PLJ 2012 SC 104
Damages--
----Suit for recovery of damages to tune of Rs. 5 million--Facts of--Plaintiff applied for L.P.R. but later on was withdrawn--Retirement order was issued on basis of personal enmity--Petitioner was reinstated in service by Tribunal--Suffered huge losses during the period when his L.P.R. was unauthorizedly allowed--Claimed the damages in the plaint--Suit of petitioner was dismissed with compensatory costs--Regular First Appeal was also dismissed by High Court--Challenge to--Question of--Entitlement for grant of general damages under rule of thumb--Validity--Petitioner had failed to quantify the damages claimed as required under law--This did not mean that plaintiff was not entitled to grant of general damages under rule of thumb on face of material brought on record by him during trial--Plaintiff was entitled to grant of general damages for mental agony which he had suffered on account of conduct of defendant--Plaintiff was pleaded specific instances to establish personal vengeance against defendant on account of which he had claimed to have suffered losses and mental agony--Held: Pleading and evidence brought in support of claim of damages by plaintiff were sufficient to award general damages to plaintiff against defendant--Damages to tune of Rs. 1,00,000/- with mark up at rate of Rs. 10% was awarded from date of filing of suit till recovery of entire amount against respondent for his unwarranted actions which resulted the plaintiff to suffer mental agony and injury as pleaded in the suit--Petition was partly allowed. [Pp. 110 & 111] A, B & C
As per Iftikhar Muhammad Chaudhry C.J.
Damages--
----Two types of damages--Claimed damages on basis of loss caused to his service career, mental torture, death of his father, health damages to his wife and expenses for litigation--Allegedly caused due to mala fide acts--Validity--It is settled that in an action for personal injuries, general damages were required to be specifically pleaded and proved. [P. 112] D
PLJ 2002 Lah. 1998 & 1997 CLC 546, ref.
Damages--
----Human life is invaluable--Monetary compensation--Principles of law--Effort at assessing its loss in terms of money--Validity--Although there can be no compensation of mental tension and agony in monetary terms, as money cannot renew a shattered human frame, but still the law had provided that on account of damages, monetary compensation can be awarded, and so the Court must do the best it can in light of facts of each case, on basis of settled principles of law. [P. 113] E
Damages--
----Right sum of damages--It cannot be suggested that by any Arithmetic computation the exact sum of money could be assessed, which would represent mental agony, pain and suffering which a person had undergone. [P. 114] F
Damages--
----Principle--Damages are intended to put a person in same position as he would have been in had he not received the injury. [P. 114] G
Damages--
----Endeavor to examine the measure of damages which plaintiff was entitled to get--Validity--Plaintiff was only entitled to get as special damages all expenses actually and reasonably incurred during the medical treatment of his family members; on the litigation before competent form, whereby, his claims were accepted and orders of the authority were set aside, and loss of earnings which would have accrued to him due to non-payment of salary, subject to the condition that same were specifically pleaded and proved. [P. 115] H
Damages--
----Suit for recovery of damages--Claimed on account of damages to service career, mental torture, death of his father, health damages to his wife as an item of general damages--Second item relates to special damages on ground loss of professional earnings--LPR allowances were ceased due to illegal act of then administrator--Claimed special damages by way of compensation on account of three appeals filed before Federal Service Tribunal--Necessary to determine of evidence, the expenses which plaintiff had actually incurred for medical treatment and litigation--Plaintiff had claimed a round sum on each head--Petitioner had failed to quantify special damages as such he was not entitled for same--No denial of fact that petitioner had to suffer mentally due by competent forum--Petitioner was entitled for general damages under rule of thumb details of which had been proved. [P. 115] I
As per Khalji Arif Hussain, J.
General Damages--
----Damages must be such, which would compensate injured--Validity--Loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses can not be accurately calculated in terms of coins, but Courts did not decline to grant compensation and Courts had formulated parameters and devised principles for evaluation or assessment of such general damages. [P. 112] J
Damages--
----Issue of quantification--Discretion of Court--Violation of legal rights--No yardstick or definite principle for assessing damages--Difficult to assess a fair compensation--It is discretion of Court, which might on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who had suffered such damages. [P. 112] K
Torts--
----Law of torts or civil wrongs in
Damages--
----Not suffered pecuniary loss, but loss to reputation and mental anxiety in every case was bound to result--Validity--Plaintiff might recover damages for distress which normally results from being prosecuted for a time without proving that he had suffered any emotional disturbance--Damages of such kind are called general damages. [P. 113] M
Maliciously prosecuted--
----Suit claiming damages under torts as well as for cost he claimed to be incurred on defending proceedings--Order of retirement was passed which departmental representation filed by latter was turned down--Suit was dismissed by Courts below--Question of--Whether a person can claim damages for maliciously prosecuted in disciplinary proceedings--Held: A person who is maliciously prosecuted on criminal charge can sue in tort for damages if prosecution ends in his acquittal and prosecution was malicious in sense that it was without any reasonable cause--Claim for malicious prosecution a plaintiff must prove that law was set in motion against him on criminal charge that prosecution was determined in his favour that it was without reasonable and proper cause that it was malicious. [P. 115] N
