B.N. Banerjee, J.
1. At a time when road transportation was a department of the Government of West Bengal, the petitioner was appointed, in the year 1949, as a temporary store clerk in the Hastings Street Garage. He was thereafter promoted as a temporary store-keeper in the Lake Depot. On and from August 16, 1954, the petitioner became a store-keeper, on a temporary basis, in the central Workshop. At all times material for the purposes of this Rule, the petitioner was receiving a substantive pay of Rs. 172/- per month.
2. With effect from June 15, 1960, the Government of West Bengal established a Road Transport Corporation, known as the Calcutta State Transport Corporation, in exercise of its power under Section 3 of the Road Transport Corporation Act 1950. The services of the petitioner stood transferred to the Calcutta State Transport Corporationwhich took over the local transport business of the State Government.
3. On August 16, 1960, the petitioner was charged with several heads of misconduct, as hereinafter stated:--
'1. On 16-6-60 it was reported to you by Shri Gabinda Banerjee, Stores Assistant (Senior), that 15 pieces of Dodge bearings were missing from a section of the Central Stores under your control. You thereafter instructed him to hold a search for them and submit a report. Shri Banerjee submitted a report as late as on 22-6-60, stating the loss of 85 pieces of bearings, and you passed on the said report to the Chief Store-keeper on 27-7-60. You did not yourself enquire into the loss though it was of a serious nature, nor take steps to have an enquiry held with such expedition as would be justified in a case of the kind. The delay was designed to conceal the loss from the notice of the authorities as long as possible. Your failure to report the loss to the Stores Superintendent, in spite of the directions of the Chief Store-keeper to do so, showed the same purpose, besides grave lack of a sense of responsibility on your part.
2. When the loss of 85 pieces of Dodge and Studabaker bearings was finally reported to you by Shri G. Banerjee in writing, you told Shri G. Banerjee and Shri D. Muknerjee, Assistants, that such a huge loss should not be brought to the notice of the authorities. You advised them to conceal the loss by finding out bearings of a suitable type from the unserviceable stock and putting them in the empty cartons. You further told them that, if enough bearings could not be secured from the unserviceable stock, he would procure as many as were necessary from Messrs, central Trading Co. at a nominal cost, to be contributed by all of you. Your proposal was not agreed to by the aforesaid subordinates. You were also told that bearings, suitable for Dodge and Studebaker vehicles, could not be procured from the unserviceable stock and also that such bearings had not been issued from the Stores for a long time. You then asked Shri G. Banerjee to find out bearings of suitable size from Dodge Weapon Carriers and Jeep Cars and eventually succeeded in getting him to secure some such bearings and to keep them apart. Your action, in this regard amounted to cheating the Corporation and compelling two of your subordinates to be your accomplices in such cheating.
3. In your report, dated 29-6-60, to the Stores Superintendent you falsely stated, to avert suspicion from yoursen and your subordinates, that no loss or theft of bearings had occurred previously in the stores though two bearings had been found missing on 13-5-60.
4. You did not care to have the stock of spares under your charge verified with accuracy and were negligent, particularly in the matter of stock-taking. No bearing was issued after 3-2-60 and the balance of Studebaker bearings (Pt. No. 665, 170) was shown as 51 pieces at the stock taking held on 20-3-59. There was one issue of the article thereafter on 19-10-59. No stock was received in between but even then the balance was shown to be 51 at the stock-taking held on 19-1-60. Again, the stock of spare part No. 634, 304 was shown as nil at the stock-taking held on 19-5-59. No fresh purchase was made thereafter, but the balance was shown as 4 at the stock-taking held on 8-1-60.'
4. By the charge-sheet, that was served on the petitioner, he was suspended pending enquiry into the charges. Petitioner answered the charges wholly denying the same.
