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A.D.M. Stubbings Vs. Shellamuthu - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1972)IILLJ285Ker
AppellantA.D.M. Stubbings
RespondentShellamuthu
Cases ReferredIn Brij Ballabh v. Shri Satya Dev
Excerpt:
.....have been covered by exception 7 of section 499, i. it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. the officers of the estate were perfectly within their right to have instituted the enquiry and if they are to be hauled up under a charge of defamation, as observed in halsbury cited earlier, the administration of justice would be paralysed......told two other servants that he had dismissed the plaintiff for robbing him, the communication was held privileged. so also, it is the right and duty of an employer who believes that his servant has been guilty of defalcation in regard to funds to communicate it to the person who had guaranteed the servant's fidelity, and who is liable to be called upon to make good the loss. where a master discharges a servant, and some person interested on his behalf inquires the reason of his dismissal, or intercedes for his reinstatement, it is the master's moral duty frankly to state the reason, and if he does so bonafide, and without malice towards the servant, his reply will be privileged. in all these instances the accused was held to have been protected by privilege.6. in brij ballabh v. shri.....
Judgment:
ORDER

K. Sadasivan, J.

1. The revision petitioners are accused in C.C. 66 of 1971 on the file of the First Class Magistrate's Court, Devicolam. They represent the Chokkanadu Estate, Kanan Devan Hills. Against them the complaint was preferred by one Shellamuthu under Section 500, I.P.C., alleging that the revision petitioners published defamatory imputations against him intending to harm his reputation. He was dismissed from the service of the estate as it was reported to the estate that firewood was stolen by him from the estate and sold in the market. The dismissal was preceded by an inquiry by the management at which it was found that the charge levelled against the respondent was true. After the dismissal he filed the present complaint before the Magistrate alleging that the imputation of theft made against him was made with the malicious intention of injuring his reputation and lowering him in the eyes of the public and the members of the S.I.P. Union, Munnar, of which he was an office bearer. His sworn statement was recorded by the Magistrate and process was issued to the accused who are the present revision petitioners The accused appeared and filed C.M.P. 535 of 1971 praying for a discharge on the ground that the complaint does not prima facie disclose an offence. The learned Magistrate having not acceded to the request, they have come up in revision.

2. On a review of the position in all relevant aspects, I am definitely of the view that the accused ought to have been discharged, as no case was made against them which, if unrebutted, would warrant their conviction. The inquiry was held by the estate authorities on the misconduct of the complainant. As provided in the standing orders governing the estate, the Industrial Establishment Act, 1946 and the Kerala Industrial Employment Rules, 1958, are applicable to the estate and they provide for suspension or dismissal of any workman for misconduct. Standing orders framed under the rules have the force of law. The inquiry conducted was a domestic inquiry into the misconduct of the workman and a charge-sheet was issued to him setting forth the acts of misconduct. The workman was given every opportunity for defending himself in the inquiry. Witnesses were examined at the inquiry and they were cross-examined by the workman. The result of the inquiry was that he was found guilty of the charges and accordingly he was dismissed. The question for consideration is whether the inquiry and the finding arrived at in the inquiry could furnish the basis of an action for defamation. In my view, no action can be sustained under such circumstances. In Barrat v. Kearns 74 L. J. K.B. Division 318, it was held that an enquiry by a commission of enquiry appointed by the bishop of a diocese under the Pluralities Act, is an enquiry by a judicial tribunal, and words spoken by a witness when giving evidence upon the enquiry, though not upon oath, are absolutely privileged. The action was brought by the plaintiff, a clerk in holy orders and vicar and incumbent of a church and parish in the diocese of Winchester, to recover damages for a slander alleged to have been spoken by the defendant during the course of an enquiry held before an ecclesiastical commission appointed by the bishop of the diocese. So also in the present case, the commission of enquiry was instituted under standing orders and rules framed by authority are made applicable to the estate.

