Gujarat High Court
Piyushbhai Bhagvatbhai Gamit vs State Of Gujarat on 20 March, 2026
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C/SCA/7162/2022 CAV JUDGMENT DATED: 20/03/2026
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Reserved On : 09/03/2026
Pronounced On : 20/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7162 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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PIYUSHBHAI BHAGVATBHAI GAMIT
Versus
STATE OF GUJARAT & ORS.
=========================================================
Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MR. SIDDHARTH RAMI, AGP for the Respondent(s) No. 1,2,3,4
=========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
[1] Rule returnable forthwith. Learned AGP Mr. Siddharth
Rami waives service of notice of Rule for and on behalf of the
respondents.
[2] Heard Mr. P.P.Majmudar, learned advocate for the petitioner
as also Mr. Siddharth Rami, learned AGP for the respondents, at
length.
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[2.1] With the consent of the learned advocates for the respective
parties, the present matter is taken up for hearing.
[3] The present writ petition is filed under Articles 14, 16, 21 and
226 of the Constitution of India, seeking the following reliefs:-
“(A) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or directions directing the quash and set
aside the impugned order dated 19.07.2019 passed by the
respondent no.4 (At ANNEXURE-A hereto) as well as order dated
20.11.2019 passed by the respondent no.3 (At ANNEXURE-B
hereto) and order dated 26.03.2020 passed by the respondent No.2
(At ANNEXURE-C hereto), and further be pleased to direct the
respondent authority to reinstate the present petitioner in the
services with all consequential benefits and back-wages and
continuity of service along with interst;
(B) Pending admission, hearing and final disposal of this petition,
YOUR LORDSHIPS may be pleased to stay the order dated
19.07.2019 passed by the respondent no.4 (At ANNEXURE-A
hereto) as well as order dated 20.11.2019 passed by the respondent
no.3 (At ANNEXURE-B hereto) and order dated 26.03.2020
passed by the respondent no.2 (At ANNEXURE-C hereto);
(C) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case.”
SHORT FACTS
[4] The petitioner was appointed as a Police Constable on
30.04.2001. The FIR came to be registered against the petitioner on
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12.08.2010 being C.R.No.I-4 of 2010 with Tapi ACB Police Station,
Tapi for the offence punishable under Sections 7, 12 and 13(1)(b)
(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act,
1988’). The petitioner was suspended by respondent vide order
dated 27.09.2010 and upon his request made after three years of
suspension, he was reinstated vide order dated 07.02.2013.
[4.1] Upon conclusion of the Trial, vide judgment and order dated
30.04.2019, the Addl. (Ad-hoc) Sessions Judge, Tapi at Vyara has
convicted the petitioner for the said offences. The petitioner
appears to have challenged the said conviction before this Court
by way of Criminal Appeal No.1080 of 2019, which was admitted
but this Court has not stayed the conviction, as only suspended the
sentence awarded to petitioner.
[4.2] Since the petitioner is found convicted, respondent No.4
herein vide its order dated 19.07.2019, dismissed the petitioner
from service. The petitioner has unsuccessfully challenged the
aforesaid impugned order before respondent Nos.3 & 2 by way of
appeal and revision respectively, who have not interfered with the
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impugned order passed by respondent No.4. Hence, the present
petition.
SUBMISSIONS OF THE PETITIONER
[5] Mr. P.P.Majmudar, learned advocate would submit that the
impugned order came to be passed by respondent No.4, is in
violation of principles of natural justice, as prior to passing of
order of dismissal, no show cause notice came to be served upon
the petitioner. It is submitted that irrespective of conviction of
petitioner, respondent No.4 could not have dismissed the service
of the petitioner without affording an opportunity of hearing.
[5.1] Mr. Majmudar, would further submit that neither the
Appellate Court nor the Revisional authority of the respondent –
State have taken the aforesaid ground into account whereby,
committed serious error in law while rejecting the appeal /
revision.
[5.2] Mr. Majmudar, would further submit that as per the settled
legal position of law, even though petitioner is found to be
convicted in ACB case, then also, it was incumbent upon
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respondent No.4 to serve him show cause notice. It is submitted
that since the impugned order is passed in violation of principles
of natural justice, it requires to be quashed and set aside and
consequently, the petitioner requires to be reinstated with back-
wages.
[5.3] To buttress his arguments, he has heavily relied upon the
following decision: –
Ramsingbhai Saburbhai Patel Vs. State of Gujarat & Anr.
rendered in Special Civil Application No.22629 of 2019,
dated 23.03.2022;
[5.4] Making the above submissions, Mr. Majmudar, learned
advocate for the petitioner would request this Court to allow the
present petition.
SUBMISSIONS OF THE RESPONDENTS
[6] Per contra, Mr. Siddharth Rami, learned AGP has vehemently
opposed this petition, inter alia, contenting that there is no merit in
the submission of Mr. Majmudar, learned advocate for the
petitioner as regards to violation of principles of natural justice by
the respondent. It is submitted that the petitioner is found to be
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convicted by the competent Court in a case of corruption and as
per Rule 14 of the Gujarat Civil Services (Discipline and Appeal)
Rules, 1971 (for short ‘the Rules, 1971’), it is not required to serve a
prior show cause notice to the petitioner before effecting the order
of dismissal.
[6.1] Mr. Rami, learned AGP would further submit that in a case
like present one, when conviction of petitioner is neither stayed by
this Court nor set aside, such convicted person cannot be
permitted to serve the police department. It is further submitted
that as per the settled legal position of law, in a case of corruption,
no lenient view can be taken by the employer, more particularly
petitioner was serving in a Police Department.