Damages--
----Wrongfully dismissal from service--Tort of malicious prosecution of disciplinary proceedings--Validity--Where an employee who was wrongfully dismissed from service to his position he was entitled to that salary for the period he remained out of job from his employer but he was not entitled to sue in tort to claim damages on account of injury to his reputation due to wrongful dismissal or for tort of malicious prosecution of disciplinary proceedings. [P. 116] O
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 5--Jurisdiction of Civil Court--Service tribunal u/S. 5 of Act, 1973, exercises the jurisdiction of a
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 23-A--Case of withdrawal of LPR--Act of mala fide intention--Question of--Whether respondent acted malafidely while exercising his official authority and whether he could claim indemnity u/S. 23-A of Civil Servants Act--Validity--No suit, prosecution or legal proceedings would lie against a civil servant for anything done in his official capacity but the indemnity is subject to that the act had been done in good faith or intended to be done under Act, 1973--Order passed by respondent against petitioner was not act of bona fide on his part, in discharging of his duty, but an act of mala fide and too being vindictive against the petitioner--Any order passed mala fidely in colorable exercise of power could not be termed as an act done in exercise of power conferred by Act but in fact it is an act of abuses of power to which no protection can be extended--Orders passed by respondent against petitioner were result of personal vendetta and without any basis, just to humiliate and torture and as such petitioner was entitled to general damages. [Pp. 118, 119 & 120] Q, R & S
Damages--
----Petitioner claimed for general damages aggrieved on account of mental torture, damage to service career and legal expenses incurred by him, High Court determined the amount of damages for which the petitioner was entitled--In absence of any statutory provision custom and usage, respondent could not be burdened with interest/mark-up from date of filing of the suit. [P. 123] T
Petitioner in person.
Mr. Hashmat Ali Habib, ASC and Mr. M. S. Khatta, AOR for Respondents No. 1 & 3.
Nemo for Respondent No. 2.
Date of hearing: 15.7.2011.
PLJ 2012 SC 104[Appellate Jurisdiction]Present: Iftikhar Muhammad Chaudhry, CJ., Khilji Arif Hussain & Amir Hani Muslim, JJ.ABDUL MAJEED KHAN--PetitionerversusTAWSEEN ABDUL HALEEM & others--RespondentsCivil Petition No. 463 of 2011, heard on 15.7.2011.(On appeal against the judgment dated 09.02.2011 passed by the Lahore High Court, Lahore
Judgment
Amir Hani Muslim, J.--Through this petition, the petitioner impugns the judgment of the learned Lahore High Court by which it has denied damages claimed by the petitioner in a suit against the respondents.
2. The relevant facts as they appear from the record are that the petitioner filed a suit for recovery of damages to the tune of Rs. 5.00 million against the respondents before the Civil Judge, First-class, Mianwali.
3. The facts as has been pleaded in the plaint are that the petitioner applied for L.P.R on 13.5.2002, but later on, withdrew the same on 22.5.2002. On account of mala fide on the part of Respondent No. 1, the L.P.R was allowed with effect from 2.12.2002 and on appeal, the competent authority allowed the same and the petitioner was reinstated in service. It was further pleaded that again retirement order was issued by the Respondent No. 3 at the instance of Respondent No. 1 on the basis of personal enmity. As a result of which, the petitioner challenged the said order before the learned Federal Service Tribunal and the petitioner was reinstated in service by the learned Tribunal.
4. The petitioner has pleaded in the suit that he has suffered huge losses during the period when his L.P.R was unauthorizedly allowed and further that on account of unlawful order of reinstatement issued at the instance of Respondent No. 1, which order was set aside by the Federal Service Tribunal. The petitioner in the plaint has claimed the damages in the following terms:--
(i) Damages to the service career, mental
torture, death of my father, health
damage to my wife. Rs. 4,550,000/-
(ii) Illegal act of the then Administrator
Defendant No. 1 on LPR allowances are
also ceased (sic) Rs. 2,00,000/-
(iii) Lodging of 1st appeal in FST,
traveling and staying charging Court fee,
Counsel fee Rs. 50,000/-
(iv) Lodging of 2nd appeal in FST,
traveling and staying charging Court fee,
Counsel charges. Rs. 1,00,000/-
(v) Lodging of 3rd appeal in FST,
traveling and staying charging Court fee,
Counsel charges. Rs. 1,00,000/-
5. The written statement was filed by the respondents disputing the claim of the petitioner and on the basis of the pleadings, the trial Court framed following issues:--
1. Whether the plaintiff has no cause of action to file the suit? OPD
2. Whether the suit is not maintainable in its present form? OPD.
3. Whether the paint has not been verified in accordance with legal requirements? OPD
4. Whether the suit is bad due to mis-joinder of the parties.
5. Whether this Court lacks jurisdiction to try the suit? OPD.
6. Whether the suit is liable to be dismissed in view of preliminary Objection No. 6, 7 of written statement? OPD
7. Whether the plaintiff has not come in the Court with clean hands? OPD
8. Whether the plaintiff is estopped by his words and conduct to file the suit? OPD.
9. Whether the plaintiff has filed frivolous suit and vexatious and defendants are entitled for special costs? OPD.
10. Whether plaintiff suffered mental torture by the act of the defendants and he also suffered loss of reputation, loss of business, health and he is entitled for the compensation of Rs. 50,000/-?OPD
6. After the evidence, the trial Court, by its judgment dismissed the suit of the petitioner with compensatory costs of Rs. 25,000/-. The petitioner preferred R.F.A before the learned Lahore High Court, which by its impugned judgment has maintained the judgment of the trial Court.
