Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2824 OF 2004
Purushottam S/o Bhaurao Dabhekar,
Aged about 34 years, OccupNil.
R/o. Gandhi Ward, Chimur,
District – Chandrapur. ….. PETITIONER
... V E R S U S ...
1] The Divisional Commissioner,
Nagpur Region, Nagpur.
2] The Chief Executive Officer,
Zilla Parishad, Chandrapur.
3] The Block Development Officer,
Panchayat Samiti, Chimur. …... RESPONDENTS.
=================================
Shri Sandeep Marathe, Advocate for the Petitioner.
Shri A. R. Chutke, AGP for Respondent No.1.
Shri M. V. Mohokar, Advocate for the Respondent Nos.2 and 3.
=================================
CORAM : S. C. GUPTE, J.
th
DATE : 10 AUGUST, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
02] This petition challenges a disciplinary action of
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compulsory retirement taken by the Chief Executive Officer of Zilla
Parishad, Chandrapur against the petitioner, who was working as a
tracer in Panchayat Samiti, Chimur.
03] The charge against the petitioner was that whilst the
receipt and disposal of cement at the Godown of Panchayat Samiti,
th
Chimur was entrusted with the petitioner, upon stock taken on 7
th
May, 2002 and 8 May, 2002, the quantity of cement was found to
th
be less by 30 bags. According to the stock book as of 7 May,
2002, there was stock of 2465 bags of cement at Panchayat Samiti,
Chimur but on physical counting of the stock only 2435 bags of
cement were found. The explanation furnished by the petitioner,
in this behalf, was found to be unacceptable, indicating
misappropriation of cement bags. The second charge was that on
th
18 April, 2002 there was an entry of allotment of 200 bags of
cement to Secretary, Gram Panchayat, Chimur but there was no
signature of the recipient on the receipt. So also, on the same day,
there was another entry of allotment of 100 bags of cement to the
Secretary, Gram Panchayat, Khadsangi Sonegaon (Forest) but
even here there was no signature of the recipient. Gram
Panchayat, Chimur had given a statement that they had received
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196 bags as against 200 bags of cement said to have been allotted
to them, whereas Gram Panchayat, Khadsangi – Sonegaon (Forest)
had indicated that they had received only 95 out of 100 bags of
cement said to have been delivered to them. Accordingly, there was
deficiency of 14 cement bags. The third charge was a combination
of the first two charges, namely, for recovery 44 bags of cement at
twice the market rate. The fourth charge was insubordination
offered to Superior Officers. It was claimed that though the
petitioner was instructed clearly that cement issued to any Gram
Panchayat was to be delivered to the Secretary of the Gram
Panchayat, 50 bags of cement were issued to Gram Panchayat,
Hiwra without taking the signature of its Secretary and taking
simply a thumb impression of the recipient. A chargesheet was
duly issued in this behalf by the Chief Executive Officer. In
pursuance of the chargesheet, an enquiry was conducted by the
Special Enquiry Officer, namely, Assistant Commissioner (Enquiry),
Nagpur Division, Nagpur. Nine witnesses were examined on behalf
of the Zilla Parishad. The written statement/deposition of the
petitioner recorded before the Executive Engineer was also taken
into account. The enquiry officer, after taking into account the
charges, the explanation of the delinquent employee and the
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evidence led before him, held the charge of misappropriation of 30
bags of cement as also deficiency in issue of cement by 14 bags as
proved. Since the third charge was based on a combination of the
first two charges, it was also held to be proved. As far as, the
incident concerning Gram Panchayat, Hiwra was concerned (part
of the fourth charge), the enquiry officer held that it was not
possible to draw any inference in this behalf. Based on the report
of the enquiry officer, a show cause notice was issued by the Chief
Executive Officer of the Zilla Parishad to the petitioner for
disciplinary action on the ground of proven charges. After
considering the explanation of the petitioner, the Chief Executive
Officer awarded the punishment of compulsory retirement. This
order was carried in appeal by the petitioner before the Divisional
Commissioner, Nagpur. The Divisional Commissioner by his order
th
dated 17 February, 2004 rejected the appeal. Hence, the present
petition.
