Visakhapatnam Port Trust Vs. Yellappa Appala Naidu - Court Judgment

SooperKanoon Citationsooperkanoon.com/434807
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided OnOct-17-1996
Case NumberAppeal No. 1669/1986
JudgeP. Ramakrishnam Raju, J.
Reported in1996(4)ALT1095; (1998)IIILLJ266AP
ActsIndustrial Disputes Act, 1947 - Sections 2
AppellantVisakhapatnam Port Trust
RespondentYellappa Appala Naidu
Appellant AdvocateK. Srinivasa Murthy, Adv.
Respondent AdvocateP. Sri Raghuram, Adv.
DispositionAppeal dismissed
Excerpt:
labour and industrial - reinstatement - section 2 of industrial disputes act, 1947 - suit filed for declaration that order of removal from service is illegal and for consequential relief of reinstatement - in case of violation of regulation whether civil court has jurisdiction to redress grievance of plaintiff or whether plaintiff should approach forum under act - civil court has no jurisdiction in respect of claim for reliefs based on standing orders framed under statute and it is only industrial tribunal that has got exclusive jurisdiction - said principle shall apply to all pending matters except where decrees have been passed by trial court and matters are pending in appeal or second appeal and all suits pending in trial court shall be governed by said principle - having regard to said principle respondent's case cannot be dismissed as not maintainable - in present case plaint clearly discloses that cause of action arose on 26.06.1978 when respondent was removed from services - cause of action further arose on all subsequent dates when appellant declined to reinstate respondent - suit is within 6 months from date of notice - suit is not barred by time - held, there is no ground to defer from finding of lower court that respondent is entitled for reinstatement since order of termination is illegal. - - - the suit for declaration that dismissal of the plaintiff from service was bad and void, for back wages and for injunction preventing the employer from giving effect to the order of dismissal is in substance a suit for the relief of reinstatement and back wages and is therefore not maintainable before civil court. in this case the plaint clearly discloses that the cause of action arises on june 26, 1978 when the plaintiff was wrongfully removed from service and also on subsequent dates when the defendant declined to reinstate the plaintiff into service. the respondent was confident that he was not having any disease like t. further, the lower court has also from the appearance of the, respondent who was attending the court regularly had to observe that the respondent was looking healthy, was never looking like a patient suffering from t. the lower court has discussed at length and given sufficient reasons for not accepting the opinion of the medical board and the chief medical officer, and i am in perfect agreement with the said reasoning.p. ramakrishnam raju, j. 1. the defendant is the appellant. the respondent-plaintiff filed the suit for declaration that the order of removal of the plaintiff from service is illegal, and for a consequential relief of reinstatement into service together with a sum of rs. 12,500/- being the arrears of salary from july 1, 1978 till the date of the suit and forfuture salaries.2. the respondent-plaintiff was appointed on february 7, 1968 as gangman in the engineering department of the appellant-port trust. after he worked for about 10 years, he was directed to undergo medical examination by am order dated may 10, 1978 along with others. he was declared medically unfit on june 26, 1978 by the appellant and his services were terminated with effect from the said date on the ground that he was suffering from pulmonary tuberculosis. in fact he had not suffered from it at any time. therefore he approached king george hospital, visakhapatnam and the district tuberculosis control hospital, visakhapatnam subjecting himself for medical tests and both the hospitals issued certificates that he had not been suffering from tuberculosis. on the strength of the said certificates, the petitioner filed a representation to the appellant, but as no action was taken, he filed the suit.3. in the written statement, the appellant while denying the material allegations contained in the plaint disputed the plea of the respondent that he was not suffering from tuberculosis. it is also asserted that the suit is not maintainable as thecivil court has no jurisdiction; the chairman of the appellant port trust cannot represent the port trust; the first respondent had not issued thestatutory notice as contemplated under section 120 of the major port trusts act, 1963 and that the suit is barred by limitation.4. the trial court framed 6 issues. the respondent examined 2 witnesses including himself as p.w.i and marked exs.a-1 to a-4; while the appellant examined two witnesses including a clerk working in the medical department of the appellant-port trust as d. w. 1. on a consideration of the evidence adduced in the case, the lower court decreed the suit as prayed for. hence the appeal.5. sri koka srinivasa murthy, the learned standing counsel for the appellant-port trust chiefly contended that the civil court has no jurisdiction to grant the relief of reinstatement and back wages.6. visakhapatnam port trust was constituted under the provisions of the major port trusts act, 1963. regulations were made under section 28 of the visakhapatnam port trust act. regulation 14(1) of the visakhapatnam port trust employees (recruitment, seniority and promotion) regulations, 1964 provides for regularisation of the employees. therefore, if the respondent has got any grievance, he must work out his remedies under the industrial disputes act.7. regulations framed by virtue of the powers conferred under section 28 of the visakhapatnam port trust act are statutory in nature. the powers of the statutory bodies are controlled and regulated by such statutes. it is often said that the regulations are made to restrict