The central legal point established in the judgment is the interpretation and application of the definitions of industry and workman under the Industrial Disputes Act, along with the statutory conditions for termination.

G. S. SINGHVI, J.

1. This is a petition for quashing of the award, dated January 4, 1999, passed by the presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat (respondent No.2)in reference No.87 of 1995 and 1052 of 1998.

2. The facts which have bearing on the decision of the writ petition are that respondent no.1 Jai Kishan was engaged as a daily- wage employee under the Sub-Divisional Officer, sudkain Sub-Division (IB), Narwana in July 1989. His services were discontinued at the end of August 1993. By an order passed under sec. 10 (1) (c) of the Industrial Disputes Act, 1947 (for short, the Act), the State Government made a reference to respondent No.2 for adjudication of the dispute relating to the legality and justification of the action of the employer to discontinue the services of respondent No.1.

3. After considering the pleadings and evidence produced by the parties and hearing their representatives, respondent No.2 held as under their representatives, respondent No.2 held as under:

(1) That respondent No.1-workman had actually worked under the employer for a period of more than 240 days within a period of 12 months preceding the date of termination of his services.

(2) The employer had not complied with sec. 25-F of the Industrial Disputes Act, 1947. On the basis of these findings, respondent no.2 declared the termination of respondent no.1 as illegal and ordered his reinstatement with backwages. The petitioner has challenged the impugned award on the following grounds: (a) the Irrigation Department of the State does not fall within the term of industry as defined in Sec.2 (j) of the Act and, therefore, respondent No.2 did not have the jurisdiction to entertain the reference made by the State Government; (b) respondent No.1 is not covered by the definition of workman and as such the so-called termination of his service cannot be nullified on the ground of violation of Sec.2 (oo) read with Sec.25-F of the Act. We have carefully gone through the record and are of the considered opinion that the impugned award does not suffer from any error of law warranting issue of a writ in the nature of certiorari.

4. The petitioners plea that the Irrigation department does not fall within the definition of industry under Sec.2 (j) and, therefore, respondent No.2 did not have the jurisdiction to entertain the reference deserves to be rejected. The reasons for this conclusion of ours are:

(a) it was neither pleaded on behalf of the petitioner nor any evidence was produced before respondent No.2 to prove that the activities of the project/works in connection with which respondent No.1 had been engaged from 1989 to 1993 did not involve carrying on of systematic activity with the aid and co-operation of the employees for the benefit of the public at large or that the project was undertaken by the State in discharge of its sovereign functions. Therefore, we are unable to hold that the Irrigation Department does not fall within the definition of industry. Moreover, plea of this nature, the determination of which depends on evaluation of evidence of the parties etc. , cannot be allowed to be raised for the first time before the writ Court, particularly, when the petitioner has failed to lay factual foundation for such a plea;

(b) the decision of the Supreme Court in executive Engineer, State of Karnataka V/s. K. Somasetty and Others AIR 1997 SC 2663 : 1997 (5) SCC 434 : 1997-II-LLJ-698, relied upon by the petitioner cannot be made basis for nullifying the impugned award. In that case, the two-Judges Bench of the Supreme Court, without discussing the often quoted judgment of the seven-Judges Bench in Bangalore Water supply and Sewerage Board V/s. R. Rajappa and others AIR 1978 SC 969 : 1978 (2) SCC 213 : 1978-I-LLJ-349. "it is now well-settled legal position that irrigation Department and Telecommunication Department are not industry within the meaning of definition under Industrial Disputes Act as held in union of India V/