Citation : 2015 Latest Caselaw 511 ALL
Judgement Date : 15 May, 2015
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - A No. - 19934 of 2009 Petitioner :- Ram Narayan Gupta Respondent :- State Of U.P. & Others Counsel for Petitioner :- Vishnu Shanker Gupta,Ashok Khare,Rajesh Kumar Patel Counsel for Respondent :- C.S.C.,S.K.Rai Hon'ble Pradeep Kumar Singh Baghel,J.
1. The petitioner was a Clerk-cum-Cashier in Banda District Cooperative Bank Limited, Banda. He has preferred this writ petition for issuance of a writ of certiorari to quash the order of his termination dated 23 December 2008 passed by the Administrator and consequential dismissal order dated 30 December 2008 passed by the Secretary/ General Manager.
2. The essential facts are that the petitioner was initially appointed as a Clerk-cum-Cashier in the year 1980. He was placed under suspension on 28 May 2003 by the fourth respondent. A charesheet was served upon him on 4 June 2003, wherein two charges were framed against him: (i) a cheque no. 006580 dated 14 August 2001 for an amount of Rs. 10,00,000/- was issued by Banda Urban Cooperative Bank Ltd. and without verifying the signatures it was passed in spite of the fact that the signature on the cheque appears to be forged. The petitioner without verifying the signatures, has made the payment. Due to the negligence of the petitioner, the said fraudulent transaction took place; (ii) On 15.11.2001 the petitioner had directly involved for clearing cheque no. 21342 dated 11.11.2001 for an amount of Rs. 1,60,000/-.
3. It is stated that the petitioner, without any delay, submitted his reply on 23 June 2003. He had denied the charges levelled against him. The petitioner also made a prayer that he may be permitted to examine Ram Babu Pandey and Secretary of the Bank as witnesses. A copy of the reply has been filed as annexure-2 to the writ petition.
4. Aggrieved by his suspension order, the petitioner had preferred Writ Petition No. 30185 of 2003 before this Court, which was disposed of on 23 July 2003 by issuing a direction upon the disciplinary authority to appoint an enquiry officer within two months and the disciplinary proceedings be concluded within stipulated period.
5. The order of this Court dated 23 July 2003 was served upon the respondents. The Secretary/ General Manager, the fourth respondent appointed a new enquiry officer Mahabir Singh, Deputy General Manager. The enquiry officer did not take any step for conducting an enquiry. It is averred in the writ petition that the matter continued to remain pending without any progress in the enquiry proceedings and the petitioner was kept under suspension. The petitioner preferred another Writ Petition No. 6661 of 2006 for a direction upon the respondents to conclude the enquiry proceedings. The said writ petition was finally disposed of on 2.2.2006 with a direction upon the enquiry officer to conclude the enquiry proceedings within one month.
6. The Board of Directors of Banda District Cooperative Bank within ten days passed a resolution to dismiss the petitioner from service. A copy of the resolution is on the record as annexure-6 to the writ petition. From the resolution it was evident that one Hanuman Prasad was changed and Mahabir Singh was appointed as a new enquiry officer, who had issued notices to the petitioner and since he did not receive any response, he submitted an enquiry report dated 12.8.2005.
7. From the record it appears that U.P. Cooperative Institutional Service Board did not approve the dismissal order of the petitioner. On 18 March 2008 a direction was issued to conclude the enquiry proceedings against the petitioner.
8. In compliance of the order of the Institutional Service Board, on 4.4.2008 the fourth respondent passed an order appointing one Atul Chandra Srivastava, Statistical Assistant as enquiry officer to conclude the enquiry within a month. In the said order it is recorded that the departmental enquiry could not be completed due to the transfer of earlier enquiry officer. It is averred in the writ petition that the newly appointed enquiry officer on 6/8 May 2008 issued a notice calling upon the petitioner to submit his reply within a week. The enquiry officer erroneously ignored the reply submitted by the petitioner on 23 June 2003 in response to the chargesheet dated 4 June 2003. The petitioner states that he submitted a fresh reply on 27 May 2008 denying the charges levelled against him.
9. It is stated in the writ petition that after submission of the reply by the petitioner to the chargesheet the enquiry officer did not initiate any proceeding whatsoever and not a single date was fixed by the enquiry officer for conducting the enquiry proceedings and submitted a reply to the disciplinary authority. A show cause notice was issued to the petitioner on 21 July 2008 by the fourth respondent. Along with the show cause notice a copy of the enquiry report was served upon the petitioner. On 9 August 2008 the petitioner submitted the reply to the show cause notice.
