B. K. MEHTA, J. ( 1 ) A short but interesting question arises in this petition as to whether daily rated labourers on the Nominal Muster Roll of the Public Works Department (Irrigation) engaged for the purposes of diverse works in connection with construction and maintenance of medium size irrigation dam undertaken may the State Government as permitted by the Union Government with the assistance of the World Bank can be said to be workmen within the definition of the term as given in sec. 2 (s) of the Industrial Disputes Act 1947 The question arises in the following circumstances. ( 2 ) THE State Government had sought permission of the Union Government in 1972 for construction of Amli Dam over the river Ver in Mandvi taluka of Surat district. The Union Government granted the necessary administrative and technical sanction under the recommendation of the Central Water Power Commission in about April 1979 having estimated cost of Rs. 64. 419 million. The object of the construction of the dam inter alia was to provide (i) irrigation facilities (ii) flood control and (iii) protection to the people residing in the vicinity of the river concerned. The State Government acquired land in all admeasuring about 553 hectares for the dam and about 140 acres for channel. The capacity of reservoir was estimated to be of 37. 54 million c. m. and the irrigation facilities envisaged were to cover about 3644 hectares of agricultural land. ( 3 ) THE Deputy Executive Engineer incharge of different sub-divisions of the Project engaged from time to time daily rated workers under oral orders and accordingly petitioners No. 2 to 17 were engaged under oral orders and were placed on what is known as Nominal Muster Roll maintained by the Irrigation Department of the PWD of the State Government which are meant for recording presence of the labourers engaged for a particular work in connection with the dam construction. Petitioner No. 1 is the P. W. D. Employees Union. Petitioners No. 2 to 9 11 15 and 16 were working at the dam site under Deputy Executive Engineer Sub-Division I at Mandvi for taking safety measures for dam during monsoon season. Petitioner No. 10 was working in Channel Works (Quality Control Site) under the Deputy Executive Engineer incharge of Sub-Division No. II at Mandvi. Petitioners Nos. Petitioners No. 2 to 9 11 15 and 16 were working at the dam site under Deputy Executive Engineer Sub-Division I at Mandvi for taking safety measures for dam during monsoon season. Petitioner No. 10 was working in Channel Works (Quality Control Site) under the Deputy Executive Engineer incharge of Sub-Division No. II at Mandvi. Petitioners Nos. 12 13 14 and 17 were engaged for rehabilitation works under the Deputy Engineer incharge of Sub-Division No. IV at Mandvi. ( 4 ) THE petitioners have put in services for periods varying between one year to about 11 years but admittedly all of them have completed continuous service of 240 days in a year. The services of the first set of the petitioners working under the Deputy Engineer incharge of Sub- Division I were terminated by the two impugned notices of 17th and 19/09/1984 with effect from 30/09/1984 However Petitioners Nos. 4 and 11 were again employed with effect from 5th and 6/10/1984 respectively. The services of the second set of employees working under the Deputy Executive Engineer Sub-Division II were terminated with effect from 15/06/1984 and that of the third set of employees working in Sub Division IV were terminated with effect from 25/06/198 4/08/1984 10 August 1984 and 4/09/1984 respectively by orders of the same date that is 25/07/1984. The petitioners have therefore moved this Court for appropriate writs orders and directions to quash and set aside the impugned terminations and for enjoining the respondents to reinstate the petitioners and treat them as if they continued all along in services and to pay them full back wages. ( 5 ) THE terminations have been impugned broadly on two grounds namely they were bad in law and void ab-initio inasmuch as they were passed in clear violation of the mandatory provision contained in sec. 25-F of the Industrial Disputes Act and in any case they were arbitrary and discriminatory and therefore violative of Arts. 14 and 16 of the Constitution of India. ( 6 ) THIS petition has been resisted at the admission stage as well as after the Rule nisi was issued on admission. Two reply affidavits have been filed by Shri U. M. Patel Executive Engineer incharge of the dam project. 14 and 16 of the Constitution of India. ( 6 ) THIS petition has been resisted at the admission stage as well as after the Rule nisi was issued on admission. Two reply affidavits have been filed by Shri U. M. Patel Executive Engineer incharge of the dam project. The petition has been resisted on the ground that construction and maintenance of the dam cannot be said to be an industry and therefore beyond the purview of the Industrial Disputes Act because it is in exercise of the sovereign functions that the State undertakes the construction of dams for purpose of irrigation in pursuance of the legislative entry No. 17 of List 2 of Schedule VII to the Constitution and that in any case the petitioners being daily rated workers engaged for casual purposes having regard to the exigency of work and placed on Nominal Muster Roll cannot claim any right for