Judgment H.K. Rathod, J.—Heard learned Advocate Mr. M.N. Devnani on behalf of petitioner, learned Advocate Mr. P.J. Malkan appearing for Respondent Nos. 1 and 2 and learned Advocate Mr. P.S. Chari appearing for Respondent Nos. 3 and 4. 2. In the present petition, petitioner has challenged the order passed by Respondent No. 1 dated 30.01.2001, where the Government thought it fit not to refer industrial dispute for adjudication on the ground that workman was engaged against leave vacancies or due to temporary increase in work on casual basis. The workman failed to establish his case prima facie of continuous employment during the relevant period or to disprove the fact that he has self employed after obtaining loan of Rs. 95,000/- from the Bank and left casual work on the Bank on his own. 3. Learned Advocate Mr. Devnani submitted that on 11.08.1999, service of workman was terminated by the Bank without following any legal procedure. Therefore, dispute was raised on 04.10.1999. Thereafter, a letter written to Assistant Commissioner of Labour, Central on 21.10.1999 filing a complaint before him under Section 2-A of Industrial Disputes Act, 1947. It is necessary to note that complaint filed by workman under Section 2-A, which is at Page 19 giving the details of service and also reason for termination and date of termination. 4. Thereafter, the respondent Bank has filed reply on 04.07.2000 raising the objection against complaint filed by workman. The rejoinder was filed by workman. In this proceedings, cause has been espoused of the workman by Saurashtra Kutch Majoor Singh, Rajkot. Then, on 25.10.2000, conciliation has failed. Therefore, failure report submitted by Conciliation Officer to Respondent No. 1, Secretary, to the Government of India, Ministry of Labour. This failure report submitted under Section 12, Sub-section 4 of the Industrial Disputes Act, 1947. After considering the failure report Respondent No. 1 decided not to refer the dispute for adjudication. 5. Learned Advocate Mr. Devnani submitted that reason given by appropriate Government, it amounts to clear case of adjudication of the dispute on merits. He pointed out that this cannot considered to be prima facie opinion of the appropriate Government. After considering the failure report Respondent No. 1 decided not to refer the dispute for adjudication. 5. Learned Advocate Mr. Devnani submitted that reason given by appropriate Government, it amounts to clear case of adjudication of the dispute on merits. He pointed out that this cannot considered to be prima facie opinion of the appropriate Government. He also pointed out that prima facie opinion is merely given some details about the facts, but no determination is necessary and for that appropriate Government is not authorized or empower to decide merits between parties while making the decision under Section 12, Sub-section 5 of Industrial Disputes Act, 1947. 6. Be relied upon one decision of this Court in case of Mr. M.S. Pathan vs. Union of India, in SCA No. 4445 of 2003 dated 30.04.2003 and another decision in case of Kantilal Bhovabhai Butani vs. Union of India & Ors., reported in 2001 (1) GLR Page 639. 7. Learned Advocate Mr. Chari appearing for respondent Bank submitted that detailed affidavit is filed by respondent Bank, which is at Page 37. 8. Learned Advocate Mr. Chari submitted that appropriate Government has rightly examined the matter within his purview. For that, appropriate Government is entitled to take decision that dispute was not fit for adjudication. He relied upon the decision of Apex Court in case of The Secretary, Indian Tea Association vs. Ajit Kumar Barat, reported in 2001 LLJ Page 811. 9. Learned Advocate Mr. Chari submitted that after relying upon aforesaid decision of Apex Court that this being administrative order and not judicial order, the limited jurisdiction of this Court does not sit in Appeal and is not entitled to consider the propriety or satisfactory characters of the reason. 10. In the affidavit in reply, the merits have been discussed as if that Bank wants to justify their action of termination. 11. On behalf of Respondent No. 1, no affidavit in reply is field, but learned Advocate Mr. Malkan relied upon one decision of this Court in Case of Mukeshgiri Himatgiri Goswami vs. Sub Post Master I.E. Post Office, in SCA No. 7155 of 2002 dated 19.10.2002, where he submitted that this Court has decided after considering various decision including The Secretary, Indian Tea Association vs. Other, reported in 2000 (1) Scale Page 515. 12. Malkan relied upon one decision of this Court in Case of Mukeshgiri Himatgiri Goswami vs. Sub Post Master I.E. Post Office, in SCA No. 7155 of 2002 dated 19.10.2002, where he submitted that this Court has decided after considering various decision including The Secretary, Indian Tea Association vs. Other, reported in 2000 (1) Scale Page 515. 12. Ultimately, this Court has observed after considering various decision on this issue, relevant Paras 5 and 6 are quoted as under : “5. In the present case the petitioner has filed a complaint before the Assistant Labour Commissioner (Central) on 05.07.2002. In the said application except averments to the effect that, “the petitioner was employed as a “daily wager outsider” in 1989 alongwith two other employees by Opponent No. 1 at Odhav; that he had discharged his services as a daily wager continuously from the appointment date (in fact in the entire complaint the date of appointment is nowhere mentioned); that he completed more than 240 days continuously in each year; that his presence was marked in the Muster Roll; and that his last drawn salary was Rs. 2,000/-, P.M., the petitioner has not given any other details not only that he has not produced even an iota of evidence. 6. What is more important is that after this complaint when the Ministry of Labour, Government of India declined to make a reference on the ground that, “It is reported that the workman has not worked for 240 days in any year”, the petitioner ought to have come forward with necessary material in support of his averments to satisfy the conscience of the Court, on which if the Court was satisfied that there is material to hold that there existed a “dispute” the Court could have remanded the matter to the Government to consider the case of the petitioner afresh and satisfy itself that there exists an industrial dispute or apprehended industrial dispute. The petitioner has not chosen to do so. What the petitioner has done is, “Para 1” of the complaint is produced as “Para 3” of the petition. No other detail/s worth name is placed on record in the petition. In view of that this Court is of the opinion that the order passed by the Ministry of Labour, is an administrative order and it is neither a judicial nor a quasi judicial one. No other detail/s worth name is placed on record in the petition. In view of that this Court is of the opinion that the order passed by the Ministry of Labour, is an administrative order and it is neither a judicial nor a quasi judicial one. Therefore, the Court is not required to examine the order declining reference to see as to whether there was any material before the Government to support its conclusion as held by the Honourable the Apex Court in the matter of The Secretary, Indian Tea Association (Supra)”. 13. I have considered the submissions made by all the learned Advocates appearing for respective parties. 14. The first thing is to be considered whether while filing complaint under Section 2-A, challenging termination order by workman whether such detailed procedure of conciliation and failure report and then decision is necessary or not. This question is raised by this Court, the reason behind it that Section 10 Sub-section 1, give power to appropriate Government which delegated to Assistant Commissioner of Labour in case when industrial dispute exists or apprehended, then Assistant Commissioner of Labour have power to refer such dispute to Labour Court/Industrial Tribunal for adjudication. 15. In this case, complaint was filed by the workman under Section 2-A, where any employer discharge, dismissal, retrenchment or otherwise, termination of service of individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute. Notwithstanding that no other workman nor any Union of workman is party to the dispute. 16. The Section 10(1), where, the appropriate Government is of the opinion that any dispute exists or is apprehended it may at any time by order in writing to refer the dispute to Labour Court or Industrial Tribunal for adjudication. Therefore, Section 10 Sub-section 1, suggest merely opinion not suggest prima facie opinion, which makes difference between two things. 