The State of Rajasthan Vs. Mst.
Vidhyawati & ANR [1962] INSC 36 (2 February 1962)
02/02/1962 SINHA, BHUVNESHWAR
P.(CJ) SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
HIDAYATULLAH, M.
SHAH, J.C.
MUDHOLKAR, J.R.
CITATION: 1962 AIR 933 1962 SCR Supl. (2) 989
CITATOR INFO:
RF 1965 SC1039 (12,13,27,ETC,) MV 1967 SC 997
(52) D 1967 SC1885 (7) E&R 1978 SC 548 (21) F 1990 SC 513 (13) RF 1990
SC1480 (73)
ACT:
Tort-Suit for damages-Liability of State for
tortious act of its servant acting as such- Constitution of India, Arts. 300
(1), 294, 295- Government of India, Act 1935 (25 and 26 Geo. V. C. 42) s. 176
(1)-Gavernment of India, Act, 1915 (5 & 6 Geo. V. C. 61), s. 32-Government
of India Act, 1858 (21 and 22 Victoria Ch. U.V. 1), s. 65.
HEADNOTE:
The respondent 1's husband and father of
minor respondent 2 was on February 11, 1952, knocked down by a Government jeep
car rashly and negligently driven by an employee of the State of Rajasthan,
while being taken from the repair shop to the Collector's residence, and subsequently
died in hospital. On a suit by the respondents for damages, the trial court
decreed the same exparte as against the driver but dismissed it as against the
State, holding that as the car was being maintained for the use of the
Collector, in discharge of his official duties, even though it was not being
used for any purposes of the State at the time of the occurrence, that was
sufficient to absolve the State of any vicarious liability as the employer. The
High Court on appeal, disagreeing with the trial court, decreed the suit as
against the State as well.
^ Held, that the liability of the State for
damages in respect of a tortious act committed by its servant within the scope
of his employment and functioning as such was the same as that of any other
employer.
The relevant provisions for determining the
extent of that liability were not those contained in Arts. 294 and 295 which
were primarily concerned with the devolution of rights, assets and liabilities
but those of Art. 300 (1) of the Constitution, which by using the expression
"in like cases" in its second part defined the extent of that
liability and referred back to the legal position obtaining before the
promulgation of the Constitution.
Article 300 (1), read in the light of s. 176
(1) of the Government of India Act of 1935, s. 32 of the Government of India
Act, 1915, and s. 65 of the Government of India Act, 1858, left no manner of
doubt that the extent of the liability of a State must be the same as that of
the East India Company as decided by the Supreme Court of Calcutta, in the case
of Peninsular and Oriental Steam Navigation Co. v. The Secretary of State for
India.
990 Peninsular and Oriental Steam Navigation
Co. v. The Secretary of State for India, (1868-69) 5 Bom. H. C. R. 1, approved.
Regard being had to the stages by which the
State of Rajasthan was ultimately formed, it was not possible in order to judge
the liability of that State under Art, 300 (1) to go beyond the last stage of
integration leading to the formation of the Rajasthan Union on the eve of the
Constitution and that Union would be the corresponding State as contemplated by
the Article. In the absence therefore, of any law providing otherwise, the
Union of Rajasthan, just as the Dominion of India or any of its constituent
providences, would be vicariously liable for the acts of its servant.
Viewed from the stand-point of the first
principles, the conclusion could not be otherwise.
Ever since the days of the Fast India
Company, the Sovereign was held liable to be sued in tort or in contract and
the English Common law immunity as it existed in England before the enactment
of Crown Proceedings Act, 1947, never operated in India.
With the advent of the Constitution and
inauguration of the Republic with a view to establishing a Socialistic State
with its varied industrial and other activities engaging large numbers of
employees there could be no justification, in principle or public interest,
that the State should not be held vicariously liable for the tortuous acts of
its servants.
State of Bihar v. Abdul Majid, [1254] S.C.R. 786,
referred to As neither the Parliament nor any State Legislature had thought fit
to enact any law on the matter, a right saved by Art, 300 of the Constitution,
the law must continue to be the same as it had been since the days of the East
India Company.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 263 of 1958.
