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PETITIONER: WORKMEN OF HINDUSTAN STEEL LTD AND ANR

       Vs.

RESPONDENT: HINDUSTAN STEEL LTD. AND ORS.

DATE OF JUDGMENT12/12/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KHALID, V. (J)

CITATION:  1985 AIR  251            1985 SCR  (2) 428  1984 SCC  Supl.  554     1984 SCALE  (2)927  CITATOR INFO :  RF         1985 SC 722  (4)  R          1986 SC1571  (58,67)  E&F        1991 SC 101  (5,20,88,174,195,223,239,263,2

ACT:           Industrial Disputes Act 1947 Schedule 2 Item No. 3 and Schedule 2 Item 6.             Public Scctor Undertaking-Standing Order No. 32- General Manager empowered to dismiss workman without holding an enquiry  if ’inexpedient  or  against  the  interests  of security to  continue to  employ the  workman-Such  Standing Order  whether   violative  of  the  principles  of  natural justice-Dismissal  of   employee  without  holding  domestic enquiry under  the Standing  Order Whether  valid, legal and permissible.       Constitution of India 1950 Article 311(Z) provisos (b) and (c).              Power  of dismiss civil servant without holding inquiry-When   arises-    Introduction   of   safeguard-That authority  must   specify   reasons   why   not   reasonable practicable to holding inquiry.       Practice  and  Procedure-Labour  disputes-Adjudication of-Dismissal of  employee-Decision of  employer to  dispense with domestic  enquiry questioned-  Deputy  of  employer  to satisfy the  court that  holding of enquiry would be counter productive or cause irreparable and irreversible damage.

HEADNOTE:       Standing  Order 31 of the 1st Respondent/Public Sector Undertaking prescribed a detailed procedure for dealing with cases of  misconduct; and  for imposing  major penalty,  the employer  had   to  draw   up  a  chargesheet  and  give  an opportunity  to   the  delinquent   workman  to   make   his representation  within  7  days.  If  the  allegations  were controverted, an  enquiry had to be held by an officer to be nominated  by   the  management   and  in  such  an  enquiry reasonable  opportunity  of  explaining  and  defending  the alleged  misconduct   had  to   be  given  to  the  workman. Suspension of  the delinquent  workman pending  enquiry  was also permitted.  At the  end of  the enquiry, if the charges were held proved, and it was provisionally decided to impose a major penalty, tho delinquent workman bad to be afforded a

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further reasonable  opportunity to represent why the penalty should not be imposed on him.       Standing  Order 32 provided for a special procedure in case of  a workman was convicted for a criminal offence in a court of  law or where the General Manager was satisfied for reasons to be recorded in writing that it was inexpedient or against the  interests of security to continue to employ the workmen’, viz.,  the workman  could be  removed or dismissed from service  without following  the procedure  laid down in Standing Order No. 31. 429       The  appellant an  Assistant in  the  1st  Respondent- undertaking was A removed from service on the ground that it was no  longer  expedient  to  employ  him.  The  management dispensed with  the departmental enquiry, after looking into the  secret  report  of  one  of  their  officers  that  the appellant had  misbehaved with  the wife  of an employee and that a complaint in respect thereof had been lodged with the police.       In  the reference  to  the  Industrial  Tribunal,  the Tribunal held  that  as  the  employer  dispensed  with  the disciplinary enquiry  in exercise  of the power conferred by Standing Order  32, it  could not be said that the dismissal from service  was not  justified, and  that  if  there  were allegations of  misconduct, the employer was quite competent to pass an order of removal from service without holding any enquiry any  in view of the provisions contained in Standing Order 32, and rejected the reference.       Allowing the appeal, by the employee to this Court, ^       HELD:  1. The  reasons for dispensing with the enquiry do not  spell out  what was  the nature  of  the  misconduct alleged to  have been  committed by  the appellant  and what prompted the  General Manager  to dispense with the enquiry. [437D]       2.  As there  was no justification for dispensing with the enquiry,  imposition of  penaly of dismissal without the disciplinary enquiry as contemplated by Standing Order 31 is illegal and invalid. [437F]       3  The respondent  shall recall  and cancel  the order dated August  24, 1970  removing the  appellant from service and reinstate  him and  on the  same day the appellant shall tender resignation  of his  post which  shall be accepted by the respondent.  The respondent  shall pay  as and by way of back wages  and future  wages, a sum of Rs. l.5 lakhs to the appellant within  2 months  which shall  be spread over from year to  year commencing  from  the  date  of  removal  from service. The  appellant shall  be entitled  to relief  under Section 89  of the  Income-tax Act,  1961 for which he shall make the necessary application to the appropriate authority. who would consider granting of relief. [438C-D;F] F        4.   Where  an   order  casts  a  stigma  or  affects livelihood, before  making the  order, principles of natural justice in  a reasonable  opportunity to  present one s case and controvert  the adverse  evidence must  have full  play. Even he  Constitution  which  permits  dispensing  with  the inquiry under Article 311 (2) a safeguard is introduced that the  concerned   authority  must  specify  reasons  for  its decision why  it was  not reasonably practicable to hold the inquiry. [435 A-B]       5.  (i)  Standing  Order  32,  nowhere  obligates  the General Manager  to record  reasons for  dispensing with the inquiry as prescribed by Standing Order 31. On the contrary, the language  of Standing  Order 32  enjoins a duty upon the General Manager  to record  reasons for his satisfaction why

