National
Engineering Industries Limited Vs. Shri Shri Kishan Bhageria & Ors [1987] INSC
325 (11 November 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
CITATION:
1988 AIR 329 1988 SCR (1) 985 1988 SCC Supl. 82 JT 1987 (4) 569 1987 SCALE
(2)1301
ACT:
Industrial
Disputes Act, 1947: Section 2(s)-'Workman'- who is-Internal Auditor in
Company-Not doing supervisory work-only checking up on behalf of employer-No
independent authority or right to take decision-Such employee held 'workman'-I.
D. Act not repugnant to Rajasthan Shops and Commercial Establishments Act 1958.
Rajasthan
Shops and Commercial Establishments Act, 1958: Sections 28A and 37-Whether
repugnant to Industrial Disputes Act 1947-Employee's petition against
dismissal- Dismissed on ground of limitation-Relief through petition under I.
D. Act 1947-Whether barred.
HEADNOTE:
%
The Ist respondent was working in the appellant-company as an Internal Auditor
on a monthly salary of Rs.1186-60P per month. The appellant alleged that the
respondent started absenting himself from 28th January, 1978 and as such was
not entitled to any salary for any period beyond the said date. The respondent
was thereafter placed under suspension on 30th March, 1978.
On
4th May, 1978 the respondent filed an application under section 33C(2) of the
Industrial Disputes Act, 1947 claiming a total sum of Rs.4746-40p on account of
salary from Ist January, 1978 to 30th April, 1978. The appellant objected on
the ground that the respondent was not a 'workman'. On 9th November, 1978 there
was an order dismissing the respondent from service.
On
2nd January, 1979 the respondent filed an application under section 28A of the
Rajasthan Shops and Commercial Establishments Act, 1958 which was dismissed on
31st July, 1979 on the ground of limitation.
On
the 2nd August, 1979 the Labour Court held that the respondent was doing
clerical duties and as such was a 'workman' under the Industrial Disputes Act
and he was entitled to Rs.2060-98p as salary 986 from 9th March, 1978 to 30th
April, 1978. There was also a reference under section 10 of the Industrial
Disputes Act, 1947 on 8th August, 1960 arising out of the dismissal of the
respondent. The appellant filed a writ petition challenging this order.
All
the aforesaid writ petitions were disposed of by a Single Judge of the High
Court on 16th March, 1982 holding that the respondent was not a 'workman'.
Division
Bench of the High Court, however reversed the aforesaid judgment and held that
the respondent was a 'workman'. The two writ petitions of the appellant were
dismissed, while the writ petition of the respondent was allowed.
Aggrieved
by the aforesaid orders the appellant appealed to this Court. On the questions:
(1) whether the respondent was a 'workman' or not within the definition of
section 2(s) of the Industrial Disputes Act, 1947 and (2) whether the
Industrial Disputes Act, 1947 or the Rajasthan Shops and Commercial
Establishments Act, 1958 would apply.
Dismissing
the appeals, ^
HELD:
1.(a) Whether a person was performing supervisory or managerial work is a
question of fact. One must, therefore, look into the main work and that must be
found out from the main duties. A supervisor has to take some kind of decision
on behalf of the company. One who was reporting merely as to the affairs of the
company and making assessment for the purpose of reporting is not supervisor.
[992A-B]
(b) There is no controversy in the instant case, that the respondent is not
employed in any managerial or administrative capacity. Distribution of work may
easily be the work of a manager or an administrator but "checking"
the work so distributed or "keeping an eye" over it is certainly
supervision. A manager or administrator's work may easily include supervision
but that does not mean that supervision is the only function of a manager or an
administrator. Where there is a power of assigning duties and distribution of
work there is supervision. [990C,991A-B,991D] Mcleod and Co. v. Sixth
Industrial Tribunal West Bengal and others, A.I.R. 1958 Calcutta 273; All India
Reserve Bank Employees Association v. Reserve Bank of India, [1966] 1 S.C.R.
