The administrative function of the appropriate government under Section 10(1) of the Industrial Disputes Act does not include adjudicating the dispute on merits, and the question of whether an activity constitutes 'industry' under Section 2(j) can only be raised and adjudicated in a Labour Court/industrial Tribunal.

( 1 ) THIS writ petition by the workmen challenges the Order dated 27th August, 1997, declining reference of a dispute by the Secretary, Labour, NCT, Delhi and the review order dated 27th January, 1998. The writ petition further seeks reference of the dispute as to termination under Section 10 (1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ).

( 2 ) THE 3 petitioners claimed to work continuously in Punjab Bhawan, Delhi for 5, 4 and 2 years respectively and upon their termination of services and rejection of the demand notice dated 5th April, 1996, sought to raise an industrial dispute under Section 12 of the Act. On 27th August, 1997, an order was passed by the Secretary (Labour), Government of NCT of Delhi that the dispute cannot be referred as the Punjab Bhawan activities did not constitute "industry" within the meaning of Section 2 (j) of the Act and the review against this order inter-alia for the reason that a similar dispute in case of one Swami Nath had already been referred was dismissed by the order dated 27th January, 1998 on the grounds that in Swami Nath s case the State at the stage of the reference has not taken the plea that Punjab Bhawan activities were not `industry under Section 2 (j) of the Act.

( 3 ) BY the order dated 27th August 1997, review of which was dismissed on 27th January 1998 by the impugned order, the Secretary (Labour), Govt. of NCT of Delhi has given the following reasons for declining the reference:- "from the documents placed on record, it transpires that Punjab Govt. vide its notification No. 1416/rva/79/16 dated 19. 4. 79 notified that Punjab Bhawan, New Delhi will be treated as a circuit House which are primarily intended for the use of Governor, Chief Minister, and Judges while on tour, prima facie, such activity of the State Govt. do not fall within the ambit of the definition of Industry as defined U/s 2 (J) of the I. D. Act".

( 4 ) IN my view the above order declining the reference for the aforesaid reasons is not sustainable because by the said order the Secretary (Labour) has proceeded to adjudicate the plea as to whether the circuit House can be treated as an industry as per Section 2 (j) of the Act. In my view the aforesaid finding adjudicating the dispute on merits between the parties can only be done by an adjudication under the Industrial Disputes Act and not at the stage of making a reference by the Labour Secretary, exercising administrative jurisdiction. The Labour Secretary has thus delved into a jurisdiction not vested with him in law. The plea whether the activities of Punjab Bhawan fall within the definition of `industry under S. 2 (j) of the Act is a plea which can only be raised and adjudicated in a Labour Court/industrial Tribunal.

( 5 ) IN Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others (1989) 3 SCC 271 the Hon ble Supreme Court has held as follows:-

"though 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 it is not entitled to adjudicate the dispute itself on merits. While exercising power under Section 10 (1) of the Act the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function. 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 of the Act. "

( 6 ) THE impugned order adjudicating the question of whether Punjab Bhawan activities were `industry thus clearly runs contrary to the position of law laid down in the aforesaid judgment which view has also been reiterated in Sharad Kumar Vs. Govt. of NCT of Delhi and Ors. JT 2002 (4) SC 49.

( 7 ) THUS the order dated 27th August, 1997 is entirely unsustainable. The order dismissing the