17. Now, considering the definition of Industrial Dispute under Section 2(k) means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of Labour of any persons. 17. Now, considering the definition of Industrial Dispute under Section 2(k) means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of Labour of any persons. Therefore, if complaint under Section 2-A is filed by workman under the provision of Industrial Disputes Act, then, appropriate Government has to consider whether such complaint is satisfied requirement of Industrial Dispute or not, and if appropriate Government is having opinion that industrial dispute exists or is apprehended, then he shall have to refer for adjudication to Labour Court/Industrial Tribunal subject to that employer covered by definition of “Industry”. So, whatever opinions are necessary for complaint filed by workman, who satisfied requirement of Section 2(s) in respect to industrial dispute must have to be satisfied requirement of Section 2(k) and against whom dispute is raised, he must have to be satisfied that it is covered by definition of Industry under Section 2(j). 18. Therefore, appropriate Government should not have to go into the detailed procedure after conciliation proceeding is come to an end to submit failure report under Section 12(4) and thereafter, appropriate Government has to formed the prima facie opinion or to satisfy whether dispute can be referred for adjudication or not. The definition of employer is given under Section 2(g). 19. In this case, what happened that appropriate Government has followed procedure under Section 12, which is not necessary in accordance with law. The Section 12, duties of Conciliation Officer, where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. So, Sub-section 1 of Section 12 suggest that whether any industrial dispute exists or is apprehended, where the dispute relates to public utility service and notice under Section 22 has been given, otherwise to power under Section 12 should not have to be exercised by appropriate Government including Conciliation Officer. Under Section 12, the separate detail procedure prescribed, there is a purpose behind it that industrial dispute exists or apprehended in respect to public utility service and strike notice under Section 22 is given by Union, then, only detailed procedure is to be followed by Conciliation Officer. Under Section 12, the separate detail procedure prescribed, there is a purpose behind it that industrial dispute exists or apprehended in respect to public utility service and strike notice under Section 22 is given by Union, then, only detailed procedure is to be followed by Conciliation Officer. The Section 12 suggests that Union shall have to espouse the cause of dispute. The individual employee has not to give strike notice under Section 22 in respect to public utility service. 20. Therefore, Section 12(5), the appropriate Government after receiving the failure report under Section 12, Sub-section 4 is satisfied that there is case for reference to a Board/Labour Court/Tribunal or National Tribunal, it may make such reference. Where appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore. 21. There is a one order of appropriate Government under Section 12(5) and there is one order of appropriate Government under Section 10(1), both are having separate details and independent procedure, is to be followed by appropriate Government when such dispute raised by Union and workman. 22. In this case, after filing complaint by workman, which is at Pages 18 and 19 dated 21.10.1999, it is not the industrial dispute raised by workman relating to public utility service given strike notice under Section 22, but it was the dispute by way of filing complaint under Section 2-A raised by workman in respect to his termination. Even though, the procedure was followed by appropriate Government under Section 12 of Industrial Disputes Act, 1947, which is not appropriate procedure is to be followed by appropriate Government because it is not the dispute raised by Union in respect to public utility service given strike notice under Section 22 of the Industrial Disputes Act, 1947. 23. Therefore, entire procedure, which has been followed by appropriate Government after receiving complaint from workman sending failure report under Section 12(4) by Conciliation Officer to the Secretary, Government of India, Ministry of Labour dated 25.10.2000 and thereafter, appropriate Government has decided that prima facie, this Ministry does not consider this dispute fit for adjudication. 24. Under Section 10(1), the appropriate Government has no power to consider the case for prima facie opinion or there is no necessity for appropriate Government to arrive satisfaction. 25. 24. Under Section 10(1), the appropriate Government has no power to consider the case for prima facie opinion or there is no necessity for appropriate Government to arrive satisfaction. 25. Therefore, according to my opinion, the order passed by appropriate Government dated 30.01.2001 rejecting to refer the industrial dispute for adjudication while exercising power under Section 12(5) of the Industrial Disputes Act, 1947 is without jurisdiction, but appropriate Government has to consider the complaint under Section 2-A while exercising the power under Section 10, Sub-section 1 of Industrial Disputes Act, 1947. 26. This is the basic difference not properly followed procedure by appropriate Government being Central Government. Since many years the appropriate Central Government is understood that any kind of industrial dispute whether it cover termination, discharge or dismissal or not even though they should have to follow the procedure as required under Section 12 of Industrial Disputes Act 1947. That concept and opinion is wrong amounts to misconception of law by appropriate Government being Central Government. 27. Therefore, according to my opinion, the order passed by appropriate Government dated 30.01.2001 is without jurisdiction required to be set aside now only on the ground that different procedure has been followed by appropriate Government being Central Government. 28. Now, second question is that though it is not necessary to deal with but also dealt with it, because it has been raised before this Court. Learned Advocate Mr. Malkan in SCA No. 7155 of 2002, dated 19.10.2002 has relied upon the decision of Apex Court wherein, the Apex Court has considered the case of Secretary Indian Tea Association vs. Ajit Kumar Barat & Ors., reported in AIR 2000 SC 915 . 29. Therefore, question is that whether appropriate Government can decide the merits/dispute while arriving prima facie opinion or not and what is the meaning of prima facie opinion and what is meaning of satisfaction. These are not discussed in aforesaid decision. 30. Section 12(5), not suggests the prima facie opinion, but section suggest satisfaction. Therefore, in light of this, the reason, which has been given by appropriate Government in facts of present case can be considered to be merely opinion or prima facie observations or satisfaction of the appropriate Government. The appropriate Government has used to give reason on prima facie as it has been used in Apex Court decision as referred above case in The Secretary, Indian Tea Association (Supra). The appropriate Government has used to give reason on prima facie as it has been used in Apex Court decision as referred above case in The Secretary, Indian Tea Association (Supra). 31. The Industrial dispute raised by workman or Union if appropriate Government is having power in light of the satisfaction to decide the dispute, then, there is no need to constitute Labour Court or Industrial Tribunal under the Provisions of Industrial Disputes Act 1947. The power to adjudicate the dispute is within the jurisdiction of Labour Court/Industrial Tribunal. A moment, the appropriate Government comes to conclusion that workman has failed to establish his case of continuous employment during the relevant period or to disprove the fact that he has self employed, these are the clear finding of fact to have decision on merits as if that appropriate Government has adjudicated the dispute like Labour Court. It is not the prima facie opinion, it is not remained up to prima facie opinion, but appropriate Government has given further extend his jurisdiction to decide the dispute being adjudication, which amounts against the principal of natural justice because while passing such kind of order declined to refer such dispute the right of workman or Union is come to end to have further machinery under the provisions of Industrial Disputes Act, 1947. 