State of Rajasthan v. Vidhyawati AIR 1962 SC 933
When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution and therefore it would be only recognising the old established rule, going back to more that 100 years at least, if the vicarious liability of the State is upheld by the Court. Article 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not expressed its intention to the contrary, it must be held that the law is what it has been ever since the days of the East India Company.
Cases referred
Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, para 8
Viscount Canterbury v. Attorney-General [1 Phillips 327]” para 9
Bank of Bengal v. East India Company, [Bignell Rep p. 120] para 9
Moodaley v. East India Company and Same v. Morton[1 Bro.C.C. 469] para 10
Judgement
SINHA, C. J. – This appeal, on a certificate granted by the High Court of Rajasthan under Article 133(l)(c) of the Constitution, raises a question of considerable importance, namely, the extent of the vicarious liability of Government for the tortious acts of its employees, acting in the course of their employment as such. The trial court dismissed the claim for compensation as against the State of Rajasthan, which was the second defendant in the suit for damages for tortious act of the first defendant, Lokumal, who is not a party to this appeal. On appeal by the plaintiffs against the judgment and decree of the trial court, the High Court of Rajasthan passed a decree in favour of the plaintiffs allowing compensation of Rs 15,000 against the State of Rajasthan also, which is the appellant in this Court.
2. The facts of this case may shortly be stated as follows: The first defenant, Lokumal, was a temporary employee of the appellant State, as a motor driver on probation. In February 1952, he was employed as the driver of a government jeep car, registered as No. RUM 49, under the Collector of Udaipur. The car had been sent to a workshop for necessary repairs. After repairs had been carried out, the first defendant, while driving the car back along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was walking on the footpath by the side of the public road in Udaipur city, causing him multiple injuries, including fractures of the skull and backbone, resulting in his death three days later, in the hospital where he had been removed for treatment. The plaintiffs, who are Jagdishlal’s widow and a minor daughter, aged three years, through her mother as next friend, sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs 25,000 from both the defendants. The first defendant remained ex parte. The suit was contested only by the second defendant on a number of issues. But in view of the fact that both the Courts below have agreed in finding that the first defendant was rash and negligent in driving the jeep car resulting in the accident and the ultimate death of Jagdishlal, it is no more necessary to advert to all the questions raised by way of answer to the suit, except the one on which the appeal has been pressed before us. The second defendant … contested the suit chiefly on the ground that it was not liable for the tortious act of its employee.
3. In support of the appeal, counsel for the appellant raised substantially two questions, namely, (1) that under Article 300 of the Constitution, the State of Rajasthan was not liable, as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force; and (2) that the jeep car, the rash and negligent driving of which led to the claim in the suit, was being maintained “in exercise of sovereign powers” and not as part of any commercial activity of the State. The second question may shortly be disposed of before we address ourselves to the first question, which is the more serious of the two raised before us. Can it be said that when the jeep car was being driven back from the repair shop to the Collector’s place, when the accident took place, it was doing anything in connection with the exercise of sovereign powers of the State? It has to be remembered that the injuries resulting in the death of Jagdishlal were not caused while the jeep car was being used in connection with the sovereign powers of the State. On the findings of the courts below, it is clear that the tortious act complained of had been committed by the first defendant in circumstances wholly dissociated from the exercise of sovereign powers. The trial court took the view that as the car was being maintained for the use of the Collector, in the discharge of his official duties, that circumstance alone was sufficient to take the case out of the category of cases where vicarious liability of the employer could arise, even though the car was not being used at the time of the occurrence for any purposes of the State.
On appeal, the High Court disagreed with the trial court on the legal issue. Its finding on this issue is in these words:
In our opinion, the State is in no better position insofar as it supplies cars and keeps drivers for its civil service. It may be clarified that we are not here considering the case of drivers employed by the State for driving vehicles which are utilised for military or public service.
4. In the result, the High Court granted a decree to the plaintiffs as against the second defendant also for the sum of Rs 15,000. In our opinion, the High Court has taken the correct view of the legal position, in view of the circumstances in which the occurrence took place.
5. The more important question raised on this appeal rests upon the true construction and effect of Article 300(1) of the Constitution, which is in these terms:
300. (1) 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.
