THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 36797 of 1998 O R D E R: This Writ Petitioner, who worked as a Shot Firer with the Singareni Collieries Company Limited, sought for a declaration that the pay drawn by him prior to his re-employment should be protected and he should be treated to be in continuous employment of the Singareni Collieries Company Limited. It is submitted that the petitioner joined the service of the Singareni Collieries Company Limited, a public sector undertaking, as a Coal Cutter. He was thereafter promoted as a Shot Firer in the year 1977. While he was working as a Shot Firer at GDK-2 Incline, a serious mine accident had occasioned. The writ petitioner was seriously injured in the said accident, requiring him to undergo treatment in the Company’s hospital for about 14 months. He was thereafter subjected to examination by a Medical Board, which included a Specialist Orthopedic Surgeon. Since his right lower limb was amputated above his knee joint, he was fitted with a prosthesis. He was able to walk. The remaining portion of his right lower limb, a stump of 10” length has healed well. The fracture to the left ankle is also found to have healed well and the ankle movements of his left leg were found to have been completely restored. Upon review by the Medical Board on 26th May 1987, he was found unfit for underground job. The permanent partial disability suffered by him was assessed to be 60% and accordingly, he was recommended for payment of 60% of compensation for permanent partial disability. The Superintendent of the Area Hospital, Singareni Collieries Company Limited, through his communication, dated 30th May 1987, filed his report in this regard before the General Manger, Singareni Collieries Company Limited. Therefore, the General Manager passed an order on 11th June 1987, terminating his employment with effect from 26th May 1987, the date on which he was declared by the Medical Board as unfit for underground job. However, the Singareni Collieries Company Limited has passed an order on 17th June 1987 appointing the writ petitioner temporarily for a period of three months as Supervisor in Timber yard at an initial basic pay of Rs.742/- in the grade of Rs.742-40-1062-45-1422 with effect from 21st June 1987. The writ petitioner did accept the job as a Supervisor and worked as such in the Timber yard. The General Manager passed another Office Order on 29th December 1987, appointing the writ petitioner as a Shot Firer in the grade of Rs. 742- 40-1062-45-1422 with effect from 30th December 1987. The writ petitioner continued in the employment as such. However, inspired by the judgment rendered in Writ Petition No. 1402 of 1992, on 29th December 1995, wherein this Court has granted the benefit of pay protection to another employee, the petitioner has also claimed pay protection for the past services rendered by him. Hence, he instituted this Writ Petition. I have heard Sri K. Vasudeva Reddy, learned counsel for the writ petitioner and Ms. Uma Devi, learned Standing Counsel for Singareni Collieries Company Limited. Learned Standing Counsel would contend that Singareni Collieries Company Limited has got a fair name in the industry circle and has got high reputation for adherence of the standards of mine safety and for observation of all necessary measures in preventing accidents in its mines. The learned Standing Counsel submits that the Singareni Collieries Company Limited never intended to subject the writ petitioner to any hardship or difficulty and since he was found medically unfit to discharge the duties underground, there is no option left in the hands of the Singareni Collieries Company Limited except to terminate his employment, as a Shot Firer is essentially needed to work in the underground mine. In a Timber yard, there will not be any necessity for a Shot Firer to be employed. Since the Medical Board has examined him on 26th May 1987 and declared him as unfit for underground job and it has also assessed his permanent and partial disability to be 60%, there was no option except to terminate his employment with effect from that date. Therefore, the learned Standing Counsel contends that no exception need be drawn to the order passed by the General Manager on 11th June 1987 terminating the employment of the writ petitioner as a Shot Firer in the mine. It is emphasized by the learned Standing Counsel that Singareni Collieries Company Limited immediately, in less than a week’s time, re- employed the writ petitioner as a Supervisor in the Timber yard. Every such re-employed person has to draw his salary and allowances at the initial stage of the scale of pay attached to the said post and hence, his basic pay has been fixed at Rs.742/-, which is the starting point of the scale of pay attached to the post of Supervisor in the Timber yard. Therefore, the learned Standing Counsel submits that no exception need be called for in this regard. The learned counsel would further submit that the writ petitioner has accepted the offer of alternative employment made