‘Goes against principles of natural justice’: Supreme Court sets aside Himachal High Court order removing Sanjay Kundu from DGP's post

Satya Prakash

New Delhi, January 12

The Supreme Court on Friday set aside the Himachal Pradesh High Court’s order removing Sanjay Kundu from the post of the state’s Director General of Police, saying it went against principles of natural justice.

A three-judge Bench led by Chief Justice of India DY Chandrachud disapproved of the manner in which the High Court passed the initial order ex-parte for Kundu’s transfer and then refused to recall it when it got an opportunity to reconsider it.

Kundu had moved the Supreme Court challenging the Himachal Pradesh High Court’s order dismissing his plea for recall of a direction to remove him from the post of DGP over allegations of interference in an ongoing criminal probe. He had allegedly tried to pressure a businessman who claimed to have received a threat to his life from his partners.

The top court, however, chose not to interfere with the high court’s order to transfer the investigation to SIT and directed Kundu not to influence the working of the SIT. “The petitioner (Kundu) shall exercise no control over the SIT constituted in pursuance of High Court’s directions,” it ordered.

“The consequences of shifting out an IPS officer as DGP are serious. Such an order for transfer could not have been passed without an opportunity for the petitioner to contest the proceedings against him and let him file his response,” said the Bench—which also included Justice JB Pardiwala and Justice Manoj Misra.

Noting that the proper course of action was to hear the matter afresh, by recalling the first ex-parte order, instead of affording a “post-decisional” hearing, the Bench – which had on January 3, stayed his transfer from the post of the DGP—set aside the high court’s orders.

“The correct course of action would have been for the High Court to recall its ex parte order and hear the matter afresh…. Instead, the High Court in the impugned order has substantially gone by the earlier status reports. The High Court’s order suffers from a patent error of jurisdiction since an order of serious consequences was passed emanating from its directions that were not compliant with principles of natural justice…a post decisional hearing is liable to cause disquiet as there has been no fresh application of mind to hear the party not heard at first instance,” it said.

On behalf of Kundu, senior counsel Mukul Rohatgi submitted that the High Court had no power to transfer an All India Service officer in the manner it did. He said the IPS officer had virtually been made an IAS officer as the State Government posted him as Secretary, AYUSH Department.

The high court had on January 9 dismissed the petitions filed by Kundu and Kangra SP Shalini Agnihotri seeking recall of its December 26, 2023 order to the state government to transfer them to ensure that they didn’t influence the probe into the case. It had also rejected their request for a CBI probe and directed the constitution of a Special Investigation Team (SIT) comprising officers of Inspector General level to coordinate investigation in all FIRs in two weeks.

Earlier, the Supreme Court had on January 3 stayed the high court’s order to shift Kundu from the post of DGP to serve as the Principal Secretary of the Ayush Department and had granted him liberty to move the Himachal Pradesh High Court to seek recall of the order to the state government to shift him from the post of DGP.

This was Kundu’s second petition before the Supreme Court. Earlier, he had approached the top court against the High Court’s Order to shift him to ensure that he doesn’t influence the probe into the alleged harassment of Palampur businessman Nishant Sharma.

The Himachal Pradesh High Court had on December 26 ordered the state government to shift Kundu and Kangra Superintendent of Police Shalini Agnihotri to other posts before January 4, 2024, to ensure that “they didn’t have an opportunity to influence the investigation”.

Nishant had, in an email complaint to the High Court, alleged that he and his family feared for their lives as he was “attacked in Gurugram and in McLeodganj”. He had sought the High Court’s intervention on the grounds that he “needed protection from powerful people as he was living in constant fear of being killed”.

In a complaint to the High Court, Nishant had alleged threat to his life from “two extremely rich and well-connected persons, a former IPS officer and a lawyer, as the complainant and his father had not yielded to their pressure”.

The High Court, while maintaining that “exceptional circumstances did exist for its intervention”, said it was desirable that the DGP and the SP must be shifted out to “ensure fair investigation in the FIRs lodged in the case”.

Kundu had allegedly repeatedly attempted to contact the complainant on October 27 (15 missed calls) and had put the complainant under surveillance and filed an FIR against him. He also filed a defamation case against the businessman on November 4, accusing him of attempting to malign his image.