04] Learned counsel for the petitioner made the following
submissions :
(i) Learned counsel submits that the chargesheet issued to
the petitioner itself indicates that the Disciplinary
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Authority had already made up its mind on the proof of
the charges and that the chargesheet exhibits bias, since
the Disciplinary Authority had already made up its mind.
Learned counsel relies on the Hon'ble Supreme Court's
decision in the case of State of Punjab..vs..V.K.Khnna
and Others, reported in (2001) 2 Supreme Court
Cases 330 , in support of his submission.
(ii) Learned counsel also submits that the petitioner's
written statement was recorded before another officer of
the respondents, namely, Executive Engineer and not
before the Chief Executive officer, who is the
Disciplinary Authority.
(iii) Learned counsel submits that the conclusion drawn by
the enquiry officer is contrary to the material available
before him including the explanation tendered by the
petitioner.
(iv) Learned counsel submits that the punishment awarded
to the petitioner is disproportionate to the misconduct
purportedly proved against him.
05] As far as the issue of predetermination of mind or bias
is concerned, the chargesheet merely indicates that a preliminary
enquiry made by the authority indicated the factum of
misappropriation. Though the words used are suggestive of a proof
of misappropriation, this was only a tentative finding so as to frame
a charge and not to award the punishment. Besides, the matter of
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enquiry is entrusted to an independent officer, who was expected
to go through the charge, the explanation of the delinquent and the
material produced by the employer as well as delinquent employee
in support or defence of the case and then arrive at findings of fact.
The enquiry officer has evidently offered full opportunity to the
petitioner to adduce material, to crossexamine the witnesses of the
Zilla Parishad and to make his own submissions. The enquiry
officer arrived at his findings of proven misconduct only after
this exercise. The objection to the punishment on the basis of a
predetermined mind or bias, thus, holds no water.
06] The judgment of the Hon'ble Supreme Court in V. K.
Khanna's case is on an entirely different footing. That was a case,
where after the chargesheet was issued to the Principal Secretary
of the Chief Minister but before even a reply could be received from
the Principal Secretary, a press statement was issued by the Chief
Minister indicating his proposal to appoint a High Court Judge for
looking into the charges. The Court held that this disclosed a
closed mindset and not a free and fair attitude towards the officer
concerned. The Court held that it was well settled in service
jurisprudence that the authority concerned has to apply its
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mind upon receipt of a reply to the chargesheet or showcause
notice, as the case may be, as to whether a further enquiry is called
for; only then would an enquiry follow but not otherwise. The
observations of the Supreme Court in para nos.33 and 34
concerning bias are in this context. After examining the record of
the case, the Hon'ble Supreme Court came to a positive conclusion
that announcement of the Chief Minister in regard to appointment
of an enquiry officer exhibited a predetermined frame of mind of
the authorities and depicted bias. These observations have no
bearing on the present controversy. Here the only allegation is that
by reason of the language used in the chargesheet, the charges are
said to be effectively proved even before the enquiry. As I have
noted above, there is no substance in that allegation.
07] As regards the contention that the written
statement/deposition was recorded before another officer, that is to
say, before an officer other than the disciplinary authority, the
identity of the officer before whom the written statement is
recorded is immaterial. The important point is the identity of the
authority or tribunal before whom such written statement is read in
defence of charges. The written statement was obviously presented
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to an enquiry officer, who was an independent officer, being the
Assistant Commissioner (Enquiry), Nagpur Division, Nagpur. It is
not the case of the petitioner that the statement was either wrongly
recorded or did not reflect the petitioner's case. If everything that
the petitioner proposed to say in defence of the charges is
contained in the written statement and such written statement is
produced before and read by an independent enquiry officer and
deliberated upon, there cannot be any failure of natural justice. It
is not a case where the delinquent is denied opportunity to show
cause.
