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Petitioner: UNITED BANK LIMITED and 5 others VS Respondent: Raja GHULAM HUSSAIN and 4 others
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Nasir Aslam Zahid, Abdur Rehman Khan Title: UNITED BANK LIMITED and 5 others vs Raja GHULAM HUSSAIN and 4 others Case No.: Civil Appeal No, 1149 of 1997 Date of Judgment:1998-11-04 Reported As: 1999 PLC 106 Result: Appeal allowed.
JUDGMENT
JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---Respondent No,1 filed a civil suit against the appellants, respondents 2 to 5 one Rafiq A. Pirzada and A.G. Nadeem, before the Court of Civil Judge, 1st Class, Rawalpindi, to recover damages amounting to Rs,25 lacs on account of malicious prosecution. The suit was resisted by the appellants and on the pleadings of the parties, the trial Court framed the following issues:-- "(1) Whether the plaintiff has no cause of action? O.P.D. (2) Whether the suit is false and frivolous? O.P.D. (3) Whether the defendants are entitled to special costs under section 35-A, C.P.C. If so to what extent? O.P.D. (4) Whether the plaintiff has been maliciously prosecuted by without probable and reasonable cause by the defendants and defamed by . them? If so, whether the plaintiff is entitled to damages to the tune of Rs,25,00,000. ? (5). Relief." ' The trial Court dealt with all the issues together and by judgment and decree dated 29-3-1995 held respondent No,1 entitled to damages for Rs,18,00,000 against all the defendants in the suit on account of loss of monthly salary, allowances and future prospect of promotion in service besides defamation suffered by the respondent on account of arrest and raid on his house by the police. On appeal filed by the appellants against the judgment and decree of trial Court, a learned Division Bench of the Lahore High Court, Rawalpindi Bench, maintained the judgment and decree of trial Court holding respondent entitled to damages but reduced the amount of damages by Rs,61,213 on the ground that the respondent remained employed and received salary for the period
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from 1-1-1979 to 31-12-1980. The judgment and decree passed by the High Court as aforesaid is questioned in the above direct appeal before this Court. 2. The learned counsel for the appellants has challenged the judgment and decree of the Courts below on the following grounds:-- (1) Respondent having claimed damages in the suit on account of malicious prosecution, could not be granted damages for loss of monthly salary, allowances and future prospect in service, as these damages were relatable to his dismissal from service which respondent never challenged in any appropriate proceedings; (2) That respondent No,1 utterly failed to prove the ingredients which were necessary to sustain the claim for damages in a suit for malicious prosecution; and (3) That their process of reasoning adopted by the Courts below in assessing the amount of damages was devoid of any basis and was arbitrary. 3. The learned counsel for the respondents on the other hand, supported the judgment and decree of High Court. The learned counsel argued that mere fact that respondent No,1 failed to claim specific relief in respect of his wrongful dismissal from service and no specific issue in this behalf was framed by the trial Court, could not disentitle the respondent to a decree for damages on this score as the respondent had led evidence in the suit in this behalf. The learned counsel contended that the respondent had claimed specific amount of damages for loss of earning on account of breakup of his career due to dismissal from service in the plaint, which would show that he was aggrieved by the action of appellants, dismissing him from service. The learned counsel in the alternative made an oral request that the respondent may now be permitted in the interest of justice, to amend his plaint so as to include a specific prayer in his suit to challenge his wrongful dismissal from service. After hearing the learned counsel for the parties at length, we are of the view that the judgments and decrees of the Courts below cannot be sustained in law. 4. Respondent Mo.l while working with the appellants' bank as Manager, in its Attack City Branch, was transferred to Zonal Office, Rawalpindi, in November, 1978, as the appellants allegedly discovered certain mismanagement and misconduct in the affairs of Attock City Branch during the tenure of respondent No,1, through the reports of appellant No,5, dated 7-9-1978 and 29-9-1978. Respondent No,1 on his transfer from Attack Branch, however, instead of reporting for duty at the Zonal Office applied for one month's leave on 18-11-1978 which was granted. On the expiry of the leave, respondent No,1 instead of reporting for duty applied for further extension of his leave by another month which was declined by the appellants through telegram dated 19-12-1978. The respondent again applied for 15 days further leave by telegram dated .20-1-1979 which was also refused by telegram dated 