JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned Counsel for the petitioner, the learned Counsel for the respondents and perused the record. 2. The present writ petition has been filed by the State of U.P. through Executive Engineer, Aligarh Division, Ganga Nahar, Sinchaai Vibhag Colony, Aligarh against the award dated 20.8.2007 which was published on 4.12.2007 on the notice board on 28.11.2007 passed by the Labour Court, U.P. Agra. Respondent No. 2, Sri Raj Kumar filed Claim Petition No. 165 of 2000, Raj Kumar v. Executive Engineer, Aligarh Division, Ganga Nahar, Sinchaai Vibhag Colony, Aligarh. The jurisdiction of Labour Court so far deciding the matter is concerned has been mentioned in the Industrial Disputes Act, 1947. 3. In the objection filed before the Labour Court, apart from the other submissions made on behalf of the department, it was clearly stated that the department is a part of the State Government and the payment is made from the State exchequer and is sovereign function of the State and as such the Labour Court has got no jurisdiction in the matter. 4. On the aforesaid basis the Counsel for the petitioner submits that the award passed by the Labour Court under the provisions of Industrial Disputes Act, 1947 therefore being without jurisdiction deserves to be dismissed. 5. The words ‘Industry’ and industrial disputes’ have been defined under Section 2(k) and section 2 (j) of the Industrial Disputes Act, 1947 as follows : “(k) ”industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.” 6. Definition of industrial dispute contained in Section 2 (j) is as under : “Industrial Dispute” means any dispute or difference employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the term of employment or with the conditions of labour, of any person; but does not include an industrial dispute concerning— (i) any industry carried on by or under the authority of the Central Government or by a Railway Company, or (ii) such controlled industry as may be specified in this behalf by Central Government, or (iii) banking and insurance companies as defined in the Industrial Disputes Act, 1947, or (iv) a mine or an oil-field;” 7. Relying upon the aforesaid definition of industry it is submitted that it has been considered in a stream of judgments rendered by the Apex Court judgment in Bangalore Water Supply & Sewerage Board v. A. Raiappa, 1978(2) SCC 213 which was case of not of the Judges in interpreting the definition clause. It is stated that by its unanimous decision of a Bench of six Judges in Safdarjung Hospital v. Kuldip Singh Sethi, (1970) 1 SCC 735 it has been held that Irrigation Department of the State is not an industry and that the decision in the case of Safdarjung Hospital was an unanimous decision. While concluding, the Hon’ble Court was pleased to observe that : “We conclude agreeing with the conclusion of the Hon’ble Judges in the case of Hospital Mazdoor Sabha, (SCR p.876). “(T) Though Section 2 (j) used words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings.” 8. It is stated that the matter again came up for consideration in the case of State of U.P. v. Jagir Singh, in 2005 before the Bench of five Hon’ble Judges. While considering the case of Safdarjung Hospital the Hon’ble Court pleased to observe that : “The decision in the case of Safdarjung Hospital was an unanimous decision of all the six Judges and we are inclined to agree with the following observations in the interpretation of the definition clause : (SCC p. 743 para 17) “But in the collocation of the terms and their definitions these terms have a definite economic content of a particular type and on the authorities of this Court have been uniformly accepted as excluding professions and are only concerned with the production, distribution and consumption of wealth and the production and availability of material services. Industry has thus been accepted to mean only trade and business, manufacture, or undertaking analogous to trade or business for the production of material goods or wealth and material services.” 9. It is then submitted that six Judges in Gymkhana Club case (SCR page-756 E-F) : SCC page-744 para 22) unanimously observed that : “... Industry has thus been accepted to mean only trade and business, manufacture, or undertaking analogous to trade or business for the production of material goods or wealth and material services.” 9. It is then submitted that six Judges in Gymkhana Club case (SCR page-756 E-F) : SCC page-744 para 22) unanimously observed that : “... before the work engaged it can be described as an industry, it must bear the definite character of ‘trade’ or ‘business’ or ‘manufacture’ or ‘calling’ or must be capable of being described as an undertaking resulting in material goods or material services.” 