1988 C I (PLP)

The plaintiff had brought a suit for the recovery of a sum of Rs.5,00,000 as damages for defamation on the allegation that the contents of the above notices were false, malicious, defamatory and without justification because the sub‑contract in question was not awarded to him but to the Canbrit Group which he represented. Dorab Patel, J. , (as he then was) who tried the above suit recorded the finding that the above publication was malicious: and that the defendant had deliberately taking advantage of qualified privilege of judicial proceedings attempted to defame and humiliate the plaintiff by bringing in certain other personal allegations against the plaintiff. It was held that defendant's conduct made them liable for aggravated damages. He awarded a sum of Rs.13,000 against the claim of Rs.5,00,

000. Mr. J. H . Rahimtoola has also referred to inter alia, paras. 42, 43 and 44 from the alsbury's Laws of England Vol. '? 84th edition, which read as follows: "

42. Meaning of 'defamatory statement'. The essence of a defamatory statement is its tendency to injure the reputation of another person. There is no complete or comprehensive definition of what constitutes a defamatory statement, since the word 'defamatory' is nowhere precisely defined. Generally speaking a statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right thinking members of society generally or if it exposes him to public hatred, contempt or ridicule or if it causes him to be shunned or avoided. A person's reputation is not confined to his general character and standing but extends to his trade business or profession, and words will be defamatory if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade, business or professional activity." "

43. The test of what is defamatory. In deciding whether or not a statement is defamatory, the Court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand it in a defamatory sense. Words which tend to diminish the esteem in which a man is held by the criminal classes or by persons out of sympathy with the law will not support an action, for that is not a standard which the Court can recognise. The fact that the person to whom the words were published did not believe them to be true is irrelevant and does not affect the right of action, although it may affect the question of damages." "

44. Meaning of the words. Before it is possible to determine whether or not particular words bear a defamatory meaning, it is necessary to determine their meaning. Words may have not only a literal meaning but also an inferential meaning which goes beyond the literal meaning but is inherent in them and may depend upon the context in which they were published, the literal meaning and any inferential meaning are known as the natural and ordinary meaning. The words may also have a secondary or extended meaning which depends upon knowledge of special or extrinsic facts. The secondary or extended meaning is known as the innuendo or true or legal innuendo." S. On the other hand Mr. Waheed Farooqui, learned counsel for the defendants has submitted that the defendants were entitled to issue public notice in order to protect their interest; and that such public notices are issued by the employers; and that the mistake in the Urdu version was committed by the Advertising Agency which mistake was rectified by tendering apology and correcting the mistake through the public notice.

9. From the evidence on record, it is evident that prior to the plaintiff's resignation in 1973 there was only one case of resignation, namely, Qaiser Alam and the other cases referred to by the plaintiff in his written statement and deposition of leaving the defendant No. '?'s Corporation service relate to the period subsequent to the plaintiff above resignation in 1973. In the above cases the defendant No. 2's Corporation had not issued any similar public notices. It has also come on record that the plaintiff had no financial dealings with the public nor there was any practice of publication of the notices of the nature obtaining in the defendant No.2's Corporation as the defendants are unable to point out any case in which similar notice was issued. It can, therefore, be urged by the plaintiff that he was singled out and the notice was published in his case alone. This lead us to the question whether the English version either per se or inferentially tends to defame the plaintiff or whether the defendant No. 2 had any justification to publish the above notice.

10. It may be observed that the plea taken by the plaintiff in the plaint is that in one of the interviews which the plaintiff had with the defendant No. 1 for revising his salary on the ground that the Deputy Manager was also getting the same salary he lost temper and threatened him to throw him out from service. The above plea is belied by the documentary evidence on record which indicates that factually the defendant No. 1 supported the plaintiff's case for the revision of his salary and it was the Government of Pakistan which had turned down the proposal. Additionally as per anvertments in the plaint it was the defendant No. 1 who had approached the plaintiff for rejoining the service in 1973 and in fact supported the plaintiff in the Selection Committee alongwith the other members. If he was adversely dispose towards the plaintiff there was no reason for him to get him re‑employed. There is also further evidence on record to negate any mala fide on the part of the defendant No.