[6.2] Mr. Rami, learned AGP would further submit that it is not
sine qua non in all cases to observe the principles of natural justice,
if it would be an empty formality. It is submitted that as per Rule
14(1)(i) of the Rules, 1971, in a case where the conduct of the
petitioner which has led to his conviction on a criminal charge, it
would be an empty formality to serve him any show cause notice
prior to his dismissal order. It is further submitted that in a case of
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convicted employee, there is no second view to be considered by
the employer – State but to dismiss his service.
[6.3] Mr. Rami, learned AGP would submit that the decision
relied upon by Mr. Majmudar, learned advocate for the petitioner
would not be applicable to the facts of the present case, as there is
no expressed provision under Rule 14(1)(i) of the Rules, 1971, to
give an opportunity of hearing to Government Servant –
petitioner.
[6.4] To buttress his arguments, he has relied upon the following
decisions: –
i. Aligarh Muslim University And Ors vs Mansoor Ali
Khan reported in 2000 (7) SCC 529;
ii. K.C. Sareen Vs. CBI, Chandigarh reported in (2001) 6 SCC
584.[6.5] Making the above submissions, Mr. Rami, learned AGP
would request this Court to dismiss the present writ petition.
POINT FOR DETERMINATION
[7] Upon hearing the learned advocates for the respective
parties and after perusal of the pleadings and documents on
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record, following legal issue germane for my consideration: –
“Whether, in law, Respondent No. 4 was required to issue
a show-cause notice before passing the impugned order of
dismissal following the petitioner’s conviction under the
Act, 1988 in the ACB Case?”
ANALYSIS
[8] The facts observed hereinabove are not in dispute. The
services of the petitioner came to be terminated by respondent
No.4 vide its impugned dismissal order dated 19.07.2019, having
found the petitioner convicted in ACB case. The impugned order
of dismissal came to be passed in view of the second proviso to
Article 311 (2) of the Constitution read with exercising its powers
under Rule 3 of the Bombay Police (Punishment & Appeal) Rules,
1956 (hereinafter referred to as ‘the Rules, 1956’). The petitioner
challenged the impugned order of dismissal before the Appellate
and Revisional Authorities, who dismissed the appeal and the
revision filed by the petitioner vide orders dated 20.11.2019 and
26.03.2020, respectively. All these orders are under challenge in
this petition.
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[8.1] The sole and principal submission made on behalf of the
petitioner that prior to passing of impugned order of dismissal by
respondent No.4, no show cause notice served upon him.
According to petitioner, it is sine qua non to issue show cause
notice before passing order of dismissal. Since the impugned order
was passed without issuing a show cause notice, thereby, claimed
that dismissal of the petitioner is in violation of principles of
natural justice and heavy reliance is placed upon the decision of a
coordinate Bench of this Court in the case of Ramsingbhai
Saburbhai Patel (supra).
[8.2] Whereas, respondent – State has opposed this petition
mainly on the ground that once the petitioner is found to be
convicted under the provisions of the Act, 1988, then pursuant to
the second proviso to Article 311 (2) (a) of the Constitution, no
prior show cause notice was required to be served upon the
petitioner. Thus, there is no violation of principles of natural
justice, as alleged.
[9] Before adverting to the issue germane in the matter, first I
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would like to refer to the relevant provisions of law which have a
direct bearing to resolve the controversy.
: ARTICLE 311 IN CONSTITUTION OF INDIA :
311. Dismissal, removal or reduction in rank of persons employed
in civil capacities under the Union or a State(1) No person who is a member of a civil service of the Union or an all
India service or a civil service of a State or holds a civil post under
the Union or a Slate shall be dismissed or removed by a authority
subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against hi m and given a reasonable
opportunity of being heard in respect of those charges;
Provided that where it is proposed after such inquiry, to impose
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:
Provided further that this clause shall not apply–
(a) where a person is dismissed or removed or reduced
in rank on the ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be,
is satisfied that in the interest of the security of the State, it
is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises
whether it is reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final.
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: THE GUJARAT CIVIL SERVICES (DISCIPLINE
AND APPEAL) RULES, 1971 :
1. Short title, Commencement and Application :-
(a) These rules may be called the Gujarat Civil Services (Discipline
and Appeal) Rules, 1971.
(b) They shall come into force with effect from 15th August, 1971.
(c) They shall apply to all persons appointed to civil services and
posts in connection with the affairs of the State of Gujarat whose
conditions of service are regulated in accordance with the rules
made under article 309 of the Constitution.
Provided that nothing in these rules shall apply to any
Government servants who are members of the All India
Services or who are Inspectors of Police or Members of the
Subordinate ranks of the Police Force.
14. Special procedure in certain cases :
(1) Nothing contained in rules 8 or 9 shall apply-
(i) where a penalty is to be imposed on a Government servant
on the ground of conduct which has led to his conviction
on a criminal charge,
or
(ii) where the Disciplinary Authority is satisfied for reasons to be
recorded in writing that it is not reasonably practicable to follow
the procedure prescribed in the said rules, or
(iii) where the Government is satisfied that in the interest of the
security of the State, it is not expedient to follow such procedure.
(2) In cases to which the provision of sub-rule (1) shall apply, the
Disciplinary Authority may consider the circumstances of the case
concerned and pass such order thereon as it deems fit :
Provided that the Commission shall be consulted before passing such
orders in any case in which such consultation is necessary.
: THE BOMBAY POLICE ACT, 1951 :
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“26. Procedure to be observed in awarding punishment.
When any officer passes an order for fining, suspending,
reducing, removing or dismissing a Police officer, be shall
record such order or cause the same to be recorded, together
with the reasons therefore and a note of the inquiry made, in
writing, under his signature.
Provided that [no order for reducing, removing or
dismissing a Police officer] shall be passed without
giving him a reasonable opportunity of showing cause
against the action proposed to be taken against him
except in cases referred to in the proviso (a) to CI. (2) of
Art. 311 of the Constitution.”
