NISAR HUSSAIN KHAN, J.- Instant revision petition is directed against order of learned Civil Judge-XI, Peshawar, dated 20.5.2015 whereby petitioner's application under Order-VII, Rule-11 CPC was turned down.
2. Learned AAG on behalf of the petitioner contended that Section 23-A of Civil Servants Act, 1973 gives full protection against an official responsibility discharged by the petitioner and that the suit of the respondent/plaintiff in view of Article 23 of the Limitation Act was time barred.
3. Respondent, appearing in person, while controverting the stance of the petitioner, argued that petitioner being his reporting officer recorded adverse remarks in his PER which were expunged by the competent authority on his representation. He maintained that protection under section 23-A of the Civil Servants Act, 1973 is provided only on action done in good faith while in the instant case, petitioner has tried to ruin the career of the respondent, hence no such protection is available to the petitioner, because procedure of prior counselling has not been followed.
4. We have heard learned AAG and the respondent in person and have gone through the record with their valuable assistance.
5. It appears that petitioner being the reporting officer of the respondent remarked in his pen picture that: "he exhibits strange behaviour towards official business. It lead me to conclude that he has some psychological problem, which he vividly displays in official work. Extremely negative and always shirks responsibility. Does not have the capacity to work in a team". In view of such findings, it was recommended that he should never be posted on responsible post, especially independent posting. However, he remarked that he is fit for research work. On over all grading, he placed him as below average and not yet fit for promotion and additional assignment. Respondent on communication of such report, filed a representation which was accepted by the Chief Minister, the competent authority, and the remarks were expunged for some technical and procedural deficiency.
6. As per Rules/Instructions, petitioner/defendant was the Reporting Officer of plaintiff/respondent being the Secretary of the concerned Department and Chief Secretary was the Countersigning Officer who also agreed with the Reporting Officer on all counts. He, while commenting on the report of the Reporting Officer, graded the comments as fair. He did not term them as exaggerated or biased, which he could. It is provided in Para 0.5(v) of the Instructions on Performance Evaluation Report, as compiled by the Establishment and Administration Department, Government of KPK, Civil Secretariat, Peshawar, that the Countersigning Officer should make un-biased evaluation on the quality of performance evaluation made by the Reporting Officer by categorizing the reports as exaggerated, fair or biased which would evoke a greater sense of responsibility from the Reporting Officers. The concurrence of Countersigning Officer with the Reporting Officer has further cemented the evaluation and grading made by the Reporting Officer. In Para 3.6(c) of the ibid Instructions, it is stipulated that non-observance of government instructions would amount to misconduct on the part of Reporting Officer attracting disciplinary action. In view of such safeguard provided in the Instructions, no one would dare make biased or exaggerated remarks which has provided an in- built mechanism for check and balance against malafide and biased remarks on the part of Reporting Officer. At the same time, it is contemplated in Para 4.1(iv)(b) of the Instructions that the Officers making representation against adverse remarks recorded in their Evaluation Reports should not make any personal remarks or remarks against integrity of the Reporting Officer. The violation of this rule will be considered misconduct and would also render representation to be summarily rejected. This is a safety valve provided in defence of the Reporting Officer. Similar safeguard has been supplied in Para 6.2 (i) of the Instructions, by virtue of which disciplinary action may be taken against Officer levelling allegations of indiscrete and irresponsible nature against the Reporting Officer/Countersigning Officer. The Instructions compiled for Performance of Evaluation Reports supplied safeguards against baseless and biased reports of the Reporting Officer as well as frivolous allegations of the Officer, against Reporting and Countersigning Officers, which both would render them liable to disciplinary action if the reports or allegations in representation are in violation of the ibid Instructions. Perusal of the plaint reflects that the Officer under report has levelled allegations of malice and malafide, against the Reporting Officer, on the basis of report which was affirmed by the Countersigning Officer, by agreeing with it and termed it as a fair report. It is pertinent to mention that the Countersigning Officer who agreed with the Reporting Officer has not been sued by the plaintiff which itself speaks volumes about malafide of the plaintiff to harass the Reporting Officer, so that he may not dare make any such report in future even if the Officer under report is incompetent and irresponsible in discharge of his official duties.
7. Plaintiff/respondent has resorted to civil Suit for recovery of damages for alleged civil wrong which in general terms is claimed under "law of Torts". Civil wrong arises when a person breaches a legal duty owed to another. The legal duties are of two kinds; one contractual duty and the other non-contractual duty. Breach of contractual duty is not a Tort while breach of non-contractual duty emanating from the legal obligation gives rise to a Tort. The breach of contractual duty may be redressed by its enforcement through Specific Performance. While in the latter case, it accrues a right of damages for the civil wrong caused. Allegations against petitioner/defendant are of misuse or abuse of his authority. The authority vested in the petitioner/defendant has certain privileges and obligations to act but within the limits allowed by the policy of the law which creates the privilege. If defendant used a particular machinery of law, for the purpose for which it was intended, he is ordinarily not liable, notwithstanding a vicious or vindictive motive provided he does not attempt to attain the same collateral objective, outside the process of the operation employed.
