JUDGMENT V. Balakrishna Eradi, J. 1. These appeals have been filed against the judgment of our learned brother, Khalid, J. allowing a batch of original petitions filed by certain railway employees who were working as casual labourers in the service of the Southern Railway Administration questioning the validity of the orders of termination of service passed against the petitioners by the concerned officers of the railway under whom they were working in purported exercise of their power under rule 149 of the Indian Railway Establishment Code (hereinafter referred to as the Code). Writ appeal No. 33 of 1975 arises out of O.P. No. 3493 of 1974. writ appeal No. 34 of 1975 out of O.P. No. 3392 of 1974, writ appeal No. 37 of 1975 out of O.P. No. 3339 of 1974 and writ appeal No. 38 of 1975 out of O.P. No. 3394 of 1974. All these appeals have been filed on behalf of the railway administration by the concerned officers who figured as the respondents in the respective writ petitions. The original petitions were allowed by the learned single Judge on the ground that the termination of the employment of the writ petitioners had been effected by way of punishment for their participation in the recent general strike staged by railway employees and that the said action had been taken in violation of Article 311 of the Constitution and also in contravention of section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The legality and correctness of this conclusion reached by the learned single Judge are called in question before us by the appellants.' 2. Before we proceed to address ourselves to the questions of law involved in these cases we shall briefly set out the relevant facts relating to each of these appeals. In doing so it would be convenient to refer to the parties by mentioning their rank and array in the respective writ petitions. O.P. No. 3493 of 1974 out of which writ appeal No. 33 of 1975 was filed by nine petitioners: all of them had been working as casual labourers attached to the establishment of the Executive Engineer (Construction), Southern Railway, Ernakulam and they had put in continuous service ranging from two to four years. O.P. No. 3493 of 1974 out of which writ appeal No. 33 of 1975 was filed by nine petitioners: all of them had been working as casual labourers attached to the establishment of the Executive Engineer (Construction), Southern Railway, Ernakulam and they had put in continuous service ranging from two to four years. The case of the petitioners is that they had not participated in the general strike which was staged by a large section of the railway employees from 8th May 1974 till 28th May 1974 but for no fault of theirs they were prevented from attending to their work on the'9th And 10th of May, 1974 by reason of obstruction by the. striking employees. It is further averred in the original petition that when the petitioners reported for duty on the 11th May, 1974 they were refused work by the respondent and that from that date they were wrongfully kept out of duty. It is contended by the petitioners that by reason of their having put in continuous service in the same type of work for much more than six months they had acquired temporary status and were liable to be discharged from service only in the manner provided under the relevant rules but nevertheless, they have been denied employment from 11th May onwards without observing the procedure laid down by law for the termination of service of such employees. Another ground taken by the petitioners is that even apart from the provisions contained in the Code and in the Indian Railway Establishment Manual (hereinafter referred to as the Manual) laving down the procedure for termination of service of the employees either by giving notice or by way of disciplinary action the petitioners were, in any event, entitled to be given all the benefits provided under section 25F of the Act before they were retrenched from service. In as much as the procedure laid down in the said section had not been observed the petitioners contend that they should be deemed to be continuing in the service of the railway administration without any break since there had not been any valid action taken by the respondent for discharging them from service. In as much as the procedure laid down in the said section had not been observed the petitioners contend that they should be deemed to be continuing in the service of the railway administration without any break since there had not been any valid action taken by the respondent for discharging them from service. On this basis the petitioners prayed for a declaration that they are continuing in the service of the railway administration without any break from 8th May 1974 onwards and they also sought the grant of all consequential relief flowing from the said declaration by way of back wages etc. 3. In the counter-affidavit of the respondent it has been contended that the petitioners were casual labourers employed on projects and that hence they were not eligible for the grant of temporary status. Such being the position, the counter-affidavit proceeds to state that the petitioners were employees liable to be discharged from service without any notice and under the relevant provisions of the Code the service of such personnel is to be deemed to have been terminated on the close of each day. Hence it is contended that there was n necessity at all for going through any form of procedure for discharging the petitioners from service since the petitioners were only casual labour possessing no right whatever for being provided with continuous employment under the railway administration. It is admitted in the counter-affidavit that it was because of the fact that the petitioners were casual labourers employed on projects having no claim for the grant of Temporary status that it was not considered necessary by the respondent to issue to them any notice of termination of their services. The counter-affidavit also contains a clear averment that the petitioners had been denied employment pursuant to a decision taken by the railway administration to discharge from service persons who had participated in the illegal strike. The plea put forward by the petitioners that they have not participated in the strike has been denied in the counter-affidavit and it is said that the petitioners had absented themselves from duty from 8th to 10th of May by way of active participation in the general strike. The plea put forward by the petitioners that they have not participated in the strike has been denied in the counter-affidavit and it is said that the petitioners had absented themselves from duty from 8th to 10th of May by way of active participation in the general strike. Thus the counter-affidavit makes it clear that the petitioners had been denied further employment under the railway because of the fact that they had participated in the strike illegally resorted by a large section of the railway employees from 8th May, 1974 onwards. 