Central Administrative Tribunal - Ernakulam
P M Ramakrishnan vs Southern Railway on 7 February, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/00133/2021
Wednesday, this the 7th day of February, 2024
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
1. P.M. Ramakrishnan, S/o Kunhappa Nambiar, Aged 67 years,
(Retd Station Superintendent, Southern Railway, Mahe) residing
at "Anjali", Chala East P.O, Kannur-670 521.
2. K. Somachandran, S/o Kannan, aged 68 years, (Retd N.A. Khalasi,
Southern Railway, Kannur), Residing at Thayil House, Pannen
Para, Chalad P.O, Kannur-670014.
3. T.K. Haridas, S/o Govindan, aged 67 years, (Retd Head Trollyman,
Southern Railway, Kannur) Residing at "HARITHAM', Adoor,
Kadachira P.O, Kanur 670 621.
4. N. Kannan, S/o Kanjiran, aged 68 years, (Retd Chief Ticket
Inspector, Southern Railway, Kannur) Residing at N.K. Nivas, East
Kappumkara, Azhikode South, Kannur-670009.
5. M.K. Mukunda Das, S/o Sankaran Nair, aged 69 years, (retd
Station Superintendent, Southern Railway, Valappatanam)
residing at Kunnummal House, Chembilode, Mowanchery,
Kannur- 670613.
6. V.P.Kamalakshan, S/o Kunhikanna, aged 67 years, (Retd Gate
Keeper, Southern Railway, Trikarpur, Residing at Thekkumbad,
Koovapuram P.O, Kannur - 670 309.
7. P.Jayakrishnan, S/o Raman Nair, aged 67 years, (Retd Gate
Keeper, Southern Railway, Kasargod), residing at Parambath
House, Kuttamath, Cheruvathur P.O, Kasargod-671313.
O.A No.133/2021 2
8. K.V. Raghavan, S/o Raman, aged 67 years, (Retd Gate Keeper,
Southern Railway, Trikarpar), Residing at "Ambujam",
Kizhakkumkara, Anjanur P.O, Kannur-671 531.
9. M.V. Bhaskaran, S/o Kunhambu, aged 67 years, Retd Keyman
Southern Railway, Trikarpur, Residing at Matradan House, Olat P.O,
Kasargod - 631 310.
10. M. Devadasan, S/o Kannan, aged 67 years, Retd Trackman, Southern
Railway, Charvattur, Residing at Valambil Veedu, Achamthuruthi P.O,
Kasargod-671 351
11. A.Sudhakaran, S/o Krishnan, aged 66 years, Retd Loco Pilot (Goods)
Southern Railway, Manglore, Residing at "Narayaneeyam",
Cheruvathur P.O, Kasargod-671 313.
12. A. Narayanankutty, S/o Chuthukutty, aged 70 years, Retd Shunting
master, Southern Railway, Mangalore, Residing at Meethole Veedu,
Panunda, Pachapoika P.O, Kannur-670 643.
13. A. Raghavan, s/o Kanhiran, aged 72 years, Retd Sr. Cook, Southern
Railway, Kannur, residing at Kayattiyil House, Keezhara P.O
Kannur-670301.
14. M. Saseendran, S/o Govindan, aged 70 years, Retd Trackman,
Southern Railway, Kannur, Residing at M.S. Nivas, Thakkli Peedika
Varam, Kannur- 670 594.
15. P.V.Ravindran, S/o Raiju Nambiar, aged 67 years, Retd sr. Trackman,
Southern Railway, Kannur, Residing at Palakkal House, Pappinisery
P.O, Kannur-670 561.
O.A No.133/2021 3
16. P.P. Haridasan, S/o Anandan Nambiar, aged 67 years, Retd Sr. Gate
Keeper, Southern Railway, Kannur, Residing at Maniyeri House,
Theeyannur, Kanjirangad P.O, Kannur-670142.
17. P.A. Ramapathy, S/o Padmanabhan Nambiar, aged 67 years, Retd
Station Superintendent, Southern Railway, Payangadi, Residing at
Chanal House, Aroli P.O, Via Pappinasseri, Kannur-670 566.
18. C.V. Haridas, S/o Krishanan, aged 66 years, Retd Senior
Supervisor/P,way, Southern Railway, Kannur, residing at "SMRITHI",
Kadachira P.O, Kannur-670 621.