continuation of their services since the State can always terminate the services on completion of the job for which they were engaged. It cannot therefore be said that the action of the State Government is violative of Art. 14 or 16 of the Constitution since no discrimination or any mala fide have been alleged. ( 7 ) TWO important questions therefore arise. Firstly whether construction and maintenance of dam can be said to be an `industry since the work of construction and maintenance is essentially a sovereign function in the classical sense discharged by State in exercise of its sovereign power and therefore the petitioners are not `workmen within the meaning of the definition of the said term under sec. 2 (s) of the Industrial Disputes Act and secondly the impugned terminations are violative of Articles 14 and 16 of the Constitution. ( 8 ) THE question as to what activities would constitute an industry is not capable of elaborate debate in view of the settled legal position particularly by the three decisions of the Supreme Court namely Bangalore Water Supply v. A. Rajappa AIR 1978 SC 549; Corporation of the City of Nagpur v. Its Employees AIR 1960 SC 675 ; and The State of Bombay v. Hospital Majdoor Sabha AIR 1960 SC 610 . Justice Subba Rao succinctly summarised the legal position in this respect in Nagpur City Corporations case (supra) We can do no better than setting out the succinct summary made by Justice Subba Rao in the following terms to indicate as to what activities would constitute industry. 17 The result of the discussion may be summarized thus: (1) The definition of industry in the Act is very comprehensive. It is in two parts; one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State though statutorily delegated to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power administration of law and judicial power. (4) If a service rendered by an individual or a private person would be an industry it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry the employees in the departments connected with that service whether financial administrative or executive would be entitled to the benefits of the Act. (6) If a department of a Municipality discharges many functions some pertaining to industry as defined in the Act and other non-industrial activities the predominant functions of the department shall be the criterion for the purposes of the Act. (Emphasis supplied) ( 9 ) THE Supreme Court in Nagpur City Corporations case (supra) ruled that the employees working even in the tax department of a local body would be entitled to the benefits under the Industrial Disputes Act. The Health Department of the Municipality was also held in that case to be an industry and the said principle governed the questions raised in Hospital Majdoor Sabhas case (supra ). The employees working in the General Administration Department of the Corporation were held to be entitled to the benefits under the Industrial Disputes Act. The Health Department of the Municipality was also held in that case to be an industry and the said principle governed the questions raised in Hospital Majdoor Sabhas case (supra ). The employees working in the General Administration Department of the Corporation were held to be entitled to the benefits under the Industrial Disputes Act. Following the decision of the Supreme Court in Nagpur Corporation case (supra) the Court in Hospital Majdoor Sabhas case was concerned with a question as to whether a group of hospitals run by the Government for the medical relief as well for imparting medical education was industry. Gajendragadkar J. considered the definitions of various terms defined by sec. 2 namely `industry `industrial dispute `wages workman employer and `public utility service. The Court laid down a working principle to decide what activities would constitute an `industry. It is laid down in the following terms:17 as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual nor must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organised or arranged the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which sec. 2 j) applies. Judged by this test there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals in question. The Court further observed as under:. . . IT is the character of the activity which decides the question as to whether the activity in question attracts the provision of sec. 2 (j) who conducts the activity and whether it is conducted for profit or not do not make material difference. The Court further observed as under:. . . IT is the character of the activity which decides the question as to whether the activity in question attracts the provision of sec. 2 (j) who conducts the activity and whether it is conducted for profit or not do not make material difference. ( 10 ) IN Bangalore Water Supplys case (supra) the workable principle enunciated by Gajendragadkar J in Hospital Majdoor Sabhas case (supra) has been further alaborated and emphasised. Krishna Iyer J. speaking for himself Bhagwati and Desai JJ. ruled as under: 161 industry as defined in sec 2 (j) and explained in Banerji ( AIR 1963 SC 58 ) has a wide import. (A) Where (i) systematic activity (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i. e. making. on a large scale prasad or food) prima facie there is an industry in that enterprise. (B) Absence of profit motive or gainful