Judgment Biswanath Rath, J. By filing the present writ petition, the petitioner has sought for issuance of a writ of mandamus quashing the impugned order under Annexure-9 of the writ petition. The facts involved in the writ as borne out from the writ petition as well as the submission of the petitioner is that the petitioner was appointed as a Field Man Demonstrator in the establishment of the opposite party. He claimed to have been discharging his duties with dutifulness and to the best satisfaction of his authority. He has not suffered during his entire service career, while he was working as such on 09.07.2003 an office order was issued by the opposite party no.1 placing the petitioner under suspension indicating therein that he has been placed under suspension on account of his detention in custody on 07.02.2003 and the detention by exceeding 48 hours. He has been suspended from the date of detention, i.e., 07.02.2003 in terms of Rule-12(2) of the Orissa Civil Services (CCA) Rules, 1962 and under Statute 46 of the OUAT Employee Detention of Service Statute, 1989 as appearing vide Annexure-1. 2. The petitioner further contended that consequent upon the development a regular disciplinary proceeding was initiated against him on 30.12.2003 following service of article of charges on his alleged unauthorized absence from Headquarters and suppression of factum of arrest as well as detention in jail custody and misconduct. The petitioner submitted his reply on 26.01.2004 denying the allegations made therein. 3. In the meanwhile, the petitioner faced with a Criminal Proceeding vide Nayagarh P.S. Case No.166 of 2002 and upon completion of trial in connection with the aforesaid Criminal Proceeding, the petitioner was convicted by the judgment of the learned Additional Sessions Judge, Nayagarh in S.T. Case Nos.174/101/107 of 2005/2004, S.T. Case Nos.175/102/204 of 2005/2004 and S.T. Case Nos.176/8/26 of 2005 convicting the petitioner under Sections 302/120-B, I.P.C. and sentencing him to undergo R.I. for life with fine of Rs.5,000/-, and in default to undergo R.I. for further period of six months. The petitioner challenged the above judgment in this Court in Criminal Appeal No.38 of 2007 and this Court by judgment dated 04.11.2009 passed in Criminal Appeal Nos.564 of 2006 and 38 of 2007 as appearing at Annexure-4, pleased to set aside the order of conviction and sentences and acquitted petitioner and others entangled in both appeals from the charges under Sections 302/120-B, I.P.C. 4. Be it stated here that following his acquittal in the Criminal Appeal by this Court vide Annexure-4, the University vide officer order dated 26.02.2010 reinstated the petitioner into service with effect from 17.11.2009 and posted the petitioner at the disposal of Dean, College of Agriculture, Bhubaneswar pending finalization of the Disciplinary Proceeding. It is the further case of the petitioner that being aggrieved by the above office order, the petitioner submitted a representation before the Registrar of the opposite party University for regularization of his service and allowing him with all other consequential service and financial benefits. The petitioner made a specific claim, claiming his regularization of all the period of service with effect from 07.02.2003, the date on which the petitioner was placed under suspension. He further submitted that in the meanwhile, the enquiry proceeding also proceeded and the enquiry was closed with a single sitting submitting a report thereby against the petitioner. Being noticed to show-cause, the petitioner objected the enquiry proceeding on the ground that he has not been given a chance in the enquiry, while the position stood thus the petitioner was served with an office order dated 15.07.2011 referring therein to the decision of the Board of Management by Resolution No.3703 dated 02.07.2011 treating the period of suspension of the petitioner as “No work no Pay” and disallowing any other service or pensionary benefit for the period between 04.02.2003 to 25.02.2010 as appearing at Annexure-9. 5. The petitioner assailed the above order of punishment in this writ petition on the ground that the entire action of the opposite party University in issuing the letter is dehors under OCS (CCA) Rules, 1962 at OUAT Statute, 1989 as well as cannons of law, before imposing major penalty, the petitioner alleged that he was not even issued with a show-cause notice before the impugned action was taken. The petitioner also assailed the impugned order for lack of opportunity of hearing in the proceeding. The petitioner also assailed the impugned order for lack of opportunity of hearing in the proceeding. While referring to Rule 91(2) and 93 of the Orissa Service Code (for short ‘the OSC’) Rules, 1962 the petitioner claimed that when he has been fully exonerated from the charges based on which the impugned suspension order and the disciplinary proceeding was initiated, he is entitled to all his back wages along with treatment of no break in service. 