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Dr. P.H. Daniel and anr. Vs. K.N. Krishna Iyer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 53 of 1976
Judge
Reported inAIR1982Ker95; (1982)IILLJ353Ker
AppellantDr. P.H. Daniel and anr.
RespondentK.N. Krishna Iyer
Appellant Advocate S. Narayanan Poti,; S. Sankarasubbah,; George Mathew Kal
Respondent Advocate T.G. Govinda Warrier,; K. Ramakumar and; Sebastian Davis
DispositionAppeal allowed
Cases ReferredBowen v. Hall
Excerpt:
civil - defamation - appeal by defendants in suit for damages on ground of defamation - subordinate judge decreed suit awarding sum of rs. 5000 as damages together with plaintiff's costs - defendants are president and general secretary of concerned union - in interest of society trade unions should function without any undue inhibition or restriction - freedom of communication between members vital to every union - till statement although defamatory are honestly made with full faith in truth of what is stated in relevance to claim of privilege - statements on privileged occasions however emotional or irrational or however rash or illogical will not be evidence of malice - judgment of court below set aside - appeal allowed. - - the incident was reported in newspapers like malayale.....kochu thommen j. 1. this appeal is brought by the defendants in a suit for damages on the ground of defamation. the learned subordinate judge of palghat decreed the suit awarding a sum of rs. 5000/- as damages together with the plaintiff's costs.2. the plaintiff shri k. n. krishna iyer is the managing director of emerald valley estates ltd., which is a company owning the meraflores estate at nelliyampathy and the bedaguli estate in karnataka. the defendants are the president and the general secretary, respectively, of the estate staff union of south india which we shall refer to as the 'union.' the union represents the staff of the various estates in south india. about 9000 employess are members of the union which was registered as early as 1947. the object of the union is to protect and.....
Judgment:

Kochu Thommen J.

1. This appeal is brought by the defendants in a suit for damages on the ground of defamation. The learned Subordinate Judge of Palghat decreed the suit awarding a sum of Rs. 5000/- as damages together with the plaintiff's costs.

2. The plaintiff Shri K. N. Krishna Iyer is the Managing Director of Emerald Valley Estates Ltd., which is a company owning the Meraflores Estate at Nelliyampathy and the Bedaguli Estate in Karnataka. The defendants are the President and the General Secretary, respectively, of the Estate Staff Union of South India which we shall refer to as the 'Union.' The Union represents the staff of the various estates in South India. About 9000 employess are members of the Union which was registered as early as 1947. The object of the Union is to protect and promote the interests of the staff of the estates. The activities of the Union are regularly reported in its journal called the 'Plantation Worker.' The journal is not sold to the public. It is distributed only among members of the Union who are not in arrears of their subscriptions. The journal during the period in question was distributed among 5000 members. In June 1970 there was an incident involving the plaintiff and Shri K. J. George who was a member of the staff of Meraflores Estate. George was then an active member of the Union and he was the President of its local branch at Nelliyampathy. George was transferred from Mereflores to Bedaguli. George and the Union regarded this transfer as an act of victimisation. According to George, when he reported for duty at the Bedaguli Estate where the plaintiff resides, he was, at the point of a pistol, compelled to write out a letter of resignation and put his signature to blank stamped papers. George was driven out of the estate in the middle of the night. He had to walk back to Nelliyampthy. He made a complaint concerning this incident at the police stations at Chamarajanagar and Nemmara. He submitted a complaint to the District Collector, Palghat, and other officers. The incident was reported in newspapers like Malayale Manorama and Mathrubhumi. Shortly after the incident, George went to Coimbatore and informed the defendants of what had happened at Bedaguli and showed them the report in the newspapers. Conciliation proceedings regarding this and connected matters were initiated and they ultimately resulted in a reference to the Industrial Tribunal. On 28th Mar. 1971, the 21st annual conference of the Union was held at Punalur at the Government High School hall. The hall was packed to full capacity. The audience consisted of the members of the Union and a few invitees including the Minister for Labour. In his Presidential address the 1st defendant, Dr. P. H. Danial referredto the incident concerning George and the circumstances in which he is said to have submitted his resignation of Bedaguli in a language which is per se defamatory of the plaintiff. This speech was reported in full in the 'plantation' Worker' in December 1971. An editorial also appeared in that issue concerning the plaintiff and his conduct towards his employees. The reference to the plaintiff in the editorial is also per se defamatory. It is in respect of these libelous statements which appeared in the Journal that action has been brought, by the plaintiff for damages.

