RAVI R. TRIPATHI, J. ( 1 ) THE present petition is filed by an employee against the judgement and award dated 8. 1. 2001 in reference (LCK) No. 245 of 1999. The learned Judge was pleased to reject the reference. At the first hearing, learned counsel appearing for the petitioner pointed out that the judgement and award passed by the same learned judge in Reference (LCK) No. 246 of 1999 dated 7. 1. 2001. The learned advocate for the petitioner has produced the facts of both the cases in form of comparative table in para. 3. 3 and pointed out that there was hardly any difference in the facts of these two cases and still for no express reason in one case the reference was allowed and reinstatement was ordered with continuity of service in the case of present petitioner the reference was rejected. The matter is serious enough for being referred to on administrative side to the learned Judge who looks after the Labour Courts. The same is being done by a separate order. However, by an order dated 1. 8. 2001, this Court issued notice returnable on 13. 8. 2001 for final disposal of the petition and it was made clear that the respondent was not asked for time and shall come prepare with affidavit in reply if any they want to file on the said date. The order-sheet reveals that inspite of the aforesaid order, the matter could not be heard and disposed of on that day and it was required to be adjourned on number of occasions thereafter. On 6. 11. 2001, this Court (Coram : Mr. K. M. Mehta,j.) passed an order to the effect that, " (para. 3) Ms. Nandini Joshi learned AGP states that against the said award dated 7. 1. 2001 passed by the Labour Court in Reference (LCK) no. 246 of 1999, the Government has filed Special Civil application No. 11346 of 2000 and the matter is pending. " The learned Judge was pleased to record the request made by Mr. Adeshra learned advocate for the petitioner that it will be interest of justice if both the matters are heard together. The learned Judge was pleased to direct the Office to place Special Civil application No. 11346 of 2000 along with this matter and the matter was adjourned to 29. 11. 2001. Adeshra learned advocate for the petitioner that it will be interest of justice if both the matters are heard together. The learned Judge was pleased to direct the Office to place Special Civil application No. 11346 of 2000 along with this matter and the matter was adjourned to 29. 11. 2001. ( 2 ) AGAIN the matter went on being adjourned and it was only on 16. 1. 2002 that the matter came up before this court. The Court passed a detailed order wherein it was recorded that other Special Civil Application No. 11346 of 2000 was rejected by this Court (Coram : Mr. P. B. Majumdar,j.) on 1. 10. 2001. The said fact was noticed only when the papers of Special Civil Application No. 11346 of 2000 were called for. It is also recorded in the order that learned AGP Mr. R. V. Desai was not equipped with this information though incidently Mr. Desai himself appeared in that other Special Civil application No. 11346 of 2000. It is also recorded that mr. Desai did not have any information as to whether the letters Patent Appeal is preferred against the order passed in Special Civil Application No. 11346 of 2000 dated 1. 10. 2001 rejecting that petition. In view of the aforesaid facts, on 16. 1. 2002 the court passed the following order : Para. 5taking into consideration glaring facts of this case, it is directed that respondent authority shall forthwith reinstate the present petitioner and report compliance of the same on or before 30. 1. 2002. Adjourned to 31. 1. 2002. Direct service is permitted. "the aforesaid order was not complied with initially, but thereafter the same is complied with and the petitioner workman is reinstated in service. The matter is taken up for hearing today at the request of learned AGP. Till today, a Letters Patent Appeal is not filed against the order passed in Special Civil application No. 11346 of 2000. Mr. Desai learned AGP informs the Court that sanction is granted and Letters patent Appeal is in process of being filed. He submitted that this matter be heard and decided on its own merits as in this case the petitioner workman is reinstated in service in compliance of the order of this Court dated 16. 1. 2002. ( 3 ) MR. Desai learned AGP informs the Court that sanction is granted and Letters patent Appeal is in process of being filed. He submitted that this matter be heard and decided on its own merits as in this case the petitioner workman is reinstated in service in compliance of the order of this Court dated 16. 1. 2002. ( 3 ) MR. Adeshra learned advocate appearing for the petitioner submitted that the petitioner was employed as a daily wager (Chowkidar) in the year 1983 and he was continuously in service for long 16 years until he was terminated by an oral order in the year 1999 without any rhyme or reason. Mr. Adeshra, the learned advocate submitted that the petitioner workman was constrained to approach the Labour Court, Kalol by filing a Reference (LCK) No. 245 of 1999. The said Reference is rejected in a very cursory manner without assigning any tenable reasons for the rejection. Mr. Adeshra, learned advocate submitted that, in a case having identical facts, the learned Judge of the Labour Court has granted reinstatement to other coemployee and a petition filed against the said judgement and award of the Labour Court is dismissed and till date, no Letters Patent Appeal is filed by the State. Mr. Adeshra, learned advocate submitted that the petitioner workman had contended before the Labour Court that he was working for last 16 years, continuously, as Chowkidar with the respondent authority, and on 15. 