Supreme Court sets aside High Court order ousting Sanjay Kundu as DGP of Himachal

Satya Prakash

New Delhi, January 12

In a major relief to senior IPS officer Sanjay Kundu, the Supreme Court on Friday set aside the Himachal Pradesh High Court’s order removing him from the post of the state’s Director General of Police, saying it went against the principles of natural justice as he was not heard. A three-judge Bench led by Chief Justice of India DY Chandrachud disapproved of the manner in which the HC passed the initial ex-parte order for Kundu’s transfer and then refused to recall it when it got an opportunity to reconsider it following the top court’s directions.

“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.

The Bench, which had on January 3 stayed Kundu transfer from the post of the DGP, set aside the HC orders, paving the way for his reinstatement to the top cop of the state.

Noting that the HC directions were not compliant with the principles of natural justice, the Bench said, “It would be appropriate to set aside the directions of transfer and refusal to recall the said order.”

Kundu was removed as Himachal DGP and shifted as Secretary, Ayush Department, following HC’s December 26 order over allegations of interference in an ongoing criminal probe and attempting 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 HC order to hand over the investigation to an SIT. “The petitioner (Kundu) shall exercise no control over the SIT constituted in pursuance of High Court’s directions,” it ordered.

Maintaining 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 lamented there was no fresh application of mind to hear the party not heard at the first instance.

Kundu had moved the SC challenging the HC’s January 9 order dismissing the petitions filed by him and Kangra SP Shalini Agnihotri seeking recall of its December 26, 2023, order to the state government to transfer them to ensure they didn’t influence the probe into the case.

On behalf of Kundu, senior counsel Mukul Rohatgi submitted the HC had no power to transfer an All-India Services 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.

These allegations against Kundu related to the alleged harassment of Palampur businessman Nishant Sharma due to which the HC had on December 26 ordered the state government to shift him and Kangra SP Shalini Agnihotri to other posts before January 4, 2024, to ensure “they didn’t have an opportunity to influence the investigation”.

Nishant had, in an email complaint to the HC, alleged he and his family feared for their lives as he was “attacked in Gurugram and in McLeodganj”. He had sought the HC’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 HC, Nishant had alleged threat to 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”.

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

Kundu had allegedly attempted to contact the complainant repeatedly on October 27 (15 missed calls) and put the complainant under surveillance, and filed an FIR against him.