LIABILITY OF MISFEASANCE
The term “misfeasance” is used in civil cases, these types of cases are covered under the tort law. The term “tort ” originated from the Latin word “tortum” which signifies ” damage” or ” a twist”. The term is similar to the French word “wrong”. The term tort is called ” Jimha” under Hindu law which means a tortious or wrongful act or unlawful act. The word “feasance is a root word that originated from France. French. added suffice “mis” to feasance and it is called ” malfeasance”. It is defined as ” performing misdeed”. Ultimately, It is adopted as an act by the United States too. Actually, The term “misfeasance” means ” breach of duty ” or “Improper performance of a legal act which is done in such a way that it harms others or causes damages to other people”.
For example, Assume, a janitor is cleaning the corridor floor in the hospital if he leaves the floor wet, he / his employer could be liable for any injuries to any other person. Because the janitor owed a duty of care towards the people who walk in the corridor and he breached the duty by leaving the floor wet.
Generally, the liability lies in the defendant having an obligation to take care of the plaintiff but didn’t perform the action properly. The legal term misfeasance differs from the term ” malfeasance” and “non-feasance”. The legal term ” malfeasance” means intentionally causing injury or damage to other people through legal action. For example, If you take any medicine to recover from a health issue on advice from a stranger and injure yourself, the stranger would not be liable for your injury. But, if you met the same person in a hospital and took medicine prescribed by him, then that would be a different story. Where the term “non-feasance” describes the failure or omission to perform a certain act which shall be concluded in harm to another person. In tort law, the defendant must be in a position where the defendant owed a duty to care for the plaintiff, then in order to be legally liable for misfeasance. It often occurs due to negligence and without intent or violation of the law. This usually takes place in business or in public officers when an auditor, director, or public officer performs his profession in an improper manner.
To Establish The Liability Of The Defendant In Public Office, The Plaintiff Must Prove That Act Was:
- Done carefully or intentionally
- Invalid or unauthorized
- Done by a public officer
- Committed in the purported discharge of his/her public duty
- Caused damage or injury to the plaintiff
The actions which constitute misfeasance in public office by a public officer are :
- The Action perpetrated in excess of power with an intention to cause injury or harm
- The action was taken in the belief that there is no statutory authority and the damage is foreseeable.
- The action is committed with reckless indifference.
The act which is committed in good faith and without the insight of invalidity of the act is not apt to constitute malfeasance in public office. Personal liabilities of public office is created by the tort of malfeasance since the state may not be liable for the acts committed by its officers.
Public officers in public office have the requisite power to utilize their authority and in few cases, they may wish to seek legal advice in order to defend against malfeasance in public office. They must ensure that they are diligently and conscientiously performing assigned obligations.
Liabilities Of An Auditor For Misfeasance :
- Under the law of contract, the company can take action against the auditor if the company has suffered any damages due to negligence or misfeasance on the part of the auditor.
- As per Section 543 of the companies act, The Action can be taken within 6 years from the date of the first appointment of the liquidator during the course of winding up of the company. The liability may be civil or criminal.
Under section 633 of the companies act 1956.
- If the auditor appeals to the court and claims that he was performing his duty honestly, the court may relieve him completely or partially from such liability with or without any condition.
- The auditor shall also pertain to court to permit relief again in any proceedings related to “breach of trust ” or “misfeasance” that might be provoked against him. The court is competent to confer relief.
- No contract with the company can indemnify the auditor against any liability on the statement of negligence, malfeasance, or breach of trust.
- The company may indemnify the auditor against any liabilities incurred by him, defending the proceedings if the court discharges the auditor from such liability either it is civil or criminal.
In the case of Dunlop v. Woollahra Municipal Council, it was held that the very invalidity of the order would not give rise to any liability for compensation of damages in an action in tort to the aggrieved party. It was, though, carried in the same case that if the action of the authority is actuated by malice, it would amount to the “tort of misfeasance by a public officer.” Similarly in another case Asoka Kumar David v. M.A.M.M.Abdul Cader even in the absence of malice, the tort of malfeasance is committed if the public officer knew both that what he was committing was invalid and that it will harm the plaintiff.
In the case of Jasbir Kaur vs the state of Punjab, a newborn baby was lost in the hospital and the staff of the hospital was not aware of it. After searching a lot, the newborn child had been taken away by a cat in a Government-owned and managed hospital and found dead in the washroom and his one eye was squeezed out. The hospital was held liable as there was negligence on the hospital’s part in serving the act properly. It was misfeasance as the hospital was careless and there was the inappropriate action of the lawful act.
Therefore, All the time the Public officers, as well as employers or employees of the company, must serve people with utmost responsibility, and efficiency, and lead modest lives.