JUDGMENT 1. - This order will dispose of, the writ petitions mentioned in Schedule `A' annexed with this order. 2. The petitioners by their writ petitions have challenged the order of their compulsory retirement under rule 2046 (h) of the Indian Railway Establishment Code (hereinafter referred to as `the Code'). The petitioners are Loco Running Shed employees. According to them, they proceeded on leave from January 30, 1981. They were either Diesel Drivers, Diesel Shunters, Driver's Assistant, Foreman 1st. Most of the petitioners were allotted quarters for their residence. The petitioners submitted the medical certificates as they reported sick, but the same were not accepted, After the recovery from illness, they reported on duty but they were not taken on duty and were really told that an order retiring them from their service, compulsorily has been made. No order was, however, served upon them. In S. B. Civil Writ Petition No. 506 of 1981 Kanhaiyalal K.V. Union of India & another, the following order of compulsory retirement was passed : "WESTERN RAILWAY Divisional Officer, Ajmer, Dated 2-2-1981. No. Con. E. 949/5(2) ORDER WHEREAS The Divisional Railway Manager, Western Railway. Ajmer, is of the opinion that it is in the public interest to do so. 2. NOW, THEREFORE, in exercise of the powers conferred by Clause (h) of Rule 2046 of Indian Railway Establishment Code Volune II, D.R.M. /Ajmer hereby retires Shri Kanhaiyalal K., Driver Gr. `A' SpI., Loco Shed, Abu Road with immediate effect, he having already attained the age of 55 years. Shri Kanhaiyalal Driver shall be paid a sum equivalent to the amount of his pay and allowances for a period of 3 months calculated at the same rate at which he was drawing them immediately before his retirement. Sd/- (H.L Khemani) Divisional Railway Manager, Ajmer. To Shri Kanhaiyalal K. Driver 'A' Spl., Loco Shed, Abu Road. "INSTRUCTIONS" Shri Kanhailyalal K, Driver Gr. `A' Spl. Loco Shed, Abu Road, may submit a representation within three weeks from the date of service of this order to the Chief Mechanical Engineer, W. Rly., Churchgate, Bombay." 3. Similar orders were passed in respect of the other petitioners. But the allegations of the other petitioners other than Kanhaiyalal K. and some other petitioners are that they received a letter by registered. post, which has been marked as Annexure-1 by them in their writ petitions. Similar orders were passed in respect of the other petitioners. But the allegations of the other petitioners other than Kanhaiyalal K. and some other petitioners are that they received a letter by registered. post, which has been marked as Annexure-1 by them in their writ petitions. The said letter is a copy of the caveat filed by the Union of India in this High Court. From that, they learnt that they have been retired compulsorily. The petitioners have challenged the order of their compulsory retirement on number of grounds but at the hearing, the petitioners have confined their arguments only on the three grounds viz. (1) they were not served with any order of compulsory retirement and they were not offered any pay and allowances as provided in rule 2046 (h) of the Code. (2) That even if, it may be assumed that the order of compulsory retirement was served and a valid tender of money was made still the money said to have been tendered or offered fell short of the requisite money. So the order of compulsory retirement is absolutely void and non est inasmuch as the mandatory condition precedent was not fulfilled. (3) That the order is penal in character as the petitioners were presumed to have been absented from the duty without leave and had gone on strike. Only the disciplinary action could have been taken under rule 6 of the Railway Service (Discipline and Appeal) Rules, 1968 (hereinafter referred to as `the Rules'). This could be done only after holding an inquiry in accordance with the provisions contained in rules 9 and 13 of the Rules. So the order is ex facie illegal as the same has been passed without holding any inquiry under the rules. 4. The petitioners have, therefore, prayed that the order of compulsory retirement dated February 2, 1981 may be declared illegal and may be quashed and the petitioners may be put back in service.Reply to the writ petitions have been filed by the respondents. It was stated that as all of a sudden, the petitioners absented themselves from their duties without any authority, they have sent `calls' to work the nominated trains through call-boy but they did not turn up and they went on illegal strike from January 30, 1980 or from a later date. Out of 202 employees, 37 employees had to be compulsorily retired. Out of 202 employees, 37 employees had to be compulsorily retired. About 165 employees of Loco Running Staff who reported on or after 2-3-1981 have been taken back on duty by giving them `break in service.' Anticipating the illegal strike and of reporting sick enmass the Divisional Mechanical Engineer (Western Railway), Ajmer issued a telegram that privilege of acceptance of the medical certificates from registered private practitioners for grant of leave on Medical grounds to the Railway Staff was withdrawn and only the medical certificates issued by the Medical Officer were directed to be produced. Absenting enmass from the duty and proceedings on illegal strike with a view to paralyse the train operation amounted to gross misconduct and indiscipline. So, the competent authority passed an order in accordance with the powers vested in him under rule 2046 (h) of the Code. 5. It was further stated that the order dated February 2, 1981 was personally taken to the residence of the petitioners. In the case of Shri Kanhailyalal K. the order dated February 2, 1981 was personally taken at his residence at Quarter No. L-386-A at Abu Road along with a sum of Rs. 4,691.40 being the amount of three months' pay and allowances in lieu of three months' notice by Shri H.L. Seth, Assistant Personnel Officer (I), Western Railway, Ajmer at Abbu Road, at 16 hrs. on 3-2-1981 in the presence of Shri Hikmat Ali, Loco Foreman Abu Road. Shri Ram Avtarsingh, S. I., Railway Protection Force, Abu Road, Shri P.D. Mohal, Clerk Loco Shed, Abu Road Shri Poonam Chand and Shri Moolchand Clerks Loco Shed, Abu Road and N.K. Kothiwala, Area Officer at Abu Road, but the petitioner was not found at his residence. Hence, the order dated February 2, 1981 was sent to him through registered post on February 4, 1981 with the directions to receive the order and the amount aforesaid as per letter (Ex. R/3), which runs as under : "WESTERN RAILWAY Emergency Office, W. Rly., Abu. 3-2-1981 No. Con.E. 949/5 To Shri Kanhaiyalal K. Driver, Railway, Quarter No. 386-A, Abu Road. The original order of your compulsory retirement No. Con. E. 949/ 5 (2) dated 2-2-81 was taken by Shri H. L. Seth, A.P.O. `I'. Ali at ABR for delivery to you at your residence at 16.00 on 3-2-81 along with an amount of Rs. 3-2-1981 No. Con.E. 949/5 To Shri Kanhaiyalal K. Driver, Railway, Quarter No. 386-A, Abu Road. The original order of your compulsory retirement No. Con. E. 949/ 5 (2) dated 2-2-81 was taken by Shri H. L. Seth, A.P.O. `I'. Ali at ABR for delivery to you at your residence at 16.00 on 3-2-81 along with an amount of Rs. 4,691.40 as 3 months' pay and allowances in lieu of notice period but you were not found at your residence as reported by Shri H.L. Seth; hence this order is sent to you for your record. Please take delivery and collect the amount from the Emergency Office at ABR. Sd/- 3-2-81 for D.R.M. (E)/Ali." DA/1 6. The Sub-Post Master, Abu Road, has reported back that the registered cover has been delivered to the addressee on 5-2-81. The amount of Rs. 4,691.40 so drawn, was deposited with the Station Master, Abu Road on 3-2-1981. In some cases, the orders were personally taken by. the Railway Party on 18-2-81 but the petitioners were not found at their residence. The orders were pasted on the houses of the petitioners so the orders along with similar letters were sent through registered post. These registered letters were either returned unserved or were refused. The grounds on which, the order of compulsory retirement is challenged, were denied. In the additional pleas, a plea was taken that the writ, petition deserves to be rejected on the ground