ORDER R.R.K. Trivedi. J. - In this writ petition counter-affidavit has been filed by respondent No. 4 and petitioner has filed rejoinder affidavit. By order dated 31-7-1990 time was granted to the respondent No. 3 namely, Hydro Electric Employees Union, U.P. for filing counter-affidavit but no counter has been filed. Respondent Nos. 1 and 2 are represented by learned Standing Counsel. However, they have also not filed any counter affidavit. However, since the main contesting party respondent No. 4 has filed counter-affidavit, this writ petition can be decided finally for which learned counsel for both the parties have requested and considering the fact that respondent No. 4 was terminated from service on 27-4-1976, in my opinion, this is a fit case which should he finally disposed of at this stage. 2. The facts giving rise to this writ petition are that respondent No. 4. Shiv Nath Singh, was employed by petitioner as Sub-Station Assistant (hereinafter referred to as S.S.A.) vide order dated 2-11-1973 which has been filed as Annexure III to the writ petition. A perusal of this order shows that respondent No. 4 was absorbed in regular establishment with effect from 1-4-1972 and prior to that he had worked and completed three years' continuous service under work-charged establishment. It has also been mentioned in this order that appointment is temporary as S.S.A./patrolman. In the appointment letter it is also mentioned that services are liable to be terminated at any time without any notice and without assigning any reason. The respondent No. 4 continued to work up to 27-4-1976 on which date his services were terminated by an order saying that his services are dispensed with, with immediate effect as they are no more required. By this order there was also direction to pay one month's pay in lieu of notice. This order has been filed as Annexure V to the writ petition. It appears that after the services of respondent No. 4 were terminated, a dispute was raised before the Conciliation Officer, Sharanpur on 19-2-1981 by means of an application which has been filed as RA-1 to the rejoinder affidavit filed by the petitioner. This application was filed by t he Secretary of the Union, respondent No. 3. However, as the conciliation could not be reached, the matter was sent to State Government, respondent No. 1. This application was filed by t he Secretary of the Union, respondent No. 3. However, as the conciliation could not be reached, the matter was sent to State Government, respondent No. 1. The State Government vide order dated 25-5-1982 refused to refer to the dispute to the Labour Court under Section 4K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The reason assigned in the order is - "MANG BALHEEN HAI. VIVAD KAL VIROHIT HAI", meaning thereby that the demand has no force and the dispute is time barred. This order dated 25-5-1982 passed by the State Government has been filed as Annexure VII to the writ petition. Subsequently. the State Government vide order dated 9-5-1988 referred the dispute to the Labour Court under Section 4K of the Act. This order has been filed as Annexure I I to the writ petition. On the basis of the reference made by the State Government the dispute was initially registered as Case No. 5 of 1988 before the Labour Court, Dehradun. The State Government, however, by order dated 12-10-1988 transferred this case to Labour Court, Bareilly where it was registered as Case No. 295 of 1988. Before the Labour Court, both the parties filed their written statements and adduced evidence. The Labour Court gave its award on 31-8-1989 in favour of respondent No. 4 and directed him to be reinstated on the post with continuity in service and also directed to pay the entire arrears of salary along with other emoluments and benefits for which respondent No. 4 may be entitled in law. This award of the Labour Court has been challenged in this writ petition. 3. Reliefs sought are that award dated 31-8-1989, filed as Annexure I to the writ petition may be quashed. Second relief sought is that the reference order passed by the respondent No. 1 dated 22-5-1982, filed as Annexure VII, may also be quashed. It may be made clear here that by order dated 22-5-1982, State Government had refused to refer the dispute to the labour court and as such the petitioner cannot be aggrieved by this order. From the averments made in the writ petition it appears that in fact the petitioner felt aggrieved by reference order dated 9-5-1988 filed as Annexure II to the writ petition. However, by some mistake relief has been sought against the order dated 22-5-1982. 4. From the averments made in the writ petition it appears that in fact the petitioner felt aggrieved by reference order dated 9-5-1988 filed as Annexure II to the writ petition. However, by some mistake relief has been sought against the order dated 22-5-1982. 