Police Complaints Authority - Conditions of Service including the Tenure - Power is with the Government [JUDGMENT]

Kerala Police Act, 2011 - Section 130 (2) - Police Complaints Authority - Since the rule making power is with the Government, the Government is perfectly competent to issue executive orders fixing the conditions of service including the tenure of the Chairperson and Members of the Authority.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANU SIVARAMAN, J.

W.P(C).Nos. 41070 & 41342 of 2018

Dated this the 10th day of January, 2019

PETITIONER/S:

THOMAS PALLICKAPARAMBIL, AGED 66 YEARS MEMBER, STATE POLICE COMPLAINTS AUTHORITY

BY ADV. SRI.MATHAI M PAIKADAY(SR.)

RESPONDENT/S:

1 STATE OF KERALA, REP. BY ADDITIONAL CHIEF SECRETARY, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

2 THE SECRETARY STATE POLICE COMPLAINTS AUTHORITY, T.C.NO.XV/1402, TAGORE NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014.

BY ADV. SRI.V.MANU, SENIOR GOVT. PLEADER

PETITIONER/S:

K.S. BALASUBRAMANIAN I.P.S.(RETIRED), AGED 63 YEARS MEMBER, STATE POLICE COMPLAINTS AUTHORITY, THIRUVANANTHAPURAM-695014.

BY ADV. SRI.N.NANDAKUMARA MENON (SR.)

RESPONDENT/S:

1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2 THE ADDITIONAL CHIEF SECRETARY, HOME AND VIGILANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

3 THE SECRETARY, STATE POLICE COMPLAINTS AUTHORITY, TAGORE NAGAR, VAZHUTHACAD, THIRUVANANTHAPURAM-695014.

BY ADV. SRI.V.MANU, SENIOR GOVT. PLEADER

J U D G M E N T

These writ petitions are filed by two non-official Members of the State Police Complaints Authority. The petitioner in W.P(C).No.41070 of 2018 seeks directions to the respondents not to issue any executive orders interfering with the functioning of the said Authority or to deal with the continuation of the petitioners as Members of the Authority until Rules are framed as also a declaration that under the provisions of the Kerala Police Act, 2011 (for short, 'the Act'), the Government is no longer empowered to issue any orders for the purpose of removing any difficulties. The relief sought in W.P(C).No.41342 of 2018 is to permit the petitioner to continue as non-official Member of the Authority till the term of office of non-official Member is prescribed by the Government as contemplated under Section 110(1)(5) of the Act.

2. Heard Sri.Mathai M.Paikeday, the learned Senior Counsel appearing for the petitioner in W.P(C).No.41070 of 2018, Sri.N.Nandakumara Menon, the learned Senior Counsel appearing for the petitioner in W.P(C).No.41342 of 2018 and Sri.V.Manu, the learned Senior Government Pleader appearing for the respondents.

3. The learned Senior Counsel appearing for the petitioner in W.P(C).No.41070 of 2018 would contend that Section 129 of the Act provides for the framing of Rules for the purpose of carrying out the purposes of the Act. Section 129(2) of the Act states that the Rules may provide for all or any of the following matters, namely, (a) all matters expressly required or allowed by this Act to be prescribed; and (b) all other matters which are or may be prescribed. It is stated that the State Police Complaints Authority is constituted under Section 110 of the Act. Section 110(5) provides that the terms and conditions of service, salary of the members of the State Authority, District Authorities and the procedure of the authorities shall be such as may be prescribed. It is therefore contended that the term of office of the Members of the Authority is to be prescribed by Rules framed by the Government. It is contended that draft rules had been framed by the Authority itself and forwarded to the Government, but no further steps had been taken to place the Rules before the Legislative Assembly as required by Section 129(3) of the Act. It is contended that the respondents are issuing orders in terms of Section 130 of the Act. It is stated that the State Government does not have the power to issue any such executive instructions for removal of all difficulties after expiry of the period of two years of the commencement of the Act.

4. The learned Senior Counsel appearing for the petitioner in W.P(C).No.41342 of 2018 would contend that the Authority is constituted in terms of Section 110 of the Act by Exhibit P1 proceedings dated 17.2.2012. It is stated that the said order did not contain any provision with regard to the term of office of the Members of the Authority. By Exhibit P2 proceedings, it is stated that, the Chairperson of the State Police Complaints Authority had, as per letter dated 1.3.2012, submitted a proposal for framing of the Rules regarding the terms and conditions of the Chairperson and the Members of the Authority. The Government had examined the proposal. As framing of Rules would be time consuming, the Government had decided to fix salaries and allowances of the Chairperson and non-official Members of the Authority. The pay and allowances of the Chairperson and Members were therefore fixed. Thereafter, Exhibit P3 proceedings were issued on 1.11.2012. It is stated that the Chairperson had, by letter dated 18.2.2012, requested the Government to fix the term of office of the Chairperson and Members of the Authority. It is stated in Exhibit P3 as follows:

“Government have examined the matter in detail and are pleased to fix the term of office of the Chairperson and the two non-official Members (other than ex-officio members of the Authority) as 3 (three years with effect from the date of their assuming the office.”

