JUDGMENT 1. W.P.No.45180/2012 is filed by the State and its authorities, calling in question the award dated 14th September 2011 of the Industrial Tribunal, Mysore, in Reference No.131/2004 – Annexure-A insofar as it relates to the finding that the Department of Forest is an “industry” under Section 2(j) of the Industrial Disputes Act, 1947 (for short ‘Act’), while W.P.No.35893/2012 is filed by the workman against the very same award insofar as it relates to the direction to pay compensation of Rs.1,25,000/- in lieu of reinstatement and backwages and all other consequential benefits. 2. Petitioner in W.P.No.35893/2012 claiming to have been appointed as a Watcher (Forester) on daily rated basis, and worked continuously without any break in service, since 1983 in the respondent – Forest Department, at Hongere forest yard, when sought regularisation of service, was dismissed without any notice, by an oral order dated 15.1.2002. Petitioner alleging illegal termination initiated conciliation proceeding which, when resulted in a failure report, the State Government exercising its jurisdiction under the Act referred, for adjudication, the industrial dispute to the Industrial Tribunal at Mysore, registered as Reference No.131/2004. 3. To the claim statement filed by the workman, the respondent – State and its authorities filed a counter statement denying the allegations and contended that, the workman was not appointed as a Watcher, but was engaged during seasonal work, for planting fire control, etc., in the department, for some days in a year and had not worked continuously for 240 days in a year. In addition, it was contended that none of the coemployee alleged, were absorbed in service much less terminated from service. According to the respondent, workman did not report for work from 15.1.2002 hence, was not engaged. In addition, it was contended that, the Department of Forest was not an “industry” under Section 2(j) of the ‘Act’. 4. The workman was examined as WW-1 and marked documents Exs.W1 to W9, while the Range Forest Officer was examined as MW-1 and did not mark any document. 5. The Industrial Tribunal by award impugned held that, the Forest Department was an “industry” and as the workman had worked continuously on daily rated basis since 1983, though in the absence of relevant material constituting substantial legal evidence of the fact of continuous service from 1983 onwards upto 2002, nevertheless directed payment of Rs.1,25,000/- as compensation in lieu of reinstatement, backwages and consequential benefits. 6. 6. There is force in the submission of the learned Government Advocate that the Industrial Tribunal having noticed at paragraph-10(1) of the award that there was no pleading or detailed pleading by either parties on the point as to whether the Forest Department was an “industry” or not, the Tribunal could not have concluded that the Department was an “industry”. If there was no pleading, the question of answering a point for consideration as to whether the Forest Department was an “industry” or not, did not arise for consideration. The Supreme Court in the case of State of Gujarat and others -vs- Pratamsingh Narsinh Parmar ( 2001 (9) SCC 713 ) held that, a Government Department is not an industry and that where there is a dispute that the Government Department is not an industry, it is for the workman to establish by leading cogent evidence that the Department was an industry. 7. Admittedly, the workman did not place substantial legal evidence of the fact that the Department was an industry and if that is so, regard being had to the opinion of the Apex Court supra, the Industrial Tribunal recorded a finding that the respondent – Forest Department was an “industry” under Section 2(j) of the Act, in the absence of pleading and proof, hence illegal and arbitrary. On that score alone, the award deserves to the quashed. 8. Learned Counsel for the workman submits that the direction to pay compensation of Rs.1,25,000/- in lieu of reinstatement, continuity of service and consequential benefits, is unsustainable. 9. There being no dispute that the workman was engaged as a daily wager by the Department of Forest and though the workman did endeavour to establish continuous service of more than 240 days in the 12 months preceding the termination, nevertheless, proof of such continuous service was not forthcoming from the material before the Industrial Tribunal. It was incumbent on the part of the workman to place relevant material constituting substantial legal evidence of the fact of having completed 240 days of continuous service during 12 months preceding the termination. 10. In Madhyamik Siksha Parishad, U.P Vs. Anil Kumar Mishra and others ( AIR 1994 SC 1638 ), a three Judge Bench observed thus: “4. We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. 