Gauhati High Court
WP(C)/3167/2016 on 13 December, 2021
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
GAHC010016642016
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 3167/2016
Subhas Chandra,
(No.05038624 CT/GD),
Son of Shri K.N. Yadav,
resident of Village-Devariya, Post-Maharauda, P.S.-Soraon,
District-Allahabad.
......Petitioner.
-Versus-
1. Union of India,
though Ministry of Home Affairs,
New Delhi.
2. The Director General Shasastra Seema Bal (SSB),
East Block, V-R.K. Puram, New Delhi.
3. The Assistan Director (Pers-II) SSB Block-V(East),
R.K. Puram, New Delhi-110066.
4. The Assistan Director (Pers-II) SSB Block-V(East),
R.K. Puram, New Delhi-110066.
5. Inspector General of Police, Sector-Headquarter,
Shasastra Seema Bal, Gauhati Frontier, Gauhati.
6. Deputy Inspector General,
SHQ, SSE, Bongaigaon (Assam).
7. The Commandant, 16th Battalion, SSB,
Kokrajhar, Assam.
......Respondents.
For the Petitioner: Mr. P.K. Goswami,
Mr. H. Talukdar,
Mr. V. Kumar. ......Advocates.
WP(C) 3167/2016 Page - 1 of 17
For the Respondents: CGC, Ms. A. Gayan,
Asstt.S.G.I. ......Advocate.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
Date of Hearing & Judgment : 13th December, 2021
JUDGMENT AND ORDER (ORAL)
Heard Mr. P.K. Goswami, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned Central Government counsel, appearing for the respondents.
2. The matter has been remanded to this Court for re-hearing by the Division Bench of this Court in the capacity of the in-house Appellate Court, when considering the order dated 26.03.2019 passed by this Court, whereby the petition was allowed and this Court directed the petitioner to be reinstated in service and if the petitioner is found not fit to be retained in service, to be given voluntary retirement by treating him to be in service and with all consequential benefits and if the petitioner is fit to resume his service, he may be allowed to be retained in service with all the consequential benefits. However, the authorities will be at liberty to impose any other lesser/minor punishment other than removal/dismissal/termination from service.
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3. The said writ petition was filed challenging the dismissal order dated 09.10.2012 issued by the respondent No.5. This Court allowed the writ petition primarily on the ground that before the said penalty was imposed based on certain finding of the Court of Inquiry, which was convened on 21.09.2011, the petitioner was not served with notice of the holding of the said Court of Inquiry and as such, this Court held that principles of natural justice was violated. In that regard, this Court also referred to sub-rule (8) of Rule 175 of the Sashastra Seema Bal Rules, 2009. The order passed by the learned Division Bench in WA No.177/2019 on 17.02.2021 for reconsideration of the matter, reads as follows:-
"Heard Ms. A. Gayan, learned CGC for the appellants. Also heard Mr. H. Talukdar, learned counsel for the respondent.
This writ appeal arises out of the order dated 26.03.2019 passed by the learned Single Judge in WP(C) No.3167/2016.
Brief facts of the case are that the respondent was a Constable in the Sashastra Seema Bal (SSB) who was sanctioned 35 days earned leave with effect from 24.05.2011 to 27.06.2011. He was supposed to report on duty on 27.06.2011/28.06.2011. He did not report for duty and thereafter he was sent rejoining notices vide ending no. 7136-38 dated 26.07.2011; 575-78 dated 12.08.2011; 8333 dated 19.08.2011; 8834 dated 29.08.2011 and 13619 dated 19.09.2011 but the Department did not receive any reply from the respondent. Court of Enquiry was constituted by the Commandant of 16th Battalion, SSB, Adabari, Assam vide order dated 19.09.2011.
