1. ' S. NASIM HAIDER (SENIOR MEMBER).---The brief facts, according to the Advocate, for the appellant are that she alongwith 36 others teachers and Head Mistresses reported the alleged matter of corruption, bungling and misappropriation of Government funds specially rupees two crores provided by the World Bank for maintenance and welfare of schools and education in the Karachi Region. Due to such written complaint the respondent No,1 became annoyed against appellant and allegedly threatened that she would be dismissed from , service. The appellant was suspended on 2-4-1996 and her suspension was extended from time to time.
2. ' The appellant approached the then Provisional Education Minister who was pleased to reinstate the appellant vide his order, dated 9th July, 1996 which were duly communicated to the respondents. However, instead of complying with the reinstatement order, the respondents further extended the suspension period because of which a final grievance petition was filed against respondent No,1 on 28-10-1996, that caused more annoyance and a departmental inquiry was ordered to be held against appellant vide letter dated 11-12-1996. It resulted in filing of Constitutional petition bearing No,D-2397 of 1997 and the Divisional Bench of the Hon'ble High Court was reportedly pleased to grant in the status quo order on 19-12-1996. However, during the operation of the above said status quo order, the appellant was dismissed from service vide order, dated 21-12-1996. The appellant filed contempt application. The said C.P. Was finally disposed off on 18-3-1997. The last two (2) paras. Of the said order are reproduced below: "In the circumstances, the petitioner and the respondents agree that the petitioners may prefer departmental appeal within a month's time and that being done due decisions would be rendered thereon in accordance with law. However, in case, no such decision is rendered, the petitioner would be free to approach the Service Tribunal with the requisite appeals within the time provided by law.
3. ' In such terms and consent we dispose of the matters at serial Nos.1 to 5."
4. ' The appellant thereafter filed departmental Appeal to the Director, Primary Education Karachi, dated 31st March, 1997 and after awaiting the statutory period filed this service appeal on 24th July, 1997. Hence this appeal.
5. ' Mr. Amanullah Khan, argued that no charge-sheet was served upon the appellant immediate after her suspension on 27-4-1996 during their initial 3 months. Thereafter, the period of suspension further extended but still no charge-sheet served upon her. He contended that the then Minister Education ordered for the reinstatement of the appellant on 2-9-1996 but instead of complying with that order her suspension period was further extended on 27-9-1996.
6. ' The respondents eventually, issued the charge-sheet on 23rd November, 1996 which was served upon the appellant on 1-12-1996. He contended that the alleged departmental inquiry against the appellant was not conducted in accordance with law which is also admitted in the written statement of the respondents at page-21. According to him the appellant due to her sickness did not appear before the Inquiry Committee and such intimation was communicated in time to the said Inquiry Committee. He said that the respondents, malafidely acted in haste and did not apply their mind judiciously as evident from the fact that the Inquiry Committee was established on 11-12- 1996, the appellant was required to submit her reply vide letter, dated 15th December, 1996 but she was dismissed on 21st December, 1996 despite communication of the information that she was sick. He relied upon 1997 SCMR page 1543 and stated that a regular inquiry cannot be dispensed with in such all slipshod manner. Further according to him the appellant was not given the opportunity of a personal hearing which was inviolation of the principle of natural justice, fairplay and equity. He alleged that the mala fides of the respondents are obvious from the fact that the appellant was dismissed from service despite the fact that status quo orders were still operational on the concerned date. The Senior Member inquired whether the status quo orders were actually served upon the respondents and if so on what date? This enquiry could not be answered by the learned Advocate for the appellant. The Member observed that it was perhaps because of the same fact i,e, non-service of the orders upon the respondents the Divisional Bench of the Hon. High Court of Sindh did not dilate further, on this point, in its judgment. The Advocate for the appellant stated that the appellant was initially appointed as PST (Primary School Teacher) in BSP-8 on 4-11- 1968 and till her dismissal had 28 years of service being in BSP-12/Head Mistress. In view of such long service, the appellant, according to him deserved better treatment, penalty imposed was too harsh and result of personal vendetta and needs to be set aside.
7. ' The Assistant Advocate-General argued that the impugned order of dismissal was passed on 21st December, 1996. However, the appellant failed to file the departmental appeal within stipulated period of 30 days. This argument is not valid in view of the abovesaid orders of the Divisional Bench of the Hon'ble High Court of Sindh, passed with the consent of the respondents, in our opinion.