3. In Lilley v. Roney and Anr. (1892) 71 L.J. Q.B. Division 727, it was held that a letter of complaint against a solicitor in respect of his professional conduct forwarded to the Registrar of the Incorporated Law Society is a step in a judicial proceeding and will be absolutely privileged. In that case the defendants had made charges against the plaintiff, a solicitor, before the Committee of the Incorporated Law Society, as appointed under the Solicitors Act, 1888. The charges were disproved and the complaint was dismissed as groundless. The committee filed their report to the effect that the plaintiff had not been guilty of any professional misconduct, and he was completely exonerated from all the charges. The plaintiff thereupon brought the action against the defendants for libel contained in their original letter of complaint and in the affidavit. The Court held that privilege was attached to the statements made before the committee and that the claim ought to have been for malicious prosecution and not for libel. If the proceedings are shown to have been instituted without reasonable or probable cause he would be entitled to damages.

4. In Thompson v. British Medical Association 93 L.J. P.C. 203, a medical practitioner was declared by the Medical Council to have been guilty of conduct detrimental to the honour and interests of the profession and calculated to bring the profession into disrepute, or to have grossly contravened the custom of the medical profession, or to have acted detrimentally to the interests of the association or omitted to comply with any rule or resolution of the association, no member shall consult with, or extend professional recognition in any other form to such practitioner until it shall have been otherwise decided by the Council and held that the making of grossly calumnious charges against his brother professionals was a sufficient ground for the expulsion of a member ; and that the communication by the association to its members of the fact that a resolution to expel a member had been carried was made on a privileged occasion, and was not ground for an action for defamation.

No action lies, whether against Judges, counsel, jury, witnesses, or parties, for words spoken in the ordinary course of any proceedings before any Court or Tribunal recognised by law. It is manifest that the administration of justice would be paralysed if those who were engaged in it were liable to actions of libel or slander upon the imputation that they had acted maliciously and notbona fide. Thus, all witnesses or parties speaking with reference to the matter before the Court have privilege for their evidence, whether oral or in writing, relevant or irrelevant, malicious or not. The privilege extends not only to words spoken but also to documents properly used and regularly prepared for use in the proceedings.

(Halsbury's Laws of England --Third Edition, Vol. 24, p. 49).

5. In Somerville v. Hawkins (1850) 10 Q.B. 583, where the defendant, who had dismissed the plaintiff on suspicion of stealing, told two other servants that he had dismissed the plaintiff for robbing him, the communication was held privileged. So also, it is the right and duty of an employer who believes that his servant has been guilty of defalcation in regard to funds to communicate it to the person who had guaranteed the servant's fidelity, and who is liable to be called upon to make good the loss. Where a master discharges a servant, and some person interested on his behalf inquires the reason of his dismissal, or intercedes for his reinstatement, it is the master's moral duty frankly to state the reason, and if he does so bonafide, and without malice towards the servant, his reply will be privileged. In all these instances the accused was held to have been protected by privilege.

6. In Brij Ballabh v. Shri Satya Dev , where accused No. 2 in his official capacity as general manager had placed a report made about his subordinate before the board of directors who had appointed him and to whose direction and control he was subject, the learned Judge held that the communication was privileged and even if he had passed any censure against him in good faith, it would have been covered by Exception 7 of Section 499, I.P.C. Exception 8 of Section 499 is also relevant in this connection. The Exception reads:

It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

In the present case, the accusation made against the complainant was that he stole firewood from the estate, sold it in the market and made a profit out of it. It can never be said that this allegation was made maliciously and without any basis. In the enquiry instituted in respect of it, it was found that the allegation was true. In the circumstances, he has no cause for complaint. The officers of the estate were perfectly within their right to have instituted the enquiry and if they are to be hauled up under a charge of defamation, as observed in Halsbury cited earlier, the administration of justice would be paralysed. The complaint, in the circumstances, must be held to be groundless. No case against the accused is made out. The complaint is an abuse of the process of the Court. The order of the learned Magistrate is hence set aside and the accused are discharged under Section 253(2), Cr. P.C.


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