JUDGMENT Honble Rakesh Tiwari, J.—Heard Sri S.D. Dubey, counsel for the petitioner, Sri K.P. Agrawal, senior counsel for workman respondent No. 2 and perused the record. 2. Workman Respondent No. 2 Basant Kumar Agarwal is claimed to have been appointed initially for a period of 26 days and thereafter for a period of 24 days in the month of September 1982 on daily wage basis as Junior Clerk in August 1982 by Cantonment Board, Kanpur for the reason of dislocation of work due to suspension of one Sri R.K. Shukla. Thereafter he was appointed as temporary junior clerk for three months on 14.2.1983 and then was placed on probation for two years vide order dated 5.5.1983 for regular appointment. 3. It is submitted by the counsel for petitioner that Sri R.K. Shukla was reinstated and accordingly resolution No. 9 dated 28.6.1984 was passed reinstating Sri Shukla. Consequently, the workman respondent No. 2 was served with a notice dated 17.9.1984 informing that his services would come to an end on expiry of 30 days from the date of receipt of the notice. By another letter No. 931-A dated 17.9.84 he was also informed to collect his retrenchment compensation as provided under lndustrial Disputes Act, 1947. The said letter No. 931-A dated 17.9.1984 is said to have been served by one Sri Satyanarain, a peon in the Cantonment Board who submitted a report to the effect that workman Basant Kumar Agrawal accepted the letter of termination of his services but did not accept the second letter by which he was asked to collect retrenchment compensation etc. 4. Aggrieved by his order of termination, the workman respondent No. 2 moved conciliation machinery under U.P. lndustrial Disputes Act, 1947 and the appropriate Government being of the opinion that an industrial dispute exists referred the following matter of dispute to Central Government lndustrial Tribunal-cum-Labour Court, Kanpur (hereinafter referred to as the CGIT) where it was registered as lndustrial Dispute No. 74 of 1987, Basant Kumar Agrawal v. Executive Officer, Cantonment Board, Kanpur : “Whether the action of Executive Officer, Cantonment Board, Kanpur in terminating services of Sri Basant Kumar Agrawal, Junior Clerk w.e.f. 17.10.1984 is fair, legal and justified? lf not, to what relief concerned workman is entitled to?” 5. lf not, to what relief concerned workman is entitled to?” 5. The CGIT vide its award dated 9.3.1990 which was enforced by publication on 7.6.1990 as per letter of Ministry of Labour, Central Government, New Delhi held that the workman was illegally terminated from service and directed his reinstatement with continuity of service and full back wages. 6. The petitioner-Cantonment Board has challenged the award passed by the CGIT in the present writ petition in which following ad interim order dated 13.2.1991 was passed : “Issue notice. Sri Kameshwar Prasad has accepted notice on behalf of respondent No. 2 and has also filed a counter affidavit. Rejoinder affidavit has also been filed. Having heard learned counsel for the parties, I direct that execution of the award dated 9th March, 1990 of the respondent No. 1 shall remain stayed provided the petitioner reinstates the respondent No. 2 within one month and continues to pay his future wages at current rate. In the event of default, the stay order shall stand automatically vacated.” 7. In compliance of the interim order aforesaid, the workman respondent No. 2 was reinstated by Cantonment Board, Kanpur and is working at present. 8. Contention of the counsel for petitioner is that the CGIT has illegally granted relief of reinstatement with continuity of service and full back wages to the workman concerned as he was a daily wager and his services were rightly terminated after suspension of Sri R.K. Shukla was revoked by the Board in whose place he had been appointed. 9. The award is assailed on the ground that it is contrary to settled principles of law laid down by the Apex Court in paragraph 8 of judgment rendered in Straw Board Manufacturing Co. Ltd., Saharanpur v. Govind, AIR 1962 SC 1500 , wherein the Apex Court while considering proviso to Section 33-C (2) of Industrial Disputes Act (Central) 1947 ( hereinafter referred to as the Central Act), held that no workman shall be discharged or dismissed unless he is paid or tendered wages in compliance of the provisions of the lndustrial Disputes Act 1947. The extract of the judgment on which reliance is placed by the counsel for the petitioner is as under : “Therefore, though Section 33 speaks of payment of one month’s wages, it can only mean that the employer has tendered the wages and that would amount to payment, for otherwise a workman could always make the section unworkable by refusing to take the wages.” 