8. ' Mr. Akram Shahbaz Advocate for respondent No,1 (SDEO) in her private capacity stated that departmental remedy was not exhausted by the appellant. It was pointed out to him that the appellant did file departmental appeal in the light of the orders of the Honourable Divisional Bench of the High Court of Sindh. He was, however, of the view that non-receipt of the original dismissal order by the appellant was only a hoax. This plea has only been taken by the appellant to circumvent the point of limitation. He further argued that departmental appeal, dated 31st July, 1997 was not strictly a departmental appeal but could not justify that statement. He adopted further arguments of the A.A.-G.
9. ' The S.D.E.O. (Female) East Landhi Korangi/respondent No,1, on 10-11-1998 through A.A.-G. Submitted the documents regarding approval of the D.S.C. (Female) Branch for suspension of the appellant and its subsequent extension on 19-6-1996, 9-9-1996 as well as the delegation of power showing her as the 'appointing authority in respect of primary teacher in basic scale-7'. On 18-11-1998 she also submitted a certificate to the effect that the appellant was appointed as Assistant Mistress in the year 1968. Thereafter, the post was gradual upgraded in Scale No,6 and then 7 as per Government Policy and again she jumped in BSP-10 due to Selection Grade per Government Policy.
10. Later on she earned move over and entered in BSP-11. At the time of the dismissal, she was drawing the salary of BSP-11 on move over basis, (She, however, still contended that the post held by the appellant at the time of her dismissal was basically Primary School Teacher of BSP-7').
11. ' We have gone through the arguments of either side, carefully. We have also perused the record and documents filed, with the help of the Advocates for the parties concerned. In view of the certificate dated 10th November, 1998 submitted by the Sub-Divisional Education Officer, Landhi/Komagi East (Female) Karachi, it is crystal clear that the appellant was originally appointed as Assistant Mistress in the year 1968 i,e, prior to the introduction of National Scales. Consequent upon the Administrative Reforms of 1973, it was 'originally classified in Grade-6, then upgraded to Grade-7. The appellant had been granted Selection Grade in BSP-10 and she was at the time of dismissal, in BSP-11 as a result of move over. The grant of Selection Grade-10 to the appellant establishes beyond doubt that the appellant was holding a substantive post in BSP-10 at the time of her dismissal from service and the grant of BSP-11, as move over, was personal to her without the change in her status or her substantive grade. Notification reg. Delegation of power of appointing authority to the Sub-Divisional Education Officer in respect of Primary Teachers in basic scale-7 is irrelevant to the question whether the respondent No,1 could dismiss the appellant because the respondent is neither the head of office nor in BSP-19 or above, nor the Regional Head or Head of Attached Dept. In view of the above legal position, we are of the considered view that the powers of imposing the major penalty upon the appellant, whose substantive grade was BSP-10 (BSP-11 by move over) did not vest in the respondent No,l. Her action of seeking the permission for the suspension of the appellant and subsequent extension of appellant's suspension period, from the Director Primary School Education repeatedly also shows that the respondent No,1 was conscious of this fact and therefore, sought permission from the Director School Education concerned. The approval of D.S.C. Concerned regarding dismissal of appellant submitted by the respondents with their written statement further confirms this view that she was conscious all along of the fact that she was not the 'authority' in respect of the appellant and therefore, she obtained permission for the action from D.S.C. In law or the above, award of the major penalty of dismissal from service as per impugned order, dated 21st December, 1996, under her own seal and signature without spelling out such approval was not factually, correct. It is obvious from the documents produced, in the appeal by the appellant and the respondents in their defence that the primary cause of the disciplinary action against the appellant, was her joint application alongwith the signatures of 36 other ladies, regrading, the alleged charges of corruption and mismanagement against the respondent No,
1. In the inquiry report, bearing No,OSC (71)/K/96/3567, dated 26-5-1996 forwarded by the Director, Anti-Corruption Establishment, it is clearly stated in para-2 "The inquiry made did not bring out evidence to warrant any action by this establishment". It is apparent that the appellant alongwith others was engaged in a smearing/vilification Compaign against the respondent No,1 but failed to prove her allegations of corruptions or mismanagement against, respondent No,1 through any documentary evidence or implications thereof. The appellant was, therefore, prima facie liable for prosecution under the provisions of Pakistan Penal Code on that account i,e, making false complaint and allegations against a Government servant, specially her superior. In addition, she was also liable to be proceeded against, under the Efficiency and Disciplin Rules because her behaviour prima facie amounted to gross misconduct. Without prejudice to the above, the respondents were required to proceed against the appellant in accordance with the provisions of the Sindh Civil Servants (Efficiency and Disciplinary) Rules, 1973. According to the said