Prof. (Dr.

) C J Rawandale,
VICARIOUS LIABILITY Professor, Symbiosis Law
School, NOIDA
INTRODUCTION
•Generally speaking, one cannot be held responsible for the commission of
torts by other.

•However, a person may be liable in respect of wrongful acts or omissions

of another in three ways: -

•Liability By Ratification
•Liability By Relation
•Liability By Abetment

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA

2
 1. RATIFICATION
•Omnio Ratihabitio Retrorahitur Et Mandato Priori Oequiparatur” - Every
ratification of an act relates back and thereupon becomes equivalent to a
previous request

•An act done for another by a person not assuming to act for himself, but for
such other person, though without any precedent authority, whatever,
becomes the act of the principal, if subsequently ratified by him.

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2. RELATION

•Master and Servant

•Employer and Independent Contractor
•Principal and Agent
•Company and Director
•Firm and Partner
•Guardian and Ward

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3. ABATEMENT

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BASIS OF THE LIABILITY OF MASTER
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BASIS OF LIABILITY •Holmes Common Law Notion -
Servant’s personality was merged in
OF MASTER that of his family head i.e. master,
survived the era emancipation.

•Public Policy - There ought to be a

remedy against someone who can pay
the damages.

•Respondeat Superior - It means the

superior must be responsible or let the
principal be liable. It means not only he
who obeys but also he who commands
be liable.

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•Qui Facit Per Alium Facit Per Se - He
who acts through another is deemed in
law as doing it himself.

•Bartonshill Coal Co. v. McGuire,

(1858) 3 Macq 300
•Chelmsford L.C. observed: “It has long
been the established law that a master
is liable to third for any injury or
damage done through the negligence or
unskillfulness of a servant acting in his
master’s employ. The reason of this is,
that every act which is done by a
servant in the course of his duty is
regarded as done by his master ’ s
orders, and, consequently it is the same
as if it were the master ’s own act,
according to the maxim qui facit per
alium facit per se.”

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ESSENTIALS – MASTER’S LIABILITY
FOR ACT OF SERVANT
DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 9
 •To make the master liable for the torts
MASTER & SERVANT committed by the servant, following
conditions should be satisfied:

•Tort is committed by the servant;

•The servant committed the tort while
acting in the course of employment of
his master

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SERVANT & •A servant and independent contractor
INDEPENDENT are both employed to do some work of
the employer but there is a difference in
CONTRACTOR the legal relationship which the
employer has with them.

•A servant is engaged under a contract

of service whereas an independent
contractor is engaged under a contract
for services.

•The liability of the employer the wrongs

committed by his servant is more
onerous than his liability in respect of
wrongs committed by an independent
contractor.

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 •In case of a servant, the employer in
SERVANT | addition to directing what work the
servant is to do, can also give directions
INDEPENDENT to control the manner of doing the work;
CONTRACTOR – •In case of an independent contractor,
the employer can only direct what work
TRADITIONAL VIEW is to be done but he cannot control the
manner of doing the work.

•Short v. J. & W. Henderson Ltd., (1946)

62 TLR 427 (HL)
•Lord Thankerton pointed out four
indicia of a contract of service:
•1. Master’s power of selection of his
servant; 2. Payment of wages or other
remuneration; 3. Master ’ s right to
control the method of doing the work,
and 4. Master’s right of suspension or
dismissal.

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SERVANT |
INDEPENDENT •The test of control as traditionally
formulated was based upon the social
CONTRACTOR – conditions of an earlier age and “was
well suited to govern relationships like
MODERN VIEW those between a farmer and an
agricultural labourer, a craftsman and a
journeyman, a householder and a
domestic servant and even a factory
owner and a unskilled hand.”

•When it comes to skilled and

particularly professional work, it has
been not treated as an exclusive test.

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•Dharangadhara chemical Works Ltd. v.
State of Saurashtra, AIR 1957 SC 264
•The Supreme Court laid down that the
existence of the right in the master to
supervise and control the execution of
the work done by the servant is a
prima facie test, that the nature of
control may vary from business to
business and is by its nature incapable
of any precise definition, that it is not
necessary that the employee should be
proved to have exercised control over
the work of the employee, that the test
of control is not of universal
application and that there are many
contracts in which the master could not
control the manner in which the work
was done.

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•Silver Jubilee Tailoring House v. Chief
Inspector of Shops, (1974) 3 SCC 498

•The Supreme Court observed: “ In

recent years the control test as
traditionally formulated has not been
treated as an exclusive test. It is
exceedingly doubtful today whether the
search for a formula in the nature of a
single test to tell a contract of service
from a contract for service will serve
any useful purpose.

