JUDGMENT 1. - Instant writ petition has been filed by the petitioner-workman assailing the order of the appropriate Government dated 16/12/2002 whereby the industrial dispute raised by the petitioner-workman has been declined to be referred for adjudication before the Tribunal on the premise that there was a prima-facie material on record that the petitioner-workman did not participate in the enquiry proceedings conducted providing him opportunity of making submissions in the matter. 2. The petitioner-workman, as alleged in the petition, was engaged on 01/07/1983 on the post of Munshi. He proceeded on leave from 11/09/2001 to 13/09/2001 and thereafter he sent leave extension applications but verbally it was informed that he has been retrenched from service. 3. However, on application being filed by him before the Conciliation Officer, the respondents filed their reply in which same plea, as taken here before the Court in the reply to the writ petition, had been taken and it was averred that after holding enqiry the petitioner was found guilty and punished with the penalty of removal from service. The enquiry proceedings have also been placed on record by the respondents to justify that after holding disciplinary action, the petitioner has been removed from service. 4. After the failure report was submitted by the Conciliation Officer, the appropriate Government after examining the record of Conciliation Officer, declined to make reference in exercise of powers under Section 12(5) of the Industrial Disputes Act, 1947 vide order dated 16/12/2002 and observed that 'the workman did not participating in the enquiry proceedings conducted to give him an opportunity of hearing his submissions in the matter'. 5. Counsel for petitioner submits that the opinion based on domestic inquiry expressed by the appropriate Government is beyond the scope of Section 12(5) of the Act, 1947. 6. Counsel for respondents, on the other hand, submits that the opinion, which has been expressed by the appropriate Government, is based on material which came on record and if the petitioner had failed to participate in the enquiry proceedings despite opportunity of hearing being afforded to him, no fruitful purpose was going to serve in raising the industrial dispute for adjudication and the appropriate Government has rightly declined to make reference under Section 12(5) of the Act, 1947. In support of the submissions, counsel for respondents has placed reliance upon a judgment reported in AIR 2000 SC 915 . 7. In support of the submissions, counsel for respondents has placed reliance upon a judgment reported in AIR 2000 SC 915 . 7. I have heard counsel for the parties and with their assistance examined the material on record. 8. It is settled that the order of the appropriate Government under Section 12(5) of the Act, 1947 referring or refusing to refer a dispute for adjudication is an administrative order and it is also equally settled that the courts, under limited scope of judicial review, are not supposed to sit in appeal over the order of the appropriate Government passed under Section 12(5) of the Act but at the same time, the appropriate Government, while examining a dispute raised, is supposed to prima-facie examine as to whether any industrial dispute subsist which requires adjudication and so far as merit of the industrial dispute is concerned, it is always to be examined after affording opportunity of hearing to the respective parties by the adjudicatory mechanism provided under the Act i.e. Industrial Court or the Tribunal, as the case may be. 9. In the instant case, the appropriate Government, while declining to make reference, recorded a finding on merits of the industrial dispute which, in the opinion of this Court, is nothing but exceeding the powers available with the appropriate Government under Section 12(5) of the Act, 1947 and what has been observed by the appropriate Government while declining to make reference is for the adjudicatory authority provided under the Act to examine whether adequate opportunity was afforded to the workman during the course of enquiry initiated against him which was made a basis for passing the order of removal from service. 10. The judgment, on which counsel for the respondents has placed reliance, is of no assistance in the facts of the instant case and the Hon'ble Supreme Court took note of the fact that while making reference U/s 10-A of the Act, 1947, the appropriate Government has to form an opinion as to whether an employee is workman and any industrial dispute exists or apprehended which requires adjudication. It is not a case of the respondents that the dispute raised by the petitioner workman is not an industrial dispute but it has been declined on the premise that since adequate opportunity was afforded to him, the reference is not required to be made in the facts of the instant case, which, in the opinion of this Court, is not in conformity with section 12(5) of the Act, 1947. 11. Consequently, the writ petition succeeds and is allowed. The order dated 16/12/2002 (Anx.2) passed by the appropriate Government is hereby quashed & set aside and the respondent No.1 is directed to make a reference of the industrial dispute raised by the petitioner to the authority competent for adjudication within three months of the certified copy of this order being served. No costs.Writ Petition Allowed. *******