JUDGMENT 1. - The petitioner who was a member of Rajasthan Police Service has in this writ petition challenged the order dated 26th Sept. 2001 whereby penalty of stoppage of his 50% pension for a period of 10 years was awarded to him. This order of penalty was passed against the petitioner consequent upon his being found guilty of the charges for which he was served with the charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1958 (in short the CCA Rules). The petitioner was at the relevant time posted as Deputy Superintending of Police at Pratapgarh. Initially, a memorandum of charge-sheet under Rule 17 of the CCA Rules was issued to him on 3rd April, 1999. Subsequently, this was converted into a charge-sheet under Rule 16 of the Rules of 1958 by order dated 9th May, 2000. During the pendency of inquiry, the petitioner was placed under suspension by order dated 2nd June, 1999. While the inquiry was still on, the petitioner on attaining the age of superannuation eventually retired from service on 28-1-2000. 2. There were in all three charges against the petitioner. The first charge against the petitioner was that while working as Deputy Superintendent of Police, Circle Pratapgarh, District Chittorgarh in the year 1999, he misbehaved one lady constable Kumari Bhatt (Belt No. 1355) on 25th March, 1999. He behaved with her in an indecent manner when she was called by him from Police Station, Chittorgarh to be associated in the investigation of FIR No. 45/1999 dated 24-3-1999 for offences under Sections 302, 201/34 Indian Penal Code lodged with Police Station Salamgarh, District Chittorgarh. The precise charge was that the petitioner took the said lady constable to his official residence with foul motive where she was asked to stay with him alone when none of his family members were there. The charge No. 2 was to the effect that he while working as Dy. Superintendent of Police detained the aforesaid lady constable Kumari Komal Bhatt at his official residence against her wishes and asked her to stay there and threw flower towards her and asked for her consent for making illicit relation on the promise of helping her in future. In substance thus he made advances towards the said lady constable without her consent and much against her wishes. In substance thus he made advances towards the said lady constable without her consent and much against her wishes. The charge No. 3 against the petitioner was that when the aforesaid lady constable made complaint of this kind of behaviour of the petitioner who was her superior officer, the petitioner sent Shri Kailash Meena, sub-Inspector (Training) to the residence of the lady constable who tried to persuade her and her family to withdraw the complaint and later when they did not agree, tried to threaten them. 3. The inquiry in the matter was conducted by Shri R.S. Rajvi, Addl. Commissioner-I, Departmental Inquiries, State of Rajasthan Jaipur. While the department examined 17 witnesses and exhibited 22 documents in support of the charges, the delinquent produced only three defence witnesses. At the conclusion of inquiry, both the parties produced written submissions and made oral arguments too. In so far as charge No. 1 is concerned, the Department produced Rapat No. 25 dated 24-3-1999 and Rapat No. 43 dated 20-3-1999 to prove the departure and arrival of the said lady constable Kumari Komal Bhatt from and to Police Line Chittorgarh. Department also produced Rapat No. 1038 dated 25-3-1999 as Ex.P/3 to prove that the said lady constable accompanied the petitioner from Police Station, Pratapgarh at 10.45 a.m. in the Gypsy wherefrom they went to Police Station, Amod and then the Suhagpura, the place of incident. She throughout the day remained with the petitioner. While returning back, the petitioner himself was driving the Gypsy but instead of taking her to Police Station, Pratapgarh, the petitioner took the Gypsy to his own residence whereas the bag of the lady constable was lying at Police Station, Pratapgarh. The petitioner then forced the lady to stay at his residence and asked her to leave after refreshment. It was during this period that the petitioner made indecent proposal to the lady constable. The lady constable submitted a written complaint to the Addl. Superintendent of Police on 25-3-1999, which was exhibited as Ex.P/9. Initially, preliminary inquiry was conducted by Shri R.B. Mukul, Addl. Superintendent of Police, CID (CB) which is produced as Ex.P/18. Statements recorded during the preliminary inquiry have also been produced in the regular inquiry. Some of the statements which were recorded during regular inquiry, copies of which have been placed on record are worth to notice and they are described in brief in the following paras. Superintendent of Police, CID (CB) which is produced as Ex.P/18. Statements recorded during the preliminary inquiry have also been produced in the regular inquiry. Some of the statements which were recorded during regular inquiry, copies of which have been placed on record are worth to notice and they are described in brief in the following paras. 