JUDGMENT Devendra Kumar Upadhyaya, J. – The petitioner is a Trade Union registered under the Trade Union Act on 19.11.2004 having its Registration No.9258. The members of the petitioner-Union consist of the workers working in the Campus of National Bankers Staff College-respondent no.3 (hereinafter referred to as 'NBSC'), which is an Institute of respondent no.2-National Bank for Agriculture and Rural Development (hereinafter referred to as 'NABARD') and the workmen working in the Bankers Institute of Rural Development, Lucknow (hereinafter referred to as 'BIRD'). 2. By instituting these proceedings under Article 226 of the Constitution of India, the petitioner-Union has challenged the order dated 12.02.2009, passed by the Government of India, Ministry of Labour, New Delhi, whereby the Ministry has not found the dispute fit for adjudication by Labour Court/Industrial Tribunal and has, thus, refused to refer the same under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). 3. The petitioner has also challenged the communication dated 03.08.2009, addressed to the Secretary, Hind Mazdoor Sabha, New Delhi reiterating its earlier decision communicated by the Labour Ministry's letter dated 12.02.2009. 4. Heard Shri. Virendra Misra, learned counsel for the petitioner, Shri. K.S. Pawar, learned counsel for respondent no.1 and Dr. Ashok Nigam, learned Senior Advocate, assisted by Shri. Neerav Chitravanshi, representing respondent nos. 2, 3 and 4 and perused the record. 5. Respondent no.2-National Bank for Agriculture and Rural Development is a statutory body created under a Parliamentary Legislation known as National Bank of Agriculture and Rural Development Act 1981. Respondent no.3-National Bankers Staff College is an Institute/College of National Bank for Agriculture and Rural Development. Respondent no.4-Bankers Institute of Rural Development is an organisation which has been promoted and is being funded by NABARD, which is further said to function under the guidance and support of NABARD. The BIRD is said to be registered as a society under the Societies Registration Act. It has also been averred by the petitioner that Chairman and Managing Director of NABARD are the Chairman and Vice-Chairman of the governing counsel of BIRD and further that grants received from NABARD is the major source of funding the BIRD. 6. The BIRD is said to be registered as a society under the Societies Registration Act. It has also been averred by the petitioner that Chairman and Managing Director of NABARD are the Chairman and Vice-Chairman of the governing counsel of BIRD and further that grants received from NABARD is the major source of funding the BIRD. 6. By the impugned decision, the Ministry of Labour, Government of India has refused to refer the dispute stating two reasons; (i) that the management has taken the requisite certificate under the Contract Labour (Regulation & Abolition) Act, 1970 and (ii) that the petitioner-Union has failed to prove employer-employee relationship between the management and the Workman. 7. Primary submission of the learned counsel appearing for the petitioner impeaching the impugned decision of the Government of India is that while considering the issue as to whether dispute should be referred to or not, the appropriate Government exercises only administrative powers and it is not vested with any jurisdiction to adjudicate the issue on merits which lies in the exclusive realm of judicial or quasi judicial authority. It has further been contended by the learned counsel for the petitioner that it was not open to the Ministry of Labour while considering the matter to have adjudicated on the genuineness of the certificate of registration said to have been issued under the Contract Labour (Regulation & Abolition) Act, 1970 keeping in view the fact that it is the categorical case of the petitioner that the said certificate is a forged and fabricated document. 8. Per contra, learned counsel appearing for the Union of India and Dr. Ashok Nigam, learned Senior Advocate, representing the respondent nos.2, 3 and 4 have submitted that the impugned decision does not suffer from any illegality or irregularity so as to call for any interference by this Court in the instant proceedings. It has further been submitted by Shri. Nigam that before referring a dispute to the Labour Court/Tribunal, appropriate Government is mandated to form an opinion as to whether any industrial dispute exists or is apprehended and since in the instant case, Union of India has formed the opinion that no such industrial dispute exists, hence, no fault can be found with the impugned decision taken by the Ministry of Labour. 9. I have considered the competing arguments made by the learned counsel representing the respective parties. 10. 9. I have considered the competing arguments made by the learned counsel representing the respective parties. 