1. AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above two appeals as they are directed against the same judgment dated 17-6-1991 passed by the Federal Service Tribunal, Islamabad, hereinafter referrred to as the Tribunal filed by Shahabuddin who is respondent in Civil Appeal No, 223-K/91 and appellant in Civil Appeal No,224-K/91 hereinafter referred to as Shahabuddin, dismissing the same with the modification that the quantum of punishment of dismissal was substituted by removal.
2. The former appeal has been filed by the P.IA. Hereinafter referred to as the PIA against the reduction of punishment whereas latter appeal has been filed by Shahabuddin against the dismissal of his above appeal.
3. Leave to appeal was granted in the above Civil Appeal No, 223-K/91 to consider whether the ratio of the judgment of this Court in the case of Water and Power Development Authority v. Zulfiqar Ali (PLD 1988 SC 693) was properly applied by the Tribunal to the prsent case, whereas leave to appeal was granted in Civil Appeal No, 224-K/91 to consider the question, whether the impugned order of dismissal was passed by the competent authority.
4. The brief facts are that Shahabuddin was employed with PIA as a Flight Steward. On 28-6-1986 whilehe was on board Flight No, PK-785 Islamabad-London had committed misconduct in the form of physical mischief with an Air hostess namely, Miss Nusrat Jadoon. He was served with a show- cause notice dated 25-3-1987, which reads as follows:- "NATURE OF MISCONDUCT:
(1) While travelling supy on PK 785/28/06/86 ISB/LON you were seated next to AH/Nusrat Jadoon who was also travelling supy. It has been reported that when the lights were switched off and A/H Nusrat Jadoon had fallen asleep, you physically molested her under the cover of a blanket. On your aforementioned action, A/H Nusrat Jadoon woke up and was very upset. You subsequently apologised to her.
(2) The above act/omission on your part is a serious lapse which constitutes misconduct under Regulation No, 75, clause (e) of section 11, Chapter IV of PIAC Employees (Service and Discipline)
5. Regulations, 1985.
(3) You are, therefore, hereby directed to submit your explanation in reply to this show-cause notice within 3 days of the receipt threof as to why disciplinary action should not be taken against you. In case you fail to submit your reply within the stipulated period, ex parte action shall be taken as per rules.
6. (Sd.)
7. M. Nazir Adenwala Manager, Flight Service (Scheduling)."
8. He submitted his reply dated 31-3-1987 denying the allegation and showing his ignorance. The above reply was found unsatisfactory. He was charge-sheeted and after holding regular enquiry, the order of dismissal was passed on 26-7-1987. His departmental appeal was dismissed on 25-10-1987.
9. Thereupon he filed aforesaid service appeal which was dismissed with the above modification of the punishment. After that the petitioner, Shahabuddin and the PIAC filed petitions for leave to appeal which were granted to consider the above question.
10. In support of Civil Appeal No, 223-K/91, Mr. A.G. Siddiqui learned ASC appearing for PIAC has vehemently urged that the Tribunal was not justified in reducing the quantum of punishment without assigning any cogent reason.
11. On the other hand, Mr. Kunwar Mukhtar, learned ASC appearing for Shahabuddin has contended that the impugned order of dismissal was not passed by the competent authority. His further submission was that the Tribunal had given cogent reason for reduction of the punishment and, therefore, this Court will not interfere with the judgment of the Tribunal.
12. We may first deal with the question whether the impugned order of dismissal was not passed by a competent authority. In support of his above submission, Mr. Kunwar Mukhtar has invited our attention to para. 05.29(h) of Chapter V of Schedule annexed to Pakistan International Airlines Corporation Employees (Service and Discipline) Regulation, 1985, hereinafter referred to as the Regulations and para. 5 of the said Schedule, which read as follows:- "05.29(h) Dismissal from Service Competent AuthorityTo approve the cases of
1. xxxx xxxx
2. xxxx xxxx 3.Directors Up to Pay Group VII with the concurrence of Director Administration
4. xxxx xxxx
5. xxxx xxxx
6. xxxx Xxxx Remarks:- (i) Cases requiring approval of Managing Director/Chairman to be routed through Director Administration. (ii) Cases of Directors to be reported to the Board before imposition of this penalty."
13. "5 Further Delegation.- -An authorised official of the Corporation, who may be delegated any Administrative, Financial or Miscellaneous Powers under this Schedule of Powers shall not delegate any of his powers to any subordinate officer."
