B.R. Arora, J.
1. This appeal is directed against judgment dated December 7, 1989, passed by the learned Single Judge, by which the learned single Judge dismissed the writ petition filed by the petitioner and maintained the order of the Central Government by which the Central Government refused to make a reference for adjudication to the Tribunal.
2. Appellant - petitioner Bal Kishan Gupta was appointed as an agent by M/s. S. Gupta & Co. (Mining Department) at Kalaguman Emerald Mine, Udaipur district at the salary of Rs. 500A per month. By the notice dated July 15, i 978 the employer terminated the service of Bal Kishan Gupta with effect from July 31, 1978. Shri Bal Kishan Gupta raised an industrial dispute before the Conciliation Officer, which ended in failure. The Assistant Labour Commissioner (Central), Ajmer, on August 31, 1979, submitted the failure report. The failure report, submitted by the Reconciliation Officer was considered by the Central Government and the Central Government, by its order dated January 7, 1980 refused to refer the dispute for adjudication to the Tribunal as according to the Centra) Government, Bal Kishan Gupta does not fall within the category of 'workman' as defined in the Industrial Disputes Act, 1947 (for short 'the Act1). Dissatisfied with the order dated January 7, 1980 passed by the Central Government refusing to make a reference to the Tribunal, appellant - petition Bal Kishan Gupta filed the writ petition before this Court which was dismissed by the learned single Judge by his judgment dated December 7, 1989. It is against this judgment passed by the learned single Judge that the appellant has preferred this appeal.
3. It is contended by the learned counsel for the appellant that the order of the Central Government refusing to refer the dispute for adjudication to the Tribunal on the ground that the appellant is not a workman, does not contain any reasons why the appellant is not a workman and this infirmity goes to the root of the case. It has, also been contended by the learned counsel for the appellant that the Central Government, while refusing to make reference, has gone into the merits of the case and decided the dispute which is in excess of the powers conferred upon the Central Government under Section 10 read with Section 12(5) of the Act and the order passed by the Central Government refusing to make a reference, deserves to be quashed and set-aside. It has, also been contended by the learned counsel for the appellant that the order, passed by the learned single Judge, also deserves to be quashed and set aside as he has not properly considered the position of law set in various judgments of the Supreme Court. In support of his contention learned counsel for the appellant has placed reliance over : Kendriya Sarvodaya Sahkari Satniti Ltd., Jaipur v. Jawan Singh Ranawati 1967 RLW 73, Bombay Union of Journalists and Ors. v. State of Bombay and Anr. (1964-1- LLJ-351), Shambu Nath Goyal v. Bank of Baroda (1978-I-LLJ-484), Nirmal Singh v. State of Punjab and Ors. (1984-II-LLJ-396), The Madhya Pradesh Irrigation Karamchari Sangh v. State of 'Madhva Pradesh and Anr. (1985-I-LLJ-519), Workmen of Syndicate Bank, Madras v. Government of India and Anr. 1985-51 FLR 131, Telco Convoy Drivers Mazdoors Sangh and Anr. v. State of Bihar and Ors. (I989-II-LLJ-558) and R.S.R.T.C. and Ors. v. Shri Ram Yadav 1995 (3) WLC 16. Leaned counsel for the respondents, on the other hand has supported the judgment passed by the learned single Judge and has submitted that it is not each and every case which should be referred for adjudication to the .Tribunal and the Central Government, while making a reference, has to prima facie consider whether there exists any industrial dispute which should be referred for adjudication to the Tribunal and while forming an opinion the appropriate Government has, prima facie, to look into the merits of the case. As the appellant petitioner was not a workman, the Central Government has rightly refused to make a reference to the Tribunal. In support of his contention, learned counsel for the respondent has placed reliance over : Bombay Union of Journalists and Ors. v. The State of Bombay and Ors. (supra) and Kalu Ram v. The State of Rajasthan and Ors. I992WLR Raj 166.