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it was  inexpedient ar  against the interest of the security of the  State to continue to employ the workman. Ressons for dispensing with the enquiry an reasons for not continuing to employ the  workman stand,  wholly apart  from  each  other. [435C-D] 430      (ii) A  Standing Order  which confers  such  arbitrary. uncanalised and  drastic power  to dismiss  an  employee  by merely  stating  that  it  is  inexpedient  or  against  the interest of  security to  continue to  employ the workman is violative of  the basis c requirement of natural justice, as tho General  Manger can  impose penalty  of such  a  drastic nature as  to affect  the livelihood and put a stigma on the character of  the   workman without  recording  reasons  why disciplinary enquiry  is dispensed  with and,  what was  the misconduct 13 alleged against the employee. [435D-E]       6  When the  decision of the employer to dispense with the enquiry  is  questioned,  the  employer  must  be  in  a position to  satisfy the  Court that  holding of the enquiry will  be   either  counter-productive   or  may  cause  such irreparable and  irreversible damage  which in the facts and circumstances of the case need not be suffered- This minimum requirement cannot  and should not be dispensed with. [436B- C]       L.  Michael and  Anr. v. M/s. Johnston Pumps India Ltd [1975] 3 SCR 489, referred to.       7.  It is  time for  the 1st  respondent-public sector undertaking to  recast Standing Order 32, and to bring it in tune with  the philosophy  of the Constitution failing which the vires  of the  said standing  Order  would  have  to  be examined in an appropriate proceeding. [438D]

JUDGMENT:       CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1 1 37 of 1981 .       From  the Award  dated 22nd  December, 1978 of the 9th Industrial Tribunal,  West Bengal  in Industrial Case No. X- 7/74 (G.O. No. 8231-IR-IR-IOL-3 (K)/73.             R.K. Garg, P.K. Chakravarti and A K. Ganguli for the Appellants.       G.B. Pai, S. Chatterjee, Altaf Ahmed and A K Panda for the Respondents.      The Judgment of the Court was delivered by       DESAI,  J. In  exercise of the power conferred by Sec. 10 of  the Industrial  Disputes Act, 1947, the Government of the State  of  West  Bengal  as  an  appropriate  Government referred the  following  dispute  to  the  Ninth  Industrial Tribunal, West  Bengal for adjudication. The reference reads as under:           "Whether the termination of services of Shri Manas Kumar Mukherjee  is justified ? To what relief, if any is he entitled ?"              Hindustan  Steel Ltd.  (’Employer’  for  short) dismissed  Manas     Kumar  Mukherjee(’Workman’  for  short) without holding any inquiry 431 and  without  giving  any  opportunity  to  the  workman  to question or  A correct the allegation of misconduct levelled against him  and  in  violation  of  principles  of  natural justice.  The  employer  tried  to  sustain  its  action  by invoking its powers under Standing Order 32 of the certified Standing Orders of the Hindustan Steel Ltd. S.O. 32 reads as under: B