4. O. P. No. 3392 of 1974 out of which writ appeal No. 34 of 1975 has arisen has been filed by two employees belonging to the category of casual labour both of whom have admittedly acquired temporary status. The petitioners did not attend work during the period of the strike. When they reported for duty on 28th May 1974 they were refused work and were not admitted to duty. Susequently they were served with identically worded orders of termination, Ext. P-1 dated 22nd May 1974 being the order of termination issued to the 1st petitioner and Ext. P-2 bearing the same date being the order terminating the service of the second petitioner. It is stated in both those orders that they were issued in exercise of the power conferred on the respondents under rule 149 of the Code. Under those orders the services of the petitioners were terminated forthwith with a direction that they would be paid a sum equivalent to their pay and allowances for a period of one month representing the period of notice. The petitioners contend that the said action taken against them by the respondents is manifestly illegal. According to the petitioners, the orders Exts. P-1 and P-2 evidence a colourable exercise of-the powers conferred by rule 149 because, what has actually been done in the guise of termination simpliciter is to impose on the petitioners a punishment for their having participated in the general strike. According to the petitioners, the orders Exts. P-1 and P-2 evidence a colourable exercise of-the powers conferred by rule 149 because, what has actually been done in the guise of termination simpliciter is to impose on the petitioners a punishment for their having participated in the general strike. The petitioners claim that they are entitled to the protection of Article 311 of the Constitution of India and that since the impugned orders terminating their services have been passed without complying with the procedure laid down in Article 311 (2) of the Constitution and in the Discipline and Appeal Rules framed by the railway administration under the proviso to Article 309 of the Constitution they are illegal and void. Alternatively it is contended that even if it is to be assumed that the railway administration was justified in invoking the power conferred by rule 149 of the Code the action taken against the petitioners is none-the-less illegal since the petitioners were not given their pay for one month in lieu of notice at the time when their services were purported to be terminated. Another plea put forward by the petitioners is that there has been a violation of section 25F of the Act in as much as the procedure laid down therein for retrenchment of an employee governed by the provisions of the Act has not been complied with before the impugned orders discharging the petitioners from service were passed by the respondents. 5. In the counter-affidavit filed on behalf of the respondents in this writ petition also there is a categorical statement that the termination of the services of the petitioners had been effected on the ground of their having participated in the illegal strike. The reason for issuing the impugned orders Exts. P-1 and P-2 has been explained in para 4 of the counter-affidavit as follows: "The Administration in the meantime was considering the action to be taken against the employees who did not co-operate with, in the running of the train services during the strike period. Such of those staff who were loyal to the Administration and stuck to their posts and thus enabled the Administration to run the train services were given certain benefits. Such of those staff who were loyal to the Administration and stuck to their posts and thus enabled the Administration to run the train services were given certain benefits. Among those who took part in the strike, the persons who had committed overt act in pursuance of the strike, they were taken up under D.I.R. and over and above that, disciplinary proceedings departmentally were also taken against them. The services of the temporary employees who were not loyal to the Administration were decided to be terminated by the Railway Administration under Rule 149 of the Railway Establishment Code, Vol. I without any stigma to their character. The 1st respondent has issued Ext. P-1 and Ext. P-2 orders as per the above policy decision." After setting out the ground aforesaid it is asserted in the counter-affidavit that the orders of termination served on the petitioners have been validly passed under rule 149 of the Code, Vol. I and that the contention of the petitioners that their discharge from service was by way of retrenchment cannot be sustained because the termination of the service of the petitioners was not on the ground of their having been found to be surplus to to requirements of the administration. 6. There is only one petitioner in O. P. No. 3338 of 1974 out of which writ appeal No. 37 of 1975 has arisen. He had applied for leave for 22 days from 7th May, 1974 on the strength of a medical certificate and had remained absent from duty with effect from that date. On his reporting for duty with the certificate of fitness after the expiry of the period covered by his leave application the petitioner was not admitted to duty and he was thereafter kept out of employment. No order terminating the service of the petitioner was issued to him. The petitioner was admittedly a casual labourer who had acquired temporary status. On his having been so kept out of work the petitioner through his advocate issued a notice to the respondents on 31st May 1974 claiming that he was entitled to be provided with work, since he was a casual labourer with temporary status and that there were no justifiable grounds for refusing employment to him. In reply thereto the petitioner's advocate was informed by the respondents as per Ext. P-3 and Ext. In reply thereto the petitioner's advocate was informed by the respondents as per Ext. P-3 and Ext. P-4 that the service of the petitioner had been terminated under rule 149 of the Code for participating in the illegal strike from 8th May 1974. The petitioner contends that the action taken by the respondents in so terminating his services is violative of Article 311 of the Constitution and section 25F of the Act. Like the petitioners in the connected writ petitions this petitioner has also raised the plea that the termination of his service was by way of punishment and that hence it could not have been validly effected without complying with the provisions of the Discipline and Appeal Rules. 7. In answer to the above contentions of the petitioner the case put forward by the railway administration in the counter-affidavit is mainly that the petitioner's services had been validly terminated under rule 149 after issuing a notice to him as required under the said rule. The respondents have produced along with the counter-affidavit as Ext. R-1 a copy of the order which was said to have been served on the petitioner terminating his services forthwith under rule 149 of the Code, Volume 1, Ext. R-1 reads: "In pursuance of rule 149 of the Indian Railway Establishment Code, Volume 1, I hereby terminate forthwith the services of Sri K. Aravindan, Bricklayear, L.T.I. No. 506 and direct that Sri K. Aravindan shall be paid a sum equivalent to the amount of pay with allowance for one month (in lieu of the period of notice) calculated with the same-rate at which Sri K. Aravindan was drawing then immediately before the date on which this order is served on him as the case may be or tendered to him." The respondents have no case that at the time of service of Ext. R-1 the amount representing one month's pay and allowance was tendered or paid to the petitioner. However, it is contended on behelf of the respondents that the service of the order Ext. R-1 constitutes a valid and sufficient compliance with rule 149 and that hence the termination of the petitioner's service cannot be treated as illegal or invalid. R-1 the amount representing one month's pay and allowance was tendered or paid to the petitioner. However, it is contended on behelf of the respondents that the service of the order Ext. R-1 constitutes a valid and sufficient compliance with rule 149 and that hence the termination of the petitioner's service cannot be treated as illegal or invalid. As regards the petitioner's contentions that there has been a violation of Article 311 of the Constitution and also section 25F of the Act the stand taken in the counter-affidavit is that neither of the aforesaid provisions is attracted in the present case. 8. Coming to writ appeal No. 38 of 1975 which arises out of