JUDGMENT : Rakesh Tiwari, J. This petition has been filed by the State of U.P. challenging the validity and correctness of the award dated 24.1.2000 passed by the Labour Court (II) U.P., Meerut. 2. The backdrop of the case is that Respondent No. 1, Dr. Sukhmal Jain was appointed on 19.8.1974 as an Assistant Medical Officer in the department of Medical Health and Family Planning. He was a temporary employee. He was involved in a criminal case u/s 302, I.P.C., was arrested by the police on 30.7.1975 and was placed under suspension vide order dated 8.9.1995. Subsequently, he was acquitted of the charge. After acquittal he was reinstated on 21.2.1997 and was posted as Medical Officer Incharge at the Primary Health Centre, Maho, district Aligarh by the Director Medical Health and Family Planning Welfare, U.P., Lucknow, vide order dated 7.5.1977. Thereafter Respondent No. 1 by letters dated 11.5.1977 and 12.5.1977 directed him to submit his joining before the Deputy Chief Medical Officer (Health), Aligarh. 3. Respondent No. 1 through his letter dated 13.5.1977 demanded Rs. 500 as travelling allowance and half of his salary for joining his duties at Maho, Aligarh, but he did not join there inspite of the fact that he was given the advance T.A. and advance salary in order to join at the transferred place of posting. Instead of joining at Maho, he tendered his resignation on 25.7.1977 with one month's notice, which was to become effective on 27.8.1977. 4. After the period of notice from the date of his resignation was over, he filed a claim petition before the Public Service Tribunal, U.P., Lucknow, claiming relief of salary with effect from 13.5.1977 to 26.8.1977, L.D.S. and General Insurance, total amounting to Rs. 4,637.35. A declaration was also sought for by him to the effect that he continued in service upto 26.8.1977. The Claim Petition No. 224/II of 1978 Dr. Sukhmal Jain v. Director Health, U.P. and Ors. was dismissed on 27.6.1980 by the Tribunal holding that he was not entitled for the salary as prayed for on the ground of no work no pay. The findings of the Tribunal are as under: Coming to the question of salary the Petitioner has failed to explain why he did not immediately proceed to his new station after he had received the orders of transfer along with the order of his reinstatement on 12.5.1977. The findings of the Tribunal are as under: Coming to the question of salary the Petitioner has failed to explain why he did not immediately proceed to his new station after he had received the orders of transfer along with the order of his reinstatement on 12.5.1977. The Petitioner's explanation that he did not proceed because he had not been paid his pay or advance. T.A. is not at all, sufficient and sound. Even if it is accepted that he could not proceed on that ground immediately there is nothing on record except his bare interested affidavit on the point that he had gone to join on 20.6.1977 and was not allowed to take there by the C.M.O., Aligarh. Under the above circumstances we hold that the Petitioner did not go to take over charge at his new station and continued at Meerut till he served the legal notice and subsequently till he tendered resignation. Admittedly the Petitioner did not work at all after 12.5.1977. The principle of no work no pay is to be applied in this case. The Petitioner is, therefore, entitled to no relief. This order was not challenged and became final. 5. Thereafter Respondent No. 1 gave legal notice on 22.7.1988 annexing thereto an alleged letter dated 25.1.1982 written to the Director Medical Health and Family Welfare, U.P., Lucknow, that he wants to withdraw his resignation tendered on 25.7.1977 alleging that the C.M.O., Meerut had informed him that his resignation was not accepted by the Government/Head of the department. 6. It appears from the record that earlier also the Respondent No. 1 had raised an Industrial Dispute before the Regional Conciliation Officer, Kanpur. The Conciliation Officer after hearing the parties had rejected the application of the Respondent No. 1 by order dated 30.5.1990 declining to make reference. Subsequently the Respondent No. 1 again raised an industrial dispute and initiated conciliation proceedings before the Conciliation Officer, Meerut. Alleging that his service was illegally terminated this time with effect from 13.5.1977 and prayed for reinstatement with full back wages. Following reference was made to the Labour Court-II, U.P., Meerut: Kya sewa yojko dwara apne shramik Sukhmal Jain putra Sri Sikhar Chand Jain pad Sahayak Swasthya Chikitsa Adhikari ko dinank 13.5.1977 se karya se prithak/vanchit kiya jana anuchit tatha/avaidhanik hai yadi han to sambandhit shramik kya labh/anuthosh/relief pane ka adhikari hai tatha anya kin vivrano sahit? 7. Following reference was made to the Labour Court-II, U.P., Meerut: Kya sewa yojko dwara apne shramik Sukhmal Jain putra Sri Sikhar Chand Jain pad Sahayak Swasthya Chikitsa Adhikari ko dinank 13.5.1977 se karya se prithak/vanchit kiya jana anuchit tatha/avaidhanik hai yadi han to sambandhit shramik kya labh/anuthosh/relief pane ka adhikari hai tatha anya kin vivrano sahit? 