We have no records. Several notices of the Court of Enquiry was issued to the respondent but in vain and as per the admission of the respondent himself was that the first time he sought extension of his leave was on 03.11.2011 after WP(C) 3167/2016 Page - 3 of 17 his sanctioned leave had exhausted much earlier in 2011. Consequently, Court of Enquiry which was instituted by the three Officers came to the conclusion which is as follows:
OPINION OF THE COURT:-
After going through the relevant documents and statements disposed by the witnesses during the enquiry, the board is of the opinion that No.050383624, CT(GD) Subhash Chandra of D-Coy is willfully overstaying from his sanctioned earned leave of 35 (Thirty give) days w.e.f. 28/06/11 to till date.
RECOMMENDATION OF THE COURT:-
After going through the records, the board of officers/officials recommends that No.050383624, CT(GD) Subhash Chandra of D-Coy is willfully absenting himself. Hence, he may be declared "DESERTER"
from the Force under SSB Act and Rules, so that the stern disciplinary action can be taken against the defaulter necessary for maintaining good order and discipline of the Force. Cost of Govt. kit items and photo identity card may also be ordered to be recovered from him. Thereafter, the Court of Enquiry vide order dated 09.10.2012, found that the petitioner/respondent was not suitable and fit to be retained in a disciplinary Force as such was his conduct in past as well. Consequently, in exercise of powers conferred under Rule 18 of SSB Rules, 2009 read with Rule 26 of SSB Rules, 2009, the petitioner/respondent was dismissed from service w.e.f. 28.06.2011.
The petitioner/respondent filed a statutory appeal against his dismissal which was also dismissed on 17.01.2013. Thereafter, the appellant filed a writ petition, being WP(C) 3167/2016, challenging the aforesaid dismissal order dated 09.10.2012 as well as the order dated 17.01.2013. The learned Single Judge came to the conclusion that procedure as prescribed under the Sashastra WP(C) 3167/2016 Page - 4 of 17 Seema Bal Rules, more particularly Rule 175 has not been followed as the place, time and date of enquiry was not communicated to the respondent/petitioner, and therefore, rules of natural justice have been violated as the Departmental Enquiry proceeded, in absence of the petitioner/writ appellant.
Learned counsel for the writ appellant, Mr. H. Talukdar, has however shown to this Court Section 75 of the Act itself, i.e. Section 74 of the Sashastra Seema Bal Act, 2007 which reads as under:
74. Inquiry into absence without leave- (1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed;
and such court shall, on oath or affirmation administered in the prescribed manner, inquire in respect of the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or accessories; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the commanding officer of the unit to which the person belongs or is attached, shall make a record thereof in the prescribed manner.
(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter. Whether the aforesaid provision is applicable under the facts and circumstances of the present case where an enquiry proceeded against the Constable who had remained absent from duties is an aspect which has not been examined by the learned Single Judge as the said provision was not placed before the learned Single Judge. In view thereof, we set aside the order dated 26.03.2019, passed in WP(C) 3167/2016 and remand the matter back to the learned Single Judge who WP(C) 3167/2016 Page - 5 of 17 may examine the matter inter-alia in the light of Section 74 of the Act."
4. In the opinion of this Court, reproducing of the order dated 26.03.2019 which had been set aside, would provide the context and background of the re- hearing. Accordingly, the same is reproduced hereinbelow:-
"Heard Mr. H. Talukdar, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC for the Union.
2) In this petition, the petitioner has challenged the dismissal order dated 09.10.2010 issued by respondent No. 5 and subsequent appellate order and revisional order passed by the authorities and seeking reinstatement in service with consequential benefits.
3) Only the relevant facts as necessary may be mentioned herein.
4) The petitioner who was serving as a constable in the SSB was proceeded against departmentally on the ground of overstaying leave vide memo dated 26.07.2011. The petitioner was informed that he had proceeded on 35 days earned leave w.e.f. 24.05.2011 to 26.07.2011 with direction to report back at 16 Battalion Head Quarter, but he failed to report due on duty and accordingly, he remained willfully absent without any information. Accordingly, the petitioner was directed to report at 16th Battalion Head Quarter, Adabari, Kokrajhar, Assam forthwith on receipt of the memorandum dated 26.07.2011 without any further delay with a warning that failing which strict disciplinary action will be initiated against him under the SSB Act and Rules.
