JUDGMENT :- Subhash B. Adi, J. This Writ Petition is by the management questioning the order dated 31st August 2007 passed by the Government of India, Ministry of Labour, New Delhi produced at Annexure-E. 2. Petitioner is a Bank established in 1916. In 1972 petitioner Bank became Multi State Bank and since then the petitioner - Bank is following the norms and guidelines as per the Sastri Award, in the matter of transfer. Insofar as staff members of subordinate establishments are concerned they are not ordinarily transferred and even if they are transferred, they are not transferred beyond the language area of the persons so transferred. In case of workmen not belonging to subordinate staff, as far as possible, there is no transfer outside the State or the language area, which the employee has been serving except with the consent of such employee. 3. Employees of the petitioner Bank have formed a Union in the name and style as “Karur Vysya Bank Employees' Union", which is respondent No.3 herein and said Union is also member of "All India Bank Employees' Association and from time to time there has been settlement between the All India Bank Employees' Association and the Indian Bank Association, to which the petitioner Bank is also a member. Petitioner - Bank is strictly adhering to the Bipartite settlement arrived between the Indian Bank Association and All India Bank Employees - Association and such settlements are binding on both Bank Association and its members and also All India Bank Employees' Association and its member union. Though there is a Bipartite settlement between the union as well as the Bank Association in the matter of transfer, in terms of Sastri Award, still the respondent No.3 Union by its letter dated 18.8.2006 sought for conciliation as regard to policy of transfer of Bank employees before the Regional Labour Commissioner (Central) (i.e., Conciliation Officer). Petitioner Bank opposed the conciliation by filing detailed objections interalia stating that, the transfer is a condition of service; and it is done in terms of Sastri Award as well as Bipartite settlement and in view of the same, there exists no dispute, which requires adjudication by the Industrial Tribunal. It also stated that, deployment was incidental to the computerisation of Banks and the deployment process was over by 2000. However, the Regional Labour Commissioner (Central) submitted his failure report to the Central Government. It also stated that, deployment was incidental to the computerisation of Banks and the deployment process was over by 2000. However, the Regional Labour Commissioner (Central) submitted his failure report to the Central Government. The Central Government by the impugned order dated 31.8.2007 referred the dispute, by invoking the provisions of Section 10(2-A) sub-Section (1) clause (d) of the Industrial Disputes Act, 1947 on the following issue: ."Whether the action of the management of Karur Vysva Bank in denying the formulation of specific transfer policy sought by Karur Vysya Bank Employees" Union, is fair and justified? If not, to what relief the Union is entitled?" 4. It is this reference order is called in question by the petitioner. 5. Sri. Somayyaji, learned Senior Counsel appearing for the petitioner submitted that, there exists no dispute, which requires an adjudication by the Industrial Tribunal, the transfer policy is governed by Sastri Award and also by Bipartite settlement between the Indian Bank Association and All India Bank Employees-Association and similar other association, and said settlements are binding on the parties. The reference sought does not indicate any dispute. It only states the requirement of formulation of specific transfer policy. A specific transfer policy has been formulated in the Sastri Award and further, in all the Bipartite Settlements, the policy of transfer has been considered and settlement is arrived. When there is already a settlement, the question of raising the dispute does not arise. He submitted that, transfer is incidental to the service and there cannot be any policy as such that could be imposed on the Banks. However, the Banks are bound by the terms of settlement and in terms of the settlement, the transfers are made. In view of the settlement the State Government cannot mechanically refer the issue to the Industrial Tribunal, when there is no dispute exists referring the issue to the Industrial Tribunal is a futile exercise. It is also submitted that after the 8th Bipartite Settlement now the negotiations are being held for the 9th Bipartite Settlement wherein an issue as regard to the transfer is also one of the items. 6. It is also submitted that after the 8th Bipartite Settlement now the negotiations are being held for the 9th Bipartite Settlement wherein an issue as regard to the transfer is also one of the items. 6. In this regard, he relied on the additional documents produced in this case to show that, as far as transfer is concerned, parties are governed by paragraphs-535 and 536 of the Sastri Award, paragraphs-533 to 536 of the Award relate to the policy regarding transfer and the policy regarding transfer is constant source of friction between the Banks and the workman/Union. Union claiming victimization of the office bearers for their activities, they were transferred, was also considered by the Industrial Tribunal in Sastri Award and it is observed that, transfers are normal incidents of the working of a Bank and they must be left to the discretion of those who guide the policy of the Bank and manage its affairs. In case if there are transfers with an ulterior motive, may be the workman in individual case raise a dispute. He relied on the direction issued in the Sastri Award and submitted that, transfer should he minimum and consistent with the Banking needs and efficiency. It is in this regard, in para-536 of the Sastri Award, the guidelines are prescribed. He further submitted that, negotiations are being held for the 9th Bipartite Settlement and one of the demands at para-17 relates to deletion of paragraph-522 sub-para-1 of Sastri Ward and also modification of paragraphs-535 and 536 of the said Award. He further submitted that after the Sastri Award in Bipartite settlement, there has been settlement in regard