# Cantonment Board Varanasi and another v. Shambhu and another

- **Citation:** (2010) 3 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-20
- **Case number:** Special Appeal No.1342 of 2006
- **Bench:** F.I. Rebello, C.J. A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cantonment-board-varanasi-and-another-v-shambhu-and-another-41827
- **Pages:** 8

## Headnote

Constitution of India Art.226-Terminationon medical grounds-employee working as
(Class IV) Safai Karamchari in Cantonment
Board-employee suffering from pulmonary
tuberculosis,
with
Pott's
spine
and
backpain-medical board declared unfit to
carry out hard work-but recommended
sheltered appointment on compassionate
ground as per fitness reports-no indication
in
medical
report
about
absolutely
unfitness-further
recommendations
of
sheltered appointment also not extended
to him-Single Judge held that termination
unless certified to be completely unfit for
any work and-also that disease was a
curable one-direction to medically reexamine
and
consideration
of
other
benefits-during
pendency
of
Special
Appeal Medical Board re-examine him
after
a
lapse
of
about
five
yearsimprovement found-declared medically fit
without any neurological deficit and can do
moderate work-Held not disentititled to
raise claimafter receiving Retiral benefitssuch directions can be issued in the larger
interest of justice,principle of equality and
good conscience-view of Single Judge
affirmed.
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Held: Para 15

In our considered opinion, keeping in
view the aforesaid decisions of the
Supreme Court, respondent no.1-writ
petitioner be awarded 50% of the back
wages for the period he was out of
employment.
Respondent
no.1-writ
petitioner shall, apart from this, be
entitled for all consequential benefits.
The amount already paid to respondent
no.1-writ petitioner, as per the interim
order of this Court dated 10.10.2006,
shall be adjusted towards the payment
of back wages.
Case law discussed:
2007 (7) SCC 689, 2009 (2) SCC 592

## Text

3 All] Cantonment Board Varanasi and another V. Shambhu and another
931
by the Assistant Registrar while passing
the impugned order dated 20.3.2010.

15. For all the aforesaid reasons the
order of the Assistant Registrar dated
20.3.2010 is unsustainable in law. In our
opinion, the learned Single Judge ought to
have set aside the order of the Assistant
Registrar and remitted the matter to the
prescribed authority for decision in
accordance with the rules and the
provisions of Section 25 of the Societies
Registration Act, 1860. The learned
Single Judge therefore fell in error in
relegating the appellants on the ground of
availability of alternative remedy without
setting aside the order of the Assistant
Registrar who was bound to refer the
dispute in view of the provisions referred
to herein above. The moot question which
was to be decided was the validity of the
elections and its office bearers who were
elected on 14.9.2008. This was essentially
a dispute within the scope of Section
25(1) and the jurisdiction whereof lay in
the hands of the Prescribed Authority and
not the Assistant Registrar. Accordingly
we set aside the order of the Assistant
Registrar
dated
20.3.2010
and
the
judgment of the learned Single Judge
dated 19.7.2010, and direct the Assistant
Registrar to refer the dispute to the
prescribed authority within 15 days of the
date of production of a certified copy of
this order before him. The prescribed
authority shall thereafter proceed to
decide the dispute within three months
thereafter.

16. The appeal is accordingly
allowed. No order as to costs.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No.1342 of 2006

Cantonment Board, Varanasi and another

...Appellants
Versus
Shambhu and another ...Respondents

Counsel for the Petitioner:
Sri S.D.Dubey

Counsel for the Respondents:
Sri M.M. Sahai
Sri Ashok Nigam
A.S.G.I.

