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B.Venkanna, vs The Commandant
2022 Latest Caselaw 6167 Tel

Citation : 2022 Latest Caselaw 6167 Tel
Judgement Date : 25 November, 2022

Telangana High Court
B.Venkanna, vs The Commandant on 25 November, 2022
Bench: Surepalli Nanda
      IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P.No. 19316 of 2018

Between:
B.Venkanna
                                                   ... Petitioner
And

The Commandant 217 and others
                                                 ... Respondents

JUDGMENT PRONOUNCED ON: 25.11.2022


      THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers     :        yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?         :        yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?             :         yes


                                           ______________
                                        SUREPALLI NANDA, J
                                                                    WP_19316_2018

                                    2                                       SN,J




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                          W.P.No. 19316 of 2018

% 25.11.2022

Between:

# B.Venkanna
                                                        ..... Petitioner

       And


$ The Commandant 217 and others
                                                   .....Respondents

< Gist:

> Head Note:


! Counsel for the Petitioner       : Mr. K.R.Srinivas
^Counsel for the Respondents: Standing counsel for
                                 respondents



? Cases Referred:
1. (1985) 3 SCC 545
2.
   2014) 9 SCJ 1991
3. 1993(4) SCC page 727
4. 2011(3) ALD 641
5. 2014(9) SCJ page 91
                                                                 WP_19316_2018

                                3                                        SN,J




       HON'BLE MRS JUSTICE SUREPALLI NANDA


           WRIT PETITION No.19316 OF 2018

ORDER:

Heard the learned counsel for the petitioner and

learned standing counsel for the respondents.

2. The petitioner approached this Court seeking

relief as follows:

"to issue order or direction more particularly one in the nature of Writ of Mandamus, to declare the action of respondents in removing the petitioner from service by office orders No.P-AT-22/2014-Est-two dated 29.10.2014 of the 1st respondent, confirmed by 2nd respondent and 3rd respondents in their orders No.R.XIII-2/2015-Est-III dated 25.05.2015 and R.XIII- 19/2016-Adm-7, dated 06.03.2016 as illegal, arbitrary, without evidence, violative of Principles of natural justice, and accordingly set aside the same and consequently direct the respondents to reinstate the petitioner into service."

3. The case of the petitioner, in brief, is as follows:

a) The petitioner was appointed in CRPF on 04.12.2005

and on transfer from 74 Bn, CRPF, the petitioner was posted

to 217 Bn, CRPF w.e.f 02.09.2012.

b) The petitioner was absent from his duties from

10.06.2013 without any information to the 1st respondent.

After framing charges and conducting of ex-parte enquiry the WP_19316_2018

4 SN,J

petitioner was removed from service by order dated

29.10.2014. Against the said orders, the petitioner filed

Appeal to 2nd respondent on 05.01.2015, the appeal was

rejected on 25.05.2015. Again on 29.06.2015, the petitioner

filed revision petition to 3rd respondent which was also

rejected by orders dated 06.03.2016.

c) In the appeal and revision petition which was submitted

by the petitioner to the 2nd and 3rd respondents, informing

that the petitioner was unwell and requested for extension of

leave. As there was no CRPF Hospital in Warangal District, the

petitioner was admitted in MGM Government Hospital for

treatment.

d) The petitioner sent leave applications through fax and

registered posts to 1st respondent requesting for extension of

his leave, as the petitioner was met with an accident and

undergoing treatment. In addition to these reasons, the

petitioner's parents were also expired. After acknowledging all

these medical certificates and leave applications the leave

cannot be treated as unauthorized absence.

e) The Supreme Court of India has held that the absence

covered by medical reasons cannot be said as unauthorized WP_19316_2018

5 SN,J

absence and set aside the major punishment. There is no

evidence discussed by the respondents to arrive at a

conclusion that the absence is unauthorized and willful.

Therefore, on the ground of lack of evidence, the punishment

is liable to be set aside and reinstate the petitioner into

service, the writ petition is filed.

