Citation : 2023 Latest Caselaw 35030 ALL
Judgement Date : 14 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:237373-DB Reserved on 22.11.2023 Delivered on 14.12.2023 Court No. - 40 Case :- WRIT - C No. - 2299 of 2022 Petitioner :- Pawan Kumar And Others Respondent :- Union Of India And Others Counsel for Petitioner :- Pradeep Kumar Mishra Counsel for Respondent :- A.S.G.I.,Hari Narayan Singh,Santosh Kumar Mishra,Vijay Kumar Dixit Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Sri Rajesh M. Sinha, learned Senior Advocate assisted by Sri Pradeep Mishra, learned counsel for the petitioners and Sri Santosh Kumar Mishra, learned counsel for the respondents-Food Corporation of India.
2. By means of instant writ petition, the petitioners sought for the following reliefs:-
"i) to issue a writ, order or direction in the nature of certiorari quashing the impugned exemption notification dated 06.07.2016 and its extension u/s 31 of CL( R & A) Act, 1970 issued by FCI. (Subject matter of writ petitions (civil) no.7627 of 2016 & 7241/16 filed before Hon'ble High Court of Delhi.
ii) to issue a writ, order or direction in the nature of certiorari quashing the impugned guidelines dated 12.07.2016 issued by FCI-Respondent no.2 to its general managers for implementation of the aforesaid exemption notification vide letter no.IR-L/31 (10)/2004/vol. X dated 12.07.2016, issued by FCI (Subject matter of the W.P. (C) No.6060 of 2021 pending adjudication before Hon'ble High Court of Delhi and WP (C) 16329/2021 pending adjudication before Hon'ble Kerala HighCourt and WP (C) 3438/2021 pending adjudication before Hon'ble Gauhati High Court).
iii) to issue a writ, order or direction in the nature of certiorari quashing the order dated 30.10.2021 bering no.IR-L/14(7)/2021 issued by assistant general manager (IR-L)-respondent no.2, whereby directing the executive director (north) FCI zonal officer (north) Noida (U.P.)-respondent no.3 to deploy the contract Labour at FCI FSD Hapur- U.P. (notified depot) & transferring En-bloc 259 regular labourers of FCI FSD Hapur- U.P. to FCI FSD Chandari (Kanpur)- Uttar Pradesh.
iv) to issue a writ, order or direction in the nature of certiorari quashing e-tender notice dated 21.01.2022 issued by respondent no.2 to engage the contract labour at FCI FSD Hapur-U.P. (notified depot).
3. Before adverting to the merits, it would be appropriate to refer to the background of the case. A news item appeared in the Times of India sometimes in 2014, wherein it was reported that a number of loaders working with the Food Corporation of India (for short 'FCI') are earning around four lacs per month and also reflected abuse of government funds, inefficiency and reluctance on the part of the authorities to act sternly against such people, who were responsible for siphoning of Government funds. It was further reported that some of the loaders of the Corporation clandestinely engaged the services of other persons by paying paltry amount. It was further reported that all these things are done in connivance with the officers of the Food Corporation of India. On this news item, the Nagpur Bench of Bombay High Court took suo moto cognizance and treated the news item as PIL, which was numbered as PIL No.84 of 2014 (Court on its Own Motion Vs. Union of India & others).
4. In that, suo moto petition during the course of hearing it was pointed out to the Court, that there was some notification prohibiting employment of contract labours, hence, the FCI continued to engage services of departmental labours.
5. The FCI had approached the Central Government under Section 31 of 1970 Act. It also pointed out the other difficulties like equal pay for equal work, reducing the size of the bag from 95 kg. to 50 kg. and when the incentive of the labours were reduced the labours went to the Industrial Court, the department of labour refuted to transfer from one depot to another depot. After a detail deliberation Nagpur bench was pleased to pass the judgement and order dated 20.11.2015. Relevant part of which is as follows:-
.......
(I)The Government of India is directed to decide the representation made by the Food Corporation of India for grant of exemption under the provisions of Section31of the said Act within a period of one month from today,in the light of observations made by us hereinabove within a period of one month from today.
