Author : Akshara Vijayakumar
The liability of the administration is governed by the principles of public law which have been come from British Common Law and the Provisions of the Constitution.
The liability of administration is there in tort and contract.
The administration is the one who makes the laws sometimes. The constitution is made by the state. The constitution binds the state too and checks the exercise of power by the state. The employers in the administration makes and implement laws and if they commit any negligence to any individuals, then he can make claims against the administration.
Liability of administration is also known as liability of state.
Liability of Administration in Tort
The liability of administration of tort is known as tortious liability. And these liabilities comes from the servants or employees during the course of employment.
Tortious liability of the state makes it liable, voluntarily or involuntarily puts it before the court in a claim for unliquidated damages. It is regulated by local laws and constitutional provisions.
In English law, the king makes the rule. So that, ‘’the king cannot be blamed under any circumstances’’.
In Indian laws, the maxim, ‘’the king cannot be blamed under any circumstances’’ was never accepted in India.
Article 294(4) of the Indian constitution says that, Liability of the government or state comes from the contract or any other.
Article 12 of the Indian constitution defines the term state. In Article 300(1) of Indian constitution, such liability is settled.
In a case, Arvind dattatreya v. Maharashtra state, the Supreme Court has refused the transfer of a police officer. Because it was nothing but to exercise the power to deject the duties of public office. And the government dejects the officers who clear the duties honestly and hardworking people and bringing back the person who does black marketing etc.
The vicarious liability of the state for torts are born by its servant to do the duties of the state. If the acts performed is for the protection of life or property, then the state will not be held liable.
There is no liability for the judicial and quasi-judicial decisions made in good faith.
There are some provisions that binds the administrative authority. The person who strikes the administrative actions have the right to prove a malicious act.
The vicarious liability of the states for the civil wrong committed by its servants is based on 3 principles:-
1) Respondeat Superior
2) Qui-Facit per Alium Facit per se
3) Compensation by the state
1) Respondeat superior
Respondeat superior means let the principle be liable or let the master answers to the wrong for what the servants did. According to this doctrine, the servant and the master is responsible or liable for the negligence done by the servant during the course of employment.
There are 2 essential requirements for this doctrine. They are:-
->There must be a true master-servant relationship.
->The tortious act of a servant must be within the scope of the employment.
There is a case, Automobile transport v. dewalal and ors. , In this case, Rajasthan high court held that the vehicle is driven by the order of the driver. And the appellant has the right to prove that orders is unjustified and not confirm.
2) Qui-Facit per Alium Facit per se
It is a maxim of agency law. It is a maxim of employer’s liability for the employer’s action. This is known as vicarious liability. Here, master is responsible for the actions which is done by the servants.
The Act of god or the personal acts of the nature cannot be considered to be in this maxim. It is the only exception to this maxim.
3) Compensation by the state
The word ‘tort’ is a civil wrong or injury that comes out of the contract. And for the tortious act done by a person can be solved only by the compensation. There is no other remedy for it. Therefore, it is clear that the, tort occurs from the violation of non-contractual obligation. And all the civil mistakes are considered to be as tort.
Sometimes a public servant may be unskilled. So, obtaining compensation is difficult in such a case. Compensation is more important than giving punishment.
In a case, Bhim Singh v. the state of Jammu and Kashmir, here, the petitioner is a legislative assembly member. He was travelling to Srinagar to attend legislative assembly in gross violation of his constitutional rights under article 21 and article 22(2) of the constitution. While travelling, he was arrested. Later, court granted monetary compensation of Rs.50, 000 to the petitioner.
Pertinent Case Laws
The first judicial definition of state liabilities was made by John Stuart in the year 1775.
Pre-constitutional judicial cases:-
- Peninsular and oriental Steam navigation v. secretary
- Secretary of state v. Hari Bhanji
Post-constitutional judicial laws:-
- State of Haryana v. Santra
- State of Rajasthan v. vidyawati
- Kasturi lal v. the state of Uttar Pradesh
- Unions of India v. Harbans Singh
- Secretary of state v. Cockraft
Liability of Administration in Contract
The government has great importance in modern era. Nowadays, the state or government is a source of wealth.
In the modern era of a welfare state, states or governments economic activities are widening up day by day.
Nowadays, majority of individuals and wealthiest business organizations enjoys the gift which is given by the government in the form of government contracts like licenses, so many quotas, jobs etc. So, this raises the possibility to dispense large amount of gifts in an arbitrary manner. The government should not act as such and confer the benefit whenever they want is not possible. Therefore, it is necessary to organize some norms to protect the individuals and interest in wealth.
‘’A contract is an agreement which is enforceable by law’’. This statement is written in section 2(h) of Indian contract act, 1872.
When the contract is a party of central government and state government, then it is called as “governmental contract’’.
Article 298 provides that the executive powers of the union and state is for making of contracts for any purpose.
Article 299, provides that all contracts in the exercise of the executive power of the union or state should be made by the president or governor of the state.
And all the guarantee of property exercised under the executive power should be made by the president or government of the state.
Article 299(2), says that either the president or governor will be liable if any contract or guarantee made for the purposes of this constitution or executing any contract on behalf of any individual.
Government contracts will be valid only if some conditions are followed:-
- If the government contract is not expressed the name of the president and the governor, it will not be bind.
- Only on behalf of the president or governor of the state, the contract must be executed.
- Only by the person who properly authorized by the governor or president of the state can execute the contract.
All the provisions of article 299 of Indian constitution, which is mentioned above are mandatory.
There are so many cases regarding this provisions.
It is clear that even employer working under the authority of administration can be held liable. But, even this number of wrong committed by the administration, is increasing day by day. The Administration is not working properly even the judiciary has tried to make it proper.
This situation can be changed only if the personal liability of individual neglecting officers, with their senior officials also, is strictly recognized and take action against them by human rights violation of the victims. This system can only be changed only if administration is changed.