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1970 DIGILAW 16 (GAU)

Prafulla Chandra Sarma v. Oil India Ltd. , Duliajan

1970-02-27

D.M.SEN, M.C.PATHAK

body1970
PATHAK, J.:- The facts of these cases are similar and the questions of law that arise for decision are identical, hence they were heard together and this judgment will govern all the cases. 2. These are applications under Article 226 of the Constitution of India for writs of Mandamus or other appro­priate writs of like nature against the Respondent No. 1 Messrs. Oil India Limited for reinstatement of the peti­tioners who had been serving under Res­pondent No. 1 and have been dismissed from service. 3. The petitioners' case is that Respondent No. 1 Messrs. Oil India Limited is a company incorporated under the Companies Act in 1959 as a private limited company and it was declared a public limited company on 28-3-61 under Section 43 of the Com­panies Act. The petitioners were em­ployees of the Respondent No. 1 at Duliajan and some other places at the relevant time. The petitioners were members of Assam Oil Company Labour Union registered on the 25th May, 1962 under the Indian Trade Unions Act, 1926 having its registered No. 512 with Head Office at Duliajan. The Union of the petitioners put forward some claims of its members and raised certain indus­trial dispute. Some members of the Union served a fourteen days' strike notice under Ref. No. IOWU/GH-N-7 dated the 3rd October, 1967 on the General Manager of respondent No. 1 in Form (L) under Sub-section (1) of Section 22 of the Industrial Disputes Act (hereinafter called 'the Act') in continuation of their previous notice No. IOWU/GM-H6/67 dated the 9th Sep­tember, 1967 for a peaceful protest strike for one day or more in protest against the Management's unfair labour practi­ces and continuous violation of truce, Code and Law. No joint conciliation meeting could be held due to the refusal on the part of the Respondent No. 1 and as such the Conciliation Officer (Central), Dibrugarh held conciliation saparately with the parties and submitted his report on 24-10-67 to the Secretary to the Govern­ment of India, Ministry of Labour, Em­ployment and Rehabilitation, Depart­ment of Labour, New Delhi regarding the strike notice dated 3-10-67. On fail­ure of the said conciliation the Union agreed to settle the dispute by arbitra­tion as provided under Industrial Law, Truce and Code but the Respondent No. 1 refused to agree to arbitration. On fail­ure of the said conciliation the Union agreed to settle the dispute by arbitra­tion as provided under Industrial Law, Truce and Code but the Respondent No. 1 refused to agree to arbitration. No action, however, was taken by the Central Ministry of Labour and Em­ployment as required under Sec. 12 (5) read with Section 10 (1), 2nd proviso of the Act. Thereafter the Union served successive strike notices dated 14-11-67 and 6-12-67 without any response from respondent No. 1. The Union by their letter dated 9-1-68 again informed the Respondent No. 1 of the impending strike on failure of Respondent No. 1 to agree to abide by Truce, Code and Industrial Law and settle the dispute accordingly by arbitration or by adjudi­cation. Thereafter strike took place on 17th, 18th and 19th January 1962 in a peaceful manner. The petitioners as members of the Union joined the strike as called upon by the Union. 4. The Management of the Res­pondent No. 1 acting simultaneously through the departmental officers of various departments in Moran and Noonmati Branches served charge-sheets on the petitioners under Section XIV (2) (xvi) of the Standing Orders of the Company and summarily suspended them oh and from the 20th January, 1968. The charge-sheet is at Annexure 2 to the petitions. The substance of the charge is that petitioners took leading parts in inciting the workmen to resort to an illegal unjustified strike by picket­ing at the industrial area gate and by asking the willing workmen not to re­sort to duty which is an offence under Section XIV (2) (xvi) of the Standing orders of the Company. On receipt of charge-sheets the petitioners sent replies to the General Manager and to the enquiry officer of Respondent No. 1 with a prayer for production of certain documents and records. Thereafter the enquiry officer without furnishing the documents as demanded by the peti­tioners took _up the inquiry, examined witnesses and submitted his report. On the basis of the said report of the en­quiry officer the petitioners were dis­missed from service, some with effect from 31-1-68 by order dated 31-1-68, some with effect from 1-2-68 by an order dated 1-2-1968, some with effect from 2-2-68 by order dated 2-2-68 one with effect from 3-2-68 by order dated 2-2-68 and one with effect from 1-2-68 by order dated 31-1-68. The petitioners are now challenging these orders of dismissal, which are at Annexure 5 to the petitions. 