Constitution of India Art.226-Terminationon medical grounds-employee working as
(Class IV) Safai Karamchari in Cantonment
Board-employee suffering from pulmonary
tuberculosis,
with
Pott's
spine
and
backpain-medical board declared unfit to
carry out hard work-but recommended
sheltered appointment on compassionate
ground as per fitness reports-no indication
in
medical
report
about
absolutely
unfitness-further
recommendations
of
sheltered appointment also not extended
to him-Single Judge held that termination
unless certified to be completely unfit for
any work and-also that disease was a
curable one-direction to medically reexamine
and
consideration
of
other
benefits-during
pendency
of
Special
Appeal Medical Board re-examine him
after
a
lapse
of
about
five
yearsimprovement found-declared medically fit
without any neurological deficit and can do
moderate work-Held not disentititled to
raise claimafter receiving Retiral benefitssuch directions can be issued in the larger
interest of justice,principle of equality and
good conscience-view of Single Judge
affirmed.
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Held: Para 15

In our considered opinion, keeping in
view the aforesaid decisions of the
Supreme Court, respondent no.1-writ
petitioner be awarded 50% of the back
wages for the period he was out of
employment.
Respondent
no.1-writ
petitioner shall, apart from this, be
entitled for all consequential benefits.
The amount already paid to respondent
no.1-writ petitioner, as per the interim
order of this Court dated 10.10.2006,
shall be adjusted towards the payment
of back wages.
Case law discussed:
2007 (7) SCC 689, 2009 (2) SCC 592

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Heard Mr. S.D. Dubey, learned
counsel for the appellants-Board and
Mr. M.M. Sahai, learned counsel for
respondent no.1-writ petitioner.

2. This special appeal questions
the correctness of the judgment and
order of the learned Single Judge dated
10.8.2006, whereby the writ petition
filed by respondent on.1-writ petitioner,
who is a Class-IV employee (Sweeper)
in the Cantonment Board, Varanasi, has
been allowed and a direction has been
issued to the Cantonment Board to get
respondent
no.1-writ
petitioner
medically examined. Further direction
has been issued to the effect that the
services
of
respondent
no.1-writ
petitioner shall not be terminated until
he is certified to be completely unfit for
work and after giving him a proper
opportunity of hearing and medical
examination. Learned Single Judge also
directed that all benefits, to which
respondent no.1-writ petitioner was
entitled, shall be paid to him.

3. The appeal was entertained and
an
interim
order
was
passed
on
10.10.2006. The operative portion of the
interim order is to the following effect:-

"The impugned order will remain
stayed until further orders of Court, if
and only if Rs.1,25,000/- (One lac
twenty five thousand) is paid to the writ
petitioner within a period of two weeks
hereof. It is made clear that the
appellant will be under an obligation
only to make an offer of payment and it
is up to the writ petitioner to present
himself and accept the money. Payment
and
acceptance
will
be
without
prejudice. The writ petitioner will offer
himself for examination by a Medical
Board of the Cantonment, Varanasi and
the report of the examination shall be
filed in Court on the next date of
hearing. The Medical Board shall be of
the choice of the Cantonment Board. It
will be the duty of the writ petitioner to
present himself regularly to obtain
information as to when his examination
is scheduled to be made. In case the writ
petitioner
leaves
an
address
for
communication
to
him
with
the
Cantonment Board within a period of a
fortnight from the date hereof, then and
in that event, notice for the medical
examination might be sent to that
address.

Let the matter be listed after four
weeks."

4. During the pendency of the
appeal, the Cantonment Board has
carried out the medical examination of
respondent no.1-writ petitioner and the
report of the Medical Board dated
03/04.11.2006 has been placed before
the Court, which is quoted below:-
3 All] Cantonment Board Varanasi and another V. Shambhu and another
933
"APPENDIX-A

MEDICAL
EXAMINATION
OF
SHRI SHAMBHOO.

NAME: Shri Shambhoo S/O Late Sri
Jinjar

ADDRESS: C/O Sri Prem Ram, H.No.
16, Kali Mahal, Mughalsarai, Chandauli.

