Judgment :- The petitioner Corporation charged the 2nd respondent for having committed the offence of theft of 7 tins of paint containing 4 litres of paint each aggregating to 28 litres of paint. An enquiry was conducted and was decided experte and his services were terminated, finding the second respondent guilty of having committed the theft. Against that I.D.No.23/94 was raised. The Labour Court came to the conclusion that charge has not been proved and directed reinstatement with continuity of service and full back wages. 2. The learned counsel for the petitioner would submit that the Labour Court had without any justification differed from the finding of the enquiry officer wherein the 2nd respondent was found to have committed the theft of 28 litres of paint. The learned counsel submitted that the 2nd respondent Assistant Tradesman is a person in-charge of the materials that are taken from one depot to another and though there is evidence to show that he noticed the transport of two tins of paint and when it was his duty to verify whether those tins have been properly transported he failed in his duty and thereby, the paint was allowed to be taken without any gate pass from Chennai. The tins should have reached the Central Stores at Vellore, instead of which they were sold to a private person by the second respondent for getting monetary benefit. The learned counsel also submitted that though sufficient opportunity was given to the second respondent he chose not to appear before the enquiry officer. Therefore, there was no option but to decide the enquiry exparte. The learned counsel submitted that the findings of the enquiry officer could not have been lightly interfered with by the Labour Court and when the employee who is in a responsible position has allowed the transport of materials without gate pass then the only punishment that could be awarded is dismissal. 3. Apart from this the learned counsel for the petitioner also submitted that in any event, even if reinstatement were to be ordered, full backwages shall not follow as a matter of course and it is for the 2nd respondent to prove that he was not gainfully employed elsewhere. Therefore, this matter was not taken note of by the Labour Court before whom the 2nd respondent did not plea his non-employment during that period. 4. Therefore, this matter was not taken note of by the Labour Court before whom the 2nd respondent did not plea his non-employment during that period. 4. The learned counsel also referred to 2007 (2) SCC Page 433 (J.K. Synthetics Ltd. V. K.P. Agarwal and another). 5. On the other hand, the learned counsel for the 2nd respondent submitted that the 2nd respondent was not gainfully employed elsewhere. 6. The learned counsel for the 2nd respondent submitted that there was absolutely no evidence with regard to the misconduct alleged, the enquiry officer based his findings on materials, which had no evidentiary value. Therefore, the Labour Court had ordered reinstatement since the misconduct has not been proved. .7. The misconduct alleged relates to theft of 7 tins of paint containing of 4 litres each. According to the petitioner Corporation they went out of Chennai Depot without any gate pass. They had to be delivered at Vellore Central Depot where they were not delivered, instead somewhere in transit the paint tins had been sold for unlawful gain to a third party. It is admitted that 2 other persons were involved in this matter. They are one Shamshed and one Varghese. The learned counsel for the petitioner submitted that proceedings were also initiated against those two. To the charge memo, the 2nd respondent had given his explanation totally denying the charges. On the various dates of hearing of the enquiry the second respondent had sought for adjournment. Finally the enquiry officer came to the conclusion that no purpose would be served by adjourning the enquiry. The enquiry was conducted exparte. Even at an exparte enquiry, if the conclusion is based on materials that are not legally acceptable or if the conclusions are totally arbitrary and perverse then the Labour Court can definitely come to a different conclusion. .8. The only material available from the records to connect the 2nd respondent with tins of paint is his statement which is recorded as follows: .The Junior Engineer who is referred to above is none other than the aforementioned Shamshed against whom proceedings were initiated. The learned counsel for the petitioner admits that the Junior Engineer is superior to the 2nd respondent. It is the contention of the petitioner that when the paint tins were transported from the depot without permission the 2nd respondent ought to have objected to the same. The learned counsel for the petitioner admits that the Junior Engineer is superior to the 2nd respondent. It is the contention of the petitioner that when the paint tins were transported from the depot without permission the 2nd respondent ought to have objected to the same. On the relevant date the driver of the lorry was one Vajram and there was another deliver incharge and he was one C. Mahadevan. Admittedly it is also the practice that sometimes traders would send materials, to the Madras Depot, which would not be accounted for in the Madras Depot. When the Junior Engineer Shamshed had replied to the second respondent that the tins are to be sent to the Central Stores, the second respondent had accepted the statement made by his superior officer. Thereafter, on investigation it was found that the paint tins were unloaded to one Mani by Shamshed and Varghese who traveled in the said lorry. 