25; Llyods Bank 987 Ltd. v. Pannalal Gupta, [1961] 1 L.L.J. 18; Burmah Shell
Oil Storage & Distribution Co. Of India. v. Burmah Shell Management Staff
Association & Ors. [1971] 2 S.C.R. 758; The Punjab Co-operative Bank Ltd.
v. R.S. Bhatia (dead) through Lrs, [1975] 4 S.C.C. 696; Maheshwari v. Delhi
Administration
Delton
Cable India (P) Ltd., [1984] 2 S.C.C. 569 and Hind Construction and Engineering
Company Ltd. v. Their Workmen, [1965] 1 L.L.J. 462 referred to.
(c)
A checker on behalf of the management or employer is not a supervisor. [993E]
In the instant case, the nature of duties performed by Respondent No. 1 were
mainly reporting and checking up on behalf of the management. A reporter or a
checking clerk is not a supervisor. The respondent does not appear to be doing
any kind of supervisory work. He was undoubtedly checking up on behalf of the
employer but he had no independent right or authority to take decision and his
decision did not bind the company. The Division Bench came to the conclusion
that the respondent was a 'workman' within the meaning of section 2(s) of the
Industrial Disputes Act, 1947 taking into consideration the evidence recorded
before the Labour Court that the respondent is a workman and not a supervisor.
That conclusion on the appreciation of evidence cannot be interfered with under
Article 136 of the Constitution.
[993A-C]
2.(a) In order to raise the question of repugnancy two conditions must be
fulfilled. The State law and the Union law must operate in the same field and
one must be repugnant or inconsistent with the other. These are two cumulative
conditions which are required to be fulfilled. [995E] Deep Chand v. The State
of Uttar Pradesh and others, [1959] Suppl. 2 S.C.R. 8 and M/s. Hoechst
Pharmaceuticals Ltd. and others v. State of Bihar and others, [1983] 4 S.C.C.
45 at page 87 referred to.
(b)
In this case there is a good deal of justification to hold that these laws, the
Industrial Disputes Act, 1947 and the Rajasthan Shops and Commercial
Establishments Act, 1985 tread on the same field and both laws deal with the
rights of a dismissed workman or employee. But these two laws are not
inconsistent or repugnant to each other. The basic test of repugnancy is that
if one prevails the other cannot prevail. That is not the position in this
case.
[995F-G]
988 (c) The application under section 28A of the Rajasthan Act was dismissed
not on merits but on limitation. There is a period of limitation provided under
the Rajasthan Act and it may be extended for reasonable cause. But there is no
period of limitation as such provided under the Industrial Disputes Act.
Therefore, that will be curtailment of the rights of the workmen or employees
under the Industrial Disputes Act. In that situation section 37 declares that
law should not be construed to curtail any of the rights of the workmen.
[996A-B] (d) Social Welfare and labour welfare broadens from legislation to legislation
in India. It will be a well settled principle of interpretation to proceed on
that assumption and section 37 of the Rajasthan Act must be so construed. In no
way the Rajasthan Act could be construed to curtail the rights of the workman
to seek any relief or to go in for adjudication in case of the termination of
the employment. [996C] (e) There is, therefore, no conflict between the
Industrial Disputes Act, 1947 and Rajasthan Shops and Commercial Establishments
Act, 1985 and there is no question of repugnancy. These two Acts are
supplemental to each other. [994G-H; 996D]
3.
The High Court was, therefore, right in holding that Respondent No. 1 was a
'workman' and in granting relief on that basis. [996E] & CIVIL APPELLATE
JURISDICTION: Civil Appeal Nos.3521- 3523 of 1987.
From
the Judgment and order dated 17.10. 1986 of the Rajasthan High Court in D.B.
Civil Special (Writ) Appeals Nos. 27,28 of 1983 and 224 of 1982.
Dr.
Shankar Ghosh, N.C. Shah and Praveen Kumar for the Appellant. Tapas Ray, S.K. Jain,
Mrs. P.Jain and S. Atreya for the Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. After hearing
parties and after considering the relevant documents, additional as well as
original, we grant leave to appeal in these matters. The appeals are disposed
of by the judgment herein.
