Judgment Nripendra Kumar Bhattacharyya, J. 1. The present appeal is directed at the instance of the appellant herein against the order dated January 18, 1994 passed in Matter No. 1994 (Andrew Yule and Company Ltd. vs. State of West Bengal) by Dilip Kumar Basu. J. whereby the learned Judge granted an interim order restraining the respondent from giving effect of further effect to the order of reference being No. 1729-IR/IR/III/155 of 90. dt. 2nd November, 1993 (Annexure H to the writ petition) until further order. The respondents were further restrained from proceeding with the case No. VIII-212 of 1993 until further orders. Liberty was given to the respondents to apply for variation and/or modification of the interim order with notice. 2. The fact giving rise to this appeal is that the appellant company is an existing company within the meaning of Companies Act. 1956 and the Company was carrying business of manufacturer, producer and supplier of tea, different electrical goods, electrical air pollution equipment etc., having it registered office at 8. Dr. Rajendra Prasad Sarani, Calcutta. 3. During the relevant time there was only one recognised Union of that Company, namely. Andrew Yule & Co. Ltd., (Calcutta Branch) Employees' Union. (which term will be referred to hereinafter as the Employees' Union). 4. The said Union submitted a charter of demands to the management of the company sometime on 1st of September, 1987 concerning revision of basic pay, dearness allowance house rent allowance and city compensation allowance. The matter ended in tripartite settlement entered on 18th September, 1989 with restrospective effect from 1st September, 1989. The period is specified for expiry of that agreement was 31st December, 1990. 5. Sometime on 19th of March, 1990 some of the members of the said employees' union resigned from that union and formed an union under the name Andrew Yule & Co. Ltd., and its group (Calcutta Branch) Clerical Staff Union, which was registered on 19.3.1990. (the union will be referred to hereinafter as the staff Union). 6. The said staff union submitted a chartered of demand to the authorities of the company sometime on 19th of November, 1990. It is alleged that the said charter of demands was also in relation to basic pay, dearness allowance, house rent allowance etc. 7. (the union will be referred to hereinafter as the staff Union). 6. The said staff union submitted a chartered of demand to the authorities of the company sometime on 19th of November, 1990. It is alleged that the said charter of demands was also in relation to basic pay, dearness allowance, house rent allowance etc. 7. According to the company the demand was made within the period covered by the tripartite settlement dated 18th September, 1989 and as the demand were unreasonable and exorbitant, no negotiation was held between the company and the said staff union and the matter was referred to the conciliation officer, respondent No. 3 in the petition, for conciliation. 8. The conciliation officer dosed the conciliation proceeding on the ground that the points of dispute raised by the staff union was the subject matter of the agreement dated 18th September, 1989 and as such, no industrial dispute could be raised till the expiry of the said agreement which was to expire on 31st of December, 1990 and informed the same to the said Union by his letter dated 17.1.1991 (Annexure A to the writ petition). 9. Thereafter on 22nd April, 1991 the company entered into a bi-partite settlement with the Employees Union revising the wage structure, house rent allowance, merger of dearness allowance, house building rent etc. with retrospective effect from 1st January 1991 (Annexure B to the writ petition). The said bi-partite agreement is to expire on 31st of December, 1994. 10. On 26th of April, 11991 the company issued notices to all its employees offering to pay in accordance with the said bi-partite settlement including the members of the appellate union on condition that the said employees would individually convey their acceptance of the terms and conditions of the said bi-partite settlement without any reservation (Annexure C to the writ petition). 11. The conciliation officer respondent No.3, who closed the conciliation proceeding earlier reopened the proceeding and by his order dated 20th June, 1991 directed the company to make payment regarding the benefits arising out of the bi-Partite settlement to the members of the appellate Union. 12. 11. The conciliation officer respondent No.3, who closed the conciliation proceeding earlier reopened the proceeding and by his order dated 20th June, 1991 directed the company to make payment regarding the benefits arising out of the bi-Partite settlement to the members of the appellate Union. 12. The company by a letter dated 26th June, 1991 intimated the conciliation officer-cum-Joint Labour Commissioner, Government of West Bengal that unless and until the terms and conditions of the bi-partite settlement dated 22nd April, 1991 are being accepted individually, no payment can be made to the employees who are outside the Employees' Union. 