Appeal from the judgment and decree dated
March 22, 1957 of the Rajasthan High Court in D. B. Civil First Appeal No. 36
of 1954.
G. C. Kasliwal, Advocate-General, Rajasthan,
H.R. Khanna, B.K. Kapur, P.D. Menon, for the appellant.
S. N. Andley, Rameshwar Nath and P.L. Vohra,
for the respondents.
991 1962. February 2. The Judgment of the
Court was delivered by SINHA, C. J.-This appeal, on a certificate granted by
the High Court of Rajasthan under Art.
133(1)(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.
The facts of this case may shortly be stated
as follows. The first defendant 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
992 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, who was the respondent in the High Court, and
is the appellant before us, contested the suit chiefly on the ground that it
was not liable for the tortious act of its employee. The Trial Court, after an
elaborate discussion of the evidence, decreed the suit against the first
defendant ex-parte, and dismissed it without costs against the second
defendant. On appeal by the plaintiffs, the High Court of Rajasthan (Wanchoo
C.J., and D. S. Dave J.) allowed the appeal and decreed the suit against the
second defendant also, with costs in both the Courts. The State of Rajasthan
applied for and obtained the necessary certificate "that the case fulfils
the requirements of Art.
133(1)(c) of the Constitution of India".
The High Court rightly observed that an important point of law of general
public importance, namely, the extent of the liability of the State, in tort,
was involved.
In support of the appeal, counsel for the
Appellant raised substantially two questions, namely, (1) that under Art. 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, 993 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 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 use at the time of the occurrence for any purposes
of the State. The Trial Court accepted the contention of the State of
Rajasthan, on reaching the conclusion, after a discussion of the legal
position, in these words:
"Therefore it follows that the
constitution and control of the Collector's office at the Udaipur is an
instance of exercise of sovereign powers." 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 in so far 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." 994 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.
The more important question raised on this
appeal rests upon the true construction and effect of Art. 300(1) of the
Constitution, which is in these terms:
"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 State
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 995 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 chapter III of part XII of the Constitution, which is headed
as "Property, Contracts, Rights, Liabilities, Obligations and Suits",
contains other Articles in the Chapter dealing with rights and liabilities,
namely, Arts.
294 and 295 and that Art. 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 Art. 300 was irrelevant for determining
the vicarious liability of the defendent 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 Art. 300 are wholly out of the way for
determining the liability of appellant State. It is true that arts. 294 and 295
deal with rights to property, assets, liabilities and obligations of the
erstwhile Governors' Provinces or of the Indian States (specified in Part B of
the First Schedule). But Arts. 294 and 295 are primarily concerned with the
devolution of those rights, assets and liabilities, and generally speaking,
provide for the succession of a State in respect of the rights and liabilities
of an Indian State.
That is to say they do not define those
rights and liabilities, but only provide for substitution of one Government in
place of the other. It is also true that first part of Art. 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 996
Constitution. That legal position is indicated in the Government of India Act,
1935 (25 & 26 Geo. V c. 42), s. 176(1) 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." It will be
noticed that the provisions of Art.
300(1) and s. 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 s. 32 of the Government of India Act, 1915 (5 & 6 Geo. V c.
61) Sub-ss. (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 the East
India Company if the Government of India Act, 1858, and this Act had not been
passed." As compared to the terms of Art. 300, it will be noticed that part
(1) of that Article corresponds to sub-s. (1) of s. 32 above, part (2) roughly,
though not exactly, corresponds to sub-s. (2), and part (3) of the Article, as
indicated above, does not find a 997 place in s. 32. Sub-section (2) of s. 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
the 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 the Act 21 & 22 Victoria Ch. 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 word
"shall and may have and take the same suits, remedies and proceedings"
in s. 65 above, by incorporation, apply the Government of a State to the same
extent, as they applied to the East India Company.
998 The question naturally arises: What was
the extent of liability of the 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 The Peninsular and Oriental Steam Navigation Company
v. The Secretary of State for India (1). The Calcutta case appears to have been
cited before the High Court in Bombay in the case of Narayan Krishna Land v.
