IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08/9/2004 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA AND THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA W.P.NO. 16128 of 2003 and W.P.NO. 16129 of 2003 15273 OF 2000, 14917, 14918, 1516, 15167, 15205, 15206, 14661, 14666, 14912 TO 14914, 14911, 14915, 14916, 15187, 15188, 15189, 15190, 19623, 19647 TO 19649, 25006, 25007, 33706, 33702, 33703, 33705, 33707, 33708, 33709, 33715, 36691, 16514, 16508, 16509, 16513, 16515, 16524, 16526 TO 16529, 16534 TO 16536, 22452, 22451, 23143, 23155, 24370, 25004, 22450, 36589, 26477 TO 26484, 22581, 31994, 24682, 29843, 24284, 25060, 24758, 24759, 36363 TO 36365, 18507 OF 2003; 440, 21063, 18507, 18993 TO 18998, 19015 TO 19022, 19023 TO 19025, 19026 TO 19028, 19029, 19030, 19045, 19046, 19048 AND 21057 TO 21059 OF 2004 W.P.No.16128 OF 2003: Tamil Nadu Highways Roadways Employees' Association, (Regn.No.97/2001), rep. by its General Secretary ... Petitioner -Vs- 1. Government of Tamilnadu, rep. by its Secretary, Highways Department, Secretariat, Chennai-9. 2. The Chief Engineer (General), Highways, Chepauk, Chennai. 3. The Divisional Engineer (High Ways), Pudukkottai. 4. The Registrar, Tamil Nadu Administrative Tribunal, Chennai-101. .. Respondents For Petitioners: Ms. R.Vaigai Mrs.Nalini Chidambaram Mr.S.Silambanan Mr.S.M.Subramaniam Ms.M.Bharathi Mohan Mr.S.Saravanavasan Mr.M.Gnanasekar Mr.M.Ravi Mr.Arunachalam Mr.P.Mani Mr.R.Rengaramanujam Mr.G.R.Swaminathan Mr.S.Manikumar Mr.M.Muthappan Mr.V.Ravi Mr.G.Elanchezhian Mr.V.Illanchezhian For Respondents: Mr.N.R.Chandran, Advocate General assisted by Mr.A.L.Somayaji, Senior Counsel Mr.D.Krishnakumar, Spl.G.P. Prayer: All these Writ Petitions were preferred under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, for the reliefs as stated therein respectively. :COMMON ORDER F.M.IBRAHIM KALIFULLA, J.  In all these writ petitions, the challenge is to the common order of the State Administrative Tribunal dated 16.04.2003 in O.A.Nos.5028 of 2002 etc., wherein the State Administrative Tribunal, while upholding the abolition of Gang Mazdoors made under G.O.Ms.No.16 0 (Highways) dated 05.09.2002, directed the State Government to pay a sum equivalent to six months salary to each of the Gang Mazdoors, whether he had filed an Original Application before the Tribunal or not.  2. The petitioners were represented by different counsel, however main submissions were made by Ms.R.Vaigai, Ms.Nalini Chidambaram and Mr.S.M.Subramaniam, whose arguments were adopted by the other counsel appearing for various other petitioners. Submissions were made on behalf of the respondent State by the learned Advocate General, as well as Mr.A.L.Somayaji, the learned Senior counsel.  3. In order to resolve the controversy involved in these writ petitions, the facts which lead to the ultimate abolition of the posts of Gang Mazdoor is required to be stated: (a) In the services of the State Government apart from the regular employees presently in the services of the State, either as permanent, or on temporary basis, persons were employed on temporary basis in the Work Charged Establishments for execution of specific works and projects. It is said that such employees used to be disbanded on the completion of the work for which they were recruited. It is also stated that even if some projects are completed, the personnel used to be engaged in some other projects and thereby the continuity of even such temporary engagement was continued.  (b) In the Work Charged Establishment also the employees were categorized into provincial and non-provincial. While the provincial employees were fitted in the time scale of pay, the non-provincial employees were paid some fixed pay. The above said practice was prevailing prior to the year 1977. (c) In respect of such provincialised and non-provincialised Work Charged employees, there was a demand for extending various other benefits payable to government servants such as Leave, Retirement benefits etc., The State Government after considering the grievances expressed by certain associations representing such Work Charged employees came forward with G.O.Ms.No.51 dated 14.01.1997, in and by which all Work Charged employees who were in the pay scales of particular scale and above were brought to regular establishment and were allowed all the benefits that were payable to regular government servants. (d) Similarly, non-provincialised Work Charged personnel on completion of five years of continuous service were also brought to the regular establishment. Simultaneously, the Government also revoked the power of Superintending Engineers in the P.W.D Highways and Rural Works Department to recruit employees for Work Charged establishments. In other words, the Government directed that the recruitment of Work Charged establishment should be stopped forthwith in all the Departments of the Government. (e) Further the Heads of