S.N. Deedwania, J.
1. The Municipal Board, Nawa defendant-appellant has preferred this second appeal against the judgment and decree, dated September 5, 1969 of learned Munsif, Nawa in favour of the plaintiff respondent was affirmed.
2. Briefly stated the facts are these. Respondent Ganpatlal was an employee of the appellant and on 1-7-58 he was holding a post of a clerk. On 30-12-60, he was made a permanent employee of the appellant. Vide order, dated February 1, 1966, he was compulsorily retired with effect from the afternoon of February 18, 1966 (Ex. 7). The order is alleged to be Illegal and void because the respondent could only be removed or compulsorily mired from the service by the appointing authority i.e. the Municipal Board, Nawa and also because he was not compulsorily retired in accordance with the rules. The suit was resisted interalia on the ground that the respondent was a temporary employee. He submitted resignation vide letter dated June 3, 1965, which was accepted by the appellant. Another objection taken was that the unit was not within Imitation Both the courts below held that the suit was with limitation and the order of compulsory retirement dated February 1, 1966 (Ex. 7) was illegal and void. Learned appellate court held that the procedure for compulsory retirement of the Municipal employees was not followed. The Rajasthan Service Rules as amended from time to time are applicable to Municipal employees as provided under Rule 36 of the Rajasthan Municipal (Sub-ordinate and Ministerial Service) Rules, 1953 (hereinafter referred to and the Rules) The mandatory provisions of rule 244 of the Rajasthan Service Rules relating to compulsory retirement applicable to Municipal employees were not followed Therfore, order, dated February 1, 1966 (Ex. 7) could no be allowed to stand and was rightly struck down by the trial court. It further held that the respondent could have been compulsorily retired only of the appointing authority i. e. Municipal Board, Nawa. The appellate court considered the various resolutions namely Ex D/3 dated December 28, 1961 and Ex. D/6 dated May 1, 1963 and held that by these resolutions, a decision to compulsorily retire the respondent from the service was not taken.
3. I have heard the learned Counsel for the parties and perused The record of the case carefully.
4. It is argued in the apt instance that the appellate court was in error in coming to a conclusion that the suit was within limitation as two months period of notice could not be added to the limitation of 6 months prescribed under Section 271 of the Act. Under Section 271(1) of the Act, two months prior notice, is a condition precedent for filing a suit. Exclusion of this two months time is provided under Section 15(2) of the Limitation Act, 1963, which reads as under:
S. 15. Exclusion of time in certain other cases
(1) ... ... ... ... ... ... ... ... ... ...
(2) ... ... ... ... ... ... ... ... ... ...
(2)In compating the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required in accordance with the requirements of any law far the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.
Explanation-In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both the counted
Section 15 of the Limitation Act, therefore, provides that were a statutory notice has to be served by the plaintiff before instituting a suit, in computing the period of limitation, the period of notice in accordance with the requirements of the enactment must be excluded. It was thus observed in Jai Chand Sawhney v. Union of India 1970(I) SU (288:
Under Section 15 of the Indian Limit it ion Act, 1908. where a statutory notice has to be served by the plaintiff before instituting any action, in computing the period of limitation, the period of notice in accordance with the requirements of the enactment must be excluded.
The courts be low, therefore, rightly concluded that the suit was within imitation.
5. It is next vehemenly argued that the respondent was not compulsorily, retired. His services came to an end because of his resignation, The appellate court was in error in observing that the question of resignation was not pleaded in the written statement. I have considered the argument, which is cot tenable. In para 2 of the written statement, no doubt, it is pleaded that the respondent was removed on the basis of his resignation. However, it appears that this untenable case was not further adapted by the appellant. No issue was framed on this controversy. Toe issue was whether the order retiring the respondent was valid in view of para 3 of the written statement. The appellate court gave a definite finding that the respondent was net removed from service because o' any resignation on his part. The appellate court noticed para 2 of the written statement in its judgment and then thus observed
No details and no particulars of such resignation have been given in the written statement when it was presented, when it was accepted aid by whom. Therefore, the pleading is vague. No issue has been raised over this pleading. Therefore, this point cannot be entertained. Of course it remains a fact that PW. 1 Ganpatlal at page 4 top of his statement admitted
eSus rkjh[k 30&6&80 dks R;kx i= vo'; fn;k Fkk fdUrq HkwriwoZ ps;jeSu }kjk ml ;rk ds dkj.k etcwj gksdj ,slk fd;k x;k Fkk ftldk mYys[k eSus R;kx i= fn;k Fkk AThere was no pleading by the defendant appellant that on such and such date and by such not such authority, this resignation was accepted. DW. 4 Bhanwarlal has stated at page 2 top.
^,y-lh-Mh- 5 x.kkiryky }kjk izLrqr fd;k x;k R;kx i= gS ABut he does net state if this resignation was accepted. DW 1 Girirajsingh, DW 2 Mahaveer Prasad DW 3 Brijmohan & DW 5 Madansingh have stated nothing over the point. Therefore, the appellant can not help himself on the basis of Ex. D. 5.
I am of the view that the appellate court committed no error in arriving at this finding, after noticing all the relevant evidence. It may be stated that the respondent gave the resignation on 3-6-65 but it is not case of the appellant that it was ever accepted-The respondent was not removed from service on 1-6-65 or soon after. He was removed from the service by an order, dated February 1, 1966 (Ex.7) No reference to the resignation of the respondent is made in this order. Mire over, it is specifically written in the order that as the work of the respondent has always been unsatisfactory, therefore, he is being compulsorily retired with effect from the after noon of 28-2-66. Thus, the appellant has totally failed to make oat a case that the resignation of the respondent was accepted and in consequence thereof his services came to end. There is no reason to hold that order, dated February 1, l966(Ex. 7) is not an order of compulsorily retirement.
6. It is an admitted position that procedure as provided in Rule 244 of the Rajasthan Service Rules was not followed before compulsorily retiring the respondent, Once, it is held that the respondent was compulsorily retired by order Ex. 7 without complying with the procedure as required by Rule 244 of the Rajasthan Service Rules, it is difficult to maintain, Ex. 7.
7. Ex. 7 suffers from another infirmity, in as much at the respondent could have been compulsorily retired only by the appointing authority The appellate court came to the conclusion after considering various documents that the appellant i.e Municipal Board, Nawa never took a decision to compulsorily retire the respondent and I see no reason to interfere with this finding.
8. I am, therefore, of the view that order Ex. 7 was rightly held to be illegal and void, and I see no reason la interfere with the judgment of the appellate court.
9. In the result, the appeal is dismissed with costs.