It will be noticed that this article consists of three parts, namely, (1) the first part provides for the form and the cause-title in a suit and says that a State (omitting any reference to the Government of India) may sue or be sued by the name of the State, and (2) that a State may sue or be sued in relation to its affairs in like cases as the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted; and (3) that the second part is subject to any provisions which may be made by an Act of the legislature of the State concerned, in due exercise of its legislative functions, in pursuance of powers conferred by the Constitution. The learned Advocate-General for the State of Rajasthan argued that the second part of the article has reference to the extent of the liability of a State to be sued, and that, therefore, we have to determine the question of the liability of the State in this case in terms of the article. On the other hand, it has been argued on behalf of the plaintiffs-respondents that … Article 300 is confined to only the question in whose name suits and proceedings may be commenced, in which the Government of a State may figure as plaintiff or as defendant, and that the article is not concerned with defining the extent of liability of a State. In other words, it was contended that Article 300 was irrelevant for determining the vicarious liability of the defendant State in this case, and that there was nothing in this article definitive of that liability. In our opinion, it is not correct to argue that the provisions of Article 300 are wholly out of the way for determining the liability of the appellant State. It is also true that the first part of Article 300, as already indicated, deals only with the nomenclature of the parties to a suit or proceeding, but the second part defines the extent of liability by the use of the words “in the like cases” and refers back for the determination of such cases to the legal position before the enactment of the Constitution. That legal position is indicated in the Government of India Act, Section 176(1) of which is in these words:
The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State-in-council might have sued or been sued if this Act had not been passed.
6. It will be noticed that the provisions of Article 300(1) and Section 176(1) are mutatis mutandis substantially the same. Section 176(1) refers back to the legal position as it obtained before the enactment of that Act, that is to say, as it emerged on the enactment of Section 32 of the Government of India Act, 1915. Sub-sections (1) and (2), which only are relevant for our present purposes, are in these words:
(1) The Secretary of State-in-Council may sue and be sued by the name of the Secretary of State-in-Council, as a body corporate.
(2) Every person shall have the same remedies against the Secretary of State-in-Council as he might have had against East India Company if the Government of India Act, 1858, and this Act had not been passed.
7. As compared to the terms of Article 300, it will be noticed that Part (1) of that article corresponds to sub-section (1) of Section 32 above, Part (2) roughly, though not exactly, corresponds to sub-section (2), and Part (3) of the article, as indicated above, does not find a place in Section 32. Sub-section (2) of Section 32 has specific reference to “remedies”, and has provided that the remedies against the Secretary of State-in-Council shall be the same as against East India Company, if the Government of India Act of 1858, and the Government of India Act, 1915, had not been passed. We are, thus, referred further back to Act 21 & 22 Victoria Chapter CVI, entitled “An Act for the better Government of India”. As this Act transferred the Government of India to Her Majesty, it had to make provisions for succession of power and authority, rights and liabilities. Section 65 of the Act of 1858 is in these terms:
The Secretary of State-in-Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State-in-Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State-in-Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company.
It will thus be seen that by the chain of enactments, beginning with the Act of 1858 and ending with the Constitution, the words “shall and may have and take the same suits, remedies and proceedings” in Section 65 above, by incorporation, apply to the Government of a State to the same extent, as they applied to East India Company.
8. The question naturally arises: What was the extent of liability of East India Company for the tortious acts of its servants committed in course of their employment as such? The exact question now before us arose in a case in Calcutta, before the Supreme Court of Calcutta, in the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, [Decided in 1861 and reported in the Newspaper Englishman of October 23, 1861, and republished in Appendix ‘A’ to the Bombay High Court Reports, Vol. V, of the year 1868-69.] … It was a case decided by a Full Bench, consisting of Peacock, C.J., and Jackson and Wells, JJ., of the Supreme Court of Calcutta. The case, as stated to the Supreme Court, was to the following effect: A servant of the plaintiffs was proceeding on a highway in Calcutta driving a carriage drawn by a pair of horses belonging to the plaintiffs. The accident, which took place on the highway, was caused by the servants of the Government, employed in the government dockyard at Kidderpore, acting in a negligent and rash manner. As a result of the negligent manner in which the government employees in the dockyard were carrying a piece of iron funnel, one of the horses drawing the plaintiffs’ carriage was injured. The plaintiff Company claimed damages against the Secretary of State for India for the damage thus earned. The learned Small Cause Court Judge came to the finding that the defendant’s servants were wrongdoers in carrying the iron funnel in the centre of the road, and were, thus, liable for the consequences of what occurred. But he was in doubt as to the liability of the Secretary of State for the tortious acts of the government servants concerned in the occurrence in which the injury was caused to the plaintiffs’ horse. So the question, which was referred to the court for its answer, was whether the Secretary of State was liable for the damage occasioned by the negligence of the government servants, assuming them to have been guilty of such negligence as would have rendered an ordinary employer liable.
