1. Though the impugned orders are different, nevertheless both the petitions have been taken up for consideration together as common questions of law arise.
2. Writ Petition No. 1587 of 1996 has been filed by the Executive Engineer, Yavatmal Medium Project, Yavatmal Division and another. The petitioners had engaged the services of the Respondent No. 1 for the purpose of construction of Medium Irrigation Projects namely Gokhi, Waghadi, Deogaon, Antargaon & Sakhali Nala Projects since April 1, 1980. The Respondent No. 1 was engaged on daily wages. On the project work being completed the services of the Respondent No. 1 were terminated after preparing a seniority list. A notice of termination was served on the Respondent No. 1, 90 days prior to the date of termination. The Respondent No. 1 filed a complaint on October 8, 1985. It may be mentioned that the notice is dated April 15, 1985, 3 months, therefore, expired in July 1985. The complaint was filed by six workers of which the Respondent No. 1 was one of the Complainants. In the complaint it was contended that the Respondent No. 1 had worked continuously for 5 years without any break and he was liable for regularisation as C.R.T. Mazdoor as per an Award which is known as 'Kalelkar Award'.
The said award was in respect of Building & Communication, Irrigation and Electricity Department of the State of Maharashtra. In terms of the said Award employees, who have put in 5 years continuous service on the work charged or Daily Wages Establishment, the posts held by them were to be converted into post of Regular Establishment. The Establishment would be known as Converted Temporary Establishment. The Award also contemplated that if an employee from work charged establishment had put in 10 years continuous service as on October 1, 1966, the post held by the employee was to be converted on the regular permanent establishment. The Award further sets out that the posts held by the employees on converted permanent/temporary establishment are to be treated as individual posts and if the persons so regularised and on relinquishment of the post by the person on account of retrenchment, retirement, resignation, transfer, promotion, etc., the said posts would be automatically abolished. It was made clear that regular establishment and converted regular establishment are totally separate establishments and certain procedure has been laid down therein. Provision is also made after following the procedure of making employees from the C.R.T. establishment on the regular establishment. It was, therefore, contended that they were entitled to regularisation. It was further contended that there were Sub-Divisions under the control and supervision of the Petitioners herein and there has to be a common seniority list maintained on Divisional level and if retrenchment is to be done it had to be done by following the said seniority list. It was contended that this has been given a go-by. The date of joining of the complainants was shown ranging from August 1, 1977 to July 1, 1980. The Respondent No. 1 herein had joined on August 1, 1977. It was contended that the Petitioners had taken up the work of Plantation and the Petitioners used to engage the Respondent No. 1 therein also apart from other works. It was averred that instead of regularising the Respondent No. 1 fresh employees were taken under the garb of Employment Guarantee Scheme. That there was still work available and even though the work was completed, for the purpose of maintaining and cleaning the gates of the canals the services of at least 600 employees were required. It was further pointed out that the provisions of Section 25-N are applicable to the establishment. It is also pointed out that the permission of the appropriate Government was not taken for retrenchment and the same was in violation of Section 25-N of the I.D. Act. It was further contended that the principle of 'first come last go' or 'last come first go' was violated. It was further contended in the alternative that the Respondent No. 1 was a project affected person and he was entitled to be regularised.
The petitioners herein filed their reply and contended that the project affected persons have to be given preference in terms of the Government. Circulars and Policies. That, however, according to the Petitioners does not mean that they have to be retained in service. It is further stated that Petitioners have to follow the principles of last come first go. It was denied that this principle had been given a go-by. It was clarified that the Respondent No. 1 was working in Goki Canal Sub Division No. 2, Rui and not in Goki Project Sub Division No. 1, Yeotmal. It was further denied that they were in continuous service. It was clarified that about 226 workers were working on the project on Daily Rated Establishment and their seniority lists were published according to their categories. That the work on the project was completed and consequently the work force had to be reduced as no work was available. Notices were issued to about 100 workers at different sites, on April 15, 1985, but were served actually on April 21, 1985 and they came to be retrenched with effect from July 20, 1985. The retrenchment compensation was also offered on July 14, 1985. It was, however, refused. Section 25-N of the I.D. Act, according to the petitioners, was not available as their establishment was not a factory. Workers like the Respondent No. 1 who were un-skilled workers had been retrenched as per the seniority list. It is pointed out that the Respondent No. 1 and others were offered work, under the E.G. Scheme, but they refused to work. It was specifically pleaded that the establishment is not industry and as such the provisions of Section 2(j) of the I.D. Act were not attracted.
3. The Labour Court, Amravati, by Judgment and Order dated January 20, 1993 in the complaint filed under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU & PULP Act) has held that the Petitioners had committed an act of unfair labour practice and that the Respondent No. 1 and others were entitled to be reinstated. The Labour Court rejected the contention of Respondent No. 1 that the provisions of Section 25-N were attracted to his case, for the reason that the establishment was not a factory. The Labour Court held that the Respondent No. 1 along with other complainants had rendered services for more than 240 days and as such the provisions of Section 25-F of the I.D. Act were complied with. The Labour Court then held that the services of the Respondent No. 1 were terminated from October 15, 1985 and offer of payment of retrenchment compensation was made on July 20, 1985, i.e. 5 days after the alleged retrenchment and the same was not in due compliance with the provisions of Section 25-F of the I.D. Act. The Court in order to satisfy itself that seniority had been complied with called on the petitioners to produce the Muster Rolls. The same were not produced and for that reason the Court held that the entries in the seniority list filed by the petitioners cannot be said to be beyond doubt. It, therefore, concluded that the Petitioners had not complied with the principle of 'last come first go'. The Labour Court held that Rule 81 of the Bombay I.D. Rules had not been complied with as the Seniority List was not published as required. The Court held that juniors had been retained. Presumption followed that the work was available and the contention of the petitioners that workmen's services were terminated for non-availability of work appears patently false. The Petitioners have been directed to reinstate Respondent No. 1 and other complainants with full back wages. A Revision was preferred by the Petitioners before the Industrial Court at Amravati. By order dated April 3, 1996 the Revision was rejected. The Revisional Court affirmed the findings of the Labour Court.
The contention of the Petitioners that the work on the Project had come to an end and/or that the petitioner was not an Industry within the meaning of Section 2(j) of the I.D. Act does not find any reflection either in the order of the Labour Court or in the Industrial Court.
4. Writ petition No.2618 of 1997 has been preferred by the Executive Engineer, Chief Gate Erection Unit No. 2, Nagpur, impugning the order dated June 4, 1994 passed in Complaint (ULP) No. 319/1984, 320/1984, 321/1984, 322/1984. The order in Revision of the Industrial Court dated February 26, 1996 is also impugned.
