Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 494 (MP)

Mahesh Rajak v. State of M. P.

2012-05-04

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
JUDGMENT Gangele, J. -- 1. Appellant has filed this appeal against the order dated 24.10.2011 passed by the learned Single Judge in Writ Petition No.7062 of 2011(S). 2. The appellant was engaged in the Forest Department on daily wage basis in the year 1981. He had been paid salary on monthly basis. As per appellant, he had been performing the work of Chowkidar and Coupe Guard. Appellant retired from service after completing 30 years of service. The appellant challenged the aforesaid order of retirement in a writ petition contending that he is eligible to continue in service up to the age of 58 years in accordance with clause 14A of Standard Standing Orders (hereinafter called the “SSO”). Hence, his retirement after completing 30 years of service is arbitrary and illegal. 3. The learned Single Judge dismissed the writ petition after holding that the appellant was working as a daily wager and there were no rules in the department in regard to daily wager employees, hence, appellant has no legal right to continue in service up to the particular age. 4. The learned counsel for the appellant has contended that the State Legislature has enacted the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (hereinafter called the “Act of 1961”) and in accordance with annexure to the Standard Standing Orders applicable in all the undertaking in the State, age of retirement of employees is 58 years. The aforesaid ‘SSO’ is applicable to Forest Department also. Hence, the appellant is entitled to continue in service up to the age of 58 years. 5. In support of his contentions, the learned counsel for the appellant relied on the following judgments : “Superintending Engineer v. Dev Prakash [ 1999(1) JLJ 391 = 1999(1) MPJR 1 ], and Vishnu Mutiya v. State of M.P. [ 2006(1) JLJ 14 = 2006(1) MPLJ 23 ].” 6. Learned Deputy Advocate General has contended that the appellant was working as a daily wager. There is no rule in the department to regulate the conditions of daily wager employees. The provisions of the Act of 1961 are not applicable in the Forest Department. Hence, the learned Single Judge has rightly held that the appellant has no right to continue in service up to the age of 58 years. 7. There is no rule in the department to regulate the conditions of daily wager employees. The provisions of the Act of 1961 are not applicable in the Forest Department. Hence, the learned Single Judge has rightly held that the appellant has no right to continue in service up to the age of 58 years. 7. In support of his contention, the learned Deputy Advocate General has relied on following judgments : “Secretary, State of Karnataka and others v. Umadevi (3) and others [ (2006)4 SCC 1 ], and Badri v. State of M.P. and others [ 2011(4) MPLJ 86 ].” 8. The appellant was working as daily wager employee in the Forest Department. The Hon’ble Supreme Court in Chief Conservator of Forests and another v. Jagannath Maruti Kondhare and others [ (1996)2 SCC 293 ], has held as under in regard to applicability of provisions of Industrial Disputes Act, 1947 in Pachgaon Parwati Scheme framed by the Forest Department of Maharashtra for creation of a park under bioaesthetic development for the benefit of the urban population and finding of the Hon’ble Supreme Court are : “4. We, therefore, propose to examine the first question on the touchstone of what was held by this Court in Bangalore Water Supply case. A perusal of that judgment shows that the main judgment was written by Krishna Iyer, J. (on behalf of self, Bhagwati and Desai, JJ. as would appear from the reporting of this judgment in Bangalore Water Supply). Beg, C.J. endorsed the opinion and conclusions of Krishna Iyer, J. in a concurrent judgment giving his own reasons. Though Tulzapurkar, J. had stated in the order passed on the day the judgment was delivered (21.2.1978) that reasons for concurrence and divergence, if any, would be given later, no such reasons were given. Chandrachud, J. (as he then was) put on record his reasons on 7.4.1978 by which date he had become Chief Justice. Jaswant Singh, J. also did the same. 5. The aforesaid shows that the conclusions reached by Krishna Iyer, J. had been endorsed fully by two other learned Judges and Beg, C.J. did the same but for different reasons. We would, therefore, confine our attention to the conclusions reached by Krishna Iyer, J. which appear at pp. 282 and 283 of the Report. 5. The aforesaid shows that the conclusions reached by Krishna Iyer, J. had been endorsed fully by two other learned Judges and Beg, C.J. did the same but for different reasons. We would, therefore, confine our attention to the conclusions reached by Krishna Iyer, J. which appear at pp. 282 and 283 of the Report. The one which is relevant for our purpose is what finds place under serial title IV “The dominant nature test”, which was spelt out as below : (SCC pp.283-84, para 143) “(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not ‘workmen’ as in the University of Delhi case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in Corporation of Nagpur, will be the true test. The whole undertaking will be ‘industry’ although those who are not ‘workmen’ by definition may not benefit by the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaking by Government or statutory bodies. (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.” (It may be stated that it is in pursuance to what was stated under (d) above that the aforesaid amendment of 1982 was made which provided for exclusion of some categories, one of which is “any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space”. This is exception 6 of the 9 mentioned in the amended definition.) 6. This is exception 6 of the 9 mentioned in the amended definition.) 