1. NAIMUDDIN, J: --The appellant in appeal No.392 of 1989 and the appellant in Appeals Nos.393 and 394 of 1989 were the staff nurses in the Mayo Hospital, Lahore. Disciplinary proceedings were taken against them. They were charge-sheeted on 26th March, 1986 and after enquiry, shows-cause notice and reply, they were removed from service by the order dated 10-1-1987 by Miss Raisa Zahoor, Chief Nursing Superintendent against which the appellants filed separate appeals before the Service Tribunal. Before the Service Tribunal in all the appeals the orders of removal were questioned on merits as well as on question of law. The Tribunal dismissed the appeals, both on merits as well as on question of law. Before us the judgments of the Tribunal have not been rightly questioned on merits. But, since the question of law raised before the Service Tribunal goes to the very roots of the decision, we have to consider the same. Before the Tribunal it was contended that the orders of removal from service of the appellants was void, without jurisdiction and ultra vires, as according to Punjab Health Department Delegation of Powers Rules, 1971, the officer next below the Head of the institution was the authority in respect of the staff nurses which the appellants were.
2. But, the Chief Nursing Superintendent, Mayo Hospital, who passed the orders of removal of the appellants was not next below the Head of the institution, so not competent, according to the rules, to pass orders for removal of the appellants. Dealing with this question, the Tribunal in the impugned judgment observed as follows:-- "The Administration of the Mayo Hospital, Lahore consist of various Departments and each one of the officers has been appointed as Incharge of particular Department who is considered next below the Head of Institution in that field. The respondents have brought our attention to the order of the Medical Superintendent, Mayo Hospital, Lahore which is relevant for the purpose of decision of this point."
3. It reads as under: "The undersigned being Head of Mayo Hospital Institution, Lahore, hereby appoints Miss Raisa Zahoor, Chief Nursing Superintendent, Mayo Hospital, Lahore, as an `AUTHORITY' for the cadre of Staff Nurses/Charge Nurses' only to appoint, suspend, reduce in Rank, retire compulsorily, remove or dismiss from service under the Punjab Health Department Delegation of Powers Rules, 1971, being officer next below the Head of the Institution."
4. Thus, it is manifested from the above that the Chief Nursing Superintendent, Mayo Hospital has been designated by the Medical Superintendent, Mayo Hospital, Lahore as an Authority next below in the matter of award of punishment to staff nurses. The plea of the appellants is thus devoid of any force."
5. We have heard learned counsel for the appellants as well as Assistant Advocate-General on behalf of the respondents.
6. Learned Advocate for the appellants raised before us the same contention as was raised on behalf of the appellants before the Service Tribunal and in support referred to the Punjab Health Department Delegation of Powers Rules, 1971, which in Rule 2 provide as follows:- "All authority empowered under these rules to impose penalties on the holder of a post shall be competent to impose such penalties on every person holding such post, whether such person was appointed by such authority or not."
7. He further referred to the Schedule in which column 2 gives the name of the post at S.No.4(ii) as: "All Ministerial Staff, Sanitary Inspectors, Lady Health Visitors, Staff' Nurses and Non-Gazetted Technical and non-Technical Staff in the scale of Rs.125-7/195/8-275 and above, borne on the strength of the Institution," and in the next column, No.3, the name of the appointing authority and authority competent to suspend, reduce in rank, retire compulsorily, remove or dismiss is given as: "officer next below the Head of the Institution.
8. We have noticed in the leave granting order it is stated that "We have examined the delegation of power Rules relating to the Health Department. Under these Rules the officer next below the Head of the Institution was the authority competent to remove them from the service. The Head of the Mayo Hospital is admittedly the Medical Superintendent. The officer next below him is Additional Medical Superintendent. The Chief Nursing Superintendent comes in the third place".
