' CH. HASAN NAWAZ (MEMBER).---This appeal under section 4 of the Service Tribunals Act, 1973 was filed by the appellant on 22-3-1990 is the background of following admitted facts:
2. On 21-2-1988, the appellant executed a Service Bond in favour of Pakistan International Airlines Corporation and offered her services to the Corporation for training as an air-hostess, which was to be provided over a period of three to nine months. In consideration of successful completion of the training, she undertook to serve as an air-hostess in the employment of the Corporation for a minimum period of five years. One of the terms of this Bond was that in the event of a marriage during the aforesaid period of five years, she would not only be liable to pay the cost of her training amounting to Rs,40,000, but also to dismissal from service.
3. On 27-11-1988, she was served with the following show-cause notice alongwith a statement of allegations:- "A/H Robina Shahzadi, P-47691, ' PIA - Lahore Airport.
' THROUGH INCHARGE CABIN CREW, LAHORE BASE Subject: SHOW-CAUSE NOTICE ' You A/H Robina Shahzadi, P-47691, have married with Mr. Syed Faiz-ul-Hassan Faizi, resident of House No, 12, Bhagwan Street No, 3, Old Anarkali, Lahore, which marriage took place on 26th October, 1988, as is evident from the Nikahnama executed and registered on the said date.
' According to the Admin: Order No, 59/82, dated 30-12-1982, a female cabin crew may either have permission to marry after the completion of five years service, that such clandestine marriage within the initial period of employment is a contravention of the Admin: Order 59/82-which tentamounts to an act of misconduct under Regulations 75(a) breach disregard, disobedience or evasion of applicable laws, rules regulations order or instructions.
' You are required to show cause in writing within 72 hours of its receipt failing which ex parte action will ensue.
(Sd.)
(AHSAN KULLY), STATION MANAGER.
' STATEMENT OF ALLEGATIONS ' It has been alleged that you surreptitiously have married on 26-101988 with Mr. Syed Faiz-ul- Hassan Faizi, a married person without the knowledge of PIAC.
(Sd.)
(AHSAN KULLY), STATION MANAGER."
4. In her explanation dated 2-12-1988, although the fact of marriage was not denied, it was pleaded that it was only a "token marriage" and that `Rukhsati' would come about only after the completion of her required service with the Corporation. The remaining averments made in the explanation are not material for determination of the issues involved in this appeal. In his report dated 31-12-1988, the Inquiry Officer held her guilty of the breach of rules under Regulation 75(a) of the PIAC Employees (Services and Discipline) Regulations, 1985 which was followed by the order of her dismissal from service dated 23-4-1989 after due observance of necessary formalities. The competent Authority's decision was based on the consideration that the charge proved against her was of a serious nature and there was no mitigating circumstance as could have justified a lenient view of the matter.
5. The appellant's departmental appeal dated 23-5-1989, was dismissed by the appellate authority with the following order of 25-2-1990: "Re: Appeal under clause 85 of PIAC Employees (Service and Discipline) Regulation ' Reference your appeal against dismissal from the service of the Corporation.
' This is to inform you that we have examined your case and found that you were dismissed from the service in accordance with PIAC Service and Discipline Regulations, 1985 for violating the laid down rules whereby you were not allowed to enter into a contract of marriage prior to completion of 5 years of service. The disciplinary proceedings against you were initiated on a written complaint received from l st wife of Syed Faiz-ul-Hasan Faizi to whom you got married. The first wife of Mr. Faizi has also mentioned in her complaint that her husband by entering into a second contract of marriage with you has also allegedly violated the provisions of Family Law Ordinance, 1961 as he has not obtained permission from 1st wife.
' It may be mentioned that for all intents and purposes Nikah constitute a valid marriage regardless of Rukhsati which is only a ritual and a matter of convenience.
' You, at the time of initiating disciplinary proceedings were afforded all admissible opportunities under the rules to defend the allegations against you. The independent and impartial enquiry found you guilty of misconduct with which you were charged.
' The management in constrained to state that your case does not merit reconsideration as a number of employees having committed identical case of misconduct have been punished likewise and a review will cause wide repercussion.
(SAEED K. KAZI), Administrative Manager, Flight Services."