19. Jayan Muliyil, S/o Anandan, aged 67 years, Retd Sr. Technician/Mech,
Southern Railway, Kannur, Residing at "SHIVAKRIPA" Olayikara,
Pachapoika P.O, Koothuparambu, Kannur - 670 643.
20. T. Bhaskaran, S/o Parangodan, aged 68 years, Retd. Section
Engineer/Sig, Southern Railway, Kannur, residing at Thattaruvalappil
House, Perumpadavu, Karippal P.O, Kannur-670 581.
21. K.P.Sureshbabu, S/o Krishnan Nair, aged 67 years,
Retd. Sr. Technician/Mech, Southern Railway, Kannur, Residing at
Kizhakke Parambath House, Paral P.O, Thalassery, Kannur-670 671.
22. P.A. Rajendran, S/o Raghavan Nambiar, aged 67 years, Retd Mail
Guard, Southern Railway, Kannur, Residing at "RAJADHANI"
Mangattidam Post, Kannur-670 643.
23. P. Rajan, S/o Payyar, aged 66 years, Retd. Station Manager, Southern
Railway, Kannur, Residing at SANSAN" Kezhakke Motta, Chirakkal P.O,
Kannur-670011.
O.A No.133/2021 4
24. K.K. Prabhakaran, S/o Kunhiraman, aged 65 years, Retd Senior
Section Engineer, CSW, Southern Railway, Kannur, residing at
"MALAVIKA" Sahakarana Road, Manal, Alavil P.O, Kannur - 670008
- Applicants
[By Advocate : Mr.Martin G.Thottan]
Versus
1. Union of India represented by The Chairman, Railway Board
Rail Bhavan, New Delhi-110001.
2. Financial Advisor & Chief Accounts Officer
Southern Railway, Chennai-3.
3. Sr. Divisional Finance Manager, Southern Railway
Palghat Division, Palghat-678002.
4. Sr. Divisional Personnel Officer, Southern Railway
Palghat Division, Palghat-678002. - Respondents
[By Advocate: Mr. V.A.Shaji, ACGSC]
The application having been heard on 31.01.2024 the Tribunal on
07.02.2024 passed the following:
ORDER
Applicants, who are former Railway servants, have joined together seeking to grant Fixed Medical Allowance, FMA for short, from the respective dates of their retirement. All of them are retired employees of the Railway service, retired from different categories, after 2006. They O.A No.133/2021 5 were working in the categories of Station Superintendent, Khalasi, Gate Keeper, Keyman, Trackman, Loco Pilot, Shunting Master, Cook etc. The common grievance of the applicants is that they are entitled to get FMA from the date of retirement, but that benefit has been illegally denied to them, for which they had approached the Tribunal earlier with O.A.123/2018, which was disposed of by Annexure-A8 order dated 12.03.2019. On the directions issued by the Tribunal in Annexure-A8, the matter was again considered by the Railway Board and by Annexure-A9 order dated 06.05.2020, their plea was rejected. Aggrieved by the same, they have approached this Tribunal seeking to quash Annexure-A9 and for a declaration that since they were residing beyond 2.5 kms from Railway hospital/health unit and are availing OPD facilities only for chronic diseases are entitled for FMA and to direct the respondents to grant them FMA from the dates of commencement of their pension.
2. Applicants had retired from Railway service after 2006. They claim that all of them are residing beyond 2.5 kms from the nearest Railway hospital/health unit and are not availing out patient dispensing facility, OPD facility for short, except for chronic diseases which is the O.A No.133/2021 6 condition for availing FMA. All of them have also subscribed to the Railway Employees Liberalised Health Scheme, RELHS. The applicants submit that at the time of retirement, contrary to the extant Rules, they were made to give an option form which was obsolete and irrational and thus their legitimate claim for FMA was denied to them. Even though they wanted to give an undertaking pursuant to the subsequent changes in policy, that was not accepted and thus they have been denied the benefit of FMA. They satisfy all necessary conditions for availing the benefit and are not enjoying OPD facility except for treatment of chronic diseases, still they are not granted FMA and therefore they reiterate their claim that they are entitled to get FMA from the respective dates of retirement. According to them, they knew about the change as made in the forms of undertaking only in 2017; thereafter they were trying to give fresh options in accordance with the extant Rules, but that were not entertained and that was how they moved O.A.123/2018 along with similarly situated others; this Tribunal was convinced that they are entitled to get such benefits and thus the respondents were directed to consider their case O.A No.133/2021 7 and to take a decision keeping in view the extant regulations of the organisation. However, by Annexure-A9 order their prayer was rejected and that made them to approach this Tribunal again.