to transfer of' Bank employees. He further submitted that after the Sastri Award in Bipartite settlement, there has been settlement in regard to transfer of' Bank employees. He referred to settlement dated 2nd June 2005, the last Bipartite settlement and pointed out even in the matter of deployment of staff as per Clause 13, which reads as under: The above provisions on deployment are without prejudice to the provisions of paragraphs 535 and 536 of the Sastri Award relating to transfer of workmen" He also relied on clauses-15 and 16 and submitted that, any Bank which is a party to the settlement and having Bank-level settlement on transfer or deployment may, however, modify and improve upon the above provisions to suit the needs of the Bank ensuring however, the norms relating to the geographical minimum area of deployment, period of stay at the deployed centre, conditions for repatriation as mentioned earlier clauses are not relaxed or diluted. Referring to clause-15 he submitted that, the Banks, which are having Bank-level settlement should not alter the conditions of deployment, which are enumerated in schedule-6 and deployment should be geographical minimum area. He also submitted that, in case where the Bank-level settlements, policies or transfer or deployment of workmen exist which provides for transferability of employees over a larger geographical area, such Bank level settlements shall remain operative. Referring to these clauses, he submitted that, 8th Bipartite Settlement is subject to paragraphs-535 and 536 of Sastri Award, even if there are any settlements at Bank level, there should not be any derogation of the 8th Bipartite settlement and in case there is a settlement at Bank level in the matter of transfer or deployment policy providing transfer beyond larger geographical area, they should adjust. Reffering to these clauses, he submitted that, 8th Bipartite settlement is binding on the Union and in case if there are settlements at Bank level such settlements will continue. In case there is no settlement the Banks are governed by the Bipartite Settlement. He also pointed out that, from para-39 clause (iii) of the 8th Bipartite Settlement, which reads as under: "The AIBEA, NCBE, BEFI, INBEF and NOBW on behalf of the workman agree that during the operation of this Settlement the workmen will not for any reason whatsoever, raise any demand of any nature whatsoever on any of the Banks in respect of matters, monetary or otherwise, covered by this Memorandum of Settlement. He submitted that the Bank Employees Association have agreed not to make any demand during the operation of the 8th Bipartite settlement. He submitted that, 8th Bipartite Settlement is in force and it is not in dispute. 7. Referring to the settlement and also referring to the Sastri Award, he further submitted that, the matter of transfer being an incident to the service, it is the discretion of the employer for administrative reason or exigencies to transfer his employee and there cannot be any fixed policy in the matter of transfer and particularly when there is already settlement in the matter of transfer between the union and the Bank Association, the question of formulating another policy does not arise and that would be contrary to the settlement. 8. He further submitted that, the Central Government cannot mechanically refer the dispute to the industrial Tribunal for adjudication unless the dispute exists or dispute is apprehended. In order to substantiate his argument, he referred to Annexure-A, a demand of the Union and submitted that, the Union has sought for reference on an issue, which reads as under: "The dispute is not to tike away the right of the management to transfer an employee but to have certain regulation and other redressal/benefits available in other Banks. Hence we appeal to you to issue notice to the Bank after having satisfied there is a breach of settlement and unfair labour practice. Referring to this demand, he also referred to the reasons given by the union and submitted that, the union has referred to Bipartite Settlements-1 to 8 and at para-34 of its representation, Union alleges that, the management requires to obey the settlement and memorandum of understanding. He submitted that, it is not at all the case of the petitioner - Bank that, it is making any transfer in contravention of Sastri Award or in contravention of any settlement and in this regard, when a detailed statement of objection is riled before the Assistant Labour Commissioner (Central), the Assistant, Labour Commissioner without even referring to these things has sent a failure report to the Central Government, and the Central Government mechanically without even applying its mind to know whether there is any dispute or dispute is apprehended or not, has framed the issue regarding formulation of transfer policy. He submitted that, formulation of transfer policy cannot be a ground for the Central Government to refer to the Industrial Tribunal. 9. He also submitted that, a judicial review of an order of reference is permissible, if the Court finds that, there exists no dispute or dispute is not apprehended. In support of his contention as regard to power of judicial review, he relied an a judgment in the matter of National Engineering Industries Ltd. Vs State of Rajasthan and Others 2000 (1) LLJ 247 . Referring to para-26 submitted that, jurisdiction vests in the High Court to entertain a writ petition when there is an allegation that, there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal. A settlement is arrived at by the fee will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. 10. Settlement can be during the course of conciliation proceedings and settlement outside the conciliation. In case of settlement outside the conciliation, such conciliation binds the parties to the settlement. In case of settlement in the proceedings before the Conciliation Officer, the settlement binds the Union and all the workmen of the establishment. Referring to the decision of the Apex Court, he further submitted that, it is not the case of the respondent No.3 -Union that the settlement is not bona fide, is unreasonable or is induced by means of fraud, concealment or suppression of facts. In turn the Union also relics on the settlement and alleges that there is a breach of settlement. In such circumstances, if there is already settlement and said settlement is arrived during the course of the conciliation proceedings, which binds the union and all the employees, there cannot be any further dispute on the same subject matter. 