The Judgment of the Court was delivered by

Satyabrata Sinha, J.:— This appeal is directed against a judgment and order, dated July 24, 1998, passed by a learned Single Judge of this Court whereby and whereunder the writ petition filed by the writ-petitioner was allowed The basic fact of the matter is not in dispute.

2. The petitioner was appointed as a Joint Secretary, Legal, of Indian Tea Association. According to the petitioner the duties to be performed by the Assistant Secretary in which post he as appointed would appear from the advertisement which is to the following effect:

“Duties would include minuting of meetings; formulating advice on important judicial decisions and legislative enactments; preparing memoranda/representations.”

3. The petitioner, therefore, contended that he having no power to issue any direction or exercise supervisory power or not having control over the other workmen of the appellant herein, he was a “workman” within the meaning of S. 2(s) of the Industrial Disputes Act. Admittedly, owing to an alleged misconduct committed by the appellant herein he was dismissed from service. He raised an industrial dispute purported to be under S. 2A of the said Act. The matter was considered by the Conciliation Officer in terms of S. 12 of the said Act: As the dispute between parties could not be resolved at that stage a failure report was submitted by the Conciliation Officer on or about July 2, 1997. A bare perusal of the said failure report would show that a contention had been raised therein as to whether the writ-petitioner was a workman or not. The Conciliation Officer upon considering the relevant documents as also upon taking into consideration a decision of a learned Single Judge of this Court and further upon taking into consideration the nature of duties allegedly performed by the writ-petitioner inter alia held that the said question requires a decision by a Tribunal by making a reference in terms of the provisions of the Industrial Disputes Act. In the said report it was stated as follows:

“In view of the aforesaid finding of the Hon'ble High Court and rival contentions of the parties and as no settlement between the parties could be arrived at, it is felt that a judicial review over the matter may be obtained. Sri Barat also wants it. It is, therefore, recommended that the following issues may be referred to an Industrial Tribunal/Labour Court for adjudication.

Whether the dismissal of Sri Ajit Kumar Barat from his (service) is justified?

To what relief, if any, is he entitled?”

4. As despite submission of such failure report the appropriate Government did not pass any order, the petitioner filed a writ application which was marked as W.P No. 22878 (W) of 1997 wherein a direction was issued by this Court to consider the matter and pass an appropriate order. Pursuant to the said directions the State of West Bengal being the appropriate Government by a letter, dated January 14, 1998, addressed to the petitioner communicated as under:

“After examination, it reveals that you were first appointed as Assistant Secretary in the Indian Tea Association and subsequently promoted to the post of Joint Secretary. Besides the basic pay, you were given child allowance, house rent subsidy, furnishing allowance, house maintenance allowance, transport subsidy, reimbursement of fuel and electricity Charges, entertainment expenses, reimbursement of servant's wages, monthly club subscription, leave travel allowance and reimbursement of hospitality expenses. Your duties also included power of sanction of expenses on behalf of I.T.A

So your pay and perquisites and the status enjoyed by you in the organisation and also the power of sanction of expenses suggest that you were a part of the management. Hence you cannot be treated as a ‘workman’ within the purview of the Industrial Disputes Act.

Government, therefore, regrets its inability to refer your dispute to any Industrial Tribunal/Court under S. 12(5) of the Industrial Disputes Act, 1947.”

Being aggrieved by and dissatisfied with the said order the petitioner filed the instant writ application. In the said writ petition, inter alia, it was contended that the authorities of the appellant are influential persons and had obtained the aforementioned order by exercising their influence upon the Labour Secretary, although there was no materials before the appropriate Government to arrive at the said finding.

5. Before the learned trial Judge respondents 1 to 4 did not file any affidavit-in-opposition nor produced the records. An affidavit-in-opposition had been filed by the appellant herein wherein, inter alia, it was contended that the said order, dated January 14, 1998, was passed by the appropriate Government upon taking into consideration all relevant materials. The learned Trial Judge by reason of the judgment under appeal inter alia held that the appropriate Government was bound to make we reference as in refusing to do so it was usurping the adjudicatory function. A direction was made to make a reference in terms of S. 10(1) of the said Act and it further directed the State Government to refer the issue as to whether the petitioner was workman. Although the instant appeal has been filed against the said judgment by the appellant/respondent but with regard to the third decision of the learned trial Judge a cross objection has been filed by the writ-petitioner.