the power of statutory authorities and limit their unbridled powers. these public corporations are often described as the third arm of the government, since the executive functions of the government are exercised through these agencies. therefore, these regulations have the force of law binding on the corporation, its officers, servants and the members of the public who come within the sphere of its operations, and as such the regulations are not mere agreements or contracts between the parties. therefore, the main question that falls for consideration is whether in case of violation of such a regulation, whether the civil court has jurisdiction to redress the grievance of the plaintiff or whether he should approach the forum under the industrial disputes act. industrial dispute is defined under section 2(k) as follows:-'industrial dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.'in sukhdev singh v. bhagatram ( 1975-1-llj-399) a constitution bench of the supreme court observed thus:'there is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislations under powers conferred by the statute. a regulation framed under a statute applies uniform treatment to every one or to all members of same group or class. the oil and natural gas commission, the life insurance corporation and industrial finance corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. these regulations impose obligation on the statutory authorities. the statutory authorities cannot deviate from the conditions of service.'the jurisdiction of the civil court in relation to industrial disputes has been discussed by the supreme court in premier automobiles v. k.s. wadke (1975-ii-llj-445), wherein it is observed as follows :'if the dispute is not an industrial dispute within the meaning of section 2(k) or within the meaning of section 2-a of the act, it is obvious that there is no provision for adjudication of such disputes under the act. civil courts will be the proper forum. but where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the act or to approach the civil court.'it was held further that a suit for a decree for permanent injunction was not maintainable in the civil court as the civil court has no jurisdiction to grant the relief or even as a temporary relief. thus, it is clear that the suit in relation to the enforcement of a right created under the act is not maintainable since the remedy in civil court is barred. the said view was reaffirmed by the supreme court in a recent judgment in rajasthan s.r.t. corporation v. krishna kant (1994-1-llj-136) . the supreme court observed thus:'in other words, a dispute arising between the employer and the workman/workmen under, or for the enforcement of the industrial employment standing orders is an industrial dispute, if it satisfies the requirements of section 2(k) and/or section 2-a of the industrial disputes act and must be adjudicated in the forums created by the industrial disputes act, alone. this would be so, even if the dispute raised or relief claimed is based partly upon certified standing orders and partly on general law of contract.'a three judge bench expressed its agreement with the view taken by the supreme court in jitendra nath v. empire of india & ceylone tea co.(1984-ii-llj-572),' wherein it was observed as follows:-'the suit for declaration that dismissal of the plaintiff from service was bad and void, for back wages and for injunction preventing the employer from giving effect to the order of dismissal is in substance a suit for the relief of reinstatement and back wages and is therefore not maintainable before civil court.'therefore, in view of the dicta consistently laid down by the supreme court, it is clear that the civil court has no jurisdiction in respect of a claim for reliefs based on the standing orders framed under the statute and it is only the industrial tribunal that has got exclusive jurisdiction.8. however sri p. raghuram, the learned counsel for the respondent relying on a decision reported in tata chemicals ltd. v. kailash : (1965)illj54guj contends that the suit in the civil court is maintainable. in the said decision it is observed that if the termination of service is under a contract, civil suit is maintainable, and if on the other hand, the termination is under a statutory regulation resort must be had to labour court under the industrial disputes act. this decision, in my view does not strike a different note than the one expressed by the supreme court as seen earlier. accordingly, i must hold perhaps the suit is not maintainable in law; but the matter does not end there. but the supreme court in rajasthan s.r.t. corporation v. krishna kant (supra), observed that in view of the fact that position of law was not very clear until the said decision is rendered on may 3, 1995 the apex court directed that the principles enunciated in the said judgment shall apply to all the pending matters, except where decrees have been passed by the trial court and the matters are pending in appeal or second appeal and all suits pending in the trial court shall be governed hereinafter by the said principles. having regard to this direction given by the apex court, it must be held that this cannot be dismissed as not maintainable. i hold accordingly.9. it is next contended by the learned standing counsel for the appellant that the suit is barred by time. he based his contention on section 120 of major port trusts act, 1963 which runs as follows:-'120. limitation of proceeding in respect of things done under the act:- no suit or other proceeding shall be commenced against a board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this act until the expiration of one month after notice in writing has been given to the board or him stating the cause of action, or after six months after the accrual of the cause of action.'according to the learned counsel two things are essential for the maintainability of the suit. firstly, the plaintiff cannot file the suit