989
Since prior to Ist of January, 1978 the respondent No. 1 Shri Kishan Bhageria
was working under the appellant- company as an Internal Auditor on a monthly
salary of Rs.1186.60 per month. The appellant alleged that the respondent
started absenting himself from 28.1.78 and as such was not entitled to any
salary for any period beyond 28.1.78 The said respondent was thereafter placed
under suspension on 30th of March, 1978. The respondent on 4th of May, 1978
filed an application under section 33C(2) of the Industrial Disputes Act, 1947
(hereinafter called 'the Act') claiming the total sum of Rs.4,746.40 on account
of salary from Ist of January, 1978 to 30th of April, 1978 at the rate of
Rs.11,86.60 per month. The appellant company objected.
The
main ground of objections was that the respondent was not a workman. On or
about 9th of November, 1978 there was an order dismissing the respondent from
service. The respondent thereafter on 2nd of January, 1979 filed an application
under section 28A of the Rajasthan Shops & Establishments Act, 1958
(hereinafter called 'the Rajasthan Act'). The said application was dismissed on
31st of July 1979 on the ground of limitation. The Labour Court on 2nd of
August, 1979 held that the respondent was doing clerical duties and as such was
a workman under the Act and he was entitled to Rs.2,060 as salary from 1.1.78
to 9.3.78. The appellant filed Writ Petition No. 765 of 1979 in the Rajasthan
High Court against the order of the Labour Court allowing the said salary. The
respondent also filed another writ petition being writ petition No. 1091 of
1979 for declaration that he was entitled to receive Rs.2,066.98 as salary from
9.3.78 to 30.4.78. There was thereafter a reference under section 10 of the Act
on 8.8.80 arising out of the dismissal of the respondent. The appellant filed
another writ petition being Writ Petition No. 1623 of 1980 challenging the
order of reference. All these aforesaid writ petitions were disposed of by the
learned Single Judge of the Rajasthan High Court on 16.3.82 holding that the
respondent was not a workman. The other contentions urged before the leaned
Single Judge was not considered by the Division Bench in the view it took later
on. On 17th of October, 1986 the Division Bench reversed the judgment of the
learned Single Judge and held that the respondent was a workman. Two writ
petitions of the appellant were dismissed and the writ petition of the
respondent was allowed.
Aggrieved
by the aforesaid orders the appellant has come up in these appeals before this
Court.
The
main question which requires consideration in these appeals is whether the
respondent was a workman or not. For the determination of this question it is
necessary to refer to section 2(s) of the Act which defines "workman"
and states that it means any person employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or supervisory work for
hire or reward, whether the terms of employment be express or implied, and
includes any such person who has been dismissed discharged or retrenched in
connection with or as a consequence of any dispute. But sub-clause (iii) does
not include any person who is employed mainly in a managerial or administrative
capacity and sub-clause (iv) does not include any person who being employed in
a supervisory capacity draws wages exceeding one thousand six hundred rupees
per month or duties attached to the office or by reason of the powers vested in
him, discharges functions mainly of a managerial nature. In view of the said
definition, we are concerned here with the question whether the respondent was
a workman as not being employed in any supervisory capacity.
There
is no controversy that the said respondent is not employed in any managerial or
administrative capacity.
In
this case before we deal with the facts and the relevant authorities of this
Court it may be appropriate to refer to a decision of P.B. Mukharji, J. Of the
Calcutta High Court as the learned Chief Justice then was in Mcleod and Co. v.
Sixth Industrial Tribunal, West Bengal and others, A.I.R. 1958 Calcutta 273.
There the learned Judge observed that whether a person was a workman within the
definition of the Industrial Disputes Act was the very foundation of the
jurisdiction of the Industrial Tribunal.
The
Court further observed that in order to determine the categories of service
indicated by the use of different words like "supervisory",
"managerial", "administrative", it was necessary not to
import the notions of one into the interpretation of the other. The words such
as supervisory, managerial and administrative are advisedly loose expressions
with no rigid frontiers and too much subtlety should not be used in trying to
precisely define where supervision ends and management begins or administration
starts. For that would be theoretical and not practical. It has to be broadly
interpreted from a common sense point of view where tests will be simple both
in theory and in their application. The learned Judge further observed that a
supervisor need not be a manager or an administrator and a supervisor can be a
workman so long as he did not exceed the monetary limitation indicated in the
section and a supervisor irrespective of his salary is not a workman who has to
discharge functions mainly of managerial nature by reasons of the duties
attached to his office or of the powers vested in him. In that case the learned
Judge further held that a person in charge of a Department could not ordinarily
be a clerk even though he may not have power to take disciplinary action or
even though he may have another superior 991 officer above him. It was further
observed that distribution of work may easily be the work of a manager or an
administrator but "checking" the work so distributed or "keeping
an eye" over it is certainly supervision. It is reiterated that a manager
or administrator's work may easily include supervision but that does not mean
that supervision is the only function of a manager or an administrator.
