1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.212 OF 2009 Mumbai Port Trust Mazdoor Sangh ..Petitioner. Vs. Union of India and others ..Respondents. .... Mr. N. M. Ganguli for the Petitioner. Mr. H.K. Vardhan and Mr. N.R. Prajapati for Respondents 1 and 2. Mr. S.K. Chari i/b M.V. Kini & Co. for Respondent No.3. .... CORAM: DR. D.Y. CHANDRACHUD, J. & MRS. MRIDULA BHATKAR, J. 21st March, 2009. P.C. : 1. The Petitioner raised an industrial dispute and during the course of conciliation a failure report was submitted under Section 12 (4) of the Industrial Disputes Act, 1947. The Government of India in the Ministry of Labour thereupon passed an order dated 5th December, 2007 declining to refer the dispute to adjudication for the following reasons : “The management has reported that Shri. Ramchandra Rane could not pass the practical Test held for promotion to the post of Electrician Winder and therefore, he was declared unsuitable by the D. P. C. Hence the dispute 2 raised is not maintainable.” 2. On behalf of the Petitioner it has been submitted that it was not open to the appropriate government to enter upon the merits of the industrial dispute and to decline to refer the dispute to adjudication on a view formed on the merits. The contention will be required to be accepted in view of the well settled position in law that it is not open to an appropriate government when it entertains an application for making a reference to adjudication to enter upon the merits of the industrial dispute. In the circumstances, the impugned order of the Desk Officer, in the Union Ministry of Labour dated 5th December, 2007 is set aside. The First Respondent is directed to pass a fresh order in accordance with law within a period of three months from today. The Petition is accordingly disposed of. DR. D.Y. CHANDRACHUD, J. Mrs. MRIDULA BHATKAR, J.