until the expiration of one month after the issuance of notice; and secondly, the suit must be filed within six months after the accrual of the cause of action; inasmuch as the suit was filed beyond six months from the date of termination, his contention is that the suit is barred by time.10. a similar question was considered by a division bench of this court in shipping corporation of india v. union of india : air1976ap261 and held that the two requirements of the section should be read conjunctively and if read accordingly, not only the suit should be filed within six months after the accrual of the cause of action, but it has to be preceded by one month notice. therefore, the clause 'accrual of the cause of action' assumes significance. the cause of action may constitute a single fact or a bundle of facts. in this case the plaint clearly discloses that the cause of action arises on june 26, 1978 when the plaintiff was wrongfully removed from service and also on subsequent dates when the defendant declined to reinstate the plaintiff into service. the suit is admittedly within six months from the date of notice. therefore, i am of the view that the suit is not barred by time.11. what remains to be considered is whether the impugned order dated june 22, 1978 (sic june 26, 1978) removing the respondent from service is wrongful; in other words, the order of termination is arbitrary and unreasonable.12. the respondent worked as gangman for about a decade. he was directed to appear before the medical officer of the port trust when he was ripe for regularisation. he appeared before the chief medical officer who in his report (ex. b-4) stated that he was suffering from pulmonary tuberculosis; consequently he was made unfit for service under ex.b-6 orders. under the impugned order dated june 26, 1978 he was finally declared medically unfit. the respondent in his evidence stated that he was appointed on february 7, 1968 after being sponsored by the employment exchange. therefore, the lower court has rightly concluded that the respondent was appointed on february 7, 1968 as a gangman temporarily. the subsequent conduct of the appellant in calling the respondent for medical examination's only to consider him for the permanent post. the opinion of the chief medical officer and the medical board show that the respondent was diagnosed as suffering from active pulmonary tuberculosis. in the proceedings of the medical board (ex.b-9), its opinion is based on medical examination chart and laboratory test result as shown under exs.b-1 to b-3. the medical officer who examined the respondent, directed him to appear after six months. but curiously it was not brought on record whether any treatment was prescribed to p.w.i during the said period. even d.w.2 stated that the respondent was asked to get treatment outside and come after six months. he admits that the employees of port trust are given medical identity cards and the card-holders are entitled to have treatment in the port trust hospital. the respondent was confident that he was not having any disease like t.b. therefore, he got himself examined in the government t.b. centre, visakhapatnam by p.w.2 and according to his opinion the respondent was not suffering from the said disease. ex.a-1 dated september 11, 1978 is the certificate issued by p.w.2 from the office of the district t.b. control centre. after the issuance of ex.a-1, the appellant constituted the medical board who examined p.w.i on october 14, 1978. the district t.b. control centre is the proper authority to examine any t.b. patient and issue a certificate which is established for purpose of curing t.b. patients only. therefore p.w.2 a doctor working in the said hospital has given ex.a-1 which is entitled to more weight. further, the lower court has also from the appearance of the, respondent who was attending the court regularly had to observe that the respondent was looking healthy, was never looking like a patient suffering from t.b. therefore, i have no hesitation in agreeing with the finding of the lower court that the opinion given by the medical board cannot be accepted and the respondent did not suffer from any active pulmonary tuberculosis as suggested. it is also brought to my notice that pursuant to the interim orders, the respondent was reinstated and he is now working. therefore, removing the respondent from service is illegal. the lower court has discussed at length and given sufficient reasons for not accepting the opinion of the medical board and the chief medical officer, and i am in perfect agreement with the said reasoning. therefore, i do not find any ground to differ from the finding recorded by the lower court that the respondent is entitled for reinstatement, since the order of termination is illegal.13. the lower court has accepted the claim made by the respondent at rs. 500/- per month as correct and accordingly, a decree was granted for arrears of salary at rs. 500/- per month from july 1, 1978 till the date of filing of the suit, and also future salaries according to the prevailing scales of pay.14. sri k. srinivasa murthy, the learned standing counsel appearing for the appellant submits that the respondent is not entitled to a decree for back wages for mere asking. he has to establish that he could not work anywhere during that period, and therefore, a decree for full back wages must be deleted. he relies on a division bench judgment in second appeal no. 240 of 1994 dated march 12, 1996, wherein, only l/3rd of the back wages were awarded in similar circumstances. following the said judgment i am of the view that the back wages should be reduced and having regard to the fact that the respondent was only getting a meagre (sum of) rs. 500/- per month, i am of the view that he should be paid half of the back wages till the date of reinstatement.15. subject to the above modification, the appeal is dismissed, but in the circumstances, i direct the parties to bear their own costs.
Judgment:

P. Ramakrishnam Raju, J.

1. The defendant is the appellant. The Respondent-plaintiff filed the suit for declaration that the order of removal of the plaintiff from service is illegal, and for a consequential relief of reinstatement into service together with a sum of Rs. 12,500/- being the arrears of salary from July 1, 1978 till the date of the suit and forfuture salaries.

2. The Respondent-plaintiff was appointed on February 7, 1968 as Gangman in the Engineering Department of the appellant-Port Trust. After he worked for about 10 years, he was directed to undergo medical examination by am order dated May 10, 1978 along with others. He was declared medically unfit on June 26, 1978 by the appellant and his services were terminated with effect from the said date on the ground that he was suffering from pulmonary tuberculosis. In fact he had not suffered from it at any time. Therefore he approached King George Hospital, Visakhapatnam and the District Tuberculosis Control Hospital, Visakhapatnam subjecting himself for medical tests and both the hospitals issued certificates that he had not been suffering from Tuberculosis. On the strength of the said certificates, the petitioner filed a representation to the appellant, but as no action was taken, he filed the suit.

3. In the written statement, the appellant while denying the material allegations contained in the plaint disputed the plea of the Respondent that he was not suffering from tuberculosis. It is also asserted that the suit is not maintainable as theCivil Court has no jurisdiction; the Chairman of the appellant Port Trust cannot represent the Port Trust; the first Respondent had not issued theStatutory notice as contemplated under Section 120 of the Major Port Trusts Act, 1963 and that the suit is barred by limitation.

4. The trial Court framed 6 issues. The Respondent examined 2 witnesses including himself as P.W.I and marked Exs.A-1 to A-4; while the appellant examined two witnesses including a clerk working in the Medical Department of the appellant-Port Trust as D. W. 1. On a consideration of the evidence adduced in the case, the lower Court decreed the suit as prayed for. Hence the appeal.

5. Sri Koka Srinivasa Murthy, the learned Standing Counsel for the appellant-Port Trust chiefly contended that the Civil Court has no jurisdiction to grant the relief of reinstatement and back wages.

6. Visakhapatnam Port Trust was constituted under the provisions of the Major Port Trusts Act, 1963. Regulations were made under Section 28 of the Visakhapatnam Port Trust Act. Regulation 14(1) of the Visakhapatnam Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 1964 provides for regularisation of the employees. Therefore, if the Respondent has got any grievance, he must work out his remedies under the Industrial Disputes Act.

7. Regulations framed by virtue of the powers conferred under Section 28 of the Visakhapatnam Port Trust Act are Statutory in nature. The powers of the Statutory bodies are controlled and regulated by such Statutes. It is often said that the Regulations are made to restrict the power of Statutory Authorities and limit their unbridled powers. These Public Corporations are often described as the third arm of the Government, since the executive functions of the Government are exercised through these Agencies. Therefore, these regulations have the force of law binding on the Corporation, its Officers, servants and the members of the public who come within the sphere of its operations, and as such the Regulations are not mere agreements or contracts between the parties. Therefore, the main question that falls for consideration is whether in case of violation of such a Regulation, whether the Civil Court has jurisdiction to redress the grievance of the plaintiff or whether he should approach the forum under the Industrial Disputes Act. Industrial dispute is defined under Section 2(k) as follows:-

'Industrial dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.'