08] On the merits of the explanation, it is pertinent to note
that what was found by the enquiry officer was that instead of
2465 bags of cement, which ought to have been stored at the
th
Godown of Panchayat Samiti, Chimur as of 7 May, 2002, the
actual stock was found less by 30 bags; only 2435 bags of cement
were found at the Godown. This fact is not contested by the
petitioner. The petitioner seeks to explain this fact by submitting
rd
that on 23 March, 2002, a truck containing 340 bags of cement
came for unloading at the Godown of Panchayat Samiti, Chimur,
but since there was no space for the stock of 340 bags of cement,
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the truck was dispatched to Gram Panchayat, Neri which had
requirement of about 300 bags, and that this accounted for the
deficiency in the stock noted at Chimur. This explanation did not
find favour with the enquiry officer and the reasons are not far to
seek. The alleged incident of inadequacy of space for storage at
Chimur and diversion of the truck containing 340 bags of cement
rd
to Neri is supposed to have happened on 23 March, 2002, that is
th
to say, much before the stock taking of 7 May, 2002. The case of
th
the Zilla Parishad is that whereas the stock at Chimur as of 7 May,
2002 was to be 2465 bags, actual stock noticed was 2435 bags.
This was in accordance with the stock book maintained at Chimur,
wherein the stock entries were in accordance with physical stock
verified at Chimur. The physical verification itself is not contested
by the petitioner. If that is so, then it implies that there was as of
th
7 May, 2002 an entry of physical stock at Chimur of 2465 bags of
cement. As against this, the actually verified quantity, i.e. the stock
th th
actually noticed as of 7 & 8 May 2002, was 2435 bags. Once
again, the physical assessment of the stock is not a matter of
contest. (Though the petitioner contests the presence of the
th
agriculture officer, Mr. D. T. Suphale, on 8 May, 2002, on account
of duties assigned to him at Chandrapur on that day, this does not
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raise a serious cloud of suspicion over the actual verification of the
stock. Besides, the quantity verified in stock is not contested as
noted above.) If, in the face of these facts, the enquiry officer does
not accept the petitioner's explanation and holds him responsible
for 30 missing bags, it certainly cannot be said that the conclusion
drawn by the enquiry officer is in any way perverse. Perversity
which a writ court is concerned with in the case of a challenge to a
domestic inquiry or its findings is perversity as understood by the
Wednesbury Principle. If the conclusion of the enquiry officer
cannot be said to be one based on no evidence or which is arrived
at after taking into account nongermane or irrelevant material or
by disregarding relevant and germane material, there is no case for
interfering with it. Neither of these ingredients is satisfied in the
present case. Thus, the conclusion drawn by the enquiry officer,
and acted upon by the disciplinary authority in the present case,
cannot be said to warrant any interference within the framework of
Articles 226 and 227 of the Constitution of India.
09] Coming now to the socalled disproportionate
punishment, it is to be noted that here is a case of an employee,
who was trusted with proper maintenance and issue of stocks and
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thus held an office of confidence and who is guilty of
misappropriation of stock – and not just in one case but in a
number of cases, including cases where receipts were obtained
from recipients for larger quantities as against lesser actual
quantities delivered. It is by all means a serious misconduct, which
undermines the very confidence of the appointing authority and
renders the holder of the office unfit of such confidence. In that
sense, the punishment meted out here, namely, compulsory
retirement, is indeed disproportionate, though such
disproportionateness weighs rather in favour of the petitioner than
the disciplinary authority. There is, accordingly, no merit even in
this submission.
10] There is no infirmity, accordingly, with the appellate
order of the Divisional Commissioner.
11] For the reasons discussed above, there is clearly no
merit in the Writ Petition. Rule is, in the premises, discharged and
the Writ Petition is dismissed. No order as to costs.
