THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY W.P.No.33861 of 2010 ORAL ORDER: 1. The writ petition is filed with following prayer: “To issue a writ, order or direction preferably one in the nature of Writ of Certiorari calling for the records relating to and in connection with impugned Memo No.SE/O/RJY/PO/JAO/Adm/U3/D.No.188/2010 dated 8.4.2010 of the first respondent and Memo No.HRD/DC/PO- III/F.No.829/10/D.No.632/10 dated 9.11.2010 of the third respondent and set aside the same by declaring them as illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to drop disciplinary proceedings against the petitioner and further regularize the period from 23.2.2008 to 16.5.2008 as leave to which he is eligible with all other service benefits”. 2. According to the petitioner, he was appointed as Lower Division Clerk with effect from 5.12.1989 under the control and jurisdiction of the first respondent and has been working accordingly. The respondents proposed to convene Departmental Promotion Committee (DPC) to fill up the post of UDC by promotion, the petitioner made a representation for considering his case for promotion as UDC in the existing vacancy at ERO, Kakinada. The first respondent while promoting the petitioner as UDC posted him at Jaggampet Division vide orders dated 12.2.2008. Thereafter, the petitioner made a representation dated 16.2.2008 to the first respondent requesting him to cancel the promotion orders and requested to retain him at Kakinada on health grounds. Thereafter, the petitioner applied formedical leave from 23.2.2008 to 21.3.2008, which was rejected on 11.4.2008. The petitioner also filed Writ Petition No.7462 of 2008 in that context and it was disposed of by order dated 15.4.2008 directing the respondents to continue the petitioner as LDC at Kakinada observing that his promotion to the post of UDC stood cancelled and the first respondent should consider the feasibility of promoting him in the case of arising of UDC vacancy at Kakinada. As the said order was not implemented, the petitioner also filed Contempt Case No.913 of 2008 before the Court, in which the respondents were directed to consider the case of the petitioner for promotion to the post of UDC after completing three years of the relinquishment of his earlier promotion. Thereafter the first respondent by order dated 3.6.2008 cancelled the promotion orders of the petitioner, but later issued a show cause notice dated 31.12.2008 on the ground that the petitioner evaded to join the duty at the place of posting and thus violated Regulation 4(xxiv) (a) and (b) of the APSEB Employees Revised Conduct Regulation as adopted by APEPDCL D&A Regulations and later passed final orders dated 8.4.2010 imposing punishment of stoppage of one annual grade increment without cumulative effect besides treating the period as dies-non from 23.2.2008 to 16.5.2008. Hence this writ petition is filed. 3. On the other hand, the respondents have filed counter claiming that the petitioner worked at Kakinada for (7) years and after he relinquished his promotion by virtue of his transfer as UDC to Jaggampeta, again he was posted to Jaggampeta as LDC relieving him on 22.2.2008 which he did not obey till 17.5.2008 in spite of receiving notices, which amounts to misconduct as per Regulation 4 (xxiv)(a) and (b) of APSEB Employees Revised Conduct Regulations as adopted by APEPDCL which warrants disciplinary action under Regulation 6(1) and (xxxii) of APSEB Employees Discipline and Appeal Regulations and A.P.S.E.B. Leaves Rules as adopted by APEPDCL. Further, by virtue of A.P.B.P.D.C.L. Service Regulation No.40 paragraph II he is not eligible for promotion for three years from the date of relinquishment. Further, he preferred appeal against the order before the Chief General Manager, HRD Corporate Office, Visakhapatnam on 22.7.2010 which was dismissed. Further, there are no merits in the writ petition. 4. The learned counsel for the petitioner has submitted that the respondents imposed major penalty on the petitioner and because no enquiry was conducted before imposing the major penalty and also because it is against the purport of the order in W.P.No.7462 of 2008, that impugned order is liable to be set aside. He further has submitted that the respondents apart from imposing the punishment of stoppage of one annual grade increment without cumulative effect, treated the period from 23.2.2008 to 16.5.2008 as dies-non, which is nothing but imposing double punishment and on that ground also, the impugned order is liable to be set aside. 5. The learned counsel for the respondents while reiterating their stand in the counter has further contended that as per the relevant rules, no enquiry is necessary in respect of minor punishment, such as the one imposed and though show cause notice was issued proposing to give major punishment, ultimately only minor punishment was imposed against the petitioner and hence the show cause notice should not be taken seriously. Further, treating the period as dies-non is not improper. 6. The point for consideration is whether there are good circumstances to set aside the impugned order. 7. Emphatically, in view of the relevant rules for imposing major punishment necessary enquiry is to be conducted about which there is no dispute. Therefore, it was incorrect to issue the show cause notice proposing to impose major penalty for the so-called disobedience of the petitioner. However, the same need not be taken into consideration because ultimately the punishment imposed is a only minor one as per the rules. 8. Further, the order passed in W.P.No.7462 of 2008 reads as under: “No exception can be taken to the orders dated 13.22008 passed by the first respondent, promoting the petitioner and posting at Jaggampet. If he is facing any difficulty in moving out of Kakinada, on promotion, the petitioner has to forego the promotion. He has to choose between a place of work and position, in the service and cannot have it both ways. It is represented that a vacancy in the cadre of UDC is likely to arise at Kakinada, and in such an event, the petitioner can be accommodated there. The record, however, discloses that having been relieved on 22.3.2008, the petitioner did not join duty anywhere. The petitioner states that he is prepared to remain as LDC at Kakinada, till he gets the posting at the same place, on promotion. Hence, the writ petition is disposed of, directing that the respondents shall permit the petitioner to continue as LDC at Kakinada and to that extent, his promotion to the post of UDC shall stand cancelled. After the petitioner joins the duty as LDC, the first respondent shall consider the feasibility of promoting him, in case a vacancy of UDC arises at Kakinada”. 9. Emphatically, this Court in that order directed the authorities to permit him to continue at Kakinada. Therefore, the order of transfer made that too immediately is against the ambit of the order in that writ petition. It is nothing but contempt of the Court. Hence the transfer orders and subsequent penal proceedings are not tenable. However, in any case, he should not have remained silent for about 2½ months after being relieved of his post at Kakinada on 22.7.2010. Further, without doing any work, he canot be paid the corresponding salary. 10. In the circumstances discussed, the writ petition is allowed in part setting aside the punishments including treating the period of absence as dies-non and treating the period as leave period subject to the eligibility of the petitioner. There shall be no order as to costs. _________________________ G.KRISHNA MOHAN REDDY, J Date: 15.12.2011 DA THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY W.P.No.33861 of 2010 15.12.2011 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY W.P.No.33861 of 2010 Date: 15th December, 2011 Between: A.Karuna Kumar .. Petitioner And The Superintendent Engineer, Operation Circle, APEPDCL, Rajahmundry, East Godavari district and others. .. Respondents