ORDER S.M.N. Raina, J. This is a petition under Article 226 of the Constitution. The Petitioner is a Trade Union registered under the Indian Trade Unions Act, representing the employees of Chambal Hydel Irrigation Project of Government of Madhya Pradesh (hereinafter referred to as the 'project') in the Gwalior Division. The Petitioner served three notices on the Deputy Chief Engineer Chambal Project, demanding certain allowances and wages for the period of strike in the year 1966 (vide Annexure B and C). As the Petitioner received no reply to these notices the dispute was referred to the Conciliation Officer under Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act"). The Conciliation Officer however failed to bring about an amicable settlement of the dispute and he submitted a report to the State Government under Sub-section (4) of Section 12 of the Act. As the Government failed to take any action on the report the Petitioner filed a writ petition (M. P. No. 29 of 1969) under Articles 226 and 227 of the Constitution against the State Government and the Labour Commissioner who are Respondents in this case. The petition was allowed by this Court and a writ of mandamus was issued directing the State Government to consider the report of the Conciliation Officer and to take necessary action under Section 12(5) of the Act, vide order dated 23-1-70 (Annexure M). Thereafter, the Labour Commissioner intimated the Petitioner that as the Chambal Project was an 'industry' within the meaning of Clause (j) of Section 2 of the Act, the dispute in question was not an 'industrial dispute' and as such it could not be referred to the Tribunal under Section 12(5) of the Act, vide letter dated 17-3-71 (Annexure N). This action of the Respondent has been challenged in this petition praying that the Respondents be directed to make a reference to the Tribunal under Sections 10 and 12 of the Act. Shri S. K. Dubey, learned Counsel for the Petitioner, contended that the Government has taken the aforesaid action mala fide in order to defeat the just demands of the employees. It was pointed out in this connection that the question whether the 'project' is an 'industry' or not was not raised by the Government in the previous petition i e. M. P. No. 29 of 1969 although it was open to the Respondents to do so. It was pointed out in this connection that the question whether the 'project' is an 'industry' or not was not raised by the Government in the previous petition i e. M. P. No. 29 of 1969 although it was open to the Respondents to do so. It was, therefore, argued that this plea has now been raised at this stage merely to put forward some excuse for not referring the dispute to the Tribunal in pursuance of the decision or this Court in M. P. No. 29 of 1969 and the action of the Government is mala fide. We notice that in paragraph 7 of the order dated 23-1-70 in the said petition this Court had observed as under: When this inordinate delay is considered along with the fact that the State Government, with whom the decision under Section 12(5) rests, is itself a party to the dispute, there is weight and force in the contention that the impugned order was not made bona fide. These observations do support the contention of the learned Counsel for the Petitioner. But as this Court merely directed the Respondents to take necessary action under Sub-section (5) of Section 12 of the Act and under the said provision it is open to the State Government not to make a reference for reasons to be communicated to the parties concerned, we prefer to take a liberal view of the matter particularly because the Respondents purported to take the aforesaid action on the authority of a decision of the Supreme Court in Secretary, Madras Gymkhana Club Employees Union v. The Management of the Gymkhana Club AIR 1968 SC 554 . The next point that was urged by Shri Dubey was that the plea of the State Government that the 'project' is not an 'industry' and as such the dispute is not an 'industrial dispute' within the meaning of the Act is barred on the principle of res judicata for two reasons. In the first place, this point was not raised by the Respondents in the previous petition. In the first place, this point was not raised by the Respondents in the previous petition. Secondly, this point has been expressly decided by the Industrial Tribunal between the parties in a previous Reference No. 6/I.T./1966 M.P. Irrigation Karamchari Sangh Gwalior v. Chambal Hydal Irrigation Scheme, Gwalior decided on 30th November 1966 It is no doubt true that general principles of res judicata are applicable to writ petitions, but since this point was not expressly decided in the earlier petition which was founded on a different cause of action, the plea cannot be barred on the principle of res judicata As for the decision of the Industrial Tribunal it cannot also operate as res judicata because the subject-matter of the case before the Tribunal was different. Thus the only question that remains for consideration is whether the project is an 'industry' and, therefore, the dispute is an 'industrial dispute' within the meaning of the Act. The word 'industry' has been defined in clause (j) of Section 2 of the Act as under: Industry means any business, trade, undertaking, manufacture or calling of employees and includes any calling, service, employment handicraft or industrial occupation or avocation of workmen. The true meaning and import of the word 'industry' as defined in the above clause have come up for consideration before the Supreme Court in a number of cases. In Reference No. 6/I. T. /66 decided on 30-11-66 the Tribunal relying on a decision of the Supreme Court in the State of Bombay v. Hospital Majdoor Sabha AIR 1960 SC 610 observed as under in paragraph 6: The activity in the Irrigation Department for making Irrigation facilities available to the cultivators for better crop production cannot be considered to be a sovereign function, but it is an activity undertaken by the Government in the interest of socio-economic progress of the country. Applying the test suggested, it is not difficult to see that the work which is being done by the second party is an industry for rendering material service to the community and as such it is an industry. The aforesaid decision of the Supreme Court has been overruled in S. J. Hospital New Delhi v. K. S. Sethi AIR 1970 SC 1407 . In that case their Lordships no doubt construed the word 'industry' more narrowly but so far as this case is concerned it would not make any difference. The aforesaid decision of the Supreme Court has been overruled in S. J. Hospital New Delhi v. K. S. Sethi AIR 1970 SC 1407 . In that case their Lordships no doubt construed the word 'industry' more narrowly but so far as this case is concerned it would not make any difference. In paragraph 20 their Lordships quoted with approval the following observations regarding construction of the word 'industry' in their earlier decision in Secretary. Madras Gymkhana Club Employees Union v. Management