The opinion of the appropriate Government formed under Section 12 (5) of the Industrial Disputes Act, 1947, with regard to the existence of industrial disputes must be based on existing disputes, and an opinion formed on non-existent disputes is incompetent.

G. B. PATNAIK, J.

( 1 ) AN award of the Industrial Tribunal dated 30th of september, 1986, annexed as Annexure-14, has been assailed in this writ application by the Management inter alia on the ground that the disputes referred to by the Government for adjudication were not in existence and accordingly the reference itself was incompetent and the award passed by the tribunal on such a reference was invalid and inoperative. The award has also been challenged on the ground that the State Government while making the reference having formed its opinion on the basis of the conciliation failure report and the said conciliation failure report not having indicated as to the existence of the disputes and, on the other hand, having indicated that the employees abandoned their claim, the opinion formed by the Government must be held to be based on non-existent materials and, therefore, the tribunal passed the award on the basis of an incompetent reference and consequently, the award must be held to be null and void.

( 2 ) THE short facts leading to the award of the Tribunal are that the petitioner is a Co-operative Society and the employees of the petitioner through their Union (opposite party No. 2) submitted a charter of demands and raised industrial disputes before the conciliation machinery. The management as well as the workmen participated before the Conciliation Officer and the statutory notice in form-D was given by the Conciliation Officer on 17-7-1984 fixing the date for conciliation to be 31-7-1984. The conciliation notice indicated that there were three demands, namely (i) payment of wages for 56 days (ii) payment of seven instalments of additional dearness allowance and (iii) promotion of the workers to the post of Assistant Secretary. The said conciliation notice has been annexed as Annexure-1. The Couciliation officer submitted a failure report on 6-9-1984, which has been annexed as annexure-2 and the said failure report categorically indicates that the demands on payment of house rent, medical allowance, revision of pay scales and appointment of Assistant Secretary from amongst the workmen were not pressed by the workmen. This failure report (Annexure-2) formed the basis of a reference made by the Government under Annexure-5 After the conciliation failure report, the Employees' Union submitted another charter of demands reiterating their earlier demands with some modulation on 30th of january, 1985, which has been annexed as Annexure-3 and those demands were that the workers should be paid their wages for the period of 56 days from 24-10-1983 to 18-12-1983, the workmen should be paid 14 additional dearness allowance with effect from 1-4-1982 and the management and control of the Society be taken over by the Government to save the Society from destruction. The State Government in exercise of its powers conferred in section 12 (5) read with Section 10 (1) (d) of the Industrial Disputes Act made a reference on 31-5-1985 (Annexure-5 ). The reference made by the government is quoted here in below in extenso :"government of Orissa labour and Employment Department order no. II/1-192/1984-5627/le, Bhubaneswar dated 31st May, 1985. Whereas on a consideration of the report of the Conciliation Officer the State Government are satisfied that an industrial dispute exists between the management of Aska Central Multipurpose Co-operative society Ltd. , Aska and their workmen ; and whereas the said Government consider it expedient to refer for adjudication the matters specified in the Schedule appended hereto which appear to be the matters in dispute : now, therefore, in exercise of the powers conferred by sub-section (5)of Section 12 read with clause (d) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947), the State government do hereby refer the said matters in dispute to the presiding Officer, Industrial Tribunal, Bhubaneshwar, constituted by notification of the Government of Orissa in the Labour departm