IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SECOND DAY OF NOVEMBER, TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO. 28490 OF 2010 Between: The Govt. of Andhra Pradesh, Rep.by its Principal Secretary, Health, Medical & Family Welfare (VC.II.2) Department, Secretariat, Hyderabad and others ..... Petitioners AND Dr. K.Nagabhushnam and others .....Respondents The Court made the following: ORDER: (per the Hon’ble Sri Justice Ghulam Mohammed) Assailing the order dated 19.10.2009 allowing O.A. No. 6759 of 2006 filed by the first respondent herein, directing that the period from 15.11.1994 till his retirement, should be treating as waiting period inasmuch as no orders have been passed even though the first respondent had reported for duty and also setting aside the imposition of punishment of reduction of 30% cut in pension which is higher than the proposed punishment in the show cause notice and remanding the matter back for passing consequential orders, the present writ petition is filed by the official respondents in the O.A. The first respondent, who retired as Medical Officer, filed the above O.A. assailing G.O. Rt. No. 588 Health, Medical and Family Welfare (VC.II.1) Department dated 17.5.2006 whereunder punishment of 30% cut in pension for a period of five years was imposed apart from treating the period of absence from 23.11.1989 to 30.8.2003 as dies non. The first respondent was appointed as Medical Officer in 1970 and while working as Civil Assistant Surgeon, Mudigonda, Khammam District, he applied for earned leave with effect from 22.11.1981 and continued the same and while he was on leave, he was transferred to Primary Health Centre, Kunduram, Adilabad District and while rejecting his request for transfer to Khammam, he was furnished with a memo dated 26.11.1995, to which he submitted explanation on 3.1.1996 and regularly enquiry proceedings were drawn against him. The Enquiry Officer submitted report on 2.6.1998 and the first respondent was issued with a Show Cause Notice dated 8.12.2003 proposing to impose punishment of 10% cut in pension for a period of five years, besides treating the unauthorized absence from 23.11.1989 to 31.8.2003 as dies non. The first respondent submitted his explanation to the show cause notice and GO Rt. No. 588 dated 17.5.2006 came to be issued imposing 30% cut in pension for a period of five years besides treating the period of unauthorized absence as dies non from 23.11.1989 to 31.8.2003, which was assailed by the first respondent before the A.P. Administrative Tribunal in the above O.A. The Tribunal, by the order impugned has allowed the O.A. as stated above, observing that imposing higher punishment of 30% cut in pension for a period of five years than that of the punishment proposed in the show cause notice is contrary to the settled law and, as such, the impugned order was set aside remanding the matter to the first petitioner herein for imposing punishment in accordance with the decision taken independently basing on the facts and circumstances of the case and to pass consequential orders to that effect. Aggrieved thereby, the present writ petition is filed by the official respondents in the above O.A. Heard learned Government Pleader appearing for the petitioners and the learned counsel for the first respondent – applicant in the OA. It is contended by the learned Government Pleader that there is no statutory embargo to issue notice prior to imposing punishment, which is higher than the one proposed in the show cause notice nor there is any requirement to call for the explanation on the quantum of punishment to be imposed, after the 42nd amendment to the Constitution of India. It is also submitted that under Sub-Rule (1) of Rule 9 of the A.P. Revised Pension Rules, 1980, the Government reserves right to withhold pension or gratuity or both, either in full or in part, whether permanently or for a specific period. As can be seen from the order impugned in this writ petition, though the first respondent had reported to duty, he was not given posting order and, therefore, the Tribunal has rightly held that the period from 15.11.1994 till his retirement i.e. 31.8.2003, should be treated as compulsory wait. As the Tribunal has remanded the matter to the first petitioner herein for imposing a punishment in accordance with the decision taken independently, basing on the fact that punishment was enhanced from 10% cut in pension, as proposed in the show cause notice, to 30% cut, without issuing notice, we do not find any illegality in the order impugned. Therefore, without expressing any opinion on the merits or otherwise of the contentions sought to be raised before us, we dispose of the writ petition reserving liberty to the petitioners herein to give notice to the first respondent, if they intend to enhance the punishment from 10% cut in pension to 30% cut, and pass appropriate orders in accordance with law. The order impugned in this writ petition accordingly stands modified. With said modification in the order impugned, the writ petition stands disposed of. No order as to costs. ______________________ Justice Ghulam Mohammed ___________________ Justice N.Ravi Shankar November 22, 2010 MAS.