10. On the aforesaid basis, the counsel for petitioner has argued that record shows that the workman had been issued two letters. i.e. (i) one terminating his services and (ii) the other by which retrenchment compensation was offered to him, therefore, there was sufficient compliance of Section 25-F of the Central Act and as such it cannot be said that termination of service of the workman was illegal for not complying with the conditions precedent to retrenchment. 11. He has then argued that in the absence of any sanction by the officer commanding-in-chief of the Central Command as contemplated under Rule 47 of the Cantonment Account Code, 1924 read with Rule 9 of the Cantonment Fund Service Rules, the Board could not accommodate the workman in absence of any vacancy who as stated above was appointed for the reason of dislocation of work due to suspension of Sri R.K. Shukla. 12. The next argument of the counsel for petitioner is that Sri Satyanarain, the peon of the Board has clearly established before the Labour Court that he had offered letter No. 931-A dated 17.9.1984 to the workman calling upon him to collect retrenchment compensation but the same was refused by the workman, as such conditions precedent provided under Section 25-F of the Central Act stood complied with as held in the case of Straw Board Manufacturing Co. (supra). He submits that once the amount had been tendered to the workman and not accepted by him, the CGIT in paragraph 17 and 18 of the award committed an error apparent on the face of record in directing reinstatement of respondent No. 2 with continuity of service and full back wages for alleged violation of mandatory provisions of Section 25-F of the Act. 13. 13. It is lastly urged that it was duty of the workman to have established before the Labour Court that he was not gainfully employed in any other industrial establishment from the date of termination and for all these reasons the findings arrived at by the Labour Court are perverse and suffer from manifest error of law apparent on the face of record and are liable to be set aside. 14. The counsel for petitioner has relied upon paragraph 8 to 11, 2005 (106) FLR 607, General Manager, Haryana Roadways v. Rudhan Singh; (2005) 3 SCC 79 , India Literacy Board and others v. Veena Chaturvedi and others; paragraph 15 & 16, 2006 (3) Supreme Today 662, U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another; 2007 (3) ESC 1752 (All), Shiv Jagat Pandey v. State of U.P. and others and 2007 (6) Supreme Today 113, Sukhdeo Pandey v. Union of India and another in support of his above contentions. 15. Per contra Sri K.P. Agrawal, senior counsel for the workman, has first of all referred to appointment letter of the workman appended as Annexure-1 to the counter affidavit. It is as follows : "No. 111/2786 Office of the Cantonment Board Kanpur, the 14th February, 1983 To, Shri Basant Kumar Agarwal, 68/12, Bhoosatoli, Kanpur. Sub : Appointment of Cantt. Fund Servant Junior Clerk Reference your interview dated 8.2.1983 and subsequent medical certificate from the M.O. lncharge, Cantt. General Hospital, Kanpur. You are hereby appointed as Junior clerk temporarily for a period of 3 months in the scale of 200-320 plus usual allowances as admissible under the Rules from time to time. Your services will be governed under the Cantt. Fund Servants Rules, 1987 as amended uptodate. Your services can be terminated without any notice. You are directed to report to the office Supdt. within 7 days for duty. Sd/- IIIegible. Cantt. Executive Officer, Kanpur (B.S. Verma)” 16. He submits that from perusal of the appointment letter, it is apparent that there is not even a whisper in the aforesaid appointment letter that the workman concerned was being appointed due to dislocation of work in place of Sri R.K. Shukla, a suspended employee. It is stated that argument of the counsel for the petitioner is incorrect and misleading, as such his termination has no nexus with revocation of suspension of Sri R.K. Shukla. It is stated that argument of the counsel for the petitioner is incorrect and misleading, as such his termination has no nexus with revocation of suspension of Sri R.K. Shukla. It is stated that even otherwise after revocation of suspension of Sri R.K. Shukla vide resolution No. 9 on 28.6.1984, the workman was continued in service and his services were sought to be terminated on 17.9.1984. The question vehemently urged by him is as to why the employers continued the workman concerned for about a period of little less than three months even when it was provided in the appointment letter that his services could be terminated without any notice. 