Gerard Norman, Collector of Bombay(2). The Bombay case related to an action of
trespass, brought by the plaintiff against the Collector of Bombay in respect
of certain land, which the Collector believed was Government property. Of
immediate importance to us in his case is the report of the Calcutta case,
which does not appear to have been reported in any Calcutta legal, journal
though, on the face of it, it was judgment of far reaching importance and has
always been cited as the leading case on the subject. It was a case decided by
a Full Bench, consisting of Peacock, C.J., and Jakson and Wells, JJ., of the
Supreme Court of Calcutta. It arose out of a reference by the Small Cause Court
Judge under s. 55 of Act IX of 1850. The case, as stated to the Supreme Court,
was to the following effect.
A servants 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 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 999 carriage was injured. The
plaintiff company claimed damages against the Secretary of State for India for
the damage thus caused. 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. In the course of their judgment, their
Lordships began by examining the question whether the proviso to the
jurisdiction of the Small Cause Courts to the following effect could be a bar
to the suit:
"Provided always that the Court shall
not have jurisdiction in any matter concerning the revenue, or concerning any
act ordered or done by the Governor, or Governor- General or any member of the
Council of India, or of any Presidency, in his public capacity, or done by any
person by order of the Governor-General or Governor in Council, or concerning
any act ordered or done by any Judge or Judicial Officer, in the execution of
his office, or by any person in pursuance of any judgment or order of any
Court, or any such Judge or Judicial Officer, or in any suit for libel or
slander." (Proviso to s. 25 of the Small Cause Court Act.).
The Court came to the conclusion that the
proviso was not a bar to the suit. Having disposed of the preliminary question,
the Court addressed itself to 1000 the main controversy, which it described as
"one of very considerable importance and of some difficulty". Then
the Court considered the provisions of s. 65 of the Act of 1858, and pointed
out that as the Queen could not be sued in her own courts, as the East India
Company could have been, it was necessary to provide by that section the mode
for enforcing the liabilities of the Company now devolved upon the Secretary of
State. Then the Court addressed itself to the question. Would the East India
Company have been liable in the present action if the Act (21 & 22 Vict.
ch. 106) had not been passed ? With reference to the provisions of 3 & 4 Wm
IV, c. 85, it was pointed out that the Company not only exercised powers of
government, but also carried on trade as merchants. The Court then examined in
great detail the provisions of the Act aforesaid and pointed out that by that
Act the Company was directed to close its commercial business and cease to have
any interest in the territorial acquisitions in India, which were to be held by
the Company until April 30, 1854, in trust for the Crown. Section 10 of the
Act, which may be characterised as the ancestor of s. 65 of the Act of 1858,
provided as follows:
"That so long as the possession and
government of the said territories shall be continued to the said Company, all
persons and bodies politic shall and may have and take the same suits,
remedies, and proceedings, legal and equitable, against the said Company, in
respect of debts and liabilities as aforesaid, and the property vested in the
said Company in trust as aforesaid shall be subject and liable to the same
judgments and execution, in the same manner and form respectively as if the
said property were hereby continued to the said Company to their own use."
It is noteworthy that the provisions of s. 10, quoted above, are materially
similar to the latter part 1001 of s. 65 of the Act of 1858. It was in
accordance with the provisions of s. 10, followed up by s. 65 aforesaid, that
the Court laid it down that the Secretary of State for India was subject to the
same liabilites as those which previously attached to the East India Company.
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 Lyndhnrst in the case of Viscount Canterbury v. The
Attorney-General" (1). 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. The
Court further pointed out that it was in view of these difficulties in the way
of getting redress that the liability of the Secretary of State, in place of
that of the East India Company, was specifically provided for by s. 10,
aforesaid. The 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 the Bank of Bengal v. The East India
Company (2), that "the fact of the Company's having been invested with
powers usually called sovereign powers did not constitute them
sovereigns". This dictum was also founded upon the recital in 53 Geo. III
c. 155, by which the territories in the possession and under the government of
the East India Company were vested in them without prejudice to the undoubted
1002 sovereignty of the Crown. The Court also pointed out that the liability of
the Secretary of State was in no sense a personal liability, but had to be
satisfied out of the revenues of India.