In Sukhdev Singh v. Bhagatram ( 1975-1-LLJ-399) a Constitution Bench of the Supreme Court observed thus:

'There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislations under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service.'

The jurisdiction of the Civil Court in relation to industrial disputes has been discussed by the Supreme Court in Premier Automobiles v. K.S. Wadke (1975-II-LLJ-445), wherein it is observed as follows :

'If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of Section 2-A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court.'

It was held further that a suit for a decree for permanent injunction was not maintainable in the Civil Court as the Civil Court has no jurisdiction to grant the relief or even as a temporary relief. Thus, it is clear that the suit in relation to the enforcement of a right created under the Act is not maintainable since the remedy in Civil Court is barred. The said view was reaffirmed by the Supreme Court in a recent judgment in Rajasthan S.R.T. Corporation v. Krishna Kant (1994-1-LLJ-136) . The Supreme Court observed thus:

'In other words, a dispute arising between the employer and the workman/workmen under, or for the enforcement of the Industrial Employment Standing Orders is an Industrial Dispute, if it satisfies the requirements of Section 2(k) and/or Section 2-A of the Industrial Disputes Act and must be adjudicated in the forums created by the Industrial Disputes Act, alone. This would be so, even if the dispute raised or relief claimed is based partly upon certified Standing Orders and partly on general law of contract.'

A three Judge Bench expressed its agreement with the view taken by the Supreme Court in Jitendra Nath v. Empire of India & Ceylone Tea Co.(1984-II-LLJ-572),' wherein it was observed as follows:-

'The suit for declaration that dismissal of the plaintiff from service was bad and void, for back wages and for injunction preventing the employer from giving effect to the order of dismissal is in substance a suit for the relief of reinstatement and back wages and is therefore not maintainable before Civil Court.'

Therefore, in view of the dicta consistently laid down by the Supreme Court, it is clear that the Civil Court has no jurisdiction in respect of a claim for reliefs based on the Standing Orders framed under the Statute and it is only the Industrial Tribunal that has got exclusive jurisdiction.

8. However Sri P. Raghuram, the learned Counsel for the Respondent relying on a decision reported in Tata Chemicals Ltd. v. Kailash : (1965)ILLJ54Guj contends that the suit in the Civil Court is maintainable. In the said decision it is observed that if the termination of service is under a contract, civil suit is maintainable, and if on the other hand, the termination is under a Statutory Regulation resort must be had to Labour Court under the Industrial Disputes Act. This decision, in my view does not strike a different note than the one expressed by the Supreme Court as seen earlier. Accordingly, I must hold perhaps the suit is not maintainable in law; but the matter does not end there. But the Supreme Court in Rajasthan S.R.T. Corporation v. Krishna Kant (supra), observed that in view of the fact that position of law was not very clear until the said decision is rendered on May 3, 1995 the Apex Court directed that the principles enunciated in the said judgment shall apply to all the pending matters, except where decrees have been passed by the trial Court and the matters are pending in appeal or second appeal and all suits pending in the trial Court shall be governed hereinafter by the said principles. Having regard to this direction given by the Apex Court, it must be held that this cannot be dismissed as not maintainable. I hold accordingly.

9. It is next contended by the learned Standing Counsel for the appellant that the suit is barred by time. He based his contention on Section 120 of Major Port Trusts Act, 1963 which runs as follows:-

'120. Limitation of proceeding in respect of things done under the Act:- No suit or other proceeding shall be commenced against a Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action.'

According to the learned counsel two things are essential for the maintainability of the suit. Firstly, the plaintiff cannot file the suit until the expiration of one month after the issuance of notice; and secondly, the suit must be filed within six months after the accrual of the cause of action; inasmuch as the suit was filed beyond six months from the date of termination, his contention is that the suit is barred by time.

10. A similar question was considered by a Division Bench of this Court in Shipping Corporation of India v. Union of India : AIR1976AP261 and held that the two requirements of the Section should be read conjunctively and if read accordingly, not only the suit should be filed within six months after the accrual of the cause of action, but it has to be preceded by one month notice. Therefore, the clause 'accrual of the cause of action' assumes significance. The cause of action may constitute a single fact or a bundle of facts. In this case the plaint clearly discloses that the cause of action arises on June 26, 1978 when the plaintiff was wrongfully removed from service and also on subsequent dates when the defendant declined to reinstate the plaintiff into service. The suit is admittedly within six months from the date of notice. Therefore, I am of the view that the suit is not barred by time.