3. In answer to the plaint allegations, the defendants averred in their written statement that the occasion on which the speech was delivered by the 1st defendant was privileged and that the 1st defendant bona fide believed that what he stated was true. He spoke on that occasion as the President of the Union and in the honest belief that he was speaking in the discharge of his official duties and in furtherance of the common interest of the Union. It was also averred that the reporting of the speech and the editorial comments in the journal constituted privileged communication as it was made in the discharge of the official duties of the defendants and in furtherance of the common interests of the members of the Union. The defendants denied that, either in making the speech or in reporting the same with the editorial comments, they were in any manner actuated by malice towards the plaintiff. Various other contentions were also raised by the defendants in answer to the plaint allegations. But they are not relevant to the present appeal as the only question which is urged before us by the appellants' counsel, Shri Narayanan Poti, is whether or not the defendants are protected by qualified privilege.

4. The learned Judge held that the defendants did not specifically plead qualified privilege and that the evidence on record did not establish such privilege. We may at the outset point out that in view of the categoric averments in the written statement, particularly those contained in paras. 1 and 5, the learned Judge was wrong in stating that there was no plea concerning qualified privilege. The question is whetherthe defendants have established the existence of qualified privilege, and, if so, whether the plaintiff has succeeded in defeating that plea by proving express malice on the part of the defendants.

5. Defamation is defined by ParkeB. in Parmiter v. Coupland -- (1840) 6 M. & W. 105 at 108, as 'A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule ......'Even without exciting such strong feelings as 'hatred, contempt or ridicule,' a statement may amount to defamation if it tends to lower a person in the estimation of right thinking people generally or tends to make them shun or avoid him. See Uinfield & K Jolouioz on Tort, 11th Edn. p. 274: Gatley on Libel and Slander. 7th Edn. para 31 et seq. Odgers on Libel and Slander. 6th Edn. (1929) p. 1; Spencer Bower, A Code on the Law of Actionable Defamation, (1908), p. 2 and Ibid 2nd edn. p. 2.

The definition recommended by the Faulks Committee in England in 1975 is: 'Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.' (Cand 5909, para 65). To make a statement defamatory there should be publication to a third party and such publication should be of such a nature as is likely to cause appreciable injury to a person's reputation 'defamatory words, if false is actionable. False defamatory words, if written and published, constitute a libel: if spoken, a slander.' (Odgersson, cit. p. 1). Some of the principal defence to an action for defamation are justification, (i.e., the words are true): fair comment; absolute privilege; qualified privilege, etc. It is with the defence of qualified privilege that we are concerned in this appeal.

6. In certain circumstances the law protects a person from liability for defamatory statements even if he cannot prove the truth of his words or prove them to be fair comment. Such protection is recognised in the public interest. This may be either an absolute privilege granting the defendant complete immunity, or a qualified privilege. In the latter event the defence is indefensible and will be of no avail if it is provedthat the defendant was actuated by express malice. While the defence of absolute privilege is confined to statements such as those made in Parliamentary and judicial proceedings and the like, qualified privilege is applicable to a number of situations. A statement made in the discharge of a legal, social or moral duty or for the protection or furtherance of an interest to a person who has a corresponding duty or interest to receive it is protected by qualified privilege. However, such protection is defeated if the plaintiff succeeds in proving express malice on the part of the defendant when he publishes the words complained of. See 1971 Ker LT 393: (AIR 1971 Ker 280) (FB); AIR 1957 All 219 : AIR 1958 Rai 257.

