The main legal point established in the judgment is the requirement for preliminary issues to be decided before taking up other issues, and the need for the employer to reserve the right to conduct a de-novo enquiry in the written statement.

R.V. GHUGE, J.

1. Heard Shri D.S. Bagul on behalf of the petitioners. I have heard Shri R.B. Muley and also Shri Ashok Patil, learned Advocates and also Shri R.B. Mule, Advocate on behalf of the respondent in this matter.

2. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.

3. The respondent-workman is an employee of the petitioner Maharashtra State Road Transport Corporation (here in after referred to as "MSRTC"). He was appointed as driver. He was charge sheeted on 06-09-2002 primarily for misbehaving with a lady passenger during the night journey. After receiving his reply, the petitioner proceeded to conduct a domestic enquiry against him, as per their Discipline and Appeal Procedure Rules (here in after referred to as "D & A Rules").

4. After the conclusion of the enquiry, the charges levelled upon the petitioner were held to be proved. He was subjected to the punishment of permanent stoppage of three (3) increments. He preferred an Appeal to the petitioner-employer. By order dated 12-03-2005, the said Appeal was partly allowed and the punishment of permanent stoppage of three (3) increments was reduced to a permanent stoppage of two (2) increments. The respondent preferred a Second Appeal to the petitioner-employer, being aggrieved by the permanent stoppage of two (2) increments. By order dated 21-02-2006, the Second Appeal was rejected and the order passed by the employer on the First Appeal was maintained.

5. In view of the issue raised for my consideration and in the light of the order that I propose to pass, I do not intend to refer to the charges and acts of misconducts alleged against the respondent in details.

6. The respondent preferred Complaint (ULP) No. 12/2007, before the Industrial Court, at Aurangabad. In the said complaint, the domestic enquiry was assailed, in as much as, the findings of the Enquiry Officer (here in after referred to as "EO") were branded by the respondent to be perverse and unsustainable.

7. The respondent-employee had put forth the following prayers in his complaint:-

(a) That the present complaint may kindly be allowed.

(b) It may kindly be held that the respondent have engaged in and are engaging in unfair labour practice in issuing punishment order dated 19-06-2004 and 12-03-2005.

(c) The office order dated 19-06-2004 passed by the competent authority thereby stopping three increment of the complainant permanently kindly quashed and set aside.

(d) The order dated 12-03-2005 passed by the first appellate authority thereby modifying the punishment of stopping of three increment into the stopping of two increment permanently may kindly be quashed and set aside.

(e) That the respondent may kindly be directed to make the payments arrears of salary.

(f) Any other equitable relief for which the complainant is entitled may kindly be granted and oblige.

There is no prayer for setting aside the enquiry, through pleaded in the complaint.

8. The petitioner filed its written statement dated 27-04-2007 for opposing the Complaint filed by the respondent-employee. Besides supporting the action taken and the enquiry conducted against the respondent-employee, it was specifically pleaded in paragraph 7 as under:-

For the above said misconduct the complainant was issued charge-sheet dated 12-09-2002 for Clause 10, 11, 18, 22 and 28 of the Schedule (A) of D&A Procedure.

The complainant replied the charge-sheet on 18-09-2002 and request for departmental enquiry. The Departmental enquiry came to be conducted on 03-10-2002 and 24-10-2002. The complainant was present in the departmental enquiry through his Union representative. The Complainant was granted sufficient opportunity to cross examine the reporter and witnesses. The complainant was each and every opportunity to plead and defend his case, though his Union representative.

Lastly the complainant was asked whether he desires to examine any witness or whether he wants to say anything more but the complainant told no. There