1. ' MUSHIR ALAM, C.J.--- Petitioner has impugned the orders passed in C.P. No,S-342 of 2011 whereby the referendum held on 5-3-2011 of the respondent No,2 Shabbir Tiles and Ceramics Limited has been questioned.
2. ' Grounds urged now in the instant appeal are that 400 workers were deprived of right to franchise and secondly that section 24(2) of the Industrial Relations Act, 2010 mandates to hold referendum on the strength of 1/5 of the total strength of the workers in the respondent No,3's establishment When the learned Counsel was confronted as to whether such ground were raised in C.P. No,S-342 of 2011, he candidly conceded that these grounds were, not agitated. According to him these are legal grounds which can be raised any time. He has relied upon the judgment of Airport Development Authority v. Registrar of Trade Unions (1982 PLC 26).
3. ' Learned Counsel for the respondent challenges the maintainability of the petition and so also the grounds raised in the instant appeal do not merit consideration as the same has been raised first time. Such factual controversy was not before the Bench seized of the C.P. No,S-342 of 2011.
4. ' We have also examined the petition and as candidly conceded by the learned Counsel for the petitioner that no such ground was raised, we are of the opinion that the ground found on factual controversy cannot be agitated in the manner it has been before us. Whether 400 workers as alleged were deprived of franchise or whether there was application by 1/5 of the total strength of the workers to held elections or otherwise cannot be looked into at this stage as these are not the legal grounds but based on factual controversy. Consequently, the appeal against such order cannot be maintained on such grounds. Even otherwise referendum has already been held on 5- 3-2011 and next referendum is due on or before 5-3-2013, therefore, we do not find any merit in this appeal which is dismissed.
5. ' We are not touching the ground of maintainability or otherwise at this juncture.