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District Controller of Stores Eastern Railway, Lillooah, Howrah and anr. Vs. Ram Govinda - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 19 of 1960 (Mandamus Appeal)
Judge
Reported inAIR1964Cal68,68CWN720
ActsConstitution of India - Article 311(2)
AppellantDistrict Controller of Stores Eastern Railway, Lillooah, Howrah and anr.
RespondentRam Govinda
Appellant AdvocateB.N. Bose, Adv.
Respondent AdvocateNoni Coomar Chakravarty and ;Basudeo Banerjee, Advs.
DispositionAppeal allowed
Cases ReferredIndia v. I. M. Lall and
Excerpt:
- p.b. mukharji, j.1. this is an appeal from the judgment and order of mr. justice j.p. mitter on a petition under article 226 of the constitution setting aside the order of removal of the petitioner and directing that the petitioner be given a personal hearing before the form of punishment is finally decided upon.2. the petitioner of this case was ram gobinda known as gopal labourer, ticket no. 264 of belur scrap yard, a permanent employee of the eastern railway. the allegation against the petitioner was that he was detected on the 15th january, 1955 in illegal and planned removal of materials from lot no. 140 of south yard, belur scrap yard. he was placed under suspension with effect from the 15th january, 1955 afternoon. there was the formal charge-sheet which stated:'on 15-1-55 you were.....
Judgment:

P.B. Mukharji, J.

1. This is an appeal from the judgment and order of Mr. Justice J.P. Mitter on a petition under Article 226 of the Constitution setting aside the order of removal of the petitioner and directing that the petitioner be given a personal hearing before the form of punishment is finally decided upon.

2. The petitioner of this case was Ram Gobinda known as Gopal Labourer, Ticket No. 264 of Belur Scrap Yard, a permanent employee of the Eastern Railway. The allegation against the petitioner was that he was detected on the 15th January, 1955 in illegal and planned removal of materials from lot No. 140 of South Yard, Belur Scrap Yard. He was placed under suspension with effect from the 15th January, 1955 afternoon. There was the formal charge-sheet which stated:

'On 15-1-55 you were seen keeping parts of scrap lead cells from lot No. 140 in the South yard on lorry No. WBL 9374 which was taking delivery of timber offcuts from lot No. 239 /Syd. 2. The stack of timber pieces loaded on the lorry was unloaded and scrap cell parts were found in different depths of the stack on the above lorry.

This is an illegal and planned theft of railway property for which you are solely responsible.'

This charge-sheet dated 15-1-55 also stated:

'When the maximum penalty specified in items 6 and 7 you may, while giving your written explanation to the charge sheet, state whether you desire to be heard in person.'

It was only shown there that items 6 and 7 meant either removal from service or dismissal from service. After certain preliminary investigation, the actual enquiry started on the 27th June, 1955. Witnesses were examined and cross-examined at the enquiry. The petitioner had the fullest opportunity to appear and to represent his case at the enquiry. The enquiry concluded on or about the 19th June, 1956.

3. After considering the petitioner's written explanation dated the 21st January, 1955 in replyto the charge-sheet dated the 15th January, 1955 and the finding of the departmental enquiry held on the 27th June, 1955 and on the 18th June, 1956, the District Controller of Stores, Lilopah of the Eastern Railway came to the conclusion that the charges namely 'you made an attempt in unauthorised removal of pieces of scrap lead cells from the lot which was not soldi and were detected in the act of doing so and caught red-handed' had been proved against the petitioner and that he was guilty of the same. He gave the second notice to show cause stating that he had provisionally formed the opinion that he should be removed from service. In the second show cause notice it was stated as follows:

'you are hereby given seven clear days' time from the receipt hereof to show cause why the proposed penalty should not be inflicted on you. Any representation that you may make in this connection will be taken into consideration before passing final orders.'