•The most that profitably can be done is

to examine all the factors that have
been referred to in the cases on the
topic. Clearly, not all of these factors
would be relevant in all these cases or
have the same weight in all cases. It is
equally clear that no magic formula can
be propounded, which factors should in
any case be treated as determining
ones”.

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•The plain fact is that in a large number
of cases, the Court can only perform a
balancing operation weighing up the
factors which point in one direction and
balancing them against those pointing in
the opposite direction.”
•Hillyer v. St. Bartholomew’s Hospital,
(1909) 2 KB 820
•A hospital authority was not held liable
for the negligence of its staff in matters
requiring professional skill.

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•However with the change in situation
that the control test is not decisive in
all cases and it breaks down when
applied to skilled and professional
work, in -
•Gold v. Essex County Council, (1942)
2 KB 293;
•Collins v. Hertfordshire County
Council, (1947) KB 598;
•Cassidy v. Ministry of Health, (1951)
2 KB 343;
•Roe v. Minister of Health, (1954) 2 QB
66;
•Amalgamated Coal field Ltd. v. Mst.
Chhotibhai, (1973) ACJ 365.
•Hospital authorities are held liable for
negligence of its professional staff and
distinction earlier drawn between
professional duties and ministerial or
administrative duties has been
disapproved.
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•Santa Garg v. Director National Heart
Institute, (2004) 8 SCC 56
•The Supreme Court with approval the
following proposition from Denning
L.J. ’ s Judgment in Cassidy ’ s case
observed:

•“The hospital authority is liable for the

negligence of professional men
employed by the authority under
contract for service as well as under
contract of service. The authority owes a
duty to give proper treatment-medical,
surgical, nursing and the like-and
thought it may delegate the
performance of that duty to those who
are not its servants, it remains liable if
the duty be improperly or inadequately
performed by its delegates”.

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EXTENT OF LIABILITY – MASTER &
SERVANT
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•The law is settled that a master is
vicariously liable for the act of his
servants acting in the course of
employment. It is the general rule that
master will be liable not merely for
what he has authorised his servant to do
but also for the way in which he does
that which he has authorised to do.

•A servant is said to be acting in the

course of employment if:
•the wrongful act has been authorised by
the master; or
•the mode in which the authorised act
has been done is wrongful or
unauthorised.

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•Olga Hall v. Kingston and Andrew •Subbiah Reddy v. T. Jordan, AIR
Corporation, AIR 1941 PC 103 1945 PC 168
•A Municipal Corporation was held liable •The owner of a car was held liable
for the negligence of its servant in drivingfor the negligence of his son, who
a car belonging to the Corporation on the was employed in the owner ’ s
Corporation’s business. business, in driving the car which at
the time of the accident was being
•Amita Bhandari v. Union of India, AIR demonstrated to one about to join
2004 Guj 67 the business.
•A Bank was held liable when a security
guard on duty by mistake shot a customer
believing that he would steal the cash box
which had just arrived.

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LIABILITY OF MASTER FOR SERVANT’S
UNAUTHORISED ACTS

Salmond

“A master is liable even for acts which he has not authorised provided
that they are so connected with acts which he has authorised that they
may rightly be regarded as mode-although improper modes-of doing
them.

One must understand that considerations of time, place, equipment

and purpose will all be relevant to this purely factual determination.

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Pushpabai Purshottam Udeshi v. M/S Ranjit Ginning & Pressing Co.
Pvt. Ltd. AIR 1977 SC 1735,

The Supreme Court held that the owner is not only liable for the
negligence of the driver if that driver is his servant acting in the course
of his employment but also when the driver is with the owner’s consent
driving his car on owner’s business or for the owner’s purposes.

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State of Maharashtra v. Kanchanmala Vijaysing Shirke, AIR 1995
SC 2499

It was held by the court that if the unauthorised and wrongful act of
the servant is not so connected with the authorised act as to be a
mode of doing it, but is an independent act, the master is not
responsible; for in such a case the servant is not acting in the course of
the employment but has gone outside of it.

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Illustration:
A, master, allows, B, servant to take his vehicle so that he can come
early and join duties. B while at home allows his son C to drive. C
negligently injures D, a passer-by. In this case, A can not be held liable
as he only authorised taking of the vehicle so that he returns early to
work.

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General Engineering Services Ltd. v. Kingston and Saint Andrew
Corporation, (1988) 3 All ER 867

The appellants owned certain premises at Kingston, Jamaica. A fire

broke out in the said premises on which the premises the appellants
promptly informed the local fire brigade. The fire brigade took 17
minutes in reaching the appellants’ premises which was at a distance
of 1½ miles. The normal time for covering this distance was 3½
minutes. By the time the fire brigade reached, the premises were
completely destroyed by fire.

