Kerala High Court
Radhakrishnan Nair vs Chathunni on 11 December, 2002
Equivalent citations: 2003(1)KLT180, AIR 2003 KERALA 108, (2003) ILR(KER) 1 KER 618, (2003) 1 CIVILCOURTC 537, (2003) 1 KER LJ 127, (2003) 2 RECCRIR 76, (2003) 2 CIVLJ 342, (2003) 1 KER LT 180, (2003) 3 CURCRIR 15
JUDGMENT R. Bhaskaran, J.
1. This second appeal is filed by the plaintiff in a suit, for damages on account of a defamatory statement by the first defendant and published by defendants 2 to 4. The trial court decreed the suit for payment of Rs. 5001/- with costs. The lower appellate court reversed the judgment and decree and dismissed the suit.
2. The plaintiff's case is as follows:
The plaintiff was working as Lay Secretary in the Medical College Hospital, Calicut from 1.7.76 to 15.1.1983. Thereafter he was transferred to Tirur Government Hospital as Lay Secretary and Treasurer. On 5.1.1984 a statement by the first defendant came prominently in the daily published by defendants 2 to 4. Anybody who read this news item would get the impression that the plaintiff is guilty of large scale misappropriation of Government money in connection with the purchase of goods for the hospital. The plaintiff is a person who is leading an honest life and the news item has tarnished his image in the eyes of the public. The plaintiff's demand for withdrawing such statements was not heeded to by the respondents.
3. The first defendant contended that he was the State Secretary of the Government Hospital Workers Union from 1948 onwards and also the selected representative of the Medical College Hospital Administrative Council from 1981 onwards and though the plaintiff was aware of it, the first defendant is described as mere hospital attender. He contended that the plaintiff was not transferred to Tirur on request, that the plaintiff had failed to submit accounts to the auditors and there was no accounts for Rs. 3 lakhs during 1968 to 1975. The press conference was to explain the background of proposed strike by the hospital employees. To the questions put by the press reporters the first defendant gave answers and he said that Government did not take action against those who misappropriated Government funds and some files were actually missing and there was no statement that plaintiff misappropriated any amount. The first defendant as office bearer of the Organisation of Hospital Workers had a duty to bring to the notice of the authorities about the corruption at various hospital offices and he claimed qualified privilege for his statements. The defendants 2 to 4 also filed written statement contending that the publication was made after formal enquiry and after satisfying that it was true and since it was a matter of public importance, it was published.
4. The trial court found that on a reading of Ext. A1 publication a reasonable man would come to the conclusion that the plaintiff was responsible for the misappropriation. The trial court also found that the occasion in which the first defendant made the statement was not a privileged one. The publication in the newspaper was also found to have been made without any enquiry. On the above findings the trial court decreed the suit as prayed for.
5. In appeal the lower appellate court has found that the publication was per se defamatory and a reading of it would indicate that the plaintiff was involved in the misappropriation of Government funds. The appellate court however found that the statement was made by the first defendant as a trade union leader in discharge of a duty cast on him towards the society and the newspaper had also a duty cast to uphold the truth and justice. It was not made with any personal malice towards the plaintiff. Therefore the trial court's decree was set aside and the suit was dismissed.
6. The learned counsel on both sides argued the case elaborately. The substantial questions of law on which notice was issued by this Court read as follows:
a) How far malice or motive relevant in determining justification as qualified privilege of a Trade Union Leader with regard toper se defamatory statement uttered by him and published by a press.
b) If the impugned statement, made by the 1st respondent, was it made on privileged occasion and if the entire statement made by him is entitled to be protected, if it is made on a privileged occasion without regard to its relevancy and context.
c) If a statement is proved to be incorrect and if the maker had made it without proper enquiry of its correctness can the maker of the statement claim benefit of qualified privilege.
d) What is the nature of proof required for acquiring the benefit of qualified privilege, is it not mandatory to prove that the occasion privileged and the maker owed a duty to the public.
e) How far a trade union leader entitled to the benefit of qualified privilege about a statement made and caused to be published by him to the public, about a matter beyond his union activity.
7. Ext. A1 publication of the defamatory statement is dated 5.1.1984. The plaintiff was the Lay Secretary in the Calicut Medical College Hospital for the period 1.7.1976 to 15.1.1983. The first defendant was making a statement linking the transfer of the plaintiff one year ago with the misappropriation of Government fund in the Medical College Hospital. Admittedly, even if any misappropriation had occurred it was for the period 1968 to 1975 is before the plaintiff took charge as Lay Secretary. The allegation arose since certain bill books were not produced before the audit party when they visited in May 1983, ie. four months after the plaintiff was transferred from Calicut. Therefore there was sufficient justification for the plaintiff being agitated over the statement by the first defendant and published by defendants 2 to 4.
