Shivshanker S. Pathak v. STATE — 1997 DIGILAW 140 (GUJ)

S. K. KESHOTE, J. ( 1 ) AS the facts and grounds which have been taken by the petitioners in these Special Civil Applications are common, the same are being disposed of by this common order. In Special Civil Application No. 3006/83, the learned Counsel for the petitioner made a statement before this Court that he does not press this Special Civil application for petitioners No. 2, 3, 15, 16 and 19. Writ petition on behalf of these petitioners accordingly stands dismissed. ( 2 ) THE petitioners in both these Special Civil Applications were engaged as karkoons in the irrigation scheme relating to Karjan Dam. It is admitted case of the petitioners that they were appointed on daily wages. In Special Civil Application No. 3006/83, the petitioners have given the date of their employment. In Special Civil application No. 4174/83, the petitioners have given their date of appointment in para-3 of the petition. These writ petitions have been filed by the petitioners challenging therein the action of the respondents to terminate their services. Challenge to the termination has been made by the petitioners in both these Special Civil Applications, on the ground that the same have been made in violation of provisions of Sec. 25-F of the Industrial Disputes act, 1947 (hereinafter referred to as the act 1947 ). The next ground of challenge has been taken that the termination of services of the petitioners is arbitrary and violative of arts. 14 and 16 of the Constitution of India as the termination is stated to be made wholly on arbitrary and perverse reasons. Reply to the Special Civil Applications has been filed by the respondents wherein the details of the working of the petitioners as daily wagers at the Karjan Dam Project has been given. The Court on the last date of hearing of the matters has given a direction to the State Government to file a concise statement of actual working days of the petitioners during the period from 21st June 1982 to 20th June, 1983 and in compliance of the said direction, further affidavit-in-reply has been filed by Shri y. I. Dhundia, Executive Engineer. In Special Civil Application No. 4174/83, no such statement has been filed. From the further affidavit filed in the Special Civil Application no. In Special Civil Application No. 4174/83, no such statement has been filed. From the further affidavit filed in the Special Civil Application no. 3006/83, it is clear that petitioners No. 1, 6, 8, 10, 13, 15, 16, 17 and 19 have completed 240 days actual working during the aforesaid period, but as the learned counsel for the petitioner has made a statement that he does not press this petition in respect of petitioners No. 2, 3, 15, 16 and 19, in Sp. Civil Application No. 3006 of 1983, and the petition so far as these petitioners are concerned is dismissed, it can be said that only the petitioners No. 1, 6, 8, 10, 13 and 17 have completed 240 days actual working. The rest of the petitioners have not completed 240 days actual working during the aforesaid period. This affidavit has not been controverted by the petitioners. The learned counsel for the petitioners contended that as per the chart filed by the respondents, many of the other petitioners have completed 240 days of actual working in the year earlier to the period in dispute and as such, the provisions of Sec. 25-F of the Act, 1947 have to be complied with in their cases also. The learned Counsel for the petitioners, in support of his contention placed reliance on the following decisions : 1. 1986 0 GLH 1024 - PWD Employees Union vs. State of Gujarat. 2. 1984 (II) Lab. IC 974 - The Kapurthala Co-operative Bank Ltd. , Kapurthala vs. The Presiding Officer, Labour Court, Jullundur and Ors. . 3. 1982 (11) LLJ 186 - Ramasamuz Upadhyaya vs. Vinubhai M. Mitra. 4. 1986 Lab. 1c 98 = 1985 (II) LLJ 539 - The Workmen of American Express international Banking Corporation vs. The Management of American express International Banking Corporation. ( 3 ) ON the other hand, the learned Counsel for the respondents firstly raised a preliminary objection that this Special Civil Application is not maintainable as the petitioners have an efficacious alternative remedy under the provisions of the Act 1947 by way of raising the industrial dispute. ( 3 ) ON the other hand, the learned Counsel for the respondents firstly raised a preliminary objection that this Special Civil Application is not maintainable as the petitioners have an efficacious alternative remedy under the provisions of the Act 1947 by way of raising the industrial dispute. Carrying further this contention, the learned Counsel for the respondents contended that the petitioners are challenging the validity of the termination of their services on the ground of violation of Sec. 25f of the Act 1947 and in such case, the petitioners have to avail of the remedy provided under the said Act and not this writ petition under Art. 226 of the Constitution of India. It has next been contended that otherwise also, the provisions of Sec. 25-F of the Act, 1947 are not attracted in the present case as the construction of dam by the State Government through irrigation department are sovereign functions. It is urged that the provisions of Sec. 25-F of the Act, 1947 will be attracted only in case of those petitioners who have worked for 240 days in the twleve calendar months preceding the date of termination and not in the case of those petitioners who have not completed 240 days. It has next been contended that even if it is accepted by this Court that the provisions of Sec. 25f of the Act 1947 are attracted in the present case, then too the relief of reinstatement may not be granted as the project in which the services of the petitioners were engaged has already been closed in the year 1986. In support of this contention, the learned Counsel for the respondents placed reliance on the following decisions of Honble Supreme Court as well as this Court. 1. 1996 (2) SCC 293 - Chief Conservator of Forests and Anr. vs. Jagannath maruti Kondhare and Ors. . 2. 1993 (2) GLR 1490 - Vinodrai N. Ratnatar vs. State of Gujarat. 