4. The petitioner has challenged the award of the Tribunal on the grounds that as initially the State Government refused to refer the dispute, it could not refer the dispute again to the Labour Court without giving opportunity of hearing to the petitioner. There was no fresh material on which basis the State Government could come to the conclusion that any industrial dispute existed or was apprehended so as to make any reference under Section 4K of the Act. The second order being violative of principles of natural justice is void and as the Labour Court's jurisdiction to adjudicate upon the dispute is based on the reference, the award of the Labour Court is liable to be quashed on this ground. The grievance has also been raised that after such a long lapse of time there was no justification for referring a stale dispute like the present one to the Labour Court without there being any fresh material before the State Government to show the existence of any industrial dispute or any apprehension of the same. 5. The petitioner has further challenged the award on the ground that the services of respondent No. 4 were terminated by order dated 27-4-1976 and the dispute was referred to by the State Government vide order dated 9-5-1988, i.e., after more than 12 years. For this delay, the petitioner cannot be blamed in any manner and the back wages could not be legally awarded in the facts and circumstances of the case. The award is wholly illegal and had on this account. 6. It has further been said that there is nothing to show on the record that respondent No. 4 did anything against the order dated 27-4-1976 by which his services were terminated. The dispute was raised before the Conciliation Officer through Union by application dated 19-2-1981, i.e. after about 5 years. Considering the conduct of the respondent No. 4, the Labour Court ought to have awarded a lesser amount. The petitioner's claim is that the whole of the award given by the respondent No. 2 could not be legally notified for enforcement under Section 6 of the Act. Considering the conduct of the respondent No. 4, the Labour Court ought to have awarded a lesser amount. The petitioner's claim is that the whole of the award given by the respondent No. 2 could not be legally notified for enforcement under Section 6 of the Act. It has further been submitted on behalf of the petitioner that the services of the respondent No. 4 were purely temporary and he could according to the terms and conditions contained in the appointment order, be terminated from service without assigning reasons. It has been further submitted that there were serious complaints against respondent No. 4 of meter hacking and that he submitted false and fake High School Certificate and ITI Certificate whereas he was neither High School nor had passed ITI which was necessary qualification for being appointed as S.S.A. A Vigilance Enquiry was ordered against him. The enquiry report was submitted on 24-9-1975. It was a case of loss of confidence and the respondent No. 4 was rightly terminated. The Labour Court illegally passed the award reinstating him in service. The order has been passed in mechanical manner without considering the allegations of serious misconduct against the respondent No. 4. There was nothing on record to show that respondent No. 4 remained unemployed for such a long time and without there being any such evidence he has been reinstated with all back wages causing serious loss to the petitioner. It has been further submitted on behalf of the petitioner that after such a long time the reinstatement of respondent No. 4 on the post is wholly illegal and arbitrary in the facts and circumstances of the case. 7. Counter-affidavit has been filed by respondent No. 4 disputing the allegations made by the petitioner in the writ petition. According to the respondent No. 4 it is not open to the petitioner to challenge the validity of the reference order under Section 4K of the Act. No such objection was raised before the Labour Court and the petitioner is not legally entitled to raise a new plea in the present writ petition. It has been further stated that respondent No. 4 was initially appointed on 7-7-1966 as S.S.O. and he became permanent S.S.O. with effect from 1-4-1972. Regarding Vigilance Enquiry it has been stated that no notice or hearing was ever given to respondent No. 4. It has been further stated that respondent No. 4 was initially appointed on 7-7-1966 as S.S.O. and he became permanent S.S.O. with effect from 1-4-1972. Regarding Vigilance Enquiry it has been stated that no notice or hearing was ever given to respondent No. 4. No enquiries were made from him and on the alleged changes the respondent No. 4 could not be terminated from service without giving any show cause notice and opportunity of hearing. The fact that initially reference was refused by the State Government vide order dated 22-5-1982 has also been disputed in paragraph 13 of the counter-affidavit, the reason given is that name of respondent No. 4 has not been shown in the order dated 22-5-1982 filed as Annexure A-7. It has been alleged that the order does not relate to respondent No. 4 and it was never served upon him. This order of 22-5-1982 was not filed before the Labour Court and the petitioner is not entitled to adduce fresh evidence at this stage. It has been further stated that the State Government was fully competent and rightly referred the dispute for adjudication to the Labour Court, vide order dated 9-5-1988 and the Labour Court has rightly passed the award as the order of termination is wholly illegal and arbitrary and no interference is called for by this Court under Art. 226 of the Constitution. The respondent No. 4 has been rightly reinstated as the order of termination has been found illegal and arbitrary. I have thoroughly considered the arguments advanced on behalf of the petitioner and respondent No. 4. 