JUDGMENT : A. Pasayat, J. - Order of the Central Government refusing to make a reference u/s 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') is assailed in this writ application. 2. The factual arena of dispute is very limited. The Petitioner claiming to be a registered trade union of workmen working with Paradip Port Trust wanted reference of certain alleged disputes and/or difference on failure of conciliation efforts by the authorities of the Labour Department. The allegations of the Petitioner were to the effect that there was dispute/difference relating to listing of worker in the cargo handling scheme of the Paradip Port Trust (hereinafter referred to as 'the Port Authorities'). Initially there were certain discussions held between the Port Authorities and the representatives of various unions to evolve a criteria for such listing. Since the lists were not acceptable to the Unions, the matter was agitated before this Court in O.J.C. No. 157 of 1980 and some other writ applications. Said O.J.C. No. 157 of 1980 was disposed of on 7-4-1980 with a direction to re-examine the matter and finalies the same within a stipulated time. Since the matter was not finalised to the choice of the workers, the impasse continued. Subsequently the, Petitioner's union which was registered in June, 1982 as a trade union espoused the cause of some of the workers. The Petitioner thereafter entered into series of discussions with the Port Authorities as well as the officials of the Labour Department. There was an attempt to conciliate and on failure thereof, a failure report was submitted to the Central Government. According to the Petitioner, since an industrial dispute existed which needed adjudication, the Central Government should have made a reference to an appropriate forum for adjudication thereof. Instead, by order dated 24-7-1986 which is annexed as Annexure-1 to the writ application, the Petitioner-union was intimated that there was no prima facie ground to make a reference of the dispute for adjudication by a Tribunal. 3. Mr. Jagannath Das, learned Counsel appearing for the Petitioner, inter alia challenged the sustainability of the said order of refusal on the following grounds: (i) The grounds of refusal as indicated are not germane to the subject-matter of dispute. The said order has been passed without due and proper application of judicial mind. 3. Mr. Jagannath Das, learned Counsel appearing for the Petitioner, inter alia challenged the sustainability of the said order of refusal on the following grounds: (i) The grounds of refusal as indicated are not germane to the subject-matter of dispute. The said order has been passed without due and proper application of judicial mind. The consideration as to whether a dispute needs adjudication is not an empty formality and the Central Government is bound in, law to take into consideration all relevant facts before the order disposing of the matter is passed. (ii) The Central Government while disposing of the matter took into consideration irrelevant materials, thereby vitiating the order. (iii) Three grounds were indicated in the order for refusing reference, namely, sufficient opportunities were given by the management to the Unions and the contractors for submitting their lists of workers and for participating in the discussion for finalisation of the norms and criteria for listing the workers; the listing was done as per the norms and criteria settled during the discussion; and the Petitioner union was not in existence "at that time". The first two grounds are wholly irrelevant in view of the direction given by this Court on 7-4-1980 to reexamine the list. The order indicated adjudication by the Central Government, which is beyond its competence. It is not known as to at what time the Petitioner-union was not in existence according to the Central Government. Even though the union mayor may not be in existence at a point of time, it cannot be said that the union cannot espouse the cause since the dispute relates to the workers. At any rate it is not clear as to what the Central Government implied by stating "at that time" without specifying as to whether what is the point of time to which reference was made. Therefore, the order of refusal is non est in the eye of law and is to be set aside. It was further stated that in recent time making a departure from the earlier practice, Courts are issuing directions to make reference on being satisfied that a dispute which needs adjudication exists. Mr. Therefore, the order of refusal is non est in the eye of law and is to be set aside. It was further stated that in recent time making a departure from the earlier practice, Courts are issuing directions to make reference on being satisfied that a dispute which needs adjudication exists. Mr. Indrajeet Mohanty, learned Counsel appearing for the Paradeep Port Trust, however, submitted that the writ application (O.I.C. No. 157 of 1980) and similar writ applications which were disposed of by this Court were filed by separate unions and any direction therein does not confer any right on the Petitioner to have the matter reagitated. The language of the orders clearly shows that it related to other unions and not to the Petitioner. Therefore, the Petitioner cannot derive any support therefrom. Mr. A.B. Misra, learned Standing Counsel appearing for opposite party No. 1, submitted that there must be a finality attached to proceedings and in relation to the same matter different unions at different points of time should not be permitted to go on agitating over and again. According to him, the Central Government was right in refusing the reference as the matter has been elaborately dealt with in discussions to which reference has been made in the impugned order. Therefore, the order is not open to challenge. It was further submitted that the order refusing reference is not subject to judicial review as the matter relating to making or refusing a reference lay within the discretion of the Central Government. 4. Before dealing with the respective contentions, we express our concern at the fact that no Counter affidavit was filed by the Central Government or the Port Authorities even though sufficient time was granted to them. Therefore, the averments made by the Petitioner went unrebutted. The writ application was deficient in respect of certain documents. When pointed out, Mr. Jagannath Das, learned Counsel for the Petitioner submitted that the other documents which are relevant were not in the possession of the Petitioner and it was the duty of the Central Government as well as the Port Authorities to place those documents for proper adjudication. We find that a copy of the failure report which is a very vital document has not been brought on record for our consideration. We find that a copy of the failure report which is a very vital document has not been brought on record for our consideration. It further appears that in the order refusing reference it was indicated that the same was in continuation of the Ministry of Labour's letter dated 3-1-1985. Since it was indicated therein that the same was in continuation of the earlier letter, it was appropriate that this document should have been filed. But for reasons best known to the parties they kept it out of record. 