that the petitioner has not availed the alternative remedy provided under order (Annx. 1) itself by filing representation to the higher authorities and the petitioner has a statutory alternative remedy under the Industrial Disputes Act. 7. Rejoinder to the reply was submitted by the petitioner Kanhaiyalal K. in which he submitted that the manner in which the respondents have acted in sending the order and money and, thereafter sending a letter through registered post cannot amount to a valid tender of the amount at all. 7. Rejoinder to the reply was submitted by the petitioner Kanhaiyalal K. in which he submitted that the manner in which the respondents have acted in sending the order and money and, thereafter sending a letter through registered post cannot amount to a valid tender of the amount at all. For construing the manner of tendering the amount to be valid, it will have to be assumed that the petitioner should have anticipated that the order of compulsory retirement will be made and that too on the day, it was made without being preceded by 3 months' notice but by way of payment of three months' pay and allowances in lieu of notice and that the petitioner should have also anticipated that the order of the tender would be brought to his residence and that he should be available for the purpose of receiving it. In the alternative, it was submitted that even if be taken that the tender made in the manner in which it has been done, was a valid tender of the amount, still the same does not constitute tender of three months' pay and allowances in the of notice as contemplated by rule 2046 (h) of the Code. According to the petitioner Kanhaiyalal K. his three months' pay will work out to Rs. 2,250 at the rate of Rs. 750 per month being the pay which he was drawing then immediately before his retirement. The three months' allowances computed at the rate of Rs. 1,026.60 (being Rs. 112.50 D. A., Rs. 90 A. D. A., Rs. 296.50/- R. A. D. A. and Rs. 527.80 running allowance last drawn by him) will work out to Rs. 3,079-80. Thus, the amount which works out as three months' pay and allowances will be Rs. 5,329.80. This is much more than the amount of Rs. 4,691.40 said to have been sent to him. Thus, the amount sent falls very short of the re justice amount. That by itself readers the order of retirement illegal. Similar plea has been taken by the other petitioners. As regards the plea of not availing the remedy, it was stated that the instruction provided for filing the representation is not an alternative remedy and further action was taken after deliberation. That by itself readers the order of retirement illegal. Similar plea has been taken by the other petitioners. As regards the plea of not availing the remedy, it was stated that the instruction provided for filing the representation is not an alternative remedy and further action was taken after deliberation. At the higher level and the caveat was entered much before any information regarding filing of the writ petition and further order was manifestly illegal and non est as having been made without observing the conditions precedent so in these circumstances, remedy under Article 220 of the Constitution is the only appropriate remedy. As regards the remedy under the Industrial Disputes Act, it was stated that it was discretionary with the Government and it was not a matter of right. 8. A further reply to the rejoinder was filed in which it was stated that the running staff of Railway are supposed to be present at their houses at all relevant times and if they go out, they have to inform the Shed In-charge or the Loco Foreman for their availability. Para 1007 of the Western Railway Operating Manual, 1961 lays down detailed procedure and guidance for ruining staff. Under that provision, it was expected of the petitioners to be available at their residence and the I should have left instructions at their residence, where they would be available for delivering the message but no such message was left at the house of the petitioners. When the petitioners were not available at the house there was no option left but to paste the order of compulsory retirement on the quarters or the houses. It was expected of the Incumbent as soon as they reached the house to report to the Emergency Officer to collect the necessary orders. The petitioner did not approach the Emergency Officer to collect the orders. It was further stated that in view of the non-co-operative attitude adopted by the petitioners, the respondents had to act in the manner, they did and that amounts to valid tender in the eye of the law, it was further pleaded that the calculation of the amount was correctly arrived at. It was further stated that in view of the non-co-operative attitude adopted by the petitioners, the respondents had to act in the manner, they did and that amounts to valid tender in the eye of the law, it was further pleaded that the calculation of the amount was correctly arrived at. Reference was made to the Railway Board's letter No. P.C. III/ 75 RA/1 dated March 22, 1976 wherein, it has been clearly mentioned, that so far as the running allowances are concerned, the sane will he paid maximum unto 45% of the pay. As regards the effectivity of the order, it was stated that it shall he effective on letter's service. In connection with S.B. Civil Writ Petition No. 747 of 1981 Kanhaiyalal v. Union of India , S.B. Civil Writ Petition No. 741 of 1981 Deo Dutt v. Union of India , and S.B. Writ Petition No. 753 of 1981 Ad Godnel v. Union of India , it was stated that the amount was sent to jail along with the order for being delivered to the petitioners in these writ petitions. put they refused to accept the same in the presence of the Sub-Jailor vide Ex. R/2. As regards the petition of Gulam Sabir v. Union of India, S.B. Civil Writ Petition No. 743 of 1981 , it was stated that he was on sanctioned leave unto January 31, 1981. He was supposed to join on February 1, 1981 but he did not join nor any intimation was sent till February 17, 1981 and telegram dated February 16, 1981 issued from Deesa was received on February 17, 1981 but before that he had already been compulsorily retired. The case of Gulam Sabir is that during the leave sanctioned unto Feb. 1, 1981, he proceeded to Sabarmati. While at Sabarmati, he received information that his sister-in-law has expired. He, therefore, sought extension of leave by telegram upto February 16, 1981 and sought further extension of leave by telegram dated February 16, 1981. He produced the receipts or telegram (Annx. A and Annx. B) and death certificate of his sister-in-law (Annx. C). 9. While at Sabarmati, he received information that his sister-in-law has expired. He, therefore, sought extension of leave by telegram upto February 16, 1981 and sought further extension of leave by telegram dated February 16, 1981. He produced the receipts or telegram (Annx. A and Annx. B) and death certificate of his sister-in-law (Annx. C). 9. At the hearing the parties submitted the charts in respect to pay and allowances to be paid and offered and the charts also showed that the order was pasted at their residence and whether they refused to accept the registered letter or the registered letter returned with an endorsement "not found" and in case of the above three petition,rs, whether they refused to accent the amount in Jail ? The petitioners also produced the copy of the Railway Board's letter No. E(P.&A.)I-75 RT-15 dated December 24, 1976 from Shri K. N. Narainswami, Joint Director Establishment (PA), Railway Board, New Delhi-I addressed to the General Manager, New Delhi. 10. I have heard Mr. Mridul, learned counsel for the petitioners and Mr. A. K. Mathur, learned counsel for the respondents. 11. At the outset, Mr. Mathur submitted that the petitioners had an alternative remedy of filing their representations as instructed in the order of compulsory retirement and of availing the statutory remedy under the Industrial Disputes Act. Without availing the alternative remedies, the petitioners should not have approached this Court to invoke its extra ordinary jurisdiction and the writ petitions are liable to he dismissed only on this ground. Reference was made by Mr. Mathur to Rajendra Sareen v. State of Haryana and others, 1972 (U.L.J.) S.C. 664 (1) Union of India v. T.R. Verma, AIR 1957 S.C. 882 (2) and Bherarem v. State of Rajasthan, 1979 W.L.N. 224 (3). He also submitted that the writ petitions involve the investigation of the disputed question of fact, which cannot be done in the writ petitions. So the remedy under Article 226 of the Constitution is not a proper and appropriate remedy, Reliance was placed by Mr. Mathur on the case of Kamini Kumar Das Choudhary v. State of West Bengal and others, AIR 1972 S.C. 2060 (4). 