[Cites 38, Cited by 0]

Gujarat High Court

Sun Pharmaceutical Industries Ltd. ... vs Deputy Labour Commissioner on 2 April, 2026

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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                         C/LPA/1177/2025                                     CAV JUDGMENT DATED: 02/04/2026

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                                                                              Reserved On : 16/02/2026
                                                                            Pronounced On : 02/04/2026

                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/LETTERS PATENT APPEAL NO. 1177 of 2025

                                                             In
                                           R/SPECIAL CIVIL APPLICATION/2707/2024

                                                          With
                                       CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                                           In
                                       R/LETTERS PATENT APPEAL NO. 1177 of 2025

                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                      and
                      HONOURABLE MR.JUSTICE L. S. PIRZADA

                      ==========================================================

                                   Approved for Reporting                     Yes           No
                                                                                            ✓
                      ==========================================================
                          SUN PHARMACEUTICAL INDUSTRIES LTD. THROUGH ANIL KUMAR
                                                 Versus
                                   DEPUTY LABOUR COMMISSIONER & ORS.
                      ==========================================================
                      Appearance:
                      MR KEYUR GANDHI WITH MR NISARG DESAI WITH MS PRAVALIKA
                      BATHINI WITH MS RITU AGRAWAL WITH MR YASH MODI for
                      GANDHI LAW ASSOCIATES(12275) for the Appellant(s) No. 1
                      MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2
                      MR IG JOSHI(8726) for the Respondent(s) No. 3
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                               and
                               HONOURABLE MR.JUSTICE L. S. PIRZADA


                                                           CAV JUDGMENT

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(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1.Heard learned advocate Mr. Keyur Gandhi with

learned advocate Mr. Nisarg Desai with

learned advocate Ms. Pravalika Bathini with

learned advocate Ms. Ritu Agrawal with

learned advocate Mr. Yash Modi for Gandhi Law

Associates for the appellant, learned

advocate Mr. I.G. Joshi for respondent no.3

and learned Assistant Government Pleader Ms.

Shruti Dhruve for the respondent State.

2.By this appeal under Clause 15 of the Letters

Patent, 1865 the appellant original

petitioner has challenged the Judgment and

Order dated 28.07.2025 passed in Special

Civil Application No. 2707 of 2024 whereby

the learned Single Judge has dismissed the

petition filed by the appellant original

petitioner holding that no error can be found

in the administrative decision of the learned

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Assistant Labour Commissioner in referring

the dispute to the Labour Court.

Facts:-

3.Brief facts of the case as per the averments

in the petition, are that respondent no.3

Devendra Harshadbhai Pathak was working in

the appellant company on the position of

"Senior Executive/Manager Administration -

Supervisor" with a salary of Rs.76,268/- per

month.

4.According to the appellant, respondent no.3

was also given several authorities on behalf

of the appellant company and was responsible

for carrying out duties of managerial,

supervisory and administrative nature.

According to the appellant therefore,

respondent no.3 never worked as a "workman"

as defined in section 2(s) of the Industrial

Dispute Act, 1948 (for short ' the ID Act')

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with the appellant company but was working in

the supervisory capacity.

5.It is the case of the appellant that

respondent no.3 submitted voluntary

resignation and accordingly, the appellant on

08.08.2023 relieved respondent no.3 from

service as per the applicable terms and

conditions of his employment and dues of

Rs.4,43,468/- was also disbursed towards full

and final settlement to respondent no.3 by

the appellant company.

6.It appears that respondent no.3 after three

months filed a complaint dated 06.09.2023

before the respondent no.2- Assistant Labour

Commissioner, Vadodara challenging his

termination/removal/separation from the

appellant company.

7.Respondent no.3 also approached Cyber Crime

Police Station, Vadodara alleging that he had

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not submitted resignation, however, such

claim was rejected by the Cyber Police

station pursuant to the inquiry.

8.Respondent no.3 thereafter issued notice

dated 13,09.2023 upon the appellant company

which was replied on 27.10.2023 by the

appellant company along with supporting 35

documents to demonstrate that respondent no.3

was working in managerial and administrative

capacity.

9.However, respondent no.2 by order of

reference dated 28.11.2023 referred the

dispute raised by respondent no.3 for

adjudication which was registered as

Reference (T-LC) No.410 of 2023 by the Labour

Court, Vadodara. Respondent No.2 framed

reference as under:

"Whether the workman Pathak Devendra Harshadbhai should be reinstated on his original place with continuity of service and back wages or not?"

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10. Such order was forwarded to the

appellant company by communication dated

05.12.2023.

11. Being aggrieved by the said order passed

by respondent no.2, the appellant preferred

Special Civil Application No.2707/2024 with

following prayers:

"8(a) Your Lordships may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction, to quash and set aside the Order dated 28.11.2023 passed by the respondent no.2 Assistant Commissioner of Labour, Vadodara in Case No.310 of 2023."

12. Learned Single Judge by the impugned

Judgment and Order dated 28.07.2025 dismissed

the petition upholding the order dated

28.11.2023 of respondent no.2 referring the

dispute to learned Labour Court for

adjudication and the question as to whether

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respondent no.3 qualifies as 'workman' under

section 2(s) of the ID Act can only be

determined upon adjudication by the Labour

Court/Industrial Tribunal and not by the

respondent no.2.

