Physical unfitness dismissal still requires statutory opportunity to show cause; inconsistent service rules are ultra vires.

Termination of service on the ground of physical unfitness was treated as a dismissal attracting the protection of Section 240(3) of the Government of India Act, 1935. The employee was therefore entitled to a reasonable opportunity to show cause before the order took effect, and the safeguard was not confined to cases of misconduct. A service rule dispensing with a charge-sheet or explanation in cases of inefficiency due to lack of physical fitness could not override the statutory protection. The subordinate rule was ultra vires to the extent of inconsistency and could not validate the dismissal.

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Issues: (i) whether termination of service on the ground of physical unfitness amounted to dismissal attracting the protection of Section 240(3) of the Government of India Act, 1935; (ii) whether a service rule dispensing with a charge-sheet or explanation in cases of inefficiency due to lack of physical fitness could override Section 240(3).

Issue (i): whether termination of service on the ground of physical unfitness amounted to dismissal attracting the protection of Section 240(3) of the Government of India Act, 1935.

Analysis: The cessation of employment was held to be a dismissal, even though it was founded on physical unfitness rather than misconduct. The protection in Section 240(3) applied to a person sought to be dismissed from service, and the proviso did not cover a case of dismissal for physical incapacity. The employee was therefore entitled to a reasonable opportunity to show cause before the order took effect.

Conclusion: The termination was a dismissal within Section 240(3), and the employee was entitled to the statutory protection.

Issue (ii): whether a service rule dispensing with a charge-sheet or explanation in cases of inefficiency due to lack of physical fitness could override Section 240(3).

Analysis: A rule framed under the service-rule making power could not cut down or neutralise the express mandate of Section 240(3). A subordinate rule inconsistent with the statutory safeguard was ultra vires and ineffective to deny the opportunity of showing cause required by the Act.

Conclusion: The service rule was ultra vires to the extent that it conflicted with Section 240(3) and could not validate the dismissal.

Final Conclusion: The dismissal was held unlawful for want of the mandatory opportunity to show cause, and the declaration granted to the employee was maintained.

Ratio Decidendi: A dismissal from service on the ground of physical unfitness is still a dismissal attracting the statutory requirement of a reasonable opportunity to show cause, and any subordinate service rule inconsistent with that protection is ultra vires.

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