M.P. Thakkar, C.J.
1. Sympathy for one should not result in cruelty to others. Not at any rate (1) when the question of interpretation of a legal doctrine arises in a labour dispute and (2) when in order to immunize the industrial employer from the economic injury (which is an occupational hazard for him and which he can normally absorb without tears or sobs or being economically crippled) arising from delays in Courts and Tribunals, economic injury has to be inflicted on the workers (who are bound to be economically crippled thereby). This proposition can scarcely be disputed as late as today when Twentieth Century is just about to close its jaws. It cannot be disputed at least in India where socialistic goals are proclaimed with rightful pride in the Preamble and woven in the texture of the Constitution without feeling shy or coy about the same. The very credibility of that proposition is at stake In the present matter as will become evident very soon.
2. A question of considerable importance which appears to be res integra, has arisen on an unprecedented fact situation. The question is as regards the right of a workman to claim wages for the period commencing from the date on which he is placed under suspension pending decision of the competent authority on the application (under Section 33(1)(b) of the Industrial Disputes Act of 1947) for permission to dismiss the employee concerned during the pendency of the long drawn proceedings before the Industrial Tribunal, till the date on which such application is disposed of as having become incompetent on the ground that the main industrial disputes have already been disposed of by the Tribunal before permission as prayed could be granted or refused.
3. The question has assumed a new dimension and significance because with the backlog of arrears the proceedings before the Tribunal and Courts consume innumerable years. So far as his right to claim wages for the period of suspension during the pendency of the proceedings seeking permission wherein such permission is ultimately granted or refused, the law is well settled. In case permission is granted, the workman would not be entitled to any wages. In case permission is refused, the workman concerned will have to be paid full wages along with other benefits, as if the order of suspension was non-est. There is, however, no decision of the Supreme Court off India or any other High Court in the context of a fact situation parallel to the fact situation obtaining in the present case, that is to say, a case where the application for permission is neither granted nor refused bat is disposed of as having become incompetent. Apart from this vital question, some other questions have also been raised (to which reference will be made in the course of discussion hereinafter) but ultimately the arguments have centred mainly around this question.
4. The basic facts are not in dispute. The petitioner was an employee of the respondent company, namely, Indian Farmers Fertilizer Cooperative Limited. A number of industrial disputes arose between the employees of the respondent Company on the one hand and the respondent Company on the other. Two references were therefore made to the Industrial Tribunal in order to resolve these disputes. The references in question were Reference No. 174 of 1977 and Reference No. 207 of 1977. During the pendency of these references, departmental proceedings were initiated against the petitioner pursuant to charge-sheets dated June 6, 1977 and June 22, 1977. It appears that the petitioner was found guilty of the charges at the departmental inquiry and the respondent Company wanted to dismiss him from service. Since the aforesaid references were pending before the Industrial Tribunal at Ahmedabad the Company could not and did not straightaway proceed to pass an order of dismissal from service but made an application to the Industrial Tribunal at Ahmedabad under Section 33(1)(b) of the Industrial Disputes Act of 1947 for permission to dismiss the petitioner from service. It appears that the; application, which was numbered as Permission Application No. 3 of 1979, was transferred to the Labour Court for disposal in accordance with law. And in view of this application the petitioner was placed under suspension with effect from January 31, 1978. The order of suspension is produced by the respondent Company with its affidavit-in-reply and is marked as Annexure R-III. It shows that the petitioner was placed under suspension pending the 'obtainment of permission from the Tribunal' under Section 33(1)(b) of the Act. The petitioner was informed that he would not be entitled to any wages or allowance or any other benefits during the period of suspension. The petitioner remained under suspension pursuant to the aforesaid order from January 31, 1978 onwards. The application for permission under Section 33(1)(b) made by the respondent Company remained pending before the Labour Court. Meanwhile, the aforesaid two references, namely. Reference Nos. 174 of 1977 and 207 of 1977 were disposed of by the Industrial Tribunal. The award in one of the references was rendered on September 18, 1979. The award in the other reference was rendered on July 3, 1980. Thus both the references which were pending at the point of time when the respondent Company sought permission to dismiss the petitioner under Section 33(1)(b) were disposed of by July 1980. But till this date the application for permission to dismiss the petitioner made by the respondent Company remained undisposed of. If this application had been disposed of before the main references were decided, the present problem would not have arisen. Be that as it may, since the application for permission to dismiss the petitioner was still pending before the Labour Court though the references were disposed of, the respondent company made an application as per Annexure 'B' dated September 30, 1980. It was prayed that the main permission application, being Application No. 3 of 1979, be disposed of as having become incompetent as the Labour Court had lost competence to proceed with the application, the industrial disputes giving rise to the main two references having been finally decided. The learned Judge of the Labour Court at Rajkot before whom the permission application was pending upheld the contention of the respondent Company. By his impugned order dated October 28, 1980 passed below application at Annexure 'B' the learned Judge came to the conclusion that the Labour Court had no competence to proceed with the application and the application would stand disposed of accordingly.