13. The company was asked to attend the conciliation proceeding and the company attended the conciliation proceeding separately and represented to the conciliation officer for dropping the conciliation proceeding. Thereafter the conciliation officer submitted a failure report to the Government. 14. Thereafter the employees outside the Employees' Union accepted payment in terms of the said bi-partite settlement on furnishing individually the acceptance of the terms and conditions of the bi-partite settlement. The fact was intimated to the conciliation officer who expressed his inability to do anything in the matter as he had already submitted the failure report to the Government. 15. The Staff Union, on the other hand, seeing the delay in the matter of conciliation moved this High Court in writ jurisdiction against the Government of West Bengal and the Hon'ble Mr. Susanta Chatterjee, J. by His order dated 18th February, 1992 in C.O. No. 326(W) of 1993 directed respondent No.1, Government of West Bengal to consider the representation of the Staff Union within eight weeks from the date of that order. 16. Thereafter the respondent No. 1 made a reference of the dispute for adjudication to the 8th Industrial Tribunal being No. 1729-LR. IR/11-L/155/90 dated 2.11.93. The issue(s) referred to for adjudication to the said Tribunal are as follows :- 1. Pay, Pay pattern, Pay Fixation, Pay Scales and Fitment benefit; 2. Dearness Allowance, and 3. House Rent Allowance. 17. Against the said reference the company as writ petitioner moved this High Court in writ jurisdiction before the Hon'ble Mr. Dilip Basu. 18. After hearing the petitioner the Hon'ble Mr. Pay, Pay pattern, Pay Fixation, Pay Scales and Fitment benefit; 2. Dearness Allowance, and 3. House Rent Allowance. 17. Against the said reference the company as writ petitioner moved this High Court in writ jurisdiction before the Hon'ble Mr. Dilip Basu. 18. After hearing the petitioner the Hon'ble Mr. Dilip Kumar Basu, J. on 13th January, 1994, inter alia, passed an interim order as under :- "There will be an interim order restraining the respondent from giving effect or further effect to the order under reference being No. 1729-I.R. I.R./11-L-155/90 dated 2nd November, 1993 being annexure 'G' to the writ petition until further order. The respondents are restrained from proceeding with the case No. VIII-212/93 until further order. The respondents are given liberty to apply for variation and/ or modification of the interim order with notice." Against that order the Staff Union has come up in the appeal. 19. The company in this writ petition challenged the reference primarily on three (3) grounds. (a) The reference has been made by the respondent No. 1 behind the back of the company and without any reference to it and as such there is violation of principal of natural justice. (b) Reference has been made without any jurisdiction as during the relevant time there was existence of only one Union namely Andrew Yule & Company Ltd. (Calcutta Branch) Employees Union and all the employees in the Head Office were its member. A tripartite settlement was entered between the Company and the said Union on 18th September, 1989 which was due to expire according to the terms of the settlement on 30th December, 1,990. The charter of demand by the staff union having been submitted sometime one 19th September, 1990 during the subsistence of that tripartite settlement, the reference is hit by Sub-s. (2) of s. 19 of the Industrial Disputes Act, 1947. (c) The employees who are not the members of the employees union having accepted all the benefits arising out of the bi-partite settlement dated 22nd April, 1991 without any reservation, there was no expediency for reference of the matter. The reference having been made, amongst others, on the ground of expediency the reference is bad. 20. Appearing for the appellant the Learned Advocate Mr. The reference having been made, amongst others, on the ground of expediency the reference is bad. 20. Appearing for the appellant the Learned Advocate Mr. Arunava Ghosh contended in the first place that the power to make reference by the Government under s. 10 of the Industrial Disputes Act is discretionary and administrative in nature. The dispute may be in existence or apprehensive. The court cannot question the adequacy or inadequacy of the material for forming government's opinion and the matter is not justiable. 21. In support of his contention he placed reliance on two decisions of the Supreme Court, M/s. Avon Services Production Agencies (P) Ltd., vs. Industrial Tribunal, Haryana & Drs., reported in AIR 1979 SC 170 and State of Madras vs. C. P. Sarathy and Anr., reported in AIR 1953 SC 53 . 22. In the next place he contended that a statement arrived at by an agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, but a settlement arrived at in the course of conciliation proceeding is binding no only on the parties to the Industrial Dispute but also on the other persons specified in Clauses (a), (b), (c) and (d) of sub-section (3) of section 18 of the Industrial Disputes Act. 23. In support of his contention he referred to the case of M/s. Tata Chemicals Ltd. vs. The workmen employed under Mis. Tala Chemicals Ltd., reported in AIR 1978 SC 828 . 