Mohamad Noor, J.:— This is an appeal by defendant 4 of a suit instituted by the plaintiff-respondent for recovery of damages for wrongful dismissal. The plaintiff was a travelling ticket examiner under the B.N.W Bailway. It appears that an application purporting to be on behalf of the residents of Digwara in the district of Saran, was submitted to the authorities of the railway complaining against the conduct of the plaintiff. The main allegation against him was that he was carrying on an intrigue with a certain lady doctor who was residing in Digwara Bazar and that his conduct gave annoyance to the residents of the village. This petition was in due course sent for inquiry to defendant 4 who was the Traffic Inspector under the railway. He submitted a report in which he referred to some previous dereliction of duty by the plaintiff and reported that the allegation made against him in the petition was true, adding that on the night of 11th March 1931, he had himself seen the plaintiff getting down from a train at Digwara and had a talk with him, thereby supporting the allegation in the petition of his paying visits to Digwara. The Traffic Superintendent after making some inquiry reported for the dismissal of the plaintiff from the railway service and thereupon the Traffic Manager of the Railway dismissed him with effect from 26th March 1931. The plaintiff thereupon after serving notices brought the present suit for recovery of damages amounting to Rs. 900 for loss of service by wrongful dismissal. His suit was against (1) the Railway Company, (2) the Traffic Manager of the Railway Company, (3) the Traffic Superintendent and (4) the appellant who was Traffic Inspector.
2. The trial Court held the dismissal to be wrong and that the report of defendant 4 about the plaintiff being at Digwara on the night of 11th March 1931, and the charge of his intrigue with the lady doctor were false, and that on the night of 11th March 1931, he was working on the section between Sonepur and Muzafferpur. It therefore gave the plaintiff a decree for Rs. 25 only, being his one month's salary to which he held him entitled to in lieu of notice. It dismissed the suit against the remaining defendants and ordered the parties to bear their own costs. The plaintiff appealed, and the lower Appellate Court, over and above the decree granted by the trial Court against the company, has given the plaintiff a decree for damages amounting to Rs. 150 with costs in both the Courts against defendant 4, the appellant, who has preferred this second appeal. The main points urged on behalf of the appellant are that no separate decree for wrongful dismissal of the plaintiff could be passed against the appellant nor could a decree be passed for libel contained in the report as the occasion when the appellant is said to have libelled the plaintiff was privileged. The first branch of the argument of the learned advocate is based upon the principle of the law of England that a judgment against the principal bars an action against the servant. He relied upon the decision in (1872) 7 CP 5471 and contended that though by 25 & 26 Geo. V. c. 30, the law in England has been changed by statute, the Common law of England still applies to this country as a principle of justice, equity and good conscience till the Legislature of this country intervenes. He relied upon the case in 3 Cal 353.2
3. Now the plaintiff in this case has two grievances. One is that he was wrongfully dismissed and the other is that he was libelled by the appellant in his report submitted to the Traffic Manager. The two stand upon two different footings. The measures of damages for the two wrongs and the liability for them are separate and different. The defendants cannot be said to be joint tort-feasors either in respect of the wrongful dismissal or in respect of the libel Persons are said to be joint tort-feasors when their respective shares in the commission of the tort are done in the furtherance of a common design: Clerk and Lindsell on Tort, p. 59. In this case there is no allegation that the defendants had a common design to dismiss the plaintiff or to libel him. I shall therefore deal with them separately. Regarding the first, the gist of the wrong is the dismissal of the plaintiff without just and lawful cause. The liability is of the railway company and of the Traffic Manager, defendant 2. Defendant 4 is also liable for bringing; about that dismissal. Now it having been found by the trial Court that the plaintiff was dismissed from a permanent service without notice, it was for the defendants, who are liable for this wrong, to show that the dismissal was for just and lawful cause. The Court has found that the charge against the plaintiff was not true and therefore the dismissal was wrong. The measure of damages in such a case independent of damages for the loss of character is the amount of wages which the plaintiff was prevented from earning by reason of his wrongful dismissal: Halsbury's Laws of England, Vol. 22, page 167. The plaintiff's case was that at the time of the employment he was promised a lifelong service if he worked honestly and diligently, and claimed damages for 29 years' service at the rate of Rs. 25 per month, relinquishing out of it Rs. 7801. The trial Court has not specifically found any such promise, not having assumed it, has held that the plaintiff was liable to be dismissed on one month's notice and has allowed him one month's salary in lieu of it. The learned Subordinate Judge has allowed six months' salary, without finding that this was the amount which the plaintiff lost on account of the wrongful dismissal. He has given a decree for this amount for what he calls loss of character which is independent of the wrongful dismissal. The adequacy or otherwise of the damages awarded to the plaintiff by the trial Court is not before me nor is there any finding or material for finding the loss of wages to the plaintiff on account of the wrongful dismissal, and whether it was more than one month's salary. The only question before me in this connexion is whether the plaintiff, having obtained damages to which according to the trial Court he was entitled, can get a separate damages from the appellant. In my opinion, though the principle contended for by the learned advocate for the appellant is not applicable, the plaintiff is not entitled to it. The principle that an action against the principal bars an action against the servant cannot be applied to this case, firstly, because there are not two actions but only one in which both the master and the servant have been impleaded and, secondly, because the liability of the appellant is for his bringing about the dismissal. The plaintiff had two causes of action: one against the railway for dismissing him without just and lawful cause and another against the appellant for being responsible for that dismissal. The principle contended for by the learned advocate is applicable in I cases in which a wrong act is done by a servant for which the master is also liable and in cases of joint tort-feasors, and not in cases where both the master and the servant commit two separate wrongful acts. But the plaintiff having been awarded: damages on the basis of loss of wages to: which he was held to be entitled, no separate damages can be awarded against the appellant in the absence of any finding that the damage awarded by the trial Court for loss of service was insufficient.
