IMPORTANT POINT
An order mady by the appropriate government under Section 10 of the I.D. Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government. 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.

Headnote:Industrial Disputes Act, 1947-Section 10(1) r/w Section 12(5)-Reference of industrial dispute for adjudication-Issue, whether applicant, Secretary, was a workman-Government on considering nature of duties performed and pay and perks enjoyed by applicant refusing to make reference on ground he was not workman-Refusal to make reference justified-Power of Government to refer/refuse to refer and judicial review of such order explained.
       Law on the point may briefly be summarized 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 apprehended 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 mady 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 and;
        5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act; (Para 7)
       In the instant case the order of the State Government we find that while deciding the question whether respondent No. 1 was a workman, it took into consideration the salarly and allowances of respondent No. 1 drawn at the relevant time and also the nature of work. Respondent No. 1 who has appeared in person did not dispute the salary and allowances etc. as indicated in the order of the Government but urged that his responsibilities were neither supervisory nor managerial in nature. It does not appear from the order that the State Government took into consideration any irrelevant or foreign material. Both the appellate Court and the learned single Judge of the High Court erred in law in issuing a mandamus directing the State Government to make an appropriate reference. (Paras 12 to 19)

JUDGMENT

Phukan, J.-Leave granted.

2. This appeal is directed against the judgment and order dated 17th March, 1999 of the Calcutta High Court in appellate jurisdiction whereby order of the learned single Judge dated 24th July 1998 passed in W.P. No. 155 of 1998 was affirmed. The learned single Judge directed the State Government to make reference under Industrial Disputes Act, 1947.

3. Briefly stated facts are as follows :-

Respondent No. 1 was employed as Joint Secretary of Indian Tea Association - appellant. On 27th November, 1995, respondent No. 1 was dismissed from service for disobeying an order of transfer. He complained of his dismissal to Labour Commissioner, Government of West Bengal. Conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947 (for short the Act) were held and appellant submitted its comments stating that respondent No. 1 was not a workman. A failure report dated 2nd July, 1997 was submitted by the Joint Labour Commissioner, recommending a reference, as according to him, the question whether respondent No. 1 was a workman required adjudication. The Government did not act, therefore, respondent No. 1 moved Calcutta High Court. The High Court directed the Government to take a decision under Section 12(5) of the Act within the time fixed. By order dated 14th July, 1998 the Government communicated its decision in writing wherein it regretted its inability to make a reference as respondent No. 1 was not a workman. Again respondent No. 1 moved the High Court against the said order of State Government. The learned single Judge directed the appropriate Government to make a reference as to whether the respondent No. 1 was a workman. The appeal filed by the appellant was dismissed by the impugned judgment and the State Government was directed to make an appropriate reference, keeping in view the nature of the dispute raised by respondent No. 1. Hence this appeal.

4. Mr. Dipankar Gupta, learned counsel for the appellant relying on the decision of this Court in State of Madras v. C.P. Sarathy and Anr.1 has urged that while discharging its function under Section 10(1) of the Act, Government was performing an administrative act, therefore, Court could not have come to the finding that the refusal to refer the matter was bad. We quote below the relevant paragraph of the judgment :-

"This is, however, not to say that the Government will be justified in making a reference under section 10(1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry, and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference. But, it must be remembered that in making a reference under section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of 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 determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had, no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was,

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