by the Singareni Collieries Company Limited, accepted the condition to draw his salary and allowances at the starting point of the scale of pay attached thereto and continued to work in the alternative post. He has not protested in any manner in this regard. Nearly after lapse of 11 years, he has instituted this Writ Petition, drawing inspiration from the judgment rendered by this Court in Writ Petition No. 1402 of 1992. Therefore, the learned Standing Counsel would submit that the delay in approaching this Court seeking pay protection should disentitle the writ petitioner from staking such a claim. It was also contended by the learned counsel that the Singareni Collieries Company Limited was obliged to provide an alternative employment, which obligation it has discharged very faithfully. Alternative employment does not necessarily result in pay protection. It is, therefore, submitted that the question of pay protection would not arise. The learned Standing Counsel also attempted to draw a factual distinction between cases, such as one in Writ Petition No. 1402 of 1992 and the present case. I am not able to find, based on any principle, as to what difference would it make for a person who has been declared medically not fit all because of his involvement in a mine accident or otherwise and hence, I do not find any merit in that contention. The undisputed facts, which emerge, are these: The writ petitioner was working at the relevant point of time as a Shot Firer. Till he was involved in the mine accident, he had continuously worked as a Shot Firer and consequently, earned increments and progressed in the scale of pay attached to the said post. Because of his involvement in the mine accident, his right leg has been amputated above his knee joint. Though he has been fitted with a prosthesis, still, the Medical Board opined that he is not fit to discharge any duties in an underground mine. The opinion of the Medical Board rendered on 26th May 1987, in the fact situation, is unimpeachable. Whether a person, who has been found medically not fit to work in a mine, should be terminated or decategorised for securing an alternative employment, is the important question, which requires to be answered. With a view to consolidate the law relating to the regulation of labour and safety in mines, the Parliament enacted the Mines Act, 1952 (for short, ‘the Act’). With a view to harness the natural mineral resources, extensive mining operations were undertaken in various parts of our country. To regulate these mining operations, essentially, the Mines Act, 1952 has been enacted. It had provided for all necessary regulatory and safety aspects. By an Amending Act No. 42 of 1983, Parliament introduced Section 9-A in the Act requiring the Chief Inspector or an Inspector or other officer authorized by him to undertake safety and occupational health survey in a mine. Sub- section (2) of Section 9-A mandates every person employed in a mine, who is chosen for examination in any safety and occupational health survey to present himself for such examination and he was also under an obligation to furnish all information regarding his work and health in connection with the said survey. Obviously, the safety and occupational health survey in a mine was an essential element required to be undertaken by the State, for the purpose of ascertaining not only the safety and health standards deployed by the owners and managers of the mines, but also to periodically monitor the conditions of such safety and the related parameters deployed in mines. With a view to assess the impact of working in such mines, on the health of those who work in such mines, sub-section (4) of Section 9-A thrust an obligation on the owner or agent or manager of a mine to bear the costs of medical treatment required to be undergone by any person who was found medically unfit to discharge the duties upon the examination undertaken in any safety and occupational health survey. Further, sub-section (5) of Section 9-A, which will have a bearing upon the controversy, it would be profitable to extract the same, reads as under: “ (5) If, after the medical treatment, the person referred to in sub-section (4) is declared medically unfit to discharge the duty which he was discharging in mine immediately before presenting himself for the said examination and such unfitness is directly ascribable to his employment in the mine before such presentation, the owner, agent and manager shall provide such person with an alternative employment in the mine for which he is immediately fit: Provided that where no such alternative employment is immediately available, such person shall be paid by the owner, agent or manager disability allowance determined in accordance with the rates prescribed in this behalf: Provided further that where such person decides to leave his employment in the mine, he shall be paid by the owner, agent and manager a lump sum amount by way of disability compensation determined in accordance with the rates prescribed in this behalf.” Sub-section (5) mandates the owner, agent or manager of the mine to provide alternative employment in the mine, to such persons who even after the medical treatment are declared as unfit to discharge the duty, which he was so discharging in a mine before such declaration. In other words, there is no escape for the owner, agent or manager of a mine other than to offer an alternative employment to such persons who were declared as unfit for discharging the duties which they were performing prior to being declared as medically unfit. The language employed in sub-section (5) of Section 9-A of the Act leaves no discretion in the hands of the owner/manager or agent of a mine. The crucial expressions used therein are “shall provide with an alternative employment”. Therefore, there is no escape from the conclusion that every person who was employed in a mine and working as such, if upon examination undertaken by the Inspectors for safety and occupational health survey, if declared not fit for doing any such job, shall be provided with an alternative employment. It is intended obviously to ensure that persons, who are employed to work in mines, do not suffer grave hardships only due to loss of required standard of health, occasioned all because of their employment in such a mine. The owner, agent or manager of a mine, therefore, is required to ensure that all such personnel are relocated and rehabilitated in a suitable alternative post or employment. Such a measure is not only intended to keep the morale of the entire working force of the mines intact but would also help in rehabilitating those who lost out the necessary standards of their health all due to their work in mine for long periods. If a person is declared unfit, all because of an accident, that had occasioned in a mine, is he liable to be treated differently? The plain answer is in the negative. Even without there being an accident, if an employee in a mine is declared not fit, he is liable to be rehabilitated with an alternative employment, and hence, the same treatment should equally be provided to those persons, who are declared unfit all because of an accident that had taken place in a mine, by offering them an alternative employment. Otherwise, victims of unfortunate accidents in mines will be exposed to the risk of losing out their sources of living thereafter. As is too well-known, accidents do take place in mines in spite of deploying highest standards of safety and even after taking necessary precautions. Such accidents might arise in the ordinary course of employment. Particularly, when we talk of a coal mine, the mineral is exploited duly undertaking blasting operations by using appropriate grade ammunition and detonators. In spite of the precautions, if an accident had taken place causing grave injuries which result in rendering a workman unfit for further continuance in employment in a mine, he cannot be put at a worse position than a person, who has been declared as not fit without any such accident. The relevant factor is the assessment of the condition of health and standards of fitness in both the cases. When once a competent Medical Board declares a person, who is working in a mine, as not fit for undertaking the job, which he was performing earlier, be it because of a mine accident or sans such an accident, it makes no difference for his re-employment. To my mind, sub-section (5) of Section 9-A of the Act gets attracted to every case where persons become not fit for undertaking the job which they were performing earlier. I, therefore, have no hesitation to hold that the order passed by the General Manager of Singareni Collieries Company Limited on 11th June 1987 terminating the employment of the writ petitioner as a Shot Firer, instead of recategorising or redeploying him in a suitable alternative job, is clearly illegal and unjust. Then question that is required to be answered is whether the conduct of the writ petitioner in accepting the alternative employment without any demur and without any protest and also the delay in moving this Court by instituting the current Writ Petition should defeat his rights at all. To my mind, the conduct of the writ petitioner in accepting alternative employment should not be put against him. It does not amount to waiver of his rights or even acquiescence on his part. There should be something more, by way of voluntary action that is needed for one to waive his rights or acquiescence in an adverse position to himself. Mere acceptance of an alternative employment at the basic minimum of the scale of pay attached to that alternative post, therefore, should not be put against the writ petitioner. The conduct of the writ petitioner is a bona fide conduct. Like any other disciplined employee, he has also accepted the alternative employment offered by Singareni Collieries Company Limited. The position in which he was placed at that stage was such that he could not have declined to accept the alternative employment. Any person, who has been badly injured resulting in loss of a limb to him, would not be in the