: THE CENTRAL CIVIL SERVICES (CLASSIFICATION,
CONTROL & APPEAL) RULES, 1965 :
“Rule – 19. Special procedure in certain cases
Notwithstanding anything contained in rule 14 to rule 18-
(i) where any penalty is imposed on a Government
servant on the ground of conduct which has led to his
conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to
be recorded by it in writing that it is not reasonably
practicable to hold an inquiry in the manner provided in these
rules, or
(iii)where the President is satisfied that in the interest of the
security of the State, it is not expedient to hold any inquiry in
the manner provided in these rules, the disciplinary authorityPage 12 of 33
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may consider the circumstances of the case and make such
orders thereon as it deems fit:
Provided that the Government servant may be given an
opportunity of making representation on the penalty
proposed to be imposed before any order is made in a
case under clause (i):
Provided that the Commission shall be consulted, where such
consultation is necessary, and the Government servant has
been given an opportunity of representing against the advice
of the Commission, within the time limit specified in clause
(b) of sub-rule (3) of rule 15, before any orders are made In
any case under this rule.”
[10] At the outset, it requires to be observed that the petitioner
was serving in State Police Force, then as per proviso to Section 1
of the Rules, 1971, the Rules 1971 are not applicable to the present
case. Nonetheless, the case of the petitioner may not be improved
for the said reason, as his services condition being Police Personnel
were governed by the provisions of the Bombay Police Act, 1951
(for short ‘the Act, 1951’). As per proviso to Section 26 of the Act,
1951, in a case referred to in the second proviso to Article 311 (2)
(a) of the Constitution, there is no requirement to issue a show
cause notice to the Police Personnel before imposing punishment.
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Whereas, first proviso to Rule 19 of the Central Civil Services
(Classification, Control & Appeal) Rules, 1965 (for short ‘the Rules,
1965’), the reasonable opportunity in a case like the present one,
requires to be given to the Central Government Servant.
[11] The emphasis of Mr. Majmudar, learned advocate for the
petitioner that, in view of the decision of the coordinate Bench of
this Court in the case of Ramsingbhai Saburbhai Patel (supra), the
respondent must issue a show cause notice prior to passing an
order of dismissal.
[11.1] I have minutely gone through the aforesaid decision
pressed into service by Mr. Majmudar, learned advocate. Upon its
perusal, it appears that a coordinate Bench in that case, relied upon
the decision rendered in SCA No.9743 of 2020. I have also gone
through the aforementioned decision, wherein I found that it has
relied upon the judgment dated 31.07.2018 passed by a coordinate
Bench in the case of Budhsinh Jaisinh Patel Vs. State of Gujarat
rendered in SCA No.9967 of 2018. Upon perusal of the
aforementioned judgment, it can be seen that facts are so similar to
the case on hand and in the aforesaid judgment, a coordinate
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Bench has held that it is a condition precedent that authority must
issue notice before the passing an order of dismissal, so as to
observe the principles of natural justice, which according to the
Court, is pre-requisite in law.
[11.2] In the case of Budhsinh Jaisinh Patel (supra), following
has been observed and accordingly, held thus: –
“5. The proposition of law in Ahmadkhan Inayatkhan (supra)
relied on behalf of the petitioner and what is held in H.N. Rao (supra)
stand in opposite.
5.1 However, the law has developed and travelled farther, which is to be
learnt and gathered from decision of the Apex Court in Union of India
v. Sunil Kumar Sarkar [(2001) 3 SCC 414]. It would be worthwhile to
advert to analyse.
5.2 In Kiritkumar D. Vyas v. State of Gujarat [1982 (2) GLR 79]
this Court held, “mere conviction, therefore cannot be utilised for
passing an order of dismissal blindfoldedly without hearing the
delinquent on the question of sentence. Needless to add that this would
be so even in case where the disciplinary authority exercises powers
under Rule 14 of the Gujarat Civil Services (Discipline and Appeal)
Rules.”. Kiritkumar D. Vyas (supra) was a Division Bench judgment.
Relying on the same in a similar set of facts, learned Single Judge of this
Court in Shankabhai Naginbhai Patel being Special Civil
Application No.2349 of 1998 set aside the order removing the
petitioner of that petition keeping it open for the respondent to pass fresh
order after giving opportunity.
5.2.1 The Division Bench in Ahmadkhan Inayatkhan (supra) relied
on the decision in Kiritkumar D. Vyas (supra) as well as another
decision also of this Court in Laxman Waghgimal v. K.N. Sharma,
D.S.P., Kutch [1985 GLH (UJ-28) 20]. On the basis of the said
decisions, in Ahmadkhan Inayatkhan (supra) it was ruled in paragraph
3 that, “In this decision, this Court held that even though this rule does
not contemplate giving of the notice, it must be read into this rule thatPage 15 of 33
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notice should be given to satisfy the principles of natural justice.”.
5.2.2 Since in H.N. Rao (supra), a view was taken that show-cause
notice was not necessary, in paragraphs 6 adn 7 of the judgment, the
Court referred to the decisions taking contrary view including
Shankabhai Naginbhai Ptael (supra) and Kiritkumar D. Vyas
(supra) to hold that they did not take the correct view.
5.3 Now proceeding to look at The Supreme Court decision in Sunil
Kumar Sarkar (supra), it dealt with the case of a delinquent
undergoing sentence of imprisonment. The respondent was found guilty
and sentenced under the General Court Martial to rigorous
imprisonment for six years under the Army Act. The High Court found
fault with the order of dismissal passed by the disciplinary authority on
the ground that the same was solely based on conviction suffered by the
respondent in the Court Martial proceedings. It was held by the High
Court that the disciplinary authority had a predetermined mind when it
passed the order of dismissal.