The reason why the firemen took 17 minutes instead of 3½

minutes in covering the distance was that they were operating a
‘go slow’ policy as part of industrial action. They had driven to the
premises by moving slowly forward, stopping, then moving slowly
forward again, then stopping and so on until they reached the premise.

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Questions were whether the respondent, as employers of the firemen,
were vicariously liable to the appellants or whether the firemen acted
in the course of employment.

The Privy Council observed:

“Their (the firemen’s) unauthorised and wrongful act was to prolong

the time taken by the journey to the scene of the fire, as to ensure that
they did not arrive in time to extinguish it, before the building and its
contents were destroyed. Their mode and manner of driving, the
slow progression of stopping and starting, was not so connected
with the authorised act, that is driving to the scene of the fire as
expeditiously as reasonably possible, as to be a mode of
performing that act.”

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Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, (1966) ACJ
89 (SC)

The owner had entrusted his car to a driver for plying it as a taxi. The
driver lent the taxi to the cleaner for taking it to the R.T.O.’s Office for
driving test. The accident happened when the cleaner was driving while
giving the driving test. The driver was then not in the vehicle.
It is clear from the fact that at the time the accident happened, the car
was not being used as a taxi for the owner’s business. The car was then
engaged in the work of the cleaner which had no connection whatsoever
with the owner’s business. The driver in lending the car to the cleaner for
taking a driving test did an act which he was not employed to perform
and thus clearly acted beyond the scope of his employment which was
to drive the car as a taxi. The owner was, therefore, held not liable.

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State of Maharashtra v. Kanchanmala Vijaysing Shirke, AIR 1995
SC 2499

The accident happened when a government jeep while being used on

official duty, for bringing the employees of a government office, was
driven by a clerk with the permission of the driver who was in charge
of the vehicle and who had consumed liquor.

The Supreme Court held that this was a case where an authorised act
was done in unauthorised manner and the State Government was
vicariously liable.

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Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2
SCC 654

The driver of a truck while on masters business left the truck with the
engine running in charge of the cleaner and went to a nearby shop
for bringing snacks and the accident happened while the cleaner was
on the wheels, the master and the insurance company were both held
liable.

In the absence of any prohibition, it may be possible from the

circumstances to infer authority in the servant to do certain acts not
covered by any positive direction. Thus acts done within the implied
authority will obviously be in the course of employment.

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Pushpabai Purshottam Udeshi v. Ranjit ginning & Pressing Co.
Pvt. Ltd. AIR 1977 Sc 1735

The manager of the defendant company was driving a car of the

company on its journey from Nagpur to Pandhurna on the Company’s
business. The manager took one Purshottam as a passenger in the car.
The car met with an accident because of the negligence of the
manager in driving the car and Purshottam died.

The High Court negatived the claim of the dependents of the

deceased against the Company on the reasoning that the manager in
taking the deceased as a passenger was not acting in the course of
employment.

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The Supreme Court reversed the High Court ’ s Judgment and
observed:

“ In the present case a responsible officer of the Company, the

manager, had permitted Purshottam to have a ride in the car. Taking
into account the high position of the driver who was the manager of
the Company, it is reasonable to presume, in the absence of any
evidence to the contrary that the manager had authority to carry
Purshottam and was acting in the course of employment.”

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WHETHER A SERVANT WHILE GOING TO THE
PLACE OF WORK OR RETURNING THERE FROM
ACTS IN THE COURSE OF HIS EMPLOYMENT

Smith v. Stages, (1989) 1 All ER 833 (HL)

The House of Lords has formulated some general principles to these

questions.

 An employee travelling from his ordinary residence to his regular place of work,
whatever the means of transport and even if it is provided by the employer, is not on
duty and is not acting in the course of his employment.
 But if he is obliged by his contract of service to use the employer’s transport, he will
normally, in the absence of an express condition to the contrary, be regarded as
acting in the course of his employment while doing so.

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Travelling in the employer’s time between workplaces or in the course of a
peripatetic occupation, whether accompanied by goods or tools or simply in order to
reach a succession of workplaces, will be in the course of employment.

Receipt of wages will indicate that the employee is travelling in the employer’s time
and for his benefit and is acting in the course of his employment and in such a case
the fact that the employee may have discretion as to the mode and time of travelling
will not take the journey out of the course his employment.

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 An employee travelling in the employer’s time from his ordinary residence to
a workplace other than his regular workplace or in the course of a
peripatetic occupation or to the scene of an emergency, such as fire, an
accident or mechanical breakdown of plant, will be acting in the course of
employment.

