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PETITIONER: VIJAY KUMAR NIGAM (DEAD) THROUGH LRS.

       Vs.

RESPONDENT: STATE OF M.OP. & ORS.

DATE OF JUDGMENT:       06/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: Present:      Hon’ble Mr.Justice K. Ramaswamy      Hon’ble Mr.Justice G.B.Pattanaik      Nemo for the appellants.      S.K. Agnihotri, Adv. for the Respondents                          O R D E R      The following Order of the Court was delivered:      Though the  legal representatives of the appellant have been brought on record, they did not appear either in person or through  counsel. We  have taken  the assistance  of Shri S.K. Agnihotri, learned counsel for the State.      The appellant,  while  working  as  Sub-Inspector,  and being in-charge  of the  Police Station  Pakhanjur, District Jagadalpur, on  receipt of  illegal gratification  failed to prevent  the   running  of  common  gambling  house  of  one N.K.Ghosh.  Consequently,   in  the   departmental   enquiry initiated  against  him,  the  Enquiry  Officer,  after  due enquiry and giving him opportunity, found that the appellant had received  illegal gratification  form the  organiser  of gambling, N.K.Ghosh.  Thereby, misconduct was proved against him, Based  thereon, he  was dismissed from service by order dated July  31,1971. On  appeal, it  was  confirmed  by  the Inspector General  of Police by order dated January 21,1974. The  same   came  to  be  challenged  in  the  Misc.Petition No.204/74. The  Division Bench  of the  High  Court  in  the impugned judgment  dated May  2,1978,  dismissed  the  same. Thus, this appeal by special leave.      Two grounds  have been pressed for consideration in the High Court and reiterated in the appeal. The main ground was that the report of the preliminary enquiry conducted against him before initiating departmental enquiry, was not supplied to him  and, therefore,  it is violative of the principle of natural justice.  The High Court has rejected the contention an, in  our view  quite, rightly.  The preliminary report is only to  decide and  assess whether it would be necessary to take any  disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee. The High Court also found as a fact  that at  the statements of persons that formed basis for report,  recorded during  the preliminary  enquiry  were

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supplied to  the delinquent  officer. It  was then contended that one  of the  constables, namely,  Palairam  was  a  co- accused who was also charge along with the appellant and his evidence was  taken into  consideration in  deciding against the appellant  which  is  inadmissible  in  evidence.  In  a departmental enquiry,  the  question,  whether  or  not  any delinquent officer  is co-accused with other does not arise. That would arise in a prosecution laid for officer under the IPC or  Prevention of  Corruption Act. The evidence recorded in the departmental enquiry stricto senso is not evidence as per the  provisions of  the  Evidence  Act.  Therefore,  the statement of  Palairam also  formed part of the record which could be  taken into  account in  adjudging  the  misconduct against the  appellant. The  Inspector General of Police had stated  that   even  if  that  evidence  was  excluded  form consideration, there  was other  sufficient evidence to come to the  conclusion that  the  appellant  had  taken  illegal gratification for  the organiser of gambling, Thus, the High Court has  not committed  any error of law in dismissing the writ petition of the appellant.      The appeal is accordingly dismissed. No costs.