Ajit Singh vs Inspector General Central ...
2015 Latest Caselaw 8428 Del

*      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




W.P.(C) Nos.3977/2012 and 4872/2012                                            Page 1
 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."




W.P.(C) Nos.3977/2012 and 4872/2012                                        Page 2
 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




W.P.(C) Nos.3977/2012 and 4872/2012                                         Page 3
             by going at any public place. But stating the women
            constable Premlata Kumari to be his wife, booking a room
            and staying with the women constable Premlata Kumari for
            alone, itself raises a question mark on the conduct of the
            charged force member.

            9. Prosecution witness No.1,2,3 and 4 who on dated
            28.03.2011 had gone to hotel Kelson DX room No.101, they
            also have in their statement and questions clarified that
            looking at the circumstances it appears to them that on
            28.03.2011 in room No. 101 hotel Kelson DX sub
            inspector/Karya Ajit Singh and women constable Premlata
            Kumari had made physical relation by mutual consent
            meaning thereby that in the circumstances the possibility of
            sub inspector/Karya Ajit Singh making physical relation
            with women constable Premlata Kumari in the hotel room
            cannot be ruled out."
7.      The penalty of removal from service was imposed against the

petitioner. He preferred an appeal. The Appellate Authority after going

through the appeal of the petitioner rejected it. The revision which was

preferred by Ajit Singh was also rejected. The revisional authority observed

that:

            "Minute analysis of materials held on record in the case file
            reveals that the petitioner was involved in physical relation
            with his subordinate Lady Constable of the Force immorally
            at Hotel Kelson Dx, Paharganj, New Delhi on 28.03.2011
            for which he booked Room No. 101 in the hotel by paying
            Rs. 1000/- for a day room rent, falsely declaring Lady
            Constable Premlata Kumari as his wife."

8.      It is apparent that all the authorities starting from the enquiry officer

till the revisional authority have concurred on the finding that the petitioner




W.P.(C) Nos.3977/2012 and 4872/2012                                         Page 4
 developed a physical relationship with Ct. Premlata with mutual consent.

Although in his representation the petitioner had levelled allegations against

Ct.Premlata Kumari, those were rejected as baseless by the enquiry officer,

appellate authority as well as the revisional authority.

Enquiry in case W.P.(C) 3977/2012 of Prem Lata woman Constable.

9.     The following charges were proposed against Petitioner Premlata

Kumari on 29.04.2011:

            "On 28.03.2011, No. 081752925 Lady Constable Prem Lata
            Kumari, (under suspension) CISF, DMRC, Delhi along with
            the girls of the 'A' Shift on the pretext of duty in uniform at
            about 0945 hours went along with No.092810095 SI/Ex Ajit
            Singh In Hotel Kelson DX Paharganj New Delhi and has
            established physical relation with him which shows her pre-
            planned planning. Her above said act shows her misconduct
            and breach of discipline of the Force and declares her unfit
            for the force. The Force member has lowered down the
            reputation of the Force from her this act. Therefore the
            charge."

10.    The petitioner duly replied the memorandum. After conclusion of the

enquiry, the enquiry officer submitted a report on 23.10.2011, whereby on

the basis of evidence recorded during the enquiry, it was concluded that;

             " Decision of the Facts

:

Contention of the charge official that on 28.03.2011 SI/Exe Ajit Singh had made physical relations forcibly with her in Room No. 101 of Hotel Kelson Dx is not acceptable, because the prosecution witnesses no. 1,2,3 and 4 who had gone to the place of incident Room No. 101 of Hotel Kelson

W.P.(C) Nos.3977/2012 and 4872/2012 Page 5 on 29.01.2011 and keeping in view the position of the place of incident they have clarified that on looking the position of the place of incident and the expressions of both the force members, nothing such is apparent that any act has been committed with the charged official forcibly. It became clear from the statement of prosecution witness No. 1,2,3 and 4 and the question answer put to them that on 28.03.2011, the incident of making physical relation in Room No. 101 of Hotel Kelson Dx, the same has happened with the mutual consent of lady constable Prem Lata Kumari and SI/Exe Ajit Singh."

11. In the said order, the respondents noted the following facts being

proved on record:

"It has been clearly stated keeping in view the circumstances, nothing such was apparent that any forcible act has been committed with lady Constable Prem Lata, rather the incident which took place for developing physical relation, the same has happened with the mutual consent of both of them."

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 6 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 pre-

planned 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 7 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 8 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:-

"48. The petitioner has, therefore, raised a basic question as to what is the nature of conduct which could be construed as misconduct inviting disciplinary proceedings and penalty against him. The expression `Misconduct' is not defined under the CISF Act, 1969. It is well established that in case a term has not been statutorily defined, guidance from the meaning obtainable in ordinary and common parlance may be taken and the word has to be understood in its ordinary dictionary meaning. Since it is difficult to give

W.P.(C) Nos.3977/2012 and 4872/2012 Page 9 an exhaustive definition of what amounts to misconduct, the ordinary meaning of the expression "misconduct" in various dictionaries may be considered.

A reading of that judgment would reveal that the Court noticed

several judgments. The judgment of the Supreme Court in State of Punjab v.

Ram Singh 1992 (4) SCC 541 inter alia states that

"6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of 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

W.P.(C) Nos.3977/2012 and 4872/2012 Page 10 lowering esteem of the general public of the office, the conduct may be

misconduct regardless of its being unconnected with official work.

20. Further 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:

3. General (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."

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 11 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 12 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 (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

W.P.(C) Nos.3977/2012 and 4872/2012 Page 13 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 14

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 15 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

W.P.(C) Nos.3977/2012 and 4872/2012 Page 16