Dixit, C.J:— By this application under Article;, 226 and 227 of the Constitution the petitioners, who carry on the business of manifacturing bidis at Burhanpur, pray for the issue of a writ of certiorari for quashing an award made by the Industrial Tribunal, Indore, on 2nd May 1964 deciding some of the objections raised by the petitioners in an “industrial dispute” referred to the Tribunal for adjudication by the Government by an order dated 20th July 1963 made under Section 10(1) of the Industrial Disputes Act, 1947.

2. The order which the Government passed on 20th July 1963 under S. 10(1) of the Act is in the following terms:

“No./5568.XVI, whereas the State Government is of opinion that an Industrial Dispute exists between the Rashtriya Bidi Mazdoor Sangh, Burhanpur and the Bidi Manufacturers Association, Burhanpur regarding leave with wages etc. as specified in the schedule hereto annexed.

And whereas the State Government consider it desirable to refer the said dispute for adjudication.

Now therefore, in exercise of the powers conferred by sub-section (1) of Section 10 of the me Industrial Disputes Act, 1947 (XIV of 1947) the State Government hereby refers the said disputa for adjudication to the Industrial Tribunal Indore constituted under Section 7-A of the said Act.

SCHEDULE

1. Whether there exists a case for payment of leave with wages to the employees employed in the Bidi Factories of Burhanpur listed in the Annexure?

2. Whether there is any justification for payment of wages at the rate of Rs. 2 per thousand bidies rolled to the workers of the bidi factories listed in the Annexure? If so, from what date the same rate should be payable?

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3. The petitioners raised certain preliminary objections questioning the validity of the reference and the jurisdiction of the Tribunal to entertain and proceed with the reference. Their first objection was that according to the order of reference dated 20th July 1963 an industrial dispute existed between the Rashtriya Bidi Mazdoor Sangh, Burhanpur, and the Bidi Manufacturers Assocation, Burhanpur, but that the latter Association was not an “employer” within the definition of the term given in S. 2(g) of the Act and, therefore, the reference was bad and illegal. They also raised the objection that the second question referred for adjudication by the order dated 20th July 1963 was already the subject-matter of an award pronounced on 30th May 1963 and, therefore, a second reference on that subject-matter was barred by the principle of res judicata; and that the Tribunal had no jurisdiction to determine where there was any failure on the part of the bidi manufacturers to pay to persons engaged in rolling bidis at the rate of Rs. 2 per thousand in accordance with the earlier award dated 30th May 1963. The Tribunal has held that the reference made by the Government by its order dated 20th July 1963 is legal and maintainable. It postponed decision on other preliminary points rill after the recording of evidence. The Tribunal observed that those preliminary objections would be decided along with other issues. On the legality of the reference the Tribunal observed that

“though ostensibly it might appear that the reference is against the Bidi Manufacturers' Association, Burhanpur, in substance and in essence, it is against the members of the said Association and the Association simply represents them as required by S. 36(2) of the Act. Such being the position, the objection raised is lable to be rejected.”

4. Shri Dharmadhikaree, learned counsel appearing for the petitioners, argued that the order passed by the Government on 20th July 1963 under S. 10(1) of the Act clearly showed that the dispute which the Government referred to the Tribunal for adjudication was not an “industrial dispute” between the petitioner-employers and their employees but was only a dispute between the Rashtriya Bidi Mazdoor Sangh, urbanpur, and the Bidi Manufacturers' Association, Burhanpur, that under the Act no dispute between an Association of the employers and a Union of the employees could be referred to an Industrial Tribunal for decision; and that, therefore, the reference made to the Tribunal by the Government by its order dated 20th July 1963 was illegal. It was also urged that the Tribunal erred in holding that the other preliminary objections of the petitioners would be decided along with other issues.

5. Shri Dabir, learned counsel for the respondent Rashtriya Bidi Mazdoor Sangh, did not seriously contest the position that the order dated 20th July 1963 passed by the Government under S. 10(1) of the Act purported to refer to the Tribunal for adjudication an “industrial dispute” said to be existing between the Rashtriya Bidi Mazdoor Sangh & the Bidi Manufacturers' Association, Burhanpur, and not a dispute between the petitioner employers and their employees. Learned counsel however, submitted that if, under the order dated 20th July 1963, the petitioners were not parties to the dispute, then they had no locus standi to challenge the legality of the Tribunal's determination that the reference made to it by the Government by its order dated 20th July 1963 was legal.

