Tarun Agarwala, J.;— The petitioner has filed the present writ petition challenging the validity and legality of the award passed by the Labour Court directing reinstatement of the workman with 40% back wages and with continuity of service. The petitioner has also challenged the reference order by which the dispute was referred to the Labour Court for adjudication. The facts leading to the filing of the present writ petition is, that the workman was engaged on daily rated basis as a Lineman from 1st February, 1987 and was allowed to have worked continuously without any break in service till 1st September, 1989 when his services was dispensed with along with 13 other persons. It was contended that the workman had worked for more than 240 days in a calender year and that the provisions of retrenchment compensation contemplated under Section 6N of the U.P. Industrial Disputes Act, 1947 had not been adhered to at the time when the workman's services were terminated. The workman did not stir in the matter and did not raise any industrial dispute and kept quiet for a period of 12 years and, on one fine day, the workman filed an application on 28th January, 2002 before the Conciliation Officer for settlement of his dispute. It was contended by the workman that he did not raise any dispute but having come to know that similarly situated workers and those who were junior to the workman have been reinstated pursuant to their case being allowed by the Labour Court and the High Court the workman has filed the present application. The delay in filing the application was condoned and since the parties could not arrive at a settlement, the Conciliation Officer submitted a failure report and forwarded the matter to the State Government. The State Government after considering the matter found it expedient to refer the dispute for adjudication to the Labour Court by its order dated 9th September, 2003. The terms of the reference order is somewhat like this: "whether the employers were justified in terminating the services of the workman from 1st September, 1989? If not, to what relief is the workman is entitled to". Before the Labour Court, parties filed their pleadings and led their evidence. The Labour Court, after considering the material evidence on record, found that the provisions of Section 6N of the U.P. Industrial Disputes Act,. If not, to what relief is the workman is entitled to". Before the Labour Court, parties filed their pleadings and led their evidence. The Labour Court, after considering the material evidence on record, found that the provisions of Section 6N of the U.P. Industrial Disputes Act,. 1947 had not been complied with and that the workman had worked for more than 240 days in a calender year. The Labour Court also came to the conclusion that similarly situated workers had won their case before the Labour Court, which award was affirmed by the High Court and the Supreme Court and, after considering the aforesaid facts, directed reinstatement with continuity of service and with 40% back wages. The petitioner, being aggrieved, by the said award has filed the present writ petition. Heard Sri Sanjay Kumar Tripathi, the learned counsel for the petitioner and Sri Rudra Pratap Singh, the learned counsel for the respondent-workman. The learned counsel for the petitioner submitted that the State Government committed a manifest error of law in referring an old and stale dispute after an inordinate delay of 12 years and that there was no justification to refer a stale dispute, which no longer existed. In support of his submission, the learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in the case of Assistant Executive Engineer Vs. Sri Shivalinga, 2002 (92) FLR 601 in which the Supreme Court held that the Labour Court was justified in declining to answer the claim in favour of the workman as the claim had become stale. The learned counsel for the petitioner further relied upon a decision of this Court in U.P. State Electricity Board and another Vs. State of U.P. and others, 2000 (84) FLR 304 in which it was held that where there was undue inordinate and unexplained delay, the reference order was liable to be quashed. In this regard, the law on the subject is clear and explicit, namely, that a dispute could be raised at any moment of time, so long as an industrial dispute exists. There has been a line of decisions that where there has been an inordinate delay, the State Government could be justified in not referring the dispute as in their subjective satisfaction, it was not inexpedient to refer such dispute. There has been a line of decisions that where there has been an inordinate delay, the State Government could be justified in not referring the dispute as in their subjective satisfaction, it was not inexpedient to refer such dispute. On the other hand, there is a line of decisions, and one of them is, Ajaib Singh Vs. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and another, AIR 1999 SC 1351 wherein the Supreme Court held that where the matter is referred belatedly it was for the Labour Court to mould the relief accordingly while deciding the claim especially with regard to back wages or with regard to reinstatement of the workman. This Court finds that the workman had categorically stated before the Conciliation Officer that he did not raise an industrial dispute but other persons who were terminated at the same time had raised an industrial dispute, which was allowed by the Labour Court and affirmed by the High Court and the Supreme Court. The workman further contended that pursuant to the said award juniors to the workman were reinstated and, consequently, the application was filed by the workman that he should also be reinstated in terms of the said award. In the opinion of the Court, the allegedly inordinate delay was suitably explained by the workman. The dispute had not come to an end. The Court finds that against the award of the Labour Court, the petitioner had filed a writ petition before the High Court, which was dismissed by a judgment dated 22nd October, 2003 and thereafter the Supreme Court had dismissed the Special Leave Petition, but prior to that, the workman raised an industrial dispute by moving an appropriate application. The Court is of the opinion, that the delay in raising the dispute was sufficiently explained. Since there was a failure, the Conciliation