10. The fourth respondent on 2 September 2008 communicated the petitioner that the Administrator had scheduled the hearing for 6.9.2008 affording an opportunity of hearing to the petitioner. The petitioner claims that no hearing took place on 6.9.2008 and a fresh date 12 September 2008 was fixed as the next date for hearing. On 4.10.2008 the petitioner was intimated to appear before the Administrator on 16.10.2008. The petitioner made a representation on 15 October 2008 praying for deferment of the hearing for a period of fifteen days. On 11.11.2008 the fourth respondent fixed 26 November 2008 for hearing. On the said date the petitioner claims that he appeared before the Administrator and submitted his representation. On 1.12.2008 the petitioner made an application for the payment of his subsistence allowances, which were withheld from March 2006 and thereafter paid only for the months of April and May 2008.
11. It is stated that without holding any further enquiry on 23 December 2008 the Administrator took a decision for dismissing the petitioner from service. The said papers were forwarded to the U.P. Cooperative Institutional Service Board, which accorded its approval. Consequently, on one day before petitioner's date of superannuation i.e. on 30.12.2008 the fourth respondent passed the order of dismissal. The petitioner has also raised a grievance that he was placed under suspension on 28.5.2003 and the final order was passed on 30.12.2008 after a lapse of five years and he was not paid his subsistence allowance.
12. A counter affidavit has been filed on behalf of the respondents nos. 3 to 5.
13. It is contended on behalf of the petitioner that the order has been served upon the petitioner after his retirement thus the entire disciplinary proceedings have elapsed as the petitioner stood retired on 31 December 2008. It is further submitted that the petitioner is governed under the provisions of the U.P. Cooperative Societies Employees Service Regulations 19751. There is no provision under the said Regulations to continue the disciplinary proceedings after the retirement of an employee. The enquiry proceedings were initiated on 28.5.2003 then the petitioner was placed under suspension. The proceedings have been concluded only on 30 December 2008. The said decision was taken after this Court intervened in the matter in Writ Petition No. 6661 of 2006 by issuing a direction to the enquiry officer to bring the enquiry proceedings to its logical conclusion within a period of one month.
14. It is submitted by the petitioner that new enquiry officer was appointed under the order dated 4.4.2008 and at no point of time any extension of time was sought from the Court by the respondent authorities even after the expiry of one month stipulated in the direction of this Court dated 2.2.2006. It is urged on behalf of the petitioner that entire proceedings are liable to be quashed on the ground of gross delay in conclusion of the enquiry proceedings and also on the ground of infraction of the directions contained in the judgement of this Court dated 2 February 2006.
15. The petitioner has placed reliance on the judgements of the Supreme Court in State of A.P. v. N. Radhakishan2, and P.V. Mahadevan v. M.D., Tamil Nadu Housing Board3. It is further submitted that no oral enquiry proceeding has been conducted by the enquiry officer and the procedure laid down under Regulation 85 of the Regulations 1975 has not been followed. The enquiry officer never fixed any date nor conducted any enquiry proceeding whatsoever and without any enquiry proceeding, proceeded to submit his enquiry report.
16. Learned counsel for the petitioner has drawn the attention of the Court to paragraph nos. 30, 31, 32, 49, 50 and 51 of the writ petition, wherein the aforesaid pleading has been made. The said pleading has not been effectively denied in the counter affidavit.
17. Learned counsel for the petitioner has also relied on the judgements in Subahash Chandra Sharma v. Managing Director, U.P. Co-op. Spg. Mills Federation Ltd., Kanpur and another4 and Lalta Prasad Shukla v. State of U.P. & others5. It is submitted that the Institutional Board ought to have given opportunity before giving its concurrence. In support of the said submission, learned counsel for the petitioner has placed reliance on a judgement of this Court in Umesh Narain Tripathi v. State of U.P. & others6.
18. Learned counsel for the petitioner has also relied on a judgement of the Supreme Court in Bachhittar Singh v. State of Punjab and another7, wherein it is laid down that the dismissal order shall be effective from the date of communication.