11. In turn the Union also relics on the settlement and alleges that there is a breach of settlement. In such circumstances, if there is already settlement and said settlement is arrived during the course of the conciliation proceedings, which binds the union and all the employees, there cannot be any further dispute on the same subject matter. 11. He further relied on another judgment in the matter of Anz Grindlays Bank Ltd. (Now known as Standard Chartered Grindlays Bank Ltd.) Vs Union of India And Others 2006 (1) LLN 21 and submitted that, though normally High Court under Article 226 of the Constitution will not entertain a writ petition against the order of the appropriate Government making a reference under Section 10 of the I.D.Act, however, cases where infirmity in the reference is shown and reference which may lead to futile exercise of power on the bare reading of the reference and admitted facts the validity of reference made by the appropriate Government could he examined in a proceedings under Article 226 of the Constitution of India. All that the court requires to know is as to whether there is an industrial dispute in existence or the dispute is apprehended. If it is found that, referring the dispute would only be a futile exercise, such reference could be quashed. 12. He further relied on another judgment in the matter of Steel Authority of India Ltd. Vs Union of India And Others 2006 (3) LLJ 1037 and submitted that, based on the material placed before the Government, Government should apply its mind before making reference of the issue to the Industrial Tribunal or Labour Court and must prima facie satisfy itself that there exists a dispute or dispute is apprehended. He submitted that, State cannot mechanically invoke the provisions of Section 10 in the matter of reference. 13. As regards to the issue of transfer learned Senior Counsel relied on a judgment in the matter of Canara Banking Corporation Ltd. Vs Vittal (U) 1963 (2) LLJ 354 and submitted that, the Apex Court while interpreting the Sastri Award in the matter of transfer of Bank employees has observed that, the relevant directions in Sastri Award on the question of transfer are binding on the Bank and those directions are also binding on the workmen. Bank, which has branches in different parts of the country, has to distribute its total man-power between these different branches in accordance with the needs of these branches and with an eye to its business interests. To attain the best results it becomes necessary to transfer workmen from one branch to another. The best interests of the Bank may require at times that the transfer should be made outside the State or the language area in which a particular workman had been serving, is left unimpaired by the Sastri Award except that such transfers have to he avoided, if they can be avoided without sacrificing the interests of the Bank. The management of the Bank is in the best position to judge how to distribute its man-power and whether a particular transfer can be avoided or not. It is not possible for Industrial Tribunals to have before them all the materials which are relevant for this purpose and even if these could be made available, the Tribunals are by no means suited for making decisions in matters of this nature. Ordinarily it is proper for industrial adjudication to accept as correct any submission by the management of the Bank that a transfer has been made only because it was found unavoidable. Unless there is a malafide or victimization or unfair labour practice or some ulterior motive not connected with the business interest of the Bank is shown by the employee. He also relied on another judgment reported in the matter of Indian Telephone Industries Ltd. Vs Prof. P.N .Shetty Vol. 91 FJR Page 585 (Kar) to point out the urgency of transfer. 14. Referring to the above decisions, learned Senior Counsel for the petitioner submitted that, in the light of the Sastri Award and also in the light of the Bipartite agreement, there cannot be any dispute existing between petitioner management and union on the question o f transfer policy. As observed by the Apex Court transfer is incidental to the service and for exigency or necessity for the administrative reason right is vested with the employer to transfer employee and unless the employee shows that transfer is malafide or made with oblique motive, there is no reason to interfere with the order of transfer. In this case, when the policy of transfer is well settled between the parties, it binds all its members. In this case, when the policy of transfer is well settled between the parties, it binds all its members. He also submitted that power of this Court under Article 226 to review the order of reference is permissible if this Court finds that there is no dispute. 15. Sri. Subha Rao, learned Senior Counsel appearing for the respondent -Union submitted that there can be arbitrary transfer or deployment. No doubt, transfer is incidental but a policy of transfer is required between the Management and the Union. He submitted that in this regard union has made a demand and it was not responded by the management. As such, union sought for conciliation before the conciliator. He also submitted that from the Sastri Award and thereafter under Bipartite settlement, the union has been making repeated demands for formulation of policy in the matter of transfer particularly in respect of interstate Banks which has done in other Banks. Relying on the 8th Bipartite settlement he submitted that union has specifically stated that, as long as employees were deployed/ transferred by the administration in the name of exigency without` adhering to the norms and clauses of agreement signed so far in the Bank, it amounts to conferring right in the management to make arbitrary transfers. The management without obeying settlement and memorandum of understanding has been making transfers. These transfers are made in the absence of a formulation of policy in the matter of transfer and that, the formulation of policy in the matter of transfer is a dispute which requires adjudication by the Labour Court and at the threshold this Court cannot interfere with the order which ultimately requires to be adjudicated on the basis of evidence before the Industrial Tribunal. 