CH. HASAN NAWAZ (MEMBER).--The appellant was appointed as Nursing Sister in Sheikh Zayed Hospital, Lahore on 23-2-1986 and then confirmed by order dated 3-12-1988 after satisfactory completion of probationary period.
2. She was dismissed from service in consequence of disciplinary proceedings by order dated 4-6- 1990 which is the subject of challenge in the present appeal under section 4 of the Service Tribunals Act, 1973.
3. An objection regarding limitation apart, the appeal has been opposed on the ground that the appellant is not a civil servant within the meaning of Civil Servants Act, 1973 and that the Tribunal has no jurisdiction to entertain and decide it. It is in respondents' pleadings, apparently in support of this objection, that overall control and superintendence of the affairs of Sheikh Zayed Post- Graduate Medical Institute vests in the Board of Trustees by President's Order No.14 of 1978 and that it is a Trust managed by the Government of Pakistan. It is also pleaded that powers to appoint officers up to Grade-18 lies with the Chairman of the Institute.
4. Reliance in support of the contention that the appellant isa civil servant, has been placed upon the Supreme Court's ruling in the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others cited at the Bar as PLD 1990 SC 612. Whether this ruling is attracted to the present case will have to be decided with reference to provisions of Resolution 29 dated 29-5-1986 passed by the Government of Pakistan (Health Division) for establishment of the Sheikh Zayed Post-Graduate Medical Institute.
5. Paragraph 3 of the Resolution provides that "the Federal Government may, from time to time, issue to the Institute such directives and instructions as it may consider necessary for carrying out the purposes of this Resolution and the Institute shall follow and carry out such directives and instructions". Paragraph 5 provides that "the overall control, direction and superintendence of the affairs of the Institute shall vest in a Board of Governors which may exercise all powers, perform all functions and do all acts and things which may be exercised, performed and done by the Institute".
Under paragraph 12, the Federal Government is empowered to place funds at the disposal of the Institute for the smooth discharge of its functions and the efficient conduct of its affairs. The funds of the Institute have to be managed and operated in accordance with the directions of the Federal Government.
6. Paragraph 13 is also in point. It provides that "the Institute shall, by such date and in such form as may be prescribed by rules, submit to the Federal Government for approval its budget for each financial year showing the estimated receipts and expenditure and the sums which are likely to be required from the Federal Government during the financial year". Paragraph 15 lays down that "the Institute may, subject of the provisions of subparagraph (2) appoint such officers, advisers, consultants and employees as it may consider necessary for the efficient performance of its functions on such terms and conditions as may be prescribed and approved by Federal Government. Sub-paragraph (2) is to the effect that the Federal Government may direct the Institute to terminate the services of any officer, adviser, consultant or employee and the Institute shall be bound to comply with such direction. Under paragraph 16, the Institute is bound to submit an annual report including a summary of accounts on the conduct of its affairs for that year to the Federal Government, as soon as possible; after end of each financial year but not later than the next December. It is also under an obligation to render to the Federal Government information, comments and advice on any specific point as may be asked for by the Government.
7. An important feature of this Resolution is that it does not contain any provision laying down that all movable and immovable properties of the Institute shall vest in the Board. Nor is there anything to show that it has been clothed with the powers to sue and be sued in its own name. It may be mentioned with advantage that the Supreme Court's ruling in Miss Naeema Khan's case is based on Ministry of Education, Government of Pakistan, Resolution dated 24-1-1985, which constituted a Board of Governors, like in the present case, for the Model Educational Institutions in Islamabad.
Paragraph 10 of that Resolution provides that "all movable and immovable properties of the Institute shall vest in the Board." Paragraph 11 lays down that the Board shall be a Institute which shall sue and be sued in its own name. Because of these provisions it is obvious that Government Resolution dated 24-1-1985 in that case was certainly on a better footing than the present Resolution under which the Institute has been established, in that the Board in the present case has not been clothed with the powers to sue and be sued and there is no provision for investiture of movable and immovable properties of the Institute.
8. It is also worth notice that under paragraph 3 of Resolution dated 24-1-1985, Secretary of the Ministry of Education was the Chairman of the Board in addition to fifteen other Members, most of whom were officials. Under paragraph 6 of the present Resolution, the President of Pakistan was to be the Patron-in-Chief of the Institute and the Federal Minister of Health, Special Education and Social Affairs is the President of the Board, Secretary of the Ministry is the Vice-President and majority of other Members of the Board are senior officers of the Federal or Provincial Government.
9. On the strength of Resolution dated 24-1-1985 it was vehemently contended in Miss Naeema Khan's case that she was an employee of the Board and not a civil servant within the meaning of Civil Servants Act, 1973. The basic question which fell for determination of the Supreme Court in that case was whether the Resolution of 24-1-1985 passed by the Ministry of Education had the effect of creating a juristic body in the form of the Board which could employ Teachers. It was held that the Board is neither a corporate body nor a juristic person competent to employ Teachers, and this was in spite of the fact that it had powers to sue and be sued, in addition to being the repository of all movable and immovable properties of the Educational Institutions. In the presence of this ruling, we feel no hesitation in holding that the Board in the present case is not a juristic body with powers of appointment, more so when it has no powers to sue and be sued in its own name and to acquire and hold property for the Institute.