(ii) The Government of India shall decide the issue regarding denotification of the depots of the Food Corporation of India, in respect of which notification is issued u/s.10 of the said Act, within a period of six months from today, in the light of observations made by us hereinabove and the report of M/s. Deloitt Consultancy and the report of High Level Committee appointed by the Government of India itself.
(iii) We clarify that the respondent/Food Corporation of India would be entitled to transfer the services of departmental labourers from one depot to another subject to protecting their salary and all other service conditions.
(iv) We also clarify that the respondent/ Corporation would be at liberty to implement its policy of change in the Scheme of incentives.
(v) The Government of India shall also take a decision regarding abolition of system of departmental labourers in a phased manner or absorbing their services in other establishments as recommended by the High Level Committee.
........
6. The judgement passed by the Nagpur Bench of Bombay High Court was challenged by the department of labour of FCI before Hon'ble Supreme Court by means of Special Leave to Appeal (C) No.19218 of 2016 and the Hon'ble Supreme Court on 08.01.2016 was pleased to pass the following order:-
"Mr. Ranjit Kumar, learned SG is requested to take instructions from the Government of India, in the meantime, as to the steps they have taken in terms of the impugned order passed by the High Court."
7. As per the direction issued by Nagpur Bench of Hon'ble Bombay High Court Government of India Ministry of Labour and Employment issued a notification dated 06.07.2016 whereby, under Section 31 of 1970 Act, the FCI was allowed to employ contract labour for period of two years.
8. Thereafter, the SLP was fixed for hearing on 16.09.2016 before Hon'ble Supreme Court and on that date it was informed to the Court that the Union of India has issued exemption notification on 06.07.2016. Upon this information the SLP was dismissed, however, the liberty was given to the workers of FCI to challenge the notification before the appropriate Court.
9. The departmental workers, who have been making a huge amount of money never wanted any contractual labour to work in the organization so they challenged the exemption notification dated 06.07.2016 in various High Courts. A writ petition being Writ-A No.43569 of 2016 (Satish Kumar and two others vs. Union of India) was filed before this Court challenging the exemption notification dated 06.07.2016. In this writ petition the petitioner had made the following prayers:-
"A. Issue a writ, order or direction in the nature of certiorari quashing the notification dated 6.7.2016.
B. Issue a writ, order or direction in the nature of mandamus directing the respondents not to take any whereby the service conditions of petitioners may be effected."
10. Learned Single Judge of this Court proceeded to dismiss the aforesaid petition vide order dated 14.09.2016. Relevant paragraphs of which are as follows:-
"19........ The petitioners have completely failed to point out infringement of their fundamental rights guaranteed under part III of the Constitution of India, by the impugned Notification. It is settled principles of law that there is always presumption in favour of constitutional validity of a legislation.
21. Considering the facts and circumstances as noted above as well as the judgment of Nagapur Bench of Bombay High Court in P.I.L. No.84 of 2014 and the order of Hon'ble Supreme Court as noted above, I do not find any infirmity in the impugned Notification. Writ petition No.34027 of 2013 filed by the petitioners for regularisation is also admittedly pending.
22. Writ petition lacks merit and is consequently dismissed. There shall be no order as to costs."
11. Satish Kumar and two others, who are workers of the FCI, challenged the aforesaid judgement passed by learned Single Judge of this Court in Special Appeal, which was numbered as Special Appeal No.653 of 2016. The aforesaid Special Appeal was also rejected by this Court and the exemption notification dated 06.07.2016 was further affirmed vide order dated 18.10.2016.
12. After the exemption notification was issued by Government of India, the respondent no.2 vide its order dated 08.08.2016 transferred the departmental labours working in Food Storage Depot Naini, Allahabad to Food Storage Depot, Maduadih, Varanasi. These transfers were also made as per guidelines issued by the Nagpur Bench of Bombay High Court.
13. This en-bloc transfer order from Food Storage Depot Naini, Allahabad to Food Storage Depot, Maduadih, Varanasi was again challenged by way of Writ Petition No.38560 of 2016 (Bhartiya Khadya Nigam Mazdoor Sangh and 40 others vs. F.C.I. through its Chairman and three others) before this Court, which was dismissed vide order dated 26.09.2016. Relevant paragraphs of which are as follows:-
"10. Respondents vide counter and supplementary counter affidavit state that following four types of labourers are employed for handling operations in FCI depot:-
(i) Departmental Labour (DL);
(ii) Direct Payment System Labour (DPS);
(iii) No Work No Pay Labour (NWNP); &
(iv) Contract Labour (CL).