Departments were requested to submit necessary proposals to the Government for creation of adequate number of posts required for absorbing the existing non-provincialised Work Charged establishment presently who had by then completed five years of service as on 01.01.1977. Similar such directions were given to submit proposals for creation of adequate number of posts for absorbing the non-provincialised workers in the regular establishment as and when they complete five years of services on 1st January of the respective years. (f) In G.O.Ms.No.406 (Transport) dated 23.02.1987, the State Government passed orders to the effect that 10,634 Gang Mazdoor posts should be created and such posts should be made permanent. However, in G. O.Ms.No.815 dated 05.06.1992, the State Government imposed a ban on filling up of the posts of Gang Mazdoors. (g) In the year 1996, at the instance of the Honourable Chief Minister an assessment was made as to the requirement of the total number of Gang Mazdoors depending upon the total length of roads to be maintained in the State Governments of Tamilnadu. In pursuance of the said exercise, G.O.Ms.No.184 dated 29.05.1997 came to be issued, in which the total number of posts of Gang Mazdoors required for different Departments such as Highways, National Highways, National Highway No.45 and certain other Departments was assessed at a level of 14,872. In the very same Government Order, the total number of such posts that had been filled up as on that date was arrived at 5,559. The remaining posts to be filled was calculated at 9,813. (h) In the said Government Order, while arriving at the total requirements of 14,872, the State Government took note of the creation of 1 0,634 posts in G.O.Ms.No.406 dated 23.02.1987 and also the number of posts filled up out of the 10,634 which remained at 5,575 and it was therefore, held that while 9,813 posts were required, since 5,575 posts were already available, it was decided to create additional posts to the extent of 4,238. (i) In order to fill up the above said posts the ban imposed in G.O.Ms.No.815 dated 05.06.1992 was also removed. It is further stated in the said Government Order that such of those Gang Mazdoors who are to be recruited, the first year of their employment would be treated as a training period on a consolidated pay of Rs.1,500/- and from the second year onwards, they would be fitted in the concerned scale of pay. (j) The additional financial liability from the year 1997-98 was determined at a sum of Rs.15 crores and the necessary allotment of funds was also made. Subsequent to the issuance of G.O.Ms.No.184 dated 29.05.1997, under G.O.Ms.371 dated 19.08.1997 what ever further requirements and the procedures to be followed as well as relaxations to be given in the relevant rules were also made. (k) In G.O.Ms.No.371 dated 19.08.1997, the relevant factors were that the age limit was uniformly fixed at 35 for all categories, while directing the application of Rule of Reservation. Yet another significant factor was that the concerned Divisional Engineers were allowed to make the recruitment without the aid of the Employment Exchange. They were allowed to select the persons on 1 : 3 basis and select the ultimate appointee by lot system. Necessary relaxations in the age as required under Rule 5(1) of the Tamilnadu Basic Servant Rules and also Rule 48 of the Tamilnadu State and Subordinate Service Rules under which the general requirements of calling for application through Employment Exchange was exempted. (l) Pursuant to the above said G.O.Ms.No.184 dated 29.05.1997 and G.O.Ms.No.371 dated 19.08.1997, the employees recruited for the posts of Gang Mazdoors were issued with the orders of appointment which stipulated that they would be given training for a period of one year on a consolidated pay of Rs.1,500/-, that if they fail to maintain the roads properly their services would be terminated during the training period itself and that such temporary engagement cannot be the basis for claiming regular employment. However, it is not in dispute that all such Gang Mazdoors who were recruited and appointed on the above basis came to be regularized in their respective employment on completion of one year of service. Further on such regularization they were also fitted in the scale of pay with the basic pay of Rs.2,550/- Necessary orders confirming the completion of probation period was also issued to the respective employees. (m) Thus such of those Gang Mazdoors who were recruited pursuant to the above G.O.Ms.No.184 dated 29.05.1997 and G.O.Ms.No.371 dated 19.08.1997 were regularized in the services of the respective Departments had become the regular employees of the State. They were working as such till the issuance of G.O.Ms.No.160 dated 05.09.2002 when the State Government took a decision to abolish such of those Gang Mazdoors who were recruited on lot basis after 1997, the number of which was ascertained as 9,728 and the posts were abolished. It was also mentioned therein that such of those posts in which Gang Mazdoors were working even prior to the year 1997 can be reduced as and when such employees retire from the services. Pursuant to the issuance of the G.O.Ms.No.160 dated 05.09.2002 all the 9758 Gang Mazdoors were issued with stereo typed orders of termination dated 07.09.2002 and the termination was to take effect from the afternoon of 07.09.2002.  (n) Challenging the said orders of termination several Original Applications were filed before the State Administrative Tribunal in O.A.Nos.5028 of 2002 etc., in which the common impugned order came to be passed on 16.04.2003. Challenging the above said orders, the present writ petitions have been filed. (o) The connected Writ Petitions have been filed by the Government of Tamilnadu against the direction of the Tribunal directing the State Government to pay sum equivalent to six months' salary to each of the Gang Mazdoors.  4. Ms.R.Vaigai, in her submissions, contended that the action of the respondent/State in abolishing the post of Gang Mazdoor was wholly arbitrary and unreasonable, violating Article 14 of the Constitution of India; that the consequent termination order pursuant to the abolition was resorted to in violation of the provisions of the Industrial Disputes Act and that the order of the Tribunal in not adverting to such serious violation while passing the impugned order was therefore liable to be set aside. In answer to Writ Petitions of the State, it was further contended that by virtue of Rule 38 and 43 of the Pension Rules, inasmuch as the various Gang Mazdoors were entitled for pension as well as gratuity, even the amended prayer of the respondent in their writ petition cannot also be considered.  5. Based on the provisions of the Industrial Disputes Act, the learned counsel contended that the activities of the Department, namely the "Highways Road Maintenance" would fall within Section 2(m) of the Factories Act and consequently, by virtue of the total strength of employees employed in each Division of that Department, the application of Chapter V (B) of the Industrial Disputes Act was imperative and therefore, the failure to follow the statutory requirements would render the termination orders invalid in law. The learned counsel sought to make a distinction as between sovereign function of the State and the Industrial activity also managed by the State, to contend that there was no scope for the State Government to exclude the application of the provisions of the Industrial Disputes Act to the case on hand on the ground of sovereign function of the state. In support of her submissions, she placed reliance upon the judgments reported in "(1999)1 SCC 596 (LAL MOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD., AND OTHERS); (2000)3 SCC 224 (MUNICIPAL CORPORATION OF DELHI versus FEMALE WORKERS (MUSTER ROLL) AND ANOTHER); 20 04(4) 2 LLJ 213, (1996)2 SCC 293 (CHIEF CONSERVATOR OF FORESTS AND ANOTHER versus JAGANNATH MARUTHI KONDHARE AND OTHERS); (1983)2 SCC 217 (AJIT SINGH AND OTHERS v. STATE OF PUNJAB AND ANOTHER) , (2002)10 SCC 432(U.T. CHANDIGARH & OTHERS versus AVTAR SINGH AND OTHERS) and (20 04)2 SCC 510 (UNION OF INDIA versus NAVEEN JINDAL AND ANOTHER)".  6. Mr.S.M.Subramaniam, learned counsel appearing for the petitioners in W.P.No.33706 of 2003 contended that when relaxation of the Special Rules were made by invoking Rule 48 of the general rules while making the appointment of Gang Mazdoors such an action was consciously made by the State Government at the relevant point of time by taking into account all the relevant circumstances, it cannot be now permitted to turn around and contend that there was irregularity in such appointments. The learned counsel also contended that at the time when the termination orders were issued it was not the case of the State that such termination orders were resorted to on the ground that their entry into services was irregular. He also pointed out that such a ground was never stated in the order of termination. The learned counsel would state that the present stand of the respondent/ state in their additional grounds was purely an after-thought and the same should not be countenanced.  7. Ms.Nalini Chidambaram the learned counsel appearing for the petitioner in W.P.No.14917 and 14918 of 2003 etc., contended that the Government Order abolishing the post of Gang Mazdoors was wholly arbitrary and that it suffered form the vice of unreasonableness. According to the learned Senior Counsel the abolition was also tainted with mala fides.  