Premlata Kumari v. Union of India; Ajit Singh v. Inspector General Central Industrial Security Force

12. The enquiry report also contains the summary of the statement of the charged official Premlata Kumari and has noted as follows: “In reply to question 11 she stated of not finding the parents of Ajit Singh there, she had gone with SI Ajit Singh in the room because SI Ajit Singh had given her proposal of marriage.”

13. Then again during the enquiry proceedings the petitioner had stated: “In reply to question 14 she told that SI Ajit Singh was not unknown person, he was the senior officer of her department, apart from this they had already love affairs with each other. In reply to question 15 she stated, “yes, we W.P.(C) Nos.3977/2012 and 4872/2012 Page 7 had already developed physical relation.”

14. Again in reply to question 24, Premlata Kumari had stated: “that SI Ajit Singh had promised to marry, therefore I had not made complaint to the police,”

15. On the basis of this enquiry report, the final order was passed whereby the Commanding Officer, on the strength of the evidence recorded during the enquiry and statement of petitioner, concluded that the physical relationship between the petitioners SI Ajit Singh and Ct. Premlata Kumari was with mutual consent and that no force had been used against the latter. The Commanding Officer concluded thus: “It become clear from the statements of prosecution witnesses No. 1,2,[3] and 4 and from the question answers asked from them that the incident of making physical relation in Room No. 101 of Hotel Kelson Dx on 28.03.2011, the same has happened with the mutual consent of the charged official and SI/Exe Ajit Singh. From the statement of the charge official and from the question answer asked from her, it is proved that under a preplanned plan the charged official left the Shashtri park Ladies Hotel in uniform and along with civil dress with the members of the first shift without any intimation and without permission of the Competent Officer on 28.03.2011. After changing the clothes at Rajiv Chowk Metro Station met with SI/Exe Ajit Singh at gate No. 2 of R.K. Ashram Road Metro Station and along with him both went to Hotel Kelson Dx and booked room No. 101 both as husband and wife and remained in that room for about 3 hours and developed physical relation. In reply to question No. 15 during the question answer in the inquiry the charged official herself W.P.(C) Nos.3977/2012 and 4872/2012 Page 8 admitted that she had gone to some hotel of Pahar Ganj alongwith SI/Ex Ajit Singh prior to 28.03.2011 and they had made physical relation. From this it is proved that charged official and SI/Exe Ajit Singh have been making physical relation by going in hotel also prior to 28.03.2011. To state this by the charged official in reply to question 14, they had already love affair, it is also proved that due to the love affairs, the charged official under the pre-planned plan had gone to the hotel on her own on 28.03.2011 and had made physical relation with him.”

16. Thereafter, the Commanding Officer imposed a punishment of removal from service against the petitioner who then preferred an appeal. His appeal was dismissed by the appellate authority by order dated 29.11.2011. After considering all the contentions in the petitioner’s appeal, the Appellate Authority recorded the following facts:- “During the inquiry this fact came in light that the above said force member has left in uniform in the bus of the First Shift, which takes the Lady force members from the Barrack to station for morning duty, while her duty was not in the first shift. She met with NO. 092810095 SI/Exe Ajit Singh near R.K. Ashram Metro Station and both have gone to Hotel Kelson Dx Pahar Ganj, New Delhi. Where they with mutual consent has made physical relations…..”

17. From the enquiry report, dismissal order, appellate authority’s and revisional authority’s order in both cases it is apparent that the authorities had maintained throughout on the basis of the evidence on W.P.(C) Nos.3977/2012 and 4872/2012 Page 9 record that both the petitioners had established a physical relationship with mutual consent. These authorities had rejected all contentions raised by the petitioners against each other as unfounded. There is no dispute that during the enquiry the prescribed procedure was followed and the petitioners were afforded due opportunity and had also been heard. The petitioners too have not found any fault in the manner the enquiry was conducted.

18. The common argument of learned counsel for both petitioners is that given the proved facts during enquiry, they had not committed any misconduct as they had not violated any rules or regulations of the force.

19. Misconduct is not defined under the CISF Rules. However, in Shri Santosh Kumar Sur vs. Union of India and Ors: (2010) ILR 4 Delhi 788, this Court has defined the misconduct as under:-

20. Further the provisions of Rule 3 of CCS (Conduct) Rules, 1969 provides the functions and duties of every Government servant:

21. The legal position is, therefore, crystal clear that even if an act of a Government servant does not fall within the ambit of misconduct, the employer is not precluded, in certain circumstances and peculiar facts, from reasonably treating such an act as misconduct. From the findings of the enquiry report it is apparent that both the petitioners had established their relationship voluntarily. The evidence on the enquiry record shows that the petitioners were in love and planned to marry. Constable Premlata had even asked her parents to consider SI Ajit Singh as her future husband and made W.P.(C) Nos.3977/2012 and 4872/2012 Page 12 enquiries about him. She also admitted that her parents did in fact, make enquiries about SI Ajit Singh. SI Ajit also in his statement had acknowledged his relationship with Premlata and their plans of marrying. These statements clearly show that they seriously contemplated marriage and life together. In the context of these facts, it was the duty of the respondent to show that this constituted an act forbidden, improper or prohibited or an act unbecoming of a government employee.