16. The learned Senior Counsel also submitted that the State Government considering the nature of dispute has referred the issue for adjudication before the Industrial Tribunal. This Court normally will not interfere with the order of reference unless it is shown that dispute itself does not exist or is apprehended, the power of this Court to interfere with the order of reference being limited and nothing has been shown by the petitioner as to how the dispute does not exist. 17. This Court normally will not interfere with the order of reference unless it is shown that dispute itself does not exist or is apprehended, the power of this Court to interfere with the order of reference being limited and nothing has been shown by the petitioner as to how the dispute does not exist. 17. It is in support of these contentions, he relied on the decisions reported in 1963(2) LLJ 354 and 2005(8) SCC 264 and submitted that the petition under Articles 226 and 227 of the Constitution of India should not be entertained when a statutory remedy is available under the Act unless exceptional circumstances are made out. He further submitted that while considering the matter, the Apex Court has observed as under: "High Court should not deviate from the general view and interfere under Articles 226 except When a very strong case is made out for making a departure". 18. Relying on the said judgment, learned Senior Counsel further submitted that when the matter could be adjudicated before the Tribunal on the issue, there is no reason to interfere with the order of reference. In this regard he further relied on another decision reported in AIR. (36) 1949 Federal Court 111 and submitted that Tribunal is having a power to create and modify or formulate a new contract or grant such relief which it feels necessary in the circumstances of the case, and when the Tribunal has got right, it is possible that the Tribunal in the facts and circumstances can make a contract between the parties. In such circumstances, entertaining a writ petition to deny legitimate adjudication is not warranted under the facts and circumstances of the case. 19. He further relied on another judgment reported in AIR 1953 SC 53 and submitted that Government even in case where some of the establishments which were parties to the conciliation, the Apex Court taking into consideration the interest of the individual establishment referred the dispute for adjudication on the observation that if such dispute had not actually arisen in any particular establishment, they could, having regard to their collective nature, well be apprehended as imminent in respect of that establishment also, the dispute could he referred even in respect of such establishment also. 20. 20. He further relied on another decision of the Apex Court reported in AIR 1963 SC 569 and submitted that the consideration of question of one of complicated nature, cannot be satisfactorily dealt with merely on affidavits which requires an adjudication and in such circumstances the Apex Court held that propriety or appropriateness of holding an enquiry in these proceedings is impermissible. He further relied on another decision of the Apex Court reported in 2005(6) SCC 725 interalia stating that when a specific remedy is provided, High Court should not deviate. 21. Relying on these decisions the learned Senior Counsel submitted that, if the existing conditions of policy of transfer is bad and not workable and harmful issue as regard to formation of transfer policy required to be gone into by the Industrial Tribunal which has the authority to interpret the settlement or create a fresh contract between the parties. It is in these circumstances, when a specific issue is raised with regard to transfer policy and issue having been referred to the Industrial Tribunal for adjudication and in the light of the decision of the Apex Court, when there are some questions which requires adjudication which cannot be gone into in the writ petition, it is too premature for this Court to invoke power under Article 226 to entertain the writ petition. He also relies on the terms of 8th Bipartite settlement and submitted that under Schedule-6 Clause XV and XVI, Banks which are parties to the settlement can have a settlement at Bank level regarding policy of transfer or deployment of workmen and it is in this regard, union has demanded formation of policy in the matter of transfer at Bank level. On these submissions, learned Counsel further submitted that, at this stage, interference would result in denial of adjudication on an important issue as regard to formation of transfer policy and submitted that writ petition is premature and further dispute involves issue of complicated character which may be required to be adjudicated based on the evidence and material. 22. In the light of the submissions made by both the parties the points that arise for consideration in this writ petition are: 1) What is the power of judicial review under order 226 of the Constitution as against order of reference? 22. In the light of the submissions made by both the parties the points that arise for consideration in this writ petition are: 1) What is the power of judicial review under order 226 of the Constitution as against order of reference? 2) Whether the dispute exists or apprehended to seek reference to the Industrial Tribunal for adjudication, regarding point No.1? 23. The facts which are not in dispute are that, the Bank is also a member of Indian Bank Association and respondent -Union is also member of all India Bank Employees Association. It is also not in dispute that there was a dispute and the matter was referred to Tribunal and award has been passed between the Indian Bank Association and all India Bank Employees association. It is the said Sastri Award, which still holds the field, Paras 533 to 536 of the said award relates to "Policy regarding Transfer". 