7. It is contended by the petitioner that both the judgments of the learned Courts were erroneous as they have failed to appreciate the evidence brought on record by the petitioner. According to him, he has suffered the injury and mental agony on account of unauthorized acts of the Respondent No. 1. He has submitted that he has proved the claim of damages before the trial Court and the Courts below have wrongly dismissed his suit overlooking the evidence brought on record.
8. On the other hand, the learned counsel for the Respondents No. 1 & 3 supported the impugned judgment of the High Court.
9. We have heard the petitioner in person, the learned counsel for the respondents and have also perused the available record. The petitioner has brought on record sufficient evidence which reflects the conduct of Respondent No. 1. The orders passed by the Respondent No. 1 were reversed by the competent authorities and they were found to be passed unauthorizedly. The petitioner has brought on record a number of official documents through custodian of the record, which documents were neither objected to nor their contents were challenged by the respondents before the trial Court at evidence stage. It is, however, correct that the petitioner has failed to quantify the damages claimed by him as required under the law. This does not mean that the petitioner was not entitled to the grant of general damages under the rule of thumb on the face of the material brought on record by him during trial.
10. We have gone through the documentary evidence brought on record with the assistance of the parties and we are of the view that the petitioner was entitled to the grant of general damages for the mental agony which he has suffered on account of the conduct of the respondents. The petitioner has pleaded specific instances to establish personal vengeance against the Respondent No. 1, on account of which he claimed to have suffered losses and mental agony. We may observe that the pleadings and the evidence brought in support of the claim of damages by the petitioner were sufficient to award general damages to the petitioner against the Respondent No. 1.
11. For the aforesaid reasons, we accordingly convert this petition into appeal and partly allow the same setting aside the impugned judgment as well as the judgment of the trial Court, award damages to the petitioner to the tune of Rs. 1,00,000/- with mark up at the rate of 10% from the date of filing of the suit, till the recovery of the entire amount against the Respondent No. 1 for his unwarranted actions which resulted the petitioner to suffer mental agony and the injury as pleaded by him in the suit. This amount shall be paid by the Respondent No. 1 from his own pocket.
I agree and have also added my separate note.
Sd/-
Iftikhar Muhammad Chaudhry, C.J.
I have recorded my own reasons.
Sd/-
Khilji Arif Hussain, J.
Sd/-
Amir Hani Muslim, J.
Iftikhar Muhammad Chaudhry, CJ.--I have had the benefit of perusing the judgment rendered by my learned brother. I am in full agreement with his conclusion; however, I would like to add a few lines in this regard.
2. In the instant case the petitioner has claimed damages on the basis of loss caused to his service career; mental torture; death of his father; health damage to his wife; and expenses for the litigation, which were allegedly caused due to the mala fide acts on the part of Respondent No. 1.
3. At this stage, it is to be noted that there are two types of damages namely; `special damages' and `general damages'. The term `general damages' refers to the special character, condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly, the term `special damages' is defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or condition. It is settled that in an action for personal injuries, the general damages are governed by the rule of thumb whereas the special damages are required to be specifically pleaded and provedy. In the case of British Transport Commission v. Gourley [(1956) AC 185] it has been held that special damages have to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. The general damages are those which the law implies even if not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened. The same principle has been referred to in the case of Qazi Dost Muhammad v. Malik Dost Muhammad (1997 CLC 546), in the following terms:-
"It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. those are to be measured, following the `Rule of Thumb', according to which, discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case. ....... As far as inconvenience is concerned, this item can be considered while assessing the general damages."
In the case of Islamic Republic of Pakistan v. Sh. Nawab Din (PLJ 2002 Lah. 1998) the principles for ascertaining the quantum of general and special damages has been discussed in the following words:--
"13. .......... Principle for ascertaining the quantum of general and special damages is laid down in the leading case of Hadly v. Baxendale (1854) 9 Exch. 341 which clearly provides the distinction between the two. The provisions of Section 73 of the Contract Act, 1872 are not much different for purpose of practical application. Claim for damages was rejected as being too remote in the case of Banco de Portugal v. Waterlow and Sons Ltd. (1932) A.C. 452 and again in the case of Commell Lairds and Co. v. Managanese Bronze and Blass Co. (1993) 2 KB 141. General damages naturally arising according to the usual course of things from the breach of contract are recoverable in the ordinary circumstances. Special damages are awarded in cases, as may reasonably, be supposed to have been in contemplation of both parties at the time of contract. The law does not record consequential damages arising of delay in respect of money as one in the case of Graham v.
While relying upon the above said judgment, this Court in the case of Azizullah Sheikh v. Standard Chartered Bank Ltd. (2009 SCMR 276) has held as under:--
"6. The petitioners did not produce any evidence to show that in fact they suffered any loss due to breach of contract. Solitary statement of Petitioner No. 1 is not sufficient to decree the colossal suit amount, as P.W.2 did not state anything about the damages. Besides the reasons advanced by the learned High Court (single Bench and Division Bench) for declining the total claim of the petitioners, we may add here that the petitioners through production of evidence comprehensively failed to prove that due to breach of contract they are in fact entitled to damages and to what extent, which are sine qua non for the grant of damages under Section 73 of the Contract Act. Thus we are clear in our mind that the petitioners could not prove that they suffered any loss. They also failed to prove, through production of evidence on record, that they were entitled for decree of the total amount claimed in the suit."