4. The case of the respondents, in brief, is as

follows:

a) The petitioner was appointed in CRPF on 04.12.2005

and on transfer from 74 Bn, CRPF, the petitioner was posted

to 217 Bn, CRPF w.e.f 02.09.2012, and the petitioner while

posted in C/217Bn CRPF was sanctioned 19 days earned leave

w.e.f 22.05.2013 to 09.06.2013 as requested. But the

petitioner failed to report back to duty after the said leave and

remained absent from duty unauthorizedly.

b) The petitioner had submitted an application to the

respondent No.1 for extension of leave from 10.06.2013 to

09.07.2013 as the petitioner is undergoing treatment at

M.G.M.Hospital, Warangal. But the petitioner request had not

been considered by respondent No.1 as the petitioner failed to

submit any medical documents in support of his leave WP_19316_2018

6 SN,J

extension request. The petitioner was informed to report back

for his duty immediately along with all medical documents

related to his treatment, accordingly, O.C. C/217 Bn CRPF

vide letter No.L.II-2/2013-C/217, dated 27.06.2013 and

06.07.2013 were issued to the petitioner to report for his

duty.

c) The petitioner instead of reporting for duty, again he

submitted an application through Fax, dated 09.07.2013

requesting extension of his leave without providing any

medical documents in support of his application. The same is

not considered by Commandant 217 Bn, CRPF.

d) In view of above, a complaint was lodged by Officer

Commanding C/217 Bn CRPF vide letter No.W.V-1/2013-

C/217, dated 11.07.2013, for issuing a Warrant of Arrest

against the petitioner. The petitioner, being a member of

CRPF a disciplined Para Military Force, and having completed

more than eight years of service, the offence of unauthorized

absence by the petitioner is not acceptable and hence, the

same is punishable under Rule-27 of CRPF Rules-1955 and

Section-11(1) of CRPF Act-1949. The Enquiry Officer, before

commencing the enquiry proceedings vide letter No.P.VIII-

WP_19316_2018

7 SN,J

22/2014-217-S.K, dated 13.03.2014 requested the petitioner

to attend the Departmental Enquiry proceedings initiated

against him. Despite giving more than 30 days time by the

Enquiry Officer, the petitioner neither joined the enquiry

proceedings, nor made any correspondence in this regard.

e) The Departmental Enquiry provided the report of

Enquiry Officer to the petitioner by sending the same by

registered post to his residential address available in official

record and gave him 15 days time to submit any

evidence/documents in his support. But the petitioner has not

bothered to respond in any manner on the matter.

f) Respondent No.1 being the disciplinary authority vide

217 Bn CRPF Office Order No.PVIII-22/2014-EC-II, dated

29.10.2014 awarded the penalty of "Removal from Service"

w.e.f 29.10.2014 against the petitioner. The petitioner's

appeal and revision petition dated 05.01.2015 and

29.06.2015 has been rejected as he failed to produce relevant

documents in support of his unauthorized absence.

G) The Departmental Enquiry has given ample opportunity

to defend himself at every stage besides ensuring principles of

natural justice. In spite of several opportunities, the petitioner WP_19316_2018

8 SN,J

could not make out his case. Hence, after considering all the

relevant material and evidence available on record, the

punishment awarded to the petitioner is lawful and

commensurate. Therefore, the present writ petition is liable to

dismissed.

5. Perused the record.

6. Paras 4, 5, 7 and 8 of the proceeding No.P-AT-

22/2014-Est-Two, dated 29.10.2014 reads as under:

4. Keeping in view the regular rules of the law, the copy of the departmental enquiry report is sent to the accused worker C/GD B.Venkanna to his last know home address after taking the statements of prosecution witnesses by the enquiry officer vide his letter dt.27/09/14, giving him 15 days of time to give in writing about his defense and defense witnesses and to present the documents by registered post. But the postal department has returned it as undelivered by saying that the accused is not at the station. The registered parcel is returned to the sender on dt.13/10/2014.

