JUDGMENT : Dipak Misra, J. - Defensibility of the order passed by the Deputy Secretary to Government in the Department of Labour & Employment by Office Memorandum dated March 4, 1995 (Annexure-1) declining to refer the disputes alleged to have arisen between the Director, Municipal Administration, Orissa and All Executive Officers and Chairman of Municipalities and Notified Area Councils of the State and their workmen in exercise of powers conferred by Sub-section (5) of Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') is called in question by the petitioner-Orissa Municipal Employees Federation in the present writ application under Articles 226 and 227 of the Constitution of India. 2. The factual scenario as depicted by the petitioner is as follows : The Federation raised charter of demand before the Conciliation Officer-Assistant Labour Commissioner for adjudication. The said authority entered into conciliation and upon conciliation submitted his failure report to the State Government. The State Government on consideration of the failure report submitted by the Conciliation Officer by order dated March 4, 1995 recorded that no industrial dispute existed between the parties in respect of 14 demands. As it appears there has been categorisation of demands and reasons have been ascribed itemwise for such non-reference. However, dispute with regard to revision of rate of pension paid to the workmen of the Municipalities and the N.A.Cs has been referred to the Presiding Officer, Industrial Tribunal, Bhubaneswar, for adjudication. The grievance is with regard to the order passed by the State Government refusing to refer the rest of the disputes. 3. By order dated August 23, 1995, notice was issued to the opposite parties indicating that the writ application was likely to be disposed of at the stage of admission itself. Notices were served on the opposite parties. On February 1, 1996, the Court took note of non-filing of the counter affidavit and directed for listing of the matter for final disposal after six weeks with a further stipulation that the counter affidavit should be filed within the said period. It was observed in the aforesaid order that in the event no counter affidavit was filed, matter should be placed for final disposal. The matter appeared on May 10, 1996 and on that day, it was directed to be posted 2 weeks after the summer vacation. It was observed in the aforesaid order that in the event no counter affidavit was filed, matter should be placed for final disposal. The matter appeared on May 10, 1996 and on that day, it was directed to be posted 2 weeks after the summer vacation. The Court while adjourning the matter recorded thus :-- "Counter be filed within one week after the vacation. We make it clear that if no counter is filed within the time granted, the matter would be considered accordingly." As per the direction of this Court, the matter came up for final disposal on July 19, 1996. Though good nine weeks had elapsed, no counter affidavit was filed by the opposite parties. A party has the liberty to file a return or he may choose not to do so. When the Public Officers are parties to a litigation and matter is adjourned at their instance, it is expected of them to comply with the order of this Court and file counter affidavits. In a case of this nature, what (sic.) effect or impact it would have is another matter and not presently for consideration. The fact remains that the Court granted opportunities to file the return but a sphinx like silence was maintained. We normally would not have adverted to this issue in extenso but we are compelled to do so because quite often it is canvassed before us that orders are passed by the Court without the counter affidavits. It is well settled in law that if counter affidavits are not filed, the averments made in the writ application are to be accepted. We have noticed in many cases while orders are passed by this Court are not carried out, litigants in anguish, take recourse to our contempt jurisdiction and at that juncture statements are made that due to non filing of counter affidavit, the orders in question, have been passed, and in some cases, review of the order is sought for after a long lapse of time-may be some times on a good factual matrix. This is not a happy situation and all efforts are to be made to avoid the same. This is not a happy situation and all efforts are to be made to avoid the same. We may note that at the time of hearing of this case, learned Additional Government Advocate did not pray for filing of a return, but the previous picture has been portrayed, for we have felt, we must note our displeasure with regard to the state of affairs in not filing the return within the stipulated time and allowing the matters to proceed without it, not complying with the order because of a different factual scenario and seeking belatedly review of the original order causing anguish and agony to all concerned. 4. So much for the journey in the time machine is reckoned. Sri Palit, the learned Senior Counsel appearing for the Federation-petitioner submits that the reasons given by the State Government for not referring the disputes for adjudication are not cogent, germane to the issue, extraneous, not-relevant, indicative of non-application of mind, specious, mercurial and in a way delves into the realm of total merit which is not within the ambit and scope of administrative authority of the State Government. He fairly concedes, State Government while considering the matters for reference can look into the prima facie merit of the dispute, the real nature of controversy but cannot deeply involve itself in the adjudicatory process as that would amount to usurping of jurisdiction of the competent Tribunal as contemplated under the Industrial Disputes Act. That apart, submits the learned counsel for the petitioner, the concept of industrial dispute has not been properly appreciated by the State Government and thereby the decision rendered becomes absolutely arbitrary vitiating the Governmental action. To substantiate his submission, he has placed reliance on the case of Bombay Union of Journalists and Others Vs. The State of Bombay and Another, and M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, . 