State Liability - Lecture - Law - Dr. Sridhar, Lecture notes of Labour Law

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State Liability

Government Servant Sovereign Function Non-sovereign Function Defence Law & Order Adjudication Taxation Foreign Relations Done in Good faith Done in Bad faith Done in Good Faith Done in Bad Faith Servant & State Not liable No immunity State liable Servant also Statutory immunity To servants, but State liable No immunity State liable Servant also Any activity which Ordinary person Can undertake Committing Tort while exercising Liability of Government Servant and Vicarious Liability of State for injuries caused to the persons

King can do wrong

• (^) Crown Proceedings Act, 1947, which came into force on January 1, 1948.
• (^) 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 this Act.

East India Co

• (^) In India, ever since the time of the East India Company, the sovereign has been held liable to “be sued in tort or in contract, and the Common law immunity never operated in India

Other cases

• (^) Sec of State v Hari Bhanji (1882) ILR 5 Mad 273, immunity confined to acts of state.
• (^) Sec of State v Cockraft AIR 1915 Mad 993 repairing military road is sovereign act. Gravel placed on road, caused injury, not liable

Govt Servant can sue

• (^) State of Bihar Vs. Abdul Majid , (1954) SCR 786: (AIR 1954 SC 245), this Court has recognised the right of a Government servant to sue the Government for recovery of arrears of salary.

Kasturilal

• (^) Kasturilal Lal v State of UP AIR 1965 SC 1039
• (^) Was tortuous act committed by public servant in discharge of statutory functions which are referable to and ultimately based on the delegation of sovereign powers of State to such public servant?
• (^) If answer is yes, not liable.

Non-sovereign function

• (^) On the other hand if the tortuous act has been committed by a public servant in the discharge of duties assigned to him not by virtue of the delegation of any non- sovereign powers, an action for damages would lie, since the act of the public servant in such cases is same as the act of a servant who might have been employed by a private individual for the same purpose

Suggestion in Kasturilal

• (^) Supreme Court suggested legislature to make law on the lines of Crown Proceedings Act, 1947 of UK

Memon Mohamed case

• (^) State of Gujarat Vs. Memon Mohamed , AIR 1967 SC 1885; (1968) 1 SC J 273.
• (^) Certain goods were seized under the Sea Customs Act. They were not properly kept and were disposed of, by an order of the Magistrate. On the owner suing the State for value of the goods, it was held that as the seizure was illegal because –
• (^) a bailment arose;
• (^) a statutory obligation to return the goods arose; and
• (^) suit was maintainable against state

Nagendra Rao case

• (^) N. Nagendra Rao Vs. State of AP (AIR 1994 SC 2663
• (^) “In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist.
• (^) A person cannot sue if suffered by negligent way of making legislation or by negligent policy of state.

Sovereign functions

• (^) defence of the country, raising (the) armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature

Difference

• (^) The primary or inalienable functions , eg maintenance of law and order, can not be sued unless entrenches FRs of individuals
• (^) But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers

Immunity cannot extend

• (^) Functions which are not primary or not inalienable
• (^) The Act (Essential Commodities Act) deals with persons indulging in hoarding and black marketing. Any power for regulating and controlling the essential commodities and the delegation of power to authorized officers to inspect, search and seize the property for carrying out the object of the statute cannot be a power, for (the) negligent exercise of which the State can claim immunity