what transfers the actus reus and mens rea of an employee to the employer?

Past Kratika Singhal, Christ University

Editor's Note: This paper discusses the doctrine of Vicarious Liability. Vicarious liability also known every bit joint responsibility liability is a legal theory of liability that empowers the court to hold a person liable for the acts of other. Under this doctrine individuals can be made vicariously liable for a criminal act of others even if they merely helped to further the crime in some manner example aiding and abetting criminal activities. This frequently occurs in the context of civil police force—for example, in employment cases. In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person for wrongful acts committed past someone else. This doctrine is considered to be fundamentally flawed under criminal law because it is based on "respondent superior" principles that are concerned with distributing loss caused by tortious deed.

Vicarious liability is ane of those liabilities that is imposed on one person for the wrongful actions of some other person. Such a liability arises usually because of some or the other legal human relationship between the two. The important point to exist noted to impose such a liability on some other person is that an human activity on which such a liability is imposed should have happened in the grade of employment.

TORT LAW OR CIVIL LAW

Essentials to constitute vicarious liability:

1. Relation

There should be some or the other relationship between the wrong doer and the person who gave the guild. Relationship can be that of Master-Retainer, Principle-Agent, Contained Contractors and alike. Under Independent Contractors two things are at that place that is Contract of Service and Contract for Service.

Contract of Service- Under such contract you are already in contract and service is of permanent nature. The service is for particular objective. Example Chief-Servant relation- taking care of the house for ii-3 years. These are basically general contracts which don't have whatever limitation in decision-making the acts of others.

Contract for Service- This is a contract for i item reason. In that location is a limitation on the ability of controlling the acts of another. Case relationship nexus between an  employee and the employer- can merely allot the work to the employee, doesn't control the manner in which work has to exist undertaken.

2. Ratification

 Nether tort law a person may be liable in respect of wrongful acts or omissions of another in 3 ways:-

1. As having ratified or authorised the detail act with the full knowledge of it being tortious;
2. As continuing towards the other in a relation entailing responsibility for wrongs done by that person; and
3. As having abetted the wrongful act committed by others.

In ratification the relationship tin exist between any 2 or more person, it need not exist but master-retainer relation.

• Form of Employment

An act is deemed to be washed in the course of employment if it is either (a) wrongful act authorised past the master eg. delegation of piece of work by the authorised person to someone unauthorised (b)wrongful & unauthorised mode of doing some act authorised by master i.e unauthorised in the way human activity is washed by the retainer.

Instance laws

i. Short 5. J & Wittendevson Ltd[i]

This is the first case in tort police which gave the control test which need to be fulfilled in order to make the primary liable for the acts of retainer.

The four criteria to test whether the chief is liable are:

1. Masters power in choice of his servant
2. Payment of wages or any other remuneration
3. Masters right to control the method of doing work
4. Masters correct of suspension or dismissal

ii. Dharangadhara Chemical Works Ltd. v. State of Saurashtra[2]

In this example it was held that the control test has to be diluted, every bit it is non e'er possible in these days. Just at the same time the master control is not diluted as all the same he will exist made liable in the aforementioned extend as before when the servant employed by him has washed the wrongful act.

3. Montreal v. Montreal Locomotive Works Ltd.[iii]

In this example, the courtroom gave few more than conditions  to be fulfilled to determine command of master over the acts of the retainer. These weather are:

1. Command is the desire or extend of control
2. Ownership of tools
3. Adventure of turn a profit
4. Risk of loss

iv. Cassidy v. Ministry building of Health[iv]

In this instance the human relationship between Contract of service and Contract for Service was diluted. Lord Danning held that fifty-fifty hospital dominance cab ne made liable for the act of professional employed by information technology for negligence.

v. Lloyd v. Grace, Smith & Co.[v]

In this case plaintiff had two houses for herself. She wanted to meliorate the revenue from the houses and then she went to the defendant company for seeking advice. In that location in the office of the company she was greeted past the managerial clerk. Managerial clerk asked her to sign some papers which he told her to exist auction deeds intended to become for public sale. In bodily he was making her sign gift deed executed in his own name. He then transferred all the coin in his business relationship and and then resigned from the role. The Court made the principal liable i.due east the visitor equally agent was acting in the capacity of employee.

Reasons why master is held vicariously liable

Historic liability for such an imposition was because of slavery system that existed before. As slave were considered to exist the property of the master. So any tortious act committed past the slave was considered to exist washed on the direction of the main. Therefore slave along with master was made liable.