5.3.1 In the context of the aforesaid facts the Supreme Court held,
“This is a summary procedure provided to take disciplinary
action against a government servant who is already convicted in
a criminal proceeding. The very foundation of imposing
punishment under Rule 19 is that there should be a prior
conviction on a criminal charge. Therefore, the question of having
a predetermined mind does not arise in such cases. All that a
disciplinary authority is expected to do under Rule 19 is to
be satisfied that the officer concerned has been convicted of
a criminal charge and has been given a show-cause notice
and reply to such show-cause notice, if any, should be
properly considered before making any order under this
Rule. Of course, it will have to bear in mind the gravity of the
conviction suffered by the government servant in the criminal
proceedings before passing any order under Rule 19 to maintain
the proportionality of punishment. In the instant case, the
disciplinary authority has followed the procedure laid down in
Rule 19, hence, it cannot be said that the disciplinary authority
had any predetermined mind when it passed the order of
dismissal.” (Para 8)
5.4 It is thus considered an essential requirement that before
disciplinary authority passed the order of dismissal against the
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respondent who was convicted of criminal charge to give show-cause
notice and to consider the reply given to the show- cause notice. The
Supreme Court held that at that stage the question of having
predetermined mind did not arise in such cases. In other words, the
Court considered the procedure of giving notice and consider defence
of the convict at that stage to be the meaningful exercise.
Dispensation of notice before taking action of dismissal against the
convicted person which is based on the theory of empty formality was
found not tenable in law.
5.5 The authority could not have judged at the stage of taking the
action of dismissal that the person to be dismissed was not prejudiced
since there was already a conviction recorded against him. The stage
to apply the test of prejudice would arrive at a subsequent point of
time. The requirement of giving notice and appreciating the reply of
the person concerned was not viewed as an empty formality but a
condition precedent before passing the order of dismissal under the
Rule. The observance of natural justice to this extent was treated as
pre-requisite in law.
6. In view of the aforesaid decision in Sunil Kumar Sarkar (supra)
and the ratio thereof, the decisions of this Court in H.N. Rao
(supra) and those judgments taking the view that prior notice is not
necessary, no more stand to be the good law. The ratio in Sunil
Kumar Sarka (supra) would prevail and the proposition of law laid
down by this Court in Kiritkumar D. Vyas (supra), Shankabhai
Naginbhai Patel (supra) as well as in Ahmadkhan Inayatkhan
(supra) stand revived to be the law holding the field to be applied.”
(Emphasis supplied)
[12] Once a coordinate Bench has taken the aforesaid view,
ordinarily it is binding on me; in the event of a disagreement, I
would be required to refer the matter to a Division Bench. As such,
the view taken by a coordinate Bench is contrary to the binding
precedent of the Constitution Bench decision of the Hon’ble Apex
Court in the case of Union of India & Anr. Vs. Tulsiram Patel
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reported in AIR 1985 SC 1416. It is trite law that any decision of a
High Court which runs contrary to a Constitution Bench decision
of the Hon’ble Apex Court, such decision can never be treated as
binding precedent. [See – Collector of Central Excise Vs. Orient
Fabrics Pvt. Ltd. Reported in (2004) 1 SCC 597]. In such
eventuality, I find it necessary to depart from that view without
referring this matter to Division Bench, albeit for following
reasons.
[12.1] It can be seen from the aforesaid reading of decision of a
coordinate bench in a case of Budhsinh Jaisinh Patel (supra), that
while taking the aforesaid view, the reliance was placed upon
decision of the Hon’ble Apex Court in the case of Union of India v.
Sunil Kumar Sarkar reported in (2001) 3 SCC 414. The facts of that
case before the Hon’ble Apex Court are not so similar like the
present case or a case before a coordinate bench, inasmuch as the
Rule 19 of the Rules, 1965 is not applicable to the present case. The
said rule is applicable in the case of Central Government Servant.
It was considered by the Hon’ble Apex Court, and in light of such
rule, it has been observed that under Rule 19 of the Rules, 1965, a
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disciplinary authority is required to be satisfied that the officer
concerned has been convicted of a criminal charge, and before
passing any order under the said Rule, a show-cause notice to be
served upon the officer concerned. As observed and reproduced
said Rule 19 of the Rules, 1965, hereinabove, the rule itself
provides an opportunity of hearing to be given to officer
concerned on eventuality of his conviction due to his conduct.
Whereas, no similar provision like Rule 19 of the Rules, 1965, is
available, either in the Act, 1951 or under Rules, 1956, and /or in
the Rules, 1971, as the case may be. In such circumstances, and as
the impugned order in the present case was passed considering
the second proviso to Article 311 (2) (a) of the Constitution, it was
not incumbent upon respondent No.4 (the Disciplinary Authority)
to examine whether before passing the impugned order, a show-
cause notice was required to be issued to petitioner for observing
the principles of natural justice or not.
[12.2] As such, the aforesaid issue germane to the matter is
no longer res integra, in the case of Tulsiram Patel (supra), the
Constitution Bench of the Hon’ble Apex Court has observed and
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held thus:
“61. The language of the second proviso is plan and unambiguous.
The key-words in the second proviso are “this clause shall not apply”. By
“this clause” is meant clause(2). As clause(2) requires an inquiry to be
held against a government servant, the only meaning attributable to
these words is that this inquiry shall not be held. There is no scope for
any ambiguity in these words and there is no reason to given them any
meaning different from the plain and ordinary meaning which they bear.
