Cholan
Roadways Limited Vs. G. Thirugnanasambandam [2004] Insc 773 (17 December 2004)
N. Santosh Hegde & S.B. Sinha S.B. Sinha, J :
This appeal is directed against the judgment and order dated 6.6.2001 passed
by a Division Bench of the Madras High Court in W.A. No.46/1993 as also the
judgment and order passed by the learned Single Judge of the said Court in a
Writ Petition No.11113/88 whereby and whereunder the writ petition filed by the
Appellant herein for setting aside order dated 29.4.88 passed by the Industrial
Tribunal, Tamil Nadu, Madras in Approval Petition No. 125 of 1985 rejecting the
grant of approval sought for as regard order of dismissal passed against the
Respondent herein was dismissed.
The factual matrix of the matter is not much in dispute.
The Respondent herein was a driver of a bus bearing No.TMN-4148 plying
between Tanjore and Nagapattinam. On 18.5.1985 while the said bus was driven by
the Respondent herein it met with an accident resulting in death of 7
passengers. According to the Appellant the said bus was being driven in a rash
and negligent manner. The road at the place of the accident was 300 ft wide and
straight one. The Respondent allegedly despite noticing that another bus was
coming from the opposite direction did not slow down the vehicle in order to
avoid collision therewith. It is said that the Bus was being driven at a speed
of 80 k.m.p.h. The bus driven by the Respondent herein is said to have swerved
suddenly to the extreme left side of the road which was lined with tamarind
trees on both sides. The impact of the said collusion was so severe that the
bus dashed against the protruding branches and stumps of the tamarind trees,
then dashed against the bus resulting the left side of the bus completely
damaged as a result whereof 7 passengers died and several persons were
seriously injured.
The Motor Vehicles Claims Tribunal, Madras awarded a sum of Rs. 9 lakhs to
the dependants of the victims as compensation for loss of life. It is not in
dispute that the Branch Manager of the Appellant, Mr. Venkatesan visited the
scene of the accident at about 4 p.m. on the same day and conducted an
investigation. During the said inspection some passengers were examined. He
submitted a detailed report. In furtherance of the said report, a disciplinary
proceeding was initiated against the Respondent on the following charges:
"1. On 18.5.85 while you served as the driver in the bus bearing No.TMN
4148 you have been very careless in your duty and around 3.00 p.m. near Poondi dashed against a tamarind tree which was at the edge of the road and thereby
caused a very big accident.
2. While you were on duty as aforesaid, even though it was a straight road
and was visible to a distance of about 300 ft. In respect of the buses which
come from the opposite direction, you have been very negligent and in a
careless and irresponsible manner move the bus very fast and dashed the front
left side of the bus against the branch of the tamarind tree which was cut and
found at the left side of the road and after that turned the bus towards the
right side and thereby caused heavy damage to the bus. On account of your
aforesaid act the entire left side of the bus dashed against the tamarind tree
branch which resulted in the passengers at the left side of the bus to sustain
grievous injuries and that seven passengers died in the aforesaid accident and
about 10 passengers sustained grievous injuries and that you were responsible
for the same.
3. Further, you were responsible for the loss of accessories of the bus to the
tune of Rs.30,000/- and also you were responsible for the loss of revenue for
the Corporation.
4. Further, you were responsible for tarnishing the fair name of the
Corporation amongst general public." In the domestic inquiry that followed
the said charge-sheet, two witnesses were examined on behalf of the Appellant.
The Inquiry Officer upon consideration of the materials brought on records
by the parties therein found the Respondent guilty of misconduct in relation to
the charges framed against him. The Inquiry Officer rejected the contention of
the Respondent herein that the bus was being driven at a slow speed and the
accident took place to save a boy who suddenly crossed the road holding:
"Thus it has been proved beyond doubt by the evidence adduced by the
management's side that the delinquent was careless, negligent and rash in
driving the bus at the time of the occurrence resulting in this accident and he
is responsible for this accident and consequences thereof and the defence
evidence by way of two statements adduced by the delinquent in proof of his
defence cannot be given any credit or credence for reasons already expatiated.
The delinquent has not alleged any brake failure in his earlier statement in
Ex.P-9 or in his written explanation to charge memo, in which he has stated
that he effectively used brake and halted the bus after impact." The
Respondent was, thereafter, dismissed from the services by the Disciplinary
Authority.
