JUDGMENT 1. - The petitioner by this writ petition has challenged the order of Vikash Adhikari, Panchayat Samiti, Sawai Madhopur, dated, 23-7-1974, whereby the services of the petitioner were terminated with immediate effect. 2. The petitioner had initially joined services of the Government of Rajasthan on 3-3-1955 and appointed by the Block Development Officer of the Community Development Block, Sawai Madhopur on the post of Work-charge Mistri (Civil) on a monthly salary of Rs. 85/-. He remained on this Post till 2-10-1959 when the Community Development Block was replaced by the Panchayat Samiti, in pursuance of the provisions of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter referred to as the Act). The petitioner while serving in the Community Development Block, Sawai Madhopur remained as a work-charge employee in this Block upto 1-2-1959 and there-after appointed as a regular Mistri Civil) by order No. 1733, dated 3-3-1959. According to the petitioner, this appointment was on a permanent post and was made with retrospective effect from 1-2-1959 vide Ex./2. After the formation of Panchayat Samiti in Sawai Madhopur under the Act, all the employees of the Community Development Block were transferred to the services of Panchayat Samiti, Sawai Madhopur w.e.f. 2-10-1959. The services of the petitioner, were also transferred to the Panchayat Samiti Sawai Madhopur where he was working till the impugned order of termination. In this service of Panchayat Samiti, the petitioner started with a salary of Rs. 105/- per month and the same was raised from time to time and ultimately to Rs. 220/- per month w.e f. 1-4-1973. The petitioner was not fixed in any particular scale of pay and was not given any Dearness Allowance and other allowances. The petitioner instead of being treated as permanent and substantive employee was treated as an employee appointed from period to period. The period from 2nd October, 1959 and on wards was extended for six months from time to time, but the petitioner continued to remain in service without any break for this entire period of 13 years. This was done because the post of Mistri (Civil) was not a permanently created post in the Panchayat Samiti, Sawai Madhopur. The period from 2nd October, 1959 and on wards was extended for six months from time to time, but the petitioner continued to remain in service without any break for this entire period of 13 years. This was done because the post of Mistri (Civil) was not a permanently created post in the Panchayat Samiti, Sawai Madhopur. According to the petitioner though the post of Mistri (Civil) was not created permanently but the need for the said post always remained existing and the Panchayat Samiti in this regard requested the Government time and again to make this post as permanent. Apart from repeated resolutions by the Panhayat Samiti or its Standing Committee no action was taken to make the 1st permanent. The petitioner also made several representations for fixing him in proper pay scales, which were admissible to similar employees in the Public Works Department of the State Government, vide representations reproduced in Appendix 'B' to 'L' ranging from 3-2-1960 to 12-6-74. The last representation made by the petitioner, dated 12-6-1974 was recommended by the Vikas Adhikari, Panchayat Samiti, Sawai Madhopur, in which it was mentioned that the petitioner had been working since 1955 but could not be made permanent on account of the reason that there was no permanent post of Mistri (Civil) in the Panchayat Samiti and recommended that he may be absorbed in the service of the Government. According to the petitioner, under sub-section 5 of Section 31 of the Act and Sub-Rule (1) of Rule 8 of the Rajasthan Panchayat Samities and Zila Parishads Service Rules, 1959 (hereinafter referred to as the Rules) the petitioner became a substantive employee on 2-10-1959 when the first Panchayat Samiti of Sawai Madhopur was constituted. Sub-section (5) of Section 31 of the Act and Sub-Rule (1) of Rule 5 of the Rules read as under : "(5) All persons holding, since before the constitution of first Panchayat Samitis under this Act, appointments- (a) to posts encadred in the Service constituted under Section 86, or (b) to posts in Class IV services, shall be deemed to have been substantively appointed thereto by the Panchayat Samiti or the Vikas Adhikari, as the case may be, and nothing in this section or in Section 86 shall apply to such appointments." "5. INITIAL CONSTITUTION OF THE SERVICE-(1) All persons holding appointments in the different categories of posts included in the service immediately preceding the constitution of the service shall be deemed to have been substantively appointed thereto by the Panchayat Samitis or the Zila Parishads as the case may be, under the