24. Paragraphs - 535 and 536 of the said award read as under: "535. Policy regarding transfers is a constant source of friction between the Banks: and the workmen now organized into unions. The cry of victimization of office Leaders and "activists" (Oracle unions is raised wherever such transfers are mooted. We have found that such allegations are easily made but not so easily substantiated. Transfers are rendered necessary by the exigencies of administration. The proper view to take is that transfers are normal incidents of the working of a Bank and they must he left to the discretion of those who guide the policy of the Bank and manage its affairs. It is possible that the discretion may he abused and transfers effected on considerations other than the needs of administration. The percentage of transfers as show by the figures furnished by some of the Banks in the course of arguments leads us to the conclusion that the question of transfer, even as it is, affects only a very small number of persons. This is conceded by the workmen also. Still wherever an activist of the trade union movement, as yet in its formative starve and liable to he crippled easily is transferred a suspicion naturally arises that it is inspired by ulterior motive and the consequence thereof may be an industrial dispute. This is conceded by the workmen also. Still wherever an activist of the trade union movement, as yet in its formative starve and liable to he crippled easily is transferred a suspicion naturally arises that it is inspired by ulterior motive and the consequence thereof may be an industrial dispute. In order that such suspicions may he avoided as .far as possible we, adopting the Sen Award in this respect, give the following directions: Every registered Bank employees, -union, front time to time, shall furnish the Bank with the names of the President, Vice President and the Secretaries of the union. 2) Except in very special cases, whenever the transfer of any of the above mentioned office bearers is contemplated, at least five clear working days notice should be put up on the notice boards of the Bank of such contemplated action. 3) Any representations, written or oral, made by he union shall be considered by the Bank 4) If any order of transfer is ultimately made, a record shall be made by the Bank of such representations and the Bank's reasons for regarding them as inadequate; and 5) The decision shall be communicated to the union as well as to the employee concerned. 536. We direct that in general the policy should be to limit the transfers to the minimum consistent with Banking needs and efficiency. So far as the members of the subordinate establishment are concerned, there should be no transfers ordinarily and if there are any transfers at all they should not be beyond the language area of the person so transferred. We further direct that even in the case of workmen not belonging to the subordinate staff as far as possible there should be no transfer outside the State or the language areas in which an employee has been serving except of course, with his consent. In all cases the number of transfers to which a workman is subject should be strictly limited and normally it should not be more than once in a year We are unable to accept the demand that residential accommodation should be provided by the Bank at the new station. The demand for a special house allowance is also rejected". 25. In all cases the number of transfers to which a workman is subject should be strictly limited and normally it should not be more than once in a year We are unable to accept the demand that residential accommodation should be provided by the Bank at the new station. The demand for a special house allowance is also rejected". 25. In the light of the Sastri award in the matter of policy of transfer, there were several Bipartite settlements, the last one is 8th Bipartite settlement between the Indian Bank Association and All India Bank Employees Association and other Associations, on 2nd of June 2005. The terms of said settlement have been accepted in full satisfaction of the demands made by the unions. In so far as binding effect of the settlement at para 39(iii), it is stated as under: The AIBEA, NCBE, BEFI, INBEF AND NOBW on behalf of the workmen agree that during the operation of this settlement the workmen will not for any reason whatsoever; raise any demand of any nature whatsoever on any of the Banks in respect of matters, monetary or otherwise, covered by this Memorandum of Settlement" 26. This settlement is admittedly signed by all India Bank Employees Association and all other Bank associations. The terms of settlement would govern and bind the parties even after the settlement till it is terminated, by either of the parties giving to the other a statutory notice as prescribed under law for the time being in force. 27. It is also not in dispute that employees of the union have placed fresh charter of demands and the matter is under negotiation under 9th Bipartite settlement. It is also evident from the demands submitted by the Union on 29th October 2007 to the Chairman of Indian Banks Association, Mumbai. In the said charter of demands, one of the terms of demand is regard to deletion of para 522(1) of Sastri award and modification of paras 535 and 536 of the Sastri Award. 28. It is also evident from the demands submitted by the Union on 29th October 2007 to the Chairman of Indian Banks Association, Mumbai. In the said charter of demands, one of the terms of demand is regard to deletion of para 522(1) of Sastri award and modification of paras 535 and 536 of the Sastri Award. 