 A deviation from or interruption of a journey undertaken in the course of

employment (unless the deviation is merely incidental to the journey) will for
the time being (which may include an overnight interruption) take the
employee out of the course of employment.

 Return journeys are to be treated on the same footing as outward journeys.

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The above general propositions are subject to any express
arrangements between the employer and the employee or those
representing his interests. Further they are not intended to define the
position of salaried employees, with regard to whom the touchstone of
payment made in the employer’s time is not generally significant.

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Regional Director E.S.I. Corporation v. Francis De Costa, AIR 1997
Sc 432

An employee met with an accident while he was on his way the place
of employment to join his duty. The accident occurred about one K.M.
away from the factory when the employee riding a cycle was hit by a
lorry of the employers.

In a claim for disablement benefit under the Employee ’ s State

Insurance Act, 1948, it was held that the accident did not arise in the
course of employment of the claimant and he was not entitled to
disablement benefit under the Act.

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EFFECT OF PROHIBITION

It is now the law that whenever a servant does an act which his
employer has prohibited him from doing, the act so done falls outside
the course of employment. Prohibition falls under two categories: -

those which limit the scope or sphere of employment; and

those which merely affect or restrict the mode of doing the act for
which the servant is employed.

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If a servant violates a prohibition of the first category, his act will be
outside the course of employment and the master will not be
vicariously liable.

But if the violation by the servant is only of a prohibition of the second

category, the servant’s act will still be in the course of employment
making the master liable.

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Twine v. Bean’s Express Ltd. (1946) 62 TLR 458

The defendants provided for the use of a bank a commercial van and
a driver on the terms that the driver remained the servant of the
defendants and that the defendants accepted no responsibility for
injury suffered by persons riding in the van who were not employed
by them. There were two notices in the van, one stating that no
unauthorised person was allowed on the vehicle, and the other, that
the driver had instructions not to allow unauthorised travellers on the
van, and that in no event would the defendants be responsible for
damage happening to them.

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One person who was not authorised to ride in the van got a lift in the
van with the consent of the driver. Owing to the negligence of the
driver, there was an accident and that person was killed.

Lord Green, M.R. observed that his act of driving was no doubt in the
course of employment but “ the other thing he was doing
simultaneously was something totally outside the scope of his
employment, namely, giving a lift to a person who had no right
whatsoever to be there”.

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DISHONEST AND CRIMINAL ACTS

▪ A master is not liable for a dishonest or criminal act of his servant

where the servant merely takes the opportunity afforded by his
service to commit the wrongful act.

▪ Illustration: If a window cleaner steals an article from the room

where he is doing the window cleaning work, his employer is not
liable.

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Barwick v. English Joint Stock Bank, (1867) 2 Exch. 259

The master is answerable for every such wrong of the servant or

agent as is committed in the course of the service and for the master’s
benefit though no express command or privity of the master is proved.

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Warren v. Henlys Ltd. (1948) 2 All ER 935

When a servant assaults another, whom he meets in the course of his

work, out of personal vendetta, and the assault has no relation to the
master’s work, the master is not liable.

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WHEN IS MASTER LIABLE FOR SERVANT’S
DISHONEST AND/OR CRIMINAL ACTS?

If the wrongful act is committed for the benefit of the master and
while doing his business, the master is liable.

The master will also be liable if the servant while doing the wrongful
act was acting within the apparent scope of his authority even though
the act was done for his own benefit or for the benefit of some person
other than the master.

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Lloyd v. Grace, Smith & Co. (1912) AC 716

The managing clerk of a firm of solicitors induced a client of the firm

to transfer a mortgage to him by fraudulently representing the nature
of the deed and, thereupon, obtained and misappropriated the
mortgage money.

The solicitors were held liable as their managing clerk in accepting the
deed was acting within the apparent scope of his authority although
fraudulently for his own benefit.

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State Bank of India v. Shyama Devi, All 1978 SC 1263

The plaintiff who had a saving bank account with the Bank, handed
over a cheque and cash to an employee of the Bank who was a
neighbour and friend of the plaintiff’s husband with a letter of
instructions and pass book for being credited to her account. The
employee misappropriated the amount and made false entries in the
pass book. The employee was not in the charge of the savings bank
counter and the cheque and cash were not handed over to the counter
clerk concerned.

The Supreme Court held that the Bank was not liable for the fraud of
the employee. The employee concerned here had no actual or
apparent authority to accept on behalf of the Bank cheque or cash
for being deposited in savings bank accounts and the money was not
received by him in the normal course of business of the Bank.