O.P. No. 3394 of 1974, it relates to the termination of service of the nine writ petitioners who were all admittedly casual labourers with temporary status. It would appear that on 13th June 1974 the 1st respondent the Divisional Engineer II, Southern Railway, Olavakkot addressed a letter to the 2nd respondantthe Inspector of Works, Southern Railway, Cannanore, directing the latter to terminate the services of the petitioners for their participation in the illegal strike. A list containing the names of the persons, whose services were terminated for the aforesaid reason was exhibited in all stations in the Cannanore section. Ext. P-1 is a copy of the said list and it contains the names of writ petitioners Nos. 1 to 8. Individual notices were issued to all the writ petitioners informing them that their services were being terminated under rule 149 of the Code and giving them fourteen days' notice from 21st June 1974. Ext. P-2 is a copy of the notice issued to the 9th writ petitioner and it is averred in the writ petition that similar notices containing identical wording were issued to writ petitioners Nos. 1 to 8 also. The contentions raised in this writ petition are substantially the same as those raised by the writ petitioners in the other cases, namely, violation of Article 3.11 of the Constitution and section 25F of the Act and also contravention of the principles of natural justice. 1 to 8 also. The contentions raised in this writ petition are substantially the same as those raised by the writ petitioners in the other cases, namely, violation of Article 3.11 of the Constitution and section 25F of the Act and also contravention of the principles of natural justice. A further plea taken in this writ petition is that in failing to observe the rules laid down in the Code and in the Manual regulating the procedure for terminating the services of employees by way of disciplinary action there has been a breach of guarantee contained in Articles 14 and 16 of the Constitution and that the impugned orders are liable to be struck down on the said ground as well. 9. The learned single Judge found that the petitioners in all these writ petitions belong to the category of casual labour who had acquired temporary status. The contention advanced by the respondent in O.P. No. 3493 of 1974 that the petitioners therein were employed in projects and that they therefore were not entitled to temporary status was rejected by the learned single Judge on the ground that no materials had been placed before this court by the respondent to substantiate the said plea and that from the records available the only conclusion possible was that the petitioners in O.P. No. 3493 were also casual labourers entitled to the benefit of temporary status under paragraph 2501 of Chapter XXV, of the Manual. On the question regarding the nature of the action taken by the respondent in terminating the employment of the petitioners the learned single Judge found on a detailed consideration of the attendant circumstances that the inference was irresistible that the action had been taken by way of imposition of punishment against the petitioners for their participation in the illegal strike and it could not hence be regarded as a mere termination simpliciter as contended by the railway administration. In the light of this finding the learned Judge proceeded to examine the validity of the orders of termination. In the light of this finding the learned Judge proceeded to examine the validity of the orders of termination. After an elaborate discussion of the legal principles governing the subject as gatherable from decided cases the learned Judge arrived at the conclusion that the petitioners were entitled to the protection of Article 311 of the Constitution and also to the benefits of section 25F of the Act and that in as much as the procedure laid down in these provisions had not been observed before the impugned action for terminating the services of the petitioners was taken by the respondents the petitioners were entitled to succeed in their contention that their services had not been validly terminated. The learned Judge further held that the orders of termination had been passed without complying with rules 9 to 13 of the Railway Servants (Discipline and Appeal) Rules, 1968 and also in contravention of the principles of natural justice. In the light of these findings the learned Judge set aside the orders of termination passed against all the writ petitioners and granted a declaration that the petitioners are to be deemed to be in service without any break and are also entitled to get their wages till they are reinstated in service by the respondents. 10. The learned Advocate-General who appeared on behalf of the appellants contended before us that the petitioners being personnel belonging to the category of casual labour they are not governed by Article 311 of the Constitution and that hence the learned single Judge was not right in holding that the action taken by the respondents for terminating the services of the petitioners is liable to be declared to be void on the ground of contravention of Article 311 of the Constitution. Objection was also taken to the finding entered by the learned Single Judge that the provisions of section 25F of the Act had been contravened by the respondents while terminating the services of the petitioners. It was submitted by the Advocate-General that the provisions of section 25F will be attracted only when an employee is discharged from service on the ground that his services have become surplus to the requirements of the employer. It was submitted by the Advocate-General that the provisions of section 25F will be attracted only when an employee is discharged from service on the ground that his services have become surplus to the requirements of the employer. Since the termination of the petitioners services was admittedly not on the ground that there was surplus labour it was urged that the provisions of section 25F had no applicability at all to the case and that it was unnecessary for the respondents to comply with the procedure laid down in the said section. Another argument which was forcibly advanced by the Advocate-General was that in judging the character of the action taken by the Railway administration in discharging the petitioners from its service the motive which weighed with the administration is not relevant and that even though it might be true that the motive in passing the orders of termination may have some connection with the recent strike by the Railway employees the action taken by the respondents was only to exercise the power of termination simpliciter vested in them under the Rules. Proceeding on this basis it was argued that the learned Single Judge had gone wrong in holding that the impugned orders of termination had been passed by way of the imposition of a punishment on the petitioners and that the said action had been taken in violation of the Railway Servants (Discipline and Appeal) Rules as well as the principles of natural justice. A further point which the learned Advocate-General raised in the course of his arguments was that even though the orders of termination issued to the petitioners recited that the action had been taken by the respondents under rule 149 of the Code the provisions of the said rule had, as a matter of fact, no application at all to casual labourers, like the petitioners, and hence it was unnecessary for the Railway administration to observe the procedure laid down in the said rule before terminating the services of casual labourers even after they had acquired temporary status. On its being pointed out to the learned Advocate-General that this argument which has been put forward for the first time only during the course of arguments in these appeals is directly contrary not merely to the recitals contained in the orders of termination but also to the averments repeatedly made in various paragraphs of the counter-affidavits filed by the respondents in all these cases wherein it is categorically asserted that the impugned orders had been passed by the administration only under rule 149 of the Code and that even the grounds contained in the memoranda of the appeals in all these cases expressly seek to support the action as one taken only under rule 149, the learned Advocate-General requested that he may be permitted to amend the memoranda of appeal by taking this additional legal plea. He has accordingly filed C.M.Ps. Nos. 1575, 1576, 1577 and 1578 of 1975 during the course of hearing of these appeals requesting for such sanction to amend the appeal memoranda. We have allowed these petitions without prejudice to the right of the respondents to rely on the factual statements contained in the impugned orders and in the counter-affidavits for controverting the correctness of the new plea that is being raised on the side of the appellants. 