17. It is submitted that correct findings of fact have been recorded by the CGIT after appreciation of pleadings of the parties as well as oral and documentary evidence. According to him, there is no illegality or infirmity in the award and it also does not suffer from vice of perversity as has been argued by the counsel for petitioner. It is stated that the CGIT has rightly relied upon evidence of the workman to come to a logical conclusion in the facts and circumstances of the case that services of the workman had been terminated illegally and against provisions of law. It is stressed that it is not for the High Court to find minute faults in the award of the CGIT that the petitioner has to establish that the CGIT has either not considered or has misread the documents or its award is based on misinterpretation of law or is without reasons and non-application of mind for interference by High Court in findings of fact recorded by CGIT on the ground of perversity or illegality in the award. 18. It is urged that the workman has been working in terms of the interim order dated 13.2.1991 now for almost 17 years. The employers have not filed any application for vacation of the interim order, as such it would be very harsh upon the workman to be removed from service when he has been granted relief of reinstatement with contlnuity of service and back wages against his illegal termination of services and thereafter he has been working in the petitioner’s establishment for about 17 years. 19. 19. As regards the ruling cited by the petitioner, it is submitted by the learned senior counsel for the respondent that they are clearly distinguishable. It is urged that the Court in the aforesaid cases was considering the principle “No Work No Pay” which is applicable only in service law. According to him, the powers of the industrial tribunal/Labour Court under Industrial Disputes Act, are more wide even than the powers exercised by the High Court under Article 226 of the Constitution. 20. It is urged by the counsel for respondent Sri K.P. Agrawal that it is for the employer to make out an exception in the case for deviation by the Labour Court from granting normal relief of reinstatement with continuity of service and full back wages, but the employers have neither pleaded nor urged this point regarding alternate relief of compensation before the CGIT they are not entitled to any relief as it is for the first time this point is being raised in arguments in the writ petition. 21. I have considered arguments of the counsel for the parties. Sri S.D. Dubey, counsel for the petitioner has assailed the findings in paragraph 17 & 18 of the award wherein CGIT has held termination of service of the workman to be illegal and directed his reinstatement with continuity of service and full back wages. Paragraph 17, 18 & 19 of the award are reproduced here for ready reference : “17. Thus termination of the services of the workman cannot be upheld under any circumstance. In view of what has been found above the order of termination of the workman is held as illegal. It has been argued on behalf of the management that reinstatement of the workman should not be ordered. If at all any relief is to be granted to the workman it should be the wages for the remaining period of probation and not beyond. In support of his contention the management relied upon the ruling in the case of Brij Mohan Agrawal v. Presiding Officer and others, 1989 All CJ 174. I have gone through this ruling and find that it is distinguishable on facts. In the said case, the petitioner was appointed on probation for a period of three months and his services were terminated abruptly after he had worked for 17 days. I have gone through this ruling and find that it is distinguishable on facts. In the said case, the petitioner was appointed on probation for a period of three months and his services were terminated abruptly after he had worked for 17 days. It is clear from para 9 of the judgment that the petitioner had not continuously worked for one year within the meaning of Section 25B, I.D. Act. It was in those circumstances, it was ordered that the petitioner should be paid salary for the remaining period of probation. In the present case, therefore, I find that the workman is entitled for his reinstatement with full back wages and continuity of service. 18. Hence it is held that the action of the Executive Officer, Cantonment Board, Kanpur in terminating the services of the workman w.e.f. 17.10.1984 is neither legal nor justified. Consequently, the workman is held entitled to his reinstatement as Junior Clerk with continuity of service and with full back wages. 19. Reference is answered accordingly.” 22. In the aforesaid backdrop the argument of the counsel for petitioner is to be adjudged on the basis of materials on record of the CGIT and findings arrived at by it on the basis of those materials. 