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State of Bombay (Now State of Gujarat) Vs. Amarsinh Raval - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberA.F.A.D. No. 451 of 1960
Judge
Reported inAIR1963Guj244
ActsConstitution of India - Article 311 and 311(2); Government of India Act, 1935 - Sections 240(3); Code of Civil Procedure (CPC) , 1908 - Sections 100 to 101 - Order 6, Rule 2
AppellantState of Bombay (Now State of Gujarat)
RespondentAmarsinh Raval
Appellant Advocate B.R. Sompura, Asst. Govt. Pleader
Respondent Advocate M.B. Sinroza and; K.M. Chhaya, Advs.
Cases ReferredState of Bihar v. Abdul Majid
Excerpt:
service - dismissal - articles 311 and 311 (2) of constitution of india, section 240 (3) of government of india act, 1935, sections 100, 101 and order 6 rule 2 of code of civil procedure, 1908 - whether order dismissing appellant from service valid - conditions of article 311 not fulfilled - no opportunity to show cause against truth of charges framed and nature of punishment given - in notice government stated opportunity to plaintiff to show cause why he should not be dismissed forthwith - show cause notice vitiated - held, order of dismissal invalid. - - in short the substance of the protection provided by rules, like rule 55 referred to above was bodily lifted out of the rules and together with an additional opportunity embodied in section 240(3) of the govt. he must not only be.....1. the respondent, who was the plaintiff, filed a suit against the state of bombay for a declaration that the order dismissing him from service as a deputy superintendent of police was illegal, null and void and for consequential reliefs and also to recover rs. 4300/- by way of arrears of salary etc., upto may, 1954. he also prayed for salary and other allowances upto the date of reinstatement and for other reliefs. the first court granted a decree on the ground that no reasonable opportunity was given to the plaintiff as required by article 311 of the constitution. the plaintiff's suit was substantially decreed and almost all the reliefs were awarded. in first appeal, the district judge, jamnagar, confirmed this decree of the trial court. in this second appeal it is urged by the state of.....
Judgment:

1. The respondent, who was the plaintiff, filed a suit against the State of Bombay for a declaration that the order dismissing him from service as a Deputy Superintendent of Police was illegal, null and void and for consequential reliefs and also to recover Rs. 4300/- by way of arrears of salary etc., upto May, 1954. He also prayed for salary and other allowances upto the date of reinstatement and for other reliefs. The first Court granted a decree on the ground that no reasonable opportunity was given to the plaintiff as required by Article 311 of the Constitution. The plaintiff's suit was substantially decreed and almost all the reliefs were awarded. In first appeal, the District Judge, Jamnagar, confirmed this decree of the trial Court. In this second appeal it is urged by the State of Gujarat, which has taken the place of the State of Bombay who was the original defendant, that reasonable opportunity has been given.

2. In the course of the arguments various contentions have been urged regarding the interpretation of Article 311 of the Constitution and various rulings have been cited. Article 311 of the Constitution, so far as relevant, reads as follows:

'(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'

The first sub-section provides that no person referred to therein shall be dismissed or removed by an authority subordinate to that by which he was appointed. Sub-section (2) further provides that such authority shall not dismiss or remove or reduce him in rank until the person concerned has been given an opportunity (sic) (to show cause?) against the action proposed to be taken in regard to him.

3. Certain questions may arise as to the construction of this sub-section, firstly as to the meaning of reasonable opportunity and secondly as to the meaning of the expression 'action proposed to be taken'.

4. As Sub-section (2) provides that a reasonable opportunity to show cause against the action proposed to be taken must be given, the plain meaning would be that a reasonable opportunity should be given after the action is proposed to be taken. As observed by their Lordships of the Supreme Court in Khemchand v. Union of India, AIR 1958 SC 300 at 306, the opportunity to show cause must be a reasonable one and the person concerned should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. In other words, action by way of dismissal or removal or reduction in rank should be proposed to be taken against a person. The person must then he informed of the charge or charges levelled against him and the evidence by which it is sought to be established and the person concerned must be asked to show cause against the action proposed to be taken. In other words, the first stage is where action is proposed by way of dismissal or removal or reduction in rank. The person concerned should get a reasonable opportunity to show cause against the action proposed to be taken and in order to get that reasonable opportunity he must be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. That is why their Lordships of the Supreme Court have, in summarising the legal position, observed as follows:

'To summarise: the treasonable opportunity envisaged by the provision under consideration includes:

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.

