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Gujarat High Court · body

2020 DIGILAW 542 (GUJ)

J S Nakhwa v. State of Gujarat Through Secretary

2020-06-12

ASHUTOSH J.SHASTRI

body2020
JUDGMENT : 1. Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of the order of removal from services passed by the respondent authority on 23.2.2011. 2. The facts giving rise to the present Special Civil Application are that the petitioner was originally appointed as Shop Inspector with respondent No.5 Municipality by order dated 29.3.1980. The petitioner was given additional charge in the month of April 1980 for the purpose of removing encroachment and then the petitioner was made to work in dual capacity upto 1983. During the course of his duty, he was also assigned various responsibilities and was also given the charge of entire sanitation department of the respondent No.5 Municipality. In December 1987, the petitioner was awarded with certificate by the Chief Officer for his hard work and sincerity. Later on, the then Chief Officer went on leave between October-November 1991, as a result of which, the charge of Chief Officer was given to the petitioner. The petitioner was looking after the work of Municipality as a Chief Officer as well and on account of his sincere work, a resolution was passed by the Municipality on 12.9.1994, recommending the Government for regularizing the petitioner on the post of Chief Officer since he is holding the requisite qualification. Several recommendations were made by the then Collector, Jamnagar and the Regional Director of the Municipality, Rajkot was finally constrained to pass an order regularizing the petitioner’s appointment as Chief Officer conditionally. It was however made it clear that the appointment would be purely subject to regulation which may be enacted with regard to the said post and this appointment would not create any right to stick to the post of Chief Officer. 3. It is the case of the petitioner that on Government record, despite such order having been passed in favour of the petitioner, the post of Chief Officer was mentioned as vacant insofar as it relates to Khambalia Municipality. 3. It is the case of the petitioner that on Government record, despite such order having been passed in favour of the petitioner, the post of Chief Officer was mentioned as vacant insofar as it relates to Khambalia Municipality. By this time, the respondent Government came out with a circular passed in September 1998 whereby all the vacant posts of Chief Officer in the Municipalities were to be filled in by way of retired persons and having age of beyond 60 years and since the said circular was detrimental to the petitioner, he preferred Special Civil Application No.10330 of 1998, challenging the said circular. Originally, on 14.12.1998, ad-interim relief was granted not to disturb the petitioner and then the said interim protection was made absolute vide order dated 18.8.1999 and the said petition was pending. 4. It is the further case of the petitioner that in the meantime, on 3.7.1999, a complaint was made against the petitioner at the instance of the MLA, Jamkhambalia, on account of which, the Vigilance Department’s opinion was solicited, which, in turn, recommended appropriate disciplinary action, including major penalty, against the petitioner after departmental inquiry. It is the case of the petitioner that these very allegations were made the subject matter of scrutiny by the Municipality and the Municipality by way of unanimous resolution dated 20.7.2001, closed the chapter and found not to proceed further and after the said resolution, the Collector, Jamnagar directed the Mamlatdar, Khambalia to inquire into the allegations against the petitioner and even the Mamlatdar, Khambalia was also of the opinion not to proceed, as a result of which, an order came to be passed on 8.11.2011. 5. It has further been asserted in the petition that a massive drive for demolition of illegal constructions and encroachment was made in the month of December 2001 across the State of Gujarat and several local bodies, including the present Municipality, also undertook the said demolition drive, which has resulted into removal of several encroachments of the persons who are politically connected and on account of such demolition drive, the petitioner antagonized number of influential persons, including Ex-Minister. This has resulted into misfortune for the petitioner since several Councilors of the Municipality were also antagonized and new body in the Municipality came in power in January 2002. This has resulted into misfortune for the petitioner since several Councilors of the Municipality were also antagonized and new body in the Municipality came in power in January 2002. The business by the newly elected local body transacted in General Board, in which, ouster was also discussed and resolution No.437 dated 27.3.2002 was passed about replacement of the petitioner. This resolution by the newly elected body was made the subject matter of the independent petition, as according to the petitioner, since it was passed during subsistence of the interim relief passed in the petition of 1998, referred to above, later on, the Director of Municipalities, vide order dated 1.4.2002, issued an order, directing the President of the Municipality to decide upon the merits of the allegations leveled against the petitioner which were wound up earlier by the Municipality. On account of such fact, the petitioner was constrained to challenge the said order dated 1.4.2002 as well as the resolution date 27.3.2002 about replacement of the petitioner by way of separate petition, being Special Civil Application No.4113 of 2002. The said petition was already ordered to be heard with original petition, i.e. Special Civil Application No.10330 of 1998. A fact is to be mentioned here that in the 2002 petition, i.e. in Special Civil Application No.4113 of 2002, no interim relief was granted. On the contrary, a clarification was made that there shall be no interim relief against conducting the departmental inquiry against the petitioner. 