5. At the enquiry into the charges, held by M.N. Dey, Special Officer, Discipline, there were witnesses examined in support of the charges. The petitioner also' examined defence witnesses. The enquiring officer submitted the following report against the petitioner:--
'x x x The evidence, discussed above, clearly shows that the delinquent, who held the position of the Storekeeper, did not bother himself much about holding an enquiry or having an enquiry held with the required speed after the loss of the bearings had been reported to him. It was a serious matter arid the value of the lost property exceeded Rs. 1,000/-. The facts that the cartons were empty and that, even then, each was in its own place cleany pointed to an offence of theft and a preconceived plan to conceal it from the notice of the authorities as long as possible. It is said that the delinquent and some intending purchasers from Assam had examined the bearings some days earlier and that the intending purchasers did not appear again in spite of their having promised to do so. This would be consistent with the delinquent's having a hand in the disappearance of the bearings, but the evidence is not quite adequate for the purpose of a definite finding that he had himself taken away the bearings or had them taken away by others for sale to the above intending purchasers. The evidence as regards his suggesting that some bearings must be obtained from the unserviceable stock and used in replacing the missing ones is, however, clear and conclusive. Banerjee had actually, in pursuance of the instructions, secured some bearings from the unserviceable stock and kept them in a separate pile, which was subsequently shown to Shri P.S. Mukherjee in course of the preliminary enquiry held by him. The detailed evidence regarding a plan to secure reconditioned bearings from M/s. central Trading Co. through the good offices of one Banerjee of the said Co., who called the delinquent his 'elder brother, also leaves no room for doubt that the delinquent wanted to cheat the authorities by placing them in the empty cartons. The price of the reconditioned bearings, it was suggested, would be about Rs. 500/-. This was a small amount and it would, again, be raised by monthly contributions from the senior staff, so that the plan would not touch the delinquent's pocket to any appreciable extent. I now find on the above evidence that the delinquent, Shri Prafulla Sen, had indeed taken active steps to suppress the loss of the bearings from the notice of the authorities and had also planned to cheat the authorities by putting re-conditioned and unserviceable bearings in the empty cartons. The steps taken by the delinquent would appear to show that he was extremely anxious that the authorities should be unaware of the loss. Such anxiety would, no doubt, be natural if the delinquent had himself taken a hand in the disappearance of the bearings and made an illicit gain for himself by such disappearance. I have, however, already stated that, while the evidence about suppression of the theft and of a plan to mislead the authorities by putting unserviceable and re-conditioned bearings in the empty cartons was conclusive, it was not quite adequate for a definite finding that the delinquent had actually taken away the bearings or had them taken away.
The delinquent held the responsible post of Store-keeper In the Central Stores. The charges, proved against him, do show that he is entirely unfit to hold a responsible charge of this kind, and there is no doubt that he should be removed from his present post. I do not, however, know what other work he is capable of and am, therefore, not in a position to state if he might, with reason, be tried in some other office of the Corporation, in case the appointing authority finds that he should, instead of being discharged,be transferred to a post of lesser consequence, he should be severely warned and the Increment of his pay withheld for three years.'
6. The respondent Chief Executive Officer proposed to discharge the petitioner and directed notice to issue on the petitioner to show cause as to why the proposed penalty should not be inflicted upon him. The petitioner's representation against the proposed penalty proved unavailing and he was discharged (that is to say dismissed) from service with effect from January 6, 1961.
7. The petitioner appealed against the penalty to the Chairman of the State Transport Corporation. That appeal, however, was dismissed. The petitioner now moves against the penalty, under Article 226 of the Constitution, for a Writ of Certiorari quashing the order of penalty and for a Writ of Mandamus restraining the respondent from giving effect thereto.
8. Mr. Somendra Chandra Bose, learned Advocate for the respondents, raised a preliminary point to the effect that the petitioner was not entitled to the protection of Article 311 of the Constitution, not being a member of the Civil Service of the Union or of an all-India Service or of the Civil Service of a State or holding a Civil post under the Union or the State. I propose to decide the preliminary point first of all.
9. There is no dispute that the petitioner is not a member of the Civil Service of the Union nor of an all-India Service nor of the Civil Service of a State. The point is whether he holds a Civil post under the State. The point has received considerable judicial attention and hereinbelow I refer to some of the case laws on the point.
