JUDGMENT 1. - All the above mentioned writ petitions involve the same questions of law and the facts and, therefore, are being decided together. The respondents are also the same. 2. Reply has been filed in Civil Writ Petition No.5119/90 Mangilal v. State of Rajasthan & ors. 3. It was the case of the petitioners in all the cases that they were appointed as Karigars (masons) by the respondent No.3 and had completed more than 240 days continuous service. Their services were terminated when they had asked for being made as permanent. Said termination from services gave rise to an industrial dispute and, therefore, a demand notice was issued, copy of which was sent to the Conciliation Officer, Jaipur in the month of March 1989. The Conciliation Officer had taken up the matter. The respondent No.3 was summoned. The respondent No.3 also filed reply before the Conciliation Officer. It is stated in the writ petition that despite the raising of the industrial dispute, the respondent No.1 and 2 have not cared to refer the matter for adjudication to the Labour Court as was required under the relevant provisions of the Industrial Disputes Act. It is further submitted that no letter of refusal has even been sent to either of the petitioners. After having been made inquiries from the concerned office, the petitioners have come to know that the authorities concerned had passed some order in the file to the effect that the respondent No.3 being a charitable institution was not amenable to the provisions of the Industrial Dispute Act. 4. Respondent No.3 has also filed a written statement and has denied the relationship of master and servant with the further submission that the provisions of the Industrial Disputes Act are not applicable to the concerned workman or to the respondent No.3 and, therefore, there was hardly any necessity for the authorities authorised to work under the Industrial Disputes Act to even consider the demand notice of the petitioners for referring the dispute to the Labour Court. 5. No impugned order of declining to refer the matter to the Labour Court has been placed on record. The petitioner had rightly submitted that no such letter was ever communicated to them. 5. No impugned order of declining to refer the matter to the Labour Court has been placed on record. The petitioner had rightly submitted that no such letter was ever communicated to them. After going through the written statement filed by the respondent No.1 and 2, the petitioners are strengthen for such submission wherein respondent Nos.1 and 2 had clearly averred that because of the reason that the respondent No.3 was a charitable institution, therefore, there was hardly any need for submitting the failure report by the Conciliation Officer or to pass any order in this regard. It is mentioned in para 3 of the reply filed by the respondent No.1 and 2 that the petitioners had not worked even for 240 days and the respondent No.3 being a religious institution, no reference was maintainable and demand notice had been issued by the petitioners with malafide intentions to harass the respondent No.3. This was so averred by the respondent No.1 and 2 on the pleadings taken by the respondent No.3 before the Conciliation Officer. It was further averred in para 6 of the reply filed on behalf of the respondent Nos.1 and 2 that the respondent No.3 being a religious institution is being run for religious purposes and Dharamshala is not being used for commercial purposes. It is further averred that the income from the Dharamshala is being utilised for the utility of the public and from the said income many welfare activities are conducted by the institution. In regard to the fact that no order whatsoever had been passed on the respective demand notices issued by the petitioners, it has been admitted in para 8 of the reply that the dispute does not fall under the definition of the Industrial Disputes Act and, therefore, there was hardly any necessity for the Conciliation Officer to submit any failure report. Para 8 of the reply filed by the respondent Nos.1 and 2 is reproduced as under:- HINDI MATTER 361412 6. In view of the above pleadings the counsel for the petitioners states that it is not the function of the State Government to adjudicate upon the merits or demerits of the dispute involving the rights of the parties. Para 8 of the reply filed by the respondent Nos.1 and 2 is reproduced as under:- HINDI MATTER 361412 6. In view of the above pleadings the counsel for the petitioners states that it is not the function of the State Government to adjudicate upon the merits or demerits of the dispute involving the rights of the parties. The fact whether the respondent falls under the definition of Industry or not or the fact whether demand notice had been issued malafide or bonafide or the fact that the petitioners are workmen as defined under the Industrial Disputes Act or they have worked for 240 days or more than 240 days are the questions to be determined by the appropriate Labour Court and in case after adducing of the evidence, it is ultimately found that the respondent No.3 is not an industry, that question of fact based on evidence is to be decided by the Labour Court and not by the State Government. It is further submitted by the learned counsel for the petitioner that in any eventuality it was in-cum-bant upon the State functionaries to have passed at least some order accepting or rejecting the requests of the petitioners to refer or not to refer the dispute of demand notice of the petitioners to the appropriate Labour Court. It is further submitted that the functionaries of the State Government cannot on their own decide without even informing the petitioners that charitable institutions or religious institution involved in the public welfare works or the income being derived by them even if utilised for public purposes do not fall under the definition of industry and, therefore, it was wrong on the part of such functionaries to say that no order is required to be passed. To support this contention, learned counsel for the petitioners relies on Telco Convoy Drivers Mazdoor Sangh & ors. v. State of Bihar & ors., AIR 1989 SC 1565 wherein the Hon'ble Supreme Court had categorically held that it is not the function of the State to adjudicate upon the facts or the legal questions for referring the matter to the Labour Court and it is utlimateiy the Labour Court which is to decide the question of fact as, well of the law. 7. 7. Learned counsel for the respondent No.3 vehemently urges that the respondent No.3 does not fall within the definition of industry and relies on Himanshu Kumar Vidhyarthi and others v. State of Bihar and others, 1997(4) SCC 391 Admittedly, the authority quoted by the counsel for the respondent is not even near to the facts of the present case. The Supreme Court had observed in the said case that where the appointments are regulated by the statutory rules and, therefore, the concept of industry to that extent stands excluded i.e. a department of the Government where the statutory rules are applicable if any daily wagers workmen. 8. The question which was to be determined and should have been determined by the Labour Court in the present case is about the validity of the termination of the services of the petitioners and the respondents were always free to take all the preliminary objections to the fact whether the respondent No.3 was industry or not or whether the petitioners were industrial workers or not or there was any employer or employee relation between the parties or not. The functionaries of the State have not applied their mind correctly to the facts of the case. The averments made in para 8 of the written statement filed by the respondent Nos.1 and 2 goes contrary to the law repeatedly laid down by the courts. The omission on the part of the respondent Nos.1 and 2 cannot be appreciated. They were duty bound to pass some order either rejecting or referring the matter to the Labour Court. The respondent Nos.1 and 2 have failed to function and to exercise the jurisdiction as was required by them to be exercised in terms of the Industrial Disputes Act. In view of the authoritative law laid down by the Supreme Court and this court in number of judgments, there is no escape but to allow the writ petition with a direction to the respondent Nos.1 and 2 to consider the case of the petitioner for referring the matter to the appropriate Labour Court within two months from the receipt of the certified copy of this order. In the present case the petitioners shall be entitled to cost of the petition which is assessed at Rs. 1500/- in each case to be shared equally by the State as well as respondent No.3. 9. In the present case the petitioners shall be entitled to cost of the petition which is assessed at Rs. 1500/- in each case to be shared equally by the State as well as respondent No.3. 9. Anything said in the abovesaid order shall not affect the merits of the case which either of the parties may take before the Labour Court while deciding the main dispute and the dispute shall be decided on its own merits if and when the matter is referred to the appropriate Labour Court.Petition allowed with costs. *******