The resultant effect of these words is that when a situation envisaged in
any of the three clauses of the proviso arises and that clause becomes
applicable, the safeguard provided to a government servant by clause (2)
is taken away. As pointed out earlier, this provision is as much in public
interest and for public good and a matter of public policy as the pleasure
doctrine and the safeguards with respect to security of tenure contained
in clauses (1) and (2) of Article 311.
62. Before, however, any clause of the second proviso can come into
play the condition laid down in it must be satisfied. The condition for the
application of each of these clauses is different. In the case of clause (a) a
government servant must be guilty of conduct deserving the penalty of
dismissal, removal or reduction in rank which conduct has led to him
being convicted on a criminal charge. In the case of clause (b) the
disciplinary authority must be satisfied that it is not reasonably
practicable to hold an inquiry. In the case of clause (c) the President or
the Governor of a State, as the case may be, must be satisfied that in the
interest of the security of the State, it is not expedient to hold an inquiry.
When these conditions can be said to be fulfilled will be discussed later
while dealing separately with each of the three clauses. The paramount
thing, however, to bear in mind is that the second proviso will apply
only where the conduct of a government servant is such as he deserves
the punishment of dismissal, removal or reduction in rank. If the
conduct is such as to deserve a punishment different from those
mentioned above, the second proviso cannot come into play at all,
because Article 311 (2) is itself confined only to these three penalties.
Therefore, before denying a government servant his constitutional right
to an inquiry, the first consideration would be whether the conduct of the
concerned government servant is such as justifies the penalty of
dismissal, removal or reduction in rank. Once that conclusion is reached
and the condition specified in the relevant clause of the second proviso isPage 20 of 33
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satisfied, that proviso becomes applicable and the government servant is
not entitled to an inquiry. The extent to which a government servant
can be denied his right to an inquiry formed the subject-matter of
considerable debate at the Bar and we, therefore, now turn to the
question whether under the second proviso to Article 311(2) even
though the inquiry is dispensed with, some opportunity at least
should not be afforded to the government servant to that he is not
left wholly without protection. As most of the arguments on this
Part of the case were common to all the three clauses of the second
proviso, it will be convenient at this stage to deal at one place with all
the arguments on this part of the case, leaving aside to be separately
dealt with the other arguments pertaining only to a particular clause of
the second proviso.
70. The position which emerges from the above discussion is
that the key-words of the second proviso govern each and every
clause of that proviso and leave no scope for any kind of
opportunity to be given to a government servant. The phrase “this
clause shall not apply” is mandatory and not directory. It is in the
nature of a Constitutional prohibitory injunction restraining the
disciplinary authority from holding an inquiry under Article 311(2) or
from giving any kind of opportunity to the concerned government
servant. There is thus no scope for introducing into the second
proviso some kind of inquiry or opportunity by a process of
inference or implication. The maxim “expressum facit cessare
tacitum” (“when there is express mention of certain things, then
anything not mentioned is excluded”) applies to the case. As pointed out
by this Court in B. Shankara Rao Badam & Ors. v. State of Mysore &
Anr., [1969] 3 S.C.R. 1, 12, this well-known maxim is a principle of
logic and common sense and not merely a technical rule of construction.
The second proviso expressly mentions that clause (2) shall not apply
where one of the clauses of that proviso becomes applicable. This express
mention excludes everything that clause (2) contains and there can be no
scope for once again introducing the opportunities provided by clause (2)
or any one of them into the second proviso. In Atkinson v. United States
of America Government, L.R. [1971] A.C. 197, Lord Reid said (at page
232) :
“It is now well recognised that the court has power to expand procedure
laid down by statute if that is necessary to prevent infringement ofPage 21 of 33
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natural justice and is not plainly contrary to the intention of
Parliament.”
Here, however, the attempt is not merely to do something contrary to the
intention of “Parliament”, that is, in our case, the Constituent
Assembly, but to do something contrary to an express prohibition
contained in the Constitution. The conclusion which flows from the
express language of the second proviso is inevitable and there is
no escape from it. It may appear harsh but, as mentioned earlier,
the second proviso has been inserted in the Constitution as a
matter of public policy and in public interest and for public good
just as the pleasure doctrine and the safeguards for a government
servant provided in clause (1) and (2) of Article 311 have been . It
is in public interest and for public good that government servant who
has been convicted of a grave and serious offence or one rendering him
unfit to continue in office should be summarily dismissed or removed
from service instead of being allowed to continue in it at public expense
and to public detriment. It is equally in public interest and for public
good that where his offence is such that he should not be permitted to
continue to hold the same rank, that he should be reduced in rank.
Equally, where a public servant by himself or in concert with others has
brought about a situation in which it is not reasonably practicable to
hold an inquiry and his conduct is such as to justify his dismissal,
removal or reduction in rank, both public interest and public good
demand that such penalty should forthwith and summarily be imposed
upon him; and similarly, where in the interest of the security of the State
it is not expedient to hold an inquiry, it is in the public interest and for
public good that where one of the three punishments of dismissal,
removal or reduction in rank is called for, it should be summarily
imposed upon the concerned government servant. It was argued that in
a case falling under clause (b) or (c), a government servant ought to be
place under suspension until the situation improves or the danger to the
security of the State has passed, as the case may be, and it becomes
possible to hold an inquiry. This argument overlooks the fact that
suspension involves the payment at least of subsistence allowance and
such allowance is paid at public expense, and that neither public interest
would be benefited nor public good served by placing such government
servant under suspension because it may take a considerable time for the
situation to improve or the danger to be over. Much as this may seem
harsh and oppressive to a government servant, this Court must
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not forget that the object underlying the second proviso is public
policy, public interest and public good and the Court must,
therefore, repel the temptation to be carried away by feelings of
commiseration and sympathy for those government servants who
have been dismissed, removed or reduced in rank by applying the
second proviso. Sympathy and commiseration cannot be allowed to out
weigh considerations of public policy, concern for public interest, regard
for public good and the peremptory dictate of a Constitutional
prohibition. The Court must bear in mind that the second proviso has
been in the Constitution since it was originally enacted. It was not
blindly or slavishly copied from section 240(3) of the Government of
India Act, 1935. Article 311 was article 282-B of the draft Constitution
of India and the draft Article 282-B was discussed and a considerable
debate took place on it in the Constituent Assembly (see the Official
Report of the Constituent Assembly Debates, vol.IX, page 1099 to
1116). The greater part of this debate centred upon the proviso to clause
(2) of the draft article 282-B, which is now the second proviso to Article
311. Further, the Court should also bear in mind that clause (c) of the
second proviso and clause (3) of Article 311 did not feature in section
240 of the Government of India Act, 1935, but were new provisions
consciously introduced by the Constituent Assembly in Article 311.
