JUDGMENT : 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 attendance 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 appellants/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. 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 temporary 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 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. 4. On the basis of the pleadings of the parties, learned Trial Court below framed as many as six following issues: 1. Is the suit maintainable in its preset from the prayer?; 2. Was the plaintiff absent from his duties fro collection of Tolls from the Hats causing pecuniary loss to the defendant committee as has been stated in the para-21 of the W.S?; 3. Was the letter dated 31.07.1980 Marked Ext-1 issued by the defendant committee to the plaintiff legal and valid?; 4. Are the defendants with the help of their subordinates not allowing the plaintiff to sign any attendance register, to take toll collection receipt book and to take salary since 1st January, 1984 as stated in the para-7 of the plaint?; 5. Is the suit barred by the principles of Limitation Act? and 6. Is it mandatory on the part of the plaintiff to serve notice U/s. 32 of the Act in this case as stated in para-5 of the W.B.? 5. Both sides adduced oral as well as documentary evidence in the Trial Court and on the basis of the said evidence, learned Trial Court below decreed the suit directing an order of perpetual injunction against the appellants/defendants, so that appellants/defendants might not cause any repeatation of invasion against legal rights of the plaintiff in signing attendance register, withdrawal of salaries and other facilities in accordance with law. 6. The appellants/defendants preferred a Title Appeal being OC No. 04 of 2002 in the 1st Appellate Court (before the learned Additional District Jude, Utter Dinajpur at Islampur) to challenge the said judgment and decree granting perpetual injunction. Learned lower 1st Appellate Court dismissed the appeal confirming the judgment passed by the learned Civil Judge (Junior Division), Islampur, Uttar Dinajpur In O.C. Suit No. 66 of 1990. 7. Learned lower 1st Appellate Court dismissed the appeal confirming the judgment passed by the learned Civil Judge (Junior Division), Islampur, Uttar Dinajpur In O.C. Suit No. 66 of 1990. 7. Being aggrieved by and dissatisfied with the judgment of affirmance, passed by learned 1st lower Appellate Court, this Second Appeal has been preferred by the appellants/defendants. At the time of admission of the Second Appeal, the Division Bench framed the following substantial questions of law to be heard at the time of disposal of this appeal. (a) Whether the learned Courts below committed substantial error in law in not adjudicating the rights of the appellants to hold and continue in a non-sanction post of Toll Collector on daily wage basis? (b) Whether the learned Court below committed substantial error in law in not appreciating that the appellants herein have no legal obligation to issue letter of dismissal to the plaintiffs for termination of engagement on delay wage basis? (c) Whether the learned Courts below committed substantial error in law by not holding that the sit was barred under Article 113 of the Limitation Act? 8. The moot point in this case requiring decision is whether the respondent/plaintiff was right in his approach to be favoured with an order of perpetual injunction in order to prevent the breach of an obligation existing in his favour, whether expressly or by necessary implication, or not. 9. At the very threshold of the case this may be mentioned here that ordinarily the Second Appeal was preferred by Islampur Regulated Market Committee, which is no longer in existence in view of the notification being published on 17th October, 2014. A CAN application being No. 1501 of 2015 was accordingly taken out by the appellants, which was disposed of on 28.03.79 by this Court allowing transposition and the name of Uttar Dinajpur Zilla Regulated Market Committee was allowed to be put in the cause title in the memorandum of appeal, as appellants in place of earlier appellant(Islampur Market Regulated Committee). 10. Mr. Pradip Kumar Roy, learned advocate for the appellants/defendants submitted that the learned 1st lower Appellate Court and that of the Trial Court below committed a gross mistake in granting an order of perpetual injunction in a case, where there was no relationship between the plaintiff as employee with that of the appellant as employer in terms of the expression available for public employment. Since respondent was purely appointed on temporary basis as Toll Collector at a daily wage basis, there could not be any relationship to have established in the manner, as sought to have been developed in the instant case. It was further contended by the learned advocate for the appellants that perpetual injunction ought not to have been granted in the instant case, where the suit was hopefully barred under the provisions of Section 113 of the Limitation Act, 1963, as no suit was admittedly issued within three (3) years