HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PEITITON No. 867 of 2004 ORDER: The petitioner joined the service of Singareni Collieries Company Ltd., as Badli Filler on 22.7.1973. On 1.10.1989, he was promoted as Head Overman. In the periodical verification of the fitness, the petitioner was subjected to test in the year 1998. The concerned Medical Officer certified that the petitioner is unfit to discharge the functions of Head Overman in the underground. Therefore, he was issued orders of retirement on 7.6.1998 from service, being rendered medically unfit. This was followed by an Office Order dated 9.6.1998 . On a representation made by the petitioner, he was subjected to medical examination once again. On finding that the petitioner is fit to discharge duties on surface, the company issued order dated 23.3.2001 appointing the petitioner as Telephone Operator. The grievance of the petitioner is that though he is fit to discharge the functions of Head Overman on the surface, which in fact, he was discharging before being rendered medically unfit, the respondents have appointed him as Telephone Operator, which carries pay, that is far below than that of the Head Overman. He contends that the Certificate is issued only to the effect that he is unfit to discharge the function of Head Overman in the underground and he did not face any difficulty in discharging such functions on the surface. Placing reliance upon the agreements entered into between the union of Workers and company, he contends that the impugned order cannot be sustained in law. On behalf of respondent, a detailed counter affidavit is filed. It is stated that a person working as Head Overman underground or on the surface, once he was held to be medically unfit to work in the underground, he cannot be continued in the post and entrusted with the surface duties alone. It is represented that the petitioner was provided alternative employment depending on his medical fitness. It was in the year 1998 that the petitioner was subjected to medical examination. The Certification is to the effect that the petitioner is unfit to work as Head Overman underground. In other words, his unfitness was not with reference to functions on the surface. It is not in dispute that the incumbents in the rank of Head Overman are posted either underground or on the surface depending on the exigencies of work. A memorandum of settlement arrived at between the company and the workmen was under Section 12(3) of the Industrial Disputes Act, 1947 on 12.3.1990. Clause 17 thereof, reads as under. “17. Alternate Employment to underground employees declared medically unfit: For employees involved in mine accidents and declared medically unfit for underground work but found suitable for surface jobs, all efforts will be made to offer a suitable alternative employment on surface with protection of wages. Employees medically unfit for underground due to reasons other than mine accidents will be considered for alternative jobs on surface. Employees found unfit for the original jobs underground will be offered other suitable underground jobs for which they are fit. The rehabilitated employees will be allowed increments in the lower category of jobs offered to them, equivalent to the number of increments drawn by them in their original categories. Continuity of service will be given for purposes of terminal benefits. Cases where continuity of service was not given will be reviewed on their representation.” From this, it is clear that whenever an employee is medically found unfit for underground duties, the company was considering the feasibility of providing alternative employment on the surface. In the instant case, the petitioner was in fact working on the surface as Head Overman. The unfitness Certificate of him was only with reference to underground duties. The settlement puts an obligation on the part of the company to entrust such employees with surface duties. It is only when the petitioner is found unfit to discharge the function of Head Overman on the surface also, the feasibility of appointing him against any other post with lesser emoluments should have been considered. Contrary to the purport of Clause 17 of the settlement, the respondents have appointed the petitioner as Telephone Operator. The emoluments of that post are far less. Therefore, the impugned order cannot be sustained in law. The petitioner ought to have been entrusted with the duties of Head Overman on the surface. It is stated that the petitioner has since attained the age of superannuation the fruits of service rendered by him for more than two decades in mining activity cannot be denied to him. He deserves to be awarded the retirement benefits as though he retired as Head Overman as on the date. Hence, the writ petition is allowed directing that the respondents shall extend the retirement benefits to the petitioner by treating him as having retired as Head Overman. The exercise in this regard shall be completed within a period of three months. In case, the pension is re-fixed and the balance of the Provident Fund and Gratuity etc., are extended to him, they shall not be under obligation to pay the arrears of pension. If the benefits are not extended within the stipulated time, the respondents should be under obligation to pay the difference of pension. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY,J DATE: 29th December, 2010 pnb