On the principle of Ubi Jus Ibi Remedium: that where there is a right, there is a remedy, a person has a right of fair treatment and free enjoyment of peaceful society. He undoubtedly is vested with right of remedy as well. However, courts are conscious about elementary question for consideration, that: whether a party is bringing an unfounded action, not with a view to vindicate justice but for the purpose of harassing the opponents? The prevention of vexatious litigation is also an essential and prime object. The people must resort to courts for vindicating justice and not harassing the others which in turn gives rise to right of action against the plaintiff of frivolous and vexatious litigation. Tendency of abuse of the process of court and harassing the innocents is in increase which is incongruous to the concept and scheme of law of Torts, as such is required to be curbed at every level to ward off and thwart the flood of unwarranted litigation.
8. In James Rhodes versus OPO (By His Litigation Friend BHM) and another, honourable Supreme Court of UK(2015 UKSC-32) (2015 SCM R 1097), has exhaustively dealt with the law of Tort. To resolve the issue, an excerpt of Mayor of Bradford Versus Pickles [1895] AC 587 was referred, which is also relevant for the case in hand and reproduced as below:- "This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however, ill the motive might be, he had a right to do it. If it was an unlawful act, however, good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant."
In the report, history of tort has been traced, since the judgment in Wilkinson Versus Downton [1897] 2 QB 57 decided on 8th May, 1897. The case law encompasses a civil wrong causing mental distress, psychological impact or injury by an intentional, malicious or negligent act. The claimant for damages is also required to establish that act was not only malicious and intentional but was also without any justification. To supplement the proposition, opening part of Para 74 is relevant which runs as follows:- "The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant .
9. The question of imputing the existence of an intention resulting in mental distress has also been addressed in Para 81 of the judgment (supra), which is as follows:- "There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle. It was abolished in the criminal law nearly 50 years ago and its continued survival in the tort of wilful infringement of the right to personal safety is unjustifiable. It required the intervention of Parliament to expunge it from the criminal law, but that was only because of the retrograde decision in DPP v Smith. The doctrine was created by the Courts and it is high time now for this court to declare its demise."
10. The august Supreme Court of UK allowed the appeal by concluding that tort is contained by the combination of: Firstly, the conduct element requiring words or conduct directed at the claimant for which there is no justification or excuse; Secondly: the essential element requiring an intention to cause at least severe mental or emotional distress and thirdly: the consequence element requiring physical harm or recognised psychiatric illness. The appeal was allowed by the Supreme Court and injunctive order issued against publishing of a Book containing autobiography with vivid graphic language, was vacated.
The ratio of judgment squarely encompasses the issue in hand, on two counts: First, the claimant of damages is to establish that defendant acted in a calculated manner, with malice and bad intent to cause physical, mental or psychological injury, without legal justification or excuse. The defendant herein had written PER of the plaintiff, to which he was legally obliged. His such legal duty stands unrebutted and undisputed. The imputed element of intent or malice, to cause any injury, also evaporates, with the approval of adverse report by countersigning officer. In view of this factual and legal frame of facts, the plaintiff is denuded of any actionable claim.
11. Secondly, in the referred case an injunctive order was passed by Court of Appeal against publication of a Book, which according to claimant would cause psychological injury and emotional disorder, to plaintiff, the minor son of defendant because of vivid graphic statement by defendant relating to his private life. The Supreme Court by accepting appeal, restored the order of Trial Judge, allowing publication of the Book. In such state of affairs, after the permission of the Supreme Court, the Book shall be published and trial of the case would stand redundant, being an exercise in futility. Being conscious of this legal and factual consequence, the Supreme Court, nevertheless, allowed appeal, on tentative assessment of facts, at intermediary stage, at the touchstone of recognised principle of law, declared by the Courts. It didn't deem it appropriate to wait for trial. Thus, in the instant case too, it would be a futile exercise, to put the parties to trial, on issues of facts when the defendant was legally duty bound to express his opinion, being Reporting Officer of his junior, which he did. Thus, he had the legal justification to express his opinion in the PER. The countersigning officer approved his report. The approval of countersigning officer, eliminates, the imputed malice. In such backdrop, this case has no triable issue, so need not be allowed to proceed with.