6. The case of the petitioner further travels to the effect that the inquiry was re-instituted, revived and finally, it has culminated into an order of removal dated 23.2.2011, which is made the subject matter of the present petitioner. 7. This petition has been submitted in the year 2011, in which after issuance of the notice on 16.8.2011, after hearing both the sides, on 15.12.2011, Rule was issued making it returnable since there was no affidavit-in-reply filed and since then, the petition was pending for its final disposal. However, by that time, it appears from the record that the contesting respondent No.1 has already filed affidavit-in-reply. With this background, the present petition was heard by this Court at length and it was upon the request of all learned advocates appearing for the respective sides, final hearing was taken up. 8. Learned senior advocate Mr. However, by that time, it appears from the record that the contesting respondent No.1 has already filed affidavit-in-reply. With this background, the present petition was heard by this Court at length and it was upon the request of all learned advocates appearing for the respective sides, final hearing was taken up. 8. Learned senior advocate Mr. Bhaskar Tanna appearing on behalf of the petitioner has vehemently contended that this order of removal is a result of the conspiracy against the petitioner and in precise, at the behest of the local MLA and his pressure. It has further been submitted that this is nothing but a classic example of arbitrary exercise of the jurisdiction by the authority just to see that, somehow the petitioner be shunted off from the post. Mr. Tanna has submitted that a bare reading of the impugned order would clearly indicate that there is absolute non-application of mind and there is no independent and cogent reason to sustain the order of removal. Mr. Tanna has further submitted that by now, assigning of reasons is considered to be a part and parcel of the principles of natural justice and a bare look at the order would clearly indicate that this is nothing but an example of violation of the principles of natural justice and hence, on this ground alone, the petition deserves to be dismissed. 9. Learned senior advocate Mr. Tanna has further submitted that the order of removal is absolutely not sustainable in the eye of law since the alleged irregularities have been in discharge of duties as Chief Officer, whereas the order reflects that the petitioner is also removed from the post of Shop Inspector, as such this order is unsustainable in the eye of law. It has further been contended that the Municipality is the appointing authority for the post of Shop Inspector and undisputedly, the petitioner is also appointed as Shop Inspector by independent resolution of the Municipality, whereas the impugned order is passed by the respondent authority, which is not the appointing authority of the petitioner. In this view of the matter also, the order of removal under challenge is not sustainable in the eye of law. Learned senior counsel Shri Tanna has further contended that there is a clear service track record of the petitioner not only as Shop Inspector about 8 years’ tenure but additionally, even as Chief Officer as well. In this view of the matter also, the order of removal under challenge is not sustainable in the eye of law. Learned senior counsel Shri Tanna has further contended that there is a clear service track record of the petitioner not only as Shop Inspector about 8 years’ tenure but additionally, even as Chief Officer as well. The work of the petitioner has been thoroughly appreciated and this very complaint and the grievances which have been raised against the petitioner were in past considered by the Municipality, in which the unanimous resolution was passed to wind up the grievances against the petitioner. Even after the Collector’s instructions, the then Mamlatdar also found no case against the petitioner and therefore, twice, the grievances against the petitioner have been examined independently and still however, at the behest of some political force, inquiry is sought to be revived and the petitioner is made a scapegoat of the political conspiracy. Mr. Tanna has further submitted from the record that on the contrary, on several occasions, the work of the petitioner has been well appreciated but it is only on account of the fact that the petitioner has removed encroachment of the persons who were politically well connected and that has caused a grievance against the petitioner, otherwise there is hardly any justifiable reason against the petitioner to proceed with. To substantiate this contention, Mr. Tanna has drawn the attention of this Court to some of the documents which are attached to the petition compilation. 10. Learned senior advocate Shri Tanna has further submitted that while meeting with the charges, adequate explanation point-wise has been given. But, it appears that while passing the order, there is absolutely no discussion about the defense of the petitioner nor even explanation has been dealt with and after narrating the sequence of events, entire situation is summed up in one paragraph only, i.e. para 6. Rest of the order is mere narration of sequence of events. Therefore, there is no independent application of mind. Apart from the fact that the officer who passed the order has no authority under the law to pass such order. Rest of the order is mere narration of sequence of events. Therefore, there is no independent application of mind. Apart from the fact that the officer who passed the order has no authority under the law to pass such order. According to Shri Tanna, time and again, the Supreme Court directed that the authority must exercise its jurisdiction/ power by assigning appropriate cogent reasons and non-assigning of reasons and non-dealing of the contentions would be a ground for setting aside the order and according to Shri Tanna, this is a fit case in which, on this count alone, the order deserves to be quashed and set aside. Learned senior counsel Shri Tanna has further strengthened his submission by referring to a decision delivered by the Apex Court in the case of J.N. Ganatra Vs. Morvi Municipality, Morvi reported in AIR 1996 SC 2520 and then submitted that this is a fit case in which, the order is required to be set at naught. 