12. Mr. So the remedy under Article 226 of the Constitution is not a proper and appropriate remedy, Reliance was placed by Mr. Mathur on the case of Kamini Kumar Das Choudhary v. State of West Bengal and others, AIR 1972 S.C. 2060 (4). 12. Mr. Mridul, learned counsel for the petitioners on the other hand urged that in the facts and circumstances of the case, there was no other adequate and efficacious remedy available to the petitioners except to approach this Court under Article 226 of the Constitution. He submitted that the existence of an alternative remedy is not bar to the jurisdiction of this Court, It is only a rule of exercise of discretion. Reference was made by him on A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Vadhwani and another, AIR 1961 S.C. 1506 (5). The British India Steam Navigation Co. Ltd. V Jasjit Singh, Addl. Collector of Customs, Calcutta and others, AIR 1964 S.C. 1451 (6), Sanker Dutt Shukla v. President Municipal Board Auraiya and another, AIR 1956 All 70 (7), M. Basha and another v. C. Sultan Beig and others, AIR 1959 Myr. 17 (8), M.R. Arjuna v. Union of India and others, I.L.R. 1970 (20) Raj. 1024 (9), Mahesh Chandra Sharma v. State of Rajasthan, 1974 R.L.W. 338 (10) and Choudhary B.S. Jakhar v. Government of Rajasthan, 1959 R.L.W. 443(11) . 13. It may be stated that lengthy and elaborate arguments were advanced by both the sides on the above plea raised by the respondents and the case law has been cited as referred to above. The rule is firmly settled and established that the existence of an alternative remedy does not bar the jurisdiction of the High Court to entertain the petition or deal with it but it is rather a rule which courts have laid down for the exercise of their discretion. The rule is firmly settled and established that the existence of an alternative remedy does not bar the jurisdiction of the High Court to entertain the petition or deal with it but it is rather a rule which courts have laid down for the exercise of their discretion. Their Lordships of the Supreme Court in A.V. Venkateswaran's case (supra) held as under: "The vide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) Where the order prejudicial to the writ petition has been passed in violation of the principles of natural justice and could, therefore, be treated as void or nonest and that in all other cases, courts should not entertain petitions under Article 226, or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The board lines of the general principles on which the Court should clearly laid down, their application to the facts of each particular case must necessarily, be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court and in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court." The same principle is reiterated in the British India Steam Navigation Co. Ltd's case (supra) and reliance was placed on A.V. Venketesvara's case (supra). Thus, it would depend on the frets and circumstances of each case as to how the discretion has to I e exercised. Whether the court should entertain the writ petition or not is a r after within discretion of the court. 14. In Rajendra Sareen's case (supra), the rules provided for submitting the representations against the adverse remarks. Thus, it would depend on the frets and circumstances of each case as to how the discretion has to I e exercised. Whether the court should entertain the writ petition or not is a r after within discretion of the court. 14. In Rajendra Sareen's case (supra), the rules provided for submitting the representations against the adverse remarks. Their Lordships, in view thereof observed that the ends of justice will be amply met with, if the representations that the appellant has to make against the adverse remarks made against him, are considered by the highest executive of the State, namely the Governor. A direction was given to the Governor to consider the appellant's representations, which the appellant will make within six weeks. In Senkar Dutt Shukla`s case (supra), it was observed that the remedy of the Municipal Servant to go up by way of a representation to the State Government, entirely depends on the discretion of the State Government and cannot be regarded as an adequate and efficacious alternative remedy. 15. It is true that in the present case, the instructions have been given to the employees to submit the representation within three weeks from the date of service of the order. Such an instruction, in my opinion, whereby the representations could be submitted, does not afford an adequate and efficacious remedy to the petitioners more particularly when as per the petitioners, the whole order is illegal void and non est and said to have been passed in disregard of the provisions contained in rule 2046 (h) of the Code. It has been observed in Mr. Arjuna's case (supra), by this Court that the considerations of expediency which are not permitted by law can have no relevance whatever, when dealing with the question of liberty and the livelihood of a citizen. It has been observed in Mr. Arjuna's case (supra), by this Court that the considerations of expediency which are not permitted by law can have no relevance whatever, when dealing with the question of liberty and the livelihood of a citizen. In the matters which relate to the livelihood of a person and which ultimately go to deprive him of his livelihood must he zealously guarded by the courts of law and if the Enquiry Officer is found to have violated the principal of natural justice in arriving at the conclusions which formed the basis for the removal of a citizen from service then the court should not on technical pleas of the availability of an alternative remedy allow the citizens to be put at tho mercy of the same authorities who have not shown any keenest in the discharge of their duties entrusted to them by statutory rules. 16. In Mahesh Chandra's case (sutra), an objection with regard to non-availing of an alternative remedy under the Industrial Disputes Act was raised. Reliance was placed on N. Sundaramony v. The State Bank of India Kuzhithurai, 1973 (2) I.L.J. 551 (12) in which it was held that where the breach of the provisions of Section 25 F of the Act is found, the impugned order is void in law and a writ petition is proper remedy. 17. As regards the plea for availing an alternative remedy under the Industrial Disputes Act, in Nagpur Central Co-operative Bank Ltd. v. Kesa Ram and others, 1979 W.L.N. 408 (13). A Division bench of this Court agreed with the learned Single Judge that in the facts and circumstances of the case, it cannot be said that the respondents had an alternative remedy under section 10 of the Industrial Disputes Act as making of a reference under section 10 of the Industrial Disputes Act is exclusively within the discretion of the State Government. The petitioners cannot claim this relief as a matter of right. 18. With regard to the objection that the disputed questions of fact will arise in the writ petitions, so the writ is not a proper remedy, it may be stated that Mr Mridul submitted that it will not be necessary to go into the disputed questions of and the writ petitions can be disposed of, taking facts as pleaded by the respondents in their replies. Thus, for decision of these writ petitions either the admitted fasts or the facts as pleaded by the respondents alone will be considered and the disputed question of fact will not be touched, so this objection too does not remain valid. 19. Thus, I do not find any substance in the preliminary objections raised by Mr. Mathur and same are hereby over-ruled. 