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J.S. Varma Vs. State of U.P. Through Secy. Food and Civil Supplies Dept. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 162 of 1957
Judge
Reported inAIR1962All471
ActsConstitution of India - Article 311, 311(1) and 311(2)
AppellantJ.S. Varma
RespondentState of U.P. Through Secy. Food and Civil Supplies Dept.
Appellant AdvocateHarish Chandra, Adv.
Respondent AdvocateSenior Standing Counsel
DispositionAppeal allowed
Excerpt:
(i) constitution - service - article 311 (1) of constitution of india - proposal put up for termination - competent authority - approval accorded by the word 'seen' - held, no violation is made by issuing termination letter. (ii) termination - article 311 of constitution of india - reasons not given for termination - reasons published for warning to other officials - held, opportunity not given for show cause against termination - termination order violates the provision of article 311 and hence void. - - the learned judge did not give any precise and clear-cut finding that the plaintiff's services were temporary and liable to be terminated on one month's notice, but he held that he had failed to prove that his services were not so terminable. the ultimate conclusion of the learned.....s.s. dhavan, j.1. this is a second appeal by j.s. verma a senior cloth inspector in the supply department against the concurrent decisions of the courts below dismissing his suit for a declaration, that the order dated 24th may 1950 terminating his services is void and inoperative and that he should be deemed as continuing in service. the plaintiff's case as detailed in his plaint is as follows :2. in 1944 he was employed in the district supply office, lucknow and in 1945 promoted to the rank of senior inspector (cloth), in march 1948 his post was abolished and he was retrenched, but later in the year on august 13 due to the re-imposition of control on cloth, he was re-appointed as senior inspector (cloth) on the same pay as before. according to the plaintiff he worked to the entire.....
Judgment:

S.S. Dhavan, J.

1. This is a second appeal by J.S. Verma a senior cloth inspector in the Supply Department against the concurrent decisions of the courts below dismissing his suit for a declaration, that the order dated 24th May 1950 terminating his services is void and inoperative and that he should be deemed as continuing in service. The plaintiff's case as detailed in his plaint is as follows :

2. In 1944 he was employed in the District Supply Office, Lucknow and in 1945 promoted to the rank of senior inspector (cloth), in March 1948 his post was abolished and he was retrenched, but later in the year on August 13 due to the re-imposition of control on cloth, he was re-appointed as senior inspector (cloth) on the same pay as before. According to the plaintiff he worked to the entire satisfaction of his superiors, but on 23-5-1950 he received a notice signed by Sri B.P. Bhattacharya, District Supply Officer, that his services had been terminated with immediate effect and he was to be paid one month's pay in lieu of notice. His appeal to the District Magistrate and subsequent representations to the Commissioner of the Division and the Minister, Food and Civil Supplies were rejected. Thereupon he filed this suit for a declaration that the order terminating his services was ultra vires, void, and inoperative.

The petitioner contended that this order was really passed on the ground that there were serious complaints against him and his integrity was considered doubtful and this allegation was actually made against him in another order circulated in his office at the time, but he was given no opportunity to meet those complaints and clear himself. He also submitted that the order removing him from service was passed by theDistrict Supply Officer, Lucknow--an authority subordinate to that by which he was appointed. Thus according to the petitioner the Order of removal violated both Clauses 1 and 2 of Article 3, 11; of the Constitution.

3. The suit was contested by the State of Uttar Pradesh. It was alleged in the written statement that the petitioner was a temporary servant whose services were terminable on one month's notice or payment of one month's pay in lieu of notice, and were so terminated by the order of 24-5-1950 in accordance with the conditions of his service. The plaintiff's claim that his work was satisfactory was denied; on the contrary, it was alleged, there had been serious and persistent complaints of corruption against him, his integrity was considered very doubtful and as his retention in service was not considered desirable in the public interest his services were terminated with immediate effect on 23-5-1950 and he was relieved of his post in the afternoon of May 24.