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Morris v. C. W. Martin & Sons Ltd. (1965) 2 All ER 725

The plaintiff delivered her mink stole to one Bedser for getting it
cleaned who with the permission of the plaintiff delivered it to the
defendants for that purpose. The defendants ’ servant who was
entrusted with the job instead of cleaning it stole it. The defendants
were held liable for the theft of the article as it was in the course of
employment.

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Lister v. Hesley Hall Ltd. (2001) 2 All ER 769 (HL)

The plaintiffs were resident for a few years at a school for boys with
emotional and behavioural difficulties, owned by the defendants who
employed a person to take care of the boys as warden of the school’s
boarding house. The warden systematically sexually abused the plaintiffs
while they were resident at the school.

In holding the defendants vicariously liable the court held that the
defendant had undertaken to care for the boys through the services of the
warden and there was a very close connection between his employment
and his torts which were committed in the premises of the defendants while
he was busy caring for the children in performance of his duties.

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MASTER’S RIGHT TO RECOVER DAMAGES
FROM SERVANT

The law implies a term in contract between employer and employee

that the employee will exercise reasonable care in performance of his
work and, therefore, if the master is obliged to pay damages to a
third party for wrongs committed by the servant, he can recover that
amount from the servant in a suit for damages for breach of the
implied term.

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Lister v. Romford Ice and Cold Storage Co. Ltd. (1957) AC 555

A lorry driver employed by a company took his father, a fellow servant, with him as a
mate. In backing the lorry, he injured his father by negligent driving. The father
recovered damages in an action against the company for the negligence of the driver.

The company then brought an action against the driver claiming that, as joint
tortfeasor, it was entitled to:

1. contribution from him under Section 6 of the Law Reform (Married Women and
Tortfeasor’s) Act, 1935 and
2. damages for breach of an implied term in his contract of service that he would use
reasonable care and skill in driving .

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The House of Lords held that the driver was under a contractual
obligation of care to his employer in the performance of his duty as a
driver and that the Company was entitled to recover from the driver
damages for breach of that contractual obligation even if the
employer had insurance cover against his liability to the party injured
by the negligence of the servant.

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Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787

The Supreme Court held that when an officer of the government or a

public authority acts maliciously and oppressively causing harassment and
agony to the plaintiff, the government and authority made liable for
damages must recover the amount from the officers who are responsible.

The real reason is that when the government or a public authority is made
to pay damages the burden really falls on the citizens as taxpayers and
there is no justification for burdening them for malicious and oppressive
conduct of the officers.

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EMPLOYER AND INDEPENDENT
CONTRACTOR

Who is an independent contractor?

An independent contractor is one who undertakes to produce a given

result without being in any way controlled as to the method by which
he attains that result.

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Generally speaking, an employer is not liable for the torts of his
independent contractor. There are following exceptions: -

Where the employer retains his control over the contractor and
personally interferes and makes himself a party to the act which
occasion the damage;
Where the thing contracted to be done is itself wrongful. In such
case the employer is responsible for the wrong done by the
contractor or his servants, and is liable to third persons who sustain
damage from the wrong doing.
Illustration: If a man employs a contractor to build a house, who
builds it so as to darken another person’s windows, the remedy is
not against the builder, but the owner of the house.

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Ellis v. Sheffield Gas Consumers Co. (1853) 2 E & B 767

A gas company, not authorised to interfere with the streets of

Sheffield, directed their contractor to open trenches therein. The
contractor’s servant, in doing so, left a heap of stones, over which the
plaintiff fell and was injured.

It was held that the defendant company was liable, as the interference
with the streets was in itself a wrongful act.

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Patel Maganbhai Bapujibhai v. Patel Ishwarbhai Motibhai, AIR
1984 Guj 69

The trustees of a temple employed a contractor to get electric

connection for use of lighting and mike arrangements in the temple
from the well of an agriculturist without informing and obtaining the
permission of the Electricity Board. A person was injured as the wires
used by the contractor snapped.

The trustees were held liable as the act of diverting electricity without
permission of the Board was in itself an illegal act.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 57

Where the legal or statutory duty is imposed on the employer, he
is liable for any injury that arises to others in consequence of its
having been negligently performed by the contractor.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 58

Gray v. Pullen, (1864) 5 B & S 970

A was empowered under an Act to make a drain from his premises to

a sewer, by cutting a trench across a highway, and filling it up after
the drain should be completed. For this purpose he employed a
contractor, by whose negligence it was filled up improperly, in
consequence of which damage ensued to B.

