The government's order of reference under Section 10 of the Industrial Disputes Act is an administrative act, and the court cannot closely examine it to see if there was any material before the government to support its conclusion. The tribunal has the authority to decide whether there exists a relationship of employer and employee between the parties and whether an industrial dispute has arisen.

( 1 ) BY this writ application the writ petitioner, the Company, has challenged an order of reference dated June 8, 2000 issued by the Assistant Secretary to the Government of West Bengal under Section 10 of the Industrial Disputes Act ('act') before the 9th Industrial Tribunal, Durgapur.

( 2 ) THERE is no dispute that petitioner has already entered appearance and filed written statement before the Tribunal.

( 3 ) THE grievance of Mr. Sengupta, the learned counsel appearing on behalf of the petitioner in this writ application is twofold. First, Mr. Sengupta has contended that there was no sufficient material before the appropriate Government to refer the dispute to the Tribunal under Section 10 of the Act. Secondly, Mr. Sengupta contends that in the fact of the present case there exists no relationship of employer and employee between the parties and as such no industrial dispute has arisen justifying reference.

( 4 ) IT is now settled position of law that in making a reference under Section 10 of the Act, the appropriate Government does 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 act. 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. See The State of Madras v. C. P. Sarathy.

( 5 ) THUS, there is very little scope of interference with such decision in this application under Article 226 of the Constitution of India. Moreover, the petitioner has already appeared and filed written statement. I thus find no substance in the first grievance of Mr. Sengupta.

( 6 ) AS regards the other point that there exists no relationship of employer and employee between the parties and as such there is no industrial dispute, in my view, such point can be raised by the petitioner in the Tribunal itself and it is for the Tribunal to adjudicate such point on the basis of materials that will be placed before it.

( 7 ) MR. Sengupta in this connection has placed before this Court a recent decision of the Apex Court in the case of National Engineering Industries Limited v. State of Rajasthan and Ors. , and has relied upon a sentence appearing in paragraph 27 thereof stating that the Tribunal cannot go into the question of the validity of reference. According to Mr. Sengupta, in view of such decision, there is doubt as to whether the Tribunal can adjudicate such question. Mr. Sengupta however frankly concedes that it has been already settled by the Apex Court in the case of Express Newspapers Pvt. Ltd. v. Workers that such point can be decided by the Tribunal.

( 8 ) AFTER hearing the learned counsel for the parties and after going through those decisions, I am of the view that the decision of the Apex Court in the case of National Engineering Industries Limited (supra) is in no way in conflict with the one passed in Express Newspapers Pvt. Ltd. (supra ). In the case of National Engineering Industries Limited (supra), the State Government while making reference failed to give due consideration of the direction of the High Court passed in an earlier matter. The State Government also failed in its duty to bring to the notice of the High Court its notification dated March 17, 1989 making the impugned reference. Under such circumstances, the Apex Court was of the view that it was expected of the State Government to bring to the notice of the High Court before making reference to its decision to make reference. After the judgment had been announced and the direction issued by the High Court to hear the appellant, the Supreme Court proceeded, it was incumbent on the State Government to recall the reference. Therefore, in such circumstances, the Tribunal before whom such reference is sent had no authority t