JUDGMENT G.P. Mathur, J.
1. These special appeals are directed against a common judgment and order dated 7.12.1993 of a learned single Judge by which Writ Petition Nos. 32651 of 1993, 18561 of 1993, 34786 of 1993, 44416 of 1993 and 32500 of 1993 filed by the respondents in the appeals were allowed and the notices dated 20.8.1993 and the termination orders dated 4.9.1993 were quashed and a further direction was issued that they shall continue on their Jobs and shall be paid their salary. Writ Petition No. 32651 of 1993 was treated as the leading case by the learned single Judge and, therefore, Special Appeal No. 34 of 1994 which is directed against the Judgment given in the aforesaid petition shall be treated as the leading appeal.
2. The appellant No. 1 Indian Railway Construction Company Ltd. [for short I.R.C.O.N.) is a wholly owned Government company and carries on the business of construction of Roads, Buildings. Bridges and Railway tracking, etc. The writ petitioners (respondents in the appeal) were appointed by the appellants on a casual ad hoc basis on consolidated monthly emoluments on different dates between 1984-1987. After completion of one year training and passing a written and oral examination, they were placed in the grade of Rs. 260-400. All the writ petitioners were appointed in the Anpara Project of the appellant which was for construction of a railway line for a distance of 54 Kms. A notice dated 20.8.1993 was given to each of the writ petitioners and relevant part of one such notice which was given to Azad All (respondent No. 4) is reproduced below.
1. This is to inform you that most of the work in Rihand Nagar Project has been completed and there is no further work available for you on this project or on any other project of I.R.C.O.N.
2. You are, therefore, rendered surplus at the said Project. Retrenchment benefits in accordance with Section 25F(a) and (b) of the I. D. Act, 1947 are enclosed as per the details given below :
(a) Salary for the period 1.9.1993 to 4.9.1993 Rs.
329.75
(b) Notice pay Rs.
2,473.00
(c) Retrenchment compensation Rs.
11.128.50 Rs.
13.931.25
3. Pending grant of clarification by the Hon'ble High Court of Judicature, Allahabad, if need be, in accordance with order dated 27th May, 1993 of the Hon'ble High Court, you are placed on panel in the order of seniority. Employment at other projects will be offered to you as and when vacancy befitting the work done by you at this project or suitable for your working, arises at any of the company's project in India. Offer of employment will be made in accordance with seniority, you have acquired at this project.
4. Your dues upto 4.9.1993 are hereby paid. You will cease to have lien of employment at this project with effect from 4.9.1993.
5. You are advised to collect your other dues, namely, P.P., Gratuity, Leave Salary in accordance with the Rules of the company as in force at the project.
6. Your name on panel is kept with address furnished by you to us. You may leave' permanent address with us, if you so wish to ensure delivery of communication to you from other Project Offices of the Company. For any correspondence, you may be in touch with corporate office at Palika Bhawan, Sector 13, R. K. Puram, New Delhi-110066."
This notice was followed by the order dated 4.9.1993 which was issued by Regional Manager of I.R.C.O.N. at Anpara and relevant part of the same reads as follows :
"As most of the works in Rihand Region Projects have been completed and there is no further work available to engage on these Projects or any other Projects of I.R.C.O.N., with the approval of the competent authority, the following categories of junior most staff are rendered surplus and hence, they are retrenched w.e.f. 4.9.93 AN.
The retrenchment benefits in accordance with Section 25F(a) and (b) of the Industrial Disputes Act, 1947, has been worked out and the individual staff are also being Intimated through separate letter to take their payment from their respective offices.
In case of their refusal to take delivery of the letter or retrenchment compensation the same shall be sent by Registered post/Money Order respectively to their home address as available in the office record.
1. List of ad hoc clerical staff rendered surplus and retrenched :
...............................................................................................
(Names Omitted) ........................................................................
2. List of ad hoc Supervisory staff rendered surplus and retrenched :
.................................................................................................
(Names Omitted) .............................................................................................Regional Manager l.R.C.O.N. Anpara."
The subject-matter of challenge in the writ petition was the notice dated 20.8.93 given to each Individual writ petitioners and the order dated 4.9.1993 by which they were retrenched from service. A further prayer was made that the respondents be commanded not to Interfere in the working of the writ petitioners and to pay them their salary regularly.
