Vicarious liability

Module No. 02

1
Vicarious liability – As an exception to general rule

• “The expression ‘vicarious liability’ signifies the liability

which A may incur for damage caused to C by the negligence
or other tort of B”
– Winfield
• The fact that A is liable does not, of course, insulate B from
liability, though as a practical matter it may be unlikely that he
will be sued or that judgment will be enforced against him
• Hence… it is an exception to the rule – a person is liable for
his own wrongful acts and one does not incur any liability for
the acts done by others

2
Common illustrations

1. The liability of the principal for the tort of his agent;

2. Liability of partners for each other’s tort; and
3. Liability of the master for the tort of his servants.

3
Master & servant

• The statement of law – “master can be held liable for the tort
of his servants, if the same is committed in the course of
employment”…
• Essentials to be looked into
1. That there exist a ‘master’ and ‘servant’ relationship; and
2. The ‘act’ under examination is done ‘during the course of
employment’.

4
The division of law

1. Those employed to perform services in connection with the

affairs of the employer and over whom the employer has
control in the performance of those services – in tort these
persons are commonly and conveniently styled as
“servants”;
2. Those who do work for another, but who are not controlled
by that another in their conduct in the performance of that
work; normally such work will be carried out in pursuance of
a contract, and the persons doing it are therefore called
“independent contractors”

5
 SERVANT INDEPENDENT CONTRACTOR

Holds master responsible – He himself is liable in case of

if the act is within the tort – no question of
scope of employment passing liability upon master

6
Justification

• Master is better able to stand the loss (or he can even insure
against the loss)
• He may pass it on to the public in the form of increased
prices and because he will be encouraged to maintain higher
standards of conduct in the running of his business
• Some principles of law – which the courts have taken into
account
1. “respondeat superior” [let the principal be liable]
2. “qui facit per alium facit per se” [he who does an act
through another is deemed in law to do it himself]

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Atiyah’s view point

“…the most widely held view among modern American writers

is that vicarious liability is justified by the principle of loss-
distribution. In great majority of cases an employer who has
to pay damages for the torts of his servants doesn't in fact have
to meet these liabilities out of his own pocket. The cost of the
liabilities is distributed over a large section of community and
spread over some period of time. This occurs partly because
of the practice of insurance and partly because most employers
anyhow are not individuals but corporations…”

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Glanville Williams’ view

‘…what other theory is there? Well, there is pure cynical theory

that the master is liable because he has a purse worth opening
the master is frequently rich, and he is usually insured – two
arguments that might be used by any burglar, if he ever
troubled to justify his thefts. The strange thing is to find them
put forward by judges of eminence…whatever (one may) ask
can have put this extraordinary idea into judge’s heads that,
mere possession of wealth is enough to justify the imposition
of legal liability for a wrong?...”

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“…obviously there is something missing from the dicta, there
must be some fact to create liability, and not merely the fact of
being master. If so, we have another un-provable principle of
natural justice; that masters ought to pay because they belong
to class of masters. One can manufacture eternal principles of
natural justice of this sort without limit…”

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Criteria to determine ‘servant’

• “…in a simple industrial society such as England was until

this century, where work was done by agricultural labourers or
craftsman under the directions of employees who had the same
or even greater technical skill than their workman, it would
ordinarily be enough to say that the employer could tell the
man not merely what task he was to perform but also he
should perform it… if the employer could do both these
things, the man was a servant…”
- Street on law of tort.

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…but now, when a new class of managers, as distinct from
owners, has arisen in industry and when so many assessed
by any of their employers, the relationship has become more
subtle and hardly capable of exact definition… the test
formerly applied will not necessarily be adequate…”

“…in short ‘control’ has become a legal fiction rather than

technical reality…”

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 The exercise of control – other details of work