10. The Uttar Pradesh Industrial Disputes Act, 1947 Section 2(i) defines industrial dispute as stated above. The present matter as raised by respondent No. 2, never comes under the definition as mentioned in the Uttar Pradesh Industrial Disputes Act, 1947, as such the Labour Court has got no jurisdiction in the matter and the Labour Court award is absolutely contrary to the law and without jurisdiction. 11. The case of Bangalore Water Supply & Sewerage Board v. A. Rajappa has been referred to the larger Bench, unless the judgment comes, the judgment passed in Safdarjung Hospital’s case by the Six Judges. The industry and its activity must be analogous to trade or business in a commercial sense and very enumeration of public utility service in Section 2 and read with the first Schedule of the Industrial Disputes Act should not be a decisive to provide water and irrigation. It is sovereign function of the State Government and as such it is non-profit work being done by the democratically elected Governments as such it cannot come within the definition of an industry and the Labour Court has got no jurisdiction to decide the same. 12. It is submitted that in the objection filed on behalf of the respondent, Irrigation Department, it has been categorically stated that the petitioner had not worked with the department as claimed by respondent who has never worked in the department and therefore, there was no relationship of employer and employee between the department and respondent No. 2. 12. It is submitted that in the objection filed on behalf of the respondent, Irrigation Department, it has been categorically stated that the petitioner had not worked with the department as claimed by respondent who has never worked in the department and therefore, there was no relationship of employer and employee between the department and respondent No. 2. The basic requirement of the jurisdiction so far the Labour Court is concerned is therefore not in existence; that inspite of the repealed averments made in the objection filed before the Labour Court and the submission made by the Counsel, the Labour Court proceeded contrary to the law and decided the matter having no jurisdiction over the matter and that as per record maintained in the office of the petitioner. The petitioner has never worked in the department as such the principle of no work no pay is applicable in the matter and respondent No. 2 is not entitled for any such payment to be made in the matter. Therefore, direction issued by the Labour Court is absolutely concerned to the law laid down by the Hon’ble Supreme Court in Municipal Council Sujanpur v. Surinder Kumar, 2006 (5) ESC 266 is as follow : “It is not disputed that the appointment of the respondent was not on a sanctioned post. Being a ‘State’ within the meaning of Article 12 of the Constitution of India, the appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. In the instant case, the respondent was appointed in violation of the rules. He was appointed at the instance of a member of the legislative assembly who was a Minister at the relevant time. No appointment could have been made at his instance. No authority howsoever, high may be cannot direct recruitment of persons of his choice. Having regard to the factual circumstances of this case, we are of the opinion that grant of monetary compensation would subserve the interest of justice. We, therefore, allow the appeal and set aside the directions of the Labour Court and direct that in place of the respondent being reinstated with back wages, the appellant would pay monetary compensation to him quantified at Rs. We, therefore, allow the appeal and set aside the directions of the Labour Court and direct that in place of the respondent being reinstated with back wages, the appellant would pay monetary compensation to him quantified at Rs. 50,000/-. We make no order as to costs.” 13. Reliance in this regard has also been placed upon Uttaranchal Forest Hospital Trust v. Dinesh Kumar, 2008 (1) SCC 542 and also upon the judgment rendered by the Apex Court in Mahboob Deepak v. Nagar Panchayat, Gadaura and others (2001) SCC 575. 14. In Uttaranchal Forest Hospital Trust v. Dinesh Kumar it has been held : “The basic difference between a person who is engaged on a part time basis for one hour or few hours and one who is engaged as a daily wager on regular basis has not been kept in view either by the Labour Court or by the High Court. The documents filed clearly establish that the claim of having worked more than 240 days is clearly belied. The stand of the appellant that the respondent was called for work whenever work was available, as and when required and that he was not called for doing any work when the same was not available has been established. The Labour Court itself noted that the workman was engaged in work by other as he was working in the appellants’ estalishment for one hour or little more on some days. It is also seen from the documents produced before the Labour Court that whenever the respondent was working for full period of work he was being paid Rs. 35/- per day and on other days when he worked for one hour he was getting Rs. 5. In the aforesaid position, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the reinstatement with partial back wages.” 