RAM NARAYANA SARMA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal raised a novel and somewhat difficult question. The appellant was in the service of Government. In January 1921, he applied for and was granted leave for 18 months. Under the Rules governing the conduct of public servants he was prohibited from working for another employer while on leave without the permission of the authority empowered to appoint him. The same prohibition is to be found in Rule 69 of the Fundamental Rules. In breach of the rule he obtained employment from Messrs. Jackson and Barkar, in Madras, without the requisite permission, from 3 January 1921. Thirteen days later, he applied for permission without disclosing the fact that he had already secured private employment. On 11 March permission was definitely refused. Despite the refusal he continued to be in the service of Messrs. Jackson and Barkar. This fact came to the notice of the Engineer of the P. W. D., who in August 1922, called upon him to show cause why he should not be dismissed. In reply, he admitted the facts and (asked to be allowed to resign. On 26 October, he was dismissed. The Secretary of State then brought this suit to recover the leave allowances paid to him from 3 January 1921, to 31 July 1922. The suit was tried by the Judge of the City Civil Court, who decreed it, holding that the leave allowance had been paid under a mistake of fact and were recoverable as they had been paid in ignorance of the fact that the appellant was in private employment.

(2.) In the lower Court there was some controversy on the question whether Mr, Stoney, the Deputy Chief Engineer, was or was not aware that the appellant was in the service of Jackson and Barkar. The Judge found that he was not. The same question was raised in the memorandum of appeal, but had not been pressed. The finding of the trial Judge, therefore, stands.

(3.) The sole question for decision is as to the Secretary of State's right to recover the leave allowances drawn by the appellant. It is conceded that there is no provision in the Fundamental Rules for a case of this nature and the trial Judge had to fall back on the general principle that money paid under a mistake of fact can always be recovered by suit. The decision seems to me to depend on the terms on which the appellant was employed by the respondent. Mr. K. V. Krishnaswamy Iyer's main argument turns on Rule 52 of the Fundamental Rules which lays down that the pay and allowances of a Government servant who is dismissed from service cease from the date of such dismissal. His client, he points out, was not dismissed till October 1922, and till then he must be considered to have been a Government servant, and as such, entitled to his leave allowances. I think that the argument is sound and that the respondent would have been in a stronger position if the order of dismissal had been dated back to the date of the appellant's breach of his contract. The wording of Rule 52 is perfectly clear and the only possible inference from it seems to me to be that a Government servant who is dismissed is entitled to his pay and allowances till the date of his dismissal unless, of course, he has been suspended pending enquiry, when he is entitled to subsistence allowance.