6. The prayer made in the appeal is that orders dated 23-4-1989 and 25-2-1990, may be set aside and the respondents directed to reinstate the appellant in service with all back and consequential benefits.
7. It will be worth its while to mention another material fact. In paragraph 3 of the appeal it has been pleaded by the appellant that she informed the concerned authorities of the fact of her `Nikah' and that on the basis of this information disciplinary proceedings were initiated against her.
It was denied by the respondents that they were informed of the `Nikah' ceremony by her and that the initiation of disciplinary proceedings was the result of any such information. Their case, on the other hand, is that they were informed of the marriage ceremony by her husband's first wife Syeda Toqeer Zahra with letter dated 7-11-1988 reproduced below:-- "To The General Manager, Flight Service, Pakistan International Airlines, PIA Airport, Karachi.
' SUBJECT: COMPLAINT AGAINST MST. ROBEENA SHAHZADI, AIR-HOSTESS NO. P-47691, WHO HAS CONTRACTED MARRIAGE IN VIOLATION OF MANDATORY PROVISIONS OF P.IA. RULES ' Respected Sir, ' With all humility, respect and confidence I beg leave to say that Mst. Robeena Shahzadi, daughter of Muhammad Ehsan Khan, resident of House No, 13, Gali No, 16, D.A.V. Hostel, Hota Singh Road, Sant Nagar, Lahore has been appointed as an air-hostess in P.IA. About four months back. She has recently completed three months training and posted as air-hostess only a month back. Her P.
Number is 47691.
2. It is well-established law of P.IA. That an air-hostess cannot contract marriage within 5 years of her appointment. Thereafter, can contract marriage and that too after having due permission from the authorities concerned.
3. Mst. Robeena Shahzadi in utter violation and complete disregard of the mandatory provisions of Service Rules has contracted marriage on 26-10-1988 with my husband, Syed Faiz-ul-Hassan Faizi having 9 grown up children, but he has wrongly shown his age as 45 years as is evident from the Nikah Nama, the photostat copy of which is attached for your kind perusal.
4. It is also brought to your kind notice that my husband, Syed Faiz-ulHassan Faizi has contracted marriage with said Mst. Robeena Shahzadi, without my (existing wife) consent, permission and knowledge and as such Mst. Robeena and my husband have violated the mandatory provisions of the Muslim Family Laws Ordinance, 1961.
' Would you be kind enough to take strict disciplinary action against Mst. Robeena Shahzadi, air- hostess bearing P.No, 47691, under intimation to me.
' Thanking you. Yours obediently, (Sd.) (Toqeer Zahra), Wife of Syed Faiz-ul-Hassan Faizi, resident of House No, 12, Bhagwan Street No, 3, Old Anarkali, lahore."
' End. Photo copy of Nikah Nama. Dated: 7-11-1988.
8. Although the legality of the impugned orders has been challenged on various grounds, reliance in the main is on the contention that the ceremony gone through on 26-10-1988 being only that of `Nikah' without `Rukhsati', no violation of Administrative Order 59 of 1982 was involved, as the marriage contemplated by it was only a consummated marriage. It is pleaded that only consummation of marriage can adversely affect the efficiency of an air-hostess and that Administrative Order 59 of 1982 cannot, therefore, be construed to include mere `Nikah' within the scope of marriage. She specifically pleaded in her explanation that she had to go through the ritual of `Nikah' only to avoid her marriage with a jobless narcotic addict and that violation of any rule or regulation was neither involved nor contemplated.