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     "32. Special Procedure in certain cases.            Where a workman has been convicted for a criminal      offence in  a Court  of Law or where to General Manager      is satisfied,  for reasons  to be  recorded in writing,      that it  is inexpedient  or against  the  interests  of      security to continue to employ the workman, the workman      may  be  removed  or  dismissed  from  service  without      following the  procedure laid  down in  Standing  Order      31."       S.O. 31 prescribed detailed procedure for dealing with cases  of   misconduct.  Briefly   stated,   the   procedure prescribed in S.O. 31 for imposing major penalty is that the employer  has   to  draw  up  a  charge-sheet  and  give  an opportunity  to   the  delinquent   workman  to   make   his representation within  seven days.  If the  allegations  are controverted, an  enquiry has to be held by an officer to be nominated  by   the  management   and  in  such  an  enquiry reasonable  opportunity  of  explaining  and  defending  the alleged  misconduct  must  be  given  to  the  workman.  The delinquent workman  may also  be given  the assistance  of a fellow employee.  The procedure  also permits  suspension of the delinquent  workman pending  enquiry. At  the end of the enquiry.  if   the  charges  are  held  proved,  and  it  is provisionally  decided   to  impose   major   penalty,   the delinquent workman  has to  be afforded  a further resalable opportunity to  represent why  the  penalty  should  not  be imposed on  him. According  to the  employer it can dispense with such  an enquiry  in exercise of the power conferred by S.O. 32.  The scope  and ambit of S.O. 32, will be presently examined.       The  Tribunal held that as the employer dispensed with the disciplinary  enquiry in exercise of the power conferred by S.O.  32, it  cannot be  said that dismissal from service was not  justified. The Tribunal observed that even if there were allegations  of  misconduct,  the  employer  was  quite competent to  pass an  order of removal from service without holding any enquiry in view of the provision con- 432  tained in S.O. 32- The Tribunal concluded that the employer accused the  workman of  committing misconduct and proceeded to pass  the order  of removal  from service without holding any enquiry into the allegations of misconduct, it cannot be said to  be a  colorable exercise  of power  and the workman would  not   be  entitled   to  any   relief.  The  Tribunal accordingly rejected  the reference.  Hence this  appeal  by special leave.       The  only question  that must  engage our attention is what is  the scope  and ambit of S.O 32. It has already been extracted. Upon  its true  construction the  standing  Order does not provide that for reasons to be recorded in writing, an enquiry  into misconduct  can be  dispensed with. S.O. 32 clearly confers  power upon  the General Manager that on his being satisfied  that  it  is  inexpedient  or  against  the interest of security to continue to employ the workman, then for reasons  to be  recorded in  writing the  workman may be removed or  dismissed from  service  without  following  the procedure laid  down in  Standing  Order  31.  This  archaic standing order  reminiscent of the days of  hire and fire is relied upon  by a  public sector  undertaking to  sustain an utterly unsustainable  order and  to justify an action taken in violation of the principles of natural justice, an action which has  the- effect  of denying  livelihood and casting a stigma. One  can appreciate-that  in a  given situation, and enquiry   into   misconduct   may   be   counter-productive. Constitution itself  contemplates such  a situation  when it