10. In Madhyamik Siksha Parishad, U.P Vs. Anil Kumar Mishra and others ( AIR 1994 SC 1638 ), a three Judge Bench observed thus: “4. We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days’ work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days’ work does not, under that law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here.” 11. In Haryana State Electronics Development Corporation Vs. Mamni ( (2006) 9 SCC 434 ) the Apex Court having noticed that the workman was initially appointed for 89 days and thereafter extended from time to time, was terminated on 7.8.1992, observed that said appointment was an irregular, not in terms of the recruitment rules, having regard to the Constitution Bench decision in Secretary, State of Karnataka Vs. Umadevi (3) and others ( (2006) 4 SCC 1 ) compensation of Rs.25,000/- instead of reinstatement and back wages. 12. In Indian Drugs & Pharmaceuticals Limited at paragraphs 20, 23, 24, 26, 27, 31, 34 and 53, the Apex Court brought about a distinction between a temporary employee and permanent employee. Umadevi (3) and others ( (2006) 4 SCC 1 ) compensation of Rs.25,000/- instead of reinstatement and back wages. 12. In Indian Drugs & Pharmaceuticals Limited at paragraphs 20, 23, 24, 26, 27, 31, 34 and 53, the Apex Court brought about a distinction between a temporary employee and permanent employee. In that the term ‘permanent employee’ has a right to the post, while a ‘temporary employee’ has no right to the post and further that the permanent employee has a right to continue in service until the age of superannuation but as regards temporary employee there is no age of superannuation because he has no right to the post at all and therefore, no directions can be issued in case of any temporary employee that he should be continued till the age of superannuation, while similarly no direction could be given directed that the daily wage employee should be paid salary of a regular employee. Further that if an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. The Apex Court held that Courts cannot direct continuance of service in case of non-regular appointee even if an ad hoc or casual appointment is made in some contingency the same should not be continued for long, since a casual or temporary employee is not employed to the post, in the real sense of the term. Their lordships further observed thus: “The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment.” It was further observed that unless appointments are made by following the rules, such appointees have no right of absorption in the establishment. In addition their lordships held thus: “Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional but it is also fraught with grave peril for the judiciary.” At paragraph 16 their lordships observed thus: “The Labour Court and the High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies.” 13. In Jaipur Development Authority –v- Ram Sahai ( 2007 (1) LLJ 429 ) the Apex Court observed thus: “28. We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an Award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11-A must be exercised judiciously. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. Respondent had not regularly served Appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be sub-served if instead and in place of re-instatement of his services, a sum of Rs.75,000/- is awarded to Respondent by way of compensation as has been done by this Court in a number of its judgments. (See State of Rajasthan and Another – v- Ghyam Chand 2007I-LLJ-228 (Civil Appeal No.3214/2006, disposed of on July 28, 2006)” 14. (See State of Rajasthan and Another – v- Ghyam Chand 2007I-LLJ-228 (Civil Appeal No.3214/2006, disposed of on July 28, 2006)” 14. In State of Madhya Pradesh –v- Lalit Kumar Verma ((2007) 1 SCC 575) the Apex Court held thus: “20. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation. The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post. 21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (supra). It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article of the Constitution of India. 22. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be sub-served if we direct that any benefit which has already been given to the respondent shall not be recovered. He is also directed to be paid a sum of Rs.1,50,000/- (One lakh fifty thousand) towards compensation and costs for condoning the massive delay in filing the Special Leave Petition.” Regard being had to the facts obtaining in the aforesaid case, the workman was appointed on daily wages and not in terms of statutory rules, while no offer of appointment was issued, however, on an application made by him before the Labour Court, an award made, it was observed that working continuously for a period of more than six months did not secure to the workman a right of permanent clerk but his services may not have been terminated without complying the provisions of Section 25F of the ID Act, regard being had to Umadevi’s case (supra ( (2006) 4 SCC 1 )), hence the Apex Court directed Rs.1,50,000/- as compensation in lieu of reinstatement and back wages. 