of the Club (supra): ......before the work engaged in can be described as an industry, it must bear the definite character of 'trade' or 'business' or 'manufacture' or 'calling' or must be capable of being described as an undertaking resulting in material goods or material services. The following observations of their Lordships in paragraph 19 are also pertinent: It, therefore, follows that before an industrial dispute can be raised between employers, and their employees or between employers and employers or between employees and employees in relation to the employment or non-employment or the terms of employment or with the conditions of labour of any person, there must be first established a relationship of employers and employees associating together, the former following a trade, business, manufacture, undertaking or calling of employers in the production of material goods and material services and the latter following any calling, service, employment, handicraft, or industrial occupation or avocation of workmen in aid of the employers' enterprise. It is not necessary that there must be a profit motive but the enterprise must be analogous to trade or business in a commercial sense. Thus it would appear that an activity of an institution would amount to 'industry' within the meaning of the Act only if the following conditions are fulfilled: (i) it must be analogous to trade or business in a commercial sense although there may be no profit motive; (ii) it must be capable of being described as an 'undertaking' resulting in material goods or material service. We find that both the conditions are fulfilled in this case. The project is engaged in rendering material services to the community by providing them irrigation facilities The Government may not be carrying on this undertaking with profit motive but that would not make any difference inasmuch as the undertaking is analogous to trade or business as the irrigation facilities are provided on payment of certain charges. The project is engaged in rendering material services to the community by providing them irrigation facilities The Government may not be carrying on this undertaking with profit motive but that would not make any difference inasmuch as the undertaking is analogous to trade or business as the irrigation facilities are provided on payment of certain charges. Such an activity on the part of the Government can not be characterised as Governmental or administrative in character. It is essentially a business activity, even though the motive is general welfare of the people and not profit. We, therefore, hold that the project is an 'industry' within the meaning of the Act and the dispute in question is an 'industrial dispute'. The learned Additional Government Advocate urged that all that Sub-section (5) of Section 12 of the Act requires is that the Government should state its reasons for not making reference and, therefore, it is not open to the Court to go into these reasons. In other words, the reasons given by the Government are not justiciable. In support of his contention reliance was placed on the decision of the Supreme Court in State of Bombay v. K. P. Krishnan and others AIR 1960 SC 1223 . In that case their Lordships made the following observations in paragraph 11: The problem which the Government has to consider while acting under Section 12(5)(a) is whether there is a case for reference. This expression means that Government must first consider whether a prima facie case for reference has been made on the merits. If the Government comes to the conclusion that a prima facie case for reference has been made then it would be open to the Government also to consider whether there are any other relevant or material facts which would justify its refusal to make a reference. The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have a bearing on the merits of a case as well as on the incidental question as to whether a reference should nevertheless be made or not. The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have a bearing on the merits of a case as well as on the incidental question as to whether a reference should nevertheless be made or not. A discretion to consider all relevant facts which is conferred on, on the Government by Section 10(1) could be exercised by the Government even in dealing with cases under section 12(5) provided of course the said discretion is exercised bona fide, its final decision is based on a consideration of relevant facts and circumstances, and the second part of Section 12(5) is complied with. Further in paragraph 17 their Lordships observed at under The order passed by the Government under Section 12(5) may be administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny; in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government; nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the Court can issue, and would be justified in issuing a writ of mandamus even in respect of such an administrative order. It is, therefore, clear that it is open to the Government to consider whether it would be expedient or not to make a reference and its decision in the matter would not be open to challenge provided it acts bona fide, and its final decision is based on a consideration of relevent facts and circumstances. But if the Court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous, irrelevant or not germane the Court can interfere. Here in this case the Government have not based its decision on a consideration of relevant facts and circumstances. In fact the Government refrained from exercising powers under Sub-section (5) of Section 12 of the Act under an erroneous impression that the 'project' is not an 'industry' and the dispute not being an 'industrial dispute', no reference can be made. Here in this case the Government have not based its decision on a consideration of relevant facts and circumstances. In fact the Government refrained from exercising powers under Sub-section (5) of Section 12 of the Act under an erroneous impression that the 'project' is not an 'industry' and the dispute not being an 'industrial dispute', no reference can be made. If the Government fails or refuses to perform a statutory duty, on an erroneous view of law or of a mixed question of law and fact which can properly be decided by a Court or Tribunal this Court is bound to interfere. The Government cannot be considered to be the final authority in dealing with such questions particularly where it is itself a party to the dispute. We, therefore, find no substance in this contention of the learned Additional Government Advocate. The petition is, therefore, hereby allowed and the Government is hereby directed to take suitable action in exercise of its powers under Sub-section (5) of Section 12 of the Act. The action taken by it as per letter (Annexure'N') is hereby quashed We, however, make no order as to costs in the circumstances of the case. The amount of security deposited by the Petitioner shall be refunded to him. Petition allowed