JUDGMENT : SHARAD KUMAR SHARMA, J. 1. Heard learned counsel for the parties at length. 2. The petitioner/employer in the instant writ petition has put a challenge to the award dated 31.10.2011, as it was rendered by the learned Presiding Officer/Labour Court in Adjudication Case No. 16 of 2011, Raghuveer Singh vs. Executive Engineer, Uttari Ganga Nahar, Roorkee. The reference of industrial dispute, which was sought therein by invoking the provisions contained under Section 4(K) of the U.P. Industrial Disputes Act, it was in relation to “as to whether the termination of services of the workman by the employer was justified or not and whether the said termination happen to be in violation of the provisions contained under Section 6N of the Industrial Disputes Act to be read with Rule 42 of the Rules framed under the Act, i.e. the Uttar Pradesh Industrial Disputes Rules of 1957.” 3. The workman came up with the case that he was inducted as a Beldar, being an unskilled worker with the respondent department on 22.05.1981 and he had continuously worked there in the said capacity till 20.12.1994 i.e. the date from which his services were discontinued. 4. He contended in the reference proceedings that ever since 20.12.1994, the act of the employer of refusing to pay the salary and not permitting to take work from the workman will itself tantamount to be a termination from the services and thus he contended that he would be entitled for the grant of the entire service benefits including the setting aside the order of termination because since he has worked over 240 days in a calendar year, coupled with the fact that there was a non-compliance of the provisions contained under Section 6N of the Industrial Disputes Act. 5. The workman had submitted that if the period for which he has rendered his services from his initial date of appointment on 22.05.1981, is taken into consideration as per the muster roll entries, prepared by the petitioner, he has completed 240 days of service in a calendar year, hence dispensation of services without compliance of the provisions contained under Section 6N of the Industrial Disputes Act, would be bad in the eyes of law. 6. 6. Before the Labour Court, as well as even before this Court too, the learned counsel for the petitioners has vehemently argued, that the entire reference proceedings as against the order of termination would be bad for the reason being that the issue referred to be decided under Section 4K is bad as the petitioner contended that it would not be an “industrial dispute” and the Irrigation Department will not be an “industry” within the definition as provided under Section 2(k) of the Industrial Disputes Act. 7. If the classification of definition of an “industry” and “industrial dispute”, as defined under Section 2(l) is compositively taken into consideration, the various elements which are prescribed to be satisfied therein is that it has had to be an engagement in a business or a trade or the ambit of states of services would be included in the definition of industry in relation to the services rendered to a government organization and who is discharging, duties as of a public functionary. The relevant definition contained under Section 2(k) and 2(l) of the U.P. Industrial Disputes Act, are extracted hereunder: “(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 workman. (l) ‘Industrial Dispute’ means any dispute or difference between 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. (ii) such controlled industry as may be specified in this behalf by Central Government. (ii) banking and insurance companies as defined in the Industrial Disputes Act, 1947. (iv) a mine or an oil-field.” 8. (ii) such controlled industry as may be specified in this behalf by Central Government. (ii) banking and insurance companies as defined in the Industrial Disputes Act, 1947. (iv) a mine or an oil-field.” 8. The learned counsel for the respondent submitted that this issue as to whether the Irrigation Department would fall to be an industry within the definition of Section 2(k) of the Act or not was a question which was considered by the Hon’ble Apex Court in the matters of Des Raj and Others vs. State of Punjab and Others, 1988 (2) SCC 537 and particularly this aspect of Irrigation Department being an industry or not was dealt with by the said judgment in Para 13, which is extracted hereunder: “13. The Administrative Report of the facts found by the High Court in the instant case have attempted to draw out certain special features. The legal position has been indicated in the earlier part of our judgment. On the tests, as already laid down in the judgments, we do not think these facts found in this case can take out the Irrigation Department outside the purview of the definition of 'industry'. We have already referred to the Dominant Nature test evolved by Krishna Iyer, J. The main functions of the Irrigation Department were subjected to the Dominant Nature test clearly come within the ambit of industry. We have not been able to gather as to why even six