Supreme Court of Mauritius, 10 avril 2026, 2026 INT 85 – Alighan v Karia

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Alighan v Karia

2026 INT 85

THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of: CN 433/2021 Asraf ALIGHAN PLAINTIFF v.

Souriesing KARIA DEFENDANT JUDGMENT 1. The Plaintiff is suing the Defendant for damages on the ground of “faute”. At the material time, Plaintiff was working as Fisheries Protection Officer (FPO) at Grand Gaube Fisheries Post and the Defendant was also working thereat, as a Senior Fisheries Protection Officer (SFPO). In his proecipe, the Plaintiff avers that the Defendant made several complaints against the Plaintiff during the months of December 2020 and January 2021, to the effect that the Plaintiff committed forgery by making false entries in the Diary Book of the Fisheries Post. Plaintiff further avers that he felt depressed by the allegations of the Defendant which were made with the calculated intention to undermine his professional integrity. Plaintiff is hence praying for a judgment condemning and ordering the Defendant to pay to him damages in the sum of Rs 2 million for the prejudice suffered. With interest and costs.

2. In his plea, the Defendant denies having made any false and malicious allegations against the Plaintiff. He avers that he has only reported the facts that has come to his knowledge and which he deemed to be against the Standing Instructions of the Fisheries Protection Service. He also avers that the Plaintiff never denied having made false entries in the Diary Book. According to the Defendant, he acted within the purview of his duties and reported a wrongful practice of the Plaintiff. If he had ignored such practice, he would have gone against the proper discharge of his duties. Defendant further avers that, as an SFPO, he is in charge of the whole team when he is at work and any breach of the Standing Instructions of the Fisheries Protection Service, whilst he is on duty, falls within his responsibility. Defendant hence denies the claim and avers that it was Plaintiff’s own acts and doings which undermined his professional integrity.

3. The Defendant also raised several pleas in limine on the ground of which the proecipe ought to be set aside. They are summarised as follows:-

(i) The Plaintiff failed to put all the interested parties into cause, more particularly, the Ministry of Blue Economy, Marine Resources, Fisheries and Shipping, under which both parties were employed at all material times; (ii) The proecipe does not disclose a cause of action since Plaintiff failed to aver any bad faith on the part of the Defendant; (iii) The Plaintiff is making an abuse of the process of the court inasmuch as, based on the facts relied upon by the Plaintiff himself in his proecipe, he actually went against the proper discharge of his duties and committed fraud.

4. The above points were, however, not argued in limine litis but were instead canvassed on the merits. During the trial, evidence was adduced by both parties. Witnesses were called to depone on behalf of each side and several documents were produced in support of their respective cases (Documents A to N).

5. I have duly considered all the evidence placed before me, as well as the written and oral submissions of both counsel and the authorities relied upon by them.

6. It is the Plaintiff’s case that the Defendant had put entries in the Diary Book on the 27 th of December 2020, 5 th of January 2021 and 8 th of January 2021 (Documents A, A1 and A2), and had reported a case of forgery against him to the Ministry (Document N) with a view to tarnish his professional reputation. In the above DB entries, Defendant drew the attention of Mr Cunnee, the Inspector in charge of Grand Gaube Fisheries Post, to the allegedly forged entries made by Plaintiff as regards the time of departure for FPOs Rampersad and Lallmamode. According to the Plaintiff, the Defendant did not observe the proper channel in reporting a case against him, the more so that Defendant did not work in the same shift as him. It was Mr Cunnee, and not for the Defendant, who should have reported him. Plaintiff further stated that, if it was Mr Cunnee who brought a complaint of forgery against him, he would have had no issue 1 .

7. While the Plaintiff agreed that the Standing Instructions require officers to record their arrival and departure in their own handwriting (Document C), he explained that, as the officer in charge of his shift, he inserted the entries on behalf of the other officers as a health and safety measure with a view to minimise the risk of transmission of the Covid-19 disease. Plaintiff also conceded that the confinement period was over in the months of December 2020 and January 2021 but he maintained that, since people were still getting sick, the necessity for precautions was still felt 2 . Plaintiff added that Mr Cunnee, the Inspector in charge, never reproached him for adopting this practice and nor was any communiqué issued by the Ministry requesting that this arrangement be discontinued.

8. The Defendant’s case, on the other hand, is that he had the right to put those entries in the Diary Book (Documents A, A1 and A2) since it was the only way for Mr Cunnee to take cognizance of what was happening in his absence. Moreover, Defendant maintained that FPOs Rampersad and Lallmamode were

1 Pages 32-33 of the transcript for the sitting of the 17 th of December 2024. 2 Page 6 of the transcript for the sitting of the 17 th of December 2024.

not physically present when their departure was being inserted by the Plaintiff, which amounted to a forgery and a clear breach of the Standing Instructions (Document C). The Defendant also explained that work was back to normal in the months of December 2020 and January 2021 and there was no reason to continue with the practice adopted during the lockdown period.