The Complainant in his complaint contended that he was working since May 22, 1983 and he was illegally removed on August 31, 1984. The same had been done in violation of Chapter VA of the I.D. Act as though the complainant had completed one year's continuous service the procedure required was not followed. It is further submitted that the petitioners after terminating the Respondent engaged other persons without regard to seniority. The Petitioners filed their written statement. They contented that Gate Erection Sub Division Weni, was enblock shifted along with its staff first to Karanja Lad and thereafter subsequently to other places. The establishment is now known as Gate Erection Sub Division No. 3, Morshi. It was denied that any artificial breaks were given to the Respondent to deny him permanency. The period during which the complainant worked had been set out. It was pleaded that the Respondent was engaged as unskilled daily wage labourer. His services were engaged to assist the regular staff of the Department in their work as and when required. It was further contended that on July 12, 1984, while issuing Order No. 142/1984 the Respondent and others were informed that they would be paid retrenchment compensation at the rate of wages for 15 days in a year and as such the equivalent amounts were offered on August 31, 1984, which was refused. It is contended, therefore, that there has been sufficient compliance of Section 25-F and 25-G of the I.D. Act. It is contended that after taking assessment of available work the number of employees engaged was more and as such a decision was taken to retrench all employees engaged after July 1, 1982 on daily rated establishment. Pursuant to that and on instructions of Superintending Engineer office order No. 142 of 1984 dated July 12, 1984 was issued terminating the services of the employee with effect from August 20, 1984. It is pointed out that services of all could not be terminated as work was in progress and subsequently services of others were terminated with effect from August 31, 1984 under office order No. 35 dated August 30, 1984. It is, therefore, pointed out that clear notice of one month had been issued. It was specifically also pleaded that Irrigation Department is not an Industry within the meaning of the Act. It was denied that any unfair labour practice had been committed by the petitioners. By common judgment the Labour Court held that any nominal breaks were not to be considered and as such the Respondent had completed 240 days of continuous service. The Court further arrived at a conclusion that the previous notice had not been given. The contention of the petitioners that compensation was offered on August 31, 1984 was negatived. The Court consequently held that there was violation of Section 25-F of the I.D. Act. The Court upheld the contention of the Petitioners that there was no violation of seniority as all those employees after July 1, 1982 were retrenched. The Labour Court also held that no evidence was brought on record that other workers were recruited subsequent to their retrenchment and as such there was violation of Section 25-H of the I.D. Act. The Court held that there is violation of Section 25-F of the I.D. Act and consequently the petitioners had committed an act of unfair labour practice and directed to reinstate the Respondent and other complainants at their former posts with continuity of service and backwages. The Revision preferred against the said order was rejected by order dated February 25, 1996. The Industrial Court concurred with the finding of the Labour Court that the mandatory provisions of Section 25-F of the I.D. Act had not been complied with. The contention of the petitioners that the petitioners were not bound to continue deadwood or surplus employees as a proposition was accepted by the Industrial Court. The Court, however, held that it was obligatory on the part of the petitioners to prove that work had indeed come to an end and the same was not available. The Industrial Court held that the services of the complainants would have been transferred to another Sub Division, Nagpur Circle instead of terminating their services. The Industrial Court reversed the finding of the Labour Court in the matter of publication of seniority list and held that there was violation of Rule 81 of the Bombay I.D. Rules and the provisions of Sections 25-G and 25-H of the I.D. Act.
5. From the facts as narrated above and the arguments advanced before me, the questions that need to be decided are as under :
(1) Whether Irrigation Projects of the Irrigation Department of the State Government is an Industry within the meaning of Section 20(j) of the I.D. Act.
(2) Even if it is held to be an Industry, if recruitment to the posts are governed by Recruitment Rules whether that would exclude the remedy under Industrial Disputes Act, 1947 and M.R.T.U. & P.U.L.P. Act and the remedy of such employees would be to move the State Administrative Tribunal if so set up and/or Writ Court under Articles 226 and 227 of the Constitution of India.
(3) Whether the termination of services of casual employees and/or daily rated employees would amount to retrenchment as they are not holding any post.
(4) Whether relief of reinstatement with back-wages can be granted in respect of employees engaged as casual employees or daily rated employees as even otherwise in course of employment they had not been continuously engaged in the course of the year, but as and when employment was available.
6. Dealing with the first contention, the Counsel on behalf of the Petitioners contended that the State of Maharashtra has enacted Maharashtra Irrigation Act, 1976 with an object to provide charging water rates on lands under the irrigable command of canals and for matters connected therewith. On a perusal of the Scheme of the Act it will be clear that the Department is not engaged in commercial or trading activities so as to bring it within the purview of Section 2(j) of the I.D. Act. The water is a State subject as per Entry No. 17 in the List II of VII Schedule of the Constitution. Before the Constitution was adopted rivers and canals were considered as belonging to the State. Water was always State subject and State can exercise full executive powers in all matters connected with water. State does not sell water to the farmers. What is charged from the farmers is not sufficient to meet the establishment and maintenance of the Department. Rates are so fixed and are dependent upon the class of crops raised and fixed in terms of Acre. Water charges have been linked depending on the paying capacity of the farmer, who is dependent on the income he gets from the crop raised. Water is supplied on the basis of holding of each farmer in terms of uniform and equitable yardstick. Water charges are remitted when the crops are damaged due to natural calamities. Construction of canals, dams, barrages and other projects cannot he entrusted to some private hands. Construction work involve acquisition of private lands which can alone be done by State. Functions of the Irrigation Department cannot at all be left to the Private enterprises. It is further pointed out that considering the functions of welfare State work of the Irrigation Department partakes welfare activities and, therefore, the regal functions and consequently, the Irrigation Department is not an Industry. Reliance has been placed on the judgment of the Apex Court in the case of Executive Engineer. State of Karnataka v. K. Somasetty & Ors., reported in : (1997)IILLJ698SC . It is contended that the Apex Court has held that the Irrigation Department of State is not an Industry, as the function of public welfare of the State is a sovereign function. It is the constitutional mandate under the Directive Principles, that the Government should bring about Welfare State by all executive and legislative actions. In these circumstances the State is not an Industry under the Industrial Disputes Act, 1947. Reliance is also placed on the judgment of the Apex Court in the case of Union of India v. Jai Narain Singh, reported in : (1996)IILLJ750SC , which has held that Central Ground Water Board is not an Industry. Reliance is also placed on the judgment in the case of Sub-Divisional Inspector of Post, Vaikam & Ors. etc. v. Theyyam Joseph etc., reported in : (1996)IILLJ230SC , which has held that the Post and Telecommunication Department is not an Industry. It is further pointed out that the judgment of the Apex Court in the case of Des Raj v. State of Punjab and Ors. reported in : (1988)IILLJ149SC is no longer good law in view of the subsequent pronouncement of the Apex Court in the case of Executive Engineer, State of Karnataka (supra). It is pointed out that the judgment in the case of Executive Engineer, State of Karnataka being subsequent judgment would be of a binding nature and in terms of Article 141 of the Constitution of India it is the law which is binding on all Courts. It is further pointed out that the judgment in the case of Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. reported in : (1978)ILLJ349SC has been considered in the case of Physical Research Laboratory v. K. G. Sharma, reported in 1977 II LLJ 625 and distinguished.