8. On behalf of the petitioner, reliance has been placed in the cases reported in 1979 (2) LLJ 22 (Cal), American Express International Banking Corporation v. Union of India; 1980 (1) LLJ 215 : (1980 Lab IC 475) (FB) (Mad), G. Muthukrishnan v. Administrative Manager, New Horizon Sugar Mills (P) Ltd., Pondicherry; 1983 Lab IC 223 (DB) (Punj and Har), M/s. Escort Ltd., Faridabad v. Industrial Tribunal Haryana, Faridabad; 1984 (2) LLJ 400 : (1984 Lab IC (NOC) 170) (FB), Karnataka Management of Theatre Sanjay v. State. In all the aforesaid cases it has been held that once the State Government declines to make reference and subsequently decides to make a reference, an opportunity of hearing should be given to the employer as principles of audi alteram partem became applicable and as the order entails civil consequences and the reference ordered without giving such opportunity of hearing is illegal and arbitrary. 9. The learned counsel for the petitioner has also referred to case reported in AIR 1970 SC 1205 : 1970 Lab IC 1033, Western India Watch Company v. Its Workmen in support of the proposition that the stale claim should not be revived by making reference after long lapse of time like in the present case. 10. On the other hand, learned counsel for respondent No. 4 has referred to and relied on cases : AIR 1979 SC 170 : (1979 Lab IC 1), M/s. Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal Haryana; AIR 1964 SC 1617 , Bombay Union of Journalists v. The State of Bombay; 1980 Lab IC 910, Abdul Rahiman Haji v. Abdul Rahiman. 11. I have thoroughly considered the case law cited in support of the rival contention, and, in my opinion, the power of the State Government to make a reference after declining to make reference earlier has been upheld by Hon'ble Supreme Court and the view has been consistent in this respect throughout. It has been held in clear terms that the power to make reference remains intact and can be exercised even after refusal by the appropriate Government on earlier occasion. A refusal of the appropriate Government to make reference is not indicative of exercise of power under the relevant provision. Exercise of power would be a positive act of making a reference, therefore, when the Government declines to make a reference the source of power is neither dried up nor exhausted. It only indicates that the Government for the time being refused to exercise the power but that does not denude the power. The power to make the reference remains intact and can be exercised if the material and relevant considerations for exercise of powers are available. Identical controversy was involved in case M/s. Western India Watch Company Ltd. v. The Western India Watch Company Workers Union mentioned supra. The power to make the reference remains intact and can be exercised if the material and relevant considerations for exercise of powers are available. Identical controversy was involved in case M/s. Western India Watch Company Ltd. v. The Western India Watch Company Workers Union mentioned supra. It was the case where Hon'ble Supreme Court considered the provisions of Section 4K of the Act and interpreting the aforesaid provision observed as under (at page (1039) of Lab IC) : "It is true that where a Government reconsiders its previous decision and decides to make the reference, such a decision might cause inconvenience to the employer because the employer in the meantime might have acted on the belief that there would be no proceedings by way of adjudication of the dispute between him and his workmen. Such, a consideration would, we should think, be taken into account by the Government whenever, in exercise of its discretion, it decides to reopen its previous decision as also the time which has lapsed between its earlier decision and the date when it decides to reconsider it. These are matters which the Government would have to take into account while deciding whether it should reopen its former decision in the interest of justice and industrial peace but have nothing to do with its jurisdiction under Section 4K of the Act. Whether the intervening period may be short or long would necessarily depend upon the facts and circumstances of each case. and therefore, in construing the expression "at any time" in Section 4K it would be impossible to lay down any limits to it." 12. In the above case the second reference was made after about four years and the Hon'ble Supreme Court approved the action of the State Government with the aforesaid observations. The aforesaid view taken in Western India Watch Company case has been followed by Hon'ble Supreme Court in subsequent decisions. 