20. Now, I come to the merits of the writ petitions. Mr. Mridul, first of all contended that under rule 2046 (h) of the Code, a Railway Servant can be retired only after giving a notice of not less than three months in writing or three months pay and allowances in lieu of such notice. Either of the to conditions, is a condition precedent to retire any Railway Servant. According to him, the petitioners were neither served with any order of compulsory retirement for they were given three months' pay and allowances in lieu of three months' notice. Admittedly, no notice of three months' was given to the petitioners. It was incumbent on the respondents to have offered three months' pay and allowances along with the order of compulsory retirement, but it was not done. So the order of compulsory retirement is void and bad in the eye of law. He submitted that assuming the case of the respondents to be true that the Railway party visited the houses,quarters of the petitioners along with some money either on 2-2-1981 or 10-2-1981 and the petitioners were not found at their residence and that the order was pasted at the houses of the petitioners, such a service of the order and the alleged offer of money is not valid and is not sufficient compliance of rule 2046 (h) of the Code. No offer can be said to have been made to the petitioners when they were not found at their residence and when no attempt was made to offer the money to them personally. The order along with the letter said to have been sent through registered post with a direction that the amount may be collected from the Emergency Office, is no compliance of rule 2046 (h) of the Code as the order became effective on the date of affixure. 21. It was urged by Mr. The order along with the letter said to have been sent through registered post with a direction that the amount may be collected from the Emergency Office, is no compliance of rule 2046 (h) of the Code as the order became effective on the date of affixure. 21. It was urged by Mr. Mridul that it was not necessary for the petitioners to remain at their respective houses as they were not expecting that the Railway Party would come with the order of compulsory retirement and money relating to three months' pay and allowances will be offered to them. Even para 1007 does not enjoin that they should not leave the houses at all. In support of his contention, Mr. Mridul, learned counsel for the petitioners has placed reliance on Raj Kumar v. Union of India and others, 1975 (1) S.L.R. 1 (14), The State of Bombay and others v. The Hospital Mazdoor Sabha and others, AIR 1960 S.C. 610 (15), M/s National Iron and Steel Co. Ltd. v. The State of West Bengal, AIR 1967 S.C. 1206 (16), National Iron and Steel Co. Ltd. v. Third Industrial Tribunal, West Bengal, AIR 1964 S.C. 194 (17), Udaipur Mineral Development Syndicate Pvt. Ltd. v. M.P. Dave, 1975 R.L.W. 131 (18), Rajasthan Canal Project v. Rajasthan Canal Rashtriya Mazdoor Union, 1976 R.L.W. 636 (19), Mohan Lal v. The Management of M/s. Bharat Electronics Ltd., 1981 (2) S.L.R. 11 (20) and M/s. Podar Mills Ltd. v. Bhagwan Singh and another, AIR 1973 S.C. 2234 (21). 22. Mr. Mathur on the other hand submitted that the running staff of the Railway are supposed to be at their residence at all relevant times and if they were to go out, they should have informed the Shed In-charge or the Loco Foreman. He made reference to para 1007 of the Operating Manttal and submitted that the petitioners should have left the necessary instructions at their houses where they would be available. But no such message was left by the petitioners at their houses. When the petitioners were not avail able at their houses, the Railway Party which went to serve the order of compulsory retirement left with no option but to paste the order of compulsory retirement at their houses. But no such message was left by the petitioners at their houses. When the petitioners were not avail able at their houses, the Railway Party which went to serve the order of compulsory retirement left with no option but to paste the order of compulsory retirement at their houses. It was expected of the petitioners as soon as they reached their houses to report to their Emergency Officer to collect the order and pay and allowances, but they did not approach the Emergency Officer. Thereafter, the orders were sent by registered post with a direction to collect the pay and allowances from the Emergency Office. Registered letters were either returned with the endorsement of `not found' or with the endorsement of refusal. The cases of Deo Dutt `B', Kanhaiyalal `O', L. Gardner and Gulam Sabir stand on different footing, which shall be considered separately. Mr. Mathur emphasised that the conduct of the petitioners was such that it was not possible for the respondents to serve the order and to offer pay and allowances personally. So in the circumstances of these cases, it should be held that there was a valid tender and sufficient compliance of the provisions contained in rule 2046 (h) was made. In support of his contention. Mr. Mathur relied on the Straw Board Manufacturing Co. Ltd. v. Govind, AIR 1962 S.C. 1500 (22), The Management of Delhi Transport Undertakings v. The Industrial Tribunal Delhi and another, AIR 1965 S.C. 1503 (23), Banwarilal v. State of Rajasthan, 1972 W.L.N. 530 (24), Gajanand Rao Koshal v. Director of Regional Food and Civil Supplies, 1971 Lab I.C. 1329 (25) and the judgment of this Court in S.B. Civil Writ/Petition No. 765 of 1975 Jodhsingh v. Union of India, which was decided on September 23, 1980 . 23. I have given my serious and anxious consideration to the arguments advanced before me by both the parties and I have also gone through the case law cited by both the parties. Before dealing with the respective contentions and considering the case law. I may first refer to the provisions of rule 2046(h), which reads as under : "2046 (h). I have given my serious and anxious consideration to the arguments advanced before me by both the parties and I have also gone through the case law cited by both the parties. Before dealing with the respective contentions and considering the case law. I may first refer to the provisions of rule 2046(h), which reads as under : "2046 (h). Notwithstanding anything contained in this rule the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months' in writing or three months' pay and allowances in lieu of such notice. (i) if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years. (ii) in any other case after he has attained the age of five years." The above provision begins with a non-obstante Clause and the Rule confers absolute right on the appointing authority to retire any railway servant, if it is of the opinion that it is in public interest to do so. But the rider is placed on this absolute right. This right can only be exercise by giving notice of three months in writing or by giving three month's pay and allowances in lieu of such notice. The retirement can he made only on fulfilling or complying with any of the two conditions laid down in the rule. In the present case, the respondents have adopted the alternative course of giving three month's pay and allowances in lieu of three months' notice. The question that arises for consideration in the present cases is as to whether the appointing authority has retired the petitioners giving them three months' pay and allowances in lieu of three months' notice i. e. can it be said that the petitioners were given three months' pay and allowances at the time of their order of compulsory retirement. Admittedly, in the present cases, the orders of compulsory retirement were not handed over or delivered personally to the petitioners nor pay and allowances were actually paid to the petitioners. Admittedly, in the present cases, the orders of compulsory retirement were not handed over or delivered personally to the petitioners nor pay and allowances were actually paid to the petitioners. From the case, as has been pleaded by the respondents, it appears that the petitioners absented from duty and proceeded on strike and in such a situation railway party was sent with orders of compulsory retirement along with money to be paid to the petitioners. When the petitioners were not found at their residence, the orders were pasted at their houses and according to the respondents' case, no message was left as to where the necessary information could be delivered to them. Subsequently, the registered letters were sent directing the petitioners to collect the pay and allowances from the Emergency Office. It is to be seen as to whether there was a valid offer or tender, made by the respondents and whether there was sufficient compliance of rule 2046 (h). 