Judgment : ALTAMAS KABIR, CJ. ( 1 ) THESE two appeals arise out of two writ petitions, being CWJC No. 6138 of 1996- R and cwjc No. 4803 of 1997-R, disposed of by a common judgment dated June 24, 2003, passed by a learned single Judge of this Court. The respondents in CWJC No. 6138 of 1996-R had invoked the provisions of the Industrial disputes Act, 1947, for regularisation of their services. According to the said respondents, they were all workmen appointed between the years 1980 to 1983 on daily wages under the executive Engineer, Water Resources, irrigation Department, Irrigation Division, deoghar in various capacities, such as chowkidars, Night Guard, Typists, Tracers, helpers, etc. It was also their case that they had continuously rendered service as permanent staff, but had not been given the benefits and status of permanent employees, nor were they being paid as per the principles of equal pay for equal work. Consequently, these workmen invoked the provisions of the Industrial disputes Act, 1947, and the matter was referred for adjudication to the Presiding officer, Labour Court, at Bhagalpur and was registered as Reference Case No. 14 of 1987. While the aforesaid reference was pending, the executive Engineer terminated the services of the workmen with effect from June 1, 1995 without taking any leave from the Presiding officer. The said orderpassed on April 29, 1995 was subsequently challenged in the same reference case before the Labour Court at bhagalpur. After hearing the parties, the labour Court held that the said order was in violation of the provisions of the Industrial disputes Act, 1947. The reference itself was thereafter, taken up and the Presiding Officer passed his award on December 20, 1995, holding that the 46 concerned workmen who had appeared in the reference were eligible to become permanent with effect from one year after their initial appointment as daily rated workmen and that they were also entitled to all the facilities admissible to a Government servant. ( 2 ) WHILE CWJC No. 6138 of 1996-R has been filed by the State of Bihar (now jharkhand) challenging the award, CWJC No. 4803 of 1997-R has been filed by the workmen for implementation of the said award dated december 20, 1995. ( 3 ) AS indicated hereinabove, the learned single Judge heard both the matters together and disposed of the same by a common judgment dated June 24, 2003. ( 3 ) AS indicated hereinabove, the learned single Judge heard both the matters together and disposed of the same by a common judgment dated June 24, 2003. The learned single Judge recorded the fact that the Labour court had accepted the case made out on behalf of the workmen that having worked continuously since the date of their respective appointments beyond a period of 240 days, the said employees had acquired the status of permanent employees as per the provisions of section 25-B of the Industrial Disputes Act, 1947. The Labour Court also recorded the fact that the three employees, namely, Haldhar mandal, Raghuveer Yadav and Ganga Mahato, who were similarly circumstanced, had already been made permanent. Having recorded the aforesaid fact, the learned single Judge recorded further that the findings were based on evidence, which could not be upset by a Writ court in exercise of jurisdiction under Article 226 of the Constitution. The learned single judge was also of the view that the award of the Labour Court was neither mala fide, nor perverse and for the said reasons, dismissed the writ petition filed by the State of Bihar, now jharkhand, and allowed the writ petition filed by the workmen with a direction to the respondents therein to forthwith implement the award. ( 4 ) DURING the course of hearing of the matter before the learned single Judge, learned counsel for the respondent-workmen pointed out that although the operation of the award had not been stayed, the respondents had refused to implement the award which had led to the filing of a contempt petition. Thereafter, the respondents partially implemented the award by giving the workmen the status of work charged employees, but did not give them permanent status with consequential benefits as directed by the award. In the said background, the learned single Judge directed that the respondents were to strictly abide by the award of the Labour Court on all counts. The State of bihar (now Jharkhand) had preferred both the appeals mainly on a ground, which does not appear to have been canvassed before the learned single Judge. ( 5 ) AT this stage, it may be indicated that out of 46 workmen who had contested the reference, some are now employees with the state of Bihar and consequently, the State of bihar was also granted leave to intervene in the appeals. ( 5 ) AT this stage, it may be indicated that out of 46 workmen