13. Now so far as the applicability of the principles of audi alteram partem while making second reference is concerned in my opinion, the principle cannot be applied. It cannot be disputed that the opportunity of hearing is not required to be given for making reference at the first instance and the reason behind it is that by order of the Government referring the dispute for adjudication to the Labour Court or Tribunal the employer is not directly affected. It cannot be disputed that the opportunity of hearing is not required to be given for making reference at the first instance and the reason behind it is that by order of the Government referring the dispute for adjudication to the Labour Court or Tribunal the employer is not directly affected. By the referring order the parties are only brought before a forum for adjudication of their dispute which is necessary for industrial peace and harmony. It has been held by the Supreme Court that power under Section 4K is not exercised in declining to make reference. It is only exercised when a positive act of making reference is made. Thus the position of employer is not altered in any manner whether the reference is made on the first occasion or subsequently after once declining to exercise the same power. No civil rights of the employer are jeopardised or affected and thus the principles of natural justice are not attracted. So far as this court is concerned, after considering in detail the views expressed in this context by various High Courts it has been held in case Indian Explosives Ltd. (Fertilizer Division) Panki, Kanpur v. State of U.P., 1981 (42) Fac LR 423: (1981 Lab IC (NOC) 148) that when the State Government by omission or by a positive order declines to make a reference there is no exercise of powers under Section 4K of the Act and, therefore, when the State Government ultimately does chose to make reference, the question of affording the management a hearing before taking different decision does not and cannot arise. 1 am in respectful agreement with the view taken by the Division Bench of this Court. 14. The only case cited by the petitioner which has not been considered by the aforesaid Division Bench is the case reported in 1984 (2) LLJ 400 : (1984 Lab IC (NOC) 170) (FB) of Karnataka High Court. In this Full Bench also Mr. Justice Venkata Challiah (as his Lordship then was) expressed dissenting view and after taking notice of various decisions of the Hon'ble Supreme Court, held that the principles of natural justice are not attracted when the State Government on a second occasion opts to refer the dispute for adjudication to the Labour Court or Tribunal. 15. Justice Venkata Challiah (as his Lordship then was) expressed dissenting view and after taking notice of various decisions of the Hon'ble Supreme Court, held that the principles of natural justice are not attracted when the State Government on a second occasion opts to refer the dispute for adjudication to the Labour Court or Tribunal. 15. I show my respectful disagreement with the reasonings adopted by the majority in the aforesaid Full Bench case and in my opinion there is no necessity of reconsidering the view taken by the.Division Bench of this Court. 16. There is yet another aspect of the case. The State Government while passing order dated 25-5-1982 declining to make any reference, in fact decided the dispute on merits which was wholly illegal and without jurisdiction and beyond the scope of Section 4K of the Act. The reasons assigned in the order were that the demand has no force and the dispute is time-barred. In my opinion, by adopting the aforesaid reasoning the State Government entered into the merits of the case which was beyond the pale of authority of the State Government as held by Hon'b1e Supreme Court in 1987 (1) SCC 479 : (1987 Lab IC 494), V. Vira Rajan v. Government of Tamil Nadu and in 1985 (3) SCC 189 : (1985 Lab IC 1001), Ram Autar Sharma v. State of Haryana and also by this court in the case reported in 1987 UPLBEC 516 (DB), Sudarshan Mishra v. State of U.P. As the order passed by the State Government in 1982 was under misapprehension and was without jurisdiction, the reference of the dispute by order dated 9-5-1988 is wholly justified. 17. For the reasons stated above, I do not find any force in the contention of the petitioner that the order dated 9-5-1988 passed by the State Government referring the dispute for adjudication to the Labour Court was illegal or void for not giving opportunity of hearing. 18. Now, the second question is as to whether the view taken by the Labour Court in the impugned award in respect of the order dated 24-7-1976 suffers from any error of law or jurisdiction. It is fully established from the documents on record that respondent No. 4 was absorbed in regular establishment with effect from 1-4-1972 and prior to that he had completed three years' continuous service as work-charged employee. It is fully established from the documents on record that respondent No. 4 was absorbed in regular establishment with effect from 1-4-1972 and prior to that he had completed three years' continuous service as work-charged employee. After being absorbed in regular establishment, the respondent No. 4 worked for more than four years when his services were terminated by order dated 27-4-1976. Thus on the date of termination he had already served the petitioner for about 10 years and had acquired at least a semi-permanent position in permanent establishment. The allegations against the respondent No. 4 are that he submitted forged certificates at the time of his employment and there were several other complaints of misconduct like meter backing etc. and on Vigilance Enquiry the allegations were found correct against the respondent No. 4. In my opinion, the allegations against respondent No. 4 were such, for which he ought to have been given opportunity of hearing before termination from service. As the allegations were basis of the ord, the Labour Court was fully entitled to lift the veil and to find out the real reason for terminating the services of the respondent No. 4. There is no error in the above order passed by the Labour Courts. 