S. D. SHAH, J. ( 1 ) RULE in each Special Civil Application. Learned Advocate for respondent in each petition waives service of rule on behalf of respondent. With the consent of learned Advocates for the parties these two petitions were heard together and are being disposed of by this common judgment. ( 2 ) PETITIONER in SCA No. 1175/96 is the rajkot Municipal Corporation-the employer and in another petition Navinchandra i. Vyas is the petitioner-workman. Parties are hereinafter referred to as "employer and the workman". The workman was dismissed from service vide order, dated 17. 10. 88 when he was serving as Octroi Sub-Inspector in the Octroi department of the employer. Two regular charge-sheets were served on the workman and departmental enquiry was held and according to the employer after following the procedure prescribed and compliance with the rules of natural justice the workman was dismissed from service. ( 3 ) THE workman thereupon sought reference of industrial dispute and the Asstt. Labour Commissioner vide order, dated 9. 11. 1989 referred the industrial dispute to the competent court being the Labour Court at Rajkot and the reference was numbered as Reference LCR No. 1615/89. The labour Court has vide its judgment and order dated 1. 9. 95 refused the relief of reinstatement of the workman in service on the ground that question of reinstatement was out of consideration because the workman has by that time already reached the age of superannuation and has superannuated on 6. 1. 1995. The Labour Court, however, has directed the employer to pay backwages for the period commencing from 17. 10. 88 to 6. 1. 1995 at 40%. It is this award which is the subject-matter of challenge both by the employer and the workman. ( 4 ) CHALLENGE of the employer is mainly on the ground that when the Labour Court has recorded positive finding that departmental enquiry is legal and valid and that workman was not at all challenging the legality and validity of the departmental enquiry and when the Labour Court has also endorsed after going through the record of departmental enquiry that the findings reached by the Enquiry Officer were just and proper, there was no justification in law for the Labour Court to hold that the punishment which was awarded to workman was too harsh, excessive and unreasonable. Mr. Mr. A. K. Clerk learned Advocate for the petitioner-employer with vehemence at his command submitted that the power invested in the Labour Court by Section 11a of the Industrial Disputes Act is not to be exercised as a matter of routine or in casual manner or on some philosophy of legislation being a welfare legislation or that social justice requires liberal attitude to be taken towards the class of workman. In his submission, there must exist -very strong, convincing, cogent and justifiable reasons for the Labour Court to brand the punishment as excessive, unreasonable or harsh and it must be so strongly unreasonable or harsh that no judicial conscience could permit such penalty to be imposed in proportion to the nature, gravity and magnitude of the misconduct. Simply stating that the punishment imposed is excessive or harsh would not justify the Labour Court to substitute penalty imposed by the employer after holding regular departmental enquiry and after bringing home the guilt of an erring employee. Judicial mind is to be applied while considering the quantum of punishment and a totally unbiased or unprejudiced view free from any specific dogmas is to be taken so as to balance the nature, gravity and magnitude of the charge-sheet and commensurality or proportionality of punishment with such misconduct. In his submission, when the charges levelled against the workman were of serious financial irregularity which has occasioned financial loss to the employer and when it is also found the workman to be in possession of funds for which no explanation was forthcoming on a particular day continuance of the workman by the employer in service by imposing lighter penalty would definitely tantamount to encouraging misappropriation, breach of trust, corruption, etc. Such conduct can be said to be of serious moral turpitude and therefore no backwages ought to have awarded as was done by the Labour Court after recording finding that the enquiry was just, legal and proper and secondly that all the charges levelled against the workmen were fully established. In his submission, therefore, the award insofar as it awarded 40% of backwages to the workman is required to be quashed and set aside. In his submission, therefore, the award insofar as it awarded 40% of backwages to the workman is required to be quashed and set aside. ( 5 ) THE workman in his petition challenged the award of backwages of 40% only by contending that he ought to have been paid full backwages because the charges levelled against him were not very serious and did not involve any moral turpitude and secondly on the ground that in fact the Advocate engaged by him to represent him before the Labour Court has unauthorisedly and illegally passed purshis to the effect that the workman was not challenging the legality and validity of the enquiry. In his submission no such authority was given to the Advocate of the workman and the workman never knew that any purshis is filed by his Advocate to the effect that legality and validity of departmental enquiry was not challenged. In fact the workman was challenging the legality and validity of the departmental enquiry. He further submitted that Section 11a of the aforesaid Act came to be introduced by way of amendment in the Industrial Disputes act, 1947 so as to widen the powers of Labour Court/industrial Court so that even when the enquiry held against the workman is found to be legal and valid, the question of propriety of punishment can be gone into by the Labour Court and on its findings that the penalty imposed on the workman for stated misconduct was disproportionate, excessive or unreasonable, the labour Courts are now invested with the power