19. Learned Counsel for the fourth respondent submits that the petitioner was found guilty on two charges of payment of Rs. 10 lac by cheque dated 14.8.2001 and other payment of Rs. 1,60,000/- through the cheque dated 11.11.2001. It is submitted that the Institutional Board has granted concurrence to the dismissal order of the petitioner and there is no provision that the Institutional Board should give the opportunity. It is further submitted that during the enquiry there was no need of oral evidence as the charges were established on the basis of documents alone. It is lastly urged that the petitioner retired on 31 December 2008 and the dismissal order had been passed on 30.12.2008 thus the order has been passed before the retirement of the petitioner.
20. It is also urged by learned counsel for the Bank that on 31 October 2007, in the arbitration proceeding also, it was decided to recover the alleged amount in question from the post retiral benefits of the petitioner and two others. Against the arbitral award dated 31.10.2007 and resolution passed by the Board of Directors dated 15 April 2010 as also the notice dated 3 June 2010, the petitioner approached the U.P. Cooperative Tribunal in Appeal No. 30 of 2011 (Chandrapal Singh and others v. Banda Urban Cooperative Bank & others) which has been dismissed by order dated 8 May 2013.
In the counter affidavit the said statement was not stated, however in supplementary counter affidavit the Bank has brought this fact on record.
21. In the supplementary rejoinder to the said supplementary counter affidavit, the petitioner has stated that the order of the arbitration is a separate cause of action and the petitioner should take recourse to the remedy available under the law.
22. I have heard learned counsel for the parties and perused the record.
23. A chargesheet was served upon the petitioner on 4 June 2003. In the chargesheet two charges were framed. It recites that a cheque dated 14 August 2001 for an amount of Rs. 10 lacs was issued by the Banda Cooperative Bank Limited but it was not clear as to whom the payment has been made. An inference has been drawn that the petitioner was involved in withdrawing the said amount.
24. It was urged that on 15.1.2001 the petitioner had directly involved in clearing the cheque dated 11.11.2001 for an amount of Rs. 1,60,000/-.
25. The petitioner, in his reply, has denied the said charge and has stated that the documents, enclosed along with the chargesheet, have not been supplied to him in spite of his repeated requests and as regards the second charge, the petitioner has stated that he was not responsible for the said lapse as on 14 August 2001 Ram Babu Pandey was the concerned Counter Incharge (iVy izHkkjh) in Branch D.C.B., Banda. It was the duty of Sri Ram Babu Pandey to tally the signatures of the person on the cheque, who has received the amount.
26. It is stated that Sri Ram Babu Pandey had issued token after being satisfied about the said signatures. Thus it was the duty of the Passing Officer to tally the signatures. It is not the duty of the cashier to tally the signatures and his only duty is to comply the pay cash order and the token number marked on the cheque. On 14 August 2001 only the petitioner's duty was at Cash Counter and since on 15 August 2001 there was a National Holiday, therefore, there was a huge rush of customers.
27. It has also been stated that since it was a huge amount, therefore, the cashier of the Urban Bank Praveen Kumar Pandey and one employee Jagdish Kumar were also present there. It is also stated that the authorized officer of the Bank has mentioned 'pay cash' to Sri S.K. Dixit. The petitioner had asked the said cashier the whereabouts of Sri S.K. Dixit. In response, Sri Praveen Kumar Pandey told him that Sri S.K. Dixit is not present there at that time but he had made two signatures before him and he has given the token to Sri Praveen Kumar Pandey. Since the petitioner knew Praveen Kumar Pandey, who was the employee of the Urban Bank and he usually comes to the Bank for the transactions, he had made the payment to Praveen Kumar Pandey who has produced the token.