5. Mr. A. C. Dutta, the learned counsel submitted on behalf of the peti­tioners that the dismissal was not by the competent authority and that the domestic inquiries in the instant cases were bad in law inasmuch as some of the standing orders were contravened and there was violation of the principles of natural justice. The learned counsel submitted that no copies of documents which were applied for by the peti­tioners during the inquiries were sup­plied to them, which prevented them from taking proper and adequate defence before the enquiry officer and that no copy of findings of the enquiry officer was furnished to the petitioners and as such they had no sufficient opportunity to prefer appeal as provided in the standing orders and that the enquiry officer gave no recommendation for punishment. 6. Dr. J. C. Medhi, the learned counsel appearing for the Respondent No. 1 raised a preliminary objection that the instant petitions under Arti­cle 226 of the Constitution claiming a mandamus or an order in the nature of mandamus against Respondent No. 1, which was a company registered under the Indian Companies Act, were mis­conceived and not maintainable. 7. Before entering into the merits of the case I would like to take up the preliminary objection first. Dr. Medhi's contention was that the petitioner in the instant case prayed for a mandamus or an order in the nature of mandamus against Respondent No. 1 directing it not to give effect to the impugned order of dismissal and to reinstate the peti­tioners in service. He submitted that admittedly the Respondent No. 1 was a company registered under the Indian Companies Act. It had no statutory or public duty to perform and the peti­tioners had no legal right for enforcement of any statutory or public duty. The relation between the petitioners and Respondent No. 1 was contractual and of private nature as between an em­ployer and an employee and the present petitions for mandamus were miscon­ceived and not maintainable. In this connection he referred to Praga Tools Corporation v. C. V. Imanual, AIR 1969 SC 1306 . The Praga Tools Corporation was a company incorporated under the Indian Companies Act 1913. In this connection he referred to Praga Tools Corporation v. C. V. Imanual, AIR 1969 SC 1306 . The Praga Tools Corporation was a company incorporated under the Indian Companies Act 1913. At the material time the Union Government and the Government of Andhra Pradesh between them held 56 per cent and 32 per cent of its shares respectively and the balance of 12 per cent shares were held by private individuals. Being the largest shareholder, the Union Govern­ment had the power to nominate the company's directors. Even then, the Supreme Court held in Praga Tools Cor­poration's case, AIR 1969 SC 1306 (supra) that Praga Tools Corporation be­ing a registered company under the Companies Act and governed by the provisions of that Act, the company was a separate legal entity and could not be said to be either a Government Corpo­ration or an industry run by or under the authority of the Union Government. On the question whether a writ of mandamus could issue against the com­pany registered under the Indian Com­panies Act the Supreme Court in Praga Tools Corporation's case, AIR 1969 SC 1306 observed as follows:- "No doubt. Art. 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitu­tion and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the perfor­mance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. Therefore the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. Therefore the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein speci­fied which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official if a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. • A mandamus would also lie against a company constituted by a statute for the purposes of fulfill­ing public responsibilities. ***** The company being a non-statutory body and one incorporated under the Companies Act there was neither a statu­tory nor a public duty imposed on it by a statute in respect of which enforce­ment could be sought by means of a mandamus, nor was there in its work­men any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company." Relying on these observations of the Supreme Court Dr. Medhi submit­ted that in the instant case admittedly the respondent No. 1 against whom a writ of mandamus was prayed for was a company registered under the Indian Companies Act and its duty towards its employees was not in the nature of public duty but of private character. That Respondent No. 1 had no statutory or legal duty to its employees and there­fore the employees had no correspond­ing legal right for enforcement of any such statutory or public duty. It was thus submitted that no writ of manda­mus could issue against Respondent No. 1. 