who had contested the reference, some are now employees with the state of Bihar and consequently, the State of bihar was also granted leave to intervene in the appeals. ( 6 ) APPEARING on behalf of the appellant in both the appeals, Ms. I. Senchaudhury, submitted that the learned single Judge had not independently considered evidence available in choosing not to interfere with the award passed by the Labour Court at Bhagalpur. Ms. Senchaudhury submitted that the learned single judge had overlooked the fact that the Labour court while making the award had given weightage only to the statements made on behalf of the workmen, but had chosen to ignore the fact that the workmen had failed to produce the records and/or evidence in support of their appointments against sanctioned posts or that their duties were against such sanctioned posts. ( 7 ) MS. Senchaudhury submitted that since the workmen had not been appointed against sanctioned posts, the question of their regularisation did not arise. It was at this stage that Ms. Senchaudhury took the point of jurisdiction, which appears not to have been urged either before the Labour Court, or the learned single Judge. It was submitted that the employees in the Irrigation Department of the government were not workmen within the meaning of the Industrial Disputes Act, 1947 and that such view had been expressed by the Honble supreme Court in the case of Executive Engineer (State of Karnataka) v. K. Somasetty and others air 1997 SC 2663 : 1997 (5) SCC 434 : 1997 2 LLJ 698 . Ms. Senchaudhury submitted that in the said judgment it had been observed that it was the well-settled legal position that the Irrigation Department and the telecommunication Department were not industries within the meaning of the definition under the Industrial Disputes Act, 1947 as was supposedly held in the Union of India v. Jai narain Singh 1995 Supp (4) SCC 672 : 1996 2 LLJ 750 ; and in the State of H. P. v. Suresh Kumar Verma AIR 1996 SC 1565 : 1996 (7) SCC 562 . Ms. Ms. Senchaudhury pointed out that in the aforesaid decision, the Honble supreme Court had observed that the function of public welfare of a State is a sovereign function and it is the constitutional mandate under the directive Principles, that the Government should bring about a Welfare State by executive and legislative actions. Under such circumstances, the State is not an industry under the Industrial disputes Act, 1947. ( 8 ) REFERRING to the oft-repeated decision of the Honble Supreme Court in the case of bangalore Water Supply and Sewerage Board v. A. Rajappa AIR 1978 SC 548 : 1978 (2) SCC 213 : 1978 1 LLJ 349 . Ms. Senchaudhury submitted that as had been observed by the honble Supreme Court in the case of the executive Engineer (State of Karnataka) v. K. Somasetty and others (supra), sovereign functions strictly understood qualify for exemption and "irrigation" being a sovereign functions, it must be held to be outside the purview of industry within the meaning of section 2 (j) of the Industrial Disputes Act, 1947. Ms. Senchaudhury contended that neither the Labour Court nor the learned single judge had either considered or decided the question as to whether the Irrigation department is an industry and whether the reference was at all maintainable. Ms. Senchaudhury also contended that since the reference before the Labour Court was confided to the question as to whether the respondent-workmen were eligible to become permanent, the Labour Court went beyond the terms of reference in holding that the order of termination of the workmen passed on April 29, 1985 during the pendency of the reference was in violation of the provisions of the industrial Disputes Act, 1947. ( 9 ) AT this juncture, it will be profitable to record the submissions made by Mr. Bimal kumar, learned senior counsel appearing for the State of Bihar. ( 10 ) IT may be recollected that some of the 46 workmen had since been employed by the state of Bihar having regard whereof leave had been granted to the State of Bihar to intervene in these appeals. Mr. Bimal kumar, learned senior counsel appearing for the State of Bihar. ( 10 ) IT may be recollected that some of the 46 workmen had since been employed by the state of Bihar having regard whereof leave had been granted to the State of Bihar to intervene in these appeals. Mr. Bimal Kumar submitted that several similar matters had been taken up, first by the Patna High Court and, thereafter, by the Honble Supreme Court, and while disposing of SLP (C) No. 16781 of 2000 and analogous cases on October 30, 2000, the honble Supreme Court had dealt with the scheme prepared by the State Government dated June 18, 1993 and directed the State government to act accordingly. Mr. Kumar submitted that the case of the respondents in the instant case were