Bearing
in mind the aforesaid indication, it would be necessary to discuss some
decisions of this Court. In All India Reserve Bank Employees Association v.
Reserve Bank of India, [1966] 1 S.C.R. 25, this Court dealing with certain
types of employees observed "These employees distribute work, detect
faults, report for penalty, make arrangements for filling vacancies, to mention
only a few of the duties which are supervisory and not merely clerical."
At page 46 of the report Hidayatullah, J. as the learned Chief Justice then was
observed that the work in a Bank involved layer upon layer of checkers and
checking is hardly supervision but where there is a power of assigning duties
and distribution of work there is supervision, (emphasis supplied). There the
Court referred to a previous decision in Llyods Bank Ltd. v. Pannalal Gupta,
[1961] 1 L.L.J. 18, where the finding of the Labour Appellate Tribunal was reversed
because the legal inference from proved facts was wrongly drawn and it was
reiterated that before a clerk could claim a special allowance payable to a
supervisor, he must prove that he supervises the work of some others who are in
a sense below him. It was pointed out by Hidayatullah, J. that mere checking of
the work of others is not enough because this checking was a part of accounting
and not of supervision and the work done in the audit department of a bank was
not supervision. (emphasis supplied).
In
Burmah Shell Oil Storage & Distribution Co. Of India. v. Burmah Shell
Management Staff Association & Ors., [1971] 2 S.C.R. 758, this Court
observed that a workman must be held to be employed to do that work which is
the main work he is required to do, even though he may be incidentally doing
other types of work. Therefore, in determining which of the employees in the
various categories are covered by the definition of 'workman' one has to see
what is the main or substantial work which he is employed to do. In The Punjab
Co-operative Bank Ltd. v. R.S. Bhatia (dead) through LRS., [1975] 4 S.C.C. 696
it was held that the accountant was supposed to sign the salary bills of the
staff even while performing the duties of a clerk. That did not make the respondent
employed in a managerial or administrative capacity. The workman was,
therefore, in that context rightly held as a clerk.
992
In P. Maheshwari v. Delhi Administration & Ors., [1983] 3 S.C.R. 949 the
question whether a person was performing supervisory or managerial work was the
question of fact to be decided bearing in mind the correct principle. The
principle therefore is, one must look into the main work and that must be found
out from the main duties. A supervisor was one who could bind the company to
take some kind of decision on behalf of the company. One who was reporting
merely as to the affairs of the company and making assessment for the purpose
of reporting was not a supervisor. See in this connection Black's Law
Dictionary, Special Deluxe, Fifth Edition. At page 1290, "Supervisor"
has been described, inter alia, as follows:
"In
a broad sense, one having authority over others, to superintend and direct.
The
term 'supervisor' means any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibility to direct
them, or to adjust their grievances, or effectively to recommend such action,
if in connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent
judgment." Reference may be made to the observations of this Court in Ved
Prakash Gupta v. M/s. Delton Cable India (P) Ltd., [1984] 2 S.C.C. 569. There
on facts a Security Inspector was held to be a workman. At page 575 of the
report this Court referred to the decision in Llyods Bank Ltd. v. Panna Lal
Gupta, (supra) and also the observations of this Court in Hind Construction and
Engineering Company Ltd. v. Their Workmen, [1965] 1 L.L.J. 462. In that case
the nature of the duties performed by the appellant showed that the substantial
part of the work of the appellant consisted of looking after the security of
the factory and its property by deputing the watchmen working under him to work
at the factory gate or sending them to watch-towers or around the factory or to
accompany visitors to the factory and making entries in the visitors' register
as regards the visitors and in the concerned registers as regards materials
entering into or going out of the premises of the factory. There it was found
that he had no power to appoint.