21-1-1979, followed by the letter of appellant No,2 dated 25-2-1979. In spite of refusal of leave, respondent No,1 did not report for duty at the Zonal Office. Respondent No,1 was later served with a charge-sheet dated 5-3-1979, alleging various, irregularities and misconduct committed by him while posted as Manager at Attack City Branch of the Bank. In his reply dated 14-3-1979 to the above charge-sheet, respondent No,1 refuted all the allegations and offered to resign from the service with 24 hours' notice. The reply of respondent No,1 to the charge- sheet dated 5-3-1979 was not found satisfactory by the appellants and the resignation tendered by him was also apparently not accepted as he was advised by letter dated 5-6-1979 to appear before the Enquiry Officer, Mr. A.S. Pirzada, Assistant Vice-President, Zonal Office, on 17-6-1979 appointed to enquire into the charges against him contained in the charge-sheet dated 5-3-1979. Respondent No,1, it appears, did not appear before the Enquiry Officer on the above date. The appellants, in order to afford another opportunity to respondent No, 1 to defend against the charges, sent another letter dated 20-10-1979, asking him to appear before the Enquiry Officer on 29-10-1979 at 10-30 a.m.. at Attock City Branch of the Bank. Respondent No,1 in reply to the letter of appellants dated 20-10-1979 referred to his earlier letter dated 13-6-1979 wherein he had taken the
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stand that no enquiry could be held against him as he had already resigned from the service of appellants and was no more the employee of the Bank. Meanwhile, it appears that the appellants discovered some more irregularities and misconduct of the respondent No,1 in conducting the affairs of Attack City Branch of the Bank and accordingly, respondent No,1 was served with another charge-sheet dated 23-12-1979. Respondent No,1 replied the second charge-Sheet dated 23-12- 1979 on 29-12-1979 and besides refuting the charges levelled against him, challenged the jurisdiction of the appellants to proceed against him on the ground that he ceased to be their employee, after 14-3-1979. While the above enquiry proceedings were going on against respondent No,1, the appellants further discovered that a sum of Rs,1,00,000 withdrawn from the branch account No, 524 of the appellant's bank with the National Bank a Pakistan, by respondent No,1 and another employee of the Attack Branch, Muhammad Ayub on 25-6-1978, was not accounted for in the books of account of Attock Branch of the Bank. Accordingly, F.I.R. No,132 of 1980, dated 31-8-1980 was lodged with the Director, F.I.A., Islamabad, on 1-9-1980 and a further charge-sheet dated 14-9- 1980 was served on respondent No,1 in respect of this new charge. Respondent No,1 replied to the charge-sheet dated 14-9-1980, by his letter dated 19-9-1980, as follows:-- Ghulam Hussain Raja, B-132, Lala Rukh, Wah Cantt. September 19, 1980. Raja Muhammad Akbar, Assistant Vice-President, United Bank Limited, Zonal Office, Kashmir Road, Rawalpindi Cantt. RE; CHARGE-SHEET (Your No, G/17/687, dated 14-9-1980) ' Please refer your F.I.R. dated 1-9-1980 against me which is under the investigation of F.I.A. State Bank Circle, Rawalpindi, wherein it has been stated that a sum of Rs,1,50,000 vide N.B.P. Attock City Cheque No, 442827, dated 25-6-1978 was allegedly drawn by me under my signatures and your charge is responsible to have put the law in motion to effect my arrest. ' Resultantly I have been humiliated, disgraced and members of my family harassed on 3-9-1980 by Mr. Rafiq A. Pirzada and Mr. Zafar Iqbal Niazi, A.V.Ps. It is now strange to note from your captioned charge-sheet that the cheque in question was in fact drawn by Mr. Ayub and Mr. Samad Malik under their signatures. This wilful mala fide dramatic shift inconsistent with the charge registered by you in F.I.R. has already caused irreparable damage is not understandable and I am, under the circumstances unable to submit you reply of your above charge-sheet until I am furnished with the relative record as under:-- (1) N.B.P. Reconciliation cards from my take-over till todate together with relative vouchers. (2) All N.B.P. cheques with relative vouchers, counterfoils as dated above so issued, (3) N.B.P. Certificates obtained on each half-yearly and annual closing showing the outstanding balance from 30-6-1978 to 30-6-1980. (4) Cash in Transit Statements and Suspense Account, Cash in Transit marked off entries statements of Attock City and all twenty (20) branches fed by cash of Attack City Branch with all relative vouchers from my take-over till to-date. (5) Statement showing outstanding reconciliation entries of Attack City Branch and all of twenty (20) branches fed by the cash of Attock City Branch from take-over till to-date. (6) U.B.L. Attack City Branch N.B.P. Ledger statement of Account from my take-offer till to date. (7) Complete continuous statement of Accounts with N.B.P. Account No, 524 from my take-over till to date. (8) All comprehensive, Special, regional and central audit reports from my take-over till September, 1980. (9) All record of Scroll Books, Receiving Cashier Books, and Payment Books from my take-over till