3. AIR 1996 SC 1565 - State of Himachal Pradesh vs. Suresh Kumar Verma. ( 4 ) I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. ( 5 ) THE learned Counsel for the petitioners does not dispute the fact that other than petitioners Nos. 3. AIR 1996 SC 1565 - State of Himachal Pradesh vs. Suresh Kumar Verma. ( 4 ) I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. ( 5 ) THE learned Counsel for the petitioners does not dispute the fact that other than petitioners Nos. 1, 6, 8, 10, 13, 16, 17 and 19 the other petitioners have not worked for 240 days during the period from 21st June, 1982 to 20th June, 1983. It has further been admitted by the learned Counsel for the petitioners that the Karjan Project on which the petitioners were engaged on daily wages has been closed after completion of work in the year 1986. ( 6 ) ON the other hand the learned Counsel for the respondents also does not dispute the fact that the petitioners were workmen and the Project on which they have been engaged was industry within the meaning as given to these two terminologies in the Act, 1947, in case is contention that construction of the Dam is sovereign function of the State, is not accepted by this Court. ( 7 ) IN the Special Civil Application No. 4174/83, the petitioners have given out their total work from the date of their appointment to the date of termination to be more than 1100, 800 and 627 days. They have made further specific averment in the Special Civil application that in this case the provisions of Sec. 25-F have been violated by terminating their services. These facts have not been controverted by the respondents in the reply filed to the Special Civil Applications. In this case the uncontroverted position is that the petitioners have completed 240 dyas in the twelve calendar months from the date of joining the services. The learned Counsel for the respondents in both the cases admitted that before termination of the services of the petitioners compliance of provisions of Sec, 25-F of the Act, 1947 have not been made. ( 8 ) FIRST of all, I consider it to be appropriate to take two preliminary issues, which have been raised by the learned Counsel for the respondents regarding maintainability of these Special Civil Applications. ( 9 ) RE : Availability of alternative remedy. ( 8 ) FIRST of all, I consider it to be appropriate to take two preliminary issues, which have been raised by the learned Counsel for the respondents regarding maintainability of these Special Civil Applications. ( 9 ) RE : Availability of alternative remedy. The action of the respondents of terminating the services of the petitioners have been challenged in both these petitions on the ground of violation of provisions of Sec. 25f of the Act, 1947. So the petitioners are challenging the termination of their services on the ground of violation of statutory provision. It is not in dispute that this statute itself provides a form for redressal of the grievance of the nature made by the petitioners in the present case. I find sufficient merits in the contention of the learned Counsel for the respondents that where the petitioners allege breach of a particular provision of statute, then the remedy provided under the said statute, for redressal of the grievances, should have been availed of. In the present case, the petitioners have alternative efficacious remedy available under the provisions of the Act, 1947 and as such their approach straightway of this Court under Art. 226 of the Constitution, is difficult to appreciate and accepted. In para 12 of the Special Civil Application No. 3006 of 1983, the petitoners have stated that they have not other prompt, eficacious alternative remedy except by way of this petition, which is wholly incorrect. In para 6 of the Special Civil Application No. 3006 of 1983 as well as in para 9 of the Special Civil Application No. 4174 of 1983, the petitioners have clearly indicated that they have alternative remedy available in the matter by way of the raising industrial dispute. The reasons which have been given by the petitioners to bye pass that statutory remedy are as follows : (I) the petitioners belong to weaker section of the society; (ii) they do not have sufficient means to go for a long drawn out litigation before the authorities constituted under the Act 1947 which would take years together for disposal of their cases and further appeal and ultimate recourse to this Honble Court under Arts. 226/227 of the Constitution of India cannot be ruled out; (iii) driving the petitioners at this particular remedy will result not only in time cost but also in terms of money cost to both the sides; (iv) in the said litigation, the petitioners have to spend more than what they may eventually gain; (v) it is a case where the statutory provisions have been breached by the respondents and as such, the petitioners are absolutely justified in bringing this petition before this Court in order to get all things right by intervention of this Honble Court. ( 10 ) IN case the reasons which have been given by petitioners are taken to be sufficient and adequate to bye pass or circumvent the statutory remedies provided then in all the cases the statutory alternative remedy provided would render nugatory. The remedy provided under the Act, 1947 are cheaper and meant for speedy adjudication of the industrial disputes. I fail to see any justifation given, not to avail the alternative remedy, by the petitioners on the ground that they belong to weaker sections of the society. It is not the question to which section of society the petitioner belong. It is a question where statutory remedy is provided for adjudication of industrial disputes with which the petitioners have come up before this Court and as such, the said remedy has to be availed of. The Parliament in its wisdom has considered the remedies provided in the act, 1947, a cheaper and speedy remedy for the labourers (workmen) and the petitioners are unable to give out how that remedy is onerous or costly. Another reasons that the petitioners do not have sufficient means to go for a long drawn out litigation before the authorities constituted under the Act 1947 which would take years together for disposal of their cases, is also hardly of any relevance and substance. In the Labour Court and industrial Tribunal to which reference of industrial dispute is made, cheaper remedy is provided because there the advocates are not allowed to appear and cases of workmen are to be dealt with either by themselver or through their representatives who may be the office bearers of the workers Union. It is not the case that the remedy of writ petition is provided free of costs. It is not the case that the remedy of writ petition is provided free of costs. On the contrary the litigation by way of writ petitions before this court is costly as the advocates charges fees as well as the other expenses are also heavy in comparison to the litigation before the Labour Court and Industrials Tribunals. Another justification given that the Labour Court or Industrial Tribunal takes years together for disposal of the cases and their decisions are further subject to appeals and ultimate recourse to this Court under Arts. 226/227 of the Constitution is hardly of any substance. The litigation here in this Court also equally takes long time in disposal thereof. The present cases themselves are example of that. The petitions have been filed in the year 1997, i. e. after about 13 years. It is understandable that in case this Court is able to dispose of the matters within few months or within a year, then there may be some justification in the aforesaid syaing of the petitioners, but where this Court itself takes years together to decide the matters, how far it is justified for the petitioners to approach this Court directly under Art. 226 of the Constitution in case where efficacious alternative remedy has been provided to them under statute. It is not that where the petitions of the year 1983 only are pending before this Court, but still the petitions of the year 1970s and 1980s are pending before this Court. Another grievance that the decision of the Labour court or Industrial Tribunal is subject to appeal and ultimate recourse to this Court under arts. 226 or 227 of the Constitution is concerned, it is suffice to say that the decision of this Court in the petition filed under Arts. 226 or 227 of the Constitution is also subject to appeal, i. e. LPA and then further appeal before the Honble Supreme Court. Apart from this, merely because decision of an authority is subject to appeals, the statutory remedies providing alternative remedies cannot be allowed to be bye passed or circumvented. 