7. Every statement which is defamatory gives rise to a presumption of malice. This is the legal malice which is the foundation of an action for defamation. But such presumption of malice is rebutted if the defendant proves that the occasion on which the words were published was privileged. Once the defendant has succeeded in rebutting the presumption of malice, the plaintiff's action must necessarily fail, unless he establishes that the defendant was actuated by express malice which is malice in fact.

8. In the instant ease it is not disputed that the statements in question were per se defamatory. But the defendants claim privilege on the ground that it was in the discharge of a duty or in the furtherance of an interest that they made the statements. That is a claim of qualified privilege which is by its very nature defensible on proof of express malice.

9. The classic definition of qualified privilege is what is stated by Parke B. in Toogood v. Spyring -- (1834) 1 C. M. & R. 181, 193:

'In general an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication es malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the lawdraws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.'

10. The above dictum highlights the following aspects: publication of statements which are false and injurious to the character of another gives rise to an inference of malice in law and makes the publisher liable in damages to the person affected. But such inference of malice is successfully rebutted if the publisher is able to show that the statement was made in the discharge of a public or private duty. It is immaterial whether that duty is a legal duty which is enforceable by an action or whether it is a moral duty which is not so enforceable. In the alternative, he must prove that the statement was made in the conduct of his own affairs in matters where his interests are concerned. Where the defendant has succeeded in establishing such defence and has thus rebutted the inference of malice, the burden shifts to the plaintiff to prove actual malice on the part of the defendant.

11. An occasion is privileged only if it can be fairly stated that the person who has made the communication has a duty or an interest in making it and the person to whom it has been made has a corresponding duty or interest in receiving it. Only where these two things cc-exist does the law regard the occasion as privileged; per Lord Caher, M. R. in Hunt v. Great Northern Railway Company, (1891) 2 QB 189 at 191.

12. Drawing the distinction between privileged occasion and privileged communication and emphasizing the need for reciprocity of duty or interest to make the occasion privileged. Lord, Atkinson observes in Adam v. Ward --(1917 AC 309 HL (E)):

'...... a privileged occasion is in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential ...... a privilegedcommunication -- a phrase often used loosely to describe a privileged occasion, and vice versa -- is a communication made upon an occasion which rebuts the prima facie presumption of malice arising from a false and defamatory statement prejudicial to the character of the plaintiff, and puts the latter on proof that there was malice in fact.'

See also the observation of Lindley, L. J. to this effect in Stuart v Bell, (1891) 2 QB 341.

13. Unlike a legal duty which arises from any one of the recognised sources of law, a moral or social duty is not in all cases easily identifiable. What is a moral or social duty has to be decided by the Judge as best as he can with such evidence as he has. To do this he must necessarily apply an objective standard which means not his own idiosyncratic standard but by an application of his mind to what would people of ordinary intelligence and moral principle have done in the circumstances. This is what Lindley, L. J. refers to in Stuart v. Bill, -- (1891) 2 Q. B. 341 at 350, in the following words:--

'I take moral or social duty to mean a duty recognised by ...... people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal.'

See also Watt v. Longsdon -- (1930) 1 K. B. 130 at 144 and 153.

14. The test applied by the Judges of the earlier times may not necessarily be a sure test under modern conditions. While decisions of ancient vintage supply strong guidance, facts and circumstances in changed situations must necessarily be viewed in a different light and from a different angle. Courts have in fact recognised the need to apply the rule as to privilege far more widely than it was done in the past. This is in recognition of the general interest of the Society to obtain correct information about the character of people in whom others have a legitimate interest. It is in the interest of truth itself that bona fide statements are protected. The observation of N. Erie, C. J. made as early as 1863 in Whiteley v. Adams, (1863), 15 C. B. (N. S.) 392; (1914) 143K. R. (C. P.) 838 is apposite in this context :

'If every word which is uttered to the discredit of another is to be made the ground of an action, cautious persons will take care that all their words we words of praise only, and will cease to obey the dictates of truth.' So are the words of Lord Buckmaster in London Association for Protection of Trade v. Greenlands, Limited. -- (1915) 2 A. C. 19 at 22 (H. L.):

'Indeed, the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact. New arrangements of business, even new habits of life, may unexpected combinations of circumstances which, though they differ from well-known instances of privileged occasion, may none the less fall well within the plain yet flexible language of the definition to which I have referred.'

