JUDGMENT : Sangeeta Chandra, J. Heard learned counsel for the petitioners and learned Standing Counsel, who appears for the State respondents. 2. The petitioners are aggrieved by the order dated 7.10.2015 as amended on 16.11.2015 passed by the Deputy Labour Commissioner, Faizabad Region, Faizabad (hereinafter referred to as 'respondent no.2') in C.P. case no.18 of 2013: Mehtu vs. Chief Engineer, Sarju Nahar Khand Pratham, Faizabad, C.P. case no.19 of 2013; Jawahar vs. Chief Engineer, Sarju Nahar Khand Pratham, Faizabad and others, C.P. case no.21 of 2013: Ram Chandra vs. Chief Engineer, Sarju Nahar Khand Pratham, Faizabad and others, C.P. case no.22 of 2013: Gajodhar vs. Chief Engineer, Sarju Nahar Khand Pratham, Faizabad and C.P. case no.25 of 2013: Ganga Ram vs. Chief Engineer, Sarju Nahar Khand Pratham, Faizabad. The petitioners have also prayed for a mandamus to be issued to respondent no.2 to refer their case for adjudication to the concerned Labour Court. 3. It has been submitted by the learned counsel for the petitioners that petitioner nos.2 to 5 were engaged in the year 1989 and petitioner nos.1, 3 and 4 were engaged in August, 1992 on the post of Beldar on muster roll in the respondents-establishment at Sarju Nahar, Division-1, Faizabad. The petitioners having completed continuous service of more than 240 days in each and every year since their initial engagement, were wrongfully terminated on 31.12.2012 and 10.3.2013. The petitioners were performing their duties like the regular employees so they were continuously making demands to pay them salary and other service benefits as were being paid to regular employees. 4. The petitioner nos.1, 3 and 4 being terminated on 31.12.2012 and petitioner nos.2 and 5 being terminated on 10.3.2013 against the provisions of 6-N of the U.P. Industrial Disputes Act, 1947 (for short 'the Act'), approached the Conciliation Officer on 29.4.2013 and C.P. case nos.18/2013, 19/2013, 20/2013, 21/2013 and 22/2013 were registered. Statements were exchanged between the parties but the Conciliation failed and a failure report was submitted on 1.8.2013. The Deputy Labour Commissioner thereafter refused to make a reference under Section 4-K by his order dated 27.12.2013. 5. The petitioners challenged the order dated 27.12.2013 as the reason purportedly was that the Irrigation Department did not come within the definition of Industry. The petitioners had approached this Court in Writ Petition no.4559 (MS) of 2015 (Mahtu and others vs. State of U.P. and others). 5. The petitioners challenged the order dated 27.12.2013 as the reason purportedly was that the Irrigation Department did not come within the definition of Industry. The petitioners had approached this Court in Writ Petition no.4559 (MS) of 2015 (Mahtu and others vs. State of U.P. and others). This Court vide its judgment dated 21.8.2015 remanded the matter to the Deputy Labour Commissioner to consider afresh as the order rejecting the claim petitions for making a reference was non-speaking. The matter was reheard by respondent no.2 after issuance of notice and the impugned orders have been passed thereafter. 6. It has been submitted by the learned counsel for the petitioners that from a perusal of the orders impugned, it is apparent that the Deputy Labour Commissioner has himself adjudicated the case of the petitioners instead of referring it to the Labour Court. Such adjudication was impermissible under the relevant provisions of the Act. 7. Learned counsel for the petitioners has referred to Section 10(1) of the Central Industrial Disputes Act and Section 4-K of U.P. Industrial Disputes Act and has argued that the language of both the Sections is pari materia and, therefore, the law settled by the Hon'ble Supreme Court in several of its judgments with regard to impermissibility of adjudication by the Deputy Labour Commissioner in cases relating to Central Industrial Disputes Act shall apply to U.P. Industrial Disputes Act also. 8. Learned counsel for the petitioners has relied upon the case of Sharad Kumar vs. Government of NCT of Delhi and others, reported in, (2002) 4 SCC 490 , where the government had rejected the application for making a reference relating to a dispute on discharge/termination of appellant's services for adjudication to the Labour Court by observing that he is not a workman within the meaning of Section 2(s) of the Act. The Supreme Court in Paragraph-8, framed the question to be considered, which was "whether on the facts and circumstances of the case, the State Government was right in rejecting the appellant's request for a reference and thereby nipping the proceeding at the threshold. Is a just and proper exercise of the jurisdiction vested under the statute?" 