1990 PLP 325 (PLC)

5. The petitioner took a preliminary objection to the maintainability of the application in the following terms:‑‑ "That the petitioner was employed in the Managerial capacity and was performing duties purely managerial and supervisory in nature. He was also drawing the salary accordingly. As such, the petitioner being covered by the definition of employer, is not covered by the definition of the term workman/worker as provided in the I.R.O. and other Labour Laws."

6. The learned Presiding Officer, Punjab Labour Appellate Court No. VII, Gujranwala, overruled the preliminary objection by holding that respondent No. 3 was a `workman' as defined under the Ordinance; but dismissed the application on merits by order dated 5‑9‑1988.

7. On appeal filed by respondent No. 3, the Punjab Labour Appellate Tribunal, Lahore, set aside the order of the Labour Court and respondent No. 3 was directed to be reinstated in service without back benefits. The objection taken by the petitioner that respondent No. 3 was not a `workman' was not allowed to be agitated as no cross‑objections were filed by the petitioner against the finding recorded by the Labour Court on this point.

8. Ch. Muhammad Aslam Chatha, Advocate, learned counsel for the petitioner argued that respondent No. 3 was not a `workman' and, therefore, the Punjab Labour Appellate Tribunal had no jurisdiction to reinstate him. He further argued that even in the absence of cross‑objections, the Labour Appellate Tribunal was not helpless to pass any order in favour of the petitioner according to the justice of the case.

9. Malik Muhammad Asghar, learned counsel for respondent No, submitted that the petitioner could support the impugned judgment of the Labour Court before the Appellate Tribunal only on the points decided in his favour and if he intended to attack points decided against him, he should have filed cross -objections under Order XLI rule 22, C.P.C. Here the cross‑objections were not filed by the petitioners, the Punjab Appellate Tribunal, therefore, rightly declined to grant any relief to the petitioners on this point. In support of his contention, reliance was placed on Khairati and others v. Aleemuddin and another P L D 1973 S C 295, wherein a Bench of the Supreme Court comprising the Honourable Chief Justice and another Honourable Judge was pleased to hold: "It is no doubt true that a respondent can support a decree even on points decided against him, but he cannot attack the decree or ask for its variation without his cross -objections".

10. The rule laid down in Khairati's case (supra) is not applicable here, inasmuch as, the petitioner herein, was neither attacking the decree of the Labour Court nor asked for its variation and, therefore, he was not debarred to support the order of the Labour Court by attacking the points decided against him without filing cross‑objections. Section 37(3) of the Ordinance merely provides that any party aggrieved by an award given by a Labour Court or the decision against him under section 25‑A or section 34 or the sentence passed under clause (c) of subsection (5) of section 35 may prefer an appeal to the Labour Appellate Tribunal within thirty days of delivery or passing thereof and the decision of the Tribunal in such appeals shall be final. There being no specific provision under section 37 of the Ordinance about filing of cross‑objections, the general principle of law, would be applicable that the respondent is entitled to support the order of the Labour Court on grounds different from the one on which the Labour Court has based its decision. The same view was taken in rent cases. Refer Muhammad Tufail v. Barkat Ali P L D 1967 Kar. 151; Sh. Muhammad Ashraf v. Muhammad Almas P L D 1981 Lah. 52; In Muhammad Hussain Khan v. Said Muhammad A Khan P L D 1988 S C (AJ&K) 184, it was held that under Order XLI Rule 22, C.P.C., the respondent at the hearing of the appeal is entitled to support the decree not only on the grounds decided in his favour, but also on the grounds decided against him without filing any cross‑objection. Reference may also be made to Abdullah Butt v. Munawar Ali 1985 S C M R 1007, wherein it was held that:‑‑ "As regards the second point the position is that the finding of the first Appellate Court in judgment dated 30‑6‑1975 against the petitioner on the question of contiguity was sought to be challenged by the petitioner before the High Court but the High Court refused to go into the question on the ground that the petitioner being the respondent neither filed any separate appeal nor any cross‑objection calling in question the correctness of the said finding. This seems to be a misconceived proposition, in that, Order XLI rule 22, C.P.C. in terms permits a respondent without filing an appeal from any part of the decree passed in his favour on any grounds decided against him in the Courts below. See Khairati and others v. Aleem‑ud‑Din and another P L D 1973 S C 295."

