SOUMITRA PAL, J. ( 1 ) THE petitioner in the application has challenged the order passed in 9th September, 1997 in T. A. No. 262 of 1996 by the learned State administrative Tribunal dismissing the prayer for quashing the order of dismissal of the petitioner from service. ( 2 ) THE petitioner has stated that in 1966 he was appointed as helper majdur in the Transport Department under the State. In the year 1991 while working he became seriously ill. The authorities after considering his case posted him temporarily for a period of three months at Diamond Harbour. Thereafter, he rejoined at Lake Garage. However, his health did not improve. He became a psychiatric patient. It is stated that the doctor advised him to do light job and not to undertake long journey. He prayed before the authorities for examination by a medical board. It appears that in the meantime he had obtained the loan of Rs. 51,700/- for purchasing a ready-built house on condition that he shall deposit the deed with the authorities. It also appears during this time due to prolonged indisposition the petitioner was unable to attend office. The authorities drew up proceedings on two charges - misappropriation of the loan amount and unauthorized absence - with which we shall deal with later. The proceedings were conducted and concluded allegedly behind the back of the petitioner. The petitioner was held guilty on both the charges and was dismissed from service. ( 3 ) BEING aggrieved, the petitioner challenged the order of dismissal by filing a writ petition. During its pendency the State Administrative Tribunal was set up, to which it was transferred. The Tribunal by its order held that the petitioner had misappropriated the loan amount and the absence of the petitioner was unauthorized and upheld the order of dismissal. ( 4 ) AGGRIEVED still, the petitioner filed the instant writ application. Reiterating the statements in the petition it was submitted that the order of dismissal on the ground of misappropriation was illegal since the loan was from the account of the petitioner and sufficient reason was shown why the house could not be purchased. Moreover, the petitioner could not attend office as he was seriously ill which was known to the authorities. These, according to the petitioner, did not constitute misconduct which can warrant dismissal from service. Moreover, the petitioner could not attend office as he was seriously ill which was known to the authorities. These, according to the petitioner, did not constitute misconduct which can warrant dismissal from service. It was submitted in the facts and circumstances, provisions of Rules 3 (1) and 3 (2) of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 (for short "the rules") do not apply and thus, the Tribunal erred in upholding the order of dismissal. Mr. Amal baran Chatterjee, learned Advocate appearing for the petitioner relied on the judgement of the Apex Court in Union of India and Ors. vs. J Ahmed, reported in air 1979 SC 1022 , in support of his arguments. ( 5 ) MR. Tarun Roy, learned senior Advocate appearing on behalf of the State authority submitted that since the petitioner could not establish the fact that he had made an advance for purchasing the house, the authorities were justified in coming to the conclusion that he had misappropriated the sum for personal gain which was a misconduct under the rules. Regarding unauthorized absence, it was argued that as the petitioner did not report for duty for a considerable length of time and no cause was shown justifying such absence, the charge levelled was just. ( 6 ) NOW the issues which are to be considered-first, whether the Articles of charges framed were grave enough to warrant dismissal of the petitioner from service and second, whether the learned Tribunal was justified in upholding the order of dismissal. In order to address the issues let us look at the Articles of Charges framed against the petitioner which are extracted hereunder :"article of Charge No. I sri Gour Hari Kayal, Cleaner Mechanic while working at C. T. F. Lake Garage under the Directorate of Transportation committed gross misconduct by failing to maintain absolute integrity, honesty and behaved in a manner unbecoming of a public servant inasmuch as on 31. 3. 93 he received a cheque bearing no. 415464 dt. 30. 3. 93 amounting to Rs. 51,700/- from the cash section of Special officer (Accounts) Transportation which was sanctioned to him for purchase of a ready built house but Sri Kayal did neither purchase the said house nor refund the money to the Govt. rather he misappropriated the amount for his personal wrongful gain. 415464 dt. 30. 3. 93 amounting to Rs. 51,700/- from the cash section of Special officer (Accounts) Transportation which was sanctioned to him for purchase of a ready built house but Sri Kayal did neither purchase the said house nor refund the money to the Govt. rather he misappropriated the amount for his personal wrongful gain. By the aforesaid acts, Sri Kayal contravened Rules 3 (1) and 3 (2) of the West bengal Services (Duties, Rights and Obligations of the Government Employees)Rules, 1980. Article of Charges No. II the said Sri Gour Hari Kayal, Cleaner Mechanic while working as C. T. F. Lake Garage under the Directorate of Transportation committed gross misconduct by absenting himself from duties unauthorisedly with effect from 19. 4. 93 till date without submitting any leave application. By the aforesaid acts, Shri Kayal has contravened Rules 3 (1) and 3 (2) of W. B. S. (Duties, Rights and Obligations of the Govt. Employees) Rules, 1980 read with Rule 34 Note 2 (iv) of W. B. S. R Part-I. " ( 7 ) IN order to appreciate whether the petitioner contravened the rules it is necessary to examine the rules in question vis-a-vis the facts. The rules are as under :"r. 3. Duties.