WPMS no. 207/2002 MCC No. 298/2010 Hon’ble Tarun Agarwala J. Mr. M. C. Pant, the learned counsel for the petitioner. Mr. R. K. Raizada, the learned counsel for the respondent. Heard on recall/review application no. 298/2010. Cause shown in the recall application is sufficient. The application is allowed. The order dated 26.3.2010 is recalled. Heard the learned counsel for the parties on the merits of this case. The service of the petitioner was dispensed with by the employer. The petitioner being aggrieved filed an application for referring a dispute for adjudication before the appropriate Labour Court and Industrial Tribunal. The Deputy Labour Commissioner, who is the delegated authority of the State rejected the application of the petitioner and declined to refer the dispute on the ground that the petitioner is not a workman as defined under Section 2(s) of the U.P. Industrial Disputes Act. The petitioner, being aggrieved, has filed the writ petition. The question as to whether the petitioner is a workman or not is a matter, which could not be adjudicated by the Deputy Labour Commissioner. The only thing which the Deputy Labour Commissioner is required to consider is, whether an Industrial dispute was in existence or apprehended or not and further whether it was expedient to refer the dispute or not. The question as to whether the petitioner is the workman or not on the relevant date could only be decided by the Labour court and Industrial Tribunal.The petitioner placed reliance upon the decisions in the case of Ahmed N. Makada and Government of India and others 2000(85) FLR 82 and Sharad Kumar Vs Government of NCT of Delhi and others 2002 LILR 269. The Hon’ble Supreme Court held that the question as to whether the applicant was a workman or not could not be decided by the authority while referring the dispute and that the matter could only be decided by the Industrial Tribunal or Labour Court. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed and the mandamus is issued to the State Government to refer the matter to Labour Court or Industrial Tribunal for adjudication within three months from the date of the production of a certified copy. (Tarun Agarwala, J.) Dated: 5.5.2010 Nishant