3. The respondents have opposed the claim of the applicants. They did not file para-wise reply to the Original Application, but filed statement harping on Annexure-R1 communication dated 15.09.2009 of the Railway Board. According to them, in Annexure-R1 it was clarified that pensioners/family pensioners who possess RELHS card and avail OPD facility are not entitled for FMA, whereas those who possess RELHS card but do not avail OPD facility are entitled for the benefit. That means, it was mandatory on the part of such employees to satisfy two conditions that the pensioners/family pensioners are residing beyond 2.5 kms from the nearest Railway hospital/health unit and they are not availing OPD facility except in case of chronic diseases. Referring to the communication dated 15.07.2002, Annexure-A10, it is submitted that 'the pensioners/retirees who have exercised one time option for availing medical facility of OPD at Railway hospital/health units or to claim FMA O.A No.133/2021 8 and in cases where they had not earlier opted for FMA, the present option (only once) is exercised now only on the ground of change in in residence beyond 2.5 kms of Railway hospital/health unit.' According to them, on the basis of giving such option the applicants have become eligible and have been granted FMA, otherwise they are not entitled. So, the respondents have sought for dismissing the O.A.
4. Earlier, by order dated 23.03.2023 this O.A. was dismissed by the Tribunal. Later, on application by the applicants, that order was reviewed, the O.A. was restored and was again posted for final hearing.
5. I heard Sri. Martin G. Thottan, learned counsel for the applicants as well as Sri. V.A.Shaji, learned Additional Central Government Standing Counsel in detail. They have reiterated the respective contentions.
6. According to learned counsel for the applicants, the applicants had retired after the introduction of the FMA. Citing Annexure-A12 series options the learned counsel pointed out that even though Annexures-A2 to A4 were already in place, they were made to sign an obsolete option O.A No.133/2021 9 form like Annexure-A5 seeking OPD facility or FMA. Thus they could not give a meaningful option. On realising the mistake, though they made subsequent representations, that were not entertained and that was how they were forced to approach the Tribunal earlier. As this Tribunal had found force in the submissions of the applicants, the respondents were directed to reconsider their stand. Still the respondents have stuck to their earlier illegal stand. All of them are entitled to get FMA from the respective dates of retirement.
7. On the other hand, according to the learned Standing Counsel, pursuant to Annexure-A13 communication dated 27.10.2022, all the applicants have given fresh options, following which they have been granted FMA at the current rates from the dates of submitting the options.
8. That means, the limited question survived for consideration is whether the applicants are justified in getting arrear FMA from the respective dates of their retirement till the dates of submitting fresh options.
9. Before considering the rival conditions, it is appropriate to say O.A No.133/2021 10 in brief the transformation brought about in the actual implementation of the FMA scheme. It is the common case that FMA was introduced through Annexure-A1 communication of the Railway Board, may be in tune with the decision taken by the DoPT on the recommendations of the 5 th CPC report. This communication is dated 21.04.1999, which was effective from 01.12.1997. From Annexure-A1 it is clear that grant of FMA is intended to meet the expenditure on day to day medical expenses that do not require hospitalisation. Relevant portions read thus:
"9. The grant of Medical Allowance is intended to meet expenditure on day to day medical expenses that do not require hospitalisation. Those opting for the facility of Medical Allowance shall, therefore, not be entitled to receive treatment as Outdoor Patients. However, pensioners who are members of any of the existing Health Care schemes for retired Railway employees, will not be debarred from receiving treatment for chronic illnesses requiring specialised investigations or long term treatment for chronic diseases, even if such treatment is received on outpatient basis."
10. The FMA was thus introduced by order dated 21.04.1999, effective from 01.12.1997. Before that, there was absolutely no other O.A No.133/2021 11 option but to avail treatment from the Railway hospital/Railway health units, as the case may be.