similar to those of the similarly placed employees involved in SLP (C) No. 16781 of 2000 and cases analogous thereto. Mr. Bimal Kumar submitted that since the Irrigation Department of the State government had been held not to be an industry within the meaning of Section 2 (j) of the Industrial Disputes Act, 1947, the very basis of the award passed by the Labour Court at Bhagalpur stood eroded. In other words, according to Mr. Kumar, the award passed by the Labour Court at Bhagalpur was not capable of being implemented. Mr. Kumar, therefore, contended that the present set of private respondents could, at best, be equated with those workmen involved in SLP (C) No. 16781 of 2000 and their case could also be considered in terms of the scheme of the State Government dated June 18, 1993. ( 11 ) MR. Kumar submitted that although the question as to whether the Irrigation department of the Government was an industry or not had not been decided either by the Labour Court and/or the learned single judge, the decision of the Honble Supreme court that the Irrigation Department of the government was not an industry could not be ignored and a decision in the instant appeals would have to be given in the light of the said decision of the Honble Supreme Court. ( 12 ) IN addition to her earlier submissions, ms. Senchaudhury also adopted Mr. Kumars submissions in support of her contention that the award passed by the Labour Court at bhagalpur was infructuous and could not be implemented. ( 12 ) IN addition to her earlier submissions, ms. Senchaudhury also adopted Mr. Kumars submissions in support of her contention that the award passed by the Labour Court at bhagalpur was infructuous and could not be implemented. ( 13 ) OPPOSING the submissions made on behalf of the State of Bihar and the State of jharkhand, Mr. Jai Shankar Burnwal, learned advocate appearing for the workmen in the appeal arising from CWJC No. 4803 of 1997-R, contended that the objection now being sought to be taken on behalf of the appellant and the State of Bihar regarding the status of the Irrigation Department as an industry within the meaning of Section 2 (j) of the Industrial Disputes Act, 1947, could have been taken by the appellant and the State of bihar when the dispute raised by the workmen had been referred under Section 10 of the aforesaid Act to the Labour Court for adjudication. On the other hand, when raising such objection, the State of Bihar itself took recourse to the provisions of Section 25-F of the Industrial Disputes Act, 1947, in terminating the services of the workmen concerned while the reference was pending. Mr. Burnwal submitted that having themselves invoke the provisions of the Industrial Disputes act, 1947, and having submitted to the order of reference, without raising any objection thereto, it did not lie in the mouth of either the state of Bihar or the State of Jharkhand to raise such objection when not only had the award been passed, but had been successfully defended before the learned single Judge. ( 14 ) MR. Burnwal submitted that the cases of the workmen which had gone up to the Apex court could not be compared and/or equated with the case of the private respondents in these appeals, since in the instant case, there was an award of the Labour Court, which was not available to those workmen whose cases had gone upto the Honble Supreme Court and in whose cases directions had been given to apply the scheme of regularisation of June 18, 1993. ( 15 ) MR. ( 15 ) MR. Burnwal then contended that the decision of the Honble Supreme Court in the case of Executive Engineer (State of karnataka) v. Somasetty and others (supra), did not, in fact, lay down any proposition that the Irrigation Department of the Government was not an industry, but merely made such observation in passing. In fact, in the said decision, no attempt had been made to analyse whether the Irrigation Department of the government was an industry or not, but upon a reference to two other judgments, which, in fact, did not apply to the facts of the case, the court made an observation that the Irrigation department was not an Industry. Mr. Burnwal submitted that, on the other hand, the said question had fallen for full deliberation before a Full Bench of the Patna High Court in the case of Bijoy Kumar Bharti v. State of Bihar and others 1984 1 LLJ 214 (Pat) and upon placing reliance on the judgment of the Honble supreme Court in the case of Bangalore Water supply and Sewerage Board (supra), it was held in no uncertain terms that the Irrigation department, as also the swing of the Health department were industries. In fact, on an analysis of the decision of the Honble Supreme court in the Bangalore Water Supply and sewerage Board case (supra), it was observed that in the department, there is