Method of payment – time basis or job basis

The tools, equipments and premises to be used for work

The amount of skill called for churning out the work

The intention of the parties in getting the work done

The freedom of selection of labour by the employer

The power to dismiss the employee from his work

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• In Short v. J.W. Henderson Ltd., Lord Thankerton observed
that there must be a contract of service between the master and
servant which must include:
1) Master’s power of selection of his servant;
2) Payment of wages or other remuneration;
3) Master’s right to control and direct the mode, method and
manner of doing the work; and
4) master’s right to suspend or dismiss the servant.
• The Supreme Court in Silver Jubilee Tailoring House v. Chief
Inspector, Shops & establishments, held that “the right to
control the manner of work is not the exhaustive test for
determination of relationship of employer and employee. It is
to be considered as to who provides the equipment. It might be
that little weight can now a days be put upon the provisions of
tools of minor character as opposed to plant and equipment on
a large scale. But so far as tailoring is concerned, the fact that
sewing machines on which the workers do the work, generally
belong to the employer and it is an important consideration for
deciding that the existence of the master and servant
relationship”.
» (1974)3 SCC 498.
1. In traditional cases there is no difficulty in determining –
whether a person is servant or independent contractor [like
factory employees, office clerical staff, agricultural hands
etc,]

2. But this test proves ineffective in some of the modern

instances [like Hospitals, hire-services and others]

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Hospital cases

• Hillyer v St. Bartholomew’s Hospital [(1909) 2 K.B. 820]

– The hospital authorities were held not liable;
– This was in response to the negligence to the professional staff of the
hospital;
– The reason being – hospital authorities lacked control over them.

• Cassidy v Ministry of Health [(1951) 1 All. E.R. 574]

– The rule laid down in the above case was changed;
– Hospital authorities were held liable when, due to the negligence of the
house surgeon and other staff, during post-operation treatment;

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“…It is no answer for them to say that their staff are
professional men and women who do not tolerate any
interference by their lay masters in the way they do their
work. The doctor who treats a patient in the Walton
Hospital can say equally with the ship’s captain who sails
his ship from Liverpool and with crane driver who works
his crane in the docks, “I take no orders from anybody.”
That “sturdy answer” as Lord Simdonds described it, only
means in each case that he is a skilled man who knows his
work and will carry it out in his own way, but it does not
mean that the authorities who employ him are not liable
for his negligence”
- Lord Denning in Cassidy v Ministry of Health

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Settled propositions of law

• Nurses, radiographers, house-surgeons and assistant medical

officers in the full time service of hospitals are servants;
• Part time anesthetists have also been held to be servants on the
ground that they are members of the organization of the
hospital;
• Surgeons and consultants under the National Health Service,
even though only engaged part-time or occasionally will for
the same reason be servants of the hospital authority; and
• When the surgeon or consultant treats the patient by virtue of a
contract between him and the patient that the hospital
authority is not answerable for his torts.

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• “…test of being a servant doesn’t rest now a days on
submission to orders. It depends on whether the person is part
and parcel of the organization…”
– Denning L.J., in Bankvoor Handel en Scheepvaart NV v Slatfod,
(1953) QB 248 at p. 295.
• The variant of the old ‘control test’ is the degree of managerial
control which is exercised over the activity and this may
depend upon how far a person is integrated into the
organization.

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New test – ‘organizational test’

• How central the activity is to the enterprise?

• How far the activity is a central part of the employer’s
business from the point of view of the objectives of that
business
• The integration of the business (whether the activity is
integrated into the organizational structure of the enterprise)

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Vicarious liability

1. Master and servant relationship; and

2. The tort is committed in the course of employment.

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Course of employment

• Is the alleged act is committed by the servant is of class of acts

which are expressly authorized by the employer or is
incidental to such acts or in other words, whether the wrong
is an improper mode of doing an act which is authorized or is
incidental to such an act
• No ‘scientific classification’ is possible – Winfield
• Salmond’s interpretation, if it is either
(a) a wrongful act authorized by the master, or
(b) a wrongful and unauthorized mode of doing some act
authorized by the master.

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• The owner of the bus was held not liable when the conductor,
in the absence of the driver drove – for turning it round for the
return journey and in so doing injured the plaintiff
– Beard v London General Omnibus Co., (1900) 2 QB 530
• A master is responsible not merely for what he authorized his
servant to do but also for the way in which he does the work
he was authorized to do
– Indian Insurance Co. Association Pool v Radhabai, AIR 1976 MP 164
• The SC has observed in many modern cases to hold the master
liable for those acts which ordinarily do not fall into ordinary
categories

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Wrongful act done by servant for Master’s benefit

• Many a times the servant is placed in a situation where he does an

act which though not authorised by the master, needs to be done for
the master’s benefit. In such cases, the master is generally held
liable for the injury or harm caused by such wrongful act of his
servant.