8. As against the above submissions of the learned counsel for the petitioners, the learned Advocate General formulated his submissions on five grounds, namely that the attack of the impugned orders of termination was never made on the basis of violation of the provisions of the Industrial Disputes Act, though such a contention was in fact raised in the original application. It was then contended that such a contention could not have been dealt with by the State Administrative Tribunal as it lacked jurisdiction. According to the learned Advocate General in view of the said legal position, no fault can be found with the order of the Tribunal on that score. 9. Secondly, it was contended that even assuming such a ground could be raised in the Original Applications or in these writ petitions, inasmuch as Highways Department of the State Government is the sovereign function of the State, it would be outside the purview of the provisions of the Industrial Disputes Act. Thirdly, it was contended that even if the activities of the Highways are construed as an industry, the order of termination due to abolition of posts will not attract the provisions of the Industrial Disputes Act. Fourthly, it was contended that the abolition of posts was justified for the reasons which weighed with the Government. It was lastly contended that when the Tribunal held that the policy of the State in abolishing the post of Gang Mazdoor was justified, the award of compensation for payment of six months salary was highly excessive. 10. On the question of jurisdiction of the Tribunal to deal with the issue touching upon the violation of the provisions of the Industrial Disputes Act, the learned Advocate General relied upon the judgments reported in "(1995)5 SCC 75(THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION & ANOTHER, ETC. versus KRISHNA KANT, ETC.) and (2001)9 SCC 526 (COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANOTHER versus PADMA RAVINDRANATH (SMT.) AND OTHERS) and also 2002(3) ATC 629", as well as the judgments reported in 1991 WLR 699 (INDIAN BANK, REP. BY ITS ASSISTANT MANAGER versus R,.S. THIRUVENGADAM) and (2004)4 SCC 268 (U.P.STATE BRIDGE CORPORATION LTD. AND OTHERS versus U.P.RAJYA SETU NIGAM S.KARAMCHARI SANGH) . On the question relating to the sovereign function of the State the learned Advocate General contended that the Gang Mazdoors failed to discharge their onus of establishing that the respondent was carrying on an industry and that it did not form part of sovereign functions of the State. He also relied upon the judgments reported in " 1988 LIC 690(EXECUTIVE ENGINEER, NATIONAL HIGHWAY DIVISION, BALASORE AND OTHERS versus REGIONAL PROVIDENT FUND COMMISSIONER, BHUBANESWAR), 1973 LIC 553 (SUPERINTENDING ENGINEER, NATIONAL HIGHWAY PROJECT, BHUBANESWAR versus BAIDHAR LENKA AND ANOTHER), (2001)9 SCC 713 (STATE OF GUJARAT AND OTHERS versus PRATAMSINGH NARSINGH PARMAR)". 11. The learned Advocate General sought to make a distinction as between the functional abolition of the very activity when compared to mere abolition of work. In support of his submissions, reliance was placed upon the judgment reported in AIR 1982 SC 1107 (K. RAJENDRAN AND OTHERS, ETC. versus STATE OF TAMIL NADU). Further by referring to the various Government Orders right from G.O.Ms.No.51 dated 1.02.1977 up to G.O.Ms.No.371 dated 19.08.1997, the learned Advocate General contended that G.O.Ms.No.371 dated 19.08.1997 in relaxing the various requirements of the Subordinate Service Rules, as well as, the special rules being illegal, in every respect, by interfering with the order of termination of the Gang Mazdoors, such an illegality should not be restored. He placed reliance upon the decision reported in 2002(4) CTC 385. It was then contended that Gang Mazdoors by virtue of their orders of appointment as well as their subsequent regularisation, were only holding temporary posts and therefore, even applying Section 3 8 of the Pension Rules, it can not be held that the abolition would get vitiated, inasmuch as Section 38 only contemplate three months notice and nothing more. Reliance was placed upon the judgment reported in AIR 1996 SC 2228 (STATE OF MAHARASHTRA versus PURUSHOTTAM AND OTHERS). 12. Mr.A.L.Somayaji, the learned Senior counsel who also appeared for the State placed heavy reliance upon the Full Bench decision of the Punjab and Haryana High Court, reported in "1983(1) LLJ 309 (STATE OF PUNJAB versus KULDIP SINGH AND ANOTHER)" and contended that in respect of essential services of the State, which does not involve any Trade or Business or even an analogous activity, the provisions of the Industrial Disputes Act cannot be invoked. According to the learned Senior counsel, even if it were to be held that the provisions of the Industrial Disputes Act gets attracted, the remedy should have been availed before the appropriate adjudicatory forum created under the provisions of the Industrial Disputes Act and not under the State Administrative Tribunal. The learned senior counsel also contended that when the initial induction of the Gang Mazdoors was contrary to the rules, accepting their claim would result in an illegality being given a seal of approval, or restoration of an illegal action which should not be made. The learned counsel placed reliance upon the judgment reported in "(1997)2 SCC 1 (ASWANI KUMAR AND OTHERS versus STATE OF BIHAR AND OTHERS)". 