JUDGMENT H. L. Agrawal, J. Both these writ applications have been heard together and are being disposed of herewith as the facts and the questions of law are almost similar. 2. Petitioner numbers 2 to 6 of the first Case are convoy drivers and claim to be the members of petitioner no. 1, Tata Convoy drivers Congress, a registered union. The three petitioners of the second case are similarly the members of another registered Trade Union namely, All India Convoy Workers Union. Undisputedly, they transport the trucks produced by M/s Tata Engineering and Locomotive Company Ltd (in common parlance caned as 'Telco'). According to the practice and system employed by Telco they take the services of convoy drivers through the agency of Transport Contractors' which has been described for brevity' T. T. C. A. (Telco Transport Contractors Association). The association of the Transport contractors of the Telco, Ltd. has also been impleaded as respondent no. 4. From a perusal of the statements made in the writ applications and the various annexures made thereto, it is apparent that the convoy drivers have been agitating from time to time for better service conditions and there has been various settlements from time to time arrived at between their Union and the T.T.C.A.; for example; memorandum of settlement dated 31.1.1973 (Annexure-2) (of the 2nd case) memorandum of settlement dated 31.1.1979 (Annexure-1/A) and a tripartite settlement dated 15.4.1980 (Annexure-11) (both of the first case). 3. The claim of the petitioners is that they made a further demand that they should be treated to be the employees of the Telco, Ltd. and, thus, be held entitled to all the benefits available to their workmen. A list of the demands was accordingly made by petitioner no. 1 (first case) by its letter dated 25.12 1978 (Annexure-5 to the first case) threatening with a strike notice if their demands were not conceded. It made these averments:- “The Telco convoy drivers are persons employed through Telco Transport Contractor's Association, contractor's, in connection with the work for Telco. Ltd.....All convoy drivers should be placed in monthly rated graded scales of pay in line with Telco, stores drivers of Grade SR-3........linked with all India Consumers Price Index”. Besides these demands, various other demands such as halting allowance, safety appliances dress medical facilities, bonus, insurance and gratuity etc. Ltd.....All convoy drivers should be placed in monthly rated graded scales of pay in line with Telco, stores drivers of Grade SR-3........linked with all India Consumers Price Index”. Besides these demands, various other demands such as halting allowance, safety appliances dress medical facilities, bonus, insurance and gratuity etc. were made Copy of this demand notice is also said to have been sent to the Labour Commissioner, respondent no. 2 and the Deputy Labour Commissioner, Jamshedpur, respondent no. 3, Respondent no. 2, by his letter dated 15.1.1979 (Annexure-6 to the first case) invited comments from the Telco Ltd. as well as from the T. T. C. A. and thereafter by the impugned order dated 26.2.1979. (annexures 8 and 4 of the respective writ applications) respondent no. 3 informed the petitioners representatives that in view of the opinion of the Law Department of the year 1973 to the effect that there was no relationship of Master and Servant between the members of petitioner no. 1 and the T.T.C.A; the demands of the convoy driven were not covered within the ambit of the Industrial Disputes Act, 1947. The applications have been filed for quashing this order. 4. The petitioners after having prayed for quashing of the said letter dated 26.2.79 as well as the letter dated 5.1.73 issued by respondent no. 2 containing opinion of the Law Department (annexure-8/B), have further prayed for issuance of a writ of mandamus commanding the concerned respondents to refer the disputes raised by the petitioners to an appropriate Tribunal for its fair adjudication. 5. The respondent nos. 4 and 5, in their counter affidavits have controverted the claims of the petitioners and in essence their plea of defence is that the nature of employment of the petitioners was casual and that they were employed for working in that capacity. Besides, the nature of the order of the State Government was administrative and, therefore, it cannot be compelled by this Court to adjudicate any demand or for that matter make any reference for adjudication to any Industrial Tribunal. 6. Besides, the nature of the order of the State Government was administrative and, therefore, it cannot be compelled by this Court to adjudicate any demand or for that matter make any reference for adjudication to any Industrial Tribunal. 6. In the writ applications followed by various supplementary affidavits and rejoinders as well as in the counter affidavits filed on behalf of the respondents accompanied with various documents as annexures, an attempt has been made on behalf of the petitioners that they should have been treated as the workmen of the Telco, there being a relationship of employer and employee The respondents, on the other hand, have endeavored to show that the nature of the petitioners employment was casual and they could not and should not be treated as their workmen. Although it is not necessary or proper at this stage for this Court to enter into the main contest between the parties, as this question has to be examined and reconsidered either by the State Government Or any Tribunal. 