Harries, C.J.
1. This is an appeal from an order and decree of Bose, J., dated 13-6-1950.
2. The plaintiff who had been employed as a permanent Bridge Inspector under the Bengal and Assam Railway brought the suit for a declaration that he was still in the employment of the Railway, which of course was a Railway owned by the Union of India.
3. The plaintiff had sustained a serious in-jury to his back and was away from employment for a considerable time. Eventually, he was examined by medical officers on behalf of the Railway and he was declared to be unfit and his services were terminated from the date of the certificate declaring him unfit;.
4. The plaintiff apparently attempted to get the Railway authorities to change their view but they made it clear that they could not re-employ the plaintiff. He, therefore, brought a suit and the relief claimed originally was a declaration that he had been wrongfully dismissd and there was a further prayer for damages. Later an application was made to amend 'the plaint and a declaration simpliciter was asked for in the form granted by their Lordships of the Privy Council in the case of -- 'High Commissioner For India v. I. M. Lall, AIR 1948 PC 121 (A).
5. The case eventually came before Bose, J. who held that the plaintiff had been dismissed contrary to the provisions of Section 240, Government of India Act, 1935, which was in force at the time. He held that the dismissal was wrongful in that the plaintiff had not been given a reasonable opportunity of showing cause against the action proposed, namely, dismissing him. As he had been wrongfully dismissed, the learned Judge gave him the declaration as given to the plaintiff in the case of I. M. Lall. It is from that decree that the present appeal has been preferred.
6. Sub-section (3) of Section 240, Government of India Act, 1935, is in these terms : 'No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him :
Provided that this sub-section shall not apply,
(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.'
7. The plaintiff, as I have said, was a Railway servant and therefore, a servant of the Government of India and that is conceded. Sub-sec-lion (3) of Section 240 clearly applied to this case and admittedly the case does not fall within Clauses (a) and (b) of the proviso to Sub-section (3). The plaintiff was, in the view of the learned Judge and in my view, a person entitled to the benefit of Sub-section (3) of Section 240, and the learned Judge has held that he was not given the benefit of that sub-section.
8. That the plaintiff was dismissed on the ground of physical unfitness, I think, is clear. On 15-12-1943, the Engineer-in-Chief of Bridges informed the plaintiff with regret that he had been declared unfit and permanently incapacitated for further Railway service in Class A3 as a Bridge Inspector with effect from 17-11-1943. Reference is made to a medical certificate of 16-11-1943. This letter was followed by another letter of 20-12-1943, from the same superior officer to another department of that Railway in which that department had been informed that the plaintiff had been declared unfit and permanently incapacitated and that his salary bill upto November 16 was forwarded and that early payment of the salary should be arranged. The letter concludes with this phrase : 'His final settlement Memo will follow'.
9. Though the word 'dismissal' is not used, it is quite clear, I think, that the letter of 15-12-1943, was a letter of dismissal and this becomes quite clear if that letter is read in the light of the latter letter of December 20, to which I nave made reference. The man has been paid off finally upto 16-11-1946, bcause he had been found to be physically unfit for further service and it was quite clearly a dismissal on the ground of unfitness.
10. The plaintiff did endeavour to contest this order of dismissal and a letter from the Deputy General Manager of the Bengal and Assam flail-way, dated 16-8-1944, makes it quite clear that the Railway had regarded the man as having been dismissed, because in that letter they referred to the question of re-employing the plaintiff and re-employment can never arise if he had not been dismissed. Therefore, I think, it is clear that the plaintiff was dismissed on the ground of physical unfitness and that dismissal took effect as and from November 17.
