IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 AS.No. 32 of 2000(A) ---------------------------------- OS.120/1995 of SUB COURT,THODUPUZHA .................... APPELLANT(S): DEFENDANT ----------------------------------------- V.MOHANKUMAR, GENERAL SECRETARY, WORKERS' CONGRESS, MUNNAR 685 612. BY ADVS. SRI.P.RAMAKRISHNAN SRI.P.RAMAKRISHNAN RESPONDENT(S): PLAINTIFF ------------------------------------------ JOHN VICTOR, MANAGER, GUDERAK ESTATE (TATA TEA LTD.) MUNNAR. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE BY ADV. SRI.A.KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.266 OF 2000 IN A.S.NO.32 OF 2000 DISMISSED 19.7.2010 SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ M.N. KRISHNAN, J. ........................................... A.S.NO.32 OF 2000 ............................................. Dated this the 19th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Thodupuzha in O.S.No.120/1995. The suit is for damages on account of the defamation alleged to be caused to the plaintiff by the defendant. The trial court, on a consideration of the materials, granted a decree in favour of the plaintiff and it is against that decision, the appeal is preferred. The brief facts necessary for the disposal of the appeal are stated as follows: 2. The plaintiff was the Manager of Guderale Estate belonging to the Tata Tea Limited, Munnar. The defendant purporting to be the General Secretary of the Workers' Congress had sent a letter dated 31.1.1995 to the plaintiff raising wild allegations against the plaintiff and he had sent a copy of the letter to the Superior as well as the Deputy Labour Officer and the contents of the letter is per se defamatory and there has been publication. It has affected his promotion, lowered his image before the public : 2 : A.S.NO.32 OF 2000 and therefore, the suit for damages on account of the defamation caused. 3. The defendant, on the other hand, would contend that it is true that he had sent a letter to the plaintiff but it was never intended to malign or defame, but it was done with the intention of bringing to his notice about the activities done by the union people. It is also contended that there was no malice and therefore, the suit for defamation will not lie. 4. Defamation is publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person. The essential ingredients to be established are: (1) malice (2) they must be defamatory (3) the words must have a reference to the plaintiff and (4) they must be published. It becomes malice when a thing is done without any lawful justification or excuse. Malice means nothing more than doing an act intentionally without any lawful justification or excuse. 5. I will refer to the alleged defamatory statement : 3 : A.S.NO.32 OF 2000 which is contained in Ext.A1 letter addressed to the plaintiff by the defendant with a copy to the General Manager and Deputy Labour Officer Munnar. “It is brought to our notice that, certain so-called recognised Union Convenors are collecting money from temporaries, claiming that they will be enlisted before you leave the Estate and they have to pay Rs.5,000/= each that is to be given to you for the same”. A reading of Ext.A1 letter certainly would reveal that there was a feeling of grievance which required to be ventilated and therefore the authority concerned was informed about the activities going on within the premises by some of the officers of the union projected that they are collecting money stating that amount has to be given to the Manager. 6. The learned counsel for the appellant would submit before me that some form of dispute was pending before the Labour Officer and the General Manager was also informed about these developments by sending a copy of the letter. It has to be remembered that unions are expected to project the interest of the workers. Some times they are misinformed and sometimes they behave in a fashion which : 4 : A.S.NO.32 OF 2000 exceeds their power. But in such type of matters it is the paramount duty to find whether there was a specific intention to malign a particular person and to bring home to the mind of others that he is not a proper person to hold the post or he is a corrupt person and therefore his image is brought down before the general public. A reading of Ext.A1 would show that the intention is not to malign the officer as such but the intention is to bring to the notice of the officer that under the pretext of bribing him some union people are trying to collect amount promising that illegible persons will be legitimately appointed. We cannot say that such a communication is per se defamatory or is done with an intention to malign the plaintiff. It is true that a copy of the letter had been forwarded to the General Manager as well as to the Labour Officer. It is submitted that the matter was pending before the Labour Officer who is the ultimate controller of the whole matter and therefore one cannot find fault by sending copy of the letters. 7. When there is a legitimate grievance and name of some of the persons are specifically pointed out which : 5 : A.S.NO.32 OF 2000 according to the union is incorrect on account of the norms and rules, one cannot hold that the purport of sending Ext.A1 was to malign the plaintiff. The learned Subordinate Judge has proceeded as if there is no definition in civil law. The learned Subordinate Judge holds that PW3, a Superior officer, just because of the receipt of Ext.A1 thought that it is not proper to recommend the name of the plaintiff for promotion. 8. The fundamental ingredient namely malice is not proved in this case and I do not find that there was any calculated attempt to malign this man. Whatever was there in the suspicious mind of the union leader was projected in the form of a letter. When it is so it has to be held that there is no defamation as such. Normally we find that publication is done through so many medias when the purport will be to injure a person rather than to redress the grievance. Here only to send a copy of the letter to the concerned authorities and not to anybody else. That also shows that there was no intention to defame the person though it is stated in the letter that amount is collected stating that : 6 : A.S.NO.32 OF 2000 money is received for the purpose of paying it to the plaintiff. So the principal ingredient for the defamation is lacking. The learned counsel for the plaintiff has cited two decisions before me which are rendered on the criminal side wherein the question of good faith was considered. Good faith would arise when it is found that it is per se defamatory. Here it is not per se defamatory at all because the essence namely malice and the intention is not established. Therefore I hold that the learned Subordinate Judge has erred in arriving at a decision and therefore the judgment and decree has to be set aside and the suit is to be dismissed. In the result, the appeal is allowed and the judgment and decree of the trial court are set aside and the suit O.S.No.120/1995 is dismissed. Parties are directed to bear their respective costs in the suit as well as in the appeal. M.N. KRISHNAN, JUDGE. cl : 7 : A.S.NO.32 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.32 OF 2000 ` ............................................. 19th day of July, 2010. J U D G M E N T