N V JOSEPH Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is by the defendant in a suit for refund of amounts alleged to have been paid under a mistake of fact.

(2.) The defendant N. V. Joseph was employed by the Government of India on 27-3-1943, as Assistant Labour Liaison Officer in Assam (A. L. L. O ) for the Travancore State Labour recruited for employment on Defence projects connected with the second World War. The post as originally sanctioned was for a period of six months, but the period was later extended as for the duration of war or for such shorter period as may be found necessary. Officially the world war ended on 1-4-1946 and the post accordingly terminated with that date. The office of the Field Controller of Military Accounts at Poona continued, however, by mistake, to issue the defendant's salary cheques at the rate of Rs. 450 per mensem, as they used to do, even after 1-4-1946 and up to 30-4-1947. The plaint avers that the defendant drew these excess amounts with the full knowledge of the mistake and refused to refund the amounts when called upon to do so by notice dated 14-5-1947. The suit was therefore laid by the Governor General of India for recovery from the defendant of a net amount of Rs. 6237 annas 11 along with a sum of Rs. 683-8-11 by way of interest at six per cent from 14-5-1947 to 11-3-1949 aggregating on the whole to Rs. 6921-3-11. The defendant contested the suit. He contended that the post of Assistant Labour Liaison Officer was not abolished to his knowledge on 1-4-1946 and he had been in fact, assisting even subsequently in the disposal of compensation claims of labourers which work had previously been allotted to him. Even otherwise, the defendant had been appointed to his post by the Travancore Government and not by the Government of India and that again 'until further orders' and not for specific period, and no further order had been issued by the Travancore Government terminating his appointment. There was no question therefore of payment to the defendant of any excess salary or refund thereof. The defendant questioned his liability, in any event, to the interest claimed. The court below found that the post of the Assistant Labour Liaison Officer was created only by the Government of India, though in consultation with the Travancore Government and that the defendant's appointment thereto ceased as from 1-4-1946 and the payments of salary made to him thereafter were under a mistake of fact and defendant was bound to refund the same. The court below, however, found it not proper to allow the claim in the plaint for interest before suit. Hence this appeal by the defendant. The plaintiff has filed cross appeal in respect of the interest disallowed.

(3.) Learned counsel for the appellant urged at the outset that the court below was wrong in its conclusion on fact that defendant had not been in service after 1-4-1946. He strongly relied in this connection upon the terms of Ext. II order dated 10-3-1943 issued by the Chief Secretary to the Government of Travancore to the defendant appointing him to the post of Assistant Liaison Officer on a pay of Rs. 450/- until further orders and without any reference to the Government of India and the admitted fact that the Travancore Government did not issue any notice terminating the appointment at any time later on. But it is seen from Ext. H letter of the Travancore Government that they themselves relied for the appointment, on Ext. A, communication dated 14-1-1943. Now, Ext. A is written by the Under Secretary to the Government of India to the Quartermaster General in India and refers to the sanction of the Governor General in Council to the creation of the post, for a period of 6 months and on a pay of Rs. 900. It would appear that this proposed salary of Rs. 900 was split up on the representation of the Travancore Government into two halves so as to form the salaries of two officers viz., the defendant, Assistant Labour Liaison Officer, and another to be yet appointed by the Travancore Government as Welfare Officer. See Ext. B. letter of the Staff Captain, Labour, dated 20-4-1943. Then comes Ext. C. letter of the Under Secretary of the Government of India dated 11-10-1943 intimating sanction for the extension of the period of appointment until the duration of the war or for such shorter period as may be necessary. It cannot be that the defendant was unaware of these matters for, Ext. IV letter, written on the eve of the 6 month period, on 19-9-1943 by the Chief Labour Liaison Officer to the defendant, seeks to reassure the defendant in regard to the extension of his appointment. There is no substance therefore in the defendant's contention that he was appointed by the Travancore Government and until further orders which were not issued.