11. Learned senior advocate Shri Tanna has further submitted that the narration of events in the order is clearly indicating that the impugned action is taken against the petitioner under dictation and not independently and as such, this order smacks malafide, passed with extraneous considerations and without examining any defense of the petitioner. As a result of this, the impugned order deserves to be set aside in the interest of justice. 12. Learned senior advocate Shri Tanna with a view to strengthen his submission, has referred to some of the decisions just to point out to the Court that if the allegations are related to one post, action can be taken for that particular post. Whereas, here, undisputedly, the allegations were related to the petitioner’s position as a Chief Officer and not as a Shop Inspector, but still however, the petitioner has been removed as a Shop Inspector as well. This action is thoroughly impermissible. As a result of this, the petition deserves to be allowed. No other submissions have been made. 13. As against this, learned advocate Mr. R.C. Kakkad appearing on behalf of the Municipality has vehemently opposed the petition by pointing out that on account of the petitioner’s misdeeds, as alleged, serious complications have arisen in the administration of the Municipality. As a result of this, the petition deserves to be allowed. No other submissions have been made. 13. As against this, learned advocate Mr. R.C. Kakkad appearing on behalf of the Municipality has vehemently opposed the petition by pointing out that on account of the petitioner’s misdeeds, as alleged, serious complications have arisen in the administration of the Municipality. It has further been contended that basically, the employees who are otherwise appointed by the Municipality are the employees of the Government since there is a deep and pervasive control of the State Government over the Nagar Palika. It has been contended by Mr. Kakkad that ultimately, even after appointment of the petitioner, approval has to be accorded and solicited from the Government and therefore, if the Government authority is passing the order, it cannot be said in any form that it is passed with lack of authority. Mr. Kakkad has further submitted that a detailed order is passed by the authority pointing out that how and in what manner, the petitioner has been given a chance and it is different thing that if the petitioner does not want to avail the opportunity, it is not for the Municipality to go on and cater the need of opportunity. The order itself is a self-explanatory that how many chances have been given to the petitioner and it is the petitioner who dragged on the entire process of inquiry under one reason or the other and just wanted to show that he cannot be dealt with for his misdeeds and therefore, the order which has been passed is just and proper and is not required to be interfered with. Hence, the petition, being devoid of merit, deserves to be dismissed. 14. Learned Assistant Government Pleader Mr. Bhargav Pandya appearing on behalf the State authority who passed the order has vehemently contended that the petition basically is merit-less and does not deserve to be entertained. It has been contended that as many as 14 charges have been leveled against the petitioner and if each charge is to be looked into independently, it would clearly suggest that how the petitioner has misused his position as in charge of the Chief Officer. Mr. It has been contended that as many as 14 charges have been leveled against the petitioner and if each charge is to be looked into independently, it would clearly suggest that how the petitioner has misused his position as in charge of the Chief Officer. Mr. Pandya has further submitted that the order itself indicates that how many opportunities have been given, but at every time, for one reason or the other, the charges have been evaded to be dealt with. It is only at last moment, when the petitioner realized that no Court has extended any protection, ultimately he succumbed to the process of inquiry and then submitted his explanation. The explanation has been dealt with by the authority, has been examined at length and the authority thought it fit to remove the petitioner since the charges leveled against the petitioner have been established on record. With a view to indicate the gravity of charges, few examples have been given by learned Assistant Government Pleader by pinpointing the charges from the order impugned in the petition and has submitted that it is ultimately for the authority to deal with its employee if employee is committing a gross misconduct. The only grievance which can be agitated is about the grant of proper opportunity which undisputedly has been extended to the petitioner during the course of process. As a result of this, there is no merit in the contention which has been raised by the petitioner. 