6. Shri Dholakia being required to address us as to whether the Forest Department can be said to be an ‘industry’ as per the ratio in Bangalore Water Supply case, urges that it cannot be, because the function discharged by the department, more particularly the one relatable to the scheme in question, named Pachgaon Parwati Scheme undertaken in Pune District, is sovereign in nature, which would as per the aforesaid decision itself qualify for exemption. This is also the contention advanced by Shri Bhandare, appearing for the appellants in the cases relatable to Ahmednagar District. This stand of the learned counsel for the appellants is strenuously challenged by Ms. Jaising, appearing for the respondent workmen. 7. As per the Bangalore Water Supply case sovereign functions “strictly understood” alone qualify for exemption, and not the welfare activities or economic adventures undertaken by the Government. This is not all. A rider has been added that even in the departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to be an industry. As to which activities of the Government could be called sovereign functions strictly understood, has not been spelt out in the aforesaid case. 8. Ms. Jaising, however, urges that as the majority had accepted the test explained in the Corporation of the City of Nagpur v. Employees, we should note what was stated about sovereign functions in that decision. In that judgment this aspect has been dealt at pp.953 to 955 of the Report. The Bench of that case first noted the rival contention advanced in this regard, which by the learned counsel for the Corporation was to enlarge the scope of these functions as to comprehend all the welfare activities of a modern State, whereas the learned counsel for the respondents sought to confine them to what are aptly termed “the primary and inalienable functions of a constitutional Government”. In support of the contentions advanced reference was made to Holland’s Jurisprudence as to which it was observed by the Bench tht the same had no relevance. In support of the contentions advanced reference was made to Holland’s Jurisprudence as to which it was observed by the Bench tht the same had no relevance. The Bench then referred to what was stated by Lord Watson in Coomber v. Justices of Berks, in which the functions such as administration of justice, maintenance of order and repression of crime were described among the primary and inalienable functions. Reference was then made to the dissenting judgment of Isaacs, J. in Federated State School Teachers’ Association of Australia v. State of Victoria, in which the learned Judge stated as below at p.585 : “Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Non-regal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to that of a private company similarly authorised.” The Bench thereafter observed that the aforesaid clearly mark out the ambit of the regal functions as distinguished from the other powers of a State. This shows that as per the Corportion of Nagpur case, those functions alone which are inalienable can be called sovereign. Ms. Jaising would like us to take the same stand. 9. Shri Dholakia and Shri Bhandare, however, urged that in view of the constitutional duty imposed on States, to undertake many activities including preservation of environment, a la Article 48A of the Constitution, the extent of sovereign functions may not be confined to the aforesaid three inasmuch as other functions could also be inalienable; and protection of environment in the present state of pollution is one such function, which cannot be and would not be, undertaken by any private agency in a meaningful way. 10. In support of the aforesaid contention, the learned counsel for the appellants have relied on a decision of a Division Bench of the Gujarat High Court rendered by one of us (Ahmadi, J. as he then was) in the case of J.J. Shrimali v. District Development Officer. 10. In support of the aforesaid contention, the learned counsel for the appellants have relied on a decision of a Division Bench of the Gujarat High Court rendered by one of us (Ahmadi, J. as he then was) in the case of J.J. Shrimali v. District Development Officer. This aspect of the matter has been dealt with at pp.405 to 410 of the judgment, reference to which shows that keeping in view the special facts and circumstances of the case (paragraph 11), namely, undertaking of famine and drought relief works by the State Government by introducing certain schemes to provide relief and succour works to the affected people, instead of distributing doles which may hurt the dignity, self-respect and sentiments of those receiving the same, it was held that it would be difficult to hold the undertaking to be an ‘industry’. What really follows from this judgment is that apart from the aforesaid three functions, there may be some other functions also regarding which a view could be taken that the same too is a sovereign function. We accept this. 11. As to which function could be, and should be, taken as regal or sovereign function has been recently examined by a Bench of this Court, to which one of us (Hansaria, J.) was a party. This was in N. Nagendra Rao and Co. v. State of A.P., in which case Sahai, J. speaking for the Bench examined this question in detail in the background of the stand of the respondent-State pleading absence of vicarious liability because of the doctrine of sovereign immunity. This aspect has been dealt in paras 21 to 24. Para 21 opens by saying that the old and archaic concept of a sovereignty does not survive as sovereignty now vests in the people. It is because of this that in the aforesaid Australian case the distinction between sovereign and non-sovereign functions was categorised as regal and non-regal. In some cases the expression used is State function, whereas in some, governmental function. 