13. The learned Senior Counsel also attempted to point out that G. O.Ms.NO.371 dated 19.05.1997 was contrary to the rules framed under Article 309 of the Constitution which was not an acceptable system of selection and furthermore, the exemption of Employment Exchange Rule was not made prior to the paper publication calling for the applications. It was also contended that based on Rule 48 of the Tamilnadu State and Subordinate Rules an erroneous relaxation of Rules 4 & 5 could not have been made. The learned Senior Counsel therefore contended that the original appointment itself was a nullity and therefore consequently, such an illegal appointment can never be restored. Reliance was placed upon the decisions reported in 1973 (2) LLJ 180 (T.C. SREEDHARAN PILLAI versus STATE OF KERALA AND OTHERS), AIR 1992 SC 789 ( DELHI DEVELOPMENT HORTICULTURE EMPLOYEES' UNION versus DELHI ADMINISTRATION, DELHI AND OTHERS); AIR 1966 SC 828 (GADDE VENKATESWARA RAO versus GOVERNMENT OF ANDHRA PRADESH AND OTHERS); 2004 WLR 434 2004 Wr.L.R.4 34 (UNION OF INDIA, UNION TERRITORY OF PONDICHERRY, REP. BY THE CHIEF SECRETARY TO GOVT. AND TWO OTHERS versus ILANGO, ETC.,) and 2004(3) CTC 549(STATE OF UTTARANCHAL, THROUGH COLLECTOR, DEHRADUN AND ANOTHER versus AJIT SINGH BHOLA AND ANOTHER) and 2002(4) CTC 385 (L. JUSTINE AND ANOTHER versus THE REGISTRAR OF COOP.SOCIETIES, CHENNAI AND TWO OTHERS). 14. Having heard the learned counsel for the respective parties and on an analysis of the various materials placed before us, we are of the considered view that the following relevant questions are required to be determined, viz., "1. Whether the Administrative Tribunal could have gone into the question as to the violation of the provisions of the Industrial Disputes Act while considering the order of termination of the "Gang Mazdoors"? 2. Whether in these Writ Petitions, this Court exercising its power under Article 226 of the Constitution, can examine the noncompliance of the provisions of the Industrial Disputes Act? 3. If there is scope for examining the question posed for consideration in points 1 and 2, whether at all the Industrial Disputes Act would be applicable to the establishment, viz., the Department of Highways of the State of Tamil Nadu and consequently to the "Gang Mazdoors"? 4. If it were to be held that Industrial Disputes Act is applicable, was there any violation of the provisions of the Industrial Disputes Act, and if so, what is the relief to be granted?" 5. Whether the impugned order of the State Administrative Tribunal can be legally sustained? Apart from the above questionss, one another additional question now raised on behalf of the State, is, "Whether the very employment of all the "Gang Mazdoors" concerned in these Writ Petitions, was in accordance with law or such employment should be held to be void and consequently no relief can be granted to any of them?" 15. This additional question came to be raised at the instance of the State. According to Thiru A.L.Somayaji, learned senior counsel, the issuance of G.O.Ms.No.184 dated 29-5-1997, and G.O.Ms.No.371 dated 19-8-1998 granting relaxation of age limit as well as the requirement of sponsorship through Employment Exchange was illegal and further the direction in G.O.Ms.No.371 to make the ultimate selection by lots can never be approved. The learned senior counsel, therefore, contended that when the whole selection and appointment of "Gang Mazdoors" was in contravention of the Tamil Nadu State and Subordinate Service Rules, such appointments were avoid ab initio and therefore, restoration of such appointments would only result in judicial forum approving of an illegal action. 16. On taking up the various questions involved, in the first place, the learned Advocate General, contended that the laying of roads as well as maintenance of it is a sovereign function of the state and therefore, the application of the provisions of the Industrial Disputes Act was ruled out and that in any event, the State Administrative Tribunal in its limited sphere of its jurisdiction was not competent to examine the said question. In this context, a reference was made to Section 28 of the Administrative Tribu nals Act, 1985, which is to the following effect: "Sec.28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution:- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service of persons appointed to any Service or post, (no court except,- (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have), or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters." 17. This question was considered by various Administrative Tribunals functioning in different states and conflicting views came to be expressed by different Benches. Ultimately that question came to be referred before a Five