15. Learned Assistant Government Pleader Mr. Pandya has then submitted that on the contrary, the Nagar Palika, the then body, was favouring the petitioner and did not want to allow any action to be taken against the petitioner. It is only when the superior authority found that the charges have been worth inquiring into appropriate process, strictly in accordance with law, have been dealt with against the petitioner. Original resolution to wind up the charges has been made the subject matter of the proceedings under Section 258 of the Gujarat Municipalities Act by the Collector. It is only when the superior authority found that the charges have been worth inquiring into appropriate process, strictly in accordance with law, have been dealt with against the petitioner. Original resolution to wind up the charges has been made the subject matter of the proceedings under Section 258 of the Gujarat Municipalities Act by the Collector. The Collector set aside the said resolution and upon which, the process has been carried against the petitioner and this order of setting aside the resolution of 2001 was not at all agitated by the petitioner nor challenged and therefore, now, he cannot make a grievance or take shelter of such resolution which is not available to him as no longer in existence. Mr. Pandya has further submitted that ultimately, these Municipal Officers are under deep and pervasive control of the State Government and every act of the officer is with approval and permission of the State authority and therefore, when the Municipality is not inquiring into or wrongly covering up the issue, it is always open to the State authority to supervise and direct appropriate action to be undertaken. From the order, it appears that there is hardly any grievance available with the petitioner. Mr. Pandya has further submitted that the on the contrary, the recommendation and regularization of the Chief Officer was completely irregular and it was only since the Municipal body was supporting and therefore, the petitioner cannot raise any grievance with regard to the action being taken against him. Mr. Pandya has submitted that the petitioner has not fully disclosed the particulars and the sequence of events which had taken place and therefore, the lack of pleading is also not to be so leniently considered. 16. Learned Assistant Government Pleader Mr. Pandya has submitted that simply because at the relevant point of time, the local Municipality wound up the chapter but the same was not having any sanctity of law and even apart from that, the said resolution of 2001 was set at naught. So far as dealing with the petitioner departmentally is concerned, this Hon’ble Court by a clear order has indicated that there shall not be any stay against the departmental inquiry. When that be so, the petitioner cannot agitate this issue any more. So far as dealing with the petitioner departmentally is concerned, this Hon’ble Court by a clear order has indicated that there shall not be any stay against the departmental inquiry. When that be so, the petitioner cannot agitate this issue any more. Ultimately, the entire record indicates that there is a clear misuse of power by the petitioner while dealing with the post of Chief Officer. Mr. Pandya has drawn the attention of this Court to the detailed order which has been passed and the defense which has been taken by the petitioner and the said defense having not been found to be satisfactory, an order of removal came to be passed. Resultantly, there is no merit in the petition. So far as independent reasons which are agitated by the petitioner are concerned, it has been submitted that the chronology of events has been mentioned specifically in the order which clearly reflects application of mind. It may be that each point might not have been independently concluded but overall order is to be seen and not in isolation. Therefore, when particular submission even if not dealt with, it cannot be said that there is any non-application of mind. However, Mr. Pandya has candidly submitted that from the order and the concluding part thereof, there appears to be somewhat non-dealing of the contentions which are raised specifically by the petitioner and for that purpose, Mr. Pandya has not much resisted the submission of learned senior advocate Mr. Tanna for the petitioner. Mr. Pandya has then left to the discretion of this Court if ultimately the order is found to be laconic and hence, requested the Court to pass a suitable order in the interest of justice. 17. Having heard learned advocates appearing for the parties and having gone through the material on record, it seems that the order which has been passed by the authority is a detailed order but certainly, to some extent, learned senior counsel Mr. Tanna appears to be justified in submitting that independent conclusion at length is not assigned in the order. 17. Having heard learned advocates appearing for the parties and having gone through the material on record, it seems that the order which has been passed by the authority is a detailed order but certainly, to some extent, learned senior counsel Mr. Tanna appears to be justified in submitting that independent conclusion at length is not assigned in the order. Rest of the order upto paragraph 6, i.e. upto page 17, indicates narration of chronology of events, explanation of the charges and particulars but, concluding part is only reflecting in para 6 and as such, detailed explanation which has been given appears to have be not been dealt with at length by the authority who passed the order. 18. Additionally, the Court has also examined the order in which, it has been found that there is a clear stand taken by the petitioner and individual point wise explanation has been given for each of the charges, 14 in numbers, which is very much reflecting in para 4 onwards of the order, and as such, looking to the order as a whole, it appears that there is non-dealing of the contentions and the explanations and the order to that extent appears to be laconic. 