9. In the statement of facts we have taken notice of the appellant's pleadings that "the information of her Nikah was passed on to the authorities concerned" and that "on that basis she was subjected to a departmental inquiry". This seems to have been alleged evidently for the purpose of causing an impression that no violation of any rules or instructions was involved in contracting a simple Nikah without a Rukhsati and that there was nothing clandestine in the affair. It has also been noticed that this allegation was specifically denied by the respondents whose case is that information regarding the appellant's marriage was provided to them by Syeda Toqeer Zahra who happens to be the first wife of appellant's husband Syed Faiz-ul-Hasan Faizi. Syeda Teqeer Zahra's letter dated 7-11-1988 placed on record shows that her husband Syed Faiz-ul-Hasan Faizi contracted a marriage with the appellant without her consent and knowledge, in abuse of the mandatory provisions of Muslim Family Laws Ordinance, 1961. It was further stated in this letter that Syed Faiz-ul-Hasan Faizi had nine children from her. The allegations made in Syeda Toqeer Zahra's letter apart, what we are concerned with, is the fact that there is no proof of the appellant's assertion that she was the one who informed the authorities concerned about her marriage. This information was in fact given to them by Syed Faiz-ul-Hasan Faizi's first wife Mst. Toqeer Zahra. By pleading that she was the one to inform the authorities concerned of her Nikah, the appellant wanted to establish her bona fides in the matter. Now when we see that this allegation has not been substantiated, there would be every justification for the inference that her pleadings on the point betray a guilty conscience and that what has been made to appear only a simple Nikah, was in fact a regular marriage for all intents and purposes.
10. Even if the matter be examined irrespective of the aforementioned considerations, the appellant does not have any case as would entitle her to the grant of requisite relief. There is no denial of the factum of Nikah. The appellant's case is that "the marriage contemplated by Administrative Order 59 of 1982 is a consummated marriage, because possibly a consummated marriage could stand in the way of efficiency of an air-hostess". It may be so, but then there is nothing on the record to show that the marriage in this case has not been consummated. Nikah is absolutely the same as marriage and we are not inclined to agree with the contention that mere Nikah is beyond the contemplation of the administrative order in question.
11. Reference may be made with advantage to the averments made by her in explanation dated 2- 12-1988 in response to the show-cause notice of 27-11-1988. It was only at the end of this explanation that she said that "it is further pointed out that this marriage is only a token marriage and my `Rukhsati' will only be effected after completion of the required service with the Corporation". This statement, if seen in the light of the pleadings made in the earlier part of -the explanation, would be clearly suggestive of the fact that what she contracted with Syed Faiz-ul- Hasan Faizi was a regular marriage. There she stated that "although I have violated the Corporation's rules regarding marriage of female cabin crew, I implore to your great honour that before any serious action be taken against me, my above limitations and personal problems and the agony of disturbed future life be taken into consideration". We need not address ourselves to the pleadings regarding "limitations, personal problems and the agony of disturbed future life", partly because of the fact that they are irrelevant and partly due to the consideration that they ex facie appear to be without any substance. The reasons for contracting a marriage, whatever they be, are not material for determination of the fact that the marriage involves a violation of the rules.
Although there is nothing on the record to substantiate the reasons mentioned as excuse for marriage, we are of the considered view that their existence would not have constituted any extenuating circumstance, as could have enabled us to hold that her marriage under the circumstances does not involve any infringement of the rules and the commitment given in the Bond executed by her at the time of offering herself for training.
12. The relevant portion of Administrative Order 59 of 1982 provides as follows: "Management is pleased to decide that henceforth PIA Female Cabin Crew would be allowed to marry while in service. However, the present criteria of inducting unmarried girls for the job of Female Cabin Crew shall remain in force. Female Cabin Crew may apply for permission to marry after completion of five years service". This order does not make any distinction between a simple Nikah and a Nikah followed by Rukhsati. It only speaks of a marriage and, as we have observed before, a Nikah under Muhammadan Law amounts to marriage for all intents and purposes, considering that a Muhammadan wife can refuse her person to the husband only at the risk of disregarding the Quranic injunctions which enjoin that she is bound to perform her marriage obligations. In Islam a wife's refusal to perform this obligation is an extreme case of state of Kufr. It is not possible to conceive a situation under Muslim Law where a wife can refuse her person to the husband.
Therefore, Nikah amounts to a marriage presumed to have been consummated.
13. We might as well make a mention of the allegation that "it is on record that the appellant had been living at the same place where she was living before her Nikah, as the PIA transport picked her up and dropped her at the same place. Even if it be assumed as correct that she is living with her parents even after Nikah, this would by no means be any proof of the fact that her marriage has not been consummated. Reliance has been placed by her on letter Annexure 'J' which was addressed by one Z. Nazim Hussain Treasurer of the Local, P.P.P. To the Minister for State for Defence, where it has been stated that she has contracted only a simple Nikah which amounts to a token marriage and that no Rukhsati had taken place. Certificate Annexure J/1 has also been produced in support of the assertion that no Rukhasti had yet taken place and that there was no agreement between the parties for any such Rukhasti in the near future. This certificate purports to have been issued by Mr. Khalid Mustafa, Councillor of the area of appellant's residence. We do not feel any hesitation in saying that these documents do not promote the appellant's case, for they are hardly any proof of the fact that her Nikah does not amount to a regular marriage and it has not yet been consummated. In actual fact,. As we see the matter, this discussion regarding the marriage having been consummated seems to be rather out of place for the simple reason that marriage ordinarily involves consummation.