Now-a-days reasons behind attaching vicarious liability to a chief include:

• Compensation/ Amercement: for the purpose of awarding acceptable compensation to the injured part and stop the arraign game amid servant and the master.
• Fugitive exploitation of servant- Hire and burn down rule. Commencement directing servant to practise tortious act and then later on he does it to fire him to avoid the consequences arising from thereof.
• Respondent Superior: "let the master be held responsible" or "allow the superior make answer". It is the principle in tort constabulary belongings an employer liable for the employee's/ agent's wrongful acts committed within the scope of employment of agency.
• Qui facet alium facet perse: Every human activity which is done by a servant in the course of his duty is regarded as done by his masters club and consequently it is the same as if it was the masters own act. If A is doing act for X. It will be considered as X himself is doing the act himself and thus is also made liable for the act of A.

CRIMINAL Constabulary

A person tin can exist criminally liable for the acts of some other if they are a political party to the offense. For instance, the commuter of the become-away car is guilty of the armed robbery of a store even though the commuter never left the auto, and the unabridged robbery itself was committed past others. The essence of vicarious liability in criminal law is that a person may be held liable equally the principle offender that is the perpetrator of a crime whose actus reus is physically committed by someone else. It is believed that person merely performing the actus reus on the say of some other is not innocent and thus is as well fabricated liable for the offence. The constabulary sometimes focuses upon the relationship betwixt the defendant and the performer of the physical acts and past virtue of that relationship; information technology attributes the acts of the latter to the former. It should be emphasised at the first that this form of liability in criminal police force is very much an exception rather than the rule. The concept of vicarious liability is mainly a civil law principle whereby an employer is fabricated liable for the negligence or alienation of duty of his employees.

Indian Perspective

 IPC makes a difference from the general dominion in few cases, on the principle of respondent superior.[vi] In such a case a main is held liable under various sections of the IPC for acts committed by his agents or servants. Section 149 provides for vicarious liability, it states that if an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such every bit the members of that assembly knew that the offence to be probable to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed.[vii]

Section 154 holds owners or occupiers of land, or persons having or claiming an interest in land, criminally liable for intentional failure of their servants or managers in giving data to the public authorities, or in taking acceptable measures to stop the occurrence of an unlawful assembly or riot on their land. The liability on the owners or occupiers of land has been fixed on the assumption that such persons, by virtue of their position as country-holders, possess the ability of controlling and regulating such type of gatherings on their holding, and to disperse if the object of such gatherings becomes illegal.[viii]

Section 155 fixes vicarious liability on the owners or occupiers of land or persons claiming interest in land, for the acts or omissions of their managers or agents, if a riot takes place or an unlawful assembly is held in the involvement of such class of persons.

Section 156 imposes personal liability on the managers or the agents of such owners or occupiers of holding on whose state a riot or an unlawful assembly is committed. Section 268 and 269 explicitly deals with public nuisance. Nether this section a main is made vicariously liable for the public nuisance committed by servant. Section 499 makes a master vicariously liable for publication of a libel by his retainer. Defamation is an offence nether this section.

Vicarious liability nether Special Statutes

The doctrine of vicarious liability is more oftentimes invoked under special enactments, such as Defence of India Rules 1962, The India Ground forces Human action 1911, The Prevention of Food Adulteration Act 1954, The Drugs Act 1940, etc. A primary is held criminally liable for the violation of rules contained under the aforesaid statutes, provided that his amanuensis or servant, during the course of employment, committed such act[9].  In Sarjoo Prasad v. State of Uttar Pradesh[x] , the appellant, who was an employee, was convicted under the Prevention of Food Adulteration Act 1954 for the act of the master in selling adulterated oil.

Liability of Primary

An innocent primary is not criminally liable for acts of servants in case of cl 22, of the Motor Spirit Rationing Club 1941, but in the case of accented prohibition under cl 27A the primary is liable.[xi]

Ravula Hariprasada Rao v. State of Madras[xii]

In this example, it was held that the licensed victualler was liable to be convicted although he had no knowledge of the act of his servant. In dealings with case, Blackburn J observed 'if we hold that there must be a personal knowledge in the licensed person, we would make the enactment of no effect.' The appeal was immune in role, and while the conviction and sentence imposed on appellant on the first charge in both the cases were quashed, the confidence and sentence on the third charge in the second case were affirmed.