15. The interest that the publisher has in making the statement and that the publisher has in receiving it need not necessarily be a pecuniary interest, although in the majority of cases it may be so. The interest may also be professional as in the case of lawyers or doctors anxious to preserve the dignity and reputation of the body to which they belong, or, it may be both, as in the case of Trade Unions which champion the cause of the employees for higher wages as well as for better conditions of work which guarantee the dignity of labour. In some cases, it may be a relationship based on blood or marriage. The common interest, however, must be one which the law recognises and appreciates. A mere gossip attracts no privilege, however interesting it may be to the speaker and the listeners. Curiosity or officious intermeddling is not sanctioned by law. To come within the privilege the statement must be warranted by the occasion and must tend to protect the interests of the publisher and the publishes.

16. The main emphasis of the law is on honest pursuit of truth in the discharge of a duty or the protection of an interest. In Whiteley v. Adams (1863) 15 FBN S. 392, (supra) the jury found that certain letters were written by the defendant bona fide and in the honest belief that what he wrotewas true and that it was his duty to make the communications which he did. The question was whether in the circumstances these letters were written in the discharge of a social or moral duty or whether the writer or the addressee had an interest in making or receiving the communications. Answering the question affirmatively, Erie. C. J. stated :--

'It seems to me that, under all the

circumstances, it was the social and moral duty of the defendant as a clergyman towards Mr. Cleaver as another clergyman to give him true and correct information on the subject upon which he was writing. I say emphatically that I think he was discharging a social and moral duty: and I also think it was his interest. If he wished to stand well withthose whose religious opinions coincided with his own, to satisfy them that he was not shirking from the performance of his duty as a clergyman, in declining to act the part of a peacemaker.'

This is the kind of situation which may be analogous to a communication between a trade union leader and his followers, or between members of a political, religious, commercial or professional organisation.

17. The statement must be made fairly. An unfair statement lacking in bona fides, although made in the purported discharge of some duty or furtherance of an interest, will not be worthy of protection. The maker of the statement must bona fide believe in the truth of the statement which he makes although the statement itself may not be true. What is important is his honest belief in the truth. He must further bona fide believe that the persons to whom the statement is made have an interest which justifies the communication. Per Lord Parker of Paddington in London Association for Protection of Trade v. Greenlands Limited -- (1916) 2 A. C. 15 at 42. But the burden to prove lack of bona fides or show express malice is, as we shall presently see, upon the plaintiff.

18. Although the law protects pursuit of truth it must be pursued with a sense of fairness, propriety and proportion. As observed by Knight Bruce V. C. in 1 Qn. C. & S. 20 (quoted by Lord Macnaghten in Macintosh v. Dum. (1908) A. C. 390 at 400-401:

'The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice: still for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them... Truth, like all other good things, may be loved unwisely -- may be pursued too keenly -- may cost too much.'

19. The communication must be made only to those who have a corresponding duty or interest in receiving it. If a communication is made in the presence of outsiders it may be a circumstance to question the validity of the claim for privilege. The protected communication is expected to be made in private and not in public. The mere fact of outsiders being present does not necessarily render the communication absolutely unprotected. But such circumstance might afford evidence of malicious intention and it is for the Court to decide as a question of fact, taking into account the circumstances in which the statement was made and the style and character of the language used, whether the publisher has acted bona fide or been actuated by malice, per Parke B. in Toogood v. Spyring, (1834) 1 C. M. & R. 181 (supra).

20. In Pittard v. Oliver -- (1891) 1 Q. S. 474 Lord Caher, M. R. held that an action which was privileged does not necessarily lose the privilege by the mere presence of reporters at a meeting held exclusively for the guardians of a School. In Adam v. Ward (1917 A. C. 309) the House of Lords recognised the privilege, notwithstanding publication to the contrary at large through the press, for, on the facts of that case the publication was held to be not unreasonably wide. In that case such publication was found to be necessary to answer a charge which had already received wide circulation. But statements in newspapers may not be protected 'where it is made not in answer, but as a fresh item on which a general interest, as distinguished from a particular interest already arouses prevails.' (per Lord Hanworth, M. R. in Chapman v. Ellesmere, (1932) 2 KB 431. 456.

