Daily wage workers who are engaged without following any statutory rules cannot be allowed to enter Government service through the back door, and the Labour Courts cannot be allowed to be used as a legal means for such back door entry.

By this petition under Article 226 of the Constitution of India, the petitioner State of U. P. challen ges an award made by the Presiding Of ficer, Labour Court, Haldwani and pub lished on 20-10-1992. The respondent No. 2 Deep Chandra was engaged as super visor on daily wages by that Executive En gineer, Irrigation Division, Haldwani. He worked on that basis during the years 1982 to 1988 for several periods. He was, how ever, not engaged from 1-9-1989. He raised an industrial dispute and the matter was referred to the Labour Court which has held that the termination of the ser vices of respondent No. 2 is unjustified and illegal and he was entitled to reinstate ment. The Labour Court, therefore, or dered that the respondent No. 2 be reinstated with full back wages. This award is challenged is this writ petition. The con tention is that the respondent No. 2 was employed on a daily wage basis and had no right to continue in employment and that the Irrigation Department was not an in dustry and, therefore, the Labour Court had no jurisdiction. The respondent No. 2 has filed a counter-affidavit and rejoinder affidavit has also been filed.

2. I have heard Sri K. M. Sahai, learned Counsel for the petitioner and Sri Manoj Tiwari, learned Counsel for the respondents.

3. It is not in dispute that Irrigation Department is a Department of the State of Uttar Pradesh and recruitment in the said department is regulated by statutory rules framed by the Government of Uttar Pradesh in exercise of powers under Ar ticle 309 of the Constitution of India. The impugned award as well as the counter-af fidavit make it clear that the respondent No. 2 was not appointed to any civil post in accordance with such rules and he was engaged only on a day to day basis that is why he did not get salary for all 365 days in a year.

4. As stated in paragraph 5 of the rejoinder affidavit he was paid for 61 days in 1982, 268 days in 1983, 289 days in 1984, 325 days in 1985, 299 days in 1986, 328 days in 1987 and 327 days in 1988. The conten tion of the petitioner is that he having worked for 240 days in a year, his services could be retrenched only in accordance with the provisions of Section 25-F of the Industrial Disputes Act which prescribes condition precedent to the retrenchment of workman. Reliance has been placed on General

Manager, Telecom v. A. Srinivasa Rao, 1998 SQC (L & S) 6 and All India Radio v. Saniosh Kumar, 1998 (78) FLR 814, in which the Telecom Department and the All India Radio have been held to be industries. Reliance is also placed on a judgment of the Honble Calcutta High Court in Westinghouse Saxby Farmer Ltd. v. K. B. Darlami, 1998 (2) ESC 1073 (Cal.), in which it was held that an attempt should be made by Courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there. Lastly, reliance was placed on an another judgment of the Honble Supreme Court in Chief Conservator of Forests v. Jagan-nath Maruti Kondhare, 1996 (2) SCC 293, in which a social forestry scheme under taken by the Forest Department of State Government of Maharashtra was held to be an industry.

5. In my view this case is squarely covered by a judgment of the Honble Supreme Court in Himanshu Kumar Vidyanhi v. State of Bihar, AIR 1997 SC 3657, in which it was held that where per sons are employed for working on daily wages, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act and that the concept of retrenchment cannot be stretched to such an extent as to cover such employees. The employment of the respondent No. 2 being on a day to day basis, the same came to an end every eve ning and there was fresh employment every next day. Therefore, refusal to employ him from a particular day did not amount to retrenchment so as to attract the provisions of Section 25-F of the In dustrial Disputes Act. In my view, therefore, the L