6. In our judgment, the order passed by the Government on 20th July 1963 under Section 10(1) of the Act referring to the Industrial Tribunal for adjudication the dispute described in the first paragraph of the said order is, on the face of it, illegal. Section 10(1) of the Act lays down:

“Reference of Disputes to Board, Courts or Tribunals.—(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing—

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second or Third Schedule, to a Tribunal for adjudication.”

The term “Industrial dispute” has been defined by S. 2(k) thus:

“Industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.”

7. Now, it will be seen that in making a reference under S. 10(1) the Government has first to form an opinion that an industrial dispute exists or is apprehended. The formation of the opinion mentioned in S. 10(1) is a preliminary step in the discharge of the function under that provision. No doubt, as held by the Supreme Court in State of Madras v. C.P Sarathy, AIR 1953 SC 53 in making a reference under Section 10(1) of the Government does an administrative act. But the fact that the function exercised by the Government under S. 10(1) is an administrative function does not preclude the aggrieved party from showing that what has been referred to by the Government by an order under S. 10(1) is not an “industrial dispute” at all; and that, therefore, the Industrial Tribunal has no jurisdiction to make any award on the reference. This is clear from the decision of the Supreme Court in Newspapers Ltd. v. State Industrial Tribunal U.P, AIR 1957 SC 532. In that case it was observed by the Supreme Court:

“In spite of the fact that the making of a reference by the Government under the Industrial Disputes Act is the exercise of its administrative powers, that is not destructive of the rights of an aggrieved party to show that what was referred was not an ‘industrial dispute’ at all and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a party's challenge.”

Thus, if the dispute is an “industrial dispute” as defined in the Act, its factual existence and the expediency for the making of a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and the Court cannot canvass the order of reference for seeing whether there was any material before the Government to support its conclusion about the factual existence of a dispute or the expediency of making a reference in regard to it. But, it is competent for this Court to determine whether by the order dated 20th July 1963 the Government referred to the Tribunal for adjudication an “industrial dispute” within the meaning of S. 2(k). If the dispute is not an “industrial dispute” as defined by Section 2(k) of the Act, then the Industrial Tribunal has clearly no jurisdiction to entertain and make an award despite a reference under Section 10(1) of the Act.

8. According to the definition of “industrial dispute” given in section 2(k), in order to constitute a dispute or difference connected with the employment or non-employment of the terms of employment or with the conditions of labour, of any person, the dispute or difference must be between employers and employers, or between employers and workmen, or between workmen and workmen. A dispute between a Sangh or Union of the employees and an Association of the employers is clearly not a dispute between any employers and their workmen. It is no doubt true, as held by the Supreme Court in C.P Transport Service Ltd., Nagpur v. Raghunath Gopal, AIR 1957 SC 104 and Bombay Union of Journalists v. The ‘Hindu’, Bombay, AIR 1963 SC 318 that a dispute between an employer and a single employee is not per se an industrial dispute out that it may become one if it is taken up by the Union of the employees or a number of workmen. But from the proposition laid down in these cases of the Supreme Court that the machinery contemplated by the Industrial Disputes Act can be set in motion to settle only disputes which Involve the rights of workmen as a class and that a dispute touching the individual rights of a workman cannot be the subject of adjudication under the Act when the same has not been taken up by the Union of the employees or a number of workmen, it does not follow that a dispute between the employers and the Union of employees or between an Association of employers or an Union of employees is an “industrial dispute” within the meaning of the definition of the term given in Section 2(k).

9. It is possible to imagine a case where a Union of employees on its own and without any reference to the wishes or the interest of the employees purports to start some dispute when it has no power conferred upon it by its members to start that dispute. Cases of disputes having been raised by Unions of employees without the approval or backing of their members are not unknown. In Kandan Textile Ltd. v. Industrial Tribunal (1) Madras, AIR 1951 Mad 616 a reference to the Tribunal was made by the Government under S. 10(1) on the basis of a letter sent by the President of a Labour Union. The Madras High Court quashed the award taking the view that simply because some individual or organisation addressed a communication to the Government saying that there was an industrial dispute between the employer and the workmen, the Government would not be justified in passing an order referring the matter to the tribunal without being satisfied on the material placed before it that a dispute did exist or was apprehended. The fact that an Association of employers or a Union of employees is entitled to represent the employers or the employees, as the case may be, in proceedings under the Industrial Disputes Act does not also make an industrial dispute between the employers and the employees a dispute between the Association of employers and the Union of employees.

