus, are of the view that 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 which observations were extracted by the High Court in support of its conclusion. H

THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 815 RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]

59Copy pinpoint59. The statement of Additional Advocate General noted by the A High Court in paragraph 34 clearly indicates that before the High Court there were 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. The complaints which have been now referred to and relied by the appellant are the complaints which have been submitted after the B judgment of the High Court. Alongwith I.A.No.10291 of 2018 the petitioners have referred to certain complaints in paragraph 6 in tabular chart. The said chart indicates that complaints are of 17, 18 and 26 December, of 2018. They are the complaints which were submitted even after the filing of the SLP in this Court. We are not required to enter into correctness or otherwise of the allegations in the complaints. C 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, we are not persuaded to accept the submission of the appellant that respondent D No.2 was not a fit person to be allowed to head the Idol Wing after 30.11.2018. In so far as submission of learned counsel for 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 paragraph 34 of the judgment where High Court observes “As an affidavit was filed on 27.11.2018, again a direction in similar lines was issued by us on E 27.11.2018 to place any materials if available before this Court. However, till date no such materials have been placed before us.” We, thus, are of the view that the High Court had given opportunity to place the materials, if any. We, thus, are of the view that the High Court did not commit any error in directing respondent No.2 to continue to head the Idol Wing F after his superannuation on 30.11.2018. Issue No.5

60Copy pinpoint60. Now we come to the 10 directions issued by the High Court in paragraph 45 of the judgement which have been assailed by the learned Attorney General on the ground that each and every direction is contrary G to law. We will take up each direction separately: (1) 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. We have already while H

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A considering Issue Nos.3 and 4 held that respondent No.2 could have been directed to work as a Special Officer to head Idol Wing-CID, hence, we do not find any error in direction No.1. (2) 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. (3) 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. We are of the view that 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/re-engagement 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 learned counsel for respondent No.2 has submitted that respondent No.2 is ready to carry on his duty as entrusted by the High Court even without receiving any emoluments. We are of the view that in the facts and circumstances of the case, direction No.3 deserves to be 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. We further observe that 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. (4) 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. We have noticed that an G 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 scrutinising each and every report and requiring each and every report to be submitted before the Court. There being a higher Officer H posted in the Idol Wing, progress and result of the

THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 817 RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]

investigation ought to have been reported to Additional A Director General of Police and the report in the High Court was necessary when certain directions were required by the Special Officer. We modify direction No.4 to the effect that report of progress of the investigation shall be submitted to the Additional Director General of Police of Idol Wing B and report to the High Court may be submitted by the Special Officer only when any further directions are required from the High Court. (5) 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. (6) 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. (7) With regard to direction 7 serious objection has been raised by the learned Attorney General. He submits that the said direction gives exemption to respondent No.2. The E respondent No.2 cannot be held above law. We are of the view that no one including respondent No.2 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 F respondent No.2. The liberty given in direction No.7 amply protects the interest of the State which needs no interference. (8) Direction No.8 pertains to communications to concerned Departments to extend co-operation to the Special Team with which no exception can be taken. G (9) With regard to direction No.9, learned Attorney General submits that the High Court ought not to have given any direction with regard to financial aspects. He submits that there is a procedure for allocation of finances for which passing of budget is required. It is to be noted that Idol H

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A 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. We are of the view that 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 B 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, thus, is to be deleted. (10) Direction No.10 is general direction to which no exception can be taken. C Issue No.5 is decided accordingly. Issue No.6

61Copy pinpoint61. The High Court while delivering judgment on 30.11.2018 noticed the order dated 29.11.2018 which was brought into the notice of the Court by respondent No.2 with regard to which observation has been made by the High Court in paragraphs 47 ad 48 of the judgment. In paragraphs 47 and 48 following has been observed: “47. When we are about to pronounce this order, the petitioner in WP.No.20392 of 2018 produced a copy of the proceedings issued by the Government of Tamil Nadu in Police Note No.SC/19/2018 dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh, IPS, Additional Director General of Police/Chief Vigilance Officer, Tamil Nadu Newsprint and Papers Limited, Karur has been transferred and posted as Additional Director General of Police, F Idol Wing, CID, Chennai by upgrading the post of Inspector General of Police, Idol Wing CID.

48. We are of the view that the State all along, is not inclined to continue with the investigation of idol theft cases as the same were transferred to CBI despite pendency of the stay order of this Court. It is also pertinent to note that after the orders were reserved, they have upgraded the post of the Additional Director General of Police and appointed an officer, by order dated 29.11.2018, which action is inappropriate and it would amply prove the transfer of cases in a most hurried manner within a single day i.e., on 01.08.2018. Similarly, the manner in which the present order dated 29.11.2018 has been passed, will speak for itself.

THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 819 RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]

Hence, notwithstanding the order dated 29.11.2018 passed by the A Government, which has become redundant, Tr.A.G.Pon Manickavel shall take charge as Special Officer to head the Idol Wing as ordered by us, in order to preserve the idols as well as recovery of the stolen idols to uphold the cultural heritage of this land.” B

62Copy pinpoint62. The above observation itself indicates that 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. Without there being any challenge to the order dated 29.11.2018, the High Court was not right in observing that order dated 29.11.2018 has become redundant. We, thus, disapprove the observation made by the High Court in paragraphs 47 and 48 that the order dated 29.11.2018 has become redundant. 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. The Idol Wing shall be headed by the Additional Director General of Police. We, however, observe that 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. Issue No.6 is, thus, answered accordingly.

63Copy pinpoint63. Before we close, we need to clarify one aspect and notice one necessary caution with regard to what has been said above, i.e., F (i) 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. (ii) There might arise exceptional cases where the direction for G 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 H

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A 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.

64Copy pinpoint64. In view of the foregoing discussions, the appeals are partly allowed. The judgment of the High Court is modified to the following extent:- (1) The direction No.9 issued in paragraph 45 of the judgment of the High Court is deleted and directions Nos.3 and 4 are C modified as indicated in paragraphs 60(3) and 60(4) of this judgment. (2) The order of the High Court in paragraph 48 that the Government order dated 29.11.2018 has become redundant is set aside.

65Copy pinpoint65. Parties shall bear their own costs.

Nidhi Jain Appeal partly allowed.