12. We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign functions does not really exist -- it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case. 12. We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign functions does not really exist -- it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case. As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in Courts of law. It was stated by Sahai, J. that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external soverignty and are political in nature. They are, therefore, not amenable to the jurisdiction of ordinary civil Court inasmuch as the State is immune from being sued in such matters. But then, according to this decision the immunity ends there. It was then observed that in a welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. Because of this the demarcating line between sovereign and non-sovereign powers has largely disappeared. 13. The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case, would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come within the purview of the definition of industry; and, not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable. 14. 14. This is not all, as Shri Dholakia has submitted that the Pachgaon Parwati Scheme (and for that matter the social forestry work undertaken in Ahmednagar District, in appeals relating to which Shri Bhandare has addressed us) being meant for preservation of forests and environment has to be regarded, in any case, as part of inalienable function inasmuch as the type of work which was undertaken under that scheme could not have been done by a private individual or entity. 15. A perusal of the affidavit filed by the Chief Conservator of Forests on 5.12.1992, pursuant to our order of 6.11.1992, shows that the Pachgaon Parwati Scheme was framed as per the Government Resolution based on the policy decision taken in April 1976. The Scheme was to be initially for a period of 5 years and an area of about 245 hectares situated on a hill plateau on the southern outskirts and within easy access of Pune city was selected for creation of a park under bioaesthetic development for the benefit of the urban population. It is further stated that the scheme was “primarily intended to fulfil bioaesthetic, recreational and educational aspirations of the people which will have inestimable indirect benefit of producing enlightened generation of conservationists of nature inclusive of forests and wild life for the future” (p.137). The affidavit goes on to state (at p.138) that the Pune Forest Division is also doing afforestation for soil/moisture conservation under various State-level schemes as well as Employment Guarantee Schemes all of which are for a period of 5 years. 16. The aforesaid being the crux of the scheme to implement which some of the respondents were employed, we are of the view that the same cannot be regarded as a part of inalienable or inescapable function of the State for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. We are in no doubt that such a work could well be undertaken by an agency which is not required to be even an instrumentality of the State. 17. This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of the sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. 17. This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of the sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar District. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants.” 9. The Hon’ble Supreme Court further in Agricultural Produce Market Committee v. Ashok Harikuni and another [ AIR 2000 SC 3116 ], has considered the fact that what would be the test to find an enterprise to be an ‘industry’ under Industrial Disputes Act and held as under : “13. We now proceed to consider as to what would be the test to find an enterprise to be an “industry”. As we have said, the matter has been under consideration by various Courts in various parts of this country, including this Court. Some of which we are proceeding to refer hereunder. In The Corporation of the City of Nagpur v. Its Employees [ (1960)2 SCR 942 : AIR 1960 SC 675 ], the question raised was, whether and to what extent the municipal activities of the Corporation of Nagpur City fell within the term “industry” as defined by section 2(14) of the C.P. and Berar Industrial Disputes Settlement Act, 1947. Applying the decision of this Court in D.N. Banerji v. P.R. Mukherjee [ 1953 SCR 302 : AIR 1953 SC 58 ], this Court held : “It is not necessary that an activity of the Corporation must share the common characteristics of an industry before it can come within the section. The words of section 2(14) of the Act are clear and unambiguous and the maxim noscitur a socii can have no application. The history of industrial disputes and the legislation, however, recognises the basic concept that the activity must be an organised one and not one that pertains to private or personal employment.” 14. The words of section 2(14) of the Act are clear and unambiguous and the maxim noscitur a socii can have no application. The history of industrial disputes and the legislation, however, recognises the basic concept that the activity must be an organised one and not one that pertains to private or personal employment.” 14. With reference to State of Bombay v. The Hospital Mazdoor Sabha [(1960)2 SCR 866: AIR 1960 SC 610 ], this Court held : But the definition, however, wide, cannot include the regal primary and inalienable functions of the State, though statutory delegated to a Corporation and the ambit of such functions cannot be extended so as to include the activities of a modern State and must be confined to legislative power, administration of law and judicial power.” 