9. In addition, the Defendant maintained that he adopted the right reporting procedure. The Defendant stated that he spoke to Mr Cunnee and the latter told him to report the Plaintiff to the Ministry, which he did. He sent a letter of complaint to the Senior Chief Executive of the Ministry (Document N) and same was copied to the Acting Controller and the Human Resource Manager of the Fisheries Protection Service. Following Defendant’s complaint, an investigation was carried out by the Internal Control Unit of the Ministry (Document D) whereby several shortcomings were observed and recommendations were made to better monitor attendance of officers. Furthermore, it is the Defendant’s case that the Standing Instructions of 2008 have never been amended and are therefore to be strictly adhered to by all officers.

10. Both Counsel were invited by the court to further submit on whether, in the light of the evidence on record, there was a “faute personnelle” or a “faute de service” on the part of the Defendant. Learned Counsel for the Plaintiff argued that the Defendant committed a “faute personnelle”, in that he went over and above his duties when he inserted those allegations against the Plaintiff in the Diary Book and wrote to the Ministry directly, hence bypassing his chain of command. He referred the court to the case of Samrandine & Anor v The State of Mauritius [2024 SCJ 304]. On the other hand, Learned Counsel for the Defendant argued that there was no fault committed at all by the Defendant, be it “faute personnelle” or “faute de service”, but if a “faute” is to be considered, then it should have been a “faute de service” since they were both on duty at the time. He relied on the cases of Neewoor v Burrenchobay [2017 SCJ 22] and Jaggaseeah v Aubeeluck [1982 MR 28].

11. In the present matter, it is not disputed that the Plaintiff and the Defendant were employees of the Ministry of Blue Economy, Marine Resources, Fisheries and Shipping at the material time and that both were on duty when the acts complained of by the Plaintiff, were allegedly committed by the Defendant. They were both, therefore, public officers acting in the course of their employment. The issue which the court has to determine, here, is whether by reporting the conduct of the Plaintiff, which he considered reprehensible, in the Diary Book of the Fisheries Post as well as in a letter addressed to the Senior Chief Executive of the Ministry, the Defendant has acted beyond the scope of his powers and duties.

12. By virtue of S.2 of the State Proceedings Act, the State assumes vicarious liability for the torts committed by its employees or agents. Thus, if a public officer has committed a “faute” in the discharge of his duties, this will constitute a “faute de service”, entitling the public officer to the special protection afforded to him under Section 2 of the State Proceedings Act. However, if the public officer has committed a reprehensible act which falls clearly outside the realm of his duties, then he commits a “faute personnelle”. He is personally liable for the tort he committed and does not benefit from the protection of the State Proceedings Act. See the case of Samrandine (supra).

13. In the case of Vallet v The Mauritius Housing Corporation [1970 SCJ 91], cited with approval in Jaggaseeah (supra), the distinction between “faute de service” and “faute personnelle” and the importance of such a demarcation were clearly explained. The relevant extract reads as follows:-

“Now the reason for granting such an immunity to public or quasi-public officers is well explained in Savatier, Responsabilité Civile, I, para. 224:

Immunité relative des fonctionnaires. Si les fonctionnaires sont soumis à la responsabilité de droit commun, dans les activités qu'ils exercent en tant que particuliers, il n’en est pas de même dans l'Administration qu'ils servent. D'abord, le fonctionnaire y jouissant d'une moindre liberté que les personnes privées, sa faute est souvent difficile à détacher des instructions qu'il y recoit, et du fait des autres agents de son service. Ensuite, la portée de ses actes pouvant être considérable, les conséquences d'une responsabilité civile de droit commun seraient, pour lui, disproportionnées, en equité, avec la rémunération qu'il reçoit

de l'Etat; à plus forte raison, avec la gratuité de ses services, s'il n’a pas de traitement. Enfin, la rigueur de cette responsabilité nuirait à l'intérêt public, l'Etat risquant de ne plus trouver de fonctionnaires, à moins d'augmenter leur traitement à proportion; et l'initiative des fonctionnaires pouvant être paralysée par la crainte des responsabilités.

Bearing those factors in mind, the Courts worked out the principle that public servants are civilly liable for their "fautes personnelles", but personally exempt for mere "fautes de service". "Par faute de service, on doit entendre les négligences, les omissions, les erreurs, qui bien que réprehensibles, sont dans les habitudes du service, et par conséquent ne sont pas détachables du service”[Hauriou, Précis de Droit Administratif, p. 528]. “La faute personnelle, c'est celle qui révèle non un administrateur plus ou moins sujet à erreur, mais l'homme, avec ses faiblesses, ses passions, ses imprudences”. [Laferriere, Traité de la Juridiction Administrative, I, p.648].”

[underlining is mine]

14. Furthermore, it is important for the court to examine the conduct of the public officer and the circumstances in which the officer acted the way he did. In the case of Neewoor (supra), the Supreme Court made the following observation:-

“At the heart of the distinction between a “faute de service” and a “faute personnelle” is in our view, the conduct of the agent of the public authority and the context in which it takes place. If such conduct is justified and reasonable in the circumstances, then he has committed a “faute de service” and is not liable for damages caused by such conduct. On the other hand, if his conduct is excessive, unjustified and unwarranted, then he has committed a “faute personnelle” and he will be liable for damages caused by such conduct.”