4. We have considered the submissions made by the learned counsel for the parties.
5. The powers of the appropriate Government: whether to make a reference or not - are purely of administrative nature and not judicial or quasi-judicial. While considering the matter in this aspect, the appropriate Government is entitled to go into the prima facie merit of the dispute and to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its functions. If the appropriate Government refuses to make a reference then Sub-section(5) of Section 12 of the Act casts a mandatory duty upon the appropriate Government to record and communicate to the parties concerned the reasons for its refusal to make a reference.
6. In Kendriya Sarvodya Sahkari Samiti v. Jawan Singh Ranawat (supra) the Division Bench of this Court has held that whether employee was discharging the Managerial or clerical duties, is only a question of fact which can be decided by the Tribunal and if the Tribunal after considering the duties performed by the employee, came to the conclusion that he was only a clerk after he handed over the charge of the Manager, then that finding cannot be disturbed as the High Court was of the opinion that the Tribunal has not committed any error of law in reaching the conclusion by discarding the definition of the term 'workman
In Bombay Union of Journalists and Ors. v. State of Bombay and Anr. (supra) the Supreme Court held that 'in dealing with the industrial dispute in respect of which a failure report has been submitted under Section 12(4), the appropriate Government ultimately exercised its power under Section 10(1), subject to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under Section 12(4) of the Act. It is true that if the dispute in question raised a question of law, the appropriate Government should not purport to reach a final decision on the said question of law because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusion, for the action would be within the province of the Industrial Tribunal, but it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merit of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5) or not. If the claim made is patently frivolous or is clearly belated, the appropriate Government may refuse to make a reference. Likewise if the import of the claim is on the general relations between the employer and the employee in the region is likely to be adverse, the appropriate Government may take into account in deciding whether a reference should be made or not. It must therefore, be held that a prima facie examination of the merit cannot be said to be foreign to the inquiry which the appropriate Government is entitled to make in dealing with dispute under Section 10( I)'
In Sharnbu Nath Goyal v. Bank of Baroda (supra) the Supreme Court held that 'the term industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjudicated, to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment or non employment or the terms of employment or with the conditions of labour, there comes into existence an industrial dispute.
In Nirmal Singh v. State of Punjab (supra) the appropriate Government refused to refer the dispute for adjudication on the ground that the delinquent bank employee was not a workman within the meaning of Section 2(s) of the Act but no reasons were given by the Government to justify this conclusion. The Supreme Court held that 'the Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act' The Apex Court therefore, directed the Labour Commissioner to make a reference to the Tribunal.
In M. P. Irrigation Karamchari Sangh v. Slate of Madhya Pradesh and Anr. (supra) while considering the power of the appropriate Government whether to make a reference or not, the Apex Court held as under:-
'While conceding a very limited Jurisdiction to the State Government to examine patent frivolousness of the demands it is to be understood as a rule, that adjudication of demands made by the workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference; (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi- judicial Tribunal by an administrative authority namely the Appropriate Government. There may by exceptional cases in which the State Government may, on a proper examination of the demands, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference . Government should be very slow to attempt an examination of the demand with a view to decline reference and courts will always be vigilant whenever the Government attempts to usurp the power of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory'
In Workmen of Syndicate Bank, Madras v. Government of India and Anr. (supra) the appropriate Government refused to make a reference on the ground that the enquiry held against the delinquent officer was proper. The Supreme Court, after considering the law on the point, held as under:-
'It would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental enquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible managements could easily avoid a reference for adjudication and deprive the worker of the opportunity of getting the dispute referred for adjudication, even the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by malafides or even if the penalty was imposed on the worker was totally disproportionate to the proved misconduct. Easily a claim for reference can be defeated by showing that a proper enquiry as per procedure has been held. Such a situation cannot be countenanced by law'.
In Telco Convoy Drivers Mazdoor Sang and Anr. v. State of Bihar and Ors. (supra) the question relating to the powers of the appropriate Government under Section 10(1) of the Act: whether to make reference or not, again came up for consideration and the Supreme Court held as under:-Page 560-61
'While exercising power under Section 10( 1) 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 Us, which would certainly be in excess of the power conferred on it by Section 10. 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.' But 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. Where, as in the instant case, the dispute was whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. The order of the Government, refusing to refer the dispute on ground that the persons raising the dispute are not workmen is liable to be set- aside. As the Government had persistently declined to make a reference under Section 10(1) the Supreme Court directed the Government to make a reference.