9. One Security Officer by name Venkatesan alone was examined on the side of the petitioner Corporation. Neither the lorry driver nor the person incharge who should have personal knowledge about what transpired, have been examined. These two would have been the best persons to speak of the alleged theft. It is also in the evidence that the Junior Engineer, Shamshed and Varghese went in the lorry. There is no evidence to show that the second respondent was in the lorry when it was handed over to the third party. No complaint was given by the petitioner upon coming to know of the theft of the paint. From these materials, the Labour Court found that there was absolutely nothing to link the 2nd respondent with the theft of the paint tins. The persons who would have in that place were not examined and on the basis of the evidence of the Security Officer, the order of dismissal had been passed. .10. As stated earlier the only link between the 2nd respondent and the paint tins is his question as to what should be done with those paint tins. It is no doubt true that in a domestic enquiry the misconduct need not be proved beyond reasonable doubt as in a criminal proceeding. But even on preponderance of probabilities it is difficult to come to the conclusion that the 2nd respondent has been guilty of misconduct. It is no doubt true that in a domestic enquiry the misconduct need not be proved beyond reasonable doubt as in a criminal proceeding. But even on preponderance of probabilities it is difficult to come to the conclusion that the 2nd respondent has been guilty of misconduct. In any event unless the finding of fact of Labour Court is arbitrary of perverse, the Writ Court does not sit in appeal over it. 11. As regards the question of back wages in the judgment relied on by the learned counsel for the petitioner the Supreme Court has dealt with various decisions on the question when back wages should follow reinstatement. In most of those cases it has been held that there can be no precise formulae as to under what circumstances payment of back wages should be allowed. In paragraph 18 of the said judgment the Supreme Court has observed that any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages and therefore, the Supreme Court held that it is necessary for the employee to plead that he was not gainfully employed. “19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. …… What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. …… What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc. 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.” In the case before the Supreme Court, the Labour Court found that the charge of serious misconduct was proved. But punishment of dismissal was not warranted and imposed lesser punishment. Under those circumstances, it was held that the award of back wages is neither automatic nor consequential. This is not a case where the Labour Court found that the misconduct is proved but the employee deserved lesser punishment. In this case, the termination was held to be illegal and invalid. Therefore, the award of full back wages must follow unless the employee has been gainfully employed elsewhere. 12. This is not a case where the Labour Court found that the misconduct is proved but the employee deserved lesser punishment. In this case, the termination was held to be illegal and invalid. Therefore, the award of full back wages must follow unless the employee has been gainfully employed elsewhere. 12. The learned counsel for the petitioner submitted that this plea of non-employment was not made before the Labour Court and the Labour Court ought not to have awarded back wages as a matter of course. It is seen that in WPMP 26461/99 which was for a direction to deposit the entire back wages, the 2nd respondent had pleaded, “I state that I am unemployed and despite my best efforts I am unable to get an alternative employment. I am suffering due to acute economic hardship.” No orders were passed in this petition, since the amount had already been deposited in the bank. At that time the petitioner has not pleaded or brought to the notice of this Court any thing to show that this statement of the 2nd respondent is false. Therefore, while confirming the award of the Labour Court, I do not think it is necessary to exercise my discretion for reducing the quantum of back wages since atleast before this Court the second respondent pleaded that he is suffering from acute economic shortage due to non-employment and not gainfully employed elsewhere and it stands unrebutted. 13. The Writ Petition is dismissed. No costs.