4. Next comes the consideration of the loss, of character of the plaintiff on account of the libel contained in the appellant's report to his superior officer which, as I have said, stands upon a different footing, and for this the liability is mainly of the appellant. The railway is liable indirectly, as the libel was published by the appellant in the course of the employment. The railway through its agent, defendant 2, the Traffic Manager, only accepted the report of the appellant but did not itself libel the plaintiff. Accepting a libellous statement to be true is not actionable. The order of dismissal is not on the record and there is nothing to show that there is any defamatory word in that order. There is no allegation in this case that the railway through its officer did anything to libel the plaintiff. Now it has been contended by Mr. S.N Bose that the appellant was protected by qualified privilege. The principal law in this respect is thus stated in Gatley on Libel and Slander (page 215):
The principle upon which the law of qualified privilege rests is this: that where words are published which are both false and defamatory, the law presumes malice on the part of the person who publishes them. The publication may however take place under circumstances which create a qualified privilege. If so, the presumption of malice is rebutted by the privilege, and in an action for libel or slander founded on a publication upon a privileged occasion the plaintiff has to prove express malice on the part of the person responsible for the publication. The effect of proving express malice is sometimes spoken of as defeating the privilege. This is a convenient expression and conveys in a single word a correct idea of what has really happened, namely that although the occasion remains a privileged occasion, the privilege afforded by the occasion ceases to be an effective weapon of defence. The reason for this is obvious. Qualified privilege is a defence only to the extent that it throws on the plaintiff the burden of proving express malice. Directly the plaintiff succeeds in doing this, the defence vanishes, and it becomes immaterial that the publication was on a privileged occasion.
5. The libel, the subject-matter of the suit, is contained in the report (Ex. J) submitted by the appellant to the Traffic Manager on 31st March 1931. The question for consideration is whether this report had a qualified privilege, and secondly whether the appellant abused the occasion for some ulterior motive; or, in other words, whether the report was actuated by malice. Now, as to the privilege, it is an admitted fact that the appellant did not send the report of his own accord. A petition purporting to have been signed by numerous residents of Digwara was sent to the railway authorities and the appellant was asked to enquire and report. The report was submitted to the superior officer and no one was told anything about it. Therefore there is no question that on account of the position which the appellant held he was bound to submit report to his superior officers and the occasion was undoubtedly privileged. Therefore law will not presume malice, and unless malice is proved it cannot be said that the appellant abused the occasion for ulterior motive. Gatley on Libel at page 313 says:
Where a defence of qualified privilege is set up, it is for the defendant to allege and prove all such facts and circumstances as are necessary to bring the words complained of within the privilege… The onus lies on the plaintiff to prove malice and not on the defendant to prove his bona fides or absence of malice, for where the occasion is privileged, the bona fides of the defendant is always presumed. ‘Once there is proof that the defendant published the defamatory matter on a privileged occasion, it will be assumed he did so honestly believing his statement to be true, unless there is some evidence, the onus of giving which lies on the plaintiff, from which a contrary inference may he drawn.’ The moment the Judge rules that the occasion is privileged, the burden of showing that the defendant did not act in respect of the reason of the privilege, but for some other and indirect reason, is thrown upon the plaintiff.
6. At page 691 he says:
The burden of proof lies upon the plaintiff to show that the defendant was actuated by the malice where the occasion on which the words were published is one of qualified privilege.