2. 1999 when the petitioner went to the place of work, he was not allowed to work and his services were terminated by an oral order. Mr. Adeshra submitted that, the respondent Authorities before the labour Court had contended that as there was no permanent establishment created by the Government for the work which the petitioner workman was discharging and there being no permanent post there was no necessity to continue the workman. The workman had not worked continuously. It was a temporary post and daily wagers were called for and as per the rules and regulations they were paid. It was also contended that the workman had never made any demand before filing the present application (Reference ). On completion of the season, on account of recession in the work, the workman had stopped coming to work. For all these reasons, the reference is required to be rejected. It was also contended that the workman had never made any demand before filing the present application (Reference ). On completion of the season, on account of recession in the work, the workman had stopped coming to work. For all these reasons, the reference is required to be rejected. The learned Judge after appreciating the case of both the sides held that the workman is not able to produce any written evidence to prove that for last 16 years he was working on a permanent post. That he has admitted in his statement of claim and in the deposition that he was employed as a daily wager and in his cross-examination he had admitted that at present no daily wager workman is working on the canal and on this ground, the reference of the workman is rejected. ( 4 ) MR. Adeshra, learned advocate for the petitioner workman submitted that the duties which were discharged by the petitioner are set out in para. 6 of the petition. Which are :"the petitioner was doing several kinds of work viz. (a) work of Chowkidar, (b) work of clerk (c) preventing farmers to take water from canal without permission from the authority (d) ensuring timely supply of water to farmers who had been granted permission by the Competent Authority (e) preventing damage to canal by anybody (f) doing labour work for repairing the canal (g) preparation of Mangana Patraka (h) to collect application forms from farmers regarding their demand for supply of water in the season (i) to physically carry out the measurement of crops in relation to the forms filled up by the farmers in the said regard and record the same in Field Book (j) to prepare statements showing the amounts received from farmers (k) to prepare a daily report of use of water for irrigation and (l) to colour the maps and plans as per the instructions etc. "mr. Adeshra, the learned advocate submitted that in view of this, it was the duty of the learned Judge of the Labour Court to call upon the Authorities to produce the relevant material pertaining to these duties so as to ascertain as to whether for long 16 years the petitioner workman remained a daily wager. If the answer is in affirmative then this is nothing but a clear case of exploitation by the State. Mr. If the answer is in affirmative then this is nothing but a clear case of exploitation by the State. Mr. Adeshra submitted that the State is otherwise supposed to be an "ideal Employer" and if the State is exploiting the labourer like this, it is not only against the relevant provisions of Labour laws on the point but also against the spirit of the constitution of India. ( 5 ) MR. Adeshra submitted that in the case of that other coemployee, a copy of the judgement and award of that case is produced at Annexure-B to this petition, the learned Judge has appreciated the same facts by stating that, "in this case, one fact is undisputed that the workman was working as daily wager and the Institution has not denied the same nor the Institution has denied that the workman was working for 16 years and that the workman was employed only for the season and no such appointment letter is given. The Institution has also not given the letter to the workman stating that on completion of the season, he will stand automatically terminated. The Institution has not produced any evidence to show as to on what basis the workman was appointed and how was he terminated. No documentary evidence is produced by the Institution. . . . " The learned judge has then recorded that, "the Institution has failed to prove its case in absence of the evidence", and has then granted reinstatement without backwages. ( 6 ) MR. Adeshra submitted that the learned Judge of the Labour Court has given two diverse judgements and awards in same set of facts. He submitted that the learned Judge was right in holding that the Authorities were not able to prove their case. When a person is working with a particular Authority for long 16 years, discharging number of duties narrated in para. 6 of the petition, it would have been simple for the Authority to dislodge the claim of the petitioner / claimant by producing the relevant record and showing that at no point of time, place the petitioner workman has worked and in the records no writing and/or noting supporting the case of the petitioner workman is found. ( 7 ) MR. ( 7 ) MR. Adeshra submitted that it was the case of the petitioner workman that the Authorities had manipulated the record to deprive the petitioner workman