5. It appears that meanwhile the petitioner had also made an application to the Authority appointed under the Payment of Wages Act (P.W.A. No. 1 of 1978) claiming wages from January 31, 1978 to December 12, 1978. It will be recalled that the petitioner had been placed under suspension with effect from January 31, 1978 as per the suspension order at Annexure R-III produced with the affidavit-in-reply by the respondent Company. The petitioner contended that he was entitled to wages notwithstanding the order of suspension with effect from January 31, 1978 till December 31, 1978 and prayed for an appropriate direction under Section 15(3) of the Payment of Wages Act. Learned Authority appointed under the Payment of Wages Act by his order dated February 1, 1980 rejected this application on the ground that the application for permission to dismiss the petitioner was still pending and that in the circumstances the petitioner was not entitled to claim wages 'at that stage'. The view takes was that if the application for permission was refused) the petitioner could make an application for wages having regard to the law laid down by the Supreme Court in Management of Ranipur Colliery v. Bhuban Singh and Ors. : (1959)IILLJ231SC . Since the application for permission was still pending, learned Authority passed an order in the following terms:
Position as admitted by the other side is that applicant is suspended and according to the provisions of law opposite party had after due inquiry decided to terminate the service of applicant from IFFCO and has adjudicated the cases Nos. 174/77 and 207/77 before the Labour Court, Rajkot (Transferred from Industrial Tribunal, Ahmedabad and applied for the permission u/s 33 (1)(b) of Industrial Disputes Act. Mr. Sharma for opposite party has submitted before me that pending application for permission to dismiss the employee employee, will not get wages from the date of suspension if permission is granted otherwise employer has to pay back-wages as per rules for the period of suspension without pay and submitted 1959(2) Labour Law Journal 231.
Looking to the submission and facts of the case it is very clear that opposite party has suspended the applicant without wage. But I do not agree with the reported ruling of Hon'ble Supreme Court in the case of Ranipur Colliery v. Bhuban Singh and Ors. at 1959 (II) 'if the Tribunal grants the permission to the employer to dismiss the employee, he will not get anything from the date of suspension without pay. On the other hand if Tribunal refuses to grant permission sought for he would be entitled to back-wages from the date of suspension without pay.
Looking to this we are not in a position to issue direction as prayed for pending decision of the application for permission to dismiss the employee pending before the Labour Court, Rajkot as alleged.
And therefore issue No. 1 is replied in the negative at this stage and hence the following order is passed.
Application is rejected at this stage. No order as to costs.
It will be seen that the application was not disposed of on merits. It was dismissed on the ground that the application for permission had not yet been decided and the right to claim wages would arise only provided the permission was refused. Such is the order passed by the Authority under the Payment of Wages Act as per Annexure 'C dated February 1, 1980. The petitioner has challenged the legality and validity of these two orders as per Annexures 'B' and 'C'.
6. The following technical pleas were raised in the affidavit-in-reply filed by the respondent Company:
(1) Petition was barred by laches and delay:
(2) Two separate petitions should have been filed in order to challenge the impugned orders at Annexures 'B' and 'C by the different authorities; and
(3) alternative remedy was available.