4. The plaintiff entered the witness box and produced a number of documents in support of his own case. The only witness for the State was an inspector in the Rationing Department. The officials who were responsible for the decision to dispense with his services did not give evidence. The plaintiff stated on oath that he had been appointed by the District Magistrate, but did not produce the original order of appointment. It was suggested to him in cross-examination that under the terms of his appointment his service could be terminated by one month's notice or payment of one month's pay, but he did not deny the suggestion and gave an evasived reply that he did not recollect any such term. However, he admitted that on the earlier occasion too, in March 1948, his services were dispensed with by giving him one month's pay in lieu of notice. The solitary witness for the State, one Wasi Haider who described himself as a senior inspector in the Rationing and Supply Department in Luckow, asserted that he had seen the file of the petitioner's case. He testified that his own services were temporary and alleged.

'we all can be removed after one month's notice or one month's salary in lieu of notice We are appointed by the T. R. O. subject to the confirmation of the D. M.'

In cross-examination, however, he admitted that in 1948 he was in the Establishment Section in the T. R. O. and that the plaintiff never worked with him.

5. The trial court held that the plaintiff's appointment was made by the T. R. O. under a power delegated to him by the District Magistrate and that his Services were terminated by the District Magistrate while the District Supply Officer merely informed the plaintiff of this decision. It also found that under the terms of his contract the plaintiff's services could be terminated on one month's notice or payment of one month's pay in lieu of notice and he was not entitled to the benefit of the provisions of Article 311(2) of the Constitution as it was not necessary to give him any opportunity to showcause against the decision to terminate his services. Accordingly, it dismissed the suit with costs. In appeal the learned Civil Judge Luck-now took the view that the 'burden of proof that the plaintiff was not employed on the basis of the contract that his services will be terminated on one month's notice was on him', and rejected the plaintiff's plea that the burden was on the State to prove the existence of such a special contract.

He observed that the plaintiff was an employee of the Supply Department which itself was temporary and relied on a number of orders issued by the U. P. Government in the years 1944 and 1945 to the effect that appointments in the Rationing Department should be made on the basis that the services of the employees would be terminable on one month's notice. The learned Judge did not give any precise and clear-cut finding that the plaintiff's services were temporary and liable to be terminated on one month's notice, but he held that he had failed to prove that his services were not so terminable. The ultimate conclusion of the learned judge can be stated best in his own words :

'The conclusion, therefore, is that even if the plaintiff was removed from the service on account of certain complaint against him and even if the order of their (sic) removal was passed by the District Supply Officer who was not the appointing authority the Article 311 of the Constitution does not come in picture and the order cannot be held as illegal. The result is, therefore, that this appeal has no force and it should be dismissed with costs.'

Aggrieved by this decision the plaintiff has now come to this Court in second appeal.

6. The judgments of the courts below are no satisfactory, as neither of them contains any clear findings on vital questions of fact without which it is not possible to decide whether the plaintiff was entitled to and has been deprived of the benefit of Clauses (1) and (2) of Article 311. He had alleged that he had been appointed by the District Magistrate but removed by an authority subordinate to him and, therefore, the order terminating his services violated Clause (1) of Article 311. It was necessary for the courts below to determine who had appointed the pontiff and by whose order his services been terminated. The learned Munsif stated that the single defence witness had deposed that the plaintiff's appointment was made by the T. R. O. subject to the approval of the District Magistrate, and that there was no other evidence on this point. He was incorrect on both points. Was Haider D. W. 1 said nothing about the plaintiff's appointment, and in fact admitted that he and the plaintiff were not working in the same department at the time of the latter's appointment. His testimony was confined to the terms of his own appointment though he made a general observation that they all could be removed after one month's notice or on one month's pay in lieu of notice and that they were appointed by the T. R. O. subject to the confirmation of this District Magistrate. He had not seen theplaintiff's order of appointment and his statement was hearsay as against him.

The learned Munsif was also incorrect in his other statement that there was no other evidence on this point, for the plaintiff had stated in the witness box that he had been appointed by the District Magistrate. It is true that he did not produce his letter of appointment, but nor did the witness for defence produce any documentary evidence in support of his assertions in the witness box. It was a case of oath against oath, but whereas the plaintiff was speaking from personal knowledge, Wasi Haider's testimony was largely hearsay and inadmissible. The appellate Judge has given no finding on the question who appointed the plaintiff nor any clear finding on the precise terms of his appointment. He placed the onus of proof on the plaintiff but he did not consider it necessary to give any finding on these questions because he thought that the plaintiff's suit must fall apart from them. I regret to say that the learned Judge's approach was incorrect.