32. Therefore, under statutory provisions, the legislation by his wisdom not given power to appropriate Government to adjudicate the dispute. Merely, appropriate Government has power to seen whether industrial dispute is exists or not if there is a dispute between employer and employee, it covers the difference of opinion, relating to employment/non employment or conditions of service is enough to refer the dispute for adjudication. No further elaborate inquiry or determination of dispute is necessary. 33. Therefore, the decision which is under challenged at Pages 13 and 14 is quoted as under : “It is reported that the disputant was engaged against leave vacancies or due to temporary increase in work on casual basis. The disputant failed to establish his case, prima facie, of continuous employment during the relevant period or to disprove the fact that he is self employed after obtaining loan of Rs. 95,000/- from the Bank and left the casual work of the Bank on his own”. 34. The disputant failed to establish his case, prima facie, of continuous employment during the relevant period or to disprove the fact that he is self employed after obtaining loan of Rs. 95,000/- from the Bank and left the casual work of the Bank on his own”. 34. According to my opinion, it is not the prima facie opinion, but it is the decision of appropriate Government on merits, for which appropriate Government has no jurisdiction to enter into the dispute or merits while exercising the power under Section 10(1) or under Section 12(5) of Industrial Disputes Act 1947. Therefore, on second ground also the reason can not considered to be prima facie opinion or it is not remained up to suggestion of prima facie but it is gone beyond it up to determination of dispute. 35. Therefore, the decision, which has been relied by learned Advocate Mr. Malkan is not applicable to the fact of this case, because there is vast different of prima facie opinion to the satisfaction of appropriate Government, which have some limit to observe the facts as it is not gone beyond it to decide the merits of the matter. 36. Learned Advocate Mr. Malkan appearing for Respondent Nos. 1 and 2 submitted that recently the decision of this Court in SCA No. 7155 of 2002 dated 19.10.2002, where this Court has considered, in detail, the decision of Apex Court in case of the Nedungadi Bank Ltd., vs. K.P. Madhavankutty & Ors., reported in 2000 (1) SLR Page 636 and (ii) The Secretary, Indian Tea Association vs. Ajit Kumar Barat & Ors., reported in 2000 (1) Scale 515 . According to his submissions that appropriate Government can consider the industrial dispute raised by workman on having prima facie opinion whether dispute is exists or apprehended or not. According to his submissions, the appropriate Government has rightly refused to refer the dispute for adjudication. 37. Learned Advocate Mr. Chari appearing for Respondent Nos. 3 and 4 also supported the submissions made by learned Advocate Mr. Malkan and also relied upon the affidavit in reply filed by respondent Bank. Both the learned Advocates supported the order of appropriate Government and submitted that petition may be dismissed. 38. I have considered their submissions and I have also considered the decision given by this Court (Coram : Honourable Mr. Malkan and also relied upon the affidavit in reply filed by respondent Bank. Both the learned Advocates supported the order of appropriate Government and submitted that petition may be dismissed. 38. I have considered their submissions and I have also considered the decision given by this Court (Coram : Honourable Mr. Justice Ravi R. Tripathi) in SCA No. 7155 of 2002 dated 19.10.2002. Heavy reliance is placed by both the learned Advocates on Apex Court decision in case of The Secretary, Indian Tea Association vs. Ajit Kumar Barat, reported in AIR 2000 SC 915 , where first time Apex Court has considered that appropriate Government can consider the dispute on prima facie whether dispute is an industrial dispute or not or whether workmen is workmen or not within the meaning of Section 2(s) of Industrial Disputes Act 1947. I have gone through the aforesaid decision, where Apex Court has come to conclusion that whether dispute raised by workman is workman or not. 39. According to Apex Court decision, the appropriate Government has to form the opinion whether the employee is workman or not and thereafter, has to consider whether an industrial dispute exists or is apprehended or not. Relevant Para 11 is quoted as under : “11. From the order of the State Government we find that while deciding the question whether Respondent No. 1 as a workman, it took into consideration the salary and allowances of Respondent No. 1 drawn at the relevant time and also the nature of work. Respondent No. 1 who has appeared in person did not dispute the salary and allowances etc., as indicated in the order of the Government but urged that his responsibilities were neither supervisory nor managerial in nature”. 40. The bare perusal of Para 11 as referred above in respect to salary and allowances of Respondent No. 1 workman drawn at the relevant time and also nature of work. The Respondent No. 1, who is appeared in presence of officer did not dispute the salary and allowances as indicated in the order of Government, but dispute is responsibility where neither supervising nor managerial in nature. The Para 12 is also equally relevant which is quoted as under : “12. Mr. Gupta, Learned Senior Counsel appearing for the appellant has drawn out attention to the circular dated 30.03.1994 issued by the appellant-association. The Para 12 is also equally relevant which is quoted as under : “12. Mr. Gupta, Learned Senior Counsel appearing for the appellant has drawn out attention to the circular dated 30.03.1994 issued by the appellant-association. This circular indicates duties of Respondent No. 1 who was functioning as a Joint Secretary at the relevant time and we find his duties were to deal with all legal matters and Court proceedings, Labour and Land Laws and publications (Labour Legislations Labour Welfare). We also find from the records that Respondent No. 1 had power to sanction expenses incurred in litigation by the appellant. On the above materials on record the State Government rightly formed the opinion that Respondent No. 1 was not a workman”. 41. In the aforesaid Para 12, where one circular dated 30.03.1994 issued by the appellate association which circular indicates the duties of workman who was functioning as Joint Secretary at the relevant time and according to that workman has to deal with all legal matters and Court proceedings Labour, and Land Laws, communication, Labour Legislation. From the aforesaid record, workman had power to sanction expenses incurred in litigation by Appellate association. So, on this material, it has not disputed by workman before appropriate Government. Therefore, appropriate Government has considered undisputed fact while forming opinion that Respondent No. 1 is not workman. 42. Therefore, this decision of Apex Court merely based on facts and not laid down any ratio for forming an opinion in each and every industrial dispute in respect to merits of the matter. The appropriate Government has only to see whether industrial dispute exists or is apprehended or not, but undisputed fact between parties may form the opinion that dispute raised by person who is not covered by definition of workman under Section 2(s). Therefore, this decision is not applicable to the fact of this case, because in this case, reasoning given by appropriate Government on prima facie based that workman was engaged against leave vacancies or due to temporary increase in work on casual based and workman has failed to establish his case prima facie of continuous employment during the relevant period or to disprove the fact that he is self employed after obtaining loan of Rs. 95,000/- from the Bank and left the casual work of the Bank on his own. 43. 95,000/- from the Bank and left the casual work of the Bank on his own. 43. So, in light of comparing the facts of this case with the Secretary of Indian Tea Association vs. Ajit Kumar Barat, in the present case, there is disputed fact before appropriate Government. The petitioner has not admitted the facts before appropriate Government and respondent Bank has not produced any material to show that workman has admitted casual work on leave vacancies or temporary increase in work and not remaining continuous in service and also self employed. 