Civil Appeal No 2386 of 1984
Appeal by Special leave from the Judgment and Order dated the 2nd March 1983 of the Delhi High Court in Writ Petition No 314 of 1983
Miss Mamta Sarin for the Appellant
Pawan Kumar Jain and K K Gupta for Respondent No 2
J Appellant Rajinder Kumar Kindra was inducted as a peon by Ms Raymond Woolen Mills Ltd  employer  for short
In 1972 he was promoted as a salesman and at the relevant time he was serving at the Raymond s retail showroom in Karol Bagh New Delhi
One Shri RS Negi was the Manager cum Cashier of the Karol Bagh Show room of the employer under whom the appellant was working
He was served with a charge sheet dated December 11 1975 which reads as under That you Shri Rajinder Kindra is hereby informed that you while working as a salesman at Raymonds  Retail Show room 23971 Hardhian Singh Road New Delhi 5 870 have misappropriated cash and funds from the amounts of Raymonds  Woolen Mills Ltd to the extent of Rs 3219688 or a part thereof during the period 10675 to 171075 by manipulating false accounts submitted bogus cheques into the Mills Account or by taking cash from the chest of the Retail Depot along with Shri RS Negi Manager cum Cashier of Raymonds  Retail Show room 23971 Hardhian Singh Road Karol Bagh New Delhi
That you Shri Rajinder Kumar Kindra while acting as a salesman aided abetted connived and conspired with the Manager cum Cashier Shri RS Negi of the said show room and issued various cheques in the amount of Rs 1502775 from your cheque book with the ulterior motive and design to defraud the Company of the said amount by submitting these bogus cheques into the Mills  Account and thereby causing unlawful gain to yourself and causing unlawful loss to the Company in collusion with Manager cum Cashier Shri RS Negi
That you Shri Rajinder Kumar Kindra has willfuly negligently permitted the user of the cheques in order to defraud the company of the amount of Rs 1502775 in conspiracy with Shri RS Negi and you have been habitually negligent and willfully disobedient in the performance of your duties as salesman
 One Shri VK Soni was appointed as Enquiry Officer to enquire into the aforementioned charges
In the course of enquiry the appellant denied the charges levelled against him
He stated that the cash used to remain with Manager cum Cashier Shri RS Negi and it is for him to explain about some cheques drawn and the statement of account submitted by him
He denied himself having issued any cheque
He denied that he was negligent in performance of his duty
The employer examined Shri OD Sharma Shri GL Kapur Shri VK Malhotra and Shri Nandan Singh as witnesses for the management
The appellant gave evidence on his behalf and he was cross examined on behalf of the employer
He also examined one Shri AK Godbole as his witness
The Enquiry Officer Shri VK Soni submitted his report dated June 22 1976
In the report he Inter alia held that the appellant had been guilty of gross negligence and misconduct in the 871 discharge of his duties and he was actively responsible for committing the fraud on the Company with Shri RS Negi to the extent of Rs 1502775 and all the charges as contained in the charge sheet against the appellant were held proved
The employer accepted the report and dismissed the appellant from service with effect from August 25 1916
The appellant raised an industrial dispute inter alia contending that the findings of the enquiry officer were perverse and there was no evidence in respect of either the charge of negligence or embezzlement of funds and that the dismissal from service was wholly unjustified
The employer and the appellant by a written agreement agreed to refer the existing industrial dispute arising out of the dismissal from service of the appellant to an arbitrator as provided by Sec 10 A 1 of the Act for short
The first respondent Delhi Administration pursuant to aforementioned written agreement referred the following dispute to Shri G C Jain Presiding Officer of the Labour Court Delhi who was selected by the parties to be the arbitrator
It reads as under 1 Whether the services of Shri RK Kindra were terminated illegally and unjustifiably  2 Whether the enquiry proceedings were initiated by the principles of natural justice and equity  3 To what relief if any is the worker entitled  The employer contended before the arbitrator that the enquiry held by him is fair and just and full opportunity was afforded to the appellant to participate in the enquiry to cross examine witnesses produced by the management and to lead his evidence
It was further contended that the conclusions reached by the enquiry officer and findings recorded by him are borne out by the evidence and permissible inferences drawn from the evidence and they are such that any reasonable person would reach on the evidence the conclusion of guilt of the appellant
It was submitted that the arbitrator cannot sit in appeal over the findings of the enquiry officer