14. On the other hand, Mr. Siddiqui has relied upon Letter No, DCS/02/87, dated July 20, 1987, issued by Mr. M. Nawaz Tiwana, Director Customer Services, which reads as follows:- "I am proceeding abroad w.e.f, 21st July, 1987. During my absence from Head Office, Mr. M.Z. Alam, General Manager (Facilitation) will look after the functions of Director Customer Services. Policy matters will await my return."
15. The Tribunal has relied upon the above delegation of powers by Mr. M. Nawaz Tiwana, Director, Customers Services, who was the competent authority in the above case.
16. Even if we were to agree with the above submission of Mr. Kunwar Mukhtar, it would not make any difference as the Regulations were framed by the Board of Directors in exercise of the powers contained under section 30 of the Pakistan International Airlines Corporation Act, 1956, hereinafter referred to as the Act, but the same have neither been published in the official Gazette nor they have been laid before the National Assembly in terms of section 31 of the Act, which reads as follows:- "31. Rules and Regulations to be laid before the Legislature.- All rules and regulations made under this Act shall be published in the official Gazette, and shall come into force upon such publication and shall be laid thereafter as soon as may be before the National Assembly."
17. It is evident that the Regulations were to come into force upon publication in the official Gazette and they were to be laid as soon as may be before the National Assembly. Mr. Kunwar Mukhtar is unable to controvert Mr. Siddiqui's averments that the Regulations have neither been published in the official Gazette nor they have been laid before the National Assembly in terms of above section 31 of the Act.
18. In this view of the matter, the Regulations do not enjoy the status of statutory Regulations as was held by this Court while considering the Service Code published by the P.IA. Prior to the framing of the Regulations, in the case of Muhammad Yousuf Shah v. Pakistan International Airlines Corporation.
19. (PLD 1981 SC 224), wherein the appeal of a PIA employee against the judgment of the Lahore High Court was dismissed and while dismissing the same this Court commented upon the status of the above Service Code as follows:- "4. Learned counsel for the appellant referred to Mst. Manni v. Karachi Cantonment Board (1), for the proposition that an employee of a corporate body can always fde a civil suit for a declaration that his services were wrongly terminated. The aforesaid precedent has no relevancy, inasmuch as, the services of the employees therein were governed by formal statutory Rules and Regulations whereas here the learned counsel has not been able to show us any such statutory Rules or Regulations which may be applicable to his case. At this juncture, the learned counsel wanted to refer to a publication known as the `Service Codepublished by the P.IA. But the status and position of that Code was analytically gone into in A. George v. Pakistan International Airlines Corporation (2), (Muhammad Akram and Muhammad Afzal Cheema, JJ.) and it was concluded that its provisions were not immutable and they were in the nature of mere instructions issued by the P.I.A. For the guidance of its officers for their internal use and were altogether directory. Learned counsel was unable to point out any fallacy in the aforesaid view and in that state of law, in the absence of any statutory rules, the Courts below were justified in holding that this was a case which was governed by the simple theory of Master and Servant and a suit of the present kind in the aforesaid context was not maintainable."
20. Admittedly, in the present case, the departmental appeal filed by Shahabuddin was dismissed. P.IA.
21. Defended the impugned dismissal order before the Tribunal as well as before us and, therefore, it cannot be urged that the impugned dismissal order was not legal. In any case, the breach of the above provision of the Schedule of which status is not of a statutory Schedule, cannot furnish a ground to declare the impunged order of dismissal as illegal and to order the reinstatement of Shahabuddin.
22. Adverting to the question of reduction of the quantum of punishment by the Tribunal, it may be observed that this Court in the case of Water and Power Development Authority v. Sheikh Zulfiqar All (supra) has held that the Tribunal is competent to alter the punishment for cogent reason but such alteration should not be arbitrary. The above view has been reiterated recently by this Court through the judgment dated 18-12-1991, in the case of Pakistan International Airlines Corporation v.
23. Muhammad Sadiq (Civil Appeal No,808-K of 1990). In the present case, the Tribunal has recorded the following reasons for reduction of the punishment: "For the reasons recorded above, there is no merit in appeal. However, the quantum of punishment of dismissal from service for the aforesaid charge, which debars the appellant from future employment, appears to be excessive and it is modified to that of the appellant's removal from service and the appeal is dismissed with the modification in the quantum of punishment as aforesaid. No order is made for costs."
24. The perusal of the above quoted para indicates that the Tribunal has given a plausible reason for substitution of the order of dismissal by the order of removal. We are not inclined to interfere with the exercise of the above discretion by the Tribunal.
25. The upshot of the above discussion is that both the appeals are dismissed but there will be no order as to costs.