15. In Mahboob Deepak v. Nagar Panchayat, Gadaura and others, the Court was of the view that as the appellant has worked for a short period, a lump sum payment was awarded. The Court has further observed that the reinstatement with the back wages in such a situation has never to be passed. We have with great respect as already stated above that the respondent No. 2 has not worked, therefore, neither the reinstatement nor the back wage is to be paid. The Court has further observed that the reinstatement with the back wages in such a situation has never to be passed. We have with great respect as already stated above that the respondent No. 2 has not worked, therefore, neither the reinstatement nor the back wage is to be paid. It is further to be clarified that as the respondent No. 2 was never appointed or engaged even as a daily wager. There was no relation between employer and employee or between the petitioner and respondent No. 2 as such there was no cause of action arise at any stage, the impugned award deserves to be set aside and quashed. The writ petition deserves to be allowed. It is further submitted that if the Court comes to the conclusion that payment was paid to respondent No. 2, the State will feel the great difficulty in releasing the same because respondent No. 2 is not in a position to pay the same whatever has been directed by the Court. In such a situation respondent No. 2 is not entitled to any relief. Case of the respondent—Workman. 16. It is stated that the main controversy raised on behalf of the State, the petitioner before this Court was that the Irrigation Department of the State Government is not an industry within the meaning of the word in the U.P. Industrial Disputes Act, 1947. It is stated by the Counsel for the respondent workman that the matter stands settled by the decision of the Supreme Court and even if there was some adverse judgment to the effect that the Irrigation department was not industry by the Allahabad High Court then law has not been correctly laid down and the judgment of the Supreme Court was to be followed and that of the Allahabad High Court was to be ignored. 17. It is urged that the word industry defined in the UPID Act, 1947 is an identical definition of the word industry as defined in Section 2(j) of the Industrial Disputes Act, 1947 (for brief Central Act) which has already been reproduced earlier in this judgment. 18. It is stated that in the last nearly 6 decades the widest possible interpretation has been given by the Supreme Court to the above definitions. 18. It is stated that in the last nearly 6 decades the widest possible interpretation has been given by the Supreme Court to the above definitions. The most important of one being a 7 Judges decision in the case of Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548 and also a part of which has been printed in the same volume at page 969 but before going to citations of the Supreme Court judgment and other judgments it is necessary to refer to certain other Acts of Parliament relevant for the purpose. 19. It is submitted that Irrigation Department of the State Government cannot be placed at a level higher than the Railways and if Railway is considered to be industry then it cannot be hardly questioned that the Irrigation department will not be industry. Under Section 2(a) appropriate Government for the purpose of making references of industrial disputes had been laid down. It may be stated that in many of the industrial judgments their branches or their Units or in more than one State and if the State Government were to refer the disputes for compulsory adjudication (in case of U.P. Section 4(k) of the U.P. Act) then many anomalies and contradictions were to arise for any Bank having its Units in the State of U.P. could decide what the wages of the employees could be and a different view could be taken by the State of Bihar or the State of West Bengal or any other State. It is for this reason that a very large number of Industries have been stated in which reference of disputes is to be made only by the Central Government and not by the State Government. It is stated that in the list of Industries the very first mention is that of Railway. It is worded in the following manner : “(a) Appropriate Government means (i) in relation to any industrial disputes concerning any Industry carried on by or under the authority of Central Government or by a Railway Company (or concerning any such controlled Industry as may be specified in this behalf by the Central Government or in relation to an industrial disputes concerning a Dock Labour Board...)” 