1. NAZIM HUSSAIN SIDDIQUI, J.---The petitioners have challenged the decision of the learned Labour Appellate Tribunal, Karachi, dated 7-11-1995, whereby the respondents Nos. 2 and 3 namely Nayab Khan and Gulab Khan were ordered to be reinstated in service with back benefits within 30 days of the said order.
2. ' The respondents Nos. 2 and 3 on 30-5-1994 filed separate grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, against the petitioners for their re-instatement in service, stating therein that they were the employees of the petitioners and had formed a trade union namely, Finland Employees' Union, Rani Bagh, Hyderabad' of which respondent Gulab Khan was the Propaganda Secretary, while respondent Nayab Khan was its General Secretary.
3. Necessary papers for registration of the Union on 25-1-1994 were submitted before the Registrar Trade Unions, Hyderabad and on the same date the petitioners were informed verbally as well as in writing, about the said union and they received such communication on 27-1-1994. It is alleged thereafter, the establishment of the petitioners, refused to take them on duty. On 14-4-1994, the respondents served grievance notices upon the petitioners and the same were replied by the latter on 9-5-1994. Thereafter, the respondents approached the Labour Court VI, Hyderabad, but their grievance petitions were dismissed by order dated 9-2-1995. They challenged said order before the Labour Appellate Tribunal and the same was allowed by the order, which has been impugned in this petition.
4. It is contended on behalf of the petitioners that the learned Labour Appellate Tribunal has failed to consider that the grievance petitions of the respondents, when presented before the Labour Court, were hopelessly time-barred and on that ground alone the petitioners should have been dismissed. Elaborating it, Mr. Rizvi learned counsel for the petitioners submitted that the grievance of the respondents was brought to the notice of the petitioners on 27-1-1994, as such, the grievance petitions could be filed before Labour Court within 2-1/2 months i.e. not later than 12-4-1994, but these petitions were filed on 30-5-1994 without any application for condemnation of delay involved in these petitions. Learned counsel also contended that the respondents had failed to prove that the number of workers in the establishment of the petitioners was 20 or more. A plea has also been raised that the respondents having finally settled their dues, were no more aggrieved persons and were not entitled to file the grievance petitions.
5. ' As regards the first contention, learned counsel cited (1) Government of West Pakistan v. Kallar Syedan Ex-Servicemen Cooperative Society Ltd. PLD 1968 Lah. 1151, (2) Islamic Republic of Pakistan through Defence Secretary, Government of Pakistan v. Nazar Din Khatak PLD 1969 , Pesh. 313, and (3)
6. State Life Insurance Corporation v. Mst. Rashida Begum 1984 CLC 1046, to contend that the Courts are bound to apply law of limitation whether, pleaded or not, and to dismiss the matter, which is apparently time-barred.
7. ' It is an admitted fact that the point of limitation was neither raised before the learned Labour Court, nor before the learned Appellate Tribunal and first time it has been raised before this Court.
8. Mr. Raja Shamsuzzaman learned counsel for the respondents Nos. 2 and 3, on this point, submitted that the principle of waiver is attracted to this case, and it shall be presumed that the petitioners had abandoned said plea and they could not be allowed to raise it first time in the writ jurisdiction.
9. He placed reliance upon the case reported as Province of Sindh through Secretary, Government of Sindh, Health Department, Karachi and another v. Dada Hussain and another 1978 SCMR 203. The observation of the Supreme Court relied upon by the learned counsel for the respondents are as follows:-- "Mr. Usman Ghani the learned counsel for the petitioner has not argued on the merits of the case but only urged that the appeal filed by the respondent, was barred by time. From the impugned order, it appears that the point was not pressed before the Service Tribunal. In these circumstances, we consider that the point of limitation was abandoned before the learned Tribunal and cannot allow to be raised before us in this petition for special leave."
10. Section 5 of the Limitation Act provides that the limitation period can be extended if a sufficient cause for not preferring the appeal, or making the application within the prescribed period, is shown. It might have been open to the respondents obtained benefit to the (sic) section, if such objection would have been taken before the two Courts below. Under the circumstances, we hold that the point of limitation was abandoned by the petitioners and the same cannot be raised in this petition.
11. ' Next contention of the petitioners is that the establishment of the petitioners had less than 20 workers at the relevant time, therefore, the provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not attracted. Said Ordinance is applicable to every industrial or commercial establishment where 20 or more workers are employed on any day during the preceding 12 months. It is noted that Mr. Manzoor Ahmed Khan Sherwani, the Manager, of the petitioners in his cross-examination on this point stated that the list submitted by the establishment before the Labour Department did not contain the names of the respondents, and that the establishment had submitted a list of 18 workers. By including the names of the respondents, the total number of workers comes to 20. The Appellate Tribunal observed that, prima facie, there was evidence to show that there were 20 or more workers in the establishment of the petitioners. Nothing is available on record to hold otherwise. So, this contention is also without any force.
12. ' Mr. Ashraf Hussain Rizvi learned counsel for the petitioners argued that the respondents, having finally settled their dues, were no more aggrieved persons and were not entitled to maintain grievance petitions. The Manager of the petitioners in cross-examination on this point stated as follows:-- "No written order was given to the applicants about their removal from service. Voluntarily says it was not required under law, as nearly 18 persons work in our concern. It is a fact that no documentary proof has been adduced by us to show that on removal of the applicants they were paid their legal dues on 24-1-1994."
13. In view of above, it cannot be said that the respondents had finally settled their dues and were not aggrieved persons. There is no merit in this plea also. Even otherwise, disputed facts cannot be investigated, while exercising jurisdiction under Article 199 of the Constitution. ' On 2-9-1997, after hearing the arguments, we had dismissed this petition along with the listed applications, and these are the reasons for the same.