Submissions of the appellant:-

13. Learned advocate Mr. Gandhi for the

appellant submitted that the respondent no.3

was working as a 'Senior Executive/Manager

Administration- Supervisor' with the

Appellant Company and was drawing salary of

Rs. 76,268/- per month and was responsible

for carrying out duties which were

managerial, supervisory and administrative in

nature. Therefore, considering the nature of

duties performed by respondent No.3, he does

not fall within the definition of 'workman'

under Section 2(s) of the ID Act. It was

therefore, submitted that the learned Single

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Judge has erred in holding that the question

as to whether the respondent No. 3 qualifies

as a 'workman' under Section 2(s) of the I.D

Act can only be determined upon adjudication

by learned Labour Court/Industrial Tribunal

and has failed to appreciate that the

respondent No. 3 was drawing a monthly salary

of Rs. 76,368/- and performed nature of

duties which are completely managerial and

supervisory in nature and cannot be said to

be a 'workman'.

14. It was submitted that during the

conciliation proceedings before the

respondent no. 2, the appellant had produced

sufficient material along with reply dated

27.10.2023 such as Power of Attorney given to

the respondent No.3 by the appellant-Company,

email correspondences showing that the

respondent No.3 was working in supervisory

capacity, copies of warning letter issued by

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the respondent No.3 to employees working

under him, copies of reports reviewing

performance of the employees working under

him, copies of proof of payment made to the

contractors, copies of the documents showing

the supervisory duties of the contract

workers etc. and applicable judgments, to

show that the respondent no.3 was holding

major responsibilities in managerial and

administrative capacity which were assigned

to respondent no.3 by the Appellant-Company.

15. Learned advocate for the appellant

placed reliance on the judgment of Hon'ble

Apex Court in the case of Secretary, Indian

Tea Association V. Ajit Kumar Barat and

Others reported in (2000) 3 SCC 93 wherein

the Hon'ble Apex Court held that before

making a reference under Section 10 of the ID

Act the appropriate Government has to form an

opinion whether an employee is a 'workman'

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and thereafter has to consider as to whether

an industrial dispute exists or is

apprehended and unless the condition of the

employee being a 'workman' is fulfilled, no

reference can be made.

16. Learned advocate for the appellant

submitted that the respondent No.3 had

voluntarily resigned from the service by

submitting his resignation through the

employee portal using his individual user id

and password, and he was accordingly relieved

by the appellant-company after payment of

Rs.4,43,468/- towards full and final

settlement of his dues as per the terms and

conditions of his employment. Hence, upon

payment of full and final settlement dues, it

cannot be said that there existed any

industrial dispute between the appellant-

company and respondent no. 3 and therefore

without there being any industrial dispute

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under section 2(k) of the ID Act, respondent

no. 2 vide his order dated 28.11.2023 has

erroneously referred the same to learned

Labour Court, Vadodara for adjudication.

17. It was further submitted that the

satisfaction of existence of an industrial

dispute or the satisfaction that an

industrial dispute is apprehended is a

condition precedent to make the order of

reference. It was submitted that the Learned

Single Judge ought to have appreciated that

if the dispute doesn't exist between the

employer and employee, the appropriate

Government can justifiably refuse to refer

the dispute. It was therefore submitted that

the Learned Single Judge has erred in holding

that no infirmity has been committed by the

appropriate Government in referring the

dispute to the Labour Court without

appreciating the evidences on record that

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there is no industrial dispute which requires

adjudication.

18. It was further submitted that as the

respondent no. 3 had voluntarily resigned

from the services and the same was accepted

by the appellant-company and dues payable to

the respondent no.3 were paid by the

appellant-company, the employer-employee

relationship between them had already ceased

to exist upon acceptance of resignation and

therefore, the Reference made by respondent

no.2 is erroneous. It was therefore,

submitted that the learned Single Judge has

failed to appreciate that the employer-

employee relationship between the Appellant

and the Respondentno.3 had ceased to exist

after acceptance of voluntary resignation and

therefore also the Reference is not tenable.

19. It was submitted that existence of

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employer-employee relationship is sine qua

non for treating respondent no. 3 as a

workman to allow him to claim relief against

the appellant-company. In support of such

submission, learned advocate for the

appellant placed reliance on the judgment in

case of J.K. Cotton Spinning and Weaving

Mills Company Limited v. State of U.P. and

Others reported in 1990 (4) SCC 27 wherein

Hon'ble Apex Court held that one of the ways

of terminating employment is resignation and

if an employee makes his resignation and the

employer accepts the resignation, the

employment comes to an end and with it stands

severed the employer-employee relationship.

It was further held that under the common law

the resignation is not complete until it is

accepted by the proper authority and before

such acceptance an employee can change his

mind and withdraw the resignation but once

the resignation is accepted the employment

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comes to an end and the relationship of

master and servant stands snapped. It was

further submitted that the said legal

position has been followed by various High

Courts and the Hon'ble Supreme Court in a

recent judgement of Shriram Manohar Bande v.

Uktranti Mandal and Others reported in 2024

SCC OnLine SC 647 has affirmed the findings

of the High Court that acceptance of

resignation would be sufficient.