15. This case further records ( AIR 1960 SC 610 , paras 10 and 11) : “Before considering the positive aspects of the definition, what is not an industry may be considered. However, wide the definition of “industry” may be, it cannot include the regal or sovereign functions of State. This is the agreed basis of the arguments at the Bar through the learned counsel differed on the ambit of such functions. While the learned counsel for the Corporation would like to enlarge the scope of these functions so as to comprehend all the welfare activities of a modern State, the learned counsel for the respondents would seek to confine them to what are aptly termed “the primary and inalienable functions of a constitutional Government ... Lord Western, in Coomber v. Justices of Berks [1983(9) AC 61], discribes the functions such as administration of justice,maintenance of order and repression of crime, as among the primary and inalienable functions of a constitutional Government. Isaacs, J. in his dissenting judgment in The Federal State School Teachers’ Association of Australia v. The State of Victoria [1928-29 (41) CLR 569], concisely states thus at p.584 : “Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Non-regal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation as the charter. Such are the legislative power, the administration of laws, the exercise of the judicial power. Non-regal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to what of a private company similarly authorised. Supreme Court of America in Verisimo Vasquez Vilas v. City of Manila [1910 (220) US 345], expounded the dual character of a Municipal Corporation thus : “They exercise powers which the Governmental and powers which are of a private or business character. In the one character of Municipal Corporation is a Governmental Sub-Division, and for that purpose exercises by delegation a part of the sovereignty of the State. In the other character it is a mere legal entity or juristic person. In the latter character it stands for the community in the administration of local affiars wholly beyond the sphere of the public purposes for which its Governmental powers are conferred. Isaacs and Rich, JJ., in The Federated Municipal and Shire Council Employees’ Union of Australia v. Melborune Corporation [1918-19 (26) CLR 508], in the context of the dual functions of State say much to the same effect at p.530 : “Here we have the decrement of Crown exemption. If a municipality either (1) is legally empowered to perform and does perform any function whatever for the Crown, or (2) is lawfully empowered to perform and does perform any function which constitutionally is inalienable a Crown function -- as, for instance, the administration of justice -- the municipality is in law presumed to represent the Crown, and the exemption applies. Otherwise, it is outside that exemption, and, if impliedly exempted at all, some other principle must be resorted to. The making and maintenance of streets in the municipality is not within either proposition.” A corporation may, therefore, discharge a dual function; it may be statutorily entrusted with regal functions strictly so-called, such as making of laws, disposal of certain cases judicially etc., and also with other welfare activities. The former, being delegated regal functions, must be excluded from the ambit of the definition of “industry”. The former, being delegated regal functions, must be excluded from the ambit of the definition of “industry”. Finally the definition of “industry” is summarised : “The result of the discussion may be summarised thus : (1) The definition of “industry” in the Act is very comprehensive. It is in two parts: one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State though statutorily delegatd to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power, administration of law and judicial power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the departments connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act.” 16. Within this premises this Court considered various departments of the corporation as to whether employees of such department would be covered by the Central Act. This Court holds various departments of the corporation including tax department, assessment department, marketing department to be an “industry”. 17. This Court in Bangalore Water Supply and Sewerage Board v. R. Rajappa [ (1978)3 SCR 207 : AIR 1978 SC 548 :1978 Lab IC 467] (Constitution Bench), considered the definition of “industry” as defined under section 2(j) of the Central Act. 17. This Court in Bangalore Water Supply and Sewerage Board v. R. Rajappa [ (1978)3 SCR 207 : AIR 1978 SC 548 :1978 Lab IC 467] (Constitution Bench), considered the definition of “industry” as defined under section 2(j) of the Central Act. This Court held : “Although we are not concerned in this case with those categories of employees who particularly come under departments charged with the responsibility for essential constitutional functions of Government, it is appropriate to state that if there are industrial units severable from the essential functions and possess an entity of their own it may be plausible to hold that the employees of those units are workmen and those undertakings are industries. A blanket exclusion of every one of the host of employees engaged by Government in departments falling under general rubrics like, justice, defence, taxation, legislature, may not necessarily be thrown out of the umbrella of the Act. We say no more except to observe that closer exploration, not summary rejection, is necessary.” 18. This decision also records Corporation of Nagpur City case [ AIR 1960 SC 675 ], (supra), as to how in that case various departments of the corporation were held to be an “industry”. This Court considered the submission, as in the present case that functions of the various department are only out of statutory sanction and no private individual can discharge those statutory functions. Corporation of Nagpur City case (supra), considered this aspect and records to the following effect (at p.689 of AIR) : “It is said that the functions of this department are statutory and no private individual can discharge those statutory functions. The question is not whether the discharge of certain functions by Corporation have statutory backing, but whether those functrions can equally be performed by private individuals.” 19. Strong reliance is placed by learned counsel for the appellant to the following observations of this Court in Bangalore Water Supply case [ AIR 1978 SC 548 :1978 Lab IC 467] (supra), which is an exception which excludes it from the operation of the Central Act : “In any case, it is open to Parliament to make law which governs the State’s relations with its employees. Articles 309 to 311 of the Constitution of India, the enactments dealing with the Defence Forces and other legislation dealing with the employment under statutory bodies may, expressly or by necessary implication, exclude the operation of the Industrial Disputes Act, 1947.” 