' SAYED ZAHID HUSSAIN, J.--- Farhad Ali petitioner Ex.Post Master, Thall Post Office, Kohat Division was served with a show-cause notice dated 28-2-2004 under the Removal from Service (Special Powers) Ordinance, 2000 as to why he should not be dismissed from Government service. The allegations of misappropriation, misconduct and inefficiency were levelled against him. He was asked to file his defence statement within seven days. He filed his reply/defence statement dated 22-3-2004 whereafter he was afforded personal hearing on 7-4-2004. He was then dismissed from service on 13-8-2004. He filed departmental appeal/ representation, which however remained un- responded. Eventually he approached the Federal Service Tribunal by filing an appeal under section 4 of the Service Tribunals Act, 1973, which was dismissed on 8-4-2008 where against this petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 was filed by him, wherein notice was ordered by this Court to the respondents on 18-6-2008.
2. Mr. M. Shoaib Shaheen, Advocate Supreme Court the learned counsel for the petitioner and Agha Tariq Mehmood the learned Deputy Attorney-General for Pakistan have been heard. During the course of hearing, sensing perhaps the fate of the matter, the learned counsel has ultimately addressed us to pray for the conversion of penalty of dismissal from service to some lesser penalty. The learned Deputy Attorney-General for Pakistan, however has opposed such a prayer and has cited Assistant Director (Admn.) National Savings Centre and others v. Muhammad Anwar 1990 SCMR 1214 where the Federal Service Tribunal had converted the departmental penalty of removal from service into stoppage of three increments but the same was reversed by this Court, restoring the departmental penalty.
3. We have considered the matter in the above context and find that the petitioner had joined the service in the year, 1982, who had remained posted at different places. His performance had been satisfactory and he was once recommended also for payment of incentive due to his interest and devotion to duty. No doubt the allegation which now he faced was more or less admitted by him and was dealt with by the learned Tribunal as follows; "In view of the admission of the fact that the said amount of Rs,100,000 was credited by appellant on the pass book but no entry was made in the ledger and the cash was not deposited in the Government account, the charge of misappropriation against him stood proved. His allegation that he had handed over the cash to Mr. Dawar Khan is neither plausible nor substantiated by any evidence nor does it absolve him of his responsibility to deposit the said cash."
4. It is hard for the petitioner to refute this finding and so was the stance of his learned counsel but at the same time the other aspect of the matter which needs attention is that the matter was taken up by the National Accountability Bureau (NAB) and in the inquiry the petitioner is said to have been exonerated and Dawar Khan was proceeded against, where the petitioner appeared as a witness in the NAB Reference No,22 of 2005 State v. Dawar Khan and another. In fact no monetary loss was suffered by the Government as the amount involved was credited. It ipso facto does not absolve the petitioner for not having taken timely steps for crediting of the amount but may have some relevance in considering the imposition of penalty. While deciding the appeal the learned Tribunal could go into this question as such a power vests with the learned Tribunal in view of provisions of S.5 of the Service Tribunals Act, 1973, which empowers the Tribunal to confirm, set aside, vary or modify the order appealed against. In C.P.No,704 of 2008 Akhtar Ali v. Director, Federal Government decided on 21-4-2009 this Court had taken the view that while imposing penalty the competent authority is expected to keep in mind the gravity and severity of the allegations and past conduct of the person concerned, and removal from service was not the only option for the competent authority, who could be awarded other penalty of lesser implications. When he filed appeal before the Federal Service Tribunal even the learned Tribunal did not advert to this aspect of the matter although under section 5 of the. Service Tribunals Act, 1973, the Tribunal had power on appeal to "confirm, set aside, vary or modify the order appealed against". There is no dearth of precedents where the Tribunal modified the orders of the departmental authority by converting the penalties, and substituting order in place of removal from service. For instance in Abdul Hassan v.