a systematic activity organized by the State Government and its employees for satisfying the need of irrigation, supply of electricity, protection from flood; for supplying the most of the i aforesaid facilities, people have to pay charges. As such, it has to be held that such activities for satisfying human needs are analogous to trade and commerce. It was held that there could, therefore, be no escape from the conclusion that the Department of Irrigation would be deemed to be an industry within the meaning of the Industrial Disputes Act, 1947. ( 16 ) MR. Burnwal submitted that in the light of the said Full Bench decision, the award of the Labour Court must be held to be valid and binding on the parties. ( 17 ) MR. Aparesh Kumar Singh who appeared for the private respondents in LPA no. 903 of 2003, while agreeing with Mr. ( 16 ) MR. Burnwal submitted that in the light of the said Full Bench decision, the award of the Labour Court must be held to be valid and binding on the parties. ( 17 ) MR. Aparesh Kumar Singh who appeared for the private respondents in LPA no. 903 of 2003, while agreeing with Mr. Burnwals submissions, added a new dimension to the submissions by urging that having once elected to proceed under provisions of the Industrial Disputes Act, 1947, it was no longer open to the appellant and/or the State of Bihar to take a different stand in the appeals. Relying on the doctrine of election as applicable in the law of estoppel, Mr. Singh referred to the treatise of SPENCER BOWAR and turner on the LAW RELATING TO ESTOPPEL BY representation, wherein the learned authors observed that when a person is confronted with two alternatives and mutually exclusive courses of action in relation to a dealing between which he may make his election and such person conducts himself as reasonably to induce the other to believe that he is intending definitely to adopt the one course and definitely to reject or relinquish the other and the second person in such belief alters his position to his detriment, the former is precluded as against the latter from afterwards resorting to the course, which he had deliberately declared his intention of rejecting. In fact, what was being explained was nothing different from the law of estoppel by representation. ( 18 ) IN support of his aforesaid submissions, Mr. Singh referred to and relied on the decision of the Honble Supreme Court in the case of M. I. Builders Pvt. Ltd. v. Radhey shyam Sahu and others AIR 1999 SC 2468 : 1999 (6) SCC 464 , in which the concept of estoppel by pleading was sought to be advanced and reference was made to the earlier decision of the Honble Supreme Court in the well-known case of Union of India v. Anglo afghan Agencies AIR 1968 SC 718 . ( 19 ) ON the submissions made by Ms. Senchaudhury regarding the manner in which the Labour Court had held the order of termination to be violative of the provisions of the Industrial Disputes Act, 1947, Mr. ( 19 ) ON the submissions made by Ms. Senchaudhury regarding the manner in which the Labour Court had held the order of termination to be violative of the provisions of the Industrial Disputes Act, 1947, Mr. Singh urged that there was no ambiguity that during the pendency of any reference, no employer could alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings. Mr. Singh referred to and relied on the decision of the Honble Supreme Court in the case of jaipur Zila Sahakari Bhoomi Vikas Bank limited v. Ram Gopal Sharma AIR 2002 SC 643 : 2002 (2) SCC 244 : 20024- LLJ-834 which was a case dealing with the proviso to section 33 of the Industrial Disputes Act, 1947, wherein the principles of Section 33 and in particular, the proviso to Section 33 (2) (b) were explained. ( 20 ) MR. Singh submitted that the decision in the case of Executive Engineer (State of karnataka) v. K. Somasetty and others (supra), on which much reliance had been placed both on behalf of the State of Bihar and the State of jharkhand, was not based on any independent finding, but on two previous decisions of the honble Supreme Court, which did not have any occasion to consider the question as to whether the Irrigation Department of the government was an industry or not, as has been done in the cases of Bangalore Water Supply and Sewerage Board and Bijoy Kumar Bharti (supra ). Mr. Singh pointed out that while the decision in Jainarain Singhs case (supra) was with regard to the Central Ground-water board, the other decision in the case of State of h. P. v. Suresh Kumar Verma (supra), did not in fact, deal with such point at all, but only with regard to the question regarding the status of the workers appointed on daily wage. Mr. Singh submitted that in the circumstances in which the decision in the case of Executive engineer (supra), was rendered by the Honble supreme