PLJ 2023 Peshawar 59
[Abbottabad Bench]
Present: Fazal Subhan, J.
ABDUL RAHIM etc.--Appellants
versus
Mst. SITARA SHAHEEN--Respondents
R.F.A. No. 63-A/2021, decided on 24.11.2022.
Defamation Ordinance, 2002 (LVI of 2002)--
----S. 3, Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987, R. 31--Suit for recovery--Decreed--Challenge to--Complaints against respondent regarding unauthorized use of funds--Inquiry report--Mandatory rule--No prior approval was obtaining from parent department for filing of suit for defamation--Act of defamation was done to government servant was done when he/she was holding a government office and he/she was defamed in an official capacity and in that situation, act of defamation and recourse to Court of law, may be in knowledge of government--Respondent was unable to produce any approval of parent department of respondent allowing her to file suit for defamation against appellants--All proceedings carried out before Court of law were unauthorized--Appeal allowed. [Pp. 63 & 64] B, C & D
Khyber Pakhtunkhwa Government Servants (Condcut) Rules, 1987--
----R. 31--Obligation of Government Servant--A government servant to obtain prior sanction of government before filing any legal proceedings in such capacity especially, in cases pertaining to defamation. [P. 63] A
Mr. Tahir Faraz Abbasi Advocate for Appellants.
Mr. Muhammad Arshad Khan Tanoli, Advocate for Respondents.
Date of hearing: 24.11.2022.
Judgment
Through this regular first appeal the petitioners have made the following prayer.
“On acceptance of appeal the impugned judgement and decree of Additional District & Sessions Judge-VIII, Abbottabad may graciously be set aside and suit of the plaintiff/respondent be dismissed with cost throughout.
2. Relevant facts of the case are that respondent/plaintiff instituted a suit for recovery of Rs. 01 Crore from each of the petitioner/defendant, total 11 Crore, under the Defamation Ordinance, 2002. It was contended in the suit that she is serving as Head Mistress in the Education Department District, Abbottabad and was posted in Government Girls Primary School, Nangal (GGPS) and has been recently transferred to another station. That she belong to a reputed and respectable family of the area and during her posting as Head Mistress in GGPS Nangal, the petitioners/defendants used to create problems for her and have also moved several complaints against her to tarnish her image. That on 16.12.2015, the petitioners/defendants No. 1 to 8 furnished affidavits on stamp papers to petitioner/defendant No. 9 to 11, levelling baseless, fake and fabricated charges of corruption and showed these affidavits to all the people in the vicinity and in this way the honour and reputation of her family as well as herself was severely damaged and she was disgraced in the eyes of general public of the area. Besides the above facts, they also moved applications/complaints to her department to malign her. That the petitioner levelled baseless allegations of corruption against her in respect of construction carried out in the GGPS Nangal, whereas, she had no hand in the construction process and the entire construction work was carried out under the supervision of chairperson and a Parent Teacher Council (PTC) while her duty was only to maintain record. That because of the false and fabricated charges she was given severe mental torture and in this way the petitioners/defendants lowered her reputation in the estimation of people. That despite all these complaints and inquiries none of the complaint was proved against her. That the petitioners/defendants were served with legal notices but they refused to receive the same, therefore, she approached the Court of learned District & Sessions Judge, Abbottabad seeking decree for damages.
3. After filing the suit the petitioners/ defendants were put on notice and on attendance, they filed written statement and from the pleading of the parties learned trial Court framed issues already available on original file.
4. In support of her claim, the petitioner examined Hafeez ur Rehman Qureshi, Record Keeper, DEO (Female), Abbottabad, who brought all the relevant record of complaints and inquiries conducted in the matter, whereas, one Muhammad Naveed, H/C Reader, DSP Circle, Havelian produced the relevant record Ex PW-2/1 (23 pages) in respect of inquiry conducted on the application of Muhammad Azhar petitioner/defendant No. 11. She also produced Muhammad Ramzan, Reader to AC- III, Abbottabad, Hajira Bibi d/o Habib ur Rehman, Hafeez ur Rehman Qureshi, Office Assistant, SDEO Female, Abbottabad whereas the respondent/plaintiff appeared and recorded her statement in support of her cause. From the opposite side, one Amir Khaqan Abbasi, Muhammad Younas, Aziz ur Rehman, while Hafeez ur Rehman Abbasi, petitioner/defendant No. 5 appeared as attorney for rest of the petitioners/defendants. They also recorded statement of Muhammad Riasat s/o Muhammad Shafi and then closed their evidence. The learned trial Court while accepting the suit of the respondent/plaintiff passed a decree to the following effect.