5. Controverting the aforesaid submissions, Sri S.P. Mishra, the learned Additional Government Advocate has contended that the law permits the State Government to consider the failure report and scrutinise the prima facie merit of the dispute raised and demand made. It is his further submission that the action of the State Government is purely administrative in nature and once reasons are given, this Court is not to sit in appeal and adjudge the sufficiency and adequacy of the reasons. It is his further submission that the action of the State Government is purely administrative in nature and once reasons are given, this Court is not to sit in appeal and adjudge the sufficiency and adequacy of the reasons. To justify his Contention he has relied on the case of Ashwini Kumar Mohanty and Ors. v. Branch Manager, State Bank of Bikaner & Jaipur, Cuttack Branch, Cuttack and Ors., reported in 72 1991 CLT 837. 6. We are conscious of our jurisdiction under Article 226 of the Constitution. We are aware, we are not sitting in appeal. We remind ourselves the observations made by the Apex Court in the case of State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others wherein their Lordship's stated thus: "Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making process. When the issues raised in judicial review is whether decision is vitiated by taking into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors." With the aforesaid parameter we would proceed to appreciate the order passed by Annexure-1. Before doing that we would like to deal with the decisions cited at the Bar. In the case of Bombay Union of Journalists and Others (supra), Gajendragadkar, (as his Lordship then was) speaking for the Court observed at P 355 : "................. It is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government u/s 10(1) read with Section 12(5) the Court is not sitting in appeal over the order and is not entitled to consider the propriety of the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference u/s 12(5), the appropriate Government has to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It would be idle to suggest that in giving reasons to a party for refusing to make a reference u/s 12(5), the appropriate Government has to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, because the object of Section 12(5) appears to be so require the appropriate Government to state its reasons for refusing to make a reference, so that the reasons should stand public scrutiny ; but that does not mean that a party challenging the validity of the Government's decision not to make a reference can require the Court in writ proceedings to examine the propriety or correctness of the said reasons. It appears that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign that no doubt may justify the claim for a writ of mandamus......" In the case of The M. P. Irrigation Karamchari Sangh (supra), the Apex Court referred the case of Bombay Union of Journalists and Others (supra) and held as follows : " ........Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits......" "............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. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory." 7. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory." 7. We may hasten to state that in the aforesaid judgment while referring to the decision in Bombay Union of Journalists and Others (supra), their Lordships gave emphasis on a sentence which (sic.) is profitable to reproduce here P 354 : ".....Similarly, undisputed questions of fact, the appropriate Government cannot purport to reach final conclusion for that again would be the province of the Industrial Tribunal......" 8. We may refer to certain other decisions which govern the field. In the case of Ram Avtar Sharma and Others Vs. State of Haryana and Another, the Apex Court held as follows at P 191 : "Now if the Government performs an administrative act while either making or refusing to make a reference u/s 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on grounds irrelevant, extraneous or not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review....." 9. In the case of V. Veerarajan and others Vs. Government of Tamil Nadu and others, the Apex Court held that it is open to the State Government to take the broad features into consideration while exercising jurisdiction u/s 10(1) of the Act but the Government should not purport to reach a final conclusion either in respect of a question of law or in respect of disputed questions of fact. 10. Same view is also taken by this Court in the case of Ashwini Kumar Mohanty (supra). 11. The concept of industrial dispute is quite broad and with the passage of time its horizon is being expanded. 10. Same view is also taken by this Court in the case of Ashwini Kumar Mohanty (supra). 11. The concept of industrial dispute is quite broad and with the passage of time its horizon is being expanded. The key words in the definition of 'industrial dispute' are 'disputes' or 'difference.' The connotative meaning of these words are of great magnitude. Disputes are required to be resolved for the purpose of establishing peaceful and cordial atmosphere in an industry. Peace and harmony are the quintessential aspects which are to be kept in view while dealing with the lis or controversy relating to an industry. Recently the Apex Court while dealing with the abatement of an industrial dispute after death of the workman in the case of Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi Vs. Managemenmt of Sangramgarh Colliery and others, observed thus: "...Primary object of the Act is to bring industrial peace. The Tribunals and Labour Courts under the Act are the instruments for achieving the same objective..." 