6. Sri Choudhury, learned counsel for the respondents, has raised three questions in support of this application. The learned counsel firstly submitted that bare perusal of the judgment under appeal would clearly reveal that the learned trial Judge proceeded on a misconception that although the Court was inclined to agree with the contention that the appropriate Government in terms of S. 10(1) of the said Act has the requisite jurisdiction to form an opinion as regards the existence of an industrial dispute or an apprehended dispute but in refusing to make a reference, the appropriate Government has usurped an adjudicatory role According to Sri Choudhury in view of several decisions of the Apex Court in State of Madras v. C.P Sarathy reported in A.I.R 1953 S.C 53, Prem Kakar v. State of Haryana reported m 1976 (1) L.L.N 494, Bombay Union of Journalists v. State of Bombay reported in A.I.R 1964 S.C 1617 and Avon Services (Production Agencies) (Private), Ltd. v. Industrial Tribunal, Haryana reported in 1978 (2) L.L.N 503, there cannot be any doubt whatsoever that the appropriate Government had the requisite jurisdiction to arrive at a conclusion as to whether an Industrial dispute exists or is apprehended or not. Such a power, contends Sri Choudhury, being an administrative one and discretionary in nature, the High Court in exercise of its power of judicial review should not interfere until and unless it arrives at a definite conclusion that the said order is vitiated by any illegality, irrationality or procedural illegality. Sri Choudhury further contends that the subsequent decision of the Apex Court in TELCO Convoy Drivers Mazdoor Sangh v. State of Bihar reported in 1989 (2) L.L.N 718, having been rendered by a Division Bench and having not noticed the judgment of the Constitution Bench in State of Madras (vide supra), must be held to have been rendered per inquirium and in any event thereby the law itself cannot be said to have been changed as has been observed by the learned trial Judge. Sn Choudhury strenuously submitted that the said decision must be read on the fact situation obtaining therein inasmuch as the question which was raised by the workman was to whether they are entitled to the same scale of pay as was being paid by TELCO Engineering and Locomotive Works, Ltd. to their own drivers. This, contends Sri Choudhury, would indirectly raise a question as to whether the convoy drivers were the workmen under the TELCO or not. So far as the decision of the Apex Court in Abad Dairy Dudh Vitran Kendra Sanchalak Mandal v. Abad Dairy reported m 1989 (2) L.L.N 705, is concerned the learned counsel contends, that the aid decision was rendered on its own fact as therein the High Court entered into the merit of the matter which as not within its domain. The learned counsel further submitted that in any event the learned Trial Judge erred m law in issuing a writ of mandamus directing the State to make a reference.

7. Sri Barat, who appeared in person ably argued his case. Sri Barat submitted that upon coming into force of S. 2A of the Industrial Disputes Act with effect from December 1, 1965, the question as regards formation of any opinion by the appropriate Government in terms of S. 10(1) read with S. 12(5) of the said Act had lost all its efficacy inasmuch as once a dispute is raised in terms of S. 2A of the said Act the appropriate Government will have no other option but to refer the industrial dispute to an appropriate Tribunal. Reference in this connection has been made to rule 12A of the West Bengal Industrial Disputes Rules. It was submitted that the appropriate Government while considering the question as to whether an industrial dispute should or should not be referred to an Industrial Tribunal in exercise of its power under S. 10(1) of the Industrial Disputes Act cannot enter into a disputed question of fact or law. Such a disputed question of fact or law, contends Sri Barat having been gone into by the Conciliation. Officer and the said officer having found that a case has been made out for the appropriate Government to exercise its power under S. 10(1), it could not have refused to do so as the only material before it was the said report. Sri Barat in support of his aforementioned contention has relied upon Nirmal Singh v. State of Punjab reported in 1984 (2) L.L.N 526; Madhya Pradesh Irrigation Karamchari Sangh v. State of Madhya Pradesh reported in 1985 (1) L.L.N 781; Ram Avtar Sharma v. State of Haryana reported in 1985 (2) L.L.N 280;. Mihir Kumar Hazra Chowdhury v. Union of India reported in 1989 (2) L.L.N 184; and V. Verrarajan v. Government of Tamil Nadu reported in 1987 (1) L.L.N 288, referring to a decision of the Division Bench of Bombay High Court in Rohinton P. Daruwalla v. Deputy Commissioner of Labour (Conciliation) reported in 1994 —III L.L.J (Suppl.) 800, Sri Barat submitted that a distinction exists between the reasons and decisions. The decision, according to Sri Barat, must be dependent upon the relevant facts of the case and effect thereof must be felt from the order itself. According to Sri Barat from the decisions referred to herein before it would appear that in appropriate cases “High Courts or the Supreme Court in exercise of the power of judicial review issued a writ of mandamus directing the appropriate Government to make a reference and thus no illegality has been committed by the learned trial Judge in issuing such a direction. As regards the question directed to be referred by the learned trial Judge Sri Barat pressed his cross objection and submitted that the only direction which could be issued by this Court was to refer the dispute as regards the validity or otherwise of the order of termination passed by the appellant herein against him.