objectives irrelevant be the venture in the public joint private or other sector. (C) The true focus is functional and the decisive test is the nature of the activity with the special emphasis on the employer-employee relations. (D) If the organization is a trade or business it does not cease to be one because of philanthropy emanating the undertaking. II. Although sec. 2 (j) uses words of the widest amplitude in its own limbs their meaning cannot be magnified to overreach itself. (a) Undertaking must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment so also service calling ar d the like. This yields the inference that all organized activity possessing the triple elements in I (supra) although not trade or business may still be industry provided the nature of the activity viz. the employer-employee basis bears resemblance to what we find in trade or business. This takes into the fold `industry undertakings callings and services adventures `analogous to the carrying on of trade or business. All features other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee may be dissimilar. It does not matter if on the employment terms there is analogy. III. This takes into the fold `industry undertakings callings and services adventures `analogous to the carrying on of trade or business. All features other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee may be dissimilar. It does not matter if on the employment terms there is analogy. III. Application of these guidelines should not stop short of their logical reach by invocation of creeds cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace regulation and resolution of industrial disputes between employer and workmen the range of this statutory ideology must inform the reach of the statutory definition. Nothing less nothing more. (a) The consequences are (i) professions (ii) Clubs (iii) educational institutions iv) co-operatives (v) research institutes (vi) charitable projects and (vii) other kindred adventures if they fulfil the triple tests listed in I (supra) cannot be exempted from the scope of sec. 2 (j ). (b) A restricted category of professions clubs co-operatives and even gurukulas and title research labs may qualify for exemption if in simple ventures substantially and going by the dominant nature criterion substantively no employees are entertained but in minimal matters marginal employees are hired without destroying the non-employee character of the unit. (c) If in a pious or altruistic mission many employ themselves. free or for small honoraria or like return mainly drawn by sharing in the purpose or cause such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness divinity or like central personality and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship then the institution is not an industry even if stray servants manual or technical are hired. Such- eleemosynary or like undertakings alone are exempt not other generosity compassion developmental passion or project. IV. Such- eleemosynary or like undertakings alone are exempt not other generosity compassion developmental passion or project. IV. THE dominant nature test: (a) Where a complex of activities some of which qualify for exemption others not involves employees on the total undertaking some of whom are not workmen as in the University of Delhi ease (AIR 1963 SC 1973) or some departments are not productive of goods and services if isolated even then the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur ( AIR 1960 SC 675 ) will be the true test. The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status. (b) Notwithstanding the previous clauses sovereign functions strictly understood (alone) qualify for exemption not the welfare activities or economic adventures undertaken by Government or statutory bodies. (c) Even in departments discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within sec. 2 (j ). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby. V. We overrule Safdarjung ( AIR 1970 SC 1407 ) Solicitors case ( AIR 1962 SC 1080 Gymkhana ( AIR 1968 SC 554 ) Delhi University ( AIR 1963 SC 1873 ) Dhanrajgirji Hospital ( AIR 1975 SC 2032 ) and other rulings whose ratio runs counter to the principles enunciated above and Hospital Majdoor Sabha ( AIR 1960 SC 610 is hereby rehabilitated. ( 11 ) A few observations from the judgment of Krishna Iyer J. in Bangalore Water Supplys case (supra) are instructive on the point. ( 11 ) A few observations from the judgment of Krishna Iyer J. in Bangalore Water Supplys case (supra) are instructive on the point. The learned Judge approvingly recited the passage quoted by Subbarao J from the judgment of Justice Isaacs in Federated State School Teachers Association of Australia v. State of Victoria (1929) 41 CLR 569 (Aus.) Some of the instructive observations quoted with approval from Isaacs Js judgment though made in the context of the contention that education is not an industry are more relevant to the problem before us:the theory was that society is industrially organised for the production and distribution of wealth in the sense of tangible ponderable corposcular wealth ands therefore an industrial dispute cannot possibly occur except where there is furnished to the public the consumers by the combined efforts of employers and employee wealth of that nature. . . . . . But it further neglects the fundamental character of Industrial disputes as a distinct and insistent phenomenon of modern society. Such disputes are not simply a claim to share the material wealth jointly produced and capable of registration in statistics. At heart they are a struggle constantly becoming more intense on the part of the employed group engaged in co-operation with the employing group in rendering services to the community essential for a higher general human welfare to share in that welfare in a greater degree. . . . . 