7. None the less for the sake of indicating the basis of the claims and its refutation by the respondents I would just indicate their respective stands and very precisely the materials which have been pressed into service. The petitioners firstly relied upon various memoranda of settlements and contended that the intervention of the Labour Department on all occasions clearly established that the disputes were always treated as 'Industrial Disputes' within the meaning of section 2(k) of the Industrial Disputes Act. To this the stand of the contesting respondents is that the intervention of the Labour Department and the settlements arrived at between the parties was only on account of a benevolent acts of respondent nos. 4 and 5 and what has been a matter of charity cannot be enforced as a legal right. 8. Learned counsel appearing on behalf of the Telco. On the other hand, has drawn our particular attention to the fact that all the settlements were between the convoy workers' Union and the T.T.C.A. and the presence of the Telco. 4 and 5 and what has been a matter of charity cannot be enforced as a legal right. 8. Learned counsel appearing on behalf of the Telco. On the other hand, has drawn our particular attention to the fact that all the settlements were between the convoy workers' Union and the T.T.C.A. and the presence of the Telco. Management in the meetings was not at all relevant particularly when it was specifically stated (vide annexure-11) that:- “As the issue in question concerned the Transport Contractors and their drivers, the Telco, Management had nothing to do with it.” It also put special emphasis to one of the stipulations in the memorandum (vide annexure 1/A) where the Union of the drivers undertook to ensure that:- “The employees of the Telco. Ltd. should not be permitted to be booked as convoy drivers.” Various documents have been filed by the respondents to show that the convoy drivers were free to transport the vehicles of other Manufacturers and they were, in fact, accepting such jobs and were free to accept the job of the contractors of the Telco and, therefore, their engagement was not on the mercy of the Telco, 9. On behalf of the petitioners, however, reliance was placed upon the leading cases of the Supreme Court in the case of Hussainbhai V. The Alath Factory Tezhilali Union and others to show that although the convoy drivers were working through the intermediate contractors with whom alone they had immediate or direct relationship it was of no consequence as on lifting the veil or looking at the conspectus of factors governing the employment, it was the Telco who had the economic control over their subsistence, skill and continued employment. Reference was also made to the case of Mangalore Ganesh Beedi Works Etc. Ltd, V. Union of India etc. and Silver Jublee Tailoring House and others V. the Chief Inspector of shops and establishments find another. It was in the background of the observation made in Hussainbhai's case that Mr. Govind Das and Dr. Chitale learned counsel, appearing on behalf of respondent nos. 4 and 5, had endeavored to show that the nature of the engagement and for that matter employment of the convoy drivers by their contractors for transporting the products of the Telco, did not show that either their subsistence, skill or continued employment was under the control of their clients. Chitale learned counsel, appearing on behalf of respondent nos. 4 and 5, had endeavored to show that the nature of the engagement and for that matter employment of the convoy drivers by their contractors for transporting the products of the Telco, did not show that either their subsistence, skill or continued employment was under the control of their clients. It was argued by Dr. Chitale that there as no continuity of employment particularly when in the work of other automobile manufacturers It was open to the contractors to choose and send anyone of the drivers out of their total number. The convoy drivers had to be approved by the Deputy Commissioner (see annexure-7). In their counter affidavit, respondent no. 5 has alleged that the convoy drivers have been freely changing their patrons inasmuch as for one trip, they get wage by one transport contractor and for the next by another Contractor and that they were found to have been getting similar engagements by other transporting Co. through their transport contractors. 10. Mr. Govind Das put reliance upon the case of Prem Kekar V. State of Haryana and another and contended that as the appropriate Government had already found that the convoy drivers were not the workmen within the meaning of the Industrial Disputes Act, the question of any reference for adjudication did not arise and the State Government should not be asked by a writ of mandamus to make a deference. There might be some force in this contention of Mr. Das, but I do not propose to record any concluded opinion on this question. 11. Now I come to the legal question that was argued at some length as to whether this Court, under exercise of the writ jurisdiction, can interfere with the order, annexure 8., or give any other direction to the Government in the matter of adjudication of the disputes raised by the convoy drivers. This at once brings us to the consideration of some of the provisions of the Industrial Disputes Act. ‘Industrial Dispute’ has been defined under section 2(k) of the I. D Act. This at once brings us to the consideration of some of the provisions of the Industrial Disputes Act. ‘Industrial Dispute’ has been defined under section 2(k) of the I. D Act. as ; “Industrial dispute” means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment of the terms of employment or with the condition of labour, or any person": From this definition it is apparent that the dispute must be between the employer and its Workmen. ‘A workmen’ has again been defined in clause(s) of section 2 of the Industrial Disputes Act: “(a) "Workmen" means any person (including all apprentice) employed in any industry to do any skilled or Unskilled