7A. Before proceeding to consider the rival contentions, as noticed thereinbefore, it would be profitable to decide the question as to whether the question raised by Sri Barat to the effect upon coming into force of the provisions of S. 2A of the said Act the power of the appropriate Government as regards the formation of opinion has become redundant is correct or not. Reliance placed by Sri Barat in support of his aforementioned contentions in Shaw Wallace and Company, Ltd. v. State of Tamil Nadu (represented by Commissioner and Secretary, Labour Department), 1988 (1) L.L.N 172 in our considered view, does not lay down the proposition in absolute term that whenever a dispute is raised in terms of S. 2A of the said Act the appropriate Government has no other option but to exercise its power to make a reference. In fact by reason of provisions of S. 2A of the said Act only a legal fiction has been created to the effect that where an order of discharge, dismissal, retrenchment or otherwise termination of services has been passed by an employer against workman or a dispute raised in relation thereto shall be an industrial dispute. The historical background of industrial jurisprudence leading to enactment of the Industrial Disputes (Amendment) Act, 1965, leave no manner of doubt that prior to the provisions of S. 2A of the said Act coming into force, an industrial dispute was required to be raised in the manner laid down therein and as an individual person aggrieved could not directly take recourse to the provisions of the said Act so as to enable the appropriate Government to make a reference, an exception has been made by reason of the said provisions to the effect that any order of discharge, dismissal, retrenchment or otherwise termination of service of a workman by an employer shall be an industrial dispute within the meaning of S. 2(k) of the said Act but by reason thereof the power of the appropriate Government to make a reference under S. 10(1) read with S. 12(5) of the Act had not been taken away. Further more in terms of S. 2A of the said Act, what can be referred to is an industrial dispute which would in turn include a dispute between the workman and the management, the logical corollary whereof would be that a reference can be made only in a case where the industrial dispute so raised concerns a workman and not otherwise and thus only because an order of discharge, dismissal, retrenchment or termination of services had been passed by the management, the appropriate Government was not supposed to make any reference without application of its mind as to whether the concerned person is a “workman” within the meaning of the provision of the Industrial Disputes Act. There, thus, cannot be any manner of doubt that even such a reference has to be made by the appropriate Government under S. 10(1) of the said Act. However, it is now a well-settled principle of law that the jurisdiction of the appropriate Government in terms of S. 10(1) of the said Act is a limited one. It is correct that in S. 10(1) of the Act the terminology “is of opinion” has been used. There cannot further be any doubt that in terms of the aforementioned provision a satisfaction has to be arrived at by the appropriate Government as regards the fact as to whether an industrial dispute exists or is apprehended, but it is also equally true that such formation of opinion or satisfaction must be based on objective criteria. No discretion as is well known is beyond the pale of judicial review Discretion as is well settled must be exercised fairly and reasonably and cannot be based on whims or caprice. Such discretion has to be exercised within the four comers of the power by the statutory authority. This aspect of the matter has been considered by this Court in Chaittannya Charan Das v. State of West Bengal reported in A.I.R 1995 Cal. 336. It is also a well settled principle of law that even in a case of subjective satisfaction a judicial review is permissible in view of various decisions of the Apex Court Barium Chemical, Ltd. v. Company Law Board reported in A.I.R 1967 S.C 297. In State of Madras v. C.P Sarathi (vide supra), the Apex Court was considering the question as to whether a preliminary objection raised before a Magistrate where a chargesheet had been filed by the appellant against the first respondent for alleged commission of an offence under S. 29 of the Industrial Disputes Act was ultra vires or not. While considering the aforementioned question the Apex Court incidentally referred to the provisions of S. 10(1) of the said Act so as to judge the correctness or otherwise of the said contention. It was held that if the dispute was an industrial dispute as defined in the Act, its factual existence of making a reference of a particular case are matters entirely for the Government to decide upon. It would not be competent for the Court to hold a reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no materials before the Government on which it could have come to an affirmative conclusion on those matters. In that case a reference had been made. It was however observed that the Government must, of course, have sufficient knowledge of the nature of the dispute and must arrive at the satisfaction about the existence of an mdustnal dispute within the meaning of the act as for instance that it relates to retrenchment or reinstatement. But, beyond this no obligation can be held to lie on the Government to as certain particularity of the dispute before making a reference under S. 10(1) of the said Act but should specify the same in the order.