19. The remaining and very important question in the facts and circumstances of the case are whether the Labour Court is justified in deciding the award directing reinstatement of the respondent No. 4 on the post after such a long time and whether the direction to pay back wages consequent upon such reinstatement is correct in law? 20. So far as the question of reinstatement of respondent No. 4 on the post is concerned, in my opinion, the Labour Court has failed to notice a very important fact from the record. Respondent No. 4 in his statement on oath before the Labour Court which was recorded on 2-5-1989 stated his age to be 53 years and in cross-examination also he admitted his age as 52-53 years. He was terminated from service on 27-4-1976. His reinstatement at this age on the post cannot be justified in any manner. About 15 years have already passed. The respondent No. 4 would be attaining the age of superannuation at the age of of 58 years for which only three years have been left from now. He was terminated from service on 27-4-1976. His reinstatement at this age on the post cannot be justified in any manner. About 15 years have already passed. The respondent No. 4 would be attaining the age of superannuation at the age of of 58 years for which only three years have been left from now. In my opinion, reinstatement for such a short time after a long gap would not be in the interest of justice in any manner. The Labour Cour ought to have awarded a suitable compensation in lieu of reinstatement. 21. Another aspect of this question is that there were serious complaints against respondent No. 4 and the petitioner pleaded loss of confidence in respondent No. 4. Though the allegations made against the respondent No. 4 have not been adjudicated and no view has been expressed on the same but considering the long delay and further that only few years have been left for the respondent No. 4 to attain the age of superannuation, there will be no justification in sending the case back for recording findings on the allegations. It appears more proper that the case of the petitioner regarding loss of confidence in respondent No. 4 should be accepted and instead of reinstatement, respondent No. 4 be awarded suitable and reasonable compensation. 22. Now, last question remains as to what suitable compensation can be awarded to the respondent No. 4. The order of termination was passed on 27-4-1976. There is nothing on record to show that the respondent No. 4 took any step before 19-2-1981 when a dispute was raised before the Conciliation Officer on his behalf by Hydro Electricity Employees Union, U.P. For this delay, the petitioner cannot be blamed in any manner. When the parties failed to reach any settlement before the Conciliation Officer the matter was sent to State Government and there it remained pending and the reference was ultimately made on 9-5-1988, i.e. more than 12 years after the order of termination was passed against the respondent No. 4. For this period also, i.e. from 1982 to 1988, the petitioner cannot be blamed in any manner. The petitioner is also a Statutory Corporation and is engaged in essential public services. For this period also, i.e. from 1982 to 1988, the petitioner cannot be blamed in any manner. The petitioner is also a Statutory Corporation and is engaged in essential public services. Direction to pay, by such a Corporation, the amount for the period when the employee has not worked at all, for the reason or fault which cannot he assigned to the Corporation, shall not he in public interest. For this period of 12 years from 1976 to 1988 if the employer-petitioner cannot he blamed in any manner there cannot be any justification for penalising the petitioner to pay back wages for this period during which respondent No. 4 has not done any work. It has also not been proved before this Court or before the Labour Court that respondent No. 4 remained unemployed during this long time and, in my opinion, the Labour Court committed a serious error in awarding back wages to the respondent No. 4 for the period from 1976 to 1988. Now the only period left is from 1988 to 1994 when the respondent No. 4 will attain the age of 58 years, i.e. the age of superannuation according to his own statement. During this period the respondent No. 4 under the impugned award could have worked under the petitioner on his post. On the date of termination the respondent No. 4 was getting Rs. 385/- as total pay. During this period pay scales have been revised. In my opinion, if the petitioner is directed to pay an amount of Rs. one lakh in lieu of the reinstatement and other benefits awarded by the Labour Court, it shall meet the ends of justice. 23. For the reasons recorded above, the writ petition is partly allowed and the award dated 31-8-1989 given by the respondent No. 2 in Reference Dispute No. 295 of 1988 is quashed so far as it directs reinstatement of respondent No. 4 with back wages and the petitioner is directed to pay an amount of Rs. one lakh to the respondent No. 4 within a period of three months from the date a certified copy of this order is placed before them which shall be in lieu of the reinstatement and all other benefits. In the facts and circumstances of the case, there will be no order as to costs.