22. The contention of the respondent is that by their acts, the delinquents had brought disrepute to the Force in the eye of hotel staff/general public and thus violated the discipline of the Force. However, the charges given to do not speak of bringing disrepute in the eye of hotel staff/general public, but that the petitioners went to the hotel and established a physical relationship, which maligned the image of Force and amounted to a breach of discipline of the Force.

23. No evidence has been brought on record by the respondent to prove that any disrepute had been brought to the Force or that the image of the Force stood maligned by the act of the petitioners. There are no allegations that they had indulged in any physical act in public or in public view or within view of hotel staff. At the relevant time, the petitioners were W.P.(C) Nos.3977/2012 and 4872/2012 Page 13 consenting adults, and were together in a hotel in the privacy of a room occupied by them. No one can or should (the public employer being no exception) be allowed to speculate what transpired between them. Equally the State or a public employer cannot intrude into the privacy of an individual’s personal relationship. It is established law that no individual dilutes or surrenders his fundamental rights upon entering public service. O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812; Kameswar Prasad vs. State of Bihar AIR 1962 SC 1166 such being the case, the CISF should not, in this Court’s opinion have speculated and drawn conclusions about the alleged misconduct. Clearly the autonomy and choice of the petitioners was targetted baselessly by the CISF, when the choice was neither unlawful nor was done in public, or within public view. Society is slowly liberating itself and in the process of such liberation, what was once considered a taboo or a prohibited act earlier, has found acceptance in society.

24. The Courts have not even considered a live-in relationship (prematerial sex) an offence. The Supreme Court in Lata Singh vs. State of U.P. and others AIR 2006 SC 2522 has clearly held that no offence is committed by two consenting adults of the heterogenic sex to have a sexual relationship with the exception of adultery, and that a major girl is free to live with W.P.(C) Nos.3977/2012 and 4872/2012 Page 14 anyone she likes or live with the one she likes.

25. The Indian Constitution ensures to all equality of treatment and opportunity in matters of employment and assures dignity to every human being. An integral part of the freedoms and liberties guaranteed is that of privacy and individual autonomy. (Ref. Kharak Singh vs. State of Uttar Pradesh 1963 Cri.L.J. 329; R. Rajagopal vs. State of Tamil Nadu AIR 1995 SC 264; Govind vs. State of Madhya Pradesh and Anr. AIR 1975 SC 1378). Every individual has the right to live with dignity and to preserve its privacy. Justice P.N. Bhagwati in Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Ors 1981 Cri.L.J.306 has recognized that “the right to life includes the right to live with human dignity and all that goes along with it”. Our Constitution although does not contain any specific provision relating to right to privacy however the Supreme Court in Kharak Singh (supra) has held that “right to privacy” is a part of the right to life in Article 21 of the Constitution. The expression ‘privacy’ necessarily includes the freedom to private intimacy and autonomy which gives an individual opportunity to establish and nurture relationships consensually and without harming any other individual. The exercise of such right by an individual can by no means be termed as ‘misconduct’. W.P.(C) Nos.3977/2012 and 4872/2012 Page 15

26. As per respondent’s own case, the petitioners, unmarried, were in a consensual relationship. The acts of misconduct attributed to them occurred in privacy. It is nobody’s case that these were in dereliction of their duties or offended any law.

27. The respondents have failed to bring to our notice any rule or regulation governing the petitioner, which forbids consensual relationship between adult, public servants. Absence of any rule/law which prohibits someone’s consensual physical relationship with another, (except what is an offence), it, therefore cannot be a misconduct. Constable Premlata was also charged for leaving the hostel along with girls of ‘A’ shift on the pretext of duty and went along with SI Ajit Singh, but in the circumstance of the case, this can be termed only a small lie spoken with the sole object of meeting the beloved.

28. In view of the totality of circumstances of the case, we are of the opinion that the act of the petitioners does not constitute misconduct for the reason that the respondents have miserably failed to produce any evidence on record to show that the petitioners had lowered the reputation of the force or committed breach of discipline.

29. We, for the above reasons, hereby set aside the impugned orders. W.P.(C) Nos.3977/2012 and 4872/2012 Page 16 Petitioners are ordered to be reinstated into the service forthwith along with all the consequential benefits, including seniority, revision of pay increments etc. They shall also be entitled to 50 percent of back wages. Necessary orders be passed within six weeks from today.

30. Both the writ petitions are succeeded and are hereby allowed in the above terms. There shall be no order as to costs.

DEEPA SHARMA (JUDGE) S. RAVINDRA BHAT (JUDGE) NOVEMBER 06, 2015 bg/rb