Full Judgment Text
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PETITIONER:
M/S HINDUSTAN TIMES LIMITED
Vs.
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT: 07/01/1998
BENCH:
S.B. MAJMUDAR, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M. JAGANNADHA RAO. J.
This is an appeal preferred against the judgment of the
Delhi High Court dated 28.8.1080 in C.W.P. No. 843 of 1980
dismissing the Writ Petition of the Petitioner. The writ
petition was filed questioning the order of the Regional
Provident Fund Commissioner dated 7.5.1980 passed under
section 14-B of the Employees Provident Fund & Miscellaneous
Provisions Act, 1952 (hereinafter called the ’Act’) levying
damages in a sum of Rs 44,220.00 and Rs. 1,035.50 for delay
in remitting the employees provident fund contribution
within the period stipulated in para 38.10 of the Employees
Provident Scheme. 1952 for the period July 65, October 65
December, 65 January 66 to March 66, August 66, July 67,
August 67, May 68, July 68 to November 68.
The writ petition was dismissed by a Division Bench of
the High Court on 28.8.80 by a non-speaking order merely
saying "dismissed". It is against the said judgment that
this appeal has been preferred.
The facts of the case are as follows:
The appellant is the employer. On account of delay in
payment of provident fund contributions, a notice was issued
on 23.3.71 by the Department complaining of delays in
remitting the provident fund amounts for the period July 65,
October 65, December 65 to March 1966, August 1966,
September 1966, December 1966 to February 67, July 67 to
August 67, January 68, April 68 to November 68 and September
1972 and stating that the amounts were credited in the
accounts of the department only after 20th of the
’following’ months. The appellant was requested to inform
whether the cheques for these months were "tendered" "on or
before 20th of the following month" to which the payment
relates. The appellant sent a letter dated 19.12.1872 giving
only the dates on which the cheques were signed by the
appellant. Therefore, the department sent a further letter
dated 10.1.1973 asking the appellant to furnish "proof of
the dates of presentation of cheques".
It does not appear that the appellant sent any further
reply to the Department. However, there was also no further
correspondence from the side of the department. We only have
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the show cause notice dated 24.3.79 by the department asking
the appellant as to why, consequent to delay in the remittal
of the PF contributions, damages in a sum of Rs. 51,970,10
and administrative charges in a sum of Rs. 1215.10 should
not be recovered for the period from July 1965 to September,
1972.
The appellant’s representative attended the hearing of
the case on 1.5.79 and 3.7.79 and finally filed a reply on
5.2.80 raising various contentions. A copy of the letter
dated 23.10.1979 from the Bank giving details was also
enclosed. After referring to various contentions and
rejecting some of them, the Regional Provident Fund
Commissioner stated that the payments for September 1966 and
September 1972 were as stipulated in para, 38 of the scheme,
and going by the dates of the challans and treating those
dates as the dates of presentation of cheques in the Bank,
the deposits for December 66, January 67, February 67,
January 68, April 68 and June 68 were "treated to have been
deposited..... within the time stipulated in para 38" of the
Scheme whereas the rest of the payments were treated as
belated and amenable to damages. There was also no proof of
strikes by the workers for the period 23rd July to 16th
September 1968. The interpretation of para 38 of the Scheme
that "the question of payment of contribution should arise
only after employees share of contribution has been deducted
from their wages" was rejected, in view of para 30, 32 of
the Scheme. It was also stated that for collection of the
amounts under Section 14B, there was no period on
limitation. The delay was "immaterial". It was however
stated that no formal orders were passed by his predecessor
"deciding not to raise any demand", as contended by the
appellant in the appellant’s reply dated 5.2.80. In the
result the impugned order dated 7.5.80 was passed for
recovery of Rs. 44,220.00 as damages and Rs. 1035.50 as
administrative charges as compared to Rs. 51,990.10 and Rs.
1215.15 mentioned in the show cause notice.
In this appeal, learned Senior counsel for the employer
Dr. Shankar Ghosh contended that the demand notice issued on
7.5.80 in respect of alleged belated payments of the period
from 1965 to 1968 was arbitrary and unreasonable, that the
demand was dropped in 1971 and must be deemed to have been
waived and that going by the dates of the cheques, the
payments must be deemed to be in time. We have heard Sri
Harish Chandra for the department.
