The government cannot decide a dispute on its merits while exercising its power to refer disputes for adjudication under Section 10(1) of the Industrial Disputes Act, 1947.

( 1 ) THIS petition on behalf of the Employees Unions challenges the order dated 3rd August, 1983, by which the Ministry of Labour and Rehabilitation declined to refer the dispute raised by the petitioner Union for adjudication. The order declining the reference is in the following terms : In continuation of this Ministry s letter of even number dated the 3rd November, 1982, on the above subject I am directed to say that the Central Government has decided not to refer the dispute for adjudication for management of Indian Airlines and were engaged by the contractor? And getting their wages only through them. "

( 2 ) THE petitioner Union had raised the dispute that they were the employees of Indian Airlines and wages similar to those paid to the other employees of the Indian Airlines be paid to them. This eventually lead to the termination of the services of the concerned employee and seeking of a reference by them from the Ministry of Labour leading to the impugned order dated 23rd August 1983, extracted hereinabove.

( 3 ) LEARNED Counsel for the petitioner has relied upon a judgment reported as Ram Avtar Shanna and Others v. State of Haryana and Another, (1985)3 SCC 189, wherein the Hon ble Supreme Court has held as follows:

"therefore the view that while exercising power under Section 10 (1) the function performed by the appropriate Government is an administrative function and not a judicial or quasi judicial function is beyond the pale of controversy. Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10 (1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that the industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exits or claim frivolous or bogus or put forth extraneous and relevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on ground relevant and germane to the exercise of power. If the administrative determination is based on the relevant, extraneous or grounds not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review. "

( 4 ) IT was further held in Telco Convoy Drivers Mazdoor Sangh and Another v. State of Bihar and Others reported as (1989)3 SCC 271 by the Hon ble Supreme Court that :

"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", as urged by Mr. Shanti Bhushan. 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. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO i. e. to say whether there is relationship of employer and employees between the TELCO and the convoy drivers. In considering the question whether a reference should be made or not the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is, undoubtedly, not permissible. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Whereas in the instant case the dispute is 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. In several instances this Court had to direct the Government to make a reference under Sec