10. In the case of Bibhuti Bhusan Ghosh v. Damodar Valley Corporation : AIR1953Cal581 the question arose whether the petitioner, an employee of Damodar Valley Corporation, was holding a Civil Post under the Union or the State Government and as such entitled to the protection ot Article 311 of the Constitution. Bose, J. (as the Chief Justice then was) negatived the contention with the following observation:--
'It appears to me that the petitioner cannot be regarded as an officer holding a Civil post under the Union or State Government. The agreement of service by which he was employed as an Assistant Engineer shows that the appointment was made by and under an order of the respondent Corporation. The different provisions of the Damodar Valley Corporation Act 1948 indicate that the Corporation has a separate and independent existence and is a different entity from the Union or State Government. This Corporation has properties vested in it under the Act, it has its own fund and its functions and duties are defined in the Act. Section 49 of the Act shows that if there is any dispute between the Corporation and the Participating Governments regarding any matter covered by the Act the same has to be referred to an arbitrator for decision and the decision of the Arbitrator shall be final and binding on the parties. It may be that this Corporation has been set up by the Government for the purpose of discharging certain functions of the Union or the State Government, but there can be no doubt that it has a separate existence and cannot be considered as a part of the Union or State Government. Just as the Corporation of Calcutta discharges certain duties and functions which are to foe performed by the State Government so also certain functions and duties of the Union and the State Governments have been allocated to the Damodar Valley Corporation, but the Corporation performs these duties and functions as a separate entity.
The agreement of Service of the petitioner is not In the form in which Government contracts are entered Intoand does not comply with the requirements of Section 1/5, Government or India Act, 1935 or Article 299 of the Constitution. This shows that the petitioner is not an employee of the Government. I am unable to hold that the petitioner is an officer holding a civil Post under the State or the Union Government.'
10a. In the case of Nagendra Kumar Roy v. Commissioner for the Port of Calcutta, (S) : AIR1955Cal56 the question for consideration was whether the petitioner, an employee under the Port commissioners, became entitled to the protection of Article 311 of the Constitution because the Port Commissioners had adopted the Fundamental Rules of service. Negativing the contention, Sinha, J. observed as follows:--
'I now come to the argument advanced by Mr. Roy, on behalf of the petitioner. He argues that his client has been dismissed wrongly because there was an enquiry behind his back and he had no reasonable opportunity ot defending himself. I pointed out that Article 311 did not apply because the petitioner was not a civil servant of the Government. Mr. Roy, while admitting that it did not apply in 'terms, tried to argue that the position was the same because the Commissioners had adopted the fundamental rules. I do not see, however, how that makes any difference. Anyone may adopt the fundamental rules, that is to say, agree to abide by similar rules, but that cannot make the employees 'civil servants' or attract the provisions of Article 311.'
10b. The same question again cropped up for consideration in Damodar Valley Corporation v. Provat Roy, 60 Cal WN 1023. In that case Bachawat, J. held that the Damodar Valley Corporation being an independent statutory Corporation its employees were not entitled to the protection of Article 311 of the Constitution and the Government Servants Conduct Rules did not apply to them. Such an employee is not entitled to any enquiry or to the framing of any charge before he can be lawfully dismissed.
11. In the case of Suprasad Mukherjee v. State Bank of India : (1961)IILLJ736Cal the question for consideration was whether the petitioner, an employee of the State Bank of India, was a Civil Servant under the State or the Union. Holding that he was not, Sinha, J., relied on a decision of the Patna High, Court in Baleshwar Prosad v. Agent, State Bank of India, Gaya : AIR1958Pat418 and observed:
'The position is that the petitioner is not a Civil servant under the State or the Union, but is an employee of a limited company incorporated under a special statute. Therefore, the provisions of Article 311 do not apply.'
12. In the case of Lachmi v. Military Secretary Government of Behar : AIR1956Pat398 Das, C. J. gave a definition of Civil post under the State in the following language:
'I think that the expression 'civil post under the State' means that the post is under the control of the State; that is, the State can abolish the post if it so desires, or the State can regulate the conditions subject to which the post is or will be held. The real test, therefore, is the immediate or ultimate control which is exercised by the State with regard to the post in question.'