IDENTIFICATION MARKS:

1. One black mole on the tip of the
nose -0.5 cm lateral & left side.

2. One black mole on the cheek - 1 cm
medial to right ear lobule

3. One black mole on left chest - 5.5
cm diagonally lateral to the nipple.

HISTORY: He had been suffering
from
tubercular
bronchitis
and
low
backache (pott's spine) six years back. He
had taken treatment from a private
practitioner for complete two years. At
present he has no complaints.

MEDICAL EXAMINATION:

GENERAL EXAMINATION: Thin
built person, Height 5.0 ft, Weight 49.5
Kg. No pallor, No jaundice, No pedal
oedema, J.V.P. Not raised, No significant
lymphadnopathy, Clubbing is present in
all fingers of both hands.

PULSE: 72/mt, regular, normal
volume, synchronous, palpable in all
limbs.

B.P. - 100/70 mm of hg. Eyes-vision
is normal in both eyes, no colour
blindness.

EARS- Hearing appears- normal in
both ears.

SYSTEMIC EXAMINATION:

1- Respiratory System- Trachea is
centrally placed, no visible deformity of
the chest, respiratory rate- 28/mt, regular,
chest moment are normal in both side.

Air Entry - Normal on both sides,
normal breath sounds.

2- Abdomen- Scaphoid shape, no
distension, no visible lump or abnormal
movements, umbilicus is normal, liver &
spleen are not palpable, bowel sounds are
normal, hernial orifices are free.

P/R
EXAMINATION-
Normal,
Genitalias are normal.

3. Central nervous system-

a- mental status- normal

b-
Muscle
-
power,
tone
&
movements are normal in all limbs

c- There is no neurological deficit

d- Spine- normal curvature, slight
protuberance on L3- L4 which is non
tender, no abnormality.

e. Hip joint - both hip joints are
normal.

INVESTIGATION-

Blood- TLC, DLC, Hb%, ESR,
Blood Sugar, Blood Urea, HIV- I & II,

IgG, IgM, IgA for tuberculosis,
Urine-R/M
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

X-Ray - x-ray chest PA view

x-ray pelvis with both hip joint-AP
view

x-ray L-S spine AP/Lateral

MRI of L-S spine.

Investigations reveal no abnormality
except no headed lesion of L3 L4 DISC
on x....of spine e MRI.

Sd/-

03.11.2006

Dr. Sudhir K. Gupta, Medical
Officer, CGH

Member-Medical Board.

APPENDIX 'A2'

REMARKS OF THE MEDICAL
BOARD

The medical board was of the
unanimous opinion that it was necessary
to review past medical condition of Sri
Shambhoo, ex s.w. and therefore while
going through his previous records it was
observed :-

1- That on his medical examination
on 22.03.2001 by a panel of two doctors,
he had been found to have been suffering
from pulmonary tuberculosis with pott's
spine
(having
tenderness
at
the
lumbosacral region with no neural
deficit) and having symptoms of pain at
the back, cough and breathlessness
which further aggrevated on doing hard
physical work. Based on this he was
declared medically unfit to carry out hard
labour work which he was expected to do
by virtue of his trade as Safaiwala.

2- On his medical examination on
29.6.2001 a medical board consisting of
three doctors he was again found to be
medically unfit to carry out his trade
work of safaiwala because his physical
condition was not suitable for having
been
suffering
from
pulmonary
tuberculosis with bronchitis and pott's
spine. However, the medical board
further recommended that he can be
given
sheltered
appointment
on
compassionate ground as per fitness to
be reviewed at regular intervals.