20. Learned advocate for the appellant

submitted that an Order of Reference depends

on subjective satisfaction arrived at by the

Government, however, the order is subject to

the judicial review if it is shown that the

Appropriate Government had no material before

it or it had not applied its mind to the

material before it or not taken into

consideration certain vital facts which it

ought to have taken into consideration. It

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was further submitted that where challenge is

to an Order making a reference under Section

10 of the ID Act, the level of scrutiny by a

Writ Court is completely different from the

case wherein the order refusing reference is

challenged. In support of such submission,

learned advocate for the appellant placed

reliance on the judgement of Hon'ble Apex

Court in case of Prabhakar v. Joint Director,

Sericulture Department and Another reported

in 2015 (15) SCC 1 wherein it is held that

the satisfaction of the Government that there

exists an industrial dispute or there is

apprehension of an industrial dispute is a

condition precedent for order of Reference

and an order of Reference cannot be made

without forming such opinion. It was further

held that the person whose dispute is

referred for adjudication must be a 'workman'

and if the person is not a 'workman' than the

said dispute cannot be said to be an

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industrial dispute and the Government can

rightly refuse to refer the said dispute to

learned Labour Court/Tribunal for

adjudication.

21. It was further submitted that the

opinion of the Government must be held on

relevant facts and if challenged, it would

have to be supported by reasons. The

Government's satisfaction must be based on

facts that have been gathered by the

Government to show that the conditions

precedent exists when the Order of Reference

is made. It was therefore submitted that

formation of opinion by the Government should

reflect application of mind with reference to

material available on record which is not

done in facts of the present case. In support

of such submission, learned advocate for the

appellant placed reliance on the judgment of

Hon'ble Apex Court in the case of 63 Moons

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Technologies Limited v. Union of India and

Others reported in 2019 (18) SCC 401 and in

case of Barium Chemicals Limited v. Company

Law Board reported in 1966 Supp SCR 311.

22. It was further submitted that, in facts

of the present case, the Government has not

formed any opinion which is also apparent

from the affidavit-in-reply filed in the

petition. It was further submitted that the

Government has not taken into consideration

the documentary evidence produced by the

appellant in support of its contentions. It

was therefore submitted that appeal deserves

to be allowed.

Submissions of the respondent no. 3:

23. Learned advocate Mr. I. G. Joshi for

respondent no. 3 - employee submitted that

Section 12(5) of the ID Act, provides for

recording of reasons by the appropriate

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Government, if the Government does not make a

reference and while rejecting the reference,

it shall record reasons for rejection and

communicate the same to the parties

concerned. Reliance was place on the

judgement of Hon'ble Apex Court in the case

of Sultan Singh v/s. State of Haryana and

Another reported in (1996) 2 SCC 66.

24. Learned advocate Mr. Joshi submitted

that that the respondent was a 'workman' who

on account of there being an Industrial

Dispute as defined under Section 2(k) of the

ID Act had raised the dispute before the

appropriate Government as prescribed under

the ID Act and the said dispute of

retrenchment was ordered to be referred to

the Labour Court under the provisions of

Section 10(1) of the ID Act for proper

adjudication. Therefore, the Order of

Reference passed by respondent no. 2 is just

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and proper as held by learned Single Judge.

Reliance was placed on the decisison of

Hon'ble Apex Court in the case of Telco

Convoy Drivers Mazdoor Sangh and Another v/s.

State of Bihar and Others reported in (1989)

3 SCC 271 wherein it was held that while

considering the question of making a

reference under Section 10(1), the Government

is entitled to form an opinion as to whether

an industrial dispute "exists or is

apprehended". However, the formation of

opinion as to whether an industrial dispute

"exists or is apprehended" is not the same

thing as to adjudicate the dispute itself on

its merits. It was submitted that the

requirement under the ID Act is for the

appropriate Government to have an 'opinion'

as to whether any industrial dispute exists

or is apprehended to exist to refer the

dispute to the learned Labour Court.

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25. It was therefore submitted that in the

present case when the dispute was not settled

before the appropriate Government, the same

was referred to the Labour Court by the

Assistant Labour Commissioner.

26. It was further submitted that, it is not

under the scheme and the scope of the ID Act

for the appropriate Government to have an

'opinion' in a set format inasmuch as whether

or not the Respondent-Workman is falling

within the definition of a "workman" under

Section 2(s) of the ID Act is not required to

be adjudicated at the stage of referring a

dispute to the Labour Court by the

Commissioner otherwise it would result into

an administrative authority acting beyond the

scope of powers so conferred under the Act.

It was submitted that only two essentials

according to the said sub-section as regards

to the making of a reference are to be

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considered i.e.

i) that the appropriate Government must be of

opinion that a dispute exists or is

apprehended, and

ii) that the reference must be by order in

writing.

27. Learned advocate Mr. Joshi placed

reliance on the judgment of Hon'ble Apex

Court in case of State of Madras v/s. C.P.

Sarathy and Another. reported in (1952) 2

SCC 606 .

28. Learned advocate Mr. Joshi submitted

that the issue as to whether the Respondent

no. 3 is a "Workman" within the definition of

Section 2(s) of the Act, must be adjudicated

by the Labour Court while adjudicating the

Reference and not by the appropriate

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Government while referring the dispute to the

reference court much less by this Court under

226 of the Constitution of India and/or

subsequently by the Letters Patent Bench

exercising powers under Clause 15 of the

Letters Patent, as has been dealt with in the

judgment of Hon'ble Apex court in case of

Telco Convoy Drivers Mazdoor Sangh and

Another v/s. State of Bihar and Others (1989)

3 SCC 271. It was therefore submitted that

the appeal deserves to be dismissed.