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• Poland v John Parr and Sons, (1972) KB 236 CA;
– Servants honestly but mistakenly believed that boy, (the plaintiff) was
tampering with a bag of sugar on a wagon owned by the defendants;
– With a view to protecting the sugar and his master’s interests, the
servant stuck the plaintiff with his open hand;
– The plaintiff fell under the wagon and received injuries which led to
the amputation of his right leg, held that the defendants were liable as
their servant had acted within his implied authority to take reasonable
steps to protect their property.
• Lloyd v Grace Smith & Co., (1912) AC 716
– Managing clerk of a solicitor’s firm, while acting as a representative of
the firm, by fraud, induced a poor widow to transfer to him a sum of
money and the title deeds of certain cottages
– It was held by a majority that the defendants were not liable for the
clerk’s fraud;
– But the House of Lords unanimously held that the respondents were
liable
– The principle – if the agent commits the fraud purporting to act in the
course of business such as he was authorized, or held out as authorized
to transact on behalf of the principal, then the latter may be held liable
for it.

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• State Bank of India v Shyama Devi, AIR 1978 SC 1263
– Shri Shukla, a bank employee and neighbour of Mrs. Shayama
Devi, received periodical savings deposited into the bank and got
the entries thereof posted, confirmed and ratified in her passbook
from time to time;
– The act of false and fictitious entries made by the bank clerk to
cover up a fraud was not considered to have been made in the
course of employment;
– On the contrary the bank employee was considered to be the agent
of Mrs. Shyama Devi, the bank’s client and not that of the bank.
Therefore the bank was held not liable.
• “In what capacity Mr. Shukla obtained the money? If it was in his
personal capacity, how could he pass false entries in the bank books?
Can anyone go to a bank and do so? Unless one is acting in the course
of employment this cannot be done”

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• Morris v C W Martin & Sons Ltd., (1965) 2 All ER 725
– In Cheshire v Bailey (1905) – held that, if the servant committed a
theft of a third person’s property which had been bailed to the master,
the master could not be vicariously made liable for the same because
the servant’s act of committing the theft was considered to be outside
the course of employment.
– This was overruled in Morris by the Court of Appeal

29
“the defendants can’t in my view escape liability for the
conversion of the plaintiff's fur by their servant Morrisey.
They accepted the fur as bailees for reward in order to clean it.
They put Morrisey as their agent in their place to clean the fur
and to take charge of it while doing so. The manner in which
he conducted himself in doing that work was to convert it.
What he was doing, albeit dishonestly, he was doing in the
scope or course of his employment in the technical sense of
that infelicitous but time-honoured phrase. The defendants as
his master are responsible for his tortuous act” -- Diplock L J.,

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• Roop Lal v Union of India, AIR 1972 J&K 22
– Military jawans took away some firewood for a campfire;
– It was lying unmarked by the riverside, which they thought to be
belonging to the Government;
– On the plaintiff’s suing the Government of India it was held that this
was conversion and the Government was liable.

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Negligence

• K. Mammi v Barium Chemical Ltd., AIR 1979 AP 75;

– Driver of the vehicle left the ignition key in the vehicle – while the
same was parked at the public place;
– During his absence the same was driven by another employee in his
absence – who committed an accident;
– The master was held liable
• If the tort is of negligence or that it is one in which
inadvertence is a possible element in its commission, it may
still be in the course of employment even if the servant is not
acting strictly in the performance of his duty

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• Dayaram Poddar v Sham Mohan Kaul, AIR 1946 Cal 146;
– While driving the master’s guests home in the master’s car (with
master’s authority) deviates and takes a more attractive but much
longer route and causes an accident;
– The master’s contention that – the driver was ‘on a frolic of his own’
was rejected and he was held liable;
• it was a question of degree as to how far the deviation by the
servant could be considered a new journey so as to divest the
master of all liability
• The deviation must be extensive and grossly abusive of the
permission given to him – who are ‘incompetent dilettante’

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Effect of express prohibition

• If prohibition is to be a defense – then every employer would

escape the liability by issuing orders to his servants forbidding
them for committing any tort;
• Limpus v London General Omnibus Co., (1862)
– The express prohibition – was ‘not to race or cause obstruction’
– The servant tried to obstruct a rival omnibus and thereby caused
accident
– Held that, it was negligent mode of driving and it was held to be with
the course of employment – in spite of the express prohibition the
defendant company was held liable

34
• Twine v Beans Express Ltd., (1946)1 All ER 202
– Defendants provided a commercial van and a driver for the use of bank
– Two notices were put-up – (i) indicating that no unauthorized person
was allowed to take lift in the vehicle; and (ii) that the driver had been
instructed not to allow unauthorized person in van, and that in no case
will the defendants will be liable for damage to such unauthorized
persons
– The driver nevertheless gave lift to some unauthorized person, who
was killed owing to the negligence of the driver
– Held, the master were not liable.

