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A.M. Ross Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai
Decided On
Judge
Reported in(1914)ILR37Mad55; 19Ind.Cas.353; (1913)24MLJ429
AppellantA.M. Ross
RespondentThe Secretary of State for India in Council
Cases ReferredChatterton v. The Secretary of Slate
Excerpt:
secretary of state in council, suit against, in respect of illegal order of district magistrate under assam labour and emigration act (vi of 1901), section 91, and also for alleged defamation in a government order - damage, remoteness of--liability of defendant under the government of india act, 1858--not liable here on the ground that the order was made in the course of employment, nor for acts done by government servants in the exercise of statutory powers--alleged ratification by the local government--government order--absolute privilege. - - under condition 9 he was responsible for preventing to the best of hiss ability all acts of misconduct on the part of the sirdars; and on the 21st februarjr he passed the first of the orders complained of suspending this agent's license pending.....wallis, j.1. this is a suit brought by the plaintiff, mr. a.m. ross, to recover damages from the secretary of state for india in council in respect of two orders made by the collector of ganjam, by one of which a local agent working under the assam labour and emigration act, 1901, was suspended and the dop6t maintained by him closed to recruiting, while by the other the local agent was dismissed; and also for alleged defamation of. the plaintiff by the governor of madras in council in a government order passed on the appeal, of the plaintiff and other interested parties against the collector's orders above referred to.2. under part iv of the aforesaid act of 1901, as amended in 1908, recruiters known as garden sirdars are sent by employers in assam to recruit labourers in ganjam and other.....
Judgment:

Wallis, J.

1. This is a suit brought by the plaintiff, Mr. A.M. Ross, to recover damages from the Secretary of State for India in Council in respect of two orders made by the Collector of Ganjam, by one of which a local agent working under the Assam Labour and Emigration Act, 1901, was suspended and the dop6t maintained by him closed to recruiting, while by the other the local agent was dismissed; and also for alleged defamation of. the plaintiff by the Governor of Madras in Council in a Government Order passed on the appeal, of the plaintiff and other interested parties against the Collector's orders above referred to.

2. Under part IV of the aforesaid Act of 1901, as amended in 1908, recruiters known as garden sirdars are sent by employers in Assam to recruit labourers in Ganjam and other places under a license issued by the authorities in Assam and counter-signed by the authorities of the district in which the recruiting is to be carried on. They are under a statutory duty to provide a proper place of accommodation, or depot, for the recruited coolies, and to get each cooly's labour contract executed before an appointed officer. Employers may also appoint local agents to supervise them.

3. In the exercise of powers conferred by Section 91. of the Act, as amended, the Government of Madras issued the Notification of 0th October 1909, relaxing or dispensing with the requirements of certain sections of the Act in the case of garden sirdars working ii icier the control of the Assam Labour Supply Association and other bodies on certain specified conditions. One of these conditions required the Association to employ a local agent in each district where recruiting was carried on, for the purpose of representing the, Association in all matters connected with the supervision of the sirdars. Under condition 8 the local agent was to provide suitable accommodation (a depot) for the labourers engaged. Under condition 9 he was responsible for preventing to the best of hiss ability all acts of misconduct on the part of the sirdars; and under condition 10 the license of any local agent, who might be found not to have exercised due care in preventing misconduct on the part of the sirdars, was liable to be cancelled by the District Magistrate.

4. On the 19th February 1910, the District Magistrate of Ganjam issued notice to T.S. Rama Sastri, local agent of the Association in the district, calling on him to show cause why his license should not be suspended for habitually allowing illegal recruitment in the Agency tracts where recruitment was prohibited; and on the 21st Februarjr he passed the first of the orders complained of suspending this agent's license pending the passing of orders as to its cancellation. A copy was sent to the Hub-Collector and Police Inspector, Berhampore, who were requested to see that the depot was closed to recruiting until further orders issued. By a subsequent order of the 25th July 1910, made upon the report of the Special Assistant Agent as the result of an enquiry held by him, the District Magistrate cancel led the local agent's license.