8. Mr. That Respondent No. 1 had no statutory or legal duty to its employees and there­fore the employees had no correspond­ing legal right for enforcement of any such statutory or public duty. It was thus submitted that no writ of manda­mus could issue against Respondent No. 1. 8. Mr. Dutta, the learned coun­sel on the other hand submitted that though respondent No. 1 was a com­pany registered under the Indian Com­panies Act, it was a company render­ing public utility service and as such a writ of mandamus might issue in ap­propriate cases against such a company. In this connection he referred to Sec­tion 2 (n) (vi) of the Industrial Disputes Act and the Central Government Notifi­cation Nos. S.O.1778 dated 20-5-67 and S.O.4191 dated 22-11-67 by which the Central Government declared service in any oil-field to be a public utility ser­vice for the purpose of the Industrial Disputes Act for a period of six months each from 20-5-67 and from 22-11-67 respectively. The impugned order was passed on 31-1-68 and therefore when the impugned order was passed the res­pondent No. 1 was rendering public utility service. He referred to Corpora­tion of the City of Nagpur v. Nagpur Electric Light and Power Co. Ltd., AIR 1958 Bom 498 , wherein the Bombay High Court observed as follows:- "In the Supreme Court case, AIR 1957 SC 529 it is held that normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which ap­pertains to his office and is in the nature of a public duty. The statutory duty, devolving upon a public utility concern is a public duty. Therefore it cannot be said that a public utility concern like the respondent is in the same position as a private party." In the Bombay case the respondent was the Nagpur Electric Light and Power Company Ltd., a company ren­dering public utility service under the provisions of the Electricity Act, which refused to supply electricity to the Nag­pur Corporation on the plea of non-pay­ment of some bills. On facts the court found that the company acted illegally in cutting off the supply of electricity to the street lamps of the Nagpur Corpo­ration and since it was a company ren­dering public utility service under the Electricity Act, a writ of mandamus was issued. 9. The Central Government Noti­fication No. S. O. 4191 dated 22-11-67 reads as follows:- "Whereas the Central Government Is satisfied that public interest requires that service in any Oil-field should be declared to be a public utility service for the purposes of the Industrial Dis­putes Act, 1947; Now therefore, in exercise of the powers conferred by sub-clause (vi) of Clause (n) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby declares the said service to be public utility service for the purpose of the said Act for a period of six months from the date of this notification." It is thus clear that at the relevant time Respondent No. 1 was rendering public utility service in which the public had a general interest. In that view it has to be held that the Respondent No. 1 was doing some public duty in the interest of the public. In the circum­stances I hold that in appropriate cases a writ of mandamus may issue against the company rendering public utility service like the respondent No. 1 direct­ing it to perform some statutory duty or public duty. Though the obligation of the Respondent No. 1 to its employees may not be of the nature of public duty or of the nature of public utility ser­vice yet it is quite clear that the relation between the Respondent No. 1 and its employees would be governed by the standing orders of the Respondent No. 1 and the provisions of the Industrial Disputes Act. 10. Mr. Dutta, the learned coun­sel then submitted that the standing orders had the force of law and they were statutory in character. In this connection he referred to Workmen of Dewan Tea Estate v. Their Management, AIR 1964 SC 1458 (1463) wherein the Supreme Court observed as follows:- "It will be recalled that the Stand­ing Orders which have been certified under the Standing Orders Act become part of the statutory terms and condi­tions of service between the industrial employer and his employees. In this connection he referred to Workmen of Dewan Tea Estate v. Their Management, AIR 1964 SC 1458 (1463) wherein the Supreme Court observed as follows:- "It will be recalled that the Stand­ing Orders which have been certified under the Standing Orders Act become part of the statutory terms and condi­tions of service between the industrial employer and his employees. Sec­tion 10 (1) of the Standing" Orders Act provides that the Standing Orders finally certified under this Act shall not, except on agreement between the em­ployer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modifica­tions thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, they will govern the relations between the parties unless, of course, it can be shown that any provision of the Act is inconsistent with the said Stand­ing Orders." 