The court held that an employee cannot be dismissed from service for unauthorized absence if the absence was not deliberate or wilful, and was caused by unavoidable circumstances.

Samaresh Banerjea, J.

In the present writ application, the petitioner, who was a constable in Central Industrial Security Force at Hindusthan Fertiliser Corporation Ltd., Durgapur Unit, has challenged his order of dismissal dated 21.7.92 passed in a disciplinary proceeding.

2. Admittedly, the petitioner while in service proceeded on out pass to his native place from 17.12.87/1500 hrs. to 19.12.87/1800 hrs. Admittedly, the petitioner could not return within the aforesaid time but reported for duty at 06.44 hours on 20.12.87 and was allowed to join his duties.

3. Thereafter, admittedly a disciplinary proceeding was initiated against the petitioner on the following two charges :

"Article of Charge I : A gross misconduct and indiscipline in that No. 834310050 constable P. Hembram proceeded on out pass for his native place from 17.12.87/1500 hrs. to 19.12.87/1800 hrs. with the direction to report back for duty on 19.12.87/1800 hrs. but failed to report back on due date and time i.e. 19.12.87/1800 hrs.

Article of Charge II : A gross misconduct and indiscipline act in that No. 834310050 constable P. Hembram over-stayed his out pass permission granted to him and further fail to inform about his involvement in the criminal case."

4. A disciplinary proceeding was thereafter initiated against the aforesaid charges wherein ultimately, it appears that the Enquiring Officer submitted a report finding the petitioner guilty of misconduct, a copy of which was admittedly supplied to the petitioner. It also appears admittedly, the petitioner made a representation against the same and thereafter by the impugned final order, the petitioner was dismissed from service.

5. It may also be recorded that admittedly, the Superintendent of Police, Hooghly by his Memorandum dated 4.1.88 forwarded, a prayer of the Investigating Officer to Pandua P.S. Case No.8 dated 19.12.87 under section 302 of the Indian Penal Code to the Commandant of the CISF Durgapur, intimating him that the petitioner was wanted in such case. The petitioner was thereafter arrested. Admittedly, in the said Criminal Case the petitioner, ultimately has been acquitted honourably by judgment and order dated 16.2.98 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly, in Sessions Trial No. 141/98. In the said judgment it was held by the learned Judge that the prosecution neither adduced direct evidence nor circumstantial evidence that the accused person caused the death of Panu Soren, the daughter of the de facto complainant or the accused person did any act with intention of causing death of said Panu Soren. Be it noted that the victim is the sister-in-law of the present writ petitioner.

6. The present writ petition has been moved challenging the aforesaid order of dismissal after the acquittal of the petitioner from the said criminal case.

7. The main challenge of the order of dismissal of the writ petitioner is that the Charge No. II, namely, that the petitioner overstayed his out-pass permission granted to him and further, failed to inform about his involvement in the criminal case is absolutely void and illegal.

8. Learned Counsel for the petitioner has submitted, inter alia, that a person can be said to be involved in a criminal case only when he is an accused in such case and the police puts him under arrest, in the instant case, admittedly, the petitioner came to know that he is an accused in the said case only when the Superintendent of Police, Hooghly, forwarded a report of the Investigating Officer to the Commandant on 4.1.88 when the petitioner was also put under arrest but prior thereto, he Bever being in custody of the Police nor being aware that he is an accused in criminal case, the question of knowing about his alleged involvement in the criminal case cannot arise.

9. It has been further submitted that so far as the other charge is concerned, namely, that he failed to report back to duty on due date i.e. by 18 hrs. of 19.12.87, the disciplinary authority as als