3-
While
reviewing
available
records, Shri Shambhoo ex. Sw had been
found to be chronically ill in the past as
evident from the facts that he had been
perpetual absentee on medical ground as
per the details obtained as follows:-

1996---------------41 days

1997---------------60 days

1998---------------37.5 days

1999---------------26 days

2000---------------44.5 days

2001---------------31 days

Concluding remarks:- On medical
examination of Shri Shambhoo, ex. sw.
on this day of 3rd Nov. 2006 (after a
lapse of over 5 years from last medical
examination held on 29.06.2001) and on
the basis of his investigation reports
advised by the medical board, there
appears to be marked improvement in the
medical condition of Shri Shambhoo,
might be due to the anti tubercular
treatment he had been undertaking in the
past as reported by Shri Shambhoo ex.
sw. Presently he does not complaint of
cough, breathlessness and backache and
he is capable of performing body and
limbs movements without any problems
as observed by the Medical board.
Undoubtedly, as per his previous records
3 All] Cantonment Board Varanasi and another V. Shambhu and another
935
he had been suffering from Pulmonary
kocks with pott's spine from which he
has remarkably recovered with anti
tubercular treatment.

Therefore, in view of the above & as
per the opinion of Dr. S. Kumar Singh
orthopaedic and spine surgeon (enclosed
as Appendix 'A.3') as of now, Shri
Shambhoo ex. s.w. in question is
medically fit without any neurological
deficit and can do moderate work
without any difficulty.

Sd/-
1. Sig. of C.O. MH, Chairman
Sd/-
2. Sig. of R.M.O. CGH Member
Sd/-
3. Sig. of M.O. CGH Member"

5. The matter was directed by the
Court to be placed after four weeks, but
due to some unavoidable intervening
factors, it could not be taken up for one
cause or the other. The matter has now
finally been placed before us today.

6. Sri Dubey, learned counsel for
the appellants contends that respondent
no.1-writ petitioner was found medically
unfit
to
discharge
any
duty
and,
therefore, his services were terminated.
He has invited the attention of the Court
to the medical report dated 22.3.2001,
which indicates that respondent no.1-writ
petitioner, who was found to be suffering
from
pulmonary
tuberculosis,
was
declared medically unfit for doing hard
labour work. This medical unfitness was
put forward to the Medical Board for reassessment and the Medical Board
constituted by the competent authority,
opined as follows:-

"10. Order given to the individual
by the President of the medical board:-
You are being boarded out from service
on medical ground because your physical
condition are not suitable to carry out
your trade work. However, he can be
given
sheltered
appointment
on
compassionate ground as per fitness to
be reviewed at regular intervals."

7. Sri Dubey, contends that
respondent
no.1-writ
petitioner
has
accepted his post retiral benefits and,
therefore, no relief can be granted to him
even
otherwise.
He
submits
that
respondent no.1-writ petitioner is out of
employment and, therefore, there is no
question of his reinstatement.

8. Sri M.M. Sahai, learned counsel
for
respondent
no.1-writ
petitioner,
contends that the report, which was
submitted on 29.6.2001, clearly indicates
that respondent no.1-writ petitioner could
be given sheltered appointment on
compassionate ground as per fitness to
be reviewed at regular intervals. He
submits that in spite of the aforesaid
recommendation of the Medical Board,
no such exercise was undertaken by the
appellants-Board. There is nothing on
record to indicate that, at any point of
time, the case of respondent no.1-writ
petitioner was considered for alternate
appointment.

9.

He
further
submits
that
respondent
no.1-writ
petitioner
was
illegally thrown out of employment,
therefore, the appellants are obliged to
take back him in employment and pay
him full back wages. The contention is
that the subsequent medical report leaves
no room for doubt that respondent no.1writ petitioner was fit so as to discharge
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
his duties, therefore, he is entitled for his
reinstatement along with back wages. He
further submits that even if respondent
no.1-writ petitioner had accepted some
retiral benefits from the appellants, the
same would not dis-entitle him for
asserting his claim for reinstatement and
back wages.

10. We have heard learned counsel
for the parties and perused the records.

11. The medical report relied upon
by the appellants dated 22.03.2001 does
not indicate that the disease from which
respondent
no.1-writ
petitioner
was
suffering, was not curable. This is further
fortified by the report of the Medical
Board dated 29.6.2001, which clearly
demonstrates that it was the weak
physical condition, as assessed by the
Board, due to which respondent no.1writ petitioner was not fit to carry out his
trade work, but he could be offered
sheltered appointment on review of his
physical condition.