The question whether the order terminating the plaintiff's Services violated the provisions of Clause (1) of the Article 311 depended upon whether the authority which terminated his services was subordinate to the one which had appointed him and could not be decided without determining who had appointed him in 1948 and who removed him in 1950. Similarly, the question whether the order terminating his services was passed in violation of the second clause of Article 311 depended on whether his removal was meant to be a punishment or his services were dispensed in accordance with the terms of his contract. The learned Judge was also in error in placing the onus on the plaintiff to prove the negative fact that there was no special contract. In my opinion, the onus was on the party which claimed the right to terminate his Services under a special term in the contract.

7. In view of the unsatisfactory nature of the findings of the appellate court I have to consider whether the case should be remanded or this Court should proceed to decide these questions on the evidence on record. I do not think it would be fair to the plaintiff to remand the case. His services were terminated in 1950 and this dispute has been pending for nearly twelve years. It was conceded by counsel for both parties that this Court has the power to decide any issue which has not been clearly decided by the appellate court. I shall, therefore, proceed to consider and decide these issues myself.

8. The first question is whether Clause (1) of Article 311 has been violated. The plaintiff contends that the order terminating his services was passed by an authority subordinate to one which appointed him. He stated in the witness box that he was appointed by the District Magistrate. The onus was on the State to rebut the plaintiff's testimony by the evidence of some responsible official who could establish the Identity of the appointing authority and prove any special term in the plaintiffs contract of service that it could be terminated on payment of onemonth's pay in lieu of notice, but no such official has come forward. But they preferred to send a cloth inspector who knew little about the matter and admitted in cross-examination that he and the plaintiff were not in the same department when the latter was appointed, though he claimed to have seen the files relating to the plaintiff's case which presumably he was made to read before going to Court. If Government had any other evidence, they did not produce it. As the plaintiff's testimony that he was appointed by the District Magistrate stands un-rebutted I must hold that he has established his case that he was appointed by that authority.

9. The next question is whether he was removed by an authority subordinate to the District Magistrate. The order terminating his services runs thus;

'1529/TRO-207 Dated Lucknow, May 23, 1950.

ORDER

The District Magistrate has been pleased to terminate the services of Shri J. S. Verma, Senior Inspector (Cloth) with immediate effect with one month's pay in lieu of notice.

Sd. B. P. Bhattacharya

District Supply Officer,

Lucknow

22/5.

Copy forwarded to: 1. A.S. O. for information and necessary action.2. C. I. (G).3. Shri J. S. Verma, S. I. through A. S. O. Sd. B. P. Bhattacharya,

District Supply Officer,

Lucknow

22/5.'

Thus on the face; of it this order informed the plaintiff that his services had been terminated by the District Magistrate. But the plaintiff challenged the contention of the State that the decision) to terminate his services had been made by the District Magistrate and he summoned the original order signed by that officer. This was produced and is p. w. 1/2. I have perused this document. From it is appears that Sri B. P. Bhattacharya, District Supply Officer, Lucknow wrote out the draft of the order by which the plaintiff's services were to be terminated and sent it to the District Magistrate under the following note:

'Submitted to District Magistrate for confirmation.

Sd. B. P. Bhattacharya,

District Supply Officer,

Lucknow

22-5-50.'

The order contains a note by the District Magistrate; 'seen. Har Pal Singh. D. C. 24/5.' This note was considered by the District Supply Officer to be a confirmation by the District Magistrate of the draft sent upto him, and the order was then served on the plaintiff on the 24th May 1950. Thus the following facts have been established by the State: (1) on 22-5-50 a proposal for terminating the services of the plaintiff was sent to the District Magistrate in theform of a draft order with a request that he should confirm it. (2) The order was not served on the plaintiff until the reply of the District Magistrate was received. (3) The District Magistrate perused the order, and signed it with the remark 'Seen'. (4) It was served on the plaintiff on that very day. These facts are tacitly admitted by the plaintiff in paragraph 3 of his plaint which states that on 24th May 1950 he was served with the order dated 23rd May informing him that his services had been terminated with immediate effect.