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September, 1980. (10) The true attested copies of N.B.P. Cheques No, 462827, dated 25-6-1978 for Rs,1,50,000 and No, 462826, dated 25-6-1978 for Rs,1,00,000 and No,218517, dated 29-12-1977 for Rs,97,921.73, with relative vouchers. ' Please arrange to supply me above record in your custody as serialized 1 to 10 above within three (3) days of the receipt of this letter so that I could be able to submit you're the reply of your above charge-sheet within due date as desired. (Sd.) (GHULAM HUSSAIN IkAJA) C.C. to: ' Janab Raja Sikandar, Inspector, F.L A., State Bank Circle, D.A.V. College Road, Rawalpindi for favour of record and Court exhibit. (Sd.) (GHULAM HUSSAIN RAJA)" ' Respondent No,1 was, however, informed by the Enquiry Officer through its letter dated 28-9-1980 that his request for supply of the copies of documents mentioned above was nothing but an attempt to side track the issue, and therefore, same could not be acceded to. He was, accordingly, advised to send his reply to the charge-sheet within 3 days from the date of receipt of the letter failing which it was to be presumed that he had nothing to offer in his defense. There is nothing on record to show that respondent No,1 sent any further reply to the charge-sheet dated 19-9-1980 or asked for personal hearing by the Enquiry Officer. The Enquiry Officer, accordingly, proceeded with the enquiry ex parte and submitted his report on 15-2-1981, wherein respondent No,1 was found guilty of the following charges, according to evidence produced before him:-- "(1) Mr. Ghulam Hussain Raja withdrew Rs,1 lac from the account of U.B.L. Attack Branch from National Bank of Pakistan vide Cheque No, 462826, dated 25-6-1978 and misappropriated the amount. (2)By crediting Rs,10,25,000 into party's account fraudulently he allowed the party to utilize Bank's money for more than 3 months. (3)The amount Rs,97,921.73 withdrawn by Cheque No, 218517 on 29-12-1977 was pocketed by him and utilized by him for 3 months." ' While the above enquiry proceedings were going on the F.I.A. authorities arrested respondent No,1 in F.I. R. No,132 of 1980. He was, however, admitted to bail by the Special Judge Central, Rawalpindi, and later on a report submitted by F.I.A. after investigation of the case, was discharged from the case on 28-5-1981 by that Court. The report of F.I.A. in the case and the order of discharge passed by Special Judge Central, Rawalpindi, were as follows:--{{URDU TEXT}} ' On 22-6-1981, the appellants dismissed respondent No,1 from service on the basis of the findings of Enquiry Officer. The dismissal order reads as follows:-- "Mr. Ghulam Hussain Raja,Ref. G/46/890, B-312, Lala Rukh,Date 22-6-1981. Walt Cann. _ REGD. A/D U.P.C. DISMISSAL ' You were charge-sheeted on 5-3-1979, 23-12-1979 and 14-9-1980 for committing the gross- irregularities including misappropriation of Rs,1,00,000 (Rupees one lac only) in concert with Mr. Muhammad Ayub Officer during your posting as Manager of Attack City Branch. ' You submitted your explanations thereto which were not found satisfactory. You were, therefore, advised to participate in the enquiry on 15-2-1981 alongwith your evidence you wished to produce in your defence. You did not appear in the enquiry on 15-2-1981 and as such the enquiry was
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conducted and completed ex parte. ' According to the report of the Enquiry Officer you have been found guilty of the charges leveled against you in the charge-sheets dated 5-3-1979, 23-12-1979 and 14-9-1980 and we are fully agreed with the findings of the Enquiry Officer. ' Under the circumstances it has been decided by the Management to dismiss you from Bank's service which we hereby do. ' This letter of .dismissal is being issued without prejudice to the criminal action pending against you. ' You are advised to clear your following personal liabilities together with interest, which you had availed during the course of your service within seven days from the receipt hereof:-- House Building Loan Rs,61,850 House Building Loan Rs,39,507 Car Loan Rs,16,000 Scooter Loan Rs,6,935 General Loan Rs,1,991.42