years after the amendment has been brought to the definition of industry in section 2(j) of the Act the same has not been brought into force. This Court on more than one occasion has indicated that the position should be clarified by an appropriate amendment and when keeping in view the opinion of this Court, the law was sought to be amended, it is appropriate that the same should be brought into force as such or with such further alterations as may be considered necessary, and the legislative view of the matter is made known and the confusion in the field is cleared up.” 9. In fact, if Para 13 of the aforesaid judgment is taken into consideration, the Hon’ble Apex Court has laid down its foundation for holding the Irrigation Department, as to be an industry in the light of a well reckoned governing principal laid down by the Hon’ble Apex Court in the judgment rendered in the matters of Bangalore Water Supply and Sewerage Board vs. A. Rajappa and Others, 1978 (2) SCC 213 . 10. In view of the aforesaid principals, the Court has observed that since the function of Irrigation Department are subject to the dominant nature, the test of treating it as to be an industry would be well within the ambit of public functionary systems, which the organization has to discharge and thus it was held to be an industry thus this question raised by the learned counsel for the petitioners is answered against him. 11. The workman who is now deceased, as is being represented by his heir as substituted later on after his death, in order to prove the fact that he has functioned from 22.05.1981 to 28.12.1994, later workman had appeared in the witness box and has recorded his statement as WW1 and he was also cross-examined by the petitioners witness EW1 and the workman, in support of his contention had filed various documents by way of list 14-B(ii), those were the documents pertaining to show that the applicant was inducted into the services of the petitioner and he had performed his duties, which could be inferred from the various documents which were placed on record. 12. Even the Labour Court has decided the question of the continuance working of the workman on the basis of the aforesaid document holding thereof that the workman has worked over more than 240 days and as such in each calendar year, hence he would be a workman where the compliance of Section 6N becomes mandatory prior to dispensation of services. 13. 13. This aspect about the working of the workman for 240 days was dealt with by the Labour Court while deciding point No. 2, where he has considered the statement of the workman WW1 and the cross examination as made in Para 48 of the examination, whereby as per the records available w.e.f. March 1989 till December, 1989, it showed that the workman has worked over 260 days in each calendar year, and thereafter as per the records for the year 1990 w.e.f. January 1990 to December, 1990, he was shown to have worked 76 days, but later on his continuance in job was a fact which stood satisfied by the register maintained by the employer, wherein for the year 1991 to December, 1991, the workman was shown to have worked for 290 days. 14. Thus based on that the learned Labour Court arrived at a conclusion that in the light of the provisions contained under Sub-Rule (9) of the Rules 19 framed under the Industrial Disputes Act, where it has provided that an affidavit accompanying the written statement of the Union or the workman if it is not rebutted by the employer, it would be presumed that its contents were true and would be taken as to be a fact admitted by the employer since it remained unrebutted. 15. In view of what has been observed by the Labour Court while rendering the award after considering the aspect pertaining to continuing service rendered by the workman, the award has been rendered on 31.10.2011, whereby the back wages has been denied to be paid to the workman and he has been directed to be treated to be in continuous service ever since his date of induction i.e. on 22.05.1981 and he has been made entitled to be paid with all the benefits from the date of his termination till the passing of the award dated 31.10.2011. 16. Since the service benefits and the salary are the property, which would be succeeded by the heir, hence upon the death of the workman, his heir had been substituted and his substitution since being not opposed, he would be entitled to receive the benefit accruing from the award dated 31.10.2011, which would have been otherwise made payable to the deceased workman. In the light of the aforesaid, as far as the award is concerned, I do not find any apparent error in the same, thus the writ petition is dismissed. 17. It is made clear that the employer would ensure to remit the amount under the award to the heir of the deceased workman within a period of six weeks from the date of presentation of the certified copy of this judgment by the substituted heir before the employer, lest failing which it could be recovered in accordance with the provisions of the U.P. Industrial Disputes Act.