Sunil B. Shukre, J.

Heard Shri S.S. Ghate, learned counsel for the petitioner, Shri U.M. Aurangabadkar, ASGI for respondent No. 1 and Ku. K.K. Pathak, learned counsel for respondent Nos. 2 & 3.

2. We have gone through the reply filed on behalf of respondent Nos. 2 & 3.

3. It is stated in the reply filed on behalf of respondent Nos. 2 & 3 that no employer and employee relationship was created between respondent Nos. 2 & 3 and the petitioner. It is also stated in the reply in the words "if at all the petitioner worked with respondent Nos. 2 & 3, depending upon the exigencies of work of temporary nature, then also it cannot be said that he is an employee of respondent Nos. 2 & 3." Such averment made in the reply would show that even though there is no categorical admission regarding employer and employee relationship, it is not the case of respondent Nos. 2 & 3 that the petitioner, insofar as respondent Nos. 2 & 3 are concerned, was and has always been a stranger to respondent Nos. 2 & 3, having got nothing to do with respondent Nos. 2 & 3. In fact, it appears also from the averments made in the reply that it was not a categorical contention of respondent Nos. 2 & 3 in the Conciliation proceedings that the petitioner had never rendered even temporary service of any nature whatsoever. This is the reason why the Assistant Labour Commissioner (Central), Nagpur, submitted his failure report, seeking reference of the dispute to the appropriate authority for recording a decision as to whether or not there existed any industrial dispute between the petitioner and respondent Nos. 2 & 3.

4. When such facts being there on record, we are of the view that the law settled by the Hon'ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors., (1989) 3 SCC 271, would be squarely applicable to this case. In this case, the Hon'ble Apex Court has interpreted the expression used in the context of dispute as "exists or apprehended" to mean that the decision of the appropriate government to refer or not to refer the dispute for its adjudication by Labour or Industrial Court should not be based upon the merits of the dispute itself. This could mean that when the disputed question of fact as regards existence of employer and employee relationship arises, such disputed question of fact cannot be decided by the appropriate government by saying that the employee could not be said to be a workman within the meaning of Industrial Disputes Act, 1947, (hereinafter referred to as I.D. Act) and, therefore, cannot refuse to refer the dispute for its adjudication.

5. In the case of Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors., (supra), the dispute related to a fact which raised a question as to whether or not Convoy Drivers of Telco were to be treated as workmen and in such a context of the facts, the Hon'ble Apex Court held that the Appropriate Government was not entitled to go into the question where master and servant relationship existed and could not refuse to make reference of the dispute.

6. Similar are the facts of present case. As stated earlier, there is no categorical denial of the employer and employee relationship in the present case and what is stated is that if the petitioner had worked for few hours in it, it will not amount to completion of relationship of employer and employee between the petitioner and respondent Nos. 2 & 3. Certainly, this is the question which has to be decided on merits of the matter that is to say by considering the facts established on record and the law applicable to it and this cannot be done in the discharge of function of the Appropriate Government under Section 10 of the I.D. Act. In fact, the Hon'ble Apex Court in the case of Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors., (supra) has held that basically the government functions under Section 10(1) of the I.D. Act, are administrative. The relevant observations of the Hon'ble Apex C