- The following shall be the duties of a Government employee- (1) Every Government employee shall bear in mind that he is a public servant; he shall faithfully discharge his duties, shall always behave courteously with the members of the public or colleagues with whom he has to come in contact in the discharge of his duties as a public servant and shall always try to help them in all possible ways through quick and faithful discharge of the duties assigned to him. (2) Every Government employee shall in the discharge of his duties rise above all personal, political and other considerations and maintain integrity, impartiality and devotion of duty. " ( 8 ) IT is admitted that the petitioner had taken a loan of Rs. 51, 700/- from the state authorities for purchasing a ready built house which ultimately did not materialize. The petitioner had stated in her letter dated 3rd December, 1993 that he had made an advance of Rs. " ( 8 ) IT is admitted that the petitioner had taken a loan of Rs. 51, 700/- from the state authorities for purchasing a ready built house which ultimately did not materialize. The petitioner had stated in her letter dated 3rd December, 1993 that he had made an advance of Rs. 40,000/- to the vendor who was unwilling to sell since he could not collect and pay the entire sum and had spent a part of the loan to meet his medical expenses and that of the family. He also undertook to repay the loan by any means. That he had paid a sum of Rs. 40,000/- as earnest money is apparent from the admission of the vendor recorded by an officer of the State. Under such circumstances can it be said that the petitioner"had obtained loan fraudulently with intention not to refund the same" (show-cause notice) and thus, "had misappropriated the amount for his personal wrongful gam?" (Article of Charge No. 1 ). Since the sum was not refunded, can it constitute gross misconduct on the alleged ground that he had failed to maintain absolute integrity, honesty and behaved in a manner unbecoming of a public servant or failed to maintain impartiality and devotion of duty ? The answer has to be in the negative as it was revealed that the loan was not out of the funds of the State but from his own account. Incidentally, the term 'misappropriate' means to take money belonging to somebody else for himself. So the conduct. of the alleged delinquent should reveal that he tried to take the amount fraudulently. However, in the instant case, the element of fraud or deceit is absent since the loan was from his own account. Therefore, the charge of misappropriating for personal wrongful gain does not arise at all. Moreover, the State did not suffer any pecuniary loss. True, a part of the money was used for a different purpose - for medical treatment, but the fact of long illness cannot also be ignored. Thus, so far as charge No. 1 is concerned, in the facts and circumstances, as there is no question of misappropriating the amount for his personal gain, the allegation of not maintaining integrity and devotion of duty envisaged under the rules particularly Rule 3 (2) of the rules does not arise. Thus, so far as charge No. 1 is concerned, in the facts and circumstances, as there is no question of misappropriating the amount for his personal gain, the allegation of not maintaining integrity and devotion of duty envisaged under the rules particularly Rule 3 (2) of the rules does not arise. ( 9 ) SO far as the charge regarding unauthorized absence is concerned, it is evident that the petitioner was ill and could not attend office, had to undergo treatment at the Institute of Psychiatry at Calcutta and had sought for voluntary retirement. In such circumstances, the authorities should have exercised restraint before meeting out the order of dismissal on that said charge too. The respondents should have adopted a humane instead of harsh approach since it resulted in the loss of livelihood of the petitioner. In such a backdrop of facts, it could have at best warranted imposition of censure or withholding of increments or promotion. Thus, for the reasons as stated, the dismissal on the ground of unauthorized absence cannot be sustained and hence, set aside. ( 10 ) BEFORE parting with the judgement we want to point out that during hearing on behalf of the State it was emphatically submitted that the petitioner had committed gross misconduct and hence, the punishment. According to stroud's Judicial Dictionary "misconduct" means misconduct arising from ill-motive; acts of negligence. Errors of judgement or innocent mistakes, do not constitute such misconduct. In our view obtaining loan from his own account and utilizing a part of the same for treatment cannot be termed as ill-motive but an innocent mistake. Similarly unauthorized absence on account of illness is also a mistake as nobody would have ventured to remain absent at the risk of losing his job unless one was compelled to do so. The Apex Court in Union of india and Ors. vs. J. Ahmed (supra), relied on behalf of the petitioner, while interpreting the All India Services (Conduct) Rules, 1964 held that "code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct. " Thereafter, the supreme Court went on to hold "it is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpablility would be very high. " (paragraph 11) The law laid down by the Apex Court is applicable to the facts of the instant case as the conduct of the petitioner as noted in this judgement cannot be said to be blameworthy to come within the scope of misconduct. In upholding the order of dismissal the learned Tribunal, in our view, erred itself by adopting a technical approach. ( 11 ) THUS, the writ application succeeds. The judgment passed by the learned state Administrative Tribunal in 262/96 is, therefore, set aside and quashed. Consequently, the memorandum dated 1st September, 1994 containing the articles of Charges, the proceedings and the order of dismissal dated 28th August, 1995 are also set aside and quashed. The respondent Nos. 1,2 and 3 are directed to reinstate the petitioner in service within a fortnight from the date of communication of this order. In the facts and circumstances the said respondent are also directed to treat the absence of the petitioner from 19th April, 1993 to 28th August, 1995 to be treated as leave without pay. So far as the absence from 29th August, 1995 till the date of joining is concerned justice would be subserved if the respondents are directed to pay 50 per cent of the salary for the said period and, therefore, the same is directed to be paid by the respondents within a period of eight weeks from such communication. So far as the absence from 29th August, 1995 till the date of joining is concerned justice would be subserved if the respondents are directed to pay 50 per cent of the salary for the said period and, therefore, the same is directed to be paid by the respondents within a period of eight weeks from such communication. However, this order shall not prevent the authorities from imposing any minor penalty under the rules on the petitioner on his reinstatement. No order as to costs. Writ application succeeds.