In short the substance of the protection provided by rules, like Rule 55 referred to above was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240(3) of the Govt. of India Act, 1935 so as to give a statutory protection to the Government servants and has now been incorporated in Article 311(2) so as to convert the protection into a constitutional safeguard.'

In other words, according to their Lordships of the Supreme Court, the giving of a reasonable opportunity starts as soon as the person is informed of the charge or charges levelled against him and is informed that it is quite likely that he may be dismissed or removed or reduced in rank as a result of the inquiry.

5. As observed by their Lordships of the Supreme Court, reasonable opportunity contemplated by Article 311 of the Constitution is a reasonable opportunity to show cause not only against the alleged guilt but also against the proposed punishment. Before a person is dismissed or reduced in rank or is removed from service, it must be established that he is guilty of certain charges and that the charges are so grave as to justify his dismissal or removal from service or reduction in rank. On both these points, a Government servant must be given a reasonable opportunity to show cause. As regards the first point, usually an inquiry is made and the Government servant concerned is informed of the charges levelled against him. He must have a reasonable opportunity at this stage. But that is not enough. He must alsohave a reasonable opportunity to show cause against the action of the punishment that may be proposed to be imposed upon him. This second stage of reasonable opportunity would come after the Government or the authority competent to dismiss him is convinced that a person is guilty of the charge or charges levelled against him and suitable punishment must be imposed upon him. That is why their Lordships of the Supreme Court have observed that he must be given an opportunity to make a representation why the proposed punishment should not be inflicted upon him. As observed by their Lordships of the Supreme Court, Article 311 of the Constitution does not, in terms, refer to two different stages at which an opportunity has to be given to the officer concerned. All that it says is that the Government servant must be given a reasonable opportunity for showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must also be a reasonable one, and in order that an opportunity to show cause may be regarded as a reasonable one, it must cover both the questions of guilt as well as the degree of punishment, and therefore a reasonable opportunity has to be given at two stages, namely one where the inquiry into the guilt is being held and the second, namely the stage where the authority competent proposes to take suitable action by way of punishment.

6. The expression 'proposed to take action' is also found in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, which is quoted in the judgment of their Lordships of the Supreme Court in AIR 1958 SC 300 at p. 304. That rule, inter alia, provides thus:

'Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, no order of dismissal removal or reduction shall be passed on a member of a Service (other than an order based on facts which has led to his conviction in a criminal Court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry oral evidence, shall be heard as to such of the allegations as are riot admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable tocommunicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged'.

In Rule 55 the expression used is 'on which it is proposed to take action'. The rule refers to an order of dismissal, removal or reduction. Article 311 of the Constitution uses the expression 'action proposed to be taken'. Sub-section (2) of Article 311 of the Constitution refers to dismissal, removal or reduction in rank. But as observed by their Lordships of the Supreme Court, Rule 55 of theCivil Services (Classification, Control and Appeal) Rules which were made under Section 96B of the Government of India Act, 1915, made a provision for the redress of grievances by administrative process, Therefore a new protection was given in the formof Section 240(3) of the Government of India Act, 1935, which has been reproduced in Article 311(2) of the Constitution. The expression 'Action proposed to be taken' by way of dismissal, removal or reduction in rank is therefore, not new.

7. But on the interpretation of Article 311(2) of the Constitution, two views were taken by the Judges of the Federal Court in Secy. of State v. I.M. Lall , and both these views were not accepted by their Lordships of the SupremeCourt in : (1959)ILLJ167SC . One of the views takenby the Federal Court was that

'Section 240(3) of the Government of India Act, 1935, which corresponds to Article 311, does not require any inquiry, any formulation of charges or any opportunity to defend against those charges. But where it is proposed to dismiss or reduce in rank a civil servant he should be given a reasonable opportunity of showing cause against the proposal to dismiss or reduce Mm.'

The other view taken by Varadachariar J. was that it is not necessary to give the Government servantconcerned two opportunities to show cause, namely to show cause first that he is not guilty and thesecond to show cause that he does not deserve punishment proposed to be meted out. It was held by Varadachariar, J., of the Federal Court that

'Sub-section (3) of Section 240 of the Government of India Act, 1935, demanded nothing beyond what was required for compliance with the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and after the inquiry was completed in the presence of the officer charged, no further opportunity need be given'.