It was further contended that at any rate there is satisfactory evidence to show that the appellant negligently kept his cheque book in relation to his private banking account in such a manner as to be accessible to any one to misuse the same and this was done intentionally so as to facilitate the commission of fraud 872 presumably by Manager cum Cashier Shri RS Negi
In the ultimate analyses this was the only misconduct attributed to the present appellant
The arbitrator held that none of the witnesses of the employer has stated that the appellant misappropriated any amount of the Company or he had manipulated false accounts or had submitted bogus cheques in the account of the employer or had taken away any amount from the chest of the retail depot or had abetted aided conspired or connived with Shri RS Negi or issued any cheque to defraud the Company
Thus the employer failed to lead any evidence before the arbitrator to impute any misconduct to the appellant as alleged in the charge sheet
The arbitrator concluded that there was no evidence in support of charge No 1 and 2 and there was no evidence to prove Charge No 3
The conclusion reached by the arbitrator may be extracted In conclusion I hold that the findings of the Inquiry Officer were based on no legal evidence and were therefore perverse
The enquiry is therefore vitiated
I hold accordingly
 On these findings nothing remains save and except the consequential order that the dismissal from service of the appellant must be quashed and set aside and the appellant be reinstated in service with all consequential benefits unless of course the employer had sought an opportunity to lead evidence before the arbitrator to substantiate the charges
No such opportunity was sought and therefore as held by this court in Shanker Chakraborte vs Britannia Biscuits Co Ltd nothing further was required to be done and the award reinstating the appellant should have followed
Unfortunately making of this consequential order was postponed
The finding of the arbitrator is dated May 24 1976
It appears that soon thereafter Shri GC Jain arbitrator was elevated as a Judge of the Delhi High Court and he consequently before taking his oath did not make the final order which was merely a formal part of his duties
That unfortunately led to a second reference
This time reference was made under Sec
10 A 1 to Shri NL Kakkar retired Additional District and Sessions Judge Delhi as an arbitrator
The same three points were referred to Shri Kakkar for his decision
Shri Kakkar after narrating the evidence that was led before the enquiry officer summed up his findings as under 873 a That the services of Shri RK Kindra were not terminate illegally or unjustifiably but on account of charges having been successfully proved against him especially the third charges that is with regard to willfullynegligently permit the user of cheques in order to defraud the company in conspiracy with Shri RS Negi and negligence in the performance of his duties as a salesman
b That the enquiry proceedings were not vitiated by the principles of natural justice and equity as full opportunity was given to the workman and no prejudice was caused to him by any act of the management although he was given full opportunity to lead his evidence and to cross examine the witnesses of the management and particularly there was no enmity between the work man and the enquiry officer and the dismissal as such was not wrongful
c That the workman is not entitled to any relief and is not entitled to reinstatement with back wages and continuity of service since he has been gainfully employed with Shri Tara Chand at his coal depot ever since his dismissal
The reference by way of award is answered accordingly
 The appellant filed a writ petition under article 226 in the High Court of Delhi questioning the correctness validity and the legality of the award made by Shri Kakkar
A Division Bench of the High Court dismissed the matter in limine observing that the matter depends upon assessment of evidence and the Court cannot reappraise the same under article 226 of the Constitution
Hence this appeal by special leave
Let it be made absolutely clear at the outset that the only misconduct imputed to the appellant was that he was negligent in keeping his cheque book in relation to his own private account in such a manner that it enabled Shri RS Negi Manager cum Cashier of the Branch in which the appellant was a salesman at the relevant time to misuse the cheque forms and thereby defraud the employer
Mr PK Jain learned counsel for employer specifically 874 conceded that the only misconduct alleged against the appellant consists of his negligence in keeping his own cheque book by which he could operate his own private account in such manner as to enable someone so minded to misuse the cheque forms
He was repeatedly asked what law rule regulation or a standing order if there be any which requires an employee to keep his own private cheque book under lock and key or safe custody so that no one except himself can have access to it and we waited for the answer in vain