At the outset, we may sat that the Division Bench of
the High Court of Delhi ought to have given reasons at least
briefly, which dismissing the writ petition in limine. As
stated in Fauja Singh vs. Jaspal Kaur [1996 (4) SCC 461], on
the plainest consideration of justice, the High Court should
have given reasons. The absence or reasons has deprived the
Supreme Court from knowing the circumstances which weighed
with the High Court to dismiss the matter in limine. It was
an unsatisfactory method of disposal. The necessity to
provide reasons, howsoever brief, in support of the High
Courts’ conclusions is too obvious to be reiterated.
Obligation to give reasons introduces clarity and excludes
or at any rate minimises the chances of arbitrariness and
the higher forum can test the correctness of those reasons.
It becomes difficult for this Court in all such cases to
remit the matters to the High Court inasmuch as by the time
cases reach this Court, several years would have passed.
In an article ’On Writing Judgments’, Justice Michael
Kirby of Australia [(1990) (Vol.64. Australian Law Journal
p.691)] has approached the problem from the point of view of
the litigant, the legal profession, the subordinate
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Courts/tribunals, the brother Judges and the judges’ own
conscience. To the litigant, the duty of the Judge is to
uphold his own integrity and let the losing party know why
he lost the case. The legal profession is entitled to have
it demonstrated that the Judge had the correct principles in
mind, had properly applied them and is entitled to examine
the body of the Judgment for the learning and precedent that
they provide and for the reassurance of the quality of the
Judiciary which is still the centre-piece of our
administration of justice. It does not take long for the
profession to come to know, including through the written
pages of published judgments, the lazy Judge, the Judge
prone to errors of fact etc. The reputational considerations
are important for the exercise of appellate rights, for the
Judges’ own self-discipline, for attempts at improvement and
the maintenance of the integrity and quality of our
judiciary. From the point of view of other Judges, the
benefit that accrues to the lower heirachy of Judges and
tribunals is of utmost importance. Justice Asprey of
Australia had even said in Pettit vs. Dankley [(1971 (1)
NSWLR 376 (CA)] that the failure of a Court to give reasons
is an encroachment upon the right of appeal given to a
litigant. In our view, the satisfaction which a reasoned
Judgment gives to the losing party or his lawyer is the test
of a good Judgment. Disposal of cases is no doubt important
but quality of the judgment is equally, if not more,
important. There is no point in shifting the burden to the
higher Court either to support the judgment by reasons or to
consider the evidence or law for the first time to see if
the judgment needs a reversal.
We shall now proceed to take up the main issues arising
in this appeal.
Section 14.B as amended by Act 40/73 w.e.f. 1.11.1973,
confers power on the concerned authority to recover damages.
Where an employer makes default in the payment of any
contribution to the Trust Fund the concerned authority may
recover from the employer by way of penalty such damages,
not exceeding the amount of arrears, as may be specified in
the scheme. The section itself, after the 1973 amendment,
now provides that before levying and recovering damages, the
employer shall be given a reasonable opportunity of being
hear. The scheme referred to in Section 15-B is the
Employees Provident Scheme 1952, so far as provident fund
contributions are concerned.
Under clause 29 of the said Scheme, the contribution
payable by the employer shall be equal to the contribution
payable by the employee. Under clause 32(3).
"any sum deducted by an employer
from the wages of an employee under
this scheme shall be deemed to have
been entrusted to him for the
purpose of paying the contribution
in respect of which it was
deducted"
Therefore, the scheme creates a fiction of entrustment.
Clause 38 deals with the mode of payment and says that
the employer shall, before paying the member his wages in
respect of any period or part of period for which
contributions are payable, deduct the employees contribution
from his wages which together with his own contribution as
well as an administrative charge, shall be paid within 15
days of the close of every month into the Fund by separate
bank drafts or cheques,
"Provided that if the payment is
made by a cheque, it should be
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drawn only on the local bank of the
place in which deposits are made"
This is obviously meant for early clearance and for
payment into the fund.