23. The reasons for arriving the conclusions in paragraph 17 & 18, have been given by the CGIT in paragraph 7 to 15 of the award wherein after consideration and discussion of the documentary and oral evidence, it has come to the conclusion that the workman has proved that he had put in continuous service of 240 days during period of one year preceding the date of his termination within the meaning of Section 25-B of Industrial Disputes Act. It has also noted the decision rendered by the Apex Court in KSRTC Bangalore v. M. Boraiah, 1984 (48) FLR 89 (SC), wherein it has been held that even in the case of probationer, the provisions of Section 25-F are required to be complied with. 24. In the instant case, the basic questions for consideration before the Court are : (i) whether the employers have complied with the conditions precedent to retrenchment as provided under Section 25-F as claimed by the employers or not as claimed by the workman concerned, and (ii) whether the findings of the CGIT suffer from any illegality or perversity as alleged by the counsel for petitioner. 25. 25. In this regard the CGIT has noted the facts in paragraph 12 to 14 of the award and has discarded the evidence of Sri Satyanarain, Peon for the reasons given therein. For appreciation of findings, paragraph 12, 13 and 14 of the award are quoted here for ready reference : “12. In the instant case we have seen that one month’s notice was given by the Executive Officer Cantonment Board Kanpur to the workman while terminating the services of the workman.The receipt of the notice is not denied by the workman. The only dispute between the parties is whether or not retrenchment compensation was paid to the workman. The Management have led evidence to show that by means of letter dated 17.9.84, the delivery of which the workman refused to take, the workman was called upon to collect retrenchment compensation from the office of the Cantonment Board, Kanpur. The evidence consists of the statements of MW-1 Shri Satya Narain who is posted as peon and M.W.-2 Sri B.M. Saxena, who is posted as Office Supdt. in the Cantonment Board, Kanpur. 13. The evidence given by Sri B.M. Saxena, Office Supdt. is not material, in his cross-examination he has admitted that on 17.9.84 he was posted in the Cantonment Board, Lucknow. Sri Satya Narain has, however, deposed that on 17.9.84, he took letter No. 931/A dated 17.9.84 for delivery to the workman that very day, but the workman after reading it out returned it to him saying that he would not take it. In his cross-examination he has deposed that the letter was entered in the Peon Book. He admitted that he had not brought the peon book. Even thereafter no attempt was made by the management to produce the peon book. On the other hand, the workman has denied on oath that no such letter was tendered to him or delivery. 14. To me the evidence given by the workman appears to be far more reliable than the evidence adduced by the management. The copy of the aforesaid letter was filed by the management with the list of documents dated 19.4.1989 by means of which the workman was informed to collect a sum of Rs. 644.50 paisa from the cashier of the office as retrenchment compensaation admissible under the I.D. Act. The copy of the aforesaid letter was filed by the management with the list of documents dated 19.4.1989 by means of which the workman was informed to collect a sum of Rs. 644.50 paisa from the cashier of the office as retrenchment compensaation admissible under the I.D. Act. Thus from the evidence which the management have adduced, it appears that on 17.9.1984, the date on which the notice of termination was given to the workman, the retrenchment compensation payable to the workman had been calculated. If it were so, l fail to understand what prevented the management from making mention of this fact in the letter of termination asking the workman to collect the said sum as retrenchment compensation from the cashier of the Cantonment Board. There also does not appear to be good grounds for refusal to take delivery of this letter by the workman. If he could accept the letter of termination of the same date he could have well accepted this letter as well. Had there been any substance in the plea set up by the management, in the event of refusal, the management could have sent this letter to the workman by registered post with a covering letter explaining the circumstances which had compelled the management to send it by registered post. In view of the notice of termination dated 17.9.1984, retrenchment compensation could have been paid to the workman by 17.10.1984. Thus there was sufficient time with the management to serve this letter on the workman by registered post." 26. In view of the aforesaid, the CGIT in paragraph 15 of the award came to the conclusion that it stands proved that the provisions of Section 25-F were not complied with by the employers while terminating services of the workman. 27. Even otherwise, from perusal of his letter of appointment quoted above in this judgment, it is established that the workman was not appointed in place of Sri R.K. Shukla and therefore termination of his service on the ground of revocation of suspension of Sri R.K. Shukla appears to be a ruse by employers to explain factum of termination of the workman as legal and justified which they have miserably failed to prove and establish before the CGIT and also before this Court. 