6. Per contra, the university on its appearance filed a counter inter alia contending that the university had rightly placed him under suspension for his unauthorized absence from service from 04.02.2003 to 05.02.2003 on the plea of his daughter’s marriage. During that period, he was detained in custody in connection with Nayagarh P.S. Case No.166 of 2002 and was detained in police custody up to 07.02.2003. Consequently his detention exceeded 48 hours, the university also claimed its action is valid in view of provisions contained under Statute 46 of Orissa University Agriculture and Technology Employees Conditions of Service Statute, 1989. Further its action being protected under Rule 12, 15 and 16 of Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. Further claim of the opposite parties is that the petitioner faced with a disciplinary proceeding and the Enquiry Officer submitted a report on 17.08.2010 with specific recommendations, which is quoted herein below:- “The arrest and confinement of the petitioner is a result of criminal case from which he has already been acquitted by the Hon’ble Court, Odisha, He spent more than 6 years in custody and definitely would have gone mental stress and financial loss. As explained, therefore, all the charges leveled against him may not be treated as deliberative or intentional, rather co-incidental and circumstantial” 7. The university contended that since the petitioner had suffered more than 6 years in Jail custody it called for a clarification from the Government regarding regularization of his service vide their letter No.58758/UAT, dated 24.11.2010 in response to which Government by communication dated 06.04.2011 while giving a clarification asked by the university, instructed it to obtain clarification from S.P., C.I.D., Crime Branch, Cuttack in the matter if, there is any development to the criminal case. To the quarries of the university, the S.P. Crime Branch, Cuttack submitted the reply indicating that they have not preferred any appeal against the judgment of the High Court, the opposite party university justified its action taking the protection of Statute 45(1)(2) of the OUAT University Statute, which provides no university employee shall be granted leave of any kind for continuous period exceeding five years. On placing the clarification of the State Government as well as the inputs provided by the S.P. Crime Branch, Cuttack, the Board of Management while considering the matter of the petitioner resolved for no service benefit including the pensionary benefits for the period of absence of the petitioner. 8. In the above premises, it is now necessary to consider as to whether the petitioner’s absence from service over 5 years is bona fide and he has to suffer the entire period of his absence, in view of the provision at 45(1) and (2) of the Orissa University of Agriculture and Technology Statute, 1986? And further if the petitioner had suffered on account of non-compliance of principle of natural justice before providing a major penalty vide Annexure-9. Before proceeding to answer the above issues, it is necessary here to reproduce the provisions contained at provision 45(1) and (2) of the University of Agriculture and Technology Statute, 1966. “45.(1) No University employee shall be granted leave of any kind for a continuous period exceeding 5 years. (2) Where a University employees does not reasume duty after remaining on leave for a continuous period of 5 years or where a University employee after expiry of his leave remains absent from duty otherwise than on foreign service or an account of suspension, for any period which together with the period of the leave granted to him exceeds 5 years, he shall unless the University in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned and shall accordingly cease to be in the employment of the University.” 9. On bare perusal of the above provisions makes it clear that the provision applies to a person/employee, who does not resume duty after remaining on leave for a continuous period of five years or where a university employee after expiry of his leave remains absent from duty otherwise than on foreign service on account of suspension for any period which together with the period of the leave granted to him during suspension exceeds five years, he shall unless the university in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned. It is in this context since the petitioner remains absent for his languishing in jail as because of his suffering a judgment of conviction in a criminal proceeding in S.T. Case Nos.174/101/107 of 2005/2004, S.T. Case Nos.175/102/204 of 2005/2004 and S.T. Case Nos.176/8/26 of 2005, he was absenting from his duty under the compelling circumstance. For his acquittal by this Court in Criminal Appeal No.564 of 2006 and Criminal Appeal No.38 of 2007 ought to have been treated an exceptional circumstance and as such provision contained in 45(1) and (2) of the OUAT Statute, 1966, have been misapplied to the present case. The opposite party failed to understand the provisions contained in its statute and has proceeded wrongly in the matter. The impugned order under Annexure-9 being passed in above wrong premises ought to suffer and observe to interfere and set aside. 10. Besides the perusal of the opposite parties counter as well as the argument made through their counsel during the course of hearing it could not be made clear that the petitioner was provided with an opportunity of show-cause before the passing of the impugned major penalty order. The petitioner’s submission to the above regard is found to have force. 11. Under the above premises and the findings arrived at while answering both the issues in favour of the petitioner and as against the opposite parties, I declare the impugned order vide Annexure-9 as bad in law and while setting aside the same I direct the opposite parties to treat the petitioner to have been continuing in service without any break in his service. So far as the prayer of the petitioner for back wages is concerned, even though the petitioner was prevented from joining his duty for his suffering on account of bad judgment of conviction by the trial court yet keeping in mind that he had not performed his duty for the entire period, he may be paid with 50% of back wages for the period under dispute. 12. Under the above circumstance, the writ petition succeeds to the extent directed hereinabove. However, there shall be no order as to costs.