In the case of Mrs. Alia Tareen v. Amanullah Khan (PLD 2005 SC 99), it has been held that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts attributed to the defendants.
4. It is an admitted fact that human life is invaluable. Any effort at assessing its loss in terms of money is an exercise nearing an impossibility. Although there can be no compensation of mental tension and agony in monetary terms, as money cannot renew a shattered human frame, but still the law has provided that on account of damages, monetary compensation can be awarded, and so the Court must do the best it can in the light of the facts of each case, on the basis of settled principles of law. In the case of C. K. Subramonia Iyar v. T. Kunhikuttan Nair (AIR 1970 SC 376), the Indian Supreme Court has observed as under:--
"There can be no exact uniform rule for Measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for Measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority."
5. It is to be noted that it cannot be specifically declared that what should be the right sum of damages in any particular case, and no two cases are alike. It cannot be suggested that by any Arithmetic computation the exact sum of money could be assessed, which would represent mental agony, pain and suffering which a person has undergone. Reference in this behalf can be made to the cases of Singlete, J. said in Waldon v. War Office [(1956) 1 WLR 51] and The Mediana (1900 AC 113). In the case of British Transport Commission (supra), Lord Goddard has also observed as under:--
"Damages which have to be paid for personal injuries are not punitive, still less are they a reward. They are simply compensation, and this is as true with regard to special damages as it is with general damages."
In a similar case titled as Cooper v. Firth Brown Ltd. [(1963) 2 All ER 31] = [(1963) 1 WLR 418], Lawson, J. made the following observations:--
"It seems to me that the object of damages is to compensate the plaintiff for what he has lost, and what he has lost is what would have been in his pay packet, when he took it home and it seems to me that when special damages are being calculated there should be deducted the amount of any National Insurance contributions the plaintiff would have had to make, if he had remained in work."
6. The principle is, therefore, well settled that damages are intended to put a person in the same position as he would have been in, had he not received the injury. We will endeavor to examine the measure of damages which the plaintiff is entitled to get in the light of the above principles. In the instant case, the plaintiff is only entitled to get as special damages all expenses actually and reasonably incurred during the medical treatment of his family members; on the litigation before the competent form, whereby, his claims were accepted and the orders of the authority were set aside; and loss of earnings which would have accrued to him due to non-payment of salary, etc., subject to the condition that the same are specifically pleaded and proved. In this view of the matter, the petitioner has claimed for Rs. 45,50,000/- on account of damages to the service career, mental torture, death of his father, health damage to his wife, as an item of general damages. Second item relates to special damages on the ground loss of professional earnings. The petitioner has claimed Rs. 2,00,000/- for the reason that his LPR allowances were ceased due to illegal act of the then administrator, Defendant No. 1. In addition to it, the petitioner has claimed special damages amounting to Rs. 50,000/-, 1,00,000/- and 1,00,000/- respectively, by way of compensation on account of three appeals filed before the Federal Services Tribunal,
7. The learned counsel for the respondent vehemently objected to the manner in which damages were claimed by the petitioner. It is to be noted here that the petitioner has claimed a round sum on each head. Apparently, it has not been based on any account; neither any breakup has been given nor any explanation has been offered in this behalf, therefore, the petitioner has failed to quantify the special damages as such he is not entitled for the same. On the other hand, there is no denial of the fact that the petitioner had to suffer mentally due to illegal acts of Respondent No. 1, which were ultimately set-aside by the competent forum. Therefore, the petitioner is entitled for general damages under the rule of thumb, detail of which has been provided in the concluding para of the opinion given by Mr. Justice Amir Hani Muslim.
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Chief Judge
CIVIL PETITION NO. 463 OF 2011
Khilji Arif Hussain, J.--I have had the privilege of going through the opinion recorded by my learned brother Mr. Amir Hani Muslim, J. and note annexed by the Hon'ble Chief Justice of Pakistan. With respect, I could not persuade myself to agree with his Lordship that the petitioner is entitled for markup from the date of filing of the suit on the general damages awarded, and I would like to give my own reasoning.
2. The conventional classification of damages was made under two broad heads, (i) General Damages; and (ii) Special Damages.
3. General damages are such, as the law will presume to be natural and probable consequences of the defendant's act. Special Damages are such as the law will not infer from the wrongful act, but they must, therefore, be specially claimed in the pleadings, and proved through evidence thereof at the trial.
4. Besides the broad classifications of General and Special Damages, damages may also be of the following kinds:
(i) Contemptuous damages;
(ii) Nominal damages;
(iii) Punitive or exemplary;
(iv) Compensatory; and
(v) Prospective damages.
5. In Black's Law Dictionary (Fifth Edition) Compensatory Damages, Nominal Damages, Presumptive Damages and Prospective Damages have been defined as under:--
Compensatory damages.--Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury. Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him."
Nominal damages.--Nominal damages are trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant's duty, or in cases where, although there has been a real injury, the plaintiffs evidence entirely fails to show its amount."
