R. R. K. TRIVEDI, J. Facts giving rise to this petition are that on 7-6-1951, thirty five workmen were dismissed from service. They raised an industrial dispute. State of U. P. vide order dated 23-10-1951 took the view that an industrial dispute in respect of the matters hereinafter specified exists between the concern known as M/s. Athertan West and Company Ltd. , Kanpur and its workmen and whereas in the opinion of the Governor it is necessary so to do for the maintenance of the public order and for main taining employment, referred the dispute- for adjudication to one Shri J. N. Khanna, Regional Conciliation Officer, Kanpur. The reference was as under :- "whether the workers whose names appears at Appendix a were unjustly and wrongfully dismissed by the management ? If so, to what relief are they entitled. 2. This order of the State of U. P. was challenged in this Court by the Management in Writ Petition No. 7944 of 1951. However, this Court dismissed the writ petition on 5-3-1954. Thereafter, Special Leave Petition was filed before Honble Supreme Court which was also dismissed on 10-3-1958. The State of U. P. , however, vide order dated 30-12-1957 with drew its earlier order dated 23-10-1951 referring the dispute for adjudi cation. This order became final as the workmen did not challenge the same. 3. In 1987, however, three labour unions, namely, Hind Mazdoor Sabha, U. P. , Sooti Mill Mazdoor Union and U. T. U. , U. P. branch, again raised a dispute about the dismissal of 15 employees on 7-6-1951. It is not disputed that names of these 15 employees were included in the Appendix attached to the order dated 23-10-1951 The State of U. P. C. by order dated 6-4-1991 referred the dispute to the Industrial Tribunal. On the bash of the order dated 6-4-1991 the Industrial Tribunal 111, respondent No. 2, regis tered Adjudication Case No. 196 of 1991 and served a notice on the petitioner for the date 10-7- 1991. On receipt of the notice, petitioner filed present writ petition on 9-9-1991 which was admitted the same day and interim order was passed suspending the operation of the impugned order dated 6-4- 1991. Counter and rejoinder affidavits have been exchanged between the parties. 4. I have heard learned counsel for the parties. On receipt of the notice, petitioner filed present writ petition on 9-9-1991 which was admitted the same day and interim order was passed suspending the operation of the impugned order dated 6-4- 1991. Counter and rejoinder affidavits have been exchanged between the parties. 4. I have heard learned counsel for the parties. Learned counsel for petitioner has assailed the impugned order dated 6-4-1991 on the follow ing grounds :- (1) That the impugned order has been passed after about 40 years and after such a long time, reference could not be made for the stale and dead claim. The order has been passed mechanically and without applying mind. (2) That the impugned order has been passed without giving any opportunity of hearing which was necessary in the facts of the present case as it could entail serious civil consequences. (3) That during this period of 40 years the management changed thrice. Earlier the Company was known as M/s. Atherton West and Company Ltd. and was owned by a British National. Thereafter, it was sold to a private employer. Subsequently, the management was taken over by the National Textile Corpo ration Ltd. That at the time of reference, the alleged workmen were not employees of the petitioner-Company and there could not be any industrial dispute. (4) Lastly, it has been submitted that after such a long lapse of time, it shall not be possible for the management to trace out and bring the record relating to the employment and dismissal in June, 1951 and the management shall suffer irreparable pre judice if such a stale and dead claim is allowed to be adjudi cated. 5. Learned counsel for the respondents, on the other hand, has sub mitted that it is a settled position of law that the State Government is not under obligation to give any opportunity of hearing to the employer before making a reference to an Industrial Tribunal or the Labour Court and the order cannot be said to be illegal on this ground. It has been further submitted that the workmen were agitating about their grievances and they cannot be said to be at fault. The delay has been caused on account of the management. It has been further submitted that the workmen were agitating about their grievances and they cannot be said to be at fault. The delay has been caused on account of the management. It has been further submitted that when the case of the employees was taken up by the three Labour Unions, the industrial dispute came in existence and the State Government has rightly referred the dispute for adjudication to the Industrial Tribunal. There is no time limit prescri bed in law for making such a reference and the claim of the workmen could not be termed as stale in the facts and circumstances of the case. Both the learned counsel have relied on certain authorities which shall be referred to and discussed at the relevant time. 6. I have seriously considered the submissions of the learned counsel for parties and, in my opinion, the case involves serious questions to be answered. The first and important question is about the justification and propriety of referring of the dispute after 40 years. 7. Learned counsel for respondents placed reliance on the case of Western India Match Company v. Its Workmen, AIR 1970 SC 1205 and has Submitted that the mere fact that there has been a lapse of time cannot be a ground for refusing to make reference if on ths date the reference was made, an industrial dispute was in existence. 8. Learned counsel for petitioner, on the other hand, has placed reliance in the judgment of Honble the Supreme Court in case of Shalimar Works Ltd. and its Workmen reported in 1959 (2) LLJ 26 which was followed by Andhra Pradesh High Court in case of Vazir Sultan Tobacco Company Ltd. , Hyderabad v. State of Andhra Pradesh, 1964 LLJ 622. in Western India Match Company, Honble Supreme Court in para 9 after discussing various judgments concluded as under : ". . . . In fact, when the Government refuses to make a reference, it does not exercise its power, on the other hand, it refuses to exercise its power and it is only when it decides to refer that it exercises its power. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that it is so, the fact it had earlier refused to exercise its power does not preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of time or that a party to the dispute was, by the earlier refusal, led to believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference. " 9. From a perusal of the aforesaid view expressed by Honble the Supreme Court, it is ;clear that Western India March Company was a case of non-exercise of power by the State Government which had earlier refused to make a reference but in the present case the reference was actually made on 23-10- 1951. Order of reference was questioned in this Court as well as before Honble Supreme Court and was upheld but ultimately the State Government withdrew the order on 30-12-1957. Thus, it does not remain a case of non-exercise of power. The power to refer the industrial dispute was actually exercised but withdrawn. The order withdrawing reference was not questioned by the workmen in any court of law. They themselves could raise a dispute before the Industrial Tribunal or the Labour Court but they had not choosen to do so and kept quiet for over 30 years, were in 1987 the three labour unions espoused their cause and made a fresh attempt to get the dispute referred. In my opinion, the facts of the case in hand are distinguishable from the case Western India Match Company and the ratio of the aforesaid judgment cannot be applied in the present case. The opinion expressed by Honble Supreme Court in the case of Shalimar Works Ltd. v. Their Workmen is applicable. In my opinion, the facts of the case in hand are distinguishable from the case Western India Match Company and the ratio of the aforesaid judgment cannot be applied in the present case. The opinion expressed by Honble Supreme Court in the case of Shalimar Works Ltd. v. Their Workmen is applicable. Their Lordships observed as under: "-----It is true that there is no limitation prescribed for reference of disputes to an Industrial Tribunal, even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carry on and it for any reason there has been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in the particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after re-employment pt most of the old workmen. We have also pointed out that it was open to the workmen themselves even individually to apply under Section 33-A in this case ; but neither that was done by the workmen nor was the matter referred for adjudication within a reasonable time. In these circumstances we are of opinion that the Tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the correct order to make. . . . . . . . . . " From the, facts of the present case, it is clear that it was not a case of more lapse of time, but it is a case of long lapse of time after which a party cannot be expected to retain the evidence when admittedly the management changed more than once. The State Government in these peculiar facts and circumstances, in my opinion, ought to have applied its mind seriously to the period already lapsed which brought about material changes. An industrial dispute is not expected to remain alive for such a long time. The State Government in these peculiar facts and circumstances, in my opinion, ought to have applied its mind seriously to the period already lapsed which brought about material changes. An industrial dispute is not expected to remain alive for such a long time. It was also not expected from the labour unions to raise such a stale and dead claim as industrial dispute before the State Government. In my opinion, the labour unions also miserably failed to act banafide in raising such an old and stale claim. The law confers power on the State Government to refer a dispute and recognizes labour unions to espouse such dispute with a pious object to maintain peace and harmony in the industrial sector so that production may continue uninterrupted. Thus, the labour unions do not discharge a lessser responsibility in espousing the claim of the Workmen before the State Govern ment for making reference, hence this responsibility should be discharged with care, here failure appears on both ends. 10. The second important aspect of the case is as to whether petitioner was entitled to an opportunity of hearing before making a reference. The settled view of this Court as well as of Honble Supreme Court is that employer is not to be given an opportunity of hearing before making a reference as in making reference the State Government does not decide any dispute but it only sets the process of adjudication in motion where the employer shall get full opportunity. Learned counsel for the respondents has placed reliance in case of Indian Explosives Ltd (Fertilizer Division), Panki, Kanpur v. State of U. P. , reported in 1981 (42) FLR 423 (DB) ; M/s. Avon Services (Production Agencies) Pvt. Ltd. v Industrial Tribunal, Haryana, reported in 1973 (37) FLR 363 ; Abdul Rahiman Hail v. Abdul Rahiman, reported in 1979 (39) FLR 357 and Binny Ltd v Their Workmen, reported in (1972) 3 SCC 806 . 11. Leaned counsel for petitioner, en the other hand, placed reliance on the case of Indian Telephone Industries Ltd. v. State of Karnataka reported in 1978 (1) LLJ 544 and has submitted that the second order of reference shall entail civil consequences to the employer and the Government is bound to give an opportunity to the employer to make a represen tation. 12. 12. I have considered this question seriously and in my opinion in the facts of the present case an opportunity ought to have been given It was not a case of non-exercise or power by the State Government in declining to make a reference but here the Stale Government actually made the reference and then withdrew the same after lapse of over six years though the order of reference was upheld by this Court and Honble Supreme Court. In such circumstances, the Government if had chosen to make a reference second time an opportunity ought to have been given to the employer as during this period of 40 years let of changes could have taken place and Government before passing the order of reference ought to have opted to be apprised of such facts which could be very relevant and important in forming opinion for making reference. In my opinion, in their present case, the principles of natural justice have been violated. It cannot be denied that the order of reference which initially could have been said an order not causing any prejudice to the employee, can be said, being passed second time after 40 years, causing a serious prejudice to the employer and more so when the employer has changed. The State Government has thus committed a serious error in not giving opportunity to the petitioner. The order cannot be sustained in law on this ground also. 13. For the reasons stated above, this petition is allowed- The order dated 6-4-1991 passed by the State Government referring the dispute to the respondent No. 2 is quashed. The respondent No. 2 need not proceed further in Adjudication Case No. 196 of 1991. There -will be, however, no order as to costs. Petition allowed. .