As an industrial dispute was pending before the Industrial Tribunal the
Appellant herein filed an application under Section 33(2)(b) of the Industrial
Disputes Act for grant of approval of the said order of dismissal. The learned
Presiding Officer, Industrial Tribunal by an order dated 29.4.88 despite
holding that 'the scope of adjudication in a proceeding under Section 33(2)(b)
of the Industrial Disputes Act is limited and while granting approval it does
not sit as a court of appeal re-appreciating the evidence for itself but has to
examine the findings of the Enquiry Officer on the evidence adduced in the
domestic enquiry to ascertain whether a prima facie case had been made out on
the charges leveled or if the findings are perverse', came to the following
findings:
"In the instant case, the domestic enquiry conducted cannot be
considered as fair and proper and is vitiated on account of the failure of the
Enquiry officer to observe the principles of natural justice by not examining
the passengers who had given the statements." On such finding the approval
sought for by the Appellant herein was rejected. A writ petition was filed by
the Appellant questioning the correctness or otherwise of the said order dated
1.12.1992 before the High Court. A learned Single Judge of the High Court
upheld the said order. A writ appeal No.46/1993 filed by the Appellant against
the order passed by the learned Single Judge was dismissed opining:
"Though the learned counsel for the Appellant placed reliance upon the
judgment of the Apex Singh reported in AIR 1977 SC 1512, we hold that the said
pronouncement of the Apex Court will not have any application to the present
case as it was a converse case where the finding are based upon some evidence,
namely, eye witness, and therefore, in that context, the Supreme Court held
that non- examination of the passenger will not vitiate the enquiry. The said
pronouncement will not have any application to the facts of the present case
and it is clearly distinguishable." Mr. K. Ramamurthy, learned senior
counsel on behalf of the Appellant would contend that the learned Tribunal and
consequently the learned Judges of the High Court committed a serious error in
passing the impugned judgments insofar as they failed to take into
consideration that in an enquiry of this nature it was not necessary to examine
the passengers of the bus. The learned counsel urged that the admitted
photographs of the bus in question after it met with an aforementioned accident
clearly demonstrate that the same was being driven in a rash and negligent
manner as a result of which 7 passengers died and some others suffered serious
injuries. It was submitted that the Respondent had not only afforded an
opportunity to the Respondent to cross examine the witnesses examined on behalf
of the Appellant but also was given the opportunity to examine his defence
witnesses and in that view of the matter the principles of natural justice must
be held to have fully been complied with. In support of the said contention,
learned counsel has strongly relied on a decision of this Court in Divisional
Mr. J. Buther, learned counsel on behalf of the Respondent, on the other hand,
would submit that in the domestic enquiry the alleged misconduct of the
Respondent cannot be said to have been proved inasmuch as no finding has been
recorded as regards the culpability of the Respondent vis-a-vis commission of
the said misconduct. It was further contended that only because an accident had
taken place, the same by itself in absence of the strict proof thereof and
having regard to the fact that the Respondent had been acquitted in the
criminal trial, cannot be held to be a ground to infer that the misconduct on
the part of the Respondent stood proved. The learned counsel in support of his
argument has placed reliance upon a decision of India & Others [(1999) 7
SCC 409] Section 33(2)(b) of the Industrial Disputes Act reads as under:
"(2) During the pendency of any such proceeding in respect of an
industrial dispute, the employer may, in accordance with the standing orders
applicable to a workman concerned in such dispute or, where there are no such
standing orders, in accordance with the terms of the contract, whether express
or implied, between him and the workman (a) *** (b) for any misconduct not
connected with the dispute, discharge or punish, whether by dismissal or
otherwise, that workman.
Provided that no such workman shall be discharged or dismissed, unless he
has been paid wages for one month and an application has been made by the
employer to the authority before which the proceeding is pending for approval
of the action taken by the employer." It is neither in doubt nor in
dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b)
of the Industrial Disputes Act is a limited one. The jurisdiction of the
Industrial Tribunal under Section 33(2)(b) cannot be equated with that of
Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry
has been held wherein the parties examined their witnesses. The Respondent was
represented and assisted by three observers. Shri M. Venkatatesan was the
Branch Manager, CRC Tanjore Town Branch, who had submitted his report and
proved the same before the Inquiry Officer. He furnished a detailed account of
the position of the bus vis-`-vis the other bus after the collision took place.
