Judgment 1. Petitioner No. 1 is a Trade Union called Bihar Provincial Electric Workers Federation. Petitioner No. 2 is another Trade Union called Manuda Power House Workers Union which is affiliated to petitioner No, 1. It appears that one Sri A. N. Dutta was employed as Mains Engineer in the Manuda Power House owned and managed by the Associated Power Company Limited. On 8-3-1955, the management of the Manuda Power House gave a notice for terminating the services of Sri. A. N. Dutta along with other employees with effect from 30th April 1955. Petitioner No. 2 protested against the termination of the services and a complaint was lodged with the Labour and Conciliation Officer, Government of Bihar, Dhanbad, who held conciliation meetings subsequently between file representatives of the management and the workmen. There was a settlement arrived at between the parties and a memorandum of agreement was signed on 23-4-1955. Thereafter there was a dispute between the parties with regard to the reinstatement of Sri A. N. Dutta. It is admitted, however, that the management of the Power House gave alternative employments to most of the employees and also gave retrenchment, compensation, but Sri A. N. Dutta was not given any alternative employment, nor was he given any retrenchment compensation. The petitioners thereafter approached the Labour Department of the Government of Bihar for intervention and settlement of the dispute with regard to Sri A. N. Dutta. The Labour Officer, Dhanbad, held a conciliation meeting, but no settlement was arrived at between the parties, and the management refused to accept Sri A. N. Dutta in their employment or to pay him compensation. The Labour Officer, Dhanbad, held a conciliation meeting, but no settlement was arrived at between the parties, and the management refused to accept Sri A. N. Dutta in their employment or to pay him compensation. The Labour Commissioner of Bihar informed the petitioners on 10-9-1957, that the dispute with regard to the non-employment of Shri A. N. Dutta could not be referred to the Industrial Tribunal for adjudication because Sri A. N. Dutta was not a workman within the meaning of the Industrial Disputes Act, The letter of the Deputy Commissioner of Labour, dated 10-9-1957, is annexure D-1 to the petition and is reproduced below: "With reference to representation on behalf of Sri A. N. Dutta and letter No. 164/57 dated the 1st August, 1957 from the Federation, Sri A. N. Dutta is informed that it appears that while employed as Mains Engineer in the Manuda Power Station of the Associated Power Company Limited, Dissargarh (Dhanbad), Shri Dutta was not a workman as defined in the Industrial Disputes Act, 1947 , and that the Labour Commissioner, therefore, regrets that he is unable to interfere in this case." The case of the petitioner is that according to the interpretation of Section 12(5) of the Industrial Disputes Act the Government of Bihar was bound to refer the dispute to the Industrial Tribunal after the attempt at conciliation had failed and that the reason given in annexure D-1 for non-reference of the dispute is not a valid reason in the eye of law. The petitioners, therefore, have prayed for grant of a writ in the nature of mandamus under Article 226 of the Constitution, requiring the State of Bihar to refer the industrial dispute for adjudication to the Tribunal under Sec.12 (5) of the Industrial Disputes Act. 2. Cause has been shown in this case by the learned Government Pleader on behalf of the respondents. 3. On behalf of the petitioners the argument was put forward that the Labour Commissioner was wrong in holding that there is no industrial dispute within the meaning of Sec.2(k) of the Industrial Disputes Act merely because Sri A. N. Dutta was not a workman within the meaning of Sec.2 (s) of the Industrial Disputes Act. With regard to the question whether Sri A. N. Dutta was a "workman" or not there is not much scope for debate. With regard to the question whether Sri A. N. Dutta was a "workman" or not there is not much scope for debate. The letter of the Associated Power Company Limited to the Deputy Commissioner of Labour, dated 1-3-1957, which is annexure 1 to the counter-affidavit, shows that in actual fact the duties of Sri A. N. Dutta were substantially of a supervisory character, and the clerical or manual work performed by him was only incidental or ancillary to his supervisory duties. But the argument of learned Counsel for the petitioners is that even if Sri A. N. Dutta was not a workman, still there was industrial dispute within the meaning of Sec.2 (k) of the Act which runs as follows: "2. (k) Industrial dispute means any dispute or difference between employer and employers, or between employers and workmen, or between workmen, which is connected with the employment or non-employment or the terms employment or with the conditions of labourer, of any person". In this connection counsel referred to the decision of the Supreme Court in Workmen of Dimakuchi Tea Estate V/s. Management of Dimakuchi Tea Estate, AIR 1958 SC 353 , where the phrase "any person" in Sec.2 (k) has been interpreted as including a person who was not a workman, but that person must be one in whose employment, non-employment, terms of employment or conditions of labour the workmen as a class must have a direct or substantial interest. It was further held in that case by the majority of learned Judges that where a person was