Flood Loan Rs,720 Furniture and Fixture Rs,3,849 Advance against Salary August 1977 Rs,1,173 (9Advance against TA/DA Rs,500 Rs,1,32,525.42 (Sd.) SENIOR VICE-PRESIDENT" 6. In the above stated background, respondent No,1 instituted the suit for damages against the appellants and respondents 2 to 5 and two others, claiming a sum of Rs,25 lacs from them jointly and severally. Respondent No,1 in his plaint in the suit alleged conspiracy between respondent No,3 and respondents 2, 4 and 5 and appellants 2 to 6 to involve him in false cases and further narrated the events and circumstances which led to the issuance of 3 charge-sheets to him by the appellants. He also set out the grounds in support of his claim for damages in the suits in paragraphs 13 to 23, as follows:-- "13. That on 1-9-1980 the defendant No, 8 at the instance of other defendants lodged a false F.I.R. with the F.I.A. authorities in connection with embezzlement of Rs,1 lac against plaintiff. The F.I.R. was lodged maliciously and the defendants knew it to be false. They lodged it just to harass, intimidate and damage the plaintiff. 14. That on the basis of this false, fabricated and concocted document which was the result of a conspiracy of the defendants, the plaintiff was constrained to bring up an application. for grant of bail before the High Court. The plaintiff was granted bail for seven days to enable him to move the Special Judge (Central), Rawalpindi. This order was passed in Criminal Miscellaneous No,2981/B of 1980 on 9-9-1980, copy is attached as Annexure 'P'. The plaintiff then moved a bail petition before the Special Judge (Central), Rawalpindi who granted interim bail to the plaintiff up till 1-10-1980 on
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which date he rejected the bail application of the plaintiff, when the plaintiff was arrested by the F.I.A. Physical remand of the plaintiff was obtained by the F.I.A. and the plaintiff remained in the lock-up up til 18-10-1980. This caused a great amount of mental torture to the plaintiff besides humiliation and all these misfortunes of the plaintiff were result of the mechanisation of the defendants. It would not be irrelevant to submit that on the day of rejection of bail of plaintiff defendant No,7 ridiculed the plaintiff and threatened to teach him lesson directly or indirectly being at Zonal Office, Rawalpindi. The plaintiff informed in detail to the President of the Bank of all his grievances vide letter dated 1-11-1980 carrying 38 enclosures (Annexure ' Q'). 15. That the learned Special Judge (Central) released the plaintiff on the condition that the plaintiff shall furnish a Bank Guarantee to the tune of Rs,50,000. This order of attaching the condition was challenged before the High Court vide No, .Criminal Revision No,170 of 1981 and Criminal Revision No, 39 of 1981 at Rawalpindi. In this petition the Hon'ble High Court set aside the condition attached to the bail order and imposed by the learned Special Judge (Central). In this very case the learned Assistant Advocate-General on 8-4-1981 made a statement that the plaintiff was found innocent by the F.I.A. Copy of the statement is attached as Annexure ' R' with this plaint. 16. That the learned Special Judge (Central), Rawalpindi also discharged the plaintiff on 28-5-1981 on the ground that the plaintiff was found innocent by the F.I.A. (Annexure R/1). 17. That the aforementioned facts and circumstances are indicative of the degree of agony and torture which the plaintiff has suffered at the hands of defendants. Besides incarceration of remaining in lockup the plaintiff had to spend huge expenditure disproportionately heavy to his financial position to puruse his case in Court of law and expenditure incidental thereto. The plaintiff also faced problem of managing finances for it and the consequences thereof. 18. The defendants did not contend only with the registration of sale and fabricated case against the plaintiff but continued with malicious harassment for the plaintiff by raiding the house of plaintiff when he was amidts the phase of torture caused by the defendants. The house was raided by Zafar Iqbal Niazi and Rafiq A. Pirzada, A.V.Ps. (defendants Nos. 5 and 6 respectively) without any legal sanction or authority, during this raid the conduct of the aforementioned defendants was extremely defamatory and obnoxious which has independently caused irreparable injury and insult to the plaintiff and his family. The old mother of plaintiff present in the house suffered shock of immeasurable degree. The aforesaid Zafar Iqbal Niazi has even made obnoxious calls plaintiff residence. 19. That the defendants malicious scheme of sending the plaintiff behind the bars fell to the ground because of the innocence of the plaintiff, they gave vent to their feelings by getting the order of dismissal passed by respondent No,3 against the plaintiff, i,e,, 22-6-1981. 20. That the defendants ever since the transfer of the plaintiff from Attock City Branch, tried their level best to involve the plaintiff in false cases to damage his career and to deprive him from the course of livelihood. Ultimately they only succeeded in getting an order of dismissal passed against the plaintiff. Their nefarious designs to send the plaintiff in jail were thwarted by the police when they declared the plaintiff to be innocent otherwise the defendants did not leave any stone unturned to cause maximum damage to the plaintiff. 21. That the plaintiff had put in 13 years of unblemished service with the Bank. He was looking forward to a bright career in banking. He was a Manager since 1973 and was a respectable member of the society. The evil-designs of the defendants made him mentally and physically a wreck. 22. That the defendants are individually and severally responsible for the acts of omission and commission which have been mentioned in detail against the plaintiff and they are individually and severally responsible for the payment of damages to the plaintiff. 23. That the plaintiff estimates the damages to the tune of Rs,25 lacs. The break-up of the