Clause 52 requires investment of the monies belonging
to the Employees Provident Fund. Clause 60 requires interest
to be credited to the member’s account. The computation of
damages shows that the department permits a ’grace period’
of 5 days and it is only thereafter that the damages are
computed. Section 11 of the Act deals with ’penalties’.
Further under section 405, Explanation-I of the Indian Penal
Code. 1860, if a person being an employer, deducts the
employees contribution from the wages payable to the
employees for crediting to a provident fund or family
pension fund established by any law for the time being in
force, the said amount shall be deemed to have been
entrusted with the amount of the contribution so deducted by
him and in default, the person could be liable for criminal
breach of trust.
It appears that, soon after 1952 delays in remitting
the contributions under the Act became chronic and the
arrears payable to the Trust Fund increased from time to
time. This was because initially the maximum damages
awardable was only 25% of the arrears and no interest is
payable. Therefore by an Amendment in 1973 the damages were
increased from 25% to a maximum of 100%. The Statement of
objects and Reasons of the Bill which became Act 40/73
stated that the arrears in 1959-60 were Rs. 3.65 crores; in
March 1970, they rose to 14.6 crores and by March 1971 to
Rs.20.65 crores. It was stated there that the employers were
using these monies "in their business". The National
Commission on Labour recommended stringent measures in its
116th Report which was endorsed by the Estimates Committee,
resulting in the 1973 Act.
In Coal Mines Provident Fund Commissioner, Dhanbad &
Other vs. J.Lala & Sons [1976 (3) SCR 365], interpreting
section 10F of the Coal Mines Provident Fund and Bonus
Scheme Act, 1948, it was stated by this Court that by the
use of the words ’may levy damages’, in case of default in
payment of contribution, and the words ’as it may think fit
to impost’, it was clear that the determination was not
based on the inflexible application of a rigid formula and
that by these words, the authorities were to apply their
mind to the facts and circumstances of the case. As a duty
was judicially imposed on the authority, principles of
natural justice were implied. In Organo Chemical Industries
& Another vs. Union of India & Others [1980 (1) SCR 61],
where the vires of the Act were upheld, this Court laid down
that while passing orders under section 14-B, the authority
was acting in a ’quais-judicial’ capacity and was bound to
give reasons for its orders. The levy was not necessarily
proportionate to the loss incurred by the employee inasmuch
as it was partly compensatory and partly penal.
Organo case itself was one where there were delays in
payment of the contributions and the explanations given were
rejects. The order of the Commissioner interfered with by
the Supreme Court. There the default related to the period
from March to October 1975 and again from December 1975 to
November, 1976. The show cause notice was issued on 7.6.1977
and in response, the appellants stated that the remittal was
delayed "due to difficulties beyond their control and....
there were disputes between partners of the firm, there was
a power-cut of 60%..... w.e.f.May 6, 1974 an d there were
huge amounts of loan payable to the Haryana Financial
Corporation". However, the Regional Provident Commissioner
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by his orders dated 16.8.1977 rejected all these contentions
and held that the obligation to pay these contributions into
the fund was unqualified. The explanations of the employer
were not acceptable. The default could not be linked with
the financial problems facing the establishment. It was
stated by the Commissioner that the 50% of the employees
contributions was
"trust money with employer for
deposit in the statutor; fund. The
delay in the deposit on this part
of the contributions amounted to
breach of trust......."
He also found that the appellants in that case were
Habitual defaulters and that the maximum damages fixed under
the Act was to be levied, when the matter came to this
Court, A.P.Sen,J. observed that the default was wilful
inasmuch as the appellants,
"have been utilising the amounts
deducted from the wages of their
employees, including their own
contributions, as well as
administrative charges, in running
their business"
Krishna Iyer,J. in his concurrent judgment,
characterised such used as amounting to ’embezzlement’.
As to the manner in which the concerned authority could
arrive at the ’damages’, A.P.Sen, J. stated that the
authority usually takes into consideration, - as was done in
that case - the number of defaults, the period of delay, the
frequency of defaults and the amounts involved. The damages
were to be compensatory and penal as well and hence
principles of estimation of damages under the law of
Contract or Torts, were not applicable.