of his right of regularization. It was specific case of the petitioner workman that he had worked for 240 days in all years except the year 1987-1988. The Authorities could have proved by presenting relevant material before the Court that the case of the petitioner workman is not supported by any documentary evidence. It was the case of the petitioner workman that he had signed the muster roll and was paid salary on the basis of such muster rolls on vouchers. If that relevant record would have been produced before the Labour Court, the case would have been over and the Authorities could have succeeded by proving their case. ( 8 ) THE learned advocate also submitted that the institution / Authorities are under an obligation to prepare the seniority list of daily wagers under the formate which is produced at Annexure-C to this petition. The Authorities have not produced the record pertaining to that so that it could have been ascertained as to whether the name of the petitioner ever existed in that particular record. RESUMED ON 17/4/2002. A specific contention is raised in this regard in para. 10 of the petition. The same is not replied by the authority by filing a reply to the same. ( 9 ) THE learned AGP appearing for respondents nos. 1 and 2 submitted that the judgement and award of the labour Court is in accordance with law and, therefore, the same is not required to be interfered with by this court. He also submitted that the respondent herein is a government department and is not an "industry". He submitted that besides a reply was filed before the labour Court vide Exh. 8 wherein it was contended that the petitioner was working as Rozamdar workman and, therefore, he is not entitled to any relief under the act. The learned AGP submitted that the Division Bench of this Court in its decision which is reported in 2000 (1) GLH 482 has held that the government Department is not an industry. 8 wherein it was contended that the petitioner was working as Rozamdar workman and, therefore, he is not entitled to any relief under the act. The learned AGP submitted that the Division Bench of this Court in its decision which is reported in 2000 (1) GLH 482 has held that the government Department is not an industry. The said contention is replied by the learned advocate appearing for the petitioner by saying that this contention ought to have been raised before the labour Court so that a finding could have been recorded on this point, which the Department has not chosen. ( 10 ) THE perusal of the aforesaid decision reveals that the Division Bench has relied upon a decision of the honble Supreme Court in the matter of Executive Engineer (State of Karnataka) v. K. Somasetty, reported in 1997 air SCW 2627. In the said judgement the Honble the supreme Court has referred to two earlier judgements in the matter between Union of India v. Jai Narayan Singh, reported in 1995 Supp. (4) SCC 672 and in the matter of state of H. P. v. Suresh Kumar Verma, reported in (1996) 2 JT SC 455. The Division Bench has quoted a paragraph from the judgement of the Honble Supreme Court in the case of Executive Engineer (State of Karnataka) (supra) which reads as under :"the function of public welfare of the State is a sovereign function. It is the constitutional mandate under the Directive Principles that the Government should bring about welfare State by all executives and legislative actions. Under these circumstances, the State is not an industry under the Industrial Disputes Act. Even otherwise, since the Project has been closed, the respondent has no right to the post since he had been appointed on daily wages. "10. 1 the Division Bench has thereafter proceeded to appreciate the facts of the case on hand, and having found that, "as observed by the Division Bench, while deciding Letters Patent Appeal held that daily worker who has continuously worked for more than 240 days, is entitled to the benefits of pension. Such a situation being not present in the instant case, therefore, following the Division Benchs judgement, this Letters patent Appeal must be dismissed, and is hereby dismissed. "10. Such a situation being not present in the instant case, therefore, following the Division Benchs judgement, this Letters patent Appeal must be dismissed, and is hereby dismissed. "10. 2 in the light of these observations, it cannot be said that the Division Bench has laid down an absolute proposition of law that, "all Government Departments are not Industry". Without any hesitation one can say that, this is a mixed question of law and facts and, therefore, the Department ought to have raised this contention before the Labour Court so that a finding could have been recorded. 10. 