to substitute the penalty by lesser or smaller penalty which would commensurate with or would be in proportion to the gravity or magnitude of nature of the misconduct. ( 6 ) IN brief both the learned Advocates appearing for respective parties have chalenged the legality and validity of 40% of backwages to the workman. The employer contended that nothing should be awarded by way of backwages as the conduct attributed and proved against the workman was very serious and grave misconduct while the workman contended that full backwages ought to have been awarded as the misconduct was a minor misconduct for which deprivation of full backwages was too harsh, excessive and unreasonable. The employer contended that nothing should be awarded by way of backwages as the conduct attributed and proved against the workman was very serious and grave misconduct while the workman contended that full backwages ought to have been awarded as the misconduct was a minor misconduct for which deprivation of full backwages was too harsh, excessive and unreasonable. ( 7 ) AT this stage, it would be just and proper to refer to the provisions of Section 11a of the Industrial Disputes Act, 1947 which came to be inserted by Act 45 of 1971 with effect from December 15, 1971. Section 11a being relevant is reproduced in its entirety herein:"11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of adjudication proceedings, the Labour Court, Tribunal or National tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: provided that in any proceeding under this Section the Labour Court, Tribunal or national Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. " ( 8 ) IMMEDIATELY after the provision came to be introduced, the Division Bench of the apex Court in the case of The Workmen of m/s. Firestone Tyre Rubber Co. and of India p. Ltd. v. The Mangement and Ors. , reported in AIR 1973 SC 1227 had occasion to interpret and construe the said provision. Mr. N. R. Sahani, Ld. and of India p. Ltd. v. The Mangement and Ors. , reported in AIR 1973 SC 1227 had occasion to interpret and construe the said provision. Mr. N. R. Sahani, Ld. Advocate for the workman has placed considerable reliance on this judgment in order to bring home his point that the Labour Court or Tribunal is now authorised even in case where the dismissal of a workman on ground of misconduct is preceded by a proper and valid domestic, Section 11a empowers the labour Court or Tribunal held to be proper to reappraise the evidence and examine the correctness of the finding thereat, and even to interfere with the punishment and alter the same. His Lordship Justice vaidialingam, speaking for the Division bench firstly considered the position of law as they stood prior to the introduction of section 11a and in para 27 of the reported judgment carved out ten propositions of law which were then treated as well established governing the jurisdiction of the labour Court or the Tribunal when adjudicating the disputes relating to dismissal or discharge. Prior to introduction of Section 11a once the misconduct was proved based on plausible conclusion flowing from the evidence adduced in the enquiry conducted by the employer, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate authority. The interference with the decision of the employer will be justified only when the findings arrived in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. Even in cases where no enquiry was held by an employer or if the enquiry was found to be defective, in order to satisfy itself about the legality or validity of the order, the tribunal had to give an opportunity to the employer and the employee to adduce evidence before it. It is open to the employer to adduce evidence, for the first time, justifying his action and it was open to the employee to adduce evidence to the contrary. Not holding of enquiry by the employer will give the jurisdiction to the tribunal, after permitting the employer to lead evidence to find out whether there was a prima facie case. It is open to the employer to adduce evidence, for the first time, justifying his action and it was open to the employee to adduce evidence to the contrary. Not holding of enquiry by the employer will give the jurisdiction to the tribunal, after permitting the employer to lead evidence to find out whether there was a prima facie case. On the other hand, the issue about merits of the impugned order of dismissal was at large before the Tribunal and the latter on the evidence adduced before it has to decide for itself as to whether the misconduct alleged is proved. Thus, the Tribunal got jurisdiction to consider the evidence placed before it for the first time in justification of action taken only, if no enquiry has been held and if the enquiry conducted by the employer itself found to be defective, but the Tribunal never has power straightaway to direct reinstatement of dismissed/discharged employee once it was found that the domestic enquiry has been held and that the enquiry was also legal and valid. Once the misconduct was proved either in the enquiry conducted by the employer or by the evidence placed before the Labour Court/tribunal, for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment was too harsh as to suggest victimisation, unfair labour practice or mala fide. The jurisdiction of the Tribunal or the Labour court, therefore, to interfere with or substitute the penalty imposed by the employer after lawful, valid enquiry into the misconduct of the workman was limited to interference only in case where the punishment was found to be harsh as to suggest victimisation. Mere harsh punishment was not a ground for interference but it should be so harsh, excessive, unreasonable or disproportionate as to suggest victimisation and on reaching such finding only the labour Court and on reaching such finding only the Labour Court or the Tribunal could have interfered with the quantum of punishment. Mere harsh punishment was not a ground for interference but it should be so