11. The same view has been consistently followed in Faqir Muhammad v. Muhabbat Khan P L D 1958 Lah. 918, Ahmad Din v. Karam Elahi 1984 C L C 2165, Riasat Ali v. Muhammad Shari 1984 C L C 2384, Wali Muhammad v. Abdul Karim 1984 C L C 2554, Ruqiya Begum v. Water and Power Development Authority 1985 M L D 942, Bashir Ahmad v. Additional District Judge, Gujrat 1985 C L C 2485, Syed Ali Raza v. Aurangzeb Khan 1987 C L C 1829 and Qutub ud‑Din v. Muhammad Siddique P L D 1969 Lah. 418.

12. The same question came up for consideration before a Full Bench of the Lahore High Court in Mhand v. Mst. Amautul Hafeez P ‑L D 1954 Lah. 278, wherein Rehman, J. (as he then was) observed:‑‑ ...........The right of respondent to agitate a ground decided against him by the Court or Courts below, under this rule, is subject only to the qualification that the ground would be available to "support the decree" i.e., only as a weapon of defence and not of offence, in order to maintain the status quo ante. To use a familiar expression, it can be used as a shield and not as a sword so that the burden of liability on the respondent is not increased beyond what is imposed by the lower Court's decree. The expression "support the decree" occurring in the rule, is somewhat equivocal in content but I am inclined in favour of the wider interpretation of this expression adopted by the Full Bench of the Madras High Court in Gadden Chinna Venkata Rao v. Koralla Satyanarayanamurthy in preference to the narrower view that prevailed with the learned Judges who decided Siri Ranga Thathachariar v. Srinivasa Thathachariar. If the rule is to be hedged round with any other limitations, justification for that course will have to be found in some other provision or rule of law, rather than the language of the rule itself." The same view is taken in the Indian jurisdiction in the Management of Itakhoolie Tea Estate v. Its Workmen A I R 1960 S C 1349. Reference may also be made to M/s. S.M. Yusuf v. Mirza Muhammad Mehdi Pooya P L D 1965 S C 15, wherein a Bench comprising three Honourable Judges headed by the then Chief Justice A.R. Cornelius, C.J., held that in terms of Order XLI rule 33, C.P.C., the Appellate Court has ample power to pass decree in favour of any party although such party has not filed any appeal. The relevant portion of the judgment maybe reproduced herewith advantage:‑‑ "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The terms employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative and the rule is further strengthened by non‑obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. The non‑obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole decree was before the appellate Court, but the other non‑obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that "in the absence of the counter‑appeal being filed a decree against another defendant cannot be given" not only constitutes a fetter upon the extremely wide power given to the Appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule."

12. Having considered the case‑law on the subject I hold that the Labour Appellate Tribunal has acted with material irregularity in not allowing the learned counsel for the petitioner to argue the point that respondent No. 3 was not a "workman" under the Ordinance on the ground that no cross‑objections had been filed against the judgment of the Labour Court on this point. The question whether or not respondent No. 3 was a workman within the purview of the Ordinance was a question relating to the jurisdiction of the Labour Court and the Labour Appellate Tribunal. This question ought to have been allowed to be raised and decided as a preliminary issue.

13. In view of the above, the impugned judgment of the Punjab Labour Appellate Tribunal dated 15‑12‑1988 is declared as without lawful authority and of no legal effect. The case is remanded to the learned Chairman of the Punjab Labour Appellate Tribunal for decision afresh in accordance with law and in the light of the observations made in this judgment. The parties are directed to appear before respondent No. 1 on 25‑10‑1989. To this extent the writ petition is accepted, but there shall be no order as to costs. M.Y.H./M‑1710/L Case remanded.