5. It was admitted before me that, if condition 10 giving the District Magistrate power to cancel the local agent's license for failure to exercise duo supervision was valid, the legality of the dismissal could not be questioned in the present case; but it was contended that the condition was ultra vires as Section 67 specified the cases in which the District Magistrate could dismiss local agents, and was exhaustive. I had no hesitation in overruling this contention, as it seemed to me that the condition was ii, necessary and proper one to be made under Section 91 of the Act as amended. So much is left to the local agent under the Notification, that it would not in my opinion be safe to make these relaxations without reserving to the District Magistrate power to dismiss a local agent who proves untrustworthy. I hold the order of dismissal was not open to objection.

6. It is otherwise with the order of the 21st February closing the depot to recruiting. That depot, was availablo not only to the local agent as the place ho was bound to provide under condition 8, but also to garden sirdars as the place they were bound to provide under Section 62 of the Act when recruiting under the provisions of the Act without the benefit of the concessions. As correctly pointed out in the Government Order containing the alleged defamation of the plain tiff, the concessions had not the effect of limiting the right of working under the Act, or preventing employers from so doing, if they preferred to conform to the more arduous and exacting requirements of the regular procedure. It is I think clear that the District Magistrate's order of the 21st February closing the Berhampore depot to recruiting by garden sirdars working under the Act was ultra vires.

7. The legality of the other part of the order suspending the local agent pending enquiry was questioned at a late stage of the case on the ground that the power to dismiss under condition 10 did not include a power to suspend. The decision, in Barton v. Taylor (1886) 11 A.C. 197 that a Colonial Legislative Assembly has no power to suspend members as well as to expel, proceeded on the ground that suspension would deprive the constituency of its representation and does not appear to cover the present case. The plaintiff has also referred to an American decision--Gregory v. New York (1889) 3 Lawyer's Rep 854 Seshadri Ayyangar v. Nataraja Ayyar I.L.R. (1898) Mad. 179 in support of his contention. I am inclined to think that a statutory power of dismissal does not include a power of suspension; but the plaintiff has failed to show that he incurred any additional damages by reason of the suspension, and in the view I take of the case it is unnecessary to decide the point.

8. Assuming the Collector's orders closing the depot to recruiting and suspending the local agent to be ultra vires, the next question is, has the present plaintiff' any cause of action against any one? The local agent and the garden sirdars were in the service of the Assam employers constituting the Assam Labour (Supply Association, and it was their business which was interrupted by the closing of the depot. The plaintiff who is the agent of the Association in the districts of Ganjam, Godaveri and Vizagapatam held agreements and powers of attorney from several persons and companies working in the Association; and, though not filling any statutory capacity under the Act, represented the Association in these Districts, exercised a general supervision over their local agents and garden sirdars, and corresponded on behalf of the Association with the local authorities in all matters relating id recruiting. For his services he was entitled under his agreements to be paid Rs. 7 a head for each labourer recruited, and the plaint alleges that the closing of the depot which put a stop to all work of emigration interfered seriously with the plaintiff's business, prevented him from earning his commission during the period of the closure of the dep6fc, and canned heavy loss to him personally.

9. The question then at once arises whether the plaintiff's claim for damages is not too remote. the general ride is stated in May no on Damages: 'If A. breaks his contract with B or indicts some harm on B, the result may be moat hurtful to G. Bui; C cannot in general sue A' citing as to that the judgment of: Lord Penzance in Simpson v. Thomson (1877) 3 A.C. 279 , and the same rule is laid down in Dicey's Parties to an Action, Rule 83, page 383. For the plaintiff reliance has been placed on National Phonograph Co. v. Edison-Bell Consolidated Phonograph Co. (1908) 1 Ch. 335, in which it was bold that, if A. by fraud induces B to break his contract with C and G sustains damage thereby, he may sue A. In the present case it is not alleged that there has been any breach, of contract with the plaintiff, and. it does not appear to me that the present point arose or was considered in that case. That; ease therefore is no authority for the plaintiff but, it is unnecessary to consider the point further as in my opinion the suit fails on another ground.