harsh, excessive, unreasonable or disproportionate as to suggest victimisation and on reaching such finding only the labour Court and on reaching such finding only the Labour Court or the Tribunal could have interfered with the quantum of punishment. ( 9 ) THE Division Bench of the Apex Court having stated the law prior to amendment found that the object of Section 11a is stated to be that the Tribunal should have power in cases where necessary to set aside the order of discharge/dismissal and direct reinstatement or award any lesser punishment, proceeded to consider the exact provisions of Section 11a and as to under what circumstances it could be invoked. Following observations of the Division bench of the Apex Court in this regard are required to be quoted:"to invoke Section 11 A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. In the course of such adjudication, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the workman including imposing of a lesser punishment having due regard to the circumstances. The proviso casts a duty on the Tribunal to rely only the materials on the record and prohibits it from taking any fresh evidence. Even a mere reading of Section, in our opinion, does indicate that a change in the law, as laid down by this Court has been effected. ""act is a beneficial piece of legislation enacted in the interest of employees. It is well settled that in construing the provision of welfare legislation, courts should adopt, what is described as a beneficent rule of construction. If the construction are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees has to be preferred. If the construction are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the service conditions of an employee, demands an interpretation liberal enough to achieve the legislative purpose. But, we should not also lose sight of another canon of interpretation that a statute or for the matter of that even a particular section, has to be interpreted according to its plain words and without doing violence to the language used to the legislature. " ( 10 ) MR. N. R. Sahani also placed reliance upon the decision of the Division bench of this Court in the case of P. M. Parmar v. Gujarat Electricity Board reported in 1982 (1) GLR 352 . While interpreting Section 11a of the Industrial disputes Act, the Division Bench of this Court took the view that it was not incumbent upon the employee/workman to admit the guilt or to admit the charges and thereafter to invoke the jurisdiction of the Labour court for lesser penalty. The Court after holding that the amendment in the Industrial disputes Act by the Amending Act of 1971 was brought because of felt needs of the time as it was considered necessary to entrust this most vital function to a neutral body, it distinguished such power vested in the Labour Court as benevolent power and in the dimension of social justice it referred to various factors which shall have to be kept in the mind by the neutral body considering the question as to whether the penalty imposed was commensurate with the misconduct attributed to the employee. It is not necessary to refer to various factors enumerated by the Division Bench while considering the question of quantum of punishment as subsequent decision of this Court as well as the Supreme Court has clearly confined the jurisdiction of the labour Court under Section 11a in substituting the punishment only when certain conditions are satisfied. It is not necessary to refer to various factors enumerated by the Division Bench while considering the question of quantum of punishment as subsequent decision of this Court as well as the Supreme Court has clearly confined the jurisdiction of the labour Court under Section 11a in substituting the punishment only when certain conditions are satisfied. It is no doubt true that the punishment of dismissal or removal from service may act as an imposition of economic death penalty on the workman as found by the Division Bench, the court of law which has to scale various factors in the balance of judicial scale by exercising its discretion judiciously cannot go on approving even proved or confessed misconduct of theft of articles from the premises of employer or misappropriation of funds of public corporations, such as, State road Transport Corporation for more than 35 to 40 times or can it turn Nelsons eye to this criminal breach of trust committed by the clerk or cashier on thoroughly untenable and jejune ground that the employee must have been in need of money or he must have been hard pressed for money and might have committed misconduct. This would be too charitable view of the provision of Section 11a which has not been justly and rightly approved by the Apex court in its subsequent decisions. This decision of the Division Bench as will be pointed out hereafter no longer holds the field as this High Court as well as the Apex court have subsequently very rightly and in the true spirit of language of Section 11a construed and applied it. ( 11 ) MR. Clerk, in this connection rightly invited the attention of this Court to the subsequent decision of the Apex Court in the case of Christian Medical College hospital Employees Union v. Christian medical College, Vellore reported in AIR 1988 SC 37 . While negating the argument that application of provisions of Industrial disputes Act to the minority institution would abridge the fundamental right of the minority educational institution the Court held that the Industrial Tribunal or the labour Court has under Section 11a of the act powers to substitute a lesser punishment in lieu of the order of discharge/ dismissal passed by the management. However, confirmation of such power is not conferring an arbitrary or absolute power in the Industrial Tribunal or Labour Court. However, confirmation of such power is not conferring an arbitrary or absolute power in the Industrial Tribunal or Labour Court. The power under Section 11a of the Act has to be exercised judiciously and the industrial Tribunal