Faizan Uddin, J. -- 1. In this petition under Article 226 of the Constitution of India, the petitioner challenges the proceedings before the Assistant Labour Commissioner and the order of reference dated 1.12.1989 (Annexure P.15) made by the Add!. Commissioner (Labour) under section 10(1) read with section 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referring the dispute to the Labour Court.

2. The petitioner is a Department of the Government of Madhya Pradesh known as "State Institute for Rural Development" (hereinafter referred to as the Sate Institute). Respondent No.5 Naresh Kumar was appointed as Driver in the petitioner State Institute by order dated 19th May, 1987 (Annexure P.2). By order dated 16th August, 1988 (Annexure P.5) the services of respondent No. 5 were terminated. Respondent No. 5 raised an industrial dispute by making an application under section 10 of the Industrial Disputes Act, 1947, before the Assistant Labour Commissioner, Jabalpur. The petitioner State Institute entered appearance before the Assistant Labour; Commissioner and filed reply stating that it is purely a department of the State Government and the activities of the State Institute do not fall within the definition of 'industry' nor the respondent No.5 is a 'workman', as defined in the Act and, therefore, the provisions of the Industrial Disputes Act are not attracted to the case and, therefore, the alleged dispute was beyond the jurisdiction of the Labour Court. The Assistant Labour Commissioner forwarded the record to the Additional Commissioner (Labour) who made the impugned reference to the Labour Court referring the following question for adjudication ;--

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3. Learned counsel for the petitioner contended that having regard to the facts placed before the Assistant Labour Commissioner, it is not an industrial dispute within the meaning of section 2(k) of the Act as neither respondent No. 5 is a workman as defined in the Act nor the petitioner State Institute is an industry within the meaning of the Act. He, therefore, urged that initiation of conciliation proceedings by the Assistant Labour Commissioner and the Additional Labour Commissioner and the impugned order of reference are beyond jurisdiction. For the same reason it has been contended that the Labour Court has absolutely no jurisdiction to proceed with the case assuming it to be an industrial dispute. Learned counsel for the petitioner further contended that though the petitioner has specifically pleaded the aforesaid facts in its statement of claim filed before the Assistant Labour Commissioner and in the written statement filed before the Labour Court; but neither the Assistant Labour Commissioner nor the Additional Labour Commissioner dwelt on the said points nor framed any question on the point of jurisdiction while making a reference of the dispute to the Labour Court. He, therefore, submitted that the entire proceedings are without jurisdiction and must be quashed. As against this, learned counsel appearing for respondent No. 5 contended that the question whether the petitioner State Institute is an industry and whether respondent No. 5 is a workman within the definition under the Act, are incidental to the question already referred and, therefore, the same can be examined and adjudicated in the order of reference itself and, therefore, the absence, of specific question regarding the jurisdiction would not invalidate the order of reference.

4. Section 12 of the Act deals with the duties of Conciliation Officers and the circumstances in which, on failure of the conciliation, a reference of the dispute is to be made by the appropriate Government for adjudication by the Labour Court, Tribunal or National Tribunal, as the case may be. Where the appropriate Government d