3. The case of the contesting respondents writ petitioners as set up in the writ petition is that Initially they were appointed on casual ad hoc basis on consolidated monthly emoluments with a stipulation that they will have to undergo a training for twelve months and after completion of the training and passing an examination, they will be placed in a regular pay scale. The petitioners passed the examination and were granted regular pay scale by the order dated 10.3.1985 and the scale was revised after the recommendation of the IVth Pay Commission was Implemented. The petitioners were appointed in the Rlhand Region where the appellant-Company was undertaking six Projects which had not yet been completed and the work was going on. It was further pleaded that the requirement of work in the Company is of a permanent nature as in the appointment letter, it was mentioned that the petitioners' service could be transferred to any place in the country. Even though the petitioners had put in about eight years of continuous service and had been granted a regular pay scale but the Company still treated them as purely ad hoc employees. The head office of the Company had prepared a seniority list of regular employees but the names of the petitioners had not been Included in the said list on the alleged ground that they were working on ad hoc basis, though the names of several other employees who had been appointed subsequent to the appointment of the petitioners were included in the seniority list. The services of each of the petitioners had been terminated by notice dated 20.8.1993 which had been issued in violation of provision of Section 25F of the Industrial Disputes Act.
4. The case of the appellants (respondents in the writ petitions) as set up in the counter-affidavit filed by them is that l.R.C.O.N. was Incorporated In the year 1978 to carry out the business relating to railway construction by entering into contracts on turnkey basis or otherwise either Individually or jointly with others. The business of the company is dependent upon the construction projects and the nature and duration of these Projects. Each Project is given separate entity and is headed by a Project Incharge who may be a Manager, Regional Manager, Chief Manager or a General Manager depending upon the size and duration of the Project. Initially the Company managed execution of the Project by taking persons from railway and other Government undertakings on deputation but subsequently the Company framed I.R.C.O.N. Recruitment Rules, 1979 and Rule 6 thereof deals with mode and sources of recruitment. Rule 6.4 provides for short-term appointment which is different from the procedure which is to be followed for appointment on regular basis which is through Employment Exchange or open advertisement. In para 7 it is averred that the writ petitioners had been appointed strictly on local basis without following the prescribed procedure of inviting applications through Employment Exchange or through advertisement and without holding any prescribed process of selection. They were Initially appointed on ad hoc wages and were subsequently retained on monthly scales of pay to meet short-term requirement of work in Riband Nagar Project. They had not been considered as regular employees as they had not been selected after following the provisions of Rules 6, 8 and 12 of the Recruitment Rules. In para 8 it is averred that as I.R.C.O.N. Is a construction company, it is not possible to recruit all the employees on a regular basis. Only core posts which are likely to last for a long time are filled in on regular basis. Such posts were created in the corporate office and had been filled in, tn accordance with the Recruitment Rules, after open advertisement. The Projects taken by I.R.C.O.N. on bid basis are generally of short duration and therefore appointments are made on short-term "basts. However, a scheme had been framed to convert some posts in Projects Into regular one in accordance with Rule 12 (2) of the Recruitment Rules. A selection was held in 1988-1989 for filling up these posts from casual and ad hoc employees and those who had competed successfully and had been selected were granted status of regular employees. In para 10 it is averred that I.R.C.O.N. being a construction company, the duration of employment on each Project varies according to the time taken in the completion of the Project and therefore, recruitment is generally made for respective Projects on local basis for short-term employment. Each Project has it s own seniority list and there is no common seniority list of the employees recruited by various Projects locally. However, a common seniority list is maintained in respect of persons appointed on regular basis. In para 22, it is averred that the work undertaken had been entirely completed and in some other Projects about eighty to ninety per cent of the Job had been done and some staff had been retained to complete the Project.
5. The learned single Judge held that, on the case set up by the parties, submissions made by their learned counsel and the material on record, no disputed questions of fact arose for determination in the case. The learned single Judge posed three questions which, in his opinion, required determination in order to decide the controversy raised and question No. 3 framed by him reads as follows :
'Whether Section 25N falling in Chapter VB shall govern the matter of retrenchment of petitioners and whether I.R.C.O.N. is an industrial establishment within the meaning of Section 25L of the Act.' It has been held in the judgment under appeal that as prior permission of the appropriate Government was not obtained, there was non-compliance of Section 25N of Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and, therefore, the Impugned order retrenching the writ petitioners from service was illegal and consequently, the writ petitions deserved to be allowed on that ground.
