Vijay
Kumar Nigam Vs. State of M.OP. & Ors [1996] INSC 1409 (6 November 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
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 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.
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