( 1 ) THE plaintiff was an employee of the Municipal Board. He was appointed by the Municipal board in the grade of Rs. 30-2 50 on an initial salary of Rs. 40 on 17 6-1931. On 16-6-1932, he was confirmed in his post and the duties assigned to him were to look after the cases in Courts of law on behalf of the Board. In June 1936 he was drawing a salary of Rs. 50 which salary be continued to draw till 2-9-1941, when he was suspended on certain charges. On 4-1-1943, he was acquitted of one charge and on 1-1-1943, he was discharged of the other charge. On 7-3-1943, he was remstated but the Commissioner raised certain objections and ultimately on 22-12-1943, the Board terminated his service and dismissed him. The plaintiff filed a suit on 22-12-1944, claiming that, on his reinstatement in 1943 he became entitled to get his full salary for the period during which he was under suspension i. e. from 2-9-1941 to 7-3-1943. The suit was brought against the Kanpur Municipal Board through its Chairman.

( 2 ) THE Board took various objections. One of the pleas raised on behalf of the Board was that the suit was barred by limitation The provision relied on by the Board was Section 326, D. P. Municipalities Act (II [2] of 1916 ). The relevant portion of Section 326 is as follows :

"no suit shall be instituted against a board, or against a member, officer or servant of a Board, in respect of an act done or purporting to have been done in its. . . . . Official capacity, until the expiration of two months next after notice in writing has been, in the case of a board, left at its office,. . . . explicitly stating the cause of action, the nature of the relief Bought, the amount of compensation claimed and the name and place of abode of the intending plaintiff. . . . . (2 ). . . . . (3)No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. "

( 3 ) THE learned Judge of the Court of Small Causes held in favour of the Board on this point and also on another point that was raised on its behalf, and dismissed the suit.

( 4 ) A civil revision under Section 25 of the Court of Small Causes was filed in this Court which came up before a learned single Judge who referred it to a bench. The following question whether the suit in the present case was governed by Section 326, U. P. Municipalities Act or by the Indian Limitation Act" was referred by the Bench to larger Bench for decision and that is the only point with which we are concerned. It is, therefore, not necessary for us to go into the question as to the date when the cause of action, if any, arose in the plaintiffs favour and whether he was at all entitled to claim his full salary during the period of suspension.

( 5 ) THE point, therefore, for consideration is whether the re. fusal of the Board to pay to the plaintiff the whole of his salary during the period of his suspension was an act done in its official capacity and whether the suit is of the nature contemplated by the section.

( 6 ) AS regards the first point, we may refer to Section 4 (2), U P. General Clauses Act which provides that words which refer to acts done extend also to illegal omissions. It, therefore, follows that if the Board refused to make payment to its servant it had done an act The question is whether this act was done by it in its official capacity. Learned counsel has contended that this was not an act by the Board in its official capacity but it was merely its contractual obligation which the Board was required to fulfil when it was asked to pay to the plaintiff the whole of the salary due for the period during which he was under suspension. The argument is that Section 326, Municipalities Act applies to cases of torts and not to cases of contract and the Board was under no obligation under the Municipalities Act to appo