Findings :

29. Having heard the learned advocates for

the respective parties, short question which

arises for consideration is whether challenge

to order passed by respondent no.2 under

section 10 of the Industrial Disputes

Act,1947 to determine whether the dispute

exists or is apprehended and thereafter refer

it for adjudication on merits can be

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entertained while exercising the

extraordinary jurisdiction under Article 227

of the Constitution of India by the High

Court or the said aspect is to be considered

by the Labour Court on appreciation of

evidence to be led by both the sides on such

issue.

30. It would therefore, be germane to refer

to the relevant provisions of the ID Act:

"2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;

2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has

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been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]

CHAPTER III REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS

10. Reference of disputes to Boards, Courts or Tribunals.-(1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing-

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(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

[(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or]

[(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):]

[Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-

section notwithstanding that any

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other proceedings under this Act in respect of the dispute may have commenced:

[Provided also that where the dispute in the relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.]"

12 Duties of conciliation officers (5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 2[Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor."

31. The main contention of the appellant

company is that respondent no.3 does not fall

within the definition of 'workman' under

section 2(s) of the ID Act and secondly, that

respondent no.3 voluntarily resigned from

service and has accepted all his dues.

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32. It was therefore, contended that no

industrial dispute can be said to have arisen

in case of an employee of the company

discharging the duties in a

supervisory/managerial capacity.

33. The other contention which is raised by

learned advocate for the appellant is that

respondent no.2 while making the reference

has not recorded any reason for arriving at a

conclusion to determine whether a dispute

exists or not and thereafter referring it for

adjudication on merits before the Labour

Court.

34. As per the settled legal position in

case of Sultan Singh v/s. State of Haryana

and Another (supra), respondent no.2 is

required to provide reasons when he comes to

the conclusion that no dispute exists as per

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section 12(5) of the ID Act. On perusal of

section 10(1) of the ID Act, it refers only

to formation of opinion by the appropriate

Government that if industrial dispute exists

or is apprehended then to pass an order in

writing to refer the dispute to the Labour

Court for adjudication under clause (c)

thereof, if the dispute relates to any matter

specified in the Second Schedule which

provides for discharge or dismissal of

workman including reinstatement or grant of

relief to workman wrongfully dismissed. The

Hon'ble Apex has held as under:

"3. The first question is whether the State should give a hearing to the employer before making a reference on second application, since on an earlier occasion, it was rejected. Section 10(1) of the Act provides that where an appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing refer the dispute to named authorities. Section 12(5) of the Act postulates that on receipt and consideration of a report from the conciliation

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officer, if the g Government is satisfied that there is a case for reference to the Board, Labour Court, Tribunal or National Tribunal, as the case may be, it may make such reference. Where the appropriate Government does not make such a reference it shall record reasons therefor and communicate to the parties concerned.

4. A conjoint reading, therefore, would yield to the conclusion that on making an application for reference, it would be open to the State Government to form an opinion whether industrial dispute exists or is apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicated to the applicant. Nonetheless the order is a only an administrative order and not a quasi-judicial order. When it rejects, it records reasons as indicated in sub-section (5) of Section 12 of the Act. The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfaction on the basis of the material on record. Being an administrative order no lis is involved. Thereby there is no need to issue any notice to the b employer nor to hear the employer before making a reference or refusing to make a reference. Sub-

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section (5) of Section 12 of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10(1). It enjoins to record reasons only when it refuses to make a reference.

5. The need for hearing is obviated, if it is considered on second c occasion as even then if it makes reference, it does not cease to be an administrative order and so is not incumbent upon the State Government to record reasons therein. Therefore, it is not necessary to issue notice to the employer nor to consider his objections nor to hear him before making a reference. Accordingly, we are of the view that the High Court was wholly wrong in its conclusion that before making reference on second application, d it was incumbent upon the State Government to give notice to the employer and to give an opportunity to the employer and record reasons for making reference. The previous decision of that Court relied on in the case at hand was wrongly decided."

35. In case of Telco Convoy Drivers Mazdoor

Sangh and Another v/s. State of Bihar and

Others(supra), the Hon'ble Apex Court has

held that the appropriate Government must

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refrain from entering into adjudicatory

domain as the Assistant Labour Commissioneris

not vested with the authority to adjudicate

upon the merits of the dispute as to whether

employee is a 'workman' or not as he is only

required to form an opinion as to whether any

dispute exits or is apprehended without

deciding any part of the dispute itself.

36. The contention raised on behalf of the

appellant that while forming an opinion by

the appropriate Government that dispute

exists or is apprehended it would be

necessary to find out as to whether complaint

made by respondent no.3 would fall within the

definition of 'workman' under section 2(s) of

the ID Act or not, is not tenable in view of

ratio laid down in case of Telco Convoy

Drivers Mazdoor Sangh and Another v/s. State

of Bihar and Others(supra) inasmuch as

respondent no.2 being an appropriate

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Government has to ascertain the actual

existence of the dispute between the employer

and the employee and whether the employee is

a 'workman' or not is entirely within the

domain of the Labour Court. Therefore,

respondent no.2 has rightly not recorded any

findings on merits of the case regarding

employer-employee relationship between

respondent no.3 and the appellant company by

adjudicating the same while forming an

opinion that there exists an industrial

dispute.