11. As the learned counsel for the applicants pointed out, initially, the direction was that such a medical allowance will be available only for those who reside outside the city/town/municipality limits of places where the Railway hospital/health unit situated. Later, pursuant to a decision taken by this Tribunal in O.A.430/2000 a communication was issued by the Railways on 01.03.2004 stating that FMA at the rate of Rs.100/- per month will be granted to Railway pensioners/family pensioners residing beyond 2.5 kms from a Railway hospital/health unit subject to the furnishing of undertaking as per the format attached. That format is marked as Annexure-A2. So, according to the learned counsel for the applicants, at the time of their retirement, though Annexure-A2 format was available, they could not give a meaningful option and that was how they were made to sign a form like Annexure-A5, which did not reflect their actual intention.
12. In this connection, it is appropriate to reproduce the relevant O.A No.133/2021 12 portions of Annexure-A5, which has two parts.
" .........................
a) Declare that my place of residence lies within 2.5 kms., from the nearest Railway Hospital/Health Unit. Hence I am not entitled to grant FMA and I will be availing the existing OPD Medical facilities under RELHS for specified diseases. Necessary endorsement may please be made in the PPO in this regard (or);
b) Declare that my place of residence is beyond 2.5 kms., from the nearest Railway Hospital/Health Unit. Hence I hereby Opt:-
i) for OPD Medical facility from Railway Hospital/Health Units under RELHS-1997 (or)
ii) to claim fixed Medical Allowance of Rs.100/- per month.
Necessary endorsement may please be made in the PPO in this regard.
.............................."
13. The applicants had retired during the period 2010-2013. At that time, no doubt, Annexure-A2 was in force. Still it is not known as to why they were made to sign a form like Annexure-A5. Whatever it may be, Annexure-A5 form has two parts making a declaration that he/she resides within 2.5 kms from the nearest Railway hospital/health unit and that he is O.A No.133/2021 13 not entitled to get FMA and secondly, he is residing beyond 2.5 kms and in that case whether he opts for OPD facility or claims FMA. So the claim of the applicants is that all of them are residing beyond 2.5 kms from a Railway hospital/health unit and still had they been made known about Annexure-A2, they would have opted FMA from the date of their retirement.
14. Before considering this aspect, we have to go into the metamorphosis. Prior to 1997, when the FMA was introduced, such an option was not there. Only after Annexure-A1 was issued granting FMA effective from 01.12.1997, the question of granting an option did arise. Annexure-A12 series clearly indicate that except the 5th applicant Mukunda Das, all have opted for OPD facility. At the time of introducing FMA, only a paltry amount of Rs.100/- was payable, which continued till September 2008, when the amount was raised to Rs.300/- per mensum. It was again increased to Rs.500/- per mensum from 19.11.2014 and was raised to Rs.1000/- per mensum from 01.07.2017. What I venture to say is that at the time of introduction of FMA pursuant to the 5 th CPC report, only a O.A No.133/2021 14 small amount of Rs.100/- was payable and the retirees were not very much enthusiastic about the same. So, majority of them wanted to avail OPD facility and ignored the offer of Rs.100/- per mensum. Except the 5 th applicant all the applicants had opted for OPD facility.
15. In other words, broadly speaking, at the time of retirement there were two options available to the applicants, either to go for OPD facility or for FMA. Those who opted for OPD facility were not entitled to get FMA and that was how they were not granted FMA.
16. It is also the consistent stand of the respondents that request for frequent change of option could not have been entertained as the retirees wanted. The Railways always said that change in option is possible only once in life time. In this connection, Annexure-R1 has been relied on by the respondents, which reads:
"Subsequent to the issue of Board's letter No. PC- V/98/1/7/1/1 dated 7-2-2008, references were received from pensioners/family pensioners and banks seeking clarification as to whether those pensioners/family pensioners who are members of RELHS and availing OPD facility are also eligible for the Fixed Medical Allowance.O.A No.133/2021 15
2. The matter has been examined and in reference to the Board's letter dated 7-2-2008 ibid, it is clarified that since actual enrolment under the Health Scheme is not mandatory, those pensioners/family pensioners who, in terms of Board's letter No.97/H/28/1 dated 23-10-97, are eligible to become members of the Scheme but are not actually enrolled are also entitled for grant of Fixed Medical Allowance. Pensioners/family pensioners who possess RELHS card & avail OPD facility are NOT entitled for Fixed Medical Allowance, whereas those who possess RELHS card but do not avail OPD facility (except in cases of chronic diseases, as defined in Board's letter No.2006/H/DC/JCM dated 12-10-2006) are entitled for Fixed Medical Allowance.
