Law: Government of India Act, 1935

Section: 240 (3)

Government of India Act, 1935, S. 240 (3) - Dismissal of Government servant-Opportunity of showing cause against propos ed action-Provisions of S. 240(3) mandatory - Failure to give opportunity to show cause-Violation of constitutional requirement ---Relief sought for declaring order passed without comply ing with constitutional provisions of S. 240 (3), as void--- Plaintiff, in circumstances, held entitled to declaration sought for-Order which is void must be declared to be so and there is no scope of discretion in matter. The plaintiff was not given any opportunity to show cause as to why he should not be dismissed. This was indeed a violation of a constitutional requirement as laid down in section 240 (3) of the Government of India Act, 1935. An order passed in violation of the constitutional provision was void. The Court refused to entertain the argument that the declaration asked for is discretionary, for in case of violation of a constitutional provision the aggrieved person is entitled to the declaration as asked for. Whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court. High Commissioner of India and another v. I. M. Lall P L D 1948 P C 150; State of Bihar v. Abdul Majid A I R 1954 S C 245 and Federation of Pakistan v. Mrs. A. V. Isaacs P L D 1955 S C (Pak.) 431. Date of hearing: _28th May 1968.   JUDGMENT A. S. CHOWDHURY, J.----This appeal is at the instance of the Province of East Pakistan and directed against a judgment and decree passed by Mr. A. G. Muhammad, District Judge, Pabna on 8-11-60 in O. C. Appeal No. 6 of 1959 affirming those of Mr. A. F. S. Rahman, Subordinate Judge, 1st Court, Pabna on 18-2-1959 in Title Suit No. 21 of 1958 and it arises in the following circumstances :--- The plaintiff Meheruddin Khan was a Lower Division Clerk in the office of the Communication and Building Department since 1938. His case is that he was absent from office from 4-9-52 to 16-8-54 on the ground of illness. After prolonged illness he was ultimately declared by a Medical Board on 16-8-54 to be…