It is stated by the respondents that only one system of labourers are deployed in one depot, as otherwise it may result in industrial unrest since different wages/salary would be payable for performing same work. Accordingly, it is stated that if in a particular depot, departmental labourers are engaged then labourers of other category i.e. direct payment system (DPS), no work no pay (NWNP) and contract labour (CL) are not engaged in that depot. It is stated that FCI intends to pool all departmental labourers in few depots according to their operational requirement. It is also stated that petitioners hold transferable post, and merely on the strength of transfer order passed, no prejudice is caused to them.
11. During the course of hearing, much emphasis was laid by the Senior Counsel for the petitioners on the aspect of en masse transfer being affected without anyone else being posted in place of petitioners. Rationale of such decision was specifically questioned. According to petitioners, Clause 5 of the Certified Standing Orders provides as under:-
"Clause No.5: Transfer-
A worker shall be liable to be transferred from one place of work to another place of work of the Corporation as per practice in existence with the whole gang, except in the case of request for transfer from the individual worker."
It is stated that there is no practice of transferring workers, who are otherwise Class-IV employees. Violation of provisions of Sections 9-A and 2(ra) of the ID Act, are also alleged.
12. From the materials placed on record, it cannot be doubted that petitioners are all departmental labourers, who hold transferable post. Hon'ble Supreme Court in Food Corporation of India Worker's Union Vs. Food Corporation of India and another, has been pleased to reject contention of workers that labourers such as petitioners cannot be transferred. Para-27 of the judgment of Nagpur Bench also recognizes such position. Petitioners' transfer from one depot to another, therefore, cannot be questioned, on the ground that petitioners do not hold transferable post. It is also not in dispute that salary and other service benefits admissible to petitioners at their present place of posting are not being altered to petitioners' detriment.
13. So far as justification of mass transfer without anyone else being posted in place of petitioners, or the transfer not being warranted in facts of the present case is concerned, all such issues may not be gone into by this Court. It is apparent that an exercise to rationalize deployment of departmental labourers is in process, pursuant to the orders passed by the Nagpur Bench. Some play in the joints would otherwise have to be conceded to employers, while undertaking steps to protect state exchequer. At the instance of workers' union, the matter is otherwise engaging attention of Apex Court in appeal, which is pending.
14. It may further be noticed that in some what identical facts and circumstances, a Division Bench of the Bombay High Court in Ravi B. Ghorpade (supra) has refused to entertain similar writ petition filed by workers against the order of transfer in following words:-
"3. In view of the above, we are not inclined to entertain the present writ petition filed by the petitioner. It is based upon the order and directions so issued by the Nagpur bench and also for the fact that the proceedings against the same are pending in the Supreme Court. As regards the submission as made on behalf of the petitioners on merits referring to the placements/transfers, we are not inclined to accept these submissions for the extensive reasons recorded in the judgment of the Nagpur Bench so referred above, and also for the fact that a Special Leave Petition is pending. The remedy of the petitioner is therefore, elsewhere.
For the above reasons we accordingly dismiss the present petition. No costs."
15. Judicial propriety and consistency requires that in similar facts and circumstances, similar orders be passed. I am otherwise of the opinion that merits of the rationalization process or justification to effect orders of transfer need not be gone into, any further, as these are administrative acts undertaken, purportedly in compliance of the directions issued by the Nagpur Bench of Bombay High Court, against which an appeal is pending before the Apex Court. So far as violation of the Standing Orders or other provisions of ID Act is concerned, remedy available to the petitioners is to approach the Industrial Adjudicator.
16. The writ petition, consequently, fails and is dismissed. Interim order is discharged."
14. Since as per the exemption notification dated 06.07.2016 FCI was allowed to engage contract labour, so the respondent no.2 issued e-tender for appointment of handling and transportation contractors.