9. Before the Supreme Court of Calcutta, it was contended by the learned Advocate-General, on behalf of the defendant, that the State cannot be liable for damages occasioned by the negligence of its officers or of persons in its employment. It was pointed out, “it is true that it is an attribute of sovereignty that a State cannot be sued in its own courts without its consent”. “In England, the Crown,” it was further pointed out, “cannot be made liable for damages for the tortious acts of its servants either by petition of right or in any other manner, as laid down by Lord Lyndhurst in the case of Viscount Canterbury v. Attorney-General [1 Phillips 327]” That decision was based upon the principle that the King cannot be guilty of personal negligence or misconduct, and consequently cannot be responsible for the negligence or misconduct of his servants. … East India Company itself could not have claimed any such immunity as was available to the sovereign. This view was based on the opinion expressed by Grey, C.J., in the case of Bank of Bengal v. East India Company, [Bignell Rep p. 120] that “the fact of the Company’s having been invested with powers usually called sovereign powers did not constitute them sovereigns”.
10. This case also meets the second branch of the argument that the State cannot be liable for the tortious acts of its servants, when such servants are engaged on an activity connected with the affairs of the State. In this connection it has to be remembered that under the Constitution we have established a welfare state, whose functions are not confined only to maintaining law and order, but extend to engaging in all activities including industry, public transport, state trading, to name only a few of them. Insofar as the State activities have such wide ramifications involving not only the use of sovereign powers but also its powers as employers in so many public sectors, it is too much to claim that the State should be immune from the consequences of tortious acts of its employees committed in the course of their employment as such. In this respect, the present set up of the Government is analogous to the position of East India Company, which functioned not only as a Government with sovereign powers, as a delegate of the British Government, but also carried on trade and commerce, as also public transport like railways, post and telegraphs and road transport business. It was in the context of those facts that the Supreme Court of Calcutta repelled the argument advanced on behalf of the Secretary of State in these terms:
We are further of opinion that East India Company were not sovereigns, and, therefore, could not claim all the exemption of a sovereign; and that they were not the public servants of Government, and, therefore, did not fall under the principle of the cases with regard to the liabilities of such persons; but they were a Company to whom sovereign powers were delegated, and who traded on their own account and for their own account and for their own benefit, and were engaged in transactions partly for the purposes of Government, and partly on their own account, which without any delegation of sovereign rights, might be carried on by private individuals. There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them: Moodaley v. East India Company and Same v. Morton[1 Bro.C.C. 469]
2. … The Court, after an elaborate consideration of all possible arguments in favour of the Secretary of State, came to the following conclusion, which is rightly summed up in the headnote in these words:
The Secretary of State-in-Council of India is liable for the damages occasioned by the negligence of servants in the service of Government if the negligence is such as. would render an ordinary employer liable.
13. But it was further argued that Article 300 speaks of “like cases” with reference to the liability of the corresponding Indian States. In this connection, it was further argued that the plaintiff, in order to succeed in his action against the State of Rajasthan, must prove that the State of Udaipur, which would be deemed to be the corresponding State, would have been liable in similar circumstances before the Constitution was enacted. The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by common law. It is clear from what has been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the common law of England. It was impossible, by reason of the maxim “The King can do no wrong,” to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in state craft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2(1) of the Act provides that the Crown shall be subject to all those liabilities, in tort, to which it would be subject if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, subject to the other provisions of the Act. As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also. It has not been claimed before us that the common law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949, or even earlier.
15. Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act 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 a 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 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. Now that we have, by our Constitution, established a Republican 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 vicariously for the tortious act of its servant. This Court has deliberately departed from the common law rule that a civil servant cannot maintain a suit against the Crown. In the case of State of Bihar v. Abdul Majid [(1954) SCR 786] this Court has recognised the right of a government servant to sue the Government for recovery of arrears of salary. When the rule of immunity in favour of the Crown, based on common law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution, in our opinion, it would be only recognising the old established rule, going back to more than 100 years at least, if we uphold the various liability of the State. Article 300 of the Constitution itself has saved the right of Parliament or the legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the legislature has not expressed its intention to the contrary, it must be held that the law is what it has been ever since the days of East India Company.
16. In view of these considerations, it must be held that there is no merit in this appeal, and it is accordingly dismissed with costs.
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