5) Though, the petitioner claims that he submitted his representation for extension of his earned leave on medical ground as petitioner was admitted to hospital undergoing treatment relating to liver Cirrhosis and kidney disorder, because of which he could not resume duty, the authorities without giving any further notice to him proceeded to hold the Court of Enquiry.
WP(C) 3167/2016 Page - 6 of 17
6) As per records, the Court of Enquiry was held on 21.09.2011, by which
the Court of Enquiry examined two witnesses and also examined a number of documents produced by the authorities and thereafter, concluded and recommended that the petitioner be declared a deserter from the Force under the SSB Act & Rules.
7) On the basis of the said finding and recommendation made by the Court of Enquiry, a show cause notice was served upon the petitioner on 16.02.2012 by which the petitioner was directed to submit his response. However, the petitioner could not submit the reply because of the illness as mentioned above and accordingly, thereafter, the impugned order dated 09.10.2012 was passed by which the petitioner was dismissed from service under Rule 18 of SSB Rules, 2009 read with Rule 26 of SSB Rules.
8) Though, a number of grounds have been raised by the petitioner in challenging the dismissal order, the petitioner has submitted that before the Court of Enquiry was held, the petitioner was not informed or given any notice of holding of the Court of Enquiry, and as such on this ground only, the entire proceeding initiated against him is vitiated and, as such, the dismissal order issued on the strength of the finding made by Court of Enquiry without giving any opportunity of participating and hearing and hence, ex parte, is liable to be set aside.
9) At this, Ms. A. Gayan, learned CGC for the Union submitted that before the Court of Enquiry was held, the petitioner was duly informed of the sitting of the Court of Enquiry on 21.09.2011. It has been submitted that a memorandum was issued on 26.07.2011, by which the petitioner was informed that failing to report at 16 Battalion Head Quarter forthwith without any delay, strict disciplinary action will be initiated under the rules which was followed by other memoranda dated 29.08.2011 and 19.09.2011. As such, only after the petitioner failed to respond to the said memoranda issued, the said Court of Enquiry was held and accordingly, it has been submitted that it cannot be said that the WP(C) 3167/2016 Page - 7 of 17 petitioner was not informed of the holding of the said Court of Enquiry.
10) To appreciate the submission advanced by the learned CGC for the Union, it may be apposite to reproduce the aforesaid Memoranda dated 26.07.2011, 29.08.2011 as well as 19.09.2011:
"Registered/AD Government of India Ministry of Home Affairs Office of the Commandant 16th Bn, SSB, Adabari, Kokrajhar (Assam) 783376 No. 01/10 (21897)/16th BN/PF/09 7136-38 dated 26th July, 2011 MEMORANDUM - 1 You had proceed on 35 (Thirty five) days earned leave w.e.f. 24/05/11 to 27/06/2011, with direction to report back at 16th BN HQ, Adabari, Kokrajhar, Assam on 27/06/11, before evening roll call. But you failed to resume your duty on due date and time and willfully absent w.e.f 28/06/11 (FN) to till date without any information.
Hence, you are hereby directed to report at 16th BN HQ, Adabari, Kokrajhar, Assam, forthwith on receipt of this memo without any delay. Failing which strict disciplinary action will be initiated against you under SSB Act & Rules.
ADJUTANT 16TH BN SSB ADABARI ASSAM"
******************** "Registered/AD Government of India Ministry of Home Affairs WP(C) 3167/2016 Page - 8 of 17 Office of the Commandant 16th Bn, SSB, Adabari, Kokrajhar (Assam) 783376 No. 01/10 (21897)/16th BN/PF/09 8834-36 dated 29th July, 2011 MEMORANDUM Re-joining Notice-II You had proceed on 35 (Thirty five) days earned leave w.e.f. 24/05/11 to 27/06/2011, with direction to report back at 16th BN HQ, Adabari, Kokrajhar, Assam on 27/06/11, before evening roll call after expiry of leave, you failed to resume your duty on due date willfully absent w.e.f 28/06/11 (FN) to till date without any information.