Provisions of these Rules : Provided that a permanent Government employee may within 90 days of the enforcement of these rules exercise his option not to become a member of the Service. In which case the former appointing authority may take such action as it may deem necessary in accordance with the provisions of the Rajasthan Service Rules. Provided further that a temporary Government Employee may within 30 days of the enforcement of these Rules exercise his option not to become a member of the Service, in which case, the former appointing authority shall terminate his service under the provisions of the Rajasthan Service Rules." The petitioner has also placed reliance on a Circular No. F. 17(106) PW-58, dated 7-1-1960, issued by the Secretary to the Government, Public Works Department Government of Rajasthan, under which even if the petitioner is considered as a work-charge employee then too he should be treated as permanent as he was first appointed in the Government service on 3-3-1955. The The petitioner has reproduced the above circular in pars No. 5 of the writ Petition. It may be mentioned at this stage itself that the petitioner himself has stated in the writ petition that the above Circular did not relate to the department of the petitioner but he has claimed its benefit on the basis of his fundamental right to receive equal treatment under Article 14 and 16 of the Constitution of India. The petitioner's case further is that he would be governed by the provisions of Rule 23-A(2) of the Rajasthan Service Rules as there was no provision under the Rajasthan Panchayat Samities and Zila Parisads Service Rules, 1959 for the termination of service of the temporary employees. The petitioner's case further is that he would be governed by the provisions of Rule 23-A(2) of the Rajasthan Service Rules as there was no provision under the Rajasthan Panchayat Samities and Zila Parisads Service Rules, 1959 for the termination of service of the temporary employees. In para No. 8 of the writ petition the case of the petitioner is that the Panchayat Samiti is an Industry under the term 'Industry' given in the Industrial Disputes Act, 1947 and the petitioner falls under the definition of 'workman' under the provisions of Chapter V-A and 5-B of the Industrial Dispute Act and he was entitled to the benefits of one month's notice of pay and retrenchment compensation payable in advance in accordance with the provisions of Section 25-F and as compliance of Section 25-F has not been made, the impugned order, dated 23-1-1974 is liable to be quashed. 3. The respondent's case in the reply is that the petitioner was appointed as work charge mistri for a fixed period and thereafter his appointment was extended from time to time by the Block Development Officer and thereafter by the Vtkas Adhikari. It is denied that by the impugned order, dated 3-3-1959 the status of the petitioner changed from work-charge mistri to that of regular mistri appointed on permanent post. There was no permanent post of mistri in the Community Development Block nor in the Panchayat Samiti at d the petitioner remained as a mistri on daily wages. It is admitted that the Administrative Committee of the Panchayat in its meeting, dated 3-1-1960, by resolution No. 6 appointed the petitioner for six months as Work-Charge mistri w.e.f. 2-10-1959 but thereafter every six months, the petitioner was allowed to continue as Work-Charge mistri in pursuance to Resolution of the Standing Committee and orders from the competent authority. The petitioner was never a permanent and substantive employee. The post of Mistri was not created in the Panchayat Samiti and the Government did not agree with the Resolution of the Panchayat Samiti for creating a permanent post of Mistri. The petitioner was paid for the work, he had done as work-charge Mistri. The petitioner can derive no benefit of sub-section (5) of Section 31 of the Act as the same was not applicable to the petitioner. The petitioner was paid for the work, he had done as work-charge Mistri. The petitioner can derive no benefit of sub-section (5) of Section 31 of the Act as the same was not applicable to the petitioner. The petitioner was not appointed on any post and cadre in the service constituted under Section 86 or on the post of Class IV and as the petitioner was merely a work-charge employee, as such he was not entitled to any benefit under the Act. Similarly the petitioner was not entitled to any benefit of Rule 5 as he was not holding any appointment on any category of post as no post of Mistri was provided in the Panchayat Samiti. The petitioner though admitted to have remained on the post for 14 years, but it did not confer any right on him more so as his appointment was given for a period of six months and was extended from time to