11. In AbanI Bhusan Biswas v. Hindusthan Cables Ltd., AIR 1968 Cal 124 , relying on Bagalkot Cement Co. v. R. K. Pathan, AIR 1963 SC 439 (443 para 9) and Rohtak and Hissar District Electric Supply Co, Ltd. v. State of U. P., AIR 1966 SC 1471 (1480) it was held that the standing orders after they were duly certified and provided they were intra vires had the force of law like any other statutory instrument. Relying on the above decision of the Supreme Court and in agreement with the decision in AIR 1968 Cal 124 (supra) I am clearly of opinion that standing orders when they are duly certified and if they are intra vires, have the force of law like any other statutory instrument. Hence the duty enjoined upon the Respondent No. 1 by its certi­fied standing orders if they are intra vires, must be held to be of statutory character. 12. In the instant case the peti­tioners' case is that the dismissal orders were bad in law inasmuch as these were in contravention of the standing orders and that the domestic inquiry was vitia­ted by violation of the principles of natural justice. 13. The question that falls for decision is whether a writ of mandamus directing reinstatement of the peti­tioners may be issued if there was vio­lation of the standing orders and the principles of natural justice. 14. Dr. 13. The question that falls for decision is whether a writ of mandamus directing reinstatement of the peti­tioners may be issued if there was vio­lation of the standing orders and the principles of natural justice. 14. Dr. Medhi submitted that even assuming that a writ of mandamus might issue against a company render­ing public utility service for enforcing some statutory or public duty, the peti­tioners in the instant cases were not en­titled to any remedy inasmuch as there were alternative remedies provided under the Industrial Employment (Standing Orders) Act, 1946 and the Industrial Disputes Act and the remedies provided therein were full and complete reme­dies. In this connection Dr. Medhi re­ferred to Halsbury's Laws of England, Third Edition, Vol. 36 page 448 para­graph 681, which runs as follows:- "Mandamus. Where a statute creates a public duty, as distinct from a power or discretion only and provides no spe­cial remedy for its enforcement, the High Court may grant an order of mandamus to the end that justice may be done. A mandamus is, however, never addressed to the Crown although it may in certain circumstances be addressed to Governmental officials. The Court in the exercise of its discretion refuses to grant a mandamus where there is an alternative specific remedy at law which is not less convenient, beneficial and effective." 15. Dr. Medhi also referred to Pasmore v. Oswaldtwistle Urban District Council, 1895-1899 All E. R. Reprint 191, wherein the Earl of Halsbury, L. C. observed as follows:- "The principle upon which the ques­tion arises that where a specific remedy is given, it thereby deprives the _ person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law. I think Lord Tenterden, C. J., accurately states that principle in Doed. Bishop of Rochester v. Bridges (1831) 1 B & Ad 847. He says ((1831) 1 B & Ad 847 at p. 859): 'Where an Act creates an obliga­tion and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.' The words which the learned Judge uses there appear to be strictly applicable to this case. The obligation which is creat­ed by this statute is an obligation which is created by the Statute and by the statute alone. The obligation which is creat­ed by this statute is an obligation which is created by the Statute and by the statute alone. It is nothing to the purpose to say that there were other statutes which created similar obligations, because all those statutes are repealed; you must take your stand upon the statute In question, and the statute which creates the obligation is the statute which one must look to see if there is a specified remedy contained in it. There' is a specified remedy contained in it, which is an application to the proper govern­ment department." In the same case Lord Macnaghten observed as follows :- "I am of the same opinion. Assum­ing that the appellants have a just cause of complaint against the Oswaldtwistle Urban District Council, founded