226 or 227 of the Constitution is also subject to appeal, i. e. LPA and then further appeal before the Honble Supreme Court. Apart from this, merely because decision of an authority is subject to appeals, the statutory remedies providing alternative remedies cannot be allowed to be bye passed or circumvented. The legislature would have been aware of the position of law that the decision given by the labour Court or Industrial Tribunal may be subject to appeal or ultimate recourse to this court under Art. 226/227 of the Constitution or the Honble Supreme Court under Art. 136 of the Constitution and still a specific provision has been made providing a redressal forum for adjudication of industrial disputes under the Act, 1947. The other reason given is equally of without any substance. The petitioners have come up with the case that they have to spent in the said litigation more than what ultimately or eventually they would gain, but nothing material has been produced on this point nor it is understandable how this impression, the petitioners are carrying. As stated earlier, the remedy provided under the industrial legislation is cheaper and effective comparing to other remedies provided by way of civil suit or petition under Art. 226 of the Constitution. Naturally the Act, 1947 has been enacted by Parliament for the benefits of low paid workmen and that remedy has been provided though other remedies were available, knowing well in its wisdom that it is cheaper and speedy remedy for this class of persons. ( 11 ) NORMALLY this Court would not interfere directly in the writ jurisdiction resorted by the petitioners without having recourse to alternative remedy available under the statute. In such case, this Court directs the parties to have recourse to the alternative remedy available under the statute. Where adequate remedy can be read in statute, plea of resorting to writ remedy under Art. 226 or 227 of the Constitution must be discouraged. Reference in this respect may have to the decision of Honble Supreme court in the case of Shyam Kishore vs. Municipal Corporation, Delhi, reported in 1993 (1) SCC 22 . Where adequate remedy can be read in statute, plea of resorting to writ remedy under Art. 226 or 227 of the Constitution must be discouraged. Reference in this respect may have to the decision of Honble Supreme court in the case of Shyam Kishore vs. Municipal Corporation, Delhi, reported in 1993 (1) SCC 22 . For adjudication of the dispute regarding violation of Sec. 25f of the Act 1947, alleged to be made while terminating the services of the petitioners, the effective remedy is by way of raising of industrial dispute and a reference thereof to the Labour court or Industrial Tribunal. That remedy is more effective and lesser time consuming and cheaper. There the parties have sufficient opportunity to produce the evidence on the question of facts in the form of oral and documentary evidence. There are many questions of fact in such matters which can only be adjudicated by taking evidence of the parties. In the writ jurisdiction this Court does not take the evidence nor the dispute questions of facts can be gone into by this Court under Art. 226 of the Constitution of India. ( 12 ) IN the matter where the grievance has been made that the retrenchment has been made of the workmen without making compliance of the provisions of Sec. 25-F of the act, 1947, is a question of fact and since in order to arrive at a conclusion or for recording a finding, some investigation/enquiry that has to be embarked upon, would be beyond purview of Art. 226 of the Constitution of India. In the case of K. D. Rashid vs. Income- tax Investigation Commission and Ors. , reported in AIR 1954 SC 207 , the Apex Court has observed that the remedy provided for in Art. 226 of the Constitution is a discretion remedy and the High Court has always the discretion to refuse to grant any writ if it is. . . that the aggrieved party can have an adequate of suitable relief elsewhere. The next case to be referred is Union of India vs. T. R. Verma, reported in AIR 1957 SC 882 . In this case the service of the respondent therein was terminated and challenge has been made to the order of termination of services by the respondent by filing a writ petition under Art. 226 of the Constitution before the Punjab High Court. In this case the service of the respondent therein was terminated and challenge has been made to the order of termination of services by the respondent by filing a writ petition under Art. 226 of the Constitution before the Punjab High Court. The High Court has accepted the special Civil Application. The Union of India appealed to the Honble Supreme Court and the judgment of the High Court was set aside by the Apex Court on the ground of availability of alternative remedy and in this connection, I would like to refer to the observation as made by Apex Court. It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ, but as observed by this Court in Rashid Ahmed vs. Municipal Board, Kairana, 1950 SCR 566 = air 1950 SC 163 (A) "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. " ( 13 ) IN the case of State of U. P. vs. Mohammed Nooh, reported in AIR 1958 SC 86 , the Apex Court has observed that "the fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decision of inferior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. " ( 14 ) THE case of Basant Kumar Sarkar and Ors. vs. Eagle Rolling Mills Ltd. and Ors. , reported in AIR 1964 SC 1260 , also relate to an industrial dispute and as such. I would like to refer to the facts giving rise to this case. " ( 14 ) THE case of Basant Kumar Sarkar and Ors. vs. Eagle Rolling Mills Ltd. and Ors. , reported in AIR 1964 SC 1260 , also relate to an industrial dispute and as such. I would like to refer to the facts giving rise to this case. In the said case, the validity of Sec. 1 (3) of the Employees State Insurance Act, 1948 was challenged before the Patna High Court by the workmen of the Company on the ground that the aforesaid section was violative of art. 14 of Constitution and suffers from the vice of excessive delegation. Certain notices were issued to the workmen curtailing