JUDGMENT : 1. Petitioner has challenged the award dated 15.4.2002 passed by the learned Presiding Officer, Labour Court, Jeypore in Industrial Dispute Case No. 24/2001 directing reinstatement of the opposite party with full back wages. 2. Opposite party was appointed as a cook under the Petitioner (management) with effect from 29.3.1997_and continued as such till 12.8.1999 with intermittent break where after his service was terminated. He raised a demand for being reinstated before the Conciliation Officer. The conciliation effort having failed, the State Government by exercising its power u/s 10(1)(c) of the Industrial Disputes Act, 1947 (in short I.D. Act) made a reference to the Industrial Tribunal, Jeypore as to whether the termination of service of the Opp. party with effect from 13.8.1999 was legal and/or justified and if not what relief he was entitled to? 3. Opp. party in his written statement before the Industrial Tribunal stated that on 29.3.1997 he was appointed as a cook on ad hoc basis in the scale of pay of Rs. 750-940/- per month by the Petitioner in his establishment, a Project of the Soil Conservation Department under the Government of Orissa, which undertook to carry out plantation work and to train people in that line to achieve goal. It also undertook Small Water Shed Project. The work of opp. party was perennial in nature. He was engaged by the Petitioner from time to time as mentioned below and was refused employment from 13.8.1999. Sl. No. Order No./Date Period of engagement No of days 1. 813/7.4.97 29.3.97 to 25.6.97 89 days 2. 3013/19.7.97 19.7.97 to 15.10.97 89 days 3. 3569/29.10.97 29.10.97 to 25.1.98 89 days 4. 2215/19.3.98 19.3.98 to 1.5.98 44 days 5. 2686/6.5.98 6.5.98 to 18.6.98 44 days 6. 3208/15.7.98 15.7.98 to 27.8.98 44 days 7. 3651/31.8.98 31.8.98 to 13.10.98 44 days 8. 4020/17.10.98 17.10.98 to 29.11.98 44 days 9. 4345/1.12.98 1.12.98 to 13.1.99 44 days 10. 117/15.1.99 15.1.99 to 27.2.99 44 days 11. 850/6.3.99 6.3.99 to 18.4.99 44 days 12. 1575/21.4.99 21.4.99 to 3.6.99 44 days 13. 2496/30.6.99 30.6.99 to 12.8.99 44 days As the above table shows, opp. party worked for 323 days during the preceding 12 months from the date of termination of his services and as such fulfilled the requirement of continuous service of one year in order to be eligible to derive the benefit u/s 25F of the I.D. Act. 2496/30.6.99 30.6.99 to 12.8.99 44 days As the above table shows, opp. party worked for 323 days during the preceding 12 months from the date of termination of his services and as such fulfilled the requirement of continuous service of one year in order to be eligible to derive the benefit u/s 25F of the I.D. Act. His services were terminated illegally without complying the provision u/s 25F of the I.D. Act. 4. Petitioner filed written statement before the Industrial Tribunal contending therein that his establishment is purely a Government office under the administrative control of the Director, Soil Conservation of the Government of Orissa, under the Agricultural Department and as such it is not an Industry. However, he admitted that the opposite party (workman) was appointed as a cook in different spells on ad hoc basis in the establishment with effect from 29.3.1997, but due to austerity measures taken by the Government of Orissa, the Director of Soil Conservation in his Circular Nos. 10394 dated 21.8.99 and 14901 dated 11.10.99, imposed ban on ad hoc appointment, as such the services of the opp. party could not be extended after 12.8.99 and that the said post was never filled up. The further plea of the Petitioner was that the establishment in question was not an industry and the opposite party was not a workman and as such the Petitioner prayed to reject the claim of opp. party. 5. After hearing counsel for the parties, learned Industrial Tribunal passed the impugned award as stated above holding that the Petitioner's establishment is an industry and that the opp. party was retrenched from service without complying the provision u/s 25F of the I.D. Act. 6. Learned Counsel appearing for the Petitioner submitted that the Industrial Tribunal committed gross illegality by holding that the establishment in question is an industry. As per his submission, it is a Project of Indo Danish Comprehensive Water Shed Development (in short 'the I.D.C.W.S.D.P.') and is purely a Government office of the State of Orissa under the Administrative Control of the Director of Soil Conservation of Agriculture Department. The aim of the project is to develop the resources to increase agricultural production without causing excessive stress on the environment. The aim of the project is to develop the resources to increase agricultural production without causing excessive stress on the environment. The activities carried on by the Petitioner being economic adventures for the welfare of the people, which are sovereign functions of the State the establishment cannot be held as an Industry. Sovereign functions strictly understood alone qualify an establishment for exemption from the pale of industry, not the welfare activities or economic adventures undertaken by the Government or any Statutory Body. So, the activities carried on by the Petitioner cannot be sovereign functions. Accordingly, the submission of the learned Counsel for the Petitioner that Petitioner is not an industry, cannot be accepted. Learned Counsel for the Petitioner further submitted that since the opposite party was appointed as a cook on purely temporary basis for a specific period, non-renewal of the contract of employment cannot be termed as retrenchment as envisaged u/s 2(oo)(bb) of the I.D. Act and the Tribunal erred in holding that termination of services of the opposite