He found that there was no brake tyre mark of the bus on the road. All the two
seaters seats on the entire left side of the bus were found totally damaged.
The left side roof arch angle of the bus was found totally out. Not only 4
persons were found to be dead at the spot, the driver and conductor of the bus
and 10 other passengers were also sustained injuries in this accident. Out of
the said 10 passengers, 3 subsequently died in the hospital owing to the
injuries sustained by them. He further found that on the left side of the road
in the earthen margin, there was a tamarind tree's protruding branch and which
was found to have been already cut and the bottom stump of the branch was found
protruding to a length of 3 inches. The bus was found to have been brought to a
halt only at a distance of 81 ft. from the place of impact against the tree. He
further noticed that even after the impact of the bus against the tree, the
delinquent is said to have swerved the bus further to the right side from left
side without applying brake and reducing speed and later only be brought the
bus to a halt at some distance as a result of which the entire side roof angle
of the bus got cut.
The learned Presiding Officer, Industrial Tribunal, as noticed hereinbefore,
opined that the passengers of the bus should have been examined. It does not
appear from the order dated 29.4.88 passed by the Presiding Officer, Industrial
Tribunal that the Respondent herein made any prayer for cross examining the
passengers who travelled in the ill-fated bus and who were examined by the said
Shri M. Venkatesan. It is evident from the order of the learned Tribunal that
only in the show cause filed by the Respondent in response to the second show
cause notice, such a contention was raised. The learned Presiding Officer,
Industrial Tribunal in his impugned judgement further failed to take into
consideration that even if the statements of the said passengers are ignored,
the misconduct allegedly committed by the Respondent would stand proved on the
basis of the evidence adduced by Shri M. Venkatesan together with the
circumstantial evidences brought on records. The learned Single Judge of the
High Court although referred to the sketch drawn by PW-1 on the site (Ex.P-2)
and 4 photographs (Ex.P-8) but ignored the same observing that unless witnesses
were examined in support of the two exhibits, it is not possible to draw any
inference therefrom. The Division Bench of the High Court did not examine the
materials on records independently but referred to the findings of the
Industrial Tribunal as also the learned Single Judge to the effect that from
their judgments it was apparent that the driver had not been driving the bus
rashly and negligently.
It is now a well-settled principle of law that the principle of Evidence Act
have no application in a domestic enquiry.
In Maharastra State Board of Secondary and Higher Secondary "It is thus
well settled law that strict rules of the Evidence Act, and the standard of
proof envisaged therein do not apply to departmental proceedings or domestic
tribunal. It is open to the authorities to receive and place on record all the
necessary, relevant, cogent and acceptable material facts though not proved
strictly in conformity with the Evidence Act. The material must be germane and
relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy,
misappropriation, etc.
seldom direct evidence would be available. Only the circumstantial evidence
would furnish the proof. In our considered view inference from the evidence and
circumstances must be carefully distinguished from conjectures or speculation.
The mind is prone to take pleasure to adapt circumstances to one another and
even in straining them a little to force them to form parts of one connected
whole. There must be evidence direct or circumstantial to deduce necessary
inferences in proof of the facts in issue. There can be no inferences unless
there are objective facts, direct or circumstantial from which to infer the
other fact which it is sought to establish.The standard of proof is not proof
beyond reasonable doubt but the preponderance of probabilities tending to draw
an inference that the fact must be more probable.
Standard of proof, however, cannot be put in a strait-jacket formula. No
mathematical formula could be laid on degree of proof. The probative value
could be gauged from facts and circumstances in a given case. The standard of
proof is the same both in civil cases and domestic enquires." There
cannot, however, be any doubt whatsoever that the principle of natural justice
are required to be complied with in a domestic enquiry. It is, however,
well-known that the said principle cannot be stretched too far nor can be
applied in a vacuum.