3 in the present case in para. 4 of the affidavit in reply the deponent has stated like this, "i further submit that, however, present petitioner has contended that in the identical matter the same Labour Court in the matter of Mr. N. M. Parmar (LCK) No. 246 of 1999 has allowed the reference and directed the present respondent / State Authority to take him back in the employment. " this does not take the case of the respondent any further. ( 11 ) THE learned AGP also contended that it is an admitted fact that the petitioner was a daily wager, engaged for doing seasonal work only, but then learned agp is not able to point out any material on the basis of which he is stating that this fact is an admitted one. The petitioner has narrated the duties discharged by him in para. 6 of the petition and said para. 6 is not replied in particular in the affidavit in reply. As discussed hereinabove, the Department has not produced any material before the Labour Court to controvert the contention raised by the petitioner. Learned AGP relied upon the judgements of the Honble the Supreme Court reported in air 1996 SC 1565 and 1997 SCC Vol. 4 88 to contend that when it is a matter of a daily wager, the Court cannot issue directions to regularize. In this case the question of issuing directions to regularize a daily wager does not arise inasmuch as the Department has not controverted the contentions raised by the petitioner before the Labour Court and, therefore, it is not correct to say that the petitioner is admittedly a daily wager. In this case the question of issuing directions to regularize a daily wager does not arise inasmuch as the Department has not controverted the contentions raised by the petitioner before the Labour Court and, therefore, it is not correct to say that the petitioner is admittedly a daily wager. He also submitted that law of retrenchment is not applicable to the petitioner and for that he relied upon one judgement of the Honble the Supreme Court reported in AIR 1997 SC 3657 and one judgment of this Court reported in 1998 (1) GLR 231 . Learned AGP is neither able to point out any relevant part from any of these authorities nor he is able to point out as to how these decisions are applicable to the facts of the present case. ( 12 ) THE deponent - one Mr. M. U. Patel, Deputy executive Engineer, Sabarmati Canal Planning and Design Sub division, Visnagar has stated in para. 6 as under :-"i further say and submit that as against the award passed in reference (LCK) No. 246 of 1999 in the matter of Shri N. M. Parmar the State has preferred petition (S. C. A.) No. 11346 of 2000 and surprisingly the said petition as such is dismissed by this Honble Court (Coram : Mr. P. B. Majmudar, J.) on 1. 10. 2001 on the ground that the workman has put up 16 years of service and the scope of this Court is limited under Articles 226 and 227 of the Constitution of India for interference with the findings of the Labour Court. "12. 1 learned AGP is not able to explain as to why the deponent should feel surprised of a petition being dismissed by this Court. The petition was dismissed on 1. 10. 2001 and till 17. 4. 2002, the learned AGP has not challenged the said order by filing the Letters Patent appeal. The expression used by the deponent that, he was surprised on the dismissal of the petition is not a happy expression, the learned AGP should convey the feelings of the Court and should also instruct the deponent that he shall be careful in future in using any such loose expressions. ( 13 ) THE deponent has stated in para. 7 of the affidavit in reply that before 30. 1. ( 13 ) THE deponent has stated in para. 7 of the affidavit in reply that before 30. 1. 2002 the Department was not able to prefer a Letters Patent Appeal inspite of best efforts. The position has remained unchanged as till date learned AGP is not able to say as to whether letters Patent Appeal is preferred or not. If preferred, what is the order passed therein. Mr. Desai submitted that the directions for reinstatement in the matter of rozamdar can be issued only against the regular vacant post for which he places reliance upon the decision of the Honble the Supreme Court reported in AIR 1996 SC 1565 . Without pointing out the applicability of the decision to the facts of the present case, citing a judgement of the Honble Supreme Court, is of no consequence. The deponent has said in the affidavit in reply that, "i further submit that in catena of decisions, thereafter also said view is expressed by the honble Supreme Court. I further submit that it is not true that the respondent has put up 16 years of service as alleged in the statement of claim". This "catena of decisions" does not come forward effectively. ( 14 ) AS observed hereinabove, this is a case wherein the Department did not take an opportunity before the labour Court to lead the necessary evidence and to controvert the case of petitioner workman. The learned judge of the Labour Court on identical facts takes a different view of the matter and allows one reference and rejects the other. Learned AGP is not able to point out the difference in the facts of these two cases, that of the petitioner and Shri N. M. Parmar in the matter of reference (LCK) No. 246 of 1999. ( 15 ) IN view of the above, present petition deserves to be allowed and the same is hereby allowed. The judgement and award (Annexure-A) of the Labour Court in reference (LCK) No. 245 of 1999 is hereby quashed and set aside. The respondent Authorities are directed to continue the petitioner, as the petitioner is already reinstated in view of the order of this Court dated 16. 1. 2002 on his original post with continuity of service. So far as the backwages is concerned, learned advocate Mr. The respondent Authorities are directed to continue the petitioner, as the petitioner is already reinstated in view of the order of this Court dated 16. 1. 2002 on his original post with continuity of service. So far as the backwages is concerned, learned advocate Mr. Adeshra fairly conceded that in the identical matter the Labour Court has not granted any backwages and, therefore, he will not be able to press for the same. Taking into consideration that the petitioner is getting his livelihood by way of service, no order is made towards the backwages. Rule is made absolute with no order as to costs. .