10. As observed above, two reasons have been assigned by the respondent no.1 while refusing to refer the dispute. The first reason is that the management has taken certificate of registration under the provisions of Contract Labour (Regulation & Abolition) Act, 1970 read with Rules framed thereunder. The second reason assigned is that petitioner-Union has failed to prove employer-employee relationship between the management and the workman. Citing these two reason, the respondent no.1 has taken a decision not to refer the dispute giving a finding that such a dispute raised is not maintainable. 11. It is appears that the petitioner-Union made a complaint before the Deputy Labour Commissioner, Lucknow under the U.P Industrial Disputes Act, 1947 stating therein that in the establishment of the management of the respondents merely 250 workmen are engaged in the work relating to security, gardening, sweeping, running a canteen and electrical works and further that these workmen were working for several years, however, their services have not been regularised and they were being treated as contract labourers. It was further submitted in the complaint that respondents no.2 to 4 have not got themselves registered as the principal employer, neither any of the contractor has obtained licence to engage labourers on contract as per the provisions contained in the Contract Labour (Regulation & Abolition) Act, 1970. On the said complaint, notices were issued and the complaint was contested on behalf of the respondents on the ground that since appropriate Government in the case at hand is the Central Government hence, the proceedings under the State Act are not maintainable and they should, thus, be closed. 12. It has been submitted by the learned counsel for the petitioner that during the said proceedings the Assistant Labour Commissioner, who is said to have been conducting conciliation proceedings had advised the employer neither to terminate the services of the workmen nor to change the terms and conditions of service which would be in the interest of industrial peace. It appears that during pendency of the conciliation proceedings before the Conciliation Officer under the State Act, certain workmen were disengaged without notice or written order and without payment of requisite wages. A list containing names of such workmen has been annexed as annexure no.4 to the writ petition. It appears that during pendency of the conciliation proceedings before the Conciliation Officer under the State Act, certain workmen were disengaged without notice or written order and without payment of requisite wages. A list containing names of such workmen has been annexed as annexure no.4 to the writ petition. It has further been averred that in violation of provisions contained in Section 33(1) of the Industrial Tribunal Act, 1947 and Section 6(e) of U.P. Industrial Disputes Act, services of the workmen were dispensed with which led the petitioner-Union to file a writ petition before this Court, namely, Writ Petition No.2534(M/S) of 2005 which was finally disposed of by this Court on 10.03.2008 with the direction to respondent no.16 therein-Regional Labour Commissioner (Central), Kanpur to consider and decide the conciliation proceedings expeditiously, say by 30.06.2008. It has further been averred by the petitioner that during the pendency of the proceedings before the Regional Labour Commissioner (Central), Kanpur and Writ Petition No.2534 (M/S) of 2005, services of 72 workmen were terminated unlawfully and arbitrarily. In pursuance of the direction issued by this Court in its order dated 10.03.2008 the matter appears to have been considered by the Regional Labour Commissioner (Central), who tried to conciliate the matter, however, the matter could not be settled and the same ended into failure of conciliation proceedings. The report to the said effect was sent by the Regional Labour Commissioner (Central), Kanpur to the Government of India, wherein it was intimated that on account of diversion of views between the parties, the matter could not be settled and that the conciliation proceedings have resulted in failure. It was also intimated by the Regional Labour Commissioner (Central) that the petitioner-Union requested to refer the matter for adjudication which was not agreed to by the Management. 13. Thereafter the issue relating to referring the matter for adjudication under Section 10 of the Act has been considered which has resulted in the impugned decision as communicated by means of the letter dated 12.02.2009 (Annexure No.1 to the writ petition). 14. Section 10 of the Industrial Disputes Act, 1947 provides for making reference of disputes to a Labour Court or a Labour Tribunal in respect of the matter specified in the Second Schedule or the Third Schedule appended to the said Act. The appropriate Government has to form an opinion that an industrial dispute exists or is apprehended. 