It was conceded that the appellant is not guilty of any embezzlement or misappropriation of funds of the employer though a grandiose albeit flamboyant charge was framed that he misappropriated cash and funds from the accounts of the employer to the extent of Rs 3219688 p or part thereof during the period June 10 1975 to October 10 1975 by manipulating false accounts submitting bogus cheques into the employer s account or by taking cash from the chest of the branch alongwith Shri RS Negi Manager cum Cashier of the Branch
There is not a tittle of evidence in support of the allegation of misappropriation or embezzlement of funds or manipulation of accounts by the appellant
This was in terms conceded
The allegation to be specific of the employer is that Shri RS Negi Manager cum Cashier misused the cheque forms from the cheque book of the appellant in respect of his private account and embezzled funds of the employer
It was not the case of the employer that applicant drew cheques or embezzled cash from the chest
Another allegation was that the appellant abetted aided connived at or conspired with Manager cum Cashier Shri RS Negi in charge of the branch and issued various cheques in the amount of Rs 1502775 p drawn on forms of cheques contained in the cheque book of the appellant issued to him for operating his own private account with ulterior motive of defrauding the employer by submitting bogus cheques into the account of the employer and thereby caused wrongful gain to himself and wrongful loss to the employer in collusion with Shri RS Negi
Again it was conceded that there is absolutely not an iota of evidence which could indicate that the appellant issued any a cheques himself or that he aided or abetted someone to issue the r bogus cheques
These were the allegations in charges Nos 1 and 2 and the finding by Mr Kakkar that they are proved can be styled as perverse on the admission of the employer himself because not a single witness in the course of domestic enquiry so stated
Mr Jain learned counsel for the respondent could not point out one single sentence of evidence in support of these two charges
875 Mr PK Jain urged that the third charge which was to the effect that the appellant permitted the use of the cheques from the cheque book issued to him by the Bank in which he was maintaining his own private account to defraud the employer to the tune of Rs 1502775 p in conspiracy with Shri RS Negi and that he was negligent and was guilty of wilful disobedience ill performance of his duties as a salesman was substantiated
It is a composite charge
The first limb of the charge refers to negligence in handling his private cheque book so that in conspiracy with Shri RS Negi cheque forms contained in the cheque book issued to the appellant for operating his private account were used by Shri RS Negi to defraud the employer
Rejecting the language improperly used the charge is that the appellant kept his private cheque book unattended or not in safe custody so that Mr RS Negi misused the cheque forms from this cheque book
In support of this allegation the evidence is that the appellant did not keep his cheque book under lock and key or in safe custody so that no one else except himself will have access to the same We have not been able to understand apart from appreciating this charge
When a cheque book is issued to a holder of an account by the Bank there is no law which requires him to keep his cheque book in safe custody
He may keep it in any manner and if in the process some one misuses the cheque and withdraws money from the account of the holder the bank will be able to disown its liability pleading negligence of the holder of the account
A man can keep his cheque book anywhere he likes and even if it is not in safe custody he does so at his own peril
In the event of misuse as a result of negligent handling of the cheque book the Bank will be able to disown its liability if someone by misuse of the forms of cheques withdraws any amount from the account in respect of which the cheque book is issued
That is not the case here
The accusation is that the appellant kept his cheque book in such a manner as to be accessible to any one and that some one unscrupulously removed the forms of cheques from the cheque book of the appellant and used them to withdraw money from the appellant s account but from the employer s account
Some one so minded to forge cheque and to withdraw money from some one s account may use anybody s cheque book
In such a situation the owner of the cheque book unless he has participated in the conspiracy in any manner for facilitating withdrawal of the amount cannot be attributed any misconduct for keeping his cheque book unattended or not in safe custody
There fore first limb of the charge No 3 can be rejected as per se untenable without anything more
876 The second limb of the third charge is that the appellant was negligent and guilty of wilful disobedience in performance of his duties as a salesman
Not a single witness has spoken of any negligence on the part of the appellant in performance of his duties