81 So long as services are part of the wealth of a nation and it is obscurantist to object to it educational services are wealth are industrial. ( 12 ) KRISHNA Iyer J. also referred to the negative factors of which note was taken by Subba Rao J. in Nagpur City Corporations case (supra ). The learned Judge referred to these negative factors so as to have a proper perspective in determining what activity would amount to industry. Krishna Iyer J. noted as under:73 The Court proceeded to carve out the negative factors which notwithstanding the literal width of the language of the definition must for other compelling reasons be kept out of the scope of industry. For instance sovereign functions of the State cannot be included although what such functions are has been aptly termed the primary and inalienable functions of a constitutional government. For instance sovereign functions of the State cannot be included although what such functions are has been aptly termed the primary and inalienable functions of a constitutional government. Even here we may point out the inaptitude of relying on the doctrine of regal powers That has reference in this context to the Crowns liability in tort and has nothing to do with Industrial law. In any case it is open to Parliament to make law which governs the States relations with its employees. Articles 309 to 311 of the Constitution of india the enactments dealing with the Defence Forces and other legislation dealing with employment under statutory bodies may expressly or by necessary implication exclude the operation of the Industrial Disputes Act 1947 That is a question of interpretation and statutory exclusion; but in the absence of such provision of law it may indubitably be assumed that the key aspects of public administration like public justice stand out of the circle of industry Even here as has been brought out from the excerpts of ILO documents it is not every employee who is excluded but only certain categories primarily engaged and supportingly employed in the discharge of the essential functions of constitutional government. In a limited way this head of exclusion has been recognised throughout74 Although we are not concerned in this case with those categories of employees who particularly come under departments charged with the responsibility for essential constitutional functions of government it is appropriate to state that if there are industrial units severable from the essential functions and possess an entity of their own it may be plausible to hold that the employees of those units are workmen and those undertakings are industries. A blanket exclusion of every one of the host of employees engaged by government in departments failing under general rubrics like justices defence taxation legislature may not necessarily be thrown out of the umbrella of the Act. We say no more except to observe that closer exploration not summary rejection is necessary. ( 13 ) KRISHNA Iyer J. thereafter; referred to the correct test enunciated by Subba Rao J. which test has been approvingly adopted from the one formulated by Isaacs J. in his dissenting judgment in the Federated State School Teachers Association case (supra ). We say no more except to observe that closer exploration not summary rejection is necessary. ( 13 ) KRISHNA Iyer J. thereafter; referred to the correct test enunciated by Subba Rao J. which test has been approvingly adopted from the one formulated by Isaacs J. in his dissenting judgment in the Federated State School Teachers Association case (supra ). The test is in the following terms:the material question is: What is the nature of the function assumed is it a service that the State could have left to private enterprise and if so fulfilled could such a dispute he industrial. ( 14 ) THUS Krishna Iyer J. observed that the nature of actual function and of the pattern of organised activity is decisive. Krishna Iyer J had also cast a glance at the international recogaized concept vis-a-vis industry. In paragraph 68 of his judgment he referred to these concepts which are as under:68 The International Labour Organisation has had occasion to consider freedom of association for labour as a primary right and collective bargaining followed by strikes if necessary as a derivative right. The question has arisen as to whether public servants employed in the crucial functions of the Government fell outside the orbit of industrial conflict. Convention No. 98 concerning the Application of the principles of the right to organise and to bargain collectively in Article 6 states: this Convention does not deal with the position of public servants engaged in the administration of the State nor shall it be construed as prejudicing their rights or status in any way. Thus it is well recognised that public servants in the key sectors of Administration stand out of the industrial sector. The Committee of Experts of the ILO had something to say about the carving out of the public servants from the general category. 