14. Section 10 of the Industrial Disputes Act, 1947 provides for making reference of disputes to a Labour Court or a Labour Tribunal in respect of the matter specified in the Second Schedule or the Third Schedule appended to the said Act. The appropriate Government has to form an opinion that an industrial dispute exists or is apprehended. The impugned decision of the respondent no.1 has, thus, to be seen and adjudged within the parameters of Section 10 of Industrial Disputes Act, 1947, according to which, the appropriate Government has only to form an opinion regarding existence or apprehension of any Industrial Disputes. As has been held by this Court in the case ofKendriya Bhandargar Nigam Palledar Sangh v. Union of India, Writ Petition No.7 (M/S) of 2001 decided on 03.09.2010, the appropriate Government under the Industrial Disputes Act is vested only with administrative powers while making a reference and it is not expected to sit as a judicial or quasi-judicial authority and to evaluate the evidence for the reason that such jurisdiction vests only with the adjudicating authority, namely, Labour Court or an Industrial Tribunal. 15. As to whether there existed employer-employee relationship between the management and workman is an issue which could not be gone into by the appropriate Government while exercising its jurisdiction under Section 10 of the Industrial Disputes Act. It is a mixed question of fact and law which can be determined only by an adjudicating authority, such as Labour Court or an Industrial Tribunal for the reason that outcome of such an issue depends on appraisal and evaluation of evidence to be led both by the workman and the employer. 16. As observed above, respondent no.1 while refusing to refer the dispute has given a finding that the petitioner-Union has failed to prove employer-employee relationship between the management and the workman. Such an adjudication, in my considered opinion, was not open to be made by respondent no.1 while passing the impugned order. What all can be said to be required to be done by the appropriate Government is forming an opinion regarding existence or apprehension of any industrial dispute. As to whether employer-employee relationship exists or not is certainly a dispute which needs adjudication in the instant case looking into the pleadings of the respective parties. What all can be said to be required to be done by the appropriate Government is forming an opinion regarding existence or apprehension of any industrial dispute. As to whether employer-employee relationship exists or not is certainly a dispute which needs adjudication in the instant case looking into the pleadings of the respective parties. Any such adjudication could have been made only by the adjudicating body and not by the appropriate Government which only plays an administrative role and does not discharge any adjudicatory function. It is also to be seen that the other reason assigned for refusing to refer the dispute for adjudication is that the management has taken certificate of registration under the Contract Labour (Regulation & Abolition) Act, 1970. The existence of this certificate has seriously been disputed by the petitioner-Union. It has all along been the case of the petitioner that the management never produced the original certificate of registration either before the conciliation officer or before any other authority, rather a photostat copy was produced which is a fake, fabricated and forged certificate. In such a situation, where the very existence of the certificate allegedly issued to the management is being seriously disputed, any adjudication on the said issue was not warranted by respondent no.1 under Section 10 of the Industrial Disputes Act, 1947, as such a dispute can only be adjudicated or settled by an adjudicatory authority like the Labour Court or the Industrial Tribunal. 17. In a situation which the present case has presented, while deciding the relationship of employer-employee and while deciding as to whether contract is bona fide or sham the principle of 'piercing the veil' is to be applied and only then the correct position may emerge. This principle has been enunciated by Hon'ble Supreme Court in the case reported in [ (1999) 3 SCC 601 ], Secretary, H.S.E.B. v. Suresh and others. It has further been observed by Hon'ble Supreme Court in the said judgment that as to whether the contract labourers had become the employees of principal employer in the course of time or whether the engagement and employment of labourers through contractors is a smokescreen which is a question of fact which has to be established by the parties concerned on the basis of requisite material in a Labour Court or Industrial Tribunal. Such a finding of fact cannot be given by the appropriate Government while forming an opinion as required under Section 10(1) of the Industrial Disputes Act. 18. Reference may also be had to another case of Ram Shiromani Yadav v. Conciliation Officer and others, reported in [(2012) (4) ADJ 347] decided by this Court that the disputed question of facts cannot be gone into by the appropriate Government to reach a final conclusion while considering as to whether any dispute is to be referred for adjudication under Section 10 of the Industrial Disputes Act. It has clearly been held in the said case of Ram Shiromani Yadav (supra) that the appropriate Government under section 10 