20. The very first word used in Section 2(a) (i) is railway company. This would mean that the Parliament itself accepted railways to be Industry. The very first word used in Section 2(a) (i) is railway company. This would mean that the Parliament itself accepted railways to be Industry. Now the Irrigation Department either of the Central Government or of any State Government cannot claim to be placed at a higher level compared to the railways. 21. It is next submitted that the Administrative Tribunals Act, 1985 was enacted for the purpose of settling disputes in relation to service conditions etc. of the Union Government employees. After the enactment of the aforesaid Act (for short A.T. Act) even the jurisdiction of the High Court under Article 226, what to say of suits in the Civil Courts was excluded but in Section 28 of the aforesaid A.T. Act of 1985 Industrial Tribunals and Labour Courts have been made exception, for ready reference the relevant part of Section 28 of the aforesaid A.T. Act, 1985 is being reproduced below : "28. Exclusion of the jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution.—On and from the date from which any jurisdiction power and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning the recruitment to any service or post or service matters concerning members of any service persons appointed to any service or post. No Court except : (a) The Supreme Court; or (b) Any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (or any other corresponding law for the time being in force shall have) Or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment of such service matters." 22. It is then submitted that if service matters relating to the employees of the Union Government (obviously including all its departments) can be referred for compulsory adjudication to Industrial Tribunals or Labour Courts or other authorities constituted under the Central Act or other corresponding State Acts. Such departments are to be recognized as Industry and Irrigation department cannot claim to be excluded from the applicability of Section 28 of the A.T. Act, 1985. Such departments are to be recognized as Industry and Irrigation department cannot claim to be excluded from the applicability of Section 28 of the A.T. Act, 1985. Even after the enactment of the aforesaid Act it has been left to the option of the employees/workmen either to agitate their matters in the Central Administrative Tribunal or in the Industrial Tribunal, Labour Courts and other authorities constituted under the Central Act and in this case under the U.P. Act. There can hardly be any dispute that Irrigation department is a department of the State Government and as such it is open to the workmen/employees to agitate their disputes before the Industrial Tribunal, or Labour Courts. Obviously the aforesaid Act, 1985 recognizes that many of the departments of the Central Act or the State Government can be industry within the meaning of the word in either of the two Acts. 23. It is stated that the employers had always resisted the applicability of the U.P. Act for various reasons and so was the case with many of the employers of various departments of the Central Government and there have been decisions even before the controversy was settled by a 7 Judges decision by the Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa, All the 7 Judges concurred there was no decent. It would be worthwhile to mention that a Bench headed Hon. Mr. Justice R.S. Pathak had suggested that the Bangalore Water Supply’s judgment requires consideration but a larger Bench of Supreme Court headed by Hon. Mr. Justice J.S. Verma (CJ.) was of the opinion that it does not. Some time back even a 5 Judges Bench of the Supreme Court has suggested that the Bangalore Water judgment should be reconsidered but now it is for 2 years that the Supreme Court assembled to reconsider the Bangalore Water case and therefore, what has been held in the aforesaid case continues to be binding and will remain binding so long. It is not overruled or modified by the Supreme Court itself. 24. It is urged by Sri K.P. Agarwal that with a view to remove anomalies the Parliament by an Act No. 46 of 1982 decided to substitute the definition of the word industry by a new definition. It is not overruled or modified by the Supreme Court itself. 24. It is urged by Sri K.P. Agarwal that with a view to remove anomalies the Parliament by an Act No. 46 of 1982 decided to substitute the definition of the word industry by a new definition. A perusal of that amendment makes it clear that a large number of judgments were excluded from the definition of the word industry. 25. No other point has been argued by the Counsel for the parties. 