15. I find it also apposite to refer to an extract from JurisClasseur Civil, Art. 1382 à 1386, Responsabilite du fait d’autrui, Fasc. 143, Note 44 which is as follows:- “44. – Les actes accomplis grâce aux moyens fournis par l’employeur. –Il ne fait aucun doute que le salarié qui cause un dommage pendant son temps de travail, sur son lieu de travail, à l’aide des moyens mis à disposition par son employeur et dans l’exécution des tâches que ce dernier lui a confié agit pleinement dans le cadre de ses fonctions.”

16. As per the testimony of Mr Ajodah and Mr Maudhoo, who were called as witnesses for the Plaintiff, a senior officer can report a junior officer in case of any wrongdoing or breach of the Standing Instructions. In such an event, an entry to that effect is inserted in the Diary Book 3 . Here, the Defendant testified that when he attended work and took over from the shift of Plaintiff, he witnessed the latter committing a breach of the Standing Instructions and a forgery in his presence. The Defendant maintained that the Plaintiff inserted the departures for two officers in the Diary Book at a time when those officers were not physically present at work. On the whole, I find no reason to doubt the Defendant’s testimony which was coherent and credible.

17. It is not denied that the Defendant, as SFPO, holds a higher rank than the Plaintiff. There is, accordingly, nothing improper which occurred when the Defendant reported the Plaintiff, a subordinate officer, for any misconduct that Defendant reasonably believed had been committed. In addition, the Defendant did not act behind the back of his superior. The Diary Book entries of the Defendant were addressed to Mr Cunnee, the Inspector-in-charge of the Fisheries Post, who confirmed in court that he was aware of the incident and of the entries made at the time. Moreover, the Defendant maintained that he sent the letter of complaint to the Ministry (Document N) upon the instructions of Mr Cunnee.

18. Bearing in mind the legal principles enunciated above, it is clear that the Defendant’s acts and doings were “justified and reasonable in the circumstances” and cannot be said to have exceeded the normal scope of his duties as an SFPO. I find that the acts of reporting a subordinate officer for a malpractice “sont dans les habitudes du service, et par conséquent ne sont pas détachables du service.” Moreover, if “faute” there is by the Defendant, then it has been committed « pendant son temps de travail, sur son lieu de travail, à l’aide des moyens mis à disposition par son employeur et dans l’exécution des tâches que ce dernier lui a confié ». As such, the only reproach that, at best, could have been laid at the door of the Defendant is that of a “faute de service”

3 Page 23 of the transcript for the sitting of the 13 th of December 2024.

and not a “faute personnelle”. I therefore find that the proecipe has been wrongly entered against the Defendant in his personal name and that no joinder of the Ministry as an interested party can cure this defect.

19. As regards the lack of averment of “bad faith” in the proecipe, I agree with Learned Counsel for the Plaintiff that there is no need for the term “bad faith” to be explicitly used in the proecipe, provided that “sufficient facts constituting the alleged “faute lourde” or bad faith had been averred which, if found proved, would have established “faute lourde” or bad faith such as to form the basis of an action in damages” – vide Dooboree v The State of Mauritius & Anor [2020 SCJ 207]. On the basis of this principle, I find that the averments contained in Paragraph 10 of the proecipe, namely that the allegations of the Defendant were “made with the calculated intention to undermine the Plaintiff’s professional integrity”, were sufficient, if proved, to establish bad faith on the part of the Defendant.

20. However, I find that nowhere in the proecipe did the Plaintiff aver that the entries made by the Defendant in the Diary Book (Documents A, A1 and A2), which constitute the root of the claim against the Defendant, are false. Irrespective of the prevailing health issues and the reason why Plaintiff decided to enter the entries, it was important for Plaintiff’s case to establish the falsity of the Defendant’s complaints. Yet, I note that the Plaintiff did not state, at any point in time during his examination in chief, that the entries he inserted in relation to the departure of FPOs Rampersad and Lallmamode were correct and true and that the ensuing entries of Defendant accusing him of forgery were unfounded and false. It was only in cross examination when the question was put to him that the FPOs Rampersad and Lallmamode were not present at the material time that Plaintiff denied same and stated that, though they were not in the office, they were “upstairs” on the premises.

21. I further note that neither FPO Rampersad nor FPO Lallmamode was called as witness by the Plaintiff to confirm that they were present at those material times and establish the veracity of the entries made by the Plaintiff. In the light of the

above, I therefore find that the Plaintiff has not been able to prove on a balance of probabilities that the entries and complaint made by the Defendant were false and that the latter acted in bad faith in reporting him.

22. For all the reasons given, I find that the Plaintiff has failed to establish his case against the Defendant. I therefore dismiss the proecipe. With costs.

10 th April 2026

Y. NATHIRE BEEBEEJAUN Magistrate Intermediate Court