15. In Jagbir Singh Vs. 15. In Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another ( AIR 2009 SC 3004 ) Court following a line of decisions observed that the Court had clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside, but an award of reinstatement should not, however, be automatically passed and that it was not proper to award reinstatement with full back wages in case workman has completed 240 days in a year preceding the date of termination, particularly daily wagers. In addition, it was observed that a distinction between a daily wager is he does not hold a post which a permanent employee holds and accordingly, directed payment of compensation of Rs.50,000/- to the workman who was intermittently engaged from 1.9.1995 to 18.7.1996. 16. In Uttar Pradesh State Electricity Board Vs. Laxmi Kant Gupta ( (2009) 16 SCC 562 ), the Apex the Apex Court held that there has been a shift in the legal position which has been modified by the Courts and therefore, there is no hard and fast principle that on the termination of service being found to be illegal, the common rule is reinstatement with back wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending upon the facts and circumstances of the case. In the facts obtaining therein, the workman received more than Rs.7,00,000/- although he had worked only for two years between 1984 and 1986 as a purely temporary employee and had raised the Industrial Dispute 10 years after the termination of service and therefore, opined that the workman was sufficiently compensated. 17. In Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santhosh Kumar Seal and others ((2010) 6 SCC 77), the Apex Court having noticed the fact that workmen were engaged as daily wagers about 25 years ago, for hardly 2 or 3 years, denied the relief of reinstatement and directed compensation at the rate of Rs.40,000/- for each workman, in lieu of reinstatement. 18. Santhosh Kumar Seal and others ((2010) 6 SCC 77), the Apex Court having noticed the fact that workmen were engaged as daily wagers about 25 years ago, for hardly 2 or 3 years, denied the relief of reinstatement and directed compensation at the rate of Rs.40,000/- for each workman, in lieu of reinstatement. 18. The question as to whether an order of reinstatement automatically follows the case where engagement of a daily wager is brought to an end in violation of Section 25F of ID Act, came up for consideration before the Apex Court in Incharge Officer and another V/s Shankar Shetty ( (2010) 9 SCC 126 ) whence, following the opinion in a catena of decisions of the Apex Court including the decision in Jagbir’s case, observed had rendered an answer uniform on the said question and regard being had to the facts of that case where the workman was engaged continuously for about 7 years, intermittently up to 6.9.1985 i.e., about 25 years ago, directed payment of compensation of Rs.1,00,000/- in lieu of reinstatement. 19. In Rajkumar Vs. Jalagaon Municipal Corporation ( (2013) 2 SCC 751 ) the Apex Court having noticed that the workmen were employed on daily wages or on temporary basis sometime during the year 1989 and terminated during the year 1991 approached the Labour Commissioner during 2001, directed compensation of Rs.1 lakh/- each for such of those workmen who approached the Conciliation Officer within two to three years from the date of termination in lieu of reinstatement and back wages. 20. Having regard to the aforesaid observations of the Apex Court and applying the same to the facts and circumstances of this case, undoubtedly the workman did endeavour to have his service continued, but with no avail. The fact that workman was engaged as a daily wager, as noticed supra, cannot be doubted. Whether he had completed 240 days of continuous service or not, is certainly in doubt in the absence of relevant material. Be that as it may. The Industrial Tribunal having noticed that even if there is violation of Section 25-F of the Act, in the matter of service of the workman, it is not axiomatic that reinstatement, continuity of service and backwages is a must and therefore, directed payment of Rs.1,25,000/- in lieu of reinstatement, continuity of service and consequential benefits. Be that as it may. The Industrial Tribunal having noticed that even if there is violation of Section 25-F of the Act, in the matter of service of the workman, it is not axiomatic that reinstatement, continuity of service and backwages is a must and therefore, directed payment of Rs.1,25,000/- in lieu of reinstatement, continuity of service and consequential benefits. In my considered opinion, the direction issued by the Industrial Tribunal in this regard, in the facts and circumstances of the case, appears to be just, proper and legal. In the result, W.P.No.45180/2012 of the State Government, is allowed in part. The award of the Industrial Tribunal insofar as it relates to recording a finding that the Forest Department is an “industry” under Section 2(j) of the Industrial Disputes Act, 1947, is quashed. W.P.No.35893/2012 filed by the workman is dismissed. The direction to pay compensation of Rs.1,25,000/- to the workman is confirmed. Failure to comply with the award, by the State within two months, compensation will carry interest @ 24% per annum, though the Tribunal has awarded interest @ 9% per annum until payment.