Judgment Ajay Rastogi, J.-Instant writ petition has been filed against order dated. 111.1993 whereby Respondent No. 1 has declined to make reference of dispute raised by petitioner. 2. Petitioner was initially appointed as Sales Representative on 03.03.1995 and as alleged by him, he continued to work till 05.01.2003. Against his termination from service, he made complaint by filing application before Conciliation Officer and after failure report, matter was referred by Conciliation Officer to appropriate Government, which declined to make Reference in exercise of powers under Sections 10 read with Section 12 of Industrial Disputes Act, 1947 (`the Act) vide order dated 111.2003 holding that since Sales Representative is not workman, an industrial dispute raised by him does not subsist. 3. Counsel for petitioner contends that appropriate Government is not competent to consider even prima facie merits of dispute when it decides question in exercise of powers under Section 10(1) read with Section 12 of the Act under which, authority is competent only to examine as to whether claim made is frivolous or is clearly belated; and such considerations can be noticed by appropriate Government while declining to make out a case for reference. Counsel further contends that premises on which appropriate Government has declined to make reference is an opinion on merits without adjudication of dispute, itself and that being so, impugned order is beyond scope of Section 10 read with Section 12 of the Act and requires interference by this Court. 4. Respondent No. 1 has not filed reply and Respondent No. 2 has filed reply to writ petition inter alia averring that where petitioner was initially engaged as Sales representative and they are not workmen, therefore, no error has been committed by appropriate Government in passing impugned order dated 111.2003 while declining to make Reference in such undisputed facts after the Apex Court held that Sales representatives are not workmen under Section 2(s) of the Act raising dispute by Sales Representative would be an adjudication in futility. Counsel has placed reliance on the decisions of Apex Court in S.K Maini vs. M/s. Carona Sahu Co., AIR 1994 SC 1824 ; H.R Adyanthaya vs. Sandoz (India) Ltd., AIR 1994 SC 2608 ; Indian Tea Assocn. vs. Ajit Kumar Barat, AIR 2000 SC 915 . 5. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. 6. vs. Ajit Kumar Barat, AIR 2000 SC 915 . 5. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. 6. From a reading a of Sections 10 and 12 of the Act, it is clear that the statute authorises the Government to examine prima facie view of matter while considering as to whether it is a fit case where exercise of powers under Section 10(1) read with Section 12(5) of the Act is called for and reference is warranted or not. But, if the appropriate Government reaches to a final conclusion on question of law and fact without there being any adjudication by affording opportunity, which is only within domain of appropriate Industrial Tribunal under the Act. Question decided by appropriate Government in instant case holding that Sales Representative is not workman, in my opinion, is a mixed question of law and fact and could have been decided after adjudication by an authority having jurisdiction. 7. Indisputably, petitioner was engaged with a designation of Sales Representative in establishment of Respondent No. 2, and either party has not produced any material in support of their respective case. Mere designation of Sales Representative cannot hold him dis-entitled to claim for reference of an industrial dispute, or oust him from definition of workman under the Act. In my opinion, mere designation of employee is not sufficient unless nature of his duties and other ancillary facts are examined after affording an opportunity to him as to whether he falls within definition of workman or not. But, in present case, appropriate Government without affording an opportunity to petitioner has proceeded on and concluded while expressing final opinion that petitioner being a Sales Representative is not a workman under the Act and where there is adjudication required, remedy lies only before the Tribunal which alone is competent to examine lis between parties after reference is ordered by appropriate Government. 8. Section 10 of the Act permits appropriate Government to examine whether any dispute exists or is apprehended and then refer it for adjudication to the Tribunal. The demarcated functions are (1) reference and (2) adjudication. 8. Section 10 of the Act permits appropriate Government to examine whether any dispute exists or is apprehended and then refer it for adjudication to the Tribunal. The demarcated functions are (1) reference and (2) adjudication. When reference is rejected on specific plea as in given case that petitioner being Sales Representative is not workman, which is an opinion expressed without affording hearing to petitioner and adjudication which in my opinion is nothing but usurping power of quasi judicial Tribunal by appropriate Government, which was not competent to examine merits of question involved in dispute sought to be raised, unless opinion after proper adjudication is expressed by Tribunal competent to examine the dispute. 9. As regards Judgment s cited by Counsel for Respondent No. 1, in S.K. Maini vs. M/s. Carona Sahu & Co. (Supra) matter was examined after adjudication by Labour Court which arrived at conclusion taking note of nature of duties discharged by employees concerned holding post of Shop Manager that the employee was not workman under Section 2(s) of the Act, whereas in present case, dispute with regard to nature of duties of petitioner being at all of clerical/managerial or of a supervisory nature is yet to be examined by the Tribunal which can be feasible only after reference is ordered by appropriate Government and adjudication of dispute is made. 10. In HR Adyanthaya vs. Sandoz (India) Ltd. (Supra), employee was working as Medical Representative and his service conditions were governed by Sales Promotion Employee (Conditions of Service) Act, 1976. In the light of provisions of aforesaid Act so also as per definition of workman within the meaning of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, it was held that application was not maintainable before the Tribunal, therefore, all that conclusions drawn in cited case were only after the matter was referred to and adjudicated by Industrial Court. 11. In Indian Tea Assocn. 11. In Indian Tea Assocn. vs. Ajit Kumar Barat (Supra) the employee was employed as Joint Secretary of Indian Tea Association and his services were terminated and while the Government declined to make a reference under the Act, complete material with regard to nature of duties of the employee were made available to the appropriate Government - extract of which has been referred to by Apex Court in Para 6 while taking decision; whereas in instant case, there is no such material placed by respondent-employer on record to justify about nature of duties discharged by petitioner as Sales Representative before appropriate Government for arriving at conclusion while declining to make reference of dispute raised by employee. In light of what has been observed above, in my opinion, decisions cited (Supra) are of no help to respondents. 12. Consequently, this writ petition is allowed. Order dated 111.2003 (Annexure 2) of Respondent No. 1 is set aside. Respondent No. 1 is directed to make reference of dispute raised by petitioner for adjudication before competent authority under the Act within two months. A copy of this order be sent to Respondent No. 1 for immediate compliance. No order as to costs.