The jurisdiction of the Tribunal while considering an application for grant
of approval has succinctly been stated by this Court in Martin Burn Ltd. vs
R.N. Banerjee (AIR 1958 SC 79). While exercising jurisdiction under Section
33(2(b) of the Act, the Industrial Tribunal is required to see as to whether a
prima facie case has been made out as regard the validity or otherwise of the
domestic enquiry held against the delinquent; keeping in view the fact that if
the permission or approval is granted, the order of discharge or dismissal
which may be passed against the delinquent employee would be liable to be
challenged in an appropriate proceeding before the Industrial Tribunal in terms
of the provision of the Industrial Disputes Act.
In Martin Burn's case (supra) this court stated:
"A prima facie case does not mean a case proved to the hilt but a case
which can be said to be established if the evidence which is led in support of
the same were believed. While determining whether a prima facie case had been
made out the relevant consideration is whether on the evidence led it was possible
to arrive at the conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence. It may be that the
Tribunal considering this question may itself have arrived at a different
conclusion. It has, however, not to substitute its own judgment for the
judgment in question. It has only got to consider whether the view taken is a
possible view on the evidence on the record. (See Buckingham & Carnatic Co.
Ltd. vs The Workers of the Company (1952) Lab. AC 490(F)." It is further
trite that the standard of proof required in a domestic enquiry vis-`-vis a
criminal trial is absolutely different. Whereas in the former 'preponderance of
probability' would suffice; in the latter, 'proof beyond all reasonable doubt'
is imperative.
The tribunal while exercising its jurisdiction under Section 33(2)(b) of the
Industrial Disputes Act was required to bear in mind the aforementioned legal
principles. Furthermore, in a case of this nature the probative value of the
evidence showing the extensive damages caused to the entire left side of the
bus; the fact that the bus first hit the branches of a tamarind tree and then
stopped at a distance of 81 ft therefrom even after colliding with another bus
coming from the front deserved serious consideration at the hands of the
tribunal. The nature of impact clearly demonstrates that the vehicle was being
driven rashly or negligently.
Res ipsa loquitur is a well-known principle which is applicable in the
instant case. Once the said doctrine is found to be applicable the burden of
proof would shift on the delinquent. As noticed hereinabove, the enquiry
officer has categorically rejected the defence of the Respondent that the bus
was being driven at a slow speed.
& Pressing Co. Pvt. Ltd. and another [AIR 1977 SC 1735] this Court
observed:
"6.The normal rule is that it is for the plaintiff to prove negligence
but as in some cases considerable hardship is caused to the plaintiff as the
true cause of the accident is not known to him but is solely within the
knowledge of the defendant who caused it, the plaintiff can prove the accident
but cannot prove how it happened to establish negligence on the part of the
defendant. This hardship is sought to be avoided by applying the principle of
res ipsa loquitur. The general purport of the words res ipsa loquitur is that
the accident "speaks for itself" or tells its own story. There are
cases in which the accident speaks for itself so that it is sufficient for the
plaintiff to prove the accident and nothing more. It will then be for the
defendant to establish that the accident happened due to some other cause than
his own negligence" Balwant Yadav and Others [(1996) 3 SCC 179].
In A.T. Mane (supra), this Bench observed:
"6Learned counsel relied on a judgment of this Court in support of this
contention of his in the B.S. Hullikatti [(2001) 2 SCC 574]. That was also a
case where a conductor concerned had committed similar misconduct 36 times
prior to the time he was found guilty and bearing that fact in mind this Court
held thus:- "Be that as it may, the principle of res ipsa loquitur,
namely, the facts speak for themselves, is clearly applicable in the instant
case. Charging 50 paise per ticket more from as many as 35 passengers could
only be to get financial benefit, by the Conductor. This act was either
dishonest or was so grossly negligent that the respondent was not fit to be
retained as a Conductor because such action or inaction of his is bound to
result in financial loss to the appellant corporation."
7. On the above basis, the Court came to the conclusion that the order of
dismissal should have been set aside. In our opinion, the facts of the above
case and the law laid down therein applies to the facts of the present case
also." observed:
"4. It is admitted that the petitioner himself was driving the vehicle
at the relevant time. It is also admitted that the bus was driven over a bridge
and then it fell into canal. In such a situation the doctrine of res ipsa
loquitur comes into play and the burden shifts on to the man who was in control
of the automobile to establish that the accident did not happen on account of
any negligence on his part. He did not succeed in showing that the accident
happened due to causes other than negligence on his part." The burden of
proof was, therefore, on the Respondent to prove that the vehicle was not being
driven by him rashly or negligently.
