1. ' SYED HAIDER ALI PIRZADA, J.---This Constitution petition is directed against the impugned order dated 26-8-1990 passed by the first respondent allowing the appeal filed by the third respondent thereby reinstating him.
2. ' The brief facts leading to the filing of the above petition are that the third respondent was employed by the petitioner establishment as Administration Assistant in supervising capacity. The case of the petitioner as set out in the petition is that the third respondent was not engaged in any manual work but his job included fixation of duties of persons and chowkidars and other staff members, to obtain quotations for making purchases, and besides similar other functions his duty was to have custody of lunch coupons to the Managers and for the management staff mess and to sell the same and deposit the sale proceeds of the coupons with the accounts department. It is the further case of the petitioner that factually the third respondent was performing substantially supervising functions and the clerical work, if any, involved in performance of his duties was only ancillary or identical to such employment. The third respondent was charge-sheeted on 14-12-1987 for misappropriation of a total amount of Rs,235,490 realised by him by the sale of lunch coupons from March 1984 to 26-11-1987, out of which he had deposited an amount of Rs,73,500 on 19-11-1987.
3. The third respondent sent a reply which was unsatisfactory and, therefore, a domestic enquiry was ordered. The enquiry officer found the third respondent guilty of the charge contained in the charge-sheet dated 14-12-1987 i,e, fraud and dishonesty in connection with the employer's business and property. The enquiry report was submitted and in consonance with the findings of the domestic enquiry, the third respondent was dismissed from service, vide order dated 9-3-1988.
4. Consequent upon the dismissal, the third respondent after serving grievance notice filed grievance petition under section 25-A of I.R.O., 1969 before the second respondent. The petitioner contested the petition. The petitioner pleaded in the written statement that the third respondent was not a workman. The parties filed their affidavits in evidence and they were cross-examined by the learned counsel appearing for the respective parties. The second respondent on assessment of the evidence adduced by the parties, found that the third respondent was workman and the charge has been proved against him and he was rightly dismissed from service. Against the above order, the third respondent filed' Appeal No, KAR-54/1990 before the first respondent, which was allowed by the impugned order dated 26-8-1990. The petitioners being aggrieved by the above order, have filed the above petition.
5. ' In support of the above petition, Mr. Obaidur Rehman, learned counsel appearing for the petitioner contended that the third respondent was not a workman and, therefore; the first respondent had no jurisdiction to reinstate him in service. He further contended that even in the absence of cross- objections, the first respondent was not debarred to pass order in favour of the petitioner.
6. ' On the other hand, Mr. Munib Ahmed Khan, learned counsel appearing for third respondent, submitted that the petitioner having not filed any cross-objection before the first respondent to the said finding rendered by the second respondent against them, they cannot be allowed to challenge the said finding. He further submitted that the petitioners have filed counter-affidavit in which this plea was not taken.
7. ' We have considered the respective contentions of the learned counsel for the parties. The question remains to be decided is that can petitioner challenge the said finding while supporting the order of the second respondent in their favour without having preferred any cross-objection under Order 41, Rule 22 of the Code of Civil Procedure against the finding that the third. Respondent was a workman.
8. ' Subsection (3) of section 37 of the Industrial Relations Ordinance, 1969 provides that any party aggrieved by an award given under subsection (1) or a decision given under section 25-A of section 34 or a sentence passed under clause (c) of subsection (5) of section 35, may prefer an appeal to Labour Appellate Tribunal within thirty days of the delivery or passing thereof and the decision of the Tribunal in such appeal shall be final.
9. ' Under the above section, the Appellate Tribunal has power to entertain appeals from any award or decision or a sentence passed under clause (c) of subsection (5) of section 35 of the Ordinance.
10. It is not in dispute that in the present case, the petitioner could have preferred an appeal from the award or decision or sentence. If so, the question is whether the third respondent was a workman or not, the petitioner could not have sustained the decision on the ground that the finding of the Labour Court was wrong.
11. A bare reading of the provisions of section 37(3) of the Ordinance would make it clear that there is no specific provision about filing of cross-objections, 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.
12. ' This question has been considered by Mr. Irshad Hasan Khan, J. Of the Lahore High Court in Muslim Commercial Bank Limited and another v. Punjab Labour Appellate Tribunal and 2 others 1990 PLC 325 in which the learned Single Judge came to the conclusion after giving cogent reasons which are fully supported by a catena of decisions discussed by him in the said judgment, that the Labour Appellate Tribunal has acted with material irregularity in not allowing the learned counsel for the petitioner td 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 is whether or not respondent No, 3 was a workman within the purview of the Labour Appellate Tribunal. This question ought to have been allowed to be raised and decided as a preliminary issue." We are in respectful agreement with this judgment of learned Single Judge for the reasons given by him in the said judgment.
13. We are, therefore, of the view that where a person could not have appealed against the decision or award, he is not required to file a cross-objection in order to assail a finding against him, on which finding the decision is not founded. In our opinion, therefore, cross-objection is contemplated only when the respondent could have also appealed independently against the award or decision or sentence and the finding must be such on which finding the decision is founded. It is only in such situation that a cross-objection to that part of the order or decision which is based on such finding, can be filed. If cross-objection is not filed, he.Cannot be allowed to challenge the decision or award.
14. ' We would allow the above petition and declare that the impugned judgment of the first respondent dated 26-8-1990 in the instant case is without lawful authority and of no legal effect.
15. The case is remitted to the learned Chairman, Sindh Labour Appellate Tribunal, for decision afresh in accordance with law in the light of the observations made in this judgment. The parties through their counsel are directed to appear before the first respondent on 4-1-1992. In the circumstances of the case, the parties are directed to bear their own costs.