Officer submitted a failure report and thereafter the State Government referred the dispute for adjudication since it found that there exists an industrial dispute. The Court is of the opinion, that an industrial dispute was existing which had not come to an end and, consequently, the State Government was justified in referring the dispute for adjudication. The reference order in the opinion of the Court is perfectly valid and was rightly issued. This Court does not find any reason to interfere in the reference order. The reference order in the opinion of the Court is perfectly valid and was rightly issued. This Court does not find any reason to interfere in the reference order. The relief claimed by the petitioner to that extent cannot be granted and is rejected. The learned counsel for the petitioner submitted that admittedly the workman was appointed on a daily rated basis as a Lineman and had worked approximately for two years from 1987 to 1989. The learned counsel for the petitioner submitted that the Labour Court was not justified in reinstating the workman after almost 20 years from the alleged removal of the workman nor was the Labour Court justified in granting 40% back wages. In Ajaib Singh (supra) the Supreme Court has held that the delay in raising the dispute is a mitigating factor to be considered by the Labour Court while granting the relief to the workman. In the instant case, the Court finds that admittedly the workman had not stirred in the matter for 12 years and was sitting on the fence watching the litigation between the employer and the other workers and only stirred in the matter when the workers won their case from the Labour Court. For this delay the Court is of the opinion that the workman was not entitled for any wages i.e. from the date of the alleged termination till the date when the reference was made. In so far as back wages from the date of reference till the date of the award is concerned, the Labour Court is required to consider other mitigating circumstances, namely, the nature of appointment, as to whether the workman was appointed on a daily rate basis or he was appointed as a temporary workman or he was appointed as a permanent workman. The Labour Court was also required to consider the length of service and whether he was able to get employment during the intervening period as held by the Supreme Court in G.M. Haryana Roadways Vs. Rudhan Singh, 2005 (5) SCC 591 . In Kendriya Vidyalaya Sangathan and another Vs. S.C. Sharma, 2005 (2) SCC 363 the Supreme Court held that a workman was not entitled to back wages as a matter of right and that the employee has to show that he was not gainfully employed and that the initial burden was upon the workman. Rudhan Singh, 2005 (5) SCC 591 . In Kendriya Vidyalaya Sangathan and another Vs. S.C. Sharma, 2005 (2) SCC 363 the Supreme Court held that a workman was not entitled to back wages as a matter of right and that the employee has to show that he was not gainfully employed and that the initial burden was upon the workman. In the light of the aforesaid decision, the Court finds that admittedly the workman was appointed on a daily rate basis as a Lineman. The workman in his written statement and in his evidence before the Labour Court has clearly deposed that he got himself registered in the employment exchange and, inspite of his best efforts, he was unable to get any employment and that at the relevant moment of time he was doing agricultural work in his village. He has been cross-examined and nothing has come on record to indicate that the workman was gainfully employed during the intervening period. The Court finds that the factor of his appointment as a daily wage and that he was unemployed and considering the length of service, the Labour Court granted 40% back wages. In the opinion of the Court, the grant of back wages to the tune of 40% was wholly justified in the circumstances of the case. In the light of the fact that the court finds that against similarly situated workers who had raised an industrial dispute, the Labour Court had granted reinstatement with full back wages and in the writ petition filed by the petitioner the award was modified to the extent of reinstatement with 50% back wages, which was affirmed by the Supreme Court. Whereas other similarly situated workers have got 50% back wages the workman in question has only been given 40% back wages. Consequently, the Court does not find any justification to interfere in the award of the Labour Court granting 40% back wages. The question now arises whether the Labour Court was justified in granting reinstatement or not. The learned counsel for the petitioner laid stress upon the nature of engagement of the workman and submitted that since the workman was appointed on a daily rate basis there was no justification for his reinstatement. The question now arises whether the Labour Court was justified in granting reinstatement or not. The learned counsel for the petitioner laid stress upon the nature of engagement of the workman and submitted that since the workman was appointed on a daily rate basis there was no justification for his reinstatement. I would have agreed with the submission of the learned counsel for the petitioner but I find that out of 14 workers who had been terminated at the time when the workman in question was terminated 6 of them were reinstated after the judgment of the High Court in 2003, 3 of them were reinstated after the orders of Supreme Court and one of them was reinstated after the decision of the High Court on 11th September, 2009. When similarly situated workers have been reinstated pursuant to the award in terms of the Labour Court, High Court and the Supreme Court judgment, the Court does not find any reason not to grant the same relief to the workman concerned otherwise it would amount to discrimination. In the light of the aforesaid, the judgment cited by the learned counsel for the petitioner in the case of Mahboob Deepak Vs. Nagar Panchayat, Gajraula and another, 2008 (1) SCC 575 and State of U.P. and another Vs. Hind Majdoor Sabha and others, 2011 (3) UPLBEC 2568 is not applicable to the present set and circumstances of the case. In the light of the aforesaid, the Court is of the opinion that the award of the Labour Court does not suffer from any error of law. The writ petition fails and is dismissed. _____________