15. Another writ petition bearing Writ-C No.35175 of 2016 (FCI Mazdoor Association Union Vs. Union of India and 10 others) was filed, challenging the e-tender Notice No.02/2016 for HTC, RTC Contractor on 08.04.2016 for appointment of handling and transport contractor, that too has been dismissed vide order dated 01.08.2016. The relevant paragraphs of which are as follows:-
"Counsel for the contesting respondents submits that the tender process got over in April, 2016 itself and work at four depots is also complete. Further, he submits that the petitioners had earlier filed Writ Petition No. 30350 of 2016 and this Court, while disposing of the writ petition vide order dated 6 July 2016 permitted the petitioners to approach respondent no.1 for seeking reference under Section 10 of the Industrial Disputes Act, 1947 to the Industrial Adjudicator within a time frame. However, till date, the petitioners have not approached the first respondent for seeking reference, as observed in the order dated 6 July 2016. In this backdrop, it would not be possible to entertain and examine merits of the case. It is still open to the petitioners to seek reference under Section 10 of I.D. Act, 1947.
The petition is dismissed."
16. Apart from challenging in this Court, the exemption notification dated 06.07.2016 and the pooling transfer scheme was challenged in Gujarat High Court, Bombay High Court, Kerala High Court, Madras High Court and Guwahati High Court but in none of the High Court the workers got any relief in their favour.
17. Few writ petitions were filed before Delhi High Court bearing W.P. No.5090 of 2021, 6060 of 2021, 15448 of 2021, 18574 of 2021, 19197 of 2021 challenging the transfer of departmental labours employed at FSD Shaktinagar and at FSD Mayapuri and exemption notifications and have assailed e-tender notice no.04/2021 dated 01.03.2021 and e-tender notice no.05/2021 dated 23.06.2021 in which the labours succeeded to get interim order and placing reliance on this interim order certain High Courts also granted interim relief to the workers.
18. Mr. R.M. Sinha, Advocate along with Mr. Pradeep Mishra, learned counsel appeared for the petitioners and submitted that the exemption under Section 31 of 1979 Act was granted on 06.07.2016 for a period of two years as an emergent situation, thereafter, before the expiry of these two years it was again extended for a period of two years vide notification dated 20.06.2018 and before this notification could come to an end, the third notification was issued on 25.06.2020 for another period of two years. Yet again, before expiry of this notification the Government of India issued another notification on 19.10.2022 granting exemption for another two years period.
19. He further submits that Section 10 of 1970 Act clearly prohibits the employment of contractual labours. He also submitted that FCI had moved to Central Advisory Contract Labour Board, (CACLB) (for short 'the Board') for grant of exemption under Section 31 of the Act but the Board had dismissed the application of the FCI and that decision attained finality. The En-bloc transfer of employees from Hapur Depot to Chanderi Kanpur Depot is contrary to the interim order order passed by the Delhi High Court. He further submits that though the interim order passed by the Delhi High Court is not binding still it has persuasive effect and this Court should consider this fact sympathetically.
20. Per contra, Mr. S.K. Mishra, learned counsel for the F.C.I. submitted that the main ground of the petitioners in the writ petition is that exemption notification dated 06.07.016 has been issued in consultation with the Board. Though the exempted depot were notified under Section 10 on the advise of the Board. Section 31 of the Act empowers Central Government to exempt establishments from the conditions and restrictions, if any, imposed by and under all or any of the provisions of the Act for such period or periods as may be specified in a notification issued in that behalf. Significantly, the power liable to be exercised by the appropriate Government under Section 31 of the Act, 1970 is not made subject to consultation with the Central Board. The Notification dated 6th July 2016 issued by the Union Government exempting the depots of the Corporation from the rigours of the notification dated 23 April 2010 cannot, therefore, be faulted on this score. The Central Government has taken due care of the objection of CACLB. The Government incorporated the conditions that FCI has to comply the condition specified under Clause (iv) and (v) of Sub-Rule (2) of the Rule, 25 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 and the duration of exemption notification was for the period of 2 years from its publication in the official gazette. The F.C.I. was suffering tremendous loss as a demurrage under the Old Scheme and payment of wages to departmental labour. In April, 2022 - August, 2022 Contract Labours were deployed at FSD Hapur and for said period department has paid only Rs.1.26 crores at the rate of Rs.70.23 per metric ton. Due to interim order dated 10.02.2022, the department has paid Rs.29.77 crores as wages to petitioners from October, 2022 to October 2023 at the rate of Rs.642.68 per metric ton.