Hence, you are once again directed to report at 16th BN HQ, Adabari, Kokrajhar, Assam, forthwith on receipt of this memo without any delay, failing which strict disciplinary action will be initiated against you under SSB Act & Rules.
ADJUTANT 16TH BN SSB ADABARI ASSAM"
******************** "Registered/AD Government of India Ministry of Home Affairs Office of the Commandant 16th Bn, SSB, Adabari, Kokrajhar (Assam) 783376 No. 01/10 (21897)/16th BN/PF/09 13619-21 dated 19th September, 2011 MEMORANDUM WP(C) 3167/2016 Page - 9 of 17 Re-joining Notice-III You had proceed on 35 (Thirty five) days earned leave w.e.f. 24/05/11 to 27/06/2011, with the direction to report back at 16th BN HQ, Adabari, Kokrajhar, Assam on 27/06/11, before evening roll call. After expiry of leave, you failed to resume your duty on due date and willfully absented w.e.f 28/06/11 (FN) to till date without any information.
Hence, you are once again directed to report at 16th BN HQ, Adabari, Kokrajhar, Assam, forthwith on receipt of this memo without any delay, failing which strict disciplinary action will be initiated against you under SSB Act & Rules.
ADJUTANT 16TH BN SSB ADABARI ASSAM"
11) It may be noted that the Court of Enquiry is comparable to a departmental proceeding, in which the disciplinary authority examines a number of witnesses and also the documents relied on by the authorities to prove the charges against the petitioner. Therefore, it is incumbent upon the disciplinary authority to inform the charged officer of the convening of the Departmental Enquiry, by informing the charged officer of the date and time. This information or notice about the holding of the Departmental Enquiry is distinguishable from the show cause notice as to why a disciplinary action will not be taken.
12) In the present case, the said Court of Enquiry was held to enquire into the facts and circumstances under which the petitioner had over stayed the 35 days earned leave and as such, the purpose of holding enquiry is very clear. It was to ascertain any lapses on the part of the petitioner. If that is so, it was incumbent upon the authorities before holding the said Court of Enquiry on 21.09.2011 to have informed the petitioner that the Court of Enquiry is going to be held on 21.09.2011. It would be a different matter, if the petitioner does not respond to any such intimation by the authorities of the decision to hold the Court of WP(C) 3167/2016 Page - 10 of 17 Enquiry on 21.09.2011.
13) The responsibility of the authorities to intimate the petitioner remains, that the Court of Enquiry is going to be convened on 21.09.2011. In other words, before the authorities proceeded to hold the Court of Enquiry to ascertain the circumstances under which the petitioner had overstayed his leave, it was incumbent upon authorities to inform the petitioner of holding such an enquiry, on such date and time fixed by the authorities, as the finding which will be arrived at by the Court of Enquiry will form the basis for the subsequent disciplinary actions taken by the authorities against the petitioner.
14) Shasastra Seema Bal Act, 2007 and Rules framed there under, namely Shastra Seema Bal Rules, 2009, are silent as to whether a person proceeded against must be given notice before convening or holding the Court of Enquiry under Act and Rules.
15) However, the principles of natural justice would come into play wherever there is a silence on such situations where an adverse finding may be arrived at pursuant to an enquiry. Therefore, even if the Act and Rules are silent about prior notice before holding of Court of Enquiry, requirement of it has to be read into same.
16) In other words, even if the Act and Rules are silent as regards requirement to give notice before convening or holding a Court of Enquiry, the person charged must be given notice of the holding of the Court of Enquiry of the time and place. In the present case, what has been noted is that apart from the memoranda issued prior to the said holding of Court of Enquiry referred to above, there was no specific notice issued to the petitioner about the time and place of holding of Court of Enquiry. The aforesaid memoranda merely mention that in the event of failure on the part of the petitioner to report for the duty, strict disciplinary action would be initiated. In the opinion of this Court, that memoranda or show cause notices cannot be said to be notice informing the petitioner of convening or holding of the Court of Enquiry.