Those who formed the Constituent Assembly were not the advocates of a
despotic or dictatorial form of government. They were the persons who
enacted into our Constitution the Chapter on Fundamental Rights. The
majority of them had fought for freedom and had suffered imprisonment
in the cause of liberty and they, therefore, were not likely to introduce
into our Constitution any provision from the earlier Government of
India Acts which had been intended purely for the benefit of a foreign
imperialistic power. After all, it is not as if a government applied to him.
There are two remedies open to him, servant is without any remedy
when the second proviso has been applied to him. There are two remedies
open to him, namely, departmental appeal and judicial review. The scope
and extent of these remedies will be considered later in the course of this
judgment.
101. Not only, therefore, can the principles of natural justice be
modified but in exceptional cases they can even be excluded. There
are well-defined exceptions to the nemo judex in causa sua rule as
also to the audi alteram partem rule. The nemo judex in causa sua
rule is subject to the doctrine of necessity and yields to it as pointed out
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by this Court in J.Mohapatra & Co. and another v. State of Orissa and
another [1985] 1 S.C.R. 322,334-5. So far as the audi alteram partem
rule is concerned, both in England and in India, it is well established
that where a right to a prior notice and an opportunity to be heard before
an order is passed would obstruct the taking of prompt action, such a
right can be excluded. This right can also be excluded where the nature
of the action to be taken, its object and purpose and the scheme of the
relevant statutory provisions warrant its exclusion; nor can the audi
alteram partem rule be invoked if importing it would have the effect of
paralysing the administrative process or where the need for promptitude
or the urgency of taking action so demands, as pointed out in Maneka
Gandhi’s case at page 681. If legislation and the necessities of a situation
can exclude the principles of natural justice including the audi alteram
partem rule, a fortiorari so can a provision or the Constitution, for a
Constitutional provision has a far greater and all-pervading sanctity
than a statutory provision. In the present case, clause (2) of Article 311
is expressly excluded by the opening words of the second proviso and
particularly its key-words this clause shall not apply. As pointed out
above, clause (2) of Article 311 embodies in express words the audi
alteram partem rule. This principle of natural justice having been
expressly excluded by a Constitutional provision, namely, the
second proviso to clause (2) of Article 311, there is no scope for
reintroducing it by a side-door to provide once again the same
inquiry which the Constitutional provision has expressly
prohibited. Where a clause of the second proviso is applied on an
extraneous ground or a ground having no relation to the situation
envisaged in that clause, the action in so applying it would be mala fide,
and, therefore, void. In such a case the invalidating factor may be
referable to Article 14. This is, however, the only scope which Article 14
can have in relation to the second proviso. but to hold that once the
second proviso is properly applied and clause (2) of Article 311 excluded,
Article 14 will step in to take the place of clause (2) would be to nullify
the effect of the opening words of the second proviso and thus frustrate
the intention of the makers of the Constitution. The second proviso is
based on public policy and is in public interest and for public good and
the Constitution – makers who inserted it in Article 311(2) were the best
persons to decide whether such an exclusionary provision should be there
and the situations in which this provision should apply.
102. In this connection, it must be remembered that a government
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servant is not wholly without any opportunity. Rules made under the
proviso to Article 309 or under Acts referable to that Article generally
provide for a right of appeal except in those cases where the order of
dismissal, removal or reduction in rank is passed by the President or the
Governor of a State because they being the highest Constitutional
functionaries, there can be no higher authority to which an appeal can lie
from an order passed by one of them. Thus, where the second proviso
applies, though there is no prior opportunity to a government
servant to defend himself against the charges made against him
he has the opportunity to show in an appeal filed by him that the
charges made against him are not true. This would be a sufficient
compliance with the requirements of natural justice. In Maneka
Gandhi’s case and in Liberty Oil Mills and others v. Union of India and
others [1984] 3 S.C.C. 465 the right to make a representation after an
action was taken was held to be a sufficient remedy, and an appeal is a
much wider and more effective remedy than a right of making a
representation.
The Second Proviso – Clause (a)
127. Not much remains to be said about clause (a) of the second
proviso to Article 311(2). To recapitulate briefly, where a disciplinary
authority comes to know that a government servant has been convicted
on a criminal charge, it must consider whether his conduct which has led
to his conviction was such as warrants the imposition of a penalty and, if
so, what that penalty should be. For that purpose it will have to peruse
the judgment of the criminal court and consider all the facts and
circumstances of the case and the various factors set out in Challappan’s
case. This, however, has to be done by it ex parte and by itself.