10. Assuming that the action of the Collector was tortious, the next, question is, is the plaintiff entitled to recover unliquidated damages for such tort from the Secretary of State in Council under the provisions of: the Government of India Act, 1858? For the plaintiff reliance was placed on The Secretary of Stale for India v. Hari Bhanji I.L.R. (1882) Mad. 273, Vijaya lidgava v. The Secretary of State for India I.L.R. (1884) Mad. 466 and Jehangir M. Cursetzi v. Secretary of State I.L.R. (1903) Bom. 189 and on appeal Jehangir v. Secretary of State (1904) 6 Bom. L.R. 131 was also referred to. The Advocate-General for the defendant relied mainly on the decision in Shivabhajan v. The Secretary of State for India I.L.R. (1906) Bom. 314, following Rogers v. Rajendro Dutt (1860) 8 M.I.A. 103, Tobin v. The Queen (1864) 16 C.B. (N.S.) 310, Mc Inerny v. The Secretary of State of India I.L.R. (1911) Calc. 797 and The Secretary of State for India in Council v. Kasturi Reddi I.L.R. (1903) Mad. 268 . The important decision of the Privy Council in Secretary of State for India v. Moment (1912) 40 I.A. 48, which has only just been reported, was also referred to by the plaintiff at the close of the argument.

11. The fundamental position, as stated by their Lordships in that case following the judgment of Sir Barnes Peacock in Peninsular and Oriental Steam Navigation Co. v. The Secretary of State (1861) 5 Bom. H.C.R. App. 1 , is that, as regards liability to be sued, the Secretary of State is to be in no position different from that of the old West India Company before the passing of the Government of India Act, 1858. The plaintiff has therefore to prove that he would have had a cause of action against the Hast India Company if the case had arisen before 1858. In Peninsular and Oriental Steam Navigation Co. v. The Secretary of State (1861) 5 Bom. H.C.R. App. 1, the plaintiff had been injured by the negligence in the course of their employment of workmen employed by Government at the Government dockyard at Kidderpore. Stress was laid on the fact that Government in India was obliged to engage in transactions partaking more of the character of private business than of affairs of State, such as this dockyard, the Bengal Marine Bullock Train, river steamers, etc. 'There is a great and clear distinction,' it was said, 'between acts done in the exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on without having such powers delegated to them;' and. at the close of the judgment, it was held, that the workmen having been employed by Government, and the act complained of being of a private nature and not done in the exercise of power usually called sovereign powers, or in the performance of an act of State, Government was liable for their negligence in the course of their employment in the same way as any private employer in. a similar case.

12. That was all that was decided, but certain dicta in the judgment wore subsequently interpreted by the Calcutta High Court in Nobin Chunder Dey v. The Secretary of State for India I.L.R. (1876) Calc. 11 as asserting the immunity of the Company from suit in respect of all acts done in the exercise of sovereign powers whether the suit was based on contract or on tort, thus conferring on the Company a larger immunity than is enjoyed by the Crown in England. In Hari Bhanji v. The Secretary of State for India I.L.R. (1882) Mad. 344 and 356, a suit to recover money alleged to have been illegally levied, Innes J. refused to follow the Calcutta case but dismissed the suit on the merits, leaving each party to bear his own costs. Even so an appeal was preferred by the successful defendant on the ground that the Court ought to have declined jurisdiction as the act complained of was done in the exercise of sovereign powers. This contention was over ruled in a learned judgment distinguishing between acts of State over which the Court has no jurisdiction--as regards which the agent is protected as well as the principal--and acts, such as those in that case and in this, done under colour of Municipal law as to which the agent at any rate is always responsible--The Secretary of State for India v. Hari Bhanji I.L.R. (1882) Mad. 273. The only question before the Appellate Court was one of jurisdiction, and they decided nothing as to the grounds on which liability could be brought home to the Company with success for acts done by public servants in India in oases within the jurisdiction of the Courts. This question was however discussed by Innes, J., at the trial. Hari Bhanji v. The Secretary of State for India I.L.R. (1882) Mad. 344 . In the first place (die learned Judge drew the inference from the preamble to Bengal Regulation III of 1793 (which ho set out) that the Company had submitted questions such as arose in that case (the alleged illegal levy of salt duty) to the arbitrament of the Courts. In the second place, he came to the conclusion that a Petition of Right would lie against the Crown in England in a similar case, and decided that the liability of the Company for sin act of this kind done in the alleged exercise of sovereign powers could not be less. The judgment therefore did not cover the present case, in which no money of the plaintiff has come into the hands of Government and in which the plaintiff would have no remedy against the Crown on a Petition of Eight. Indeed, referring to the case of Rogers v. Rajendro Dutt (1860) 8 M.I.A. 103, the learned Judge remarked that it might be authority for the position that the East India Company or the Secretary of State would not be liable to be sued for the recovery of unliquidated damages for a wrong, which is the present case.

