' This judgment shall decide Civil Revision No,2293 of 1994 and Civil Revision No,2294 of 1994, as they proceed against a common judgment of learned Additional District Judge, Sheikhupura.
2. On 24-1-1988 the respondent No,1 filed a suit against the petitioners, respondent No,2 and one Saeed Akhtar Qaisrani for recovery of Rs,24,999, by way of damages. It was stated in the plaint that the petitioners belong to a respectable family and also command respect in the Society. He is married having two daughters and is also looking after his old parents and younger brother. He is employed as clerk in a Bricks Kiln known as Noor Virk Bricks Company in Sheikhiipura; that on 23-12- 1987 the' petitioner and said Saeed Akhtar came to the said Bricks Kiln and took him along and when he protested they told him to point the other Kilns. Thereafter, he was brought to a factory at Lahore Road where he was told that he is under arrest and he shall remain in confinement till such time that the owners of the Kiln paid the Government dues. He was kept confined in the 'aforesaid factory till 4-30 p.m., where after he was incarcerated in Sheikhupura Jail. It was only under orders of this Court passed on 26-12-1987 that he was recovered and produced on 27-12-1987 when he was set at liberty. With these averments he sought decree for recovery of said amount. The said Saeed Akhtar in his written statement took the plea that he has got nothing to do with the arrest of the petitioner as he has neither issued any orders for his arrest nor arrested him. The petitioners in their written statement took the plea that they are the employees of the Punjab Social Security Institution and since the respondent is an employer as defined in Punjab Employees Social Security Ordinance, 1965 they acted in good faith and arrested him for non-payment of Social Security Contribution. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit against the petitioners and said Saeed Akhtar in the sum of Rs,7,000 vide judgment and decree dated 19-4-1993. First appeals were filed by the petitioners along with said Saeed Akhtar on the one hand and respondent No,1 on the other. Both the appeals were taken up by a learned Additional District Judge, Sheikhupura, together vide judgment and decree, dated 7- 2-1994. Learned Additional District Judge allowed the appeal to the extent of said Saeed Akhtar but dismissed the appeal of the petitioners. The appeal of respondent No,1 was also allowed inasmuch as the suit was decreed as prayed for i,e, decree for Rs,24,999 was passed against the petitioner and respondent No,2.
3. Learned counsel for the petitioner contends that the respondent being a Manager or agent of the owner of the Bricks Kiln falls within the definition of employee as contained in section 2(9) of the Punjab Employees Social Security Ordinance, 1965 and as such the petitioners had acted within the parameter of law and their jurisdiction while proceedings against him for recovery of Social Security Contribution and arrested him. Further contends that there is no element of mala fide involve. No one has turned up for the respondents.
4. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the petitioners. Section 2(9) of the Social Security Ordinance does lay down that the employer means the owner of the industry, business, undertaking or establishment in which the employees works and include any agent, Manager or representative of the owner. The .Contention of the learned counsel is that the respondent was either a Manager or an agent of the owner of the Bricks Kiln. I have examined the evidence in the light of the said contention of the learned counsel. Now Muhammad Yasin respondent No,1/plaintiff appeared as P.W.4 and stated that he is employed as "Munshi" in the said Bricks Kiln; that the petitioners came to Kiln and inquired about the owner and he told them that the owners have gone to the City, whereupon he was asked to accompany them.
5. I find that not a single question or suggestion of any sort was given to this witness that he was Manager or agent or a representative of the owners of the Kiln. Nothing, therefore, turns on the said contention of the learned counsel.
6. Even if it is assumed that respondent No,1 was in fact a Manager or an agent or a representative of the owner of Kiln, I find that neither any order was passed by any Competent Authority for proceeding against the petitioner- for recovery of Social Security Contribution nor he was issued a notice for payment of the said amount. I also agree with the learned lower Courts when they observed that name of respondent No,1 was interpolated in the warrants of arrest. Now this warrant (Exh.D-3) was issued by Muhammad Yousaf Saleem, Director Social Security (petitioner No,1) vide.
Exh. DI . The said Saeed Akhtar appeared as D.W.1 and has stated that he had sent the case for recovery to said petitioner No,1 vide Exh.D.1/1. Exh.D1 narrates that M/s. Noor Bricks Company had failed to pay the said contribution and amount is to be recovered as arrears of land revenue. There is nothing on record to suggest that any effort was made by the petitioners to trace out the owner of the Kiln. In fact it has come on record that the petitioners do not know even the name of the said owners. It is ironic that petitioners are terming the respondent No,1 to be Manager, agent or representative of a person whose name even they do not know.
7. Coming to the said last contention of the learned counsel that there is no element of mala fide.
The plea taken by the petitioners is that they had acted, within legal domain while arresting respondent No,1 and keeping him confined in jail for three days. I have already stated above that petitioners had not at all acted within the parameter of the law governing their powers and functions. They failed to trace down the person from whom the amount was actually due and got hold respondent No,1 a Munshi employed by said person and put him in jail. They do not have any lawful authority to take the said action. It is matter of record that no proceedings for recovery of land revenue were lawfully initiated against respondent No,1 neither any notice was issued to him calling upon him to pay the amount or informing him the reason as. To why the amount is due against him so as to give him a chance to explain. Even the warrant of arrest was interpolated to put the name of respondent No,1 therein.
8. Apart from the fact that action of the petitioners suffers from mala fide of facts, the same also suffers from the legal mala fide or what is known is legal parlance as "malice in law". A learned Full Bench of this Court in the case of Malik Ghulam Mustafa Khar and others v. Pakistan and others (PLD 1988 Lahore 49) while observing that two categories of malice i,e, "malice in fact- and malice in law" are two well-known concepts, quoted with approval the following observations of Bayley, J., in Bromage v. Prosser (4B 'C. 255) "malice in common acception means against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse'. Their lordships further quoted the following excerpts from the Speech of Loard Watson in the case of Allen v. Flood (1897 A.C.) .." The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed".
9. Their lordships further quoted with approval the following excerpt from R.C. Chaturvedi Book "Judiciary under Constitution"; The question of "malice in law" does not necessarily include the imputation of dishonest motive. But it includes the want of necessary care and caution... Malice in law further includes a non-application of mind on the part of the authority vested with powers".
10. Now In the present case its stand established that the petitioners acted on the simple assumption that since the law empowers them to recover Social Security Contribution as arrears of land Revenue and in the process they can arrest the person from whom the amount is due, proceeded to arrest the respondent No,1 but while doing so they tailed to apply mind and to take care and caution in the matter of exercise of said powers and in the process there the provisions of very law to the winds, under which they purported to act. Thus from whatever angle seen the said act of the petitioners is mala fide both in fact as well as in law.
11. To my mind, judicial notice can be , taken of the fact that once or twice a year authorities appointed under various laws dealing with the recovery of public money suddenly become active and go on a maddening sphere for recovery of the said amount and while doing so in several cases, if not most of them, due care or caution is not taken in the matter of enforcement of the said laws and more often then not person from whom nothing is due end up in jail.
12. For all that has been discussed above, there is no force in these civil revisions which are accordingly dismissed without any order as to cots.