In
the instant case the evidence have been summarised by the Division Bench.
Reference may be made to pages 65, 73, 80, 84 to 94, 993 95, 96 and 97 of the
Paper Book which indicate the nature of duties performed by the respondent No.
1 herein. His duties were mainly, reporting and checking up on behalf of the
management. A reporter or a checking clerk is not a supervisor. The respondent
herein does not appear to us doing any kind of supervisory work. He was
undoubtedly checking up on behalf of the employer but he had no independent
right or authority to take decision and his decision did not bind the company.
In that view of the matter keeping the correct principle of law in mind the
Division Bench has come to the conclusion taking into consideration the
evidence recorded before the Labour Court that the respondent is a workman and
not a supervisor. That conclusion arrived at in the manner indicated above
cannot, in our opinion, be interfered with under Article 136 of the
Constitution. It is not necessary for our present purpose to set out in extenso
the evidence on record as discussed by the Division Bench. Our attention was,
however, drawn by the counsel for the respondent to certain correspondence, for
instance the letter at page 65 of the paper book bearing the date 14th of May,
1976 where the respondent reported that certain materials were lying in stores
deptt. in absence of any decision. It was further reiterated that on inspection
of the pieces that those pieces were found cracked.
Similarly,
our attention was drawn to several other letters and we have perused these
letters. We are of the opinion that the Division Bench was right that these
letters only indicated that the report was being made of the checking done by
the respondent. A checker on behalf of the management or employer is not a
supervisor.
In
the aforesaid view of the matter the conclusion of the Division Bench that
respondent No. 1 is a workman has to be sustained. We do so accordingly.
The
next question that arises in this case is whether Act would apply or the
Rajasthan Act would apply. In this connection section 28A of the Rajasthan Act
is material. It enjoins that no employer shall dismiss or discharge from his
employment any employee who has been in such employment continuously for a
period of not less than 6 months except for a reasonable cause and after giving
such employee at least one month's prior notice or on paying him one month's
wages in lieu of such notice. Sub-section (2) of section 28A gives every
employee, so dismissed or discharged, right to make a complaint in writing in
the prescribed manner to a prescribed authority within 30 days of the receipt
of the order of dismissal or discharge. Sub-section (3) of section 28A provides
that the prescribed authority shall cause a notice to be served on the employer
relating to the said complaint, record 994 briefly the evidence produced by the
parties, hear them and make such enquiry as it might consider necessary and
thereafter pass orders in writing giving reasons there for.
Section
37 of the Rajasthan Act reads as follows:
"37.
Saving of certain rights and privileges.- Nothing in this Act shall affect any
rights or privileges which an employee in any establishment is entitled to on
the date this Act comes into force under any other law, contract, custom or
usage applicable to such establishment or any award, settlement or agreement
binding on the employer and the employee in such establishment, if such rights
or privileges are more favourable to him than those to which he would be
entitled under this Act." It has to be borne in mind that section 2A of
the Act was amended to permit individual workman to ask for a reference in the
case of individual dispute. This amendment was assented to by the President on
1st of December, 1965.
The
Rajasthan Act received the assent of the President on 14th of July, 1958. On
8th March, 1972 Chapter 6A including section 28A was inserted in the Rajasthan
Act. Therefore the material provision of the Rajasthan Act is the subsequent
law. Under Article 254(2) of the Constitution if there was any law by the State
which had been reserved for the assent of the President and has received the
assent of the President, the State law would prevail in that State even if
there is an earlier law by the Parliament on a subject in the Concurrent List.
It appears that both of these Acts tread the same field and if there was any
conflict with each other, then section 28A of Rajasthan Act would apply being a
later law. We find, however, that there is no conflict. The learned Single
Judge of the Rajasthan High Court in Poonam Talkies, Dausa v. The Presiding
Officer, Labour Court, Jaipur, (S.B. Civil Writ Petition No. 1206/85 decided on
9.6.1986) so. That decision has been upheld by the Division Bench of the
Rajasthan High Court in Writ Appeal No. 231/86.