The first contention in behalf of the appellant in the
context of section 14B is that a period of limitation must
be implied under law for, according to the appellant, it
will be wholly unreasonable to allow the power to be
exercised after the lapse of a large number of years.
Now the Act does not contain any provision prescribing
a period of limitation for assessment or recovery of
damages. The monies payable into the Fund are for the
ultimate benefit of the employees but there is no provision
by which the employees can directly recover these amounts.
The power of computation and recovery are both vested in the
Regional Provident Commissioner or other officer as provided
in section 14-B. Recovery is not by way of suit, initially,
it was provided that the arrears could be recovered in the
same manner as arrears of land revenue. But by Act 37/53
section 14-B was amended providing for a special procedure
under section 8-B to 8-G. By Act 40/73 section 11 was
amended by making the amount a first charge on the assets of
the establishment if the arrears of employee’s contribution
were for a period of more that 6 months. By Act 33/88, the
charge was extended to the employee’s share of contribution
as well.
In spite of all these amendments, over a period of more
than thirty years, the legislature did not think fit to make
any provision prescribing a period of limitation. This in
our opinion is significant and it is clear that it is not
the legislative intention to prescribe any period of
limitation for computing and recovering the arrears. As the
amounts are due to the Trust Fund and the recovery is not
be suit, the provisions of the Indian Limitation Act, 1963
are not attracts. In Nityanand M. Joshi vs. Life Insurance
Corporation of India [1970 (1) SCR 396], it has been held
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that the Limitation Act, 1963 has no application to Labour
Courts and, in our view, that principle is equally
applicable to recovery by the concerned authority under
section 14-B. Further in Bombay Gas Co. Ltd. vs. Gopal Bhiva
[1964 (3) SCR 709], it has been held that in respect of an
application under section 33(c)(2) of the Industrial
Disputes Act, 1974, there is no period of limitation. In
that context, it was stated that the Courts could not imply
a period of limitation. It was observed:
"It seems that where the
legislature has made no provision
for limitation, it would not be
open to the Court to introduce any
such limitation on the grounds of
fairness or justice"
The above decisions have been recently accepted in
Mukri Gopalan vs. Cheppilet [1995 (5) SCC 5(at p.20-22)] to
which one of us (Majmudar, J.) was a party while dealing
with the applicability of section 29(2) of the Limitation
Act, 1963 to Courts or Tribunals. We may also point out in
this connection that several High Courts have rightly taken
the view that there is no period of limitation for exercise
of the power under section 14B of the Act.
It is true that a principle has been laid down in State
of Gujarat vs. Patil Raghav Natha [1969 (2) SCC 187], while
dealing with suo motu revisional jurisdiction that though
there is no period of limitation prescribed for exercise of
that power, still such a power must be exercised within
reasonable time. The said judgment has been applied in
matters relating to section 6 to the Land Acquisition Act in
a large number of cases, which were all referred to recently
in Ram Chand vs. Union of India [1994 (1) SCC 45]. In our
view, this line of cases cannot ordinarily apply to monies
withheld by a defaulter, who holds them in trust.
The reason is that while in the above cases decided by
this Court the exercise of powers by the authority at a very
belated stage was likely to result in the deprivation of
property which rightly and lawfully belonged to the person
concerned, the position under section 14B of the Act of an
employer is totally different. The employer who has
defaulted in making over the contributions to the Trust Fund
had, on the other hand, the use of monies which did not
belong to him at all. Such a situation cannot be compared to
the above line of cases which involve prolonged suspense in
regard to deprivation of property. In fact, in cases under
Section 14-B if the Regional Provident Commissioner had made
computations earlier and sent a demand immediately after the
e amounts fell due, the defaulter would not have been able
to use these monies for his own purposes or for his
business. In our opinion, it does not lie in the mouth of
such a person to say that by reason of delay in the exercise
of powers under section 14B, he has suffered loss. On the
other hand, the defaulter has obviously had the benefit of
the ’boon of delay’ which "is so dear to debtors", as
pointed out by the Privy Council in Nagendranath Dev vs.
