- (1.) THIS appeal at the instance of the petitioner (appellant herein)arises out of an order passed by the Hon'ble. Single Judge discharging the Rule. The petitioner appellant is a Head Constable of Head Q u a r t e r Company, 27 battalion C, R. P. F. On or about 24th of februaiy, 1972 the petitioner was directed to ascort deserter no. 2682, sweeper mohindra Mashi, from the District Jail of jullunder to detachment Head Quarters, 27 battalion C. R. P. F, Calcutta 40. The petitioner's duty was teaching duty, and he was a teaching Habildar. On receipt of the said instructions, it is alleged the petitioner asked for travelling expenses and trained constables, handcuff and rope which the petitioner thought to be essential to bring the prisoner to the place he was ordered to. It is alleged that no such things were supplied to him. It is further stated that no travelling allowances were also provided it is stated that the petitioner with there untrained men, who were also constable, went to Jullunder for the purpose of escorting the deserter. But as no travelling expenses were given to him he was short of money as a result of which he had to break his journeys for the purpose of collecting moneys from his relatives in Bhadai and benaras and reached Calcutta, in the process the deserter fled away and thereafter he reported himself at Calcutta. On 24th of March, 1972 the petitioner was chargesheeted with three charge levelled against him by the Commandant under section 11 (1) of the Central Reserve Police Force act, 1949 alleging that tho petitioner was responsible for gross misconduct in the discharge of the duties entrusted to him. The charge it; Annexure "b" to the petition. The first and second charges against the petitioner were that he being a responsible officer while escorting the deserter sweeper broke journeys is Bhadai and Banaras Railway stations the third charge is that the petitioner in defiance of the insiructions did not handcuff the deserter sweeper as a result of which he fled away from the our today of the escort party. This charge sheet was issued on the 21st of Match, 1972 and a copy of the same was given to the petitioner on 31st of March, 1972 with a copy to the Enquiry officer appointed. Thereafter, enquiry was held against him and the petitioner was found guilty of the charges as aforesaid and on the basis thereof, he was dismissed from service. With effect from order, that is, 25th of May, 1972.
(2.) IN the affidavit-in-Opposition filed by the respondents it is admitted case of the parties that the handcuff was not supplied to the petitioner as he did not ask for it. In our opinion, under the rules as laid down in Operational Hand Book of the Central reserve Police Force, it is provided that the inspecting officer shall satisfy himself that the escort is properly equipped with arms of the escorts. It is further provided in chapter IV, Part 1 order 44 That all arrangements regarding conveyance. Lights, padlocks, meals etc for prisoners shall be made by the department which requisitions escort. In order 45 of the said Chapter it is also provided that handcuffs shall be imposed on convicted prisoners when travelling by rail or road in accordance with the rules. In the present case admittedly such handcuffs were not supplied and conveyance allowances were also not given to the petitioner appellant. The only answer given in the affidavit-in-Opposition is that the petitioner did not ask for it. In our opinion, it is not for the petitioner to ask for but under the rules, as framed, it is for the department to provide the petitioner and others with the aforesaid materials for the purpose of escorting the prisoners. In that view of the matter, in our opinion, the finding of the Enquiry officer that handcuff was not given to him, he should have asked for it, does not stand scrutiny at all. In fact the enquiry officer found that the handcuff was given. But from the affidavit filed before this. Court it is clear that the handcuff was not given to the person who was to escort the prisoner,
(3.) THE next question which again to the root of the matter is that there was admittedly a preliminary enquiry before the proceeding was started by issuing a chargesheet. That report admittedly was not given to the petitioner appellant. The report was, however, considered, by the enquiry officer in his report also. This point was not allowed to be urged before the Hon'ble trial Judge, because it was not specifically taken in the writ petition. In our opinion, the fact on which. this argument could be advanced is also found in the report of the enquity officer and the question involved is on for the violation of the principles of natural justice which was admittedly taken in the petition itself. It further appears to us that apart from the question of natural justice, jt is provided in Rule 27 (1) (3) of that Act (2) when any document has to be relied upon in support of the charge, it shall be put in. evidence as exhibit and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibit or exhibits. It does not appear that any exhibit has been marked in respect of the preliminary report. Apart from that it is now concluded by the Court, that a preliminary enquiry is made evidence and it is taken behind the back of the delinquent, the delinquent must be supplied with preliminary report and a petitioner is given o copy of the said report or copy of the evidence adduced. At the enquiry stage the petitioner cannot cross examine the witness with reference to his earlier statements. In that view of the matter, in our opinion, on both these grounds the order of dismissal cannot be sustained and must be set aside.;