A Rule framed under Section 241 of the Government of India Act, 1935, cannot have effect if it is contrary to the provisions of Section 240.

( 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 b