SHARAD D. DAVE, J. ( 1 ) HEARD Mr. Dharmendu Pandya, learned counsel for the petitioner, Mr. K. M. Paul, learned counsel for the respondent No. 1 and Mr. Samir J. Dave, learned counsel for the respondent No. 2. ( 2 ) IN this matter, Rule has been issued by this Court (Coram : H. K. Rathod, J.) vide order dtd. 1/4/2003, making it returnable on 20/7/2003. ( 3 ) THE short facts giving rise to the present petition are as under;- according to the petitioner, he was employed as a full time Peon-Cum-Messenger with the respondent No. 1 since October, 1995. The services of the petitioner came to be orally terminated from 18/8/2001. The petitioner has served notice on the respondent No. 1 on 16/4/2002 and thereafter, started proceedings by way of filing complaint before the concerned Asstt. Commissioner of Labour. The conciliation proceedings were initiated by the Asstt. Commissioner of Labour (Central) Adipur and on failure of the conciliation proceedings, the Asstt. Commissioner submitted failure report under sec. 12 (4) of the Industrial Disputes Act, 1947. Thereafter, the respondent No. 2 - Union of India has taken decision not to refer the industrial dispute to the concerned Industrial Tribunal. The order passed by the respondent No. 2 dtd. 10/10/2002 is under challenge in this petition. ( 4 ) THE reasons given by the respondent No. 2 are quoted as under;-"since the disputant has never completed 240 days continuous service during a calender year, hence, he is not entitled to any relief under the I. D. Act, 1947. " ( 5 ) BARE perusal of the aforesaid finding of the respondent No. 2, it appears that the respondent has examined the industrial dispute raised by the petitioner on merits and determined the issue which was raised by the petitioner. The respondent No. 2 seems to have come to the conclusion that the petitioner has not worked continuously for more than 240 days in a calender year. Moreover, the petitioner has not produced any supporting documents in support of his claim and hence, this is no case of dispute. The observations made by the respondent No. 2 while considering the prima facie case whether any industrial dispute exists or not, the respondent No. 2 has examined the merits and come to the conclusion after determination that the petitioner has not completed 240 days continuously in a calender year. The observations made by the respondent No. 2 while considering the prima facie case whether any industrial dispute exists or not, the respondent No. 2 has examined the merits and come to the conclusion after determination that the petitioner has not completed 240 days continuously in a calender year. This finding on merits examined by the respondent No. 2 which is beyond the scope of jurisdiction of the respondent No. 2. ( 6 ) MR. K. M. Paul, learned counsel for the respondent No. 1 Bank has vehemently argued that the respondent No. 2 is entitled to take appropriate decision under the provisions of the Industrial Disputes Act,1947. The respondent No. 2 is also entitled to see the merits of the matter and to take decision. He also argued that looking to the reasons given by the respondent No. 2, there is no determination at all on the merits. On the contrary, the reasoning reveals only factual aspect of the matter, which are on the record and therefore, no error has been committed by the respondent No. 2. ( 7 ) MR. SAMEER J. Dave, learned counsel for the respondent No. 2 has vehemently argued that prima facie, the respondent No. 2 is entitled to have appropriate decision on examining the dispute under the provisions of the Industrial Disputes Act, 1947 and if the petitioner has not satisfied the basic condition for compliance of Sec. 25 (F), in that case, the respondent No. 2 is entitled to enter into the dispute up to prima facie stage on merits and therefore, the order passed by the respondent No. 2 is legal and valid. It is also argued that the respondent NO. 2 has considered only basic facts which were on record, the same has been narrated in the reasoning part and therefore, there is no determination of any merit between the parties and therefore, the respondent No. 2 has not committed any error which requires any interference of this Court. ( 8 ) THE view taken by the Apex Court in the case of TELCO CONVOY DRIVERS MAZDOOR SANGH and OTHERS VS. STATE OF BIHAR AND OTHERS, reported in AIR 1989 SC 1565 and another decision of this Court in the case of HARDESH KUMAR RAJARAM VS. KVB UNNI and ORS. reported in 2000 (3) GLH 196. ( 8 ) THE view taken by the Apex Court in the case of TELCO CONVOY DRIVERS MAZDOOR SANGH and OTHERS VS. STATE OF BIHAR AND OTHERS, reported in AIR 1989 SC 1565 and another decision of this Court in the case of HARDESH KUMAR RAJARAM VS. KVB UNNI and ORS. reported in 2000 (3) GLH 196. The relevant observations made on the issue involved in the petition discussed by the Apex Court in para 11 to 13 of the TELCO CONVOY DRIVERS MAZDOOR SANGH AND OTHERS are quoted as under;-"it is true that in considering the question of making a reference under sec. 10 (1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended" as argued by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exist or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is undoubtedly, not permissible. IT is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute within the meaning of the term as defined in section 2 (k) of the Act. It is argued that in order to form an opinion as to whether an industrial dispute exist or is apprehended, one of the factor that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contemplated in section 2 (k) of the Act. ATTRACTIVE though the contention is, we regret, we are unable to accept the same. ATTRACTIVE though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under section 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 section 10 of the Act. See Ram Avtar Sharma vs. State of Haryana, (1985) 3 SCR 686 ; M. P. Irrigation Kararnchari Sangh v. The State of M. P. (1985) 2 SCR 1019 and Shambhu Nath Goyal v. Bank of Baroda, Jullundar, (1978) 2 SCR 793 . Applying the principle laid down by this Court in the above decision, there can be no doubt that the Government was not justified in deciding the dispute. . . ( 9 ) I have considered the observations made by the Apex Court and the Apex Court has considered that while exercising the powers under sec. 10 (1), the functioning of the appropriate Government is an administrative function and not judicial or quasi judicial functioning 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 section 10 of the Act. Therefore, considering all the aspects of the matter, according to my opinion, the order passed by the respondent No. 2 dtd. 10/10/2002 is beyond the jurisdiction and the power under sec. 10 (1) of the Act and therefore, the same is required to be quashed and set aside. ( 10 ) IN the result, the petition is allowed. The impugned order dtde. 10/10/2002 passed by the respondent No. 2 is hereby quashed and set aside. It is directed to the respondent No. 2 to consider the matter in light of the observations made by the Apex Court in the reported case, as aforesaid and pass appropriate orders within three months from the date of receiving the copy of this order. Rule is made absolute with no order as to costs. .