44. Therefore, the reasoning given by appropriate Government in this case is not based on undisputed fact as it was in case of The Secretary, Indian Tea Association case. Therefore, on fact, aforesaid decision is not applicable in this case. The decision given by this Court as referred above dated 19.10.2002 in SCA No. 7155 of 2002 also not applicable to the fact of this case. The law on this subject is that appropriate Government has to consider only two things, one is that whether industrial dispute is within the meaning of Section 2-K is exists or not and second is that whether industrial dispute apprehended or not. Except that appropriate Government has no jurisdiction to form any kind of prima facie opinion on disputed facts between parties. Looking to the reasoning given in this case, the prima facie opinion on disputed fact amounts to adjudication on merits, which was raised by petitioner before appropriate Government. 45. Recently, the Division Bench of the Bombay High Court in case of Bhartiya Janata Kamgar Mahasangh, Maharashtra, Nagpur vs. Government of India, Under Secretary, Ministry of Labour, Delhi & Anr., reported in 2008 (1) LLJ Page 298. In this case Central Government has decided that there was no relationship of employer and employee between party concerned. The Court held that it was only an Industrial Tribunal/Court that could determine whether contractor through the each workman were engaged was mere ruse/camouflage to evade compliance with various beneficial Labour Legislations. The Division Bench of Bombay High Court has considered various decision on the subject including the Secretary Indian Tea Association (Supra) case. Relevant Paras 8 and 9 are quoted as under : “8. We have carefully considered the submissions made by the learned Counsel for the parties and perused the records and the judgment to relied upon by the respective Counsel. Relevant Paras 8 and 9 are quoted as under : “8. We have carefully considered the submissions made by the learned Counsel for the parties and perused the records and the judgment to relied upon by the respective Counsel. It is well settled by catena of decisions of the Apex Court that the appropriate Government exercises administrative function under Section 10(1) of the Act and the function is neither judicial nor quasi judicial. Under Section 12(5) of the Act the appropriate Government can refuse to make reference. On a consideration of report under Sub-section 4 of Section 12 of the Act if the appropriate Government is satisfied that there is a case for reference to Labour Court or Tribunal as the case may be, it may make such reference. Where the appropriate Government does not make a reference it has to record and communicate the reasons thereof to the parties concerned. No doubt, if on the basis of the material before the appropriate Government the appropriate Government comes to the conclusion that there is no industrial dispute and upon admitted facts the reference is not warranted the appropriate Government would be within its jurisdiction to refuse to make reference and refuse to make reference by giving reasons in terms of Section 12(5) of the Act. 9. In the present case perusal of the records and more particularly failure report submitted by the Conciliation Officer discloses that according to the petitioner the contractor entered into between the Respondent No. 2 and the contractor was sham and bogus and was entered into only to defeat the legitimate claims of the seven workmen. According to the petitioner, since the contract was sham and bogus the seven workmen were deemed to be regular employees of Respondent No. 2 and, therefore, their termination was illegal. In the case of Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors., (Supra) the appellant raised dispute that 900 convoy drivers should be made permanent by the management and they should be given all facilities as were available to the permanent employees of Telco. The said demand proceeded on the basis that the convoy drivers were all workmen of Telco. The appropriate Government refused to make reference on the ground that there was no relationship of master and servant between the said convoy drivers and the Telco. The said demand proceeded on the basis that the convoy drivers were all workmen of Telco. The appropriate Government refused to make reference on the ground that there was no relationship of master and servant between the said convoy drivers and the Telco. The appellant challenged the action of the Government of refusing to make reference on the ground that the appellant had filed to satisfy that they were employed either by Telco or by Telco Contract Association. In this factual back ground the Apex Court while allowing the appeal filed by the Appellate Telco Convoy Drivers Mazdoor Sangh and Another observed in Paragraphs 13 and 14 as under : “13. 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, AIR 1985 SC 915 = 1985 (3) SCR 686 ; M.P. Irrigation Karamchari Sangh vs. State of M.P., AIR 1985 SC 860 = 1985 (2) SCR 1019 ; Shambu Nath Goyal vs. Bank of Baroda, Jullundur, AIR 1978 SC 1088 = 1978 (2) SCR 793 . 14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in, the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh’s case (Supra), 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. As has been held in M.P. Irrigation Karamchari Sangh’s case (Supra), 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. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory”. In Steel Authority of India Ltd. & Ors. vs. National Union Waterfront Workers & Ors., (Supra), the Apex Court in Paragraphs 119(5) and 126 of the judgment observed thus 2001 (2) LLJ 1087 at Page 1132 : “119(5). On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it may by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to conditions as may be specified by it for that purpose in the light of Para 6 hereunder. 120. We have used the expression “industrial adjudicator” by design as determination of the questions aforementioned requires inquiry into disputed question of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal/Court whose determination will be amenable to judicial review”. 46. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal/Court whose determination will be amenable to judicial review”. 46. The Division Bench of Bombay High Court has also recently examined same issue in case of Cedric D’Silva vs. Union of India & Ors., reported in 2008 (1) LLJ Page 483. The Bombay High Court held that reference was rejected on the ground of predominant duties of petitioner that would be an issue to be decided, not by the Government but by the Industrial Adjudicator. The Division Bench of Bombay High Court has considered the various decision on the subject including Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar, reported in AIR 1989 SC Page 1565 and The Secretary Indian Tea Association (Supra) reported in AIR 2000 SC Page 915. Relevant Paras 9 and 10 are quoted as under : “6. The remedy of a person who claims to be a workman in respect of reliefs which can be adjudicated under the Industrial Disputes Act is only by resorting to the mechanism under the Industrial Disputes Act, 1947. The Act, therefore, coupled with the power has imposed a duty on the Government, in case of a refusal to make a reference, to record the reasons under Section 12(5) of the Industrial Disputes Act. Those reasons must be germane to the issue for consideration and not based on irrelevant material or considerations which are not determinative as to whether the employee is a workman as in the present case. If the appropriate Government only on a prima facie consideration rejects making of a reference, it will deny an employee claiming as a workman the right to get his status decided by a Competent Form, thus rendering him without a remedy and a forum where he can get a relief of reinstatement, as such a relief can be granted only by an Industrial adjudicator. Prima facie this would by itself contemplate that on material being produced, this prima facie finding can be displaced. In other words a reference cannot be rejected on a prima facie finding. 9. Prima facie this would by itself contemplate that on material being produced, this prima facie finding can be displaced. In other words a reference cannot be rejected on a prima facie finding. 