6. We will first consider the question of applicability of Section 25N of the I. D. Act as there is no dispute that the appellants did not serve any notice on the appropriate Government as required by clause fcj of sub-section (1) thereof nor the appropriate Government gave any permission to retrench the respondents which is mandatory under sub-section (2). If Section 25N of the Act is applicable to the facts of the case, the Impugned orders of retrenchment passed by the appellants, retrenching the services of the respondents cannot be sustained. It is an admitted fact that the appellant is a construction company. This fact is stated by the petitioners themselves in para 4 of the writ petition which reads as follows :
"4. That the respondent-company is engaged in the construction and Implementation of projects in the country it self as also abroad of various categories which include projects pertaining to construction of road, buildings, bridges, electrification, telecommunication, railway tracking and construction of work pertaining to airports."
In the counter-affidavit. It has been emphasised at several places that the appellant carries on the business of construction of various kinds of projects. There are few provisions in Chapter VA and Chapter VB relating to lay off and retrenchment in the Industrial Disputes Act which make a specific reference to "undertaking set up for construction of work". Section 25FFA(1) requires that an employer shall serve at least sixty days prior notice on the appropriate Government of his Intention to close down an undertaking. But proviso (b) lays down that this section shall not apply to an undertaking set up for the construction of the buildings, bridges, roads, canals, dams or for other construction work of projects. Section 25FFF provides for notice and payment of compensation to workmen in accordance with Section 25F in case of closing down of undertakings. But sub-section (2) of this section provides that where any undertaking set up for construction of buildings, bridges, roads, canals, dams or other construction work is closed down on account of the completion of the work within two years from the date on which the undertaking had been set up, no workmen employed therein shall be entitled to any compensation under clause (b) of Section 25F. However. If the construction work is not so completed within two years, he shall be entitled to notice and compensation. Section 25O requires that if an employer Intends to close down an undertaking of an Industrial establishment to which Chapter VB applies, he shall apply to the appropriate Government for permission at least ninety days before the date on which the Intended closure is to become effective and an order of the appropriate Government granting or refusing to grant permission is final and binding and is to remain in force for one year. The proviso to sub-section (1)", however, shows that nothing in the sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work. These provisions show in unmistakable terms that a workman employed in construction work has been treated as a special and distinct class under the Act. He is not treated at par in the matter of security of tenure or protection from retrenchment. The appropriate Government cannot exercise any control on an employer if he wants to close down an undertaking set up for construction work though in certain category of Industrial establishments like the one to which Chapter VB applies, the undertaking cannot be closed save with the permission of the appropriate Government. It may be noticed that a closure of the undertaking without complying with the provisions of sub-section (1) of Section 25O of the Act is regarded a serious matter and is made punishable with a sentence of six months' R. I. under Section 25R of the Act. These provisions have been made in order to secure the continuous employment of a workman and to ensure that he is not retrenched unless Justifiable grounds are made out. However, an exception has been made with regard to the workmen employed in an undertaking set up for construction work.
7. Section 25N is immediately followed by Section 25O and both fall in the same Chapter VB of the Act- Section 25N, therefore, should not be read in isolation but should be read along wtth Section 25O as they are part of the same scheme. If legislative Intent was that a construction worker should also be governed by Section 25N of the Act, he would not have been excluded from the operation of Section 25O of the Act. In the case of closure of an undertaking, all the workmen employed thereon stand automatically retrenched. An employer of an undertaking set up for construction work can, therefore, retrench the services of all the workmen by simply closing the undertaking which he can do at his sweet will as he is not required to obtain permission of the appropriate Government in view of the proviso to sub-section (1) of Section 25O of the Act. However. If the same employer wants to retrench some of his workmen, he will be under an obligation to take permission from the appropriate Government under Section 25N(1)(b). If this section is held to be applicable. It looks Incongruous that if an employer of an undertaking set up for construction of works wants to retrench the service of even one workman, he cannot do so without the permission of the Government but he can retrench the services of all the workmen by simply closing the undertaking which he is at liberty to do so without taking any permission. The basis or criteria for giving protection or security of tenure to employees cannot vary with the rumber of workmen involved. It can certainly vary with the nature of the work or activity being carried by the Industry or the undertaking.