7. On behalf of the Respondent, it is contended that the Judgment in Bangalore Water Supply and Sewerage Board's case (supra) still holds the view as reaffirmed by the Apex Court in the case of Chief Conservator of Forests & Anr. v. Jagannath Maruti Kondhare & Ors., reported in : (1996)ILLJ1223SC . It is further pointed out that the judgment of the Executive Engineer, State of Karnataka is per incuriam. The Apex Court has not considered its own earlier judgment in the case of Des Raj v. State of Punjab and Ors. (supra) wherein it had held that the Irrigation Department of the State of Punjab as an Industry. It is pointed out that sovereign or regal functions only are excluded and the work of Irrigation Department of the State cannot be said to be a sovereign or regal function as it meets with all the tests as laid down in Bangalore Water Supply & Sewerage Board's case (supra). Reliance is placed on the judgment of the Apex Court in the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors., reported in : (1990)IILLJ70SC , to point out that the subsequent decision of the Supreme Court will be per incuriam if it is passed without considering its own earlier judgment. Reference is also made to case of Union of India and Anr. v. Raghubir Singh (dead) by LRS. etc. reported in : 178ITR548(SC) , to hold that the pronouncement of law by Division Bench of the Supreme Court is binding on the Division Bench of the same or a smaller number of Judges. It is pointed out that, that principle of binding nature as of the earlier judgment of a co-ordinating Bench has been followed in this country by several generations of Judges. In these circumstances, it is pointed out that, the Judgment in Executive Engineer, State of Karnataka (supra) is not good law. Reference is made to the judgment of the Apex Court in the case of State of U. P. and another v. Synthetics and Chemicals Ltd. & Anr., reported in : 1993(41)ECC326 , to point out that under Article 141 only the 'law declared' is binding. That the decision not express, nor founded on reasons nor proceeding on consideration of the issue, cannot be deemed as law declared. It is further pointed out that the judgment in the case of Millangos v. George Frank (Textiles) Ltd., reported in 1975 (2) WLR 555 would not make any difference as no principle therein has been set out which has shown any principle which has not been taken into consideration by the Apex Court. In fact it is pointed out that it is the same principle which the Apex Court has also laid down in the matter of finding out what is law laid down.
8. Can it, therefore, be said that the Irrigation Department of the State Government is not an Industry in the light of the material which has been placed. Further, assuming that the work of the Department partakes of a welfare activity can it be said to be a regal or sovereign function of a State. In the light of the pronouncement of the Apex Court itself is the issue res integra or requires consideration by this Court. What are regal and sovereign functions have been considered in large number of judgments. In the case of Bangalore Water Supply and Sewerage Board (supra) reference was made to the dissenting judgment of Isaacs, J. in Federated State School Teachers' Association of Australia v. State of Victoria wherein the learned Judge has stated as under :
'Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Non-regal functions may be assumed by means of the legislative power. But when they are assumed the state acts simply as a huge corporation, with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to that of a private company similarly authorised.'
Under the scheme of our Constitution powers have been devolved on the Union and the State. The State is empowered to legislate in respect of legislative entries in List II of the VII Schedule. List III is the concurrent list wherein both the State and the Union can legislate. The Constitution itself has provided that when both the Union and the State in respect of the same entry on the same subject matter as to which law would prevail. That issue need not be gone into as it is not required to be discussed herein. In the absence of any Legislation the State in the exercise of its executive power under Article 162 can issue directions and instructions. Article 162 of the Constitution provides that subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. There is a proviso which provides that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive powers of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by the Parliament upon the Union or authorities thereof. A State carries on its administration based on laws enacted or pursuant to the executive power conferred on it under Article 162 of the Constitution. Merely because it can legislate or merely because it can issue instructions under its executive powers, would not mean that in a case where the State sets up Industry or passed any enactment, controlling and/or regulating the manner in which an industry has to run would by itself partake of a sovereign or regal function. In the case of N. Nagendra Rao & Co. v. State of A. P., reported in : AIR1994SC2663 the question was examined and the Apex Court has observed that the old and archaic concept of a sovereignty does not survive as sovereignty now vests in the people. It is because of this that in the case of Federated State School Teachers' Association of Australia (supra) a distinction between sovereign and non-sovereign functions was categorised as regal and non-regal. The Court observed that in some cases the expression used is State function, whereas in some, governmental function. The Apex Court had to consider the said issue in the case of Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare and Ors., (supra). In that case the Apex Court was confronted with the issue as to whether all welfare activities would be part of regal functions and as such would be excluded from the definition of Industry. The Apex Court considered the various judgments including the judgment in the case of N. Nagendra Rao's case had observed that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. It was also observed that in the welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order, but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. On account of that the demarcating line between sovereign and non-sovereign powers has largely disappeared. Considering the argument as to whether all welfare activities extend to the concept of sovereign function, the Court observed as under :
'The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function welfare activities of the State would come within the purview of the definition of industry; and not only this, even within the encompassing some units which could be considered as industry if substantially severable.'
The Apex Court, therefore, in the judgment has not departed from the law laid down in Bangalore Water Supply Board's case (supra). In fact the Apex Court noted a judgment of the Division Bench of the Gujarat High Court in the case of J. J. Shrimali v. District Development Officer, Zillia Panchayat, reported in 1989 LIC 689, to hold that apart from what have been set up as regal functions in Bangalore Water Supply Board's case (supra) the relief work done by the State in times of famine or such other situation when it undertakes construction and maintenance of Roads, Dams, etc., with a view to serve the community at large would also be excluded from the definition of Industry. In J. J. Shrimali v. District Development Officer, Zillia Panchayat (supra) the Division Bench of the Gujarat High Court noted the judgment in P. W. D. Employees Union v. State of Gujarat, reported in : (1988)ILLJ524Guj , wherein it was contended that the construction of dams and allied activities being of welfare activity or an economic adventure undertaken by the Government, cannot stricto sensu be described as an activity undertaken in the discharge of governmental or sovereign functions. Reference to that was also made to Entry 17 of List II of VIIth Schedule. Some other contentions were also raised. The Division Bench of the Gujarat High Court after referring to the decision of the Supreme Court in Bangalore Water Supply Board's case arrived at a conclusion that the activity in question was an Industry and it could not be said that those activities are in discharge of sovereign function stricto sensu.
9. Whether the Irrigation Department of a State Government is an Industry came up for consideration before the Apex Court in the case of Des Raj (supra). The facts noted in that case were that the Irrigation Department of the erstwhile Punjab State was discharging the State's obligation related to under the Northern India Canal and Drainage Act, 1873. The Administration Report of the year 1981-1982 of the Public Works Department, Irrigation Branch, the Apex Court reproduced a part of the report which showed that the work of the Department was to provide water supply for the sustenance and development of agriculture in the State covered by canal command. That required harnessing of the surface and ground water resources of to the State and their equitable distribution to the beneficiaries, within Canal Command area. This task involved construction of multipurpose, major, medium and minor irrigation projects, maintenance of net-work of channels, regulation of canal supplies, enforcement of water laws, etc., and levying of crop-wise water supply rates on the irrigators for the recovery through the State Revenue Department, and other activities. Apart from that it was found that the work of Irrigation Department was to provide protection to the valuable irrigated lands and public property from flooding, river action and water logging and various other works. A Full Bench judgment of the Punjab and Haryana High Court in the case of Om Prakash v. M/s. Executive Engineer, SYL, Kurukshetra, reported in Cur. L.J. 349 had held that it was not an Industry, after considering some other judgments. On the consideration of the said Judgment and the Judgments of the Rajasthan High Court in the case of State of Rajasthan v. Industrial Tribunal, Rajasthan, reported in 1970 Raj. L.W. 137 and in the case of Madhya Pradesh Irrigation Karmachari Sangh v. State of Madhya Pradesh, reported in 1972 I LLJ 374, have given a finding that the Chambal Hydel Irrigation Project to be an Industry.
In the case of Chief Engineer, Irrigation, Orissa v. Harihar Patra, reported in 1977 LIC 1033 the Orissa High Court held that Saland Irrigation Project was an Industry. The Apex Court thereafter referring to the Administrative Report held considering the tests laid down in various judgments of the Apex Court that the Apex Court itself could not take out the Irrigation Department outside the purview of the definition of Industry. The concept of industry was decided on the Dominant Nature test evolved by Krishna Iyer, J. The Apex Court in para 14 thereafter noted that in the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change, it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt. This was because the Court noted that though there has been amendment to the definition of industry the same had not been brought into force. The position continues till date. Thus the material placed by the petitioners themselves before this Court was material of a similar matter as was similarly placed before the Apex Court in the case of Des Raj (supra). Therefore, it would be difficult to hold that the Irrigation Department of the State of Maharashtra is not an industry.