Secretary, Education (S&L) N.-W.F.P and 3 others 2008 PLC (C.S.) 77, the N. -W.F.P Service Tribunal ordered the conversion of dismissal order from service with that of compulsory retirement and the petition for leave C.P.No,249-P of 2007 filed by the Government of N.-W.F.P against the said order of the Tribunal was dismissed by this Court on 24-12-2008. In Shamim Ahmed Kazmi v. Pakistan International Airlines Corporation and another 2005 SCMR 638, the Federal Service Tribunal had ordered the conversion of dismissal from service into compulsory retirement which was maintained by this Court by dismissing the petition thereagainst. In Agriculture Development Bank of Pakistan through Chairman and another v. Akif Javed 2005 SCMR 752, the penalty of dismissal from service was modified by the Federal Service Tribunal to compulsory retirement where against the petition was dismissed by this Court. In Auditor General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60, removal from service order was converted into reduction in time scale by the Federal Service Tribunal whereagainst the appeal of the Department was dismissed by this Court. Reference may also be made to Javed Akhtar and others v. Chief Engineer, Highway Department and others 2006 SCMR 1018. As to the scope of powers of the Tribunal under the Service Tribunals Act and of this Court under Article 212 reference may be made to Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100, Water and Power Development Authority, Lahore and 2 others v. Muhammad Yousaf, Test Inspector PLD 1996 SC 840, Mian Shafiuddin, Deputy. Director and 4 others v. Surat Khan Marri, Director Regional Information Office, Islamabad and 41 others 1991 SCMR 2216 and Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774. So far as the jurisdiction and powers of this Court is concerned, it has been held that even this Court while hearing petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, had been exercising its jurisdiction in appropriate cases of converting the penalty found not commensurate to the nature of the charges. In Inspector-General (Prisons)
N.-W.F.P Peshawar and another v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others 2006 SCMR 815, the judgment of the Tribunal was modified to convert the penalties imposed by the departmental authority. In Abdul Sattar and another v. Director Food, Punjab and others 2007 PLC (C.S.) 319, this Court ordered the conversion of penalty of dismissal from service into compulsory retirement from service. In Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 PLC (C.S.) 428, modifying the judgment of the learned Tribunal this Court ordered the conversion of penalty of compulsory retirement into reduction of two steps in time scale for a period of two years. The object of making reference to the above cited precedents is that not only the Tribunal while dealing with an appeal under section 5 of the Act has the power to vary and modify the order of departmental authority; this Court while sitting in appeal over the judgment of the learned Tribunal can also exercise such a power to meet the ends of justice dependent upon of A course the facts and circumstances of each case.
5. We have, therefore, considered the matter in the above perspective and find ourselves persuaded to observe that the penalty of dismissal from service was too harsh and disproportionate in the circumstances of the case. The reliance of the learned Deputy Attorney General for Pakistan upon Assistant Director (Admn.) National Savings Centre and others v.
Muhammad Anwar (supra) is inapt as in that case the Tribunal had converted the penalty of removal from service into one of stoppage of three increments, which approach of the Tribunal was not approved by this Court. The effect of the conversion order of the Federal Service Tribunal in that case was that the civil servant was to continue in service and only his increments were ordered to be stopped for a certain period. The case of Federation of Pakistan v. Khalid Javed 2009 SCMR 720 is also inapplicable as in that the order of compulsory retirement was converted by the learned Tribunal into reduction to the lower post for a certain period. Here in the instant case, we are conscious of the fact that the petitioner was holding the post where his duty included" dealing with money entrusted to him by the public, misappropriation of such public money even though for a short period could not be taken lightly nor ignored. He of course was liable to face consequences of his conduct and malfeasance.
6. While not approving his dismissal from service, we are of the view that he should be deemed to have been compulsorily retired, which would meet the ends of justice. This petition is thus converted into appeal, which is accepted partially converting his dismissal from service into compulsory retirement. No order as to costs.