13. I respectfully agree with the meaning ascribed by his Lordship to the expression 'civil servant under the State.'
14. The view expressed by the Patna High Court on this point in Subodh Ranjan Ghosh v. Sindri Fertilisers and Chemicals Ltd. : (1957)IILLJ686Pat Is also consistent with the view expressed by the Calcutta High Court in respect ofemployees of statutory Corporations. Observed Ramaswami, C. J.:--
(a) 'It appears that the President of India holds 2,99,999 shares and the remaining share has been allotted to the Secretary of the Production Department. Mr. B.C. Ghose also referred to Article 67 of the Articles of Association and argued that the Directors are appointed by the President who is also authorised to remove any Director from his office in his absolute discretion. It is contended on behalf of the petitioner that the management of the Company is subject to the full control of the Union Government, not only in matters of policy but also in other matters.'
* * * * * * * * (b) 'But in the eye of law the Company is a separate legal entity and has separate legal existence. The Company is a different person altogether from the subscribers to the memorandum, namely, the President or the Secretary to the Government of India. It may be that after incorporation the business is precisely the same as it was before and the same persons are managers and the same hands receive the profits. Still in the eye of law the Company is not the agent of the Union Government or trustee for them.
There is, however, material to show in this case that financially the Company is a separate entity from the State Government. On page 10 of the Balance Sheet there is an entry with regard to loans from the Government of India to the extent of Rs. 5,00,00,000 which is secured by a floating charge on all the assets of the Company. There 13 an item with regard to interest to the extent of Rs. 26,00,000 and odd.'
******** (c) 'In the eye of law the Company is its own master and it cannot be regarded as an agent of the Government any more than a company can be regarded as an agent ot the shareholders. It follows, therefore, that the servants Of the Company are not the servants of the Union Government and Arts. 311 and 320 of the Constitution have no application to the case of the servant of the Sindri Fertilizers and Chemicals Limited.'
15. Relying on two English decisions in Salomon v. Saloman and Co. Ltd., 1897 AC 22 and British Thomson Houston Co. v. Sterling Accessories Ltd., (1924) 2 Ch. 33, his Lordship further observed:
'The principle laid down in these two authorities supports the conclusion which I have already drawn, namely, that the company has an independent legal entity and an independent legal existence and it cannot be said to be a department of the State Government or its delegate ot agent. It is true that the ownership, control and management of the Company is completely vested in the President of India but I do not think that the Court is entitled tor determination of the question in the present case to 'pierce the veil of corporate entity and to examine the reality beneath''.
16. The inapplicability of Article 311 of the Constitution to employees of local authorities constituted under different statutes, although some of the activities of such statutory body were controlled by the State or the union, was emphasised by the Allahabad Full Bench decision in Mohammed Ahmad Kidwai v. Chairman Improvement Trust, Lucknow : (1958)IILLJ281All .
17. Two other cases, which were cited at the Bar need not concern me, because they have not any direct application to the point that I have to decide, in the case of Premprakash Dixit v. State of Punjab the Government had taken over the functions of Municipal Water Works and had appointed the petitioner in that case as a Superintendent. In those circumstances Kapur, J. held that the petitioner held a civil post under the Government and Article 311 applied. The circumstances in that case are completely different from the circumstances of this case and need 'not concern me.
18. The decision of the Patiala and East Punjab Union High Court in Marian Singh v. Patiala and East Punjab States Union, AIR 1954 Pepsu 136 did not concern itself with the employee of any statutory Corporation and is, therefore, of no assistance in the present context.
19. From the aforementioned cases the following principles may be deduced, namely, (i) a statutory Corporation has a separate and independent existence and is a different entity from the Union or the State Government with its own property and its own fund and the employees of the corporation do not hold civil post under the Union or the State, (ii) it makes little difference in this respect, even though the Union or the State holds the majority shares of the Corporation and controls its administration by policy directives or otherwise, (iii) it also makes little difference if such a statutory Corporation imitates or adopts the Fundamental Rules to govern the service conditions of its employees, (iv) although the ownership, control and management of the statutory Corporation may be, in fact, vested in the Union or State, yet then in the eye of law the Corporation is its own master and is a separate entity and its employees do not hold any 'civil post under the Union or the State' (v) if, however, the Stale or the Union controls a post under a statutory Corporation in such a manner that it can create or abolish the post or can regulate the conditions subject to which the post is or will be held and if the Union or the State pays the holder of the post out of its own funds, then although the post carries the name of an office of the statutory Corporation, it may be a civil post under the State or the Union.