26. After hearing the rival submissions as to whether Irrigation Department is industry or not and on perusal of law placed before me I am of the considered opinion that it is not necessary to go into these details of amendment for the simple reason that the power to enforce the aforesaid amendment had been given to the Government and the most striking part of it is that the amendment that was introduced in the year 1982 has not been enforced by the Central Government as yet. The result had been that now for 26 years the Central Government has not been of the opinion that the substituted definition of the word industry should be brought in force and thus the aforesaid amendment remains a still-born-child. 27. Even before the Supreme Court judgment in Bangalore case has come up in 1978 the Supreme Court in the case of D.N. Banerjee v. P.R. Mukherjee, a 5 Judges Bench held that municipal was industry. In paragraph 11 of the aforesaid judgment the Supreme Court held that industry included within its scope what might not strictly be called Trade or business. In paragraph Nos. 16, 17 and 20 the Hon’ble Supreme Court held that the definition in the Act includes also dispute that might arise between Municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. The Supreme Court went further into the matter and in paragraph 4 of the aforesaid judgment it held that the Act encroaching upon powers of Municipal Commissioner to dismiss or appoint Municipal servant the Act is not ultra vires because there is encroachment on to provisional subject viz., local Government AIR 1947 PC 60. 28. In another judgment in the case of Corporation of the City of Nagpur v. Its Employees the Supreme Court went further. 28. In another judgment in the case of Corporation of the City of Nagpur v. Its Employees the Supreme Court went further. The case is reported in AIR 1960 SC 675 . In paragraph 6 of its judgment the Apex Court held that the services of Industrial Disputes Act, 1947. In Section 2(j) the Nagpur Corporation has held to fall under the definition of industry. Thereafter the Supreme Court distressed the various aspects of the activities of the Corporation of the City of Nagpur and in paragraph 7 it held that whether the activity of the Corporation is not industry unless it shares the common characteristics of the industry. Thereafter the Supreme Court held as follows : “It must be born in mind that no scuntar socshis is merely a rule of construction and it cannot prevail in making where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly. It is only where the institution of the legislation in associating other words which words of narrower significance is doubtful that the present rule or construction can be usefully applies. It can also be applied where the meaning of the words of wider import is doubtful but where the object of the legislature is using wider word is clear and free of ambiguity the rule of construction in question cannot be pressed into service. The Supreme Court held that legal functions are inescapable and inalienable such are the legislative power the administration of laws the exercise of the judicial power. Non legal issues, non legal functions may be assumed by meeting the legislative power but when they are assumed the State acts simply as a huge Corporation with legislation as the charter. The action under the legislation, so far as it is not legal execution of the law is merely analogous to that of a private Company similarly authorized.” 29. In paragraph 11 of the aforesaid judgment the Supreme Court found that Corporation can be said to exercise legal functions by legislature delegated. In a detailed discussion in paragraph 19 of the aforesaid judgment the Supreme Court held various departments of the Corporation of the City of Nagpur to be industry. In this paragraph the Supreme Court held Fire Fighting Department to be industry and also the Public Conveyance Department to be industry. In a detailed discussion in paragraph 19 of the aforesaid judgment the Supreme Court held various departments of the Corporation of the City of Nagpur to be industry. In this paragraph the Supreme Court held Fire Fighting Department to be industry and also the Public Conveyance Department to be industry. The Supreme Court held Lighting Department of the Corporation to be industry and also the Water Works Department to be industry. It also held removal of encroachment and unauthorized construction as industry. Sewerage Department was held to be industry. Maintaining Public Gardens and Public Works Department were held to be industry. Even the assessment of scavenging tax and work connected with the assessment of scavenging tax and water tax was held to be industry. Education Department, General Administration Department were also held to be industry. Thus there appears hardly any scope for the Irrigation Department to be left out of the word industry. In the wide definition given to the word industry it has to be held that Irrigation Department is industry. 