20. The submission is, this observation excludes implicitly services under the statutory bodies from the operation of the Indistrial Disputes Act. This submission is misconceived. This observation merely records what Parliament can make law in relation to the employees of statutory bodies etc. In other words, if it so desires may exclude the employees of any statutory bodies expressly or by necessary implication from the purview of Industrial Disputes Act. This decision does not carve out any exception to exclude employees of all the statutory bodies. It merely indicates power of the Parliament, to place any class of employees outside the purview of the Central Act. The question is, whether there is any such provision under the State Act or the Central Act, which excludes these employees from the operation of the Central Act. In fact, section 2(a) of the Central Act itself reveals large number of statutory corporations falling within the rubric of “industry”. 21. In relation to what are “sovereign” and what are “non-sovereign” functions, this Court in Chief Conservator of Forests v. Jagannath Maruti Kondhare [ (1996)2 SCC 293 :1996 AIR SCW 735: AIR 1996 SC 2898 :1996 Lab IC 967], holds (paras 12 and 13) : “We may not go by the lables. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign functions does not really exist -- it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case [1994 AIR SCW 3753: AIR 1994 SC 2663 ]. As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in Courts of law. It was stated by Sahai, J. that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. It was stated by Sahai, J. that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. They are, therefore, not amenable to the jurisdiction of ordinary civil Court inasmuch as the State is immune from being sued in such matters. But then, according to this decision the immunity ends there. It was then observed that in a welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even martial. Because of this the demarcating line between sovereign and non-sovereign powers has largely disappeared. The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case [ AIR 1978 SC 548 :1978 Lab IC 467], would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come within the purview of the definition of industry; and, not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.” 22. In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be “Sovereign” is defence of the country, raising armed forces, making peace or war, foreign affairs, power to acquire and retain territory. These are not amenable to the jurisdiction of ordinary civil Courts. The other functions of the State including welfare activity of State could not be construed as “sovereign” exercise of power. Hence, every Governmental function need not be “sovereign”. State activities are multifarious. From the primal sovereign power, which exclusively inalienably could be exercised by the sovereign alone, which is not subject to challenge in any civil Court to all the welfare activities, which would be undertaken by any private person. Hence, every Governmental function need not be “sovereign”. State activities are multifarious. From the primal sovereign power, which exclusively inalienably could be exercised by the sovereign alone, which is not subject to challenge in any civil Court to all the welfare activities, which would be undertaken by any private person. So merely one is employee of statutory bodies would not take it outside the Central Act. If that be then section 2(a) of the Central Act read with Schedule I gives large number of statutory bodies should have been excluded, which is not. Even if a statute confers on any statutory body, any function which could be construed to be “sovereign” in nature would not mean every other functions under the same statute to be also sovereign. The Court should examine the statute to severe one from the other by comprehensively examining various provisions of that statute. In interpreting any statute to find it is “industry” or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amity should be the objective in the functioning of all enterprises. This is to the benefit of both, employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavor should not be in all circumstances to exclude any enterprise from its ambit. That is why Courts have been defining “industry” in the widest permissible limits and “sovereign” functioning within its limited orbit. 23. In N. Nagendra Rao and Co. v. State of A.P. [ (1994)6 SCC 205 :1994 AIR SCW 3753: AIR 1994 SC 2663 ], the question raised was about the liability of the State to pay compensation for the negligence or misfeasance on the part of its officers in discharge of their public duties under a statute, which are incidental or ancillary and not primary or inalienable function of the State. This decision holds that the State is immuned only in cases where its officers perform primary or inalienable functions such as defence of the country, administration of justice maintenance of law and order. This decision holds that the State is immuned only in cases where its officers perform primary or inalienable functions such as defence of the country, administration of justice maintenance of law and order. This Court held : “A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. In the modern sense the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of power and manner of its exercise ... One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in Courts of law. For instance, acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary civil Court.” 