their benefits. The validity of the Act was upheld but the Apex Court held that the proper course for the workmen was to challenge the notices and the circulars under Sec. 10 of the Industrial Disputes Act or under Secs. 74 and 75 of the Employees State Insurance Act, 1948. In this observations of the Apex court:"before we part with these appeals, there is one more point to which reference must be made. We have already mentioned that after the notification was issued under Sec. 1 (3) by respondent No. 3 appointing August 28, 1960 as the date on which some of the provisions of the Act should come into force in certain areas of the State of Bihar, the Chief Executive Officer of respondent no. 1 issued notices giving effect to the State Governments notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the High Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that the respondent No. 1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the scheme which had been brought into force under the Act. The High Court has held that the question as to whether the notices and circulars issued by the respondent No. 1 were invalid, could not be considered under Art. 226 of the constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under Sec. 10 of the Industrial Disputes Act. It is true that the powers conferred on the High Courts uder Art. 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can taken in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said recourse to Sec. 10 of the Industrial Disputes Act, or seek relief, if possible under Secs. 74 and 75 of the Act. " ( 15 ) THE remedy provided for violation of Chapter 5a of the Act, 1947 in the Act itself is effective and efficacious remedy. The other contention is that it is a discretion of the State Government to make reference or may not make a reference under Sec. 10 of the act, 1947, and as such it cannot be said to be effective and efficacious alternative remedy. The further grievance is that since no time limit has been fixed under Sec. 10 of the Act, 1947 for referring a dispute and as such, the said remedy is not effective remedy and the remedy appears to be illusory. In the case of Premier Automobiles Ltd. vs. Kamlakar santa Ram and Ors. , reported in AIR 1975 SC 2238 , the Apex Court has observed that, "persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under Sec. 10 on the ground of expedience is not a relevant consideration in this regard. The possibility that the Government may not ultimately refer an industrial dispute under Sec. 10 on the ground of expedience is not a relevant consideration in this regard. " It is true that there may be occasions when the appropriate Government may not refer the dispute expeditiously for its adjudication to the Industrial Redressal Forum, but if considerable delay is made, there is remedy to the affected person to approach this Court in the writ jurisdiction and this Court may issue writ in the nature of Mandamus, directing the appropriate Government to perform statutory obligation conferred on it. The Industrial Disputes Act, 1947 is a special statute which has been enacted by Parliament for settling industrial disputes through conciliation and if not possible, then by the Labour Court/tribunal constituted under the Act, and also to reduce the field of conflict between the workmen on one hand and the management on the other, in order to increase industrial growth of the country. This statute is a self-contained statute and provides complete procedure and even machinery has been provided for recovering the money due from the employer to the employee and a reference in this respect may have to the provisions of Sec. 33-C of the Act, 1947. The justification given to approach directly to this Court that in the present case the statutory provisions have been breached by the respondents and as such, to get all things right by intervention of this Court they have approached this Court directly without availing the alternative remedy available, is hardly of any substance. Even where the question is raised as to breach of statutory provisions in making termination of services of the petitioners, the same is also a question of fact which requires investigation. Even in the cases where a plea has been taken that the orders are wholly without jurisdiction and are passed in flagrant violation of principles of natural justice, there may not be any justification in the action of the petitioners to approach this Court directly where statutory alternative remedy is available. The question whether the principles of natural justice have been complied with before passing the impugned orders or not at well whether the order is without jurisdiction, are also essentially questions of fact and require investigation before reaching conclusion and that investigation or inquiry, in my view, is normally beyond the scope of art. The question whether the principles of natural justice have been complied with before passing the impugned orders or not at well whether the order is without jurisdiction, are also essentially questions of fact and require investigation before reaching conclusion and that investigation or inquiry, in my view, is normally beyond the scope of art. 226 of the Constitution of India and these questions can be suitably and effectively agitated and adjudicated upon by the Labour Court or Industrial Tribunal constituted under the Act, 1947, as the case may be, to which reference is made, on the basis of evidence adduced by parties. I am therefore, of the opinion that where grievance has been made against the order of termination of services of workmen on the ground of violation of statutory provisions or principles of Natural Justice or lack of jurisdiction, in such cases, normally the rule for workmen should be to avail alternative remedy provided under statute and entertainment of writ petition by this Court under Art. 226 of the Constitution of India without exhausting remedies should be with great care and caution and in very exceptional cases. So that alternative efficacious remedy was available to the petitioners in the matter but they have chosen to approach this Court directly under Art. 226 of the Constitution of India for which I do not find any justification or any reasonable cause. The reasons which have been given by the petitioners to justify their action to approach this Court directly under Art. 226 of the constitution circumventing the alternative remedy available to them under the Act, 1947, are hardly of any substance. However, this petitions have been filed in the year 1983 and at this stage now if the petitioners are relegated to the remedy of raising industrial dispute, it may not be proper course, moreso when there is no dispute that some of the petitioners have completed 240 days in twelve calendar months preceding the date of termination and while terminating their services, the provisions of Sec. 25-F of the Act, 1947 have not been complied with. This course is adopted in this case in