5. Thereafter, by Exhibits P4 and P5, the term of office of the nonofficial members had been extended initially by six months and thereafter till successor members were appointed. By Exhibit P6, the petitioners in these writ petitions had been appointed as non-official Members of the Authority. Exhibit P1 notification was amended by inserting the names of the petitioners as members. The explanatory note to Exhibit P6 states that the term of earlier members having expired on 21.8.2015, the Government had decided to appoint the petitioners as Members of the Authority. It is contended by the learned Senior Counsel that the draft rules framed by the Authority and forwarded to the Government specifically contained a condition that the term of office of the Chairperson and the Members of the Authority would be five years. It is submitted that the term of all co-equal offices including State Human Rights Commission is five years and that there is no reason in departing from the provisions in the draft rules in the case of the petitioners.

6. The learned Senior Counsel appearing for the petitioner in W.P(C).No.41070 of 2018 would contend that the provisions of the draft rules are liable to be followed and that further executive orders cannot be issued to deny the right of continuance to the petitioner. The learned Senior Counsel has relied on the decisions of the Apex Court in Union of India v. V.Ramakrishnan [(2005) 8 SCC 394] and Vimal Kumari v. Stae of Haryana [(1998)4 SCC 114] to contend that draft rules are liable to be followed where such rules are in existence and it is only where no draft rules are available that departmental instructions or executive orders can be relied on. The decisions of the Apex Court in Mahabir Vegetable Oils (P) Ltd. v. State of Haryana [(2006)3 SCC 620] and Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association [(2009)8 SCC 492] are also relied on in support of his contention.

7. The learned Senior Counsel appearing for the petitioner in W.P(C).No.41342 of 2018 would contend that the State Police Complaints Authorities are constituted following a decision of the Apex Court in Prakash Singh v. Union of India [(2006)8 SCC 1]. It is stated that the Apex Court had specifically considered the necessity for independent body for considering complaints against Police Officers and had stated that the Authorities shall function without interference from the Government or the Department. It is therefore stated that the action taken by the respondents to terminate the engagement of the petitioners without permitting them to continue in office for the term of five years as fixed by the Authority is completely vitiated by extraneous considerations.

8. The learned Senior Government Pleader appearing for the respondents contended that it is clearly for the Government to frame Rules with regard to any requirement for the same under the Act. It is stated that the Government, which is the authority empowered to frame the Rules, is yet to frame the Rules. It is contended that steps have been initiated for framing of the Rules and for placing the Rules before the Legislative Assembly as required under Section 129 of the Act. It is stated that in the absence of Rules, the State Government, which is the authority empowered to frame Rules is well within its powers in issuing executive instructions with regard to all the matters where Rules can be framed. Placing reliance on the decisions of the Apex Court in B.N.Nagarajan v. State of Mysore [1966 KHC 738], Sant Ram Sharma v. State of Rajasthan [1967 KHC 767] and Mysore State Road Transport Corporation v. Gopinath Gundachar Char [1968 KHC 551] the learned Senior Government Pleader would contend that it is settled law that where there is competence in the Government to frame rules, the Government would also be competent to issue executive instructions in terms of Article 162 of the Constitution of India to carry out the purposes for which Rules could have been made. Reliance is also placed on the decisions in V.Balasubramaniam v. T.N.Housing Board [1987 KHC 1128] and Surinder Singh v. Central Government [1986 KHC 714] in support of his contentions. It is further submitted that the orders issued by the Government are in exercise of the executive power of the Government to make prescriptions where there are no rules in force and that the power under Section 130 of the Act is not being exercised by the Government. It is contended that Exhibit P3 order is a general order prescribing the term of office of the non-official Members of the Authority and is not confined to the Members of the Authority, who were in office as on that date. It is therefore stated that in the absence of Rules formulated under Section 129 of the Act, the draft rules which had been forwarded by the Chairperson of the Authority could have no application and the term of the office would be as decided in Exhibit P3, which is a Government order issued on the subject, fixing the term. It is further submitted that all steps for selection of non-official members of the Authority are complete and that the appointments are held up due to the pendency of this writ petition.

9. I have considered the contentions advanced at considerable length. The contention to the effect that the power to remove difficulties can be exercised for a period of two years in terms of Section 130(2) of the Kerala Police Act, 2011 is, according to me, not relevant in the present context, since the Government has specifically stated that Exhibit P3 is not a Government order issued in terms of Section 130 of the Act. It is stated that the Government is the authority empowered to frame Rules under Section 129 of the Act. The Government, exercising it's executive power under Section 162 of the Constitution of India, is well within it's powers to fix the term and tenure of members of the Authority, since it is a matter where Rules could have been framed by the Government. I am of the opinion that since the Government has not framed any Rules, it is well within it's powers in issuing executive orders prescribing such conditions of service and fixing the tenure. From a reading of Exhibit P3, it is clear that it is not an order prescribing the term and tenure of the two members, who were in office on such date. Exhibit P3 can only be interpreted as an order fixing the tenure and term of office of the Chairperson and the non-official Members of the Authority. In such a view of the matter, I am of the opinion that the contentions of the petitioners that they are entitled to continue for a period of five years in terms of the draft rules forwarded by the Chairperson of the Authority cannot be sustained. The Chairperson, or the Authority itself, is not invested with Rule making power by the Statute. It is for the Government to prescribe the conditions of service of the Chairperson and the Members by framing Rules. In the absence of any rules framed by the Government, the contention that the draft rules forwarded by the Authority has to be followed cannot be accepted. Since the rule making power is with the Government, the Government is perfectly competent to issue executive orders fixing the conditions of service including the tenure of the Chairperson and Members of the Authority. Since the petitioners had been appointed as non-official Members of the Authority in pursuance of Exhibit P3 order fixing the tenure as three years, I am of the opinion that the contentions raised by the petitioners cannot be countenanced.

The writ petitions fail and are accordingly dismissed.