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enumerates siltations  in which  a punishment  of dismissal, removal or  reduction in rank can be imposed without holding a disciplinary enquiry. Let it be extracted:       "311.  Dismissal, removal  or  reduction  in  rank  of persons employed  in civil  capacities under  the Union or a State-            ( 1) ... ... ... ... ... ... ... ... ... ... ...             (2)   No  such   person  as  aforesaid/shall  be      dismissed or removed or reduced in rank except after an      inquiry in which he has  been  informed  of the charges      against him and given a reasonable opportunity of being      heard in  respect of those charges:      ...    ...    ...    ...    ...   ...   ...   ...   ...      ...    ...    ...    ...    ...   ...   ...   ...   ... 433            Provided  further  that  this  clause  shall  not      apply- A      (a)   where a person is dismissed or removed or reduced      in rank on the ground ’ of conduct which has led to his      conviction on a criminal charge: or          (b)    where  the authority empowered to dismiss or      remove a  person or  to reduce him in rank is satisfied      that for  some reason, to be recorded by that authority      in writing,  it is  not reasonably  practicable to hold      such inquiry; or       (c)  where  the President  or the Governor as the case      may be,  is satisfied  that  in  the  interest  of  the      security of  the State it is not expedient to hold such      inquiry."       A  bare perusal of the situations and contingencies in which  a   disciplinary  enquiry   affording  a   reasonable opportunity of  being heard  before imposing  the enumerated penalty can  be dispensed  with will  clearly show  that the power is  not given  to dismiss remove or reduce in rank the delinquent worker  but the  power conferred  by  the  afore- mentioned provision  is to  dispense with  an enquiry before imposing major  penalty. Sub-art-  (3) of  Art- 311 provides that ’if,  in respect  of any  such person  as aforesaid,  a question arises  whether- it  is reasonably  practicable  to hold such  inquiry as  is referred  to in  clause  (2).  the decision thereon  of the  authority empowered  to dismiss or remove such person or to reduce him in rank shall be final.’ Now the  three situations  contemplated by the provision arc such that holding of an enquiry would be counter-productive. Where the penalty of dismissal, removal or reduction in rank is to  be imposed   on the ground of a conduct which has led to his  conviction on  a  criminal  charge,  obviously,  the enquiry will  be superfluous or a repeat performance because a judicial  tribunal has  held the charges proved. But where the authority  empowered to  impose the penalty is satisfied for reasons to be recorded by it in writing to dispense with an enquiry,  the reasons so recorded must ex-facie show that it was  not reasonably  practicable to  hold a  disciplinary enquiry. Similarly, where in the interest of the security of the State,  the President  or the  Governor, as the case may be, is  satisfied that  it is  not expedient  to  hold  such enquiry, the  same  can  be  dispensed  with.  In  the  last mentioned situation,  the highest  executive of the country, the  President  and  the  highest  executive  of  State  the Governor alone  is entitled to dispense with the inquiry, if it is  satisfied that in the interest of the security of the State, it is not 434  expedient  to hold such enquiry Dispensing with the enquiry in  the  first  and  third  situation  does  not  present  a

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difficulty  because  in  the  first  situation  there  is  a conviction by  a criminal  court and in the third situation, the highest  executive  in  the  Centre  and  the  State  is empowered to  dispense with the enquiry. It is in the second fact  situation   that  one   must  evaluate  the  width  of discretionary power to dispense with enquiry. The appointing authority is  invested with  power to dispense with enquiry. And in  case of  persons belonging to Class IV services, the appointing  authority   may  be   some-one  in   the   lower administrative hierarchy  and such  an officer  is  invested with such draconian powers. Where such a power is conferred, on an  authority entitled  to impose penalty of dismissal or removal or  reduction in  rank, before  it can dispense with the inquiry, it must be satisfied for reasons to be recorded in writing  that it  is not  reasonably practicable  to hold such an enquiry. Power to dispense with enquiry is conferred for a  purpose and  to effectuate  the purpose  power can be exercised. But  power is  hedged  in  with  a  condition  of setting down  reasons in  writing why  power  is  exercised. Obviously therefore  the reasons which would permit exercise of power  must be  such as  would clearly spell out that the inquiry if  held would  be counter-productive.  The duty  to specify by  reasons the  satisfaction for  holding that  the inquiry was  not reasonably  practicable cannot be dispensed with. The  reasons must be germane to the issue and would be subject to  a limited-judicial  review. Undoubtedly Sub-art. (3) of  Art. 311 provides that the decision of the authority in this  behalf is  final. This  only mean  that  the  Court cannot inquire  into adequacy or sufficiency of reasons. But if the  reasons ex-facie are not germane to the issue namely of dispensing  with enquiry  the Court  in a  petition for a writ of  certiorari can  always examine reasons ex-facie and if they  are not  germane to the issue record a finding that the pre-requisite  for exercise  of power  having  not  been satisfied,  the   exercise  of  power  was  bad  or  Without jurisdiction. If  the court  is satisfied  that the  reasons which prompted  the concerned  authority to record a finding that it  was not reasonably practicable to hold the enquiry, obviously the  satisfaction would  be a  veneer to  dispense with the  inquiry and the court may reject the same. What is obligatory is to specify the reasons for the satisfaction of the authority that it was not reasonably practicable to hold such an  inquiry. Once  the reasons  are specified  and  are certainly subject  to limited  judicial review  as in a writ for certiorari,  the court would examine whether the reasons were germane to the issue or was merely a cloak, device or a pretence to dispense with the inquiry 435 and to  impose the  penalty. Let it not be forgotten what is laid down  A by  a catena  of decisions  that where an order casts a  stigma or  affects  livelihood  before  making  the order, principles  of natural  justice namely  a  reasonable opportunity to present one’s case and controvert the adverse evidence  must   have  full   play  Thus   even  where   the Constitution  permits   dispensing  with   the  inquiry,   a safeguard is  introduced that  the concerned  authority must specify reasons  for its  decision why it was not reasonably practicable to hold the inquiry.          Turning to S.O 32, it nowhere obligates the General Manager to record reasons for dispensing with the inquiry as prescribed by S.O. 31. On the contrary, the language of S O. 32 enjoins a duty upon the General Manager to record reasons for his  satisfaction why  it was inexpedient or against the interest of  the security of the State to continue to employ the workman.  Reasons for  dispensing with  the inquiry  and