the peculiar facts of the case, otherwise this Court, even at this stage may decline to exercise its discretion in. . . . matter where alternative efficacious remedy is available under the statute. ( 16 ) RE. This course is adopted in this case in the peculiar facts of the case, otherwise this Court, even at this stage may decline to exercise its discretion in. . . . matter where alternative efficacious remedy is available under the statute. ( 16 ) RE. : Construction of Dam, by State Government through Irrigation Department, is sovereign function : in support of this contention, the learned Counsel for the respondents placed reliance on decision of Honble Supreme Court in the case of Chief Conservator Forests and Anr. vs. Jagannath Maruti Kondhare and Ors. , reported in 1996 (2) SCC 293 and of this Court in the case of Vinodrai N. Ratnotar vs. State of Gujarat, reported in 1993 (2) GLR 1490 . While dealing with the question of exclusion of sovereign functions of the State from the scope of industry, the Honble Supreme Court has observed as under :"12 We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign functions does not really exist, it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao, case (JT 1994 (5) SC 572 ). As per the decision in this case, one of the tests to detemine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in courts of law. It was stated by Sahai, J. 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. They are, therefore, not amenable to the jurisdiction or ordinary Civil Court inasmuch as the State is immune from being sued in such matters. But then, according to this decision the immunity ends there. It was then observed that in a 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. Because of this the demarcating line between sovereign and non-sovereign powers has largely disappeared. 16. Because of this the demarcating line between sovereign and non-sovereign powers has largely disappeared. 16. The aforesaid being the crux of the scheme to implement which some of the respondents were employed, we are of the view that the same cannot be regarded as a part of inalienable or inescapable function of the State for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. We are in no doubt that such work could well be undertaken by an agency which is not required to be even an instrumentality of the State. ( 17 ) THIS being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of the sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar District. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants. " in the case of Vinodrai N. Ratnotar vs. State of Gujarat, (supra), the facts were that the petitioner therein was appointed for a period of three months as a workcharge peon by an order passed by Dy. Secretary, (Department of Industries, Mines and Energy Board ). On expiry of his tenure, he was once again appointed with effect from 1st February 1981, for 29 days. Thereafter he was again appointed for a period of three months. So in the similar manner, different orders passed on different dates continued to be issued keeping the petitioner in employment. The dispute arose when the petitioner was ordered to be relieved with effect from 23rd April, 1984. The case of the petitioner was that his retrenchment was illegal and void ab initio, as it has been made without complying with provisions of Sec. 25-F of the Act, 1947. The main thrust of the submissions of the learned Counsel for the petitioner was that. . . . . Department of Industries. Mines and power is an industry within the meaning of Industrial Disputes Act, 1947 and for this reason the provisions of Sec. 25-F would apply to the petitioner who was a workman within the meaning of the said Act. . . . . Department of Industries. Mines and power is an industry within the meaning of Industrial Disputes Act, 1947 and for this reason the provisions of Sec. 25-F would apply to the petitioner who was a workman within the meaning of the said Act. In paras 9 and 10 of this judgment, this Court has observed thus :"in the facts of the present case we are of the opinion that the Government function of administration cannot possibly be regarded to be a welfare activity or an economic adventure undertaken by the Government. Administration, particularly in the field of implementing the policy of the State Government is relation to industries and with a particular view to monitor, regulate and encourage such industrie, within the framework of the existing law, is undoubtedly a sovereign function, which is one of the recognised exceptions, as discussed in the various decisions of the Supreme Court referred to hereinabove. We must also turn down the contention of the learned Counsel for the petitioner that even if such an administrative function can be regarded to be a sovereign function, the Department of Industries, Mines and Power, where the petitioner was serving, amounts to forming a part of the group of industries to which service is rendered by the administration, and thus, is severable from the notable exception of the sovereign function. We have already discussed hereinabove that, merely because the administration is aimed at the industries of the State does not make such administration an industrial activity. Furthermore, merly because the petitioner was posted at the relevant point of time in the Department of Industries, Mines and Power does not counter the fact that he was part of the administrative staff of the Government Secretariat and, therefore, part of the administration. "17. This case is clearly distinguishable as the petitioners were employed on a project of construction of Dam by Irrigation Department and not in a Department where administration functions with regard to the Irrigation Department were carried on. Moreover, this issue was directly there in the case of PWD Employees Union vs. State of Gujarat, (supra), where the Court had occasion to consider whether the activities of the Government of construction of Dam by its Department are- sovereign functions or not. Moreover, this issue was directly there in the case of PWD Employees Union vs. State of Gujarat, (supra), where the Court had occasion to consider whether the activities of the Government of construction of Dam by its Department are- sovereign functions or not. The matter is squarely covered under the aforesaid decision of this Court and as such, the second preliminary objection raised by the learned Counsel for the respondents is not tenable and cannot be accepted. The said decision is discussed in detail hereinbelow. ( 18 ) BEFORE the proceeding to decide the matter on merits, I consider it to be appropriate to first make a reference to the decisions on which the learned Counsel for the petitioners placed reliance in support of his contentions. The first decision relied upon by the learned Counsel for the petitioners is of this Court in the case of PWD Employees union vs. State of Gujarat, reported in 1986 0 GLH 1024 . The question for consideration