JUDGE
PBP
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2824 OF 2004
Purushottam S/o Bhaurao Dabhekar,
Aged about 34 years, OccupNil.
R/o. Gandhi Ward, Chimur,
District – Chandrapur. ….. PETITIONER
... V E R S U S ...
1] The Divisional Commissioner,
Nagpur Region, Nagpur.
2] The Chief Executive Officer,
Zilla Parishad, Chandrapur.
3] The Block Development Officer,
Panchayat Samiti, Chimur. …... RESPONDENTS.
=================================
Shri Sandeep Marathe, Advocate for the Petitioner.
Shri A. R. Chutke, AGP for Respondent No.1.
Shri M. V. Mohokar, Advocate for the Respondent Nos.2 and 3.
=================================
CORAM : S. C. GUPTE, J.
th
DATE : 10 AUGUST, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
02] This petition challenges a disciplinary action of
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compulsory retirement taken by the Chief Executive Officer of Zilla
Parishad, Chandrapur against the petitioner, who was working as a
tracer in Panchayat Samiti, Chimur.
03] The charge against the petitioner was that whilst the
receipt and disposal of cement at the Godown of Panchayat Samiti,
th
Chimur was entrusted with the petitioner, upon stock taken on 7
th
May, 2002 and 8 May, 2002, the quantity of cement was found to
th
be less by 30 bags. According to the stock book as of 7 May,
2002, there was stock of 2465 bags of cement at Panchayat Samiti,
Chimur but on physical counting of the stock only 2435 bags of
cement were found. The explanation furnished by the petitioner,
in this behalf, was found to be unacceptable, indicating
misappropriation of cement bags. The second charge was that on
th
18 April, 2002 there was an entry of allotment of 200 bags of
cement to Secretary, Gram Panchayat, Chimur but there was no
signature of the recipient on the receipt. So also, on the same day,
there was another entry of allotment of 100 bags of cement to the
Secretary, Gram Panchayat, Khadsangi Sonegaon (Forest) but
even here there was no signature of the recipient. Gram
Panchayat, Chimur had given a statement that they had received
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196 bags as against 200 bags of cement said to have been allotted
to them, whereas Gram Panchayat, Khadsangi – Sonegaon (Forest)
had indicated that they had received only 95 out of 100 bags of
cement said to have been delivered to them. Accordingly, there was
deficiency of 14 cement bags. The third charge was a combination
of the first two charges, namely, for recovery 44 bags of cement at
twice the market rate. The fourth charge was insubordination
offered to Superior Officers. It was claimed that though the
petitioner was instructed clearly that cement issued to any Gram
Panchayat was to be delivered to the Secretary of the Gram
Panchayat, 50 bags of cement were issued to Gram Panchayat,
Hiwra without taking the signature of its Secretary and taking
simply a thumb impression of the recipient. A chargesheet was
duly issued in this behalf by the Chief Executive Officer. In
pursuance of the chargesheet, an enquiry was conducted by the
Special Enquiry Officer, namely, Assistant Commissioner (Enquiry),
Nagpur Division, Nagpur. Nine witnesses were examined on behalf
of the Zilla Parishad. The written statement/deposition of the
petitioner recorded before the Executive Engineer was also taken
into account. The enquiry officer, after taking into account the
charges, the explanation of the delinquent employee and the
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evidence led before him, held the charge of misappropriation of 30
bags of cement as also deficiency in issue of cement by 14 bags as
proved. Since the third charge was based on a combination of the
first two charges, it was also held to be proved. As far as, the
incident concerning Gram Panchayat, Hiwra was concerned (part
of the fourth charge), the enquiry officer held that it was not
possible to draw any inference in this behalf. Based on the report
of the enquiry officer, a show cause notice was issued by the Chief
Executive Officer of the Zilla Parishad to the petitioner for
disciplinary action on the ground of proven charges. After
considering the explanation of the petitioner, the Chief Executive
Officer awarded the punishment of compulsory retirement. This
order was carried in appeal by the petitioner before the Divisional
Commissioner, Nagpur. The Divisional Commissioner by his order
th
dated 17 February, 2004 rejected the appeal. Hence, the present
petition.