21. While it is the object of the law to protect statements made honestly onprivileged occasions 'for the common convenience and welfare of society' (Toogood v. Spyring) (supra), the law does not countenance the protection of persons who make statements with utter disregard of truth and in abuse of the occasion which it is made. What the law protects is 'honest and kindly freedom.' It is not 'expedient that liberty should be made the cloak of maliciousness, and in such a case the general law applies.' per Lord Coleridge. C. J. in Bowen v. Holl (1881) 6 QB 333, 343. Anger or sharp language as such may not point to abuse. But there may be Circumstances where a person from anger or some other wrong motive may have allowed his mind 'to get into such a condition that he casts aspersions on other people, reckless whether his statements are true or false.' Such circumstances may indicate absence of bona fides which negatives privilege. Per Lord Caher, in The Royal Aquarium and Summer and Winter Garden Society (Limited) v. Parkinson -- (1897) 1 QB 431. Anger or gross and unreasoning prejudice may in certain circumstances be taken as an abuse of the occasion. But mere anger giving rise to violent or exceedingly strong language would not take away the protection, if the communication was honestly made on reasonable grounds. As stated by Lord Atkinson in Adam v. Ward -- (1917) AC 309 at 339:--

'........ a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable-grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not to.' To this effect Sir Robert Collier stated in Laughton v. Bishop of Sodor and Man -- (1872) 4 P. C. 495 at 506.

'To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit,if not altogether defeat, that protection which the law throws over privileged communications' (1917) A. C. 309 at 337. This passage is cited with approval by Lord Macnaghten in Jenoure v. Delmege (1891) A. C. 73, 76.

22. Malice in the law of defamation is used in two senses. In one sense it denotes merely the absence of lawful excuse of privileged occasion. In another sense it denotes ill-will evil motive, intention to injure or wanton disregard of the rights of others. It is in the former sense that legal malice which, in the absence of lawful excuse or privilege, arises as an inference of law from statements which are per se defamatory. This is the constructive malice or malice in law or the implied malice which we have already referred to. That is a malice which has to be disproved by the defendant by showing that the occasion was privileged. It is to determine this question arising from duly on interest that we stated earlier that the judge has to apply the objective standard. In the latter sense, what is referred to is malice in fact arising from ill-will, evil motive, and the like. This is express or actual or real or true malice. This is an attribute of the state of the mind which is generally referred to as a question for the jury, where there is a jury, which means that the question has to be decided by a subjective standard as to the state of the mind of the defendant. Intention to injure or wanton disregard of the rights of others are some of the ingredients of such malice.

23. It is for the defendant to prove that the occasion was privileged. Once he has done that, his bona fides must be presumed : Janoure v. Delmege (1891) A. C. 73, 79. The burden is then on the plaintiff to show express malice : Clark v. Molyneux -- (1877) 3 Q.B.D. 237. But until then, the plaintiff has no such burden. Express malice, unlike legal malice, is never presumed; it must be proved as a fact. See 53 Corpus Juris-Secundum 1 for an interesting discussion on the point; see also the observations of Lord Esher M. R. in Hebditch v. Macllwaine (1894) 2 Q. B. 54 at 58 (CA) and Tindal C. J. in Coxhead v. Richards -- English Reports (1846) 135 E. R. 1069, 1079 : 2 C. B. 569, 594.