11. In the first place, Mr. Sannyal contends that the plaintiff was given an opportunity to show cause why he should not be dismissed and Mr. Sannyal relies upon a letter written by the plaintiff to the Railway, dated 12-12-1943. In that letter, the plaintiff states that he has received information that the C. M. O. has forwarded a certificate of unfitness without certifying whether the plaintiff was suitable for any other work. The plaintiff then brings to the notice of the Railway authorities certain matters. It is to be observed that upto this stage no notice had been given to the plaintiff that the Railway authorities proposed to dismiss him. The first intimation the plaintiff had of that was in the letter of 15-12-1943, to which 1 have already made reference. He was never asked in terms or impliedly what he had to say against the proposal to dismiss him. It was never suggested to him that he was going to be dismissed until the notice of dismissal came. The letter of 15-12-1943, which is a letter of dismissal, was like a bolt from the blue and the plaintiff quite clearly was never given an opportunity to show cause why he should not be dismissed.
12. Mr. Sannyal then contended that by reason of the Rules of service obtaining in this Railway the notice required by Sub-section (3) of Section 240 of the Government of India Act was not neces-sary. He relied upon Rr. 1708 and 1709 in Volume I of the State Railway Establishment Code. The Rule which the learned Counsel relied on in parti-cular was in these terms :
'Where inefficiency is due to failure to conform to the requisite standard of physical fitness, it shall not be necessary to serve the Railway servant with a charge sheet, or to obtain his explanation.'
13. Mr. Sannyal has contended that the inefficiency of the plaintiff was due to his physical condition. His case, therefore, came within this Rule and Mr. Sannyal has urged that by reason of the Rule notice calling upon the plaintiff to show cause was unnecessary,
14. Section 241, Government of India Act provided by Sub-section (2) (a) that the conditions of service of persons serving in connection with the affairs of the Government of India were to be in accordance with Rules made by the Governor-General. This Rule which I have referred to is such a Rule. Therefore, it is urged that it is binding on the plaintiff.
15. Eose. J. has held that no Rule framed under Section 241 can have effect if it is contrary to the provisions of Section 240. The Rule relied upon 'by Mr. Sannyal is in conflict with Sub-section (3) of S 240. It has been held by their Lordships of the Privy Council in the case of -- 'North-West Frontier Province v. Suraj Narain Anand', AIR 1949 PC 112 (B), that Rule under Section 241 must comply with the provisions of Section 240. The Government of India could not possibly avoid the provision in the Government of India Act by making a Rule contrary to the particular provision in that Act. It is to be observed that Sub-section (3) of Section 240 now finds place in the Constitution of India. A statute contrary to the provision of Sub-section (3) of Section 240, Government of India Act would have been ultra vires the provisions of the Government of India Act and would now be ultra vires the Constitution. A fortiori a Rule framed bv Government would be ultra vires. It seems to me that the view of Bose, J. is unassailable. Reliance cannot be placed upon the Rule in question, because it clearly offends against the provision of Section 240(3), Government of India Act.
16. It was faintly suggested that removing a man because he is physically unfit is not dismissing him. Dismissing a man is putting an end to his employment. He may be dismissed rightly or wrongly, but the act of dismissal is the act of terminating his employment. It matters nut whether his employment is terminated because of dishonesty, corruption or bad health. In all three cases he has been dismissed, though in the first two cases his instant dismissal might be morally Justified, whereas in the last case it may be very harsh and unjust. In all the cases, however, the service has been terminated and he has been dismissed. It seems to me that dismissal on the ground of inefficiency due to physical incapacity clearly comes within the provisions of Section 240(3), Government of India Act and that being so, the Rule of the Railway, namely, Rule 1709(b) is ultra vires the provision of the Government of India Act and I think clearly ultra vires the present provisions of the Constitution, though the Constitution has no application to this particular case.
17. For these reasons, the view of Bose, J. was undoubtedly right and the dismissal of the plaintiff was contrary to law. He was, therefore, entitled to a declaration and as to the form of the declaration there can be now no dispute. The form of the declaration in cases of this kind was laid down by their Lordships of the Priivy Council in the case of -- 'I. M. Lall, (A)' and a declaration in that form was one given to the plaintiff by the learned Judge.
18. For these reasons I see no force in this appeal which fails and is dismissed with costs.
19. Certified for two counsel.
Banerjee, J.
20. I agree.