1. In this regard, it may be observed that the plaintiff was charge‑sheeted on 25‑4‑1973 (Exh. 22). In para. 1 of the charge‑sheet the following averments were made:‑‑ "

1. That on 29‑9‑1972 Mr. A.A. Malik submitted an application to the Chairman of the Corporation making certain irresponsible allegations against the conduct of the Corporation's affairs involving also the Secretary of the Corporation and suggesting that he deserved a sack rather than a promotion. A copy of the application is attached herewith. In the course of police investigations, Mr. A.A.Malik produced certain documents, including a photostat copy of the draft of this application which is also attached. It will be noticed that this draft was prepared by Captain Benaras Khan in his handwriting. In doing so, Captain Benaras Khan exceeded the limits of decency and normal office decorum which renders him unfit for holding any office of responsibility in or under the Corporation." The plaintiff in para. 2 of his reply (Exh.P‑116), dated 2‑5‑1973 in response to the above charge‑sheet has stated as follows: "

2. I deny having drafted the letter dated 29th November, 1972, written by Mr. A.A.Malik to the Chairman N.S.C. The style in which Mr. Malik's letter has been‑ written is completely different from my way of writing which can be verified from the notes and letters written by me which are held in the files of Engineering & Workshop Departments. The fact of the matter is that I came across a copy of the letter with some one and copied it in my hand. It appears that some one mischievously removed the handwritten copy from ray table and got photostat copies made thereof in order to make you believe that I was the author of this letter." It may be noticed that in the above quoted para the plaintiff had admitted the factum that the copy of the draft containing objectionable matter referred to in para. 1 of the charge‑sheet seized of by the police from A.A. Malik, an Ex‑employee of the Corporartion, was in his handwriting but he has given an explanation which prima facie seems to be untenable. It is, therefore, evident that the charge against the plaintiff was not bogus or fictitious. He, therefore, could have been proceeded with in an inquiry but he tendered resignation which could have been declined by the defendant No. l but was accepted A by him on the advice of the legal advisor. I am unable to see as to how the defendant No. 1 had any personal mala fide reason or motive to defame the plaintiff. Though in the case of other employees no such notice was issued but I am inclined to hold that keeping in view the above background, the defendants were justified in issuing the public notice for the protection and furtherance of the defendant No.2's Corporation interest. In this regard reference may be made to para. 555 from the Common Law Library, Gatley on Libel and Slander 7th edition, which reads as follows: "

555. Principle. A defamatory statement published for the fair and reasonable protection or furtherance of the defendant's own interests is privileged, but such privilege will be rebutted if the statement was published maliciously. In Toogood v . Sprying, Parke B . includes among statements which are prima facie privileged any statement which is 'fairly made by a person in the conduct of his own affairs, in matters where his own interest is concerned'. In Shaw v. Morgan, Lord Young said that 'if the statement is made in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice and he is only answereable if malice be shown to have existed in fact. 'Anyone said Lord Denman C.J. in Tuson v. Evans in the transaction of business with another, has a right to use language bona fide which is relevant to that business and which a due regard to his own interest makes necessary, even though it should directly, or by its consequences, be injurious or painful to another; and this is the principle on which privileged communication rests." Reference may also be made to the case of the Capital and Counties Bank Ltd. v. George Henry & Sons 1882 A C Vol. VII 741, in which the facts were that H & sons were in the habit of receiving, in payment from their customers, cheques on various branches of a bank, which the bank cashed for the convenience of H & Sons at a particular branch. Having had a squabble with the Manager of that branch, H & Sons sent a printed circular to a large number of their customers (who knew nothing of the squabble) 'H & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the' bank. The circular became known to other persons; there was a run on the bank and loss inflicted. The bank having brought an action against H & Sons for the libel, with an innuendo that the circular imputed insolvency: ‑‑Held. affirming) the decision of the Court of Appeal (Lord Penzance dissenting) that in their natural meaning the words were not libellous that the inference suggested by the innuendo was not the inference which reasonable persons would draw; that the onus lay on the bank to show that the circular had a libellous tendency; that the evidence consisting of the circumstances attending the publication, failed to show it; that there was no case to go to the Jury; and that the defendants were entitled to judgment.