It was held that A was responsible in an action by B.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 59

Where the work contracted to be done is from its nature likely to
cause danger to others, in such cases there is a duty on the part of the
employer to take all reasonable precautions against such danger, and
if the contractor does not take these precautions, the employer is
liable.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 60

Where liability is imposed by statute

Illustration: Under the provisions of the Workmen ’ s

Compensation Act, 1923, if the principal employs a contractor,
such contractor’s servants are able to recover compensation from
the principal without prejudice to the principal’s right to be
indemnified by the contractor, if the contractor is himself liable
under the Act.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 61

Principal and Agent

There is no special rule dealing with the liability of the principal for
the torts committed by the agent and the rules discussed earlier in the
context of master’s liability for the torts of his servant apply here also.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 62

Company and Director

The ordinary principles of agency apply to companies which are

consequently liable for the negligence of their servants, and for torts
committed by them in the course of employment.

Directors are personally responsible for any torts which they

themselves may commit or direct others to commit, although it may be
for the benefit of their company.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 63

Firm and Partner

Both under English and Indian Law, a firm is liable for torts committed
by a partner in the ordinary course of the firm. The relation of
partners inter se is that of principal and agent, and therefore each
partner is liable for the act of his fellows.

Guardian and Ward

Guardian are not personally liable for torts committed by minors

under their charge.
DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 64
Liability of State

Duguit -
“State being the greatest corporation shall be responsible for it’s or it’s
servants.”

As State performs vast role in modern times, one would expect that the legal
principles relating to liability of the State in tort would be easily ascertainable. It
necessitates to see whether this object is achieved in reality in India.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 65

Article 300 (1) of the Constitution of India envisages the law in India with
regard to the liability of the State for the tortious acts of its servants.

Section 65 of the Government of India Act, 1858; Section 32 of the

Government of India Act, 1915; and Section 176 of the Government of India
Act, 1935 have great influence on the making of Article 300 (1) of the
Constitution with regard to liability of State.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 66

Article 300 (1) states:

“The Government of India may sue or be sued by the name of the Union of
India and the Government of a State may sue or be sued by the name of the
State and may, subject to any provisions which may be made by Act of
Parliament or of the Legislature of such State enacted by virtue of powers
conferred by this Constitution, sue or be sued in relation to their respective
affairs in the like cases as the Dominion of India and the corresponding
Provinces or the corresponding Indian States might have sued or been sued if
this Constitution had not been enacted.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 67

Unfortunately, even after 70+ years since the commencement of the
Constitution of India, no law has been made by the Parliament as envisaged
by Article 300.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 68

Pre-Constitutional Decisions

P & O Steam Navigation Co. v. Secretary of State, (1868) 7 Bom. HR App. A. 1

A servant of the plainitff company was proceeding on a highway in Calcutta,

driving a carriage which was drawn by a pair of horses belonging to the plaintiff.
He met with an accident, caused by negligence of the servants of the Government,
who were carrying a huge iron piece but walking in the middle of the road. When
the plaintiff drove nearer, he tried to warn these persons who after seeing the
carriage driven near to them, got alarmed and droped the iron bar which on noise
injured one of the horses of the planitiff.

For the loss caused by the accident to the plaintiff claimed damages against the
Secretary of State for India.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 69

After making a distinction between sovereign and non-sovereign functions, the
Court held that the Company would have been liable in tort if the activity was
non-sovreign in nature, but it would have enjoyed immunity if it was a
sovereign function.

Peacock C.J observed that the doctrine of the “King can do no wrong” had no
application to the East India Company. Since the workmen were carrying on
an activity which could be carried on by private persons, it was classified as
non-sovereign, and hence, the Secretary of State was held liable.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 70

Secretary of State v. Hari Bhanji, (1882) ILR 5 Mad. 273

The Madras High Court held that State immunity was confined to acts of State.

The Court explained: “The act of State, of which the municipal courts of British
India are debarred from taking cognizance, are acts done in the exercise of
sovereign power, which do not profess to be justified by municipal law…where
an act complained of is professedly done under the sanction of municipal law,
and in exercise of powers conferred by that law, the fact that it is done by the
sovereign powers and is not an act which could possibly be done by a
private individual does not oust the jurisdiction of the civil court.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 71

Secretary of State v. Cockraft, AIR 1949 Bom. 277

Making or repairing a military road was held to be sovereign function and the
Government was held to be not liable, for the negligence of its servants in the
stacking of gravel on a road resulting in a carriage accident injuring the
plaintiff.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 72

Post Constitutional Decisions

State of Rajasthan v. Vidyawati, AIR 1962 SC 933

The driver of a Government jeep, which was being used by the Collector of
Udaipur, injured a pedestrian. The injured person dies three days letter, in the
hospital. The legal representatives of the deceased sued the State of
Rajasthan and the driver for compensation for the tortious act committed by the
driver.