10. Learned counsel for the plaintiff appellant contended that the effect of the one word 'seen' written by the District Magistrate on the draft order sent to him cannot be that the decision to terminate the plaintiff's services was made by the District Magistrate. I have given some thought to this argument, but I am afraid I cannot agree. The question whether the word 'seen' indicated a decision by the District Magistrate to terminate the services of a government official is largely one of fact, and the Court must consider all the surrounding circumstances and take judicial notice of any common practice among superior officials. It is common experience that District Magistrates, who control several departments in the districts under their charge, often, express their approval of proposals sent up to them by scribbling laconic orders in telegraphic language. I would, therefore hold that when a proposal for terminating the services of a government servant together with a draft order is put up for approval before the authority competent to remove him and that authority writes the word 'seen' without objection or correction, this would ordinarily denote approval of the proposal and constitute an authority for issuing the order in his name. I think that the services of the plaintiff were terminated by the District Magistrate who, according to his own case, had appointed him and there was no violation of the provisions of Clause (1) of Article 311.

11. The next question is whether the impugned order was passed in violation of Clause (2) of Article 311 --that is, without giving the plaintiff an opportunity to show cause against him. It is now well-settled that the benefit of this clause is availabe to a Government servant only if he is dismissed or removed or reduced in rank by way of punishment, but not if 'his services are terminated in accordance with the terms of his contract. It is also conceded by the State that even a temporary servant is entitled to its benefit before being punished. It was contended, however, that the plaintiff's services could be terminated on one month's notice or payment of one month's salary in lieu of notice, and the Government merely exercised their right under the contract. The plaintiff made a weak attempt to prove that he was a permanent servant and made a vague statement that he was 'confirmed' on this post, but this part of his case was shattered in cross-examination.

It was suggested to him that one of the terms of his service was that it could be terminated by one month's notice or on payment ofone month's salary in lieu of it, and he gave the evasive reply that he did not remember if there was such a term. However, he admitted that on the earlier occasion, in 1948, his services were dispensed with on payment of one month's salary. I was shown a copy of a printed notification by the Government laying down that all appointments in: the Supply Department were temporary and liable to be terminated on one month's notice or on payment of one month's pay in lieu of notice. Learned counsel for the appellant admitted the existence of such a notification and ultimately had to concede that the plaintiff was a temporary servant whose services could be terminated in the manner described above.

12. The order Exhibit I stated that the District Magistrate had terminated the services of the plaintiff with immediate effect with one month's pay in lieu of notice. It does not appear to be an Order inflicting any punishment on him but one dispensing with his services in accordance with the terms of his service. But it was contended by the plaintiff that the innocent language of the order is deceptive, and he was really removed from services on the ground that the Government received complaints that he was corrupt and came to the conclusion that he was not a man of integrity. The State admitted in its written statement that Government had received 'serious and persistent complaints of corruption against the plaintiff and his integrity was considered very doubtful' and that his retention in service was not considered desirable in the public interest and 'therefore his services were terminated'.

The word 'therefore' clearly indicates that the Government decided to get rid of the plaintiff because they formed the opinion, on the basis of complaints received against him, that he was not a man of integrity. But the Government's reasons or motive, to use an alternative word--are irrelevant in considering whether an order terminating an official's services was by way of punishment. It is elementary that an employer does not ordinarily get rid of a servant unless he is dissatisfied with him, and whenever an employee's services are abruptly terminated the reason may very well be that there is some thing wrong with that servant. But if the order terminating a Government servant's services does not deprive him of any rights already accrued, and makes no allegation against him imputing blameworthy conduct or inefficiency to him, it is not an order of punishment but a simple decision to terminate his services in accordance with the terms of his contract, and there is no violation of Clause (2) of Article 311. If this were the only test to be applied the order terminating the plaintiff's services did not violate any provisions of Article 311.

13. But this is not the end of the controversy. In Parshotam Lal v. Union of India, AIR 1958 SC 36 it was observed that

''even if the Government has, by contract or under the rules the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.'

The Supreme Court also observed that the use of the expression 'terminate' or ''discharge' is not conclusive as these phrases may camouflage the real nature of the decision. Thus the re-moved official has the right to lift the veil of innocuous expressions and expose the penal face of the decision behind the mask of innocent phraseology.