4. To this the petitioner submitted a written explanation and asked for a personal hearing again along with a railway clerk. On the 29th April, 1957 the District Controller of Stores, Lilooah, Eastern Railway passed the order of the petitioner's removal from service stating as follows:

'After considering your explanation dated 10-9-56 to the show cause notice No. G. S. 149/6/1 of 6-9-56 and your application dated 3-12-56 I have decided that as you were guilty of attempting to remove pieces of scrap lead Battery cells in an unauthorised manner, you are hereby removed from service as a disciplinary measure in terms of service agreement and conditions of service and the same will take effect from the after-noon of 30-4-57 with a month's pay in a lieu of notice.'

5. The only point urged on behalf of the Government representing the Railways is that the learned Judge was wrong in setting aside the order of removal on the ground that no personal hearing was given to the petitioner after the second show cause notice. It is contended by Mr. Bose, the learned Advocate for the Government representing the Railways that no such personal hearing is a necessary postulate for the order of removal and especially in a case where the petitioner was found guilty of the charge and especially where the learned Judge himself agreed that he was guilty. The order appealed against stated:

'In the circumstances disclosed there is no doubt in my mind that he was guilty of the offence charged against him. I think at the same time that he was entitled to be heard in person before the order of removal was made. Had he been given a personal hearing, the competent authority might have inflicted some other punishment'

6. Article 311(2) of the Constitution expressly lays down that a public servant shall not be removed 'until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' But the whole question in this appeal is-has the petitioner been given a reasonable opportunity within the meaning of Article 311(2) of the Constitution? There is no doubt that before the enquiring officer and at the departmental enquiry the petitioner was given personal hearing to represent his case and to cross-examine the witnesses who gave evidence against him. No doubt it is equally true that personal hearing is a part of reasonable opportunity within the meaning of Article 311(2) ofthe Constitution. But the whole question is whether such personal hearing as part of reasonable opportunity is to be given at every stage. The short point before us in this appeal is whether it is a constitutional requisite to give a personal hearing at the stage of the second show cause notice before imposing actual punishment and after finding the guilt of the petitioner in the departmental enquiry, where he was personally heard.

7. No doubt if the terms and conditions of Government service or Railway service in any particular case require personal hearing expressly by such rules or terms and conditions at this stage of the second show cause notice, then that must be done and must be respected. But that is a statutory right or a right arising under statutory rules under terms and conditions of public service, and not a constitutional right.

8. The Railway rules in this case do not require personal hearing after the conclusion of the departmental enquiry and at the stage of the second show cause notice. Rule 1707 lays down the procedure for dismissal, removal and reduction in Railway service. Sub-rule (a) relates to the charge sheet and the explanation from the person charged. Sub-rule (b) talks about departmental enquiry in appropriate cases. Sub-rule (c) of Rule 1707 says:

'The railway servant, if he so desires, may be accompanied by another railway servant and the officer or the committee of inquiry shall give the railway servant all reasonable facilities for the conduct of his defence including the cross-examination of witnesses.'

Now this rule and its requirements were amply satisfied in the present case because the petitioner was allowed to attend with another railway servant and conduct his defence including cross-examination of witnesses and had all reasonable facilities. The next relevant rule is Sub-rule (e) of Rule 1707 which states:

'The result of the departmental inquiry, with the recommendation of the officer or the committee holding the inquiry, shall be placed before the officer competent under the rules in this section to pass an order of dismissal, who shall thereupon pass such orders as he thinks fit.'

Significantly enough it will be noted that this sub-rule does not expressly make it necessary to provide for any personal hearing of the petitioner after the result of the departmental inquiry has been arrived at.

9. This present case therefore must be clearly distinguished from those cases where the statutory terms and conditions of service expressly stipulate for a personal hearing at the stage of the second show cause notice for inflicting the final punishment such as in the old Police Regulation of Bengal, 1943, Regulation 861 expressly provided for:

'The authority empowered to pass the order of punishment shall grant a personal hearing to the person charged and then pass the final orders. When the enquiring officer himself passes the final order, no personal hearing is necessary, as the person charged is present throughout the enquiry.'