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reasons for  not continuing  to  employ  the  workman  stand wholly apart from each other. A Standing Order which confers such arbitrary,  uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest  of the  security to  continue  to  employ  the workman are  violative of  the basic  requirement of natural justice inasmuch  as that  the General  Manager  can  impose penalty of such a drastic nature as to affect the livelihood and put  a stigma  on the  character of  the workman without recording reasons why disciplinary inquiry is dispensed with and what was the misconduct alleged against the employee. It is time  for such  a public  sector undertaking as Hindustan Steel Ltd to recast S.O. 32 and to bring it in tune with the philosophy of  the Constitution failing which it being other authority  and  therefore  a  State  under  Art.  12  in  an appropriate proceeding, the vires of S O. 32 will have to be examined. It  is not  necessary to do so in the present case because even  on the terms of S.O. 32, the order made by the General Manager is unsustainable.       The  view we  are taking  gets  some  support  from  a decision of  this Court.  In a slightly different situation, this Court  in L. Michael & Anr. v. M/s Johnston Pumps India Ltd ll) observed that discharge simplicitor on the ground of loss of  confidence when questioned before a court of law on the ground  that it  was a colorable exercise of power or it is a  mala fide  action, the  employer must disclose that he has acted  in good faith and for good and objective reasons. Mere ipse dixit of the employer in such a situation is of no significance. Where a disciplinary enquiry is dispensed with on the  specious plea that it was not reasonable practicable to hold one and a penalty (1) [1975] 3 S.C.R.489. 436 of dismissal or removal from service is imposed, if the same is challenged on the ground that it was a colorable exercise of power  or mala  fide action,  the  same  situation  would emerge and  the employer must satisfy the Court the good and objective reasons showing both proof of misconduct and valid and objective  reasons for  dispensing with  the enquiry. In our opinion,  when the  decision of the employer to dispense with enquiry  is questioned,  the  employer  must  be  in  a position to  satisfy the  Court that holding, of the enquiry will  be   either  counter-productive   or  may  cause  such ireparable and  irreversible damage  which in  the facts and circumstances of the case need not be suffered. This minimum requirement cannot  and should  not  be  dispensed  with  to control wide  discretionary power  and to  guard against the drastic power  to inflict  such a heavy punishment as denial of livelihood  and  casting  a  stigma  without  giving  the slightest opportunity  to the  employee  to  controvert  the allegation and  even without  letting him  know what  is his misconduct.       Turning  to the  facts of  the case, a bare perusal of the impugned  order is  both instructive  and provides ample material for  pointing out  how the  drastic  power  can  be arbitrarily  exercised   without   keeping   in   view   the prerequisite to  be satisfied for exercise of the power. The order reads as under:                   " HINDUSTAN STEEL LIMITED                     DURGAPUR STEEL PLANT       Ref. No. Order/PF/MN 1215                                            24th August, 1970                           O R D E R             Having   considered  the   matter  fully,  I  am      satisfied that it is no longer expedient to employ Shri