8. The applicability of Section 25N to an undertaking set up for construction of work may be unworkable and may at times be discriminatory. The expression used in proviso (b) to Section 25FFA, sub-section (2) to Section 25FFF and proviso to Section 25O (Q is "an undertaking set up for the construction of buildings, bridges, roads, canals, dams, or for other construction work." A Company may take contract for construction of large number of residential buildings. It will require different kinds of work force at different stages of construction activity. One kind of work force for doing the earth work like levelling of ground or digging foundation, a second type for construction of the walls and roofs, a third type for making the floors, a fourth type for doing the wood work, a fifth type for doing electrical fittings, a sixth type for doing sanitary fittings and a seventh type for painting which may also be different for walls and wood work. The task of a workman who does the work of construction of walls and roofs will be over before the electrical fittings or wood work is done. No employer is expected to retain such persons in employment for whom there is no work and to pay them wages. If Section 25N is applied to construction work, the employer will have to keep on applying to the appropriate Government at different stages of the work for permission to retrench such workmen whose nature of Job is over. The appropriate Government may decide not to grant permission or even if it decides to grant permission, the taking of such a decision is likely to take a fairly long time as sub-section (3) requires giving opportunity of hearing to the concerned workmen and passing of a reasoned order and till then, such workmen who are sitting idle and for whom there is no work will have to be paid wages. However, those workmen who will be working at the last and finishing stage may be easily retrenched by simply closing down the undertaking as the construction work will be over. Thus these workmen who will come in the picture at the last stage will get no protection. The result would be that workmen employed in the same undertaking will get discriminatory treatment inasmuch as for retrenching some workmen, permission of the appropriate Government would be required while for others no permission would be necessary. Generally any construction work would require persons who are specialist in different kinds of Jobs and their role will come Into picture at different stages of construction'and quite often the role of one may start after the role of another has finished. Section 25N, if applied to an undertaking set up for construction work, not only creates serious practical problem for the employer but also results in giving discriminatory treatment to the workmen employed in the same work. We are.
therefore, of the opinion that Section 25N can have no application to an undertaking set up for construction work.
9. S/Sri V. R. Agrawal and Lalji Sinha, learned counsel for the appellants have vehemently urged that Section 25N can have no application here as Chapter VB of the Act in which the said section falls. It self will not apply to the facts of the case. Section 25K provides that the provisions of Chapter VB shall apply to an Industrial establishment of a particular type in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. The word 'industrial establishment' has been defined in Section 25L and it means (i) a factory as defined in Section 2(m) of the Factories Act or (ii) a mine or (iii) a plantation. The relevant part of Section 2(m) of the Factories Act reads as follows :
'Factory' means any premises including the precincts thereof :
(i) whereon ten or more workers are working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on :
but does not Include a mine subject to the operation of (the Mines Act, 1952 (XXXV of 1952) or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place :
Explanation (1)...............................................................(omitted) ...............................
Explanation (2) ..............................................................(omitted) ...............................
10. Manufacturing process has been defined in Section 2(k) of the Factories Act and sub-clause (1) shows that it means process for making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adopting any article or substance with a view to it s use, sale, transport delivery or disposal. For the applicability of provisions of Chapter VB, the establishment of the appellant should be a factory as defined in Section 2(m) of the Factories Act. It may now be examined whether the writ petitioners have been able to establish that the appellant's establishment was a factory. Section 6 of the Factories Act, 1948 deals with approval, licensing and registration of factories. It provides that the State Government may make rules requiring for the purposes of the Act previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction of any factory, the submission of plans and specifications and registration and licensing of factories. Section 7 or the same Act provides that the occupier shall at least fifteen days before he begins to occupy or use any premises as a factory send to the Chief Inspector a written notice containing the name and situation of the factory, address of the occupier, nature of the manufacturing process, the total rated horse power Installed or to be Installed in the factory, the name of the Manager and several other details. Chapter II of this Act provides for the Inspecting staff. Chapter III deals with health and Chapter IV with safety. Chapters VI and VII of the Act relate to working hours and employment of young persons. Section 112 gives the general power to the State Government to make rules for any matter which under any of the provisions of the Factories Act is to be or may be prescribed or may be considered expedient in order to give effect to the purposes of the Act. The State Government has made U. P. Factories Rules. 1950 and they make elaborate provisions for various subjects dealt with in the Act Rule 3 of these rules provides that no building in a factory shall be constructed, reconstructed or extended nor any manufacturing process shall be carried on in any building unless previous permission in writing is obtained from the State Government or the Chief Inspector. Rule 7 provides that a factory shall be registered and a licence for the factory shall be granted by the Chief Inspector. Rule 9 provides for renewal of a licence. Chapter II of the Rules deals with the Inspection Staff. The rules make elaborate provisions for ensuring the health and safety of the workers working in a factory. There is no averment at all in the writ petitions that any approval of the plans or any permission in writing for the site was ever obtained by the appellants from the State Government or the Chief Inspector of factories. Similarly, there is no averment that any licence was obtained or the alleged factory of the appellants was ever registered under the provisions of the Factories Act. There are many requirements of the Factories Act and U. P. Factories Rules, but there is not even a whisper in the writ petitions that the appellants ever did anything to comply with the provisions of the aforesaid Act and Rules. In absence of any such averment, it is difficult to hold that the establishment of the appellants was a factory so as to attract the provisions of Chapter VB of the Industrial Disputes Act.
