JUDGMENT :

1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure by the original defendant against the judgment and decree dated 12.01.2011 passed by the learned Additional District Judge and Presiding Officer, Fast Track Court Porbandar in Regular Civil Appeal No.32 of 1982, whereby the First Appellate Court has confirmed the judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar in Regular Civil Suit No.17 of 2008.

2. The appellant is the original defendant and respondent is the original plaintiff before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the Trial Court, i.e. plaintiff and defendant.

3. The brief facts giving rise to the suit of the plaintiff is that; the plaintiff was working as an Octroi Clerk since the year 1962 as permanent employee in the defendant’s department. It is contended that the defendants have issued suspension order on 06.08.1981 and has also issued show cause notice. It is alleged by the plaintiff that before issuance of suspension order, prior show cause notice needs to be issued to him. It is contended by the plaintiff that the defendants have not provided him an opportunity of being heard and with malafide intention they have issued suspension order and show cause notice on the same day and also served it on the same day at 03.30 p.m.

3.1. It is contended by the plaintiff that the reasons shown in the suspension orders are baseless and no any memo bearing no.72 dated 13.07.1981 was served upon him. The plaintiff has alleged that he never remained absent from his duty from 24.06.1981 to 26.06.1981. He has also contained that he is a kidney patient and he was on leave from 04.08.1981 to 07.08.1981 and for that purpose, he has also produced medical certificate of Doctor Bhatt along with his leave application and leave was granted to him. It is contended by the plaintiff that due to his illness he went outside Porbandar and on 17.08.1981 the order no. MUNI.JA.1154 was affixed on the conspicuous part of his residence and thereafter the defendants have also affixed the notice no.MUNI.1330 dated 05.09.1981 relating to inquiry. It is alleged that when he returned back after taking the treatment, he came to know about the said order. He has also contended that he has not sold any land of the municipality to Maiya Raiya and Bhikhu Hira and recovered Rs.1,050/-. He has also contended that earlier he had filed Regular Civil Suit NO.530 of 69 against the defendant wherein the judgment was passed in his favour. By filing the present suit, the plaintiff has prayed for declaration and permanent injunction to declare that the order dated 06.08.1981 as passed by the defendant of his suspension is unconstitutional and to restrain the defendant from dismissing him from the service.

4. The defendant has filed a written statement at exhibit 44 and has contended that suspension order has been cancelled and inquiry is ordered to be continued. It is also contended that the departmental inquiry is for the misbehaviour and misconduct of the plaintiff and during that departmental inquiry he was ordered to be suspended. It is contended that the plaintiff was informed to resume the duty and to work under the guidance and supervision of the Chief Officer, but the plaintiff did not complied with the said notice and remained absent. It is also contended that the plaintiff had to remain present on his duty on 09.02.1982, but he did not take care to remain present and thus has violated the order and therefore on 03.03.1982, the order was passed against the plaintiff as he remained absent without leave. It is also contended that yet the plaintiff did not joined his service. It is also contended that therefore the plaintiff is not entitled to get any relief as prayed for in the plaint. The defendants also contended that the suit itself is premature as no action is taken against him. T