37. The definition of "industrial dispute"

as per section 2(k) of the ID Act is clear

and unambiguous which stipulates that any

dispute or difference between the employers

and employers, or between employers and

workmen, or between workmen and workmen which

is connected with the employment or non-

employment or the terms of employment or

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with the conditions of labour of any person

which would include termination of service of

respondent no.3 and therefore, respondent

no.2 is only required to form an opinion that

industrial dispute exists and thereafter

refer it to the Labour Court as per section

10(1)(c) of the ID Act.

38. In view of the judgment in case of Telco

Convoy Drivers Mazdoor Sangh and Another v/s.

State of Bihar and Others(supra), it is by

now well settled legal position that while

exercising the powers under section 10 of the

ID Act, respondent no.2 while discharging the

function of appropriate Government, is not

required to go into the merits of the dispute

to find out whether respondent no.3 is a

'workman' or not and once it is found that

industrial dispute exists, then it is

incumbent upon respondent no.2 to make

reference without deciding the merits of the

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dispute because to decide the merits as to

whether respondent no.3 is a 'workman' or

not, falls within the domain of adjudication

on merits by the Labour Court.

39. The Hon'ble Apex Court in case of Telco

Convoy Drivers Mazdoor Sangh and Another v/s.

State of Bihar and Others(supra) while

considering the question of making a

reference under section 10(1) of the ID Act,

held that the appropriate Government is

required to form an opinion as to whether the

industrial dispute exists or is apprehended

but it is not entitled to adjudicate the

dispute itself on merits as such function

discharged by the appropriate Government is

an administrative function and not a judicial

or quasi-judicial function. It was therefore,

held that while discharging administrative

function, appropriate Government i.e.

respondent no.2 cannot delve into the merits

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of the dispute and take upon itself the

determination of lis which would ultimately

result in discharging excess of power

conferred by section 10 of the ID Act. The

Hon'ble Apex Court has held as under:

"11. It is true that in considering the question of making a reference under Section 10(1), the government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr Shanti Bhushan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the government which is,

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undoubtedly, not permissible.

12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute within the meaning of the term as defined in Section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in Section 2(k) of the Act.

13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of

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the Act."

40. Similarly, decision in case of Union of

India and another v. Kunisetty Satyanarayana

reported in 2006(12) SCC 28, relied upon by

the appellant would not apply to the facts of

the case as the issue which has been raised

in this appeal operates in different sphere

as the dispute is governed by a special

statute i.e. ID Act which prescribes for

reference of dispute as per section 10 of

Chapter III of the ID Act whereas decision of

Hon'ble Apex Court deals with the provisions

of Central Civil Services (Conduct) Rules,

1964 in context of challenge to charge-sheet

or show cause notice.

41. Reliance placed by the appellant in the

decision in case of National Engineering

Industries Ltd. v. State of Rajasthan and

others reported in (2000) 1 Supreme Court

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Cases 371 for entertaining the writ petition

is also not applicable in facts of the case

because it is true that High Court has

jurisdiction to entertain a writ petition

when there is an allegation that there is no

industrial dispute and none apprehended which

could be the subject matter of reference for

adjudication to the Industrial Tribunal or

the Labour Court under section 10 of the Act.

However, to entertain such a petition when

the contention is raised regarding the

dispute on the ground that the employee is

not a 'workman' would fall within the realm

of adjudication upon the facts of the case on

merits which would be outside the domain of

the appropriate government i.e. respondent

no.2 who is discharging administrative

function under section 10(1) of the ID Act.

The Hon'ble Apex Court has held as under:

"24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition

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when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction.

It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be the subject-matter of yet another industrial dispute which

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an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinised. Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings, and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has a limited application in that it merely binds the parties to the agreement h but the settlement belonging to the second category has an extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as a the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding

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on all workmen of the establishment, even those who belong to the minority union which had objected to the same. The recognised union having the majority of members is expected to protect the legitimate interest b of the labour and enter into a settlement in the best interest of the labour.

                                                           This is with the object to
                                                           uphold     the      sanctity      of
                                                           settlement   reached     with    the
                                                           active    assistance      of     the
                                                           Conciliation    Officer     and   to
                                                           discourage       an      individual

employee or a minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act. The Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act," as pointed out in the case of P. d Virudhachalam v. Lotus Mills [(1998) 1 SCC 650]. In all these negotiations based on

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collective bargaining the individual workman necessarily recedes to the background. Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out."

42. Reliance placed on the decision in case

of ANZ Grindlays Bank Ltd. v Union of India

and others reported in (2005) 12 Supreme

Court Cases 738 by the appellant to contend

that High Court in exercise of writ

jurisdiction will have power to interfere

with an order making reference where futility

in the order of Reference can be demonstrated

from bare reading of the reference is

concerned, the same would not be applicable

in facts of the case inasmuch as to determine

whether respondent no.3 is a 'workman' or not

cannot be adjudicated by the appropriate

government to form an opinion that industrial

dispute exists or not as the Labour Court

while discharging the judicial function would

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determine on the facts and evidence of the

case as to whether respondent no.3 can be

said to be a 'workman' or not. The Hon'ble

Apex Court has held as under:

"11. The principal issue, which requires consideration, is whether the Central Government was justified in making a reference to the Industrial Tribunal in the terms set out earlier. Section 2(k) of the Act defines "industrial dispute" and it means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. The definition uses the word "dispute".

