BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner, State of Rajasthan challenges the award dt. 17. 4. 98 (Annexure/22) passed by the Industrial Tribunal & Labour Court, Udaipur reinstating six workmen who are respondents here and were declared surplus in pursuance of direction of the Government. By the said order dt. 26. 8. 89 the workmen who were appointed between 1. 7. 84 to 14. 1. 85 only were retrenched. The workmen have claimed that termination of their services was contrary to Section 25n of the Industrial Disputes Act as well as Section 25g, inasmuch as persons junior to them and appointed after retrenched workmen in question were asked still to continue in service. The Tribunal agreeing with both the conditions further found that the present petitioner has failed to make out a case that Mahi Project come to a close and their reinstatement is not possible. With these findings the six workmen were reinstated with 50% back wages. The award was made on 17. 4. 98 and was published soon there after on 21. 7. 98. Now this petition has been filed on 27. 2. 99 and reply was filed by the respondents on 5. 11. 99 copy of which was delivered to the petitioner on 4th Nov. 1999. The respondents alleged that petitioner has not disclosed material facts and events that have taken place subsequent to passing of the award before filing of the writ petition. It was alleged and supported by requisite documents that a settlement was arrived at between the Executive Engineer, Mahi Project, Banswara, who is the employer within the meaning of Industrial Disputes Act, and the workmen in question along with President Mahi Karamchari Sangh, Banswara, according to which the workmen agreed to forgo 50% back wages granted to them, on reinstatement the Management agreed to count entire intervening period since date of termination as continuity of service for all other purposes. The workmen also gave up their claim to the interest on the arrears of wages and the cost awarded by the Labour Court. It was further agreed between the parties that the amount paid to the workmen as compensation at the time of their declaration of surplus shall be recovered from the workmen in 12 monthly instalments out of salary payable to them. After this agreement was duly signed on 6. 7. 98 by respective parties. The office order was issued on 14. 8. 98 making a reference to aforesaid settlement by reinstating all the six workmen at different places. Thereafter by order dt. 19. 12. 98 the Executive Engineer informed the workmen that settlement dt. 7. 7. 98 is cancelled. In the first instance the substance of the contention of the learned counsel for the respondents is that the petitioners have not disclosed the facts relevant for the purposes of challenging the award fully and truly in the writ petition. There is no whis-per in the petition about the afore-mentioned facts of entering into agreement with the workmen giving effect to that agreement and thereafter resiling therefrom unilater-ally. If valid settlement has been arrived at and has been acted upon by reinstating the workmen the subsequent repudiation of settlement would not automatically denude the workmen of their rights which have come to be vested in them under the agreement while it was operative and deprive them from rights flowing from the workmen.
(3.) I do not find any substance in the merit of the case also. The only ground raised in the petition is that the provision of Industrial Disputes Act relating to retrenchment under Sections 25f and 25n are not applicable to the termination effected by the petitioners in the Irrigation Deptt. because the same is not an `industry' within the meaning of Section 2 (j) of the Industrial Disputes Act. Learned counsel for the petitioner relied on the decision of Hon'ble the Supreme Court in Himanshu Kumar Vidyarthi & Ors. vs. State of Bihar & Ors. (1 ). That case arose from a co-operative department. Against that learned counsel for the respondents has placed reliance on another decision of Supreme Court in Des Raj vs. State of Punjab & Ors. (2), which is a decision by larger bench in which the Supreme Court has categorically held that Irrigation Deptt. of the Government to be industry within the meaning of Section 2 (j) of the Industrial Disputes Act and in view of workmen employed thereunder governed by the provisions of the Industrial Disputes Act. In view of direct decision of Supreme Court applicable to the department of Irrigation, the observations made by the Supreme Court in another case partaining to controversy relating to some other department cannot be automatically made applicable to the facts of the present case. That apart the principle is well settled, since the decision of Supreme Court in Bangalore Water Supply & Sewerage Board vs. A. Rajappa & Ors. (3), wherein seven Judges Constitutional Bench construing the provision of Section 2 (j) of the Industrial Disputes Act laid down that where there is systematic activity, organised by co-operation between employer and employee (the direct and substantial element is chimerical) for the production and or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e. g. making, on a large scale, prasad or food, prima facie, there is an `industry' in that enterprise. ;