The
Division Bench of the High Court in the instant appeal relying on the said
decision held that there was no scope for any repugnancy. It appears to us that
it cannot be said that these two Acts do not tread the same field. Both these
Acts deal with the rights of the workman or employee to get redressal and
damages in case of dismissal or discharge, but there is no repugnancy because
there is no conflict between these two Acts, in pith and substance. There is no
inconsistency between these two acts. These two Acts, in our opinion, are
supplemental to each other.
995
In Deep Chand v. The State of Uttar Pradesh and others, [1959] Suppl. 2 S.C.R.
8, Subba Rao, J., as the learned Chief Justice then was observed that the
result of the authorities indicated was as follows:
"Nicholas
in his Australian Constitution, 2nd Edition, p. 303, refers to three tests of
inconsistency or repugnancy:
1.
There may be inconsistency in the actual terms of the competing statutes;
2.
Though there may be no direct conflict, a State law may be inoperative because
the Commonwealth Code is intended to be a complete exhaustive code; and
3.
Even in the absence of intention, a conflict may arise when both State and
Commonwealth seek to exercise their powers over the same subject matter."
Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals
Ltd. and others v. State of Bihar and others, [1983] 4 S.C.C. 45 at page 87
where A.P. Sen, J. exhaustively dealt with the principles of repugnancy and
observed that one of the occasions where inconsistency or repugnancy arose was
when on the same subject matter, one law would be repugnant to the other.
Therefore, in order to raise a question of repugnancy two conditions must be
fulfilled. The State law and the Union law must operate on the same field and
one must be repugnant or inconsistent with the other. These are two conditions
which are required to be fulfilled. These are cumulative conditions. Therefore,
these laws must tread on the same field and these must be repugnant or
inconsistent with each other. In our opinion, in this case there is a good deal
of justification to hold that these laws, the Industrial Disputes Act and the
Rajasthan Act tread on the same field and both laws deal with the rights of
dismissed workman or employee. But these two laws are not inconsistent or
repugnant to each other.
The
basic test of repugnancy is that if one prevails the other cannot prevail. That
is not the position in this case.
Learned
counsel on behalf of the appellant, however, contended that in this case, there
had been an application as indicated above under section 28A of the Rajasthan
Act and which was dismissed on ground of limitation. Sree Shankar Ghosh tried
to submit that there would be inconsistency or repugnancy between the two
decisions, one given on limitation and the other if any 996 relief is given under
the Act. We are unable to accept this position, because the application under
Section 28A of the Rajasthan Act was dismissed not on merit but on limitation.
There
is a period of limitation provided under the Rajasthan Act of six months and it
may be extended for reasonable cause. But there is no period of limitation
provided under the Industrial Disputes Act. Therefore, that will be curtailment
of the rights of the workmen or employees under the Industrial Disputes Act. In
the situation section 37 declares that law should not be construed to curtail
any of the rights of the workmen. As Poet Tennyson observed- "freedom
broadens from precedent to precedent" so also it is correct to state that
social welfare and labour welfare broadens from legislation to legislation in
India. It will be a well-settled principle of interpretation to proceed on that
assumption and section 37 of the Rajasthan Act must be so construed. Therefore
in no way the Rajasthan Act could be construed to curtail the rights of the workman
to seek any relief or to go in for an adjudication in case of the termination
of the employment. If that is the position in view of the provisions 6 months'
time in section 28A of the Rajasthan Act has to be ignored and that cannot have
any binding effect inasmuch as it curtails the rights of the workman under the
Industrial Disputes Act and that Act must prevail. In the premises, there is no
conflict between the two Acts and there is no question of repugnancy.
The
High Court was, therefore, right in holding that the respondent was workman and
in granting relief on that basis. Before we conclude we note that our attention
was drawn to certain observations of this Court that interference by the High
Court in these matters at the initial stage protracts adjudication and defeats
justice.
Reference
was made to certain observations in P. Maheshwari v. Delhi Admn. & Ors.,
(supra). But as mentioned hereinbefore in this case, the interference was made
by the High Court not at the initial stage.
In
the premises, we are of the opinion that the High Court was right in the view
it took. These appeals, therefore, fail and are accordingly dismissed. There
will, however, be no order as to costs. The reference before the Tribunal
should proceed as expeditiously as possible.
N.V.K.
Appeals dismissed.
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