9. In Bombay Union of Journalists & Ors., (Supra) the Supreme Court has noted that it is open to the appropriate Government to prima facie consider the merits of the dispute and take into account other relevant consideration which will help to decide whether making the reference would be expedient or not. Having said to the Court then observed as under : “It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal”. In so far as the validity of the reasons are concerned, the Court observed as under: “If 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. But the argument that of the pleas raised by the retrenched workman, two have been considered and not the third, would not necessarily entitle the party to claim a wit under Article 226”. The Supreme Court in that case also held as under : “If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus.” In Prem Kakar vs. State of Haryana & Anr., 1976 (3) SCC 433 , on the facts there, the Government found that the appellant was not a workman within the definition of workman. The order rejecting the reference was upheld. Reference was also made to The Secretary Indian Tea Association vs. Ajit Kumar Barat & Ors., AIR 2000 SC 915 = 2000 (3) SCC 93 = 2002 (2) MLJ 79 = 2000 (1) LLJ 809 . The order rejecting the reference was upheld. Reference was also made to The Secretary Indian Tea Association vs. Ajit Kumar Barat & Ors., AIR 2000 SC 915 = 2000 (3) SCC 93 = 2002 (2) MLJ 79 = 2000 (1) LLJ 809 . After referring to the various judgments the Supreme Court has reiterated the well settled position that before making a reference under Section 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman an industrial dispute exists or is apprehended. In Mahabir Jute Mills Ltd., Gorakhpore vs. Shri Shibban Lal Saxena & Ors., AIR 1975 SC 2075 = 1975 (2) SCC 818 = 1975 (2) LLJ 326 the Supreme Court noted the existence of what is called a secret report. The Court held that there was no reason made available to the parties has been annexed to the petition. That only notes as under : “After lengthy discussions and in spite of best possible efforts, it was observed that there was no possibility/scope of any amicable resolution of the matter before the Conciliation Officer looking to the divergent views and opinions of the parties. Therefore, proceedings ended in failure”. It is in the so called “Secret Report” that the Conciliation Officer has stated the case of failure of Conciliation. One of the reasons given in the failure report is that the judgment in Telco Convoy Drivers Mazdoor Sangh (Supra) is no long good law considering the judgment of the Supreme Court in Secretary, India Tea Association & Ors., (Supra). Firstly, both the judgments are of the coordinate Benches of the Supreme Court. Secondly, the law as declared in Telco Convoy Drivers Mazdoor Sangh (Supra) is the same as set out in Secretary, Indian Tea Association. In Telco Convoy Drivers Mazdoor Sangh (Supra), it was urged that unless relationship of employer and employees or, in other word, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute. In dealing with that aspect the Supreme Court has observed that : “Attractive though the contention is, we regret, we are unable to accept the same. In dealing with that aspect the Supreme Court has observed that : “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, AIR 1985 SC 915 = 1985 (3) SCR 686 ; M.P. Irrigation Karamchari Sangh vs. State of M.P., AIR 1985 SC 860 = 1985 (2) SCR 1019 ; Shambu Nath Goyal vs. Bank of Baroda, Jullundur. The judgment nowhere lays down that it is not open for the Government to prima facie consider as to whether a dispute exists. What cannot be done on contested material is to arrive at a conclusion that a person is a workman or not. The judgment in Secretary, Indian Tea Association only reiterates the existing position that it is open to the appropriate Government to prima facie consider the material as to whether there exists an industrial dispute. If such a power is not conferred then in every case the Government would have no choice but to make reference. 10. Having considered the facts on record and the propositions of law which have been canvassed we may now note, that in our earlier order we had held that the first order rejecting the reference discloses non-application of mind. On the matter being referred back to the appropriate Government the same material which was available including the same secret report was considered. The same reason has been given except this time it was set out that prima facie the predominant nature of the duties assigned was managerial/supervisory. The excerpts from the secret report themselves have been set out as can be seen some of the recommendations are totally irrelevant to decide whether the petitioner was a workman or not. It is not possible to know which reasons weighed with the Government. The excerpts from the secret report themselves have been set out as can be seen some of the recommendations are totally irrelevant to decide whether the petitioner was a workman or not. It is not possible to know which reasons weighed with the Government. Even otherwise assuming that the material had been placed by Respondent No. 4 before the Conciliation Officer as the reference is rejected on the prima facie finding of ground of predominant activities, that would be an issue to be decided not by the appropriate Government, but by the Industrial adjudicator. In what manner a pilot who has to discharge certain statutory functions as in charge of the aircraft, cease to be a workman is an issue which will have to be considered, whilst applying the predominant test of nature of duties”. 47. In light of the observations made by the Division Bench of the Bombay High Court after considering the various decision of Apex Court on the subject matter, it is also relevant to note the failure report submitted by Assistant Commissioner of Labour on 25.10.2000, which is relevant where the view of both the parties have incorporated. The petitioner’s grievance that he was illegally terminated by respondent Bank. Therefore, dispute was raised to grant reinstatement with all consequential benefits. The respondent Bank submitted their comments that workman was given work purely on ad hoc basis and casual basis and was paid ad hoc amount for ad hoc work and workman has started his own business and his disengagement is only discharge simpliciter cannot be turned retrenchment as dispute can not exists. Against that workman’s case was that he remained in service continued with respondent Bank for more than seven years and his service was terminated on 11.08.1999 without notice, notice pay or any kind of compensation. After his termination fresh persons have been appointed and his juniors are also continued in service. On the basis of the aforesaid view of both the parties, the Conciliation Officer has come to conclusion as under : “Both the parties held divergent views and stuck to their respective stand. The conciliation proceeding held failure. The representative of workman agreeable for arbitration, but Management representative declined to do so”. 48. The appropriate Government after receiving failure report under Section 12, Sub-section 4 has to consider whether dispute is referred for adjudication or not. The conciliation proceeding held failure. The representative of workman agreeable for arbitration, but Management representative declined to do so”. 48. The appropriate Government after receiving failure report under Section 12, Sub-section 4 has to consider whether dispute is referred for adjudication or not. Therefore, looking to the failure report, which can consider to be secrete report, there was not undisputed fact mentioned by Conciliation Officer. Both the parties are having divergent views and not agreed to disputed facts. 49. Therefore, both the parties stuck to their respective stands. No material was placed by either side before Conciliation Officer except to reply and rejoinder filed by both parties. In such circumstances, on what basis the appropriate Government has come to the opinion that dispute is not required to refer or fit for reference. The reasoning given by appropriate Government suggest the clear decision on disputed fact for which appropriate Government has no jurisdiction to decide or adjudicate the disputed facts between parties. 