21. The petitioners herein, are the regular departmental labours working in Food Storage Depot, Hapur in Uttar Pradesh. According to the petitioners, the Food Storage Depot, Hapur was a notified depot under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (here-in-after for the sake of brevity has been referred as "Act, 1970").
22. Per contra, learned counsel for the respondent submitted that the department has made excess payment in 13 months i.e. from October, 2022 to October, 2023 for Rs.26.52 crores extra due to deployment of departmental labours at Food Storage Depot, Hapur, if these labours were put idle then department may have saved Rs.10.3 crores in that period.
23. It is noteworthy that after notification dated 06.07.2016 the Central Government has further issued exemption notification dated 20.06.2018, 25.06.2020 and notification dated 19.10.2022 exercising power conferred under Section 31 of C.L.R.A. Act. The petitioner has not brought on record or assailed the said notification except notification dated 06.07.2016, which has been affirmed by the Hon'ble Court and has lost its efficacy.
24. Learned counsel for the respondents further submitted that the issue raised in this writ petition has already been adjudicated upon and been rejected by learned Single Judge of this Court and also upheld by the Division Bench of this Court in Special Appeal. Hence, the instant petition should be dismissed.
ANALYSIS
25. We have carefully considered the submissions advanced by learned counsel for respective parties. With their able assistance, we have perused the pleadings, grounds taken in the petition, affidavits and annexures thereto and replies filed by the concerned parties.
26. Soon after the independence there were very few industries and workers collectively did not have a voice and it was seen that the labours were exploited, by engaging them on contract basis and there was no job security.
27. The employment and exploitation of contract labours was an acute problem at that point of time. It was first considered in the Second Five Year Plan by the Planning Commission, who after undertaking the study professed the idea of curbing down the practice of engaging contract labour. The matter was discussed at various meetings ot Tripartite Committee and after hearing the State Governments a Bill was proposed for setting up of advisory board to advise the Central and State Governments, who came up with various studies. It was then the Contract Labour (Regulation and Abolition) Act, 1970 was enacted by the Parliament.
28. It was in the year 1961 the Hon'ble Supreme Court in the matter of Standard Vacuum Refining Company of India Vs. Its Workmen and another1 deprecated the practice of engaging contract labours. This judgement was basically to curb the menace of engaging the contract labours at that point of time.
29. The Hon'ble Supreme court in the matter of M/S Gammon India Limited vs. Union of India and others2 examined the constitutional validity of the Act and and elaborated on the objects of the Act and the rational behind the framing to Section 10, the bench of five Judges opined that the dominant idea of Section 10 of the Act is to find out whether the contract labour is necessary for the industry or not.
30. The Hon'ble Supreme Court in the matter of B.H.E.L. Workers' Association vs Union Of India & Ors3 held that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of work, and conditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work.
31. The Hon'ble Supreme Court in the matter of Dena Nath And Ors vs National Fertilizers Ltd. And Ors4 has held that the principal employer is not required to absorb the contract labours, which has been abolished.
32. The Hon'ble Supreme Court in the matter of Air India Statutory Corporation vs United Labour Union & Ors5 overruled the decision of two Judges in Dena Nath (supra) case and held that all the contract labours were required to be absorbed by the establishment. The principal employer now stands under statutory obligation to absorb the contract labours.
33. In 1990s the Government of India virtually changed its entire policy with the liberalization of market economy. The market economy could not be liberalized unless there was greater flexibility of employment for the industries to compete inside the worldwide perspectives and antediluvian labour legal guidelines has compelled industries to lease agreement labour to address the cyclical demands and creating commercial enterprise pleasant compliance mechanism to survive and compete within the globalised financial system. Concomitant modifications in the commercial Disputes Act, 1947 was important to reduce reliance on settlement labour machine.
34. Later, the Hon'ble Supreme Court in the matter of Steel Authority of India Ltd. & Ors. vs. National Union Water Front Workers & Ors.6 overruled the decision passed in the case of Air India (supra) and held that the establishment was not obliged to regularize its contract labours and the contract labours would have no legal right to be absorbed automatically and would not be eligible for the benefits as regular workers.