20. Bearing the above principles in mind I have now to see what is the real character of the Calcutta State Transport Corporation.
21. Section 3 of the Road Transport Corporation Act authorises the State Government to establish, by notification in the official gazette, a Road Transport Corporation for the whole or any part of the State.
22. Under Section 4 of the Act,
'Every Corporation shall be a body corporate by the name notified under Section 3 having perpetual succession and a common seal, and shall by the said name sue and be sued.'
23. The Calcutta Road Transport Corporation was established by such a notification, which is set out below:
'No. 3929 W.T.: 10th June I960. In exercise of the power conferred by Section 3 of the Road Transporl Corporation Act 1950 (LXIV of 1950) the Governor, having regard to;
(a) the advantages to the public, trade and industry by development of road transport in the areas comprising Calcutta and the Districts of 24 Parganas, Howrah and Hooghly, in the West Bengal (hereinafter referred to as the said areas).
(b) the desirability of co-ordinating the road transport with rail transport in the said area and
(c) the desirability of extending and improving the facilities for road transport in the said areas and providing an efficient and economical system of road transport service therein.is pleased hereby to establish with effect from 15th June 1960, Road Transport Corporation from the said areas under the name 'Calcutta State Transport Corporation.'
Explanation: In this notification 'Calcutta' means Calcutta as defined in Section 3 of the Calcutta Police Act, 1866 (Bengal Act IV of 1866) together with the suburbs of Calcutta a defined by Notification under Section 1 of the Calcutta Suburban Police, 1866 (Bengal Act II of 1866).'
24. Aforementioned Corporation is therefore, an incorporated body and is an entity different from the State Government.
25. Under Chapter 4 of the aforementioned Act, provisions have been made for creation of a separate capital and funds for the Corporation and the Corporation has been authorised to borrow, to make budget for receipt and expenditure, to spend and to distribute the net profits. These are additional indications of the existence of the Corporation as a body different from the State. The employees, of the Corporation are not therefore, person holding civil posts under the State Government.
26. Mr. Salil Kumar Hazra, learned Advocate for the petitioner, invited my attention to Sections 34, 44 and 45 of the said Act which invest the State Governments with powers to give directions to and to make rules and regulations, for the Corporations and contended that the control exercisable by the State Government over the Corporation virtually made the Corporation a part of the State Government or its administration. I have already observed that the power of control, however great, invested in the State Government over the Corporation will not make the Corporation a part of the State Government and its separate legal entity will remain, in spite of the administrative control exercised by the State Government.
27. Mr. Hazra next invited my attention to Section 47B of the Road Transport Corporation (West Bengal Amendment) Act 1959 and particularly to Sub-section (1) Clauses (f) ant) (h) thereof which read as follows:
'(f) Persons employed by the State Government in connection with the State Undertaking and continuing in office immediately before the establishment of the Corporation shall be employed by the Corporation on such terms and conditions, not less advantageous than what they were entitled to immediately before such establishment, as may be determined by the Corporation;
(g) x x x x x (h) all rules and orders made and notifications issued by or under the authority of the Stale Government in respect of the State Undertaking, and continuing in force immediately before the establishment of the Corporation, shall, in so far as they are not inconsistent with the provisions of this Act, continue in force after such establishment as if they had been made or issued by the appropriate Authority under this Act until they are altered, repealed or amended.'
Relying upon the aforesaid clauses, Mr. Hazra contended that even if Article 311 of the Constitution did not itself apply, the terms and conditions of the service of the petitioner, as they were when the petitioner was serving under the State Government, must not become less advantages to him when his employment came under the Corporation and that would again attract the provisions of Article 311 of the Constitution. This argument is not very well-conceived. The Corporation has now a set of regulations governing disciplinary actions of which Regulations 37, 38 and 39 ard to the following effect:--
'37. The appointing authority or any particular postor an authority which is not subordinate to such appointing authority may, if so authorised by the Corporation, impose any penalty specified in regulation 36 upon employees of the Corporation.
38. Subject to the condition that no employee may be removed or dismissed by an authority subordinate to that by which he was appointed, the Corporation may authorise its officers to impose such penalties as may be specified by the Corporation, upon employees subordinate to such punishing authority.