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damages is as under:-- "(i) Loss due to break-up career, loss of earning on account ofdismissal of service. Rs,15,00,000 i. Loss of reputation.Rs,5,00,000i. Loss on account of mental agony and hardship. Rs,4,00,000i. Actual Expenditure on litigation which includes the following cases: Rs .1,00 ,000a. Criminal Case a. Writ Petition i. Recovery suit for Rs,1 lac. i. Recovery suit in the Court of Special Judge, Banking.a. Criminal Revision High Court, etc. Total: Rs,25,00,000 ' The defendant No,1 is principal and other defendants are his servants. The principal is responsible for the acts of his servants." 7. Respondent No,1 though alleged in the plaint that the officers of the Bank who charge-sheeted him in the case were not competent under the law to do so and that his dismissal from service after he resigned from the service was uncalled for but he claimed no specific relief in the suit on this basis. The trial Court also framed no issue in this behalf and as such no evidence was led on this issue by the parties. The suit proceeded before the trial Court mainly on the basis that the prosecution of respondent No,1 by the appellants was malicious which resulted in damages to him. The trial Court while discussing all the issues together simply mentioned the witnesses and the documents produced by the parties and granted a decree for damages in the sum of Rs,18 lacs in favour of respondent No,1, as follows:-- "12. It is clear from the abovementioned record that the plaintiff was serving as manager in the United Bank Ltd. He served as such till 1978. The plaintiff joined the Bank service as Clerk, his speedy promotion to the extent of Manager of a bank goes to show his good service. It is clear from the rules and grade of the promotion with respect to bank service that the plaintiff was entitled to get good future if the service was permitted to be continued. The plaintiff was transferred. The plaintiff applied for leave. It is an established law that the leave on medical grounds is not refused. It is to this extent even that the information about illness is sufficient for grant of leave and when the application later on is submitted. The wife of the plaintiff was also ill and she was to undergo a major operation. It was a good ground for obtaining the leave. The plaintiff was hurriedly and harassly dealt. The plaintiff was issued charge-sheets. It is clear from the resignation of the plaintiff that he was afraid of his humiliation and defamation. The plaintiff wanted to get rid of all the difficulties by submitting his resignation which he apprehended later on. The plaintiff could not escape from the dire consequences, which he faced later on. He was dismissed from the service. He was arrested in a criminal case. He faced every type of humiliation what was the fault of the plaintiff. There is no fault of the plaintiff had how the defendants handled the fate of the plaintiff. The plaintiff was enjoying the good reputation in service and good social status in the society. He was earning for his family. The plaintiff is dragging himself in endless complications since 1980 to 1995. A person without any salary and without any earning is going on his litigation to get his rights since 1980. It is very difficult to file the litigation when one is not earning hand. A poor person has affixed the. Court fees stamp of Rs,15,000. This suit was filed not to harass any one. It is simple suit
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for civil rights. It is good on the part of the plaintiff that he has come to the Court to get his relief. The plaintiff has suffered a lot, only monthly salary along with allowances plus grade of promotion if calculated for the period' of 1978 to 1995 exceed Rs,15,00,000. The plaintiff was of course defamed when he was arrested and his house was raided. The plaintiff is entitled to get the damages and compensation from the defendant No,1 along with the other defendants individually and collectively for the amount of Rs,18,00,000 alongwith the interest over the amount as it is always the rules of the Bank. The interest is always paid over the amount by the Bank and to the Bank over the amount if given or taken. Hence the plaintiff is also entitled to get the interest according to law over the abovementioned amount. The issue No,4 is decided accordingly in the favour of the plaintiff. The plaintiff has every cause of action to file such suit. There is no question of special costs to the defendants. The issues Nos. 1, 2 and 3 are decided negatively against the defendants." ' The above reasoning's reflect a total lack of understanding of law and facts on the part of learned…
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