JUDGMENT K.A. Nayar, J. 1. This petition is to quash Ext. P2 order of the Government refusing to refer industrial dispute to adjudication. Petitioner is a trade union representing the workers employed in the 2nd respondent's establishment. It is stated that S. Muraleedharan Pillai was permanently employed in the bus, KRQ 5812 owned by the 2nd respondent and the 2nd respondent denied employment to him on 4-9-1987 arbitrarily. The District Labour Officer on 14-10-1987, 3-11-1987, 8-12-1987, 26-12-1987, 14-3-1988 and 22-3-1988 called joint conferences of the parties to consider the issue of denial of employment to Muralidharan Pillai. Since no settlement is arrived at, a failure report has been sent as required under S.12 of the Industrial Disputes Act. 2. S.12 of the Industrial Disputes Act provides that if any industrial dispute exists or apprehended, conciliation officer may hold conciliation proceedings with a view to bring a settlement. If settlement is arrived at, the conciliation officer shall send the report thereof to the appropriate Government or authorised officer. If no settlement is arrived at, he has to send a failure report setting out the steps taken by him for ascertaining the facts and the circumstances relating to the dispute and for bringing out a settlement thereof, together with full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. After considering the report, if the appropriate Government is satisfied that there is a case for reference to the Labour Court or Tribunal, it may make such reference. In case it is not making such reference, it has to record and communicate to the parties the reasons thereof. 3. In this case, after submission of the failure report, Government passed order, Ext. P2. It says that Government have examined the, issue in detail and found that Shri. Muraleedharan Pillai was employed in the bus service KRQ 5812 from 12-3-1987 to 4-9-1987 and attended only 130 days duty during the period. Since workman must be on continuous service for 240 days in any year, he is not qualified to raise an industrial dispute. Hence it is stated that the issue does not merit adjudication and the Government does not consider it expedient to refer the issue for adjudication. 4. In coming to the above conclusion it can be seen that Government has adjudicated on the merit of the case. Hence it is stated that the issue does not merit adjudication and the Government does not consider it expedient to refer the issue for adjudication. 4. In coming to the above conclusion it can be seen that Government has adjudicated on the merit of the case. Adjudication is the domain of the tribunal and labour court. It is not for the Commissioner and Secretary to come to any finding on the merit of the case. Government's contention is that workman is not permanently employed. Even if he is not permanently employed, it is stated that he can question the dismissal, if it is arbitrary. Even termination of the probationer can be the subject matter of an industrial dispute. It may be, for availing the benefit under S.25F of Chap.5A, continuous service of 240 days may be required, But that consideration is not relevant for denial of employment of a permanent workman That is the contention raised before me. 5. The consideration which is to be made while exercising power to refer a dispute have been the subject - matter of several decisions In State of Bombay v. Krishnan, 1960 (2) LLJ 592 , the Supreme Court held that if the court is satisfied that the reason given by the Government for refusing to make a reference is not germane or relevant the court can interfere and issue mandamus to reconsider the matter again. S.12(2) requires the conciliation officer to investigate the dispute without delay with the object of bringing about a settlement. The duty and function of the conciliation officer is, as his very name indicates, to mediate between the parties and to make an effort to settle the dispute. This court, while hearing a petition for mandamus, is not sitting in appeal over the decision of the Government; but if the court is satisfied that the reason given by the Government for refusing to make a reference are extraneous and not germane then the court can be justified in issuing a writ of mandamus. In Bombay Union of Journalists and others v. State of Bombay ( 1964 (1) LLJ 351 ) the Supreme Court further held that if reference is refused on irrelevant or extraneous consideration or actuated by mala fide the Court will certainly interfere with the same and so is the case where the reference is refused without any speaking order. In Bombay Union of Journalists and others v. State of Bombay ( 1964 (1) LLJ 351 ) the Supreme Court further held that if reference is refused on irrelevant or extraneous consideration or actuated by mala fide the Court will certainly interfere with the same and so is the case where the reference is refused without any speaking order. In the above decision the Supreme Court held that: "When the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not under S.10 of the Industrial Dispute Act 1947, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not." Similarly on disputed question of fact also the Government should not come to any final decision. The appropriate Government need not write an elaborate order indicating exhaustively all reasons. Therefore, the Government has to state reason for refusing to make a reference. In M/s. Hochtiff Gammon v. State of Orissa (1915 (2) LLJ 418) the Supreme Court held that the appropriate Government must reach the decision by taking into account relevant consideration. The Court held that: "The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law". The Supreme Court also held in the decision reported in Ram Avtar Sharma & Another v. State of Haryana (1985 (2) LLJ 187) that while exercising the power of making a reference the appropriate Government performs an administrative act and not a quasi judicial act and therefore, even though, prima facie merit can be adverted to while deciding the question whether the dispute should be referred or not, it cannot delve into the merits of the dispute and take upon itself the determination of lis. The prima facie examination to see whether the claim is frivolous or bogus or claim is mala fide or put forth for extraneous and irrelevant reasons and not for industrial peace, etc. can be gone into by the Government. But an adjudication on the merit of the case cannot be gone into by the executive Government. The prima facie examination to see whether the claim is frivolous or bogus or claim is mala fide or put forth for extraneous and irrelevant reasons and not for industrial peace, etc. can be gone into by the Government. But an adjudication on the merit of the case cannot be gone into by the executive Government. Therefore, the question whether the person is a workman or not is not a matter to be adjudicated by the executive Government. In Telco Convoy Drivers Mazdoor Sangh v. State of Bihar ( 1989 (3) SCC 271 ) reviewing the earlier decision the court summarised the law as under: "It is now well settled that, while exercising power under S.10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by S.10 of the Act. See Ram Avtar Sharma v. State of Haryana, M.P. Irrigation Karmachari Sangh v. State of M. P., Shambu Nath Goyal v. Bank of Baroda, Jullundur. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the government was not justified in deciding the dispute. Where, as in the Instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under S.10(1) of the Act. As has been held in M. P. Irrigation Karmachari Sangh case, there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. As has been held in M. P. Irrigation Karmachari Sangh case, there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and, that to allow the government to do so would be to render S.10 and S.12(5) of the Act nugatory." Every person employed in the establishment is a workman as defined under S.2(s) whether he is temporary or permanent or probationary and the question of working 240 days is relevant only to claim benefit accrued on the basis of continuous service as defined under S.27B. Since there is an adjudication on the merit of the case and Ext. P2 is passed taking into account irrelevant considerations as well. I quash Ext.P2. If as a matter of fact the person is not a workman within the definition of 'workman' under the Act and, therefore, it was not a fit case for reference, this Court would not have interfered in view of the decision reported in R. K. Agarwal v. State of Orissa (1976 SC 1474). In the circumstances, I direct the respondents to re-consider the issue. There was no appearance on behalf of the 2nd respondent before me. Original Petition is allowed as above.