There is not the remotest suggestion in the evidence to that effect
Not a single witness has spoken about any wilful disobedience in performance of duty
Some flamboyant charges appears to have been cooked up by the employer without any regard for truth or without any regard for responsibility ill making such heinous allegation and levelling serious accusation without an iota of evidence in support of it We repeatedly asked Mr PK Jain learned counsel for the employer to show from the evidence led before the inquiry officer which order of the employer was disobeyed much less unwilfully by the appellant as also acts of omission and commission in performance of duty to spell out negligence
The only reply we received was that the appellant kept his cheque book unattended
Keeping one s own cheque book unattended is no part of performance of duties of the employee and there was no order by the employer how appellant should handle his private cheque book
Let is be made distinctly clear that this Court in this appeal is not re appreciating evidence
Mr GC Jain the first Arbitrator who completed a major part of the enquiry in the reference made to him under sec
10 A 1 after meticulously examining the evidence led on behalf of the employer in the enquiry proceedings concluded as under 22
I have carefully examined this entire evidence
None of the witnesses has stated that Shri Kindra had misappropriated any amount of the Company or he had manipulated false accounts or had submitted bogus cheques in the mills account and had taken away any amount from the chest of the retail depot or had abetted aided conspired or connived with Shri RS Negi or issued any cheque to defraud the company
What PW 1 to PW 3 said is that Shri Negi used five cheques from the cheque book of this workman to defraud the company
There is no evidence to show any fraud on the part of Shri Kindra or to connect him with misappropriation by Shri Negi
The mere fact that his cheques were used is not sufficient to hold that he had entered into conspiracy with Shri Negi or that he wilfully or negligently permitted the use of the cheques in order to defraud the company to the amount of Rs 877 1502775 p
Or part thereof Management s own witness have stated that these cheques were utilised either with the connivance of Shri RK Kindra or because of his negligence in respect of the same
None of them has stated with certainty that Shri Kindra was a party to this misappropriation
No doubt the evidence shows that he was not very careful in keeping his cheque book under lock and key
But this circumstance is not sufficient to hold that he had entered into any conspiracy with Shri RS Negi or was a party to the misappropriation
Thus there was no evidence in support of charge No 1 and 2
There is no evidence that Shri Kindra wilfully permitted the user of his cheque book
There is no evidence that his negligence in keeping the cheque book in a drawer without a lock was with a view to defraud the company
There is no evidence that he was habitually negligent or willfully disobedient in the discharge of his duties
The manner of keeping his personal cheque book was not a part of his duties as salesman
Thus there was no evidence to prove charge No 3 as well He further concluded in paragraph 23 of his award that the findings of the enquiry officer were based on no legal evidence and were therefore perverse and the enquiry was vitiated
The employer never sought an opportunity to lead evidence before arbitrator to substantiate the charges
In fact on the conclusion recorded by Mr GC Jain he should have made a consequential order of setting aside the order of dismissal and directing reinstatement with back wages but he unnecessarily procrastinated and then before he could attend to the remainder of the work he was elevated to the bench of the Delhi High Court leaving the appellant to face the music of a fresh enquiry and a complete sommer sault by the new arbitrator
A fresh reference was made to Sh
NL Kakkar Mr PK Jain learned counsel for the employercontended that this Court is only concerned with the award of Mr Kakkar and the findings recorded by Mr GC Jain are not relevant
We have serious reservations about this submission but it is not necessary in this case to decide that point
We would now confine ourselves to the award of Shri Kakkar
In Paragraph 1 to 5 the history of the dispute and the charges 878 framed against the appellant have been set out by Mr Kakkar
Paragraph 6 deals with what the enquiry officer did
Paragraph 7 reproduces the contentions on behalf of the appellant
Paragraph 8 summarises the contentions on behalf of the employer
Paragraphs 9 10 and 11 deal with the manner in which the enquiry was held
Paragraph 12 refers to the written arguments submitted on behalf of the employer
In the concluding paragraph 13 Mr Kakkar states that the circumstances of the case and the evidence produced by the parties before the enquiry officer as well as in the present proceedings and on the consideration of the documents filed and proved it is held as therein stated