5. The departmental enquiry is completed based on the witnesses and the prosecution party evidence and report of the enquiry officer after studying it Intensively. During the time of enquiry, the enquiry officer has reduced to writing the statements of the prosecution witnesses and gave enough time to the accused according to the rules for his defense in all manners, and has given the each copy of the statement of witnesses to the accused. At the same time, the accused is given to test the witnesses at the time of enquiry, but the accused did not cross test the witnesses and even did not object. On the enquiry report by the enquiry officer, and before passing the final orders by the Disciplinary Officer and keeping in view the enquiry process, a copy of the enquiry report by the enquiry officer is sent to this office by registered post on dt.27/09/2014, with a hope that, either he should present himself for defense or if he wants to present any document/witnesses and after receiving the enquiry WP_19316_2018

9 SN,J

report within 15 days shall submit to the Disciplinary officer, further it is informed that, if in the given time if we do not receive any report/representation, the final orders will be passed on the Departmental Enquiry report according to the rules. Even after the lapse of the given time we did not receive any report/representation from C/GD B. Venkanna, from this it is clear that the accused worker No.055143692 soldier/GD B. Venkanna, C/217 Battalion the allegations on him vide Item-1 & 2 are accepted by him, and worker No.055143692 soldier/GD B. Venkanna, C/217 Battalion the Item-1& 2 are proved against him.

7. The statements of all the prosecution witnesses, documents, departmental enquiry report are intensively studied and after that,I the following signed satisfied with the enquiry process against soldier No. 055143692 soldier/GD B.Venkanna, C/217 Battalion. The complete case is studied in detail by the following signed. The allegations against the accused are proved without doubt. And I being the appointed authority/administrator officer, according to the Central Reserve Police Force, Act, 1949 Section 11(1) read with Rule 1955 Rule 27(k) and using my given authority passing the following orders.

(i) Force No. 055143692 soldier/GD B. Venkanna, C/217 Battalion is removed from the service from the date of issuing orders from this office. Thereafter, Soldier No. 055143692 soldier/GD B.Venkanna C/217 Battalion is removed from this Corps from the said date.

(ii) Force No. 055143692 soldier/GD B. Venkanna, C/217 Battalion, if he is having any dues, it should be adjusted from the due amount.

(iii) Force No. 055143692 soldier/GD B. Venkanna, C/217 Battalion, if he is given any medal or felicitation during his service it shall taken back/seized according to Central Reserve Police Force Act 1949 Section 12(1).

(iv) Force No. 055143692 soldier/GD B. Venkanna, C/217 Battalion, the identification No.3840912 issued is repealed.

v) Force No. 055143692 soldier/GD B. Venkanna, C/217 Battalion, CRPF, has been given earned leave from dt.22/05/13 till 09/06/13 for 19 days. And in total from dt. 10/06/2013 till 29/10/2014, 507 days WP_19316_2018

10 SN,J

fugitive/without permission, the absent period is taken as regular extra ordinary leave. And during this period the said worker is not eligible for any benefits and salary/allowance.

8. Force No. 055143692 soldier/GD B. Venkanna, C/217 Battalion, CRPF, if he wants to make any appeal about this Order, according to the Central Reserve Police Force Rules 1955 under rule-28 shall make his appeal against this Order to Deputy Inspector General of Police, Chennai Range, CRPF, within 30 days under the provisions. And in case the appeal is rejected, he can make his appeal against this Order according to Rules 1955, under Rule-29 for review to the Inspector General of Police, South Region, CRPF, Hyderabad under the provisions.

7. A bare perusal of the order impugned dated

29.10.2014 of the 1st Respondent indicates that an

exparte enquiry had been conducted and though the

petitioner did not submit any reply, the enquiry officer

had completed his departmental enquiry and submitted

to the Administrative Officer.

8. The Appeal dated 05.01.2015 was considered by the

Appellate Authority and rejected being devoid of merit vide

order dated 25.05.2015 and the Revision Petition dated

29.06.2015 preferred the Petitioner to the IGPSS, CRPF,

Hyderabad, was also rejected being devoid of merit

confirming the orders of the Disciplinary Authority as well as

the Appellate Authority.