Suresh Chandra Dev [ILR 60 Cal. 1(PC)]. In that case, it was
observed that equitable considerations were out of place in
matters of limitation and the strict grammatical
construction alone was the guide. Sir Dinshaw Mulla stated:
"Nor in such a case as this is the
judgment debtor prejudiced. Be may
indeed obtain the boon of delay,
which is so dear to debtors and if
he is virtuously inclined there is
nothing to prevent his paying what
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he owes into Court."
The position of the employer in case of default under
section 14-B is no different.
A learned Single Judge of the Bombay High Court in
K.T.Rolling Mills vs. R.M.Gandhi [1994 LLJ. 66] was dealing
with a case like the one before us where the default
occurred because of the delay in realisation of monies paid
by cheques. The recovery proceedings were initiated after 12
years and they were quashed solely on the ground of
unreasonable delay relying upon Patil Raghav Natha’s case
[1969 (@) SCC 187] and other cases. The said judgment was
reversed in Regional Provident Fund Commissioner vs.
K.T.Rolling Mills Pvt. Ltd. [1995 (1) SCC 181] by this Court
holding that while it was true that normally powers for the
exercised within reasonable time, the order in that case was
not liable to be struck down not only because in Maharashtra
there were 22, 189 establishments in 1985 - which made if
difficult to monitor delays - but also because the monies
must have been used (by the employer) for its own purpose
and that too without paying interest, at the cost of those
for whose benefit it was meant. Any different stand would,
it was held, encourage the employers to thwart the object of
the Act, which could not be permitted. We are in respectful
agreement with the above observations.
We shall now refer to the Judgments of some of the High
Courts to cull out some broad guidelines. The Orissa High
Court in Orissa Forest Development Corporation Ltd. &
Another vs. Regional Provident Fund Commissioner, Orissa
[1995 (71) IFLR 388 (Orissa)] and a Single Judge of the
Punjab & Haryana High Court in Amirchand & Sons vs. State of
Punjab [AIR 1965 Pun. 441] have held like the Single Judge
of the Bombay High Court in K.T.Rolling Mills case, that if
there was undue delay in initiating action under section 14B
which the Court thought was unreasonable, on that sole
ground the demand could be struck down. With great respect,
this view is, as already stated, clearly wrong. The Judgment
of this Court in K.T. Rolling Mills case having been
reversed by this Court, the above view is no longer good
law. In fact, the Punjab judgment was rightly reversed in
appeal in State of Punjab vs. Amirchand [1964 (37) FJR
92(P&H)]. The view taken by the learned Single Judge of the
Punjab & Haryana High Court in 1965 has also been rightly
dissented by the Delhi High Court in Birla Cotton Spinning &
Weaving Mills Ltd. vs. Union of India (CWP 390/78) dated
29.7.83: by the Gujarat High Court in Gandhidham case [1987
LIC 659]; the Patna High Court in M/S Inter State Transport
Agency, Sitamarhi vs. Regional Provident Fund Commissioner,
Patna [1984 LIC 940] and the Allahabad High Court in The
Northern India Press Works vs. Regional Provident Fund
Commissioner, U.P. & Others [1983 LIC 1314 (All)].
The Gujarat High Court in Gandhidham Spinning & Mfg.
Co. Ltd, vs. Regional Provident Fund Commissioner & Another
[1987 Lab. I.C. 659 (Guj.)] (to which, one of us Majmudar,
J. was a party), laid down a principle that ’prejudice’ on
account of delay could arise if it was proved that it was
"irretrievable". There it was observed that for purposes of
section 14B, there is no period of limitation prescribed and
that for any negligence on the part of the Department in
taking proceedings the employees, who are third parties,
cannot suffer. It was further observed:
"The only question that would
really survive is the one whether
on the facts and circumstances of a
given case, the show cause notice
issued after lapse of time can be
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said to be issued beyond reasonable
time. The test whether lapse of
time is reasonable or no will
depend upon the further fact
whether the employer in the
meantime has changed his position
to his detriment and is likely to
be irretrievably prejudiced by the
belated issuance of such a show
cause notice."