13. It certainly seems a reasonable position that (as held by the learned Judge) the liabilities of the East India Company cannot have been any less than those of the Crown in England on a Petition of Right, which extend, not only to detention of the land, chattels or money of the subject, but also as now settled, to breach of contract--Thomas v. Reg. (1874) L.R. 10 Q.B. 31. Whether the Company enjoyed the same immunity as the Crown with regard to torts is of course a very different matter. Peninsular and Oriental Steam Navigation Co. v. The Secretary of State (1861) 5 Bom. H.C.R. 1 is authority for the proposition that it did not do so with regard to transactions which might have been carried on by a private individual. Whether it did so with regard to acts (lone in the exercise of sovereign powers but under colour of municipal law cannot perhaps be considered settled conclusively until their Lordships have had an opportunity of considering the case of Rogers v. Rajendro Dutt (1860) 8 M.I.A. 103, in which 'the irresponsibility of the supreme power' for a certain tortious act committed under the orders of the Government of India by an officer in its service was assumed, and justified on the ground that the officer who does the act is himself liable; and it is unnecessary to recognise an immunity so extensive for the purposes of the present case. Two decisions of the Irish Courts as to the Lord Lieutenant of Ireland may be cited on one side, and numerous English decisions as to Colonial Governors on the other.

14. While the immunity of the Crown in respect of tortious acts committed by its servants has always boon based on the legal maxim, the King can do no wrong, yet the Courts, in particular cases where the act had neither been ordered nor ratified by the Crown, have been careful to point out that there were less technical grounds on which such immunity could be justified, grounds which appear to be equally applicable to the East India Company. Thus in Canterbury v. Reg. (1843) 4 St. Tr. N.S. 767, where an ex-speaker oil the House of Commons sought to recover damages for the loss of his furniture in the fire which destroyed the Houses of Parliament and was occasioned by the negligence of the servants of the Commissioners of Woods and Forests who were in charge of the building, Lord Lyndhurst, L.C., pointed out that the Commissioners were public officers appointed to perform certain duties entrusted to them by the Legislature, and that though they were appointed by the Crown that would not make the Crown responsible for their neglect or misconduct any more than high officers of State such, as the Lord Chancellor or Postmaster-General were responsible for the neglect or misconduct of subordinate officials appointed by them; and that, if the Crown would not be responsible for the neglect or misconduct of the Commissioners themselves, it, must be equally irresponsible in the case of their subordinates. And in Tobin v. The Queen (1864) 16 C.B.N.S. 310, in which, it was sought to recover damages from the Crown for the action of the Captain of a ship of war in destroying a vessel supposed to be engaged in the slave trade, the second ground on which the immunity of the Crown was based was that the rule which makes masters or principals responsible for torts committed by their servants or agents in the course of their employment was inapplicable between the Crown and the Captain of a ship of war. Story on Agency has quite recently been treated as of the highest authority and. followed by the House of Lords in settling the vexed question whether the principal is responsible for wrongs committed by the agent in the course of his employment for his own benefit as well as for wrongs committed by him for the benefit oil his principal, Lloyd v. Grace, Smith, and Co. (1912) 107 L.T. 531 : (1912) A.C. 716; and in Story it is broadly laid down that Governments do not come within the rule. 'Section 319.--It is plain, that Government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents engaged in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents, whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests.' This passage is cited with approval in The Secretary of State for India in Council v. Kasturi Reddi (1903) 26 Mad. 268. Similarly in a very recent case McKenzie v. Corporation of Chilliwack (1912) 107 L.T. 570, their Lordships of the Judicial Committee appear to have been of opinion that a local authority could be made responsible for the misconduct of constable appointed by it, if at all, only on the ground that the appointment was not fitly or properly made.