9. Now, firstly, we enquired from the learned counsel for the appellants that on what basis it has been mentioned that the Head of the Institution is Medical Superintendent and the officer next below him is the Additional Medical Superintendent. He frankly stated that there is no material on record to support that observation but one thing is clear that the Tribunal has also not stated that the Chief Nursing Superintendent comes next to the Medical Superintendent. Indeed, the observations of the Tribunal, as quoted above, are that the Medical Superintendent, Mayo Hospital, Lahore has appointed Miss Raisa Zahoor, Chief Nursing Superintendent, Mayo Hospital, Lahore as the Authority but this could be done only if there was power in the Medical Superintendent to further delegate such powers to another person. But it has not been shown that any such power was available to the Medical Superintendent at the relevant time.
10. However, the learned Assistant Advocate-General relied on the Punjab Health Department Nursing Service Rules, 1981 (hereinafter called the Rules of 19$1) notified on 14-1-1981 which in para 3 provides as follows: "The method of recruitment, minimum qualification, age limit and other matters related thereto for the posts shall be as given in the schedule annexed."
11. These Rules repealed the following Rules:
(i) The West Pakistan Health Department Nursing Service (Gazetted) Hospital Rules, 1965.
(ii) The West Pakistan Nursing Service (Non-Gazetted) Rules, 1966.
(iii) The West Pakistan Health Department Nursing Service (Non-Gazetted) Rules, 1974."
12. Learned Assistant Advocate-General further relied on Punjab Health Department Nursing Service Rules, 1986 (hereinafter called `the Rules of 1986'), rule 3 whereof makes the same provision as was made in rule 3 of the Rules of 1981 as has been quoted above. By these Rules the Punjab Health Department Nursing Services Rules, 1981 have been repealed. In the Schedule at Sr.No.6 `Staff Nurses' are mentioned and in the next column, No.3, `the Chief Nursing Superintendent/Nursing Superintendent (in the Hospitals under the direct control of the Health Department) and Senior most Assistant Director (Health) of the Division concerned in other cases' is mentioned as appointing authority and authority competent to suspend, reduce in rank, retire compulsorily, remove or dismiss. But reference to these rules seems to be irrelevant, for, these rules relate to method of recruitment, minimum qualification and other matters related to the post as given in the Schedule. But neither of these Rules have been noticed by the Tribunal or discussed by them in the impugned judgment. Indeed, they have referred to the Punjab Health Department Delegation of Powers Rules,' 1971 (hereinafter called the Rules of 1971) and appear to have relied on the delegation of powers by the Head of the Institution to the Chief Nursing Superintendent. Further, the Rules of 1981 or 1986 have not been expressly repealed. It was argued by the learned Assistant Advocate- General that they have been repealed by implication. On the contrary, it was argued by the learned counsel for the appellants that they have not been repealed even by implication and if it was intended by the Rules of 1981 or 1986 to repeal the Rules of 1971 then nothing prevented the Government of the Punjab to repeal the same expressly as was done under the Rules of 1981 in the case of (i) The West Pakistan Health Department Nursing Service (Gazetted) Hospital Rules, 1965,
(ii) The West Pakistan Nursing Service (Non-Gazetted) Rules, 1966 and (iii) The West Pakistan Health Department Nursing Services (Non-Gazetted) Rules, 1964.
13. It was further submitted that the subject and the scope of the Rules of 1971 is different from the subject and scope of the Rules of 1981 and 1986, as would be clear by comparison of Rule 2 of the Rules of 1971 and Rule 3 of the Rules of 1981 or 1986.
14. Since no arguments were advanced on the basis of these Rules before the Tribunal, we, therefore, consider it proper to remand the case to the Service Tribunal to consider the following questions and decide the case afresh after recording evidence, if necessary, considering the relevant documents produced by the parties, the relevant rules and after hearing them:
(i) Who was the next to the Head of the Mayo Hospital for the purpose of the relevant rules for taking impugned action?
(ii) Which of the Rules were applicable at the relevant time to the appellants?
(iii) Whether the Medical Superintendent could delegate the powers of the officer next to him given in the Rules of 1971 to Miss Raisa Zahoor, respondent No.2?
15. The case is accordingly remanded, leaving the parties to bear their own costs.