Presumptive damages.--A term occasionally used as the equivalent of "exemplary" or "punitive" damages."
Prospective damages.--Damages which are expected to follow from the act or state of facts made the basis of a plaintiffs suit; damages which have not yet accrued, at the time of the trial, but which, in the nature of things, must necessarily, or most probably, result from the acts or facts complained of."
6. It is difficult to draw line between what are general damages and special damages, but the line though it may be thin, is yet there.
7. In case of general damages, the well-established principle is that damages must be such, which would compensate the injured. As far as money is concerned, it is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone, Courts do not decline to grant compensation and the Courts have formulated certain parameters and devised principles for evaluation or assessment of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to the victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, which may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such damage. The general damages are those, which law will imply in very violation of legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards and the Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but the Court should give the aggrieved party what it considers in all the circumstances a fair and reasonable compensation for his loss.
8. The law of torts or civil wrongs in
9. The term `Tort' is the French equivalent to English word `wrong'. It means breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. The maxim that "The King Can Do No Wrong" resulting that the Crown was not answerable for the torts committed by its servant, was never applied in our country, like in case where due to negligence of a driver of a car owned by the Government, damages have been awarded under tort against the Government.
10. If a person has been mala fidely prosecuted, it is to be presumed that some damage to that party has resulted. He may or may not have suffered pecuniary loss, but loss to his reputation and mental anxiety in every case is bound to result. A plaintiff may recover damages for the distress, which normally results from being prosecuted for a time without proving that he has suffered any emotional disturbance. Damages of this kind are called general damages. While awarding damages, the wounded feeling and injured pride of a plaintiff are taken into consideration.
11. In the case of C.B. Singh v. Agra Cantonment (AIR 1974 Allahabad 147), it was held that:--
"The next question relates to the quantum of damages. The most important remedy which is available to a victim of tort is award of damages. The conventional classification of damages is made under two head--general and special. General damages are those which the law presumes to flow from the negligence complained of. These damages must be proved, but it is not necessary to allege them in detail in the statement of claim. Special damages mean some specific item of loss which the plaintiff alleges is the result of the defendant's negligence in the particular case, although it is not presumed by the law to flow from the negligence as a matter of course. Full particulars of all special damage must be given. The orthodox approach was to bring the various head of damages under one or the other of these two classes, but the practice of the Courts has demonstrated that these head often overlap and it is not always possible to maintain the distinction between them. Another classification which seems to have evolved in actions for personal injury is based on the distinction between damages which are capable of substantially exact pecuniary assessment and those which are not. In this sense, `special damages' refers to loss which is capable of substantially exact pecuniary assessment. It thus includes any loss of earnings suffered by the plaintiff which has accrued by the date of the trial. It also includes such other items as legal expenses, loss of pension rights, reduction of prospects of marriage and even the consequent inability to pursue one's hobby etc."
12. In the case of West Pakistan Industrial Development Corporation Karachi (WPIDC v. Aziz Qureshi (1973 SCMR 555), it was held that proof of actual damage is not always necessary in order that damages may be awarded. Every injury, although without loss or damage, would entitle the plaintiff to judgment.
13. In the case of Azizullah Sheikh v. Standard Charted Bank Ltd. (2009 SCMR 276), despite the plaintiff has failed to prove quantum of damages, this Court maintained the award of damages of US$175.
14. In the case of Muhammad Hanif v Muhammad Bashir (2004 YLR 173), Supreme Court (AJK) upheld the decree of damages for malicious prosecution keeping in view the status of the plaintiff.
15. I would like to discuss the issue in the matter from three different following angles:--
(i) Whether remedy of tort can be extended to departmental proceedings against a civil servant?,
(ii) Whether after passing of order by the Federal Service Tribunal, set aside the said order without cost, which order attained finality, can another suit for cost of proceedings is maintainable? and
(iii) Whether the petitioner proved mala fide in exercise of official authority by the Respondent No. 1 if so, can he claim general damages against him.
16. The petitioner in memo. of plaint filed on 17.07.2006 alleged that Respondent No. 1, the then Administrator of Pakistan Atomic Energy Commission (PAEC) due to some personal grudge/mala fide intention had forced him to proceed on LPR with effect from 02.12.2002 for which he had never applied for.
17. The petitioner filed departmental representation against the said order of retirement on 26.12.2002 and appeal before the Federal Service Tribunal on 12.11.2003, however, he was reinstated within four days after filing the appeal i.e. on 25.11.2003 by the departmental authority which establishes the fact that the respondents knowingly acted against the rules.
18. From the perusal of record, it appears that the Respondent No. 1 thereafter once again passed order of retirement of the petitioner against which departmental representation filed by the latter was turned down where-after the petitioner approached the Service Tribunal, which set aside the order passed by the authority without awarding any cost. The petitioner thereafter filed the suit claming damages under Torts as well as for the cost he claimed to be incurred on defending the proceedings.
19. The learned trial Court dismissed the suit, which order was maintained by the High Court.
20. Where the claimant has been subjected to a criminal prosecution as a consequence of which he loses or risks of losing his liberty and/or his reputation, a remedy in the tort of malicious prosecution will lie. The institution of a civil action should exceptionally results in liability under tort, when the claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action. However, for malicious proceedings in bankruptcy and winding up, which may wreck the claimant's business, destroy confidence in his competence and integrity and in his company's goodwill, a remedy in the Tort will lie.