before this Court in the aforesaid case was as to whether the daily rated workers on the nominal muster roll of the Public Works Department (Irrigation) engaged for the purpose of diverse works in connection with construction and maintenance of medium size irrigation dam undertaken by the State Government can be said to be workmen within the definition of the term as given in Sec. 2 (s) of the Act 1947. Further question for consideration was whether for the construction and maintenance of the irrigation dams, was the State Government an industry within the meaning of Sec. 2 (j) of the Act, 1947. The Deputy Executive Engineer, incharge of different divisions of the Project, engaged from time to time, daily rated workers under the oral orders and the petitioners were engaged, except the Union. The petitioners services were terminated and as such, they filed alongwith Union, a writ petition before this Court challenging their termination. The terminations have been impugned broadly on two grounds, namely these were bad in law and void ab initio, inasumch as they passed in clear violation of mandatory provisions contained in Sec. 25-F of the Act, 1947 and secondly in any case, they were arbitrary and discriminatory and therefore violative of Arts. 14 and 16 of the Constitution of India. The terminations have been impugned broadly on two grounds, namely these were bad in law and void ab initio, inasumch as they passed in clear violation of mandatory provisions contained in Sec. 25-F of the Act, 1947 and secondly in any case, they were arbitrary and discriminatory and therefore violative of Arts. 14 and 16 of the Constitution of India. The contention of the respondent therein was that the construction and maintenance of the dam cannot be said to be an industry and therefore beyond purview of the Act, 1947, because it is in exercise of sovereign functions that the State undertakes construction of dam for the purpose of irrigation in pursuance of legislative entry No. 17 of list 2 of schedule 7 of the Constitution and secondly that the petitioners being daily rated workers engaged for casual purpose 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 job for which they were engaged. Relying on three Supreme Court decisions, namely Bangalore Water Supply vs. A. Rajappa, air 1978 SC 549, Corporation of the City of Nagpur vs. Its Employees, air 1960 SC 675 , and The State of Bombay vs. Hospital Majdoor Sabha, AIR 1960 SC 610 , it was held that the work of construction and maintenance of irrigation of dams by the State government is industry within the meaning of Sec. 2 (j) of the Act 1947 and on the second question also, the Court has decided the matter in favour of the petitioners and they were held to be workmen. It was found to be a case where the services of the petitioners were terminated without making compliance of the provisions of Sec. 25f and as such, the termination of the services was declared to be illegal and termination orders were quashed and set aside. ( 19 ) THE next case is of Punjab and Haryana High Court in the case of The Kapurthala central Co-operative Bank Ltd. , Kapurthala vs. The Presiding Officer, Labour Court, julundur and Ors. , reported in 1984 (II) Labour and Industrial Cases, 974. ( 19 ) THE next case is of Punjab and Haryana High Court in the case of The Kapurthala central Co-operative Bank Ltd. , Kapurthala vs. The Presiding Officer, Labour Court, julundur and Ors. , reported in 1984 (II) Labour and Industrial Cases, 974. That was a case where the Court has found it to be a case of unfair labour practice, though the workmen have not completed 240 days in the twelve calendar months preceding the date of termination. The Court has held that the practice of retrenching workmen, who worked for years in order to frustrate his attaining rights under Chapter VA of the Act 1947, is unfair labour practice, unless there are reason with the employer, with regard to the conduct and services of the workmen be unsatisfactory. That case is of little help to the petitioner as the services of many of the petitioners were terminated after completion of 240 days, in the present case. ( 20 ) IN the case of Ramasamuz Nursing Upadhyaya vs. Vinubhai M. Mitra, reported in 1982 (II) LLJ 186, the question before the Bombay High Court was that the adjudication of lay off compensation of the amount payable as retrenchment compensation merely on the ground that during some years in a long period of services, the workman had not worked for 240 days, is correct or not. The petitioner in this case was in employment of respondent-Mill between January 1945 and April 1975. He tendered his resignation in the month of April 1975, under voluntary, retirement scheme. On retirement, the Company paid the petitioner, an amount of Rs. 3,260/- towards the retrenchment compensation, whereas the petitioner claimed that he was entitled for a sum of Rs. 8,800/ -. To recover the balance amount, the petitioner therein filed application under Sec. 33 (C) (2) of the Act 1947 before the Labour Court. Prayer has been made that he is entitled for retrenchment compensation as per the provisions of Sec. 25-F of the Act, 1947. The application was resisted by the Management. The contention was that the petitioners services were interrupted, as the petitioner left the services in the year 1958 and was re-employed. Prayer has been made that he is entitled for retrenchment compensation as per the provisions of Sec. 25-F of the Act, 1947. The application was resisted by the Management. The contention was that the petitioners services were interrupted, as the petitioner left the services in the year 1958 and was re-employed. It has further been contended that the petitioner has not worked for a period of 240 days every year in the years 1948, 1958, 1965, 1967, 1971 and 1974, and as such, he could not be deemed to be in continued services as contemplated by Sec. 25-B of the Act, 1947. The Labour Court has accepted the claim of the management that the petitioner did not work for a period of 240 days every year in eight years during the services. The claim of the petitioner made, that he was in continued services was not accepted. The Court considered the matter in the facts of the case and held that the mere fact that during some years in his long period, the workman had not worked for 240 days is not a sufficient answer to deprive him the retrenchment compensation by ignoring the entire period. The contingency which demands the workers to work for a period of 240 days as provided by Sub-sec. (2) of Sec. 25-B of the Act, 1947 would come into play provided the workman is not in continued services as required under Sec. 25-B (i) of the act, 1947. That case is also hardly of any help to the petitioners because the question therein was altogether different than that which has been raised by the petitioners in these special Civil Application. . ( 21 ) THE last case is of the Honble Supreme Court in the case of The Workmen of american Express International