11. The above para from the Common Law Library Treatise one defamation and libel and the above cited case supports the defendants. I am inclined to hold that an employer is entitled to inform the public at large through a public notice that a particular employee is no longer in his service and that no one should deal with him on his behalf (i.e. employer's behalf) in order to protect his interest. Such a publication will be privileged and protected not amenable to an action for defamation. I am also inclined to hold that it is not obligatory on the part of an employer to prove that in the past in other cases` of the employees, he had published similar notice. The Karachi case relied upon Mr. J.H. Rahimtoola of 1972 is distinguishable for the reason that there were two misstatements in the public notice, namely, that though the sub‑contract was entered into with the Group of Companies known as "Canbrit Group" but it was stated that the same was entered into with the plaintiff; and secondly, though it was within the knowledge of defendant that the plaintiff was the President and Managing Director of the said Group of Companies but in the notice it was stated that Mr. H.R.H. Lind said to be of the Canbrit Group. I am, therefore, of the view that the English version of the notice did not tend to lower the plaintiff in the estimation of the right thinking members of the society generally and/or it did not expose the plaintiff to public hatred, contempt or ridicule or caused him to be shunned. This has become a general practice in a complexed modern society to issue a notice of the nature contained in the English Newspapers upon the acceptance of resignation of an employee. I am unable to agree with the learned counsel for the plaintiff that the English version of the notice in dispute has inferential meaning to the effect that the public at large was informed that the plaintiff was not a person with whom anybody might have any dealing. By the impugned notice the public has been conveyed that the plaintiff was no longer in the service of the defendant No. 2 Corporation and) that nobody should deal with him on behalf of the Corporation. The ocular evidence produced by the plaintiff on the above aspect, namely of P.W.2 Muhammad Wasiullah Khan, P.W. 3 Malik Sultan Mehmoodl and P.W. 4 French Desouza does not inspire any confidence. It is, interesting to note that though they had read the notice in the Urdu Newspapers but all the three had not read the correction and apology published in the same Newspapers. The above witnesses, upon their own showing, were on friendly terms with the plaintiff. No implicit reliance can be placed on their evidence. In any case, the question for determination in issue is, what the notice had conveyed or would have conveyed to the right thinking people of the society generally and not what was allegedly understood by the three friends acquaintants of the plaintiff. I am unable to infer from the content. of the above notice that the same intended to convey to the public that the plaintiff was not a fit person with whom any one should have any dealing. The second limb of the controversy is the publication of the notice in the Urdu Newspapers which has different version as to the factum namely, instead of stating that the plaintiff was no longer in the service it was stated that his services were dispensed with. The case of the defendants is that they had passed on English version to their advertisers M/s. United Advertisers Karachi, hereinafter referred to as the Advertising Agency, which while getting it translated into Urdu committed the above error and upon the service of the notice they immediately published correction and unconditional apology, which was sufficient. On the other hand the case of the plaintiff is that the advertising agency was acting as agent of the defendants and, therefore, the defendants are liable for the above mistake on the part of their agent. I may observe that on the above question the plaintiff examined P.W.2 Alim Munshi, Secretary of the Defendant No. 2 Corporation, who had produced the office copy of the draft of the notice Exh.10/1, sent to the Director, Department of Films and Publication, Government of Pakistan, which indicates that defendant No. 2 had only forwarded English version and not any Urdu version. I may here point out that there seems to be some controversy on the question, whether defendant No. 2 had forwarded the draft notice for publication directly to the advertising agency or to the Director, Department of Films and Publication, Government of Pakistan. Though in the correspondence preceding to the filing of the suit as well as in para. 9 of the written statement the case of the defendants was that the mistake was on the part of their advertising agency but Mr. Waheed Farooqi learned counsel for the defendants inter alia on the basis of the evidence of P.W. 2 Alim Munshi attempted to argue that factually the draft notice was sent to the Director, Department of Films and Publication, Government of Pakistan, which forwarded the same to the advertising agency. In my view, the defendants cannot be allowed to urge contrary to the pleading. The plea of the defendants that there was a mistake in the Urdu version has been proved by the above testimony of P.W.2 as well by evidence of P.W.5 Abdul Qadir, Media Manager of the advertising agency and also the factum that the advertising agency published the apology in Urdu newspapers inter alia in Urdu Jang, dated 14‑6‑1973 Exh.9/1, reproduced hereinabove in para. 6.