                                                                WP_19316_2018

                                11                                      SN,J




9. The relevant extracts of the counter filed by the

2nd respondent are reproduced hereunder:

f) It is submitted that, the petitioner, being a member of CRPF a disciplined Para Military Force, and completed more than eight years of service, the offence of unauthorized absence by the petitioner is not acceptable and such act is against the good order, discipline and conduct of a responsible member of the force and hence same is punishable under Rule-27 of CRPF Rules-1955 and Section- 11(1) of CRPF Act-1949. Hence as per procedure a Departmental Enquiry was initiated against the petitioner vide 217 Bn CRPF office memorandum and Office Order No.- P.VIII-22/2013-EC-II, dated 29/01/2014 and 26/02/2014 respectively (Annex-07 & 08). The Enquiry Officer so appointed, before commencing the enquiry proceedings, vide his letter No.-P.VIII-22/2014-217-S.K. dated 13/03/2014 (Annex,-09) requested the petitioner to attend the Departmental Enquiry proceedings initiated against him. Further, the petitioner was also intimated that, in the event of not joining for the enquiry, then same will be conducted ex-parte as per procedure. Despite giving more than 30 days time by the Enquiry Officer, the petitioner neither joined the enquiry proceedings, nor made any correspondence in this regard. Hence, the Enquiry officer commenced the enquiry proceedings (ex-parte) as per procedure by recording the statement of all relevant PWs.

h) On receipt of the Departmental Enquiry proceedings, the Disciplinary Authority (respondent No

1), so as to ensure principal of natural justice, vide letter No.- P.VIII-22/2013-EC-II, dated 27/09/2014 (Annex.-10) also provided the report of Enquiry Officer to the petitioner by sending same by registered post to his residential address available in official records and gave him 15 days time to submit any evidence/documents in his support. But the petitioner was not bothered to respond in any manner on the matter.

DISCUSSION AND CONCLUSION

10. This Court opines that the question whether

"unauthorized absence from duty amounts to failure of WP_19316_2018

12 SN,J

devotion to duty or behavior unbecoming of an

Government servant cannot be decided without

deciding the question whether the absence is willful or

because of compelling circumstances. If the absence is

the result of compelling circumstances under which it

was not possible to report or perform duty, such

absence cannot be held to be willful. Absence from duty

without any application or prior permission may

amount to unauthorized absence, but it does not

always mean willful. There may be different

eventualities due to which an employee may abstain

from duty, including compelling circumstances beyond

his/HER control like illness, accident, hospitalization

etc., but in such a case the employee cannot be held

guilty of failure of devoting to duty or behavior

unbecoming of a Government servant. But in the

present case admittedly as borne on record the

petitioner remained exparte and did not participate in

the enquiry therefore the question whether the

petitioner's absence is willful or because of compelling

circumstances had not been decided on merits. A bare WP_19316_2018

13 SN,J

perusal of the relevant extracts of the order impugned

DATED 29.10.2014 (extracted above) also clearly

indicates that the petitioner did not participate in the

enquiry and the copy of the Departmental enquiry

report forwarded to the petitioner was returned to the

sender on 13.10.2014 by the Postal Department stating

as 'Undelivered' by saying that the accused is not at the

station. This Court opines that the petitioner has a

right to receive a copy of the enquiry officer's report

before the disciplinary authority arrives at its

conclusion with regard to the guilt or innocence of the

petitioner with regard to the charges levelled against

him. That right is a part of the petitioner's right to

defend himself against the charges leveled against him

and the denial of the same to the petitioner is denial of

a reasonable opportunity to the petitioner to prove his

innocence and is a breach of principles of natural

justice. The plea in the counter affidavit filed by the 2nd

respondent at para (h) that the petitioner did not

respond in any manner, to the Enquiry Officer's report

forwarded by registered post cannot be said to be WP_19316_2018

14 SN,J

factually correct since the impugned order dated

29.10.2014, clearly indicates that the same had been

returned to the sender on 13.10.2014 as undelivered by

the endorsement of the concerned postal authorities.

11. The Apex Court in its judgment reported in Olga

Tellis & Others v. Bombay Municipal Corporation1 at

para 32 observed as under :

"32.....The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which

(1985) 3 SCC 545 WP_19316_2018

15 SN,J

alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life....."

12. The Apex Court in a judgment reported in the case

of Managing Director, ECIL, Hyderabad v B.Karunakar

reported in 1993(4) SCC page 727 at page 28, 29

observed as follows:

"28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry, toimpose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity WP_19316_2018

16 SN,J

of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.