on S. 15 of the Public Health Act, 1875, it seems to me to be plain that they can have no remedy outside that Act. The law is stated nowhere more clearly, nor, I think more accurately, than by Lord Tenterden, C. J., in the passage cited by the Lord Chancellor. Whether the gene­ral rule is to prevail, or an exception to the general rule is to be admitted in any particular case, must depend on the scope and language of the Act, and con­siderations of policy and convenience. It would be difficult to conceive any case in which there could be less reason for departing from the general rule than one like the present. And I must say I am much more impressed by the forci­ble language of James, L. J., in Glossop v. Heston and Isleworth Local Board, (1879) 12Ch D102, where he is pointing out the waste of time and money and the great inconvenience which would result from recourse to ordinary legal proceed­ings in such a case, than by his sugges­tion of the propriety of an application to the Queen's Bench Division for a mandamus. The evils of litigation would, I think, be much the same in the one case as in the other. The evils of litigation would, I think, be much the same in the one case as in the other. ****** The case, perhaps, would properly be an excep­tion to the general rule laid down in Lord Tenterden's second proposition in the passage which follows that which my noble and learned friend has just read, in which he says ((1831) 1 B & Ad 847 at p. 859): 'If an obligation is created, but no mode of enforcing its performance is ordained, the common law may in gene­ral find a mode suited to the particular nature of the case.' But, however that may be, the real ans­wer to counsel for the appellants' argu­ment is, that the obligation from the first was a statutory obligation •- it did not exist at common law - and the view of Lord Esher that it was a new obligation imposed by the Act of 1875 is substantially accurate. ****** it is not, therefore, incorrect to say that the obligation is a new obligation." 16. The learned counsel then referred to AIR 1968 Cal 124 (supra). In that case the petitioner was an em­ployee of Hindusthan Cables Limited, a Government of India undertaking own­ed by the Central Government within the meaning of Section 617 of the Com­panies Act, 1956, in which the Central Government was the sole shareholder. A disciplinary proceeding was drawn up against the petitioner on the charge of misconduct comprising of (i) wilful in­subordination or disobedience to superior order, (ii) negligence of work and (iii) habitual indiscipline and misbehaviour. An enquiry officer was appointed and on the report of the officer the peti­tioner was asked to show cause by 8-2-64 why he should not be dismissed but on 7-2-64 the petitioner obtained the rule for quashing the impugned orders on the ground inter alia that the impugned orders were ultra vires and violative of natural justice. The peti­tioner's grievance in that case, as in the cases before us, was that requirements of some standing orders of the Hindusthan Cables Limited were violated and rules of natural justice were contraven­ed. The peti­tioner's grievance in that case, as in the cases before us, was that requirements of some standing orders of the Hindusthan Cables Limited were violated and rules of natural justice were contraven­ed. The plea of the Respondent No. 1 in the Calcutta case, as in the cases be­fore us, was that neither the standing orders nor the rules of natural justice had been violated on the facts alleged, and, above all, the petitioner was not entitled to obtain any relief under Arti­cle 226 of the Constitution, inasmuch as Respondent No. 1 was nothing but a private limited company under the Companies Act. The learned Judge in the Calcutta case held that even though certified standing orders had the force of law and also that there was authority for the proposition that even a private party or a company might be compelled by mandamus to perform the duties im­posed upon it by statute, nevertheless the relief under Article 226 of the Con­stitution should be refused to the petitioner on the ground that the Industrial Employment (Standing Orders) Act, 1946 was a self contained Code and that it itself provided for an adequate remedy for the situation as that raised in that case. The learned Judge also observed that even apart from the provision of Industrial Employment (Standing Orders) Act, 1946 the employee could on the ground of contravention of a Standing Order, raise an industrial dispute under the Industrial Disputes Act. In the circumstances of the Cal­cutta case the writ was refused. 