JUDGMENT 1. Heard Shri Wankhede, the learned counsel appearing for the petitioner and Shri Deshpande, the learned counsel appearing for respondent no.1 – employee. 2. The challenge in this petition is to the judgment and order dated 20.01.2004, passed by the Industrial Court at Yavatmal, in Complaint ULP No. 374/1999. The complaint has been allowed and the order of reappointment of the complainant as fresh employee has been set aside and the complainant is directed to be treated as continuous in service. The relief of backwages has been denied. 3. The employee preferred Writ Petition No. 3371/2004 before this court challenging the judgment and order passed by the Industrial Court on 20.01.2004 to the extent it deprived him of backwages. This writ petition was dismissed by the judgment and order dated 24.01.2006. The present writ petition is preferred by the employer challenging the same order passed by the Industrial Court to the extent it sets aside the order of reappointment of the complainant and grants him continuity in service. 4. The total consideration of the matter by the Industrial Court is in para 10 of the judgment, which is reproduced below. “10. The material question is whether the punishment awarded is legal and correct and proper. In present case, the complainant is not challenging the legality of the enquiry and findings recorded by the enquiry officer. The complainant is disputing only the punishment awarded by the Second Appellate Authority. I have gone through the Clause-7 of D and A Procedure. In Clause-7, various punishments are prescribed, no punishment of reappointment or reemployment is prescribed in Clause-7. So far as Clause-14 is concerned, it is mentioned in Clause-14 that the appellate authority may pass any order as it may deems fit, but it does not mean that the authority has power to award a punishment which is not provided. It is settled legal position that the appellate court can award the punishment which could have been awarded by the trial Court. Keeping in view this legal position, I am compelled to say that the Second Appellate Authority has committed error in awarding punishment i.e., reappointment when it is not prescribed in the D and A Procedure. I, therefore, hold that the impugned order passed by the Second Appellate Authority thereby reappointing the complainant is illegal and it is Unfair Labour Practice. Keeping in view this legal position, I am compelled to say that the Second Appellate Authority has committed error in awarding punishment i.e., reappointment when it is not prescribed in the D and A Procedure. I, therefore, hold that the impugned order passed by the Second Appellate Authority thereby reappointing the complainant is illegal and it is Unfair Labour Practice. However, considering the nature of the misconduct which is provided and not challenged it would be suitable to refuse the back wages.” It is apparent that the complainant did not dispute the findings recorded by the Enquiry Committee. The legality and fairness of the inquiry was also not challenged. The only challenge before the Industrial Court was to the ultimate punishment awarded by the Second Appellate Authority. The Second Appellate Authority set aside the order of dismissal of the complainant from service and passed an order of fresh appointment of the complainant in service. The Industrial Court has held that the Second Appellate Authority has committed an error in awarding the punishment i.e., reappointment when it is not prescribed in the Discipline and Appeal Procedure. 5. Shri Deshpande, the learned counsel appearing for respondent no.1 – employee has urged that in W.P. No. 3371/2004, filed by the complainant, challenging the same judgment and order impugned in this petition, the Court has held that there was no jurisdictional error in the order passed by the Industrial Court and the writ petition was thus dismissed. He submits that the petitioner in the present petition is the employer who was party respondent in the said writ petition and to consider the legality, correctness or otherwise of the impugned judgment and order in the present case, is barred by principle of resjudicata. He has relied upon the decision of the Patna High Court in case of NathuniMishra and others vrs. Mahesh Misra and others, reported in AIR 1963 PATNA 146. 6. Undisputedly, Writ Petition No. 3371/2004 filed by the complainant challenging the same judgment and order dated 20.01.2004 passed by the Industrial Court, the employee challenged it only to the extent of denial of backwages to him by the Industrial Court. The matter, therefore, was concluded to that extent in the said writ petition decided on 24.01.2006. 6. Undisputedly, Writ Petition No. 3371/2004 filed by the complainant challenging the same judgment and order dated 20.01.2004 passed by the Industrial Court, the employee challenged it only to the extent of denial of backwages to him by the Industrial Court. The matter, therefore, was concluded to that extent in the said writ petition decided on 24.01.2006. In fact, this court had observed in the last few lines of the judgment as under; “Having regard to the nature of the charges proved against the petitioner, there is no reason to interfere with the impugned order”. 