He then recorded his ipse dixit not discussing the evidence or the total absence of it
It may be pointed out that in the course of the enquiry held against the appellant by Mr UK Soni enquiry officer the employer had examined 4 witnesses namely Shri OD Sharma Shri GL Kapur Shri VK Malhotra and Shri Nandan Singh
No witness was examined before Shri GC Jain and the employer relied upon the report of the enquiry officer and the evidence of the four witnesses recorded by the enquiry officer
When the matter came up before Mr Kakkar the employer had not examined any witness but had submitted the report of the enquiry officer and the evidence of the aforementioned witnesses
Therefore when it was contended before the arbitrator that even accepting the evidence of the four witnesses as if unchallenged no reasonable man could ever come to the conclusion that the misconduct imputed to the appellant in charges No 1 2 and 3 could be said to be proved it was incumbent upon him to examine the evidence
We invited Mr PK Jain to point out to us which evidence is being relied upon in support of the charge of embezzlement and the charge relating to alleged misappropriation of funds
He could not lay his hand on any piece of evidence
Conceding that there is no evidence in support of the charge of embezzlement and misappropriation of funds simultaneously conceding that charges No 1 and 2 are not proved he repeatedly emphasised that the only conducts of which appellant is guilty is that the appellant had so deliberately left his cheque book unattended as to be accessible to anyone who may misuse it and this constitutes negligence in performance of duty
Even at the cost of the repetition we must point out that keeping one s private cheque book in any manner is no par
Of the performance of the duty of the employee
To say the least the charge apart from being frivolous is ludicrous and could not have even framed
Even if the allegation in the charge is left unquestioned it does not constitute misconduct
The employer could not have framed such charges without any evidence in support of them yet 879 Mr Kakkar holds them proved
Therefore Mr Kakkar accepted the findings of the enquiry officer which were per se perverse
Not only Mr Kakkar did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the enquiry officer had reached
The award of Mr Kakkar apart from the fact that it is based on no legal evidence suffers from the additional infirmity of total non application of mind
Any finding of misconduct based on total absence of evidence must fail
Mr Jain contended that once Mr Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under article 226 nor this Court under article 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence
We have not at all attempted to re appreciate the evidence though in exercise of the jurisdiction conferred by sec
11 A of the both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman
It is too late in the day to contend that the arbitrator has only the power to decided whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to re appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not
This court in Workmen of Ms Firestone Tyre Rubber Company of India P Ltd vs Management  Others held that since the introduction of sec
11 A in the  the Industrial tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman
It is equally well settled that the arbitrator appointed under Sec
10 A is comprehended in sec
This court in Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha held that an arbitrator appointed under sec
10 A of the is comprehended in sec
11 A and the arbitratal reference apart from sec
11 A is plenery in scope
Therefore it would be within the jurisdiction 880 both of the arbitrator as well as this court to re appreciate the evidence though it is not necessary to do so in this case
It is thus well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come the arbitrator appointed under sec
10 A or this court in appeal under article 136 can reject such findings as perverse
Holding that the findings are perverse does not constitute reappraisal of evidence though we would have been perfectly justified in exercise of Powers conferred by sec
11 A to do so
It is equally well settled that where a quasi judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises the enquiry suffers from the additional infirmity of non application of mind and stands vitiated
The industrial tribunal or the arbitrator or a quasi judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non application of mind
Viewed from either angle the conclusion of the enquiry officer as well as of the arbitrator Mr Kakkar are wholly perverse and hence unsustainable
The High Court in our opinion was in clearly error in declining to examine the contention that the findings were perverse on the short specious and wholly untenable ground that the matter depends on appraisal of evidence
Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short circuited the writ petition