However, what has been contended on behalf of the Petitioners is that it is the subsequent judgment in the case of Executive Engineer, State of Karnataka (supra) which makes the difference. The Apex Court in the case of Executive Engineer, State of Karnataka proceeded on the footing that after the judgment of the Apex Court in the case of Union of India v. Jai Narain Singh (Supra) which held that the Central Ground Water Board was not an Industry and the judgment of the Apex Court in the case of State of Himachal Pradesh v. Suresh Kumar Verma & Anr : 1SCR972 . Wherein the issue was whether the appointment on daily wage is appointment to a post and for that reason had interfered with the judgment of the High Court of Himachal Pradesh. In Sub-Divisional Inspector of Post, Vaikam & Ors. (supra) the Apex Court had held that the Post/Telecommunication Department is not an Industry. In so holding the Apex Court had observed as under :
'The welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. Directive principles of State policy enjoin on the State diverse duties under Part IV of the Constitution and the performance of the duties are constitutional functions. One of the duties of the State is to provide telecommunication service to the general public and an amenity, and so is one essential part of the sovereign functions of the State as a welfare State. It is not, therefore, an industry.'
The Judgment, therefore, proceeded on the footing that the welfare measures partake the character of sovereign functions. Thereafter in the case of Physical Research Laboratory v. K. G. Sharma, (supra), the Apex Court held that P.R.L. is not an industry. While so holding the Apex Court considered the concept of an industry as answered in Bangalore Water Supply Board (supra) and observed that an activity undertaken by the Government cannot be regarded as an industry if it is done in discharge of its sovereign functions. The Division Bench also noted that in Chief Conservator of Forests and another the Apex Court has rejected the contention that the concept of sovereign functions would include all welfare activities, for the reason if such a view is taken it would erode the ratio in Bangalore Water Supply case. The Apex Court thereafter noted its judgment in Sub-Divisional Inspector of Post, Vaikam and Others v. Theyyam Joseph and Ors. (supra) wherein it had observed that the welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. The Court observed that while taking the view the Court was also influenced by the fact that the method of recruitment, the conditions of service, the scale of pay and the conduct rules regulating the service conditions of the Extra-Departmental Agents employed by the said establishment are governed by the statutory rules and regulations and that those employees are civil servants. Thereafter the Court noted that the material placed showed that the research activity undertaken by P.R.L. is to obtain knowledge for the benefit of the Department of Space. Its object is not to render services to others nor in fact it does so except in an indirect manner. Thereafter it went on to observe as under :
'It is more an institution discharging Governmental functions and a domestic enterprise than a commercial enterprise. We are, therefore, of the opinion that PRL is not an industry even though it is carrying on the activity of research in a systematic manner with the help of its employees as it lacks that element which would make it an organisation carrying on an activity which can be said to be analogous to the carrying on of a trade or business because it is not producing and distributing services which are intended or meant for satisfying human wants and needs, as ordinarily understood.'
It is on account of this latter judgment of the Apex Court and the judgment in Executive Engineer, State of Karnataka (supra) that the petitioners contend that the law laid down in Des Raj's case (supra) is no longer good law and it is further contended that the latter judgment of the Apex Court is to be followed as it is a law laid down under Article 141 of the Constitution of India.
10. I have already noted earlier the judgments of the Apex Court on what is considered to be law declared in terms of Article 141 of the Constitution. In the case of State of Uttar Pradesh v. Synthetics and Chemicals Ltd. and another (supra), the Apex Court therein noted that the judgment passed per incuriam is avoided and ignored if it is rendered 'in ignoratium of a statute or other binding authority' and that has been accepted, approved and adopted by the Apex Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey the Apex Court pointed out the procedure to be followed when conflicting decisions are placed before a Bench which extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an Appellate Court is not binding. The Appellate Court thereafter posed a question as to whether that principle extends and applies to a conclusion of law which was neither raised nor preceded by any consideration. It raised a question whether in other words can such conclusions be considered as declaration of law The Apex Court thereafter noted that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as is contemplated under Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. Then quoting from the judgment in B. Shama Rao v. Union Territory of Pondicherry, reported in : 2SCR650 the Apex Court observed as under :
'It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.'
The Constitution Bench of the Apex Court in Union of India v. Raghubir Singh (dead) by LRs. (supra) had observed as under :
'A pronouncement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.'
The Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court & Ors. (supra) the Apex Court has observed that a decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of the decision of the Supreme Court. As regards judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to be 'declare the law' on those subjects if the relevant provisions were not really present in its mind. The problem of judgment per incuriam when actually arises, should present no difficulty as the Supreme Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together. Article 141 embodies, as a rule of law, the doctrine of precedents and was enacted to make the law declared by the Supreme Court binding on all Courts in the Country, excluding, as now been interpreted, the Supreme Court by itself.
11. Thus on the consideration of these judgments, it is clear that the earlier Judgment in Des Raj's case (supra) is clearly in conflict with the subsequent judgment of the Apex Court in the case of Executive Engineer, State of Karnataka(supra). It is also clear that the judgment in Executive Engineer, State of Karnataka (supra) was pronounced without considering the judgment of the Apex Court itself in Des Raj's case. It is further apparent that the Apex Court has proceeded on the footing that the welfare functions of the State are sovereign functions. Here also it may be noted that the Apex Court itself has noted in the case of Physical Research Laboratory v. K. G. Sharma (supra) that the judgment in the case of Sub Divisional Inspector of Post, Vaikam and Ors. The Apex Court has proceeded on the footing that the welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. However, the Apex Court thereafter set out that the judgment in Sub Divisional Inspector of Post, Vaikam, the Court was influenced by the fact of there being Rules pertaining to recruitment and conditions of service. The issue whether welfare activities partake sovereign or regal functions and the judgment of the Apex Court in Bangalore Water Supply's case (supra) was in issue in the case of Chief Conservator of Forests and Anr. (Supra). In para 13, a 3 Judge Bench of the Apex Court rejected the argument that the concept of sovereign function is to include all welfare activities. The Apex Court noted that such a view would erode the ratio in Bangalore Water Supply's case. It is, therefore, clear that the judgment in Bangalore Water Supply's case as understood by the Apex Court itself in Chief Conservator of Forests (supra) would mean that welfare activities would include sovereign functions, has been rejected. The judgment in Sub Divisional Inspector of Post, Vaikam and Ors. (supra) holding that welfare measures partake the character of sovereign functions was laid down without considering the law in Bangalore Water Supply's case and Chief Conservator of Forests and Ors., wherein the said argument had been specifically rejected. The tests laid down as to what is an industry as laid down in Bangalore Water Supply's case continued to hold the field.
