The appropriate government's function under section 12(5) read with section 10(1) of the Industrial Disputes Act, 1947 is administrative in nature and it cannot decide the merits of the dispute.

S.C. Pandey, J.

1. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 6-9-1993 passed by the respondent No. 1, refusing to refer the industrial dispute under the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') to the appropriate Tribunal that is to say the Central Government Industrial Tribunal Cum Labour Court, Jabalpur. The petitioner prays that the order dated 6-9-1993, Annexure P-7, be quashed by a writ in the nature of Certiorari and a writ of Mandamus be issued directing the respondent No. 1 to refer the matter for its adjudication by the Tribunal.

2. It is alleged by the petitioner that he was working as an agent under the direct supervision and control of the Divisional Manager, Life Insurance Corporation of India, Jabalpur, the respondent No. 2. It is stated by the petitioner that the respondent No. 2, Life Insurance Corporation of India is his employer and he used to work as per directions given by the Divisional Manager, Life Insurance Corporation of India, Jabalpur. It is further urged that the petitioner was served with a show cause notice by Annexure P-2, dated 10-6-1989. After receipt of reply, the respondent No. 2, by order dated 2nd February, 1990, Annexure P-3, terminated the agency of the petitioner without holding any inquiry into the matter. Thereafter, the petitioner filed an application dated 7-1-1993 for conciliation before the Assistant Labour Commissioner (c), Jabalpur, Annexure P-4. The respondent No. 2 filed a reply to the application aforesaid on 15-2-1993, vide Annexure P-5. The petitioner, thereafter, filed a rejoinder to the reply filed by the respondent No. 2. This rejoinder is filed and marked as Annexure P-6.

3. There could be no settlement between the parties, therefore, the conciliation officer submitted a failure report to the respondent No. 1 for passing necessary order for adjudication of this case under section 10 of the 'the Act'. Thereafter, the respondent No. 1 passed the impugned order dated 6-9-1993 which is marked as Annexure P-7. By the impugned order the respondent No. 1 had refused to refer the matter for adjudication by the Tribunal on the ground that the petitioner was not in receipt of any wages from Life Insurance Corporation of India but was in receipt of the commission in proportion to the business done by him. This relationship indicated that the petitioner and the respondent No. 2 had business relationship and, therefore, the provisions of the Industrial Deputes Act were not attracted.

4. The counsel for the petitioner, Shri R. K. Gupta, contended that the respondent No. 1 had no jurisdiction to decide the matter on merits because it was required to pass an administrative order under section 12(5) of 'the Act'. It was contended that it is well established that when the appropriate Government exercises its power under section 12(5) of 'the Act' the reference must ultimately be made under section 10(1) of 'the Act'. The Supreme Court has already held in State of Bombay v. K. P. Krishnan, AIR 1960 SC1223 that section 12(5) of 'the Act' does not confer an independent power on the appropriate Government to refer the dispute in the exercise of power under section 12(5) of 'the Act'. The reference must ultimately be made under section 10(1) thereof. There can be no quarrel with this proposition and counsel for respondent No. 2 did not dispute it. It was further contended that while exercising the power under section 12(5) read with section 10(1) of 'the Act' all that is necessary is that there should be a prima facie industrial dispute between the parties. The referring authority cannot trench upon the jurisdiction of the Tribunal while deciding the application for reference of dispute which was essentially an administrative matter. The second contention of the counsel for the petitioner was that the reason given for refusing to refer the dispute were perverse and the petitioner was definitely a workm