29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

13. This Court in a judgment reported in Raghubir

Singh V. General Manager, Harayana Roadways, Hissar2

at paras 30 in Civil Appeal No.8434/2014, observed as

follows :

(2014) 9 SCJ 1991 WP_19316_2018

17 SN,J

30. The appellant workman is a conductor in the respondent-statutory body which is an undertaking under the State Government of Haryana thus it is a potential employment. Therefore, his services could not have been dispensed with by passing an order of termination on the alleged ground of unauthorised absence without considering the leave at his credit and further examining whether he is entitled for either leave without wages or extraordinary leave. Therefore, the order of termination passed is against the fundamental rights guaranteed to the workman under Articles 14, 16, 19 and 21 of the Constitution of India and against the statutory rights conferred upon him under the Act as well as against the law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below. Therefore, the impugned award of the Labour Court and the judgment & order of the High Court are liable to be set aside.

14. The erstwhile High Court in the judgment dated

27.09.2010 in Prameela and others v APSRTC,

Hyderabad and others reported in 2011(3) ALD 641 at

para 13 observed as under:

".. Hence, it is expected of every disciplinary authority to carefully assess the quantum of guilt held established against the delinquent employee and then consider the appropriate punishment that is to be imposed. The choice of punishment, hence, has to meet the standards of fairness. It shall not be too WP_19316_2018

18 SN,J

harsh or excessive or too lenient. It should be fair, adequate and proportionate. This exercise, apparently was not carried out by either the disciplinary or the Appellate Authority. However, in my opinion, for that part of the misconduct held established against Sri Pandu, perhaps, imposition of a minor punishment of reduction of pay by two stages would have met the ends of justice"

15. The judgment of the Apex Court reported in (2012)

3 SCC 178 between Krushnakant B.Parmar v Union of

India and another. Paras 16, 19 and 25 reads as under:

"16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has WP_19316_2018

19 SN,J

suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.

16. The judgment of the Apex Court reported in

2014(9) SCJ page 91 between Raghubir Singh v

General Manager, Haryana Roadways, Hissar. Para 35

reads as under:

"35. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the Rule of the 'Doctrine of Proportionality' in ensuring preservation of the rights of the workman. The principle of 'Doctrine of Proportionality' is a well recognized one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The above said important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen.

17. Taking into consideration the above referred facts

and circumstances and the law laid down by the Apex

Court in the judgments referred to and discussed WP_19316_2018

20 SN,J

above, this Court opines that the respondent authority

through an exparte enquiry should not have arrived at

a conclusion and declared the petitioner as a deserter

and awarded the impugned punishment vide

proceedings No.P-AT-22/2014-Est-Two, dated

29.10.2014 in velar violation of principles of natural

justice. This Court opines that no person should be

condemned unheard. The punishment imposed has to

meet the standards of fairness and should be in strict

compliance of principles of natural justice. This Court

opines that the consequential proceedings No. R.XIII-

2/2015-ESTT-III, dated 25.05.2015 and No.R.XIII-

19/2016-Adm-7, dated 06.03.2016 of the 2nd and 3rd

respondents respectively are also orders passed

mechanically in a routine manner without considering

the grounds raised by the petitioner in the appeal and

other material concerning disciplinary proceedings on

record and therefore, the writ petition is allowed as

prayed for and the impugned No.P-AT-22/2014-Est-

Two, dated 29.10.2014, No. R.XIII-2/2015-ESTT-III,

dated 25.05.2015 and No.R.XIII-19/2016-Adm-7, WP_19316_2018

21 SN,J

dated 06.03.2016 are set aside and the respondents are

directed to reinstate the petitioner into service with all

consequential benefits. It is however, made clear that

it is open to the respondents, if the respondents so

desire, to initiate proceedings afresh and conduct the

disciplinary enquiry against the petitioner on the basis

of the enquiry report dated 13.03.2014, in conformity

with the principles of natural justice and fair play duly

taking into consideration the law laid down by the Apex

Court in the various judgments referred to and

discussed above. However, there shall be no order as to

costs.

Miscellaneous petitions, if any, pending shall

stand closed.

_____________________________ MRS JUSTICE SUREPALLI NANDA 25.11.2022 Note: L.R. copy to be marked b/o kvrm

 
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