24. In this connection, Mr. Ghosh further contended that 1989 settlement is not a settlement entered in course of conciliation proceeding and as such, it is not binding on the members of the Staff Union. He further contended that the matter is to be adjudicated before the Tribunal on evidence and the same cannot be adjudicated in writ jurisdiction. 25. Mr. Ghosh in the next place contended that the question of jurisdiction must be raised before the Tribunal at the earliest possible moment. In the event of failure to take such objection the person who wishes to raise that point has to satisfy the Court that he was unaware of the defect regarding the jurisdiction and that is why it was not taken. With these exceptions, the point of jurisdiction must be taken before the Tribunal at the first instance. 26. In the event of failure to take such objection the person who wishes to raise that point has to satisfy the Court that he was unaware of the defect regarding the jurisdiction and that is why it was not taken. With these exceptions, the point of jurisdiction must be taken before the Tribunal at the first instance. 26. In support of his contention he relied on a Single Bench decision of this Hon'ble Court in Suprova Sundari Devi vs. Commissioner of Income Tax, West Bengal & Drs., reported in 62 CWN 426. 27. Mr. Ghosh contended that the writ petitioner has contended in its writ petition that the respondent has no jurisdiction to refer the dispute to the Tribunal. So the jurisdiction point should be taken before that Industrial Tribunal and not before the High Court in writ jurisdiction. 28. Mr. Ghosh contended that the question of expediency being essentially a question of fact that must be adjudicated by the Tribunal and not by the High Court in its writ jurisdiction. 29. According to Mr. Ghosh the notice under sub-so (2) or sub-so (6) of S. 19 of the Industrial Disputes Act must be given by a party representing the majority of the person bound by the settlement or award and in the absence of same, the award is not binding upon the other workmen in view of sub-s. (7) of S. 19. 30. The Learned Advocate Mr. Bhaskar Gupta contended on the other hand, on behalf of the Company that a previous award being still binding, a fresh reference on the self same matter is barred under the law. 31. In support of his contention Mr. Gupta referred to the case of Management of the Bengalore Woollen, Cotton and Silk Mills Co. Ltd. vs. Workmen & Anr., reported in AIR 1968 SC 585 . 32. In the next place Mr. Gupta contended that the executives have to reach their decision by taking into account the relevant considerations. They should not refuse to consider relevant material nor they should take into account whol1y irrelevant or extraneous consideration for forming its opinion. They should not misdirect themselves on a point of law. Then only such a decision will be lawful. If those requisite are not fulfil1ed courts have the power to interfere with that order and to see that the executive acts lawfully. 33. They should not misdirect themselves on a point of law. Then only such a decision will be lawful. If those requisite are not fulfil1ed courts have the power to interfere with that order and to see that the executive acts lawfully. 33. In support of his contention he relied on the cases of M/s. Hochtief Gammon vs. State of Orissa & Ors., reported in AIR 1975 SC 2226 ; State of U. P. & Ors. vs. Maharaja Dharmander Prasad Singh & Ors., reported in (1989) 2 SCC 505 and also a Orissa High Court decision in the case of Orient Paper Mills Sramik Congress vs. State of Orissa & Ors., reported in 1988 (2) LLJ 75. 34. In the next place Mr. Gupta contended that the power of Government to refer or its duty to refer as laid down in s. 10 of the Industrial Disputes Act is guided by two qualifications; one, it has to arrive at a subjective opinion as to whether any industrial disputes existed or is apprehended and the other, even if it does come to such conclusion, or even if the facts are so patent that the existence of a dispute cannot be denied, stil1 the expediency to refer to adjudication is left open to Government. 35. In support of his contention Mr. Gupta referred to a Single Bench decision of this Hon'ble Court in the case of Royal Calcutta Golf Club Mazdur Union vs. State of West Bengal and Others, reported in AIR 1956 Cal 550 . 36. Mr. Gupta contended that in the instant case as the workmen, who are not the members of the employees union, received the payment arising out of the bi-partite settlement dated 22nd April, 1991, there was no ex-pediency in the matter and the reference of the dispute by the Government on the ground of expediency is bad and illegal. 