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“He (the servant) was, in fact, doing two things at once. He was
driving his van from one place to another by a route that he
was properly taking… and as he was driving the van, he was
acting within the scope of his employment. The other thing
that he was doing simultaneously was something totally
outside the scope of his employment, namely, giving a lift to a
person who has no right whatsoever to be there”
-- Lord Greene

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• Conway v George Wimpey and Co. Ltd., (1951) KB 266
– Defendants were firm of labour contractors, engaged in some
construction work at aerodrome – had provided lorries for conveying
their employees to various sites
– Notice was displayed in every lorry that the driver was under a strict
order not to carry passengers other than those employed by the
defendants and that any other person traveling in the lorry did so at his
own risk
– the plaintiff, who was labourer in another firm, was given lift by the
driver of one of the defendant’s lorries and was injured due to the
driver’s negligence
– Held the master was not liable

37
“(giving lift to an unauthorized person) was not merely a
wrongful mode of performing the act of the class this driver
was employed to perform but was the performance of an act of
a class which he was not employed to perform at all”

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Negligent delegation by servant

• H.M, Govt. Girls High School v Mahalakshmi, AIR 1998 Mad. 86

– Plaintiff – a 9th standard student lost her eye sight – due to negligent
orders of an ‘aya’ employed by the school – who had a duty to arrange
water for the school children
– The school authorities and the state were held liable for negligent
delegation of authority by their servant
• Gyarsi Dev v Sain Das, AIR 1982 Raj. 30
– The driver of a truck had a duty to unload (the stones) the truck at the
consignee’s place – but authorized the cleaner to do the job and stayed
back to have his lunch;
– The truck met with an accident – due to which two persons were killed
– Held, that the master is liable

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• Sitaram v Santanuprasad, AIR 1966 SC 1697
– The question before SC was – can the master be made liable if his
driver lends the taxi to some third person for a private use?
– Sitram, the owner of the car – entrusted the same to one Mohammad
Yakub for playing it as a taxi in Ahmedabad
– Further Yakub employed cleaner and trained the cleaner in driving the
taxi – and gave the taxi to the cleaner for taking the driving test and
obtaining the driver’s licence.
– While taking the test, the cleaner took a sudden turn without giving any
signal, caused an accident and seriously injured the plaintiff’s leg
– There was nothing to show that the owner had either permitted the
cleaner to drive the taxi and take such driving test or had authorized the
driver to employ strangers to drive or take driving tests, the cleaner at
the time of the accident was not doing the master’s work, nor was the
driver while lending acting in the master’s business, the owner was
therefore not liable.

40
• State of Maharashtra v. Kanchan Mala Vijay Singh, AIR 1995
SC 2499, the state Govt. allowed a clerk to drive a jeep in a
special circumstance. At the time of accident some other
person was driving the jeep with the permission of the clerk.
The Court has held that the work of driving was authorized to
the clerk but he did this authorized work in unauthorized
manner hence the State cannot be allowed to escape vicarious
liability for the clerk’s act.
Rationale behind vicarious liability

• “The doctrine of vicarious liability has not grown from any

very clear, logical or legal principle, but from social
convenience and rough justice. The master having presumably
for his own benefit, employed the servant, and being better
able to make good any damage which may occasionally result
from the arrangement, is answerable to the world at large for
all torts committed by his servant within the scope of
employment”.

• Lord Pearce in Imperial Chemical Industries Ltd. V. Shatwell,

Doctrine of Common Employment

• The doctrine enjoins that master is not liable for negligent

harm done by one of his servants to a fellow-servant engaged
in common employment with him.
• The doctrine was for the first time invoked by Loral Abinger
in the historic judgment in Priestly v. Fowler, (1837) 3 M & W
1.