8. On the side of the defendants it was pointed out that the first defendant did not make any allegation that the plaintiff was responsible for the misappropriation. He only said Lay Secretaries are reasonable. He also said that Government did not do anything in the matter and the plaintiff was transferred to Tirur. Both the courts have found that the statement was defamatory. But in what context the statement was made has great relevance while considering the question whether the defendants are entitled to the qualified privilege.
9. There is no claim for absolute privilege by the defendants. Their claim is only of qualified privilege. In Surendra Nath v. Rageshwari Pd., (AIR 1961 Pat. 164) Raj Kishore Prasad, J. has made a detailed study of the two kinds of privileges available as a defence in a suit for damages on the ground of defamation. Absolute privilege is available to Judge, Advocate and witnesses in the course of legal proceedings, members of Legislatures in the course of their debates, and also for communication between officers of the State in relation to State affairs.
10. In the case of qualified privilege it is for the person charged with defamation to prove that he made the statement having reasonable grounds for making such statements. The words of Parke B. in Toogood v. Spyrang, (1834) I Cr. M. and Rule 181 which read as follows was also quoted in the judgment in Surendra Natha's case.
"The statement is protected if 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. If fairly warranted by any reasonable occasion or exigency, and honestly made such communications are protected for the common convenience and welfare of the society; and the law has not restricted the right to make them within any narrow limits."
11. If the occasion is privileged and the statement is made honestly and without malice the defendants are exempted from liability. In the present case admittedly there was no ill will between the parties to persuade the first defendant to make the impugned statement. Therefore the only question is whether the occasion was privileged. According to the learned counsel for the appellant the press conference was convened to explain about the proposed strike by the Government Hospital workers and there was no necessity to speak about the misappropriation in the Medical College Hospital. The learned counsel for the respondents, on the other hand, submitted that the first defendant was a member of the Medical College Hospital Administrative Council and State Secretary of the Government Hospital Workers' Union. In fact reports about the misappropriation had come in other papers also without showing the name of the guilty persons. Therefore the first defendant had a duty to answer the question put by the press reporters. This duty is legal, social and moral as stated in Toogood's case.
12. In Dr. P.H. Daniel v. Krishna Iyyer, (1982 KLT 1) also the dispute related to a speech by a union leader in their annual conference and reported in their magazine called "Plantation Worker". It was alleged that the speech was defamatory to the plaintiff the owner of the plantation and whose workers were the members of the union. Kochu Thommen, J. speaking for the Division Bench stated as follows:
"The law of defamation seeks to hold the balance equitably between the rights of the individual and the interest of the society. In so doing the scale tilts in favour of communication which the interest of society demands."
13. In R. Rajagopal v. State of T.N., (1994 (6) SCC 632) Jeevan Reddy, J. noted the role of public figures and stated as follows:
"It has been held that as a class the public figures have, as the public officials have, access to mass media communication both to influence the policy and to counter-criticism of their views and activities. On this basis, it has been held that the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events."
14. In the Law of Torts by Ratanlal and Dhirajlal Page 254 it is stated with reference to qualified privilege as follows:
"The law presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered as a privileged occasion. If a communication is privileged it will cover all incidental publications which are made in normal course of business such as dictation to a typist .......lack of honest belief is destructive of privilege and reckless publication of defamatory matter without considering or caring whether it be true or not comes in the same category, but if the defendant honestly believed in the truth of his allegations, the protection of privilege is not lost simply because he leaped to his conclusions on inadequate material or because he believed in the truth of the allegations on account of gross or unreasoning prejudice, although these factors along with other material may be used for holding that, the dominant motive in publishing the statement was personal spite or some other improper motive taking away the protection of privilege in spite of the defendant's belief in the truth of the allegations."
In the light of the above legal principles and in the light of the fact that the first defendant was speaking in his capacity as a leader of a union an as a member of the governing council of the hospital and was emphasising the inaction of the Government in not enquiring into the charge of misappropriation of Government fund and did not state that the plaintiff had committed the misappropriation I am of the opinion that the first defendant is entitled to the qualified privilege and defendants 2 to 4 are also liable to be exempted from any liability for payment of damage to the plaintiff. The second appeal is thus devoid of merit and the same is dismissed without any order as to costs.