The dictionary meaning of the word "dispute" is: to contend any argument; argue for or against something asserted or maintained. In Black's Law Dictionary the meaning of the word "dispute" is: a conflict or controversy, specially one that has given rise to a particular lawsuit. In Advanced Law Lexicon by P. Ramanatha Aiyar the meaning given is: claim asserted by one party and denied by the other, be the claim false or true; the term "dispute" in its wider sense may mean the wranglings or quarrels between the

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parties, one party asserting and the other denying the liability. In Gujarat State Coop. Land b Development Bank Lid. v. P.R. Mankad it was held that the term "dispute" means a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other.

12. A plain reading of the reference made by the Central Government would show that it does not refer to any dispute or apprehended dispute between the Bank and the Federation (the second respondent). It does not c refer to any demand or claim made by the Federation or the alleged refusal thereof by the Bank. In such circumstances, it is not possible to hold that on account of the settlement dated 18-8-1996 arrived at between the Bank and the Association (the third respondent), any dispute or apprehended dispute had come into existence between the Bank and the Federation (the second respondent). The action of the Bank in asking for a receipt from those employees, who are not members of the Association (the third respondent) but wanted to avail of the benefit of the settlement, again does not give rise to any kind of dispute between the Bank and the Federation (the second respondent). Thus, the reference made by the Central Government by the order dated 29-12-1997 for adjudication by the Industrial Tribunal is wholly

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redundant and uncalled for.

13. There is another aspect of the matter which deserves consideration. The settlement dated 18-8-1996 had already worked itself out and a fresh settlement had been arrived at between the Bank and the Association (the third respondent) on 16-11- 1999. The members of the Association (the third respondent) and other employees, who availed of the benefit of the settlement, have received payments in terms thereof. Some of the employees have already retired from service. Even if the settlement is set aside, the Federation (the second respondent) would not gain in any manner as no enforceable award can be given in its favour, which may be capable of execution. On the contrary the appellant Bank would be a big loser as it will not only be very difficult but almost impossible for the Bank to recover the monetary benefits already paid to its employees under the settlement. We are, 9 therefore, of the opinion that the reference made by the Central Government is wholly uncalled for and deserves to be set aside.

14. Mr. Bhat, learned Counsel for the second respondent, has submitted that this Court should not interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its

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grievances before the Industrial Tribunal itself and if the decision of the Tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned counsel the writ petition is premature as the appellant has got a remedy before the Tribunal to show that a the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or b there was no occasion for making a reference. However, this is not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in c proceedings under Article 226 of the Constitution as no evidence is required to be considered for examining the issue raised.

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15. In National Engg. Industries Ltd. v. State of Rajasthan[(2000) 1 SCC 371] this Court held as under in para 24 of the Report: (SCC p. 393)

"24. It will be thus seen that the High Court has jurisdiction to d entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction.

It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it."

43. Similarly, reliance placed on the

decision in case of Tata Iron and Steel

Company Limited v. State of Jharkhand and

others reported in (2014) 1 Supreme Court

Cases 536 would also not come to the help of

the appellant company as the terms of

reference in facts of the case reflect real

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exact nature of dispute between the parties.

44. Reliance placed on the decision of

Hon'ble Calcutta High Court in case of Birla

Corporation Ltd. Sramik Union v. Biral

Corporation Ltd. and others reported in 2008

SCC OnLine Cal 649 would also not be

applicable in facts of the case as it is held

in the said decision that on face of the

order of reference it should appear that the

same does not constitute an industrial

dispute within the meaning of Section 2(k) of

the ID Act. However, in the present case,

respondent no.2 has arrived at an opinion

that the dispute exists between the parties

and thereafter has made a reference to the

Labour Court.

45. The contention raised on behalf of the

appellant that respondent no.2 is required to

form an opinion whether an employee is a

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workman and thereafter has to consider

whether industrial dispute exists or is

apprehended on the basis of decision of the

Hon'ble Apex Court in case of Secretary,

Indian Tea Association V. Ajit Kumar Barat

and Others(supra) would also not be

applicable in facts of the case inasmuch as

the Hon'ble Apex Court in the said case has

laid down the proposition of law in context

of section 12(5) of the ID Act vis-a-vis

refusal to register the reference and not

making reference under section 10(1) of the

ID Act. The Hon'ble Apex Court has held as

under:

"7. The law on the point may briefly be summarised as follows:

1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended

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and if such a reference is made it is desirable wherever possible, for the Government to indicate the nature of dispute in the order of reference.

2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order.

3. An order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government.

4. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the court may in a given case consider the case for a writ of mandamus.

5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within

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the meaning of the Act.

xxx

10. Before making a reference under Section 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended."

46. Section 12 of the ID Act provides for

duties of Conciliation Officer. Sub-section

(5) of section 12 provides that if on a

consideration of the report referred to in

sub-section (4), the appropriate Government

is satisfied that there is a case for

reference to Labour Court, it may make such

reference. However, where the appropriate

Government does not make such a reference, it

shall record and communicate to the parties

concerned its reasons thereof.

47. Therefore, conjoint reading of section

10(1) with section 12(5) of the ID Act

clearly provides that when the appropriate

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Government is of the opinion that industrial

dispute exists then it has to refer the

dispute to the Labour Court only without

specifying as to how such dispute exists as

it would amount to adjudicating on merits.

However, when the appropriate Government

forms an opinion that there does not exist a

dispute or is not apprehended then in such

circumstances, while rejecting the reference

it has to record the reasons for arriving at

such conclusion.

