1. DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No,II, Karachi dated 26-3-1989 whereby the grievance petition filed by appellants was dismissed on the ground that it was barred by limitation.
2. ' I have heard Mr. Shafiq Qureshi for appellants and Mr. Khursheed Ahmad for the respondents and have also gone through record and proceedings of the case.
3. ' Admittedly the appellants were workmen working with the respondents. On 5-12-1987 they were served with the termination order intimating them that their services were terminated with one month's notice w,e,f, 6-12-1987. They served grievance notice upon the respondents on 8-12-1987 which were replied to by the respondents. Their services were however, terminated in pursuance of aforeasid notice after completion of one month on 5-1-1983. Thereafter, they again served another grievance petition upon the respondents on 6-1-1988 which was replied to by the respondents on 19-10-1988. The appellants filed second grievance petition on 2-4-1988 alongwith the grievance petition. They filed an application under section 65 (b) for the condonation of delay and also filed affidavit in support thereof. The affidavit in support of this application is filed by one Abdullah Khan who is General Secretary of the C.BA. In para. 2 of his affidavit he has stated that on the retrenchment of workers there were negotiations between the union and the management before the Director Labour Walfare Government of Sindh and agreement dated 2-3-1988 was signed between the parties and it was decided that management would consider the reinstatement of the workers. However, the negotiations failed on 31-3-1988. 1st April being Friday and weekly holiday the appellants filed application on the 2nd April, 1988.
4. ' The question that requires consideration is, whether the reason shown by the appellants for delay is sufficient reason for condoning the delay. What is sufficient reason is dependent on the facts of each case and the superior Courts have decided various cases enunciating certain principles keeping in view the facts of the peculiar case. Mr. Shafique Qureshi contends that purpose of the I.R.O., 1969, as spelt out from its preamble is to avoid the differences and disputes arising between the management and workers and to settle them. He has further submitted that under section 26 of the I.R.O. If there arises Industrial Dispute between the employer and C.B.A. The case may be referred by one party in writing either to Works Council or by the other party and the other party shall try to settle the bilateral disputes within ten days on receipt of communication. It is submitted that the C.BA. Had taken up the matter on behalf of the retrenched workers under the provisions of I.R.O. And initial agreement was reached on 2-3-1988 whereby the management agreed to consider the reinstatement of workers which negotiation finally failed on 31-3-1988. Mr. Shafique further submits that no counter-affidavit was filed by the respondent nor any evidence was recorded to rebut the averments made in the affidavit filed in support of the application under section 65(b).
5. ' Mr. Khursheed on the other hand contended that there was no settlement arrived at between the parties as defined under the Industrial Relations Ordinance and furthermore that even if there were any negotiations that would not extend the time of limitation. In support of his contention he has relied upon certain case law. In the case of Allied Bank of Pakistan v. Dildar Muhammad Pervaz 1977 PLC 715 it was observed that sufficient cause used in section 5 of Limitation Act means circumstances beyond the control of the party concerned. The learned Tribunal had relied upon the case of Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102. In said case of Abdul Ghani question before their Lordship was whether filing of the case in a wrong Court on advice of counsel could be considered as sufficient cause for the purpose of condonation of delay. Their Lordships observed under section 5 there has to be a finding for sufficient cause. In pre-partition India sufficient cause has been defined as circumstances beyond the control of party and I do not know of any case wherein the definition cause had been rejected. Their Lordships further observed" that section 14 of the Limitation Act 1908 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: "good faith" nothing shall be deemed to be done in good faith which is not done with due care and attention. "Now if an appellant proves that he filed an appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control"
6. ' Mr. Khursheed Ahmad has also placed reliance on the decision of this Tribunal in the case of Textile Corporation of Pakistan v. M. Usman 1981 PLC 905 wherein it was held that time spent in appeal, review and mercy petition were excludable only if such appeal, review and mercy petition were provided under law, settlement or by practice.
7. ' In the instant case the retrenchment of the appellants did raise an Industrial Dispute as defined under the I.R.O. The appellants had two remedies viz. To get this Industrial Dispute settled through the C.B.A. Under section 26 of the I.R.O. And also to approach the Labour Court for reinstatement under section 25-A(10). It appears that in the first instance the appellants took the first I course Open to them and subsequently reverted to the second course when the first remedy failed. They have also produced a copy of an agreement alleged to have been signed by the respondents dated 2-3-1988 wherein the respondents had agreed to consider the reinstatement of the appellants and according to the affidavit these negotiations failed on 31-3-1988. There is no counter-affidavit to rebut these averments.
8. ' Whether this agreement was signed or not signed by the respondent, whether negotiations were being continued between the parties and failed on 31-3-1988 are questions of fact and prima facie the averments made by the appellants have not been rebutted. The question whether appellants had pursued C remedy under section 26 in good faith, is also a question of fact. Prima facie in my opinion the appellants have been able to show that they were pursuing certain remedy, provided under the law in good faith and therefore it can be held that it was sufficient cause for condonation of delay.
9. ' I. Therefore, set aside the impugned order of the learned IInd Labour Court and remand the case back to the Labour Court for deciding it on merits. It will, however, be open to the respondent to raise the plea of limitation which shall be decided by the trial Court on the basis of evidence produced by the parties at the time of final decision.