after accrual of the alleged right of the plaintiff for being unequivacally threatened by his adversary to infringe the same. Since the plaintiff/respondent was no longer in service after he was served with a show cause notice dated 26th October, 1983, both the courts below ought not to have granted perpetual injunction in order to enforce performance of the alleged breach of obligation vested with the appellants. The provisions incorporated in Section 14(4) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 and Rule 27(3) (g) (h) of West Bengal Produce Marketing (Regulation) Rules, 1982 would not be made applicable in case of temporary service, appointed on daily wage basis, as sought to be applied under a mistaken view of law. Argument was specifically focused by appellant submitting that in view of the settled proposition of law, the service of a person for temporary period, appointed on daily wage basis cannot be enforced for alleged breach of obligation by granting perpetual injunction on the ground that the relief reinstatement being reasonably not justified in the instant case, when adequate compensation in terms of money may be granted in remedification of damage, if any sustained by plaintiff. 11. Mr. Safiulla Mondal, learned advocate for the respondent/plaintiff replied controverting the submissions raised by the appellants that when the service of plaintiff/respondent was acknowledged by appellants authority paying salary for the purpose, the relationship between the appellants and the plaintiff stood automatically developed, as employer and employee, in view of the contract of appointment, conveyed in the letter of appointment, marked as ‘Ext-3’. Though for the alleged dismal service of plaintiff, a notice was issued dated 31.07.80 dropping his service, but the same could not be given effect to, as plaintiff was subsequently permitted to resume his duties, as Toll Collector, which, however, strengthened the relationship existing between the parties. Though for the alleged dismal service of plaintiff, a notice was issued dated 31.07.80 dropping his service, but the same could not be given effect to, as plaintiff was subsequently permitted to resume his duties, as Toll Collector, which, however, strengthened the relationship existing between the parties. It was vehemently opposed by the learned advocate for the respondent that when the appointment of plaintiff was made for receiving his service, the plaintiff must be presumed to have achieved the status of an employee, though temporarily, within the meaning of Section 14 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. The subsequent show cause notice, dated 26th October, 1983 requiring plaintiff to submit a reply within 7 days from the date of receipt of the show cause notice with a disclosure of initiation of disciplinary action for want of reply being submitted within the stipulated period of time, should not have been treated to have been duly served dismissing the service of the plaintiff/respondent in terms of the provisions contained in Rule 27(3)(g)(h) of West Bengal Agricultural Produce Marketing (Regulation) Rules, 1982. 12. As plaintiff was not lawfully discharged from his service, so he shall be presumed to have been unlawful prevented by the appellants making breach of an obligation, vesed with the appellants and upon rightful consideration of which, both the court below enforced the same by granting perpetual injunction, learned advocate for the respondent/plaintiff most strenuously argued. 13. Admittedly plaintiff/respondent was appointed on 16.04.77 as Toll Collector at a daily wage basis of Rs.9/-. The service of plaintiff/respondent was sought to be obtained for twice in a week and the service of plaintiff was duly remunerated by the appellants. 14. The Rule pertaining to enforcement of contract is established that where a contract is made, and the same is broken for breach of obligation, and the suit is brought for its specific performance, the Court has to find out whether the failure of the defendant to perform the contract (a) cannot be adequately compensated in money, and (b) The contract is otherwise proper to be specifically enforced. If both the questions are answered in the affirmative, the contract can be specifically enforced. If both the questions are answered in the affirmative, the contract can be specifically enforced. To put in other words, specific performance will not be decreed, if the court finds either that compensation in money would provide adequate relief, or that the contract is such, which cannot be specifically enforced under the provisions of law. The jurisdiction of the civil court amongst others is determined by the nature of the relief claimed upon perusal of the relief claimed, as already made in this case, shown in the admitted prayer portion of the plaint. It reveals from the prayer with all certainty that the plaintiff prayed for declaration that he was entitled to continue in service, and wanted further reinstatement in service, which in a sense with all magnitute would amount to enforcement of contract of service, and the same is barred under Section 14 of the Specific Relief Act. 15. The relevant provisions found in Sub-Section 2 of Section 38 of the Specific Relief Act 1963 most pertinently may be mentioned as hereinbelow: 38. Perpetual injunction when granted.