S.M.N. Raina, J.

This is a petition under Article 226 of the Constitution.

The Petitioner is a Trade Union registered under the Indian Trade Unions Act, representing the employees of Chambal Hydel Irrigation Project of Government of Madhya Pradesh (hereinafter referred to as the 'project') in the Gwalior Division. The Petitioner served three notices on the Deputy Chief Engineer Chambal Project, demanding certain allowances and wages for the period of strike in the year 1966 (vide Annexure B and C). As the Petitioner received no reply to these notices the dispute was referred to the Conciliation Officer under Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act"). The Conciliation Officer however failed to bring about an amicable settlement of the dispute and he submitted a report to the State Government under Sub-section (4) of Section 12 of the Act. As the Government failed to take any action on the report the Petitioner filed a writ petition (M. P. No. 29 of 1969) under Articles 226 and 227 of the Constitution against the State Government and the Labour Commissioner who are Respondents in this case. The petition was allowed by this Court and a writ of mandamus was issued directing the State Government to consider the report of the Conciliation Officer and to take necessary action under Section 12(5) of the Act, vide order dated 23-1-70 (Annexure M). Thereafter, the Labour Commissioner intimated the Petitioner that as the Chambal Project was an 'industry' within the meaning of Clause (j) of Section 2 of the Act, the dispute in question was not an 'industrial dispute' and as such it could not be referred to the Tribunal under Section 12(5) of the Act, vide letter dated 17-3-71 (Annexure N). This action of the Respondent has been challenged in this petition praying that the Respondents be directed to make a reference to the Tribunal under Sections 10 and 12 of the Act.

Shri S. K. Dubey, learned Counsel for the Petitioner, contended that the Government has taken the aforesaid action mala fide in order to defeat the just demands of the employees. It was pointed out in this connection that the question whether the 'project' is an 'industry' or not was not raised by the Government in the previous petition i e. M. P. No. 29 of 1969 although it was open to the Respondents to do so. It was, therefore, argued that this plea has now been raised at this stage merely to put forward some excuse for not referring the dispute to the Tribunal in pursuance of the decision or this Court in M. P. No. 29 of 1969 and the action of the Government is mala fide.

We notice that in paragraph 7 of the order dated 23-1-70 in the said petition this Court had observed as under:

When this inordinate delay is considered along with the fact that the State Government, with whom the decision under Section 12(5) rests, is itself a party to the dispute, there is weight and force in the contention that the impugned order was not made bona fide.

These observations do support the contention of the learned Counsel for the Petitioner. But as this Court merely directed the Respondents to take necessary action under Sub-section (5) of Section 12 of the Act and under the said provision it is open to the State Government not to make a reference for reasons to be communicated to the parties concerned, we prefer to take a liberal view of the matter particularly because the Respondents purported to take the aforesaid action on the authority of a decision of the Supreme Court in Secretary, Madras Gymkhana Club Employees Union v. The Management of the Gymkhana Club AIR 1968 SC 554.

The next point that was urged by Shri Dubey was that the plea of the State Government that the 'project' is not an 'industry' and as such the dispute is not an 'industrial dispute' within the meaning of the Act is barred on the principle of res judicata for two reasons. In the first place, this point was not raised by the Respondents in the previous petition. Secondly,