7. Consequently, the reference was registered as Adjudication Case No. 1 of 1991 which was subsequently re-numbered as Adjudication Case No. 96 of 1999. It is alleged that the reference was made without any notice or opportunity of hearing to the Petitioner. Case of Respondent No. 1: 8. In the written statement filed before the labour court it was averred that the department of Medical Health and Family Planning of the Government is an industry and though he was designated as the Head of the Department but he was a workman according to the nature of the duties discharged by him. It was further averred in the written statement that he had actually worked for more than 240 days in a year and his services have been terminated with effect from 13.5.1977, without following the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947, which is illegal and, as such, he is entitled to the relief of reinstatement of continuity in service and entire back wages. He also alleged mala fides in termination of his service and claimed that he has been victimized at the instance of the doctor against whom he had lodged F.I.R. It is further alleged by the Respondent No. 1 that he was refused joining on the post of Health Officer at the Primary Health Centre at Maho, Aligarh, where he had submitted his joining report on 12.5.1977 to the Chief Medical Officer. He submits that the Chief Medical Officer refused to accept the joining report at Meerut stating that the employee already stood transferred to Aligarh. Even otherwise the resignation letter cannot be accepted before an employee has completed 55 years of age under the rules. 9. The further stand taken by the Respondent No. 1 was that he was never informed about the factum of acceptance of his resignation letter and on 25.7.1982 he withdrew his resignation. Thus, according to him the employers have deprived him of his job since 13.5.1977 which amounts to retrenchment/termination of service. 9. The further stand taken by the Respondent No. 1 was that he was never informed about the factum of acceptance of his resignation letter and on 25.7.1982 he withdrew his resignation. Thus, according to him the employers have deprived him of his job since 13.5.1977 which amounts to retrenchment/termination of service. He is unemployed since 13.5.1977 and deserves to be reinstated in service with back wages and benefits with the benefit of continuity in service. Case of the employer/Petitioner: 10. The Director General, Medical Health Services and Family Welfare, U.P., Lucknow and the C.M.O., Meerut, submitted separate written statements denying the allegations made by the Respondent No. 1 on the ground that the provisions of U.P. Industrial Disputes Act, 1947, are not applicable in the case as the Medical Health and Family Welfare is a department of State Government, discharging sovereign functions of the State and it cannot be termed as an industry. 11. The stand taken by the employer in the written statement before the labour court was that he was arrayed as the Head of the Department and is fully authorized to contest the case. It is submitted that Respondent No. 1 had earlier raised the dispute before the Conciliation Officer which was rejected on the ground that his case is not covered by the definition of workman and that Respondent No. 1 again raised the industrial dispute before the Conciliation Officer, which was referred to the labour court without any notice or opportunity of hearing to the employers and is therefore, illegal. It is also alleged that the dispute was belated and in fact no industrial dispute either existed or was apprehended between the parties as Section 2A of the U.P. Industrial Disputes Act, 1947, has been incorporated by amending Act No. 34 of 1978, while the service of the workman terminated on 13.5.1977 and as such the dispute cannot be raised u/s 2A of the Industrial Disputes Act, 1947, that Respondent No. 1 was appointed as a temporary Assistant Medical Officer of Health vide order issued by the Joint Director (Karmik) on 19.8.1974 and his terms and conditions were governed by Temporary Government Servants Rules and his appointing authority was the U.P. Government. It was also submitted that he was not a workman, therefore, the reference under consideration is bad in law and incompetent. 12. It was also submitted that he was not a workman, therefore, the reference under consideration is bad in law and incompetent. 12. On the pleadings of the parties the labour court framed 13 additional issues. The relevant issues are as under : (1) Whether the Government of U.P. was the appointing authority of Dr. Sukhmal Jain or Director of Medical Health and Family Planning Welfare was the appointing authority of Dr. Sukhmal Jain? (2) What is the effect of Dr. Sukhmal Jain of not joining his posting at Maho, district Aligarh? (3) Whether Dr. Sukhmal Jain is covered under the definition of the terms 'workman'? (4) Whether the resignation submitted by Dr. Sukhmal Jain was voluntary and whether he acted upon the said resignation? (5) Whether the resignation submitted by Dr. Sukhmal Jain was accepted or not. If so, its effect? (6) Whether the proceedings and order passed by Public Service Tribunal dated 27.6.1980 operates as constructive res judicata. If so its effect? (7) Whether the dispute relating to termination w.e.f. 13.5.1977, could not be raised under the U.P. Industrial Disputes Act, 1947? 