69 Incidentally it may be useful to note certain clear statements made by ILO on the concept of industry workman and industrial dispute not with clear-cut legal precision but with sufficient particularity for general purposes although looked at from a different angle. We quote from Freedom of Association. Second edition 1976 which is a digest of decisions of the Freedom of Association Committee of the Governing Body of the ILO. . . . . We quote from Freedom of Association. Second edition 1976 which is a digest of decisions of the Freedom of Association Committee of the Governing Body of the ILO. . . . . The distinction to be drawn according to the Committee would appear to be basically between civil servants employed in various capacities in government ministries or comparable bodies on the one hand and other persons employed by the government by public undertakings or by independent public corporation. . . . . . . . . . ( 15 ) IT is in the context of this settled legal position that we have to examine the question posed before us. In our opinion it is difficult for us to agree with the contention of the learned Assistant Govern ment Pleader appearing on behalf of the State Government that the employees working in the Irrigation section of the Public Works Department are not the workmen in the terms of the definition of the said term given in sec. 2 (s) of the Industrial Disputes Act. It will be too wide a proposition to canvas that merely because they are State Government servants they are not within the purview of the Industrial Disputes Act. Merely because the employer of these petitioners before us is the State Government it cannot be said that they would be beyond Industrial Disputes Act and not entitled to the benefits of the Act. This proposition is not capable of being sustained. As has been pointed out in Banglore Water Supplys case (supra) the true test which has been evolved and approved by the Supreme Court is that what is the nature of the actual functions assumed is it a service that the State could have left to the private enterprise and if so fulfilled such a dispute be industrial dispute ? In other words as pointed out by Krishna Iyer J. the nature of the actual functions and of the pattern of organised activity is decisive. As pointed out by Gajendragadkar J. in Hospital Majdoor Sabhas case (supra) that it is the character of the activity which decides the question as to whether the activity in question attracts the provision of sec. 2 (j) and not that who conducts the activity or whether it is conducted for profit or not. As pointed out by Gajendragadkar J. in Hospital Majdoor Sabhas case (supra) that it is the character of the activity which decides the question as to whether the activity in question attracts the provision of sec. 2 (j) and not that who conducts the activity or whether it is conducted for profit or not. These questions are not relevant for purposes of determining as to whether a particular activity is industry or not. Applying the workable principle laid down by Gajandragadkar J. in Hospital Majdoor Sabhas case and approved in Banglore Water Supplys case (supra) in ultimate analysis the answer to the question as to whether a particular activity is industry or not depends upon as to whether the activity is a systematic activity organised by co-operation between employer and employee for the production and/or distribution of goods is services calculated to satisfy human wants and wishes as distinguishable from spiritual or religious needs of the people. The true criterion is function and the conclusive test is the nature of activity with special emphasis on employer-employee relations It is these tests of function of the activity or in other words the nature of the activity which prompted the Supreme Court to decide in Hospital Majdoor Sabhas case (supra) that the State in running a group of hospitals for medical relief and education was carrying on an industry and the employees working in the hospitals were entitled to the benefits under the Industrial Disputes Act. Subba Rao J. has put it more tersely in Nagpur City Corporations case (supra) when he said that if a service rendered by an individual or a private person would be an industry it would equally be an industry in the hands of a Corporation and if service rendered by the Corporation is an industry the employees working in the departments connected with that service irrespective whether it may be financial administrative or executive would be entitled to benefits of the Act. No doubt if the nature of functional is sovereign functions in the sense the functions which are primary and inalienable functions of the State they are necessarily excluded from the purview of the definition. Subba Rao J. made it clear that such functions shall be ordinarily confined to legislative power administration or law and judicial power. No doubt if the nature of functional is sovereign functions in the sense the functions which are primary and inalienable functions of the State they are necessarily excluded from the purview of the definition. Subba Rao J. made it clear that such functions shall be ordinarily confined to legislative power administration or