11. Before proceeding further it will be useful to refer to the relevant rules regulating the service conditions of the casual labour employed under the Railway. Chapter XXV of the Manual lays down the terms and conditions applicable to casual labour. Paragraph 2501 (b) (i) provides that casual labour who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of six months of continuous employment. We are informed that the period has now been reduced to four months by subsequent amendments of the said paragraph. Paragraph 2505 of the same Chapter lays down that except where notice is necessary under any statutory obligation no notice is required for termination of service of casual labour and their services will be deemed to have been terminated when they absent themselves or on the close of the day. There is, however, a note to the said rule which creates an exception in the case of casual labourer who has attained temporary status. There is, however, a note to the said rule which creates an exception in the case of casual labourer who has attained temporary status. It is stated in the note that in the case of a casual labourer who is to be treated as temporary after the completion of six months continuous service, the period of notice will be determined by the rules applicable to temporary Railway servants. In Other words, casual labour with temporary status stands on the same footing as temporary Railway servants in regard to the procedure to be followed for termination of their services. Paragraph 2511(a) of the same Chapter further lays down 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 same Manual and that such rights and privileges also include the benefits of the Discipline and Appeal Rules. The termination of service of temporary Railway servants otherwise than by way of disciplinary action is governed by paragraph 2302 of Chapter XXIII. This provision is made applicable also to casual labour with temporary status by virtue of para 2511 and also the note to paragraph 2505. Paragraph 2302 is in the following terms: "2302. Termination of service and periods of notices. (1) Service of a temporary Railway servant shall be liable to termination on 14 days notice on either side provided that such a Railway servant shall not be entitled to any notice of termination of his service" (i) if the termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy or to his compulsory retirement due to mental or physical incapacity or to his removal or dismissal from service as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution of India; (ii) when he is deemed to have resigned his appointment and ceased to be in Railway employ in the circumstances detailed under note 2 below Exception II to rule 732(1) of the Indian Railway Establishment Code, Volume 1. (2) In lieu of the notice prescribed in this paragraph, it shall be permissible on the part of the Railway administration to terminate the service of a Railway servant by paying him the pay for the period of notice. (2) In lieu of the notice prescribed in this paragraph, it shall be permissible on the part of the Railway administration to terminate the service of a Railway servant by paying him the pay for the period of notice. (3) The notice of termination of service under this paragraph should be given by an authority not lower than the appointing authority. (4) In the case of a Railway servant or apprentice to whom the provisions of the Industrial Disputes Act, 1947, apply, he shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act."� The procedure for taking disciplinary action in respect of Railway servants including temporary Railway servants is laid down in the Railway Servants (Discipline and Appeal) Rules, 1968. As already noticed, these rules are also made applicable to casual labour with temporary status by virtue of paragraph 2511(a) of Chapter XXV of the Manual. We have also to refer to rule 149 of the Code since it is under that provision that the impugned orders terminating the services of the petitioners have been purported to be passed. That rule in so far as it is relevant for our present purpose is in the following terms:" "149. Termination of service and periods of notice. (1) Temporary Railway servants: When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or to his compulsory retirement due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution of India. If the termination of his service is due to some other cause, he shall be entitled to one month notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 14 days if he was not engaged on a contract. If the termination of his service is due to some other cause, he shall be entitled to one month notice provided he was engaged on a contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 14 days if he was not engaged on a contract. The periods of notice specified above shall apply on either side, and steps should be taken to bring this condition to the notice of the Railway servants concerned." Note: No notice of termination will be necessary in a case where a Railway servant is deemed to have resigned his appointment and ceased to be in Railway employ in the circumstances detailed in note 2 below Exception (ii) to rule 732(1). ******* (4) 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 Railway servant by paying him the pay for the period of notice. Note: The appointing authorities are empowered to reduce or waive, at their discretion, the stimulated period of notice to be given by an employee, but the reason justifying their action should be recorded. This power cannot be re-delegated.� 12. At the outset we may say that we are in complete agreement with the view expressed by the learned Single Judge that the case put forward by the Railway administration that the petitioners in O.P. No. 3493 of 1974 were casual labourers employed in projects has not at all been satisfactorily proved and that on the materials available on record the only conclusion possible is that these petitioners were persons entitled to the benefit of temporary status under paragraph 2501 (b) (i) of the Manual. We shall therefore procede to consider the contentions raised in these cases on the basis that the petitioners in all these cases including the nine writ petitioners in O.P. No. 3493 of 1974 had become eligible for temporary status at the time when the impugned action was taken for terminating their services. 13. We shall therefore procede to consider the contentions raised in these cases on the basis that the petitioners in all these cases including the nine writ petitioners in O.P. No. 3493 of 1974 had become eligible for temporary status at the time when the impugned action was taken for terminating their services. 