1. ' S. NASIM HAIDER (SENIOR MEMBER).---The brief facts, according to the appellant are that while serving as Head Mistress, Government Girls Primary School No,1 Landhi, Karachi, she was suspended vide order, dated 2-4-1996 by the respondent No,1. She 'approached' the Provincial Education Minister who was pleased to reinstate the appellant vide order, dated 9-7-1996. These orders were not complied with. Instead, the suspension period was further extended vide order, dated 29-9-1996. A charge-sheet, dated 23-11-1996, was served upon the appellant which was duly replied. The appellant also filed Constitutional Petition bearing No,D-2397 of 1996 before the Hon.
2. High Court of Sindh. Ad interim status quo order was passed by a Divisional Bench on 19-12-1996 which was continued upto 14-1-1997. It is alleged that during the period, when status quo orders were operative, the appellant was dismissed from service vide order, dated 21-2-1996, w,e,f, 1-4- 1996.
3. ' When the appellant filed contempt application, the Hon. High Court directed the appellant to first prefer a departmental appeal before respondent No,2, within a month's time and in case no decision is given, the appellant was free to approach this tribunal. Accordingly, the appellant filed a departmental appeal on 31-3-1997 and thereafter filed this service appeal on 24-7-1997, within stipulated time.
4. ' The main arguments of the counsel for the appellant are that:-
(i) The impugned dismissal order, dated 21-2-1996, was passed by respondent 'No,1, who is not competent to pass the same the Competent Authority being the Director concerned.
(ii) The impugned dismissal order, dated 21-2-1996 was passed with retrospective effect-hence illegal/void.
(iii) Even suspension order, its continuation is illegal not being passed by the Competent Authority viz, the Director concerned.
(iv) The impugned dismissal order was passed during the operation of stats quo order.
(v) Impugned dismissal order is not in accordance with law. In this connection, the counsel for the appellant placed reliance on SCMR 1997 page 1543.
5. ' He lastly prayed that since Appeal No,101 of 1997, with similar facts and identical questions of law had already been allowed this appeal may also be allowed.
6. ' Mr. Zaidi A.A.-G. Argued briefly. On a query from the Chairman, he replied that no inquiry report of departmental inquiry was made available to him hence not filed with the written statement.
7. ' The fact remains that this appeal involves the same question of law and has similar facts, as in service Appeal No,101 of 1997 (Mst. Samar Jabeen v. The same respondents Nos,1, 2 and 3). We would like to reproduce the two paras. On page 11/12 of our judgment in that appeal as follows:-- "On one hand we have before us a service of 28 years of the appellant of which she has lost all her benefits, because of her dismissal from service in a slipshod/cursory/summary manner. On the other hand, the esteem, self-respect and dignity of her supervisory officer viz respondent No,1 is at stake because of the false allegations levelled by the appellant that could not be proved before Anti-Corruption Establishment. We do not agree with the Advocate for the appellant that the order for the reinstatement of the appellant issued by the then Provincial Minister Education had any legal validity--Minister being not the prescribed authority in respect of the appellant. Moreover, the order was bad in law i,e, without hearing the other party in the matter. We are also unhappy to record that the appellant's dismissal order was issued during the pendency of a Constitutional petition and grant of ad interim status quo orders on the plea of non service thereof which must have been brought to the notice of the respondents, formally or informally by the office of A.-G.
8. Sindh. This shows that the respondents were not fair to the appellant because in normal course whenever a matter is sub judice before the Hon. High Court all wise persons refrain to pass any order till its final disposal. Suffice it to say that the impugned dismissal order passed by the respondent No,1 was without normal diligence and care, in such matter.
9. ' Considering all the above aspects we are left with no other alternate, but to set aside the impugned dismissal order/appellate orders which ' suffers from score of technical irregularities, if not illegalities. We are also strengthened in this view 'because the appellant has been condemned unheard, departmental inquiry not held in accordance with law without affording the appellant a fair opportunity to participate in it, denying her right of personal hearing before awarding the maximum penalty of dismissal from service which is the 'most harsh' of all the prescribed penalties, that also debars the concerned person for further service in Government and also result in the forfeiture of all service benefits; particularly the rights of pension and gratuity. We are, therefore, clear in our mind that this penalty is to be awarded and must be awarded by a transparent proceeding to establish the bona fides of the authority as well as justifying the imposition of the maximum penalty."
10. As per judgment in the appeal, the impugned order, dated 3-12-1998, in this appeal is set aside.
11. However, setting aside of the said. Order, is not a bar to the respondent for a de novo proceedings against the appellant strictly in accordance with the prescribed procedure and law on the subject.
12. The intervening period between her dismissal from service and reinstatement in service will be treated as leave due to her.
13. ' There are no orders as to cost.