4. SHO, Police Station, Pratapgarh Shri Amar Singh has been examined as PW-11. He stated that when he was sitting in the Police Station at about 9.00 p.m. on 25-3-1998, his duty officer, Shri Tulsiram Minariya told him that one lady constable Kumari Komal Bhatt who had arrived at Police Station about half an hour above was crying. He thereupon called the lady constable and inquired as to what had happened. She narrated the entire story as to in what manner she had accompanied the delinquent alongwith other constables Naresh Kumar and Balchand in the Gypsy and how the delinquent took her to his residence and made advances towards her. The delinquent sent the other constable Naresh Kumar outside the residence on the pretext of bringing sweets and fruits and also asked the domestic servant Daulat Ram to go out. The lady constable further told the SHO that delinquent promised to help her in selection as sub-inspector and tried to misbehave with her. When she opposed the same, he asked that she should stay during night at his residence. SHO further stated that when she did not stop crying he informed the Addl. Superintendent of Police about the incident on telephone. 5. Anil Joshi who was SHO, Amod was examined as PW-12. He proved the fact that the said lady constable had come to his area for investigation along with delinquent. Bheemraj, who was driver of the delinquent was examined as PW-2. He has although stated that the delinquent alongwith Naresh Kumar and two lady constables including Kumari Komal Bhatt went in the Gypsy driven by him to Police Station, Amod, but he came earlier from Amod for some work and delinquent himself drove the vehicle while coming back to Pratapgarh. 6. Kailash Meena, sub-inspector of Police, who went to the residence of Kumari Komal Bhatt has been examined as PW-6. 6. Kailash Meena, sub-inspector of Police, who went to the residence of Kumari Komal Bhatt has been examined as PW-6. He has also stated that in the night of 25-3-1999 the aforesaid lady constable Kumari Komal Bhatt made complaint to Circle Officer and the C.O. told him that she has made complaint against the delinquent and thereafter stated that things like this bring bad name to the department. He has also stated that he received a phone call from Addl. Superintendent of Police during night for making arrangements of stay of lady constable in the office. Next morning the petitioner called him on telephone and threatened him with dire consequences. On third day, the petitioner came to his residence and asked that he should go to the house of Kumari Komal Bhatt on his behalf and try to persuade her to withdraw the complaint and that he was prepared to express regret and sorry for whatever has happened. PW6 has further stated that he alongwith other sub-inspector Praveen went to the residence of the said lady constable where she and her family members were present. He told her about the request of the petitioner (delinquent) and also that in case Kumari Komal Bhatt did not withdraw the complaint, the delinquent might sue her for damages of Rs. 5 lacs. He has further stated that although the petitioner had sent him to Chittorgarh, but no entry of his departure was made in the Rojnamcha although he received some Dak from the Office Superintendent of Police, Chittorgarh. 7. The most crucial witness in the inquiry was none other than lady constable Kumari Komal Bhatt herself who has been examined as PW-7. She has narrated the entire incident as has been discussed above. A bare perusal of the statement depict a very poor picture about the character of the petitioner and prove that he intended to make advances towards her. She has stated that when the petitioner reached his residence he asked her to sit closer to him and when she wanted to go back, the petitioner asked her stay and go after taking refreshment. When she stated that her bag was lying at the Police Station and she wanted to bring the same, he asked that he would arrange for bringing the bag. She further stated that domestic helper Daulatram was sent for bringing refreshment. When she stated that her bag was lying at the Police Station and she wanted to bring the same, he asked that he would arrange for bringing the bag. She further stated that domestic helper Daulatram was sent for bringing refreshment. She thereafter said that she would herself go to take the bag but the petitioner instead asked her to get refreshed and go to inside the room. Constable Naresh Kumar took her to bathroom. She still insisted to go back, the petitioner did not allow her and asked that she should stay for refreshment. In the meantime, Naresh Kumar left the room and thereafter, the petitioner asked her to sit closer to him and threw flower towards her and asked as to why she was annoyed with him and she should talk with him. He asked that if she was feeling tired, she should go and take rest. She thereupon stated that she did not want to take rest. The petitioner then stated that he shall get his bag and after taking bath and rest, they would leave for Chittorgarh in the following morning. She thereupon insisted that she wanted to go right now. After some time, the petitioner stated that he was not making any pressure. Whether he wanted to do, he would do with her consent and if she would not agree then she would have to face consequence. He promised that he would get her passed in the competitive examination of sub- inspector of Police and stated that apart from the delinquent and Naresh Kumar no one else would know about this. When she wanted to go back, he stood in the way in front of her for some time, but somehow she managed to come out from his residence and reached the Police Station, Pratapgarh and started crying. Kailash Meena, SHO inquired about the reason of her crying and after some time, Circle