13. It was very forcibly contended before us by the learned Advocate-General that on the facts and circumstances of these cases the action taken by the respondents in discharging the petitioners from service cannot be said to be anything other than a termination simpliciter and that there is no justification for regarding it as a penal measure. We are unable to find our way to accede to the said contention. The legal position is now well-settled that the form of the order effecting the termination of the service of an employee is not at all conclusive and that the court has to look into the substance and the true nature of the action. In deter-mining whether the order passed in a particular case is by way of punishment the motive which has weighed with the authority passing the order is not relevant. What the court will look for is the real foundation underlying the action and if it is found that the action is, in fact, one founded on misconduct, then the court will be justified in inferring that the termination was by way of punishment. The fact that there were allegations of misconduct against the employee or that even an inquiry had been conducted into those allegations is not conclusive because even under those circumstances it is open to the authority to resort in good faith to the power of termination simpliciter instead of taking action for the imposition of a penalty. In such a case if the order of termination of service is not one really founded on the misconduct as such, the court will ignore the circumstance that there might have been a motive operating in the mind of the authority to get rid of the services of an erring employee and the action Will be treated as only one evidencing the exercise of the power of termination simpliciter reserved with the employer. If, on the other hand, notwithstanding the apparent simplicity and innocuousness in the nature of the order of termination the attendant circumstance clearly indicate that the action was founded on some misconduct on the part of the employee the court will have to treat it as one by way of punishment for such misconduct and unless the procedure laid down by law for the imposition of such punishment had been followed by the authority the order will have to be invalidated. It is unnecessary for us to multiply citations because the principles laid down by the Supreme Court on this subject in the earlier decisions have been succinctly summarised in the decisions reported in State of Uttar Pradesh and others v. Sunhar Singh A.I.R. 1974 S.C. 423, Samsher Singh v. State of Punjab and another A.I.R. 1974 S.C. 2192. In the former case the question raised before the Supreme Court was whether the order of reversion passed against an officiating sub Inspector in the armed police was an action taken by way of punishment so as to attract the provisions of Article 311 of the Constitution. The following observations of Mathew, J. explaining the test to be applied for determining the exact nature of the action taken against the employee may be usefully extracted:" "If the termination of service or reduction in rank is not by way of punishment. Article 311 (2) is not attracted. To determine whether the termination or the reduction is by way of punishment one has to consider whether the servant has the right to hold the post from which he has been either removed or reduced. In the case of a probationary or officiating appointment to a permanent or temporary post there is no such right. This does not mean, however, that the termination of service or reduction in rank of a servant who has no right to the post can never be dismissal or removal or reduction by way of punishment. If Government expressly chooses to penalise the servant for misconduct, negligence, inefficiency or the like by inflicting on him the punishment of dismissal, removal or reduction, the requirements of Article 311 must be complied with. If Government expressly chooses to penalise the servant for misconduct, negligence, inefficiency or the like by inflicting on him the punishment of dismissal, removal or reduction, the requirements of Article 311 must be complied with. ****** Confusion has arisen particularly in respect of cases where this court has had to deal with orders of Government from the aspect of the motive under lying these orders, What is the weight to be given to motive in deciding whether particular order is penal in character and therefore falling within the mischief of Article 311 of the Constitution or whether it has been passed for departmental considerations and in exigencies of public service ? It is well recognised that very often the motive of a particular order of Government and the language and terms of the order itself are not in harmony. In many, cases though Government take action under the terms of a contract of employment or under the specific service rules for the purpose of terminating the service or reducing the rank of an officer, the real motive or inducing factor which influences the Government to take action is different and is connected with some disqualification of inefficiency of the officer. In other words, Government while pretending to act in terms of the contract of service or service rules, in reality wants to get rid of the officer concerned or to reduce him to a lower rank by way of punishment for his misconduct or inefficiency or disqualification. In such a case, the action taken by Government, is in an innocuous form but the real intent of it is penal. Such a situation was contemplated by Das, C. J. in Parshottam Lal Dhingra's case. **** The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again the order of reversion may bring upon the officer certain penal consequences like forfeiture of pay and allowance or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion: in such cases also the Government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case Article 311 will be attracted.� 14. In Samsher Singh v. State of Punjab and another,A.I.R. 1974 S.C. 2192 reiterating the same principle Roy, C. J. has observed thus: "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the cease. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and with out his getting a reasonable of opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution. * * * * The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. [See State of Orissa v. Ramnarain Das (1961) 1 S. C. R. 606(A.I.R. 1961 S.C. 177]. If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance. (See Madan Gopal v. State of Punjab A. I. R. 1963 S.C. 531). In R.C. Lacy v. State of Bihar, (Civil Appeal No. 590 of 1962 decided on 23rd October 1963 (S.C. it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). (See B. C. Banarjee v. Union of India, (1964) 2 S.C.R. 135 (A.I.R. 1963 S.C. 1552). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 [See Champaklal G.Shahv. (See B. C. Banarjee v. Union of India, (1964) 2 S.C.R. 135 (A.I.R. 1963 S.C. 1552). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 [See Champaklal G.Shahv. Union of India, (1964) 5 S. C. R. 190- 1964 S.C. 1854]- On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment (See Jagdish Mitter v. Union of India, A.I.R. 1971 S. C, 449). If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The substance of the order and not the form would be decisive. [See K M. Phadnis v. State of Maharashtra, (1971) Supp. S.C. R, 118 : A. I. R. 1971 S.C. 998], Applying the tests aforementioned to the facts of The present case we have no hesitation to hold that the action taken by the respondents for terminating the services of the petitioners cannot be regarded as anything other than the nposition of a penalty against them for their participation 1 an illegal strike. Whatever lurking doubts one might otherwise have had in regard to the above matter, they have all been cleared by the_categorical averments contained in the counter-affidavits where it has been clearly tated that the railway administration was considering the action to be taken against the employees who did not co-operate in the running of the train services during the strike period and that it was finally decided to terminate The services of the temporary employees who were not loyal to the administration and that the petitioners were discharged from service pursuant to the said decision. The action taken against the petitioners was thus directly founded on the misconduct said to have been committed by them in participating in an illegal strike and hence the conclusion is inescapable that the discharge of the petitioners from service was by way of punishment. This is not a case where the conduct of the petitioners in having participated in the strike was only incidentally taken into account or that it constituted a motivating factor or only as an element in the motive underlying the action of termination. 15. This is not a case where the conduct of the petitioners in having participated in the strike was only incidentally taken into account or that it constituted a motivating factor or only as an element in the motive underlying the action of termination. 15. Apart from the averments contained in the counter- affidavit we have also the clear evidence furnished by the communications Exts.P-3 and P-4 issued by the respondents to the petitioner in O.P. No. 3338 of 1974 through his advocate wherein it is specifically mentioned that his service had been terminated for participating in the illegal strike. Ext. P-1 produced in O. P. No. 3394 of 1974 also provides clinching material to show that the orders of termination had been issued really by way of punishment for participation in the strike. A list containing the names of all persons, whose services were terminated for participation in the strike, was exhibited in all stations in the Cannanore section obviously with the intention that it should deter other employees from committing similar misconduct by way of participation in the strike. One of the recognised purposes underlying the imposition of a punishment on an offender is that it should operate as a deterrent to others who might otherwise be prone to commit a similar misdemeanour. It appears to our mind that the circumstance attending the impugned orders of termination and closely preceding and following them show beyond doubt that the orders had been passed really by way of punishment. 16. In the light of the above finding arrived at by us we are in agreement with the learned Single Judge that the case put forward by the Railway administration in the counter-affidavits that the services of the petitioners had been validly terminated in the exercise of the power conferred by rule 149 has to fall to the ground. It is, therefore, unnecessary for us to labour further on the question whether the requirements of rule 149 had been properly complied with by the respondents in effecting such termination. 17. Now that it has been found that the action has been taken against the petitioners by way of punishment it only remains for us to consider whether the procedure laid down by law for imposition of the punishment of dismissal or removal from service has been observed by the respondents before the impugned action was taken against the petitioners. 17. Now that it has been found that the action has been taken against the petitioners by way of punishment it only remains for us to consider whether the procedure laid down by law for imposition of the punishment of dismissal or removal from service has been observed by the respondents before the impugned action was taken against the petitioners. In this context it was strongly urged by the Advocate-General that even if it be that the orders were passed by way of punishment there are no statutory rules laying down the procedure to be followed for the imposition of penalties on casual labourers and that hence their relationship with the Railway administration Is only governed by the law of master and servant. On this basis it was argued that resort cannot be taken by the petitioners to the remedy, under Article 226 of the Constitution even if- in terminating their services the Railway administration has failed to observe the procedure contained in the Manual. According to the submission of the learned Advocate-General the only remedy open to the petitioners for the redressal of their grievances regarding any wrongful termination of their employment in contravention of the provisions contained in the Manual is only by an institution of a suit for damage before ordinary Civil Court. In support of this contention reliance was placed by the Advocate-General on the decisions reported in Executive Committee of U. P. State Warehousing Corporation, Lucknow v. Chandra Kiran Tyagi A.I.R. 1970 S.C. 1244, Indian Airlines Corporation v. Sukhdao Rai A.I.R. 1971S.C.1828 and Sirsi Municipality v. C. K. F. Tollia A.I.R.1973 S.C. 855. In our opinion,the above decisions .dealing with termination of service of persons employed under the statutory bodies or corporations or public sector undertakings or companies, which do not come within the definition of the State, contained in Article 12 of the Constitution, are not of any assistance in dealing with the present cases where the petitioners who have approached this Court for relief are employees of the Central Government in the Railway administration. A clear distinction has to be drawn between cases pertaining to employment under statutory bodies not coming within the definition of the State and those pertaining to servants of the State. A clear distinction has to be drawn between cases pertaining to employment under statutory bodies not coming within the definition of the State and those pertaining to servants of the State. The former involves nothing in the nature of an office or status which is capable of protection and the nexus between the employer and employee is wholly based on contract. In the case of Government employees Article 16 of the Constitution directly comes into play and if differential treatment is meted out to an employee even in regard to the due observance of the procedure laid down in administrative orders or instructions the jurisdiction of the writ court can be certainly invoked by the aggrieved Government J servant. We are not,, therefore, inclined to attach any importance to the circumstance that the rules governing the procedure to be followed for the termination of services of the casual labourers' who have attained temporary status are contained not in the Code which is statutory in character but only in the' Manual which has no statutory backing. So long as the railway administration has laid down for itself certain rules of procedure for general observance by in relation to action of a particular kind those rules will be binding oil the authority until they are altered and no deviation can be had from those rules in individual or ad hoc cases unless there is sanction for such deviation in the rules themselves or unless the case is susceptible of a valid classification for the purposes of Articles 14 and 16 of the Constitution. That the breach of an administrative order laying down conditions of service of Government employees gives rise to a cause of action enforceable under Article 226 of the Constitution has been clearly laid down in the recent decision of the Supreme Court in Union of India v. K. P. Joseph and others A.I.R. 1973 S.C. 303. That the breach of an administrative order laying down conditions of service of Government employees gives rise to a cause of action enforceable under Article 226 of the Constitution has been clearly laid down in the recent decision of the Supreme Court in Union of