TMI Blog1984 (9) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of ₹ 32,196/88 or a part thereof during the period 10.6.75 to 17.10.75 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 R.S. Negi, Manager-cum-Cashier of Ramonds' Retail Show-room, 2397/1, 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 R.S. Negi of the said show-room and issued various cheques in the amount of ₹ 15,027/75 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 R.S. Negi. That you Shri Rajinder Kumar Kindra has willfully/negligently permitted the user of the cheques in order to defraud the company of the amount of ₹ 15,027/75 in conspiracy with Shri R.S. Negi and you have been habitually negligent and willfully disobedient in the performance of your duties as sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 presumably by Manager-cum-Cashier Shri R.S. Negi. In the ultimate analyses this was the only misconduct attributed to the present appellant. 6. The arbitrator held that none of the witnesses of the employer has stated that the appellant misappropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eques in order to defraud the company in conspiracy with Shri R.S. 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 workman 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 re-instatement 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. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 R.S. Negi. Again it was conceded that there is absolutely not an iota of evidence which could indicate that the appellant issued any cheques himself or that he aided or abetted someone to issue the bogus cheques, These were the allegations in charges Nos. 1 and 2 and the findings 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. 10. Mr. P.K. 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 ₹ 15,027.75 p. in conspiracy with Shri R.S. Negi and that he was : n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er se untenable without anything more. 11. 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 in making such heinous allegation and levelling serious accusation without an iota of evidence in support of it. We repeatedly asked Mr. P.K. Jain, learned Counsel for the employer to show from the evidence led before the enquiry 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 duties of the employee and there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge No. 3 as well. 13. 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. G.C. 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 complete somersault , by the new arbitrator. 14. A fresh reference was made to Sh. N.L. Kakkar. Mr. P.K. Jain, learned Counsel for the employer contended that this Court is only concerned with the award of Mr. Kakkar and the findings recorded by Mr. G.C. 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. 15. In paragraph 1 to 5, the history of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormance 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 part 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 been 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 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 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 with 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 tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Section 11-A to do so. 17. 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. 18. Between appraisal of evidence and total lack of evidence there is an appreciab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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