The idea is clear that so long as the person charged has an effective personal hearing it was not intended to make lit an useless, repetitive and merely mechanical ceremony. The present regulation 861 under the Police Act of 1861 maintains the above provision almost in similar terms al-though there are certain variations. Similarly another instance is where the statute itself requires personal bearing in a particular matter such as in the Road Transport case in G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, : AIR1959SC308 . This case was dealing with the scheme under the Road Transport Act and the rule made therein and especially Rule 8 which is quoted at page 320 of that report said:

'After the receipt of the objections referred to above, the Government may, after fixing the date, time and place for holding an enquiry and after giving if they so desire, at least seven cleat-days' notice of such time and place to the persons who filed objections under Rule 8, proceed to consider the objections and pass such orders as they may deem fit after giving an opportunity to the person of being heard in person or through authorised representatives.'

Here is an instance not of Article 311(2) of the Constitution at ail regarding removal or dismissal of a public servant but of statutory scheme and the rules made thereunder providing for personal hearing of certain objections to the scheme under he Road Transport Act.

10. These illustrations show that if there are specific statutory terms and conditions then effect must be given to them and if they expressly require a personal hearing even at the stage of the second show cause notice then it must be respected: But we do not find this present case to be such a 'case.

11. Coming back to the constitutional problem, I find that the respondent's contention on this point cannot be accepted because of the decision of the Supreme Court in Kapur Singh v. Union of India, : [1960]2SCR569 . Shah J. delivering the judgment of the Supreme Court at page 591 (of SCR): (at p. 500 of AIR) of the report enunciated the law as follows:

'By the Constitution, an opportunity of showing cause against the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. Whether opportunity afforded to a public servant in a particular case is reasonable must depend upon the circumstances of that case.'

12. The learned judge proceeded further to lay down at the same page 591 (of SCR): (at p. 500 of AIR):

'An opportunity to making an oral representation not being in our view a necessary postulate of an opportunity of showing cause within the meaning of Article 311 of the Constitution, the plea that the appellant was deprived of the constitutional protection of that Article because he was not given an oral hearing by the President cannot be sustained.'

13. Applying this test laid down by the Supreme Court that such oral representation isnot so necessary a postulate as to become a constitutional safeguard under Article 311(2) of the Constitution, it must follow that the order of removal in this case of the respondent cannot be set aside because no personal hearing was given at the stags of the second show cause notice.

14. On behalf of the respondent Mr. Chakravarty learned Advocate has relied on the observations of the Supreme Court in Khem Chand v. Union of India, reported in : (1959)ILLJ167SC and especially the observation appearing at p. 237 of the volume (SCA): (at p. 308 of AIR):

'The opportunities at more stages than one are comprised within the opportunity contemplated by the statute itself.'

and the further observation at the same page (237 of SCA): (at p. 308 of AJR) with reference to the Privy Council decision in I. M. Lall's case High Commr. for India v. I. M. Lall :

'Further their Lordships say that an enquiry under Rule 55 'would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry'. This dearly proceeds on the basis that the right 'o defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his 'statutory right' and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant.'

15. The answer to this line of argument on behalf of the respondent is that the Supreme Court in Khem Chand's case, : (1959)ILLJ167SC was discussing and expounding what a reasonable opportunity was. In doing So those observations were careful enough not to say that the right to make the representation meant a personal hearing. The very fact of the second notice to show cause means that a notice is given calling for cause to be shown by the person found guilty against the punishment proposed in this second notice. The second notice to show cause itself calls for an explanation and representation. To carry it further and say that it must be a personal hearing is to overstep the constitutional provision and to introduce something which is not in the Constitution. That is why it was said in the decision of the Supreme Court in : [1960]2SCR569 that an oral representation was not a necessary postulate within the meaning of article 311(2) of the Constitution.

16. Mr. Chakravarty learned advocate for the respondent also tried to rely on the observation of the Supreme Court decision already quoted above in : AIR1959SC308 where the following observations were made:

'The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing 'to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.'