50. The industrial dispute exists because of disputed fact between parties in respect to connect with unemployment and condition of service covered by Section 2(k). The petitioner is workman not challenged by respondent Bank and respondent Bank is an Industry covered by Section 2(j). If these all tests are satisfied even though to form the opinion as if appropriate Government has decided the dispute and come to conclusion, which is not within preview of appropriate Government. The fact of the case of Secretary, Indian Tea Association is all together different where undisputed fact was there not challenged by workman and on that basis the opinion was formed by appropriate Government, but the Apex Court has not decided that disputed facts between parties, even though, appropriate Government has jurisdiction to form the opinion. 51. The decision in Telco Convoy Drivers Mazdoor Sangh (Supra) reported in AIR 1989 SC Page 1565, is still hold the field not overruled by any subsequent decision, merely it has been distinguished on fact by Apex Court in subsequent decision, but ratio laid down by Apex Court in Telco Convoy Drivers Mazdoor Sangh (Supra) still is applicable and binding to appropriate Government. The relevant Paras 13 and 14 are quoted as under : “13. Attractive though the contention is, we regret, we are unable to accept the same. The relevant Paras 13 and 14 are quoted as under : “13. 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 lis the 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, AIR 1985 SC 915 = 1985 (3) SCR 686 ; M.P. Irrigation Karamchari Sangh vs. State of M.P., AIR 1985 SC 860 = 1985 (2) SCR 1019 ; Shambu Nath Goyal vs. Bank of Baroda, Jullundur, AIR 1978 SC 1088 = 1978 (2) SCR 793 . 14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in, the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh’s case (Supra), 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. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory”. 52. Similarly, this Court (Coram : Honourable Mr. Justice D.H. Waghela) has examined same issue in case of Kantilal Bhovanbhai Butani vs. Union of India & Ors., reported in 2001 (1) GLR Page 639. Relevant Paras 7 and 8 are quoted as under: “7. 52. Similarly, this Court (Coram : Honourable Mr. Justice D.H. Waghela) has examined same issue in case of Kantilal Bhovanbhai Butani vs. Union of India & Ors., reported in 2001 (1) GLR Page 639. Relevant Paras 7 and 8 are quoted as under: “7. It is clear that the decision of the Government to refer or not to refer a dispute is an administrative function. The Government is required to satisfy itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended. As no lis is involved in the making of such administrative order, it is based on the subjective satisfaction of the Government. However, such orders are subject to judicial review and if it appears from the reasons required to be given for refusing to refer a dispute that the Government took into account any consideration which was irrelevant or foreign material, the Court may, in a given case, issue a writ of mandamus. As held by the Hon’ble Supreme Court in Jitendra Nath Biswas vs. M/s. Empire of India & Ceylone Tea Co., AIR 1990 SC 255 , a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10(1). However, as also held by the Hon’ble Supreme Court in Telco Convoy Drivers Mazoor Sangh vs. State of Bihar, 1989 (2) LLJ 558 , the formation of opinion as to whether an industrial dispute ‘exists or is apprehended’ is not the same thing as to adjudicate the dispute itself on its merits and in performing the administrative function, the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis. It is also observed by Their Lordships in the same judgment that “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. It is also observed by Their Lordships in the same judgment that “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. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory”. 8. As can be seen from the impugned order in this case, the Government has concluded that the dispute did not subsist and that is the reason for refusing to refer the dispute. The fundamental fallacy lurking in the impugned order is that under the guise of deciding whether a dispute exists or not, the appropriate Government has gone into and decided the root cause of the dispute as to the validity of the termination of service. The question whether the termination of service of the workman was legal may incidentally arise for adjudication by the industrial forum while deciding the industrial dispute arising from the demand of the workman for reinstatement with full backwages. The phrase “industrial dispute” is defined under Section 2(k) of the Act which reads as under : “2(k) “industrial dispute” means any dispute or difference between employers and employers, or between employees and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person”. Thus, according to the definition of the phrase “industrial dispute” in Section 2(k) of the Act, it, inter alia, means any dispute or difference between the employer and the employee which is connected with employment or non-employment or the terms and conditions of employment of any person. Thus, according to the definition of the phrase “industrial dispute” in Section 2(k) of the Act, it, inter alia, means any dispute or difference between the employer and the employee which is connected with employment or non-employment or the terms and conditions of employment of any person. Where a demand is raised for reinstatement by a workman upon termination of his service and any dispute or difference arises between that workman and his employer in connection with termination, that would be deemed to be an “industrial dispute” by virtue of the provisions of Section 2-A of the Act, which reads as under : “2-A : Dismissal, etc., of an individual workman to be deemed to be an industrial dispute-Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute”. Thus, any dispute or difference between the employer and the employee-collectively or individually-which is connected with or arises out of not only retrenchment but discharge, dismissal or termination of service would by a deeming fiction be an “industrial dispute”. Ordinarily, unless such dispute is resolved by a settlement during the course of or outside conciliation, it subsists. It follows that where the workman has raised and pursued a demand pursuant to the termination of his service and the same is not resolved during conciliation or otherwise within the statutory scheme, it would be factually incorrect to state that an industrial dispute did not exist or subsist. The considerations as to whether the termination from which the dispute arose was legal and proper are irrelevant and not germane to deciding whether the industrial dispute exists. In the facts of the present case, the Government has taken into account the nature and conditions of employment of the petitioner and found the termination to be in terms of a stipulation in that behalf and held that the dispute did not subsist. The ascertainment of existence or subsistence of an industrial dispute did not depend upon the validity of termination because that itself was the matter involved in the dispute”. 53. The ascertainment of existence or subsistence of an industrial dispute did not depend upon the validity of termination because that itself was the matter involved in the dispute”. 53. In this case, according to my opinion, appropriate Government has decided the merits itself, for that appropriate Government has no jurisdiction to examine the industrial dispute raised by workman under Section 2-A of Industrial Disputes Act 1947. It is also necessary to note that in termination case, no prima facie opinion is required by Government. Any kind of opinion in such case suggest the decision on merits otherwise termination itself is enough to refer for adjudication. Whether termination is illegal or not, whether workman has established or not established whether workman is disproved or not. These are the finding of facts not to be decided by appropriate Government. 