14. The plaintiff's case is that the order terminating his services was deliberately framed in innocuous language with the object of camouflaging the real nature of the Government's decision which was to punish him on suspicion of his alleged lack of integrity. For proof of this the plaintiff relied on another order of the District Supply Officer which was passed on May 23, 1950 and circulated as a warning to all cloth inspectors serving under him. As the plaintiff's case on this point is founded almost entirely on this order, it has to be quoted in full:

'No. 1521/TRO--80. Dated Lucknow, May 23, 1950

Order.

I have received the complaints of a serious nature against some of the Cloth Inspectors. The service of one Cloth Inspector has been terminated by the District Magistrate on such complaints I have also received complaints of some other Cloth inspectors. I take a serious notice of this Cloth, Inspectors unnecessarily harass the dealers on one or other ground. There is unnecessarily technical objection though there is no sufficient ground for suspecting the motives of the dealer and even then the dealer is unnecessarily harassed. I warn all the Cloth Inspectors for the last time and if in future I receive any complaint against any cloth Inspector he will be summarily dismissed.

Sd. B. P. Bhattacharya,

District Supply Officer,

Lucknow'

15. It was conceded before me that the order Exhibit 19 was in the nature of a circular warning to all cloth inspectors and was served on each one of them. Its very contents show that it was issued as a general warning. It was admitted that this order was served on every cloth inspector, which included the plaintiff as it was circulated on 23-5-50 when he was still an employee of the Department. (It was not disputed that the order must have been shown to the plaintiff if he was in service). The contents of this warning are note-worthy. The District Supply Officer informed the cloth inspectors that he had received serious complaints against some of the cloth inspectors and that the services of one of them had been terminated by the District Magistrate on such complaints. The plaintiff's case is that this was a reference to him as he was the only cloth inspector against whom the decision to terminate his services had been taken.

Learned counsel for the State had to concede that the episode of the cloth inspector whose services had been terminated on the receipt of complaints of a serious nature referred to the plaintiff. This is also borne out by the sequence of the dates. The District Supply Officer wrote out the draft of the proposed order terminating the plaintiff's services and sent it to the District Magistrate on 22nd May for his approval. The date of the draft order wag shown as May 23 presumably because the District Supply Officer expected that he would receive the approval of the District Magistrate on the next day and he would be able to serve the order on the plaintiff and issue the warning to the other cloth inspectors on the same day 23rd May. On that very day, probably in anticipation of the District Magistrate's confirmation, he circulated the warning to all the cloth inspectors that the services of one of them had been terminated by the District Magistrate because serious complaints had been received against him. But the confirmation by the District Magistrate, of the decision to terminate the plaintiff's services was received on the 24th May with the result that he was still in service on the 23rd May when the warning was circulated, and he must have received it along with others. (This fact was not challenged before me).

6. The relevant facts may, therefore, be briefly summarised thus: Government received serious and persistent complaints of corruption against the plaintiff and came to the conclusion that his integrity was very doubtful and his retention in service was not considered desirable in the public interest. It was decided to terminate his services on payment of one month's salary in lieu of notice and a draft order terminating his services was sent to the District Magistrate on 22-5-1950. On 23rd May the District Supply Officer circulated a warning to all. cloth inspectors that the services of one of them had been terminated by the District Magistrate on receipt of complaints of a serious nature against him and that in future if any complaints were received against any other cloth inspector he would be 'Summarily dismissed'. On the next day, 24th May the plaintiff was served with a notice that his services had been terminated. The question before me is whether the circular warning to the other cloth inspectors, EX. 19, containing a reference to the plaintiff can be considered in determining whether the decision contained in the order Ext. 1 is a simple termination of the plaintiff's services or amounts to his removal by way of punishment.

17. Learned counsel for the State argued vehemently that the warning issued to the other cloth inspectors cannot be taken into consideration in determining the nature of the decision contained in the order terminating the plaintiff's services. He insisted that order is self-contained and the Court cannot interpret its contents in the light of any other order passed by the Government. Learned counsel pointed out that the order contains no reflection on the plaintiff's integrity and imputed no misconduct or inefficiency to him. It contains a bare statement thatthe plaintiff's services had been terminated on payment of one month's pay in lieu of notice. The plaintiff could not be permitted to go behind this order and reveal the reasons which prompted the Government to get rid of him. He was not concerned with the motives of the Government but the effect of the order served on him, and as that order placed no stigma on him nor deprived him of any right, it could not amount to punishment.

