( 1 ) NATIONAL Dairy Development Board Employees Union has filed this petition against the order dated 18/12/1989 (Annexure "d") passed by the Deputy Labour Commissioner, Baroda, refusing to refer the matter to the Industrial Tribunal on the ground that the workmen, who have raised the dispute, were workmen of the Contractors and not that of National Dairy development Board, Anand. The petitioner has prayed that respondents Nos. 1 and 2 be directed to refer the aforesaid dispute to the Industrial Tribunal for decision under Sec. 10 of the Industrial Disputes Act for the demands made in the letter dated 3/01/1989, which is produced at Annexure "a". The petitioner-Union demanded permanent grades and consequent revision of pay scales, as per the said demands.

( 2 ) IN this petition, it has been submitted that the State Government or the Labour Commissioner was required to refer the matter to the Industrial tribunal, because the question whether the concerned workmen were the workmen of respondent No. 2 or its Contractors cannot be decided by the state Government, and that whether there exists master and servant relationship between the concerned workmen and respondent No. 3 depends on various disputed facts and respondent No. 2 has no jurisdiction to adjudicate it.

( 3 ) THIS contention is vehemently opposed by respondent No. 3. in the affidavit-in-reply filed by the Deputy Manager (Legal), N. D. D. B. , it has been, inter alia, stated that the concerned workmen 1 to 39, stated in Annexure "a" to the petition, were the persons engaged by three different Contractors. Persons named at Serial Nos. 1 to 14 were engaged by Contractor T. H. Menon, who had taken the mess contract. As per the direction given in Special civil Application No. 4285 of 1989, 8 persons out of the said 14 persons are engaged by the present Contractor at Farmers Hostel Mess. Persons mentioned at Serial Nos. 15 to 34 in Annexure "a" are are persons engaged by BOHO Club, through the Contractor, viz. , Gujarat Environmental Service society, for the work of maintenance and cleaning of the lawns and sanitation work of the BOHO Club and surrounding areas of quarters. Persons mentioned at Serial Nos. 35 to 39 are engaged as daily wagers for the cafeteria activities of the BOHO Club. Details are given in the affidavit-in-reply to show that the workmen mentioned in Annexure "a" are not the workmen of respondent no. 3-N. D. D. B. It has been, therefore, submitted that the Deputy commissioner of Labour has rightly refused to refer the dispute to the industrial Tribunal on the basis of the materials and the affidavits produced by the respondent No. 3. It has been also pointed out that the Contractors are the Registered Contractors and are having licences under the Contract labour (Regulation and Abolition) Act, 1970.

( 4 ) IN support of the contention raised by the petitioner, learned advocate Mr. Mukul Sinha heavily relied upon the judgment of the Supreme court in the case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. , AIR 1989 SC 1565. As against this, Mr. B. R. Shah, learned Advocate appearing on behalf of the respondent No. 3, vehemently submitted that if the persons mentioned in Annexure "a" are not the workmen of respondent No. 3, there is no question of referring to the industrial Tribunal the dispute between the petitioner and respondent No. 3. He submitted that under Sec. 10 (1) of the Industrial Disputes Act, frivolous disputes are not required to be referred to the Industrial Tribunal and the State Government, while excrising its administrative function under sec. 10 (1) of the Industrial Disputes Act, can consider prima facie case of the matter without adjudicating it finally. For this purpose, he has placed reliance upon the decisions of the Supreme Court in the case of Bombay union of Journalists and Ors. v. State of Bombay and Anr. , AIR 1964 sc 1617, in the case of Prem Kakar v. State of Haryana and Anr. , AIR 1976