10. We may also deal with the contention that the Institute is a Trust managed by the Government of Pakistan. In Miss Naeema Khan's case, it was observed by the Supreme Court that corporate status is either created by incorporation under a Statute like the Karachi Port Trust Act, 1886, or registration under a Statute like companies under the Companies Act or associations under the Societies Act or cooperative societies under the Cooperative Societies Act or a Trust under the Trust Act. The factual position regarding status of the Institute was not clarified before us and nothing was said about whether the Trust is still there in existence even after the Resolution of 29-5-1986.
Even if it be assumed to have been there, this Trust is not the result of any Statute like the Trust Act.
The Trust was created in the first instance with effect from 1-11-1973 through a deed of Trust dated 6-11-1972 with three Trustees for the purpose of promoting medical, educational, religious, economic, social and cultural welfare of Pakistan. By order No. 14 of 26-3-1978, it was re-named as Sheikh Zayed Bin Sultan Al-Nahyan Trust, after which the Board of Trustees was constituted on different occasions till 2-4-1991 with different persons as Members of the Board. However, it appears to us that Board of Trustees is no longer there after the Government Resolution of 29-5- 1986. Anyway, the material thing is that the Board of Trustees was not in pursuance of any Statute to give the Institute the status of a corporate body.
11. The next point for examination is also in respect of the jurisdiction of the Tribunal, emanating from the contention that the appellant is not a civil servant. Under section 2(1)(b) of the Civil Servants Act, 1973, "civil servant" means a person who is a member of an All-Pakistan Service or of a Civil Service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)". If the relevant provisions of Health Division's Resolution be kept in view, the appellant is certainly holding a post in connection with the affairs of the Federation, within the meaning of this section and is thus a civil servant. The Institute has been established by the Federal Government and the objectives to be achieved by it clearly amount to the affairs of the Government. In this view of the matter we hold that the appellant is a civil servant within the meaning of section 2 of the Civil Servants Act, 1973 and that the Tribunal has got the jurisdiction to entertain and decide this appeal.
12. The question of jurisdiction having thus been settled, we are now left 'G with the merits of the case. An application to the record shows that all procedural formalities under the relevant rules have been observed in this case. On 6-5-1990, the appellant was served with a charge-sheet, which inter alia, said that on 12-4-1990 she "wilfully, negligently and unauthorisedly absented herself from duty in the ICU without any prior permission and in disregard of emergency", with the result that a patient of the name of Saleem Rana died in the afternoon of that day because he did not timely and adequately receive nursing cover in the Unit which was due mainly to her unauthorised absence. This was accompanied by a statement of allegations. Professor Jahangir Durrani was appointed as Authorised Officer. An Inquiry Committee was constituted which found her guilty of the charge after having gone into the matter. The Committee found that the charge of wilful and unauthorised absence from duty amounting to gross-professional negligence has been established against the appellant. She was then served with final show-cause notice dated 24-5- 1990 and provided with a copy of the inquiry report. An opportunity of personal hearing was also given through letter dated 3-6-1990 which was followed by impugned order of dismissal dated 4- 6-1990. We see nothing wrong with the procedure adopted by the competent authority and it is not possible to say that she was denied an adequate opportunity to defend herself against the proposed action. In this view of the matter we hold that there has been no miscarriage of justice as would warrant cancellation of the order of dismissal. It may be mentioned that in appraising the relevant material, what has weighed with us is the fact that the Institute is required to produce a high quality of proficiency in the discharge of its functions and that this can be possible only with the enforcement of strict discipline.
13. Finally, we may also deal with the respondents' objection in respect of limitation. The appellant pursued the matter in the first instance before the High Court in a Constitutional petition which was ultimately withdrawn on 7-4-1991. A departmental appeal was then addressed to the Minister of Health, Government of Pakistan on 27-4-1991. The present appeal was filed on 28-7-1991. Delay in filing the departmental appeal from 8-4-1991 to 28-4-1991 has been explained in the application for condonation with the averment that the appellant had been suffering during this period from acute laryngitis and fever. This fact has been supported by a medical certificate purporting to have been issued by one Dr. Aamir Mir which says that she has been suffering from this ailment and remained under his treatment during the period from 8-4-1991 to 28-4-1991. She was advised rest by him.. We accordingly condone the delay in filing the departmental appeal and hold that the present appeal is within time.
14. For the aforementioned reasons, the appeal is dismissed as being without any force. There will be no order as to costs. Parties to be informed ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---A Division Bench of this Tribunal in Appeals Nos. 121(L)/91 and 75(L)/92 held the view that the employees of Sheikh Zayed Hospital are not `civil servants' and I was one of the Member in that judgment. This appeal-came up for regular hearing and in view of the arguments advanced by the learned counsel for the parties and the case-law reported in PLD 1990 SC 612 (Mrs. M.N. Arshad v. Miss Naeema Khan), a larger Bench was constituted m this appeal.
I fully agree with the judgment initiated by my learned brother Mr. Ch. Hasan Nawaz, Member, that the employees of Sheikh Zayed Hospital are civil servants and amenable to jurisdiction of this Tribunal, and the earlier view has been reviewed, but on merits the appellant has no case to succeed, as such, appeal is dismissed,