Liability of Corporations for Criminal Wrongs

Although information technology was early said that a corporation could not commit a crime," this view has been rejected. Argument has fifty-fifty supported the contrary extreme that a corporation should be held guilty of any law-breaking if its human being agents who commit information technology so human activity that their behave is within the course of their employment as tested by the standards applied to tort liability. In determining whether this contention is justified, the problem first arises whether existing legal concepts permit the imposition of such extreme liability. Second, assuming criminal responsibility can exist imposed, nether what circumstances is it justified? A corporation can act merely through its agents. And as the share-holders are the persons, punished when a corporation is convicted, corporate criminal liability is necessarily vicarious – the liability of shareholders for acts of their agents. Where criminal intent is immaterial, corporate criminal responsibility for the physical acts of agents has long been clear. It should exist equally obvious that the stardom between concrete acts and mental states of agents presents no logical barrier to imposing vicarious responsibility." Instead of regarding the problem equally 1 of vicarious liability, however, the courts have stumbled over the theoretical difficulties of ascribing criminal intent to a corporation. It has been affirmed repeatedly that corporations by their very nature are incapable of committing such crimes as bigamy, perjury, rape, and murder. Simply courts accept now progressed to the position of recognizing that corporations can exist guilty of crimes involving criminal intent.

i. HL Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd.

A company may in many ways be likened to a human trunk. It has a encephalon and nerve centre which controls what it does. It also has hands which concord the tools and act in accordance with directions from the eye. Some of the people in the visitor are mere servants and agents who are nothing more than hands to exercise the piece of work and cannot be said to represent the mind or will. Others are directors and managers who correspond the directing mind and will of the company, and control what it does. The country of listen of these managers is the land of mind of the company and is treated by the law as such[xiii].

 two.Country of Maharashtra v. Syndicate transport Co (P) Ltd.[xiv]

In this case, at that place was an understanding that motorcoach would be transferred in the proper noun of the complainant, and would be run by the company on the hire buy agreement till the satisfaction of the advance money.

But the bus was not transferred to the complainant, every bit per the agreement. Consequently, the complainant moved to the trial magistrate who booked the visitor under sections 403[fifteen], 406 and 420, for violating the terms and atmospheric condition of agreement. The visitor preferred a revision before the Sessions Court to quash the charge confronting the company. The Session'southward Judge was of the view that since a corporate body acts just through its agents or servants, the mens rea of such agents or servants can't be attributed to the visitor, and he referred it to Loftier Court for quashing charges. Ned and so equally to make

While accepting the reference and quashing the charge, the Courtroom sent dorsum the example for trial in accord with police force. The court said that the scope within which criminal proceedings can be brought confronting institutions which have become so prominent a characteristic of everyday affairs' ought to be widened so equally to make corporate bodies indictable for offences flowing from the acts or omissions of their human agents. Ordinarily, a corporate trunk like a company acts through its managing directors or board of directors or authorised agents or servants and the criminal act or omission of an amanuensis including his land of mind, intension, knowledge or belief ought to exist treated as the act or omission, including the state of mind, intension, knowledge or conventionalities of the visitor.

iii. Aligarh Municipal Board v. Ekka Tonga Mazdoor Marriage[sixteen]

In this case court held that in that location is no doubtfulness that a corporation is liable to be punished by imposition of fine and by sequestration for contempt for disobeying orders of competent courts directed against them. A command to a corporation is infact a command to those who are officially responsible for the acquit of its affairs. If, they after beingness apprised of the order directed to the corporation, forestall compliance or fail to take advisable action, within their powers, for the performance of the duty of obeying those orders, they and the corporate body are both guilty of disobedience and may exist punished for contempt.

Liability of state for acts of employees

In England, the country is not liable for the criminal acts committed by its servants. This is based on the doctrine Rex not-potest peccare which means the King can practice no wrong and that the rex is not leap past a statute unless he is expressly named or unless he is jump by necessary implication.

In Bharat till 1967 the position was similar to that in England and the state was non to be proceeded against under the IPC or nether any other statute. However, in Superintendent and Remembrance of Legal Affairs, Due west Bengal v. Corpn of Calcutta[xvii], a Full Bench of nine judges of the Supreme Court overruled its earlier decision in Director of Rationing and Distribution v. Corpn of Calcutta[xviii] and held that mutual law doctrine, which states that the Crown is not spring by a statute, save by express provisions or necessary implication, is non the police force of the country after the Constitution of India came into effect. Both ceremonious and criminal statutes utilise to citizens and states alike. In the case ofSahali 5. Commissioner of Police[xix] besides, information technology was held that with the evolution of strict constitutional regimes and police force-sovereign amnesty has been waived by most jurisdictions with respect to most subject matter.

