' M. MAHBOOB AHMAD, CJ.---This is a plaintiff's Regular First Appeal against the judgment and decree of Civil Judge Ist Class, Lahore dated 26-2-1985 whereby his suit for recovery of damages was dismissed.
2. The appellant while serving as Assistant Engineer (Telephones) in the employment of respondent was compulsorily retired on 12-3-1972, by the Government. He filed applications for review under MLR No. 116 on 18-3-1972 and 21-6-1972 against the order of his compulsory retirement before the President of Pakistan which were not disposed of. He consequently challenged his dismissal by filing a Constitutional petition in this Court which however abated in view of the promulgation of the Service Tribunals Act, 1973. He thereupon filed an appeal against the order of his compulsory retirement before the Service Tribunal which was accepted on 7-3-1990 and his dismissal was set aside. It was further directed by the Service Tribunal that the plaintiff be reinstated in service with all consequential benefits.
3. On 11-1-1979, he filed the present suit for the recovery of Rs.5,00,000 as damages for the loss suffered by him on account of financial hardship, loss of reputation, mental torture and degradation. In the suit, the only defendant impleaded was Islamic Republic of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad which contested the suit by filing a written statement. On the pleadings of the parties, the trial Court framed the following 8 issues:-- (]) Whether this Court lacks the jurisdiction to entertain and try the suit?
(2) Whether this suit is not maintainable in its present form?
(3) Whether the defendant is not liable for the tortious acts of its employees?
(4) Whether the plaintiff has no locus standi or cause of action to bring this suit?
(5) Whether the defendant refused to comply with the judgment of Supreme Court dated 9-9-1970 wilfully and deliberately, if so, its effect?
(6) Whether the plaintiff was compulsorily retired mala fide, if so its effect?
(7) Whether the plaintiff has suffered any loss of reputation, financial hardship and mental torture due to the mala fide acts of the defendant or its employees and whether the plaintiff is entitled to recover any damages from the defendant, if so to what extent?
(8) Whether the plaintiff is entitled to recover Rs. 5,00,000 from the defendant?
' On the basis of the evidence led before him, the learned Civil Judge decided Issues Nos.1, 2, 4, 5 and 6 in favour of the appellant-plaintiff while Issues Nos. 3, 7 and 8 were answered against him with the result that the suit filed by him was dismissed. Under Issue No.3, it was held that the respondent had no liability for the tortious acts of its employees and therefore no suit could be maintained against it. While deciding Issues Nos. 7 and 8, the trial Court took the view that it was established law that when a person suffers by a wrongful act and ultimately that act is declared to be wrongful and mala fide and that person is compensated by way of reinstatment with all back benefits, then it cannot be said that that person suffered any loss of reputation, financial hardship or mental torture.
5. It was contended on behalf of the appellant that the trial Court was in error in holding that the Government is not liable for the tortious act of its servants/employees. According to the learned counsel, this view which was based upon the maxim that "King can do no wrong" has since long been forsaken.
6. The next contention of the learned counsel for the appellant was that the findings on Issues Nos.
7 and 8 are based upon misconception of the true legal position. He urged that the said findings are neither tenable in law nor can be sustained on any ground whatsoever.
7. Sh. Maqbool Ahmad, learned Standing Counsel for the Federal Government on the other hand argued that with the reinstatement of the plaintiff in service by the Service Tribunal, he ceased to have any cause of action or grievance and therefore could not have maintained the suit.
8. After hearing the learned counsel for the parties and perusing the record, we are of the view that the judgment of the Trial Court on all the three issues is erroneous in law and is lible to be set aside.
As already noted under Issue No.3, the Trial Court held that the Government is not liable for the tortious acts of its servants/employees. However while so holding, no rule or authority was cited.
The view taken by the Civil Judge runs counter to the dictum of the Supreme Court of Pakistan in Pakistan (through the Secretary, Ministry of Rehabilitation, Government of Pakistan, Rawalpindi) v.
Muhammad Yaqoob Butt and another reported as PLD 1963 Supreme Court 627 wherein it was ruled that the principle that the "King can do no wrong" and that the King cannot be sued in his own Courts is inapplicable to Pakistan specially when the Government A is acting in relation to its citizens where it can act only in accordance with the municipal law. It may also be observed that this principle is no more being accepted even by the Courts in England. A Division Bench of this Court in Ch. Muhammad Nawaz v. Province of West Pakistan reported as PLD 1975 Baghdadul-Jadid 11 has also held that Government was liable for the tortious acts of its servants. In addition to the above, it is also to be noted that according to the case of the appellant, act complained of was ratified and owned by the Government and even for that reason, it was liable for the acts of its employees. This aspect of the case was totally ignored from consideration. It is thus obvious that finding on Issue No.3 recorded by the trial Court is erroneous, unsound and thus liable to be set aside.
9. Coming now to Issues Nos. 7 and 8, the trial Court by some strange logic which is not discernible came to the conclusion that as the appellant had been reinstated into service with back benefits by the Service Tribunal, he could not file the present suit. While coming to this conclusion, it was observed that there is established law on the subject that once a wrongful act is set aside, and the person concerned is compensated by way of reinstatement with back benefits then it cannot be said that the person sufffered any loss of reputation, financial hardship or mental torture. To say the least these observations of the trial Court are too wide and general and it is indeed regrettable that without citing any authority in support of the view taken by the Civil Judge, he observed that it was an established law. At least neither we are aware of any such law on the subject nor the learned counsel for the respondent has been able to cite any judgment, authority or rule in support of the above finding of the trial Court. We are unable to understand how declaration of a wrongful action to be illegal or the setting aside of the same can take away the right of a person to claim compensation for loss if any suffered by him. The trial Court had failed to appreciate that the suit of the appellant was not for the recovery of arrears of salary, but was based upon the plea that on account of compulsory retirement, the appellant had undergone mental torture, financial hardship and had suffered loss in reputation. The reinstatement into service and grant of back benefits by the Service Tribunal to the appellant cannot be considered as having taken away the right of the appellant to recover the damages or loss, if any, suffered by him. The findings of the trial Court on these issues, too cannot be sustained and the case will have to be remanded to the trial Court for decision afresh in the light of the observation made above.
10. The result is that this appeal is accepted, the impugned judgment and decree are set aside and the suit is remanded to the trial Court for decision afresh in accordance with law. The costs to follow the event.