12. Having dealt with the factual aspect of the above controversy, I may revert to the legal aspect. In this behalf the first question, which requires consideration is, as to whether the Urdu version as published did tend to lower the plaintiff in the estimation of the right thinking members of the society generally. If the plaintiff's services would have been dispensed with factually the publication of the Urdu version as published would not have been objectionable for the reasons already recorded by me hereinabove while dealing with the English version of the notice but since the Urdu version as published is factually incorrect, the same could tend to lower the plaintiff in the estimation of right thinking members of the society generally as the contents thereof could convey their inferential meaning that because of certain lapses on the part of the plaintiff his services were dispensed with by the defendant No. 2 Corporation but I ma observe that the publication of the Urdu version is not on account of any malice but due to mistake on the part of the advertising agency) as held by me hereinabove. This leads us to further question, whether the publication of correction and apology by the advertising agency was sufficient to vindicate the honour of the plaintiff. In this regard, it may be pertinent to point out that the plaintiff served his first legal notice, dated 26‑5‑1973, whereas the apology was published on 14‑6‑1973 by the advertising agency referred to hereinabove in para.

6. It has been vehemently urged by Mr. J. H. Rahimtoola, learned counsel for the plaintiff that the apology should have been published by the defendants in addition to their advertising agent and, therefore, the same was not enough to vindicate the plaintiff's honour. In my view, if the advertising agency was acting as the agent. on behalf of defendant No. 2 Corporation, the publication of correction and apology by them could be construed as on behalf of the defendant No. 2 Corporation as well. However, the question arises, whether in spite of the publication of the correction and apology the plaintif, was justified to file the above suit. In this behalf reference may he made to a passage from Salmond on Torts, Fifteenth Edition at page 197; which read as follows: "If the offer of amends is accepted: If the offer is accepted and duly performed, no proceedings for libel or slander shall be taken or continued by the party aggrieved against the person making the offer. This, however, is without prejudice to any cause of action against any other person jointly responsible for that publication. Any question as to the steps to be taken in fulfilment of .the offer as, so accepted shall in default of agreement be determined by the High Court, whose decision shall be final. Whether or not such proceedings are taken, the High Court has power, on the application of the party aggrieved, to order the person making the offer to pay to the party aggrieved costs 'on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question."

13. In the instant case, there has not been any agreement between the parties on the question of "offer of amends and its acceptance" and, therefore, the principle of law enunciated in the above quoted passage is not attracted to, but the publication of correction and apology and the absence of any malice will be relevant factors. In mitigating the quantum of damages. Though the publication of incorrect Urdu version of the notice was on account of the mistake on the part of the advertising agency, but defendant No. 2 Corporation as the principal with the advertising agency are jointly and severally liable to the plaintiff. In this regard reference may be made to para. 68 from the Halsbury's Laws of England 4th Edition Vol. 28, which reads as follows:‑‑ "68. . Publication by employees or agent in the course of employment. An employer or principal is civilly liable for the act of publication by his employee if done in the course of his employment and within the scope of his authority or employment even where he has had no actual authority to write or publish a libel. If the employee or agent writes and publishes statements defamatory of the plaintiff which he knows to be untrue he will be held to be malicious and the employer or principal will be vicariously liable for that malice. This doctrine is as applicable to incorporated companies as to individuals." I may also observe that the factum that the publication of a defamatory matter was on account of a mistake is no defence, though it may be a relevant factor in determining the quantum of damages. However, there seems to be no case against defendant No. 1 personally. The factum that he happened to be the Managing Director does not render him personally liable for the mistake on the part of the advertising agency as the latter was acting as an agent for defendant 1 No. 2 Corporation and not as an agent of defendant No.l. It is a well‑settled principle of law that a Company or Corporation is a different legal entity from its directors /officers etc. I accordingly record my findings on the above 4 issues in terms of the above discussion.

14. ISSUE N0.5 This leads us to the question of quantum of damages. I have already held that the factum of publication of correction /apology immediately upon receipt of notice from the plaintiff and the absence of any malice will be relevant factors for mitigating the quantum of damages. Keeping in view the above facts, I am inclined to hold that J the award of a sum of Rs.1,000 as damages will be sufficient amount to vindicate the plaintiff's grievance on account of the publication of incorrect Urdu version of the notice. I would, therefore, decree the suit for a sum of Rs.1,000 (Rupees one thousand only) against defendant No. 2 Corporation, but there will be no order as to costs. A . A . / B‑61 / K Suit partly decreed.