1. This is a second appeal by the plaintiff against the judgment and decree of the District Judge, Bhilwara dated 12-5-1952 reversing the decree of the Munsiff Bhilwara dated 25-8-1951.
2. It involves an interesting question of law viz. whether the Union of India is responsible to pay damages in torts to a public servant in its employ on account of some mistake or wrong, if any, committed by another officer in its employment.
3. Before dealing with the question, it would be proper to narrate the facts giving rise to the present action. The plaintiff was Station Master and was posted at the Station Lambia in the year 1948.
On 6-4-1951 he filed the present suit for declaration and for award of Rs. 500/- as damages. His case was that on 13-5-1948, he was continuously on duty for the last 56 hours since he got no relief from Bhilwara in spite of repeated intimation and so, he fell ill on account of the strain of work He found it impossible to work single handed any more and, therefore, he had to close the station and retire to his quarters within the premises of the same station.
For this action, he was severely censured by the then D.T.S. Mhow and a note was made in his service-sheet. He preferred an appeal to the T. S. Ajmer and after enquiry, he was found faultless and, therefore, the said censure note was cancelled. It was alleged that after the transfer of the said T.S., his successor issued a charge-sheet against the plaintiff and in spite of the plaintiff's explanation, the D.T.S. Mhow passed an order No. E. G. 5148 " dated 31-5-1950 directing the plaintiff's reversion for one year from the Station Master's post to that of a signaller with effect from 1-7-1950.
The plaintiff filed an appeal against the said order on 18-8-1950, but in spite of reminders, he got no reply. It was averred by him that his order of reversion was absolutely illegal since the matter which was once decided could not be reopened. It was further stated that the illegal and unjust order passed against him caused him a lot of anxiety and worry with the result that his health broke down and he had to spend Rs. 400/- to regain his health. He had to spend a further amount of about Rs. 100/-on passage fare, telegrams etc. It was prayed by him that his order of reversion should be declared illegal and unjust, that he should be ordered to be reinstated as a Station Master and Rs. 5007- should be awarded to him as damages against the defendant. On 25-8-1951, the Munsiff Bhilwara decreed the suit ex parte with costs. The defendant had filed an application for setting aside the ex parte decree in the trial Court, but it was dismissed. The defendant, therefore, filed two appeals in the Court of the District Judge, Bhilwara; one against the order dismissing his application and the other against the decree.
The appellate Court dismissed the appeal against the order for setting aside the ex parte decree, but it allowed the other appeal and set aside the decree of the trial Court. It was found by the appellate Court that the order of the plaintiff's reversion was cancelled and he was reinstated as Station Master before the decree of the trial Court and therefore the declaratory decree passed by it was redundant. As regards the decree for damages, it was held by the learned District Judge that his suit was not maintainable.
4. Learned counsel for the appellant has urged that after the plaintiff had filed his suit, he had also presented an application for injunction and it was thereafter, that the departmental appeal was accepted and the plaintiff was re-instated. It was urged by him that he could not wait indefinitely for the decision of his departmental appeal and since he had received no reply for a long time, he had to file the suit.
According to learned counsel, the first appellate Court should not have therefore disallowed to him the costs incurred by him in the trial court. His next contention is that the appellate Court's decision about the non-maintainability of the suit is wrong and that the appellant is entitled to receive Rs. 5007-as damages from the respondent. Before coming to the question of costs, it will be proper to take up the second point first.
5. Learned counsel for the appellant has not been able to cite any direct authority in support of the contention that a suit like this was maintainable. He has only tried to draw inferences from certain remarks appearing in other judgments, but those remarks instead of helping him definitely tend to demolish his case. To begin with, he has referred to the case of the High Commissioner for India v. I. M. Lall, AIR 1948 PC 121(A), but in that case, it was observed by their Lordships as follows:
"It is unnecessary to cite authority to establish that no action in tort can lie against the Crown and therefore any right of action must either be based on contract or conferred by statute."
6. It is clear from the said observation that it is absolutely of no help to the appellant because his case is not based on contract nor it has been pointed out that his right of action is conferred by statute. On the other hand, these observations definitely go against the appellant.
7. Learned counsel has next referred to the case of Shri Om Prakash Gupta v. United Provinces, AIR 1951 All 205 (B). That case is also of little aid to the appellant because the learned Judges were there considering the right of a civil servant to claim arrears of salary from the State.
Then he has referred to the case of Province of Bombay v. Madhukar Ganpat, AIR 1952 Bom 37 (C). That is also of little avail to the appellant. In that case also it was observed following the dictum of their Lordships in the case of the High Commissioner for India v. I. M. Lall, (A) that
"No action in tort could lie against the Crown and therefore any right of action for damages must either be based on contract or conferred by statute."
It was held that a claim to damages and arrears of pay must fail where there is neither a contract nor any provision in any statute conferring such a right.
Lastly, learned counsel has referred to the case of State Of Bihar v. Abdul Majid., AIR 1954 SC 245 (D). In the above case it was held by their Lordships that the rule of English law that a civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary does not prevail in this country. It has been negatived by the provisions of the Statute law in India. It may be pointed out that in the above case, their Lordships were only considering a civil servant's right to recover the arrears of his salary from the State.