of the Act discharges an administrative function wherein it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to in discharge of its function and hence, it cannot delve into the merits of the dispute and take upon itself determination of lis between the parties. Para 17 of the said judgment in the case of Ram Shiromani Yadav (supra) is reproduced hereinunder: "17. While exercising the power conferred by Section 10 of the Act to refer an industrial dispute to a tribunal for adjudication, the appropriate Government is discharging an administrative function wherein it has to form an opinion as to factual existence of an industrial dispute as a preliminary step to discharge of its function. If the Government performs an administrative function while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. Such exercise permits the appropriate Government to examine prima facie merit of the dispute as to whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace or harmony. 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 merit. 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 merit. The adjudication of dispute on its merit requires examination of factual matters on the basis of documentary and oral evidence, as such appropriate Government cannot finally decide the dispute which is within a province of Industrial Tribunal or Labour Court." 19. Similar view has been expressed by a Division Bench of this Court in the case of Manoj Kumar Sahu v. Union of India and others, reported in [ 2012 (4) ADJ 555 ]. In para 9 of the said judgment, the Division Bench has observed as under: - "9. It is settled law that the Central Government is not empowered to adjudicate upon the matter for the purpose of referring the dispute. It is for the workman to establish that he was employed by the bank during the period w.e.f. 18.04.1993 to 19.11.1994 and that a valid dispute existed or was apprehended. It is also apparent that the Central Government did not refer the dispute considering as to whether any dispute was apprehended or existed. The validity of dispute cannot be determined by him as it is a matter of adjudication." 20. Learned Senior Advocate representing respondents no.2, 3 and 4 has made an attempt to submit that the respondent no.1 has rightly refused to refer the dispute for adjudication stating that the alleged members of the petitioner-Union were/are the contract labourers, who were employed by the contractors to whom the answering respondents had outsourced the particular works and as such there was no employer-employee relationship between the members of the petitioner-Union and the management. In my considered opinion as to whether the workmen were employed by the contract labourers or were the employees of the respondents is again a question of fact which could be determined only by an adjudicatory process on the basis of evidence and material which may be made available by the parties concerned before the Industrial Tribunal or the Court. Such a contention is, thus, liable to be rejected. 21. If the instant case is adjudged on the touchstone of the principles enunciated by this Court and also by Hon'ble Supreme Court in the judgments referred to herein above, I am unable to agree with the submissions made by the learned counsel representing the respondents. Such a contention is, thus, liable to be rejected. 21. If the instant case is adjudged on the touchstone of the principles enunciated by this Court and also by Hon'ble Supreme Court in the judgments referred to herein above, I am unable to agree with the submissions made by the learned counsel representing the respondents. It is a case where respondent no.1 clearly fell in error in arriving at a conclusion that the dispute cannot be referred for adjudication under Section 10 of the Industrial Disputes Act. In my considered opinion while giving a finding that there does not exist employer-employee relationship between the workman and management, the respondent no.1 has decided the dispute itself finally which as observed above, is not permissible under law. Adjudication or determination of any such dispute depends on various evidence and material to be brought on record by the parties concerned before the adjudicating bodies such as Labour Court or an Industrial Tribunal. 22. For the reasons given and discussions made above, the writ petition deserves to be allowed. 23. Accordingly, the writ petition is allowed. The impugned decision whereby the respondent no.1 has refused to refer the dispute for adjudication as contained in communication/letter dated 12.02.2009 annexed as annexure no.1 to the writ petition as reiterated in the other communication dated 03.08.2009 which has been annexed as annexure no.2 to the writ petition is hereby quashed. 24. The respondent no. 1 is directed to reconsider the entire matter afresh, expeditiously, say within a period of four months from the date of production of certified copy of this order in accordance with law and the observations made herein above. 25. There will be no order as to costs. W.P. allowed - No costs.