party without complying the provisions of Section 25F of the Act was illegal. In support of his submissions, he relied on the case of General Manager, Haryana Roadways v. Rudhan Singh 2005 SCC(L&S) 716. It has been held therein that: It is true that in view of the aforesaid provision the termination of service of a workman as a result of nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein would not amount to trenchment in view of Section 2(oo)(bb) of the Act. 7. Per contra learned Counsel for the opposite party submitted that the services of the opposite party were artificially terminated for some days and again he was appointed. He was employed in that manner from 29.3.1997 to 12.8.1999 with a view to defeat the opp. Party in availing the benefits provided u/s 25F of the I.D. Act. So non-renewal of the services of the opp. party would amount to retrenchment. He was employed in that manner from 29.3.1997 to 12.8.1999 with a view to defeat the opp. Party in availing the benefits provided u/s 25F of the I.D. Act. So non-renewal of the services of the opp. party would amount to retrenchment. In support of his submission, he relied on the case of Haryana State Electronics Development Corporation Ltd. v. Mamni AIR 2006 SCW 2979 , where a Division Bench of the Apex Court held that In this case the services of the Respondent had been terminated on a regular basis and she had been re-appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to defeat the object of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted in the instant case. Section 2(oo) of the I.D. Act defined 'retrenchment' which reads as follows: "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health. So as per Section 2(oo)(bb) quoted above non-renewal of service of a workman would not amount to retrenchment. In the case at hand, the services of opposite party were terminated on the expiry of 89 days in three occasions and on the expiry of 44 days in ten occasions. He was being appointed after some gap on completion of each term. Such action on the part of the Petitioner was not bona ffde.lt was adopted to deprive the opp. party from availing the benefit of Section 25-F of the I.D. Act. He was being appointed after some gap on completion of each term. Such action on the part of the Petitioner was not bona ffde.lt was adopted to deprive the opp. party from availing the benefit of Section 25-F of the I.D. Act. As such in view of the ratio in the case of Haryana State Electronics Development Corporation Ltd. (supra) it will not fall within the pale of Section 2 (oo) (bb) of the I.D. Act. 8. Learned Counsel for the Petitioner next submitted that since the opposite party did not work for a continuous period of minimum one year, the Tribunal erred in holding that the termination/retrenchment of the opposite party without complying the provision of Section 25F of the I.D. Act, was illegal. Section 25B of the I.D. Act defines continuous service, which reads as follows: 25B. Section 25B of the I.D. Act defines continuous service, which reads as follows: 25B. Definition of continuous service- For the purposes of this Chapter- (1) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case: (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) ninety-five days, in the case of workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case." (Emphasis supplied by us.) Admittedly, opposite party was not in uninterrupted service of one year, but he worked for 323 days (more than 240 days) during the preceding 12 months from the date of his termination, i.e., 12.8.99 with some artificial break. So, because of the deeming provision quoted above, the Industrial Tribunal rightly held that the opposite party worked for a continuous period of one year. 9. Learned Counsel for the Petitioner next contended that the Industrial Tribunal committed gross illegality in awarding full back wages to the opposite party. Because there is nothing on record to show that opposite party (workman) was not in gainful employment from the date of his retrenchment, there is even no such pleading in his written statement. Per contra learned Counsel for the opp. Because there is nothing on record to show that opposite party (workman) was not in gainful employment from the date of his retrenchment, there is even no such pleading in his written statement. Per contra learned Counsel for the opp. Party contended that such a plea was not taken by the Petitioner in the pleading though it is the duty of the Petitioner to prove that opp. party was gainfully employed in the relevant period but it has not proved so and therefore contention of the Petitioner should not be accepted. 10. I n the case of Haryana State Electronics Development Corporation (supra), it has been held as follows: It is not in dispute that the Respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. In view of the said decision, employer is not required to raise the plea that the workman was in gainful employment during the period of his retrenchment. As such the contention made by learned Counsel for the Opp. party cannot be accepted. Moreover, opp. party was working as a cook. There is no pleading showing that he underwent any special training on cooking. Further, due to austerity measure taken by the Govt, the services of opp. party were not renewed. As such, the learned Industrial Tribunal ought not have allowed back wages. 11. Therefore, the writ petition is allowed in part and the award" of the learned Industrial Tribunal, so far as it directed reinstatement with liberty to the Petitioner to implement the Government circular following the provision of the I.D. Act is upheld, but the award of back wages is set aside. No cost. P.K. Tripathy, J. 12. I agree.