24. In Wharton's Law Lexicon the meaning of expression "tender" is given as offer; proposal for acceptance. It is further stated that a tender must be absolute and unconditional and the money must be actually produced at the time of the tender unless that be dispensed with by the creditor, but a tender under protest is good in law, so long as no condition is imposed. 25. In Balck's Law Dictionary (TV) Edition), the meaning of the expression "tender is dealt with as under : "An offer of money; the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considered and admits to be due in satisfaction of such claim or demand, without any stipulation or condition. The actual proffer of money, as distinguished from mere proposal or proposition to proffer it Caplan V. Shaw, W. V., 30 S. E. 2d. 132, 140. Hence were written proposal to pay money, without offer of cash, is not "tender" Wardlaw v. Woodroaf 175 Ga. 515, 165 S. E. 557, 560 . 26. Now I proceed to consider the case law. 132, 140. Hence were written proposal to pay money, without offer of cash, is not "tender" Wardlaw v. Woodroaf 175 Ga. 515, 165 S. E. 557, 560 . 26. Now I proceed to consider the case law. The most of the cases cited by the learned counsel for the parties relate to the provisions which are in parimateria particularly, cases ruder section 25F of the Industrial Disputes Act or cases relating to dealing with termination of service and payment is required to be made in lieu of notice or cases relating to section 33(2)(b) of the Industrial Disputes Act where some actions have to be made simultaneously. It is not in dIspute that rule 2046(h) is mandatory in nature and the requirement prescribed by that rule is a condition precedent for the orders of compulsory retirement. While dealing with section 25 F(b) of the Industrial Dispute Act, their Lordships of the Supreme Court in case of the State of Bombay v. Hospital Mazdoor Sabha (supra) observed that on a plain reading of section 25 F, it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman, and non-compliance with the said condition renders the impugned retrenchment invalid and in-operative. Relying on this case in Mohanlal's case (supra), it was observed that by a catens of decisions, it is well settled that were the prerequisite for valid retrenchment as laid down in Section 25 F has not been complied with, retrenchment bringing about termination of service is ab initio void. The provisions of rule 2046 (h) is analogous to the provision contained in Section 25-F (b) under the Industrial Disputes Act. So in case, it is found that tie prerequisite conditions of rule 2046 have not been satisfied then the orders of compulsory retirement would be rendered ab initio void. 27. In Raj Kumar's case (supra), the appellant was not paid his salary etc. on the date of termination of the service. It was held that the order of termination is bad as payment in lieu of notice is not made simultaneously. 28. In M/s Podar Mills Ltd.'s case (supra), an application for approval of the dismissal of the workmen was made before the Tribunal on January 25, 1968 and one month's wages as required under the Act were given to the workmen only on February 2, 1968. 28. In M/s Podar Mills Ltd.'s case (supra), an application for approval of the dismissal of the workmen was made before the Tribunal on January 25, 1968 and one month's wages as required under the Act were given to the workmen only on February 2, 1968. A plea was raised that the appellant had failed to carry out the mandatory provisions of section 33 (2) (b) of the Act. On facts, it was found that there is no satisfactory proof that the wages were also paid to the respondent in accordance with the requirement of proviso to Section 33 (2) (b) of the Industrial Disputes Act. The order of the Tribunal was upheld as one of the essential requirements of the proviso to section 33 (2) (b) of the Industrial Disputes Act was not satisfied.In D.B. Civil Special Appeal No. 131 of 1979; Union of India v. N. C. Sharma and others, decided by this Court on September 17, 1980 , the nature of provision contained in rule 2046(h) came up for consideration. In that case, three months' notice fell short in time. The question arose as to whether the said provisions is mandatory in character. Relying on the decision of Poonam Chand Joshi v. Union of India, 1970 R.L.W. 487 (26) and the decision of Bombay High Court in M.S. Subramaniyam v. B.S.D. Balige, 1974 (1) S.L.R. 251 (27), it was held that the giving of not less than three months' notice in writing or three months' pay and allowances in lieu of such notice is a condition for the exercise of the Powers of compulsory retirement that has been conferred under Clause (h) of Rule 2046. The fulfilment of the aforesaid condition is necessary for the exercise of the said power and if the said condition is not fulfilled, the power of compulsory retirement cannot be said to have been validly exercised. The mandatory nature of the requirement with regard to giving; of three months' notice is manifest from the negative mandate contained in the words "not less than" which precede the word "three months". The mandatory nature of the requirement with regard to giving; of three months' notice is manifest from the negative mandate contained in the words "not less than" which precede the word "three months". The provisions of rule 2046 indicate that the rule- making authority intended that a railway servant who is to be retired compulsorily must be given at least three months' time to arrange his affairs and in cases where it is not possible to give him three months' notice, he should be given three months' pay and allowances in lieu of notice. 29. Having considered that the nature of the provisions is mandatory and the requirements of rule 2046(h) have to he satisfied while taking action under that provision, it is to be seen as to whether in the present cases, at the time of compulsory retirement, the petitioners were offered three months' pay and allowances. Admittedly, the petitioners were not actually offered any money in person. The question that would arise for consideration is as to whether the said provisions had been substantially complied with in the manner, in which, the respondents have acted. It may be stated that from the side of both the parties, some case law has been referred, which I shall take up for consideration. But no case has been cited by the learned counsel for the parties, which may have direct bearing on the facts of the present case. 30. In M/s. National Iron and Steel Co. Ltd.'s case (supra), while considering Section 25F of the Industrial Disputes Act, the question of one month's notice was dealt with. The notice given was dated November 15, 1958 and the addressee's services were terminated from November 17, 1958 and it is stated that the addressee would get one month's wages in lieu of notice of termination of his service. The workmen were further asked to collect the dues from the Cash Office on November 20, 1958 or thereafter during the working hours. It was held that manifestly, section 25F had not been complied with under which it was incumbent on the employee to pay the workmen, the wages for the period in lieu of the notice, i.e., if he was asked to go forthwith, he had to he paid at the time when he was asked to go and could not be asked to collect his dues afterwards. It may be pointed that the services were terminated w.e.f. 17-11-1958 and the workmen were asked to collect the dues on 20-11-1958 or thereafter. 