Subhasis Dasgupta, J. - (1.) This second appeal is directed against the judgment and decree dated 9th January, 2004 and 19th January, 2004 respectively passed by the learned Additional District Judge, Uttar Dinajpur at Islampur In O.C. Appeal No. 04 2002 confirming the judgement and decree dated 28th February, 2002 passed by the learned Civil Judge (Junior Division), Islampur, Uttar Dinajpur In O.C. Suit No. 66 of 1990 whereby the learned court below was pleased to decree the suit on contest against contesting defendants with an order of perpetual injunction against the defendants/appellants so that appellants might not cause any repeatation of invasion against respondent's/plaintiff's legal right in signing attendace register, withdrawing salary and others facilities in accordance with law.
(2.) Respondent's/Plaintiff's case, in brief, is that on the basis of an appointment letter, dated 14th April, 1977, issued by appellants/defendants, respondent/plaintiff was appointed as Toll Collector of Panjipara Market, which would sit twice in a week i.e. every Thursday and Saturday with effect from 16th April, 1977 at a daily wages of Rs.9/- as his remuneration. The plaintiff discharged his duty as Toll Collector after being so appointed to the satisfaction of his authority receiving salary/remuneration for the purpose at the rate agreed upon. On 31.07.80 plaintiff/respondent was served with a notice from his authority dropping his service with effect from 1st August, 1980 alleging his neglectful discharge of duty, entrusted to him. After persuasion and on request being made, the plaintiff/respondent was permitted again to collect toll from the Hat (temporary market) even after service of notice dropping his service. Unfortunately plaintiff/respondent further showed his reluctance in the lawful discharge of his duties, when the apellants/defendants served him a show cause notice, dated 26th October, 1983, wherein he was alleged to have not discharged the allotted duties for the period from 13.10.83 to 20.10.83 making gross violation of discipline, and it was given to understand him in such notice that in the event, if no reply be received within 7 days from the receipt of show cause notice, a disciplinary action would be initiated against the respondent/plaintiff. The plaintiff/respondent submitted his reply denying the allegations levelled against him. The admitted case of the plaintiff is that since 1st January, 1984, appellants/defendants restrained plaintiff/respondent from putting his signature in the attendance register, and also from taking the toll collection receipt books. In a situation like this, plaintiff/respondent filed a suit under Section 38 of the Specific Relief Act without serving any notice under Section 32 of the West Bengal Agricultural Produce Marking (Regulation) Act, 1972 with a prayer, which may be reproduced as hereinunder: a) It be adjudicated that the plaintiff has got existing legal right, and he has not been discharged from the Post of Toll-Collector and Market fee Collector, as yet and the plaintiff is entitled for a Decree of injunction U/s-38 of the Specific Relief Act, against the defendants so that the defendants may not repeat the invasion of the plaintiff's legal Right in signing Attendance Register and Withdrawing Salary and other facilities. (b) A decree for costs of the suit. (c) Any other relief or reliefs to which the plaintiff is entitled in law and equity.
(3.) The appellants/defendants contested the suit by filing written statement denying all material averments contained in the plaint. The maintainability of the suit was challenged for non-service of notice under Section 32 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. The contention of the defendants was that, as the plaintiff was absent from his duty without any intimation, so plaintiff was dropped from his service with effect from the 1st August, 1980. On being requested and also, in consequence of oral persuasion of plaintiff, he was permitted again to collect toll from the temporay market, but plaintiff again showed his reluctance in the discharge of his duties, and a notice to show cause was issued dated 26th October, 1983 for causing deliberate absence from his duties for the period from 13.10.83 to 20.10.83, in violation of the established discipline, and also for causing great loss to the market committee, which if unreplied within 7 days from date of receipt of such show cause notice, a disciplinary measure will be initiated against the plaintiff. The plaintiff never replied to the show cause notice, and as a result thereafter there was no relationship between the plaintiff and the authority giving him appointment as Toll Collector. The suit was further alleged to be not maintainable being hit by the provisions of Section 113 of the Limitation Act 1963, as no suit was initiated within 3 years from the accrual of the right asserted for an unequivocal threat by the adversary to infringe that right.;