11. What remains to be considered is whether the impugned order dated June 22, 1978 (sic June 26, 1978) removing the Respondent from service is wrongful; in other words, the order of termination is arbitrary and unreasonable.

12. The Respondent worked as Gangman for about a decade. He was directed to appear before the Medical Officer of the Port Trust when he was ripe for regularisation. He appeared before the Chief Medical Officer who in his report (Ex. B-4) stated that he was suffering from Pulmonary Tuberculosis; consequently he was made unfit for service under Ex.B-6 orders. Under the impugned order dated June 26, 1978 he was finally declared medically unfit. The Respondent in his evidence stated that he was appointed on February 7, 1968 after being sponsored by the Employment Exchange. Therefore, the lower Court has rightly concluded that the Respondent was appointed on February 7, 1968 as a Gangman temporarily. The subsequent conduct of the appellant in calling the Respondent for medical examination's only to consider him for the permanent post. The opinion of the Chief Medical Officer and the Medical Board show that the Respondent was diagnosed as suffering from active Pulmonary Tuberculosis. In the proceedings of the Medical Board (Ex.B-9), its opinion is based on Medical examination chart and Laboratory test result as shown under Exs.B-1 to B-3. The Medical Officer who examined the Respondent, directed him to appear after six months. But curiously it was not brought on record whether any treatment was prescribed to P.W.I during the said period. Even D.W.2 stated that the Respondent was asked to get treatment outside and come after six months. He admits that the employees of Port Trust are given medical identity cards and the card-holders are entitled to have treatment in the Port Trust Hospital. The Respondent was confident that he was not having any disease like T.B. Therefore, he got himself examined in the Government T.B. Centre, Visakhapatnam by P.W.2 and according to his opinion the Respondent was not suffering from the said disease. Ex.A-1 dated September 11, 1978 is the certificate issued by P.W.2 from the Office of the District T.B. Control Centre. After the issuance of Ex.A-1, the appellant constituted the Medical Board who examined P.W.I on October 14, 1978. The District T.B. Control Centre is the proper authority to examine any T.B. patient and issue a certificate which is established for purpose of curing T.B. Patients only. Therefore P.W.2 a Doctor working in the said Hospital has given Ex.A-1 which is entitled to more weight. Further, the lower Court has also from the appearance of the, Respondent who was attending the Court regularly had to observe that the Respondent was looking healthy, was never looking like a patient suffering from T.B. Therefore, I have no hesitation in agreeing with the finding of the lower Court that the opinion given by the Medical Board cannot be accepted and the Respondent did not suffer from any active pulmonary Tuberculosis as suggested. It is also brought to my notice that pursuant to the interim orders, the Respondent was reinstated and he is now working. Therefore, removing the Respondent from service is illegal. The lower Court has discussed at length and given sufficient reasons for not accepting the opinion of the Medical Board and the Chief Medical Officer, and I am in perfect agreement with the said reasoning. Therefore, I do not find any ground to differ from the finding recorded by the lower Court that the Respondent is entitled for reinstatement, since the order of termination is illegal.

13. The lower Court has accepted the claim made by the Respondent at Rs. 500/- per month as correct and accordingly, a decree was granted for arrears of salary at Rs. 500/- per month from July 1, 1978 till the date of filing of the suit, and also future salaries according to the prevailing scales of pay.

14. Sri K. Srinivasa Murthy, the learned Standing Counsel appearing for the appellant submits that the Respondent is not entitled to a decree for back wages for mere asking. He has to establish that he could not work anywhere during that period, and therefore, a decree for full back wages must be deleted. He relies on a Division Bench Judgment in Second Appeal No. 240 of 1994 dated March 12, 1996, wherein, only l/3rd of the back wages were awarded in similar circumstances. Following the said judgment I am of the view that the back wages should be reduced and having regard to the fact that the Respondent was only getting a meagre (sum of) Rs. 500/- per month, I am of the view that he should be paid half of the back wages till the date of reinstatement.

15. Subject to the above modification, the appeal is dismissed, but in the circumstances, I direct the parties to bear their own costs.