manual supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied.” Section 12 of the Act prescribes the duty of the Conciliation Officer who, for the purpose of bringing about the settlement of the dispute, has to make efforts for a conciliation Under sub section (4) if no such settlement is arrived at, the Conciliation Officer would send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. Under the next sub section (5) it has been prescribed that if the appropriate Government, on a consideration of the said report, is satisfied that there is a case for reference, 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 there for. This is one of the provisions and machineries under which a reference could be made by the appropriate Government if it felt satisfied that there was a case for such a reference. There is another provision for making a reference of a dispute contained in section 10 of the Act and in that also the opinion of the appropriate Government that 'industrial dispute exists or is apprehended is a sine-qua-non for making a reference'. There is another provision for making a reference of a dispute contained in section 10 of the Act and in that also the opinion of the appropriate Government that 'industrial dispute exists or is apprehended is a sine-qua-non for making a reference'. Section 10 of the Act is thus independent of section 12 and it is not necessary that the procedure laid down in section 12 regarding conciliation proceeding should be complied with before a reference is made by the Government under section 10(1), The Government is entitled to, prima facie, go into the merits of the dispute for deciding as to whether the same may be referred or not. 12. Mr. S. B. Sinha, learned counsel appearing on behalf of the petitioners in both the cases vehement-ally argued that the argument that if once a dispute was existing or apprehended, the appropriate Government was bound to make a reference. This argument is entirely misconceived and must be rejected. The order of the Government acting under section 10(1) read with section 12(5) is administrative and not judicial and quasi judicial in nature and the powers of this Court under Article 226 are very much limited; in the sense that only where it appears that from the reasons given, the Government took into account any irrelevant or foreign consideration, this Court may, in a given case, interfere as the formation of the opinion' is purely subjective. 13. Mr. Das also referred to the cases of the State of Madras V. C. P. Sarathy and another and Rothas Industry Limited V. S. D. Agrawal and another and Indian Oil Corporation Ltd. Vs. The State of Bihar and others in support of his contention that power of interference of this Court in the case of refusal to make a reference was very much limited. This proposition, however cannot be disputed and, therefore, I do not feel necessary to deal with the details of these cases. 14. Mr. S. B. Sinha, on the other hand, has, placed reliance upon the cases of Dalmianagar Mazdoor Seva Sangh V. State of Bihar and others M/s. Daily Tej Private Ltd. V. Lt. Governor, Delhi, through Delhi Administration and others Balubhai J. Panchat V. State of Maharashtra and others Workmen of M/s Wings Wear Corporation V. Governor Delhi and another and Shankari Cement Alai Thozhilalar Munnetra Sangan, Tamil Nadu V. Govt. Governor, Delhi, through Delhi Administration and others Balubhai J. Panchat V. State of Maharashtra and others Workmen of M/s Wings Wear Corporation V. Governor Delhi and another and Shankari Cement Alai Thozhilalar Munnetra Sangan, Tamil Nadu V. Govt. of Tamil Nadu and another in which various High Courts have interfered with the refusal of the appropriate Government to make a reference. 15. Mr. Govind Das, learned counsel appearing for respondent no. 4 rightly distinguished all those cases as the refusal to make the reference were on materials which were alien or foreign for the consideration of the Government for refusing to make a reference. 16. Mr. Sinha further argued that the impugned order as contained in Annexure-8 did not indicate the application of mind of the appropriate Government. This argument of Mr. Sinha, however, seems to have some force. The letter addressed by the Deputy Labour Commissioner, Jamshedpur refers only to the law department's opinion of the year 1973 without indicating in what context and in what circumstance, he rejected the demands. After 1973 there might have been various developments and changes in the circumstances which might have been taken into consideration by the Law Department in the year 1973. Annexure-8 does not indicate the investigation and scrutiny on all the relevant materials as contemplated either under section 10(1) or section 12(5) of the Industrial Disputes Act. Respondent no. 3 has simply abdicated and has completely surrendered his discretion to the opinion of the Law Department without examining any other factor for his consideration. As the power of the Government to make a reference even after its refusal is well established (see Western India Match Co. Ltd. V. Worker's Union on the facts and in the circumstances of the case mentioned above, I am of the opinion that the petitioners should reagitate the matter before the appropriate Government either under section 12 or directly under section 10 of the Industrial Disputes Act and if such a dispute is raised in a proper manner by the petitioner then I hope that the appropriate Government would consider their case in a proper prospective in the light of the documents and the materials that they will place, in accordance with law. 17. In the result, the applications are dismissed subject to the observations and directions mentioned above. Madan Mohan Prasad, J. I agree. Application dismissed.