28. Apart from the Sastri award and also Bipartite settlements, it cannot be disputed that the transfer of employee is a part of service condition and as such, order of transfer will not be interfered by the Court of law in exercise of its jurisdiction, unless the, Court fords that the order of transfer is either malafide or prohibited under the terms and conditions of service and in terms of Sastri Award, the Bank has right to transfer the employees and that right cannot be challenged unless it is shown that transfer is either malafide or is made with oblique motive and such questions arise in the individual case of transfer and not as a dispute which could be raised as a policy of transfer by Union. It is useful to refer to the decisions cited by the learner Senior Counsel appearing for the petitioner in the matter of Indian Telephone Industries Ltd. Vs Prof. P.N. Shetty (Supra) Where the Apex Court has observed as under: “The transfer of an employee in an establishment is generally related to efficiency and optimum utilization of personnel. The employer has a right to transfer an employee and this is an exclusive prerogative of the management. Employment being primarily a creature of contract the terms are modified only to the extent they are superseded by law, contract or award. The rights and obligations of the employer and employee in matters of transfer would, therefore, be governed by this position and unless the transfer changes the identity of employment or prejudices the employment conditions, the employer has always a right to transfer his employee. On proof of existence of malafides, the order of transfer can be challenged. The management is in a position to know where the workman is to be employed or how best he could be employed. The employer has the right to distribute manpower and whether a transfer can be avoided or not. The Courts do not ordinarily interfere in such matters. The management is in a position to know where the workman is to be employed or how best he could be employed. The employer has the right to distribute manpower and whether a transfer can be avoided or not. The Courts do not ordinarily interfere in such matters. An order of transfer can be challenged on the following grounds, viz, i) the transfer is in violation of the conditions of service or contract; (ii) it is actuated by malafides or actuated by sonic other ulterior motive not connected with the business interest of the management; and (iii) the transfer effects a change in the conditions of service by subjecting the employee to more onerous conditions." 29. From the above observations of the Apex Court in the matter of transfer policy, it is clear that, the transfer is incidental to service and it is prerogative of employer to transfer his employee for efficiency and optimum utilization of the personnel. The circumstances under which transfer could be interfered is also stated by the Apex Court. Even question as to the transfer with malafide intention arises only when individual transfer case is made. If the transfer is prerogative of employer and for efficiency of administrative reason and if the transfers are done without affecting the service conditions or changing the service conditions, ordinarily, Courts will not interfere in such transfer. With this background, it is useful to notice, as to what is the issue that is sought to be referred to the Industrial Tribunal for adjudication. 30. The Central Government by the impugned order has referred the following issue, which reads as under: ."Whether action of the management of Karur vysya Bank in denying the formulation of specific transfer policy sought by Karur vysya Bank Employees Union is fair and justified? If not, to what relief, the union is entitled?" 31. From the order of reference it is clear that, the Union wants an adjudication on the question of formulation of specific transfer policy. As observed earlier, transfer is an incidental to the service, and it is prerogative of the management, there cannot be any imposition of particular formula in the matter of transfer. However, insofar as the employees of the Banks are concerned, who are party to All India Bank Employees' Association and other employees of the Association, they have already entered into a settlement and they are bound by Sastri Award. However, insofar as the employees of the Banks are concerned, who are party to All India Bank Employees' Association and other employees of the Association, they have already entered into a settlement and they are bound by Sastri Award. As referred to earlier, Union has not only accepted the settlement, but has also declared that it is bound by the terms of the settlement and settlement would be in force till it is terminated or till the next settlement is arrived between the parties. When there is a binding settlement, can there be any other transfer policy other than what is agreed by the party? It is not the case of the Union that they are seeking to annul the settlement or the terms of the settlement. When the matter came up before the Conciliation Offices; the petitioner – Bank had filed a detailed reply placing reliance on Sastri Award and all the Bipartite Settlements and it is made clear that, the transfers are made in pursuance of the settlement arrived between the Union and the Bank. Even the reference claimed by the union also alleges that there is a breach of settlement. Bank has admitted that, settlement binds it, and it has adopted the transfer policy as per the settlement. 32. When the records and the materials were placed before the Government, Government without looking into it cannot mechanically refer the issue for adjudication without even prima facie considering as to whether the dispute exists or apprehended. In this regard, it is useful to refer some of the decisions as regard to the power of the Court to review of the order of reference. In a judgment reported in the matter of National Engineering Industries Ltd. (Supra), the Apex Court at para-26 has observed as under: "26. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended, appropriate Government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable …." Existence of dispute or apprehension of a dispute is paramount consideration for seeking reference of the same to the industrial adjudication. If there is a settlement between the parties and which is binding and if it is not covered with any fraud, misrepresentation, concealment, then, as observed by the Apex Court, the industrial dispute does not exist. Annexure-A produced by the petitioner wherein the respondent – Union has sought to raise a dispute categorically states that, there are eight Bipartite Settlements between the Union and the Bank Association. It is not the case of the union that, the settlement is by fraud, concealment, misrepresentation or not bona fide. No adjudication is sought against the fairness of the settlement, but it is in furtherance of the settlement. In response to the demand made by the union before the Conciliation Officer, Bank has also filed its reply and it admits that there are eight settlements and settlements are binding on the Bank. No adjudication is sought against the fairness of the settlement, but it is in furtherance of the settlement. In response to the demand made by the union before the Conciliation Officer, Bank has also filed its reply and it admits that there are eight settlements and settlements are binding on the Bank. In such a situation, when both the parties are not either questioning or denying the settlement and both the parties do admit that there is a settlement even in the matter of policy of transfer, in my opinion, as long as the settlement is in existence and is binding between the parties and more so when it is a settlement by the Union before the Conciliation Officer, it would not only bind the persons, but also all the workmen, whether they are members of the union. Such a binding settlement having been in existence, there is no reason for the Union to seek reference of dispute, which is not even in existence. In the light of the settlement and in the light of the Sastri Award, it cannot even be apprehended that there is any dispute. 33. No doubt, this Court is slow in exercise of discretionary power under Article 226 of the Constitution of India in the matter of interference with the reference order. However, if the court finds that there exists no dispute, there is no reason to refer the dispute for industrial adjudication, which will ultimately result in futile exercise. It is also settled law that, Government though it is exercising its administrative power, it cannot casually or mechanically refer the dispute just because the Conciliation Officer has submitted a failure report. In this regard, it is also useful to refer to the decision of the Apex Court in the case of Steel Authority of India Ltd. (Supra), at para-35, the Apex Court has observed as under: “There is another aspect of the matter which should also not be lost sight of. For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a Notification under Section 10(1) (d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of Section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to a Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a Notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management." The above observation clearly show that, the reference by the State is not automatic and without application of mind. The Government prima facie must find out whether dispute really exists between the parties or not. 34. Learned Senior Counsel appearing for the respondent — Union in this regard had relied on a decision in the matter of U.P. State Spinning Co. Ltd. Vs R.S. Pandey and Another (2005) 8 SCC 264 interalia pointing out that, there must be strong circumstances to interfere with the order of reference. Strong circumstances understood to mean that, there must be a dispute or dispute is contemplated. No doubt, Industrial Tribunal has jurisdiction to adjudicate the issue not only referred to it, but also incidental issue, which may arise. It has also power to create a contract. Nevertheless in cases where dispute is not even apprehended, it is not automatic to refer the dispute to the adjudication. The decision in the matter of U.P. State Spinning Co. Ltd. (Supra) does not exclude the jurisdiction of the High Court from interfering with the order of reference. It has also power to create a contract. Nevertheless in cases where dispute is not even apprehended, it is not automatic to refer the dispute to the adjudication. The decision in the matter of U.P. State Spinning Co. Ltd. (Supra) does not exclude the jurisdiction of the High Court from interfering with the order of reference. All that it states is that, there must be a strong case made out for making a departure from normal rule of not interfering. No doubt, it is true that, court exercising writ jurisdiction should not entertain a writ petition unless exceptional circumstance is made out such as, even if reference is made, it would be a futile exercise, as the issue referred does not show existence of dispute. This is also clear from another decision of the Apex Court relied by the learned Senior Counsel for respondent No.3 in the matter of Management of Express Newspapers (Pvt) Ltd. Madras Vs The Workers and Others AIR 1963 SC 569 wherein, at paragraphs-10 and 11, the Apex Court has observed as under: “10. The true legal position in regard to the jurisdiction of the High Court to entertain the appellant's petition even at the initial stage of the proceedings proposed to be taken before the Industrial Tribunal, is not in dispute. If the action taken by the appellant is not a lockout but is a closure, bona fide and genuine, the dispute which the respondents may raise in respect of such a closure is not an industrial dispute at all. On the other hand, if in fact and in substance, it is a lockout, but the said action has adopted the disguise of a closure, and a dispute is raised in respect of such an action, it would be an industrial dispute which industrial adjudication is competent to deal with. The appellant contends that what it has done is a closure and so, the dispute in respect of it cannot be validly referred for adjudication by an Industrial Tribunal. There is no doubt that in law the appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an industrial dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed enquiry. There is no doubt that in law the appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an industrial dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed enquiry. (11) There is also no doubt that the proceedings before the Industrial Tribunal are in the nature of quasi-judicial proceedings and in respect of them a writ of certiorari can issue in a proper case. If the Industrial Tribunal proceeds to assume jurisdiction over a nonindustrial dispute, that can be successfully challenged before the High Court by a petition for an appropriate writ, and the power of the High Court to issue an appropriate writ in that behalf cannot be questioned." (underlining by me) 35. It is clear from the observation of the Apex Court that, an at, exercise of power under Article 226 against a reference or at the initial stage even before adjudication, is not barred and the Government equally is required to consider the existence of bona fide dispute before it could make a reference order. 