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TMI Blog1951 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dismissed 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 grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant of the Government of India and that is conceded. Sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Privy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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