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. In so
far 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 the 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,
posts 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:
"It was contended in argument that the
Secretary of State in Council, as regards his liability to be sued, must be
considered as the State, or as a public officer employed by the State. But, in
our opinion his liability to be sued depends upon an express enactment in the
21st & 22nd Vict. c. 106, by which he is constitututed a mere nomial
defendant for the purpose of enforcing payment, out of the 1003 revenues of
India, of the debts and liabilities which had been contracted or incurred by
the East India Company, or debts or liabilities of a similar nature, which
might afterwards be contracted or incurred by the Government of India. We are
further of opinion that the 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 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. The East India
Company and The Same v. Morton (1 Bro. C. C. 469)".
It was also argued before that Court that the
East India Company having the two-fold character of a sovereign power and of a
trading company, it would be very difficult to determine whether a particular
act had been done in the exercise of sovereign powers or of its activity in
relation to business. In answer to this contention, it was pointed out by the
Court that the Company would not have been liable for any act done by its
officers or soldiers in carrying on hostility or in seizing property as prize
property or while engaged in 1004 military or naval action. In such cases no
action would have lain even against the officers themselves. But the Company
would have been liable for the negligence of their servants or officers, in
navigating a river steamer or in repairing the same or in doing any act in
connection with such repairs.
The argument that a distinction had to be
drawn between the liability under a contract and that arising out of a wrongful
act, and that the latter category of liability would not be within the mischief
of the words of the section (s. 65) was rightly repelled with reference to the
words of the Statute, which said "debts lawfully contracted and expenses
or liabilities incurred".
The latter expression 'liabilities incurred'
would include a liability arising out of a tortious act.
The Court, after an elaborate consideration
of all possible argument in favour of the Secretary of State, came to the
following conclusion, which is rightly summed up in the head-note 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." But it was further argued that Art. 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
history of events leading up to the formation of the State of Rajasthan has, to
be adverted to in this connection. It is clear, on a reference to the
Government publication called "The White Paper on Indian States"
paragraphs 134 to 138, at pages 1005 (53-55) that the integration of the
Rajasthan States into one single state was effected in several stages. The
Rajasthan Union was originally formed by the smaller States, which later united
and formed the United State of Rajasthan, inaugurated on March 25, 1948.
Subsequently, bigger States joined and the second Rajasthan Union was
inaugurated on April 18, 1948. By a further process of integration of some
bigger States, new United State of Rajasthan was inaugurated on March 30, 1949.
There was a further accession of territory by the agreement contained in
Appendix XLI, on May 10, 1949, with the result that the initial United State of
Rajasthan with an area of 16, 807 sq. miles developed into one of the biggest
units in India, as the Rajasthan Union, before the Constitution, with an area
of 1,28,424 sq. miles, and finally, on the inauguration of the Constitution
emerged the State of Rajasthan as one of the Part B States. It is clear that we
cannot go beyond the last stage of the integration, as aforesaid, which brought
into existence the State just before the coming into effect of the
Constitution. As already pointed out, the provisions of the second part of Art.
300 have to be traced backwards until we reach the Government of India Act 1858
(s.65), which itself was based upon s. 10 of the Act (3 & 4 Wm. IV c. 85)
of which the relevant portions have been set out above.
From the resume of the formation of the State
of Rajasthan given above, it is clear that we need not travel beyond the stage
when the Rajasthan Union was formed on the eve of the Constitution.
It has not been shown that the Rajasthan Union
would not have been liable for the tortious act of its employee, in the
circumstances disclosed in the present case. The issue framed at the trial, on
this part of the controversy, was issue No. 9, in these terms:
1006 "Whether the State of Rajasthan is
not liable for the act of Defendant No. 1 ?" 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 aforesid 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 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 Bervants 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 be
the said Act with effect from 1948, applied to the Rajasthan Union in 1949, or
even earlier. It must, therefore, 1007 be held that the State of Rajasthan has
failed to discharge the burden of establishing the case raised in Issue No. 9,
set out above.
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 the East India
Company, the soversign 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.
The 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 (1), 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 1008
years at least, if we uphold the vicarious liability of the State. Art. 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.
In view of these considerations, it must be
held that there is no merit in this appeal, and it is accordingly dismissed
with costs.
Appeal dismissed.
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