It was found by the Court that the driver was rash and negligent in driving the
jeep and that the accident was the result of such driving on his part.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 73

While arriving at the judgment the Supreme Court observed: “…the State
should be as much liable for tort in respect of tortious acts committed by its
servant within the scope of his employment and functioning as such, as any
other employer. The immunity of the Crown in the United Kingdom was based
on the old feudalistic notions of justice, namely, that the king was incapable of
doing the wrong, and therefore, of authorising or instigating one, and that he
could not be sued in his own courts. In India, ever since the time of the East
India Company, the sovereign has been held liable to be sued in tort or in
contract, and the common law immunity never operated in India”.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 74

It furher observed that

“Now that we have, by our Constitution, established a Republic form of

Government, and one of the objectives is to establish a Socialistic State with its
varied industrial and other activities, employing a large army of servants,
there is no justification, in principle, or in public interest, that the State should
not be held liable against the Crown.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 75

Kasturi Lal v. State of UP, AIR 1965 SC 1039

The plaintiff had been arrested by the police on a suspicion of possessing

stolen property. He was found in possesion of a large quantity of gold which
was seized. On his release he demanded for the gold which was not returned
to him because the constable in charge of Malkhana had absconded with gold
to Pakistan.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 76

The distinction between sovereign and non-sovereign functions laid down in the
P & O Steam Navigation Company case was revived by the Supreme Court in
the following words:

“If a tortious act is committed by the public servant in discharge of sovereign

functions which are referable to and ultimately based on the delegation of
sovereign powers of the State to such public servant? If the answer is in the
affirmative the action for damages for loss caused by such tortious act will not
lie. On the other hand, if the tortious act has been committed by a public
servant in discharge of duties assigned to him not by virtue of the delegation
of any sovereign power, an action for damages would lie. The act of the public
servant committed by him during the course of his employment is in this
category of cases, an act of a servant who might have been employed by a
private individual for the same purpose.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 77

The Supreme Court, while denying the claim of the plaintiff, held that:

“the act of negligence was committed by the police officers while dealing with
the property of Ralia Ram, which they had seized in exercise of their statutory
powers. The power to arrest a person, to search him and to seize property
found with him, are powers confered on the specified officers by statute…they
are powers which can be properly categorized as sovereign powers; and so,
there is no difficulty in holding that the act which gave rise to the present claim
for damages has been committed by the employee of the respondent during
the course of its employment; but the employment in question being of the
category which can claim the special characteristics of sovereign power, the
claim cannot be sustained.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 78

The distinction between sovereign and non-sovereign functions, revived in
Kasturilal, has given rise to a lot of confusion.

Many High Courts in India have expressed conflicting views on this subject.
However, the general trend appears to be in favour of broadening the scope
fo tortious liability of the State.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 79

B.K.D. Patil v. State of Mysore, (1977) 4 SCC 358

In this case, stolen property was recovered from the thieves was produced
before the Magistrate who asked the police to keep it in safe custody. Later, it
was stolen from the police station. When the owner applied to the Magistrate
under Sec. 517 of the Criminal Procedure Code for the return of the
recovered property was not in the custody of the Court.

The High Court also accepted this stand, but on appeal the Supreme Court
reversed the decision of the High Court and held that the State was liable to
pay the value of the property.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 80

N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663

While distinguishing between sovereign and non-sovereign functions, the Court

laid down certain legal principles as follows:

“In the modern sense, the distinction between sovereign or non-sovereign

power does not exist. It all depends on the nature of the power and manner of
its exercise…It is in public interest that for acts performed by the State, either
in its legislative or executive capacity, it should not be answerable in torts. That
would be illogical and impracticable. It would be in conflict with the modern
notions of sovereignty.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 81

The Court further observed that-

“One of the tests to determine, if the legislative or executive function is

sovereign in nature is, whether the State is answerable for such actions in courts
of law. For instance, acts such as defence of the country, raising armed forces
and maintaining it, making peace or war, foreign affairs, power to acquire
and retain territory, are functions which are indicative of external sovereignty
and are political in nature. Therefore, they are not amenable to jurisdiction of
ordinary civil court. No suit under Civil Procedure Code would lie in respect of
it. The State is immune from being sued, as the jurisdiction of the courts in such
matters is impliedly barred.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 82

Uncertainty of Law

The definiteness of the precise contours and certainty of principles of universal

application are lacking. The Court in Nagendra Rao reaffirmed the theory of
primary and inalienable function. What is the efficacy of the judgment in
Nagendra Rao which was delivered by two judges bench whereas Kasturilal
and Vidyawati were delivered by a Constitution Bench of Five Judges.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 83

In United Kingdom and United States of America, the liability of the State is
statutorily recognised in the form of the Crown Proceedings Act, 1947 and the
Federal Torts Claims Act, 1946.