Officer also arrived there and thereupon she narrated entire incident to him and later gave a written complaint also. She stated that the petitioner sent Kailash Meena to her residence and threatened that she should withdraw her complaint and if the complaint was not withdrawn, he would sue her for damages. The written complaint submitted by the petitioner has also been produced on record as Ex.7 and this complaint contains original version which Kumari Komal Bhatt gave in writing to the Addl. The written complaint submitted by the petitioner has also been produced on record as Ex.7 and this complaint contains original version which Kumari Komal Bhatt gave in writing to the Addl. Superintendent of Police, Pratapgarh on the very date of incident. First time version as disclosed in the complaint when read with the statement of PW7 Kumari Komal Bhatt in the inquiry does not show any contradiction much less material contradiction so as to give rise to any doubt about any false implication of the petitioner. The inquiry officer found charges against the petitioner proved but since by that time, the petitioner had already retired, disciplinary authority could not have passed any other order of penalty other than one which has been actually passed against the petitioner by directing stoppage of his 50% of the pension for the period of 10 years. 8. I have heard Shri M. Mridul, Senior Advocate with Mr. R.N. Upadhyay and Mr. K.K. Shah for the petitioner and Shri Rameshwar Dave, learned Dy. Government Advocate, for the respondents. 9. Shri M. Mridul has argued that the petitioner has been framed in the case at the instance of Shri S.N. Khinchi who entertains a sense of enmity against the petitioner inasmuch as there was no evidence to prove the charges against him. Reference was made to recovery of some heroin worth Rs. 1 crone at the instance of the petitioner when Shri Khinchi assuming that the petitioner must have taken illegal gratification to oblige the accused in the course of investigation, asked to pay him what he thought was accepted by petitioner by way of illegal gratification. The facts relating to the demand made by Shri Khinchi stands proved by the statements of PW-11 Amar Singh. It has been argued that even though Shri Khinchi has been arrayed as party-respondent on allegation of mala fides, he has however chosen not to rebut all these allegations. Shri Mridul in this connection relied upon the judgment of the Hon'ble Supreme Court in S. Partap Singh v. State of Punjab, reported in AIR 1964 SC 72 and C.S. Rowjee v. State of Andhra Pradesh, reported in AIR 1964 SC 962 . He further argued that Shri Khinchi remained present all along the proceedings of preliminary inquiry and regular inquiry. He was also present when statements were recorded in the preliminary inquiry and again when the main inquiry took place. He further argued that Shri Khinchi remained present all along the proceedings of preliminary inquiry and regular inquiry. He was also present when statements were recorded in the preliminary inquiry and again when the main inquiry took place. He wanted to take benefit of the high position he was holding and to influence the inquiry and wanted to ensure that the witnesses aver in support of the allegation made against the petitioner. He further argued that presence of Shri Khinchi who in law had no role to play in any proceedings, vitiated the entire proceedings and when he had no authority to participate in any proceeding, his participation vitiated the entire exercise undertaken on the basis of such inquiry. In a departmental inquiry those participating are the inquiry officer, presenting officer and the delinquent who is being proceeded against. There is no rule permitting stranger to be there in the inquiry for any reason whatsoever except witness. Shri Khinchi being a stranger, his presence vitiated entire inquiry. He in this connection also relied upon the judgment in Dr. Shyam Lal Mathur v. University of Udaipur & 3 Ors., 1980 WLN (UC) 120 , wherein it was held that presence of a person who was not a member of selection committee vitiated the selection process. He also relied on the law which has been propounded in England from Halburry's Laws of England. Reference in this behalf was made to para No. 570 in Volume VII and para 1307 in Vol. 9 of Halsburry's Law of England. It has further been argued that allegations against the petitioner might constitute offence under Section 354 of the IPC, which is a cognizable offence though bailable. Being a cognizable offence resort to Section 154 Cr.P.C. is must. What transpired in the matter is indeed surprising and shocking. Initially the respondents took the stand that FIR was filed, later on they came out with a case that no FIR was lodged. Being a cognizable offence resort to Section 154 Cr.P.C. is must. What transpired in the matter is indeed surprising and shocking. Initially the respondents took the stand that FIR was filed, later on they came out with a case that no FIR was lodged. The question then arises as to why when Section 154 mandatorily postulates that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced in writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. He has further argued that according to Section 155 of the Cr.P.C. once an information is given to the officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the information to the Magistrate. It has further been argued that it cannot be