Once the disciplinary authority reaches the conclusion that the
government servant’s conduct was such as to require his dismissal or
removal from service or reduction in rank he must decide which of these
three penalties should be imposed on him. This too it has to do by
itself and without hearing the concerned government servant by
reason of the exclusionary effect of the second proviso. The
disciplinary authority must, however, bear in mind that a conviction on
a criminal charge does not automatically entail dismissal, removal or
reduction in rank of the concerned government servant. Having decided
which of these three penalties is required to be imposed, he has to pass
the requisite order. A government servant who is aggrieved by the
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penalty imposed can agitate in appeal, revision or review, as the case
may be, that the penalty was too severe or excessive and not warranted
by the facts and circumstances of the case. If it is his case that he is not
the government servant who has been in fact convicted, he can also
agitate this question in appeal, revision or review. If he fails in all the
departmental remedies and still wants to pursue the matter, he can
invoke the court’s power of judicial review subject to the court
permitting it. If the court finds that he was not in fact the person
convicted, it will strike down the impugned order and order him to be
reinstated in service. Where the court finds that the penalty imposed by
the impugned order is arbitrary or grossly excessive or out of all
proportion to the offence committed or not warranted by the facts and
circumstances of the case or the requirements of that particular
government service the court will also strike down the impugned order.
Thus, in Shankar Dass v. Union of India and another, [1985] 2 S.C.C.
358, this Court set aside the impugned order of penalty on the ground
that the penalty of dismissal from service imposed upon the appellant
was whimsical and ordered his reinstatement in service with full back
wages. It is, however, not necessary that the Court should always order
reinstatement. The Court can instead substitute a penalty which in its
opinion would be just and proper in the circumstances of the case.”
(Emphasis supplied)
[12.3] It is deduced from the aforementioned dictum that in a
case where Government Servant has been convicted on a criminal
charge, the Disciplinary Authority only requires to consider
whether the conduct of delinquent leading to the conviction
warrants the imposition of a penalty. For that purpose, it will have
to pursue the judgment of the criminal Court concerned and
consider the all facts and circumstances of the case. As held, this
has to be done by the Disciplinary Authority ex parte and by itself.
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Once the Disciplinary Authority reaches to the conclusion that
government servant’s conduct was such as it requires his dismissal
etc., same should be decided by him. It is clearly held that the
aforesaid has to be done by the Disciplinary Authority without
hearing the concerned government servant, due to reason of
exclusionary effect of the second proviso to Article 311(2)(a) of the
Constitution. Thus, in view of the aforesaid dictum, there cannot
be any second view which can be taken at least by this Court,
rather it requires to follow and apply the ratio laid down by the
Hon’ble Apex Court in the case of Tulsiram Patel (supra) in
appropriate case, such as present one.
[12.4] At this stage, it would also be apposite to refer the
decision of this Court in the case of H.N.Rao Vs. State of Gujarat
& Ors. reported in 2000 (3) G.L.H. 358, wherein, in para 6 & 7, held
as under: –
“6. It is not disputed that the petitioner was not afforded an opportunity
of hearing before making the impugned order. The question is whether
the petitioner was required to be given such an opportunity. This Court
[i.e., myself] in the matter of Rambadan R. Shukla & Anr., [Supra],
having considered the judgment of the Hon’ble Supreme Court in the
matter of Union of India v. Tulsi Ram Patel [AIR (1985) SC 1416] and
Rule 10 (4) of the Gujarat Civil Service [Discipline & Appeal] Rules,
1971 [as amended on 16th April, 1986] has taken the view that thePage 27 of 33
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deliquent has no right to an opportunity of making representation or of
hearing on the penalty proposed to be imposed. Hence, the order of
penalty made without affording an opportunity to the deliquent
to show cause against the proposed penalty or of hearing would
not be vitiated on that count. The said decision has been
confirmed by the Division Bench of this Court [Coram K.
Shreedharan, CJ & A.R Dave, J.] on 4th May, 1998 in Letters
Patent Appeal No. 5 of 1997. Mr. Supehia has also relied upon the
judgment of the learned Single Judge [Coram : Mr. Justice NN Mathur]
in the matter of Shankabhai Naginbhai Patel v. State of Gujarat [Special
Civil Application No. 2349 of 1998 decided on 23rd July, 1998]
[Annexure-G to the petition].
7. In the said judgment, in a similar set of facts, the learned Judge,
relying upon the judgment of this Court in the matter of Kiritkumar D.
Vyas v. State & Anr., [23 (2) GLR 79] quashed and set-aside the order
of removal from service of the deliquent petitioner and directed that, `it
will be open for the respondents to pass a fresh order after giving
opportunity of hearing to the petitioner.’ As discussed by me in the
matter of Rambadan [Supra], since the amendment of 16th April, 1986
in Rule 10 (4) of the Gujarat Civil Service [Disicipline & Appeal] Rules,
1971, no hearing is required to be afforded to the deliqent government
servant who is punished pursuant to his conviction by a criminal court
on a criminal charge. Neither the aforesaid judgment in the matter of
Rambadan [Supra] nor the amended rule 10 (4) was brought to the
notice of the learned Judge in the matter of Sankabhai [Supra]. The
Court had no occasion either to consider the judgment in the matter of
Rambadan [Supra] nor the order made in appeal by the Division Bench,
nor the amended Rule 10 (4) of the Discipline & Appeal Rules. The said
judgment, therefore, is per incuriam and shall not be applicable.”
(Emphasis supplied)
[12.5] The aforesaid decision of a coordinate bench of this
Court in the case of H.N.Rao (supra) has been confirmed by the
Division Bench and it was passed following the judgment in the
case of Tulsiram Patel (supra). It has been clearly held in
aforementioned decision that the delinquent has no right of
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hearing on the penalty proposed to be imposed and so, any such
order passed without hearing would not be vitiated on that count.
