Judgment : M.S. Sonak, J. 1. Rule. Rule is made returnable with the consent of all the parties forthwith. 2. The petitioner challenges the order of reference dated 19th September, 2012, made under the Industrial Disputes Act, 1947 (hereinafter referred to as 'said Act') by the Union (respondent No.1) at the behest of Bharatiya Kamgar Sena (respondent No.2), referring the following dispute for adjudication to the Central Government Industrial Tribunal-cum-Labour Court No.1, Mumbai (respondent No.3) The Schedule “Whether the demand of Shri. Babu Atmaram Kamtekar and 119 other (List Enclosed), terminated workmen of M/s. George Maintenance Services Pvt. Ltd., engaged in different branches of ICICI Bank through the Contractor M/s. George maintenance Services Pvt. Ltd., for grant of permanency status in the services of ICICI Bank together with consequential benefits is legal and justified ? To what relief the workmen are entitled?” 3. The Maharashtra Navnirman Kamgar Sena (MNKS), a trade union raised a dispute in relation to one Babu Atmaram Kamtekar and 119 employees, alleging that they have been discharging works, which are of permanent nature and that the contracts by which they have been shown as contract workers are sham, bogus and a camouflage to deprive the employees' benefits of permanency in the employment of the petitioner bank. A communication dated 5th November, 2008 was addressed to the Asst. Labour Commissioner (Central) in that regard. 4. The proceedings were admitted in conciliation and the petitioner as well as M/s. George Maintenance Services Pvt. Ltd., the alleged contractor submitted their response/version. The persons on whose behalf the communication dated 05.11.2008 was addressed thereafter joined respondent no. 2 union, which union then applied for and substituted itself in place of MNKS in the conciliation proceedings. 5. The conciliation ended in failure and the Conciliation Officer and the Asst. Labour Commissioner (Central)-I, Mumbai submitted a failure report No.ALC (C)-1/8(39)/2008 dated 7th December, 2009 to the appropriate Government under the provisions of Section 12(4) of the said Act 6. 2 union, which union then applied for and substituted itself in place of MNKS in the conciliation proceedings. 5. The conciliation ended in failure and the Conciliation Officer and the Asst. Labour Commissioner (Central)-I, Mumbai submitted a failure report No.ALC (C)-1/8(39)/2008 dated 7th December, 2009 to the appropriate Government under the provisions of Section 12(4) of the said Act 6. Respondent No.1, which is the appropriate Government, vide communication dated 14th September 2010, declined the reference under section 10 of the said Act, citing following reasons:- “I am directed to refer to the Failure of Conciliation Report No.ALC (C)-1/8(39)/2008 dated 07/12/2009 from the ALC (MUMBAI) received in this Ministry on 22/01/2010 on the above mentioned subject and to say that prima facie this Ministry does not consider this dispute fit for adjudication for the following reasons: “As there is no employer and employees relationship, hence the dispute is not found fit for reference for adjudication”. 7. Respondent No.2 Union preferred Writ Petition (L) No.2701 of 2010, impugning the communication dated 14th September, 2010, by which the appropriate Government declined to made reference. The Petition was disposed of by the Division Bench of this Court by judgment and order dated 18th August, 2011, quashing and setting aside the communication dated 14th September, 2010 and directing the appropriate Government to reconsider the failure report dated 7th December, 2009 and pass a fresh order as per law as expeditiously as possible and preferably before 31st October, 2011. In paragraphs 8' and 9' of the said judgment, the Division Bench of this Court observed as follows: “8. It is well settled that the employer – employee relationship is a mixed question of facts and law, which needs to be decided by adjudication before the Industrial Tribunal/Labour Court on a reference being made and it is not permissible for the competent authority under the Industrial Disputes Act to adjudicate upon the same while passing an administrative order on the conciliation failure report. Making a reference is an administrative decision and the competent authority has no powers to decline to make a reference for the reasons which are required to be adjudicated by adducing evidence before the Tribunal/Court. We have no doubt in our mind that the Labour Ministry exceeded its powers in rejecting to make the reference for the reasons stated in the impugned order. We have no doubt in our mind that the Labour Ministry exceeded its powers in rejecting to make the reference for the reasons stated in the impugned order. The reason given has amounted to an adjudication of the employer – employee relationship, which power is not available with the referring authority. Hence, the reason for declining to make the reference is unsustainable.” (emphasis supplied) 9. In the case of Sarva Shramik Sangh (Supra), the Supreme Court, after referring to a host of its earlier judgments stated in para 37 as under:- “37. Thus it can safely be concluded that a writ of mandamus would be issued to the appropriate Government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate Government examining the merits of the dispute and prejudging/adjudicating/determining the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the Failure Report of the Conciliation Officer or is not supported by any reason.” In the instant case, the refusal is a result of appropriate Government examining the merits of the dispute and prejudging/adjudicating/determining the dispute and, therefore, the impugned order is required to be set aside. 8. The appropriate Government, upon reconsideration of the matter made order dated 31st October, 2011 referring the following dispute for adjudication to the Tribunal. The Schedule “Whether the demand of Shri. Babu Atmaram Kamtekar & 119 others (List Enclosed) for granting the status and benefits of permanency to them by the management of ICICI Bank Ltd. is legal and justified ? To what relief the workmen are entitled?” 9. The petitioner, thereupon preferred Writ Petition (L) No.235 of 2012 before this Court, impugning the order dated 31st October, 2011. By order dated 8th February, 2012, the Division bench of this Court by consent of the parties set aside the order of reference dated 31st October, 2011 and respondent No.1 was directed to pass a fresh order in terms of directions issued by this Court by its order dated 18th August, 2011 passed in Writ Petition (L) No.2701 of 2010 as expeditiously as possible, in any case within a period of eight weeks from the date on which the writ of the order is served upon respondent No.1. 10. 10. Respondent No.1, thereupon has passed the impugned order dated 19th October, 2012, making a reference in the terms referred earlier to respondent No.3. 