Judgment N.V. Anjaria, J. 1. Rule. Learned Assistant Government Pleader Mr. N.J. Shah waives service of notice of Rule on behalf of respondent-State. Upon request and with consent of learned advocates for the parties, the petition is taken up for final consideration today itself making Rule returnable forthwith. Notice when issued, was also for final disposal. The present writ petition is directed against order dated 15th June, 2013 passed by Deputy Commissioner of Labour-appropriate Government whereby he refused to make Reference, exercising powers under section 10 of the Industrial Disputes Act, 1947. It appears that the petition-Union raised an industrial dispute in respect of granting higher grade and to pay the arrears amount because of not granting benefit of higher grade from a particular year. It appears that failure report under section 12(4) by the Conciliation Officer was sent to the appropriate Government. The reasons supplied by the appropriate Government for refusing to make Reference in the impugned order are two folds. Firstly, it is stated that the workman retired on 30th June, 2010 and the demand is made after two-years-five-months. Second reason given was that after retirement relationship of employer-employee ended, therefore, the demand to make Reference was rejected. 2. Learned advocate Ms. Reena Kamani for learned advocate Mr. P.H. Pathak submitted that in rejecting Reference, appropriate Government has exceeded its jurisdiction. She relied on decision of the Apex Court in TELCO Convoy Drivers Mazdoor Singh v. State of Bihar 1989(59) FLR 734 (SC), to submit that the function of making Reference under section 10(1) is administrative in nature and while considering the question whether Reference should be made or not, the appropriate Government cannot delve into the merits of the dispute. On the other hand, learned Assistant Government Pleader submitted that reasons given could not be said to be not germane. He submitted that delay could be a ground for refusing Reference. 3. The function of the appropriate Government while exercising power under section 10 of the Industrial Disputes Act, 1947 regarding making a Reference, is an administrative function. The powers in this regard are neither judicial nor quasi judicial in nature. It is true that in considering the question whether Reference under section 10(1) of the Act is required to be made or not, the Government is entitled to form its opinion on the aspect whether an Industrial Dispute "exists or is apprehended". The powers in this regard are neither judicial nor quasi judicial in nature. It is true that in considering the question whether Reference under section 10(1) of the Act is required to be made or not, the Government is entitled to form its opinion on the aspect whether an Industrial Dispute "exists or is apprehended". However, it is always emphasised that the formation of opinion as to whether industrial dispute exists or is apprehended, is not the same as to adjudicate the dispute itself. This principle is well settled right from the decision of the Apex Court in TELCO Convoy Drivers Mazdoor Singh (supra). In that case, the dispute was whether the convoy drivers were the employees or workmen of TELCO and whether there was relationship of employer and employee between the TELCO and Convoy drivers. In considering the question whether the Reference should be made or not, the competent authority held in that case that the Convoy drivers were not the workmen. On such reasoning, it refused to make Reference. What was held by the Supreme Court may be pertinently noted.- "While exercising power under section 10(1) 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. It is true that in considering the question of making a reference under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended". But 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. Where, as in the instant case, the dispute was 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. The order of the Govt. refusing to refer the dispute on ground that the persons raising the dispute are not workmen is liable to be set aside. As the Govt. had persistently declined to make a reference under section 10(1) the Supreme Court directed the Govt. The order of the Govt. refusing to refer the dispute on ground that the persons raising the dispute are not workmen is liable to be set aside. As the Govt. had persistently declined to make a reference under section 10(1) the Supreme Court directed the Govt. to make a reference." The above dictum of law was reiterated in Sultan Singh v. State of Haryana 1996 (73) FLR 955 (SC), and Indian Tea Assn. v. Ajit Kumar Barat, (2000) 3 SCC 93 In a more recent decision, in Sarva Shramik Sangh v. Indian Oil Corpn. Ltd. 2009 (121) FLR 908 (SC), the Apex Court relied on the decision of TELCO Convoy Drivers Mazdoor Singh (supra) and reiterated the principle as under: "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." 4. In light of the above principles and parameters relating to exercise of powers under section 10 for making Reference, the impugned order cannot sustain. It may be true that demand was raised after two years, but that by itself is not a ground to reject Reference. It by itself amounted to interposing on an aspect of merit which is not the function of the authority acting under section 10 of the Act, 1947. Second reason that relationship of employer-employee got snapped is not only irrelevant, but it again was consideration considering the nature; of merits. Merely because the employee-workman had retired, his demand for making Reference to give him higher grade on the basis of length of service could not be rejected. The grounds put-forth by the authority for rejecting Reference were not administrative grounds which could be upheld. In the circumstances, respondent No. 1 was not justified in law in rejecting Reference. 5. It is evident from bare reading of the aforesaid order that reasons supplied amount to travelling into merits by the authority. It has acted as adjudicator in giving aforesaid reasons. In the circumstances, respondent No. 1 was not justified in law in rejecting Reference. 5. It is evident from bare reading of the aforesaid order that reasons supplied amount to travelling into merits by the authority. It has acted as adjudicator in giving aforesaid reasons. This was none of the functions of the authority in arriving at his decision whether Reference was required to be made or not. Its role was limited to see whether an industrial dispute existed or is apprehended between the parties. In considering the question, the authority has transcended its powers and jurisdiction by entering into adjudicatory area. The impugned order dated 15th June, 2013 passed by Deputy Commissioner of Labour is required to be quashed and set aside and is hereby set aside. The petition is allowed. Rule is made absolute. Petition allowed.