As sequel to above issue wise findings the plaintiff succeeded to prove factum of defamation against the defendants, therefore, decree for recovery of general damages Rs. 10,00,000/- (Rupees Ten Lac) per defendants is hereby granted in favour of plaintiff, which would be sufficient amount to compensate and heal the injuries sustained by the plaintiff, due to wrong and baseless defamation of the defendants. Cost of the suit is to be paid to the plaintiff by the defendants equally.
5. Aggrieved from the said judgement of the learned trial Court/ADJ-VIII, Abbottabad the petitioner/defendants have approached this Court with instant appeal.
6. Arguments of learned counsel for petitioners and learned counsel for respondent heard and record perused.
7. The respondent/plaintiff examined Hafiz ur Rehman Qureshi District Education Office, (female) Abbottabad (Record Keeper), who produced application filed by appellants/defendants Mehmood Khan etc, against the respondent/plaintiff, copy whereof is placed on file as Ex PW-2/1 (two pages), bearing the remarks of ADEO. He also produced inquiry report No. 461-64 dated 26.03.2012 and record of Inquiry No. 1320 dated 30.04.2016, copy of which are placed on file as Ex PW-1/3 and Ex PW-1/4 respectively. He further produced record of the appeal Ex PW-1/5 and application of Rafique Ahmed etc lodged against the respondent/plaintiff, Ex PW-1/6. The respondent/ plaintiff also examined Muhammad Naveed H/C Reader DSP Circle, Havelian, who produced record in respect of application filed by Muhammad Azhar member Tehsil Council, Havelian, Lora, whereupon, inquiry was conducted and was subsequently filed being unfounded. The relevant record was produced as Ex PW-2/1 consisting of 23 pages. Statement of Muhammad Ramzan Reader to AC-III, Abbottabad was also recorded who stated that record in respect of Inquiry No. 32 dated 11.07.2016 is missing from their record. Mst. Hajira Bibi d/o Habib ur Rehman PST GPS, Langal Lora appeared as PW-4 who produced original report of water supply scheme of school (GPS Nangal) Ex PW-4/1 (31 pages) and record of construction work of school carried out on the recommendation of Parents Teachers Council (PTC) consisting of 109 pages in binding shape, Ex PW-4/2. She also produced register security funds of both these schemes Ex PW-4/3 and Ex PW-4/4, membership of proceedings of parents teachers meeting Ex PW-4/1. Photographs 72 in number of premises Ex PW-4/6. Original of above record was produced for inspection of the Court and returned. Hafiz ur Rehman Qureshi office assistant SDEO (F), Abbottabad appeared as PW-5 but according to him the record in respect of theft of CGI sheets and illegal water connections regarding GGPS Nangal is not available. The respondent/plaintiff herself appeared in the Court in support of her case and recorded her lengthy statement, duly cross examined by appellants/defendants’ counsel.
8. The record Ex PW-1/1 is an application addressed by Habib ur Rehman son of Muhammad Zaman Khan (petitioner/defendant No. 4) wherein, he complained about the unauthorized use of funds of old building of the school, however, in the same application he admitted to have taken certain articles from old school and as a result, the respondent/plaintiff lodged a FIR against him in respect of theft. Ex PW-1/2 is again an application from appellant/defendant No. 2 Aqib Habib against the illegal construction of PTC and use of funds on the old building in a dubious manner. On the said application inquiries were conducted and as per inquiry report conducted by Zafar Arbab DEO (M) Haripur Ex PW-1/4, he reported that the “element of mis-use of PTC amount was not found”. Ex PW-1/6 is also a complaint to EDO (F), Abbottabad for urgent transfer of respondent/plaintiff from GGPS Nangal. The respondent/plaintiff though lodged a complaint to the SHO Police Station, Lora, whereupon, inquiry was conducted but the same was not found to be based on facts and was filed. Similarly, several applications were addressed to TSP Circle Havelian, Executive District Officer, Elementary and affidavits of appellants/defendants, which shows that the appellants/defendants were nurturing grudge and malice against the respondent/plaintiff, however, despite inquiries it did not came to surface that she ever remained involved in corruption and corrupt practices, hence, acts of appellants/defendants by moving applications to different quarters were motivated and the result of personal vendetta and there is sufficient material on record that due to these uncalled for complaints/applications she was locked in departmental proceedings/inquiries without any justifiable reasons.