In other words, one of the two conflicting views of the Federal Court was that an opportunity should be given at the first stage and not at the second stag. The other view was that it should be given at the second stage and not at the first stage. Both these views were negatived by their Lordships of the Supreme Court, who held that a reasonable opportunity should be given at both the stages, namely on the point of guilt and also on the point of the nature of punishment. But their Lordships of the Supreme Court did not make any observations regarding the meaning of the expression 'action proposed to be taken'. It is only when anaction of the type namely, dismissal, removal or reduction in rank is proposed to be taken that an inquiry under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules is provided. It is only in such a case that a reasonable opportunity to show cause in terms of Article 311 of the Constitution of India, should be given. Before a reasonable opportunity is given, there must be a proposal to dismiss or remove from service or reduce in rank. Before a reasonable opportunity to show cause commences, there must be a proposal to dismiss or remove from service or reduce in rank.

8. It is, therefore, clear from Article 311 of the Constitution and the judgment of their Lordships of the Supreme Court in AIR 1958 SC 300, that it is only when an action of the type, namely, dismissal or removal of reduction in rank is proposed that there should be an opportunity. This opportunity should be a reasonable one and therefore the opportunity to show cause should cover both the points, namely, the question of guilt and the nature of punishment. In order to show that an opportunity to show cause against the guilt is reasonable, the person concerned must be informed of the charge or charges levelled against him and the evidence by which it is sought to be established. He must be given an opportunity of cross-examining the witnesses produced against him and of examining himself or any other witnesses in support of his defence.

9. In addition there must be an opportunity in the words of their Lordships of the Supreme Court, to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do, if the competent authority, alter the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicate the same to the Government servant.

10. The second stage of reasonable opportunity is only concerned with the nature of guilt and therefore as observed by their Lordships of the Supreme Court, if a full reasonable opportunity on the first point of guilt is given, the same reasonable opportunity on the point of guilt need not be given again when the question of the nature of punishment is under consideration. As observed by their Lordships in U.R. Bhatt v. Union of India, AIR 1962 SC 1344, the content of the reasonable opportunity under Article 311(2) of the Constitution is the same as in Section 240(3) of the Government of India Act, 1935. An opportunity to show cause is reasonable even if it does not contemplate a further opportunity to examine witnesses before the authority competent to impose punishment provided there has been a fair and full enquiry at an earlier stage before the enquiry officer. At the second stage, namely of showing cause against the proposed action of punishment to be imposed, it is not necessary to examine witnesses on the point of guilt.

11. It is in the light of this position of law that we have to see whether a reasonable opportunity has been given to the plaintiff or not. It is, therefore, clear that a reasonable opportunity contemplated by Article 311 of the Constitution must be a two-fold opportunity. It must refer to the opportunity to show cause against the truth of the charges framed and the opportunity must also cover the question of the nature of punishment. This opportunity, which is two-fold, may be given at two stages, the opportunity to show cause in regard to the charges may be given when as inquiry into the charges is proceeding, and the opportunity to show cause against the nature of punishment may be given after the competent authority has accepted the guilt of the Government servant concerned and before he is punished.

12. It is, therefore, necessary to see whether having regard to these principles of law contained in Article 311 of the Constitution and this interpretation of Article 311 of the Constitution, the reasonable opportunity contemplated by Article 311 has been given to the plaintiff. On 20-4-1953, the Government of Saurashtra, Home Department (Services), passed an order stating that whereas there are grave allegations of serious misconduct in discharge of his official duties against Shri A.G. Raol, Deputy Superintendent of Police, Khambhalia Division, and whereas it is decided to hold a regular inquiry into his conduct, Government is pleased to order his suspension from the date of this order, and further ordered that an inquiry should be conducted by the Inspector General of Police, who should submit his findings to the Government as soon as the inquiry is complete. With reference to this Government order, the Inspector General of Police wrote to the plaintiff informing that he will hold the departmental proceedings against him on two charges, at 8 A. M. on 4-5-53 at Kalyanpur. He mentioned the two charges in detail and also mentioned the names of 11 witnesses. He also asked the plaintiff to get his defence witnesses ready. This letter is dated 24-4-53. This was received by the plaintiff on 28-4-53, and the plaintiff replied by a letter, Ex. 7, the same day, to the I. G. P. praying for postponement of the inquiry and also praying that the inquiry should be held in a big city and not in Kalyanpur. He also requested to be allowed to engage a pleader. All the three requests were rejected, and it is, therefore, contended that the opportunity given was not reasonable. The charges and the list containing the names of witnesses were received by the plaintiff on 28-4-53, and the inquiry was to commence on 4-5-53. He had thus six days time, and in view of the fact that in the view of the I. G. P. if more time was given the plaintiff who was occupying the position of a' D. S. P. was likely to tamper with the witnesses, we cannot say that by reason of the fact that only six days time was granted, the opportunity was not reasonable. Merely because the inquiry was to take place at Kalyanpur, which is a town and merely because the I. G. P. rejected the request that it should be held in a big city like Jamnagar, we cannot say that the opportunity given was not leasonable. Another ground for arguing that the opportunity was not reasonable is that the plaintiff was not allowed to engage a pleader. The charges against him were as follows:

'(I) On 8-4-53 at village Devalia (Kalyanpur Police Station) you beat or threatened to beat Govind Rambhai, Naran Rambhai, Sundernath Sivanath and Amarnath Bhimnath with the intention of reducing the gravity of the complaint of dacoity(Kalyanpur P. C. C. No. 16/53 section 395 I. P. C.) lodged by them and to turn it into a non-serious or non-cognisable offence; (2) On 8-4-53 at village Dewalia you subjected Govind Rambhai, Naran Rambhai Amarnath Bhimnath and Arjan Rajsi to obscene, carnal and foul indignities; you also wanted to commit sodomy on Govind Rambhai at Kalyanpur on 9-4-53'.

The charges were serious, but there was nothing complicated in the charges. As the plaintiff was an educated person occupying the position of a D. S. P., it was not necessary that he should be allowed to engage a pleader. Refusal to engage a pleader may, in certain cases, be regarded as unreasonable, but in this case I am not prepared to say that the refusal was unreasonable or that is rendered the opportunity unreasonable. I, therefore, reject all these three contentions and hold that both the Courts below were wrong in holding that the opportunity was not a reasonable one.

13. The learned counsel for the respondent also contends that in his report, the I. G. P. referred to the previous confidential record of the plaintiff and that during the course of the inquiry copies of the confidential remarks were not supplied to the plaintiff. In his report, after summarising the charges and discussing the evidence, the I. G. P. has observed that he feels that the defaulter committed the defaults levelled against him and should be held guilty of them. After coming to this conclusion, the I. G. P. further proceeds to make the recommendation and the last para of his report is in the following words:

'The charges framed against the defaulter are very serious and need an extremely deterrent punishment. It is also to be noted in this connection that this defaulter was previously suspected of sodomy and the then I. G. P. has made a remark in his confidential sheet on 1-6-51. I attach that confidential sheet for Government's perusal. It appears that the defaulter is addicted to perverse sexual habits and is therefore utterly unfit to remain in any Government Department. I recommend that he be dismissed from service'.

In the matter of the nature of punishment to be imposed on the plaintiff, the I. G. P. referred to the confidential sheet of the plaintiff. Strictly speaking, it was not necessary for the I. G. P. to recommend the punishment to be imposed. In the Government Resolution, already referred to, the I. G. P. was only directed to submit his finding on the charges and he was not asked to make any recommendation as to the nature of punishment to be imposed if the charges are held proved.