13. The services of the Respondent are governed by the rules framed by the State of U.P. and his services were purely temporary and are liable to be terminated on one month's notice. Relevant clauses 6, 7, 8, 9 and 10 of the appointment letter are quoted below: other language Admittedly Respondent No. 1 is a class II Government Servant and is governed by statutory rules framed under Article 309 of the Constitution of India. He is a Government servant as is clear from his petition, notice and letters. He was appointed by the Director of Medical Health and Family Planning Welfare, U.P., Lucknow and was transferred from Meerut to Aligarh where he was said to have not been allowed to join. He tendered his resignation and demanded his arrears of pay, allowances etc. From Annexure-9 it is clear that he left the charge on his own after expiry of notice period. He filed claim petition claiming stay, etc., before the Public Service Tribunal, etc., in which it was held that the Respondent did not work and was not entitled to any salary or allowances, etc., as claimed by him. This judgment has become final. He filed claim petition claiming stay, etc., before the Public Service Tribunal, etc., in which it was held that the Respondent did not work and was not entitled to any salary or allowances, etc., as claimed by him. This judgment has become final. The contents of the letter dated 27.8.1977 contained in Annexure-9 to the writ petition with regard to handing over charge by the Respondent are as under: I have tendered my resignation to the Governor of Uttar Pradesh along with one month's notice, which was received in his office on 28th July, 1977, therefore, the property which is with me as my charge of Assistant Medical Officer of Health, Meerut, deposit in your office as my charge. Please acknowledge the receipt. Today is the last day of my charge of Assistant Medical Officer of Health, Meerut, therefore make an arrangement to pay me all the arrears of my pay, allowances, C.D.S. and Insurance money deducted from my pay. Property (1) Brief Case (2) Brass Seal Dr. Sukhmal Jain M.B.B.S. 27.8.1977 26, Rajendra Nagar, Meerut 14. In his cross-examination held on 20.4.1998 it as admitted by Respondent No. 1 that he had submitted his resignation in which a month's notice was given and also admitted that he had handed over the Government property vide aforesaid letter dated 27.8.1977, after expiry of the period of one month. He admitted that he was diagnosing patients and had a clinic at 26, Rajendra Nagar, Meerut, though he denied that he was giving treatment and was in private practice but the inference from Exhibit E-7 is to the contrary. He was a member of P.M.S. cadre, which is a post of Class II Gazetted Officer as is evident from the record. 15. From the above admitted facts it is evident that the Respondent was an employee of the State Government and he approached the statutory Public Service Tribunal for redressal of his grievance. 16. The Department of Medical Health in which he was working as Assistant Medical Officer is not an industry and he was not a workman. He was performing his duties as Medical Officer according to Annexure-8 of the writ petition. There is no evidence by the Respondent as to his nature of duties, responsibilities and his rights as medical officer. 17. The Department of Medical Health in which he was working as Assistant Medical Officer is not an industry and he was not a workman. He was performing his duties as Medical Officer according to Annexure-8 of the writ petition. There is no evidence by the Respondent as to his nature of duties, responsibilities and his rights as medical officer. 17. Principles of res judicata may not be strictly applicable ; yet constructive res judicata does apply to the proceedings under the industrial law on the basis of public policy. After invoking the jurisdiction of Services Tribunal and losing his case, he cannot approach the labour court for similar relief. The reference made by the State Government was, therefore, without jurisdiction and the award of the labour court was without authority of law. 18. Admittedly he resigned from service on 25.7.1977 and left the charge on his own after one month. Communication of acceptance of resignation in writing is wholly irrelevant. The conduct of both the parties show that the parties acted upon the resignation and the Respondent cannot withdraw his resignation after 5 years on 25.7.1982. He raised industrial dispute in 1989 vide Application No. 55 of 1989 and was referred on 3.12.1990. 19. The labour court has failed to apply its mind to the relevant and admitted facts of the case and the finding given by it is misconceived and the award is liable to be set aside. 20. In view of totality of the circumstances the award given by the labour court reinstating him as Assistant Medical Officer with continuity of service and 60% of back wages is set aside. 21. The writ petition is allowed. The impugned award dated 24.1.2000, is quashed. No order as to costs.