The appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis while exercising power u/s 10(1) of the Industrial Disputes Act, 1947.

JUDGMENT :

Pasayat, J. - Petitioner calls in question legality of order passed by the Government of Orissa in the Labour and Employment Department, refusing to refer a purported dispute for adjudication by the appropriate adjudicating forum by impugned order dated December 8, 1995 (Annexure-6).

2. The facts giving rise to the application essentially are as follows:

Questioning correctness of the order of retrenchment as passed by the Bargarh Regional Co-operative Marketing Society Limited (in short, 'the Society'), petitioner moved the District Labour Officer-cum-Conciliation Officer, Bargarh. He took the stand that his retrenchment was not in accordance with law. A failure report was submitted by the Conciliation Officer. On consideration of the report, the State Government by the impugned order refused to make a reference.

While exercising power u/s 12(5) of the Industrial Disputes Act, 1947 (in short 'the Act') refusal was made on the following ground as contained in the impugned order.

"On consideration of the abovementioned report and in exercise of the power conferred u/s 12(5) of the I.D. Act, 1947, the State Government are satisfied that there exists no case for reference for adjudication since the management has followed all statutory provisions."

3. According to Ms. Sanju Panda, learned Counsel appearing for the petitioner, the Courts adopted by the State Government in refusing the reference is clearly contrary to law. The learned Counsel for State on the other hand submitted that the State Government is not required to act as a mere post office and to automatically or in a routine manner refer every question which is characterised as an industrial dispute.

4. While exercising power u/s 10(1) of the Act, the function performed by the appropriate Government is an administrative function, and not a judicial or quasi judicial function. (See Shambu Nath Goyal Vs. Bank of Baroda, and Ram Avtar Sharma and Others Vs. State of Haryana and Another. If the Government performs an administrative act while either making or refusing to make a reference u/s 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of the lis. That would certainly be in excess of the power conferred by Section 10. The said provision requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on grounds irrelevant, extraneous or not germane to the exercise of the power it is liable to be questioned in exercise of the power of judicial review. The Court may not issue writ of mandamus, directing the Government to make a reference, but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to consider the matter. In State of Madras Vs. C.P. Sarathy and Another and in Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and Others it was held that the function of the appropriate Government thereunder is an administrative function. It was so held, presumably, because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. The Court would be justified in issuing a writ of mandamus directing the government to reconsider the question of making o