RAJENDRA MENON, J. ( 1 ) THE petition has been filed by the conservator of Forest Shivpuri Circle, shivpuri in the award Annexure P-1 dated 10/04/2000 passed by the Labour Court No. 2, Gwalior. The Respondent No. 1 who was working as a Driver on daily wages (muster roll) under the establishment of the petitioner filed an application under the provisions of industrial Disputes Act, 1947 inter alia ; contending that he had been working as a driver in the establishment of the petitioners with effect from 31/08/1988. His services have been orally dispensed with on 22/07/1993. His termination is illegal and as the provisions of Section 25-F of the Industrial disputes Act have not been complied with and as the termination is without giving any opportunity of hearing, without conducting enquiry, the same amounts to retrenchment and the retrenchment being in contravention of section 25-F is illegal. Conciliation proceedings having ended in failure, the appropriate Government referred the dispute for adjudication to the Labour Court No. 2, gwalior. Before the Labour Court, the respondent employee filed his statement of claim and submitted the same averments which were putforth by him before the Conciliation officer. The petitioner filed his reply vide annexure P-3. They denied the fact that the respondent was continuously employed. It was contended by them that he was only a muster roll employee working as and when required. It was submitted by them that the termination is legal and no relief can be granted to the employee. ( 2 ) HOWEVER, on the basis of the evidence produced before it is the Labour Court came to the conclusion that the termination amounts to retrenchment and as same is without complying with the mandatory provisions of Section 25-F, the termination is illegal and directed for reinstatement of the respondent employee with full back wages. The aforesaid has been impugned in the present petition. ( 3 ) SHRI J. D. Suryavanshi, learned counsel for the petitioner placing reliance on a judgment of the Supreme Court in the case of state of Gujarat and others v. Pratamsing 4 narsinh Parmar, 2002 (3) SCC 269 : contended that as Forest department has been held not to be an Industry, the award is unsustainable. ( 3 ) SHRI J. D. Suryavanshi, learned counsel for the petitioner placing reliance on a judgment of the Supreme Court in the case of state of Gujarat and others v. Pratamsing 4 narsinh Parmar, 2002 (3) SCC 269 : contended that as Forest department has been held not to be an Industry, the award is unsustainable. That apart, it is submitted by him that the burden of proving that the Department is an Industry is on the respondent workman and as he has not established the same, the award is unsustainable. However, submission of learned counsel for the petitioner is that the respondent employee was a daily wage labourer and therefore the provisions of Industrial Disputes act are not applicable. ( 4 ) REFUTING the aforesaid submissions, shri Prashant Sharma learned counsel appearing for respondent no. 1 employee submits that when the reference was made after conciliation proceedings no objection was raised by the petitioners to the fact that the establishment of the petitioners is not an industry or that the provisions of Industrial disputes Act are not applicable to the said establishment. It is argued by him that the reference was with regard to the justification of the action taken by the petitioners. That being so, it was for the petitioners to justify their action and in case it was their objection that the industrial Disputes Act does not apply, the specific objection should have been raised and evidence should have been led to establish the activities of the petitioners establishment and show that it is not an Industry. Referring to the various statutory provisions with regard to laws formulated in the State of Madhya Pradesh for the purpose of carrying on the activities of the forest department, it is argued by Shri Sharma that activities of the petitioners establishment is an Industry. He also invites attention to a judgment of the Supreme Court in the case of chief Conservator of Forest v. Jaganath Maruti kondhare and others, AIR 1996 SC 2898 : 1986 (2) SCC 293 in support of his contention. He also invites attention to a judgment of the Supreme Court in the case of chief Conservator of Forest v. Jaganath Maruti kondhare and others, AIR 1996 SC 2898 : 1986 (2) SCC 293 in support of his contention. It is further submitted by Shri sharma that without leading any evidence and without producing any material before the labour Court, submissions made before this court in a petition under Article 227 of the constitution cannot be a ground far interfering into an award passed on the basis of evidence and material produced by the Respondent employee before the Labour Court. It is his contention that in view of the above, no case warranting interference is made out. ( 5 ) I have heard learned counsel for the parties. Admittedly, in the present case the dispute was referred for adjudication under the provisions of Industrial Disputes Act, 1947 on the basis of failure of conciliation report; After the dispute was referred for adjudication, the records indicate that statement of claim annexure P-2 was failed by the respondent employee and reply thereof Annexure P-3 was submitted by the