04] Learned counsel for the petitioner made the following
submissions :
(i) Learned counsel submits that the chargesheet issued to
the petitioner itself indicates that the Disciplinary
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Authority had already made up its mind on the proof of
the charges and that the chargesheet exhibits bias, since
the Disciplinary Authority had already made up its mind.
Learned counsel relies on the Hon'ble Supreme Court's
decision in the case of State of Punjab..vs..V.K.Khnna
and Others, reported in (2001) 2 Supreme Court
Cases 330 , in support of his submission.
(ii) Learned counsel also submits that the petitioner's
written statement was recorded before another officer of
the respondents, namely, Executive Engineer and not
before the Chief Executive officer, who is the
Disciplinary Authority.
(iii) Learned counsel submits that the conclusion drawn by
the enquiry officer is contrary to the material available
before him including the explanation tendered by the
petitioner.
(iv) Learned counsel submits that the punishment awarded
to the petitioner is disproportionate to the misconduct
purportedly proved against him.
05] As far as the issue of predetermination of mind or bias
is concerned, the chargesheet merely indicates that a preliminary
enquiry made by the authority indicated the factum of
misappropriation. Though the words used are suggestive of a proof
of misappropriation, this was only a tentative finding so as to frame
a charge and not to award the punishment. Besides, the matter of
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enquiry is entrusted to an independent officer, who was expected
to go through the charge, the explanation of the delinquent and the
material produced by the employer as well as delinquent employee
in support or defence of the case and then arrive at findings of fact.
The enquiry officer has evidently offered full opportunity to the
petitioner to adduce material, to crossexamine the witnesses of the
Zilla Parishad and to make his own submissions. The enquiry
officer arrived at his findings of proven misconduct only after
this exercise. The objection to the punishment on the basis of a
predetermined mind or bias, thus, holds no water.
06] The judgment of the Hon'ble Supreme Court in V. K.
Khanna's case is on an entirely different footing. That was a case,
where after the chargesheet was issued to the Principal Secretary
of the Chief Minister but before even a reply could be received from
the Principal Secretary, a press statement was issued by the Chief
Minister indicating his proposal to appoint a High Court Judge for
looking into the charges. The Court held that this disclosed a
closed mindset and not a free and fair attitude towards the officer
concerned. The Court held that it was well settled in service
jurisprudence that the authority concerned has to apply its
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mind upon receipt of a reply to the chargesheet or showcause
notice, as the case may be, as to whether a further enquiry is called
for; only then would an enquiry follow but not otherwise. The
observations of the Supreme Court in para nos.33 and 34
concerning bias are in this context. After examining the record of
the case, the Hon'ble Supreme Court came to a positive conclusion
that announcement of the Chief Minister in regard to appointment
of an enquiry officer exhibited a predetermined frame of mind of
the authorities and depicted bias. These observations have no
bearing on the present controversy. Here the only allegation is that
by reason of the language used in the chargesheet, the charges are
said to be effectively proved even before the enquiry. As I have
noted above, there is no substance in that allegation.
07] As regards the contention that the written
statement/deposition was recorded before another officer, that is to
say, before an officer other than the disciplinary authority, the
identity of the officer before whom the written statement is
recorded is immaterial. The important point is the identity of the
authority or tribunal before whom such written statement is read in
defence of charges. The written statement was obviously presented
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to an enquiry officer, who was an independent officer, being the
Assistant Commissioner (Enquiry), Nagpur Division, Nagpur. It is
not the case of the petitioner that the statement was either wrongly
recorded or did not reflect the petitioner's case. If everything that
the petitioner proposed to say in defence of the charges is
contained in the written statement and such written statement is
produced before and read by an independent enquiry officer and
deliberated upon, there cannot be any failure of natural justice. It
is not a case where the delinquent is denied opportunity to show
cause.