rules a detailed procedure for disciplinary action is prescribed. The charge-sheet and statement of allegations is required to be signed by the 'authorised officer' who is also authorized to appoint the Inquiry Officer or an Inquiry Committee to inquire into the charges of the alleged misconduct. The inquiry procedure is also a quasi-judicial procedure. Evidence has to be produced before the Inquiry Officer or the Inquiry Committee i,e, the accused official's statement alongwith the statement of her defence witnesses have to be recorded after the Examination-in-Chief and prosecution witnesses. Both the prosecution and the defence are entitled to cross-examine the witnesses of the other side. Only after this procedure has been complied with, the Inquiry Officer or the Inquiry Committee shall give findings whether the charges stand proved, disproved or partially proved. On the receipt of the findings of the inquiry the authorised officer shall proceed further. If in his view a minor penalty is called for then he can award it himself but if a major penalty in his opinion is called for, he is required to submit the case to the authority alongwith all the record and suggest the major penalty to be imposed upon the accused official. It is, however, for the authority to decide the proposed penalty, himself. Thereafter, the authorised officer is required to issue a show-cause notice to the accused 'called final show-cause notice' indicating that, with the approval of the authority, it is proposed to impose upon him the specified major penalty, obtain his reply, afford him the opportunity of a personal hearing and thereafter re-submit the case to the authority for final orders. (According to interpretation of statutes he includes she). All these provisions of law are contained in Sindh Civil Servants Efficiency and Disciplinary Rules, 1973 from rule 4 to rule 8. (The procedure of issuing the final show-cause notice was not in the original rules but the rules were amended subsequently as a result of the decision of the Hon. Supreme Court of Pakistan).
12. ' What is obvious from the perusal of the record is that though the respondents prima facie had a sufficiently good case for proceedings against the appellant, specially in view of the inquiry report of the Anti-Corruption Establishment sent by its Director, as reported above, but their undue haste and non-proficiency in disciplinary matters, lack of knowledge or guidence from the superiors, they made a mess of the disciplinary proceedings.
13. ' Since the respondent No,1 was herself the subject-matter of the complaint, it was a matter of decorum/procedure that the disciplinary action against the appellant should have been entrusted to some other officer by transferring the appellant outside the jurisdiction of the respondent No,1.
14. Instead of suggesting such an action which would have established her bona fide beyond doubt, she elected to proceed against the appellant herself, thus colouring her neutrality. No doubt she had taken the permission from D.S.E. (Primary) for the suspension of the appellant; extension of her suspension periods from time to time and even before dismissing the appellant but such approval were not spelled out in clear terms, in writing. It may not be a serious violation of rules but nevertheless such orders suffer from technical objections and omissions of material facts. The Enquiry Committee issued a notice for the appearance of the appellant but when informed about her sickness, the appropriate course for the committee was to adjourned the matter to some other date and meanwhile refer the matter regarding her sickness for the opinion and counter-signature of the Civil Surgeon of the District concerned if there were any doubts/reservations against the medical certificate submitted as per established practice. Undoubtedly, this procedure was not followed thereby denying a reasonable opportunity to the appellant to participate in the departmental inquiry, against her. The Inquiry Committee also failed to record the examination-in- chief statements of P.Ws./D.Ws. Alongwith their cross-examination, if any. The committee also failed to direct the prosecution to put up the relevant documents or, evidence against the appellant, if any. Instead of going through the prescribed legal drill, which is of course a time consuming, and painstaking exercise but essential, the Enquiry Committee, in a slipshod cursory or summary procedure held that the appellant was deliberately avoiding to appear before it. In the same way, the final show-cause notice was dealt with and the appellant was dismissed from service.
15. ' 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 Prov. Minister Education had any legal validity--Minister being not the prescribed authority in respect of the appellant. Moreover, that 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., 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.
16. ' Considering all the above aspects we are left with no other alternate, but to set aside the impugned dismissal order/appellate orders which suffer 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 results 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.
17. ' However, setting aside of the said orders, is not a bar to the respondents for a de novo proceedings against, the appellant strictly in accordance with the prescribed procedure and law on the subject. The intervening period between her dismissal from service and reinstatement in service will be treated as leave due to her.
18. ' Announced in open Court this 3rd day of December, 1998 at Karachi.