30. Then came to the 7 Judges judgment in the case of Bangalore Water Supply and a perusal of the aforesaid judgment would show that all possible activities of the Government excepting its legal functions have been held to be industry. This being such to the question what is legal function. Currency defence etc. are the legal functions of the State. So is the police department enforcing law and order. In this 7 Judges judgment paragraphs 153 and 154 are very material for the same accept the reasoning given in the judgment in the case of D.N. Banerjee v. P.R. Mukharjee and the judgment in the case of Corporation of the City of Nagpur. The word undertaken was taken note of at paragraph (a) of 2 in AIR page 595. In subsequent paragraphs the consequences of whole discussion of the Supreme Court in paragraph (iii) at page 596 are given in sub paragraph (a), (b), (c) and (d). In this case in paragraph 5 the 7 Judges decision overruled the earlier judgments given in the case of Safdarjang Hospital ( AIR 1970 SC 1407 ), Delhi case reported in AIR 1963 SC 1873 . The Supreme Court also referred to its judgment in the case of Hospital Mazdoor Sabha, AIR 1960 SC-610. 31. In this case in paragraph 5 the 7 Judges decision overruled the earlier judgments given in the case of Safdarjang Hospital ( AIR 1970 SC 1407 ), Delhi case reported in AIR 1963 SC 1873 . The Supreme Court also referred to its judgment in the case of Hospital Mazdoor Sabha, AIR 1960 SC-610. 31. A perusal of the aforesaid 7 Judges judgment in the Bangalore Water case will convince anyone that Irrigation Department of the State Government cannot be taken out of the definition of the word industry. It is not legal function of the State to lay down Irrigation projects. This can be got done even privately. At the end it has to be submitted that the Supreme Court in the case of Deshrai etc. v. State of Punjab, AIR 1988 SC 1182 specifically dealt with the Irrigation Department of the State of Punjab and held that Irrigation Department was industry. In this judgment a Full Bench decision of Punjab and Haryana High Court has been overruled and has been held to be not laying down correct law. All the arguments advanced in support of the Punjab and Haryana judgment have been discussed in detail. It can therefore be safely said that in view of the aforesaid judgments of the Supreme Court that Irrigation Department is an industry. 32. Once the position of law has been made clear by the Supreme Court in Bangalore Water Supply Board (supra) rendered by the High Court or any Bench of the Apex Court where less than seven Hon’ble Judges presided having different views cannot hold good and are to be declared as laying down bad case law. Therefore, the main contention of the Standing Counsel that Irrigation department is not an industry is liable to be turned down. It is accordingly held that since the Irrigation Department fulfils the test of industry as laid down in the Bangalore Water Supply Board’s case, hence the Irrigation department is an industry. 33. So far as the facts of this case are concerned, the award is concluded by finding of fact. It has been noted in the award that during the course of adjudication proceedings certain documents had been summoned by the workmen which were not produced before the Labour Court. 33. So far as the facts of this case are concerned, the award is concluded by finding of fact. It has been noted in the award that during the course of adjudication proceedings certain documents had been summoned by the workmen which were not produced before the Labour Court. In this case when an ex parte award was passed by the Labour Court, an opportunity was given to the employers by the Labour Court to substantiate their case but they did not make any application. The Labour Court was left with no alternative but to proceed ex parte against the Irrigation Department. Moreover, in Rule 16 of the Industrial Disputes Rules an application for the recall of the order permitting the clerical staff to agitate their case would not have been made but even that has not been done by the petitioner. 34. The case law relied upon by the State is not applicable and is no longer a good law in view of the decisions rendered by the Apex Court in (i) Bangalore Water Supply Board v. A. Rajappa (ii) D.N. Banerjee v. P.R. Mukherjee and (iii) Corporation of the City of Nagpur v. Its Employees. Unless the judgment rendered by the Apex Court is not overruled or set aside by a larger Bench it holds field in so far as definition of industry test laid down for its determination is concerned. 35. The question referred to larger Bench of this Court as to whether Irrigation Department is industry or not can not be a bar till Bangalore Water Supply Board case holds the field and is binding upon this Court under Article 141 of the Constitution. 36. In the circumstances as given above and in view of the three Supreme Court judgments referred to above the impugned award is upheld. 37. For the reasons stated above, the writ petition is dismissed. No order as to costs. ————