AMIYA KUMAR MUKHERJI, J. ( 1 ) THE petitioners joined the services under the South Eastern Railway as casual labourers (gangmen ). They had put in 6 to 12 years continuous service in the said Railway under the Permanent Way Inspector, Uluberia, District Howrah. They were mostly employed in the works of maintenance, repair and renovation of Railway Track. After continuous service of 6 months from their respective dates of appointment, they acquired temporary status. All the facilities and benefits of temporary Railway servants were made available to them in terms of Rule 2511 of the Indian Railway Establishment Manual. There was a strike in the Indian Railway commencing from the morning of 8th May, 1974. That was, however, withdrawn by different Trade Unions on the 27th May, 1974. The petitioners went to join their duties on 20th May, 1974. They were not allowed to work by the authorities without assigning any reason. The petitioners were informed by the Permanent Way Inspector, Santragachi (East) that notices would be served on the petitioners terminating their services. One or two co-workers of the petitioners already received such notice from the Assistant Engineer (Track), South Eastern Railway, Kharagpur, terminating their services forthwith in pursuance of Rule 149 of the Indian Railway Establishment Code, Volume No. 1. It is alleged that the respondents are trying or attempting to terminate the services of petitioners in the grab of retrenchment violating the statutory provisions contained in Section 25f of the Industrial Disputes Act, 1947 inasmuch as no reason has been disclosed in the cyclostyled notices nor the petitioners were offered one month's notice pay and 15 days wages to each year of completed services prior to termination of their services. It is further alleged that the said threatened retrenchment of the petitioners was really no retrenchment at all but dismissal for participation in the said strike. According to petitioners, the Administration has also violated provisions of Section 25g of the Industrial Disputes Act inasmuch as the junior of the petitioners have been retained while the petitioners, who are seniors are being retrenched. The petitioners being aggrieved by threatened orders of termination of their services moved this Court in an applications under Article 226 of the Constitution and obtained the present Rules. ( 2 ) MR. The petitioners being aggrieved by threatened orders of termination of their services moved this Court in an applications under Article 226 of the Constitution and obtained the present Rules. ( 2 ) MR. Chakraborti, appearing on behalf of the petitioners, contended that the notices, being notices of retrenchment as defined in Section 2 (oo) of the Industrial Disputes Act, 1947 and the said notices having patently violated the provisions of sub-sections (a) and (b) of Sec. 25f of the said Act, the respondents terminated the services of petitioners illegally and the impugned notices were bad and inoperative in the eye of law. ( 3 ) CHAPTER XXV of the Railway Establishment Manual deals with casual labour. Rule 2511 lays down the rights and the privileges admissible to casual labour, who are treated as temporary after completion of six months continuous service. Clause (a) provides that casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules, Chapter XXXIII deals with terms and conditions applicable to railway servants and substitutes in temporary service. Rule 2302 deals with termination of service and period of notice. ( 4 ) IN these cases the impugned order of termination of service were passed under Rule 149 of the Indian Railway Establishment Code, Volume No. 1. They are of different dates, but in each case the order runs: - to sri ty G/m of PWI-W-SRC. In pursuance of Rule 149 of the Indian Railway Establishment Code, Volume 1, I hereby terminate forthwith the services of Sri. . . . . . . . (Name and designation of temporary railway servant) and direct that he/she shall be paid a sum equivalent to the amount of pay and allowance for one month (period of notice prescribed in Rule 149 R. I. as applicable to the case should be indicated here) (in lieu of the period of notice) calculated at the same rate at which he/she was drawing them immediately before the date on which this order is served on, or as the case may be tendered to him/her. Signature of the Appointing authority or his/her place. Signature of the Appointing authority or his/her place. MCA authority with designation date 21/5/74 ( 5 ) IT appears that Rule 149 is similar to the provisions of Rule 2302 of Chapter XXIII of the Indian Railway Establishment Manual. Industrial Disputes Act, 1947 is made applicable under sub-clause (6) of Rule 149. It is not disputed that the petitioners have acquired temporary status as it appears from the aforesaid impugned notice that the orders of termination were passed under Rule 149 of the Indian Railway Establishment Code, Volume 1. In (1) Hariprasad Shivshankar Shukla and anr.-v- A. D. Divelkar and Ors, A. I. R. 1957 S. C. 121, the Supreme Court observed that retrenchment as defined in Sec. 2 (oo) and as used in Section 25f had no wider meaning than the ordinary accepted connotation of the word. It meant the discharge of surplus labor or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it had no application, where the services of all workman had been terminated by the employer on a real and bonafide closure of the business. In affidavit-in-opposition filed on behalf of the respondents and affirmed by S. K. Manna, the Assistant Engineer, Shalimar, it was stated in paragraph 23 of the said affidavit, that the employment of the petitioners had not been terminated by way of retrenchment of surplus staff but it was terminated according to their terms of the employment. No material was placed before me to show that the petitioners had been retrenched. Therefore, violation of Section 25f of the Industrial Disputes Act, 1947 did not arise in the instant cases. ( 6 ) IT is next contended by Mr. Chakraborti that the impugned notice of termination is a colourable exercise