State of Rajasthan v. Vidhyawati
AIR 1962 SC 933: 1962 Supp (2) SCR 989
JUDGES : B.P. Sinha, C.J. and J.C. Shah, J.L. Kapur, J.R. Mudholkar and M. Hidayatullah, JJ.
Date of Decision: 2-2-1962
One Lokumal (first defendant in the suit in Trial Court), employed as the driver of a government jeep car, while driving the car 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 moved 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 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. 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. 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 which is the appellant in this Court.
Then the State of Rajasthan on a certificate granted by the High Court under article 133(1)(c) of the Constitution preferred an appeal to the Supreme Court. The appeal 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.
Vicarious liability of Government for the tortious acts of its employees acting in the course of their employment.
The question raised in this appeal rests upon the true construction and effect of article 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.”
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.
Articles 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 articles 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 not correct to say that the provisions of article 300 are wholly out of the way for determining the liability of the appellant State. The first part of article 300 deals only with the nomenclature of the parties to a suit or proceedings 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, 1935 (25 & 26 Geo. V c. 42), section 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 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 (5 & 6, Geo. V c. 61) sub-sections (1) and (2), which only are relevant for the 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.”
Part (1) of article 300 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 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 the East Indian Company, if the Government of India Act of 1858, and the Government of India Act, 1915, had not been passed.
The Court is further referred 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 section 65 above, by incorporation, apply to the Government of a State to the same extent, as they applied to the East India Company.
The history of events leading up to the formation of the State of Rajasthan has to be adverted to in this connection. 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 the Court 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 article 300 have to be traced backwards until we reach the Government of India Act, 1858 (Section 65), which itself was based upon section 10 of the Act (3 & 4 Wm. IV c. 85) of which the relevant portions have been set out above.
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. Further, 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. The appellant did not show 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 development of Statecraft, 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.
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 the Court in the present case 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. It must, therefore, be held that the State of Rajasthan has failed to discharge the burden of establishing the case.
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 acts of its servant. Thus, it must be held that there is no merit in this appeal, and it is accordingly dismissed with costs.
The liability of the State in respect of the tortious act by its servants within the scope of his employment and functioning is similar to that of any other employer.