21. It is well-known that a person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal and the prosecution was malicious in the sense that it was without any reasonable cause. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause; and (4) that it was malicious.
22. The question whether a person can also claim damages for maliciously prosecuted in disciplinary proceedings has quite recently been examined by the House of Lords in the case of Gregory v. Portsmouth Council (2001) 1 All ER 560 and after extensive survey of the proceedings and textbooks Lord Steyn noted:--
"In
"Where no action for malicious prosecution would lie, it would be strange indeed if any acquitted defendant could recover damages for negligent investigation. " (1989) 1 All ER 1025, at 1030, (1989) AC 1228, 1228, at 1238. In other wofds,
Lord Steyn thus concluded:
"I would hold that tort of malicious prosecution does not extend to disciplinary proceedings."
23. In Cavalevy v. Chief Constable (1989)1 ALL ER 1025, certain police officers, on complaints, had been the subject of disciplinary proceedings. The complaints had been either dismissed, quashed on appeal or discontinued. The police officer brought action claiming damages for loss of overtime pay and general damages for anxiety, vexation and injury to reputation. The trial Judge struck out the claim holding that no action lay for damages against the police for the way in which they conducted the disciplinary inquiry. The officers appealed. The Court of appeal dismissed their appeals. The officers further appealed to the House of Lords. Their appeals were also dismissed for the reason that police officers whose conduct had been subject of a disciplinary proceedings who alleged that the proceedings had been mis-conducted had no cause of action. Lord Bridge who spoke for the unanimous House examined the police officers' right for damages from the point of view whether the police was in breach of statutory duty in conducting the proceedings or was guilty of negligence or misfeasance in public office, and from all angles the House concluded that disciplinary proceedings do not provide cause of action for damages even if disciplinary proceedings ended in the acquittal of the person proceeded against.
24. The above analysis show that where an employee who was wrongfully dismissed from service to his position he is entitled to that salary for the period he remained out of job from his employer, but he is not entitled to sue in tort to claim damages on account of the injury to his reputation due to wrongful dismissal or for tort of malicious prosecution of disciplinary proceedings.
25. In the case of Muhammad Amin v. Jogendra Kumar (AIR 1947 PC 108), it was held that:--
"the word `prosecution' in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a petition to windup a company: (1883) 11 Q.B.D 674. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is as explained by Brown LJ in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety or for extra costs incurred beyond those imposed on the unsuccessful party."
26. I am in agreement with the reasoning recorded in the cases of Gregory and Mohd. Amin (supra) that remedy of tort normally cannot be extended to departmental disciplinary proceedings.
WHETHER THE PETITIONER CAN CLAIM COST OF THE PROCEEDINGS BEFORE THE SERVICE TRIBUNAL BY FILING SUIT.
27. In the appeals filed by the petitioner, the Service Tribunal, while granting him relief, did not award cost and this order was not called in question by the petitioner by filing an appeal and as such attained finality.
28. The Service Tribunal under Section 5 of the Service Tribunals Act, 1973, exercises the jurisdiction of a
29. In the case of Imran Raza Zaidi v. Government of Punjab (1996 PLC (SC) 691), this Court held that the Tribunal is deemed to be a Civil Court having all the powers which are vested in the Civil Court under Order XXXIX, Rules 1 and 2 of C.P.C. and of the Appellate Court under Order XLI, Rule 5 of C.P.C. and that the Tribunal can award cost while deciding the appeal before it, in exercise of powers under Section 35-A of the Civil Procedure Code, 1908.
30. In the case of Muhammad Shafi v. Hamidan Bibi (1990 MLD 597), Lahore High Court,
"4. After hearing the learned counsel for the parties and having considered the various provisions of law, the conclusion is inescapable that no separate suit can be filed for recovery of costs incurred or damages suffered on account of institution or defence of a previous civil suit. Under Section 35 of the CPC the. Court while deciding a suit is empowered to grant cost to the affected party. Similarly Section 35-A of the CPC provides Panacea for the loss suffered by a person in case the action brought against him is found to be frivolous, vexatious and mala fide. In these circumstances, it cannot be contended with any success that a separate suit can be filed notwithstanding that while deciding the earlier suit, the Court had declined to grant any cost or had granted costs which are considered to be inadequate. "
In this view of the matter, the petitioner is not entitled for the relief to the extent of cost of proceedings claimed by him.
Whether the Respondent No. 1 acted mala fidely while exercising his official authority, and if so, whether he can claim indemnity under Section 23-A of the Civil Servants Act, 1973.
31. From perusal of the record, it appears that the petitioner applied for the grant of 365 days LPR with effect from 26.07.2002, conditionally vide his application dated 13.05.2002. Before his application for grant of LPR was accepted, he moved another application dated 22.05.2002, wherein he requested that LPR already applied for may be treated as withdrawn and he may be granted 115 days LFP with effect from 23.05.2002 to 14.09.2002 for construction of the house. His request was duly recommended by Acting. Manger (S&F), but he was granted 61 days LFP with effect from 01.06.2002 to 31.07.2002 and his case for grant of LPR was closed. However, after a lapse of more than two months he was granted 365 days LPR with effect from 02.12.2002 by the Respondent No. 1 at his own accord for which the petitioner never applied for.