— (1) ……….. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. 16. From the impugned judgement of the learned 1st lower Appellate Court, it appears that there is a clear admission on the part of the plaintiff that he was rich man and member of Zilla Parishad, and not regular employee of the defendants/appellants Committee. Thus the situation is very conspicuous to reveal that the service of the plaintiff /respondent was taken as temporary in nature providing appointment as Toll Collector to be remunerated at daily wage basis. 17. Learned 1st lower Appellate Court upon taking notice over the text of the show cause notice dated 26.10.1983 (Ext.-4) observed that there had been nothing suggestive of dismissal of service of respondent/plaintiff, and thus the 1st learned lower Appellate Court proceeded to hold that there had been violation of the mandatory provisions laid down in Section 14(4) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 by denying plaintiff/respondent from signing the attendance register, also denying him from taking Toll collection receipt books etc. 18. An employer cannot be forced to take an employee with whom relationship has reached point of complete loss of faith between the two. 18. An employer cannot be forced to take an employee with whom relationship has reached point of complete loss of faith between the two. Though argument was raised by the plaintiff/respondent that when service of plaintiff/respondent was received for a considerable long period of time paying daily rated wages after giving him an appointment as Toll Collector, vide ‘Ext.-3’, but there left nothing to reveal that appointment as Toll Collector was given obtaining prior sanction from the board for the purpose as contemplated in the Act. Under Section 14(3) of West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 the market committee may appoint such other officers and employees, as the board may sanction, and Rule 27 of West Bengal Produce Marketing (Regulation) Rules, 1982 lays down that no market committee shall appoint any officer or employee except with the prior sanction of the board. The proposal for sanction shall be sent to the board by the market committee with full supportive facts and figures at least one month before the proposed date of appointment. Nothing was there to reveal that appointment as Toll Collector, the remuneration of which was determined at a daily rated basis, was duly sanctioned by the board, adhering to the procedure applicable at the relevant point of time. 19. When there is purported termination of a contract of service, a declaration that the contract of service still subsists, would not be made in the absence of special circumstances, because of the principle that court ordinarily would not enforce specific performance of contract of service. There are three well recognised exception to the general rule where declaration, as sought for, could be issued namely (i) cases of public servant falling under Article 311(2) of the Constitution, (ii) cases falling under the Industrial Law and (iii) cases where acts of statutory bodies are in breach of a mandatory obligation, imposed by the statute. Thus if the employee dismissed is not a public servant, specific performance cannot be enforced. In the case of special circumstances being shown, the court sometimes enforce a contract of service by restraining the employer grating an injunction from terminating the employment, where both the employer and employee retain confidence in each other. Thus if the employee dismissed is not a public servant, specific performance cannot be enforced. In the case of special circumstances being shown, the court sometimes enforce a contract of service by restraining the employer grating an injunction from terminating the employment, where both the employer and employee retain confidence in each other. As has already discussed that there was no element of public employment or service, no support of the statute, nothing in the nature of office or status, which is capable of protection, so whatever expression or terminology that might be used in the instant case for receiving the service of plaintiff and in lieu thereof granting of due remuneration at a daily rated basis by the appellants authority, that will not be supportive of revealing element of public employment or a position having statutory support, for alleged breach of obligation, enforcement of which was sought to be made by an order of perpetual injunction under Section 38 of the Specific Relief Act. The permanent injunction and specific performance of contract can only be granted, if the provisions of Section 14 read with Section 41 of the Specific Relief Act are not applicable. 