37. Mr. Gupta also referred to a Karnataka decision in the case of Indian Telephone Industries Ltd. vs. State of Karnataka and Others, reported in t987 (1) LLJ 544. That is a case where the Government refused to refer the dispute to the tribunal but on representation by workmen referred the dispute and in that connection, the Karnataka High Court found that there was violation of principle of natural justice. That is a case where the Government refused to refer the dispute to the tribunal but on representation by workmen referred the dispute and in that connection, the Karnataka High Court found that there was violation of principle of natural justice. Factually that case is distinguishable from the present case and in our view that case has got no bearing with the present case. 38. Mr. Gupta lastly contended that the members of the Staff Union is a minority union in comparison to the employees union where the members are of a large in number. The reference by the Government at the instance of the said Union is not permissible. In this connection, reference was made to the case of State of Punjab vs. The Gondhara Transport Co. (P) Ltd. & Ors., reported in AIR 1975 SC 531 . 39. Having heard the learned Advocates for the parties and considering the materials on records it appears to us that the company challenges the reference on the grounds, inter alia, violation of principle of natural justice fur which Mr. Gupta relied on the Karnataka decision referred to above. But we have already pointed out that in that case the facts are quite different and the same is distinguishable from the instant case. 40. The conciliation officer invited the company to take part into the proceeding and the company took part in the conciliation proceeding separately and made its representation. So, it cannot be said that there is any violation of principle of natural justice. 41. The company in a round about way has questioned the adequacy of the material before the Government for forming its opinion and to refer the dispute. In this connection the submission of Mr. Gupta may be reckoned where Mr. Gupta submitted that there was already a bi-partite settlement and in the terms of the said settlement the members of the staff union without any reservation accepted the payments and as such there was no material before the Government to form its opinion about the existance of a dispute. 42. The Supreme Court in the case of State of Madras (supra) and Avon Services Production Agencies Pvt. Ltd. (supra) has held that the dispute may be actually in existence or there may be an apprehension for which reference under s. 10 of the Industrial Disputes Act can be made by the Government. 42. The Supreme Court in the case of State of Madras (supra) and Avon Services Production Agencies Pvt. Ltd. (supra) has held that the dispute may be actually in existence or there may be an apprehension for which reference under s. 10 of the Industrial Disputes Act can be made by the Government. The power is discretionary and administrative in nature the question of adequacy or inadequacy of the material for forming opinion by the Government is not justiciable. According to that principle laid down by the Supreme Court that question is not justiciable by the Court. 43. According to Mr. Gupta, the members of the Staff Union having accepted the payments in terms of the bi-partite settlement, 1991 without any reservation the principle of estoppel will come into play and according to Mr. Ghosh the same will not be a bar for reference of the dispute by the Government as there can be no estoppel against the statute. 44. Mr. Ghosh also contended that acceptance of the benefit arising out of the bi-partite settlement will not operate as a bar, in view of sub-so (7) of s. 19 of the Industrial Disputes Act. 45. Whether there was an expediency or not in the matter of reference is to be decided on evidence in the peculiarity o£ facts and circumstances of the present case and the same cannot be decided by the High Court in its writ jurisdiction. Accordingly, we do not differ with the submission of Mr. Ghosh in this regard. 46. Mr. Gupta also referred to the jurisdictional question regarding referrence of the dispute to the tribunal. That point is to be taken before the tribunal at the initial stage in the earliest opportunity. That is the view expressed by the Calcutta High Court in the case of Suprava Sundary Devi (supra). So that question cannot be decided by the High Court in its writ jurisdiction. 47. In view of our discussions above, we find merit in the appeal. 48. The appeal is, accordingly, allowed. The impugned order is hereby set aside. All interim orders, if any, stand vacated. The writ application is also disposed of accordingly. There will be no order as to costs. Learned Counsel appearing for the respondent No. 1 prays for stay of the operation of this order. This prayer is refused. 49. 48. The appeal is, accordingly, allowed. The impugned order is hereby set aside. All interim orders, if any, stand vacated. The writ application is also disposed of accordingly. There will be no order as to costs. Learned Counsel appearing for the respondent No. 1 prays for stay of the operation of this order. This prayer is refused. 49. All parties are to act on a signed copy of the minutes of the operative portion of the judgment and order on usual undertaking. Prabir Kumar Majumdar, J.: I agree. Appeal Allowed.