8. Thus formation of an opinion by the appropriate Government is basically confined to the fact as to whether an industrial dispute exists or is apprehended.

9. In Bombay Union of Journalists v. State of Bombay (vide supra), the Apex Court while observing that the Government is not precluded from considering the prima facie facts as regards existence or apprehension of an industrial dispute clearly observed that if the claim made is patently frivolous or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relation between the employer and the employees in the region is likely to be adverse the appropriate Government may take that into account in deciding whether a reference should be made of not. Upon considering the provisions of S. 10 and S. 12 of the said Act the Apex Court held that the appropriate Government need not write elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference but proceeded to observe that it is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made because the object of S. 12(5) appears to be to require the appropriate Government to state its reasons for refusing to make a reference so that the reasons should stand public scrutiny.

10. In Prem Kakar v. State of Haryana [1976 (1) L.L.N 494] (vide supra), no reason had been assigned. It was held that the order under S. 10(1) read with S. 12(5) of the Act is an administrative order and not a judicial or quas-judicial order.

11. In Avon Services (Production Agencies) (Private), Ltd. v. Industrial Tribunal, Faridabad, [1978 (2) L.L.N 503] (vide supra), the Apex Court again held that an order under S. 10(1) read with S. 12 is an administrative order. The appropriate Government is entitled to change its opinion and despite refusal to make reference once, it can refer the dispute to the Tribunal again. The other decisions cited by Sri Choudhury in our opinion are not relevant.

12. The conspectus of the aforementioned decisions clearly points out that when the appropriate Government exercise its jurisdiction under S. 10(1) read with S. 12(5) of the Act it merely exercise an administrative power. It has a limited role to play and it cannot usurp any adjudicatory role. Only a quasi-judicial authority can usurp an adjudicatory function. This proposition of law is not disputed.

13. The question as to whether the writ-petitioner/respondent was workman within the meaning of S. 2(s) of the said Act or not was no doubt a question which could have fallen for consideration before the appropriate Government but the failure report submitted by the Conciliation Officer as referred to herein before clearly shows that the said question required adjudication. It is a matter of great regret that the State Government not only failed and/or neglected to file an affidavit-in-opposition justifying its action but also failed to produce records before this Court. In fact the appeal Court directed the respondent to produce the records at the time of hearing. Despite such clear directions the State did not comply therewith.

14. Sri Choudhury had made an attempt to refer to certain documents and particularly a letter, dated August 5, 1996, addressed by the appellant herein to the Deputy Labour Commissioner wherein, the nature of duties allegedly performed by the petitioner had been stated.

15. Sri Choudhury, therefore, urged that the appropriate Government must be presumed to have before it the aforementioned materials. We are afraid that no such presumption can be raised in the instant case. Only with a view to satisfy itself this Court had directed respondents 1 to 4 to produce the entire records but the concerned respondents had failed to comply therewith for reasons best known to it. But for the failure to produce records despite such direction a presumption could have been raised that official acts had been done in ordinary course of business. But in the instant case no document was appended with the failure report. The very fact that respondents 1 to 4 failed and/or neglected to produce the records before this Court would attract an adverse inference that had such records been produced, the same would have gone against the contentions of the State. Reference in this connection may be made to National Insurance Company, Ltd. v. Jugal Kishore reported in (1988) 1 S.C.C 626.