31. In Rajasthan Canal Project v. Rashtriya Mazdoor Union, 1975 W.L.N. 679 : 1976 R.L.W. 636 (28), one month's notice of retrenchment was served on the workmen and he was informed that his services would stand terminated with effect from November 30, 1971. It was held that it was obligatory for the employer to make payment of retrenchment compensation to the said workman on or before November 30, 1971 but the said amount was not paid up to that date. A plea was taken that there was bona fide offer of payment for retrenchment on behalf of the employer but as he absented from the place of his work on 30-11-71, the amount of retrenchment compensation could not be actually paid to him. This plea was turned down and it was observed that merely the readiness on the part of the employer to wake payment of retrenchment compensation is not sufficient, but there must be either an offer or tender or actual payment to the workman concerned. It may be that either an offer or tender is made to the workmen personally or by a postal money order or by Bank Draft or any other well recognised media but there should be an offer or tender in the real terms and if it is not made, it cannot be said that the provisions of section 25F of the Industrial Disputes Act were complied with. It was observed that the employer must have actually tendered the amount of wages to the employee and if the employee refused to accept the .same, then it shall be deemed that the provisions of section 25F of the Industrial Disputes Act have been sufficiently complied with but in that case no offer or tender was made. 32. In National Iron and Steel Co. Ltd. v. Third Industrial Tribunal (supra), notice of retrenchment was pasted on the very day when the retrenchment was to take effect and the workmen were asked to attend the office for receiving payment of wages and compensation either on the same day or on any subsequent date. There was little chance for the workmen to receive the letter on the same day i.e. 1-9-60 and call for payment. There was little chance for the workmen to receive the letter on the same day i.e. 1-9-60 and call for payment. The notice really amounted to call to receive payment subsequent to retrenchment. It was held that the offer was bad and consequently the retrenchment order became incompetent. 33. These cases cited by Mr. Mridul lay down principles but on facts, they are distinguishable. 34. Mr. Mathur on the other hand cited The Straw Board Manufacturing Co. Ltd.'s case (supra) their Lordships of the Supreme Court considered the provisions contained in section 33(2) (b) of the Industrial Disputes Act. The proviso to the aforesaid provisions contemplated three things and one of them was payment of wages. Their Lordships observed that the employer while taking the action of dismissal or discharge should immediately pay to the employees or offer to pay him wages for one month. It was observed that the employer's conduct should show that the three things contemplated under the proviso, are parts of the same transaction. If that is done, there will he no occasion to fear that the employee's right under section 33 would he affected. It was observed that though section 33 speaks of payment of one month's wages, it can only mean that the employer has tendered the wages and that would amount to payment for otherwise a workman could always make the section unworkable by refusing to take the wages. 35. Mr. Mathur, submitted that the only course left to the respondents when the petitioners were not available at their residence is to paste the order and the railway, party was prepared to wake payment of money but as the petitioners were not available so it should be taken that tender of the pay and allowances was made to the petitioners. How for this submission merits acceptance has to be seen. But so far as, the above observations made by their Lordships of the Supreme Court are concerned the sane have no application. It is true that in order to determine the question in these cases, the conduct of the employer as well as the employees both has to be considered. 36. In the Management of Delhi Transport, Undertaking's case (supra), their Lordships observed that the. It is true that in order to determine the question in these cases, the conduct of the employer as well as the employees both has to be considered. 36. In the Management of Delhi Transport, Undertaking's case (supra), their Lordships observed that the. proviso to section 31 does not mean that the wages for one month would.have to be actually paid, because in many cases the employer can only tender the amount before the dismissal but cannot force the employee to receive the payment before dismissal can be effective. The making of tender of the amount before the order of dismissal would be sufficient compliance in this respect. In that case, the workman was asked to report immediately to the Accounts Officer at the Head Office of the employer to receive the, payment but the workman did not appear. Their Lordships observed that in the case before them the tender was definitely made before the order of dismissal became effective and that wages would certainly have been paid to the workman concerned if he would have gone to the Head Office of the employer, as notified to him. It was, therefore, held that there was no violation to comply with the provisions of Section 33(2) (b) of the Act. 37. In Bhanwarlal's case (supra) the question was as to whether the compensation is paid to the workmen at the time of retrenchment. III that case in the notice of discharge dated January 16, 1968 it was stated that the service of the junior-most surplus employee is no longer required with effect from February 20, 1968, and as such they were given one month's retrenchment notice with effect from January 20, 1968. The information regarding the payment of the retrenchment compensation was displayed on the notice board on or before February 20, 1968. But the works:en did not turn up to collect the compensation. It was held that employer has offered to pay the compensation on February 19, 1968. So it is quite clear that it carried out its responsibility of paying compensation at the time of retrenchment. Reliance was placed on the decision of the Supreme Court in Straw Board Manufacturing Co. Ltd.'s case (supra) and further reliance was placed on Nowrozabad Colliery Mazdoor Sangh v. F. Jeetsabhoy and another, 1970 F.J.R. 225 (29). So it is quite clear that it carried out its responsibility of paying compensation at the time of retrenchment. Reliance was placed on the decision of the Supreme Court in Straw Board Manufacturing Co. Ltd.'s case (supra) and further reliance was placed on Nowrozabad Colliery Mazdoor Sangh v. F. Jeetsabhoy and another, 1970 F.J.R. 225 (29). In the case of Heavy Electrical (India) Ltd., Bhopal v. Industrial Court, AIR 1970 M.P. 573 (30), the workmen were informed by a notice that they would be paid one month's wages and also retrenchment compensation at the Company's Cash Office and they were requested to collect the money in view of notice from the Cash Office on January 27, 1965 on which date, the order of retrenchment was to become effective. It was held that the notice was valid. It was observed that the payment includes an `offer' provided, it is definite unequivocal and genuine and it is not merely a pretext or show of an offer. 38. Mr. Mathur also referred to a decision of this Court in S.B. Civil Writ Petition No. 765 of 1975 Jodhsingh v. Union of India. decided on September 23, 1980 . The decisions referred to above were considered and on the facts, it was held that the provisions of Section 25-F have been complied with. In that case, at the tine the Loco Foreman personally informed the workmen that they would collect their wages and retrenchment compensation from the office on any date before the expiry of one month's notice. Thereafter the notice was displayed on the notice board, of Loco Workshop on April 19, 1975, intimating about the compensation due to them and also that the same will be paid on the date of termination of the services through emergent pay-sheet. It was observed that the pasting of the notice on the board, amounts to making it clear and unambiguous offer on the part of Railway Administration for payment of amount of retrenchment compensation to the petitioners. As the petitioners did not go to the office of the employer to receive the said amount on the date of termination of their services, it would be deemed that they were not willing to accept the amount offered to them and the provisions of Section 25F would be deemed to have been sufficiently complied with. 39. As the petitioners did not go to the office of the employer to receive the said amount on the date of termination of their services, it would be deemed that they were not willing to accept the amount offered to them and the provisions of Section 