V. C. DAGA, J. :- Heard finally at the stage of admission as indicated in our previous order dated 6-10-2006. Perused L.P.A.

Facts:

2. This petition is directed against the order of the learned Single Judge dated 14-2-2006 passed in Writ Petition No. 3515 of 1998 wherein the order dated 1-9-1998 passed by the Assistant Commissioner of Labour (Central), Nagpur refusing to make reference of the dispute between the employer and employee holding that the employee-Central Integrated Pest Management Centre, Nagpur is not an industry.

Submissions :

3. Learned Counsel appearing for the appellant submits that while exercising powers under section 10 of the Industrial Disputes Act, it was not open for the Assistant Commissioner of Labour (Central), Nagpur to decide dispute itself holding that the Central Integrated Pest Management Centre, Nagpur is not an industry. In his submission, the issue whether or not that particular establishment is an industry would be within the jurisdiction of the Tribunal if reference is made and not within the jurisdiction of the Assistant Commissioner of Labour (Central), Nagpur that too while deciding the question whether or not the industrial dispute exists. Learned Counsel would submit that the reference could not have been rejected for the reasons to be recorded. At any rate, while rejecting the reference no finding with respect to the status of employer could have been given. In this view of the matter he submits that the impugned order of the learned Single Judge affirming the action of Central Government is liable to be quashed and set aside.

4. Per contra Ms. Choube, learned Counsel appearing for respondent No.2 though tried to support the impugned order, but she could not take her submissions to the logical end.

5. None appeared for the intervenor. Respondent No.1 is absent in spite of service of notice wherein; pursuant to our order dated 6-10-2006, it was indicated that the L.P.A. would be finally heard and disposed of at the stage of admission itself.

Consideration "

6. Having heard rival parties, the submission made by Mr. Marpakwar needs to be accepted. It is needless to mention that while refusing to make reference it was not open for the respondent No.1 to record finding that the Central Integrated Pest Management Centre, Nagpur is not an industry.

7. It will be profitable to refer a readily available judgment of the Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others, AIR1989 SC 1565 wherein the Court observed as under:

"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 lis, 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 Govt. refusing to refer the dispute on ground that the persons raising the dispute are not workmen is liable to be set aside. As the Govt. had persistently declined to make a reference under section 10(1) the Supreme Court directed the Govt. to make a reference."

8. The question; whether or not a particular establishment is an "industry" by itself constitutes an industrial dispute. In our view the reference of the disp