16. The decision of the Apex Court in TELCO Convoy Drivers [1989 (2) L.L.N 718] (vide supra), has to be considered in that light. Each case will have its own fact but in that case the Supreme Court in no uncertain terms has laid down the law that while forming an opinion as to whether a reference should or should not be made, the appropriate Government cannot make an attempt to adjudicate upon the dispute itself. Such a power which is within the domain of quasi-judicial or a judicial authority does not come within the purview of S. 10(1) of the said Act. It is, therefore, not the case where on the basis of the materials available with it the appropriate Government had bona fide arrived at a decision which cannot be interfered with by this Court in exercise of its jurisdiction under Art. 226 of the Constitution of India. In fact in TELCO Convoy Drivers (vide supra), the Apex Court had not laid down any new law but has merely explained or clarified the legal position vis-a-vis the power of the Appropriate Government under S. 10(1) of the said Act. The decisions of the Supreme Court and the other High Courts are legion on this point. In Mihir Kumar Hazra Choudhury v. Union of India [1989 (2) L.L.N 841 (vide supra), G.N Ray, J., referred to Bombay Union of Journalists (vide supra), Madhya Pradesh Irrigation Karamchari Sangh v. State of Madhya Pradesh [1985 (1) L.L.N 781] (vide supra), as also Ram Avtar Sharma v. State of Haryana reported in 1985 (2) L.L.N 280 (vide supra), that in view of the provisions of S. 2A read with SUA the scope of reference has been widened. The Apex Court clearly held that while exercising its power under S. 10(1) of the said Act, the Central Government had clearly gone wrong in assessing the merits of the order which do not come within the purview of the administrative jurisdiction. In Nirmal Singh v. State of Punjab reported in 1984 (2) L.L.N 526 (vide supra), Chandrachud, J., speaking for a Division Bench of the Apex Court while dealing with a case of Branch Manager of the bank clearly held that the Labour Commissioner ought to have given reasons that the appellant was not a workman within the meaning of S. 2A of the said Act.

17. The Apex Court inter alia held as follows, in Para. 7, at page 528:

“… After all, the question as to whether the appellant is a ‘workman’ is basically a question of fact. That is why, on the basis of the stray material before us, we do not consider it advisable to decide that question.”

18. The same legal principle would apply in all fours in the present case It is not necessary to multiply decisions as several decisions had been taken into consideration m Abad Dairy Dudh Vikreta Kendra Sanchalak Mandal [1989 (2) L.L.N 705] (vide supra). It is true as has rightly been pointed out by Sri Choudhury that in that case the High Court itself had gone into the merits of the matter. But while depricating such a practice the Apex Court observed as follows, in Paras. 5 and 6, at page 707

“5. We should have directed the Government to refer the disputes between the parties to an Industrial Tribunal, making the issue of the jurisdictional fact, viz., as to ‘whether the appellants workmen’ also one of the terms of reference. We say this because, though there are agreements between the parties, not only is the interpretation of the agreement a matter of dispute; it will also be necessary to consider whether the agreement reflects the real position or whether the conduct of the parties and other materials placed on record show that the appellants were employees as suggested by the appellants and not commission agents as suggested on behalf of the respondents. Also, the only ground on which the State Government declined to make a reference was that the appellants were not workmen This view is not so obvious or patent on the facts before us. In the circumstances, we think the best course is to set aside the order of the High Court and direct that the matter be gone into by an” Industrial Tribunal after the Government has made an appropriate order. We, therefore, allow these appeals, set aside the order of the High Court and direct the State Government to refer to an Industrial Tribunal all the disputes between the parties including the preliminary question whether the appellants are workmen within the meaning of Industrial Disputes Act or not.