19. While going through further, it appears that the charges are somewhat serious in nature and the said charges have been submitted to the petitioner. But, then, for a pretty long period, the petitioner appears to have not cooperated with the inquiry. Probably under the guise of pendency of the petition, the petitioner might be waiting for appropriate time to explain. But, in such a situation also, when appropriate time came to the petitioner, i.e. when no stay was granted against the departmental inquiry, then also, for a pretty long period, the petitioner appears to have not cooperated with the inquiry. Hence, to some extent, the petitioner also appears to have calculated and convenient approach across to the inquiry proceedings. This entire situation and the overall record of the proceedings has led this Court to believe that while passing the impugned order, no independent reasons appear to have been assigned and there appears to be non-dealing of the explanation of the petitioner and as such, the Court is inclined to set aside the impugned order on this ground alone. This entire situation and the overall record of the proceedings has led this Court to believe that while passing the impugned order, no independent reasons appear to have been assigned and there appears to be non-dealing of the explanation of the petitioner and as such, the Court is inclined to set aside the impugned order on this ground alone. Normally, after efflux of time of this nature, the Court would not have allowed the authority to pass a fresh order, but in a situation like this peculiar in nature of the present proceedings, it appears that the petitioner has also conveniently not cooperated in the inquiry proceedings promptly and ultimately, led the authority to pass an order at a belated stage and therefore, this Court is not inclined to adopt such mode of setting aside the order and not allowing the authority to pass a fresh order. This Court while coming to the conclusion is mindful of the well-recognized proposition of law delivered by the Apex Court that under which circumstance, the authorities are required to be directed to take a fresh decision and upon such proposition of remand, following few decisions are since taken in aid by this Court, relevant observations have been reproduced hereunder:- (i) The Apex Court in the case of Oryx Fisheries Pvt. Ltd. Vs. Union of India and others reported in (2010)13 SCC 427 has observed in para 40 as under:- “40. In M/s. Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". (ii) The Apex Court in case of Birwati Chaudhary and Others versus State of Haryana and Others reported in (2018) 9 SCC 458 , has held and observed in para 7, 8 and 9 as under:- “7. The reason to remand the case has occasioned due to the fact that firstly, no adequate reason is given in the impugned order for not granting stay; and secondly, the reason given does not in itself justify the rejection having regard to the nature of controversy involved in the writ petition. 8. In short, justifiable reasons to support either the grant or rejection needs to be stated keeping in view the facts and the law applicable to the controversy involved. It is not so found in the impugned order and hence the order of remand is called for to decide the matter afresh in accordance with law. 9. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the case is remanded to the High Court to decide the issue afresh on merits strictly in accordance with law without being influenced by any of out observations made above, within we have refrained to make having formed an opinion to remand the case to the High Court for the reasons mentioned above.” 20. Since in view of the aforesaid circumstance, the Court is inclined to direct the authority to pass a fresh order, the Court has desisted itself from dealing with the contentions in detail and expressing any opinion, however a clarification is made by this Court that it is independently open for the petitioner to raise all permissible contentions before the authority which are permissible in law. 21. The Court is also leaving it open for the petitioner to agitate the issue with regard to competency of the respondent No.1 authority who passed the order of such a nature, viz. to remove from even the post of Shop Inspector. 21. The Court is also leaving it open for the petitioner to agitate the issue with regard to competency of the respondent No.1 authority who passed the order of such a nature, viz. to remove from even the post of Shop Inspector. Since the Court is relegating the matter back to the authority for fresh decision, the Court is not expressing any opinion on merit upon such contention and it is independently kept open to the authority to take decision upon it as well. As a result of this, the Court is of the clear opinion that the present petition deserves to be disposed of in following lines, which would meet the ends of justice. (1) The impugned order dated 23.2.2011 is hereby quashed and set aside with a consequential direction upon the authority to pass a fresh order by dealing with each of the contentions of the petitioner and shall pass a fresh order after assigning cogent reasons. (2) While undertaking such exercise of passing a fresh order, it is needless to say that the petitioner shall have to be given appropriate opportunity of hearing or to explain or tender written submission and only after considering the same, the authority is expected to pass a fresh order in accordance with law. (3) Since a fresh order is directed to be passed, this Court has not expressed any opinion on merit of any of the contentions and it is independently left it open for the authority to pass a fresh order strictly in accordance with law, without being influenced by any of the observations which are made in the impugned order, which has been set aside. (4) Since much time has elapsed, it is directed that fresh order after giving opportunity to the petitioner shall be passed within a period of THREE MONTHS from the date of receipt of writ of this Court. 22. With the aforesaid observations and directions, the petition stands partly allowed. Rule is made absolute to the aforesaid extent. Direct Service is permitted.