Now we have already said that the above decision was not a case under Article 311 of the Constitution nor was it a case of dismissal or removal ot' a public servant. All that is necessary hers to say is that the personal hearing mentioned there was not as we understand it intended to mean personal hearing in all cases under the Constitution at the stage of the second show cause notice which alone is the point before us in this appeal. This observation therefore cannot be torn from the context of that case, made under the Transport Act and then applied to Article 311 to mean that a personal hearing is an indispensable postulate of the constitutional safeguard of a reasonable opportunity under Article 311(2) of the Constitution.

17. A reference was made to the decision of a learned single Judge of the Allahabad High Court in Altafur Rahman v. Collector, Central Excise, Allahabad, : (1960)IILLJ146All , with which we find ourselves generally in agreement. It was held there that Rule 55 of the Government Service1 Rules which speaks about the opportunity of personal hearing, if desired to be given at the time of the enquiry has no application to the notice to show cause which is given after the enquiry when punishment js to be determined. At page 556-7 of the report the learned judge observed:

'Rule 55 mentioned above speaks about the opportunity of personal hearing if desired to be given at the time of the enquiry and in my opinion Rule 55 has no application to the show cause notice which is given after the enquiry when punishment is to be determined. If Rule 55 had not provided that if the Government servant wants a personal hearing he should be given and if the same was not given then it could not be said that any principle of natural justice had been violated. In my opinion, reasonable opportunity to show cause does not necessarily include the fight of personal hearing at every stage. This right may be given and may be in some cases proper, but it will not be an essential condition that in every case it should be either offered or if not given then in that event, the dismissal or removal would be bad.'

18. Mr. Chakravarty, for the respondent also relied on the Division Bench decision of the Allahabad High Court in C.S. Sharma v. State of Uttar Pradesh, : AIR1961All45 and the observation made at page 60 of the report citing the Supreme Court decision in : (1959)ILLJ167SC already discussed by us. The proposition in Khem Chand's case, : (1959)ILLJ167SC that a personal hearing includes a right to argue the case is not in dispute. The point is, whether after such a personal hearing has been fully given at the departmental enquiry, a repetition of that personal hearing is constitutionally obligatory at the stage of the second notice to show cause where the only issue is about the penalty that is to be imposed and in this case there is no question of any alternative penalty at all but the penalty was indicated as removal from service and as provided in the Railway Service Rules.

19. Finally Mr. Chakravarty relied on the decision of the learned single judge of this Court in Phanindra Chandra Shome v. Union of India reported in (1961) 3 Fac LR 1 (Cal) for the proposition that at the departmental enquiry opportunity should always be given for personal hearing and that the refusal to give personal hearing vitiates the proceeding. It is unnecessary to discuss the case in detail having regard to the Supreme Court decision on the point to which no reference is made in this decision. We need only point out that in] page 3 of that report the learned judge was careful enough to guard himself by saying that he was not laying down any general principle.

20. The legal position on the authorities is therefore clear. The constitutional requirementsof 'reasonable opportunity' under Article 311(2) of the Constitution must have to be satisfied. If there are two stages, one of the departmental enquiry and the other for finally determining the penalty to be imposed on the basis of the findings of the departmental enquiry, and if at the main stage of departmental enquiry reasonable opportunity including personal heating has been given, then further personal hearing at the stage of the second show cause notice when penalty is the 9nly issue, may or may not be required de-pending on the rules of the particular service in question, their language, expression and their import and intendment in a particular case. But it: cannot be said that a personal hearing is an indispensable and inseparable part of 'the reasonable opportunity' within the meaning of that constitutional provision at every stage of the proceeding when such personal hearing has already been given at the stage of the departmental enquiry. No doubt reasonable opportunity must under Article 311(2) of the Constitution be given to the person concerned to show cause against the action proposed to be taken in regard to him. The expression 'action proposed to be taken in regard to him' will certainly cover the whole of the proceedings including the departmental enquiry and the final order of punishment. But if personal right to a hearing is already given at the departmental enquiry, it cannot be insisted upon again when punishment is to be inflicted, unless otherwise provided by the statutory or contractual rules of service, at the time of the second show cause notice for imposing the punishment. I want to companies here however that even though personal hearing may not be an essential constitutional requisite yet 'reasonable opportunity' even at that stage of the second show cause notice to impose the penalty has to be given within the meaning of the Constitution but that is satisfied by the notice itself which says that he is to show cause against the proposed order or removal. Reasonable opportunity then at that stage is given and used when the person concerned submits in answer to the second notice to show cause his detailed explanation against such notice and no further personal hearing can be constitutionally insisted.