20. In the given set of facts, the plaintiff/respondent could well be compensated by granting damages for breach of contract. What is prohibited is the enforcement of contract of service, and a suit claiming declaration and damages is reasonably maintainable. If the order of termination is illegal or bad in law, the plaintiff, though in the given circumstances of the case may be treated as servant in relation with his master/appellant, is not without remedy, as the plaintiff can well sue the master for damages for breach of the contract. 21. Upon consideration of the rival submissions, the court is of the view that it is the nature of the duty performed, which is the determinative factor in the instant case, as the court is to enforce the said duty, and the identity of the authority against whom the right is sought is not relevant. 21. Upon consideration of the rival submissions, the court is of the view that it is the nature of the duty performed, which is the determinative factor in the instant case, as the court is to enforce the said duty, and the identity of the authority against whom the right is sought is not relevant. Collection of Toll twice in a week, appointed on daily rated basis being the nature of the duty performed by the plaintiff left the very essence of the relationship between the parties, which was not regular and temporary in nature, devoid of existence of any legal right, being in relationship of master and servant, for which the provisions contained in Section 14 of West Bengal Agricultural Produce (Regulation) Rules, 1982 cannot be reasonably attracted to. Far to speak of enforcement of the said duty by granting an order of perpetual injunction under Section 38 of the Specific Relief Act ignoring the relevant provisions contained in Section 14 read with Section 41 of Specific Relief Act. 22. In the case at hand the show cause notice dated 26th October, 1983 was not challenged. Admittedly the appellants authority invaded the right of the plaintiff by restraining him from putting his signature in the attendance register for the purpose and further impaired his right from collecting relevant toll collection receipt books on and from 1st January, 1984, meaning thereby the respondent/plaintiff was under statutory obligation under Article 113 of the Limitation Act 1963 to file the suit within three years after accrual of his right, as asserted in the suit for an unequivocal threat being demonstrated against plaintiff by the defendants/appellants intending to infringe the same. The argument thus raised by the appellant on the score of limitation reasonably carry substance to be taken care of adequately for the determination of the questions of law already framed for the purpose. Upon consideration of the nature of the duty performed by the plaintiff/respondent, the enforcement of which was sought to be made with the aid of Section 38 of the Specific Relief Act, the text of the reliefs sought for necessarily would amount to enforcement of contract of service, which is barred under Section 14 of the Specific Relief Act. Upon consideration of the nature of the duty performed by the plaintiff/respondent, the enforcement of which was sought to be made with the aid of Section 38 of the Specific Relief Act, the text of the reliefs sought for necessarily would amount to enforcement of contract of service, which is barred under Section 14 of the Specific Relief Act. The appointment of plaintiff, as Toll Collector, being contemplated to be remunerated for his temporary service at a daily rated wage, there cannot be any perpetual injunction, as sought to be obtained, because grant of monetary compensation would meet the ends of justice. 23. In view of the discussion made herein above, neither the learned 1st lower Appellate Court, nor the learned trial court below failed to consider the real purport of the case in its true perspective taking care of the provisions of law contained in Section 38 read with Section 14 and 41 of the Specific Relief Act. The findings thus reached by the learned 1st lower Appellate Court, confirming the order of the learned Trial Court below cannot be described to be perfect appreciation of the provisions of the law in context with the facts presented by both the parties involved in this case. 24. As a result the appeal succeeds. 25. The impugned 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 is hereby set aside. The judgment rendered by the Trial Court dated 28th February, 2002 passed by the learned Civil Judge (Junior Division), Islampur, Uttar Dinajpur In O.C. Suit No. 66 of 1990 resultantly is without any consequence. 26. Office is directed to send down lower court’s record along with copy of the judgment by special messenger to the learned Trial Court for information and necessary action. 27. The copy of the judgment may also be forwarded by the department to the learned 1st lower Appellate Court for necessary information. 28. With this observation and direction, the second appeal stands disposed of. 29. 27. The copy of the judgment may also be forwarded by the department to the learned 1st lower Appellate Court for necessary information. 28. With this observation and direction, the second appeal stands disposed of. 29. Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.