Responsibilities of Licensees

It is well-settled I England likewise as in India that a licensee is responsible for the acts of his employee done within the scope of his authority, although, contrary to the instructions of the licensee. In guild to prepare a licensee with a liability for the acts of his servants, personal cognition of the licensee is not always necessary. Otherwise, the very purpose of the enactments granting licenses to persons of practiced character would stand up defeated.[twenty]

In Emperor v. Mahadevappa Hanmantappa[xxi], the defendant held a licence nether Indian Explosive Human activity 1884, to manufacture gun powder. According to the licence, the manufacturing could have place in a building exclusively meant for that purpose and separated from any home place, highway, street, public thoroughfare or public identify past a distance of 100 yards. The accused lived in a village and constructed a building outside the village which complied with this condition and employed women to manufacture gun powder there. 1 day, the servant took the necessary material for the industry of the gun pulverisation, went to the house of accused in the village and performed office of the process of manufacture there. At that time there was an explosion. The accused was charged with breach of conditions of his licence. The accused was held to be liable for the same, in view of the fact that what the servant did was in furtherance of her masters business organisation and non in pursuance of any purpose of her own. What she had done was within the full general telescopic of her employment and the breach of the status of the licence was committed when she was so engaged.

CONCLUSION

An employer can be held liable for his employee'due south crime, equally a general rule, only where the is a participant in them within the rules governing. It is a matter of our understanding that imposition of vicarious liability is the piece of work of the courts rather than of Parliament. Statutes do occasionally say, in terms, that ane person is to be liable for another'southward crime. It is more common, notwithstanding, for the courts to observe such as intension in statutes. The reason nearly commonly advocated by the judges for holding a person liable nether vicarious liability is that the statute would be rendered nugatory and the volition of Parliament thereby defeated if he were not fabricated liable. Information technology may seem rather odd for the courts to be willing to impose liability for the acts of another on grounds of expediency when the foundation of the criminal law is that a person should be made liable only for his personal wrongdoings. But in certain cases it becomes utmost important to make the principal also liable for the human action of his subordinate so as to protect the interest of both the parties i.e. the injured and the offender and to end the blame game amid the principle and his subordinate.

It can be concluded by saying that though principle of vicarious liability is a ceremonious concept yet in a recent scenario it has taken a broad office under criminal jurisprudence too. To a sure extend it is good besides but every case decided under criminal law for vicarious liability should be guided by basic rationality and clear evidence in order to classify the exam of  just, fair and equal.

Edited past Hariharan Kumar

[i] (1946) 62 T.Fifty.R. 427

[two] 1957 AIR 264

[three] (1947) 1 D.Fifty.R. 161

[iv] [1951] 2 KB 343

[v]  [1912] Air conditioning 716

[half-dozen] Gour Hari Singh, The Penal Law of India, Vol Ii, 11t Ed., 2000, pp 1467-1472

[vii] Munivel vs. State of T.N. AIR 2006 SC 1761

[eight] In certain cases, a fellow criminal may be liable for the acts committed past the other accused on the principle of vicarious liability. Barker v. Levinson (1920) 2 All ER 823- a master isn't criminally liable for the acts committed past his agents or servants in the form of employment in case such acts are outside the general scope of tat employment.

[ix] Chairman, Railway Board v. Chandrima Das(2000) 2 SCC 465.

[x] AIR 1961 SC 631. See also State of Orissa 5. K Rajeshwar Rao AIR 1992 SC 240.

[xi]  KD Gaur, Criminal Law: Cases and Materials, 4^th Ed., 2005, p 180

[xii] AIR 1951 SC 204

[xiii] HL Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd. [1957] 1QB 159 at 172

[xiv] AIR 1964 Bom 195

[xv] S.403 deals with- Dishonest misappropriation of the property, s.406-Punishment for criminal breach of trust and 420-Cheating and dishonestly inducing commitment of belongings.

[xvi] AIR 1970 SC 1767

[xvii] AIR 1967 SC 997

[18] AIR 1960 SC 1355

[19]1990 AIR 513

[xx] Hari Singh Gour, The Penal Law of Bharat, vol i, 11^th Ed., p 146

[xxi] AIR 1927 Bom 209

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