Furthermore, in a case involving accident it is not essential to examine
[(1977) 2 SCC 491] this Court observed:
"5. Reliance was placed, as earlier stated, on the non-compliance with
the departmental instruction that statement of passengers should be recorded by
inspectors. These are instructions of prudence, not rules that bind or vitiate
in the violation. In this case, the Inspector tried to get the statements but
the passengers declined, the psychology of the latter in such circumstances
being understandable, although may not be approved. We cannot hold that merely
because statements of passengers were not recorded the order that followed was
invalid.
Likewise, the re-evaluation of the evidence on the strength of
co-conductor's testimony is a matter not for the court but for the
administrative tribunal.
In conclusion, we do not think the courts below were right in overturning
the finding of the domestic tribunal." Yet again, this Court in A.T. Mane
(supra) referring to the decision of this court in Rattan Singh (supra) held:
"6In such circumstances, it was not necessary or possible for the
appellant corporation to have examined the passengers to establish the guilt
of the respondent. He also submitted that the finding of the Labour Court and
the learned Single Judge that the punishment is disproportionate to the
misconduct is wholly misconceived." In M/s Bareilly Electricity Supply Co.
Ltd.(supra) this Court was seized with a different question namely the
employer's liability to pay the bonus to the workmen which had a direct
relation with the profit earned by the company for the year 1960-61. In support
of financial condition of the management which had a direct nexus with the
employer's capacity to pay bonus and in that situation it was held that mere
production of a balance- sheet by the management would not serve the purpose as
the entries contained therein, if called in question, must be proved. The
tribunal in that case came to the conclusion that management had failed to
prove the original cost of the machines, plant and machinery, its age, the
probable requirements for replacement, the multiplier and the divisor. In those
circumstances the claim was held to have been properly disallowed by the
Tribunal holding:
"14.No doubt the procedure prescribed in the Evidence Act by first
requiring his chief- examination and then to allow the delinquent to exercise
his right to cross-examine him was not followed, but that the Enquiry Officer,
took upon himself to cross-examine the witnesses from the very start. It was
contended that this method would violate the well recognized rules of
procedure. In these circumstances it was observed at page 264:
"Now it is no doubt true that the evidence of the Respondent and his
witnesses was not taken in the mode prescribed in the Evidence Act; but that
Act has no application to enquiries conducted by Tribunal even though they may
be judicial in character. The law requires that such Tribunals should observe
rules of natural justice in the conduct of the enquiry and if they do so their
decision is not liable to be impeached on the ground that the procedure
followed was not in accordance with that which obtains in a Court of law."
But the application of principle of natural justice does not imply that what is
not evidence can be acted upon. On the other hand what it means is that no
materials can be relied upon to establish a contested fact which are not spoken
to by persons who are competent to speak about them and are subjected to
cross-examination by the party against whom they are sought to be used. When a
document is produced in a Court or a Tribunal the questions that naturally
arise is, is it a genuine document, what are its contents and are the
statements contained therein true. When the appellant produced the
balance-sheet and profit and loss account of the company, it does not by its
mere production amount to a proof of it or of the truth of the entries therein.
If these entries are challenged the Appellant must prove each of such entries
by producing the books and speaking from the entries made therein. If a letter
or other document is produced to establish some fact which is relevant to the
enquiry the writer must be produced or his affidavit in respect thereof be
filed and opportunity afforded to the opposite party who challenges this fact.
This is both in accord with principles of natural justice as also according to
the procedure under Order XIX, Civil Procedure Code and the Evidence Act both
of which incorporate these general principles. Even if all technicalities of
the Evidence Act are not strictly applicable except in so far as Section 11 of
the Industrial Disputes Act,
1947 and the rules prescribed therein permit it, it is inconceivable that
the Tribunal can act on what is not evidence such as hearsay, nor can it
justify the Tribunal in basing its award on copies of documents when the
originals which are in existence are not produced and proved by one of the
methods either by affidavit or by witnesses who have executed them, if they are
alive and can be produced. Again if a party wants an inspection, it is
incumbent on the Tribunal to give inspection in so far as that is relevant to
the enquiry. The applicability of these principles are well recognized and
admit of no doubt." The said decision, for the reasons stated hereinabove,
cannot have any application to the fact of the present case.