The present case is not for the recovery of any salary and so that case is not helpful to the appellant. Their Lordships did not decide in that case whether a civil servant could maintain a suit against the State for a tortious act committed by another civil servant in the employ of the State. On the other hand, the following observation appearing in para 17 of the judgment makes an adverse reflection on the argument raised by the appellant. It runs as follows:
As regards torts of its servants in exercise of sovereign powers, the Company was not, and the Crown in India was not, liable unless the act had been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on 'quantum meruit' or contract and the Court is entitled to give relief to him.
8. It is obvious that in the opinion of their Lordships neither the Company nor the Crown in India was liable for torts of its servants unless the act had been ordered or ratified by it. The appellant's learned advocate has not been able to show if the said position has been advanced after the enforcement of the Constitution of India and if the Union of India will be responsible in tort for the actions of its employees even though the tortious act may not have been ordered or ratified by the Union of India.
In the case of Udaychand v. Province of Bengal, 51 Cal WN 537 (E), the learned Judges explained the reason why an action in tort could not lie against the Government for acts done by officers in the discharge of their official duties. The following observation may be quoted with advantage:
"A distinction must be made between acts done by the Crown in pursuance of ventures which a private individual might undertake equally well, and acts done in exercise of Governmental powers which could not be lawfully exercised save by the sovereign authority or persons to whom the sovereign authority might delegate those powers. Acts of the former class are mercantile operations or operations of like kind in which the East India Company actually engaged itself before and even after it had acquired sovereignty.
The reason why an action lies against the Crown with reference to acts of this type is, on the one hand, a historical reason, because actions could, in fact, be brought against the East India Company at the relevant time, and, on the other hand, a statutory reason because a specific provision, saving the right of action in such cases, has been made in all the successive Government of India Acts.
Acts of the second class fall under two categories. Once class are acts of State, properly so called, such as making a treaty, commandeering private property for war purposes, or quelling civil disturbances by force. Such acts are never justifiable in Courts of law, and since the Crown itself is not answerable for such acts in its Court, there is no principle upon which it could be made liable for the acts of its officers or subordinates.
The immunity is absolute. The other class of acts are those which are done under the sanction of some municipal law or statute and in exercise of powers thereby conferred. This class can be subdivided further into two classes: (i) those consisting in detention by the Crown of land, goods or chattels belonging to the subject, and (ii) those done by officers of the Crown in the discharge of their official duties.
With regard to acts of the first sub-class, an action would lie in the Courts in India, and it would seem that even in England, a Petition of Right would lie. With regard to acts of Sub-class (ii), however, no action would He except in cases where it can be proved that the impugned act had been ex-
pressly authorised by the Crown or that the Crown had profited by its performance.
The reason why no right of action lies except on proof of special authorisation by the Crown is that, in the absence of such proof the act is considered to have been done in exercise of the power or the discretion vested in the officer by the relevant law and in pursuance of any implied authority derived from the Government. These principles can be enlarged or curtailed by statute in the Dominions and Colonies, and so far as India of the present day is concerned, the Government of India Act of 1935 makes the rule contained in Section 176 expressly subject to any provisions which may be made by an Act of the Federal or a Provincial legislature."
9. Again, in the case of District Board of Bhagalpur v. Province of Bihar, AIR 1954 Pat 529 (F), it was held following the above view that when the duty to be performed is imposed by law, and not by the will of the employer, the employer is not liable for the wrong done by the agent in such employment, powers and duties, which are fixed by law, are governmental and not commercial, and acts done in the exercise of these powers, or in the purported fulfilment of those duties are not within the rule of vicarious liability.
In the present case also, whatever action was taken by the appellant's superiors against him was in exercise of the powers which were laid down by law. Even if it be cenceded for the sake of argument that the appellant's superiors committed any mistake, the Union of India cannot be responsible vicariously for the acts of its employees because that action was not taken against the appellant by the will or order of Union of India nor was that action ratified by it.
On the other hand, whatever action was taken against the appellant by his officers was during the course of statutory duties and, therefore, the appellant's suit against the Union of India was not maintainable. The learned District Judge was quite correct in dismissing the appellant's claim for Rs. 500/-.
10. The next point for consideration is whether the appellant is entitled to receive costs in the trial Court, it is urged by his learned counsel that the appellant was reverted from his post of station Master and although he had filed his appeal, no relief was given to him for a long time and, therefore, he was compelled to bring the present suit. It is further urged that it was after the presentation of his application for injunction that the departmental appeal was accepted and he was reinstated.
It is contended that he was, therefore, entitled to receive costs in the trial Court. I have given due consideration to this argument. There would have been much force in the appellant's contention if he had confined his suit to a declaration that the order of his reversion was wrong. Instead of that, he brought a suit for Rs. 500/- for damages which was not maintainable. If he is entitled to costs for a part of the suit, so is the respondent entitled to receive costs from him with respect to that part of the suit which has been dismissed. The learned District Judge was therefore not wrong in mailing the costs easy and I see no good reason to interfere with his discretion.
11. The appeal is dismissed. In the circumstances of the case, the parties are left to bear their costs.