3. Further, FMA and arrears of FMA would continue to be paid, as earlier, to pensioners/family pensioners only after submission of the enclosed undertaking form to the Pension Disbursing Authority (PDA) thereby implying that fulfillment of the following two conditions is mandatory for becoming admissible for FMA:-
(i) the pensioner/family pensioner is residing beyond 2.5 kms from the nearest health unit;
(ii) the pensioner/family pensioner is not availing the facility of OPD (except in cases of chronic diseases as mentioned in para 2 above)."
17. As rightly pointed out by the respondents, from Annexure-R1 it is very clear that pensioners/family pensioners who subscribed RELHS and opted to avail OPD facility are not entitled to FMA. On the other hand, O.A No.133/2021 16 those who possess RELHS card but do not avail OPD facility are entitled for FMA. In other words, those employees who opted for RELHS and made one time payment and opted for OPD facility could not have thought of getting FMA. After having opted for OPD facility with open eyes, it cannot be said that they should be given FMA on subsequent point of time. Irrespective of the form used, whether Annexure-A5 or Annexure-A2, intention is very clear. It is discernible whether one had opted FMA or OPD. The argument that 'the applicants could not make a meaningful option' lacks particulars and sounds superfluous.
18. It is here once again the rate of FMA needs reiteration. At the initial stage, the amount was only Rs.100/-. So, most of them opted for OPD facility and started showing attraction to the FMA only after the rate was gradually hiked. Now, most of the applicants who reside beyond 2.5 kms from the Railway hospital/Railway health units are fascinated since the amount has risen to Rs.1,000/- per mensum.
19. Secondly, those who had opted for OPD facility had to give a change in option which was conditioned by production of documents as O.A No.133/2021 17 evident from Annexure-A10. It is evident that there was a clamour for change of option to claim FMA. Such a demand was considered and the Railways maintained that large number of applications are being received with request to record change of residential address and option for availing medical allowance. So, the Railways took the firm stand that such frequent changes in residential address by the pensioners would cause hardship to the pensioners as well as to the pension disbursing authority. So it has been decided that only one change in option in the life time of a pensioner shall be allowed, which should be supported by proper proof of change in residential address. So, the pensioners were directed to apply for the change of option with proof of change in residential address to the pension disbursing authority with proper records.
20. In other words, it was always the stand of the respondents that a change in option could be possible only once in a life time, that too supported by documents to prove change in residential address. Annexure-A13 shows that further relaxation has been done with effect from 27.10.2022. Annexure-A13 reads thus:
" In terms of Railway Board's letter No.PC-V/98/1/7/1/1 dated O.A No.133/2021 18 15.07.2002 (RBE No.107/2002), the Railway pensioners/family pensioners eligible to opt for FMA had been provided, once in a life time, an opportunity to change their option to avail the benefit of FMA or otherwise on furnishing proof of change in residence. The issue of allowing this one time opportunity to change option for FMA/OPD facility had been under consideration with DoP&PW for quite some time. It has now been decided that the Railway pensioners/family pensioners residing beyond 2.5 kms from Railway Hospital/Health Unit and eligible for RELHS shall be allowed opportunity to avail change in option, once in a life time, from FMA to OPD or vice versa without linkage to change in residence."
21. To put it in other words, earlier, it was not possible to make a change in option, but later, change in option was permitted once in a life time subject to production of documents to prove change in residence, but now by Annexure-A13 order dated 27.10.2022 such a condition linked to the change in residence has been done away with.
