JUDGMENT K.N. Singh, J. - The petitioner was employed as Station Master in the Central Railway in permanent capacity. He was compulsorily retired from service by the Divisional Superintendent, Jhansi, by his order dated 19-6-1976 by giving him 3 month's notice under Rule 2046 of the Indian Railway Establishment Code, Volume 11 as the Divisional Superintendent was of the opinion that it was in the public interest to retire the petitioner compulsorily from service. The petitioner has challenged validity of the order of compulsory retirement by means of this petition under Article 226 of the Constitution. 2. Learned counsel for the petitioner urged that the circumstances attending the impugned order clearly show that the impugned order was passed by way of punishment though the petitioner was not parer defence as contemplated by Article 31 of the Constitution. In support of the contention, learned counsel referred to number of circumstances which are necessary to be noted. On December 12, 197 the petitioner was served with a charge sheet containing several charges of serious misconduct and he was called upon' to submit his explanation. The petitioner submitted his explanation and denied the charges. He was also placed under suspension pending disciplinary 'proceedings against him but the suspension order was revoked on January 18. 1976 although the disciplinary proceedings were not dropped, instead they continued. Sri K. P. Misra, Traffic Inspector was appointed Enquiry Officer to enquire into the charges framed against the petitioner as the explanation of the petitioner was not found satisfactory but before enquiry could be finalised or and final order could be passed, the Divisional Superintendent, Jhansi, passed the impugned order on June 19, 1976 retiring the petitioner prematurely from service in exercise of his power under Rule 2046' of the Indian Railway Establishment Code by giving him 3 months' notice. The petitioner has asserted in the petition as well as in the supplementary affidavit that the impugned order was passed during the period when the petitioner was facing enquiry into charges of serious misconduct and as such the order amounted to punishment. In the counter-affidavit filed on behalf of the respondent railway authorities there is no averment that the disciplinary proceedings had been dropped or that the petitioner had been found innocent. In fact' in the counter-affidavit there is no effective denial of the averments contained in paragraphs 5 to 10 of the petitioners Supplementary affidavit. In the counter-affidavit filed on behalf of the respondent railway authorities there is no averment that the disciplinary proceedings had been dropped or that the petitioner had been found innocent. In fact' in the counter-affidavit there is no effective denial of the averments contained in paragraphs 5 to 10 of the petitioners Supplementary affidavit. In the circumstances it is fully established that the petitioner was retired compulsorily from service at a time when he was facing disciplinary proceedings on charges of serious misconduct. There is further no dispute that the petitioner was not given any opportunity to defend himself as contemplated by Article 311 of the Constitution. In fact the railway administration's defence is that no such opportunity was necessary to be given as the impugned order was a simpliciter order 1 being any element of punishment, is 3. The facts and circumstances as s_ stated above clearly show that the order g of compulsory retirement was passed pending enquiry against him without giving any opportunity of defence. In - G. S. Sial v. Union of India (1977 All LR 153): (1977 Lab IC 378), a Division Bench of this court held that where full-fledged departmental proceedings were pending against a Government servant on charges of serious misconduct and an enquiry officer had been appointed to hold enquiry into those charges and if during the pendency of enquiry a Government servant is compulsorily retired without giving any opportunity of defence to him, the order of compulsory retirement would amount to an order of dismissal or removal from service. The principles laid down in G. S. Sial's case are fully applicable to the instant case. We have no doubt in the mind that in the background of the facts and circumstances of the instant case it is legitimate to hold that the, order was passed by way of punishment and it amounted to dismissal and removal from service. Since the petitioner was not given any opportunity of defence, the impugned order is rendered void. 4. No doubt, the impugned order is in the form of simple order of termination but that does not save the order from scrutiny by the court. Since the petitioner was not given any opportunity of defence, the impugned order is rendered void. 4. No doubt, the impugned order is in the form of simple order of termination but that does not save the order from scrutiny by the court. The order of compulsory retirement is not conclusive of its true nature, instead the true nature of the order of compulsory retirement should be judged in the entirety of the circumstances preceding or attending thereto and the overriding test should be as to whether misconduct is merely a motive or very foundation of the order. The circumstances preceding and attending the impugned order of compulsory retirement leave no manner of doubt that the petitioner was compulsorily retired from service on the foundation of serious misconduct against him. The railway administration had decided to take disciplinary action ^against him on the charges framed against him but they took a somersault and decided to terminate the petitioner's services by issuing the impugned order under Rule 2046. This was not permissible to the railway administrations as they could not abandon proceedings in the midway and take the recourse under Rule 2046 pending enquiry against the petitioner. We find support for this conclusion in Dr. Akshaibar Lal v. Vice Chancellor. Banaras Hindu University, ( AIR 1961 SC 619 ). For this reason also the petitioner is entitled to relief. 5. In the result we allow the petition and quash the impugned order dated 19-6-1976. We further direct that the petitioner shall be treated in his service. He is further entitled-to "his costs.