54. It is necessary to note that while referring the industrial dispute for adjudication State Government and Central Government both are appropriate Government in respect to “Industry” concern. When the State Government is appropriate Government then in case of dismissal, discharge, termination, complaint under Section 2-A is filed by workman raising industrial dispute before Assistant Commissioner of Labour. After receiving complaint by Assistant Commissioner of Labour calling the employer and workman while issuing notice for negotiation and conciliation. After certain meetings of hearing if Conciliation Officer feels that settlement is not possible and both parties are remaining adamant, then, Assistant Commissioner of Labour is having power delegated by appropriate Government under Section 10, Sub-section 1 straight way refer the dispute for adjudication without submitting failure report under Section 12, Sub-section 4 of Industrial Disputes Act 1947 to the appropriate Government. Meaning thereby that procedure, which has been followed by State Government in case of Industrial Dispute relating to dismissal, discharge, and termination and procedure followed by Central Government both are totally different though both appropriate Government working under same provisions of Industrial Disputes Act 1947. Because of such detailed procedure followed by appropriate Government, which is contrary to Section 10(1), delay is occurred in referring the dispute for adjudication to Labour Court/Industrial Tribunal. While working under one act having power under the same sections why this two different procedure adopted by State Government and Central Government. In the State Government, there is no procedure of sending failure report under Section 12, Sub-section 4 of Industrial Disputes Act 1947. While working under one act having power under the same sections why this two different procedure adopted by State Government and Central Government. In the State Government, there is no procedure of sending failure report under Section 12, Sub-section 4 of Industrial Disputes Act 1947. The wrong procedure unnecessary contrary to law followed by Central Government as if that industrial dispute raised by Union under Section 22 giving strike notice in public utility service. That procedure it self is violated the mandatory provisions of Section, 10, Sub-section 1 of Industrial Disputes Act 1947. 55. Section 12 is having come into effect only in case of industrial dispute espouse by Union relates to public utility service and receiving strike notice under Section 22 of Industrial Disputes Act 1947. The Section 12, Sub-section 1 is very clear, even though, the individual complaint of workman relates to dismissal, discharge and termination, no conciliation proceeding is required by appropriate Government except to see that whether industrial dispute is exists or not and is there any apprehended dispute then dispute must have to be referred for adjudication. No reason is necessary for referring dispute for adjudication. 56. In fact of this case, though industrial dispute was raised by workman against termination even though power has been exercised under Section 12 by initiating conciliation proceedings, which is without jurisdiction. The State Government has rightly followed the procedure after receiving the complaint against dismissal, discharge and termination. After receiving complaint by Assistant Commissioner of Labour, who is having power, which has been delegated by State Government to refer the dispute for adjudication to Labour Court. Therefore, appropriate Government being Central Government has to consider the defect remaining in following procedure in case of dismissal, discharge and termination. The decision, which is under challenged, where Central Government being appropriate Government has decided the merits, for which appropriate Government has no jurisdiction to adjudicate the dispute and to give finding on merits. 57. The view taken by Apex Court in case of Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors., reported in AIR 1989 SC 1565 , is binding to Central Government. 58. 57. The view taken by Apex Court in case of Telco Convoy Drivers Mazdoor Sangh & Anr. vs. State of Bihar & Ors., reported in AIR 1989 SC 1565 , is binding to Central Government. 58. In the present petition, the definition of Industrial Disputes Act, 1947, Sections 2-A, 2(k), 2(s), 10(1), 12 and Section 22 are relevant, therefore, the same are quoted as under : “2(k) : ‘industrial dispute’ means any dispute or difference between employers and employers, or between employees and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. “2-A : Dismissal, etc., of an individual workman to be deemed to be an industrial dispute — Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute”. “2(s) : “Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute but does not include any such person : (i) who is subject to Air Force Act 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity or (iv) who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature”. “10. “10. Reference of disputes to Boards, Courts or Tribunal— (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing— (a) refer the dispute to a Board for promoting a settlement thereof ; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication; Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c); Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient to do so, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced; Provided also that where the dispute in the relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal as the case may be, constituted by the State Government”. “12. Duties of Conciliation Officer.— (1) Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. “12. Duties of Conciliation Officer.— (1) Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The Conciliation Officer shall, for the purpose of bringing about a settlement of the dispute without delay investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the Conciliation Officer shall send a report thereof to the appropriate Government or an officer authorized in this behalf by the appropriate Government together with a memorandum of settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If on a consideration of the report referred to in Sub-section (4) the appropriate Government is satisfied that there is a case for reference to a board, Labour Court Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government; Provided that, subject to the approval of the Conciliation Officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute”. 22. 22. Prohibition of strikes and lock outs.— (1) No person employed in a public utility service shall go on strike, in breach of contract— (a) without giving to the employer notice of strike as hereinafter provided, within six weeks before striking, or (b) within fourteen days of giving such notice, or (c) before the expiry of the date of strike specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings. (2) No employer carrying on any public utility service shall lockout any of his workmen.— (a) without giving them notice of lock out as hereinafter provided, within six weeks before locking out or (b) within fourteen days of giving such notice, or (c) before the expiry of the date of lock out specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings”. 59. Considering the aforesaid sections, dispute relating to termination is covered by Section 2-k being Industrial Dispute. Section 2-A is that individual workmen have right to raise dispute against termination without the help of Union by way of filling individual complaint before Conciliation Officer. 60. Section 10 provides the power of appropriate Government to refer the industrial dispute if it exists or apprehended and Section 12, provide the detailed procedure when strike notice given by Union in respect to industrial dispute relating to public utility service. 61. In this case, present respondent Bank is not public utility service. Therefore, complaint under Section 2-A was filed by workman. It is not a general industrial dispute which covered or concerned with the workmen working with Industry. Therefore, Section 12 is not applicable to the fact of this case, even though, appropriate Government has followed procedure under Section 12, which is without jurisdiction and therefore, decision taken under Section 12, Sub-section 5 is also without jurisdiction. 62. It is necessary to consider the legal harassment which has been made to concerned petitioner by appropriate Government while adopting wrong procedure resulted into wrong order. The service of petitioner was terminated on 11.08.1999. He raised industrial dispute on 04.10.1999 and appropriate Government decided on 30.01.2001 having the opinion not to refer the industrial dispute for adjudication. 