time. There was no arbitrariness on the part of the authorities in not sanctioning the post of Civil Mistri in the Panchayat-Samiti, Sawai Madhopur and his services could be terminated at any time when there was no work in the Panchayat Samiti. The Circular, dated, 7-1-1960 did not apply to the petitioner as the same was applicable only to the Work-charge employee of the Public Works Department, Water Works Department and Garden Department and is not applicable to the Panchayat Samities. The petitioner is not a Government employee and is not entitled to the status of permanent employees by virtue of provisions of Rule 23-A (2) of the Rajasthan Service Rules and the same are not applicable to the petitioner. It is further alleged that the Panchayat Samiti is not an Industry as defined in the Industrial Disputes Act and the petitioner is not a workman. The Industrial Disputes Act is not applicable to the Panchayat Samities and no benefit can be claimed by the petitioner under the Act. Without prejudicing to the above, it is alleged that no writ lies, where the provisions of Section 25-F are not complied with. 4. From the facts narrated by the petitioner in the writ petition itself and the documents placed on record it is no where found that the petitioner was every given an appointment on permanent basis. Without prejudicing to the above, it is alleged that no writ lies, where the provisions of Section 25-F are not complied with. 4. From the facts narrated by the petitioner in the writ petition itself and the documents placed on record it is no where found that the petitioner was every given an appointment on permanent basis. According to the petitioner's own saying his appointment was continued by extending his period of appointment for six months time and again. It is not the case of the petitioner that any permanent post of Mistri (Civil) was every sanctioned by the Government and as such there does not arise any case of the petitioner being appointed on substantive basis on a permanent post. I am also not convinced with the arguments of the learned counsel for the petitioner that the petitioner acquired a permanent status under sub-Section (5) of Section 31 of the Act or sub-Rule (1) of Rule 5 of the Rules as the petitioner was not appointed on any post and cadre in the Service constituted under Section 86 of the Act or to the post Class IV, as such he cannot get any benefit of the Act or the Rules. I am also not convinced with the arguments of the learned counsel for the petitioner that the petitioner should be treated as a Government employee as his initial appointment was made in a Government Department on 3-3-1959. That appointment was merely on a work-charge basis and the petitioner cannot get any advantage of being treated as a Government employee on the basis of that appointment. Admittedly, the petitioner was given an appointment on work-charge basis in the Panchayat Samiti, Sawai Madhopur and his services have been terminated from such post and as such there is no question of treating him as a Government employee or to derive any benefit of Rule 23-A of the Rajasthan Service Rules. 5. The last and the most important question which still remains to be considered is whether the petitioner was a workman and whether the Panchayat Samiti is an 'industry' and in case of the termination of the services and whether the petitioner was entitled to the benefits of Section 25-F of the Industrial Disputes Act. 5. The last and the most important question which still remains to be considered is whether the petitioner was a workman and whether the Panchayat Samiti is an 'industry' and in case of the termination of the services and whether the petitioner was entitled to the benefits of Section 25-F of the Industrial Disputes Act. Learned Counsel for the petitioner in this regard submitted that the activity in which a Mistri (Civil) is engaged is an industrial activity and the organisation that is maintained is an industry. The Panchayat Samities are engaged in the industrial activity of maintaining buildings and trade. Reliance is placed on Vinay Kumar Majoo v. State and others ( AIR 1968 Raj 227 ), in which it was held that the Rajasthan Public Works Department, which is engaged in an industrial activity of maintaining buildings and roads is an industry, Similarly reliance is placed on Mahesh Chandra Sharma v. State of Rajasthan (1974 RLW 338). In which it was held that the Irrigation Department of the State Government which is engaged in constructing dams, canals, tanks etc. and distributing and supplying water for irrigation purposes, is rendering material services to the community at large or a part thereof with the help of its employees and is therefore, an 'undertaking' which conies within the definition of 'industry' under the Act. The