India v. K. P. Joseph and others A.I.R. 1973 S.C. 303. The court was there considering the effect of an "Office Memorandum� issued by the Ministry of Defence, Government of India, providing for certain benefits to ex-military personnel on re-employment and the point to be decided was whether the said memorandum gave rise to any enforceable right to a Government servant to have his pay fixed in accordance with its terms so as to entitle him to move the High Court for the issuance of a writ of mandamus under Article 226 of the Constitution. Mathew, J. explained the legal position in the following terms: ” "Generally speaking, an Administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan (1968) 1 S.C.R. 11 = (A.I.R 1967 S.C. 1910) that although Government cannot supersede statutory rules by administrative instructions; yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistant with the rules already framed and these instructions will govern the conditions of service. In Union of India v. M/s Indio Afghan Agencies Ltd. (1968) 2 S.C.R. 366 at p. 377 = (A.I.R. 1968 S.C. 718), this Court, in considering the nature of the Import Trade Policy said: To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area. A very perceptive writer has written: ***** We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the order and that was part of the conditions of his service. A very perceptive writer has written: ***** We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right.� To the same effect is the observation of Chief Justice Sikri in Purshottam Lal and others v. Union of India and another A.I.R.1976 S.C. 1088. Such being the legal position we have no hesitation to reject the contention advanced on behalf of the appellants. 18. Advertance has already been made by us to paragraph 2511 of the Manual laying down that casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary Railway servants inclusive of those conferred by the discipline and Appeal Rules. It is not contended by the respondents that the provisions of the Discipline and Appeal Rules had been complied with before the impugned orders of termination of services were issued against the writ petitioners. It is, however, argued by the Advocate-General that even though the Railway Servants (Discipline and Appeal) Rules have been issued by the President under the proviso to Article 309 of the Constitution and are thus statutory in character, they are not proprio vigore applicable to casual labour with temporary status since those rules have been made applicable to such personnel only by the administrative, instructions contained in paragraph 2511 of the Manual. This argument is only a reiteration of the contention already dealt with and rejected by us that it is only in the event of a breach of statutory rule that an employee can seek redress from this Court under Article 226 of the Constitution and that any violation of an executive Order or administrative instruction will not confer any such right on him. There is also a direct authority of a Division Bench of this Court against the contention advanced by the Advocate-General. There is also a direct authority of a Division Bench of this Court against the contention advanced by the Advocate-General. In V. O. Koruthu v. Kerala State Electricity Board 1971 K.L.T. 780, a Division Bench of this Court had to deal with a similar argument advanced on behalf of the Kerala State Electricity Board with respect to a challenge-raised against the disciplinary action taken against one of it employees in contravention of the provisions contained in the Kerala Civil Services (Classification, Control and Appeal) Rules which had been adopted and made applicable to the service under the Kerala State Electricity Board by an executive order issued by it. Dealing with the said contention Mathew, J. as he then was, said this: "The rules no doubt, have no statutory force so far as the Board is concerned. But when once the Board has adopted them, and purported to conduct the proceedings according to them, they must follow them scrupulously. As Frankfurter, J. said in Viterelli v. Seaton (359 U.S. 535): An executive agency must be rigorously held to the standards by which it professes its actions to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even if generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicial rule of administrative law is now firmly established, and if I may add, rightly so. He "that takes the procedural sword shall perish with that sword. Reference may also be usefully made to an earlier pronouncement to the same effect made by Justice Mathew, sitting singly in A. Junus and another v. Comptroller and Auditor- General of India 1970 K.L.T. 571 where the learned Judge observed thus: "The proposition that violation of administrative rules, unless backed by statute, is not justiciable, has to be understood with certain reservations. I made certain observations on this aspect of the question albeit obiter in Karunakaran v. Bureau of Economics and Statistics (1966 K.L.T. 372). There I quoted the following passage from Nature and Source of Law by John Chipman Cray (page 108): Section 246.”Are these regulations and orders sources of the Law? It is hard to imagine any of them which may not be brought before a court for application and whose ultimate sanction is not that-the Courts will apply them. Let us take one of Mr. It is hard to imagine any of them which may not be brought before a court for application and whose ultimate sanction is not that-the Courts will apply them. Let us take one of Mr. Harson instances a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King shilling, afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation, and whatever its effect may be, that effect will be given to it by the court exactly as effect will be given to a statute providing that murderers, shall be hanged, or that wills must have two witnesses. Section 247. It is therefore, on the best consideration I can give the subject, impossible to say that any general rule of conduct laid down by an administrative organ of a political (or other) organised body and applied if necessary, by its courts is not a source of law. This apart, I think, the principle of the decision "of the Supreme Court of America in Viterelli v. Seaton' 359 U. S. 535 should govern the situation here. In that case, the Secretary of the Interior had dismissed a civil servant without observing the department regulations which provided that he should be given a specific statement of the charges against him. This regulation had no statutory force. The Court held the dismissal illegal and void because, the Department had disregarded the standard which it had voluntarily adopted for itself. Mr. Justice frankfurter vividly expressed the principle: An executive agency must be rigorously held to the standards by which it professes its actions to be judged. Accordingly, if dismissal from employment is based, on a defined procedure, even if generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicial rule of administrative law is now firmly established and, if I may add, rightly so. Accordingly, if dismissal from employment is based, on a defined procedure, even if generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicial rule of administrative law is now firmly established and, if I may add, rightly so. He "that takes the procedural sword shall perish with that sword."� Although the learned Advocate-General contended before us that the two decisions aforementioned require reconsideration we are unhesitatingly in complete agreement with the propositions laid down therein. We accordingly hold that there is no substance in the contention advanced on the side of the appellants that the petitioners are not entitled to invoke the writ jurisdiction of this court for challenging the orders of termination of their service on the ground that those orders have been passed in violation of the provisions contained in the Railway Servants (Discipline and Appeal) Rules read with paragraph 2511 of Chapter XXV of the Manual. 