7. There can be no manner of doubt that in such a situation, the judgment and order passed by this Court in W.P. No. 3371/2004 would not operate as res-judicata while deciding the present case challenging the same judgment and order to the extent it sets aside the order of reappointment passed by the petitioner and directing grant of continuity in service to the complainant. The decision relied by Advocate Shri Deshpande turns upon its own facts and circumstances of the case and hence, it is not applicable. 8. On merits, the Industrial Court has held, observing in para 10, reproduced above, that the only question which falls for its consideration was whether the punishment of reappointment imposed upon the complainant was legal and proper. The Industrial Court has recorded the finding that the Second Appellate Authority has committed an error in awarding the punishment of reappointment when it is not prescribed by Discipline and Appeal Procedure. There is no error in recording such finding by the Industrial Court. 9. The question is what course of action was required to be adopted by the Industrial Court once it comes to the conclusion that the order of reappointment passed by the Second Appellate Authority was not sustainable in law. Undisputedly, on the basis of the findings recorded by the disciplinary authority, the complainant was dismissed from service. The order of dismissal was maintained in first appeal. The Second Appellate Authority modified the order into one of fresh appointment. 10. I have dealt to this question in W.P. No. 4731/2002, decided on 20.10.2010. Para 7 of the said decision is relevant and therefore, the same is reproduced below. “7. The Industrial Court, however, ought to have seen that the respondent/employee was dismissed from service after holding an enquiry. 10. I have dealt to this question in W.P. No. 4731/2002, decided on 20.10.2010. Para 7 of the said decision is relevant and therefore, the same is reproduced below. “7. The Industrial Court, however, ought to have seen that the respondent/employee was dismissed from service after holding an enquiry. The decision of the disciplinary authority dismissing the respondent/employee was the subject matter of challenge before the First Appellate Authority. The First Appellate Authority took a lenient view of the matter and substituted the order of fresh appointment in place of the order of dismissal. If the Industrial Court has found that the punishment of issuing fresh order of appointment cannot be imposed, then the course left open to it, was to remand the matter back to the First Appellate Authority to apply its mind to the findings recorded by the disciplinary authority and to pass the order afresh in accordance with law. Although the Industrial Court has set aside the order of the First Appellate Authority and directed reinstatement of the respondent/ employee without back wages, it has not left the matter to the decision of the First Appellate Authority to consider the same afresh on its own merits.” Once the Industrial Court has held that the Second Appellate Authority had no jurisdiction to pass any such order of fresh appointment, the course left open to it was to set aside the order of the Second Appellate Authority. The effect would be that the challenge to the order of dismissal of the complainant remains pending in Second Appeal preferred before the Departmental Authority and the course left open is to direct the Second Appellate Authority to decide the appeal afresh on remand. It is open for the Second Appellate Authority to decide as to whether the order of dismissal has to be set aside with an order of reinstatement, continuity in service and full backwages or it has to be converted into an order of different punishment as is permissible in law. 11. Though, in the present case, the Industrial Court has set aside the order of reappointment passed by the Second Appellate Authority, it has directed to treat the complainant as continuous in service. Such a direction could not have been issued by the Industrial Court. 11. Though, in the present case, the Industrial Court has set aside the order of reappointment passed by the Second Appellate Authority, it has directed to treat the complainant as continuous in service. Such a direction could not have been issued by the Industrial Court. After setting aside the order of reappointment, the matter should have been sent back to the Second Appellate Authority for deciding the appeal afresh. Issuing direction either to reinstate the employee or to grant him continuity in service would in such a situation amount to grant of premium to such employee over the acts of misconduct which are already held to be proved by the Disciplinary Authority and maintained in appeal by the First Appellate Authority without setting aside the findings of guilt recorded by such Authority. 12. In view of this, the judgment and order passed by the Industrial Court in Complaint ULP No. 374/1999 on 20.01.2004 cannot be sustained. The same is quashed and set aside and the matter is remitted back to the Second Appellate Authority for deciding the appeal filed by the complainant challenging his dismissal from service afresh in the light of the observations made by this Court. Rule is made absolute accordingly. No orders as to costs.