12. Therefore, while interpreting the judgment in Des Raj's case and Executive Engineer, State of Karnataka thus one necessarily will have to proceed on the basis whether the latter judgment in the case of Executive Engineer, State of Karnataka is per incuriam. A Full Bench of this Court in the case of Kamleshkumar Ishwardas Patel v. Union of India & Ors., reported in 1994 M.L.J 1669 was faced with such a situation. The Full Bench of this Court noted that what is binding under Article 141 of the Constitution of India is law declared by the Supreme Court. In the instant case and Des Raj's case the Irrigation Department of Punjab has been held to be an industry based on the definition of Industry as it now stands, whereas applying the same definition the Apex Court in the case of Executive Engineer, State of Karnataka held it not to be an industry. In the case where the High Court is confronted with two conflicting judgments, the principles have been carved out as to which judgment to be followed when contrary decisions of the Supreme Court emanate from Benches of equal strength. After considering the various judgments and reproducing the various paragraphs from the judgment of the Calcutta High Court in Bholanath v. Madanmohan, reported in : (1988)1CALLT1(HC) , the Full Bench of this Court concurred with the law as enunciated in Bholanath's case. The proposition that was accepted in Bholanath's case was if contrary decisions of the Supreme Court emanate from Benches of equal strength, the course to be adopted by the High Court is, firstly to try to reconcile and to explain those contrary decisions by assuming, as far as possible, that they applied to different sets of circumstances. However, when such contrary decisions of co-ordinate Benches cannot be reconciled then the High Court is not necessarily to follow the one which is later in point of time, but may follow the one which in its view is better in point of law. The Full Bench of this Court noted that there were two views on interpretation (1) that the later pronouncement had to be followed and (2) that one which is better in point of law. The Full Bench preferred to accept the latter view after considering the various other judgments and further that this approach was in consonance with what ancient Jurist Narada declared-Dharmashatra Virodhe Tu Yuktiykta Vidhe Smrita-that is, when the Dbarmashastra or Law Codes of equal authority conflict with one another, the one appearing to be reasonable, or more reasonable is to be preferred and followed. The views of modern Jurist, Seervai, who has also advocated a similar principle was also relied upon. Therefore, the task before me is clear as laid down by the Full Bench that what has to be followed is the view which is better in point of law.
13. On considering all the concepts of industry and after reviewing the various tests which need not be repeated, as the tests were laid down in Bangalore Water Supply case (supra). The concept of sovereign and regal function was explained in Chief Conservator of Forests (supra). The Apex Court in para 13 specifically rejected an argument that welfare activities partake sovereign functions on the ground that if such a view was taken it would be eroding the view taken by it in Bangalore Water Supply's case. While observing that welfare activities partake sovereign functions the Apex Court did not notice this in Sub-Divisional Inspector of Post, Vaikam and Other (supra). Therefore, considering the various precedents of the Apex Court itself it is clear that the law declared by the Apex Court is that welfare activities do not necessarily partake sovereign functions. In Executive Engineer, State of Karnataka the reliance was placed on the judgment in the case of Union of India v. Jai Narain Singh (supra). In Union of India v. Jai Narain Singh, the Apex Court has merely noted that the Central Ground Water Board is not an Industry. It is not possible to discern from that judgment as to what were the reasons for the Apex Court to so hold. The other judgment relied on is that of State of Himachal Pradesh v. Suresh Kumar Varma & Anr. (supra). On a perusal of the fact and the law laid down it does not seem that the issue as to whether a particular department was an industry or not was in issue. What was in issue was whether the work charged employees who perform duty of transitory nature were appointed to posts and their appointments were on daily wage basis in an appointment to a post. The Apex Court therein noted that such appointments were not appointments to the posts and, therefore, no directions could have been given to re-engage them in any work or appoint them against existing vacancies. Thus the two judgments relied upon by the Apex Court to arrive at the conclusion arrived at in Executive Engineer, State of Karnataka (supra), nowhere have laid down the tests to hold as to why Irrigation Department is to be excluded from the definition of industry. As pointed out earlier, even the case of Sub Divisional Inspector of Post, Vaikam and Others was considered by the Apex Court in Physical Research Laboratory and explained the same in paragraph 10 of the judgment. After that, it proceeded to apply the tests as laid down in Bangalore Water Supply. In the case of Des Raj v. State of Punjab (supra) the Apex Court had considered the tests laid down in various earlier judgments of the Apex Court itself, culminating in the judgment in Bangalore Water Supply (supra) and thereafter had arrived at a conclusion that the Irrigation Department falls within the definition of Industry within the meaning of Section 2(j) of the I.D. Act. I am, therefore, of the considered opinion that the view laid down in Des Raj's case is the better in point of law and hence it is the view in Des Raj's case which will have to be followed. Once it is so held and as I have already set out earlier the work of the Irrigation Department of the State of Punjab and the material placed before this Court including the written submissions filed on behalf of the petitioners show that the projects undertaken by the irrigation department of the State of Maharashtra is discharging the same or similar functions as the Irrigation Department of the State of Punjab. It, therefore, follows that the projects of the Irrigation Department or work connected with that of the State of Maharashtra, on the same tests as applied by the Apex Court in Des Raj's case would fall within the definition of an industry for the purpose of Section 2(j) of the I.D. Act.
14. Having held that the Irrigation Department is an Industry, consequently the second question will have to be answered is as to whether on account of statutory Rules so framed by necessary implications the workmen are excluded from moving the Industrial Tribunal under the I.D. Act and consequently the Court under the M.R.T.U. & P.U.L.P. Act. This question need not detain us for long as the line of reasoning has been clearly spelt out by the Apex Court in the case of Bombay Telephone Canteen Employees' Association, Prabhadevi Telephone Exchange v. Union of India & Anr. reported in : (1997)IILLJ647SC . The Division Bench of the Apex Court in that case was considering the question whether the workmen working in the Canteen which was run by the Department of Telecommunication would be a workman within the definition of Section 2(s) of the I.D. Act and whether the Canteen would be an industry under Section 2(j) of the I.D. Act. The Apex Court was answering the question whether the ratio in Sub Divisional Inspector of Posts, Vaikam & Ors. (supra) is contrary to the judgment of the Court in Bangalore Water Supply. The Apex Court noted after referring to the judgment in Bangalore Water Supply and Ors., that in 1960's and 1970's, there was parallel stream of thinking being developed by the Apex Court to engulf the service conditions of the employees of a Corporation either registered under the Companies Act or under the Societies Act or under a statute. The Court then noted the evolution of law as to whether these organisations would be an authority within the meaning of Article 12 of the Constitution and whether the employees working with them would be entitled to protection of judicial review under Article 14. The Court then noted that the two streams of thinking which were simultaneously in the process of development to give protection to the employees of the Corporation were being developed. The actions of the Corporations are controlled as instrumentality of the State and the Rules are made amenable to judicial review. Where there exists no statutory or analogous rules/instructions, the provisions of the Act get attracted. The employees are entitled to avail constitutional remedy under Article 226 or 32 or 136, as the case may be. The remedy of judicial review to every citizen or every person has expressly been provided in the Constitution. In the absence of statutory/administrative instruction in operation, the remedy of reference under Section 10 of the Act is available. Therefore, two streams, namely, remedy under the Act by way of reference and remedy of judicial redressal by way of proceedings under Article 226 or a petition filed before the Administrative Tribunal to the aggrieved persons, are co-existing. The Apex Court then noted that if the doctrine laid down in Bangalore Water Supply Board case is strictly applied, the consequence is catastrophic and would give a carte blanch power with laissez-faire legitimacy which was buried fathom deep under the lethal blow of Article 14 of the Constitution which assures to every person just, fair and reasonable procedure before terminating the services of an employee and the security of tenure of the employee would be in great jeopardy. It is in this context that the Apex Court thereafter held that if the service conditions stand attracted, all the conditions laid therein would become applicable to the employees with a fixity of tenure and guarantee of service, subject to disciplinary action. His removal should be in accordance with the just and fair procedure envisaged under the Rules or application of the principles of natural justice, as the case may be, in which event the security of the tenure of the employee is assured and the whim and fancy and vagory of the employer, would be deterred and if unfair and unjust action is found established it would be declared as an arbitrary, unjust or unfair procedure. On the other hand, if the finding is that there exist no statutory rules or certified Standing Orders exist or they are not either made or are inapplicable, the remedy of reference under Section 10 of the Act will always be available and availed of as it is an industry and indicia laid down in Bangalore Water Supply Board case gets attracted. Therefore, it is clear that the Apex Court itself has explained in clear terms its departure from the views expressed in Bangalore Water Supply Board case. The test now is that if an employee of the State or other authority within the meaning of Article 12 of the Constitution of India is covered by statutory conditions of service, his recourse would be constitutional remedy available to him or before a service Tribunal that may be set up. On the other hand if there exists no statutory Rules or certified standing orders or they are either not made or non applicable, the remedy of reference under Section 10 would be available. Thereafter explaining the judgment in Sub Divisional Inspector of Post, Vaikam v. T. Joseph's case (supra) after referring to the judgment in Chief Conservator of Forests and others (supra) in so far as employees of Post and Telecommunications the Apex Court noted that even though the activities of the Corporation partake the character of a private enterprise, since the workmen engage themselves in rendering services, it is not an industry. In that case the Respondents have admitted that the workmen were holding civil posts and by necessary implications were excluded as workmen under Section 2(s) of the Act. The Apex Court then observed that if there exists no statutory Rules binding Standing Orders, necessarily, the reference under Section 10(1) would be valid and the Tribunal has jurisdiction to go into or the employee may avail of judicial review or common law review. In so far as the canteen employees are concerned, there was admission that the employees were holding civil posts and paid monthly wages and in view of that the Apex Court noted that the jurisdiction of the Industrial Court would stand excluded. In the light of that it is, therefore, not necessary to go into the other judgments the said point as the have been reviewed in the case of Bombay T.C.E.A.P.T. Exchange (supra).