28. 28. As regards Rule 47 of the Cantonment Account Code, 1924 read with Rule 9 of the Cantonment Fund Service Rules is concerned, suffice is to say that it is a well settled law that Labour Court has wide power even to create a contract which is not even vested in the High Court under Art. 226 of the Constitution. 29. Even though the workman was a probationer, it was incumbent upon the employers to have paid retrenchment compensation to him before terminating his services as he had been in continuous service for more than 240 days in a year since his appointment. 30. After hearing the counsel for the parties at length and on perusal of record it appears that the CGIT has rightly come to the conclusion that termination of service of the petitioner was illegal and unjustified as employers had not complied with the mandatory provisions/conditions precedent before retrenchment/termination of services of the workman as required under Section 25-F of the Industrial Disputes Act, 1947. 31. The decision in Straw Board Manufacturing Co. case (supra) relied by the counsel for petitioner, is distinguishable on two grounds from the instant case, viz. (a) the Apex Court was not considering provisions of Section 25-F but of Section 33 of the Industrial Disputes Act in that case and (b) the ambit and scope of Section 33-C, is quite different from ambit and scope of Section 25-F of the Central Act. The CGIT has rightly come to the conclusion that by the first letter the services of the workman had been terminated and the second letter offering retrenchment compensation said to have been refused by the workman, was an afterthought of the employer to remedy the illegality of not offering the same simultaneously or before order of termination of his services was served upon the workman. The first letter having been accepted by the workman, there was no occasion for him to refuse the second letter had it been sent alongwith the first letter. The employers appears to have prepared the second letter at a latter point of time to show compliance of Section 25-F as noted by the CGIT for they could have in the first letter of termination which had been served upon the workman could have offered and intimated him that he can collect his dues from the office. 32. The employers appears to have prepared the second letter at a latter point of time to show compliance of Section 25-F as noted by the CGIT for they could have in the first letter of termination which had been served upon the workman could have offered and intimated him that he can collect his dues from the office. 32. The conditions in Section 25-F are precedent to retrenchment and are mandatory. They cannot be improved by subsequent or second letter directing the workman to collect his dues after service of the letter terminating services of the workman. Any subsequent offer or tender of retrenchment compensation and notice pay etc. in that event would not be fulfilment of conditions precedent and would be violative of the provisions of Section 25-F of the Central Act rendering the termination illegal. If there is no vacancy in which vacancy was the workman engaged initially and later on appointed on probation for appointment on regular post. He was certainly not appointed due to dislocation of work due to suspension of Sri R.K. Shukla as is given out by the petitioner. In the facts and circumstances, it is for the employers to accommodate or adjust the empolyee in service by taking sanction of the competent authority. 33. As regards back wages, suffice is to say that Cantonment Board in its pleadings before the Labour Court had pleaded that workman was gainfully employed but they had not supported the pleadings by any evidence in this regard. However, it is duty of the workman himself to come out with clean hands as to whether he had been gainfully employed elsewhere during the proceedings before the CGIT. This is because the law laid down by the Apex Court says that employers cannot have any knowledge about gainful employement of the workman. 34. Considering all facts and circumstances of the case specially the fact that workman has not voluntarily informed the Court below i.e. CGIT as to whether he was gainfully employed or not, to my mind, equitable justice would be done if the impugned award of full back wages to the workman is affirmed with partial modification directing payment of only 30% back wages to the workman in the peculiar facts and circumstances as stated above. 35. 35. Accordingly, the award is upheld with partial modification directing that workman to be entitled to only 30% of back wages which shall be paid to him by the petitioner within a period of two months from today. 36. The writ petition is partly allowed. No order as to costs. ———