When the matter came up for hearing, learned Counsel for the respondent Company with his usual fairness has not pressed these technical objections. The attitude of respondent Company in not obliging Counsel to press these pleas deserves appreciation, particularly as it is a Company in which the State (which cannot act as an unfair litigant and employer) holds a substantial economic interest. We may mention that having admitted the petition we would not have thrown out the petition on any of these hyper technical pleas even if the same bad been pressed into service by the respondent Company in order to resist the petition. More so, since it would have resulted in multiplicity of proceedings and money cost and time cost which the petitioner as also the respondent Company can ill afford. It would have merely complicated the issue, prolonged the uncertainty, and resulted in multifarious proceedings with no counter veiling advantage to the respondent or to the cause of justice.. ... ... ...
8. We must now look straight into the eyes of the problem placed under the spotlight when the curtain was raised. The profile of the problem will become clear presently. A workman placed under suspension without wages in view of the bar created by Section 33(1)(b) during the pendency of an industrial dispute before the competent authority cannot be dismissed during the pendency of such a dispute unless express permission in writing is granted by the competent authority. In the present case, admittedly no such order had been passed during the pendency of the dispute before the Industrial Tribunal. Undoubtedly, the departmental inquiry had been concluded and the employer had recorded a finding of guilt before January 31, 1978. The employer had also formed a tentative opinion to dismiss the workman concerned from service in view of the finding of guilt. But then no order of dismissal had been passed against the workman for the very good reason that no such order could have been lawfully passed before express permission in writing was granted by the competent authority under Section 33(1)(b). In the present case the industrial disputes between the employer Company and its workmen come to be finally decided on July 3,1980. The petitioner has been dismissed from service subsequently by an order dated December 3, 1980, some five months later. Meanwhile the petitioner has remained under suspension. The question is whether he is entitled to payment of wages during the period of suspension having regard to the fact and circumstances outlined here below: (1) the order of suspension dated January 31,1978 as per Annexure R-III was passed expressly and in terms 'pending obtaining of permission' under Section 33(1)(b) from the competent authority to dismiss the petitioner: (2) In point of fact the application for obtaining the permission was abandoned in October 1980 at the instance of the respondent Company in view of its plea that the Labour Court had lost competence to deal with the question, the main industrial dispute already having been decided by then, and (3) the petitioner was dismissed on December 3, 1980 as per the opinion formed at the departmental inquiry by the respondent Company on its own without obtaining any decision on merits on the permission application which was abandoned.
9. The general law of Master and Servant does not recognize the right of a master to place a servant under suspension without wages unless the contract of service expressly so provides (See Management of Ranipur Colliery v. Bhuban Singh and Ors. : (1959)IILLJ231SC and The Management, Hotel Imperial v. Hotel Workers' Union : (1959)IILLJ544SC . Nor can such a condition be implied in a contract of service under the general law of Master and Servant as is declared by the Supreme Court in Hotel Imperial's case (supra) in paragraph 10 of the report:
It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if be does so in the sense that be forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. These principles of the ordinary law of master and servant are well settled and have not been disputed before us by either party.
The Supreme Court has, however, involved the doctrine of implied term of contract in the context of the bar created by Section 33. Says the Supreme Court:
The next question that falls for consideration is whether these principles also apply to a case where the master has decided to dismiss a servant, but cannot do so at once as he has to obtain the permission necessary under Section 33 of the' Act and therefore suspends the workman till he gets such permission. This' brings us to the sphere of industrial law. Ordinarily, if Section 33 of the Act did not intervene, the master would be entitled to exercise his power of dismissing the servant in accordance with the law of master and servant and payment of wages would immediately cease, as the contract would come to an end. But sec, 33 of the Act has introduced a fundamental change in the law of master and servant so far as cases which fall within the Act are concerned. It has therefore to be seen whether Industrial Tribunals which are dealing with the matter under the Act must follow the ordinary law of master and servant as indicated above or can imply a term in the contract in the peculiar circumstances supervening under Section 33 of the. Act, to the effect that where the master has concluded his inquiry and come to the decision that the servant should be dismissed and thereupon suspends him pending permission under Section 33, he has the power to order such suspension, which would result in temporarily suspending the relation of master and servant, so that the servant is not bound to render service and the master is not bound to pay wages.