35. Learned counsel for the respondents emphatically submitted that the prayers sought in this writ petition cannot be granted as the writ petitions filed by the similarly situated departmental labours before this Court have been dismissed and those judgements have not been assailed and have attained finality, hence, the instant writ petition cannot be entertained at all. He took the pain of taking us through various judgements, which actually reveal that all the prayers sought in the writ petitions, which have already been adjudicated upon and has earlier been rejected.
36. After hearing the parties and perusing the record as well the judgements passed in earlier writ petitions, we proceed to consider the prayers made in the instant petition one by one:-
37. Through, Prayer '(i)' of this writ petition the petitioner is seeking a direction for quashing of the exemption notification dated 06.07.2016 issued under Section 31 of the C.L. (R & A) Act, 1970 also being the subject matter before Delhi High Court in W.P. (C) Nos.7627 and 7241 of 2016.
The challenge to Exemption Notification has already been turned down by this Court in Writ-A No.43569 of 2016 vide judgement and order dated 14.09.2016. This order was challenged by similarly situated people in Special Appeal before this Court and the Special Appeal was also rejected and the Exemption Notification dated 06.07.2016 challenged herein has already been upheld. On a pointed query by this Court as to whether the Special Appeal No.653 of 2016 decided on 18.10.2016 has ever been challenged before Hon'ble Supreme Court, both the parties states that this order has not been assailed and has attained finality.
Since this issue has already been decided, we are bound by the judgment of the coordinate bench, hence, we cannot entertain the petition seeking the same relief.
38. The prayer no. (ii) made in this writ petition is to quash the guidelines dated 12.07.2016 issued by respondent no.2 for implementation of the exemption notification dated 06.07.2016. These are nothing but a guideline laid down for implementation of the exemption notification dated 06.07.2016.
Since the exemption notification dated 06.07.2016 has already been upheld by learned Single Judge and also by the Division Bench of this Court and the guidelines so issued are merely for implementation of this notification there is no illegality per se in the guidelines. Hence, the prayer no. (ii) as prayed by the petitioner cannot be accorded.
39. The prayer no.(iii) is for quashing of the order dated 30.10.2021 for En-bloc transfer of departmental labours from Hapur Depot to Chanderi Kanpur Depot of the Food Corporation of India.
Identical issue had earlier been cropped wherein En -bloc transfer of employees from Naini Depot, Allahabad to Manduwadih, Varanasi Depot of Food Corporation of India was made and the same was challenged in Wrti Petition No.38560 of 2016 (Bhartiya Khadya Nigam Mazdoor Sangh and 40 others vs. F.C.I. through its Chairman and three others) before this Court, which was dismissed vide order dated 26.09.2016. Hence, the impugned order dated 30.10.2021 being identical order, which has already been upheld by the learned Single Judge of this Court and the order passed by the learned Single Judge has not been challenged. Hence, there is no reason for this Court to take a contrary view or pass any order stopping the transfer to be made.
These transfers are made in administrative exigencies and no Court should ever interfere with the transfer order until and unless it is proved that the same has been made malafidely. Therefore, the prayer no.(iii) made in the writ petition cannot be accorded.
40. The prayer no.(iv) made in the writ petition is for issuing direction for quashing of the e-tender notice dated 21.01.2022 issued by respondent no.2 to engage the contract labour at FCI FSD Hapur-U.P.
Since there is an exemption notification dated 06.07.2016 passed under Section 31 of the Act wherein the Government of India, which was upheld by this Court, allowed the respondent no.2 to engage contractual labours, to carry out the activities. In order to carry out the storage activities of the food grain the State has no other choice but to engage the contract labours, and for this the Government has no other option but to float a tender and accordingly the e-tender has been floated calling for expression of interest to carry out the functions for FCI.
Moreover, since the identical prayer was made in Writ-C No.35175 of 2016 and the same was dismissed by this Court, hence, the prayer no.(iv) so made cannot be accorded.
41. Since the prayers made in the writ petition have been refused, the writ petition is devoid of merit and is, accordingly, dismissed.
Order Date :- 14.12.2023
S.P.
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