43
Priestly v. Fowler,
• The plaintiff, who was defendant’s servant, was injured and
his leg fractured due to breaking down of a over-loaded
carriage in the charge of another servant of the defendant.
• Held, that since both the wrongdoer and the injured plaintiff
were the servants of the same master, they could not recover
from the master damage caused by one of them to another
under the doctrine of common employment.
• “A servant must be deemed by accepting the services to have
consented to take its risks also and those of risks includes the
fault of his fellow servants”.

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Holdsworth formulates three principles on which the judgment
proceedings, viz.,
1) from the relation of the master and servant there cannot be an
implied obligation on the part of the master to take more care of
the servant than he takes of himself;
2) the servant, by entering on and continuing in the employment
has chosen to abide by the risk, of which he is likely to know as
much if not more than the master;
3) to allow such actions would be a direct incentive “to omit that
diligence and caution which he is in duty bound to exercise on
behalf of his master, to protect him against the misconduct or
negligence of others who serve him.”
Johnson v. Lindsay, (1891) AC 371
• It was held that where a harm is inflicted by one servant to a
fellow-servant of the same master, the master will not be liable
because the servant is presumed to have agreed to run the risk
incidental to his employment, including that of his fellow-
servant’s negligence or incompetence which might result in
damage or harm to him.

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Essential elements for the doctrine of common employment

1. Both of them must be the servants of the same master

2. The injuries must be associated or resulted in the course of
employment
3. The injuries must be as the results of the negligence of his
fellow servants
4. The servant must has been suffered the damages
Defence of common employment

• The wrongdoer and the person wronged, both were working as

fellow-servants under the same master; and
• They were working under a common employment when the
cause of action in tort arose. Employments are said to be
common within the meaning of this doctrine, when they are so
connected with each other that the risk of an accident due to the
conduct of one of them is a natural incident of the other, so that
such risk must be deemed to have been in the contemplation of
the servant when he undertook that other.

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• The doctrine was modified by the Employers’ Liability Act,
1880 to provide certain exceptions to the application of the
common employment principles.
1. Where a statute casts an absolute duty on master, he must
perform it and he will be liable for breach of such statutory
obligation. The doctrine of common employment cannot be
invoked in defence of master in such cases.

49
2. If the master himself has been negligent in selecting the proper
servant or retaining them in his employment even after
knowledge about his servant’s incompetence, master will be
liable for the injury caused by such servant to his fellow-servant.
The reason being that such injury is attributed to negligence of
the master.
3. Master is bound to take reasonable precaution to ensure the
safety of his servants & disclose to them about the possible
dangers of which he has the knowledge.

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4. The doctrine of common employment extends protection only
to the employer & not the employee. Therefore, in an action
against a servant by his fellow-servant, the wrongdoer servant
will not be permitted to escape liability by invoking the doctrine
of common employment.

51
• In Wilson & Clyde coal Co. v. English, (1938) AC 57, the
House of Lords held that the doctrine of common employment
was not only irrational but contrary to the changing economic
and industrial conditions of Britain. It was wholly
disadvantageous to the workers and employees and unduly
advantageous to the employers.

52
• House of Lords held that an employer is bound to take
reasonable (but not absolute) care for the safety of the servant
by providing:
1) A competent staff of men;
2) A proper and safe plant and appliances for the work; and
3) A proper system of conducting his work and efficient
supervision of it.
• The doctrine of common employment became obsolete and
was finally abandoned by the Law Reform (Personal Injuries)
Act, 1948.
• The Employers’ Liability Act, 1880 stood ipso facto repealed
with the enactment of Law Reform Act of 1948.
• An employer will not be permitted immunity from damages.

54
Indian Position
• In Secretary of State v. Rukmini Devi, AIR 1937 Nag. 354, a
gangman working on railway track was run over and killed by
the negligence of the railway driver. The Rly co. invoked the
doctrine of common employment in its defence, but Stone,
C.J., of the High Court of Nagpur rejected the plea and held
that it will not be expedient to apply the principle to provide
protection to employees against consequences of wrongful
acts of their servants in the prevailing Indian conditions.
• The Privy Council in Governor General-in-Council v.
Constance Zena Wells, AIR 1950 PC 22, held that the doctrine
of common employment is applicable in India but its scope is
reduced by Sec. 3(d) of the Indian Employer’s Liability Act,
1938.
• However, this section was subsequently amended by the
Employer’s Liability Act, 1951 and a new section 3-A was
incorporated in the Act making any collateral agreement
excluding or limiting the liability of the employer void, thus
giving a complete go-bye to the applicability of the doctrine of
common employment in India.
• The Personal Injury (Compensation Insurance) Act, 1963
makes it obligatory for the employers to pay compensation to
workmen or employees sustaining personal injuries and
provide for their insurance against such injuries.
Liability of the Employer for the acts of Independent
Contractors

• An independent contractor is free to take his own decisions while

carrying out the work without any interference of his employer
and it is for this reason that it is generally said that a contract by
independent contractor with the employer is a contract for service
and not contract of service.
• A contractor is liable for the wrongful acts done by his workers
and not the employer who has entered into a contract for service
with the contractor.