not a workman as he belonged to the medical or technical staff, a different category altogether from workman, and the workmen of the establishment had no direct, nor substantial, interest in his employment or non-employment, it cannot be said, even assuming that he was a member of the same Trade Union, that the dispute regarding his termination of service was an industrial dispute within the meaning of Sec.2 (k) of the Act. It is not clear from the affidavit of the petitioner in this case, nor is it clear from the counter-affidavit, whether the workmen of the Power House in this case had a direct or substantial interest in the employment or non-employment of Sri A. N. Dutta. It is not clear from the affidavit of the petitioner in this case, nor is it clear from the counter-affidavit, whether the workmen of the Power House in this case had a direct or substantial interest in the employment or non-employment of Sri A. N. Dutta. There is absence of material on this point and it is, therefore, difficult to hold that with regard to the non-employment of Sri A. N. Dutta there was an industrial dispute within the meaning of Sec.2 (k) of the Industrial Disputes Act in this case. We shall, however, assume in favour of the petitioners that in the employment of Sri A. N. Dutta the workmen of the Power House had "a direct and substantial interest" within the principle laid down by the majority of learned Judges in the Supreme Court Case, AIR 1958 SC 353 . Even upon that assumption we hold that there is no failure on the part of the State Government to comply with the provisions of Sec.12 (5) of the Industrial Disputes Act which are to the following effect: "12. (5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board or Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor." The argument on behalf of the petitioners is that the reason given by the State Government for not making the reference as disclosed in annexure D-1 to the application is based on a misconception of law and, therefore, there was failure on the part of the State Government to perform its duty of giving reasons under Sec.12 (5) of the Industrial Disputes Act. Learned counsel referred in this connection to Firestone Tyre and Rubber Co. of India Ltd. V/s. K. P. Krishnan, AIR 1956 Bom 273 and State of Madras V/s. Swadesamitran Printers Labour Union, AIR 1952 Mad 297 , but both these cases are distinguishable from the facts of the present case. Learned counsel referred in this connection to Firestone Tyre and Rubber Co. of India Ltd. V/s. K. P. Krishnan, AIR 1956 Bom 273 and State of Madras V/s. Swadesamitran Printers Labour Union, AIR 1952 Mad 297 , but both these cases are distinguishable from the facts of the present case. In Madras Case, AIR 1952 Mad 297 , the State Government had given 110 reasons at all for not making a reference to the Tribunal and so the learned Judges issued a writ on the State Government directing them to discharge the duty cast on them under Sec.12 (5) of the Industrial Disputes Act, namely, either to make a reference or to decide that there should be no reference in which case reasons should be recorded and communicated to the parties concerned. Rajamannar C. J., was careful to point out in this case that having regard to the language used in Sec.10 (1) of the Act along with the proviso thereto, there can be no doubt that the word "may" in Sub-section (1) of Sec.10 cannot be read as "shall". The word "may" is potential, and when it is employed, there is another question to be decided, namely, whether there is anything that makes the duty of the person on whom the power is conferred to exercise that power. There may be a duty on the Government to exercise their discretion, but there is no duty cast on them to exercise that discretion in any particular way. In the Bombay case, AIR 1956 Bom 273 , also the material facts were quite different and it was pointed out by Chagla C. J., in that case that the reasons given by the State Government for not making the reference had no bearing and no relevance to the question at issue before the Government, namely, whether there was a case made out for reference of the dispute to the Industrial Tribunal. In the present case the material facts are obviously different and the ratio of AIR 1956 Bom 273 , has no application to the present case. In the present case the material facts are obviously different and the ratio of AIR 1956 Bom 273 , has no application to the present case. In any event, even assuming that there was an error of law committed by the State Government in giving its reasons under Sec.12 (5) of the Industrial Disputes Act, it cannot be said that the order of the State Government refusing to make a reference is vitiated because of lack of jurisdiction or that the reasons given by the State Government are no reasons at all in the eye of law. In a case of this description a distinction must, be drawn between a mere error of law and a question of ultra vires or defect of jurisdiction. In the circumstances of the present case we do not consider that there is any error of jurisdiction or that the action of the State Government is ultra vires of Sec.12 (5) of the Industrial Disputes Act. 4. For those reasons we hold that there is no case made out on behalf of the petitioners for grant of a writ in the nature of mandamus under Article 226 of the Constitution and this application is ac cordingly dismissed with costs. Hearing fee Rs. 100/-.