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17) Further, on perusal of the Rule 175 of SSB Rules, 2009, it is seen that it
lays down the procedure of the Court of Enquiry. It has been provided under Sub-rule 8 of Rule 175 that in the case of a prisoner of war who is still absent whenever the subject matter of enquiry is the conduct or character of a particular person, such person may be associated throughout with the enquiry and be given full opportunity of making any statement, or giving any evidence, he may wish to make or give, and of cross-examination any witness whose evidence in his opinion, affects his character or reputation.
18) The aforesaid Sub-rule 8 clearly indicates that the person proceeded against must be given opportunity which cannot be said to have been given, if he was not notified at all of the convening of the Court of Enquiry. If no notice had been given by the authorities of the convening of the Court of Enquiry or holding of the Court of Enquiry, the provisions of Sub-rule 8 of Rule 175 will be rendered otios and redundant. That cannot be the contemplation under law. As such, this Court holds that if the petitioner was not given notice of the convening and holding of the Court of Enquiry on 21.09.2011 and if it was proceeded ex parte as against the petitioner, as in the present case, the entire proceeding would stand vitiated for violation of the principles of natural justice and also for violating Sub-rule 8 of Rule 175 of the SSB Rules, 2009. If that is so, if the initial act has been vitiated, all the subsequent and consequential acts will also stand vitiated, even if the subsequent the acts have been carried out in accordance of law.
19) It is a settled legal position that if the initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason the illegality strikes at the root of the order. The legal maxim 'sublato fundamento cadit opus', meaning thereby that foundation being removed, structure/wall falls, comes into play. [See State of Pubjab Vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770]
20) In that view of the matter, this Court does not consider it necessary to WP(C) 3167/2016 Page - 12 of 17 examine the legality of the subsequent actions taken by the authorities after the holding of the Court of Enquiry as to whether these were done in accordance with law or not, for the reason that this Court has already found that holding of the Court of Enquiry on 21.09.2011 is vitiated on account of non intimation of the holding of the said Court of Enquiry and also non-providing of the opportunity to the petitioner as mentioned under Sub-rule 8 of Rule 175.
21) In the result, for the reasons discussed above, the petition succeeds. The impugned dismissal order dated 09.10.2010 and subsequent appellate order and revisional order passed by the authorities are set aside.
22) Accordingly, the petitioner is entitled to be reinstated in service. The respondent authorities will accordingly reinstate the petitioner to service. Considering the fact that the incident occurred in 2011 for alleged absence which according to the petitioner, was occasioned because of serious illness from which he was suffering, if the petitioner is not found fit to be retained in service, the petitioner may be given voluntary retirement by treating him to be in service, and all consequential benefits be given to him. If, however, he is fit to resume duty he must be allowed to be reinstated in service with all the consequential reliefs and the authorities will be at liberty to impose any other lessor/minor punishment other than removal/dismissal/termination from service."
5. Perusal of the aforesaid order dated 26.03.2019 would indicate that when the aforesaid order was passed there was no specific reference to the provisions of Section 74 of the Sashastra Seema Bal Act, 2007 (hereinafter referred to as the 2007 Act), which was pointed out by the present respondents before the Appellate Court and the Appellate Court was of the view that since the said provision was not noticed by this Court, the matter would perhaps require re-examination.
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6. We have heard the learned counsel for the parties on this aspect.
7. Section 74 of the 2007 Act specifically relates to the action that may be taken by the authorities when it relates to absence without leave and in the present case, the petitioner was penalized for overstaying his leave. Thus, on that point of view this Court is also satisfied that Section 74 would be applicable in the present case as also observed by the Appellate Court. If Section 74 is applicable, as contended by the Union respondents, as also not disputed by the petitioner, the next question to be considered is what consequences will follow from the application of Section 74 in the facts and circumstances of the case, as narrated above in the previous order dated 26.03.2019 of this Court.