62. It is necessary to consider the legal harassment which has been made to concerned petitioner by appropriate Government while adopting wrong procedure resulted into wrong order. The service of petitioner was terminated on 11.08.1999. He raised industrial dispute on 04.10.1999 and appropriate Government decided on 30.01.2001 having the opinion not to refer the industrial dispute for adjudication. The petition is filed before this Court in the year 2001 which is remained pending before this Court for about seven years and now, today, this Court has decided the petition. Therefore, a petitioner who has to wait because of legal fight for a period of more than eight years, till date, whether his termination is legal or not, that question is not referred for adjudication remained without decision. The delay caused by appropriate Government while adopting wrong procedure and forming an opinion as if adjudicating the dispute and thereafter, matter remained pending before this Court. A poor employee is a sufferer who is without work remained unemployed for a period of more than eight years. After dispute will refer for adjudication to Industrial Tribunal, when question of granting the back wages arise for interim period, whether at that occasion, Labour Court grant it or not because of delay in referring the dispute to the Labour Court. Ultimately, sufferer is a poor casual employee who remained without work and wages for a period of more than eight years. The appropriate Government has to think twice before refusing to refer the industrial dispute when it relates to dismissal/discharge and termination, because, ultimately, not to refer the dispute amounts to deny the remedy to the concerned workman. If dispute is not referred, then, workman remained without remedy because Civil Court has no jurisdiction when order of termination passed under the provisions of service rules. No other Court has jurisdiction which gives remedy to the workman to challenge his termination. Therefore, in such circumstances, normally, unless dispute is raised a totally frivolous one ex facie, otherwise, rule is to make a reference. The Apex Court had considered the scope of power of appropriate Government under the provisions of Industrial Disputes Act, 1947 in case of Rajasthan State Road Transport Corporation & Anr. etc., vs. Krishna Kant etc., reported in 1995 (2) LLJ 728 . This decision is given by Hon’ble bench consisting of three Judges of Apex Court. The Apex Court had considered the scope of power of appropriate Government under the provisions of Industrial Disputes Act, 1947 in case of Rajasthan State Road Transport Corporation & Anr. etc., vs. Krishna Kant etc., reported in 1995 (2) LLJ 728 . This decision is given by Hon’ble bench consisting of three Judges of Apex Court. In the said decision, the Apex Court has command to the Parliament and the State Legislature to make the provisions enabling a workman to approach the Labour Court, Industrial Tribunal directly i.e. with the requirement of a reference by the Government in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act, 1947. This would give a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. The recommendations made by Apex Court in the year of 1995 after a period of more than 12 years, Central Government and State Legislature having no time to make the amendment in the Industrial Disputes Act which facilitate the remedy to the workman against dismissal/discharge and termination, so, unnecessary time may not be consumed in conciliation proceedings and workman can straightway approached the Labour Court and challenge the termination or dismissal. In Bombay Industrial Relation Act, 1946, under Sections 78/79, an employee who governed by Bombay Industrial Relation Act, 1946 entitled to challenge termination straightway by filing an application before the Labour Court. The purpose behind it that time consuming by appropriate Government for taking decision to refer or not to refer the dispute is more than one year period and in case if dispute is more than one year period and in case if dispute is not referred, then, it will be more than five to ten years for deciding the decision of appropriate Government. This recommendations of Apex Court as referred above require immediate action by appropriate Government either Central Government or State Government. The relevant discussion of Apex Court making certain observations about power of appropriate Government in respect to industrial dispute under Section 2-A are relevant, therefore, the same are quoted as under : “18. This recommendations of Apex Court as referred above require immediate action by appropriate Government either Central Government or State Government. The relevant discussion of Apex Court making certain observations about power of appropriate Government in respect to industrial dispute under Section 2-A are relevant, therefore, the same are quoted as under : “18. The expression “Industrial Dispute” is defined in Section 2(k) to mean any dispute or difference (i) between employers and employers; (ii) between employers and workmen; and (iii) between workmen and workmen, provided such dispute is connected with the employment, non-employment, terms of employment or conditions of labour of any person. It is well settled by several decisions of this Court that a dispute between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman is espoused by a body of workmen [See Bombay Union of Journalist vs. “The Hindu”, AIR 1963 SC 318 = 1961 (2) Lab LJ 436]. Of course, where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. It is precisely for this reason that Section 2-A was inserted by Amendment Act 35 of 1965. It says, “where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute”. By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2-A. Section 2-A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that — to give an example — if a workman is reduced in rank pursuant to a domestic enquiry, the dispute raised by him does not become an industrial dispute within the meaning of Section 2-A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute). We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2-A. It is obvious that in all such cases, the remedy is only in a Civil Court or by way of arbitration according to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short, Sections 10 or 12) does not apply to such a dispute. 27. But then it is argued that while a person can go and file a suit straightway, he cannot resort to the forums under Industrial Disputes Act directly and that access to these forums is premised upon the appropriate Government referring the dispute to them. The submission is no doubt attractive ex facie but not on deeper scrutiny. Firstly, the discretion to refer is not arbitrary. It has to be exercised to effectuate the objects of the enactment. An arbitrary refusal to refer is not unchallengeable. The Courts normally lean favour of making a reference rather than the other way. In view of the manner in which the several Governments have been acting over the last several decades there seems no basis for the apprehension that this power will be exercised arbitrarily. The circumstance suggested cannot, therefore, militate against the view taken by us herein. 32(4). It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication. 32(5). Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly i.e., without the requirement of a reference by the Government — in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. 32(5). Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly i.e., without the requirement of a reference by the Government — in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. 32(7). The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to Civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute”. 63. Therefore, according to my opinion, appropriate Government has exceeded in jurisdiction and dispute raised under Section 2-A, the appropriate Government has no jurisdiction to examine the matter under Section 12. On both ground, this order dated 30.01.2001 passed without jurisdiction required to be quashed and set aside. 64. Accordingly, order dated 30.01.2001 is hereby quashed and set aside with a direction to appropriate Government to decide the complaint filed by workman raising the industrial dispute against the termination while exercising the power under Section 10(1) of the Industrial Disputes Act, 1947 within a period of three months from the date of receiving copy of this order. 65. Learned Advocate Mr. Malkan submitted that there is no infirmity in the order passed by appropriate Government and proper procedure was followed. That submission has been supported by learned Advocate Mr. Chari, but, the same is rejected in view of aforesaid observations. 66. Accordingly, rule is made absolute in terms indicated hereinabove with no order as to costs.