48. Therefore, it is true that formation of

opinion for existence of an industrial

dispute exists or is apprehended, is a

condition precedent to refer the dispute to

the Labour Court under section 10(1) of the

ID Act, however, merely because the matter is

referred to the Labour Court by respondent

no.2, it cannot be said that the same is made

mechanically without forming an opinion

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because making a reference presupposes

formation of opinion which is not required to

be reduced in writing with reason as it would

amount to adjudication of the merits of the

case.

49. Reliance was placed on the decision in

case of Prabhakar v. Joint Director,

Sericulture Department and Another (supra)

and in case of Oshiar Prasad and others v.

Employers in relation to Management of

Sudamdih Coal Washery of M/s. Bharat Coking

Coal Limited, Dhanbad, Jharkhand reported in

(2015) 4 Supreme Court Cases 71 which are

rendered by the Hon'ble Apex Court in

different context as it refers to the dispute

which is not between the employer and the

'workman'. The appellant company is therefore

required to agitate such contention before

the Labour Court as observed by learned

Single Judge as under:

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"14. When the appropriate Government makes reference of industrial dispute for adjudication, it does not decide the question of fact or law. The only condition, which the exercise of that power should satisfy, is that there should be existence of or apprehension of an industrial dispute. The employee employer relationship is the very foundation of jurisdiction of learned Court and it has to be determined on the basis of conclusive evidence on full consideration of all aspect of matter.

15. In view of the foregoing discussion, this Court is of the considered opinion that no error can be found in the administrative decision of the learned Assistant Labour Commissioner in referring the dispute to the learned Labour Court, Vadodara. The question as to whether the respondent No.3 qualifies as a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, as well as the genuineness or otherwise of the alleged resignation, are disputed questions of fact which can only be determined upon adjudication by the appropriate forum. Hence, the present petition fails and deserves to be dismissed."

50. Therefore, in facts of the case,

respondent no.2 is not required to form an

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opinion as to whether respondent no.3 is a

'workman' or not but respondent no.2 as an

appropriate Government is required to form an

opinion as to whether dispute exists or is

apprehended and thereafter pass an ordrin

writing to refer the same.

51. The contention on behalf of the

appellant that no affidavit in reply was

filed by the appropriate Government is also

not relevant as the affidavit in reply filed

by respondent No.2 - Assistant Labour

Commissioner as while making reference, he

was discharging duties as an appropriate

Government only. It cannot be said that

report as contemplated under section 12(4),

if no settlement is arrived at before the

Conciliation Officer, failure report is to be

filed by respondent no.2 together with full

facts and circumstances and such report is

required to be placed on record.

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52. The averments made in para 12 of the

affidavit in reply was later on modified as

an inadvertent mistake on part of respondent

no.2 by filing affidavit dated 14.06.2025.

53. The contention raised on behalf of the

appellant that there was non-application of

mind on part of the respondent authority is

also not tenable and reliance placed on

decision in case of reported in Nedungadi

Bank Ltd. v. K.P. Madhavankutty and others

reported in (2000) 2 Supreme Court Cases 455

wherein it is held that an administrative

order which does not take into consideration

statutory requirements or travels outside

that is certainly subject to judicial review

under Article 226 of the Constitution of

India, would also not be applicable in facts

of the case as the reference is made by the

appropriate Government on formation of

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opinion that industrial dispute exists

between the parties.

54. The contention of the appellant company

that respondent no.3 was working as "Senior

Executive/Manager Administration -

Supervisor" in the appellant company delves

into merits of the case and therefore, same

is rightly not adjudicated by the appropriate

Government while forming an opinion that

industrial dispute exists between the

parties.

55. The appellant is therefore, entitled to

raise contention as to whether respondent

no.3 falls within the purview of definition

of "workman" under section 2(s) of the ID Act

or not before the Labour Court and therefore,

said contention is rightly not dealt with by

the Learned Single Judge as it would result

in adjudication on merits which is required

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to be canvassed before the Labour Court by

the appellant company.

56. Similarly, the contention of the

appellant that respondent no.3 has

voluntarily resigned from service and

therefore, no industrial dispute exists

between the parties for which reference is

required, would also be within the realm of

merits and the facts of the case and

therefore, the decisions relied upon by the

appellant are required to be cited before the

Labour Court when the reference is

adjudicated on merits.

57. The contention raised on behalf of the

appellant that the order of reference depends

on subjective satisfaction arrived at by the

appropriate Government and same should be

subject to judicial review if it is shown

that there was no material before the

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appropriate Government to form an opinion

that industrial dispute exists or it has not

applied mind to the material before it, is

not tenable in the facts of the case, as the

appellant has referred to decision in case of

Prabhakar v. Joint Director, Sericulture

Department and Another (supra) and in case of

M/s. Hotchief Gammon v. State of Orissa and

others reported in (1975) 2 SCC 649 to

contend that writ Court is required to

scrutinise the order of making reference by

the appropriate Government would not be

applicable in facts of the case as the said

cases are decided on refusal for making the

reference and not while making a reference by

the appropriate Government forming an opinion

that there exists industrial dispute between

the parties. The Hon'ble Apex Court in case

of Prabhakar v. Joint Director, Sericulture

Department and Another (supra) has held as

under:

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"10. Before we proceed to deal with the aforesaid questions, it would be proper to discuss the power of "appropriate Government" under Section 10 of the Act in referring or refusing to refer the dispute for adjudication. It is a peculiar position provided under the Act that an aggrieved workman cannot approach the Labour Court or Industrial Tribunal directly for adjudication of "industrial dispute". Except those cases falling under Section 2-

A of the Act, he has to seek reference of dispute to the Labour Court/Industrial Tribunal under Section 10 of the Act. "Appropriate Government", as defined under Section 2(a) of the Act, is empowered to refer the dispute.