32. It also appears that the departmental authorities did not dispute that the case of withdrawal of petitioner's LPR was not properly processed, in accordance with the relevant provision of law, and the order was passed in violation of the relevant rules and due to mala fide intention on the part of Respondent No. 1. In these circumstances, the appellate authority decided to withdraw the notification of LPR dated 02.12.2002, passed by Respondent No. 1 and allowed the petitioner to re-join the service.
33. We are quite conscious of the fact that Section 23-A of the Civil Servants Act, 1973 provides indemnity that no suit, prosecution or other legal proceedings shall lie against a civil servant for anything done in his official capacity, but the said indemnity is subject to that the act has been done in good faith or intended to be done under this Act or the rules. It is evident from the record that the order passed by Respondent No. 1 against the petitioner was not an act of bona fide on his part, in discharging of his duty, but an act of mala fide and too being vindictive against the petitioner. The protection provided under Section 23-A of the Act to an officer is only for the acts done "bona fidely" but not for an act, which is not bona fide, and malicious acts are not protected under the said provision of law. Any order passed mala fidely in colourable exercise of power cannot be termed as an act done in exercise of power conferred by Act or Rules, but in fact it is an act of abuses of power to which no protection can be extended. A mala fide act is by its nature an act without jurisdiction. In the case of Abdul Rauf v. Abdul Hamid Khan (PLD 1965 Supreme Court 671), it was held that a mala fide act is by its nature an act without jurisdiction. No Legislation when it grants power to take action or pass an order contemplates a mala fide exercise of power. Malice in law is said to mean the intentional doing of a wrongful act without just cause or excuse, due to ill-will against a person.
34. In the case of Lucknow Development Authority v. M. K. Gupta (AIR 1994 Supreme Court 787), it was held that public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was nevermore necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.
35. This Court, in the case of Yaqoob Shah v. XEN, PESCO (Wapda) (PLD 2002 Supreme Court 667), held as under:--
"Therefore, keeping in view this aspect of the case, we have held that Umar Farooq Bangash, XEN (PESCO) and Gohar Ali SDO (PESCO) Rehman Baba, Peshawar, are responsible for making payment of back benefits concerning the payment of past salaries of the petitioner from the date of his termination till the date of reinstatement at the ratio of 60% + 40% respectively within 30 days, after receipt hereof. If said amount is not paid by both the officers i.e. Umar Farooq Bangash, XEN and Gohar Ali, SDO, voluntarily, then compulsory deduction should be made from their pensionary benefits and balance, if need be, shall be recovered from their current salaries, accordingly. Such order against them is being passed by way of imposing costs upon them in the interest of Justice in terms of Order XXV, Rule 10 of the Supreme Court Rules, 1980. In addition to it, Wapda will also proceed against them separately for not discharging their duties according to rules."
36. I have carefully scanned the. documents on record and came to the conclusion that various orders passed by Respondent No. 1 against the petitioner are result of personal vendetta and without any basis, just to humiliate and torture him, and as such the petitioner is entitled to the general damages.
CAN THE COURT GRANT MARK-UP/INTEREST FROM THE DATE OF FILING OF SUIT WHILE GRANTING GENERAL DAMAGES.
37. Facts of the case in some detail have been given in the reasons recorded by my learned brother Amir Hani Muslim, J which can be summarized as:
(i) that the petitioner was an employees of
(ii) that the petitioner applied for retirement after completion of 25 years service on 13.05.2002;
(iii) that the petitioner was forced to proceed on LPR;
(iv) that petitioner's departmental representation against the order of retirement was accepted;
(v) that order of force LPR was set aside by Federal Service Tribunal, when questioned by the petitioner by filing an appeal;
(vi) that the petitioner had filed two further appeals before Federal Service Tribunal against different orders of the department passed by Respondent No. 1 which too were set aside by the Tribunal;
(vii) that the petitioner filed suit in 2004 claiming damages, detail whereof has been given in para 4 of the reasoning recorded by my learned brother Amir Hani Muslim, J.;
(viii) that the suit after recording evidence, was dismissed with special cost of Rs. 25000/- vide judgment dated 26.2.2010; and
(ix) that the appeal filed by the petitioner was dismissed on 09.2.2011.
38. In the case of Messrs A.Z., Company v. Messrs S. Maula Bakhsh Muhammad Bashir (PLD 1965 SC 505), a three Members' Bench of this Court held that;--
"A great numbers of decision under the interest Act are not easily reconcilable, but so far as the grant of interest by way of damages is concerned there is no much difference in judicial opinion. Hence generally in the absence of an express or implied contract to pay the interest, or usage of trade, interest cannot be allowed on damages for breach of contract.
It was further held that the right of the seller under the agreement (with an arbitration clause requiring application of rules of Karachi Cotton Association Ltd.), is to have compensation assessed by the Arbitrators and until the amount had been so determined there is no sum certain payable to the seller upon which interest can run. Therefore, mere fact of issue of a debit note by the seller in respect of the claim would not bring the case under the Interest Act.
In a note authored by Hon'ble Kaikaus, J, it was held that under Section 1 of the Interest Act in case where interest was not already payable by law, permit interest where the sum claimed is already ascertained. It only allows interest, apart from contract, in cases where the sum ascertained is due and a notice has been given that interest will be charged.