law and judicial power. In other words these functions are primarily functions of the State and they cannot be alienated by the State in favour of private individuals or bodies. Krishna Iyer J. elaborated these excluded activities by emphasising that sovereign functions strictly understood alone qualify for exemption. The welfare activities or economic adventure undertaken by the Government or statutory bodies do not qualify for being treated as sovereign functions. In our opinion therefore it would be difficult if not impossible to sustain the contention advanced on behalf of the State Government that the employees working in the Irrigation Department of the State Government would be discharging sovereign functions. ( 16 ) THE learned Assistant Government Pleader has in this connection drawn our attention to the decision of the Full Bench of Punjab High Court in State of Punjab v. Kuldip Singh 1983 (1) Service Law Report p. 710 where the High Court held that the establishment construction and maintenance of National and State Highways are essentially Government functions and it neither partakes the nature of trade and business nor is even remotely analogous thereto. The Full Bench was influenced in reaching the conclusion as it did by two important circumstances. The Union and the State Lists in the Seventh Schedule to the Constitution and the historical fact that roads were built by the State from ancient times. The Full Bench speaking through Sandhawalla C. J. raised a question: Can any person having regard to the conditions in the country and in the light of its federal constitution say with any degree of plausibility that the very establishment and construction of the National and State Highways and their maintenance is something which the State should barter away to a private citizen or a private Corporation ? The learned Chief Justice found the answer obviously in the negative. The learned Chief Justice found the answer obviously in the negative. The Full Bench referred that even in country like United States the establishment construction and maintenance of public roads is a primary function of the Government in support of which the learned Chief Justice has referred to various principles digested in Corpus Juris Secundum (Volume 39 ). One of the important principles quoted from the Corpus Juris Secundum and which influenced the Full Bench was that the establishment of highways is a governmental function and the power of providing highways for use of the public is a branch of the right of eminent domain which right is an inherent and necessary attribute of sovereignty existing independently of constitutional provisions. Another principle which commended to the Fall Bench in support of the view which it was inclined to take was that the necessity propriety or expediency of establishing public highways is primarily a legislative function rather than a judicial one and the establishment of public highway is one of the oldest and commonest of uses for which private property has been appropriated by the State by exercising the power of eminent domain With respect to the learned Judges of the Full Bench of Punjab High Court we are unable to agree with the reasoning which influenced the Full Bench and therefore unable to agree with the view which commended to them in Kuldip Singhs case (supra ). We are required to examine this decision of the Full Bench because the Division Bench of the Punjab High Court has following this decision in Kuldip Singhs case held that the employee of the State Government working in the Irrigation section of the Public Works Department are not workmen since the activities undertaken by the Irrigation Department could not be said to he industry in the terms of the definition in sec. 2 (j) of the Industrial Disputes Act (see Om Prakash v. Management M/s. Executive Engineer 1984 (2) Lab. I. C. 1165 ). Our reasons for disagreement are obvious. In the first place the eminent domain power or a public power which the state thinks fit to call in aid in course of undertaking an activity which would otherwise be industrial in the hands of individual would not change the essential nature of the activity although the power of eminent domain is essentially sovereign. In the first place the eminent domain power or a public power which the state thinks fit to call in aid in course of undertaking an activity which would otherwise be industrial in the hands of individual would not change the essential nature of the activity although the power of eminent domain is essentially sovereign. In the ultimate analysis the conclusive test is that: Is it a service that the state could have left to the private enterprise and if so fulfilled could such dispute be industrial ? It is difficult to conceive that the activity of constructing irrigation dams and providing water for irrigation or drinking purposes can be said to be such a primary and inalienable function of the State Government. It is well known that construction and maintenance of public highways is left by the State Government to the individuals or private agencies in developed countries in West. It is also not unknown that irrigation as well as other purposes dams are constructed and maintained by private agencies in Western countries. It is therefore difficult to agree with the view of the Punjab High Court that these are