1. This appeal has arisen out of a suit in which the plaintiffs Shew Bux Roy Ghanshyamdas claimed damages for non-delivery of 17 tins of ghee out of a consignment of 104 tins despatched from Daltongunge by Luchmi Narain Mahadeo Lal on the 4th February, 1922, to be delivered to the plaintiffs at Barakar. The consignment was covered by a Risk Note in Form B. The trial Court dismissed the suit. That decision was reversed and the suit was decreed in favour of the plaintiffs by the Subordinate Judge on appeal. The defendants, the East Indian Railway Company and the Secretary of State for India in Council have preferred this appeal.
2. The facts as found by the trial Court and as far as they are necessary to be stated are these: A general strike of the Railway servants, mostly menials commenced on the 15th February and work on the line was at a dead stop. The van containing the consignment arrived at Dhanbad on the 12th February and was left in charge of a choukidar at the goods yard to be taken along with other vans to the goods shed. The goods yard is about 3 miles off the goods shed. The van was next noticed at the goods shed on the 16th February, the door being ajar and the seal broken, The contents being examined. 11 tins were found missing. The door was then sealed but on the 18th February the door was again found open and 6 more tins were found short. During all this time the work of the Railway was in a paralysed state on account of the general strike. These findings of fact have not been reversed by the Subordinate Judge. The Subordinate Judge, however, has recorded two findings on which he has rested his decision. They are that the 17 tins of ghee were looted by the strikers at Dhanbad partly on the 16th and partly on the 18th February, that the strike was an unforeseen event and, therefore, by reason of the proviso mentioned in the Risk Note was not within the meaning of the words 'wilful neglect' as mentioned in the exception provided by the Risk Note. I confess I find it somewhat difficult to follow what the learned Subordinate Judge meant when from these two findings he concluded as follows: 'So the defendants are liable, if there has been theft by Railway servants.' Reading his judgment as a whole, however, it seems to me fairly plain that he has proceeded on the view that the defendants are not protected by the Risk Note as the case comes within the exception mentioned in it, and because the tins were stolen or looted by the servants of the Railway, the defend' ants are liable.
3. The decision of the learned Subordinate Judge has been challenged before us upon several grounds, some of which may be disposed of quite soon. It has been argued that his finding that the tins were looted by Railway servants is unsupportable as an, inference deducible from the materials that are on the record or the facts that have been found. This argument I may say is not altogether without substance, and were I, asked to come to my own conclusion on the point I would perhaps find it extremely difficult to arrive at the same conclusion as the learned Subordinate Judge. On a second appeal, however, we are in quite a different position, as it is not possible for us to say that the finding is based on no materials. It has also been argued that the strikers cannot be regarded as servants of the Railway and in support of this position reliance has been placed upon the case of G.I.P. Ry. Co. v. Firm Gurdayal 103 Ind. Cas. 655 : 6 Pat. 369 : A.I.R. 1927 Pat. 27. With all respect to the learned Judges of the Patna High Court who decided that case I am unable to agree in all that has been said therein. I am of opinion that the mere proclamation of a strike does not terminate the relationship of master and servant and make the servant lose his character as a servant. There may, of course, be additional circumstances consequent on a strike which may determine that relationship. 'Strike' as pointed out by Lord Jamas of Hereford in Denaby & Cadeby Main Collieries Ltd. v. Yorkshire Miners Association (1906) A.I. 334 : 75 L.J.K.B. 981 : 95 L.T. 561 : 22 T.L.R. 513 is a word of an artificial character, and does not represent any legal definition or description. It is an agreement between persons who are working for a particular employer not to continue working for him. per Kay, Lord Justice, in Lyons v. Wilkins (1896) 1 Ch. 811 : 65 L.J. Ch. 601 : 74 L.T. 358 : 45 W.R. 19 : 60 J.P. 325. Cessation of work does not necessarily mean termination of the relationship as master and servant, but other circumstances attendant or concomitant are necessary to put an end to that relationship. When we come to examine the circumstances we see that the findings of the Subordinate Judge are that the strikers were living in the Railway quarters, they had not given up their appointments but were pressing for higher wages, and that they had not in fact been discharger bat notices had been servedon them to resume work failing which they were to be discharged. Between strikers such as these and the Railway Administration the relationship had not terminated, though after one has struck work, it may be important to consider, whether one can be regarded as acting in the course r within the scope of his employment, a question which might arise in cases of this description.
