The State Government cannot decide the dispute or adjudicate on the merit of it in the process of formation of opinion under section 10 (1) of the Industrial Disputes Act, 1947.

( 1 ) AFFIDAVIT filed today be taken on record. 1 An alleged industrial dispute was raised before the Conciliation Officer for adjudication thereof. On the report of the Conciliation Officer, the state Government had formed an opinion that the alleged dispute was not fit for reference under section 10 of the Industrial Disputes Act, 1947. This has been challenged in a writ petition, since dismissed, being W. P. No. 8194 (W) of 2004 by or under judgment and order dated 7th December, 2004. This appeal arises out of the said decision.

( 2 ) THE learned Counsel for both the parties, while addressing the Court on the application for stay, addressed on the merit of the appeal. In the circumstances, having heard the learned Counsel for the respective parties at length, we feel that while disposing of the application for stay, nothing remains to be decided in the appeal. Therefore, the appeal, by consent of the parties, is treated as on day's list for hearing and is taken up along with the application for stay and is being disposed of as hereafter. Appellants' contention: 2. The main thrust of the contention of Mr. Supriya Chattopadhyay, the learned Counsel for the appellants, is that the State Government had virtually adjudicated the dispute, which has since been reiterated by the learned Single judge in the decision under appeal. In course of conciliation, the Conciliation officer cannot adjudicate except as to the existence of the dispute unless agreed to the parties to settle the dispute between themselves. On the report, the State government cannot undertake the exercise of deciding the case on merit and adjudicate the dispute by itself. It can only form an opinion; but that formation of opinion cannot lead to a decision on merit of the dispute. He had referred to several decisions to support his contention. We shall be referring to those decisions at appropriate stage. Respondents' contention:

( 3 ) THE learned Counsel, Mr. Aninda Mitra, ably assisted by Mr. L. K. Gupta for the respondents, on the other hand, contended that the State Government has to form an opinion on the basis of the prima facie case and it cannot close its eyes and refer all disputes whenever it comes before it. The primary consideration is the existence of dispute and such dispute must be an industrial dispute fit for being referred to for adjudication. In order to form an opinion, it has to look into the materials placed before it and come to a conclusion as to the existence of a dispute and that such dispute is in the nature of an industrial dispute fit for reference. It is only when a dispute exists and it is expedient for being referred to, the State Government shall be bound to refer it and not otherwise. Reference has been made to certain decisions and the decisions cited by the learned Counsel for the appellant were also distinguished. We shall be referring to such decisions at appropriate stage. Section 10 (1): Formation of opinion : Scope and extent:

( 4 ) AS rightly pointed out by the learned Counsel for the appellants that a notice: under section 9a would be necessary whenever there is an attempt to withdraw any customary right or concession given to an employee, as prescribed in Clause 8 of the Fourth Schedule to the 1947 Act. He has also rightly pointed out chat whenever a notice of strike is given under section 22 (1) of the said Act, by reason of sub-section (3), it is incumbent upon the State Government to refer the dispute for adjudication when it appears that there are certain merits in it without adjudicating the merits itself. According to him, in view of the provisions contained in section 10 (1) Second Proviso, the State Government cannot decide the dispute or adjudicate the merits of the demand raised by the employees in course of its process to form an opinion as to whether the dispute should be referred to or not. 1. The law is well-settled, as has been held in Workmen of Hindustan lever Ltd. vs. Hindustan Lever Lim