15. In Dhakjee Dadajee v. East-India Co. (1843) 2 Mor. Dig. 307 the Supreme Court of Bombay held that an action of trespass for alleged trespass in breaking and entering the plaintiff's house and taking away books under a warrant from the Governor of Bombay in Council would not lie against the East India Company, unless it was shown to have ordered or ratified the act complained of--thus negativing the position that the Company could be made responsible like an ordinary principal merely on the ground that the act was done by the agent in the course of employment. The decision in Peninsular and Oriental Steam Navigation Co. v. The Secretary of State (1861) 5 Bom. H.C.R. 1, which has been already examined, only makes an. exception in the case of undertakings of a private nature carried on by the Company, and in no way affects the application of the principle to acts done by the servants of the Company in the exercise of the sovereign powers delegated to it.

16. The plaintiff however relies on the decision of Kernan, Muthuswami Ayyar and Hutchins, JJ. in Vijaya Ragava v. The Secretary of State for India I.L.R. (1884) Mad. At pp. 478, that the Secretary of State in Council was liable in damages for the illegal action of the Governor of Madras in removing the plaintiff from the Office of Municipal Councillor under the Towns Improvement Act (III of 1870). That decision does not proceed expressly on the ground that the Company would have been liable like an ordinary employer for acts done by its servants in the course of its employment; and indeed this part of the case appears to have received very little consideration. Kernan, J. merely refers to Forester v. Secretary of Stale for India in Council (1871) L.R. IndAp Supp. 10, in which the defendant was held liable to pay the plaintiff the value of certain arms illegally seized by Government in India with interest at the rate of 12 per cent. The point argued in that case was whether a seizure was an act of State; if not, it was a seizure in respect of which a Petition of Eight would lie against the Drown in England, and the liability of the Secretary of State in Council, does not seem to have been disputed. That case doe not seem to be any authority for holding the defendant liable in damages for the act of the Government of Madras in wrongly dismissing a Municipal Councillor from his office. The oilier learned Judges forming the majority appear from their statement to have proceeded on an admission made by the Advocate General who appeared for the defendant that 'if the Government would have been answerable otherwise, Section. 41.6 (now Section 79) of the Code of Civil Procedure would, make the Secretary of State liable.' Section 416 is as follows, 'Suits by or against the Government shall be instituted by or against [as the case may be] the Secretary of State for India in Council.' It has since been decided in Raleigh v. Goachen (1898) 1 Ch. 73, that if a body such as the Governor-in-Council committed a tort, assuming of course that they were amenable to the jurisdiction of the Court, a suit would not lie against them in their official capacity but only as individuals. Such a suit could not be said to be a suit against Government. Further it could scarcely have been intended in an enactment as to procedure to effect a change in the substantive law and make the Secretary of State in Council liable where ho was not liable before. However, if the Legislature had such an intention, it is now settled by the decision of their Lordships of the Judicial Committee in Secretary of State v. Moment (1912) L.R. 40 IndAp 48, that an enactment adding to or taking away from the Usability of the Secretary of State in Council to be sued as settled by the Government of India Act, 1858, is ultra vires of the India Legislature, as opposed to the provisions of the Indian Council's Act, 1861. It appears to me therefore that the decision in Vijaya Ragava v. The Secretary of State for India I.L.R. (1884) Mad. 466 is no longer of authority, and in any case does not preclude mo from holding on the authorities already cited that the Company could not have been made liable for the tortious acts done by their servants in India, in the exorcise of sovereign powers, which it had not ordered or ratified, merely on the ground that they wore done in the course of employment.