19. The direct result of the provisions contained in paragraph 2511 of the Manual being to render the Railway Servants (Discipline and Appeal) Rules applicable to casual labour with temporary status it was incumbent on the authorities (respondents in the original petitions) to follow the procedure laid down in the Discipline and Appeal Rules before proceeding to terminated the services of the petitioners by way of punishment. Inasmuch as the said procedure was admittedly not observed it must be held that the orders of termination in respect of the writ petitioners are illegal and unsustainable. 20. Having regard to the above conclusion reached by as that the impugned orders of termination have to be set aside on the ground that they have been passed in violation of the Discipline and Appeal Rules it is really unnecessary for us to consider whether the provisions of Article 311 of the Constitution are applicable in the case of the petitioners. The learned Advocate-General, however, submitted before us that if the finding of the learned Single Judge that casual labourers like the petitioners are governed by the provisions of Article 311 is allowed to stand it would operate to the prejudice of the Railway administration since it would be a binding precedent. The learned Advocate-General, however, submitted before us that if the finding of the learned Single Judge that casual labourers like the petitioners are governed by the provisions of Article 311 is allowed to stand it would operate to the prejudice of the Railway administration since it would be a binding precedent. Reference was made by the Advocate- General to the observation of the Supreme Court in The State of Assam and others v. Kanak Chandra Duttu A.I.R.1967 S.C. 884 that a casual labourer is not the holder of a post and that Article 311 would not apply to him. The learned Advocate-General submitted that even after their becoming eligible for temporary status the petitioners continued to occupy only the status of casual labourers and that the learned Single Judge was in error in thinking that they had ceased to be casual labourers when they acquired the temporary status. Our attention was drawn by the learned Advocate-General to the provision contained in paragraph 2512 of the Manual laying down the procedure for the absorption of casual, labourers with temporary status into the regular service which, it was submitted, provides a dear indication that until they are so absorbed they continued to be only in the category of casual labour albeit with the entitlement to a temporary status. Though we find that there is prima facie considerable force in these submissions made by the Advocate- General for the reasons already indicated we do not feel called upon to go into this matter more fully or to express any final opinion thereon. Inasmuch as we have found that the determination of this question is unnecessary for the purpose of this case we set at large the finding entered by the learned Single Judge that the petitioners are entitled to the protection of Article 311(2) of the Constitution. 21. Similar is the position in regard to the attack made by the learned Advocate-General against the finding entered by the learned Single Judge regarding the applicability of section 25F of the Act to the cases on hand. 21. Similar is the position in regard to the attack made by the learned Advocate-General against the finding entered by the learned Single Judge regarding the applicability of section 25F of the Act to the cases on hand. The submission made by the learned Advocate-General is that a termination of the service of an employee for reasons other than punishment will not ipso facto constitute retrenchment from service and that a discharge from service can be said to be by way of retrenchment only if the action can be said to have been taken by the employer on the basis that the existing staff in the particular category was surplus to its requirement. In support of this contention the learned Advocate-General relied on the observations of the Supreme Court in its decisions reported in P. S. Mills Ltd. v.A. I. R. 1957 S.C. 95 S. Mills Mazdoor Union A.I.R. 1957 S.C. 95 Hariprasad v. A. D. Divelkar A.I.R. 1957 S.C. 121 Diquadih Colliery v. Their Workmen A.I.R. 1966 S.C. 75 and Management, W.B. India Ltd. v. Jaganath A.I.R. 1974 S.C. 1166. He also referred to the rulings in The Managing Director, The National Garage, Nagpur v. J. Gonsalves, Automobile Foreman, Nagpur and others A.I.R. 1952 Bombay 152, H. I. and Sons v. Fourth Industrial Tribunal A.I.R. 1966 calcutta 375 and Burra Kur Coal Co. v. Azimuddin A.I.R. 1960 Patna 554. It was contended by the learned Advocate-General that on a proper application of the principles laid down in the rulings aforecited a termination simpliciter without there being any aspect of surplusage of labour in the particular category in the service of the employer cannot be regarded as "retrenchment"�. Realising that the observations contained in a Division Bench ruling of this court in L. Krishnan and others v. The Divisional Personnel Officer, Southern Railway and another 1972 (2) L.L.J. 568 are directly against the contention advanced by him the learned Advocate-General submitted that the said decision requires reconsideration particularly in view of the observation of the Supreme Court in the later decisions to which he drew our attention. In view of the conclusion reached by us that the termination of the services of the writ petitioners was by way of punishment and that the said action has to be declared invalid on the ground of contravention of the procedures laid down by the Railway Servants (Discipline and Appeal) Rules, 1968 read with the relevant paragraph of the Manual, it is unnecessary for us-to go into the question of the applicability of section 25F of the Act to cases where action is taken by the Railway administration for terminating the services of an employee in the exercise of the power conferred under rule 149 of the Code or, under the corresponding provision of paragraph 2302 of Chapter XXIII of the Manual. Inasmuch as a decision on the said question is found to be unnecessary for the purpose of these cases we discharge the finding entered by the learned Single Judge that section 25F was applicable to these cases and that its provisions had been contravened. 22. In seeking permission to amend the appeal memorandum by raising a new ground that rule 149 of the Code has no application to casual labour and that the services of the petitioners must be taken to have been terminated under para 2302 of Chapter XXIII of the Manual which is said to be the correct provision applicable in respect of casual labourer, the object of the appellants was obviously to make out that the infraction, if any, committed by them was not of any statutory rule but only of an administrative instruction contained in the Manual. This plea Joses all force in the light of the view taken by us that even a violation of the principles laid down by an executive order of the Government or the Railway administration in regard to the procedure, to be followed for taking disciplinary question against their employees would entitle the aggrieved employee to move the High Court under Article 226 of the Constitution. 23. In the result, subject to what we have said about the finding entered by the single Judge regarding the applicability of Article 311 of the Constitution and of section 25F of the Act to the present case we dismiss these appeals but direct the parties to bear their respective costs.