58
Morghan v. Incorporated Central Council
(1936) 1 All ER 404
• The respondent company had assigned the work of looking
after the functioning of the lift to independent contractor.
One day, due to some defect in the lift, its door suddenly
opened and the person inside it was thrown out & seriously
injured. He sued the company for damages.

59
• Held, the company was not liable as it had employed an
independent contractor to look after the working of the lift.
The court observed that the plaintiff should have sued the
independent contractor for damages instead of company who
engaged the contractor for lift service.

60
Exceptions to the rule

• Where the employer had interfered in the work of the

contractor as a result of which some injury or damage is
caused to some person or persons
• If the work assigned by the employer to the contractor is itself
illegal or contrary to law.
• Acts which are governed by absolute liability rule. For the
consequences of such acts, the employer will be liable and not
the independent contractor employed by him.

61
• Where law imposes an absolute duty on the employer to take
care and precaution under a statute, he would be liable for
negligence and not his contractor.
• Where the employer has failed to employ a skilled and
competent contractor for his work, he would be personally
liable for negligence in selecting proper contractor and the
consequences flowing therefrom.

62
Other relationships which may give rise to vicarious liability

• Liability of the principal for the wrongful acts of his agents.

• Liability of a partner of a firm for his fellow-partners
• Liability of parent or guardian for the wrongful acts of their
children/wards
• Master’s liability for the wrongful acts of his servants done in
course of his employment
• Liability of the State for the torts of its employees

63
Law Reform (Married Woman & Tortfeasors) Act, 1935

• Earlier the personality of the woman was completely merged

with that of her husband & she had no independent personality
• Abolished the conventional rule of husband’s liability for the
wrongful acts of his wife.

64
Liability of Partners of a Firm

• In Hamlyn v. Houston & Co., (1903) 1 KB 81, One of the two

partners of the defendant’s firm, while acting within the
general scope of his authority as a partner, bribed the
plaintiff’s clerk & induced him to make a breach of contract
with his employer, i.e., the plaintiff by leaking out the secrets
relating to the plaintiff’s business. It was held that both the
partners of the firm were liable for this wrongful act only one
of them had done it.

65
Parent’s liability for wrongful acts of their children

• The basis of this liability is implied negligence of the parent or

guardian to keep their children/wards under proper control.
• Where the child or the minor has some income of his own,
then in that case his parent/guardian will not be held liable as
the liability can be borne by the wrongdoer himself.

66
Liability of State for Torts (Pre-Constitutional Era)

• Doctrine – ‘King can do no wrong’

• Basis of Sovereign Immunity
1. King can not be sued by any worldly power because he is
beyond all jurisdictions
2. Being omnipotent, the sovereign is not answerable to his
subjects
3. The presumption that prerogative of the sovereign can do no
harm to anyone in the state
4. The sovereign being bound by law, will not permit anyone to do
an act which is prohibited by the law

67
Crown Proceedings Act, 1947

• The liability of the Crown extended to the wrongful acts of its

agents, servants & breach of duties in relation to ownership,
occupation, possession or control of property of the subjects
• The compensation or damages were to be paid from the
Consolidated Fund.

68
• However, the Act still retained the immunity of the Crown
from liability in certain specific areas like discharging judicial
duties or executing judicial process or proceedings in respect
of an act or omission in relation to Post & Telegraph
department or Armed Forces etc.,

69
Sarkar v. Subramaniam Iyer(1946 PC)
• The plaintiff was a mahant of a math who was removed from
his office by the Govt.
• He challenged the action on the ground that his office being
hereditary, he could not be removed by the Govt. arbitrarily.
• The Privy Council held that the Govt. was empowered to
remove the plaintiff from his office in exercise of its sovereign
authority, which could not be challenged in any Court of Law.