25F would be deemed to have been sufficiently complied with. 39. As already stated, none of the cases cited by the learned counsel for the parties throw any light on the situation, which has arisen in the present cases. So far as the present cases are concerned, I am clearly of the opinion that it cannot be said that any tender or offer of pay and allowances was made to the petitioners at the time of their compulsory retirement. Simply because the petitioners were not available at the residence when the Railway Party visited their residence, it cannot be said that the petitioners were trying to avoid receipt of the order and receipt of the money that may be offered to them. If the petitioners were not available at their residence, a genuine attempt ought to have been made to find out the petitioners and then to hake an offer to them. No second attempt was made to find out the petitioners so that the order can be served and payment can be made. It cannot be doubted that the petitioners could not anticipate that they would be given compulsory retirement and that the Railway Party would visit their houses along with the order of compulsory retirement for making payment of pay and allowances. When such an action could not be expected or anticipated, it cannot be said that the petitioners were avoiding service of order and receipt of money. It is true that the workman cannot he allowed to so conduct, so that the provisions may be rendered nugatory or unworkable but it is equally true that a genuine attempt should be wade for compliance of the provisions on the part of the employer. It is true that the workman cannot he allowed to so conduct, so that the provisions may be rendered nugatory or unworkable but it is equally true that a genuine attempt should be wade for compliance of the provisions on the part of the employer. It may be stated here that it is not a case of the respondents that a message was left at the residence of the petitioners to come to the office to receive any order and to get the money nor they left any such message that in case the petitioners return at their houses, they may be informed that the Railway Party brought the orders of compulsory retirement along with pay and allowances and so the petitioners way be asked to stay at the house so that the pay and allowances may be given to the petitioners along with the order of compulsory retirement on second visit of the party. The respondents have simply stated that the petitioners left no message with regard to their present availability. Leaving of no such message, does not mean that the petitioners were aware of the impending action and that they will not return to their houses even after some time. Mr. Mathur emphatically submitted that the petitioners were aware of the action and the petitioners deliberately avoided service of order and receipt of money and created obstacles in the way of employer. In such a situation, it should be deemed that the offer was made by affixure of the order accompanied with readiness to make payment. I am unable to agree,with Mr. Mathur. If, the petitioners were not available at their residence, the order could have been sent through registered post accompanied with cheque or draft in respect of pay and allowances. I need not consider the hypothetical situation as to what could be done by the employer when the employees either are not found at the houses despite several attempts or when the registered letters are returned with an endorsement that the addressees are not found. In that situation, it can he said that resort could be had to the method of affixure of the order accompanied with an offer of payment of money on the conspicuous part of employee's houses or resort could he had to publish such order accompanied with an offer. In that situation, it can he said that resort could be had to the method of affixure of the order accompanied with an offer of payment of money on the conspicuous part of employee's houses or resort could he had to publish such order accompanied with an offer. In the present cases, it cannot be found that the petitioners rendered the provisions unworkable by not remaining at their houses at the time when the Railway Party visited the houses. So the question of resorting to substituted methods for service of the order and making of an offer does not arise. Thus, in the circumstances of the case, I hold that no offer was made to the petitioners for payment of pay and allowances at the time of their compulsory retirement. The above view is expressed in all cases except in the cases of Kanhaiyalal `O' v. Union of India , Deo Dutt `B' v. Union of India and L. Gardner v. Union of India . In the cases of these petitioners, offer was made in jail but these petitioners refused to accept the same. Thus, in their case, the position is different. The record produced by the respondents goes to show that the offer was made to these three petitioners. As regards the case of Gulam Sabir v. Union of India, S.B. Civil Writ Petition No. 743 of 1981 , the facts stated by him go to point out that he was not at the headquarter. He was on leave and he further sought extension of his leave by telegram dated February 1, 1981 and further telegram dated February 16, 1981 as is evident from the telegram receipts Annx. A and Annx. B. He has also filed death certificate of his sister-in-law (Annx.C.) There is no reason to disbelieve the version given by Gulam Sabir and it is not the case of the respondents that he was at the headquarter on the date of the visit of the Railway Party. Thus, in view of the facts as stated by the petitioner Gulam Sabir, the question of any offer to him does not arise. Even otherwise, so far he is concerned, if it is found that he was at the headquarter, his case too will fall in tine line with the cases of the other petitioners other than the above three petitioners. 40. It is next urged by Mr. Even otherwise, so far he is concerned, if it is found that he was at the headquarter, his case too will fall in tine line with the cases of the other petitioners other than the above three petitioners. 40. It is next urged by Mr. Mridul that even if it is found that an offer was made to the petitioner still the offer was not of the requisite amount as the amount said to have been offered fell short of the petitioners three months' pay and allowances to which they were entitled. He submitted that the respondents did not consider the running allowance or Kilometre allowance immediately drawn by the petitioners in the previous month. But the respondents acted on the Railway Board's Circular No. P. C. III/75/R.A./1 dated March 22, 1976. According to Mr. Mridul, this circular has no application. On the contrary, Mr. Mridul produced a copy of the Railway Board's letter No. E.(P. & A.)I.- 75/R. T./15 dated December 24, 1976, in which clarification has been given to the points raised in connection with the retirement of the Railway Servant under rule 2045. It has been clarified in this letter that the pay and allowances to be given in lieu of the notice period would be the pay and allowances drawn by the Railway servant immediately before the retirement. Mr. Mridul submitted that the chart submitted by him, clearly shows how much amount fell short of the requisite amount in the case of the petitioners. In support of his contention, that the order of retirement is void when less payment is offered he placed reliance on the Division Bench decision of this Court in D.B. Special Appeal No. 17 of 1978 State v. Mangilal, decided on April 15, 1980 by the Jaipur Bench, which has been followed by this Court in S.B. Civil Writ Petition No. 2793 of 1974 Jagdish Narain Goyal v. State of Rajasthan, decided on November 26, 1980 by the Jaipur Bench. 