4. The more important argument of the appellants relate to the nature of the contract embodied in the Risk Note and the view of the defendants' liability that has been taken by the Subordinate Judge. The appellants contend that the Subordinate Judge, while he is right in holding that the defendants are not protected by the Risk Note, as the case comes within the exception mentioned therein, was in error in supposing that the mere fact that the Railway servants looted the goods is sufficient to charge the defendants with liability. The respondents, on the other hand, contend that the Risk Note embodies a special contract which must be taken as entirely regulating the transaction and solely determining the rights and liabilities of the parties and that once the case is found to come within the exception, by the terms of this special contract itself the plaintiffs are entitled to recover. These rival contentions will now have to be considered.
5. In view of the facts found the Risk Note would read thus: Whereas the consignment...is charged at a special reduced rate we in consideration of such lower charge agree and undertake to hold the...Railway Administration...harmless and free front all responsibility for any loss, etc., from any cause whatsoever except for the loss of a complete consignment or of one or more complete packages forming part of & consignment due to theft by...its servants.
6. Reading the Risk Note as carefully as one would, one will find nothing in it beyond a contract absolving the Railway Administration in all cases excepting & few cases specified. There are no words indicating that with regard to the cases so excepted the Risk Note itself, apart from the general law, creates a liability or that when a case comes within the exception, the rights and liabilities of the parties such as they are under the general law are to be regarded as in any way limited, extended or qualified by the Risk Note In support of the position that the respondents contend for reliance is placed upon a series of cases, to wit: Sheo Barat Ram v. B. & N.W. Ry. Co. 15 Ind. Cas. 56 : 16 C.W.N. 766, East Indian Ry. Co. v. Nilkanta Ry. 22 Ind. Cas. 679 : 41 C. 576 : 19 C.W.N. 95 : 19 C.L.J. 142, East Indian Ryt Co. v. Kanak Behary Haldar 44 Ind. Cas. 691 : 22 C.W.N. 622, East Indian Ry. Co. v. Nathmall Behari Lal 39 Ind. Cas. 130 : 39 A. 418 : 15 A.L.J. 321. and East Indian Ry. Co. v. Sri Ram Mahadeo 79 Ind. Cas. 341 : 46 A. 125 : 21 A.L.J. 896 : A.I.R. 1924 All. 177. All these cases deal with the question of onus which arises in matters of this description; but the use that the respondents desire to make of them is that the decisions suggest that once a case comes within, the exception nothing else need be investigated and by the terms of the Risk Note itself the Railway Administration becomes liable. I am unable to agree with this contention and I do not see that these decisions lay down any such proposition. In only one amongst these decisions namely, the case of Sheo Barat Ram v. B. & N.W. Ry. Co. 15 Ind. Cas. 56 : 16 C.W.N. 766, there is a passage which may perhaps be read as suggesting what the respondents contend for, but I have no doubt that that suggestion was never intended. To agree with the respondents' contention would be to hold that while the Risk Note in consideration of a lower charge limits the liability of the Railway Administration to only those cases which may come within the exception in the Risk Note, it again extends r enhances the liability of the Railway Administration in respect of those cases by taking them out of the general law. This view would militate against the provision of Section 72, Sub-section (2) of the Indian Railways Act IX of 1890 to which statutory provision Risk Notes owe their origin and in which it is said 'An agreement purporting to limit that responsibility' etc., etc. Moreover it is exceedingly doubtful whether it is permissible for a Railway Administration to extend or enhance their liability under the general law as embodied in Section 72 of the Act by means of a special contract. That question, however, need not be discussed as no such enhancement or extension was, in my opinion, ever intended by the Risk Note. The respondents contention in this respect, as far as I am aware, is an unusual one, and while there are numerous authorities which have laid down that the special contract is a limitation of the liability of the Railway Administration there is scarcely any in which it has been held that such a contract in respect of the excepted cases, enhances their liability. A contention somewhat though not quite similar appears to have been advanced before the Madras High Court in the case of Madras & Southern Maharatta Ry. Co. v. Mathai Subba Rao 55 Ind. Cas. 754 : 43 M. 617 : (1920) M.W.N. 193 : 11 L.W. 358 : 38 M.L.J. 360 : 28 M.L.T. 49 and dealing with it Old field, J., observed: 'It la next material that in the present case the contract embodied in the Risk Note (it wan Risk Note in Form II in that case) was made in consideration of the Railway's acceptance of a reduced charge; and it, therefore, cannot be regarded as intended to increase its responsibility'. The intention to increase the responsibility of the Railway Administration is, in my opinion, one not only not consistent with but repugnant to the terms of the Risk Note. The respondent then contends that the Railway servants having committed theft in respect of the goods, nothing else need be considered but that the Railway Administration are liable. I am unable to agree with this contention also. Once the Risk Note is out of the way as a contract by which they were absolved their liabilities will have to be determined by the provisions of the Act, Section 