Banking Corporation vs. The Management of American express International Banking Corporation, reported in 1985 (2) LLJ, 539. The question for consideration in the aforesaid case was, "whether the Sundays and other holidays should be treated days of actual Work". The Honble Supreme Court held in that case that, "sec. 25-F of the Act, 1947 is plainly intended to give relief to retrenched workmen. The question for consideration in the aforesaid case was, "whether the Sundays and other holidays should be treated days of actual Work". The Honble Supreme Court held in that case that, "sec. 25-F of the Act, 1947 is plainly intended to give relief to retrenched workmen. The expression "actually worked under the employer" cannot mean those, days only when the workmen worked with the hammer, sickle or pen but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express of implied contract of service or by compulsion of statute, standing orders, etc. The explanation to Sec. 25-B (2) is only clarificatory and cannot be used to limit the expense of the main provision. It cannot be said that only those days which are mentioned in the explanation should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked, though he had not so worked and not other days". If the expression, "actually worked under the employer" is capable of comprehending the days during which the workman was in employment and was paid wages, there is no reason as to why the expression should be limited by the explanation. Any other meaning to the expression "actually worked under the employer" would frustrate the object of Sec. 25-F. So the ratio laid down by the honble Supreme Court in the said case is that Sundays and other holidays shoud be treated days of "actual work" for the workman who had been paid wages either under express or implied contract of service or by compulsion of statute. So only in those cases of employment, where the employer has to pay wages to the employee for Sundays and other holidays,under express or implied contract of service or by compulsion of statute, for computation of 240 days service within twelve months preceding the date of termination, Sundays and weekly holidays can be counted, but not in other cases. In the present case admittedly, the petitioners were appointed on daily wages. So thay have been paid for the days on which they worked but there is nothing on record, produced, by the petitioners that there was express or implied contract for payment of wages for Sundays and holidays. In the present case admittedly, the petitioners were appointed on daily wages. So thay have been paid for the days on which they worked but there is nothing on record, produced, by the petitioners that there was express or implied contract for payment of wages for Sundays and holidays. The petitioners have also not made reference to any statute under which statutory obligation was put upon the employer to pay wages to the petitioners, the daily wagers, for Sundays and other holidays. ( 22 ) THERE is no dispute that the petitioner Nos. 1, 6, 8, 10, 13 and 17 in Special Civil application No. 3006 of 1983, have worked for 240 days during twelve months preceding the date of termination, and further as stated earlier, there is also no dispute that while terminating their services, the respondents have not made compliance of provisions of sec. 25f of the Act 1947. So the termination of these petitioners is void ab initio. Similarly, there is no dispute that the petitioners is Special Civil Application No. 4174 of 1983 have also worked for more than 240 days during the twelve months preceding the date of termination and while terminating their services also, the respondents have not complied with provisions of Sec. 25f of the Act 1947. The other petitioners in Special civil Application No. 3006 of 1983 have not completed 240 days in twelve months preceding the date of termination and as such, while terminating their services, compliance of provisions of Sec. 25-F of the Act 1947 was not required to be made. Therefore, on the ground as alleged by the petitioners, their termination cannot be kccepted to be void ab initio, or illegal. The contention of the learned Counsel for the petitioners, that as these petitioners have completed 240 days in earlier years their termination was illegal and void ab initio, cannot be accepted. Sec. 25-F of the Act, 1947 is required to be complied with only where the workmen concerned has worked for more than 240 days during the twelve months preceding the date of termination. So the writ petition of the petitioner Nos. 4, 5, 7, 9, 11, 12, 14, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31, is dismissed as they have not completed 240 days work in twelve months preceding the date of their termination. So the writ petition of the petitioner Nos. 4, 5, 7, 9, 11, 12, 14, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31, is dismissed as they have not completed 240 days work in twelve months preceding the date of their termination. ( 23 ) NOW I may advert to the contention of the learned Counsel for the respondents that the relief of reinstatment should not be granted as the project on which the petitioners were engaged has already come to an end in the year 1986. In support of this contention, the learned Counsel for the respondents placed reliance on decision of the Honble supreme Court in the case of State of Himachal Pradesh vs. Suresh Kumar Verma, reported in AIR 1996 SC 1565 . It is advantageous to reporduce the judgment of the honble Supreme Court in the aforesaid case :"2. We have heard the counsel on both sides. This appeal by special leave arises from the orders passed by the High Court of Himachal Pradesh. In this case in CWP No. 722/93 dated 10. 9. 1993, the Division Bench of the High court has disposed of the matters on the ground that the respondents were engaged as Assistant Development Officers on daily wages pursuant to the direction by it. It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments, shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules. 3. It is seen that the project in which the respondents were engaged had come to an end and that, therefore, they have necessarily been terminated for want of work. The Court cannot give any directions to re-engage them in any other work or appoint them against existing vacancies. Otherwise, the judicial process would become other mode of recruitment dehors, the Rules. 4. Mr. The Court cannot give any directions to re-engage them in any other work or appoint them against existing vacancies. Otherwise, the judicial process would become other mode of recruitment dehors, the Rules. 