The same view was reiterated by the Division bench of this Court in R.S.R.T.C. v. Shri Ram Yadav (supra)
7. In Kalu Ram v. State of Rajasthan and Ors. (supra) the Single Bench of this Court held that 'it is not each and every dispute which is raised by a workman, that should be referred for adjudication to the Labour Court and the Government has to apply its mind whether any industrial dispute exists and whether it requires adjudication by the Labour Court.'
'The powers of the Government under Section 10(1) read with Section 12(5) of the Act are administrative in nature and not judicial or quasi judicial, but they are open to judicial review if the Court is satisfied that the reasons given by the Government are not the reasons as contemplated by the law or they are extraneous and not germane to the question of dispute'.
8. The law discernible from the various judgments of the Supreme Court relied upon by the learned counsel for the parties, therefore, is that the appropriate Government, while considering: whether any dispute raised by the workman or the employer, be referred for adjudication to the Tribunal, prima facie, it has to see whether the dispute exists between the workman and the employer and whether that dispute is genuine or frivolous or whether it would be expeditious for making a reference. In forming an opinion on this point, the appropriate Government has to prima facie look into the report of Reconciliation Officer and the other relevant materials available on record and while considering this, the appropriate Government can look into the question whether the petitioner is a workman or not, within the meaning of Section 2(s) of the Act. It has been held by the Supreme Court in : Prem Kumar v. The State of Haryana AIR 1976 SC 1474 as under:
'Where the State Government, on receipt of the report of the Conciliation Officer referred to in Section 12(4) had found that the petitioner was not a workman within the meaning of the Act and therefore it was not a fit case for reference for adjudication, it was held that the State could not be asked by a writ of mandamus to make a reference under Section 10(1).'
9. Following the decision of the Supreme Court in Premkumar's case (supra) The Punjab and Haryana High Court in Moaela Woolen Mills, Chandigarh v. Model a Woolen Textile Workers 1985 (66) FJR 355 held that 'the appropriate Government has a right to decline to refer for adjudication under Section 10( 1) of the Act a dispute with regard to the termination of the services of an employee of an industrial undertaking on the ground that the employee concerned did not fall within the definition of the 'workman' under the Act. The Central Government was, therefore, competent to look into the merit of the case and to form an opinion that the appellant petitioner is a workman or not, in order to judge the existence of the industrial dispute and it is not outside the purview of the powers of the appropriate Government. But while forming such an opinion and refusing to make a reference, the appropriate Government was required to give reasons for its decision why the appellant petitioner was not a workman. Though the finding has been given by the appropriate Government that the appellant - petitioner is not a workman but no reason have been supplied by the Central Government in its order. Sub- section (5) of Section 12 of the Act makes it obligatory on the appropriate Government to record and communicate the reasons to the parties concerned for its decision in not making the reference. Giving reasons by the adjudicating authority for its decision is a desirable cause of action. Reasons act as a check on the exercise of the discretion and expertise and ensure that me adjudicating authority has performed its function of considering the relevant factors. It prevents the adjudicating authority also to act arbitrarily. The reasons can, also disclose the correctable deficiencies in the order and facilitate the judicial review. The Central Government, while refusing to make reference, has not given any reasons in support of Us decision and the order, passed by the Central Government therefore, deserves to be quashed and set-aside because if the reasons would have been given, the correctness of the reasons as welt as the consideration of the material by the adjudicating authority would have been appreciated. Since no reasons have been given, the order passed by the Central Government therefore, deserves to be quashed and set-aside.
10. In the result, the appeal, filed by the appellant- petitioner, is allowed. The judgment passed by the learned single Judge as well as the order passed by the Central Government refusing to refer the dispute for adjudication to the Tribunal, are quashed and set-aside and the case is remanded to the Central Government to state its reasons why the appellant - petitioner is not a workman.