11. As stated earlier, the writ petition is conspicuously silent regarding the applicability of Section 25N or Chapter VB of the Act. On the contrary, the pleadings show that the writ petitioners themselves were proceeding on the assumption that Chapter VA of the Act was applicable. This will be evident from para 35 of the writ petition which reads as follows :
"That the Impugned termination notice has been Issued in violation of mandatory provisions of Section 25F of the Industrial Disputes Act."
Similarly, in the grounds, there is no reference to Section 25N and the only ground taken with reference to Industrial Disputes Act is ground (g) which reads as follows :
'Because the Impugned termination notice has been Issued in violation of mandatory provisions of Section 25F of the Industrial Disputes Act."
The record shows that an amendment application was moved in Lal Mohammad v. I.R.C.O.N.. Writ Petition No. 32651 of 1993, wherein a prayer was made to add three grounds to the effect that the respondents, namely, I.R.C.O.N. and others, who are appellants in the present Special Appeals, had erroneously referred to Chapter VA of the I. D. Act which was not applicable and it was the provisions of Chapter VB which applies to the Company but the retrenchment order did not comply with the same. In the affidavit filed in support of the amendment application, no facts were pleaded and only the three aforementioned grounds were stated. The copy of the amendment application was served upon the learned counsel for the respondents in the Writ Petition on 12.10.1993 and the same was filed in Court on 13.10.1993. The arguments were heard on 15.10.1993 and judgment was reserved. Similarly, in para 35 of Writ Petition No. 32500 of 1993 and in para 36 of Writ Petition No. 44416 of 1993, it was stated that the termination notice was Issued in violation of Section 25F of the Act and a ground similar to ground No. (g) of the leading writ petition, which has been quoted above, was taken. There was no averment in Writ Petition No. 18561 of 1993 regarding applicability of Section 25F or Section 25N of the Act. However, subsequently an amendment application was moved wherein it was stated that the termination notice was Issued in violation of Section 25N of the Act but no such ground was sought to be added. In Writ Petition No. 34786 of 1993. It was averred that termination notice was Issued in violation of Section 25N of the Act but no ground to that effect was taken.
12. If the writ petitioners banked upon Section 25N of the Act, they had to show that the establishment of the appellant was a factory for which necessary facts ought to have been pleaded and relevant material ought to have Naeen placed on the record. There is absolutely no allegation in any of the writ petitions that the Industrial establishment of the appellant was a factory. In fact the plea taken in the writ petitions is that it is Section 25F (which falls in Chapter VA) which is applicable and the same has not been compiled with. The amendment application to incorporate the ground regarding applicability of Section 25N and non-compliance thereof was moved only in one writ petition, namely. Writ Petition No. 32651 of 1993 and not in any other writ petitions and that too just two days before the hearing of the writ petitions. The grounds sought to be added by the amendment application are in conflict with the factual averments made in para 35 and ground No. (g) of the writ petition as both Chapters VA and VB cannot simultaneously apply to an Industrial establishment. In our opinion, the writ petitioners having not laid any factual basis to show that the Industrial establishment of the appellants was a factory, their plea based on Section 25N could not be entertained and no relief could be granted to them on the ground that no permission having been granted by the appropriate Government, their retrenchment was illegal. It may be pointed out that the plea originally taken in the writ petition that the provisions of Section 25F had not been compiled with, is not correct and is unsustainable as requisite notice and retrenchment compensation has been paid to every one.