or the Labour Court is expected to interfere with the decision of the Management under Section 11a of the industrial Disputes Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the labour Court has to give reasons for its satisfaction. Such reasons may not be fanciful or whimsical and they are once again subjected to judicial review by the High court or the Supreme Court. Substitution of a punishment therefore solely on the ground that the theory of socialism or social justice requires that lenient view should be taken is untenable in law and tantamount to permitting the Labour Court or the Industrial Tribunal to act beyond the scope of Section 11a of the said Act. This court also has considered the question of substitution or modification of penalty imposed by the disciplinary authority, and based on recent decision of the Supreme court this Court in the case of Vadodara municipal Corporation Kamdar karmachari Union v. Municipal Corporation of Vadodara and Another reported in 1993 9 (1) GLH 640 made following observations which are in tune with and consistent with the binding precedents of the apex Court and the objective sought to be achieved by the legislature by introduction of Section 11a of the I. D. Act, 1947 :"this case reminds this Court of the following observations of Chandrachud C. J. in the case of Shankardas v. Union of india reported in AIR 1985 SC 772 : "cases which evoke sympathy come frequently before the court. But pity not often. "the case before me has a unique story to tell, the story of a misconduct (it is doubtful whether it can be said to be misconduct) alleged to have been committed under the stress of physical disability arising from disease of tuberculosis which is further compounded by imposition of most draconian and monstrous penalty of removal from service. "the case before me has a unique story to tell, the story of a misconduct (it is doubtful whether it can be said to be misconduct) alleged to have been committed under the stress of physical disability arising from disease of tuberculosis which is further compounded by imposition of most draconian and monstrous penalty of removal from service. It is undoubtedly true that the Corporation has power to dismiss a person from service on the ground of proved misconduct but that power like every other power is to be exercised fairly, justly and reasonably. The right to impose the penalty carries with it the duty to act justly. The penalty imposed must be commensurate with the gravity of the misconduct and any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the constitution of India. In Council of Civil Service Unions v. Minister for the Civil Service, Lord Diplock said :"judicial review has, I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality, the second "irrationality" and the third "procedural impropriety". This is not to say that further development on a case by case basis may not in course of time and further grounds I have in mind particularly the possible adoption in future of the principles of "proportionality" which is recognised in the administrative law of several of our fellow members of the Europian Economic community. . . . "in the case of Ranjit Thakur v. Union of india reported in 1987 (4) SCC 611 the supreme Court of India considered the question of doctrine of proportionality in the matter of awarding punishment and it observed as under :"the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court material. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount itself to conclusive evidence of bias. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount itself to conclusive evidence of bias. The doctrine or proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court material, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial service. "very recently learned single Judge of this Court in the case of Chanduji Sendhaji khant v. GSRTC reported in 1995 (2) GLH 232 elaborately considered the scope of section 11a and the jurisdiction of the tribunal or the Labour Court while exercising its discretion in the matter of penalty and made pertinent following observations :"sine qua non for exercising discretionary powers under Section 11a of the Act, is satisfaction of the tribunal that punishment imposed by the disciplinary authority is disproportionate to the misconduct proved. Unless that conclusion is reached the question of exercise of discretion for the purpose of substituting lesser penalty does not arise and if without recording any such conclusion, the Tribunal or Labour Court, as the case may be, embarks upon the question of penalty by assuming certain propositions not connected with workman, it can well be said that exercise of discretion in such cases cannot be sustained and award can be interfered with. "the Division Bench of this Court also in its decision reported in 1994 (2) LLJ 332 took the same view of Section 11a of the act and held that the Labour Court or tribunal is not having unguided power to set aside the just order passed by the management. Power under Section 11a shall have to be exercised judiciously and the tribunal can interfere only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman. In the case before the Division Bench the workman, a conductor of GSRTC was guilty of misappropriation of amounts of fare col- s lected from passengers, and leniency in such cases was deprecated by the Division bench. In the case before the Division Bench the workman, a conductor of GSRTC was guilty of misappropriation of amounts of fare col- s lected from passengers, and leniency in such cases was deprecated by the Division bench. ( 12 ) KEEPING the aforesaid position of 10 law in mind now this Court must turn to the award passed by the Labour Court at rajkot. . Two charges were levelled agaisnt the workman when he was working as Sub- inspector in the Octroi Department. One charge related to permitting a person to bring goods without payment of Octroi in the city of Rajkot and finding of amount of rs. 