If there is absolutely no evidence in support or the only allegation of misconduct namely negligence in not keeping one s private cheque book in safe custody the conclusion is not only not a plausible one but it is wholly perverse and we are in complete agreement with findings recorded Mr GC Jain that the findings of enquiry officer were perverse and the enquiry was wholly vitiated
Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non application of mind the only course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same
881 It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him
Mr PK Jain learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages
In support of this submission Mr Jain pointed out that the appellant in his cross examination has admitted that during his forced absence from employment since the date of termination of his service he was maintaining his family by helping his father in law Tara Chand who owns a coal depot and that he and the members of his family lived with his father in law and that he had no alternative source of maintenance
If this is gainful employment the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment
The gross perversity with which the employer had approached this case has left us stunned
If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father in law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father in law Tara Chand who had a coal depot it cannot be said that the appellant was gainfully employed
This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed
This cannot be said to be gainful employment E so as to reject the claim for back wages
There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service
Therefore the appellant would be entitled to full back wages and all consequential benefits
Accordingly the appeal is allowed and the award of the arbitrator Shri Kakkar is set aside and the appellant is re instated in service with full back wages and consequential benefits to which he would have been entitled had he not been unlawfully thrown out from service and the costs of this appeal quantified at Rs 3000
The back wages payable to the appellant and the costs awarded herein shall be paid to him within 2 months from today
The appellant shall be physically reinstated in service within a week from today
The appellant shall be entitled to all the consequential benefits f his continuous service
HSK Appeal allowed


Summary:
The appellant was working as a salesman at a show room of a company
The company charge sheeted the appellant inter alia on the ground of misconduct
The misconduct imputed to the appellant was that he was negligent in keeping his cheque book in relation to his own private account in such a manner that it enable the Manager cum Cashier of the show room of the company in which the appellant was a salesman at the relevant time to misuse the cheque forms and thereby defraud the company
An Inquiry Officer was appointed to enquire into the charges
The company examined some with cases and adduced evidence
The Inquiry Officer found the appellant guilty of all the charges
On the basis of the findings of the Inquiry Officer the company dismissed the appellant from service
The appellant raised an industrial dispute and the same was by agreement referred by the appropriate Government to an arbitrator as provided under Sec
10A1 of the 
The company submitted that the arbitrator cannot sit in appeal over the findings of the inquiry
In his award the arbitrator held that the findings of the Inquiry Officer were based on no legal evidence and were therefore perverse and the enquiry was therefore vitiated
Before a formal final order could be made by the arbitrator he was elevated as a Judge of the Delhi High Court
That led to a second reference
The second arbitrator found the appellant guilty of all the charges and held that The dismissal of the appellant was not wrongful
The appellant filed a writ petition under article 226 in the High Court question 867 ing the correctness validity and the legality of the award of the second arbitrator
A Division Bench of the High Court dismissed the matter in limine observing that the matter depends upon assessment of evidence and the Court cannot reappraise the same under article 226 of the Constitution
Hence this appeal by special leave
Allowing the appeal  HELD The charge levelled against the appellant is a composite charge and has two limbs
The first limb of the charge refers to negligence in handling his private cheque book so that in conspiracy with the Manager cheque forms contained in the cheque book issued to the appellant for operating his private account were used by the Manager to defraud the company
When a cheque book is issued to a holder of an account by the bank there is no law which requires him to keep his cheque book in safe custody
He may keep his cheque book anywhere be likes and even if it is not in safe custody he does so at his own peril
Some one so minded to forge cheque and to withdraw money from some one s account may use anybody s cheque book
