JUDGMENT : APARESH KUMAR SINGH, J. 1. Heard counsel for the parties. 2. Being aggrieved with the notice dated 29th January 2010 issued by the respondent No. 2-Assistant Labour Commissioner (C), Dhanbad threatening to launch prosecution under Section 29 of the Industrial Disputes Act, 1947 for non-implementation of the award dated 11th April, 2003 passed by the Central Government Industrial Tribunal No. 1, Dhanbad in Reference No. 139/1991, the petitioner management has approached this Court. 3. The reference dated 9th December 1991 made by the Ministry of Labour, Central Government under Section 10(1)(d) and Sub-Section (2A) of the Industrial Disputes Act in the following language has been answered in favour of the management by the Central Government Industrial Tribunal No. 1, Dhanbad by award dated 11th April, 2003. "Whether the action of the management of Ghanoodih Colliery of M/s. Bharat Coking Coal Ltd. in denying employment to the dependent of Shri S.P. Roy, Sr. Overman, who retired on 28.9.83, on the basis of circular No. BCCL/PA-II/5-11/5/2/128/77/31457-618 dated 22.6.1977 and para 9.4.4 of NCWA-III is justified ? If not, to what relief is the workman entitled ?" It has held as under :- "The action of the management of Ghangodih Colliery of M/s. BCCL in denying employment to the dependent of the concerned Workman, S.P. Roy, Sr. Overman, on the basis of circular dated 22.6.1977 of BCCL and para 9.4.4 of NCWA-III is justified. However, the management in the facts and circumstances of the case would be required to act in accordance with the observation as made above, within a reasonable period from the date of publication of the award." 4. That question relating to the correctness and legality of the award is not the subject matter of the writ petition. The present proceeding has been invoked by the petitioner management in view of the steps taken by the office of the Assistant Labour Commissioner (Central), Dhanbad by notices dated 29th January 2010 and 15th July 2010 (Annexure-5) alleging non-implementation of the instant award dated 11th April, 2003. The present proceeding has been invoked by the petitioner management in view of the steps taken by the office of the Assistant Labour Commissioner (Central), Dhanbad by notices dated 29th January 2010 and 15th July 2010 (Annexure-5) alleging non-implementation of the instant award dated 11th April, 2003. Learned Industrial Tribunal had, in a passing observation in the nature of an obiter, recorded as under :- "Since admittedly under identical facts and circumstances the aforesaid decision of Hon'ble High Court has been rendered and since the management has emphatically placed reliance upon the same for the present purpose, the observation made by the Hon'ble High Court as aforesaid in para 23 of its judgment or order can reasonably be taken to be equally available in the case of the dependent of the concerned workman of the present case also. In terms of the observations made by the Hon'ble High Court therein it can well be observed that in the instant case also if the said dependent of the concerned workman is otherwise eligible or would be found to be eligible, the management shall consider his case for appointment in any vacant post along with all other eligible candidates." 5. The dependent of the employee S.P. Roy (now deceased) was called upon through notice dated 15th June 2012 bearing No. 386 and reference letter No. 403 of the same date to furnish the relevant qualification certificate, identification and verification certificate from District authorities with six nos. of photographs for processing his case for employment. Workman claims to have submitted the documents vide Annexure-C dated 18th June 2012. When no progress was made in the matter of granting appointment to the workman then only according to the workman notice for initiation of prosecution for non-implementation of the award in question has been served on the petitioner-BCCL and its officers. It is the case of the workman that no challenge has been made to the award even now. Therefore, it is to be implemented and executed in its letter and spirit. 6. It is the case of the workman that no challenge has been made to the award even now. Therefore, it is to be implemented and executed in its letter and spirit. 6. Observation of the learned Tribunal at paragraph-7 of the instant award quoted herein above, on the one hand, appears to be wholly uncalled for after the reference was answered against the workman in favour of the management by the instant award, on the other hand it appears to be a wholly innocuous observation that in case appointment in any vacant post is contemplated by the management, the concerned workman, if found eligible, should be considered along with other eligible candidates. Pleadings on record do not show that the management ventured to issue open advertisement inviting applications from eligible candidates to fill-up any number of notified post in which the petitioner's claim has not been considered, though he is eligible for the said post. 7. Counsel for the petitioner management submits that Clause- 9.4.4 of NCWA-II which in its term contained a policy decision of the management to provide employment to the dependents of the superannuated employee of the BCCL has been declared as ultra-vires by the Apex Court in the judgment rendered in the case of Delhi Police Non-Gazetted Karmchari Sangh v. Union of India reported in AIR 1987 SC 379 . 8. Counsel for the petitioner has, however, submitted that appointments have been given earlier on the basis of Clause-9.4.4 of N.C.W.A-II also in obedience to judgements passed in other cases by the learned Single Judge of the Patna High Court such as in C.W.J.C. No. 2211/1988(R). 9. However, it appears from perusal of judgment passed in the said case that the learned Single Judge of Patna High Court took note of the decision rendered by the Supreme Court declaring Clause 9.4.4 of NCWA-II as void and non est in the eye of law and held that concerned workman did not have any legal right to get his ward appointed on attaining the age of superannuation. The reference made by the Central Government was held to be bad in law. However, an observation was made thereafter that in case the son of the concerned workman is eligible, the management shall consider his case for appointment in any vacant post along with all other eligible candidates. The reference made by the Central Government was held to be bad in law. However, an observation was made thereafter that in case the son of the concerned workman is eligible, the management shall consider his case for appointment in any vacant post along with all other eligible candidates. Such an observation was made in exercise of the powers under Sections 226 and 227 of the Constitution of India by the High Court. Even going by the said observation in the facts of the present case, it cannot be alleged that the petitioner management has refused to consider the case of the workman despite being eligible for appointment against any post notified through open advertisement calling for applications from all other eligible candidate. 10. In totality of the aforesaid facts and discussions made herein above, the threatened prosecution contemplated under the impugned notice dated 29th January 2010 issued by the respondent No. 2 (Annexure-3) cannot be upheld in the eye of law. Accordingly, the writ petition is allowed. Impugned notice dated 29th January 2010 is quashed. Pending interlocutory applications are accordingly closed.