8. The fact remains that this Court had allowed this petition on the earlier occasion primarily on the ground of violation of principles of natural justice as this Court took the view that mere issuing of memoranda, as quoted in paragraph 10 of the judgment dated 26.03.2019, does not amount to giving of notice to the petitioner as recorded in paragraphs 11 and 13 of the judgment, referred to above. Under the circumstances, this Court took the view that non- giving of notice to the petitioner specifically about holding of the Court of Inquiry to examine the charges against him, before the Court of Inquiry was held would vitiate the entire proceeding before the Court of Inquiry and subsequent acts of the Disciplinary Authority as well as the Appellate Authority and accordingly, passed the above mentioned direction as contained in WP(C) 3167/2016 Page - 14 of 17 paragraph 22 of the said order of this Court reproduced above.
9. Perusal of Section 74 of the 2007 Act also would indicate that it requires arriving at the satisfaction by the Disciplinary Authority as to whether such absence was without due authority or sufficient cause, which indicates that such a satisfaction can be arrived at only after hearing all the parties concerned including the delinquent, for if any satisfaction is arrived by the authority without hearing the delinquent, it cannot be considered to be a satisfaction in the eyes of law.
10. Section 74 further specifically mentions that the Court of Inquiry shall be appointed by such authority and in such a manner as may be prescribed and which shall on oath or affirmation administered in the prescribed manner inquire into the respect of absence of that person and deficiency, if any. The fact that it contemplates inquiry regarding the absence of a person would mean giving a notice to the person concerned who has been inquired upon. In the view of this Court, making inquiry will certainly involve hearing the concerned person also, as otherwise it cannot be considered to be proper inquiry. The law does not contemplate inquiry without hearing the concerned person.
11. Thus, this Court is of the view that a proper analysis of Section 74 would indicate that the provision itself contemplates giving of notice to the delinquent concerned as there could not be a proper inquiry into the matter without giving notice to the person whose conduct is being inquired upon and also no proper WP(C) 3167/2016 Page - 15 of 17 satisfaction can be arrived at without hearing the person concerned.
12. Be that as it may, whenever a Court of Inquiry is constituted, as to how the Court of Inquiry has to be conducted is clearly provided under the Rules. Chapter XIV of the Sashastra Seema Bal Rules, 2009 provides for Composition of Inquiry (Rule 172), Assembly Order (Rule 173), Members of the Court who shall make certain declaration (Rule 174) and Procedure of the Court of Inquiry as provided under Rule 175. Sub-rule (8)(a) of Rule 175 of the 2009 Rules clearly provides that save in the case of a prisoner of war who is still absent whenever the subject-matter of inquiry is the conduct or character of a particular person, such person may be associated throughout with the inquiry and be given full opportunity of making any statement, or giving any evidence, he may wish to make or give, and of cross-examination any witness whose evidence in his opinion, affects his character or reputation . Thus, the provisions of Chapter XIV will get activated the moment a Court of Inquiry is constituted and as such, whenever any action is contemplated under Section 74 of the 2007 Act, the provisions of Chapter XIV of the 2009 Rules will also have to be applied, which specifically provides for associating the person with the inquiry allowing him to give evidence or cross-examination etc., which will not be possible unless he is given a notice to that effect.
13. Accordingly, this Court would hold that even if Section 74 of the 2007 Act is applied in the present case, the said application would not dispense with the WP(C) 3167/2016 Page - 16 of 17 requirement of giving notice to the delinquent. The principles of natural justice would become applicable as explicitly mentioned under the Rules.
14. Accordingly, this Court would hold that in the present case since no such notice was given even, provisions of Section 74 of the Act was violated and the impugned action of the authorities continues to suffer from the same shortcoming or deficiency rendering it unsustainable in law for violating principles of natural justice as well as provisions of Chapter XIV of the Sashastra Seema Bal Rules, 2009 referred to above. In other words, this Court does not find any reason to come to a different conclusion than what had been arrived at earlier on 26.03.2019 as quoted in paragraph 22 thereof, as reproduced above, in spite of application of Section 74 of the Act.
15. For the reasons discussed above, the present petition stands allowed with similar directions as given in paragraph 22 of the order dated 26.03.2019 passed by this Court on earlier occasion reproduced in paragraph No.4 of this order.
16. No order as to cost.
Sd/- N. Kotiswar Singh
JUDGE
Comparing Assistant
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