State Government may not be providing irrigation facilities to the community with profit motive but that would not make any difference as an undertaking analogous to trade or business. Because the irrigation facilities are provided on payment of certain charges it is essentially a business activity, though the motive might be general welfare of the people. Reliance is also placed in this regard on The State of Bombay and others v. The Hospital Mazdoor Sabha and others ( AIR 1960 SC 610 ) and (4)The Corporation of the City of Nagpur v. Its Employees ( AIR 1960 SC 675 ). Mr. Reliance is also placed in this regard on The State of Bombay and others v. The Hospital Mazdoor Sabha and others ( AIR 1960 SC 610 ) and (4)The Corporation of the City of Nagpur v. Its Employees ( AIR 1960 SC 675 ). Mr. Mathur learned Government Advocate was unable to cite any authority, but contended that the petitioner has not mentioned any detailed particulars in the writ petition to show that the Panchayat Samiti, Sawai Madhopur had taken any work of construction of roads and buildings nor it has been mentioned that such work was done on a regular basis, nor the number of employees who were working in such department and in the absence of such dates furnished by the petitioner, it cannot be held that Panchayat Samiti, Sawai Madhopur was an industry. I do not find any force in this argument raised by the learned Government Advocate. The petitioner in para No. 8 had clearly taken a stand that the petitioner was working under the service of the Panchayat Samiti which was rendering a material services to the society through its work and as such the Panchayat Samiti was an industry in the eyes of the term industry given in the Industrial Distrial Disputes Act, 1947 and petitioner came under the definition of workman as he had completed more than 240 days of his service. The respondents in the reply merely denied the aforesaid allegation by stating that the Panchayat Samiti was not an industry as defined in the Industrial Disputes Act, 1947 and the petitioner was not a workman. The fact regardirg the number of persons employed in the Panchayat Samiti in the work undertaken by it of constructing buildings and roads was wifhin the special knowledge of the Panchayat Samiti and it was for the Panchayat Samiti to have taken the plea and placed material on record to show that it was not an industry. The respondents cannot take advantage in this regard to put the burdon on the petitioner to state all these particulars which were within the special knowledge of the Panchayat Samiti. The respondents cannot take advantage in this regard to put the burdon on the petitioner to state all these particulars which were within the special knowledge of the Panchayat Samiti. That apart the learned counsel for the petitioner draw my attention to Appendix 'A' filed alongwith the writ petitioner part of the proceedings of the Administrative Committee held on 13-8-1968, in which it was decided that the post of one Oversear was insufficient to look after the construction activities undertaken by the Panchayat Samiti as its area of operation as very large. Similarly attention was drawn to Appendix 'M' a letter dated 1-1-1972 written by the Deputy District Development Officer, Panchayat Samiti to the Director Community Development and Panchayats Department, Government of Rajasthan, Jaipur. In this letter it was clearly pointed out that a Standing Committee of the Panchayat Samiti had decided in its meeting held on 2-9-1971 that about 40 constructions works were going on in the area of Panchayat Samiti and in that year loss caused due to heavy rains 15 works were undertaken for repairing the Tanks, and there was a complete possibility of sanction of Rs. 1,00,000/- from the Development Department. Under these circumstances, it was recommended that the service period of the petitioner may be extended from 1-10-1971 to 31-3-1972. Though it was the duty of the respondents to have furnished perticulars in this regard, but from a perusal of the aforesaid two documents it is amply proved that the Panchayat Samiti had undertaken about 43 construction works in the year 1971-72 itself and there was a vast area which fell under the Panchayat Samiti. It cannot to disputed that it is the duty of the Panchayat Samiti to maintain the roads and buildings and tanks etc. within its area and as admitted by the respondents that Panchayat Samiti, Sawai Madhopur had a vast area, it can safely be held that the Panchayat Samiti, Sawai Madhopur is regularly maintaining the work of construction of roads, buildings and tanks etc. and is employing staff in this regard. within its area and as admitted by the respondents that Panchayat Samiti, Sawai Madhopur had a vast area, it can safely be held that the Panchayat Samiti, Sawai