9. The Supreme Court in Paragraph-8, framed the question to be considered, which was "whether on the facts and circumstances of the case, the State Government was right in rejecting the appellant's request for a reference and thereby nipping the proceeding at the threshold. Is a just and proper exercise of the jurisdiction vested under the statute?" 9. The Supreme Court thereafter considered Section 2(k) of the Act, which defines workman and then Section 10(1) of the Act, which relates to reference of dispute to courts or Tribunals and also Section 12 of the Act, which provides the duties of the Conciliation Officer. In sub-section (4) of Section 12, it is laid down that if no such settlement is arrived at, the conciliation officer shall after the close of the investigation, send to the appropriate Government a full report including statement of facts and circumstances and the reasons on account of which, settlement could not be arrived at. 10. Sub-Section (5) of Section 12 vests in the appropriate Government the power to make reference on receipt of such report under sub-section (4) to the Labour Court or Tribunal. In case the Government does not make such reference, it shall record reasons therefor. 11. The Court considered the scope and the extent of power to be exercised by the appropriate Government in such a matter. It referred to its earlier judgments, namely, Management of May and Baker (India) Ltd. vs. Their Workmen, (1961) 2 LLJ 94 SC with regard to definition of workmen under Section 2(s) and Burmah Shell Oil Storage and Distribution Company of India Ltd.. The Burma Shell Management Staff Association and others 1970 (2) LLJ 590 SC and several other decisions thereafter with regard to who can be said to be a workmen. 12. In Paragraphs 27 and 28, the Supreme Court observed as under: "27. In the case of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others, (1989) 3 SCC 271 this Court construing the provision of s.10(1) held as follows: "13. Attractive though the contention is, we regret, we are unable to accept the same. 12. In Paragraphs 27 and 28, the Supreme Court observed as under: "27. In the case of Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others, (1989) 3 SCC 271 this Court construing the provision of s.10(1) held as follows: "13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, 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 of the Act. See Ram Avtar Sharma vs. State of Haryana, (1985) 3 SCC 189 ; M.P. Irrigation Karamchari Sangh vs. State of M.P., (1985) 2 SCC 103 ; Shambhu Nath Goyal vs. Bank of Baroda, Jullundur, (1978) 2 SCC 353 . 14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the government was not justified in deciding the dispute. Where, as in the instant case, the dispute is 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. As has been held in M.P. Irrigation Karamchari Sangh case, there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the government to do so would be to render Section 10 and Section 12 (5) of the Act nugatory." (Emphasis supplied) 28. In M.P. Irrigation Karamchari Sangh vs. State of M.P. and others, (1985) 2 SCC 103 taking note of the decision in the case of Bombay Union of Journalists v. State of Bombay, (1964) AIR SC 1617, wherein it was held that appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not, this Court held that the Court had made it clear in the same judgment that it was a province of the Industrial Tribunal to decide the disputed questions of facts. This Court made the following observations: "5.. Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi-judicial Tribunal by an administrative authority namely the appropriate Government. In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterized as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand." (Emphasis supplied)" 13. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterized as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand." (Emphasis supplied)" 13. The Supreme Court, as is evident from the aforesaid cited judgment, clearly held that the very limited jurisdiction of the State Government is only to examine patently frivolous demands. As a rule, adjudication of demands made by the workmen, should be left to the Tribunal. When a question involves determination of facts with regard to determination of duties that were being discharged by the litigant/claimant, such determination can only be made on the basis of evidence which can be evaluated by an appropriate Court i.e. either the Industrial Tribunal or the Labour Court. The State Government cannot arrogate upon itself the power to adjudicate on such a question and hold that the claimant is not a workman within the meaning of Section 2(s) of the Act thereby terminating the proceedings prematurely. 