' CH. IJAZ AHMED, J.--- Zia-ur-Rehman, petitioner, seeks leave to appeal against impugned judgment, dated 27-12-2008 whereby the learned Federal Service Tribunal, Islamabad, has partly accepted his appeal by converting his dismissal into removal from service.
2. Detailed facts have already been mentioned in the impugned judgment, however, necessary facts out of which the present petition arises are that the petitioner was 'appointed as Postman (BS-5) on 9-3-1999 initially on daily wages basis. Subsequently he was regularized w,e,f, 1-8-2002.
The petitioner absented himself from duty from 14-11-2005 to 13-10-2006. The competent authority sent show-cause notice on account of his abser...:e on 1-2-2006 which was received back to the competent authority/respondent with the remarks that the addressee was not available at the given address. Subsequently show-cause notice was published in the press on 16-2-2006. The petitioner did not enter appearance in response to the show-cause notice before the competent authority. Disciplinary proceedings were finalized ex parte against the petitioner and he was dismissed from service vide order dated 29-5-2006. Order of dismissal was again sent on his permanent address which was also received back. The same was also published in the press on 24-7-2006 but the petitioner did not respond and did not file departmental appeal against the dismissal order within the prescribed period. The petitioner filed departmental appeal before the appellate authority on 7-12-2006 which was rejected as time-barred vide order, dated 24-1-2007.
Petitioner, being aggrieved filed Service Appeal No,20(P)(C.S.) of 2007 on 12-2-2007 before the Federal Service Tribunal. The Service Tribunal partly accepted the same vide impugned judgment, dated 27-12-2008, hence the present petition.
3. Learned counsel for the petitioner submits that the petitioner was involved in a criminal case which was registered under sections 10/16, Offence of Zina Ordinance, 1979 and under section 365, P.P.C. The petitioner was arrested in the said case. He further urges that petitioner had submitted an application for leave to the Divisional Superintendent on 14-11-2005 which, according to him, was not forwarded to the competent authority, therefore, he was treated to be unauthorisedly absent from office. The petitioner was released on bail in the said criminal case on 11-10-2006.
Thereafter the petitioner reported for duty on 13-10-2006 when he had received information orally that he was dismissed from service. The petitioner received the dismissal order, dated 29-5-2006 on 26-11-2007 and this aspect of the case was not considered in its true perspective by the learned Service Tribunal as well as the respondents. He further maintains that it is the duty and obligation of the respondents to decide the application of the petitioner with reasons in view of section 24-A of General Clauses Act, 1897. He further urges that learned Service Tribunal had erred in law to non- suit the petitioner on technical ground without application of mind.
4. We have given our anxious consideration to the contentions of the learned counsel of the petitioner and had perused the record with his able assistance. The respondents had taken a stand in comments filed before the Service Tribunal that petitioner had not submitted application for leave and the petitioner was dismissed from service on, account of wilful absence and misappropriation of Government money with mala fide intention. The petitioner had also taken a stand in para.6 of the appeal before the Service Tribunal that local Postmaster, Changala Gali, in collusion with the complainant Feroze had not submitted the application of the petitioner to the authority concerned. It is appropriate and proper to reproduce basic facts in chronological order to resolve the controversy in question as under--
(i) Show-cause notice was issued and dispatched on his permanent address on 1-2-2006.
(ii) The said notice was received back in office on 174-2006.
(iii) Show-cause notice was also published in the Daily Jang, Rawalpindi and Daily Ittehad, Abbottabad, dated 16-2-2006.
(iv) The petitioner failed to defend himself.
(vi) The petitioner was dismissed from service vide order, dated 29-5-2006.
(vi) Dismissal order was also dispatched on his permanent address which was received back in the office on 1-6-2006.
(vii) The said dismissal order was also published in the Daily Jang, Rawalpindi, and the Daily Shamal, Abbottabad dated 24-7-2006.
(viii)It is pertinent to mention here that the respondents had taken the aforesaid stand in reply to para.8.
(ix) The petitioner did not deny the same in the specific words while filing rejoinder before the Federal Service Tribunal.
(x) The petitioner filed departmental appeal on 7-12-2006 which was time-barred and was rejected vide order, dated 24-1-2007 in the following terms:-- "It is intimated that appeal is time-barred. Therefore, cannot consider at this stage."
(xi) The petitioner filed appeal before the Service Tribunal on 12-2-2007 which decided vide impugned judgment, dated 27-12-2008. The learned Service Tribunal had given finding in para.7 as under:--- "As per settled law, since the departmental appeal is time-barred, the instant appeal is not competent before this Tribunal."
5. In case the foresaid facts are put in juxta position then it is crystal clear that the petitioner had filed departmental appeal after the prescribed period, therefore, the appellate authority was justified to dismiss the same as time-barred. The petitioner admits his absence from duty on account of his involvement in criminal case but he failed to substantiate the same by producing a convincing evidence to the extent that he had submitted an application for leave before the respondents. Even otherwise it is well-settled principle of law that mere submission of application for leave by an employee to his department would not mean that leave has been granted in his favour and he is duty bound to enquire from the department himself about the fate of his request for grant of leave. In the case in hand, the petitioner did not even bother to contact his department himself or through his agent to know as to whether leave has been sanctioned or not. Mere reading of the paragraph 7 of the impugned judgment clearly shows that learned Service Tribunal had given findings of fact against the petitioner after reappraisal of evidence and upheld the order of the respondents that his departmental appeal was time-barred, therefore, appeal before the Service Tribunal was not maintainable, meaning thereby, that the petitioner had challenged the vires of the concurrent orders of the respondents and impugned judgment of the Tribunal through this petition. This Court cannot interfere with the concurrent findings of fact arrived at by the Courts below while exercising the power under Article 212(3) of the Constitution as laid down by this Court in Iftikhar Ahmed Malik's case 2005 SCM R 806 and Tahir Latif's case 2007 SCM R 152. It is settled principle of law that finding of Service Tribunal having findings of fact would not call for interference by this Court as 'aw laid down by this Court in Ch. Muhammad Azim's case 1991 SCM R
255. It is settled principle of law that when appeal of the employee was time-barred before the appellate authority then the appeal before the Tribunal was also not competent on that count in view of the various pronouncements of this Court including the following judgments:--- ' (1) Chairman PIA and others v. Nasim Malik PLD 1990 SC 951 (2) Muhammad Aslam v. WAPDA and others 2007 SCM R 513.
' Even otherwise the petitioner has failed to raise any question of public importance in the present case as contemplated under Article 212(3) of the Constitution.
6. It is pertinent to mention here that learned Service Tribunal has converted the penalty of dismissal into removal on sympathetic grounds keeping in view young age of the petitioner as is evident from paras.8 and 9 of the impugned judgment. As the respondent had not filed petition qua the said conversion of punishment before his Court, therefore, we do not disturb the same, otherwise, learned Service Tribunal has no jurisdiction to convert, the penalty while observing that appellate authority dismissed the appeal of the petitioner as time-barred, hence, appeal before the Service. Tribunal was not competent.
7. In view of what has been discussed above, we do not find any merit in this petition and the same is dismissed. Leave refused.