28. One of the submissions of learned counsel for the petitioner is that there was inordinate delay in the enquiry. I find sufficient force in the said submission. The petitioner was placed under suspension on 28 May 2003 and he was served a chargesheet on 4 June 2003 and without any delay the petitioner had submitted his reply on 23 June 2003 denying the allegations. He challenged the suspension order before this Court. The writ petition8 was disposed of on 23 July 2003. This Court issued a direction to conclude the enquiry within two months and to change the enquiry officer other than Sri Hanuman Prasad within two weeks. The enquiry officer was changed on 12.12.2003 and one Sri Mahabir Singh was appointed as an enquiry officer, however, the direction of the Court to complete the enquiry within two months was not complied with. The petitioner again filed a writ petition9 in 2006 after three years and in the said writ petition the Court directed to complete the enquiry within one month on 2 June 2006. From the record it appears that in a hot haste, without completing the enquiry, a resolution was taken on 15 February 2006 by the Board of Directors of the Bank to dismiss the petitioner. Thus, it is clear that without any justifiable reason the enquiry was kept pending from 2003 to 2008. There is no allegation against the petitioner that he tried to delay the proceedings. The respondents have not offered any plausible explanation that why the order of the Court of 2003 to complete the enquiry in two months, has not been complied with. It is also established from the record that the Department did not lay any oral evidence and no witness was examined in support of the charge by the Department, and the request of the petitioner to examine two witnesses Ram Babu Pandey and the Secretary was not accepted by the Department. This fact has been stated by the petitioner in paragraph nos. 49, 50 and 51 of the writ petition, which reads as under:
"49. That even otherwise with regard to dismissal, which is a major penalty it is incumbent upon the respondents to hold oral enquiry proceeding.
50. That at no point of time any evidence has been led against the petitioner in the enquiry proceedings neither the statement of the witnesses has been recorded nor any of the documents has been proved by adducing evidence.
51. That equally the petitioner was precluded from leading evidence to establish his defense. Despite a specific request by the petitioner in submitting his reply for permission to cross-examine Ram Babu Pandey as also the Secretary neither of the said persons were summoned nor their statements recorded nor opportunity afforded to the petitioner to cross-examine them."
29. The aforesaid averments have not been specifically denied in the counter affidavit. Paragraph nos. 34, 35 & 36 of the counter affidavit are quoted as under:
"34. That the contents of paragraph No. 49 of the writ petition are not correct hence denied. Further it is to be submitted here that the departmental proceeding has been completed and opportunity has been given to the petitioner and if the petitioner has not participated then he cannot say that oral enquiry has not been conducted and when the charges have been proved on the basis of records then oral enquiry is meaningless.
35. That the contents of paragraph No. 50 of the writ petition is not correct hence denied. Further it is to be submitted here that the petitioner has been provided opportunity, in spite of that if any evidence is required to him he may ask the same from the enquiry officer or from the Secretary/ General Manager, but the same has not been done by the petitioner.
36. That the contents of paragraph No. 51 of the writ petition are not correct hence denied. Further it is to be submitted here that if there is any grievance to the petitioner, the same may be raised before the authority concerned but the same has not been raised hence it appears that only just to make out a case, the petitioner is making this contention before the Hon'ble Court."
30. From a perusal of the pleadings, extracted hereinabove, it would make it clear that the respondents have tried to give an evasive reply.
31. The Regulation 85 of the Regulations, 1975 provides a detail procedure including oral enquiry proceeding, in case a major penalty is inflicted.
32. It is a trite law that in case of major penalty the oral enquiry is mandatory, even if the employee does not participate in the enquiry, the Department has to establish the charges or oral evidence. If the documentary evidence is filed against the delinquent, those documents have to be proved by the oral evidence. In the present case it is established that no oral evidence has been led by the Department. The Supreme Court in the case of State of A.P. v. Radhakishan10, has laid down that the unexplained delay in conclusion of the proceeding causes serious prejudice to the employee:
"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
33. The similar view has been taken by the Supreme Court. The Supreme Court has quoted with approval the judgement of State of A.P. (supra) in the case of P.V. Mahadevan v. M.D., Tamil Nadu Housing Board11.
34. As far the submission of learned counsel for the petitioner that a discriminatory treatment has been meted out to him as no action has been taken against the similarly placed persons, the respondents have failed to bring on record any justifiable reason for not taking any action against Ram Babu Pandey, the clerk-cum-cashier, the another employee Jitendra Pal Singh, who was the Branch Manager, as no major penalty was imposed against them.
35. Learned counsel for the petitioner has placed reliance on a judgement of the Supreme Court in the case of State of U.P. and others v. Raj Pal Singh12, wherein the Supreme Court has held that if the charges are same and identical in relation to same incident, the different treatment would be discriminatory.
"5. Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges levelled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees.
6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution."