15. In the instant case arguments were sought to be advanced that there are statutory Rules of service governing the employees. However, no rules have been placed, in the matter of regulating recruitment or conditions of service. Some Rules pertaining to Appeal and conduct Rules have been placed but no Rule pertaining to recruitment or promotion has been produced except Kalelkar Award. In that view of the matter, it cannot be said that the complaints filed by the complainants before the Courts constituted under the MRTU & PULP Act are without jurisdiction. Clearly on the facts and record in the absence of Statutory Rules governing recruitment the complaint under the MRTU & PULP Act was maintainable. Many of the complainants themselves have placed reliance on the Kalelkar Award and contended that they are entitled to be taken on the C.R.T. establishment. A look at the contents of the Kalelkar Award, however, shows that it does not regulate recruitment, but regularisation of employees on what is known as Casual Temporary Establishment and their subsequent regularisation on the regular establishment.
16. That takes us to the third question as to whether the complainants before the Industrial Court satisfy that they were workmen within the meaning of Section 2(s) of the I.D. Act and the provisions of Chapter V-A of the Industrial Disputes Act would be attracted in their cases. Though there is no prayer in the prayer clause, there are averments that the complainants are entitled for regularisation as C.R.T. Mazdoors. This issue will be discussed subsequently. It is an admitted position that the workmen are engaged on daily wages in respect of construction of Irrigation Projects. These Irrigation Projects do not provide work of permanent nature to the category of employees who have approached the Court. After the completion of the Project it will be no doubt true that workmen will be required for maintaining and running the Project. However, the present complainants are engaged in work connected with the construction of the Project. Their services came to be terminated as work of the Project had nearly come to an end resulting in they being surplus employees. It must be borne in mind that these works are carried on by the State Government itself through its Irrigation Department. Now the question, therefore, is based on the law declared by the Apex Court as to whether these employees who are engaged in the Government services, but on daily wages in connection with the work carried on by the Government which falls within the definition of industry, can be said to be workmen for the purpose of Industrial Disputes Act, 1947. In so far as Government service is concerned, Article 309 of the Constitution provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. Under the Industrial Employment (Standing Orders) Act, 1946, Rules have been framed which are known as the Bombay Industrial Employment (Standing Orders) Rules, 1959 which extend to the whole of the State of Maharashtra. In terms of these Standing Rules Model Standing Orders are set out in the Schedule. No separate Standing Orders have been certified in respect of the Irrigation Projects neither have any Rules been framed or for that matter no other Rules framed for Recruitment and Conditions of Service of these employee except the Kalelkar Award. In terms of the Model Standing Orders the workmen are defined as permanent workmen, temporary workmen, badlis or substitutes and causal workmen. A permanent workman is a person who is employed on a permanent basis. Badli or substitute means a workman who is appointed to the posts of permanent workman or probationer, who is temporarily absent and whose name is entered in the badli register. Temporary workman means a workman who has been appointed for a limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional workman in connection with temporary increase in work of a permanent nature. The casual workman means a workman who is employed for any work which is not incidental to, or connected with the main work or manufacturing process carried on in the establishment and which is essentially of a casual nature. Standing Order 4-C of the Model Standing Orders sets out that a badli or temporary workman who has put in 190 days, uninterrupted service in the aggregate in any establishment of seasonal nature, or 240 days uninterrupted service in the aggregate in any other establishment, during a period of preceding twelve calendar months shall be made permanent in that establishment by an order in writing signed by the Manager, or any person authorised in that behalf by the Manager irrespective of whether or not his name is on the muster roll of the establishment throughout the period of the said twelve calendar months. In other words it provides for regularisation of badli or temporary workman to be made permanent. Model Standing Order 4-D provides that a waiting list of all temporary workmen whose services have been terminated on account of the completion of the work for which they were employed must be maintained with particulars as set out therein. It is further provided that when vacancy arises first preference should be given to such employees. These are the Model Standing Orders for workmen employed on manual or technical work. There are also Model Standing Orders for workmen employed on Clerical and Supervisory work and these have been included to mean a permanent workman, temporary workman, etc. The definitions of permanent and temporary workmen are the same as contained in the Standing Orders for workmen doing work of manual or technical nature. Similarly, Model Standing Order 4-B provides for making a temporary workman permanent and Model Standing Order 4-C provides for maintaining Register of those temporary workmen whose services have been terminated on account of completion of work or the expiry of the period for which they were employed. Retrenchment under Section 2(00) of the I.D. Act means termination by the employer of the services of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. It excludes termination as set out in the said definition, which includes a termination of the services on non renewal of contract or on the expiry of such contract being terminated under stipulation in that behalf contained therein. Chapter V-A of the Industrial Disputes Act in terms of Section 25-J shall have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946. By the proviso if under any Standing Orders or any Award a workman is entitled to the benefits which are more favourable to him than those contained in the Act then the workman shall be entitled to the more favourable benefits. Section 25-C makes it clear that in respect of badli workman or a casual workman no lay off compensation is payable. Section 25-F makes no such exception. Workman under Section 2(s) means a person including an apprentice doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward.
From a reading of the definitions and the provisions of the Industrial Disputes Act, 1947 and the Industrial Employment (Standing Orders) Act, 1946 it may be noted that if a person is doing any manual, unskilled, skilled, technical, operational, clerical or supervisory work then for that purpose he would be workman if he is employed in an industry. Section 25-F provisions of retrenchment apply to all such workmen. In the light of this, the matter may now be examined.