The learned Counsel for the respondent also placed reliance upon a decision
of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case, this court
was concerned with the charge of misconduct against the appellant therein
concerning an allegation that he favoured M/s Hari Vishnu Pakaging Ltd. Nagpur
(assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise
Rules, 1944 when he had passed an order-in-Original No.20 of 1995 dated
2.3.1995 holding that the assesee had clandestinely manufactured and cleared
the excisable goods willfully and evaded the excise duty and had ordered
confiscation of the goods. The misconduct was said to have been committed by
the appellant while exercising his judicial function. Having regard to the
factual matrix obtaining therein, this court observed:
"37. Penalty to be imposed has to be commensurate with the gravity of
the offence and the extent of the evasion. In the present case, penalty could
have been justified. The appellant was, however, of the view that imposition of
penalty was not mandatory. He could have formed such a view." It was
further observed:
"41. When penalty is not levied, the assessee certainly benefits. But
it cannot be said that by not levying the penalty the officer has favoured the
assessee or shown undue favour to him. There has to be some basis for the
disciplinary authority to reach such a conclusion even prima facie. The record in
the present case does not show if the disciplinary authority had any
information within its possession from where it could form an opinion that the
appellant showed "favour" to the assessee by not imposing the
penalty. He may have wrongly exercised his jurisdiction. But that wrong can be
corrected in appeal. That cannot always form a basis for initiating
disciplinary proceedings against an officer while he is acting as a quasi-
judicial authority. It must be kept in mind that being a quasi-judicial authority,
he is always subject to judicial supervision in appeal.
42. Initiation of disciplinary proceedings against an officer cannot take
place on information which is vague or indefinite. Suspicion has no role to
play in such matter. There must exist reasonable basis for the disciplinary
authority to proceed against the delinquent officer. Merely because penalty was
not imposed and the Board in the exercise of its power directed filing of
appeal against that order in the Appellate Tribunal could not be enough to
proceed against the appellant.
There is no other instance to show that in similar case the appellant
invariably imposed penalty." In the aforementioned factual matrix of the
case it was held that every error of law would not constitute a charge of misconduct.
This decision also has no application to the facts of the present case.
In the instant case the Presiding Officer, Industrial Tribunal as also the
learned Single Judge and the Division Bench of the High Court misdirected
themselves in law insofar as they failed to pose unto themselves correct
questions. It is now well-settled that a quasi-judicial authority must pose
unto itself a correct question so as to arrive at a correct finding of fact. A
wrong question posed leads to a wrong answer. In this case, further more, the
misdirection in law committed by the Industrial Tribunal was apparent insofar
as it did not apply the principle of Res ipsa loquitur which was relevant for
the purpose of this case and, thus, failed to take into consideration a relevant
factor and furthermore took into consideration an irrelevant fact not garmane
for determining the issue, namely, the passengers of the bus were mandatorily
required to be examined. The Industrial Tribunal further failed to apply the
correct standard of proof in relation to a domestic enquiry, which in
"preponderance of probability" and applied the standard of proof
required for a criminal trial. A case for judicial review was, thus, clearly
made out.
Errors of fact can also be a subject-matter of judicial review. (See E.
vs Secretary of State for the Home Department (2004 Vol.2 Weekly Law Report
page 1351). Reference in this connection may also be made to an interesting
article by Paul P. Craig Q.C. titled 'Judicial Review, Appeal and Factual Error'
published in 2004 Public Law Page 788.
The impugned judgment, therefore, cannot be sustained and, thus, must be set
aside.
Ordinarily, we would have remitted the matter back to Industrial Tribunal
for its consideration afresh but as the matter is pending for a long time and
as we are satisfied having regard to the materials placed before us that the
Industrial Tribunal should have granted approval of the order of punishment
passed by the Appellant herein against the Respondents, we direct accordingly. The
Respondents may, however, take recourse to such remedy as is available to in
law for questioning the said order of dismissal.
For the reasons aforementioned, the impugned judgments cannot be sustained
which are set aside accordingly. The appeal is allowed. No costs.
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