9. Having said that, and arriving to the above conclusion from the available record, this Court cannot lose sight of the legal defect in the suit. It is an undeniable fact that the respondent/plaintiff is a government servant and was performing her duties as Headmistress GGPS Nangal Tehsil Lora, District, Abbottabad during those days and her service was governed by Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987. Rule 31 of the said rules obligates a government servant to obtain prior sanction of the government before filing any legal proceedings in such capacity especially, in the cases pertaining to defamation. Rule 31 of the ibid rules is re-produced for the sake of convenience:
“Vindication by Government servants of their public acts or character.--(1) A Government servant shall not without the previous sanction of Government have recourse to any Court or to the press for the vindication of his public acts or character from defamatory attacks, when Government grants sanction to a Government servant to have recourse to a Court, Government will ordinarily bear the cost of the proceedings, but may leave the Government servant to institute them at his own expense. In the latter case, if he obtains a decision in his favour, Government may reimburse him to the extent of the whole or any part of the cost.
(2). Nothing in this rule limits or otherwise, affects the right of Government servant to vindicate his private acts or character.
10. The said rule is mandatory to be followed to authenticate any act of the government servant with specific approval of the government. Such prior sanction/approval of the government was mandatory due to the word “Shall”, used before the word “previous sanction” and non-observance of this condition of prior sanction have penal consequences for the reason that any recourse to a Court of law for vindication of government servant without prior permission would be considered un- authorized litigation. The underlying principle for getting such sanction is that the act/action of defamation was done to the government servant was done when he/she was holding a government office and he/she was defamed in an official capacity and in that situation, the act/action of defamation and the recourse to the Court of law, may be in the knowledge of the government. In this respect guidance may be derived from the case of Wazir Ahmad Khan and 2 others Vs. Reayat Khan Khattak and 7 others reported in PLD 2019 Peshawar 135, where in paras No. 9 and 10, it was held that:
9. Even otherwise, Rule 31 of the Khyber Pakhtunkhwa, Conduct Rules, 1987, applicable to the parties before the Court, as Respondent No. 1/decree holder was a Civil Servant/Government Servant and being civil servant allegations were levelled against him directly connecting to his post/position, which according to him disgrace him in the
society etc. A Government Servant/Civil Servant cannot under any circumstances, has recourse to any Court for the vindication of his public acts and character etc, except with prior permission of the Government, while in the instant suit, admittedly no permission has been sought by Respondent No. 1/plaintiff.
10. In view of the above, this and the connected appeals are allowed, impugned judgment and decree of the trial Court/
ADI-X Peshawar dated 20.6.2005 is set aside and the suit of the Respondent No. 1/plaintiff stand dismissed with no order as to cost.
11. When the learned counsel for respondent/plaintiff was confronted with this situation, he was unable to produce any approval/ sanction of the government/parent department of the respondent/ plaintiff allowing her to file suit for defamation against appellants/ defendants and therefore, as she failed to produce any such order, thus, all the proceedings carried out before Court of law were unauthorized and against the express provision of Rule 31 of the Khyber Pakhtunkhwa Government Servant (Conduct) Rules, 1987 and therefore, the judgment and decree passed by learned Additional District Judge-VIII, Abbottabad dated 25.03.2021 is not sustainable in the eyes of law.
12. In view of the above, this appeal is accepted and the impugned judgment and decree dated 25.03.2021 is set-aside and suit of respondent/plaintiff stands dismissed.
(Y.A.) Appeal allowed
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