In such a situation the owner of the cheque book unless he has participated in the conspiracy in any manner for facilitating withdrawal of the amount cannot be attributed any misconduct for keeping his cheque book unattended or not in safe custody
Therefore first limb of The charge can be rejected as per se untenable without anything more
The second limb of the charge that since the appellant left his cheque book unattended the appellant was negligent and guilty of wilful disobedience in performance of his duties as a salesman has no force
Keeping one s own cheque book unattended is no part of performance of duties of the employees and there was no order by the employer how appellant should handle his private cheque book
Therefore the charge apart from being frivolous is ludicrous and could not have been even framed
Even if the allegation in the charge is left unquestioned it does rot constitute misconduct
The employer could not have framed such charges without any evidence in support of them yet and the second arbitrator holds them proved
Therefore the second arbitrator accepted the findings of the Inquiry Officer which were per se perverse
Not only the second arbitrator did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without in any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the Inquiry Officer had reached
The award of the second arbitrator apart from the fact that it is based on no Legal evidence suffers from the additional infirmity of total non application of mind
Any finding of misconduct based on total absence of evidence must fall
875 B C D E G H 878 H 879 A B The contention that once the second arbitrator came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under article 226 nor this Court under article 136 can sit in appeal over the findings of the Inquiry Officer and reappraise the evidence has no force
In exercise of the jurisdiction conferred by Sec
11 A of the both arbitrator and this Court can reappraise the evidence led in the domestic enquiry and satisfy itself whether 868 the evidence led by the employer established misconduct against the workman
It is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the Inquiry Officer were plausible one deducible from the evidence led in enquiry and not to re appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not
879 C E Workmen of Ms Firestone Tyre and Rubber Company of India P Ltd vs Management and Others   referred to
It is well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come the arbitrator appointed under Sec
10 A or this Court in appeal under article 136 can reject such findings as perverse
Holding that the findings are perverse does not constitute reappraisal of evidence though this Court would have been perfectly justified in exercise of powers conferred by Sec
11A to do so
880 A B Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha   referred to
It is equally well settled that where a quasi judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises the enquiry suffers from the additional infirmity of non application of mind and stands vitiated
The industrial tribunal or the arbitrator or a quasi judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non application of mind
880 C D In the instant case viewed from either angle the conclusion of the Inquiry Officer as well as of the second arbitrator are wholly perverse and hence unsustainable
The High Court was clearly in error in declining to examine the contention that the findings were perverse on the short specious and wholly untenable ground that the matter depends on appraisal of evidence 880 F Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short circuited the writ petition
880 F If there is absolutely no evidence in support of the only allegation of misconduct namely negligence in not keeping one s private cheque book in safe custody the conclusion is not only not a plausible one but it in wholly perverse and this Court is in complete agreement with the findings recorded by the first arbitrator that the findings of Inquiry Officer were perverse and the enquiry was wholly vitiated
880 G 869 Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non application of mind the only course open to court is to set it aside and consequently relief of reinstatement must be granted
880 G The submission of the company that since the appellant was gainfully employed during the period of his dismissal he should not be awarded back wages must fail
The only evidence was that during his forced absence from employment since the date of termination of his service the appellant and the members of his family were staying with his father in law and during this period the appellant was helping his father in law who had a coal depot
On this evidence it cannot be said that the appellant was gainfully employed so as to reject the claim for back wages
If this is gainfully employment as contended by the company the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be the gainful employment
Therefore the appellant would be entitled to full back wages and all consequential benefits
881 C E