VIJAY KUMAR NIGAM (DEAD) THROUGH LRS.versusSTATE OF M.P. AND ORS.

A              VIJA Y KUMAR NIGAM (DEAD) THROUGH LRS.
                                         v.
                           STATE OF M.P. AND ORS.

                              NOVEMBER 6, 1996

B               [K. RAMASWAMY AND G.B. PATTANAJK, JJ.]

         Service Law :

          Disciplinary inquiry-Sub-Inspector ofPolice-(;harged ofreceiving
C illegal gratification from organiser ofgambling-Misconduct proved against
    delinquent-Dismissal from service-Pleas of delinquent that he was not
    supplied with a copy of the report of preliminary inquiry and that the
    statement of the co-accused against the delinquent was inadmissible in
    evidence-Held, not sustainable-The preliminary report is only to decide
    and assess whether it would be necessary to take any disciplinary action



                                                                                    -
    against the delinquent and it does not form any foundation for passing the
D   order of dismissal against the employee-Jn a departmental inquiry the
    question whether or not any delinquent is co-accused with other does not
    arise and evidence recorded tht!rein stricto senso is not evidence as per the
    provisions of Evidence Act. Therefore the statement of <Jlher delinquent
    employee objected to by the appellant also formed part ofthe record which
E   could be taken into account in adjudging the charge ofmisconduct against
    the appellant.                     '

          Administrative Law :

          Natural justic,,_Disciplinary inquiry-Non-supply of copy ofreport
F ofpreliminary inquiry to delinquent-Held, does not violate principles of
    natural justice.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2564 of
    1980.

G        From the Judgment and Order dated 2.5. 78 of the Madhya Pradesh
    High Court in M.P. No. 204 of 1974.

            Nemo for the Appellants.

H           S.K. Agnihotri for the Respondents.
                                        544
                          V.K. NIGAM v. STATEOFM.P.                         545


         The following Order of the Court was delivered :                           A
           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.
                                                                                    B
           The appellant, while working as Sub-Inspector, and being in-charge
    of the Police Station Pakhanjur, District Jagadalpur, on receipt of illegal
    gratification fuiled 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 thatthe appellant had received illegal gratification from the organiser   C
    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 !he
    impugned judgment dated may 2, 1978, dismissed the same. Thus, this             D
    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         E
    principle of natural justice. The High Court has rejected the contention
    and, 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        F
    found as a fact that all 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 charged 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,         G
    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 !PC or prevention of Corruption Act. The evidence recorded in
    the depart1nental 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           H
    546                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A misconduct against the appellant. The Inspector General of Pclice had
    stated that even if that evidence was excluded from consideration, there
    was other sufficient evidence to come to the conclusion that the appellant
    had taken illegal gratification from the organiser of gambling. Thus, the
    High Court has not committed any error of law in dismissing the writ
    petition of the appellant.
B
           The appeal is accordingly dismissed, No costs.

    R.P.                                                    Appeal dismissed.