17. If the Company could not have been held liable for acts such as these on the ground that they were done by its servants in the course of their employment, the only other ground of liability I can think of as applicable to the present case is that the acts were ordered or ratified by it. In the present case the plaintiff relies on an alleged ratification of the orders complained of by the Governor in Council of Madras in CO. No. 48 of 12th October 1910. Only part of the order was communicated to the plaintiff, but the whole must be looked at to ascertain whether Government ratified the orders or not, as this question in no way turns on whether the ratification was communicated or not; Buron v. Denman (1848) 6 St. Tr. N.S. 525. It may, I think, be surmised that Government had been advised that the closing of the depot to recruiting under the Act as distinct from recruiting under the notification was illegal, and they point out this mistake, though in an earlier part of the order they 'consider the present necessities of the case have been met by the District Magistrate's action.'

18. On the whole I think the order is not expressed in sufficiently clear and unambiguous terms to amount to a ratification; but the point is immaterial, as it seems to me the Government of Madras had no authority from the Company, and have no authority from the Secretary of State now, either to commit tortious acts themselves or to ratify them when committed by others. The authority of the Government of Madras is derived from the Mast-India Company Act, 1793, and the Government of India Act, 1833, under which the whole Civil Government of the Presidency was vested and continues vested in the Governor and Councillors. In Dhakjee Dadajee v. East-India Co. (1843) 2 Mor. Dig. 307, Sir Erskine Perry held that the only ratification which would bind the Company in such a matter was a ratification by the Court of Proprietors itself.

19. For the foregoing reasons it scorns to me that, as this is not a case in which a Petition of Right would lie against the Crown at the instance of the plaintiff, and as the Company would not have boon liable for the acts of its servants merely on the ground that they were done in the course of employment, and, as the acts complained of in this case have not been shown to have been ratified by the Secretary of State, who has succeeded, under Section 3 of the Government of India Act, 1858 to the powers of the Directors and the Court of Proprietors, this part of the plaintiff's case must fail.

20. The decision may, however, be rested, on narrower grounds. the orders; of the District Magistrate suspending the local agent and closing the depot to recruiting would appear to have been passed by him as incidental to the statutory power, conferred upon hi in by the Act of 1901 as amended and the notification made thereunder, to dismiss the local agent; and, if this be so, it to well nettled that in exercising such authority or in exceeding it he cannot be considered to have been the agent of the authority appointing him so as to render the latter liable. This was the first ground of decision in Tobin v. The Queen (1864) 16 C.B.N.S. 310 , already referred to, in which it was held that, independently of the doctrine that the King can do no wrong, the Crown could not be made liable for the action of a Naval Captain purporting to act under the Slave Trade Acts in seizing and destroying the plaintiff's vessel, as he was not acting in obedience to the command of Her Majesty but in the supposed performance of a duty imposed upon him by Act of Parliament, in that case Erle, C.J., observes: 'Then as Captain Douglas would not have been an agent of the Crown if ho had lawfully seized and kept the vessel under the statute, still less ought he to be hold, such agent in seizing and destroying it illegally.' Applying this principle it has been held in Shivabhajan v. The Secretary of State, for India I.L.R. (1904) Bom. 314, that the Secretary of State in Council could not be made liable for the negligence of a chief constable in regard to the custody of hay seized by him under statutory authority conferred by the Code of Criminal Procedure. In such eases even ratification would make no difference, because there can be no ratification unless the act is done on behalf of the principal in the first instance. Buron v. Denman (1848) 6 St. T.N.S. 525, and notes to Armory v. Delamirie (1903) 1 Sm. L.C. 356. In 4 Inst., 817, Lord Coke says: 'By the common law he that receiveth a trespass and agreeth to a trespass after it is done, is no trespasser, unless the trespass was done for his use or for his benefit, and then his agreement subsequent amounteth to a commandment, for in that case Omnis ratihabitio retrotrahhitur et mandato aequiparatur.'