24. The motive of the defendant becomes material where privilege is established and the burden has shifted to the plaintiff to show actual malice. Improper motive is the best evidence of malice, Such motive can be inferred from evidence regarding the defendant's state of mind. If the defendant did not believe in the truth of what he stated, that fact is conclusive evidence of express malice, for no man can legitimately claim privilege if what he stated was a deliberate and injurious falsehood about another, except in the rare case where there is a duty to pass on, without endorsing defamatory statements made by some other person. Reckless publication of untrue defamatory matter without caring whether what is said was true or not would be treated as a deliberate lie and would thus be evidence of malice,

25. Even positive belief in the truth of what is published on a privileged occasion cannot afford protection if the plaintiff shows that the defendant misused the occasion for some purpose other than that for which the privilege is recognised by the law. If the defendant's dominant motive is not the performance of a duty or the protection of an interest, but to wreck vengeance upon a person out of spite or ill-will, or to obtain some private advantage unconnected with the duty or the interest, his privilege is destroyed and he is not protected. This is so even if he has positive belief that what he said was true.

26. The presence of irrelevant defamatory matter in a statement on a privileged occasion may be taken into account in deciding whether, in the circumstances of the case, actual malice can be inferred. But the test in regard to irrelevant matter is not whether it was logically relevant, but whether the defendant in all the circumstances did or did not believe in the truth of what he said, or believing it to be true, he knew that what he said had nothing to do with the particular duty or interest.

27. However, in all these cases one should indeed be slow to draw the inference that a defendant actuated by improper motives unless one is satisfied that he did not believe in the truth of what he stated or did not care whether it was true or false. So long as he acted honestly, mere carelessness, impulsiveness, irrationality or stupidity on his part in coming to conclusions does not amount to an improper motive indicating malice : Clark v. Molvneux (1877) 3 Q. B. P. 237, 249; Horrocks v. Lowe -(1974) 1 All E. R. 662, 669 (HL). 'The only kind of recklessness which destroys privilege is,' as Lord Diplock points out, 'indifference to its truth or falsity' -- Horrocks v. Lowe (supra). His likes and dislikes, his passions and prejudices, his utterances of indignation, may all be of no consequence, so long as his dominant motive is the honest discharge of a duty or the furtherance of an interest. The protection of qualified privilege is not defeated merely because the defendant disliked the plaintiff for reasons which he honestly believed to be true and was righteously indignant at the plaintiffs conduct which he believed was his duty or interest to express. These are the natural reactions of an honest person. Lord Diplock points out in Horrocks v. Lowe (supra).

'The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner.'

28. Apart from intrinsic evidence derived from what the defendant did or said on the privileged occasion, extrinsic evidence as to the defendant's conduct on other occasions can be adduced to justify the inference that on the privileged occasion also his dominant motive in publishing what he did was extraneous to a legitimate claim for privilege. The fact that the defendant had quarrelled with the plaintiff and had threatened him on other occasions or that he bore grudge or ill-will towards him may be relevant extrinsic evidence. Per Lord Porter, Turner v. M G. M. Pictures Ltd. -- (1950) 1 All ER 449, 455 (HL) .

29. The defendants are the President and Secretary of the Union. It is their duty to safeguard and protect the interests of the members. It is in furtherance of their own interest as Union leaders that they should champion the cause of the members of the Union. The main purpose of the meeting at which the speech was made by the 1st defendant was to highlight the problems facing the members of the Union and to impress upon them the need for solidarity and sustained effort to achieve their objective. Telling them of the problems and the part played by the Union leaders in solving them are matters of vital interest to the office bearers as well as the members of the Union. The presence of the Minister was very significant. He was Ministerfor Labour and the person who would be instrumental in initiating a reference to the Tribunal of the very matters concerning George which was then a subject of conciliation proceedings. The presence of reporters and a few Government officers like the Chief Inspector of Factories and the Labour Commissioner was inevitable on the occasion and relevant to the interests of the Union. In the circumstances there cannot be any doubt that the occasion was privileged.

30. The plaintiff does not howevertrace the cause of action to the speechitself but to the subsequent publicationof that speech in the 'Plantation Worker'. This is a Journal which is circulated only among the members and thattoo among those who have fully paidtheir subscriptions. There is no evidence.to suggest that the journal is sold ordistributed among non-members.The journal is exclusively meant forinternal circulation, and for the sole benefit of the members of the Union. Itis one of the primary interests and dutyof its editor to propagate the views ofthe Union among the members. The contents of the publication are matters ofvital interest to the members of theUnion. We have no doubt that the publication of the speech and the editorial in the journal was a privileged communication.