24. With reference to irrigation department of the State of Punjab this Court considered the question whether it is an “industry” within the meaning of section 2(j) of the Central Act. The function of this department is for the development of agriculture. It undertakes harness of the surface and ground water resources of the State, the equitable distribution. It involves construction of major, medium and minor irrigation projects, maintenance of network of channels, regulation of canal supplies, enforcement of water laws etc. It is also responsible to provide protection to the valuable irrigated lands and public property from flooding, river action and waterlogging. This requires construction of flood protection, river training, drainage and anti-waterlogging works and their maintenance. Its functions includes plan for irrigation development in the State. Each of these functions overall are inherently of the State. It is also responsible to provide protection to the valuable irrigated lands and public property from flooding, river action and waterlogging. This requires construction of flood protection, river training, drainage and anti-waterlogging works and their maintenance. Its functions includes plan for irrigation development in the State. Each of these functions overall are inherently of the State. With reference to this irrigation department in Des Raj v. State of Punjab [ (1988)2 SCC 537 : AIR 1988 SC 1182 :1988 Lab IC 1713], this Court held : “With regard to the activities of the irrigation department and as also the tests laid down in various decisions of this Court particularly applying the Dominant Nature test in Bangalore Water Supply and Sewerage Board case [ AIR 1978 SC 548 :1978 Lab IC 467] (supra), it was held to be an ‘industry’.” 10. The learned Single Judge of this Court in M.P. Rajya Van Vikas Nigam Limited v. Q.M. Qureshi and another [ 2003(II) MPWN 34 = 2003(1) MPLJ 497 ], relying on Agricultural Produce Market Committee v. Ashok Harikuni and another [ AIR 2000 SC 3116 ], quoted above has held that the M.P. Rajya Van Vikas Nigam Limited is an ‘industry’. 11. After applying the aforesaid principle of law laid down by the Hon’ble Supreme Court, there is no dispute that the forest department is an ‘industry’ within the meaning of section 2(j) of the Industrial Disputes Act. Hence, the provisions of the Act No.61 are applicable to the employees of the Forest Department. 12. The State Legislature enacted an Act i.e. the Act of 1961. Section 2 of the Act prescribes application of the Act which is as under : “2. Application of the Act. -- (1) This Act shall apply to : (a) every undertaking wherein the number of employees on any day during the twelve months preceding or on the day this Act comes into force or on any day thereafter was or is more than twenty and (b) such other class or classes of undertakings as the State Government may, from time to time, by notification, specify in this behalf; Provided that it shall not apply to an undertaking carried on by or under the authority of the Central Government or railway administration or a mine or an oilfield. (2) Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations or any other Rules or Regulations that may be notified in this behalf by the State Government in the Official Gazette apply.” 13. It is also a fact that the daily wager employees are not covered by the provisions of Civil Services (Classification, Control and Appeal) Rules and Civil Services (Temporary Service) Rules, hence, the Act of 1961 is applicable to the appellant. 14. Annexure to the Act of 1961 prescribes SSO for all the industries in the State. Regulation 14A of the aforesaid “SSO” prescribes the age of retirement of an employee which is as under : “14A. Retirement. -- An employee shall retire from the service of the employer on the date he attains the age of 58 years. He may, however, be retained in service by the employer after the date of attaining the age of 58 years if his services necessary in the interest of the undertaking but he shall not be retained in service after the age of 60 years.” 15. From the aforesaid statutory provision, it is clear that an employee working in an undertaking is entitled to continue in service up to 58 years of service. 16. A Full Bench of this Court in Superintending Engineer v. Dev Prakash Shrivas [ 1999(1) JLJ 391 = 1999(1) MPJR 1 (Full Bench)], has answered the reference in regard to applicability of the Act in the Government Department as under : “5. In the scheme of the rules, if we go back to sub-section (2) of section 2 of the Act of 1961 question is whether the present department is governed by any service rules, as notified under sub-section (2) of section 2 or not. Learned counsel for the State has not been able to point out whether the Rules mentioned in sub-section (2) of section 2 of the Act govern the present undertaking or not nor has been able to bring to our notice any exemption notification issued under this Act. Learned counsel for the State has not been able to point out whether the Rules mentioned in sub-section (2) of section 2 of the Act govern the present undertaking or not nor has been able to bring to our notice any exemption notification issued under this Act. Since the present department has not been exempted by issuing a notification in accordance with sub-section (2) of section 2 of the Act of 1961, the Act of 1961 read with Rules of 1963, the Standard Standing Orders shall govern the department. 6. In the case of State of M.P. and others v. Ram Prakash Sharma and others [ 1989 JLJ 36 ], this Court examined the provisions of the Industrial Employment (Standing Orders) Act, 1961 read with the Rules of 1963 and held that the service conditions which have been incorporated as Annexure shall apply. Though another aspect was also considered whether a direct petition is maintainable or not without going to the Industrial Court, that aspect was discussed in greater detail. Specifically the applicability of sub-section (2) of section 2 did not arise in that case. Be that as it may, the fact remains that in view of our present opinion that Annexure which is Standard Standing Order will definitely govern the present department also till a proper notification is issued under sub-section (2) of section 2 of the Act of 1961. Our attention was also invited to the decision of this Court in the case of Vandana Singh v. Steel Authority of India [ 1993 JLJ 55 ], where