believed that Mr. Khinchi or the SHO of the police station did not know about Sections 154 and 155 of the Cr.P.C. And if they knew why did they not lodge report and start investigation as stipulated by Section 157 and other related provisions and it cannot be believed that even after such incident, they would not follow the mandatory provisions of law. This was not without reason. Those at the helm of the affairs in department knew that if matter was to go through the grill of investigation as stipulated by Chapter 12 of the Cr.P.C., then the entire proceedings would take place before a Magistrate and not before the nominee of the Disciplinary Authority and, there the assistance of the lawyer would be available to the petitioner and it will not be possible to record a statement as one likes. It has further been argued that in this matter Shri Khinchi took such a lot of interest in the inquiry that he set through the entire proceedings both at the level of Preliminary Enquiry and the Final Enquiry ignoring altogether the task which he was supposed to undertake as Addl. S.P. He chose to be present in the two inquiries and thus spent time not discharging his duties as Addl. S.P. but to take care of the fact that the conspiracy which was planned by him does not fail and the witnesses did not dare to say anything except what he wanted them to say. It has further been argued that another manifest mistake which vitiated the entire set of enquiry is that the petitioner's witness Tulsiram, SDO was not be examined in the inquiry in spite of the fact that he had informed on two occasions that he was unable to appear on the dates he was asked to appear because of the official duties and yet further time was not allowed to him on the ground that the State Government wanted to inquiry to be finished quickly. Thus, it is apparent that the witness whom the petitioner wanted to examine in his defence was not allowed to be examined. Shri M. Mridul therefore argued that the writ petition may be allowed and the order of penalty against the petitioner may be set aside. 10. On the other hand, Shri Rameshwar Dave, learned Dy. Government Advocate supported the order of penalty and argued that charges against the petitioner were proved by overwhelming evidence. With regard to allegations that the inquiry proceedings were vitiated on account of alleged influence exaggerated by the respondent No. 3, it has been argued that the petitioner at no point of time complained either to the respondent No. 1 and or to respondent No. 2 that the respondent No. 3 had made any demand of illegal gratification from him for seized heroin. It has been argued that petitioner concocted this false story although there was no evidence or document to substantiate the same. This allegation is not proved even by PW-11 Amar Singh. It has been argued that petitioner concocted this false story although there was no evidence or document to substantiate the same. This allegation is not proved even by PW-11 Amar Singh. He has argued that merely because FIR under Section 354 was not lodged against the petitioner, this cannot denude the disciplinary authority of its power to hold inquiry in the allegations under CCA Rules against the petitioner and if found guilty, punish him. It has been argued that petitioner took the lady constable Kumari Komal Bhatt to his residence and tried to make advances towards her. He has denied that Addl. Superintendent of Police influenced the inquiry proceedings in any manner. It has been argued that the writ petition is without any substance and the same is liable to be rejected. 11. I have pondered over the rival contentions and scanned the material on record. 12. Taking the argument of influence allegedly exerted by the respondent No. 3 first, I am not inclined to accept that it is because of the influence of respondent No. 3 that the order of penalty has been passed against the petitioner. The respondent No. 3 was merely an Addl. Superintendent of Police and disciplinary authority in the matter was the superior officer then him and the inquiry was also conducted by an officer of the rank of Addl. Superintendent of Police. The respondent No. 3 had no occasion to do anything with the inquiry proceedings. He was posted as Addl. Superintendent of Police where Kumari Komal Bhatt gave her written complaint to him on 25-3-1999 on the very date of the incident. He then asked the duty officer to make arrangement of her safe stay during night. Merely because, he has not denied the allegations of mala fides against him, this does not effect the version of the Kumari Komal Bhatt and evidence otherwise available on record which prove the charges against the petitioner. The first version of Kumari Komal Bhatt as has been recorded in Ex.7 has been proved even from her statement when she has also been examined as PW-7. Other evidence has merely provided corroboration to her evidence and proved the charges against the petitioner. It has to be kept in mind that while in criminal cases. The first version of Kumari Komal Bhatt as has been recorded in Ex.7 has been proved even from her statement when she has also been examined as PW-7. Other evidence has merely provided corroboration to her evidence and proved the charges against the petitioner. It has to be kept in mind that while in criminal cases. the offence is required to be proved beyond reasonable doubt but in the departmental inquires, the charges are required to be proved by only preponderance of evidence. This Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India can in disciplinary matters merely examine the decision making process and cannot go into its legality of the decision itself. If there is some evidence which can sustain the finding of guilt, this Court cannot substitute the conclusion arrived at by the inquiry officer and on that basis decision of the disciplinary authority just because another view is possible on available evidence. Although in the present matter, having regard to entire evidence as aforesaid, in my considered opinion no other view than the one arrived at by the disciplinary authority can be taken on the basis of evidence available on record. 