36. When the facts are clear and the materials were available before the Government, such as, settlement and the Sastri Award and the contentions of the parties, there was hardly any reason for the Central Government to search for any other reason and what appears from the order is that, the Government has mechanically referred the dispute to the Industrial Tribunal for adjudication. In my opinion, in the light of the facts and the material available before the Government, the dispute did not exist at all nor even it is apprehended as parties are not at dispute in the matter of transfer policy already in existence, as per the settlement between the Union and the Bank, which is also binding on both the parties. 1. 37. 1. 37. Insofar as the transfer aspect is concerned, the Apex Court in a decision reported in the matter of Canara Banking Corporation Ltd. (Supra), while referring to the Sastri Award has observed that: “….the right of the Bank to distribute its workmen not belonging to the subordinate staff to the best advantage, even though this may involve transfers outside the State or the language area in which a particular workman had been serving, was left unimpaired by the Sastri award, except that such transfers have to be avoided, if they can be avoided without sacrificing the interests of the Bank. The management of the Bank is in the best position to judge how to distribute its manpower -and whether a particular transfer can be avoided or not. It is not possible for industrial tribunals to have before them all the materials which are relevant for this purpose and even if these could be made available, the tribunals are by no means suited for making decisions in matters of this nature. That is why it would ordinarily be proper for industrial adjudication to accept as correct any submission by the management of the Bank that an impugned transfer has been made only because it was found unavoidable. The one exception to this statement is where, there is reason to believe that the management of the Bank resorted to the transfer mala fide, by way of victimization, unfair labour practice or some other ulterior motive, not connected with the business interests of the Bank." (underlining by me) This observation of the Supreme Court particularly in the matter of transfer of Bank employee referring to Sastri award clearly indicates that, it is the Bank, which is in best position to judge what is suitable and what is not suitable and how to use its man-power for the advantage of its business. Only in exceptional cases of unfair labour practice, victimization, mala fide intention or ulterior motive, in individual case, it could be considered by the Industrial Tribunal for adjudication, as otherwise, it is a prerogative of the Bank to transfer its employees even beyond the language area or outside the State, not as a routine, but taking into consideration the circumstances warranting for the same. This is also the view of the Supreme Court in another judgment reported in the matter of Indian Telephone Industries Ltd. (Supra) wherein in the matter of transfer, the Apex Court has observed that: "The transfer of an employee in an establishment is generally related to efficiency and optimum utilisation of personnel. The employer has a right to transfer an employee and this is an exclusive prerogative of the management. Employment being primarily a creature of contract the terms are modified only to the extent they are superseded by law Contract or award. The right and obligations of the employer and employee in matters of transfer would, therefore, be governed by this position and unless the transfer changes the identity of employment or prejudices the employment conditions, the employer has always a right to transfer his employee. On proof of existence of mala fides, the order of transfer can be challenged." (underlining by me) 38. The consistent view of the Apex Court in the matter of transfer is that, it is the prerogative of an employer to transfer its employee for efficiency and optimum utilisation of personnel. Ultimately, employer is interested in the well-being of the industry and for the benefit of the same, he is in best position to judge, who is suited to what place. As long as there is no mala fide intention or oblique motive, the transfers are not interfered by the court, even if it is a matter of industrial adjudication, in case transfer is made, it is not automatic that, the industrial dispute exists. In this case, the Union is not at all alleging that the policy agreed under the settlement between the Bank Association and the Union is either mala fide or done with oblique motive. If the policy is already in existence and is accepted by the Union, same is binding on the workmen. When there is policy in the matter of transfer, there is no question of any issue which requires adjudication in the matter of transfer policy. Hence, seeking formulation of transfer policy does not arise. Allowing the Industrial Tribunal to adjudicate the said issue would be futile exercise, particularly when the transfer is a prerogative of an employer subject to certain exceptions and it is not for the Court to interfere with such matters. Hence, seeking formulation of transfer policy does not arise. Allowing the Industrial Tribunal to adjudicate the said issue would be futile exercise, particularly when the transfer is a prerogative of an employer subject to certain exceptions and it is not for the Court to interfere with such matters. In view of the above, there is no industrial dispute existed nor apprehended nor Union can impose any policy of transfer, particularly when there is already settlement. As such, the reference is hopelessly bad and the Central Government unfortunately has not even looked into the claim and the reply given by the Management. As such, writ petition is required to be allowed. Accordingly, the Writ Petition is allowed. The order dated 31st August 2007 passed by the Government of India, Ministry of Labour, New Delhi is quashed.