18. It is true that Government were entitled to terminate the plaintiff's services for any reason whatsoever and their motives in getting rid of him are irrelevant. But there is a difference between motives which are locked within the bosom of the removing authority or confined to the files, and remains Which are publish, ed to the whole world. In this case Government did not keep their reasons to themselves but published them in a circular addressed to the other cloth inspectors. Simultaneously with the Order terminating the plaintiff's services, they published an allegation against him as deterrent to others. One of the attributes of punishment is that its publication serves as a deterrent. Government cannot in fairness make use of a servant's removal as a deterrent to others by publishing the reasons for the termination of the services which cast a stigma on his reputation but mot give him the benefit of the constitutional safeguards to which he is entitled before being removed under a stigma.

In such circumstances the formal order terminating the services will be read in the light of the order publishing the reasons as a warning to others and the two orders will be treated as parts of a single decision. I would, therefore, hold that even if the order terminating a temporary servant's employment is innocuously worded, if Government by a separate but simultaneous order publish the reasons for the termination of the services of a Government servant casting a stigma on his conduct or character or efficiency and circulate them as a warning to other officials, they cannot afterwards be permitted to deny that the decision was a punishment.

19. One of the tests laid down by the Supreme Court for determining whether an order terminating a government servant's services amounts to punishment is to ascertain whether it imposes a stigma on that official's character or conduct or efficiency. Applying this test to the plaintiff's case, it is impossible for the Government to deny that as a result of the two orders, Ext. 1 and Ext. 19, the plaintiff left its service under a stigma. If he applied for a job else-where, he could not, without making himself guilty of suppressing facts, allege that his services had not been terminated as the result of complaints against him. The order Ext. 19 had been circulated while he was in service and had made a pointed reference to the reasons for his removal. He would, therefore, be under a duty to any future employer to reveal the full reasons as published by the Government.

20. The question whether this innocently worded order was really intended to be a punishment is largely one of fact to be determined in the light of all the surrounding circumstances, If the Government servant produces documentary evidence to establish a prima facie case that an apparently simple order terminating his services was really inflicted by way of punishment and that the real reasons for getting rid of him are contained in another order which was also published, the onus is on the Government to rebut this presumption and explain why the second order was issued. But if the official who passed both the orders does not come forward and sends a minor official who gives no explanation or one which is worthless, the onus is not discharged. This is not the first case in which responsible officials of the Government have thought fit to keep away from the witness box and sent instead an insignificant subordinate who had no personal knowledge of any material fact to give evidence.

I am constrained to observe that this tendency among responsible officials to avoid the responsibility of giving a personal explanation and assigning this duty to a subordinate of minor rank is becoming more frequent than I would like it to be. But the laws of evidence cannot be modified to suit the convenience or complexes of any State official and the State must suffer the consequences if the plaintiff's case stands un-rebutted partly because of the unwillingness of its officials to face cross-examination.

21. For reasons detailed above, I am of the opinion that the order terminating the plain-tiff's services must be read in the light of the circular warning issued simultaneously to the officials in the Department, and amounted to his removal by way of punishment. As the plain-tiff was given no opportunity to show cause against the punishment inflicted on him, the order was passed in violation of the provisions of Clause (2) of Article 311 and is, therefore, void.

22. The plaintiff is, in these circumstances, entitled to the relief claimed by him.

23. I allow this appeal, set aside the decree of the Court below and issue a declaration in favour of the plaintiff that the order dated 23-5-1950 purporting to terminate his services with immediate effect was illegal, void, and in-Operative, and consequently there was no valid removal of the plaintiff from service and he continued to remain on service.

24. The plaintiff shall get his costs from the defendant State of Uttar Pradesh in all courts.

25. BEG, J. : Judgment pronounced by me in Open Court today under Chapter VII, Rule 1, Sub-rule 3 of the Rules of the Court.


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