Madhopur is regularly maintaining the work of construction of roads, buildings and tanks etc. and is employing staff in this regard. It has been observed in Nagpur Corporation v. Its Employees (4) as under : "If a department of a municipality discharge many functions, some pertaining to industry as defamed in the Act and other non industrial activities, the predominent functions of the department shall be the criteria for the purposes of the Act." The two Rajasthan cases cited by the learned counsel for the petitioner also take the view that the Public Works Department and the Irrigation Department of the Government of Rajasthan are Industry. Thus, I am clearly of the view that the Department of the Panchayat Samiti under which the petitioner was discharging work as Mistri (Civil) is an industry within the meaning of Section 2(i) of the Industrial Disputes Act. 6. Mr. Mathur, learned Additional Government Advocate also contended that the petitioner was not a workman even if the Panchayat Samiti is taken as an industry. I see no force at all in this submission of Mr. Mathur. Admittedly, the petitioner was drawing the salary of Rs. 220/- per month at the time when his services were terminated. That apart the duties of a Mistri (Civil) cannot be treated as mainly in managerial or administrative capacity. The petitioner was drawing wages not exceeding Rs. 500/- per month and as such clearly falls within the definition of workman given under Clause (5) of Section 2 of the Industrial Disputes Act. It was next contended by Mr. Mathur, learned Additional Government Advocate that the petitioner had a remady of raising an industrial disputes under Section 10 of the Industrial Disputes Act and cannot come by way of writ petition directly to this Court under Article 226 of the Constitution of India. I see no force in the above contention of Mr. Mathur as this point is already concluded by a Division Bench of this Court in Nagaur Central Co-operative Bank Ltd. v. Kesa Ram and others (W.L.N. 1979, 400). I see no force in the above contention of Mr. Mathur as this point is already concluded by a Division Bench of this Court in Nagaur Central Co-operative Bank Ltd. v. Kesa Ram and others (W.L.N. 1979, 400). A plea of alternative remedy by way of reference under Section 10 of the Industrial Disputes Act was negatived by holding that the making of reference under Section 10 of the Industrial Disputes Act is exclusively within the discrition of the Government and the respondents cannot claim this relief as a matter of right. 7. Lastly, it was contended by the learned Additional Government advocate that the termination of the services of the petitioner cannot amount to retrenchment because there was no post of Mistri (Civil) in the Panchayat Samiti and the petitioner cannot derive benefits of Section 25-F of the Industrial Disputes Act. I see no force in this contention as well. It was held in State Bank of India v. Sundar Money (A.I.R. 1966 SC. 1111) as under:- (C) Industrial Disputes Act (1949), Section 2 (OO) and 25-F Retrenchment-Composite order, one giving appointment and other ending it -Section 25F, held, attracted. "Termination .........for any reason whatsoever in Section 2(OO) are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is has the employee's service been terminated. Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term." The aforesaid authority was re-affirmed by their Lordships of the Supreme Court in Messrs Seon Services Production Agencies (P) Ltd. v. Industrial Tribunal Haryana and others ( AIR 1979 SC 170 ). I have this no hesitation in holding that the termination of services of the petitioner by impugned order clearly amounted to retrenchment falling under Section 25-F of the Industrial Disputes Act. It is not in dispute that the compliance of Section 25-F has not been made in this case as the petitioner has not been given one month's notice in writing not has been paid wages in lieu of such notice nor the petitioner has been paid at the time of retrenchment, compensation equivalent to 15 days average pay for every completed year of continuous services. The impugned order of termination as such being in clearly in violation of Section 25-F is liable to be quashed. The impugned order of termination as such being in clearly in violation of Section 25-F is liable to be quashed. 8. In the result, this writ petition succeeds and the order of termination, dated 23-7-1974 is hereby quashed. Petitioner would be taken back into the service and will be paid full back wages from the date of termination till he is taken back into service. The respondents are directed to take back the petitioner in service and to pay his back wages within two months from today. The petitioner shall also be entitled to costs.Petition allowed. *******