31. The fact that the journal might have fallen in the hands of certain outsiders does not necessarily destroy the privilege. There is no evidence that the journal had been deliberately forwarded to non-members. The plaintiff was informed of the contents of the journal by P. W. 3 who was at the relevant time working in Chandramala Estate in Melliyampathy. P. W 3 had seen the statements in the journal which he obtained from a member of the staff of his estate. This person was admittedly a member of the Union, and had apparently received the journal in his own right as a subscriber. P. W. 2 is a Superintendent of Meraflores Estate. He also saw the journal which was given to him by a Nurse working in that estate. P. W. 2 says that the Nurse told him that she got the information from her husband who was working in Chandramala Estate. The husband was dead at the time of the trial. But the wife alive and she was not examined. It is not clearhow the husband of the nurse came across the journal. The plaintiff has in our view failed to prove that the defendants had deliberately made the journal available to non-members of their Union.

32. There is no evidence to suggest that the defendants were actuated by express malice. The honesty of their purpose is not in question. In fact it is admitted the plaintiffs. This is what he says:

'There is no personal grudge betweenme and the defendants. Personally theyhave no reason to entertain malice towards us. The defendants are respectable trade union leaders.'

There is no evidence to suggest that thedefendants did not believe in the truthof what they stated. The evidence is infact to the contrary. The defendants hadmade due enquiries as to the veracityof what George had told them. Theyhad no reason to suspect his credibility.He was an active trade unionist and thelocal secretary of the Union. He hadmade complaints to the police about theincident at Badaguli. The incident hadbeen reported in newspapers likeMalayala Manorama and Mathrubhumi.The matter became the subject of conciliation proceedings and it was laterreferred to the Industrial Tribunal. George and the Unionhad consistently taken up a stand inconformity with what George had toldthe defendants. There is also no evidence to suggest that the dominant purpose of making the speech or reportingthe same or the comments made in theeditorial of the journal had not been in furtherance of trade union activities, but to give vent to personal spite or ill-will towards the plaintiff or to gain a privateadvantage unconnected with the duty or interest which constitutes the reason for the privilege. The plaintiff has failed to prove that the defendants were actuated by express malice.

33. We have looked at the evidence very carefully, bearing in mind the fundamental principle that, while every man has a right to be protected against in jurious falsehood deliberately propagated against him communication of matters, which although per se defamatory, but which the publisher honestly believes to be true, and in regard to which he and the publisher have a common duty or interest, has to be protected 'for the common convenience andwelfare of the society'. Per Parke B. in Toogood v. Spyring, (1834) CM&R; 181 (supra). The leaders of trade union movement have a duty and a legitimate interest to champion the cause of their members. They have also a duty towards society to uphold truth and Justice. Their duty towards their members or their interest in furthering their cause must not be allowed to override their fundamental duty to the society not to destroy truth by deliberately propagating falsehood. Subject to any such overriding consideration or principle of law, it is in the interest of the society at large that trade unions should function without any undue inhibition or restriction. Freedom of communication between members is vital to every Union. Statements on privileged occasions, however emotional or irrational they may be, however rash or illogical their conclusions may be, will not be evidence of malice so long as such statements, although defamatory, are honestly made and with full faith in the truth of what is stated and in their relevance to the claim of privilege.

34. The law of defamation seeks to hold the balance equitably between the rights of the individual and the interests of the society. In so doing the scale tilts in favour of communication which the interest of the society demands.

'........It is better for the generalgood that individuals should occasionally suffer than that freedom of communication between persons in certain relations should be in any way impeded' said Lord Coleridge in Bowen v. Hall, (1881) 6 QBD 333 at 343.

35. Where these overriding considerations warrant recognition of privilege, in difference to truth or falsity alone can destroy it. Of such indifference on the part of the defendants in the present case, there is no evidence. But at the same time we hasten to add that we express no view whatever as to the correctness or otherwise of the statements in question.

36. Accordingly the appeal is allowed, the judgment of the Court below is set aside, and the suit is dismissed. However, in the circumstances of this case we make no order as to costs.


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