S. Mathias vs Chairman and Managing Director, Indian Rare Earths Limited, Mineral Division Sherbanoo, Bombay and 2 others

R. Jayasimha Babu, J.—After hearing this matter in full, a suggestion was made by the Court, taking into account the equities and Justice of

the matter, more particularly the fact that the petitioner has worked with the respondent for seventeen years from 1972 to 1989, that he was

employed as Security Guard. The respondents'' establishment is part of the Atomic Energy establishment and therefore its need for security is of a

higher order, the fact that the petitioner has, in the past, been found to have neglected his duty on different occasions having been found sleeping

while on duty and also having been found negligent in the performance of his work, the fact that the Enquiry Officer, has, in the enquiry into the

charges framed against the petitioner which ultimately led to his dismissal, found that the petitioner was guilty of having behaved in a disorderly way

and caused damage to the employer property by breaking the time clocks and also by using abusive language to the co-workers; that though an

enquiry was held, the fact that past conduct would be considered while determining the penalty was not intimated to the petitioner, and the penalty

of dismissal imposed cannot be sustained if such past conduct is excluded, as the penalty would then be grossly disproportionate to the offence of

which he was found guilty that in the event of petitioner being directed to pursue the remedy under the Industrial Disputes Act, the workman would

have to wait for three more years, after having spent nearly four years in this Court, that the employer may have to reinstate the workman and pay

back wages in the event of Labour Court directing reinstatement, that the employer agrees to pay and the petitioner agrees to receive the basic

wages plus dearness allowance currently payable for the post from which petitioner was dismissed, for 42 months, such sum aggregating to about

Rs. 2 lakhs, in full and final settlement of all claims of the petitioner against the respondent.

This suggestion has been accepted by the parties as it would finally conclude the litigation between the parties, the employer not having to

reinstate the petitioner, who held a position of trust and in whom the petitioner has lost confidence, while the employee would benefit from the

lumpsum payment. The respondents are directed to pay to the petitioner wages for 42 months calculated on the basis of the basic pay plus

dearness allowance for the post which was held by the petitioner at the time of his dismissal, at the rates (Basic wages + D.A.) now being paid to

the workmen holding such post, in full and final settlement of all claims of the petitioner against the respondents. The respondents shall also release

the accumulation in the Provident Fund Account and the amount that was payable to the petitioner as Gratuity for the services which he had put in

at the time his services were terminated. If there are any dues payable to the respondent by the petitioner the same may be deduced. The amounts

payable in terms of this order shall be paid by the respondents within six weeks from the date of receipt of copy of this order.