12. From the records, we do not
find
that
any
exercise
has
been
undertaken by the appellants-Board to
apply their mind to the aforesaid
recommendation made by the Medical
Board. As a matter of fact, respondent
no.1-writ petitioner was summoned and
he was handed over an order for
receiving his retiral benefits.

13. In our opinion, receiving of
such retiral benefits by the respondent
no.1-writ petitioner, does not dis-entitle
him from raising his claim against his
termination from service. We do not find
any such indication in the report of the
medical board that respondent no.1-writ
petitioner
was
absolutely
unfit
to
discharge any duty. In such a situation,
in view of the subsequent medical report
dated 03/04.11.2006, which declares that
respondent
no.1-writ
petitioner
is
medically fit without any neurological
deficit and is capable to do moderate
work
without
any
difficulty,
the
submission
of
the
appellant-Board
deserves
to
be
rejected
and
is
accordingly rejected. The judgment and
order of the learned Single Judge is
affirmed. In view of the medical report
dated 3/4.11.2006 extracted above, the
appellants-Board are directed to reinstate
respondent no.1-writ petitioner in service
forthwith.

14. Insofar as the payment of back
wages is concerned, in the case of
Commissioner,
Karnataka
Housing
Board Vs. C. Muddaiah, reported in
(2007) 7 SCC 689, the Supreme Court in
para 34 of the said judgement observed
as under:

"34. We are conscious and mindful
that even in absence of statutory
provision, normal rule is "no work no
pay". In appropriate cases, however, a
court of law may, nay must, take into
account all the facts in their entirely and
pass an appropriate order in consonance
with law. The court, in a given case, may
hold that the person was willing to work
but was illegally and unlawfully not
allowed to do so. The court may in the
circumstances, direct the authority to
grant him all benefits considering "as if
he had worked". It, therefore, cannot be
contended as an absolute proposition of
law that no direction of payment of
consequential benefits can be granted by
a court of law and if such directions are
issued by a court, the authority can
ignore them even if they had been finally
3 All] Cantonment Board Varanasi and another V. Shambhu and another
937
confirmed by the Apex Court of the
country (as has been done in the present
case). The bald contention of the
appellant Board, therefore, has no
substance and must be rejected."

The same view has been reiterated
in the case of Somesh Tiwari Vs. Union
of India, reported in (2009) 2 SCC 592.
In para 23 of the said judgment, the
Supreme Court observed as under:-

"23. This Court in Karnataka
Housing Board v. C. Muddaiah [(2007) 7
SCC 689] laid down the law, thus :(SCC
pp. 700-01, paras 33-34)

"33. The matter can be looked at
from another angle also. It is true that
while granting a relief in favour of a
party, the court must consider the
relevant provisions of law and issue
appropriate directions keeping in view
such provisions. There may, however, be
cases where on the facts and in the
circumstances, the court may issue
necessary directions in the larger interest
of justice keeping in view the principles
of justice, equity and good conscience.
Take a case, where ex facie injustice has
been meted out to an employee. In spite
of the fact that he is entitled to certain
benefits, they had not been given to him.
His representations have been illegally
and unjustifiably turned down. He finally
approaches a court of law. The court is
convinced that gross injustice has been
done to him and he was wrongfully,
unfairly
and
with
oblique
motive
deprived of those benefits. The court, in
the circumstances, directs the authority
to extend all benefits which he would
have obtained had he not been illegally
deprived of them. It is open to the
authorities in such case to urge that as he
has not worked (but held to be illegally
deprived), he would not be granted the
benefits? Upholding of such plea would
amount to allowing a party to take undue
advantage of his own wrong. It would
perpetrate injustice rather than doing
justice to the person wronged.