21. The plaintiff also seeks to recover damages in this suit for an alleged libel in the opening sentence of G.O. No. 948, Public, dated 12th October 1910, which was passed by Government on complaints made by the plaintiff himself and by two of the firms from whom he held powers of attorney, namely Messrs. Williamson Magor & Co., Calcutta, and Messrs. Balmer Laurie & Co., British India Tea Company, Calcutta, of the orders of the District Magistrate which are the subject of this suit. The alleged libel is contained in the first sentence of the order: 'Government see no reason to doubt that there had been illegal recruitment in the agency tracts of the Ganjam District by sirdars working under the Assam Labour Supply Association, and are of opinion that the conduct of Mr. Ross (the plaintiff) in that matter has not been wholly above suspicion.' The order directs copies to be sent to the District Magistrate of Ganjam and the District Magistrates of Vizagapatam and Godavari in whose districts Mr. Ross was working on the same lines, to Mr. Ross himself, and to the two firms already mentioned. This is the only publication relied on. The defendant has not thought proper to plead justification, but has elected to rely on his other defences.

22. As to this, I am in the first place of opinion for reasons already stated that no suit lies against the defendant for a libel published by the Madras Government, at all events unless it be shown that publication was made under the orders of the Secretary of State, or on his behalf and afterwards ratified by him. A similar conclusion was arrived at by Chandavarkar, J. in Jehangir v. Secretary of State (1904) 6 Bom. L.R. 131, to whom the case was referred on a, difference of opinion between Batty and Jacob, JJ. sitting on appeal from the Judgment of Tyabji, in Jehangir M. Cursetji v. Secretary of State I.L.R. (1903) Bom. 189.

23. Even, if the suit had been brought against the members of the Madras Government at the date of the order, and this Court had jurisdiction to entertain such a suit, it must still in my opinion have failed on the ground that the publication having been made by such Government in the execution of its duty, and without exceeding it, is absolutely privileged. In Oliver v. Lord Bentinck (1811) 3 Taun. 346 S.C. 128 E.R. 181, the plaintiff sued the defendant in the Court of Common Pleas at Westminister for publishing in the Gazette at Madras, whilst Governor and Commander-in-Chief in the Presidency, a notification that the Court of Directors had. resolved to dismiss the plaintiff who was a military officer for gross violation of the trust reposed in him as Commander-in-Chief of the Molucca Islands; and on demurrer all the Court were of opinion that it would be a good defence to the suit that the publication was made by the defendant in the execution of his duty, and considering that this had not been sufficiently pleaded, they gave the defendant leave to amend.

24. In Grant v. Secretary of State for India (1877) 2 C.P.D. 445 , Grove, J. held that the defendant was not liable for the publication of a similar notification in the Gazette (apparently the Fort St. George Gazette) at all events when the libel was not alleged to have been published maliciously and without reasonable and probable cause. This qualification was inserted with reference to the dissenting judgment of Cockburn, L.C.J., in Dawkins v. Lord Paulet (1869) L.R. 5 Q.B. 94, but is not in accordance with the decision of the majority of the Court in that case, or with the subsequent decision of the Court of Appeal in Chatterton v. The Secretary of Slate for India in Council (1895) 1 Q.B. 189. As explained in the case last mentioned, the defence of absolute privilege in this, as in other cases, is allowed in the public interest, because it would be contrary to such interest to allow public officers to be sued for libel in respect of publications made in the course of their official duty on the mere allegation that the publication was malicious. Otherwise, they would be obliged to defend all such actions for the purpose of rebutting the allegations of malice, however unfounded, and would be hampered and embarrassed in the due discharge of their duties.

25. Even if the occasion was not one of absolute privilege it was certainly one of qualified privilege; and that being so, and there being no evidence of malice of any kind on the part of Government in passing the order, a suit against them would fail on this ground also, and must also fail against the present defendant. In the result the suit is dismissed with costs.


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