Section 10(1) stipulates that "appropriate Government" may, at any time, by order in writing, refer the dispute to a Board, Labour Court or Industrial Tribunal where "it is of the opinion that any industrial dispute exists or is apprehended". Interpreting this Section, way back in the year 1953, this Court in State of Madras v. C.P. Sarathy [AIR 1953 SC 53] stated the following propositions: (AIR p. 57, para 14)

(i) The Government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an "industrial dispute" exists or is

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"apprehended";

(ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide;

(iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act; and

(iv) the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended.

These propositions were based on unamended Act which did not contain the words "where the appropriate Government is of the opinion".

11. In Western India Match Co. Ltd. v. Workers' Union,[(1970) 1 SCC 225] this Court took support of C.P. Sarathy cases to hold that function of the appropriate Government to make reference under Section 10(1) is an administrative function. This view that the appropriate Government is performing an administrative act and not judicial or quasi-judicial act while making reference is found in various judicial pronouncements made by this Court even thereafter.

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12. The satisfaction of the existence of an industrial dispute or the satisfaction that an industrial dispute is apprehended is "a condition precedent to the order of reference". An order of reference cannot be made mechanically without forming an opinion. For formation of the necessary opinion, the "appropriate Government" must also be satisfied that a person whose dispute is being referred for adjudication is a "workman". If the dispute is not between an employer and his workman, it is not an "industrial a dispute" and the Government can justifiably refuse to refer the dispute. From the material placed before it, the Government reaches an administrative decision whether there exists an existing or apprehended industrial dispute. In either event, it can exercise the power under this Section.

13. The adequacy or the sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the b Government in making the reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the

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circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for c the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.

14. When the "appropriate Government" makes a reference of an industrial dispute for adjudication, it does not decide any question of fact or d law. The only condition, which the exercise of that power should satisfy, is that there should be the existence or apprehension of an industrial dispute. When once the Government is satisfied about this question, it acquires jurisdiction to refer the dispute for adjudication. However, the condition precedent to the formation of such opinion, that there should be an existing or apprehended "industrial dispute", is imperative and the recitals of the existence or apprehension of the industrial dispute cannot preclude the Court to exercise its power of judicial review and to determine whether, in fact, there was any material before the "appropriate Government" and if there was; whether the Government applied its mind in coming to the conclusion that an industrial dispute was in existence or was

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apprehended and it was expedient to make the reference. Therefore, an order of reference is open to judicial review if it is shown that the appropriate Government had no material before it or it has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration.

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17. From the aforesaid discussion, it clearly follows that even when making a reference by the appropriate Government is an administrative act, before making such a reference it has to form an opinion as to whether any industrial dispute exists or is apprehended. While forming this opinion, the appropriate Government is supposed to take all relevant facts into consideration touching upon this aspect. If the power is not exercised properly, it is amenable to judicial review. Thus, where an industrial dispute exists or is apprehended, but the appropriate Government refuses to make reference, such a refusal can be challenged in the court of law. Conversely, which is equally true, if the reference is made even when no dispute exists or is apprehended, such a reference will also be subject to judicial review.

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18. We may refer to the judgment in Indian Tea Assn. v. Ajit Kumar Barat [(2000) 3 SCC 93]. In that case, the "appropriate Government" refused to make a reference on the ground that the employee concerned who had raised the dispute was not "workman" within the meaning of Section 2(s) of the Act. While doing so, the Government considered the salary and allowances drawn by the employee as well as the nature of work performed by him, including his power to sanction expenses incurred by his Office. The employee concerned (the respondent in the said case) filed a writ petition against the order of the appropriate Government refusing to make reference and the High Court in that writ petition directed the Government to make the reference as to whether he was a workman. The appeal filed by the appellant therein was also dismissed and in these circumstances the appellant preferred special leave petition and that is how the matter came up for consideration before this Court.

                                                Granting    leave     and    ultimately
                                                allowing    the     appeal    of    the

appellant, this Court set aside the judgment of the High Court and upheld the order of the Government refusing to make reference. Relying upon its earlier judgment in C.P. Sarathy, Prem Kakar v. State of Haryana [(1976) 3 SCC 433] , and Sultan Singh v. State of Haryana [(1996) 2 SCC 66] , the Court observed that the order under Section 10 of the Act was an

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administrative order and the Government was entitled to go into the question whether industrial dispute exists or is apprehended and it will be only subjective satisfaction on the basis of material on records and being an administrative order no lis is involved."

58. Learned advocate for the appellant has

failed to cite any decision that while making

a reference, as to whether the appropriate

Government is required to record the reasons

under section 10(1) of the Act and therefore,

it cannot be said that appropriate Government

has not formed any opinion.

59. Regarding reference to section 2A of

the ID Act by learned Single Judge, it is

true that same would not be applicable in

facts of the case but same is dealt as

section 2A was referred by learned AGP