12. Besides that record reveals that expunction order was passed by competent authority on 24.2.2014, on the basis of which respondent filed a suit for damages on 26.2.2015 in the court of Senior Civil Judge, Peshawar wherein petitioner's application under Order-VII, Rule-11 CPC was not acceded to. Though plaintiff/ respondent has levelled allegation of malafide against petitioner in recording his adverse remarks in his PER but there is nothing on record in black and white, revealing any prior animosity or malice of the defendant, against the plaintiff, except entry of the adverse remarks in the PER. Section 23-A of the KPK Civil Servants Act, 1973 supplies immunity against any suit, prosecution or other legal proceedings, to a civil servant for anything done in his official capacity, which in good faith is done or intended to be done under this Act or the Rules, instructions or directions made or issued thereunder. The section was inserted vide KPK Ordinance No.XIV of 2002 dated 2.5.2002, which for ease of reference and proper appraisal of the legal import is reproduced as follows:- "23A.Indemnity.- No suit, prosecution or other legal proceedings shall lie against a civil servant for anything done or intended to be done in good faith in his official capacity under this Act or the Rules, instructions or direction made or issued thereunder."
13. A cursory glance on the section reflects that it starts with non-abstante clause which demonstrates its mandatory nature with addition of word "shall", against institution of any suit for the act done by a civil servant during the performance of his official duties. Likewise similar protection has been provided to the competent authority by virtue of Rule 21 of the KPK Government Servants (Efficiency and Disciplinary) Rules, 2011 which is also reproduced in extenso as under :- " 21.Indemnity-. No suit, prosecution or other legal proceedings shall lie against the competent authority or any other authority for anything done or intended to be done in good faith under these rules or the inst\ructions or directions made or issued thereunder".
14. Writing of ACR/PER is admittedly relating to Efficiency and Discipline of a Civil Servant which is reflected by reporting officer, in his annual confidential or performance report. The Legislature in its wisdom has supplied double protection to the competent authority for his action taken in good faith against his subordinates. Had there been no immunity supplied in the Statute, there would have been stream of litigation against competent authority on such like bald allegations and no one would have dare write such remarks even if subordinate would have been ruining the institution by his acts, omissions and commission and in- competency. There would have been chaos and anarchy in administration of departments. The goal of civilized society or good governance can only be achieved by strict adherence to rule of law. A violation thereof or non- adherence thereto would ultimately relegate to a position, chaotic and bizarre. Should the immunity provided in Act and Rules is relaxed or removed or deemed to be so, it would break open flood gates of suits for damages against reporting officers.
15. By virtue of both provisions of statute, such suits are barred by law. The remedy has been provided in the Statute itself of making representation before the competent authority or appeal before the Tribunal which has been availed by the plaintiff/respondent and his grievance has been redressed, though on technical grounds. The competent authority while expunging remarks, did not observe that observations in the PER recorded by the defendant/ petitioner were incorrect or malafide. Rather there is observation that before recording adverse remarks, defendant/petitioner was required to issue counselling or warning and thereafter could have passed such remarks. Mere irregularity in recording ACRs or PERs does not amount to malafide on facts or law, against the plaintiff/respondent which may constitute or accrue a cause of action, hence the suit was not maintainable for lack of cause of action too.
16. Beside that, competent authority expunged the remarks on 24.2.2014 while the suit was filed on 26.2.2015. Article 28 of the Limitation Act provides one year limitation for filing suit for compensation for an illegal, irregular or excessive distress. Article-23 of Limitation Act is not attracted because there is no prosecution in this case. Though the suit is barred by two days but since a harsh step has been taken by the plaintiff, seeking recovery of huge amount as compensation, for official act done by the defendant/petitioner, so he was required to be vigilant in pursuing his remedy, if any.
He may not be shown any leniency in the matter of limitation, particularly, when he has not sought condonation of delay nor offered any explanation much less plausible. Though the matter of limitation is a mixed question of law and facts but when documentary evidence is available on the record in the form of official record, no better evidence than that can be led by the plaintiff at the trial for condonation of delay. Thus by virtue of Section 3 of the Limitation Act suit of the plaintiff is liable to be dismissed.
17. For what has been discussed above, respondent's plaint is liable to be rejected for lack of cause of action and bar of the suit contained in Section 23-A of KPK Civil Servants Act, 1973 and Section 21 of KPK Government Servants (Efficiency and Disciplinary) Rules, 2011. The learned trial court has erred in law by not exercising jurisdiction so vested in it, to nip the evil in the bud, by rejection of plaint, which is the prime object of Order-7 Rule-11 CPC. Thus by accepting the instant petition, impugned order of the trial court is set aside and plaint of the plaintiff/respondent is rejected with costs throughout.