39. In the case of
"I have considered with some care whether the allowance of interest by the High Court is supportable. Where a person has expended money for the benefit of another, and is obliged to sue the latter to recover his money, it is appropriate that the debtor should be required to compensate the creditor for being deprived of the use of his money during the period covered by the litigation and the subsequent period preceding full recovery. Interest cannot in my view be allowed on this basis unless the debtor has derived actual benefit from the outlay. But where the liability is wholly vicarious, having to be borne exclusively in a representative capacity, to place such a burden of interest' upon the debtor would in my opinion neither be just nor equitable. Once the liability is finally determined by the Courts, there would be a duty upon the debtor to meet it, and therefore to impose interest, as from the date of the final determination, until payment in full would be both just and equitable."
40. In the case of Messrs Ralli Brothers Ltd. v. Firm Messrs, Bhagwan Das Parmeshri Dass (AIR 1945 Lahore 35), it was held that:
"The only other question for determination is whether the plaintiffs should be awarded any interest on the amount of damages sustained by them. Mr. Mahajan very frankly admitted that ordinarily no interest is allowed on the amount of damages arising out of breach of contract."
41. In the case of Taggo Bai v. Hari Har Prasad (AIR 1947 Privy Council 173), it was held that:--
"Their Lordships feel no doubt that the defendants refused to carry out the sale agreement, and counsel for the appellant naturally felt unable to contend that, if this were the true view of the matter, the claim for return of the Rs. 26,000 paid to the appellant could be resisted. He did, however, attach that portion of the decree of the High Court which awarded interest from 16.12.1928 onwards contending that no interest should be awarded, or alternatively, that no interest should be awarded prior to 20.2.1937 when the respondent abandoned his claim for specific performance of the sale agreement. Their Lordships agreed with the alternative contention. They are prepared to assume in favour of the respondent, without deciding the point, that interest could be awarded for an earlier period, but they are clearly of the opinion that the discretionary power to award such interest, if it exists, should not be exercised in the circumstances of the present case. During the whole of the period prior to 20.2.1937, the respondent was claiming specific performance of the sale agreement against both defendants to the action-- a form of relief which, in their Lordships' view, he could never have obtained. The respondent had never, during that period, made any demand and for repayment of the Rs. 26,000 save the demand in the plaint, which was conditional upon the Court expressing the opinion that a decree for specific performance of the contract could not be passed. At any time prior to 20.2.1937, the appellant could have resisted any claim for repayment of this sum, on the ground that the respondent was still seeking specific performance and that, it he obtained that relief, the appellant would be entitled to retain this part of the purchase price. As from 20.2.1937, having regard to the abandonment of the claim for specific performance, the respondent was rightfully claiming the return of the Rs. 26,000 and the appellant was wrongfully withholding that sum from him. In these circumstances, their Lordships think that an award of interest at 4 per cent, as from that date, but from no earlier date, does justice between the parties."
42. In the instant case, the petitioner claimed for general damages aggrieved on account of mental torture, damage to service career and legal expenses incurred by him and for the first time, this Court determined the amount of damages for which the petitioner is entitled. In the absence of any statutory provision custom and usage, the respondent cannot be burdened with the interest/mark-up from the date of filing of the suit.
43. In the case of A. Ismailjee and Sons Ltd. v,
"These are indeed weighty submissions but they ignore the fact that on the date of suit the claim of the plaintiffs was for an unascertained sum, as damages for breach of contract, which had to be determined by the Court. There would, therefore, be no justification to burden the Government with the payment of interest when they did not know what their liability in terms of money as the principal amount towards damages was. Whether the plea taken by the Government was vexatious was a matter for the trial Court to comment upon and there is no such observation by that Court. However, once the Court determined a sum certain and passed a decree, obviously the plaintiffs being deprived of the amount due and payable to them on that date, required to be compensated by award of interest. Although the High Court did not expressly assign this reason for refusing the pendent little interest, we feel that the discretion exercised by it is reasonable and consistent with equitable principles. No interference with the decision of the High Court that interest be allowed from the date of the decree passed by the trial Court is therefore warranted."
44. In the instant case, it appears that for the reasons best known to the respondents various orders passed against the petitioner apparently due to some vengeance were set aside by the Courts of competent jurisdiction and definitely the petitioner must have spent expenses and time to get the said orders set aside, but for what amount, if any, the respondents were liable to pay, becomes ascertainable on the date when the Court determines the said amount.
45. Having considered the matters from all angles and that of other, I agree with the reasoning recorded by the Hon'ble Chief Justice of Pakistan and my learned brother Amir Hani Muslim, J that in the giving circumstances, the petitioner is entitled for general damages of Rs. 100,000/- (Rupee One Lac Only). However, I with great respect disagree that the petitioner is entitled for the mark-up from the date of filing of the suit, but is entitled for mark-up at the rate of 10% per annum from the date of decree of the suit till the recovery against the Respondent No. 1, which is reasonable amount looking to the issue in the matter.
Sd/-
Judge
Order of the Bench:
The petitioner is entitled for damages to the tune of Rs. 1,00,000/- with mark-up at the rate of 10% till the date of recovery of the amount. Petition is converted into appeal and allowed.
(R.A.) Appeal allowed.
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