13. The Hon'ble Supreme Court in the case of the High Court of Judicature at Bombay v. Shashi Kant S. Patil & Anr., 1999(4) SCT 770 : AIR 2000 SC 22 , held that if there is some legal evidence on which the findings can be based then adequacy and reliability of that evidence is not a matter for the High Court to examine. The High Court cannot hear the writ petition as though it were an appeal against the order of disciplinary authority. Relevant portion of the judgment is extracted as under:- "The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of administrative/disciplinary authority of the High Court. The High Court cannot hear the writ petition as though it were an appeal against the order of disciplinary authority. Relevant portion of the judgment is extracted as under:- "The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable persons could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution." 14. I am also not pursued to accept the argument of learned counsel for the petitioner that because Shri Khinchi respondent No. 3 happened to be present during the inquiry proceedings, the proceeding of inquiry would be vitiated. The judgment of this Court in Dr. Shyam Lal Mathur (supra) cited by learned counsel for the petitioner is distinguishable because that was case relating to the proceedings of selection committee and not of disciplinary proceedings. 15. Regarding the argument that the allegations against the petitioner would have constituted an offence under Section 354 Indian Penal Code and therefore, it was cognizable offence and therefore, when the SHO, Police Station and Addl. Superintendent of Police in spite of having came to know about the offence against the petitioner, did not take any action therefore, on that basis, disciplinary proceedings against the petitioner should fail, I can only observe that this argument also merits outright rejection. Superintendent of Police in spite of having came to know about the offence against the petitioner, did not take any action therefore, on that basis, disciplinary proceedings against the petitioner should fail, I can only observe that this argument also merits outright rejection. In the first place, here was a case where a senior officer of the rank of Dy. Superintendent of Police had tried to make advances towards a lady constable lowest in the hierarchy in the police set up. Such an incident, as it were, must have sent shocking waves in the entire system. The Addl. Superintendent of Police received her complaint and made arrangement of her safe stay in his office. Even if regular criminal case was not registered, that would not by itself preclude the disciplinary authority to hold a regular disciplinary proceedings against such an erring officer. Accepting such an argument would only amount to giving premium to unethical and immoral conduct of the delinquent which was highly unbecoming of a senior police officer. If the charges against the delinquent has been proved in the departmental inquiry and if on that basis a separate criminal prosecution can also be launched, mere absence of one cannot lead to failure of the other because in the departmental inquiry nature of the charges is different. It is trite law that the disciplinary proceedings can be held even when the criminal proceedings have not been launched and can also be held even when launched and failed and, therefore, this argument is also liable to be rejected. 16. Further argument of learned counsel for the petitioner was that because of non-summoning of the Dak Register of the SP office Chittorgarh and non- recording of the statement of SDO, the inquiry should be taken have been vitiated. This argument also merits rejection because SDO nowhere figures in the entire chain of the evidents, which unfolded the whole incident giving rise to the charges against the petitioner and, therefore, his relevance having not been established, his non-examination can not have the effect of vitiating the inquiry. As regards non-production of Dak Register, the statement of Kailash Meena itself is comprehensive and he has not wavered from his version even during cross-examination. Mere non-summoning of Dak Register by itself therefore did not cause any prejudice to the petitioner. 17. As regards non-production of Dak Register, the statement of Kailash Meena itself is comprehensive and he has not wavered from his version even during cross-examination. Mere non-summoning of Dak Register by itself therefore did not cause any prejudice to the petitioner. 17. Upshot of the above discussion is that there is no merit in the writ petition. 18. In the result, the writ petition fails and is hereby dismissed. There shall be no order as to costs.Petition dismissed. *******