of powers by which the petitioners had been removed and/or dismissed from services for the alleged participation in the railway strike without complying with the statutory provisions for such removal or dismissal. It is further contended that the said order of removal from services violates the provisions of Article 311 (2) of the Constitution. In support of his contentions Mr. Chakraborti relied upon a decision of the Supreme Court, (2) Jagdish Mitter v. Union of India, AIR 1964 SC 449 . ( 7 ) IT appears that on 14th of May, 1974 the Divisional Supdt. In support of his contentions Mr. Chakraborti relied upon a decision of the Supreme Court, (2) Jagdish Mitter v. Union of India, AIR 1964 SC 449 . ( 7 ) IT appears that on 14th of May, 1974 the Divisional Supdt. , South Eastern Railway, Kharagpur, issued a notice whereby the employees were informed that if they failed to resume duty by 16th of May, 1974 they would render themselves liable to the penalty of removal or dismissal from services and eviction from railway quarters besides other penalties under the Defence of India Rules. That notice has been annexed to the petition. Thereafter on 20th May, 1974 the Senior Divisional Engineer, South Eastern Railway issued an office memo where y the Assistant Engineer of Kharagpur, Uluberia, Bilaspur and Garden Reach were informed that the services of casual labour and substitutes who have attained temporary status and who have not joined duly by 20th May, 1974 are to be terminated forthwith. In affidavit-in-opposition referred herein above, it is stated in paragraph 15, that the Railway Administration very much needed the service of the casual labourers like the petitioners in order to maintain the railway track and other connected works when most of the railway regular servants absented from duties by participating illegal strike lodged by them but the petitioners remained absent and did not turn up for duty with the result that the Railway Administration had to terminate their temporary employment according to the terms and conditions of their temporary employment. ( 8 ) IN Jagadish Mitter's case, referred to by Mr. Chakraborti, the Supreme Court held that the order discharging a temporary servant having been found undesirable to be retained in Government service expressly cast a stigma on the servant and in that sense it would be held to be an order of dismissal and not a mere order of discharge. S. R. Das C. J. observed in (3) P. L. Dhingra v. Union of India, AIR 1958 SC 36 , at page 49:"it is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influence the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules to terminate the service, the motive operating on the mind of the Government is wholly irrelevant". ( 9 ) A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, that has been laid down by Supreme Court in (4) Satish Chandra Anand v. Union of India, AIR 1953 SC 250 . ( 10 ) IN the instant cases, the petitioners acquired temporary status and their services had been terminated in terms and conditions of their services viz. Rule 149 of the Indian Railway Establishment Code. Such termination of their services was not in a punitive way. It is also admitted by the respondents in paragraph 17 of the affidavit-in-opposition that such termination will not prevent or debar them from being considered for re-engagement or absorptions or appointment in the regular of Class IV staff according to Chapter XXV of the Manual applicable to Casual labourers. Therefore, in my view, termination being simplicitor in terms and conditions of the petitioners' service neither the misconduct, negligence or inefficiency or other disqualifications, in other words as it was not a punishment, the provisions of Article 311 (2) are not required to be complied with. ( 11 ) LASTLY it is contended by Mr. Chakraborti that in the instant cases without complying the provisions of sub-rule (4) of Rue 149 viz. without paying one month's salary in lieu of notice, the appropriate Authority had no jurisdiction to terminate the petitioners' services under the said Rule. Reliance is placed upon a single Bench decision of the Rajasthan High Court, (5) Matilal v. Union of India, 1973 (1) SLR 174. Sub-rule (4) of Rule 149 reads as follows: -"in lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a servant by paying him the pay for the period of notice. "similar provisions are to be found in proviso (b) to Rule 5 (1) of the Central Civil Service (Temporary Service) Rules, 1965. "similar provisions are to be found in proviso (b) to Rule 5 (1) of the Central Civil Service (Temporary Service) Rules, 1965. The said Rule reads: - rule 5 (1) (b) : the period of such notice shall be one month provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same time rates at which he was drawing them immediately before the termination of his service, or, as the case may be for the period by which such notice falls short of one month. The Supreme Court in (6) Senior Supdt. , R. M. S. , Cochin v. K. V. Gopinath, A. I. R. 1972 S. C. 1487 held that the proviso (b) to Rule 5 is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order. It does not lend itself to different interpretation that the termination of service becomes effective as soon as the same is served on the Government servant. The operative words of the proviso are, "the services of any such Government servant may be terminated forthwith by payment". Therefore, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. ( 12 ) MR. Basu, appearing on behalf of the respondents, contends that the Supreme Court in Gopinath's case interpreted proviso (b) to Rule 5 (1) of the Central Service (Temporary Service) Rules, in the context of the word "the service of Government servant may be terminated forthwith by payment". Payment is a condition of termination of service forthwith. Sub-rule (4) of Rule 149 should not be interpreted in terms of Gopinath's case inasmuch as in that sub-rule there is no such provision of forthwith termination by payment. ( 13 ) IN Motilal's case referred to by Mr. Payment is a condition of termination