12. The significance of submitting a charter of demand, conciliation, deliberation by the State Government to refer the dispute for the purpose of adjudication are various steps/measures provided under the statute to resolve the disputes that exist between the employer and the employees. It can be stated with absolute certitude that the State Government while exercising its jurisdiction u/s 12(5) of the Act can take into consideration prima facie merit of the dispute but cannot shut doors for adjudication if the situation so demands, the law so permits, the facts so necessitate, and the industrial peace and harmony so dictate. 13. While reminding ourselves with regard to jurisdiction of a writ Court in the matters relating to this nature, we would proceed to scan the order passed by the competent authority by Annexure-1. We may refer to certain items as they appear in the order as that would unfold and undrope the real factual matrix : Sl. No. Demand Reasons for non-reference 1. Payment of salary to the Municipal Employees as per the Central Pay Scale applicable from May 1, 1989. Legal remedy is avail able under the I.D. Act. 2. Implementation of the terms of tripartite settlement dated May 4, 1987. This is not an industrial dispute. 4. Payment of salary/ wages to the Tax Collectors. Octroi Collectors, Licenciate Mohoiers etc. Payment of salary to the Municipal Employees as per the Central Pay Scale applicable from May 1, 1989. Legal remedy is avail able under the I.D. Act. 2. Implementation of the terms of tripartite settlement dated May 4, 1987. This is not an industrial dispute. 4. Payment of salary/ wages to the Tax Collectors. Octroi Collectors, Licenciate Mohoiers etc. at par with the Revenue In spector or Junior Assistant of the Govt. of Orissa. The Federation could not substantiate this demand. 5. Employees of many. Municipalities and NAC who are working on Second Satur days and Sundays and National & Festival holidays should be paid double wages for those days as per the agreement. This demand is not specific. 6. Supply of liveries to the Class-1 V employees every year in time. The agreement provided for payment of liveries to the workmen. 7. Enhancement of grant-in-aid. This is not an industrial dispute. 8. Payment of advance of Rs.8,000/- towards purchase of Motor Cycle and 100 months salary as loan for construction of house at par with Govt. employees. The Federation could not substantiate the demand. 9. Filling up of regular vacancies by the eligible temporary workers who are working since long. This is the managerial function of the management." 14. We have not quoted all the items because the aforesaid would indicate the mode and manner of exercise of authority by the Government. We may not sit in appeal but we cannot close our eyes. We may not scrutinise in detail hut we am scan and dissect within the permissible parameters of law. Could any prudent or reasonable person have taken such a decision? Are the reasons given germane to the issue? Do they indicate application of mind? Do they not, on certain aspects touch the real merit of the case beyond the prima facie merit? Are some reasons not glaringly vague? Do the reasons in some issues manifestly not indicate unwillingness to solve the disputes by way of reference? We ask these questions because these are the questions to be asked in the instant case. We find all the answers are to be in the negative. We are surprised by the reasons given as the said reasons are really not the reasons as one understands in the context of 'reason' in exercise of authority/power/jurisdiction in terms of Section 12(5) of the Act. 15. We find all the answers are to be in the negative. We are surprised by the reasons given as the said reasons are really not the reasons as one understands in the context of 'reason' in exercise of authority/power/jurisdiction in terms of Section 12(5) of the Act. 15. We would have analysed further and issued a writ of mandamus directing the State Government to refer the dispute as have been done in the cases of Nirmal Singh Vs. State of Punjab and Others, and in Sankari Cement Alai Thozhilalar Munnetra Sangam, Tamil Nadu Vs. Government of Tamil Nadu and Another but we have refrained from doing so as there are no adequate materials for giving such direction. That apart, we find the case of this nature requires a better scrutiny and proper application of mind at the Governmental level keeping in view the law governing the field. Much is expected from a welfare State. Modes are provided under the Industrial Disputes Act for adjudication of disputes. If a dispute is not frivolous or belated or vexatious, the workmen are entitled under law 10 have their grievance adjudicated. The Legislature in the wisdom has constituted the forum and machinery have been provided. We do not intend that the State Government's role should be that of a conduit-pipe but we also do not expect the State Government would shut the doors at the very threshold denying the entry for no apparent reason. If strong reasons command so as to be done, let it be done but not in a cavalier fashion. Let reasons govern not the whim and fancy, let prudence, propriety, profundity prevail but not protervity. 16. In view of our preceding analysis, we conclude and hold that the order passed by Annexure-1 is absolutely unsustainable and accordingly, we quash the same. The State Government is directed to take a fresh decision within a period of eight weeks from today. 17. Resultantly, the writ application is allowed but there shall be no order as to costs. S. Chatterji, A.C.J. --I agree. Final Result : Allowed