5. Now coming to the respective contentions, the power and discretion to make or not to make a reference is vested in "the appropriate Government" u/s 10(1). While refusing to make a reference, the Government has to comply with the requirements of Section 12(5). It is clear from the language used in sub-clauses (a), (b), (c) and (d) of Section 10(1) that the Government is not bound to refer the whole of the industrial dispute in all its aspects as raised by the workmen. Further, Section 12(5) makes it abundantly clear that even where it has formed its opinion u/s 10(1) that an industrial dispute exists or is apprehended, it shall still consider whether it would be expedient to refer the dispute. The only obligation Section 12(5) imposes is that in case the Government does not choose to refer the dispute to anyone of the authorities, it will record its reasons for that and communicate the same to the concerned parties. Non-compliance of the requirements of Section 12(5) makes the order of refusal amenable to judicial review. (See Bombay Union of Journalists and Others Vs. The State of Bombay and Another, and State of Bombay Vs. K.P. Krishnan and Others. The scope of judicial review to interfere with the discretion of the Government is very limited. The Government is the sole arbiter of the factum of existence or apprehension of the industrial dispute. The further question whether it would be expedient to make a reference or not is a matter, in the discretion of the Government. If, therefore, the appropriate Government after applying its mind to the material before it comes to the conclusion that an industrial dispute is in existence or is apprehended, it has then to be satisfied whether it would be expedient to refer the dispute of not. If, therefore, the appropriate Government after applying its mind to the material before it comes to the conclusion that an industrial dispute is in existence or is apprehended, it has then to be satisfied whether it would be expedient to refer the dispute of not. If the discretion of the Government is exercised bona fide and upon taking into account the relevant and material considerations and without leaving any vital material out of consideration, the discretion of the Government is not amenable to judicial review. But if the appropriate Government act mala fide or take into account extraneous and irrelevant considerations, which it ought not to have taken into consideration, or had not taken into account the matters which it ought to have considered in refusing to make a reference, the order is subject to judicial scrutiny. In other words, the appropriate Government can be directed to reconsider the question whether the reference should be made or not, leaving out of consideration the irrelevant and extraneous considerations or taking into consideration, the vital materials which it left out of consideration, in refusing to make the reference earlier. In the instant case it is to be seen whether there has been consideration of relevant material or any relevant material has been left out of consideration arid/or whether any irrelevant material has played any role in the process of adjudication. We find from the impugned order that the basis for refusal is the discussion between the management and certain unions and the contractors. As rightly contended on behalf of the Petitioner, the matter was directed to be re-considered by this Court. The mere existence of the union itself at a given point of time is also not of much consequence. It is not the dispute of the union but the dispute of the workers. No material was placed before us by the opposite parties to show that the Petitioner-union was not espousing the cause of the workers who had raised the original dispute if any. Even though the nomenclature of an union may change or a new union espouses the cause of the workers, that would not be a ground for refusal. Section 2(k) of the Act defines an industrial dispute. Even though the nomenclature of an union may change or a new union espouses the cause of the workers, that would not be a ground for refusal. Section 2(k) of the Act defines an industrial dispute. A bare reading thereof shows that it 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 or the terms of employment or with conditions of labour of any person. Therefore, where a dispute exists between any of the categories enumerated above, it would constitute an industrial dispute. Section 36 lays down as to who are competent to represent a workman in any proceeding under the Act. Significantly the functionaries in the Labour Department took cognizance of the existence of the Petitioner union and entered into discussions, negotiations and conciliatory efforts between the Petitioner-union and the Port Authorities. Therefore, even if at a given point of time the union mayor may not have existed, that will not be a ground for refusing a reference. The vagueness in the expression "at that time" as appearing in the impugned order is bewildering. On that score alone the order is to be vacated. We shall now deal with the further contention that we may direct a reference, instead of remitting the matter back to the Central Government. In the case of K.P. Krishnan (supra), the Supreme Court laid down that at the most the Court has power to direct the Government to exercise its discretion according to law where it has earlier improperly refused to do so. In our view, the reviewing Court, even if satisfied that the order refusing to make a reference is not proper or valid, cannot place itself in the position of the Government and direct a reference by reason of its own satisfaction. We, therefore, do not propose to issue a direction to the Central Government to make a reference. It is within its domain and discretion. While re-considering the matter it shall take into consideration all relevant facts leaving out of consideration irrelevant and extraneous facts and then decide whether any dispute/difference exists and/or whether it would be expedient to make a reference. We do not express any final opinion in the matter. It is within its domain and discretion. While re-considering the matter it shall take into consideration all relevant facts leaving out of consideration irrelevant and extraneous facts and then decide whether any dispute/difference exists and/or whether it would be expedient to make a reference. We do not express any final opinion in the matter. Accordingly, Annexure-1 is quashed and the matter is remitted back to the Central Government to pass necessary order in accordance with law. To avoid further delay, however, we direct that the matter shall be concluded by the end of December, 1989 at the latest. 6. The writ application is disposed of accordingly, but without any order as to costs. P.C. Misra, J. I agree. Ordered accordingly.