Per Somnath Ayyar, J.
1. By an order made by the State Government on 25 January, 1964, an industrial dispute was referred by them to the labour court under S. 10(1) of the Industrial Disputes Act. The petitioner before us who is the proprietor of the beedi factory which is the subject-matter of the reference calls in question the reference made in that way.
2. Sri Rangaswami Ayyangar, appearing for the petitioner, submitted to us that the reference was without competence, since, the subject-matter of the reference falls within Sch. III to the Industrial Disputes Act and so the reference could be made only to a tribunal and not to the labour court. He also maintained that the closure of the factory was bona fide and was above reproach. His third submission was that there was an unjustified assumption by the State Government that the persons on whose behalf the reference was sought were workers as defined by the Act.
3. We are of the opinion that it is unnecessary to investigate the correctness of the second and that third submission since this writ petition succeeds on the first.
4. The dispute referred to the labour court is about the closure of an establishment and so is a matter falling within Sch. III to the Industrial Dispute Act. Under S. 10(1)(d), the dispute should have been normally referred to a tribunal for adjudication. But under proviso to S. 10(1), it was possible for the State Government to refer the dispute to a labour court, even if the dispute related to a matter specified in Sch. III when it was not likely to affect more than one hundred workmen and the State Government thought fit to refer it to the labour court.
5. But, it does not appear from the impugned reference that the State Government was of the opinion that the dispute related to a matter which was not likely to affect more than one hundred persons or that they thought fit for that reason to make a reference to the labour court.
6. It is clear from the proviso to S. 10(1) that a reference to a labour court with respect to a matter which falls within Sch. III is permissible only when, by the application of their mind, the appropriate Government comes to the conclusion that the dispute was not likely to affect more than hundred workmen and that it was, therefore, proper to make a reference to the labour court. That opinion so formed by the appropriate Government must be displayed by the order of reference, although in a proper case the formation of that opinion could be demonstrated by independent evidence. There are no materials before us supporting the conclusion that the State Government thought that the dispute was not likely to affect more than hundred workmen or that for that reason, they thought fit to make a reference to the labour court and not to the tribunal.
7. Sri Shantharaj appearing for the State Government asked us to say that since in the list attached to the reference the names of thirty-five workers were enumerated and the second and third questions referred to the labour court related only to those thirty-five workers, nothing more was necessary to support the inference that in the opinion of the Government, the dispute was not likely to affect more than a hundred workmen. We do not find it possible to reach that conclusion on the slender foundation suggested by Sri Shantharaj.
8. The second question referred to the labour court is whether thirty-five beedi workers voluntarily stayed away from work and the third question asks the labour court to decide whether these thirty-five workers were entitled to reinstatement. But the fact that the labour court had to decide whether only thirty-five workers voluntarily stayed away, or were entitled to reinstatement, does not necessarily eliminate the possibility of the impact of the dispute on others.
9. In our opinion, the reference, for the reason stated, should have been made to the tribunal and not to the labour court. We therefore, set it aside. No costs.