the question was with regard to Arts.14, 16 and 39(d) of the Constitution of India. There was a difference of opinion between members of the Division Bench. One learned Judge held that the incumbent was entitled for regularization and equal pay for equal work. The difference was whether he is entitled for equal pay for equal work when there was no permanent vacancy available. Another Hon’ble Judge held that in absence of permanent vacancy, no relief with regard to equal pay for equal work could be given. The view expressed by another learned Judge in that case appears to be well founded. This view appears to be in accordance with clause 2 of Standard Standing Order which says that existence vacancy is must. 7. Another Hon’ble Judge held that in absence of permanent vacancy, no relief with regard to equal pay for equal work could be given. The view expressed by another learned Judge in that case appears to be well founded. This view appears to be in accordance with clause 2 of Standard Standing Order which says that existence vacancy is must. 7. Hon’ble Referring Judge made reference of two decisions of apex Court in H.D. Singh v. Reserve Bank of India [ AIR 1986 SC 132 ], and Grih Kalyan Kendra Worker’s Union v. Union of India [ (1991)1 SCC 619 ]. Both these cases were with regard to regularization of daily wage employees who were working for long in the department. In that, the apex Court observed that such daily wagers cannot as a matter of right claim regularization as they were not regularly recruited according to the rules. Both these decisions of the apex Court were with regard to general principles for regularization of daily wagers who had put in long service and there were no statutory provisions like Standard Standing Orders involved in both these decisions. The present case is governed by the Act of 1961, Rules of 1963 and the statutory Standing Orders framed under the provisions of the Act. Therefore, general ratio laid down by the apex Court will not govern the present case. 8. As a result of above discussion, we hold that by virtue of sub-section (2) of section 2, unless Government notifies that particular rules which are applicable to that department will exempt the application of the provisions of the M.P. Industrial Employment (Standing Orders) Act, 1961, till that time the provisions of the Act, Rules and Orders issued thereunder will govern that Department. The reference are accordingly answered.” 17. Earlier also, in Madhya Pradesh State Road Transport Corporation v. Heeralal Oghhelal and others, reported in 1980 JLJ 16 =1980 MPLJ 8, Five Judges Bench of this Court has held as under in regard to the applicability of the Act of 1961 : “13. Before parting with the case we desire to point out that in Ramchandra’s case the conflict between the regulations made under the Road Transport Corporations Act, 1950 and the Standard Standing Orders made under the Madhya Pradesh Standing Orders Act was solved by recourse to Article 254 of the Constitution. Before parting with the case we desire to point out that in Ramchandra’s case the conflict between the regulations made under the Road Transport Corporations Act, 1950 and the Standard Standing Orders made under the Madhya Pradesh Standing Orders Act was solved by recourse to Article 254 of the Constitution. It was held in that case that the Road Transport Corporations Act was enacted by Parliament in exercise of its powers under Entries 43 and 44 of the Union List and the Standing Orders Act by the State Legislature under entry 24 of the Concurrent List. The conclusion that one of the competing legislations pertained to a matter in the Union List, made Article 254 wholly inapplicable for now it is well settled that Article applies only when the competing legislations, one made by Parliament and the other made by the State Legislature, both pertain to a subject in the Concurrent List. Article 254(2) is in terms limited to matters in the Concurrent List and although in Article 254(1) the language while referring to a law made by Parliament is not that specific, judicial decisions have confined its application to Concurrent List. In A.S. Krishna v. State of Madras [ AIR 1957 SC 297 , p.300], while dealing with section 107(1) of the Government of India Act, 1935 which was identically worded as Article 254(1) of the Constitution, the Supreme Court observed; “For this section to apply, two conditions must be fulfilled : (1) Provisions of the provincial law and those of the Central Legislation must both be in respect of a matter which is enumerated in the concurrent list and (2) they must be repugnant to each other”. These observations were adopted as correct exposition of Article 254(1) Premnath v. State of J & K [ AIR 1959 SC 749 , p.763], and Kerala State Electricity Board v. Indian Aluminium Co. [AIR 1975 SC 1031, p.1039]. Further, in M. Karunnadhi v. Union of India [ AIR 1979 SC 898 , p.902], the Supreme Court again read Article 254(1) as confined to matters in the concurrent list. [AIR 1975 SC 1031, p.1039]. Further, in M. Karunnadhi v. Union of India [ AIR 1979 SC 898 , p.902], the Supreme Court again read Article 254(1) as confined to matters in the concurrent list. If a legislation made by Parliament, which in pith and substance is under the Union List, incidentally trenches upon a subject in the concurrent list or State List covered by a State Legislation, the legislation made by Parliament whether before or after the State Legislation will prevail in case of conflict not because of something contained in Article 254 but because of inherent supremacy of Parliament’s power of legislation in respect of a matter in the Union List conferred by clause (1) of Article 245 of the Constitution which operates “notwithstanding anything contained in clauses (2) and (3)” which deal with legislations in the Concurrent and State Lists and which clearly provide that the power of the State Legislature to legislate in matters contained in those lists is “subject to” Parliament’s power of legislation in the Union List. A conflict of this nature is conceivable and can arise