13. in the initial appointment order issued to each of the writ petitioners, it was mentioned as follows :
"You are hereby offered appointment in Anpara Project on casual ad hoc basis on a consolidated monthly emoluments of Rs. 400. You are directed to report to Project Manager, I.R.C.O.N. at Anpara ......................................"
A supplementary counter-affidavit was filed wherein it was stated that I.R.C.O.N. entered into a contract with the National Thermal Power Corporation for the construction of a railway line from Rihand Nagar to Alori Colliery and Mayar Bridge to Shaktl Nagar. a distance of about 54 kilometers and the petitioners were working under this Project. This fact has not been disputed and has been admitted by the respondents in the appeals that they were all employed in a Project regarding construction of a railway line. The precise question whether an Industrial establishment, which undertakes construction of a railway line, would be governed by Chapter VB of the I. D. Act or not, has been considered by a Division Bench of this Court in Puttimal and another v. Union of India, Writ Petition No. 1799 of 1982, which was decided on 10.7.1983. The challenge in this case was to retrenchment of the workmen who had been employed in connection with conversion of metre gauge railway line to broad gauge from Barabankl to Samasttpur. The Bench after relying upon the observations of the Apex Court in Nagpur Electric Light and Power Company v. E. S, I. Corporation, AIR 1967 SC 1364, held that Section 25N of the Act can have no application to an Industrial establishment set up for the purpose of construction of a railway line. The learned single Judge has chosen not to place reliance upon the aforesaid Division Bench decision on the ground that the attention of the Bench was not Invited to an earlier decision of a Constitution Bench rendered in Ardeshir v. Bombay State, AIR 1962 SC 29, which in his opinion held otherwise. In the case of Nagpur Electric Light and Power Company (supra), the High Court had observed that the manufacturing process is carried on by the Company not only in the building called the workshop or power station but over the whole area over which the process of transmission is carried on Including the sub-stations where the electricity is stored and supplied to the consumers by further transmission lines and thus every part over which the process is carried on will be a factory within the meaning of the Employees State Insurance Act. With reference to this finding of the High Court, the Apex Court observed as follows in para 8 of the reports.
"...................... We cannot accept this line of reasoning. It seems to be a startling proposition that every Inch of the wide area over which the transmission lines are spread is a factory within the meaning of Section 2
(xii) ..............................."
In Ardeshir v. Bombay State (supra), the question was whether salt works come within the definition of the word 'factory' under Section 2(m) of the Act. It was held that the word 'premises' in Section 2(m) of the Factories Act is a generic term meaning open land or land with buildings or buildings alone. We are unable to find any conflict between the two decisions of the Apex Court. The question considered in Ardeshir v. Bombay State, has no bearing on the question which was up for consideration in Nagpur Electric Light and Power Company. In the earlier case, it was held that even an open land can be a factory but it s premises must have definite and precise precincts. In the later case, the proposition that the whole area over which the transmission lines pass is a factory was repelled. We are clearly of the opinion that it is the ratio of Nagpur Electric Light and Power Co. (supra) which will govern the controversy in hand. It is not possible to hold that the entire length of 54 kms. over which the railway Une was constructed is a factory. The whole area over which the railway line is constructed cannot be held to be a factory and consequently, the provisions of Chapter VB of the Act cannot apply to the establishment of the appellants. Section 25N can. therefore, have no application to the facts of the case.
14. Sri Ashok Khare has submitted that the requirement of Section 25L is that industrial establishment should be a factory and not the particular undertaking which has been set up for the construction of work. As shown earlier, the necessary factual basis for such a contention has not been laid in the writ petition. The case of the appellant I.R.C.O.N. Is that in connection with it s business activity, it takes contracts for various types of construction work throughout the country and also abroad and the contracts are undertaken and completed project-wise. Each Project is given a separate entity headed by a Project Incharge. Therefore, for all purposes the Anpara Project, in which the writ petitioners were working, was an Independent project and in order to ascertain whether it is a factory or not, the nature of this project alone has to be examined and not of the other Projects which may have been undertaken by the appellant.
15. Section 2(s) defines a 'workman'. Sub-clause (iv) thereof shows that where a person is employed in supervisory capacity and draws wages exceeding one thousand six hundred rupees per mensem, he will not be a workman. The termination notice (Annexure-12 to the leading writ petition) shows that the petitioners were getting wages between Rs. 2,360 to Rs. 2,473 per month. Para 10 of the writ petition reads as follows :
"that the appointment of all the petitioners have been made against the supervisory posts."