In Jaswant Singh v. Union of India reported in : (1979)IILLJ371SC various questions came to be construed in respect of employees employed with work connected with the Beas Project which was under the Beas Control Board, including whether the work charged employees were entitled to retrenchment compensation and the status of these employees. The petitioners therein were appointed for the purpose of construction and completion of the Beas Project. The work on the Project was nearing completion resulting in imminent threat of retrenchment from service. The Central Government had taken a Policy decision to retain in service for the purposes of the Bhakra Nangal Scheme, only such employees who belonged to the service of the Punjab, Haryana and Rajasthan Governments. Various petitions came to be filed by groups of employees. One such petition was by the employees on the work charged establishment. The Apex Court therein has explained as to what is work-charged establishment. The work-charged establishment has been held to be an establishment of which the expenses, including the wages and allowances of the staff are chargeable to works. Work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specific work. They are denied the benefits under the Payment of Gratuity Act and any retrenchment benefits or any benefits under the Employees' State Insurance Schemes. The Apex Court held that though the work charged employees are denied the benefits, the industrial workers are entitled to the benefits of the provisions contained in the I.D. Act. The Apex Court held that the work charged employees, therefore, are in a better position than temporary servants who are liable to be thrown out of employment without any kind of compensatory benefits. The Apex Court further noted that the work charged employees possess a unique right as industrial employees since, by reason of Section 25-J of the I.D. Act the provisions of Chapter V-A, have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946. It was noted that though the work charged employees are not entitled to any relief under the Payment of Gratuity Act, nor do they receive any retrenchment benefits or any benefits under the Employees' State Insurance Scheme, nevertheless by virtue of the I.D. Act the provisions of Chapter V-A of is the I.D. Act would be applicable in their cases.
In Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors. reported in : (1992)IILLJ452SC , the question arose as to whether the workmen employed under the Jawahar Rozgar Yojna could he regularised. The Supreme court therein observed that the object of the scheme was not to provide the right to work as such even to the rural poor much less to the unemployed in general. The Supreme Court thereafter observed that no fault can be found with the limited object of the scheme given the limited resources at the disposal of the State and those employed under the Scheme, therefore, could not ask for more than what the scheme intended to given them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation, is to frustrate the scheme itself. No Court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. Thereafter, in the case of State of Haryana and Others v. Piara Singh & Ors. reported in : (1993)IILLJ937SC the issue of regularisation came up once again. In the States of Haryana and Punjab large number of appointments were made to Class III and IV services on ad hoc basis without reference to Public Service Com : (1993)IILLJ937SC mission or the Subordinate Services Selection Board and without adhering to Employment Exchange requirements. As a consequence of this a large number of employees were continuing in service without being regularised. The Government issued orders to regularise them on certain terms and conditions. This came to be challenged before the Court and the Punjab and Haryana High Court issued certain directions. On the facts of those cases, one of the directions was to regularise all those falling within the definition of workmen under Section 2(s) of the I.D. Act on completion of 4-5 years service and all those not covered by the definition on completion of one year service, the Government orders had laid down the eligibility conditions for regularisation and the date by which the period of service should be completed including the requirement of his name being sponsored by the Employment Exchange and possessing prescribed qualification for the post. Certain directions thereafter were given for regularisation of work-charged and casual employees.
Thereafter in Madhyamik Siksha Parishad U. P. v. Anil Kumar Mishra and others etc., reported in : (1994)IILLJ977SC the issue arose as to whether workers working on temporary assignment on unsanctioned post had a right to regularisation, merely on completing 240 days in terms of Section 25-B of the I.D. Act. The Apex Court observed as under :
'There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad-hoc one which anticipatedly spent itself out. It is Difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days 'work does not' under the law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy in an extended or enlarged form, here.'
Section 25-B also forms part of Chapter V-A of the I.D. Act and defines what is continuous service for the purpose of completion of 240 days for a workman to be entitled to the benefits under Section 25-F of the I.D. Act. What the Apex Court had noted is that merely because 240 days have been completed in employment would not entitle an employee to be regularised and that it would be difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947 importing the incidents of completion of 240 days' work. Thereafter in the case of State of Himachal Pradesh v. Suresh Kumar Verma & Anr, (supra) the Apex Court has noted that appointment on daily wages basis is not an appointment to a post according to the Rules, and that once the State has framed Rules for recruitment to various class of posts the State is bound to follow them. In that case the project for which the employees have been engaged had come to an end and the employees have been terminated for want for work. The High Court directed that the Government should re-engage them. The Apex Court observed that the Court cannot give any direction to re-engage the employees in any other work or appoint them against existing vacancies. Otherwise the judicial process would become other mode of recruitment de hors the rules. The Apex Court thereafter noted that the appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. The Apex Court further noted that even for Class IV employees recruitment according to rules is a pre-condition and that the only work charged employees who perform the duties of transitory nature are appointed not to a post but are required to perform the work of transitory and urgent nature so long as the work exists. What is relevant to note is that as held by the Apex Court that such employees engaged on daily wages and/or on work charged establishment are not holding a post but doing the work of a transitory nature. Thereafter in the case of Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. reported in 1997 2 CLR 15, the Apex Court was called upon to answer as to whether dispensing with the persons engaged on daily wage in Government Department therefore amounts to retrenchment. The Apex Court noted that when the appointments are regulated by statutory Rules, the concept of 'industry' to that extent stands excluded. The workmen therein were not appointed to the post in accordance with the Rules, but were engaged on the basis of need of the work. They were temporary employees working on daily wages and under these circumstances their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of 'retrenchment' therefore, cannot be stretched to such an extent as to cover these employees. From this line of reasoning from the Apex Court in so far as the employees of the Government are concerned, it is clear that the Apex Court has noted that there must be a post available and that the workers engaged on daily wages and/or temporary employees or for that matter even work charged employees in the absence of post their termination or disengagement from service cannot be construed to be retrenchment. Therefore, even if the employees fall within the definition of workmen yet their termination cannot be said to be amounting to retrenchment to which the provisions of Section 25-F of the I.D. Act are attracted.
17. In the instant case, the Model Standing Orders will apply in the absence of certified Standing Orders. In terms of Clauses 4-B and 4-C as the case may be of the respective draft Model Standing Orders the workmen have to be made permanent on completion of 240 days. To make an employee regular would contemplate that there is a post in the temporary or permanent establishment which is available. Posts in Government service have to be sanctioned. Even if there are posts, then Rules have to be framed for recruitment wherever vacancies are to be filled in on a regular basis either on temporary or permanent post. For Government Servants, Rules of recruitment and conditions of service are normally framed under Article 309 of the Constitution of India in the absence of any legislation. The State of Maharashtra in so far as Irrigation Department is concerned had appointed a Commission which is known as 'Kalelkar Award.' The said Kalelkar Award has been accepted by the State Government. It may not be part of rules framed under Article 309 of to the Constitution of India. It, however, will have force of law in the absence of any other statutory Rules by virtue of Article 162 of the Constitution. The executive power of the State is co-extensive with the Legislative power. It may be noted that under the Model Standing Order 4-C a workman can be made permanent if there is a post. Persons working on daily or causal or work charged establishments as held by the Apex Court are not employees holding a post. Kalelkar Award, however, has created what is known as 'Converted Temporary Establishment. In case an employee has put in years continuous service on a work charged or daily wage establishment he is to be brought on the Converted Temporary Establishment. From the Converted Temporary Establishment an employee can be considered for appointment on regular establishment if certain conditions are fulfilled, including applying for the post, fulfilling the qualification for the post, age etc. It is also required that initial appointment should have been made through the Industrial Exchange Board and approval of the State Selection Board should be taken. In so far as C.R.T. establishment is concerned, the persons brought on the C.R.T., the posts are made personal to them. These posts would continue so far as they continue in the said post. On their ceasing to hold the said posts, the posts stand abolished. If they were holding the posts then there is no difficulty in applying the requirement of Section 25-F of the I.D. Act as in case a post exists there is no difficulty in directing reinstatement of a person to such a post. If no posts exist the question of reinstatement does not arise. In case a post has been abolished a person cannot be directed to be reinstated against the post which does not exist. In case of closure of establishment persons cannot be directed, even if they were retrenched earlier to be reinstated. In the case of Mohan Lal v. Bharat Electronics Ltd. reported in : (1981)IILLJ70SC , the Apex Court held that if workman has been retrenched in violation of the provisions of Section 25-F of the I.D. Act then the termination of services is ab inito void and the workman is entitled to a declaration that the termination is null and void. In these circumstances the employees whose names are included in the C.R.T. would be entitled to reinstatement with full backwages or wages as awarded by the Court.