14. It has been contended by the appellant's learned counsel that the Administrative Order 59 of 1982 is repugnant to Articles 14(b) and 25 of the Constitution of Islamic Republic of Pakistan.
Another objection against this order was that it is in conflict with Articles 31, 35 and 38 of the Constitution and is therefore void. We feel that these contentions do not require a detailed examination and that it would be sufficient to say that the provisions of these articles are not relevant to the point in dispute and that in any case, the administrative order ill question is not in conflict with them.
15. Another contention raised by the learned counsel for the appellant is that the administrative order prohibiting marriage of an air-hostess or requiring permission for such marriage after five years is repugnant to the injunctions of Islam and is therefore ultra vires of the Constitution. While dealing with this contention, we may make a reference to Article 203-D(a) of the Constitution which provides that the Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH), hereinafter referred to as the injunctions of Islam". In accordance with these provisions, it is clearly the function of the Federal Shariat Court to decide whether the rules or order in question is repugnant to the injunctions of Islam. The administrative order has neither been examined by the Court nor declared as inconsistent with the Islamic injunctions. In the absence of any such declaration by the Court of competent jurisdiction, we feel there is every justification for deciding the matter in accordance with this administrative order.
16. Before taking leave of the matter, we might as well deal with the respondents' objection regarding lack of jurisdiction raised in the background of the following facts: The erstwhile section 10(3) of the Pakistan International Airlines Corporation Act, 1956, provided that service in the Corporation is hereby declared to be service of Pakistan and every person holding a post under the Corporation, not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act. Subsection (3) of section 10 was taken away on 2-11-1989 by the Pakistan International Airlines Corporation (Amendment) Act 1989, with the result that the employees of the Corporation were no longer civil servants from that date for the purposes of Service Tribunals Act, 1973. The objection raised in defence is that final order rejecting the appellant's departmental appeal having been passed on 25-2-1990, after she had ceased to be a civil servant, the Tribunal had no justification to decide the appeal filed on 22-3-1990.
17. We do not find it possible to agree. As already noticed, the amendment was enforced on 2-11- 1989 and the appellant was civil servant for the purposes of Service Tribunals Act 1973 before that date. The original order impugned in this 'case was passed on 23-4-1989 when she enjoyed the status of a civil servant. The right of appeal to the Tribunal accrued to her under section 4 of the Service Tribunal Act, 1973 on passage of the original order of her dismissal from service on 23-4- 1989 when she was a civil servant. This right having once accrued, could not be taken away by amendment of the Act on 2-11-1989, which has not been specifically declared to operate with retrospective effect. The right of appeal to the Tribunal vested in the appellant on the passage of the original order of dismissal on 23-4-1989 and subsequent amendment made in the Act has not divested her of that right. Reliance in support of the objection on the authorities cited at the bar as 1972 SCM R 173 and PLD 1978 SC 190, does not promote the respondents' case as the facts of these cases were distinguishable. We hold that we do have the jurisdiction to decide this appeal, which inter alia challenges the validity of order of dismissal passed on 23-4-1989 when the appellant was still clothed with the status of a civil servant for the purposes of Service Tribunals Act, 1973.
18. Merits of the case apart, we are, however, of the view that in the light of the circumstances of this case, the punishment of dismissal from service awarded against the appellant seems to be rather harsh and that removal from service would have been sufficient in the interests of justice. In partial acceptance of the appeal, therefore, we set aside the impugned order and substitute it with that of the appellant's removal from service with effect from 23-4-1989. It is further ordered that recovery of Rs,36,000 as cost of training shall be waived on compassionate grounds, considering that she has served the F Corporation for a few months after completion of training. There will be no order as to costs.
19. Parties to be informed.