1988S64 (PLP)

MUHAMMAD AEZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against Judgment dated 6‑10‑1987 of the Lahore High Court; whereby appellant's Civil Revision against the money decree affirmed it the first appeal, was dismissed.

2. The respondent had filed a suit for recovery of damages on the ground that he had submitted his admission form for a matriculation examination after complying with all the necessary formalities; but, the Roll Number was not allotted to him nor was he given date‑sheet despite his having called upon all the concerned officials of the appellant/ Board. He alleged that the refusal by the appellant to perform its duty was a mala fide act‑‑that the functionaries concerned had told him that the roll number would not be issued to him because his brother Ch.Muzaffar Ali Khan, Advocate, who was an ex‑employee of the Board, had caused them annoyance by conducting a number of cases against the Board. The appellant resisted the suit both on merits as also on question of law regarding lack of jurisdiction of the Civil Court.

3. All the three Courts below having held against the appellant on both the points, the decree for damages now stands affirmed in favour of the respondent.

4. Leave to appeal was granted to examine the arguments advanced on behalf of the petitioner that sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, afforded complete immunity to the acts and proceedings of the Board and as such the suit of the respondent was not maintainable. The question whether negligence also stands protected under sections 29 and 31, ibid, needed examination.

5. After hearing the learned counsel at some length and on perusal of the relevant record, we feel that the allegation of mala fide against the Board and its functionaries has not been disbelieved, though it is correct that a finding of negligence has also been rendered against some of employees of the Board. After careful consideration of the factual aspects of the case, we are satisfied that 1 the action of the majority of the functionaries of the Board, whom the petitioner contacted with regard to the issuance of the roll number and/or the complaint against refusal by the lower functionaries to issue him the roil number, was tainted with malice in law, though some of them acted with malice in fact. The mere fact that someone out of them was also negligent will riot make it a case exclusively of negligence. In our view it would remain case of mala fides‑‑lack of honesty and good faith.

6. Sections 29 and 31, referred to above, read as follows:‑ "

29. Bar of Suit‑‑‑No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court." "

31. Protection of acts and orders under the Act.‑‑No suit for damages or other Legal proceedings shall be instituted against Government, the Controlling Authority, a board, a Committee, a member of a Committee or an officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the regulations and rules made thereunder." The learned counsel for the appellant has vehemently contended that all acts of the Board are protected under section 29 and all suit's for damages are barred against the Board, its bodies and functionaries under section

31. We do not agree with him. Amongst others two very important conditions for the appellant to succeed on the basis of these two provisions are; that the act or a purported act should have been done "in good faith"; and secondly, that it should be "in pursuance of the provisions of the Act and Regulations and Rules made thereunder". We repeatedly called upon the learned counsel to satisfy us that these two conditions were fulfilled in this case, but he failed because of the formidable hurdle with regard to the findings of fact. We appreciate that he had an obvious difficulty. It could not be urged by him .that a mala fide act, whether in law or in fact, could be treated as one in good faith nor could be canvassed that the mala fide act, as is established in this case, was an act or purported act in pursuance of the provisions of the Act, the Regulations or Rules made thereunder. His reliance.on Zafar‑ul‑Ahsan v. The Republic of Pakistan, through Cabinet Secretary (P L D 1960 S C (Pak.) 113) and Controller of Examinations, Board of Intermediate and Secondary Education, Lahore v. Waqar Hussain Hashmi (P L D 1977 Lah. 1029) remain of no avail to the appellant.

7. This appeal, therefore, fails and is liable to be dismissed. It may be mentioned here that the learned counsel for the respondent relied on a Judgment of this Court in Board of Intermediate v. Syed Khalid Mahmood C.P.1146 of 1984, decided on 31st March; 1985. In so far as this case is concerned, the respondent's case gets support from it.

8. It also needs to be mentioned that, after the announcement of the order of dismissal of appeal, we called upon the learned counsel for the appellant to show cause why it should not be directed that, instead of the entire decretal amount together with the cost, being paid by the Board‑‑it would be a burden on the tax‑payer, the same be not recovered from the concerned functionaries of the Board, who were responsible for the damages. He, after consulting his clients, has pointed out that at least three important functionaries have since retired and it may be difficult to make recovery from them. He also pointed out that none of the concerned functionaries was impleaded in the suit filed by the respondent, that being so, they would‑ be condemned unheard. Be that as it may, after hearing him in this behalf, in the peculiar circumstances of this case, we refrain from passing the proposed order; but this would not be a precedent for the future cases. The State functionaries might be burdened with the damages and/or the cost in similar cases.

9. In the light of the foregoing discussion and observations, this appeal is dismissed with costs. M.B.A./B‑56/S Appeal dismissed,