This, however, would not apply to the case of persons who were not on the C.R.T. As already held such persons whether on daily wages or on work-charged establishment are not holding the posts and as held by the Apex Court in the case of Himanshu Kumar Vidyarthi & Ors. (supra) they are not holding posts their termination would not amount to retrenchment within the meaning of Section 2(oo) of the I.D. Act. However, that does not mean that such workmen have to be denied all benefits. The State Government has been following the policy of paying retrenchment compensation to such workers. In the circumstances, by adopting the principles of justice, equity and good conscience such workmen would be entitled for compensation in terms of Section 25-F of the I.D. Act.
18. That brings us to the last question as to whether even in the case of employees who have been brought on the C.R.T. Courts can give directions to regularise the employees. As already held those who are not brought on the C.R.T. are not holding any post as their employment is on the work-charged establishment or on a daily basis. They are not holding the posts which are permanent in character and as such the question of regularizing them would not arise. Even otherwise the Apex Court now in a large number of judgments, which are already referred to earlier including Delhi Development Horticulture Employees' Union (supra), Madhyamik Siksha Parishad, U.P. (supra), State of Himachal Pradesh (supra), has clearly defined the scope under which the Courts can issue direction in the matter of regularisation. Even in the case of State of Haryana v. Piara Singh (supra) the regularisation was on fulfilling certain terms and conditions and meeting with the Recruitment Rules. In Chief Conservator of Forests & Anr (supra) the Apex Court in para 29 noted that the principles in Piara Singh's case could be followed where work is shown to be of permanent nature. The Apex Court however has noted that the relief given to employees in that case is not one which would be available ipso facto to all the casual employees either of the Forest Department or any other Department of the State and such claims have to be decided on the merits of each case. In the instant case as the Kalelkar Award has provided the conditions under which a workman can be brought on the C.R.T. establishment and thereafter on the regular establishment the Courts cannot give any other direction except in terms of the Kalelkar Award. Regularisation of such employees covered by the Kalelkar Award including the employees of the Irrigation Department will, therefore, have to be in terms of the said Award unless the State Government issues any other directions in the matter of regularisation. It is true that every individual aspires to a regular job. There is a duty cast on the State itself under the Article 41 of the Constitution of India. That duty must be within the economic constraints of the State. The observation of the Apex Court in Delhi Development Horticulture Employees Union (supra) have to be borne in mind. Many times State Governments in order to provide employment on conditions or generate employment notify Schemes or take out Projects. The idea is to help those unemployed to have some, subsistence. If on account of technical flaws workmen are directed to be reinstated with full back wages or regularise them will become counter productive. The Courts in such matters cannot escape their responsibilities and give directions for regularisation. As observed by the Apex Court in State of Himachal Pradesh (supra) the judicial process cannot become another mode of recruitment de hors the rules.
19. From the aforesaid discussion, the following conclusions emerge :-
1. The work and works connected with the Irrigation Projects of the Irrigation Department of the State of Maharashtra fall within the definition of Industry within the meaning of Section 2(j) of the Industrial Disputes Act.
2. The workers who are entitled to be taken on Converted Temporary Establishment in terms of the Kalelkar Award are held to be workmen within the meaning of Section 2(s) of the I.D. Act. and the provisions of Chapter V-A of the I.D. Act will apply in their case, if their termination is by way of retrenchment or closure.
3. The services of the workmen not covered by the Kalelkar Award would not fall within the provisions of Chapter V-A of the Industrial Disputes Act as they are not holding a 'Post' and as such their termination would not amount to retrenchment as held by the Apex Court in the case of Himanshu Kumar Vidyarthi & Ors. (supra). Such employees even though they are not covered by the provisions of Chapter V-A of the I.D. Act by invoking the principles of justice, equity and good conscience would be entitled to retrenchment compensation or closure compensation payable in terms of Chapter V-A of the I.D. Act.
4. A workman falling within the definition of Section 2(s) of the I.D. Act cannot have recourse to the provisions of the Industrial Disputes Act or MRTU & PULP Act if there are statutory conditions of 'service' as laid down by the Apex Court in Bombay Telephone Canteen Employees Association (supra).
In the instant case no material has been placed on record to show that there are any statutory Rules and hence the jurisdiction of the Courts under the MRTU & PULP Act is not ousted.
5. The workmen who are on Converted Temporary Establishment can only be regularised in terms of the Kalelkar Award, in the absence of any other Statutory Rules governing their regularisation. The Labour Court or the Industrial Court otherwise has no jurisdiction to direct the State Government or its Department to regularise such workmen.
6. The Petitioners to maintain Registers of such retrenched workmen, if not maintained on account of they being declared surplus or on account of closure of the Projects for a division or divisions as the authorities may decide. Workmen retrenched in such division in case work is available with the Department in any other Project, to get first preference in the matter of employment if they are so willing, based on the seniority in the Register maintained.
The petitions can now be disposed of on merits.
20. In so far as the Writ Petition No. 1587 of 1996 is concerned the Respondent,, according to the Petitioners themselves, was engaged on April 1, 1980 and his services were terminated with effect from July 15, 1985. He would, therefore, be covered by the Kalelkar Award. This aspect has not been gone into by the Courts below. The Award of the Courts below therefore, are set aside and the matter is remanded for consideration afresh on above aspects. The workman will be able to lead evidence to show that he has completed 5 years of continuous service and that he is entitled to be covered by the Kalelkar Award. If he so establishes the provisions of Chapter V-A of the I.D. Act will be attracted and the consequential reliefs will have to be given, subject, of course to what is set out herenafter.
The petitioners will be entitles to lead evidence to show that Respondent does not fall within the ambit of the Kalelkar Award. Further also evidence may be led to show that the Project itself has been closed and in that event if there is non-compliance with the provisions of Chapter V-A of the I.D. Act regarding retrenchment at the highest the relief in terms of back wages would be upto the date of the closure of the Project. The Petitioners also will be entitled to lead evidence to show workmen under any other Scheme, which was refused. In such an event no relief of backwages would be given from the date on which the workmen was offered employment.
The Labour Court to dispose of the matter within three months of receiving the order of this Court. Rules made absolute in the aforesaid terms. There shall be no order as to costs.
21. In so far as Writ petition No. 2618 of 1997 is concerned, from the record it is seen that the Respondents were engaged between the periods ranging from May 22, 1983 onwards and their services came to be terminated on August 31, 1984. Thus they would not be covered by the Kalelkar Award and as such termination of their services cannot be faulted, except that they will be entitled to the compensation calculated at the same rate which is calculated under Chapter V-A as retrenchment compensation.
22. Rule made absolute in the aforesaid terms. There shall be no order as to costs.