Hrishikesh Roy, J.

1. Heard Mr. P.K. Roy, the learned Counsel appearing for the petitioners in the two cases. The State respondents are represented by the learned Government Advocate Ms. H.M. Phukan.

Both cases arise out of a common disciplinary proceeding and identical punishment of removal from service has been inflicted on the 2 policemen. For the records, the petitioner Nandalal Das was a Constable arid the petitioner Bidyadhar Saikia was a Lance Naik in the Assam Police and the disciplinary proceeding was drawn up against both for their alleged negligence while being posted in March 2003 as armourer in the Arms Kote in the Morigaon District Police Reserve. To avoid confusion, the facts herein are extracted from the WP (C) 4598/2007 filed by Nandalal Das.

FACTUAL BACKGROUND

During inspection of the Arms Kote of the Morigaon Police Reserve on 25.3.2003, the Addl. S.P. (H.Q.) discovered that seven 9 MM Browning Pistols with 1 magazine each and 285 rounds of live ammunitions were missing from the Armoury. As the petitioners were assigned duties in the Arms Kote during the relevant period, the Charge Memo(s) dated 1.5.2003 was drawn up against them on the following statement of allegations:

ABC/344 Nandalal Das while he was posted at Arms Kote Morigaon Police Reserve as Inspector, 7 (seven) Nos. Of 9 MM B/Pistol with one Magazine each and 285 rounds of 9 MM live Ammunition was found short in stock of Armoury Morigaon Police Reserve during physical checking of Arms and Ammunition of the Arms Kote by the Addl. S.P. (HQ) Morigaon on 25.3.2003. On query he could not give any proper account of the said short Arms and Ammunition and there is reason to believe that the abort Arms and Ammunition may be appropriated by him. All those acts of his are tantamount to gross negligence and misconduct on the part of his duty and liable for stern departmental action.

LNK/Bidyadhar Saikia while he was posted at Arms Kote Morigaon Police Reserve for keeping the accounts of Arms and Ammunition issue and receipt of the same, found 7 (seven) Nos. Of 9 MM B/Pistol and 285 rounds of 9 MM live Ammunition short in the Arms Kote during the physical verification of Addl. S.P. (HQ) Morigaon on 25.3.2003. But on query he could not give any proper accounts of short Arms and Ammunition of the Armoury, Morigaon Police Reserve. As such he had done the duty very negligently and careless manner which had led to loss of such valuables Govt. Property.

Further he had signed the Morning Report of Arms Kote, Morigaon Police from 04.03.2003 to 15.03.2003 and 17.3.2003 to 24.3.2003 inspite of the presence of the senior Armourer. He thereby did this act with malafide intention and there is sufficient reason to believe that said lost Arms and Ammunitions were mis-appropriately by him with others by giving false statement concealing the facts from the authority. All these act of his tantamount are gross negligent, misconduct and dereliction of duty on his part and liable for stem departmental action.

2. In their reply to the show-cause-notice, the petitioners stated that they were not entrusted with the keys of armoury which were kept by the Arms Branch Inspector (ABI) or the Reserve Officer and in their absence by the Head Armourer, Habildar Deepak Muktiar. Moreover neither the Constable nor the Lance Naik were made custodian of the armoury stores and their duty was limited to clean and issue weapons on instruction of their superior, during their stint in the armoury. But considering the replies to be unsatisfactory, an enquiry was ordered and the D.S.P. (HQ) Morigaon conducted the enquiry against the 3 charged policeman including the Head Armourer.

3. In the proceeding, 5 witnesses were presented by the prosecution but the delinquents didn't avail of the opportunity to cross-examine those witnesses. Moreover no defence witnesses produced by them. On the basis of purported consideration of the material evidence, the inquiry officer concluded that the charge of gross misco