17. The Respondent No. 1's obli­gation to its employees arising out of the Standing Orders takes the character of statutory obligations by virtue of the Standing Orders themselves. The In­dustrial Employment (Standing Orders) Act by which the Respondent's obliga­tions have been created provides for specific manner for enforcement of these obligations. 18. 17. The Respondent No. 1's obli­gation to its employees arising out of the Standing Orders takes the character of statutory obligations by virtue of the Standing Orders themselves. The In­dustrial Employment (Standing Orders) Act by which the Respondent's obliga­tions have been created provides for specific manner for enforcement of these obligations. 18. Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 reads as follows:- "If any question arises as to the ap­plication or interpretation of a standing order certified under this Act, any em­ployer or workman may refer the ques­tion to any one of the Labour Courts constituted under the Industrial Dispu­tes Act, 1947, and specified for the dis­posal of such proceeding by the appro­priate Government by notification in the Official Gazette, and the Labour Court to which the question is so refer­red shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties." It is thus clear that whether any stand­ing order has been properly applied to the facts of a given case or it has been contravened is a question to be refer­red to labour courts under the_ Indus­trial Disputes Act for adjudication. 19. Section 2 of the Industrial Disputes Act reads as follows:- '"industrial dispute' means any dis­pute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the condi­tions of labour, of any person." Dismissal of an employee would come under the definition of 'Industrial dis­pute' when it is raised by the Union. Regarding the order of dismissal of a workman an industrial dispute may be raised by the Union under Section 10 of the industrial Disputes Act or by the aggrieved employee himself under Section 33A of the Industrial Disputes Act. It is, therefore, clear that if there was any violation of any of the stand­ing orders in the instant case, an indus­trial dispute could have been raised under Section ISA of the Industrial Em­ployment (Standing Orders) Act or on the dismissal order itself an industrial dispute could be raised either under sec­tion 10 or under Section 33A of the In­dustrial Disputes Act and these remedies are specific remedies provided under the said two Acts. 20. 20. In the instant case, as obser­ved earlier, the petitioners alleged that there were contravention of the stand­ing orders and violation of the princi­ples of natural justice in dismissing the petitioners. The allegations made by the petitioners have been denied by the respondents in their affidavits-in-opposition. These disputed matters could be fully and adequately dealt with by the Labour Courts constituted under the Industrial Disputes Act. But the petitioners without availing of any of those remedies provided in the said two Acts came before the High Court in petitions under Article 226 of the Constitution. The obligations to its employees enjoin­ed upon the Respondent No. 1 are gov­erned by the standing orders made under the Industrial Employment (Standing Orders) Act and the industrial Disputes Act and since there are specific provi­sions for compelling the Respondent No. 1 to perform its duties to its em­ployees under those two Acts them­selves, the petitioners are not entitled to resort to the extraordinary remedy provided under Article 226 of the Con­stitution of India without resorting to the reliefs provided under those two Acts. It is in the fitness of things that in exercise of its discretion, the High Court should refuse to grant a manda­mus where there is an alternative speci­fic remedy at law, which is convenient, beneficial and effective. The reme­dies provided under the said two Acts could not be said to be less convenient, beneficial and effec­tive than the remedy under Arti­cle 226 of the Constitution. Rather the remedy provided in the said two Acts is more beneficial and convenient for the parties concerned, inasmuch as they will be entitled even to lead evidence in appropriate cases in support of their respective cases before the Labour Court. In the circumstances of these cases, relief under Article 226 of the Constitution cannot be granted and I hold that the petitions are miscon­ceived and not maintainable. 21. In view of my findings on the question of maintainability of the petitions I need not enter into the merits of the respective cases of the petitioners. 22. In the result, these petitions are dismissed and the Rules are dis­charged, but in view of the facts and circumstances of the cases, I make no orders as to costs. D. M. SEN, J.:- 23. I agree. Petitions dismissed.