appropriate frame of mind to agitate more about his other rights than to secure immediate sustenance and rehabilitation of himself. Getting back to the work, in right earnestness, would help the man who is out of action for long periods, to get back to his rhythm and that alone will help him to quickly overcome the trauma caused by the accident. It would also greatly help the cause of his dependant family members. Therefore, I am not willing to subscribe to the view that the conduct of the writ petitioner in accepting alternative employment and receiving pay at the basic minimum of the scale of pay attached to that post, without any protest, amounts to waiver of his rights to seek pay protection or it would amount to acquiescence either. Similarly delay in instituting this Writ Petition by him also should not be treated as fatal. Normally, delay and latches on the part of those who seek to invoke writ jurisdiction, if interests of another party are involved, would be put against them. The principle being, for no fault, a 3rd party’s rights should be allowed to be frustrated, at a belated stage by institution of Writ Petitions by the aggrieved persons. In the instant case, no interests of any 3rd party are involved. Whether Singareni Collieries Company is right and justified in offering the basic pay at the initial stage of the alternative employment or should they pay the writ petitioner at a higher stage of the scale of pay is the only question. It is purely a matter relating to payment of few hundred rupees more to the petitioner. Interests of no one else will be adversely affected all because of the delay and latches nor would the Singareni Colliers Company Limited be adversely impacted by the said delay as the amount due and payable does not run into several lacs or crores of rupees. Perhaps, one will have to seriously weigh the adverse consequences upon the financial capacity of the organization, if huge sums of money are required to be shelled down. Certainly not when the claim does not run beyond few hundred rupees. I, therefore, do not find any justification to accept the plea of the learned Standing Counsel to defeat this Writ Petition wholly on the ground of delay and latches of the writ petitioner. What remains to be decided then is whether the offer of alternative employment, as is required by sub-section (5) of Section 9- A would mean necessarily to offer alternative employment with pay protection or not. Pay protection normally is a notional concept. A person, who is discharging a particular nature of duties, draws his pay and allowances in a running scale attached to the said post. He makes progress annually by earning one increment by rendering quality services during that one year period. If the duties and responsibilities discharged by him did not come for adverse notice, the increment is bound to be added to his salary as a matter of course. Therefore, every employee keeps making a progress in a running scale of pay particularly, when they are employed in public sector undertakings or in civil services. After he reaches a particular stage of pay structure, and if he is re-categorized all because of the requirement of certain standards of health or physical fitness, he should not be made to restart his career by drawing his salary and allowances at the bottom of the scale of pay. One would have designed and tailored the social commitments based upon the financial capacity. The pay drawn by him in the previous assignment/post should continue to be protected from that stage, in the alternative employment. Otherwise, it will work to the disadvantage of the person, who has already suffered a dislocation in life because of his degraded medical fitness. I, therefore, find considerable force and justification in the claim made by the petitioner seeking protection of the pay drawn by him when he worked and discharged the functions of a Shot Firer prior to his being declared as medically not fit on 26th May 1992. As a natural corollary, his re-engagement in an alternative post should not mean a fresh appointment and he cannot be made to lose the benefits of continuity of service. Therefore, the writ petitioner is entitled to the benefit of continuity of service as well. It is informed at the Bar by the learned counsel for the writ petitioner that during the currency of this Writ Petition, the writ petitioner expired on 23rd September 2005 and with the permission of this Court, his legal representatives who were brought on record by an order passed in W.P.M.P.No. 25825 of 2008 are prosecuting this Writ Petition. Therefore, Singareni Collieries Company Limited will re- calculate the monetary benefits, which would have otherwise become payable to the writ petitioner and pay the same to the legal representatives of the deceased writ petitioner. This exercise shall be completed within a maximum period of four months from the date of receipt of a copy of this order. With this, the Writ Petition is allowed. No costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 03rd December 2009 ksld