7. Now, the report has been found to be false and in one particular, namely that the appellant had himself seen the plaintiff at Digwara on the night of 11th March 1931, it was false to the knowledge of the appellant. I shall deal with this finding later. But in my opinion this is not enough to entitle the plaintiff to get damages, unless express malice is proved. Now the learned Munsif has found that the plaintiff's allegation of malice against the appellant was unfounded. The learned Subordinate Judge has not reversed this finding. No doubt, in his judgment he mentions that the appellant acted maliciously, but it is too vague and it is clear from the judgment that the malice referred to by him is what is termed “malice in law,” that is, a malice which law presumes when a man defames another. Ordinarily, malice will be presumed and need not be expressly proved; but when the libel is published at a qualified privileged occasion the law will not presume malice and it is for the plaintiff to establish it. The learned advocate for the respondent has, however, contended that from the fact that the appellant made a statement false to his knowledge about the visit of the plaintiff to Digwara on the night of 11th March 1931, it must be held that he was actuated by malice. He has relied upon a decision of the Madras High Court in 24 MLJ 83 for the proposition that when a defamatory statement is false to the knowledge of the defendant the plaintiff is entitled to damages. It, however, appears from the judgment of Miller J. in that case that malice was proved. The learned advocate relied upon Ayyer's Law of Tort at pp. 299 and 300 and contended that the untruth of the statement to the knowledge of the defendant is conclusive proof of malice. The same thing is mentioned in Salmond at p. 428. The question whether the occasion was privileged is one of law, but whether there was malice is one of fact. Salmond in his Law of Tort at page 428 says:
The existence of malice is a question of fact for the jury, but the burden of proof lies upon the plaintiff; and the Judge has to be satisfied that there is some reasonable evidence of malice to go to the jury. On a plea of privilege, it is not for the defendant to prove that he used his privilege honestly and for its proper purpose; it is for the plaintiff to prove that the privilege has been maliciously abused.
8. It is true from the fact that the accusation was false to the knowledge of the defendant. A Court of fact may hold that there was malice. It is not open to me to reverse the finding of the fact arrived at by the learned Munsif which was not challenged by either party before the learned Subordinate Judge. Though on the one hand, it may be argued that having found that the statement in the report of the appellant that the plaintiff was seen at Digwara on the night of 11th March 1931, the Court ought to have held that the appellant was actuated by malice; on the other hand, it may be argued that the fact that the appellant had no malice against the plaintiff ought to have weighed with the learned Munsif in deciding that the report was true. I must act on the finding as it stands. If the finding that the accusation of the appellant was false is conclusive the finding that the appellant had no malice is also conclusive. I cannot accept the one and reject the other, and come to my own finding about malice. Had it been open to me to enter into facts it was likely that I might have come to a different conclusion about the falsity of the appellant's accusation. The judgment of the learned Munsif is not free from defect. At places there are indications of want of common knowledge, especially when he has commented upon the fact that the permanent employees of the railway are required to contribute towards the Provident Fund. Unfortunately all the evidence on the point for some reason or other has not been considered by the learned Munsif. The plaintiff refuted the statement of the appellant about his being at Digwara on 11th March by deposing that on that night he was working on the Sonepur-Samastipore line and in support of it produced some papers alleged to have been signed or initialled by the various station masters. None of them was however examined as a witness.
9. The story is based upon the testimony of the plaintiff alone. He himself proved the initials or signatures of the station masters. The absence of the station masters from the witness-box is very suspicious. What the learned Subordinate Judge has called unimpeachable evidence is the testimony of the plaintiff himself and of no one else. A little experience would have demanded caution in accepting the evidence of the plaintiff. Then the fact that one of the tickets for which the plaintiff alleged to have realized excess fare was of a different train is also suspicious. The reports of the Traffic Superintendent (Ex. D-2), who Could not be examined as he was absent in England, states that when he held the enquiry one of the Station Masters concerned, Mr. Young, had told him that his signature on the plaintiff's book was forged. This previous record of service of the plaintiff has not been clear. The learned Munsif has commented upon the fact that the defendant did not call the Station Masters to disprove the statement of the plaintiff. It was unfair to expect the appellant to call as his witnesses those persons who were said to have signed the plaintiff's books in token of his having worked on Sonepore-Samastipore line on the night in question. Then this is in effect expecting the appellant to prove the truth of his allegation. This was not necessary when malice was not proved. In (1891) AC 734 where the jury were told that the existence of privilege was contingent upon whether in their opinion the defendant honestly believed his volunteered communication to be true, and that the burden of proof to that effect was upon him, it was held that this was misdirection, and the verdict in favour of the plaintiff was set aside. I have referred to these facts not with a view to set aside the finding of the Munsif but to show that if the facts are re-opened there are other aspects of the case to be considered. The learned advocate for the respondent pointed out that the finding of the learned Munsif about the falsity of the charges was not questioned before the learned Subordinate Judge. This is so, but it does not follow that the appellant admitted that his report was false. The lawyers who appeared might have thought that legal argument would be sufficient in the case.
10. In my opinion, the law is that when there is a qualified privilege the defendant is not required to substantiate the truth of the accusation unless the plaintiff proves malice and the decree against the appellant cannot be supported. I set aside the decree of the learned Subordinate Judge and restore that of the learned Munsif. As it has been found that the accusation against the plaintiff was false, I direct that the parties bear their own costs in this Court and the Court of Appeal below. Leave for a Letters Patent Appeal is asked for and is allowed.
Letters Patent Appeal
JUDGMENT.
11. This appeal comes up before us on the contention that this is a suit for defamation, but it is not a suit for defamation but a suit for wrongful dismissal, and this is clear from the pleadings. It is obvious that the appeal cannot be maintained if the suit is based upon wrongful dismissal and not on defamation. The appeal and the suit are dismissed against the respondent-defendant 4 with costs throughout.
K.S/R.K
12. Order accordingly.