21. The legal controversy on the question whether the expression 'reasonable opportunity' in Article 311(2) of the Constitution includes or not a personal hearing was settled by the Supreme Court in : [1960]2SCR569 already quoted holding that an opportunity of making an oral representation to the disciplinary authority was not a necessary postulate of an opportunity of showing cause within the meaning of that article. This controversy inter alia was mostly concerned with the Government Servant Rules on this point and particularly Rules 55 and 15. Whether an accused officer can spell out the claim for a personal hearing by the disciplinary authority from the actual language of Rule 15(2) of 1957 Rules may still be regarded as a controversial issue on the ground that the rule gives a civil servant an opportunity 'to state whether he desires to be heard in person' and significantly the rule is silent as to the person who should give him hearing or before whom he has to appear. But that is not the question here before us.

22. It has been said that when the disciplinary authority is the President of India or the Governor of a State (as they are in the case of many of the higher officers) the practical inconvenience added to the theoretical uselessness of it makes a personal hearing really of no consequence at the stageof the second show cause notice. This idea probably is developed on the observation in Khem Chand's case, : (1959)ILLJ167SC . We can only correct this misapprehension before it develops into a confusion by saying that constitutional safeguard of public servants' rights under Article 311(2) of the Constitution does not depend on the personality or eminence of the individual composing the disciplinary authority. It will be taking the very soul out of such constitutional protection if constitutional safeguards of public servant in India were to depend on the eminence of any particular individual acting as the disciplinary authority. Constitution of India is not personal and the danger in India of interpreting the Constitution in terms of personality is far too great to be ignored. May be the idea of a 'durbar' and a 'personal durbar' at that is far too ingrained in the tragic history of administrative services in India for a number of centuries and that is still working to support such, interpretation of constitutional safeguards, which I have no hesitation in rejecting.

23. India has always been a well known land of ceremonies. In constitutional jurisprudence also we have developed many ceremonies. One of them is the so-called second notice to show cause. It has an instructive historical background. Before the advent of the Constitution Section 240(3) of the Government of India Act. 1935 which was materially similar to Article 311(2) of the present Constitution, was interpreted both by the Federal Court and the Privy Council in the Secretary of State for India v. I. M. Lall and . The Indian tradition was that the disciplinary authority used to pass a final order imposing the major penalty which it considered proper after the completion of the proceedings under Rule 55 of the 1930 Rules without any further procedure. The opinion of the Judicial Committee of the Privy Council in has now been generally accepted to mean that the procedural safeguard provided for in the former Section 240(3) of the Government of India Act, 1935 would begin operating only after a particular major penalty had been tentatively proposed by the disciplinary authority as a result of the enquiry conducted under Service Rule 55. Therefore it was taken to demand, after a notice and an enquiry under Rule 55, another notice to the accused officer under Section 240(3) of the 1935 Act to make a representation against the proposed penalty. This is the origin of the now famous 'second' show cause notice in disciplinary proceedings in India. The Supreme Court in Khem Chand's case, : (1959)ILLJ167SC adopted the interpretation of the Privy Council on this particular point of a second opportunity in the new context of Article 311(2) of the Indian Constitution and further enlarged the safeguard under Article 311(2) of the Constitution by bringing into its ambit every procedural stage provided for in the enquiry conducted under the special provisions of the Service Rules. Along with the second show cause notice the accused officer is usually provided with a copy of the enquiry report, for that is a part of the reasonable opportunity under Article 311(2) of the Constitution for the action proposed to be taken against him on the basis thereof and in determining the penalty. The historical evolution of Section 240(3) of the Government of India Act, 1935 as interpreted by the Privy Council appears to lead to the conclusion that the procedural safeguard provided in the service rules and the constitutional protection given in that Act were intended to operate in mutually exclusive fields. The conceivable scope of opportunity at this stage is indeed very limited. The courts however had found one justification for this requirement of a second opportunity in order that at this stage an accused officer could effectively plead for mitigation of the proposed penalty. Therefore, the rationale for the continuance of this doctrine of 'second show cause notice' depends upon the extent to which the civil servants actually make use of this provision in the way it has been envisaged by the courts. Even then the second opportunity as a part of reasonable opportunity within the meaning of the expression in Article 311(2) of the Constitution would not include personal hearing of that is already given and granted fully at the departmental enquiry. The grounds for mitigation of the penalty certainly can be stated in the answer or explanation that the accused officer gives to the second show cause notice and do not require oral or personal hearing unless one succumbs tp the wide-spread, delectable and accepted tradition of India that opportunity should also include importunities at every stage as a matter of standard for public administration.