36. The submission of learned counsel for the Bank that no oral enquiry was required as the matter relates to the documents, I find it difficult to accept the said submission. The Supreme Court in the case of State of Uttar Pradesh and others v. Saroj Kumar Sinha13 held that oral evidence is necessary in case major penalty is imposed as some witnesses should be produced to prove the documents. Relevant part of the judgement reads as under:
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
37. The Supreme Court as well as this Court in a long line of decisions have laid down the law that in absence of any oral evidence the document cannot be proved. A Division Bench of this Court in the case of U.P. Upbhokta Sahkari Sangh Ltd. Lucknow through its Managing Director and another v. Vijay Shanker Rai14, has held that under Regulation 87 the opportunity should be given. The relevant part of the order is quoted below:
"11. We, therefore, modify the order of the Hon'ble Single Judge and while upholding the judgment under appeal setting aside the dismissal order, modify rest of the directions and and provide that the appellant is at liberty to take further action for seeking prior concurrence of the Board under Regulation 87 in accordance with rules. The Board shall consider the matter after affording opportunity of hearing to both the sides and shall take decision as expeditiously as possible, preferably within a period of three months from the date of receiving proposal, if any, from the appellant along with the certified copy of this order."
38. The Supreme Court in the case of Bhagirathi Jena v. Board of Directors, O.S.F.C. and others15 has examined the issue as to whether disciplinary proceedings can continue after the retirement of the applicant and about the reductions from his post retiral benefits in respect of any loss caused by him. The Court held as under:
"7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
39. The judgement of the Supreme Court in Bhagirathi Jena (supura) has been followed by a Division Bench of this Court in the case of Rajya Krishi Utpadan Mandi Parishad, U.P. & Anr. v. Public Service Tribunal, U.P. & Ors.16.
40. Coming to the next submission of learned counsel for the petitioner that the entire enquiry has been lapsed as the petitioner was served a copy of the dismissal after his retirement. It is an admitted fact that the order of dismissal dated 30.12.2008 was served upon the petitioner on 5 January 2009. The petitioner has stated in paragraph-57 of the writ petition that the order of dismissal was served upon him on 5 January 2009. This fact has not been denied in paragraph-41 of the counter affidavit. Thus it is established that the dismissal order dated 30.12.2008 was, for the first time, communicated after the retirement of the petitioner. The Supreme Court in Bachhittar Singh (supra) has held that the order has to be communicated to the person and unless the order is communicated, it has a provisional in character. The Court has observed as under:
"10....Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."
41. No explanation has been furnished by the respondent Bank that why the dismissal order was not sent under the registered cover or it was not served upon him on 31 December 2008, when the petitioner was present in the office. In fact there is no explanation at all to send the dismissal order by special messenger. There is nothing on the record to indicate that the order was served upon the petitioner on or before 31 December. Thus in absence of any provision under Regulations 1975 to continue disciplinary proceedings after the retirement, in my view the enquiry has elapsed.
42. As regards the submission of learned counsel for the respondents that in arbitration proceeding the petitioner was found guilty, the Bank has brought on record the order of the Tribunal. The order has been brought on the record as annexure-1 to the supplementary affidavit. From a perusal of the order it appears that Jitendra Pal Singh, the Bank Manager had preferred an appeal against the arbitral award dated 31.10.2007 arising out of the proceeding no. 26/2003-04. From a perusal of the appellate order, it is evident that Jitendra Pal Singh was found guilty and a direction was issued for the recovery of Rs. 10 lacs from Jitendra Pal Singh, Ram Babu Pandey and the petitioner. No specific finding has been recorded against the petitioner in the said award and one-third of the amount has been directed to be deducted from all the three employees.
43. The submission of learned counsel for the petitioner that only he has been singled out for the discriminatory treatment, is established from the aforesaid order as no disciplinary proceeding was initiated against Jitendra Pal Singh and Ram Babu Pandey, who have been found guilty in the arbitration proceedings. For this reason also the impugned orders are liable to be set aside.
44. After careful consideration of the matter, I am of the view that the impugned orders dated 23.12.2008 and 30.12.2008 are unsustainable and are liable to be quashed. The impugned orders are accordingly quashed. The petitioner stood retired in 2008 and in absence of any provision under the Regulations 1975 a fresh enquiry cannot be conducted against the petitioner after his retirement.
45. The writ petition is thus allowed with a direction to the respondents to pay the salary and the other consequential benefits to the petitioner within four months.
46. No order as to costs.
Order Date :- 15.5.2015
DS/-
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