6. The State Government is directed to make the above reference within a period of two months from today.”

19. For the purpose of arriving at a finding of the fact as to whether the person who has been discharged or dismissed by the employer was workman or not the nature of duties performed by him is a relevant factor unless it is admitted that his duties are managerial or supervisory in nature. Techno-clerical duties would not by themselves exclude a person form the purview of the definition of workman as contained in S. 2(s) of the Act. It is now well known that even highly paid persons have been held to be workmen. The task before the Government, thus, was not an easy one and in a majority of the cases if it intends to come to a finding as to whether a person is not a workman and not as of necessity it is bound to go deep into the matter. Such function should be left to the Industrial Tribunal by making a reference. We may however observe that this does not mean that the appropriate Government in no case can arrive at such a conclusion. As indicated hereinbefore where from the materials placed before the appropriate Government, it becomes evident that the concerned employee does not answer the description of “workman” as defined in S. 2(s) of the said Act it would be free to refuse the exercise of its discretion in-making a reference on the ground that no industrial dispute within the meaning of S. 2(k) exists.

20. In the instant case, the State Government has not asked itself the right, question so as to acquaint itself with the relevant facts with a view to arrive at a correct answer and thus has misdirected itself in law. The proper question which the State Governments should have framed was as to what are the nature of duties of the respondent. It did not go into the said question at all.

21. It has also to be borne in mind that by reason of the provisions of the Industrial Disputes Act a new right had been granted to the workman. Before coming into force of the said Act the relationship of the employer and employee were used to be governed by contract of service. Even the workman could have been dismissed from their services without assigning any reason, but therefor no civil suit for their reinstatement could have been maintainable in view of the provisions contained in S. 14 of the Specific Relief Act, 1963. Four exceptions exists to the aforementioned rule, i.e:

(1) when an employee enjoys a status;

(2) where the employee is a workman witnin the meaning of the provisions of the Industrial Disputes Act;

(3) where in discharging or dismissing an employee, the statutory authority have violated mandatory provisions of the statute or statutory rules; and

(4) where services of a person had been terminated without following the statutory provisions to which protection he is entitled to.

22. In our opinion it cannot be said that there exists any hard and fast rule as regards a question as to whether the Court had power to direct the appropriate Government to make a reference. Normally this Court would not do so but as would appear from the various decisions cited by Sri Barat that the Supreme Court of India itself had directed the appropriate Government to make references and even the terms of reference had been fixed by the Court.

23. In the instant case, as indicated hereinbefore, the appropriate Government for some reasons or other refused to make a reference for a long time. The petitioner had to approach this Court and pursuant to the direction made by this Court the impugned order, dated January 14, 1997, has been passed. It is also well settled in view of the decision of the Apex Court in Comptroller and Auditor-General of India v. K.S Jagannathan reported in 1986 (2) L.L.N 11, that in a given case the Court can exercise the same power which a statutory authority can exercise. In a case of this nature thus the discretion which could be exercised by the appropriate Government in the facts and circumstances of the case could also be exercised by the learned trial Judge. No illegality, thus, has been committed by the learned Judge in passing the impugned judgment.

24. However, there cannot be any doubt whatsoever that the learned Judge has committed an error in directing the State Government to make a reference as to whether the writ-petitioner is a workman. The question as to whether the writ-petitioner is a workman or not can only be adjudicated upon collaterally or as a preliminary issue and thus the reference is required to be made in terms of S. 2A of the Act. The cross objection filed by Sri Barat therefore, succeeds and in modification of the directions issued by the learned trial Judge we direct the State Government to make an appropriate reference keeping in view the nature of the dispute raised by the respondent and such a reference should be made at an early date and not later than one month from the date of communication of this order. Keeping in view the fact that respondents 1 to 4 had failed to produce records despite an unequivocal order passed by this Court we are of the opinion that they should pay to the respondent penal costs which is assessed at 200 G. Ms. It could be open to the State to recover the said amount from the officer concerned upon holding an enquiry in that regard.

25. For the reasons aforementioned the appeal preferred by the appellant is dismissed and the cross objection filed by the writ-petitioner/respondent is allowed.

26. However, no cost is being awarded as against the appellant. Prayer for stay is considered and refused.

27. All parties are to act on a signed copy of the operative part of this judgment on the usual undertaking.

28. S.N Bhattacharjee, J.:— I agree.