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TMI Blog2000 (2) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 24th July, 1998 passed in W.P. No. 155 of 1998 was affirmed. The learned single Judge directed the State Government to make reference under Industrial Disputes Act, 1947. 3. Briefly stated facts are as follows: Respondent No. 1 was employed as Joint Secretary of Indian Tea Association-appellant. On 27th November, 1995, respondent No. 1 was dismissed from service for disobeying an order of transfer. He complained of his dismissal to Labour Commissioner, Government of West Bengal. Conciliation proceedings under Section 12 of the Industrial Disputes Act, 1947 (for short the Act) were held and appellant submitted its comments stating that respondent No. 1 was not a workman. A failure report dated 2nd July, 1997 was submitted by the Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 10(1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry, and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference. But, it must be remembered that in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted question of facts and law and, therefore, could only be decided by Labour Court on a reference and not by the State Government while exercising its powers under Section 12(5) of the Act, which was rejected. The Court also held that the order of the Government acting under Section 10(1) read with Section 12(5) of the Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi-judicial one. It was also held that in entertaining a writ of mandamus against such an order the Court does not sit in appeal and is not entitled to consider the propriety or the satisfactory character of the reasons. However, if it appears from the reasons given in the order that the appropriate government has taken into accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive satisfaction of the Government; 4. If it appears from the reasons given that the appropriate government took into account any consideration irrelevant or foreign material, the Court may in a given case consider the case for a writ of mandamus and; 5. It would, however, be open to party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act. 7. We extract below the order of the State Government, which is speaking one: I am directed to say that in terms of the Hon'ble High Court's order dated 24-11-1997 in Writ Petition No. 22878 (w) of 1997 in the case of Shri Ajit Kumar Barat v. State of West Bengal Government has examined the matter in details. After examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such person- (i) and (ii)... (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. 9. Before making a reference under Section 10 of the Act the appropriate Government has to form an opinion whether an employee Is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended. 10. In the present appeal we find that the State Government rightly approached the question whether respondent No. 1 was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after taking into consideration material available on record and it could not be faulted. 14. Mr. Barat has urged that the question whether he was a workman is a disputed question of fact and can be decided only by the Industrial Tribunal and not by the State Government. In this connection, he has placed reliance on a decision of this Court in Abad Dairy Dudh Vitran Kendra Sanchalak Mandal v. Abad Dairy (1993) III LLJ (Suppl) 1993. This Court observed as follows: Having regard to the facts and voluminous evidence sought to be adduced by both parties, the question whether the appellants are workmen requires detailed investigation of facts. The issue requires detailed examination and can be satisfactorily adjudicated upon only by a Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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