The Supreme Court having posed the question whether a term can be implied in the contract in the peculiar situation where the master has concluded his inquiry and formed the opinion that the servant should be dismissed and thereupon suspends him pending permission under Section 33, to order such suspension which would result in temporarily suspending the relationship of master and servant, so that the servant is not bound to render service and the master is not bound to pay wages, the Supreme Court reached the conclusion that such an implied term should be, read into the contract of service, as is disclosed by the following passage from paragraph 13:
What we have to see is whether in the absence of an express provision to that effect in Section 33, it will be reasonable for an Industrial Tribunal in these extraordinary circumstances arising out of the effect of Section 33 to imply a term in the contract giving power to the employer to suspend the contract of employment thus relieving himself of the obligation to pay wages and relieving the servant of the corresponding obligation to render service. We are of opinion that in the peculiar circumstances which have arisen on account of the enactment of Section 33, it is but jus and fair that Industrial Tribunals should imply such a term in the contract of employment.
It will thus be seen that the Supreme court has evolved the doctrine of implied term in the contract empowering the employer to suspend a workman pending permission under Section 33. The doctrine so evolved is a limited one. It relates to the power of the employer to suspend pending the permission under Section 33. In other words, the power which has to be read into the contract of service is the power to suspend till either permission is granted or refused. If the permission is granted, no question can arise because the employer had the power to suspend the servant till the permission was granted in order to give a formal shape to the tentative decision reached by the employer. No difficulty can also arise where permission is refused, for in that case the order of dismissal would never come into existence since the power to suspend was a limited power based on the assumption that permission was ultimately granted. If the permission was not granted, suspension would itself become ineffective and the workman concerned would be entitled to payment of wages for the period commencing from the date of suspension till the date of revocation of the order of suspension. This proposition emerges from the decision of the Supreme Court in Ranipur Colliery's case (supra), wherein Wanchoo J. speaking for the Court has declared the law on the subject in the following terms in paragraph 8:
This interpretation would not cause any serious hardship to the employee, for if the tribunal grants permission to the employer to dismiss the employee he will not get anything from the date of his suspension without pay; on the other hand, if the tribunal refuses to grant the permission sought for, he would be entitled to his backwages from the date of his suspension without pay.... The matter will be different if there is no question of applying under Section 33 and under the relevant Standing Orders the employer is competent to dismiss the employee immediately after his inquiry is complete. In such a case if the Standing Orders provide that suspension without pay will not be for more than a certain number of days, the inquiry must either be completed within that period or if it goes beyond that period and suspension for any reason is considered necessary, pay cannot be withheld for more than the period prescribed under the Standing Orders. In the present case, the suspension without pay took place even after the application under Section 33 bad been made and was pending permission under that section. As the Industrial Tribunal has accorded permission to dismiss the employees in this case and as that part of the award has been upheld by the Appellate Tribunal, there is no question of the employees being paid during the period of suspension without pay.
It has been clearly laid down that if the Tribunal grants permission to the employer to dismiss the employee, he may not get any wages for the period from the date on which he was suspended without pay but if the Tribunal refuses to grant the permission, he would be entitled to backwages from the date of his suspension. The Supreme Court however had no occasion to consider the question as to what would happen when permission was neither granted nor refused and the application became infructuous having reward to the fact that while the industrial dispute between the employer and the employees, during the pendency of which permission was sought, was resolved the application seeking permission remained un disposed of till the decision in regard to the main industrial dispute. As discussed earlier, the Supreme Court has made a clear pronouncement to the effect that under the ordinary law there is no implied condition in the contract of service for suspending a workman without pay. The implied right to suspend without pay is read into the contract of service only for the limited purpose of suspension pending the permission to dismiss under Section 33(1)(b). If the permission is granted, the implied right to suspend comes into existence. If the permission is refused, the implied right does not come into existence and the workman concerned would have to be paid full wages. The implied right is a limited right which envisions the request for permission being either granted or refused. It does not take into account a situation like the present one where permission is neither granted nor refused but it becomes unnecessary. Unless we were to enlarge the proposition evolved by Supreme Court on our