A.K.Sengupta, J. - (1.) The petitioner, who was a Constable in the Railway Protection Force of Eastern Railway, has challenged in this writ application the disciplinary proceeding culminating into the order of removal from service passed on 9th March, 1989. He has also challenged the appellate order dated 3rd January, 1990 rejecting the appeal and the revision preferred by him. It may be mentioned that the petitioner was placed under suspension on 11th May, 1988 and the suspension was not revoked and continued till the order of removal from service was passed on 9.3.1989. The charge against the petitioner is as follows :- "Charge-For gross neglect of duty in that while be was detailed for T.A. and guarding Malkhana duly from October (sic) to 8-00 of 11.5.88 was found in deep sleep about 21 hours by HE/146C P. N. Sharma who in course of his round visited and checked hazat room and found the four accused persons had managed to run away by breaking open the door of hazat room".
(2.) The Enquiry Officer was appointed by the Assistant Security Commissioner who enquired into the said charges. The findings of the Enquiry Officer recorded in his report are as follows :- "Reason of finding-As to the first part of the charges as having been found asleep on duty, it is well proved by P. W. 3 Sri P. N., Sharma who stated that on his visit to HWP/Office at 2-30 hrs. he found the delinquent sleeping on bench inside telephone room and was awaken by HC/P. N. Shama. He also made a diary to the effective Ext. VII. The more exclusive proof of the charge of found deep sleep is the self admission by the delinquent in his defence statement when he stated that it was fact that he was detailed for T.A. and Malkhana Guarding on 11.5.88 in HWP Office and in course of his duty he felt weak at 1-30 hrs and 2-30 and lay down in the telephone room and could not know when he slept. He was awaken by Sri P. N. Shama at 2-30 hrs. Only then he came to know the accused persons had fled away from the Hazat, escape of the accused persons further confirmed that the delinquent was in deep sleep otherwise he would have prevented and detected it. So as to the delinquent being charged with the responsibility of the escape of the 4 accused persons from the, hapat the only P.W. to prove the charge is Sri H. Hambroom PW-II who held him responsible in his report vide (Ext-IV). In response to question 2 asked by the delinquent as to why he was held responsible for the escape of 4 accused persons when he was not detailed for accused guarding. Sri M. Hanbrom replied and resorted to the point that hazat room was stated in MPF/Office building on 1st floor on PF-No. 16 and there is only one entrance gate (door) and T.A. on duty uses to perform duty from the entrance gate where there is position of telephone. He further stressed that there is no other ways to escape the accused person except through the said entrance gate. Had the delinquent remained alert he would have detected and prevented the escape of the accused persons. Here it requires a special mention to be made that the delinquent was not detailed for accused guarding duty, hence the charge is not proved only on the point of the T.A. and Malkhana duty being the same place having only one entrance gate as that of the hazat where accused persons had been kept. His alertness would have certainly averted the mishap. However the end of justice cannot be met out until I am emphatic to say that the gravity of the charge cannot be the same with the delinquent A. K. Biswas on T.A. and Malkhana duty as, it should lie with the delinquent Ram Monorath who was specially and exclusively deputed for accused guarding, otherwise the assignment of 'specific duty' will be loosing its sense that the word 'exclusively' will loose the honour of its meaning The only point the delinquent put forward in his defence is his feeling unwar on duty for which he produced a PMC of Dr. B. Sarkar dated 9.5.88 during proceeding enquiry which I do not think stand strong to support as it dates made to 9.5.88 and it was only after he felt better that he reported for duty otherwise he should have reported sick (PMC is DW Ext. I)."
(3.) After the enquiry report was submitted, the Assistant Security Commissioner passed an order on 6th March, 1989 to the following effect :- "Perused the records of the case and the findings arrived at by the Enquiring Officer, Sri R. B. Singh, PC/MBG. The E.O. has held the delinquent guilty of the charge. In the case against the delinquent 4 accused persons had escaped from the Post Hazat where the delinquent was on duty and this duly was performed by the delinquent in such a negligent manner that the accused persons got opportunity to break open the hazat door and escaped. Although there is no element of connivance on the part of the delinquent as found in the proceeding enquiry but the fact that the delinquent was completely negligent is apparent and requires no further ellucidation. I agree with the findings drawn by the E.O. and hold the delinquent guilty of the charges levelled against him. The charges are of serious nature and they have been proved beyond any shadow of doubt. But I feel that the powers vested in me as ASC to inflict punishment in the interest of the justice against the delinquent Constable/5215 A. K. Biswas." "The case, therefore is referred to DSC/HWH-I for final orders".;