14. In the show cause notice given by the Government to the plaintiff on 5-6-53, there is no reference to the confidential remarks. The inquiry held by the I. G. P. was only concerned with the question whether the plaintiff was guilty of the charges levelled against him. It was, therefore, not necessary to furnish copies of the confidential remarks to the plaintiff before the inquiry or during the course of inquiry made by the I. G. P. But it is contended by the learned counsel for the respondent that a copy of the confidential sheet of 1951 was not furnished to the plaintiff along with the report of the I. G. P, and that only a copy ofthe report of the I. G. P. was furnished to him. The J. G. P. in his report mentions that he has attached the confidential sheet of 1-6-51 in which the then I. G. P. had made a remark that he had previously found the defaulter to have committed sodomy. It is contended that only a copy of the report was furnished to the plaintiff and not a copy of the confidential sheet. In. the letter dated 6-6-53 the Secretary to the Government stated that in continuation of the show cause notice dated 5-6-53 he was forwarding a copy of the report of the I. G. P. to the plaintiff. It is not clear whether a copy of the confidential sheet was furnished to the plaintiff, but in the plaint it is not stated that it is not furnished. In the plaint, it is stated that the provisions of Article 311 have not been complied with, and in the course of his evidence the plaintiff has stated in his deposition that he has received a copy of the report of the I. G. P. and that he has produced in the Court. A copy of the report is accordingly produced, but no copy of the confidential sheet was produced in the Court. There is no finding either of the Courts below on the question whether a copy of the confidential sheet was furnished to the plaintiff or not. But the plaintiff in his evidence has stated that he has produced in the Court a copy of the copy given to him and that copy was actually produced in the Court and the copy produced in the Court is a copy of the report and not a copy of the confidential sheet. There is nothing in the evidence of the defendant's witnesses or in the evidence of the defendant that a copy of the confidential sheet was supplied. It is, however, contended that this is a question of fact and that the issue before the parties was whether there was a reasonable opportunity given to the plaintiff as contemplated by Article 311 of the Constitution and it was necessary for the parties to give evidence on the facts necessary to show that no reasonable opportunity was given. The plaintiff has given evidence to the effect that he was supplied with a copy of the report and not a copy of the confidential report. Therefore the fact that the copy which was given to the plaintiff was only a copy of the report and not of the confidential sheet is brought out in the evidence of the plaintiff because he produced actually in the Court the copy of a document given to him and that copy did not contain a copy of the confidential sheet. The fact that the plaintiff has produced in the Court the copy of the document is not challenged by the evidence of the parties at the trial. It is, however, contended that this is a question of fact and is not raised in the Courts below and cannot be argued in a second appeal. It is also contended that this point was not even raised in answer to the show cause notice or even in the plaint. As already stated, in the plaint it is stated that the provisions of Article 311 of the Constitution have not been complied with. It is not necessary to state in a plaint the evidence of the plaintiff. The report of the I. G. P. itself refers to the confidential sheet. The plaintiff, therefore, knew that the I. G. P. had sent the confidential sheet to the Government, and it was for him to make a grievance to the effect that a copy of the confidential sheet was not supplied to Him. As provided in Order 6, Rule 2, C. P. Code

'every pleading shall contain, and contain onlya statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and, shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.'

The fact that a copy of the confidential sheet was not supplied is, therefore, a material fact which is material to the question of reasonable opportunity and this was not stated in the plaint nor was it contended either in the Courts below. This contention is, therefore, not allowed to be taken up in, the second appeal before me.

15. But in the show cause notice, Government have observed as follows:

'After careful consideration of the evidence and the report, Government have accepted the findings as well as the recommendations of the Inspector General of Police. Before passing orders, the Government of Saurashtra give you this opportunity to show cause why you should not be dismissed from service forthwith.''

In his recommendations, the I. G. P. has recommended that Government should dismiss the plaintiff. In the show cause notice, therefore, the Government have informed the plaintiff that after careful consideration they have found the plaintiff guilty of the charges levelled against him and the Government have also accepted the recommendations of the Inspector General of Police that the plaintiff should be dismissed from service. The Government should have mentioned that they tentatively accepted the recommendations of the police or provisionally accepted the recommendations of the police. They have not mentioned 'tentatively' or 'provisionally'. As observed by their Lordships of the Supreme Court in : (1959)ILLJ167SC :

'The reasonable opportunity envisaged by the provision under consideration includes an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.'

The Government must tentatively propose to inflict one of the three punishments, namely dismissal or removal from service or reduction in rank of the Government servant concerned and they must communicate the same to the Government servant. The Government must, therefore, tentatively propose, and it is wrong on the part of the Government to accept at that time the recommendations of the police regarding the nature of the punishment to be imposed upon the Government servant, namely the plaintiff. The show cause notice is, therefore, vitiated. It is true that in the notice itself the Government say that they give an opportunity to the plaintiff to show cause why he should not be dismissed forthwith. According to the Government they had already decided to dismiss the plaintiff and the only question remained whether they should dismiss him forthwith or later on. That was theonly point and on which he was asked to show cause. The show cause notice is therefore vitiated, and the Courts below were therefore right in holding that the order of dismissal was bad.

16. I, therefore, hold that the Courts below were right in giving a declaration that the plaintiff was in the service of the Government on thedate of the suit. Regarding the prayer for arrears of salary, in view of a decision of the Supreme Court in State of Bihar v. Abdul Majid : [1955]1SCR174 the plaintiff would be entitled to arrears ofsalary only upto the date of the suit. But regarding the injunction to reinstate the plaintiff, this Court cannot compel the Government to reinstate the plaintiff. The injunction to reinstate the plaintiff in the service of the Government is, therefore,cancelled.

17. With these two modifications, the appealis dismissed. There will be no order as to costs.


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