own and read something more in the decision of the Supreme Court in Ranipur Colliery's case (supra), it will not be possible to hold that the right to suspend also exists where ultimately permission is neither granted nor refused. In Ranipur Colliery's case (supra) a limited right to suspend pending grant of permission has been recognised (in the sense that it is read into the contract of service by accessory implication). We wish to emphasize that the right recognised is merely the right to suspend pending grant of permission, that is to say, the right is dependent on grant of permission to dismiss. Only provided permission is granted under Section 33 to dismiss the right to suspend as contemplated by Ranipur Colliery's case (supra) would come into play, not otherwise. The doctrine evolved is a limited one evolved in order to meet a specific situation and its scope cannot be enlarged by us. Otherwise we will be substituting a new doctrine in place of the one spelled out by the Supreme Court. Be it realised that the doctrine is imprisoned within the parameters defined by the Supreme Court in Hotel Imperial's case (supra). Principle demands that it is construed in the strictest manner and its scope is not enlarged by the interpreter or the implementer. Principle so demands because:
(1) such a right to suspend without wages is not recognised by the general law of master and servant prevailing for hundreds of years:
(2) such a right has no roots in a statute enacted by legislature reflecting the social will:
(3) it is not bottomed by an express condition in the contract of service:
(4) the right has been recognised only to a limited extent by evolving a doctrine of implied condition to meet the demands of a particular and unique situation envisioned in Hotel Imperial's case (supra);
(5) It is not a condition of service to which the workmen have assented. The workmen are totally unaware of the existence or implication of such a condition is being imposed by ascribing or attributing it to the contracting parties by necessary implication in order that the ban against dismissal pending permission imposed by Section 33(which is enacted to protect the workmen) does not result in unfairness to the employer, the Court will not countenance unfairness to the workers either:
(6) If the employer requires to be protected from the evil consequences of unavoidable delay, the workmen are equally entitled to seek protection on their part as well because they are also in no way responsible for delays in Courts and Tribunals:
(7) As we indicated earlier, mercy to the employer cannot be at the cost of cruelty to the workers and at the expense of the workers, particularly having regard to the consequences. The employer will not have to pull down his shutters and wind up the business or close down the industry if a few thousand rupees have to be paid to the suspended worker. The suspended worker may on the other hand have to commit suicide if he is obliged to starve during suspension period:
(8) The doctrine of implied condition of service evolved by the Supreme Court for a limited purpose cannot be extended or reshaped in any manner by any other Court under any circumstances.
In the present case, permission has not been granted. In fact, the respondent Company itself made a request to the Labour Court that the application should be disposed of as having become in fructuous in the sense that the Court had no more competence to decide the application. This contention was upheld. Thus, in a way, the application for permission has been abandoned or withdrawn. And the Court has disposed it of at the instance of the employer having regard to the fact that the power and competence to grant or refuse the permission has been lost or has disappeared. In the eye of law, the inquiry made against the petitioner remained incomplete till the final order of dismissal was passed on 3rd December 1980. The position which obtained till December 3, 1980 can be best epitomized as under: A departmental proceeding was commenced, evidence was recorded, arguments were heard, but final order was not passed. The final order was passed on December 3, 1980. Till that stage, therefore, the departmental inquiry was pending. The suspension of the petitioner as per the impugned order at Annexure R-1II dated January 31, 1978 must therefore be treated as suspension during the pendency of the departmental inquiry. Under the Standing Orders, no order of suspension without wages for a period exceeding ten days could have been lawfully passed. Therefore, to the extent that suspension exceeded ten days, the suspension without wages must be treated as unwarranted by law or illegal. The mere fact that an application was made during the pendency of the industrial dispute under Section 33(1)(b) and was res inlegra till it was got disposed of as having become in fructuous upon the Court having lost the competence to decide the application, is a matter of no consequence. In view of this incontrovertible position, there is no manner of doubt that the petitioner would be entitled to be paid Wages for the period commencing from January 31, 1978 on which he was placed under suspension, till he was dismissed from service by the order dated December 3, 1980. It may be stated that in regard to the Validity of the order of dismissal, an industrial dispute has arisen and it is pending before the competent authority. We are however not concerned with the said proceedings in the present matter. Though the petitioner has a right to be paid wages from January 31, 1978 onwards till December 3, 1980 (subject to such decision as may be rendered by the Labour Court in regard to subsequent wage in the matter challenging the said order of dismissal) we are not concerned with the wages subsequent to