40/- from the person of the workman. The second charge related to wrongly assessing the damaged vehicle, i. e. Diesel truck bearing No. GTD 2804 as scrap only and thereby causing financial loss to the Corporation by charging Rs. 35/- instead of Rs. 500/ -. The aforesaid charges relate to charges of misappropriation and acting against the interest of the employer thereby causing financial gain to the workman himself. The charges cannot be said to be minor charges, that too for an officer who was working as Octroi Sub-Inspector. Before the Labour Court he clearly stated that he was not challenging the legality and validity of the departmental enquiry held against him and that he was accepting the same as legal and valid. Even on appreciation of evidence and documentary evidence produced before the Labour Court also found that during pendency of proceedings workman has also attained the age of superannuation on 6-8-95 and therefore question of reinstatement in service would not arise. However, the Labour Court found that the declaration of dismissing the employee from service was harsh and since the provisions of Industrial Disputes Act were meant for doing social justice the workman should be paid 40% backwage for the period between 17th October 1988 to 6-1-1995. The prayer thus, in substance, is for quashing and setting aside the order of penalty of dismissal from service without assigning any justifiable reasons whatsoever and ordering payment of backwages of 40% for long period of over seven years. ( 13 ) IN my opinion, applying the principle of law as stated hereinabove, the Labour court was not justified in interfering with the order of penalty of dismissal without assigning any reason whatsoever. ( 13 ) IN my opinion, applying the principle of law as stated hereinabove, the Labour court was not justified in interfering with the order of penalty of dismissal without assigning any reason whatsoever. To state that the labour law is a social legislation and therefore punishment is disproportionate is to abandon the exercise of judicial discretion and to undertake exercise of such power to sermoning or advocating a philosophy at the cost of the employer. ( 14 ) SO far as the first charge is concerned, it was alleged against the workman that he has accepted illegal gratification for lower assessment of octroi. The charge of acceptance of amount directly from any person was not proved, but it was found that in his pocket the workman was carrying amount of Rs. 40/ -. For a workman of status of an Octroi Inspector keeping amount of Rs. 70/- in his pocket even for day to day expenses or out of pocket expenses cannot be said to be unnatural. Based on this charge alone, ordinarily no disciplinary authority would have taken harsh view of dismissing an employee from service, but there is another charge which is of very serious nature and which is conclusively established by evidence. A person in the capacity of Octroi Supervisor carries higher responsibility and when he is assess ing the octroi it becomes his duty to see that which goods he is charging under which category. When simply damaged vehicle which can be told has been brought in octroi limits to assess as a scrap only would pass ones comprehension. On this sole charge only the authority could have imposed penalty of dismissal and/or removal from service. It cannot therefore be said that the order of penalty of dismissal was very harsh and disproportionate. When simply damaged vehicle which can be told has been brought in octroi limits to assess as a scrap only would pass ones comprehension. On this sole charge only the authority could have imposed penalty of dismissal and/or removal from service. It cannot therefore be said that the order of penalty of dismissal was very harsh and disproportionate. ( 15 ) IN my opinion, while holding that one of the charges levelled against the employee which was of serious nature was wholly established and proved and in view of the fact that legality and validity of enquiry was not challenged by the employee, it would be just, proper and equitable to hold that Labour Court was wrong in holding that penalty imposed was disproportionate and that it was excessive or unreasonably harsh and that since the workman was already superannuated and he was not required to be reinstated he should be paid the amount of backwages of 40% for the period between 17-10-88 to 6-1-1995 which approximately would work out to rs. 1,63,000/- would tantamount to permitting the Labour Court to cross the powers conferred by even newly amended Section 11a of the said Act. Except stating that the labour laws of social justice and therefore liberal view should be taken, no reason worth naming is provided by the Labour court as to why the order of penalty looking to the gravity of second charge was not justified, or as to why the penalty imposed was disproportionate, unreasonable and unjust. Therefore, while allowing this petition and setting aside the judgment and award of the Labour Court at Rajkot on the ground that the first charge was a nominal charge where in fact the charge was not brought home and possibility of an employee possessing Rs. 70/- for his day to day expenses cannot be said to be improbable this Court would recommend in the form of directory nature the Rajkot Municipal corporation to pay backwages at the rate of 15% to the workman especially when the workman is now retired and has to fall back upon such amount only. ( 16 ) IN the result, Rule in SCA No. 1175/ 96 is made absolute and the judgment and award of the Labour Court at Rajkot is quashed and set aside subject to aforesaid recommendation in directory nature within 8 weeks from today. ( 16 ) IN the result, Rule in SCA No. 1175/ 96 is made absolute and the judgment and award of the Labour Court at Rajkot is quashed and set aside subject to aforesaid recommendation in directory nature within 8 weeks from today. ( 17 ) SCA No. 2040/- fails and rule is discharged. No costs in both petitions. Rule made absolute. .