11. The petitioner under the provisions of Right to Information Act, applied information with regard to the material on basis of which the impugned reference order came to be made. The notings in this regard came to be supplied to the petitioner. 12. Mr. Cama, the learned senior advocate appearing for the petitioner, in the first place submitted that the impugned reference order is in breach of directions contained in judgment and order dated 18th August, 2011 passed by this Court in Writ Petition (L) No.2701 of 2010, inasmuch as no reasons have been given for making reference and that there is no reconsideration of failure Report dated 7th December, 2009. Secondly, he submitted that the Failure Report clearly brings out that the persons deployed by the Contractor were already terminated by the contractor and therefore even as per the Failure Report, no industrial dispute existed as on the date of Failure Report. Finally, he submitted that the impugned reference order has been passed without application of mind to the various objection raised by the petitioner including the objections of non-existence of any industrial dispute. 13. It is settled position in law that the appropriate Government in making a reference exercises administrative functions and not adjudicatory functions. This Court, in relation to this very issue, in the judgment and order dated 18th August, 2011 passed in Writ Petition (L) No.2701 of 2010, has held that it is not permissible for the appropriate Government to adjudicate upon contentious issue or to decline making a reference for the reasons, which are required to be adjudicated by adducing evidence before the Tribunal/Court. The order of appropriate Government declining to make a reference, on the ground that there existed no 'employee-employer relationship' was held to be unsustainable and amounting to prejudging/adjudicating/determining the dispute between the parties. 14. A perusal of the terms of impugned reference indicates that there has been application of mind on the part of the appropriate Government. The dispute raised by respondent No.2 Union and the defence of the petitioner is substantially reflected in the terms of reference. 14. A perusal of the terms of impugned reference indicates that there has been application of mind on the part of the appropriate Government. The dispute raised by respondent No.2 Union and the defence of the petitioner is substantially reflected in the terms of reference. The judgment and order dated 18th August, 2011 passed by this Court did not direct the appropriate Government to give reasons in the order of reference, but the direction was for reconsideration of Failure Report and to pass fresh order as per law. In the circumstances, it cannot be said that the impugned reference order is in breach of the directions contained in the judgment and order dated 18.08.2011 or that there is no reconsideration of the failure report dated 07.12.2009. 15. The contention that the contractor had already terminated the services of the persons deployed by him as on the date of submission of the failure report and therefore no industrial dispute existed as on the said date is nothing but another shade of the contention that there is no “employee employer relationship”. This Court in its judgment and order dated 18.08.2011 in the case of Bharatiya Kamgar Sena vs. Union of India & Ors. [Writ Petition (L) No. 2701 of 2010] has already held that such an issue can be adjudicated by adducing evidence before the Tribunal / Court and that such a contention could not have been taken into consideration by the appropriate government at the stage of making reference. 16. Taking into consideration the difference in phraseology employed by the appropriate government whilst making reference order dated 31.10.2011 and impugned reference order dated 19.10.2012, it cannot be said that there is no application of mind or failure to take into account relevant and germane considerations. The impugned reference order substantially reflects the points of dispute and on the basis of the same, the parties shall have full opportunity to obtain an adjudication from the Industrial Tribunal. Even otherwise terms of reference should be liberally construed and reference should not be rendered incompetent by construing it technically or in a pedantic manner. The impugned reference order substantially reflects the points of dispute and on the basis of the same, the parties shall have full opportunity to obtain an adjudication from the Industrial Tribunal. Even otherwise terms of reference should be liberally construed and reference should not be rendered incompetent by construing it technically or in a pedantic manner. The Supreme Court, in the case of Delhi Cloth and General Mills Company, Ltd. v. The Workmen, 1967-I-LLJ-423, observed that (P.431) “In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else. Under Section 10(4) of the Act it is not competent to the Tribunal to entertain such a question”. 17. Perusal of the communication dated 05.11.2008, on the basis of which the conciliation proceedings commenced makes it clear that it was the case of the union that the contracts by which employees came to be engaged were sham, bogus and a mere camouflage to deprive the workmen of their rights and benefits of permanency. The petitioners have obviously resisted such an allegation. A petition under Article 226 or 227 of the Constitution of India is hardly the occasion to determine merits and demerits of the respective contentions of the parties, particularly when adjudication after adducing evidence would be necessary for resolving such contentious issues. The appropriate government in the matter of making a reference under the said Act is also not exercising any adjudicatory functions. Therefore, if the appropriate government is prima facie satisfied as to the existence or apprehension of an industrial dispute, then it would be well within its rights to make a reference under the said Act. The appropriate government in the matter of making a reference under the said Act is also not exercising any adjudicatory functions. Therefore, if the appropriate government is prima facie satisfied as to the existence or apprehension of an industrial dispute, then it would be well within its rights to make a reference under the said Act. As observed by the Supreme Court in the case of Harnam Singh & Others vs. Punjab State Electricity Board & Ors. (2001) 10 Supreme Court Cases 526, the scope of investigation in a matter where reference order itself is challenged before the High Court is very limited and the High Court is not expected to examine such matters, as if sitting in appeal on the reference made. 18. In the circumstances, the petition fails and is hereby dismissed. There shall however be no order as to costs. 19. The application for stay of this order for six weeks is rejected as, in any event, the proceedings are not likely to commence for that period inter alia on account of the fact that the petitioners are still to file their reply to the statement of claim.