1. The respondent, an Overseer in the Public Works Department, took leave in January, 1921, and was granted, Ex. F, extensions up to 3rd May, 1923, but wrote on 11th August, 1922, Ex. 3, to the Chief Engineer that he would resign from 6th September, 1922. The Chief Engineer had learnt that during this leave the respondent took employment in a private firm in contravention of the Government Servants' Conduct Rules and of the express orders of the Chief Engineer issued in March, 1921, Ex. D. Accordingly the Chief Engineer wrote on 29th August, 1922, Ex. G, calling on the respondent to show cause why he should not be dismissed, and on 26th October, 1922, an order was issued, Ex. J, that respondent was dismissed from the service of the Government for having taken up private employment during leave without permission in contravention of the Rules and in direct disobedience of the orders of March, 1921. At the same time the Executive Engineer of the division to which the respondent was attached was informed, Ex. IV, that no more leave allowances should be paid to him.
2. About nine months later, on 11th August, 1923, the Government Solicitor wrote to the respondent demanding the refund of Rs. 1312-1-0, the leave allowances drawn by him from 3rd January, 1921 to 31st July, 1922, while he was in private service without sanction in contravention of the Rules - Ex. K. The respondent replied that Government was not entitled to the refund of this sum ' drawn as allowances for leave legitimately due' - Ex. L. Hence the suit, and, since plaintiff was unsuited by a single Judge of this Court on appeal, the Letters Patent Appeal.
3. On behalf of the appellant, the Secretary of State, it is not denied that respondent duly obtained leave, and was duly entitled to these allowances during leave in ordinary circumstances. But it is argued that he disentitled himself to the allowances by infringing the Government Servants' Conduct Rules; and when there has been a breach of duty, allowances are no longer payable to a Government servant (cf. ground 6 of this Letters Patent Appeal). The allowances therefore were paid under a mistake of fact, and should be refunded.
4. The respondent was duly granted leave, and by virtue of that grant, drew his allowances. His conduct may have been such as would justify Government in revoking his leave, but, unless this was done, it cannot be said that his conduct by itself effected a revocation. The rule that a Government servant may not undertake any employment is evidently framed with a view to the bearing that such employment may have upon a servant's conduct after his resumption of public duty; for easy and well paid employment may well amount to a bribe. But if the servant is not resuming public duty, the objection to his private employment largely vanishes; and though in the present case the respondent's direct disobedience to orders might have justified the revocation of his leave, it cannot be said that it necessarily involved such revocation. In view of his past good service, domestic trouble, and ultimate resignation, the superior authority might (which is not to say that it should) have condoned his lapse of conduct. Therefore it is not mere verbal formalism, as the learned Advocate-General would argue, for the Court to require assurance that the leave was actually revoked, before it sanctions the refund.
5. Until there has been an order of revocation, or an order of dismissal dating from the breach of rule which would have the effect of revocation, Rule 52 of the Fundamental Rules makes it plain that a Government servant is entitled to draw his allowances.
6. Here English case-law in reference to mistake of fact affords no assistance. If the grant of leave justifies the payment of allowances, and such grant cannot be automatically cancelled by the conduct of the servant, but only by the action of Government, then, when Government has taken no such action, the grant remains as a fact justifying the payment; and there has been no mistake of fact.
7. The appeal is dismissed with costs.