inalienable functions of the State Government. Merely because the legislative power in respect of national highways or for that matter state highways is left to the Union or the State Government it would become such a function that it can be treated as sovereign function strictly understood. It cannot b claimed to be a function akin to the legislative function or judicial function or one akin to the defence of the State or Nation. In the ultimate analysis it is a question whether there is a systematic activity recognised by co-operation between employer and employees for the production of goods and services to satisfy the human wants and wishes. It is difficult of us to view that the construction and maintenance of irrigation dams and allied activities in consequence thereof can be termed as sporadic spasmodic or casual activity of the state. It is also difficult to conceive that such an activity can be organised otherwise than by co-operation between employer and employees and in any case the purpose of such activity is anything else but for the production of services for the welfare of the people so as to enable them to carry on their agriculture and other allied activities in an economic and efficient manner. In our opinion the construction of dams and allied activities in connection therewith is welfare activity or economic adventure undertaken by the Government as contradistinguished from sovereign functions stricto sensu. The American decision and principles digested in Corpus Juris Secundum are not of much value having regard to the settled American legal position where state functions cannot be delegated to private agencies. A mere perusal of the items in Schedule I to the Industrial Disputes Act will indicate clearly that the activities which ostensibly fall within the sovereign competence are now considered to be public utility services and industries connected therewith to be within the purview of the Act. (see: Item No. 8. Defence establishments Item No. 10 Fire Brigade Service Item No. 11 India Government Mints Item No. 12 India Security Press Item No. ( 17 ) SERVICE in any oil field ). Our attention has been invited to the decision of the Full Bench of Patna High Court in Bijoy Kumar Bharti and Ors. v. State of Bihar and Ors. 1983 (2) Lab. I. C. 1884 where the Full Bench held that in the Irrigation Department there was a systematic organised by the State Government and its employees for satisfying the need of irrigation supply of electricity protection from flood and for extension of these facilities the people have to pay charges and therefore the activities were for satisfying human needs and there was no escape from the conclusion that the Department of Irrigation shall be deemed to be an industry within the meaning of the said Act. 17 Similarly the Orissa High Court held in Ananda Chandra Swain v. State of Orissa and Another 1973 (1) LLJ 508 that Balimela Dam Project was an industry. Similarly the same High Court held in Chief Engineer Irrigation Orissa v. Harihar Patra and Ors. 1977 (1) LLJ 1033 that Salandi Irrigation Project was an industry. 17 Similarly the Orissa High Court held in Ananda Chandra Swain v. State of Orissa and Another 1973 (1) LLJ 508 that Balimela Dam Project was an industry. Similarly the same High Court held in Chief Engineer Irrigation Orissa v. Harihar Patra and Ors. 1977 (1) LLJ 1033 that Salandi Irrigation Project was an industry. ( 18 ) THE Supreme Court also in Workers Employed in Hirakund Dam v. State of Orissa AIR 1971 SC 2242 did not doubt this proposition that the workers working in the Construction and Maintenance of the Dam were entitled to the benefit of the Industrial Disputes Act though the question with which it was concerned was whether the word dismisse as used in para 11 on Central Public Works Department Code denotes termination of services of employees by way of punishment or it covers other cases of termination before completion of the work. ( 19 ) IN that view of the matter we must hold so far as the first question is concerned that the petitioners who are working in the Public Works Department (Irrigation) of the State Government were entitled to the benefits of the Industrial Disputes Act since the activities undertaken by the Irrigation Department are Industry within the definition of the term Industry in sec. 2 (j) of the Industrial Disputes Act and they cannot be said to be discharging sovereign functions stricto sensu. Since it is an admitted position that all the petitioners had completed 240 days of service they were entitled to claim the compliance of sec. 25-F of the Industrial Disputes Act inasmuch as the procedure prescribed under sec. 25-F is not complied with by the State Government their termination of services is void ab initio and they are entitled to be treated as if in service all along as if there was no break in their service. In that view of the matter which we are inclined to take on the first questions it is not necessary to go into the second question set out above. ( 20 ) THE result is that this petition is allowed. The impugned order of termination is quashed and set aside and it is declared that the petitioners shall be treated as if in service all along without any break and will be entitled to all the benefits flowing therefrom. Rule is made absolute accordingly with costs. Rule made absolute. .