41. Mr. Mathur, on the other hand, in the beginning maintained that the running allowance is required to be determined at the time of compulsory retirement in accordance with the above circular of the Railway Board dated March 22, 1976. But at a later stage, he gave up that submission and conceded that the said Railway Board's Circular has no application for determining the running allowance under rule 2046(h) of the Code. But at a later stage, he gave up that submission and conceded that the said Railway Board's Circular has no application for determining the running allowance under rule 2046(h) of the Code. That circular was in connection with treating the running allowance as pay for certain purposes and the purposes are specified. The relevant clause is clause (ii) which deals with the question as to how the pay is to be determined for the purposes of leave salary, medical attendance and treatment, educational assistance and retirement benefits. It is stated in clause (ii) that the pay for these purposes shall be pay plus actual amount of running allowance drawn subject to a maximum of 45% of pay. This would mean that for the purposes of determination of the pay for these matters, running allowance shall be added to pay but the maximum allowance to be added would be 45% of pay. This circular does not lay down how the running allowance would he determined to he paid to the Railway servants, when they are compulsorily retired under rule 2046(h) of the Code, Thus, the whole basis of calculating the running allowance payable to the petitioner was wrong. 42. Mr. Mathur then submitted that under rule 2046(h), the petitioners are not entitled to any running allowance and the amount offered was in excess and it did not fall short. He urged that the allowances under Code are only those allowances which are attached rule 2046 (h) of to pay. The allowances which are dependant on the undertaking of journey, are not the allowances attached to pay. So the running allowance or Kilometre allowance was not required to be paid under rule 2046(h). He referred to the definition of running allowance in rule 902 of the Railway Establishment Code. In Clause (vi) "running allowances" have been defined as under : "(vi). "Running Allowance" mean the allowances ordinarily granted to non-gazetted railway servants for the performance of duty directly connected with the charge of moving trains and include "mileage allowance" or "allowance in lieu of mileage but "exclude "special compensatory allowances". I am unable to agree with the contention of Mr. Mathur that the running allowance has to be excluded from consideration while determining the amount payable to the railway servants under rule 2046 (h). I am unable to agree with the contention of Mr. Mathur that the running allowance has to be excluded from consideration while determining the amount payable to the railway servants under rule 2046 (h). Under the above provision, the railway servant can be retired after giving either three months' notice or three months' pay and allowances in lieu of notice. If, the first method is adopted i. e. if the railway servant is retired after giving him three months' notice then the railway servant would receive his pay and all usual allowances including running allowance as he would continue his normal duties. Simply because, a railway servant has been retired by giving him pay and allowances in lieu of three months' notice that would not deprive the railway servant of his running allowance which he would have otherwise drawn, had he continued in service for three months' if he had been given three months' notice. Pay and allowance s are being paid for the period of 3 months' in lieu of three months' notice. This by itself means that whatever allowances the railway servant was drawing immediately before the compulsory retirement, he would be entitled to the same i. e. equal to the amount of allowances of three months'. Thus, allowances in rule 2046 (h), in my opinion include the running allowance as well and the Board's letter dated December 24, 1976 further makes the position clear that a railway servant would be entitled to the pay and allowances drawn by him immediately before the retirement. 43. Coming to the question as to whether the amount offered was less than the requisite amount, suffice it to say that it has not been disputed before me that the amount offered was less than the requisite amount in case of the petitioners, other than the petitioners Amar Singh, `U' and Baldeo `G' as is evident from the chart submitted by Mr Mridul in S. B. Civil Writ Petition No. 506 of 1981 Kanhaiyalal v. Union of India and another . Though there are discrepancies in the charts submitted by the both parties in case of some of the petitioners with regard to the calculation of the amount of R.A.D.A. (Revised Additional Dearness Allowances), but it has not been disputed before me that if the running allowances immediately drawn by the petitioners are considered in the amount of pay and allowances then the amount offered did actually fall short except in case of the above two petitioners. Thus, on this ground as well the order of compulsory retirement deserves to be quashed. The two decisions of this Court cited by Mr. Mridul fully support his contention that in case the amount offered fell short of the requisite amount the order of compulsory retirement is liable to be quashed and cannot be sustained. Thus, the writ petition of Amar Singh `U' v. Union of India and another, S.B. Civil Writ Petition No. 949 of 1981 and of Baldeo `G' v. Union of India and another, S.B. Civil Writ Petition No. 745 of 1981 can only succeed on the first ground and not on the second ground, whereas, S. B. Civil Writ Petition No. 747 of 1981 Kanhaiyalal `O', S.B. Civil Writ Petition No. 781 of 1981 Deo Dutt v. Union of India and another and S. B. Civil Writ Petition No. 753 of 1981 L. Gardner cannot succeed on the first ground and can succeed on the second ground. 44. Mr. Mridul next contended that the order of compulsory retirement is penal in character, so the same could not be passed without holding an inquiry. The order is by way of punishment and compulsory retirement is one of the punishment prescribed under the major penalties provided in clause (vii) of the Disciplinary Rules, 1968. He submitted that the perusal of the returns makes it abundantly clear that the action was promoted considering the alleged gross indiscipline and misconduct on the part of the petitioners. According to the respondents, the petitioners acted in a most prejudicial manner against the public interest and the petitioner's conduct warranted serious notice. In view of such allegations, the nature of the order obviously is penal in character. Mr. According to the respondents, the petitioners acted in a most prejudicial manner against the public interest and the petitioner's conduct warranted serious notice. In view of such allegations, the nature of the order obviously is penal in character. Mr. Mathur submitted that it is well settled that the compulsory retirement is no punishment and it attaches no stigma as the petitioners absented enmass for no rhyme and reasons, so having regard to the public interest, the petitioners were made retire in the exercise of legitimate powers conferred by rule 2046 (h) of the Code. It is not necessary to examine the above contention in this case for the simple reason that the writ petitions can he disposed of on the other grounds. Although, it can be said that if the foundation of the order of compulsory retirement is misconduct and gross indiscipline on the part of the petitioners then the orders will assume the character of penal orders but in case the alleged misconduct and indiscipline is merely a motive and not the foundation, then the order cannot be designated as penal in character. It is true that the form of the order is not decisive and conclusive of its true nature. The entirely of circumstances preceding or attendant of the impugned order, can be looked into for finding out whether the misconduct is a, mere motive or is the very foundation of the order. I need not determine the question as to whether the alleged misconduct was a mere motive or nwas foundation of the order. The law in this regard has been thoroughly considered by this Court in Union of India v. S.B. Chatterjee, 1980 W.L.N. 259 (31). In view of my findings and conclusions on the first two contentions advanced by Mr. Mridul, all the writ petitions deserve to be allowed. 45. No other point has been pressed before me. 46. In the result, the writ petitions are allowed, the orders of compulsory retirement are quashed and it is directed that the petitioners shall be taken back in service. In the facts and circumstances of the case, I leave the parties to bear their own costs of the writ petitions.Petitions allowed. *******