' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment, dated 31-3-2001 passed by the Federal Service Tribunal, Islamabad, in a service appeal filed by the respondent against his dismissal from service.
2. The respondent was employed in the Agricultural Development Bank of Pakistan (A.D.B.P.) and was holding the post of Extra-Assistant Director. He was proceeded against under A.D.B.P. Officers Service (E&D) Regulations, 1975 read with Circular No,PD-4/98, dated 24-1-1998 and vide O.M.
No,E&D/DP-VI/1(240)/98, dated 28-5-1998 was dismissed from service. On failure of the departmental appeal filed by the respondent, he preferred an appeal before the Federal Service Tribunal which succeeded and the Tribunal vide short order, dated 19-3-2001 allowed the appeal in the following terms:- "Learned counsel for the appellant submitted that in view of judgments of this Tribunal, the case of the appellant may be considered on the quantum of punishment as the appellant has rendered 24 years of service and has not misappropriated or embezzled the sum of money of the respondent- Bank and or has not favoured loanee for obtaining loan after receiving a gratification from the loanee. It was also submitted that the appellant was never punished for any misconduct or misappropriation or embezzlement of the sum of money of the respondent-Bank. The allegations against the appellant that he received money from the outsider for a post in the respondent-Bank is a matter which is mala fide and is not connected with the duties of the appellant. Learned counsel for the respondents vehemently contends that the appellant has been guilty of gross misconduct because of receipt of Rs,50,000 from the outsider on the assurance of granting him a post in the respondent-Bank and thus, he has brought the respondent-bank in disrepute or bad name.
' After hearing the arguments of the learned counsel for the parties and for the facts and reasons recorded later on, the delay in filing the appeal is condoned and the O.M. Dated 28-5-1998 imposing the penalty of 'dismissal from service' is modified to compulsory retirement within the meaning of Rule 4(b)(ii) of A.D.B.P. Officers Service (E&D) Regulations, 1975. The appeal is, therefore, partially accepted accordingly with no order as to costs."
3. The allegation against the respondent as contained in the show- cause notice was that he obtained illegal gratification to the tune of Rs,50,000 from one Shabbir Ahmed son of Masud Khan for providing him employment of A.D.B.P. And acknowledged receipt of money through a written agreement on a stamp paper with undertaking of return of the money in case of failure to do the needful. The competent authority on receipt of the complaint of Shabbir Ahmed, appointed a Joint Director to conduct the preliminary inquiry into the allegation against the respondent. The Inquiry Officer in the preliminary inquiry having come to the conclusion that the allegation against the respondents contained in the complaint, was correct and his act amounted to misconduct, submitted the report. The Authorised Officer in the light of report of Inquiry Officer issued a show- cause notice dated 16-4-1998 to the respondent proposing imposition of major penalty of dismissal from service and in consequence thereto, the competent authority dismissed the respondent from service. The Tribunal in the light of the explanation offered by the respondent for not filing the appeal within statutory period, rejected the objection of present petitioners in this behalf and by condoning the delay in the filing of appeal decided it on merits. The Tribunal keeping in view the nature of allegation, in exercise of the powers under section 5 of the Service Tribunals Act, 1973, modified the penalty of dismissal from service awarded to the respondent by the competent authority to compulsory retirement in terms of Rule 4(b)(ii) of A.D.B.P. Officers Service (E&D) Regulations, 1975.
4. Learned counsel for the petitioners argued with vehemence firstly that the appeal before the Tribunal was barred by time and secondly that the exercise of discretion by the Tribunal in modification of the penalty imposed upon the respondent by the competent authority was without any justification. In support of the first contention, the learned counsel has submitted that the order relating to the dismissal of departmental appeal of the respondent was conveyed to him on 8-2- 1999 and the appeal before the Tribunal was filed with the delay of about 11 months but the Tribunal in improper exercise of discretionary jurisdiction condone the unexplained inordinate delay. The basis of second contention was that the execution of the document containing the undertaking of the respondent for return of Rs,50,000 received by him from Shabbir Ahmad was admitted.
5. Learned counsel for the respondent, on the other hand, has contended that both the above grounds taken in support of this petition were not supported by any legal evidence.
6. We have heard the learned counsel for the parties at length and also examined the record in detail. According to the learned counsel for the petitioners, the intimation regarding dismissal of departmental appeal was sent to respondent through letter dated 8-2-1999 and the letter dated 13-1-2000 contained intimation regarding the dismissal of his mercy appeal. The plea of the respondent in the application moved by him with the appeal before the Tribunal for condonation of delay in filing the appeal was that no intimation was sent to him about dismissal of his appeal at any stage before 13-1-2000 and that the letter, dated 13-1-2000 was issued on the reminder submitted by him to know about the fate of his appeal and that on receipt of above letter, he without waste of time preferred appeal before the Tribunal. Learned counsel for the respondent submitted that respondent filed only one appeal which was wrongly described as mercy appeal in the above letter. We having gone through the record , find that the petitioners have neither brought any convincing evidence on record in proof of service of letter, dated 8-2-1999 through which an intimation was sent to the respondent for dismissal of his appeal nor that he after dismissal of regular appeal filed a mercy appeal which was rejected on 13-1-2000, therefore, in these circumstances the condonation of delay by the Tribunal in its discretionary jurisdiction, was not questionable.
7. While dealing with the question of misconduct, the Tribunal observed that neither respondent was in a position to appoint any person in the Bank nor the Bank has placed any material on record to show that -respondent was competent to make appointment in the bank. The show- cause notice was issued to the respondent by the Authorised Officer on the basis of finding of the Inquiry Officer in the preliminary inquiry in which neither respondent nor Shabbir Ahmed complainant was examined and the competent authority without feeling necessity of holding regular inquiry and providing a proper opportunity to the respondent to defend himself, passed the final order of dismissal from service. It is not established from the existing record that what was the true nature of transaction between the respondent and Shabbir Ahmed and in what manner the respondent misused his official position or brought disrepute to the Bank. The Tribunal in the given facts, in exercise of its jurisdiction under section 5 of the Service Tribunals, Act, 1973 deemed it proper to modify the punishment of dismissal from service to compulsory retirement and we have not been able to find out any defect in the exercise of power by the Service Tribunal. It was held in Pakistan Railways v. Ghulam Rasul 1997 SCM R 1581 that provisions of section 5 of Service Tribunals Act, 1973 confer wide power on Service Tribunal to confirm, set aside, vary or modify the order in appeal against the departmental authority and the scope of appeal before the Supreme Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 is very limited to interfere in such matters. The Tribunal while granting relief of converting the penalty of dismissal from service into compulsory retirement has not exercised jurisdiction in an arbitrary manner and we find no justification for interference in the matter.
8. For the foregoing reasons, this petition fails and is accordingly, dismissed. Leave is refused.