because of the doctrine of pith and substance which permits incidental encroachment in the domain of the rival Legislature. However, such a conflict must be inferred only as a matter of last resort when it is impossible to reconcile the competing legislations by recourse to the rules of harmonious construction which include the rule that a general provision is not intended to come in the way of or to supersede a special provision. We may only add that it is on this principle that regulations made under section 45(2)(c) of the Road Transport Corporations Act are to be subordinated to Standard Standing Orders on matters specified in the schedule to the Standard Standing Orders Act unless the regulations are notified under section 2(2) or certified as Standing Orders in accordance with the procedure laid down in the said Act.” 18. There is statutory provision in regard to retirement of employees of an undertaking under the Act of 1961. In the aforesaid Act, there is no distinction between daily wager employee or regular employee. It is applicable to all the employees. The Act of 1961 has been enacted by the Legislature as a welfare legislation to provide certain benefits and legal rights to the employees in order to prevent exploitation of workers. 19. In the aforesaid Act, there is no distinction between daily wager employee or regular employee. It is applicable to all the employees. The Act of 1961 has been enacted by the Legislature as a welfare legislation to provide certain benefits and legal rights to the employees in order to prevent exploitation of workers. 19. The learned Deputy Advocate General has relied on the judgment of Division Bench of this Court passed in the case of Badri (supra). The Division Bench of this Court has finally answered the reference and held as under : “17. Consequently, we answer the reference by holding that the learned Single Judge of this Court in Mathura Prasad Yadav v. State of M.P., reported in 2010(3) MPLJ 323 , has taken a correct view that the daily wager employees are not eligible to continue in service up to the age of 62 years and the order passed by the learned Single Judge in another Writ Petition No.6692/2010(S), Ramswaroop Sharma v. State of M.P. and others, has not taken the correct view. We further hold that a daily wager employee is not entitled to claim particular age limit for continuing in service in absence of any rule in this regard. The department or Government is at liberty to fix the age of a daily wager to continue in service. Accordingly, we answer the reference and substantial question of law framed by the learned Single Judge.” 20. From the finding of the Division Bench, it is clear that the Division Bench has held that the daily wager employee is not entitled to claim particular age limit for continuing in service in absence of any rule in this regard. The Act of 1961 has been enacted by the State Legislature to provide protection to the employees working in the establishment. The Full Bench also quoted above has held that the Government departments are covered under section 2 of the Act of 1961 and the Act is applicable to the Government departments. Annexure of the Act of 1961 ‘SSO’ is applicable to the Government department and section 14A of the ‘SSO’ provides age of retirement. Hence, there is statutory legislation in regard to benefit of age of retirement to a daily wager employee. The judgment passed by the Division Bench of this Court in our opinion is distinguishable. 21. Annexure of the Act of 1961 ‘SSO’ is applicable to the Government department and section 14A of the ‘SSO’ provides age of retirement. Hence, there is statutory legislation in regard to benefit of age of retirement to a daily wager employee. The judgment passed by the Division Bench of this Court in our opinion is distinguishable. 21. The learned Deputy Advocate General also relied upon the Constitution Bench judgment of the Hon’ble Supreme Court passed in Secretary, State of Karnataka and others v. Umadevi (3) and others [ (2006)4 SCC 1 ], where the Hon’ble Supreme Court has held as under in regard to the daily wager : “43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire anyright. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the Court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 52. Normally, what is sought for by such temporary employees when they approach the Court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College [1962 Supp.(2) SCR 144: AIR 1962 SC 1210 ]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a College. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College [1962 Supp.(2) SCR 144: AIR 1962 SC 1210 ]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a College. This Court held that in order that a mandamus may issue to compel the authorities to do something it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues, and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.” 22. After perusal of the judgment of the Constitution Bench, it is clear that the issue before the Hon’ble Constitution Bench was regularization of daily wager employees. The Constitution Bench has not considered the provisions of the Act of 1961 quoted above as ‘SSO’ narrated above in this order. Hence, the dictum laid down by the Constitution Bench of the Hon’ble Supreme Court would not be applicable in the present case. 23. Hence, in our opinion, the appellant is entitled the benefit to continue in service up to the age of 58 years in accordance with Regulation 14A of the ‘SSO’ annexure to the Act of 1961 a statutory protection available to the appellant. However, it is hereby clarified that if the department wants to terminate services of the appellant, it can do the same after applying provisions of Industrial Disputes Act. 24. Consequently, the appeal filed by the appellant is allowed. The order passed by the learned Single Judge is hereby set aside and the petition filed by the appellant is hereby allowed. It is held that the appellant is entitled to continue in service up to the age of 58 years with consequential benefits. No order as to the costs.