In Writ Petition No. 32500 of 1993, similar statement has been made in para 12 of the writ petition with regard to petitioner Nos. 3 and 7. These writ petitioners, on their own showing, are not workmen and, therefore, the provisions of Industrial Disputes Act can have no application to them.
16. Dr. R. G. Padia and Sri Ashok Khare. learned counsel for the workmen-respondents have also urged that the appellant I.R.C.O.N. had undertaken certain other Projects including construction of road from Varanasl to Shakti Nagar and as work in other Project is continuing and has not come to an end, the retrenchment of the writ petitioners is Illegal. In our opinion, the contention raised has no substance. The work undertaken does not mean the entire Industry or the business of the employer and it can be even a part of the business. In Management of Hindustan Steel Ltd. v. Workmen, AIR 1973 SC 873, it was held as follows in para 10 :
"The word undertaking as used in Section 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not Intended to cover the entire Industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section."
In Workmen of the Straw Board Manufacturing Co. v. Straw Board, AIR 1974 SC 1132, it was held as follows :
"The most Important aspect in a case relating to closure is whether one unit has such componental relation that closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional Integrality will assume an added significance in a case of closure of a branch or unit. That the other unit is capable of functioning in isolation is of very material import in the case of closure. There is bound to be a shift of emphasis in application of various tests from one case to another."
The same view has been taken in Workmen of Indian Leaves Tobacco Co. v. Indian Leaves Tobacco Co., AIR 1970 SC 860 and, Isha Steel Treatment v. Association of Engineering Workers, AIR 1987 SC 1478. In Hindustan Steel Works Construction Ltd. v. Hindustan Steel Works Ltd. Employees Union, AIR 1995 SC 1163, it was held that :
"In the case of a construction company which undertakes construction works wherever awarded does that work and winds up it s establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work, mere unity of ownership, management and control are not of much significance. The conclusion is Inevitable that the units at one place were distinct establishments. Once this is so, workmen of the said unit had no right to demand absorption in other units on the particular units completing their Job. In such a case the fact that the management reserved to it self the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment"
The law is, therefore, well-settled that different units of a construction company are Independent units for the purpose of Section 25FFF and a single management or control like the one of the appellant-company is not of any Importance, The workmen of one unit cannot claim absorption in another unit on the completion of the work in which they had been employed.
17. The other two questions posed by the learned single Judge are whether the writ petitioners got status of permanent employees after the appointment order dated 9.5.88 was Issued to them and what is the effect of long period of service rendered by them. It has been held that the appointment order dated 9.5.88 was an Independent order which gave a fresh status to the writ petitioners and they became regular employees and their services could not be retrenched treating them to be working on casual or ad hoc basis for a particular Project. With profound respects, we are unable to agree with the view taken by the learned single Judge. The writ petitioners were employees of a Company which carries on the business of construction work. They do not hold any civil post and they are not Government employees. The concept of a regular employee does not exist under the Industrial Law. The expressions 'cadre', 'lien', 'permanent posts', 'temporary posts' and 'tenure posts' are defined in Rules 4, 13, 22, 30 and 30A of Chapter II. P. Ill of U. P. Fundamental Rules which were made by the Governor of U. P. under Section 241(2)(b) of the Government of India Act, 1935 and they apply to Government servants. The provisions of Industrial Disputes Act gives security of tenure to workmen employed in different types of industrial establishment. However, they also make provisions for their retrenchment after giving notice and retrenchment compensation and in some cases, with the permission of the appropriate Government and in some cases, without permission. The contention that a regular employee can never be retrenched is not correct and in fact such a concept is alien to Industrial Law. The question of absorption generally arises in Government service. In view of the fact that the Project in which the writ petitioners were employed was completed, their retrenchment in accordance with the provisions of the Industrial Disputes Act is perfectly valid and no direction can be given to the appellant-company to give them employment in some other Project. Since we are of the opinion that the retrenchment of the writ petitioners is perfectly valid, the question of regularising their services does not arise.
18. In the result, all the special appeals are allowed and the impugned judgment and order of the learned single Judge is set aside. The writ petitions filed by the respondents are dismissed.