Though we claim ourselves as social welfare state, the situation is unsatisfactory

as the recommendations made by the Law Commission in 1956 and further the
judicious opinions of the Supreme Court, have not yet been given effect to.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 84

In Kasturi Lal v. State of UP, AIR 1965 SC 1039, the Supreme Court asserted
that “…it is time that the Legislatures in India seriously consider whether they
should not pass legislative enactments to regulate and control their claim from
immunity…on the same lines as has been done in England by the Crown
Proceedings act, 1947.”

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 85

Violation of Fundamental Rights & Payment of Compensation

It would be appropriate to refer to the development i.e. the violation of

fundamental rights and monetary redress, which is parallel to the evolution of
the law applicable to actions in tort.

In Rudal Shah v. State of Bihar, AIR 1983 SC 1086, the Court directed the
State of Bihar to pay compensation of Rs.30, 000 to the victim who was
illegally kept in jail for 14 years even after his acquittal by the Court.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 86

In Sebastian Hongray’s case, (1984) 4 SCC 82, two persons were taken into
custody by army authorities in Manipur but they were not produced before the
Court in obedience of a writ of habeus corpus and it was presumed that they
must have met with unnatural death while in Army custody.

The Supreme Court directed the Central Government to pay exemplary

damages of Rs. 1 lakh each to the wives of those persons.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 87

In Bhim Singh v. State of Jammu & Kashmir, AIR 1986 SC 494, the Supreme
Court awarded a sum of Rs. 50,000 to the petitioner as compensation for
violation of his fundamental right of personal liberty under Article 21 of the
Constitution. The petitioner who was an MLA was illegally arrested and
detained in police custody and deliberately prevented from attending the
session of the legislative assembly.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 88

In Peoples Union for Democratic Rights v. Police Commissioner, Delhi Head
Quarter, (1989) 4 SCC 730, a labourer was taken to the police station for
doing some work. He was severely beaten when he demanded wages and as
a result he died. The Court directed the government to pay Rs. 75,000 as
compensation to the family of the deceased.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 89

In Saheli v. Commissioner of Police, AIR 1990 SC 513, the Supreme Court in
public interest litigation directed the Delhi Administration to pay Rs. 75,000 as
exemplary compensation to the mother of 9 year old child who died due to
beating by the Delhi Police officer.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 90

State of Maharashtra v. Ravikant Patil, (1991) 2 SCC 373

An under trial prisoner was handcuffed and paraded on streets. He was
suspected to be involved in a murder case. A local newspaper carried a news item
that he would be taken in procession from Police Station through the main streets of
the city for the purpose of investigation.

The Bombay High Court held that handcuffing and parading of the petitioner
was unwarranted and violative of Article 21 and directed the PSI who was
responsible for this, to pay Rs. 10,000 by way of compensation. It also directed
that this act of violation of Article 21 should also be entered in his service record.

The Supreme Court upheld the judgment of the High Court directing a payment
of compensation but held that the police officer was not personally liable as he
acted as an official.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 91

Nilabati Behra v. State of Orissa, (1993) 2 SCC 746

The petitioners son aged 22 years was arrested by police in connection with
investigation of an offence of theft in a village and kept in police custody with
his hands tied. On the next day his body was found by the side of the railway
track. The mother of the deceased sent a letter to the Court alleging custodial
death of her son claiming compensation on the ground of violation of Article
21 of the Constitution.

The Court treated this letter as a writ petition under Article 32 and awarded
Rs.1.15 lakhs as compensation to the mother of the deceased.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 92

State of A.P. v. Challa Ramrishna Reddy, AIR 2000 SC 2083

The Supreme Court held that in the process of judicial advancement

Kasturilal’s case has pated into insignificance and no longer of any binding
values. In this case a prisoner had informed the jail authorities that he
apprehended danger to his life but no action was taken on this information
and no measures were taken for his safety and he was killed in the prison. It
was also found that a police officer was a party to the conspiracy to kill the
prisoner which was hatched in the prison.

The court held that in case of violation of fundamental right the defence of
sovereign immunity which is an old and archaic defence cannot be accepted
and the government and the police are liable to compensate the victim.

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 93

Thank You!

DR C J RAWANDALE, SYMBIOSIS LAW SCHOOL, NOIDA 94