08] On the merits of the explanation, it is pertinent to note
that what was found by the enquiry officer was that instead of
2465 bags of cement, which ought to have been stored at the
th
Godown of Panchayat Samiti, Chimur as of 7 May, 2002, the
actual stock was found less by 30 bags; only 2435 bags of cement
were found at the Godown. This fact is not contested by the
petitioner. The petitioner seeks to explain this fact by submitting
rd
that on 23 March, 2002, a truck containing 340 bags of cement
came for unloading at the Godown of Panchayat Samiti, Chimur,
but since there was no space for the stock of 340 bags of cement,
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the truck was dispatched to Gram Panchayat, Neri which had
requirement of about 300 bags, and that this accounted for the
deficiency in the stock noted at Chimur. This explanation did not
find favour with the enquiry officer and the reasons are not far to
seek. The alleged incident of inadequacy of space for storage at
Chimur and diversion of the truck containing 340 bags of cement
rd
to Neri is supposed to have happened on 23 March, 2002, that is
th
to say, much before the stock taking of 7 May, 2002. The case of
th
the Zilla Parishad is that whereas the stock at Chimur as of 7 May,
2002 was to be 2465 bags, actual stock noticed was 2435 bags.
This was in accordance with the stock book maintained at Chimur,
wherein the stock entries were in accordance with physical stock
verified at Chimur. The physical verification itself is not contested
by the petitioner. If that is so, then it implies that there was as of
th
7 May, 2002 an entry of physical stock at Chimur of 2465 bags of
cement. As against this, the actually verified quantity, i.e. the stock
th th
actually noticed as of 7 & 8 May 2002, was 2435 bags. Once
again, the physical assessment of the stock is not a matter of
contest. (Though the petitioner contests the presence of the
th
agriculture officer, Mr. D. T. Suphale, on 8 May, 2002, on account
of duties assigned to him at Chandrapur on that day, this does not
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raise a serious cloud of suspicion over the actual verification of the
stock. Besides, the quantity verified in stock is not contested as
noted above.) If, in the face of these facts, the enquiry officer does
not accept the petitioner's explanation and holds him responsible
for 30 missing bags, it certainly cannot be said that the conclusion
drawn by the enquiry officer is in any way perverse. Perversity
which a writ court is concerned with in the case of a challenge to a
domestic inquiry or its findings is perversity as understood by the
Wednesbury Principle. If the conclusion of the enquiry officer
cannot be said to be one based on no evidence or which is arrived
at after taking into account nongermane or irrelevant material or
by disregarding relevant and germane material, there is no case for
interfering with it. Neither of these ingredients is satisfied in the
present case. Thus, the conclusion drawn by the enquiry officer,
and acted upon by the disciplinary authority in the present case,
cannot be said to warrant any interference within the framework of
Articles 226 and 227 of the Constitution of India.
09] Coming now to the socalled disproportionate
punishment, it is to be noted that here is a case of an employee,
who was trusted with proper maintenance and issue of stocks and
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thus held an office of confidence and who is guilty of
misappropriation of stock – and not just in one case but in a
number of cases, including cases where receipts were obtained
from recipients for larger quantities as against lesser actual
quantities delivered. It is by all means a serious misconduct, which
undermines the very confidence of the appointing authority and
renders the holder of the office unfit of such confidence. In that
sense, the punishment meted out here, namely, compulsory
retirement, is indeed disproportionate, though such
disproportionateness weighs rather in favour of the petitioner than
the disciplinary authority. There is, accordingly, no merit even in
this submission.
10] There is no infirmity, accordingly, with the appellate
order of the Divisional Commissioner.
11] For the reasons discussed above, there is clearly no
merit in the Writ Petition. Rule is, in the premises, discharged and
the Writ Petition is dismissed. No order as to costs.
JUDGE
PBP
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