72 of which lays down the measure of the general responsibility of a Railway Administration as a carrier of animals or goods. Sub-section (3) of Section 72 bars the application of the Common Law of England or the Carriers Act of 1865, and under Sub-section (1) the measure of the responsibility is the criterion laid down in Section 151, 152 and 162 of the Contract Act, subject to the other provisions of the Railways Act itself. Under the Common Law of England if goods are lost by reason of the criminal act of a servant, it being impossible to regard the criminal act to have been done within the scope of the servant's employment, the bailee is not responsible. In Sanderson v. Collins (1904) 1 K.B. 628 : 73 L.J.K.B. 358 : 52 W.R. 354 : 90 L.T. 213 : T.L.R. 249, which was the case of an accident due to negligence on the part of a servant who was driving for his own purposes a carriage sent by its owner to a coach repairer, it was held that where it is found that servant was not acting in the course of his employment the master was not liable, and Collins, M.R., in, expounding the law on the point observed 'Burglary is perhaps an extreme instance of something not done under any mandate from the master, but any other act outside the scope of the authority given by him would, equally relieve the master. If the servant in doing any act breaks the connection of service between himself and his master, the act done under those circumstances is not that of the master.' In the case of Cheshire v. Bailey (1905) 1 K.B. 237 : 74 L.J.K.B. 176 : 53 W.R. 322 : 92 L.T. 142 : 21 T.L.R. 130, the Master of the Rolls said: 'He, the bailee, may perform that duty by servants or personally, and, if he employs servants, he is as much responsible for all acts done by them within the scope of their employment as he is for his own. But he is not an insurer, and is not answerable for acts done by his servants outside the scops of their employment. Hence he is not responsible for the consequences of the crime committed by the driver in this case, which was clearly outside the scope of his employment, unless it can be shown that the happening of the crime was due to the defendants' negligence. It is a crime committed by a person who in committing it severed his connection with his master, and became a stranger; and, as the circumstances under which it was committed are known, it raises no presumption of negligence in the defendant. He took reasonable care to perform his duty in that he sent out a servant whom he reasonably supposed to be trustworthy to drive the brougham and watch its contents in the traveller's absence, and he was not bound to on more. That as ordinary contract of bailment of this class does not involve a warranty that the servant shall not tarn thief, and so cease to exhibit reasonable care, where the matter has devolved the duty of custody on the servant, is clear from the fact that no class of bailee except common carriers and inn-keepers are now at common law deemed responsible for the theft of their servants unless such theft was attributable to the negligence of the master.' This immunity rests on the combination of two well-established factors; (a) that such bailees are only bound to ordinary care; (6) that qua masters they are not responsible for acts done by their servants outside the scope of their employment. It is not necessary to refer to the authorities in detail in support of these propositions. They will be found collected in Coggs v. Bernard 1 Sm. L.C. 1th. Ed. 173 and the notes thereto in Smith's Leading cases. In the case of Rank Ltd. v. Craig (1919) 1 Ch. 1 : 88 L.J. Ch. 45 : 119 L.T. 751 : 63 S.J. 39 : 35 T.L.R. 8, Swinfen Rady, Master of the Rolls, clearly explained that where the true character of the act of a servant is that it is an act of his own, deliberately done of his own choice and done to effect a purpose of his own the master is not liable. This view as regards the liability of a master for criminal acts done by his servants is wall settled. If, however, the criminal act is facilitated by the negligence of the master the master is liable. The liability in such cases rests on the master not really because his servant had committed the criminal act but because he himself has been negligent.
7. In respect of goods entrusted to a Railway for carriage the question necessarily has to be determined upon the express terms of Section 72 of the Indian Rail ways Act. The Subordinate Judge does not appear to have dealt with the matter from this point of view. The finding that the servants of the Railway looted the tins is a finding of fact which should not be allowed to be re-opened; but it will have to be considered whether the Railway Administration was guilty of such negligence as facilitated the looting by its servants. There are findings in the judgment of the Munsif which might enable a Court to pronounce a judgment on this point, but the Subordinate Judge has not considered it necessary, erroneously as I hold, to go into this matter.
8. To be mere precise and using the words of Section 151 of the Contract Act, he will have to find, whether the strike being regarded as an unforeseen event, the Railway Administration took as much care of the consignment or rather the lost part of the consignment as a man of ordinary prudence would, under similar circumstances take of it. On the answer he finds himself able to give to this question will depend his ultimate decision of the case.
9. The appeal is allowed, the decree complained of set aside and the case remanded to the Court of the Subordinate Judge to re-hear and dispose of it in the light of the observations made above.
10. Coats of this appeal will abide the result of the remand.
11. I agree.