Judgement

RAY, J.:- This is an appeal from the judgment dated 30 March, 1966 of the High Court of Madhya Pradesh (Indore Bench) allowing the appeal and setting aside the decree of the lower appellate Court and restoring the decree of the trial court with costs.

2. The plaintiffs suit against the Indore Municipal Corporation was for a declaration that the dismissal of the plaintiff was illegal and that the plaintiff s was still on the post of Removal Sub-Inspector and a decree against the defendant for Rs. 7,488/- on account of salary at the rate of Rs. 104/p. m. from 15 April, 1953 till the date of institution of the suit viz, 15 April, 1959 and other reliefs. The trial court decreed the suit. The lower appellate court set aside the decree. The High Court restored the decree passed by the trial court.

3. The case of the plaintiff Niyamatulla was that the plaintiff was suspended by the order of the Municipal Engineer dated 15 April, 1953. One Shri Ghatpande who acted in place of the Municipal Commissioner in the month of May, 1953, directed the dismissal of the plaintiff. The plaintiff contended that the dismissal could have been only under the orders of the Municipal Commissioner. The plaintiff further contended that there was no opportunity given to the plaintiff against the proposed dismissal.

4. The defence of the Municipal Corporation was that the plaintiff preferred a review petition to the Municipal Commissioner who rejected the same. The plaintiff thereafter preferred an appeal to the Appeal Committee of the Municipal Corporation which was dismissed. Thereafter, a revision petition against the order was heard by the Minister-in-charge of the Government of Madhya Bharat and the same was rejected in the month of September, 1955. It was therefore, contended that the plaintiff had no right to file the suit. Another defence was that the suit was barred by limitation.

5. Counsel for the appellant canvassed three grounds. First, that the order of dismissal was valid and Shri Ghatpande had jurisdiction to pass the order of dismissal. Secondly, the suit was barred by limitation. Thirdly, the provisions of Section l 35 of the Indore Municipality Act was a plea in bar of the suit.

6. The authority of Shri Ghatpande to dismiss the plaintiff was based on the provisions contained in Section 13 of the Indore Municipal Act, 1909. Section 13 of the Indore Municipal Act, inter alia, reads as follows:

"(1) The Municipal Commissioner for the City of Indore shall, from time to time, be appointed by the Government.

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(2) (a) Leave of absence may be granted to the Commissioner, from time to time, according to the Indore Civil Service Regulations.

(b) During such absence of the Commissioner the Government may appoint any person to act as Commissioner. Every person so appointed shall exercise the powers and perform the duties conferred and imposed by the Act or by any other enactment at the time in force on the person for whom he is appointed to act, and shall be subject to the same liabilities, restrictions and conditions to which the said person is liable and shall receive such monthly salary as may be determined by the Government.

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In order to rest the defence on Section 13 of the Indore Act it has to be first found out that there is an appointment by the Government of any person to act as Commissioner. The finding of fact by the High Court is that no order of the Government was produced to show that Shri Ghatpande was appointed to act in place of Shri Rao who was the then Municipal Commissioner. The further finding of fact was that the order of dismissal was passed by Shri Ghatpande.

7. The defence of limitation pleaded by the Indore Municipal Corporation was in general terms that this suit was barred by limitation. The plaintiff in the plaint alleged that the cause of action arose on 15 April, 1953 and on 1 May, 1953 when the plaintiff was dismissed from service and on 11 January, 1954 when it was passed by the Appeal Committee of the Ind