Court, the same could not be taken to be an authority on the question, but was only an obiter. ( 21 ) HAVING considered the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Jai Shankar Burnwal and Mr. ( 21 ) HAVING considered the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Jai Shankar Burnwal and Mr. Aparesh Kumar Singh that having taken recourse to the provisions of the industrial Disputes Act, 1947, it was no longer open either to the State of Bihar or the State of jharkhand to subsequently contend that the provisions of the said Act would have no application to the facts of the case on the ground that the Irrigation Department of the government was not an industry as is now being sought to be contended on the basis of a judgment rendered by the Honble Supreme court wherein no decision as such had been arrived at regarding the status of the Irrigation department of the Government being an industry. We are inclined to agree with Mr. Aparesh Kumar Singh that the observation made by the Honble Supreme Court with regard to the status of the Irrigation Department of the Government in the case of the Executive engineer (State of Karnataka) v. K. Somasetty and others (supra), was in fact, in the nature of an obiter and not a finding based on an analysis of the said proposition. We have also taken note of the fact that in making the aforesaid observation, the Honble Supreme Court referred to two decisions, which, in fact, did not decide the said issue. On the other hand, the matter had been considered by the Honble supreme Court in the Bangalore Water Supply and Sewerage Board case (supra), where it was held that the Irrigation Department was an industry within the meaning of the Industrial disputes Act, 1947. The said question had also fallen for consideration before a Full Bench of the Patna High Court in Bijoy Kumar Bharti s case (supra), where relying on the decision of the Honble Supreme Court in the Bangalore water Supply and Sewerage Board case, the full Bench concluded that on the basis of the guidelines laid down by the Honble Supreme court in the said case, the Irrigation department of the Government must be deemed to be an industry within the meaning of the aforesaid Act. ( 22 ) AS far as Mr. ( 22 ) AS far as Mr. Kumars submissions are concerned, we are unable to equate the facts of this case with those which had been decided by the Honble Supreme Court where a direction had been given to dispose of the matter in accordance with the scheme prepared by the State Government dated June 18, 1993. In the instant case an award under the Industrial disputes Act, 1947, has intervened and has been upheld by the learned single Judge and we see no reason to differ with the learned single judge on such count. Since the award has not been challenged either on the ground of lack of jurisdiction, mala fides or perversity, we are not prepared to take a different view in the matter, although, Ms. Senchaudhury strenuously urged that the learned single Judge had not considered the evidence available on the record. ( 23 ) WE are also unable to accept Ms. Senchaudhurys submissions that the Labour court had acted beyond the reference in holding that the order of termination of the services of the workmen during the pendency of the reference was in violation to the provisions of Section 33 of the Industrial disputes Act, 1947. In fact, in our view, the labour Court had correctly exercised its jurisdiction in holding the said order to be bad having regard to the pendency of the reference as to the status of the workmen. ( 24 ) IN our view, since the position regarding the status of the Irrigation department of the Government as an industry had been decided by the Honble Supreme court and the Full Bench of the Patna High court in Bangalore Water Supply and sewerage Board (supra), and Bijoy Kumar bharti (supra), it is no longer available to the state of Bihar and the State of Jharkhand to contend that the award could not be implemented. ( 25 ) ALTHOUGH, an attempt has been made on behalf of the appellant and the State of Bihar to contend that the Irrigation Department was not an industry within the meaning of the industrial Disputes Act, 1947, it has to be borne in mind that both the States had in part implemented the award. Of course, it has been submitted by Mr. Of course, it has been submitted by Mr. Kumar that the said partial implementation was on account of the contempt proceedings which had been filed, but having once chosen to accept the award even partially, it is no longer available to the appellant or the state of Bihar to sound a different note and claim that the award could not be implemented. ( 26 ) FOR the reasons aforesaid, the appeals must fail and are dismissed. However, there will be no order as to costs. --- *** --- .