petitioner Department. Thereafter, the Respondent employee entered the witness box and govern his own statement. However, on behalf of the petitioners no evidence was led before the Labour Court. Even in the written statement Annexure P-3 there is no assertion with regard to the fact that the activities of the petitioners establishment is not an Industry or that the provisions of industrial Disputes Act are not applicable. Once dispute is referred for adjudication under the provisions of Industrial Disputes Act, the question as to whether the establishment, is an industry or not, the employee is working and other aspects of the matter are matters of fact which have to be asserted, pleaded and proved by leading appropriate evidence before the labour Court where the reference is being adjudicated. In the present case, there is nothing on record to indicate that any such objection raised or evidence was led to establish that the petitioners establishment is not an industry and the provisions of Industrial disputes Act are not applicable in their case. ( 6 ) ON the contrary the petitioners submitted to the jurisdiction of the Labour court and resisted the dispute on merit. ( 6 ) ON the contrary the petitioners submitted to the jurisdiction of the Labour court and resisted the dispute on merit. That -apart, the fact as to whether the establishment" of the petitioners is an Industry is a matter of fact and the same has to be proved by leading evidence. That being so, the said question cannot be adjudicated for the first time in a petition under Article 227 of the Constitution. Reliance placed by the learned counsel on the judgment of the Supreme Court in the case of pratamsingh Narsinh Parmar (supra) is clearly distinguishable. That was a case where directly a petition under Article 226 was filed in the high Court challenging the termination of service by the employee on the ground that the termination in violation of Section 25-F is illegal. While considering the same Supreme court has observed that it was for the employee petitioner in that case to plead and establish before the High Court that the Forest department is an Industry. The said case which arose out of a petition under Article 226 cannot apply in the facts and circumstances of the present case where after conciliation proceedings, the dispute was referred for adjudication under the Industrial Disputes Act and the petitioners Department have not raised any objection with regard to applicability of the provisions of Industrial Disputes Act nor have they led any evidence to show that the activities do not come within the purview of Industry as defined under the provisions of Industrial disputes Act. In that view of the matter, the law laid down by the Supreme Court in the case of Jaganath Maruti Kondhare (supra) wherein it has been held by three Judges of the Supreme court that activities of the Forest Department is an Industry and in which reliance has been placed on an earlier judgment of the Supreme court in the case of Bangalore Water Supply and sewerage Board v. A. Rajappa, AIR 1978 SC 548 : 1978 (2) SCC 213 has to be followed. In view of the aforesaid it is to be held that the petitioners having failed to prove by adducing adequate evidence before the Labour Court that the petitioners establishment is not an Industry they cannot be permitted to take the aforesaid stand for the first time in this Petition under Article 227 of the constitution. In view of the aforesaid it is to be held that the petitioners having failed to prove by adducing adequate evidence before the Labour Court that the petitioners establishment is not an Industry they cannot be permitted to take the aforesaid stand for the first time in this Petition under Article 227 of the constitution. If it was their case that the activities being undertaken by them does not ; come within the purview of "industry" then the ' same should have been pleaded and established by leading evidence. There is nothing on record even in the present petition before this Court to establish this aspect of the matter. ( 7 ) A perusal of the award in question annexure P-l dated 10/04/2000 goes to indicate that on the basis of evidence adduced by the respondent employee, the Labour Court has come to the conclusion that he has been in i continuous employment from 31/08/1988 to 22/07/1993 when his services were orally terminated and during the aforesaid period as he has been in continuous employment for a period of one year as contemplated under section 25-B of the Industrial Disputes Act, 1947 and having worked for 240 days in a calendar year, the termination being in violation of the provisions of the Section 25-F of the Industrial Disputes Act is illegal. It is the considered view of this Court that on the basis of the records, in the facts and circumstances of the present case, a finding of fact based on evidence and material which have come on record and the petitioners department having failed to avail the opportunity available to them before the Labour Court for adducing evidence challenging such finding of fact in a petition under Article 227 of the Constitution is unsustainable. In that view of the matter, I find no merit warranting interference in a petition under Article 227 of the Constitution. ( 8 ) ACCORDINGLY the petition being devoid of any substance is dismissed. .