It was also stated that such a defence of irretrievable
prejudice on account of delay, was to be pleaded and proved
in the reply to the show cause notice. We may add that if
such a plea is rejected by the department, it cannot be
raised in the High Court unless specifically pleaded. The
above principle of prejudice laid down by Gujarat High Court
in Gandhidham Spinning & Mfg. Co. Ltd. (Guj.) has been
followed by the Bombay High Court in S.T.G.. P&D Mill
Prakriya vs. Regional Provident Fund Commissioner, Bombay
[1996 (72) FLR 823 (Bom.)]; M/s Super Processors vs. Union
of India & another [1992 Lab. I.C.808 (Bom.)].
A different aspect of prejudice was referred to in M/s
Sushma Fabrics Pvt. Ltd, vs. Union of India & another [1991
Lab. I.C.1946 (Bom.)] by a learned Single Judge of the
Bombay High Court. It was stated that in some cases there
could be serious prejudice on account of abnormal delay in
taking proceedings under section 14B, either because the
records or accounts of the defaulter are lost or on account
of the concerned personnel acquainted with the facts of a
by-gone period no long er being available for unearthing the
facts. But such pleas must be raised before the department
and strictly proved. In case such facts are proved it is
possible in some cases that there is irretrievable
prejudice.
It has also been held rightly that mere delay on the
part of the department could not be treated as amounting to
waiver (Divisional Engineer, APSEB vs. RPF Commissioner
[1979 Lab. I.C.(AP) 187]; M/S Inter State Transport Agency
vs. RPF Commissioner [1983 LIC 940 (Patna)]; State of Punjab
vs. Amirchand [1964 (37) FJR 92 (P&H)]. This view is, in our
opinion, correct.
We have already stated that in Organo [1980 (1) SCR
61], the Regional Provident Fund Commissioner held that
power cut financial problems, disputed between partners were
not relevant explanations and that the said view was not
interfered with by this Court.
From the aforesaid decisions, the following principles
can be summarised: The authority under Section 14-B has to
apply his mind to the facts of the case and the reply to the
show cause notice and pass a reasoned order after following
principles of natural justice and giving a reasonable
opportunity of being heard; the Regional Provident Fund
Commissioner usually takes into consideration the number of
defaults, the period of delay, the frequency of default and
the amounts involved; default on the part of the employer
based on pleas of power cut, financial problems relating to
other indebtedness or the delay in realisations of amounts
paid by the cheques or drafts, cannot be justifiable grounds
for the employer to escape liability; there is no period of
limitation prescribed by the legislature for initiating
action for recovery of damages under section 14B. The fact
that proceedings are initiated or demand for damages is made
after several years cannot by itself be a ground for drawing
an inference of waiver or that the employer was lulled into
a belief that no proceedings under section 14B would be
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taken; mere delay in initiating action under section 14B
cannot amount to prejudice inasmuch as the delay on the part
of the department, would have only allowed the employer to
use the monies for his own purposes or for his business
especially when there is no additional provision for
charging interest. However, the employer can claim prejudice
if there is proof that between the period of default and the
date of initiation of action under section 14B, he had
changed his position to his detriment to such an extent that
if the recovery is made after a large number of years, the
prejudice to him is of an "irretrievable" nature: he might
also claim prejudice upon proof of loss of all the relevant
records and/or non-availability of the personnel who were,
several years back in charge of these payments and provided
he further establishes that there is no other way he can
reconstruct the record or produce evidence; or there are
other similar grounds which could lead to "irretrievable"
prejudice; further, in such cases of "irretrievable"
prejudice, the defaulter must take the necessary pleas in
defence in the reply to the show cause notice and must
satisfy the concerned authority with acceptable material; if
those pleas are rejected, he cannot raise them in the High
Court unless there is a clear pleading in the writ petition
to that effect.
In the present case before us, no doubt there is delay
of 14 years in initiating action and the damages are levied
because of the delay in realisation of the amounts paid by
cheque where the amounts were credited into the accounts of
the department beyond the grace period of 5 days. The plea
of strike, even assuming it to be relevant, was not proved.
The plea of the appellant that the department must be deemed
to have dropped the proceedings in 1971 did not also have
any legs to stand. There is no plea of any irretrievable
prejudice either in the reply to the show cause or in the
writ petition.
For the aforesaid reasons, this appeal fails and is
dismissed. There shall be no order as to costs.