Mukul Mudgal, J.
1. This writ petition by the workman challenges the Orders dated 31st December, 1998; 28th May, 1999/1st June, 1999; 18th January, 2000 and 22nd March, 2000 and further seeks reference under Section 10(1) of the Industrial Disputes Act, 1947(hereinafter referred to as the Act) of a dispute, raised by the petitioner No. 2/workman.
2. The petitioner No. 2/workman claimed to work continuously in Punjab Bhawan, Delhi for more than 3 years and upon his termination of services and rejection of the demand notice dated 4th October, 1996, sought to raise an industrial dispute under Section 12 of the Act. On 31st December, 1998, an order was passed by the Secretary (Labour), Government of NCT of Delhi that the dispute cannot be referred as the Punjab Bhawan activities did not constitute 'Industry' within the meaning of Section 2(j) of the Act and the review against this order was dismissed by the Order dated 28th May, 1999/1st June, 1999 on the same grounds as noticed in the Order dated 31st December, 1998.
3. By the Order dated 31st December, 1998, review of which was dismissed on 28th May, 1999/1st June, 1999 by the impugned order, the Secretary (Labour), Govt. of NCT of Delhi has given the following reasons for declining the reference:-
'From the documents placed on record, it transpires that Punjab Govt. vide its notification No. -1416/RVA/79/16 dated 19-4-79 notified that Punjab Bhawan, New Delhi will be treated as a circuit House which are primarily intended for the use of Governor, Chief Minister, and Judge while on tour, prima facie, such activities of the State Government do not fall within the ambit of the definition of `Industry' as defined U/s. 2(J) of the Industrial Disputes Act. '
Further pleas of the petitioner No. 1/Union for reconsideration of the petitioner No. 2's case were also rejected on 18th January, 2000 and 22nd March, 2000.
4. In my view the above order declining the reference for the aforesaid reasons is not sustainable because by the said order the Secretary (Labour) has proceeded to adjudicate the plea as to whether the circuit House can be treated as an industry as per Section 2(j) of the Act. In my view the aforesaid finding adjudicating the dispute on merits between the parties can only be done by an adjudication under the Industrial Disputes Act and not at the stage of making a reference by the Labour Secretary, exercising administrative jurisdiction. The Labour Secretary has thus delved into a jurisdiction not vested with him in law. The plea whether the activities of Punjab Bhawan fall within the definition of `Industry' under S. 2(j) of the Act is a plea which can only be raised and adjudicated in a Labour Court/Industrial Tribunal.
5. In Telco Convoy Drivers Mazdoor Sangh and another Vs . State of Bihar and others : (1989)IILLJ558SC the Hon'ble Supreme Court has held as follows:-
'Though 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', but it is not entitled to adjudicate the dispute itself on merits. 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. 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 the Act. '
6. The impugned order adjudicating the question of whether Punjab Bhawan activities were `Industry' thus clearly runs contrary to the position of law laid down in the aforesaid judgment which view has also been reiterated in Sharad Kumar Vs . Govt. of NCT of Delhi & Ors. : (2002)IILLJ275SC .
7. Thus the order dated 31st December, 1998 is entirely unsustainable. The order, dismissing the review dated 28th May, 1999/1st June, 1999 is equally unsustainable as it has reiterated the reasons given in the order under review. Accordingly, the review orders dated 28th May, 1999/1st June, 1999 reiterated on 18th January, 2000 and 22nd March, 2000 and the original Order dated 31st December, 1998, declining reference are set aside.
8. In the aforesaid judgment in Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and others (supra), the Hon'ble Supreme Court also held as follows:-
'In several instances this Court had to direct the government to make a reference under Section 10(1) when the government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam V. Government of Tamil Nadu ; Ram Avtar Sharma V. State of Haryana; M.P. Irrigation Karamchari Sangh V. State of M. P. ; Nirmal Singh V. State of Punjab. '
9. In view of the above position of law and without going into the merits of the plea whether the activity of Punjab Bhawan amounts to a definition of industry, I direct the Secretary (Labour), NCT in view of the position of law laid in the judgment extracted above, to make a reference of the dispute on or before 15th September, 2003 and in view of the long pendency of the dispute since 1993 as well as the reference of the dispute of similarly situated Swami Nath.
10. With the above observations, the petition stands disposed of.