It appears that in the case of Budhsinh Jaisinh Patel (supra), the
above referred provisions of the Act and Rules discussed above
either not brought to the notice or in absentia, only placing reliance
upon decision of the Hon’ble Apex Court in the case of Sunil
Kumar Sarkar (supra) and unnoticing the ratio of Constitution
Bench decision in the case of Tulsiram Patel (supra), held that
ratio of decision of this Court in the case of H.N.Rao (supra), no
more stand to be good law. With profound respect, and in view of
the aforesaid, I am unable to subscribe to the view taken in case of
Budhsinh Jaisinh Patel (supra). In my view, the decision of this
Court in the case of H.N. Rao (supra) continues to hold the field
and is, in fact, good law; rather, decision of a coordinate bench in
the case of Budhsinh Jaisinh Patel (supra), and other decisions
followed such decision, run contrary to decision of the
Constitution Bench in the case of Tulsiram Patel (supra), are no
longer remain good law.
[13] In light of the foregoing discussions and the ratio laid down
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by the Hon’ble Apex Court in Tulsiram Patel (supra), and in
absence of any specific statutory provision such as the Rule 19 of
the Rules, 1957, granting any opportunity of making
representation or otherwise, there is no legal requirement to issue
a show cause notice to State Government servant such as
petitioner prior to passing an order of punishment, provided the
case is governed by second proviso to Article 311 (2) (a) of the
Constitution. Nonetheless, before passing such order, in view of
the said provisions and as discussed above, the Disciplinary
Authority must reach to the conclusion that conduct of
government servant – delinquent has led to his conviction on a
criminal charge. Thus, the authority concerned, while passing the
order of punishment, must observe that satisfaction in the order
and it cannot pass a mechanical order merely because government
servant is found convicted.
[14] Although in the case on hand, no argument was canvassed
by Mr. Majmudar learned advocate for the petitioner, that
impugned order was passed in a mechanical manner unnoticing
the requirement of law. Nevertheless, I have minutely gone
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through the impugned order to verify as to whether respondent
No.4 undertook the exercise as directed in Tulsiram Patel (supra).
The petitioner was a police personnel found convicted as per the
provisions of the Act, 1988 and upon going through the order
impugned in this petition, I am of the view that respondent No.4 –
Disciplinary Authority has taken into account the relevant aspect
which requires to be verified. It has been clearly recorded in the
impugned order that petitioner was tried for ACB case under the
Act, 1988 and having found convicted by the Special (ACB) Court
and considering such serious conduct of the petitioner for which
he is convicted, then observed that it would not be desirable to
continue him in service, thus, it has passed impugned order of
dismissal. According to my view, no error can be found in the
order impugned in any respect.
[15] Before parting with the judgement, it would be apposite to
refer to the pertinent observations of the Hon’ble Apex Court in
the case of K.C. Sareen (supra) wherein observed and held thus: –
“12. Corruption by public servants has now reached a monstrous
dimension in India. Its tentacles have started grappling even the
institutions created for the protection of the republic. Unless thosePage 31 of 33
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tentacles are intercepted and impeded from gripping the normal and
orderly functioning of the public offices, through strong legislative,
executive as well as judicial exercises the corrupt public servants could
even paralyse the functioning of such institutions and thereby hinder the
democratic polity. Proliferation of corrupt public servants could garner
momentum to cripple the social order if such men are allowed to continue
to manage and operate public institutions. When a public servant was
found guilty of corruption after a judicial adjudicatory process conducted
by a court of law, judiciousness demands that he should be treated as
corrupt until he is exonerated by a superior court. The mere fact that an
appellate or revisional forum has decided to entertain his challenge and to
go into the issues and findings made against such public servants once
again should not even temporarily absolve him from such findings. If such
a public servant becomes entitled to hold public office and to continue to do
official acts until he is judicially absolved from such findings by reason of
suspension of the order of conviction it is public interest which suffers and
sometimes even irreparably. When a public servant who is convicted
of corruption is allowed to continue to hold public office it would
impair the morale of the other persons manning such office, and
consequently that would erode the already shrunk confidence of the
people in such public institutions besides demoralising the other
honest public servants who would either be the colleagues or
subordinates of the convicted person. If honest public servants are
compelled to take orders from proclaimed corrupt officers on account of the
suspension of the conviction the fall out would be one of shaking the
system itself. Hence it is necessary that the court should not aid the
public servant who stands convicted for corruption charges to hold
only public office until he is exonerated after conducting a judicial
adjudication at the appellate or revisional level. It is a different
matter if a corrupt public officer could continue to hold such public office
even without the help of a court order suspending the conviction.
13. The above policy can be acknowledged as necessary for the efficacy and
proper functioning of public offices. If so, the legal position can be laid
down that when conviction is on a corruption charge against a public
servant the appellate court or the revisional court should not suspend the
order of conviction during the pendency of the appeal even if the sentence
of imprisonment is suspended. It would be a sublime public policy that the
convicted public servant is kept under disability of the conviction in spite
of keeping the sentence of imprisonment in abeyance till the disposal of the
appeal or revision.”
(Emphasis supplied)
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NEUTRAL CITATION
C/SCA/7162/2022 CAV JUDGMENT DATED: 20/03/2026
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CONCLUSION
[16] In view of the foregoing observations and reasons, and
having analyzed the applicable statutory provisions in the present
case alongside the ratio laid down by the Constitution Bench of the
Hon’ble Apex Court in Tulsiram Patel (supra), I am of the view
that there is no legal requirement to issue a show cause notice to
the petitioner prior to passing of the impugned order of
punishment by respondent No.4.
[16.1] Since the conduct of the petitioner lead to his conviction
under the Act, 1988, in the aforesaid ACB case, the impugned
order dismissing him from service suffers from no error of law.
[17] In view of the foregoing conclusions, I do not find any merit
in the petition, which is liable to be dismissed. Accordingly, it is
hereby dismissed. Rule is discharged. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J.)
Lalji Desai
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