1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4522 OF 2009 (Ashish R. Gawande & Anr. vs. M.S.R.T.C. Akola & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 27, 2009. Heard Shri Verma, representative for the petitioner and Shri Wankhede, learned counsel for the respondents. Because of defence raised by the petitioner that the past service record was unblemished and his statement was obtained by force, this Court has called upon the respondents to file reply on record. Shri Wankhede, learned counsel has pointed out that spot statement has been recorded on 05.08.2008 and within reasonable time thereafter no grievance was made about any use of force or coercion at that time. He further points out that before Enquiry Officer also no such grievance was made and in a statement made in defence, the employee has pointed out other aspects but has not deposed about any such coercion or force. He further states that past service record shows that at least on earlier two occasions, there were some misconducts having financial implications. Shri Verma, the representative of the 2 petitioner No.2 in person has stated that defence of use of coercion or force was specifically raised in reply before the Enquiry Officer. He further states that in view of discipline and appeal rules, as the alleged misconduct is first of its type, it does not warrant a severe punishment. Lastly, he states that past service record has not been established in departmental enquiry. According to him, in this situation, when fine was recovered from erring passenger, there is no question of inflicting any punishment upon petitioner No.1. He further points out that the petitioner No.1 was served with Show cause notice of dismissal along with Enquiry report and the petitioner approached the Labour Court challenging that show cause notice as unfair labour practice. The scope of said complaint is lost sight of by the learned Member of Industrial Court and said Court has relied upon a judgment delivered finally by presuming that said judgment was delivered in identical case. He states that such judgment was in his own case and was totally irrelevant. The facts clearly show that the employer had issued a second show cause notice giving chance to the employee to show that particular punishment should not be inflicted upon him. The record show that on spot on 05.08.2005, the employee accepted the facts which persuaded the respondents to serve him with charge sheet. The contention that there was any use of force or coercion by members of adjudicating staff at that time is prima facie not substantiated, as within reasonable time 3 thereafter no complaint was made about that statement. The charge sheet served upon the petitioner is dated 12.08.2008 and Shri Verma says that the reply thereto was filed within 15 days. In said reply, according to him, this fact of use of force or coercion has been disclosed. I have perused the said reply and I do not find any such stand therein. The past service record produced by the respondents before this Court shows that on 01.07.2006, as M.S.R.T.C. cash was found less by Rs.5/-, he was fined and present misconduct is second misconduct. In these circumstances, I find that no case is made out warranting any interference in the order of Industrial Court passed in revision. Writ Petition is, therefore, dismissed. No order as to costs. Shri Verma, at this stage states that this order should be stayed for a period of three weeks so as to enable the petitioners to proceed further in the matter. The request is opposed by Shri Wankhede, learned counsel for the respondents. However, in the interest of justice, as interim order is operating till today only, the same is continued till 15th December 2009. The same shall cease to operate automatically thereafter. JUDGE *GS.