of service forthwith. Sub-rule (4) of Rule 149 should not be interpreted in terms of Gopinath's case inasmuch as in that sub-rule there is no such provision of forthwith termination by payment. ( 13 ) IN Motilal's case referred to by Mr. Chakraborti, the learned Judge of the Rajasthan High Court observed "to my mind sub-rule (4) of Rule 149 of the Indian Railway Establishment Code enables the Railway Administration to terminate the services of a railway servant without giving the prescribed notice but for doing so a pre-emptive condition is prescribed by him the pay for the period of notice". The learned Judge further observed:"there is one additional weighty consideration which induces me to take the view that was taken by their Lordships in K. V. Gopinath's case and it is that the putting of a different interpretation on sub-rule (4) of R. 149 would bring about a kind of discrimination between the temporary servant under the Central Government, namely those serving the railway administration and others under other ministries or departments of the Central Government. According to K. V. Gopinath's case before the services of a government servant can be said to be terminated validly without giving of notice, the simultaneous payment of his emoluments for the notice period would be necessary but this would not be so necessary in the case of servants of the Government of India under the railway administration. I am not inclined to give such an interpretation as would bring about a discrimination unless the language of the rule compels me to do so. " ( 14 ) WITH great respect, I am unable to share the view of the learned Judge that different interpretation of sub-rule (4) of Rule 149 would create a discrimination between the temporary servants under the Central Government viz. those serving under the Railway Administration and others under other ministries or departments of the Central Government. ( 15 ) UNDER sub-rule 3 (a) of Rule 1 of the Central Civil Service (Temporary Service) Rules, 1965 railway servants have been excluded from the operation of the said Rules. The question of discrimination comes in amongst the equals. A separate Rule has been framed with respect to a particular class of Central Government servants viz. ( 15 ) UNDER sub-rule 3 (a) of Rule 1 of the Central Civil Service (Temporary Service) Rules, 1965 railway servants have been excluded from the operation of the said Rules. The question of discrimination comes in amongst the equals. A separate Rule has been framed with respect to a particular class of Central Government servants viz. Railway servants and that particulars class has been specifically excluded from the operation of the Central Government Services Rules, 1965. In such case it cannot be said that a different interpretation with respect to sub-rule (4) of Rule 149 would create a discrimination amongst the Central Government servants. ( 16 ) SUB-RULE (4) of Rule 149 permits the Railway Authorities to terminate the services of a railway servant by paying him the pay for the period of notice. There is no provision for "forthwith" termination as provided in proviso (b) to Rule 5 (1) of the Central Civil Service (Temporary Service) Rules. Sub-rule (4) is intended to apply in case of termination of the services of a railway servant within a period less than one month. If it is stated in the notice under Rule 149, "your service shall be terminated within 7 days from the date of the receipt of the notice and you shall be paid one month's salary in lieu of notice", in that case, such notice is in conformity with sub-rule (4 ). But when the Railway Administration requires "forthwith" termination of the services of a railway servant, in my opinion, the principle as laid down by the Supreme Court in Gopinath's case (A. I. R. 1972 S. C. 1487) shall apply. Payment of one month's salary in lieu of notice must be made simultaneously with the issuance of a notice under Rule 149, otherwise termination of service would not be effected. In case of a forthwith termination of service there could not be any offer of future payment of salary. ( 17 ) IT is pointed out on behalf of the respondents that the petitioners have been avoiding to receive notices of termination and they would always make sub-rule (4) unworkable by refusing to take one month's salary. ( 18 ) IT is true that in most of the cases the employees may not accept the payment and the employer and the employer cannot compel to accept one month's salary if the employee refuses to accept the same. ( 18 ) IT is true that in most of the cases the employees may not accept the payment and the employer and the employer cannot compel to accept one month's salary if the employee refuses to accept the same. That difficulty can be solved if the Railway Authority tender one month's salary along with the notice. The salary may be remitted by a postal money order on the same date the notice of termination issued. If the railway servant refuses to accept the same, even then the order of termination shall be effective as provisions of sub-rule (4) are complied with. ( 19 ) IN the instant cases, it is admitted by Mr. Basu that in none of the cases the Railway Authorities did offer or tender one month's salary to the employee in terms of sub-rule (4) or Rule 149. Accordingly, I hold that the condition precedent for issuing notices of termination under Rule 149 of the Railway Establishment Code, Volume 1, has not been fulfilled as provisions of sub-rule (4) have not been complied with. Therefore, the impugned orders of termination of services issued under Rule 149 must be set aside by Writ of Mandamus. ( 20 ) IN the result, all these Rules are made absolute. The impugned orders of termination are set aside. The impugned orders of termination are set aside. The Railway Administration, however, shall not be precluded from passing any fresh order of termination of the petitioners' services after complying with the Rule. There will be no order for costs. Let the operation of the order be stayed for a period of three weeks after the long vacation. Rules made absolute.