JUDGMENT By the Court.—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. 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 3/4.11.2006 has been placed before the Court, which is quoted below : “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. 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 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/- 3.11.2006 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 22.3.2001 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. sw. on this day of 3rd Nov. 2006 (after a lapse of over 5 years from last medical examination held on 29.6.2001) 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 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 re-assessment 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. 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. 1-writ petitioner was fit so as to discharge his duties, therefore, he is entitled for his reinstatement alongwith 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 22.3.2001 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. 1-writ petitioner was not fit to carry out his trade work, but he could be offered sheltered appointment on review of his physical condition. 12. 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. 1-writ 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 3/4.11.2006, 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 v. C. Muddaiah, (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”. 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.” The same view has been reiterated in the case of Somesh Tiwari v. Union of India, (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? 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. 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. 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 3/4.11.2006 submitted by the appellants-Board be kept with the record. —————