' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 3-3- 1992 passed by a Division Bench of the High Court of Sindh in Constitution Petition No, D-412 of 1989, filed by the appellant against the order of termination of her services dated 24-6-1982 on the ground of unauthorised absence from duty. The reason found favour with the learned Judges of the Division Bench who dismissed the appellant's above petition was, that there had not been any violation of statutory rules warranting interference by the High Court in exercise of writ jurisdiction.
Leave to appeal was granted to consider whether the judgment under appeal was in consonance with the law enunciated in the judgments of this Court in the case of Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45) and the case of Raziuddin v.
Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531).
2. The brief facts are that the appellant was employed as a Lecturer in the Department of Sindhi in respondent No,1 University. It appears that her husband was granted scholarship for doing his Ph.D in Analytical Chemistry at Chelsea College, Department of Chemistry, University of London, which he availed of in 1978. The appellant applied for three months leave in order to see her husband, which she was granted for the period expiring on 21-8-1979. After that she applied for extension of leave for a period of one year, which request was acceded to and the leave was extended up to 8- 9-1980. It seems that after that she made several applications for further extension of leave but the same were declined. She was issued a show-cause notice dated 27-1-1982, which was replied to by the appellant on 16-2-1982. The matter was eventually placed before the Syndicate of respondent No,1 University for consideration, which by its Resolution dated 28-2-1982 resolved to give final chance to the appellant to return and resume the duty within one month. The above Resolution of the Syndicate was conveyed to the appellant through letter dated 4-4-1982 but in spite of the above decision of the Syndicate, the appellant did not report for duty. Thereupon, her services were terminated by an order dated 24-64982. It appears that the appellant returned to Pakistan sometime in August, 1982. She filed a review petition before the Syndicate, the date of filing is not available either with the appellant's counsel or with the learned Additional Advocate-General, Sindh, who appeared for respondent No,1 University. However, in para. 21 of the memo. Of Constitution Petition filed before the High Court, the appellant had averred that she having come to Pakistan around August, 1982, under the provisions of section 40 of the Ordinance 1972 filed review, which was rejected after about 1/1-2 years on 6-5-1984. The above para. Was not denied by respondent No,1 in its objections to the Constitution Petition as in reply to above para., it was stated that the contents of above para. 21 were not denied. The above para. 21 of the Constitution Petition and para. 20 of the respondent No,1's objections to the same, read as follows:-- "21. Para. 21 of the Constitution petition.--That the petitioner preferred Review Petition to the respondent No,1 having come to Pakistan around August 1982 under the provisions of section 40 of the Ordinance 1972 and the same was rejected after about 1/1-2 years on 6-5-1984 Annexure 'Y' against which the petitioner preferred an appeal to the Chancellor, respondent No,2 who was also pleased to reject the same on 14-2-1989 Annexure 'Z' hence this petition.
20. Para. 20 of the respondent No,1's objections. --That the contents of para. 21 of the petition are not denied."
3. It may be stated that according to Mr. Abdul Ghafoor Mangi, learned Additional Advocate- General, the review was rejected on 31-3-1984 but was conveyed on 6-5-1984. Be that as it may, after that the appellant purported to file an appeal before the Governor, which was forwarded to the Governor with the appellant's application dated 21-1-1990. There is no date as to the actual date of filing of the above appeal either with the learned counsel for the appellant or with the learned Additional Advocate-General. The above appeal was rejected on 14-2-1989. Thereupon, the appellant filed Constitution Petition No, D-412 of 1989, which was dismissed on the ground that the petition was not maintainable as the parties were not governed in the matter by any statutory rules or instrument, inasmuch as the action was taken under the University of Sindh Employees (Efficiency and Discipline) Ordinance, 1961, which was issued by the Chancellor in exercise of the power conferred on him by section 44 of the West Pakistan (University of Sindh) Ordinance, 1961, and not under the constitutional provision as was clarified and, therefore, it had no statutory force.
After that the appellant filed a petition for leave to appeal, which was granted to consider the above question.
4. In support of the above appeal, Mr. Ali Akbar, learned counsel for the appellant, has urged that the appellant was neither heard by the Syndicate in connection with her review petition nor she was heard by the Governor under section 40 of the University of Sindh Act, 1972 (Sindh Act XXV of 1972), hereinafter referred to as the Act (which) was amended by Ordinance No, LV of 1984 gazetted on 12-12-1984 providing as follows:-- "3. Amendment of section 40 of Sindh Act XXV of 1972.--In the said Act, in section 40 of the full-stop appearing at the end shall be replaced by a colon and thereafter, the following proviso shall be added:-- ' Provided that no order in appeal or review shall be made unless the appellant or the applicant, as the case may be, has been given an opportunity of being heard'."
5. In order to appreciate above amendment, it may be pertinent to reproduce unamended section 40 of the Act, which reads as follows:- "40. Where an order is passed punishing any officer (other than the Vice-Chancellor), Teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other Officer or Teacher of the University, have the right to appeal to the Syndicate against the order, and where the order is made by the Syndicate, have the right to apply to that authority for review of that order. The appeal or application for review shall be submitted to the Vice-Chancellor and he shall lay it before the Syndicate with his views."
6. A perusal of the above-quoted section indicates that where an order is passed punishing an officer other than the Vice-Chancellor in the matters referred to therein, appeal shall lie to the Syndicate but where the order is made by the Syndicate, a review will lie before the Syndicate. It may further be noticed that prior to the amendment the right of personal hearing was not provided for in the above-quoted section 40. The above right of hearing has been provided for an appeal as well as review by the above-quoted amendment made in December, 1984. Since the above amendment has been made after the appellant's review was decided by the Syndicate, the above amending provision could not have been pressed into service by the appellant. However, this Court in the case of Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45) while construing section 10(2) of Sindh (Requisition of Land) Act (XLVI of 1947), has held that "When a statute gives a right of appeal it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard".
7. It may be stated that in view of the above judgment, an appellant in an appeal is entitled to personal hearing even though the relevant provision in a statute or rule is silent as to the right of personal hearing. The question, therefore, arises, as to whether the above principle can be extended in case of review provided for in section 40 before the Syndicate. Since there is no other remedy provided under the Act against an order/decision of the Syndicate except a review in the above section 40, we are inclined to hold that the appellant was entitled to be heard personally before her review could have been rejected by the Syndicate. In the present case, review can be equated with a right of appeal as both are the creatures of the same provision of the Act and, therefore, no distinction can be made as to the right of personal hearing on the basis of the ratio of the judgment of this Court in the case of Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (supra).
8. In our view, it is not necessary to refer to University of Sindh Employees (Efficiency and Discipline)
Ordinance, 1%1, issued by the Chancellor pursuant to section 44 of West Pakistan (University of Sindh) Ordinance, 1961, and not as the Governor under the Constitution. However, it may be stated that the High Court was right in holding that the above ostensible Ordinance in fact is not an Ordinance having statutory force. We may observe that the appellant's appeal before the Governor was not competent in view of above section 40 of the Act, as the latter provision shall prevail over Rule 14 contained in the above ostensible Ordinance.
9. The upshot of the above discussion is that as the appellant was not personally heard before disposal of -her review petition, the Syndicate order upon the appellant's review is not sustainable.
We would, therefore, allow the above appeal and would remand the case to the Syndicate to dispose of the appellant's above review petition afresh after notice to the appellant for hearing.
' The appeal stands disposed of in the above terms with no order as to costs.