39. No order of dismissal, removal or reduction shall be passed on an employee of the Corporation (other than an order based on facts which had led to his conviction in a criminal court) 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 reasonable time, to put in a written statement of his defence and to stale whether he desires to be heard in person, tf he so desires or if the authority concerned so directs, an oral inquiry shall be held. At that inquiry oral evidences shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine life witness, 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 regulation shall not apply where the employee concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of this regulation may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is difficulty in observing exactly the requirements of the regulation and those requirements can be waived without injustice to the person charged.'
The above quoted regulations are in no way less advantageous to the petitioner than the terms and conditions on which he held his employment under the State Government and, therefore, 1 do not place any value on this branch of the argument.
28. The question that remains for my consideration is whether the provisions of the Act and the Regulations thereunder framed were violated in dismissing the petitioner.
29. Mr. Hazra contended that the petitioner was originally appointed by the Director General of State Transport. The equivalent ot that office in the Calcutta State Transport Corporation, Mr. Hazra contended, was that of the Chairman; the order of dismissal of the petitioner was passed by the Chief Executive Officer, who was said to be an officer subordinate to Chairman and as such the dismisal order was baa. This argument ignores the provisions of sections 14 and 15 of the Road Transport Corporation Act 1950, which I set out below:
'14. Officers and servants of the Corporation
(1) Every Corporation shall have a Chief Executive Officer or General Manager and a Chief Accounts Officer appointed by the Stale Government.
(2) A Corporation may appoint such other officers and servants as it considers necessary for the efficient performance of its functions.
(3) The conditions of appointment and service and the scales of pay of the officers and servants of a Corporation all-
(a) as respects the Chief Executive Officer or Genera! Manager and the Chief Accounts Officer be such as may he prescribed, and
(b) as respects the other officers and servants be such as may, subject to the provisions of Section 34, be determined by regulations made under this Act.
15. The Chief Executive Officer or General Manager and the Chief Accounts Officer-
(1) The Chief Executive Officer or General Manager shall be the executive head of the Corporation and all other officers and servants of the Corporation shall be subordinate to him.
(2) The Chief Accounts Officer shall have the right to record his views on every proposal involving expenditure from the fund of the Corporation prior to the consideration of such proposal by Corporation.'
If under the present set up, the Chief Executive Officer is the executive head of the Corporation, his position is equivalent to that of the head of the transport service when it used to be managed by the State Government, and the order of dismissal passed by him cannot be challenged as made by a person subordinate to the authority which had appointed the petitioner.
30. Mr. Hazra also contended that the misconduct, if any, had been committed prior to the time when the Calcutta State Transport Corporation took over the transport business of the State Government and therefore the Corporation could not penalise the petitioner for misconduct not committed against itself. Mr. Hazra emphasised on Section 47B(1)(c) of the Road Transport Corporation (West Bengal Amendment) Act 1959 and contended the Corporation could continue suits and other legal proceedings instituted by or against the State Government but not disciplinary proceedings. I do not think much of the argument. The Corporation look over the entire transport undertaking of the State Government and all its rights and obligations. This will appear from Section 47B(1)(a) and (b) of the Road Transport Corporation (West Bengal Amendment) Act, 1959. I am of the opinion that the-taking over of all rights would include the right to proceed with pending disciplinary proceedings.
31. Mr. Hazra lastly, contended that the rules ot natural justice were violated in the departmental proceedings and the proceedings were also vitiated by mala fide conduct of the same. In elaboration of this branch of argument, he contended, in the first place, that the petitioner was given only forty-eight hours time to submit his explanation to the charges, which was too short for all practical purposes. I cannot make much of this argument. The petitioner never asked for more time to submit his explanation nor did he ever before complain that he had suffered injury because of paucity of time to submit his explanation. Therefore, it is too late for him now to complain that the rules of natural justice were violated in the departmental enquiry. Mr. Hazra also argued that the petitioner was not personally heard again in the matter of the proposed penally. In my opinion this was not necessary and I repel the contention.
32. All the arguments advanced in support of the Rule fail and I discharge the Rule. I do not, however, make any order as to costs.