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Post Constitutional Era

• Article 300 of the Constitution of India deals with the liability

of the Union Govt. & the State Govt. for the acts of its
officials/ servants
• It may sue and may be sued subject to any provisions which
may be made by the Act of Parliament or the State Legislature
by virtue of powers conferred by the Constitution

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State of Rajasthan v. Vidhyawati, (AIR 1962 SC 933)
• The plaintiff’s husband Lokumal died after being knocked
down by a Govt. jeep driven rashly & negligently by the driver
attached to the Collector of Udaipur.
• At the time of accident, the jeep was being taken from the
workshop to the Collector’s bungalow for his official use.
• The plaintiff sued the State Govt. claiming damages.

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• The SC held that in a welfare state, the functions of the state
cannot be confined only to the maintenance of law & order, but
extend to large number of activities including industry,
commerce, state trading, public transport, etc.
• It is, therefore, too much to claim immunity of the state from
the consequences flowing out of such multifarious activities
committed by its employees in the course of their employment.

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Kasturi Lal v. State of UP, (AIR 1965 SC 1039)
• The Apex Court held that the property was seized in exercise
of the sovereign power of the State & the police officials were
acting in discharge of statutory powers & keeping the seized
property in Police Malakhana was also a sovereign function,
hence the State was immune from liability

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• “where a tortious act is committed by a public servant in
discharge of statutory function which are referable to the
delegation of sovereign powers of the state, the action for
damages for loss caused by such tortious act will not lie. On 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”.

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Criticism

“on the ground that the Court in this case focused attention only
on the fact that arrest, search & deposition of seized property
in Malkhana are sovereign functions of the state, but it
overlooked the fact that proper custody of the seized property
& handing it over to its real owner also come within the
purview of sovereign function of the State & the Court had
completely ignored this aspect”.
- Dr. H. M. Seervai

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Nilabati Behra V. State of Orissa, AIR 1993 SC 1960
• Awarding compensation to the petitioner for the death of her
son in police custody. The court held that a claim in public law
for compensation for violation of human rights and
fundamental freedoms, the protection remedy for enforcement
and protection of such right, is distinct from and in addition
to the remedy in private law damages for tort. 

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• The court expressly held that principle of sovereign immunity
does not apply to the public law remedies under Article 32 and
 Article 226 for the enforcement of fundamental rights. The
Kasturi Lal case ratio is confined to private law remedies only.

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• The distinction between public and private law and the remedies
under the two has been emphasised in Common Cause, A
Registered Society V. Union of India and Chairman, Railway
Board V. Chandrima Das cases. It was held "where public
functionaries are involved and the matter relates to the violation
of fundamental rights or the enforcement of public duties, the
remedy would still be available under the public law
notwithstanding that a suit could be filed for damages under
private law."

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SAHELI V. Commissioner of Police, Delhi, AIR 1990 SC 513
• It was another milestone in the evaluation of compensation
jurisprudence in writ courts. The masterpiece judgement in
Vidyawati, which was freezed by Kasturi Lal was rightly quoted
in this case. The State was held liable for the death of nine year
old child by Police assault and beating. Delhi Administration
was ordered to pay compensation of Rs. 75000/-.

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• The significance of this case is that firstly, the revival
of Vidyawati ratio and secondly that the Delhi Administration
was allowed to recover money from those officers who are
held responsible for this incident.

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Distinction between sovereign & non-sovereign functions

• In N. Nagendra Rao v. State of AP, (AIR 1994 SC 2663), the

Supreme Court considered the distinction between Sovereign
& non-sovereign functions at some length. It enunciated the
following legal principles:
“In the modern sense, the distinction between sovereign or
non-sovereign power thus does not exist. It all depends on the
nature of the power & manner of its exercise….

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…. Legislative supremacy under the Constitution arises out of
constitutional provisions. The legislature is free to legislate on
topics & subjects carved out for it. Similarly, the executive is free to
implement & administer the law. A law made by a legislature may
be bad or may be ultra vires, but, since it is an exercise of
legislative power, a person affected by it may challenge its validity
but he cannot approach a court of law for negligence in making the
law.

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…Nor can the Govt., in exercise of its executive action, be sued
for its decision on political or policy matters. It is in the 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 & impracticable. It would be in conflict with
even modern notions of sovereignty”.

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