24. Much of the judicial thinking on this vital constitutional problem has been in a rut partly no doubt due to the fact of old legacy of constitutional thought drawn from the interpretation of the Government of India Act. A fresh approach to the problem is needed in the modern context. The Constitution is a guarantee to an accused public officer of reasonable opportunity to defend himself against the charges levelled against him. It is an essential guarantee which not only promotes security of public services in India but also prevents service cliques trying to victimise particular members. It is debated and contended that by employing the expression 'against the action proposed' found both in Section 240(3) of the Government of India Act and Article 311(2) of the present Constitution the legislature or Parliament could not possibly have intended two opportunities. A technical interpretation of the expression 'action proposed' may be posed by suggesting, what is the harm in giving two opportunities. But the question remains which is a prior question, why should there be two opportunities unless there is a real need for them. No doubt it is said that at the stage of the second notice to show cause the accused officer can plead for the reduction in the proposed penalty. This view of course did not find favour With the Supreme Court in Hukum Chand v Union of India, : [1959]1SCR892 where the Supreme Court upheld a notice where all the major penalties were inserted. Assuming that is a valid consideration that a second opportunity is intended only for the probable reduction of the penalty proposed the accused public servant can as well plead for a lesser penalty even if he is given one opportunity, independently of the ample opportunity to address himself to this aspect in appeal which is usually provided. It may not be possible to subscribe to the View that the word 'action' found its _way into section 240(3) of the Government of India Act, 1935 either by inadvertence or by an inadequate appreciation of the difference between an opportunity to defend against the charges and the opportunity to show cause against the 'action' and the same eventually crept unnoticed in the present Constitution also. A more realistic interpretation of Article 311(2) of the Constitution will be to ensure that Parliament intended to provide for a reasonable opportunity to its civil servants which must be effective to put forward his case rather than to count the number of formal opportunities provided by the law. The overriding principles which must inspire this realistic interpretation of Article 311(2) of the Constitution is that the opportunity must be an opportunity and not a mere occasion for importunities. Secondly, that such opportunity should be reasonable in the ordinary sense of the term which must include reasonable facilities to defend himself against the charges framed and such facilities should be according to the settled standards of fair play and natural justice and should not be either unduly restricted by overworked technicality or unduly enlarged by mistaken sentiment. It cannot be too strongly emphasised that disciplinary proceedings must not be too long and tediously protracted and at the same time they must not be too short, sharp and 'rigid to prevent a fair ventilation of the public servant's case. The balance between the two is a question of judgment and discretion for the constitutional principle is clear enough and that is so long as there is the 'reasonable opportunity' the Constitution is satisfied. There cannot be any more rigid construction of this constitutional approach. Speaking for myself, I do not think the Constitution requires to be amended for this purpose, but if there be an amendment, it should make the above position clear beyond controversy.

25. For the reasons stated above, we allow the appeal and set aside the judgment and order of the learned Judge and hold that in the facts of this instant case, the removal from service was not unconstitutional by reason of the fact that no personal bearing was given to the petitioner respondent at the stage of the second notice to show cause and when he had the fullest personal hearing before the departmental enquiry and when he had himself fully answered by written explanation the second notice to show cause.

26. There will be no order as to costs.

Laik, J.

27. I agree.


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