14. Learned counsel for the petitioners has also referred to a judgment by a coordinate Bench in Writ-C No.55317 of 2011 (A.P. Yadav and others vs. Government of India and others), rendered on 6.8.2013. The Court was considering the decision of the Central Government, refusing to refer the dispute of the petitioners under Section 10 of the Central Industrial Disputes Act. The Court observed that the power of the government to refer a dispute under Section 10 is an administrative power, but where there is a dispute on facts and law, the Government ought to have referred it for adjudication. Quashing the decision of the Government, a mandamus was issued to respondent no.1 to make reference to the appropriate Court or Tribunal within a specific period of time. 15. Sri Ram Kumar Mishra, learned counsel for the State respondents has submitted that it is apparent from a perusal of the order impugned passed by the Deputy Labour Commissioner that the Irrigation Department, namely respondent nos.3 and 4 had strongly disputed the very engagement of the petitioners as muster roll daily wagers. He has referred to a Government Order dated 6.5.1992, filed along with counter affidavit, which specifically prohibited all kind of fresh engagements on muster roll of employees in the Irrigation Department. 16. He has referred to a Government Order dated 6.5.1992, filed along with counter affidavit, which specifically prohibited all kind of fresh engagements on muster roll of employees in the Irrigation Department. 16. The contention of the alleged workmen that they were engaged on August, 1992 was found to be false as Saryu Canal Division, Faizabad was constituted in May, 1998 alone after abolishing of Upari Ganga Nahar Modernisation (World Bank) Division-8, Roorkee. Since the Division itself was constituted after the Government Order dated 6.5.1992 only in 1998, the contention of the alleged workmen that they had been working since 1989 or 1992 was apparently false. It is this fact which the Deputy Labour Commissioner has found to be of great relevance in deciding whether the claim of the alleged workmen was frivolous and that it ought to be rejected on threshold. 17. It has also been submitted by learned Standing Counsel that the Deputy Labour Commissioner has also referred to a Government Order dated 7.2.1997 wherein it was provided that all those persons, who have been engaged on muster roll and were entitled for regularization, should be regularized, whereas no fresh engagement on daily wage and muster roll was to be made. In case certain persons were found to have been engaged on muster roll and were not entitled for regularization, they should be disengaged with immediate effect. The contention of the alleged workmen that they were working since 1989 and 1992, therefore, appears to be apparently a false statement. The Deputy Labour Commissioner has also considered the inability of the alleged workmen to produce any documentary evidence of their engagement in 1992 or even in 1989. 18. Learned counsel for the State respondents has referred to the counter affidavit, which says that the petitioners were never engaged so there was no question of their disengagement. 19. The Deputy Labour Commissioner has also considered the inability of the alleged workmen to produce any documentary evidence of their engagement in 1992 or even in 1989. 18. Learned counsel for the State respondents has referred to the counter affidavit, which says that the petitioners were never engaged so there was no question of their disengagement. 19. This Court is aware of the litigation that was entertained by the Supreme Court in the case of Raj Narain Prasad vs. State of U.P. and others, (1998) 8 SCC 473 , which arose out of Writ Petition (C) no.140 of 1989 filed directly by the muster roll/work charge employees in the Irrigation Department under Article 32 of the Constitution of India before the Supreme Court, where the Supreme Court had issued interim orders from time to time, prohibiting the State Government and the officers in the Irrigation Department from engaging any fresh muster roll/daily wage employees. It is in pursuance of the interim orders passed by the Supreme Court that from time to time several Government Orders were issued with regard to undertaking of exercise of regularization of such muster roll/work charge employees. However, this Court finds that the petitioners had contended before the Deputy Labour Commissioner that they were engaged in 1989 and also in 1992? and had been disengaged in 2012 and 2013. The facts being seriously disputed regarding engagement and termination without following Section 6N of the Industrial Disputes Act, it was a question that ought to have been referred for adjudication before the Labour Court or Tribunal. Such question could not have been considered by the Deputy Labour Commissioner on his own. 20. The order of the Deputy Labour Commissioner dated 7.10.2015 as amended on 16.11.2015 is therefore, set aside. A mandamus is issued to respondent no.2 to refer the matter to the appropriate Court for adjudication. 21. The writ petition is allowed to the aforesaid extent only.