22. Even though the applicants contend that they reside beyond 2.5 kms from the Railway hospital/Railway health unit from the very beginning of their retirement, there was no occasion for them to make any change in residence, still they were made to submit documents. But it O.A No.133/2021 19 seems that they did not produce any document proving the place of residence that they reside beyond 2.5 kms from the Railway health unit or hospital as required in Annexure-A10. It is not necessary to make a any comment on the correctness of that stand. Suffice it to say, without making any effort to produce documents proving their place of residence, they could not have effected a change from the OPD facility to FMA. Now, under Annexure-A13, such a condition has been taken away and they have furnished fresh options and on that basis, are being paid FMA at the rate of Rs.1,000/- per mensum, from the date of submitting such options.
23. There is also substance in the contention of the learned Standing Counsel that the arguments of the applicants that they were not aware of Annexures-A2 to A4 etc. till 2017 cannot be accepted without a pinch of salt. The applicants have retired from different categories like Station Superintendent, Station Manager, Loco Pilot etc., which required minimum educational qualification. So it is not believable that they were not aware of the developments in the service sector especially regarding grant of benefits to the retired employees. It is also important to say that O.A No.133/2021 20 Railway is an organisation where employees' unions are very strong who are diligently and vigilantly following up the causes of welfare of the employees. Such communications were very much available in public domain. Therefore, it cannot be believed that they were not aware of these developments till 2017.
24. Moreover, as stated earlier, all the applicants, except the 5 th applicant, had readily opted for OPD facility. Even though it is claimed that they had given option to switch over to the FMA in 2017, that was not supported by any document to prove their place of residence. In that event, the respondents were not bound to accept such a change. Now, without linkage to the change in residence, or proof regarding place of residence, they have been given opportunity to furnish fresh option, which facility is available to them once in a life time. Now they have changed over to the option of availing FMA and that has been acted upon. Therefore, the claim for FMA from the date of retirement in respect of applicants 1 to 4 and 6 to 24 cannot be accepted and that relief is liable to be declined.
O.A No.133/2021 21
But such a view cannot be taken in respect of the 5 th applicant. Annexure-A12/5 clearly indicates that he had opted for FMA from the date of his retirement on 31.01.2010. Therefore, subject to satisfying all necessary conditions, he ought to have been granted FMA in the appropriate rate from the date of his retirement. He should have been granted FMA as opted by him, and there is no justification in denying the benefit to him. Therefore, the case of the 5 th applicant stands on a different footing. There is a direction to the respondents to grant him FMA in the appropriate rates, if he satisfies other conditions. However, arrears shall be restricted from three years prior to the institution of O.A.123/2018. If he satisfies the conditions, arrears shall be paid within a period of 90 days from the date of receipt of a copy of this order. The Original Application is disposed of as above. No costs.
(Dated this the 7th February, 2024) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A No.133/2021 22 List of Annexures Annexure A9: True copy of the Letter bearing No.PC- V/2019/CC/19/SR/ FMA dated 06.05.2020 issued by the 1st respondent Annexure A1 : True copy of the Railway Board letter No. RBE No.65/99 dated 21.04.1999 Annexure A2: True copy of the revised option form.
Annexure A3: True copy of the Railway Board letter No. RBE No.83/ 2011 dated 07.06.2011 along with revised Undertaking Form Annexure A4: True copy of the Railway Board letter RBE No. 117/2011 dated 26.08.2011.
Annexure A5: True copy of the option form of the first applicant at the time of his retirement.
Annexure A6: True copy of the Order No. 2012/AC-II/21/Misc. Matters (RBA No. 38/2012) dated 2.11.2012 Annexure A7: True copy of the Form submitted by the 1st applicant dated 1.6.2017 Annexure A8: True copy of the order passed by this Hon'ble Tribunal dated 12.03.2019 in OA 123 of 2018 Annexure A10: True extract copy of the paras 1 to 4 of Railway Board letter RBE No. 107/02 dated 15.7.2002.
Annexure A11: True copy of the railway board letter bearing No.2006/ H/DC/JCM dated 12.10.2006 O.A No.133/2021 23 Annexure A12 series : True copy of the undertaking and option exercised by the applicants at the time for their retirement which has been produced by the respondents herein as Annexure R9 in the reply statement filed in Original Application No.123 of 2018 Annexure A13: True copy of the railway board letter bearing No. 137 of 2022 dated 27.10.2022 Annexure R-1: True copy of the Railway Board Letter No. PC-V/2006/A/ Med/1 dated 15.09.2009 (RBE No. 168/2009).
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