Premlata Kumari v. Union of India and Ors

judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. The authorities are unanimous in that though the term "misconduct" has many hues, it touches upon the behaviour and acts of some in relation to his office. At the same time, if the behaviour is reprehensible, and results in

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lowering esteem of the general public of the office, the conduct may be misconduct regardless of its being unconnected with official work.

¶20Further the provisions of Rule 3 of CCS (Conduct) Rules, 1969 provides the functions and duties of every Government servant: "69. So far as the duties which the petitioner was required to perform are concerned, our attention is drawn to the provisions of Rule 3 of the Central Civil Service (Conduct) Rules, 1964 which provides the following functions and duties of every Government Servant:

¶3General

(1) Every Government servant shall at all times--

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant."

¶21The 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

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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.

¶22The 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.

¶23No 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

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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.

¶24The Courts have not even considered a live-in relationship (pre-material 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

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anyone she likes or live with the one she likes.

¶25The 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'.

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¶26As 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.

¶27The 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.

¶28In 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.

¶29We, for the above reasons, hereby set aside the impugned orders.

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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.

¶30Both 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

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 14.09.2015 % Decided on: 06.11.2015 + W.P.(C) 3977/2012 PREMLATA KUMARI ..... Petitioner Through: Mr.Vishwendra Verma, Advocate versus UNION OF INDIA AND ORS. ..... Respondents Through: Mr.Abhay Prakash Sahay, CGSC for UOI. + W.P.(C) 4872/2012 AJIT SINGH ..... Petitioner Through: Mr.Ravindra S.Garia, Advocate versus INSPECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE AND ANR. ..... Respondents Through: Mr.Bhagwan Swarup Shukla, CGSC with Mr.Suyash Kumar, Advocate for UOI. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MS. JUSTICE DEEPA SHARMA (JUDGMENT) 1. We propose to dispose of both writ petitions by this common judgment since in both these cases the departmental enquiries emanate from the same incident dated 28.03.2011. 2. There are certain love stories that do not have a happily ever after Page 2 ending. The petitioners finally lost their jobs. 3. The common facts in both cases are that on 28.03.2011 both the petitioners who were employed by the Central Industrial Security Force (CISF) met in a hotel room at Kelson Dx, Paharganj from where petitioner Constable Premlata Kumari made a telephone call making certain allegations against Ajit Singh (Petitioner in W.P.(C) No.4872/2012). Thereafter a committee of (i) Shri M.K.T. Salvan, TC; (ii) Inspector/Exe B.S. Malhi; (iii) SI/Exe A.K. Dang and (iv) L/Ct. (CHM) Z. Radhika was constituted by commandant to confirm the incident at the spot. The Committee reached at spot and made enquires and thereafter a court of enquiry was held against both the petitioners independently. Enquiry and finding in case W.P.(C) 4872/2012 relating to SI Ajit Singh. 4. The following charge was framed against SI Ajit Singh: "Force No.09821100915 SI/Karya Ajit Singh (suspended) CISF unit, DMRC, Delhi on 28.03.2011 at around 0945 hours force No.081758925 woman Constable Premlata Kumari went to hotel Kelson DX Paharganj Delhi and made physical relation with her. Aforesaid conduct shows his misconduct and violation of discipline of the force and renders him unfit for the post. The force member by his such conduct has maligned the image of the force. Hence the charge." Page 3 5. The enquiry which was ordered was held from 04.06.2011 to 04.08.2011. The enquiry report was submitted on 06.08.2011. The enquiry officer confirmed the following facts on completion of the enquiry: "2. Prosecution witness No.1,2,3, and 4 who had gone to the place of incident hotel Kelson DX room No. 101 on 28.03.2011, their statements and question and answer have made it clear that on seeing situation it seemed to them that on 28.03.2011 in room No. 101 of hotel Kelson DX S.I. Karya Ajit Singh and women constable Premlata Kumari might have made physical relation with mutual consent. Therefore under the circumstances it cannot be ruled out in the room of the hotel S.I. Karya Ajit Singh made physical relation with women constable Premlata Kumari." 6. The said petitioner Ajit Singh submitted his representation dated 23.08.2011 against the findings of Enquiry Officer. The disciplinary authority went through the reply of the petitioner and thereafter made the following observations: "8. …..The statement of charged force member that on 28.03.2011 in hotel Kelson DX room No.101 he did not make physical relation with women constable Premlata Kumari is not acceptable, the charged force member himself showed his voter ID card and introduced women constable Premlata Kumari as his wife and booked a room in hotel and stayed with women constable Premlata Kumari in room for three hours alone. Apart from this the charged force member has himself accepted that previously also for 2-3 times he has meet women constable Premlata Kumari alone and has also spent time with her in hotel after booking a room. If the charged force member had to only talk with women constable Premlata Kumari he could have done so Page 4 by going at any public place. But stating the wom