4. Mr. Mahabir Singh, learned Counsel for the respondents contended that there was an admission in the counter- affidavit filed in the High Court that there were vacancies and that, therefore, the respondents are entitled to be continued in service. We do not agree with the contention. The vacancies required to be filed up in accordance with the rules and all the candidates who would otherwise be eligible are entitled to apply for when recruitment is made and seek consideration of their claims on merit according to the Rules for direct recruitment along with all the eligible candidates. The appointment on daily wages cannot be a conduit pipe for regular appointments which would be back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. It is equally settled law that even for Class iv employees recruitment according to rules is a pre-condition. 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. One temporary employee cannot be replaced by another temporary employee. 5. Under these circumstances, the view of the High Court is not correct. It is accordingly set aside. It is mentioned that the respondents have become overaged by now. If they apply for any regular appointment by which time if they become barred by age, the State is directed to consider necessary relaxation of their age to the extent of their period of service on daily wages and then to consider their cases according to rules, if they are otherwise eligible. 6. The appeal is accordingly allowed. No costs. Appeal Allowed"further reference in this respect may. . . decisions of Honble Supreme Court in the case of State of Himachal Pradesh vs. Ashwani Kumar and Ors. , and in the case of State of himachal Pradesh vs. Nodha Ram Ors. , both reported in JT 1996 (1) SC pg. 214 and 220 respectively. In these cases, the Honble Surpeme Court has observed as under :"3. . . decisions of Honble Supreme Court in the case of State of Himachal Pradesh vs. Ashwani Kumar and Ors. , and in the case of State of himachal Pradesh vs. Nodha Ram Ors. , both reported in JT 1996 (1) SC pg. 214 and 220 respectively. In these cases, the Honble Surpeme Court has observed as under :"3. The facts are that the respondents were engaged on daily wages on muster roll basis in Central Scheme and were paid out of the funds provided by the central Government. It is stated that after the scheme was closed their services were dispensed with. When the respondents filed the writ petition in the High Court, the High Court have interim direction dated 6the January, 1993 and directed them to be re-engaged elsewhere. Pursuant to the interim direction the writ petition came to be disposed of on March 9, 1993. Thus this appeal by special leave. 4. It is seen that when the project is completed and closed due to non-availability of funds, consequently, the employees have to go along with the closed project. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor directions be given to create posts by the State to a non- existent establishment, the Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them in spite of non-availability of the work. We are of considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside. " ( 24 ) THE learned Counsel for the petitioners, as stated earlier, admitted that the project work, i. e. construction of Karjan Dam has already come to an end, i. e. the work has already been completed. So in view of this fact, I find sufficient merits in the contention of the learned Counsel for the respondents that the relief of reinstatement should not be granted in favour of the petitioners. So in view of this fact, I find sufficient merits in the contention of the learned Counsel for the respondents that the relief of reinstatement should not be granted in favour of the petitioners. As the Honble Supreme Court in the case of State of himachal Pradesh vs. Suresh Kumar Verma, (Supra) has held that appointment on daily wage basis is not an appointment to a post according to rules, the Court cannot give any directions, to create employment for the petitioners or re-engage them in any work or appoint them against existing vacancies. Such directions, as observed by the Honble supreme Court, would become other mode of recruitment dehors, the rules. But at the same time, the petitioners who have completed 240 days in twleve months preceding the date of termination was void ab initio, and as such, at appropriate time, in case the matter would have been decided, then there would have been possibility of reinstatement of these persons in service, may be on daily wages. In the facts and circumstances of this case, interest of justice will be met in case the respondents ore directed to pay to petitioner Nos. 1, 6, 8, 10, 13, and 17 in Special Civil Application No. 3006 of 1983, full back wages for the period from the date of their termination of their services till the date of completion of project work of Karjan Dam and equal amount as compensation in lieu of reinstatement. These petitioners were daily wagers and therefore the wages for the purpose of calculation of the amount to be paid as back wages and compensation in lieu of reinstatement cannot be taken to be 365 days. However, it is also equally difficult to find out the actual days of work of these petitioners during the period in dispute. Interest of justice will be met in case, for the purpose of working out and calculation of the amount of backwages and the compensation in lieu of reinstatement, their actual working days from 21st June, 1982 to 20th June, 1983 are taken as base. The actual working days of these petitioners have been given by respondents in the anneuire to further affidavit-in-reply, which is at page 54, and the same may be taken for the purpose of working out and the calculation of the aforesaid amount. The actual working days of these petitioners have been given by respondents in the anneuire to further affidavit-in-reply, which is at page 54, and the same may be taken for the purpose of working out and the calculation of the aforesaid amount. ( 25 ) SIMILARLY, the petitioners in Special Civil Application No. 4174 of 1983 are also entitled for the same relief. However, in their cases, the period of working was given out by the petitioners from the date of employment till the date of their termination and as such, it is difficult to conclude for how many days they have actually worked during the twelve months preceding the date of their termination. In their cases, interest of justice will be met in case, for the purpose of working out and the calculation of backwages and the amount of compensation in lieu of reinstatement, their working days be taken to be 240 days in twelve months or one year. ( 26 ) THE aforesaid two components of amounts to be paid to these petitioners are to be worked out and determined on the aforesaid basis. In the result, these Special Civil applications are disposed of in aforesaid terms. Rule stands discharged in Special Civil application No. 3006 of 1983 so far as the petitioner Nos. 4, 5, 7, 9, 11, 12, 14, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 are concerned. Rule is made absolute in aforesaid terms so far as petitioner Nos. 1, 6, 8, 10, 13 and 17 in Special Civil Application no. 3006 of 1983 are concerned. Rule in Special Civil Application No. 4174 of 1983 is made absolute in aforesaid terms. No order as to costs. .