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    Manas Mukharjee,  Assistant, Order Department, Durgapur      Steel Plant any further.            It is therefore ordered that Shri Manas Mukherjee      be removed  from the service of the Company with effect      from 24. 8. 1970.           He is  allowed/three months’  salary which  he may      collect from the cash section of the Finance Department      by 26.8.1970.                                                          Sd/                                                   Maj. ,Gon.                                           Director Ineharge. 437       The  expression ’no  longer expedient’  as used in the order A  clearly spells  out the  fact that some enquiry was started. What  prompted the  General Manager  to  close  the enquiry, one cannot gather from the order- But our attention was invited  to Ann.  R-2 which according to the respondents specifies the  reasons recorded  in writing  for  dispensing with the  enquiry. Briefly,  in Ann.  R-2, it is stated that the authority  concerned has looked into the secret . report sent to  him by  Shri P  S- Rao  Naidu, Planning  & Progress Officer, Order  Deptt. and  the comments  of DGM thereon. He has also stated that he has looked into- the report received from Sr. AO (E) and the copy of the complaint lodged by Smt. Gita Majumdar,  wife of  an employee  in the  plant with the police. These  recitals have  been considered  sufficient to dispense with  tho enquiry. If Smt.  Gita Majurndat did file a report  with the  police  making  accusation  against  the appellant, she  would have  to be  examined in  the criminal case. She  could have  been more  conveniently called before the enquiry  officer, and  the secret reports remain secret. The reason  for dispensing with the enquiry do not spell out what was  the nature  of the misconduct alleged to have been committed by  the appellant  and what  prompted the  General Manager to  dispense with  tho enquiry.  It is  difficult to hold that the recitals of the order spell out some objective reasons and  the reasons  were germane  to the  question  of dispensing with  the enquiry  - Frankly speaking, we are not satisfied  in  this  case  that  for  valid,  objective  and relevant reasons, the enquiry was dispensed with.       An attempt was made to urge that some annexures to the counter-affidavit would  show  certain  complaints  received against; the appellant. We decline to look into them as they were not  given to the appellant in the course of enquiry to meet or  explain the  same. We  consider them  irrelevant at this stage,       Once  we hold  that there  was  DO  justification  for dispensing  with  the  enquiry,  imposition  of  penalty  of dismissal without disciplinary enquiry as contemplated by S- O 31 would be illegal and invalid.       Two  options are thereupon open to us. One would be to permit the  General Manager,  if he is so minded to hold the disciplinary enquiry  and come  to his  own decision and the second would  be to  remit the matter to the Labour Court to permit the  respondent-employer if  it is entitled in law to substantiate the charges of misconduct before the Tribunal.       The  order removing  the appellant  from  service  was passed way  back on August 24, 1970. More than 14 years have rolled by. H 438  In such a situation, to start the whole thing de nevo would neither be  of any  help  to  the  appellant  nor  would  be conducive to  the maintenance  of discipline  in the  plant. Undoubtedly, once a workman is removed from service a stigma attaches to  him, and  if the  order is  held to  be not  in

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consonance with  the provisions  of  the  relevant  standing orders at any rate, the stigma has to be removed       Having  given the matter our anxious consideration, we dispose of the appeal as under             The respondent shall recall and cancel the order dated August  24, 1970  removing the  appellant from service and reinstate  him and  on the  same day the appellant shall tender resignation  of his  post which  shall be accepted by the respondent.  The respondent  shall pay  as and by way of back wages  and future  wages, a  sum of Rs. 1,50,000 to the appellant within  2 months from today to be spread over from year to  year commencing  from  the  date  of  removal  from service. We  give one  more opportunity to the respondent to recast its Standing Order 32 within a period of two weeks to be brought  at best in conformity with the second proviso to sub-art. (2)  of Art. 311 failing which its validity will be re-examined by this Court.      The amount  of Rs. 1, 50,000 directed to be paid to the appellant by  the respondent  comprises backwages,  and  all other allowances  admissible to  him from  year to year from 1970 upto  the end  of 1984. The amount shall be spread over from year  to year.  If because  of the  lump sum payment as directed herein the respondent is required to deduct Income- tax as  enjoined by  Sec. 192 of the y Income-tax Act, 1961, the appellant  shall be  entitled to relief under Sec. 89 of the Income  Tax Act,  1961. For  this purpose, the appellant shall make  an application  as required by Sec. 89 read with Rule 21A  to the  appropriate authority,  who would consider granting of  relief to  the appellant  under Sec.  89 of the Income-tax Act.  The proceeding  in  this  behalf  shall  be disposed of  within a  period of  six months.  The appeal is disposed of in these terms with no order as to cost. N.V.K.                                       Appeal allowed. 439