December 3, 1980 in the present matter. Such is the position having regard to the fact that the application which the petitioner made before the Authority under the Payment of Wages Act was one claiming wages for the period commencing from 31-1-78 till December 31, 1978. The said application having been rejected by the impugned order at Annexure 'C' dated February 1, 1980 the petitioner has invoked jurisdiction under Article 227. As was mentioned in the earlier part of the judgment, the application has been rejected on the ground that since the application for permission was still pending, prayer for wages could not be granted at that stage. And the operative order passed was 'Application rejected at this stage.' Learned Counsel for the petitioner is right in his submission that the Payment of Wages Authority should not have rejected the application merely because the application for permission was still pending. The Payment of Wages Authority could well have kept the matter pending till the application for permission was disposed of one way or the other, for it was not disputed before the Authority concerned that if the permission was refused the petitioner was entitled to wages. Admittedly on the date on which the application was disposed of the application for permission was still pending. In view of the subsequent development to which we have adverted to, namely, that the application has been disposed of as having become in fructuous and incompetent, the order passed by the Payment of Wages Authority rejecting the application does not deserve to be sustained. No useful purpose will be served by obliging the petitioner to make a fresh application having regard to the view taken by us after hearing both sides at length. It will result in multiplicity of proceedings and prolong the misery of the petitioner who has been deprived of his wages from 31-1-1978 onwards till the date of his dismissal on December 3, 1980 (which dismissal is the subject matter of another industrial dispute). We are of the opinion that the Payment of Wages Authority has committed an error apparent on the face of the record in rejecting the application merely because the permission application was still pending. The Payment of Wages Authority should have kept the matter pending and adjourned it tilt the permission application was disposed of one way or the other. We therefore partly allow this petition, set aside the impugned order at Annexure 'C and remand the matter back to the Payment of Wages Authority for a fresh decision in accordance with law in the light of the discussion made by us in the earlier part of our judgment having regard to the fact that the application for 'permission has now been disposed of as having become incompetent in the circumstances narrated earlier.
10. Before parting we may say that during the course of the hearing of the petition it was suggested that the matter was one which was eminently suited for an amicable settlement, particularly having regard to the fact that the employer Company was a semi-Government undertaking in the sense that a substantial portion of the share-holding belongs to the State and one would not expect such a Company to contest a litigation of this nature at considerable time cost and money cost to itself as also to the petitioner. Learned Counsel for the respondent Company with the fairness that he has exhibited throughout the course of the proceeding agreed to use his good offices to bring about a solution. However, the matter could not be resolved. On November 27, 1981 the petitioner placed on record a Purshis to the following effect:
Petitioner herein states as under:
(1) Petitioner should be reinstated in service.
(2) He should be paid all wages including all allowances and benefits, and monetary benefits such as increment etc., which he could have earned daring the time between the days of dismissal and the date of his resignation.
(3) The petitioner would resign on the date on which he is reinstated in service provided the aforesaid benefits are given to him and the allegations made against him are withdrawn.
(4) He should also be given bonus, PF. etc. in a manner as if he had continued in service till the date of his resignation and the IFFCO should undertake before this Hon'ble Court to make this payment immediately.
(5) The Quarter given to petitioner should be allowed to be occupied on the same rent for period of six months from the date of his resignation. The petitioner was asked whether he is prepared to relax any of the aforesaid term?, so as to make them acceptable by the respondent. He says, he is not prepared be compromise unless all these above terms are accepted into.
11. The Purshis shows what transpired in the course of the negotiations. It may be stated that after the petitioner placed on record the aforesaid statement, it was suggested to the learned Counsel for the respondent Company to consider the matter afresh and discuss it with the Counsel for the other side in order to once again explore whether an amicable settlement could be arrived at. However, no settlement could be arrived at and it was submitted to us later on that we should proceed to deliver judgment. Under these circumstances the matter remained undisposed of and we are now disposing it of by this judgment.
12. In the result the petition is partly allowed. The impugned order at Annexure 'C' is quashed and set aside. The matter is remanded back to the Payment of Wages Authority for a fresh decision in accordance with law in the light of the discussion made in the course of this judgment. The learned Authority will accord priority to this matter and dispose it of as early as possible, preferably within sixty days of the receipt of the writ. Rule made absolute to this extent. No order regarding costs.