10. Here, as is evident from the order dated 20th July 1963 itself, the Government formed the opinion that an industrial dispute existed between the Rashtriya Bidi Mazdoor Sangh and the Bidi Manufacturers' Association, Burhanpur. A dispute between the Sangh and the Association is clearly not an “industrial dispute” within the meaning of the term given in Section 2(k). For a valid reference under Section 10(1) of the Act the Govt. was required to form an opinion that an industrial dispute as between employers and employers, or between employers and workmen, or between workmen and workmen, existed or was apprehended. The opinion which the Government thus formed in the present case was not in regard to the existence of any dispute or difference between the employers, that is the petitioners, and their employees. The preliminary step, namely, that of the formation of an opinion with regard to the existence of an industrial dispute between the petitioner employers and their employees not having been taken, the reference made by the Government by its order dated 20th July 1963 cannot be held to be legal. That order cannot be regarded as a valid order referring an industrial dispute between the petitioner employers and their employees. It cannot be regarded even as a valid order referring a dispute between the Rashtriya Bidi Mazdoor Sangh and the Bidi Manufacturers' Association as a dispute between such bodies is totally outside the definition of the term “industrial dispute” given in Section 2(k).

11. In the present case, the State of Madhya Pradesh was made a respondent party, but no return has been filed on behalf of the State and there is no material whatsoever to show that though in the order dated 20th July 1963 it was mentioned that an industrial dispute existed between the Rashtriya Bidi Mazoor Singh and the Bidi Manufacturers' Association, Burhanpur, the Government in fact formed an opinion that an industrial dispute existed between the petitioner employers and their employees.

12. The Tribunal has relied on certain observations made in the decision of the Travan-core-Cochin High Court in P.G Walter v. Chief Secretary, AIR 1953 Trav-Co 286. In our judgment, they are not in point. In the Travancore Case the order passed by the Government under Section 10(1) of the Act enumerated the names of the employers and expressly stated that an industrial dispute had arisen between those employers and the workmen employed by them. It appears that in that case an objection was taken that the employers' Association was not entitled to represent those employers who were not shown as parties in the order of reference. It was while dealing with this objection that it was observed by the Travancore-Cochin H.C that an association which is admittedly a representative of the employer factories is in law entitled to represent all the employers and it is not necessary for such representation that the employers should also be to nominee parties to the reference. These observations do not in any way lend support to the proposition that under Section 10(1) read with Section 2(k) of the Act a dispute between an Association of employers and a Union of employees can be referred to the Tribunal for adjudication.

13. The objection of the learned counsel for the respondent No. 2 that the petitioners have no locus standi to file this petition as the order dated 20th July 1963 does not refer to the Industrial Tribunal for adjudication any dispute between them and their employees is without any substance. It is true that the order dated 20th July 1963 does not refer any industrial dispute between the petitioners and their employees. But the Industrial Tribunal has in effect treated that order as one referring to it for adjudication an industrial dispute between the applicants and their employees. That being so, the petitioners are clearly entitled to question the jurisdiction of the Industrial Tribunal to entertain the reference and make an award.

14. In the view we have taken of the order of reference dated 20th July 1963, it is not necessary to consider the objection put forward on behalf of the petitioners that a second reference on matters already adjudicated upon by an award dated 30th May 1963 was not competent.

15. For these reasons, our conclusion is that the dispute which the Government has purported to refer by its order dated 20th July 1963 is not an ‘industrial dispute’ and, that being so, the Tribunal has no jurisdiction to entertain the reference and make an award thereon. The result is that this petition is allowed. The order of reference dated 20th July 1963 of the State Government under Section 10 (1) of the Industrial Disputes Act is quashed, and the award made by the Industrial Tribunal on 2nd May 1964 is also quashed. In the circumstances of the case, we leave the parties to bear their own costs of this petition.

16. The outstanding amount of the security deposit shall be refunded to the petitioners.

CJ/LGC/D.V.C

17. Petition allowed.