34. We are conscious and mindful
that even in absence of statutory
provision, normal rule is "no work no
pay". In appropriate cases, however, a
court of law may, nay must, take into
account all the facts in their entirely and
pass an appropriate order in consonance
with law. The court, in a given case, may
hold that the person was willing to work
but was illegally and unlawfully not
allowed to do so. The court may in the
circumstances, direct the authority to
grant him all benefits considering "as if
he had worked". It, therefore, cannot be
contended as an absolute proposition of
law that no direction of payment of
consequential benefits can be granted by
a court of law and if such directions are
issued by a court, the authority can
ignore them even if they had been finally
confirmed by the Apex Court of the
country (as has been done in the present
case). The bald contention of the
appellant Board, therefore, has no
substance and must be rejected."

15. In our considered opinion,
keeping in view the aforesaid decisions
of the Supreme Court, respondent no.1writ petitioner be awarded 50% of the
back wages for the period he was out of
employment.
Respondent
no.1-writ
petitioner shall, apart from this, be
entitled for all consequential benefits.
The amount already paid to respondent
no.1-writ petitioner, as per the interim
order of this Court dated 10.10.2006,
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
shall be adjusted towards the payment of
back wages.

16. Accordingly, this special appeal
is disposed of subject to the directions
made hereinabove. Interim order dated
10.10.2006 stands vacated and the
impugned judgment stands modified
accordingly. No order as to costs.

17.

Medical
Report
dated
03/04.11.2006
submitted
by
the
appellants-Board be kept with the record.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2010

BEFORE
THE HON'BLE S.K. TRIPATHI, J.

Criminal Revision No. 1489 of 2004

Udai Narain Singh

 ...Applicant
Versus
State of U.P. and another ...Opposite Parties

Counsel for the Revisionist:
Sri Kamal Krishna

Counsel for the Respondents:
Sri A.K. Singh
Sri P.N. Rai
Sri R.N. Rai
A.G.A.

(A) Code of Criminal Procedure 1973
Sec. 227, IPC Sec. 302, 201-Evidence Act
Sec 30-Accused implicated only on the
basis of confessional statement of the co
accused-held, such a statement can only
bind the maker, but not those who had
been implicated therein-could be read in
evidence as a corraboratime piece of
evidence-if materials before the Court
make
out
even
a
case
of
strong
suspection.

(B) Criminal
Procedure
Code
1973
Sec.227,401-IPC Sec.302, 201-Revision
against
order
rejecting
discharge
application-held, though Addl Session
Judge expected to pursue confessional
statement of the accused and other
materials in the case diary-He was not
required to consider the pros and cons
off the evidence and to record a final
verdict-only a prima facie consideration
of material on face value necessaryimpugned order suffering from material
infirmity-set a side.

Held: Para 17

In the instant case, the learned trial
court has relied on the statements of the
witnesses, Smt Hira Mani Singh, Amresh
Kumar Pandey, Smt. Beena Singh and
Anad Kumar and has excluded the
statements of witnesses Manoj Kumar
and Anand Kumar on the ground that
their statements had merely proved the
confessional statements of co-accused,
which were not relevant and held that
the statements of other witnesses were
sufficient to frame charges under section
302
and
201
I.P.C.,
but
without
indicating as to whether the other
witnesses had spoken anything in regard
to the complicity of the applicant or not.
The submission of the learned counsel
for the applicant or not. The submission
of the learned counsel for the applicant
is
that
except
the
confessional
statements, there is no other evidence
against the applicant. The statements of
the witnesses Smt. Hira Mani Singh,
Amresh Kumar Pandey, Smt. Beena
Singh and Anand Kumar are not in any
way against the applicant, but the
learned Additional Sessions Judge has
misread their statements, therefore, the
finding of the Additional Sessions Judge,
being based on misreading of
the
statements of the said witnesses cannot
be upheld. It is true that the confession
of a co-accused is not a substantive
evidence and there should be some
evidence
beyond
the
confessional
statement of co-accused, but the learned