BANK OF INDIA AND ANR.versusAVINASH D. MANDIVIKAR AND ORS.

A                        BANK OF INDIA AND ANR.
                                   v.
                     AVINASH D. MANDIVIKAR AND ORS.

                               SEPTEMBER 14, 2005

B                    [ARIJIT PASAYAT AND H.K. SEMA, JJ.]


          Service Law:

           Termination-Appointment under reserved category ofScheduled Tribe-
C   Caste certificate referred to Scrutiny Committee for verification after ten years-
    Committee invalidating caste certificate and holding that employee not
    belonging to Scheduled Tribe-Services terminated after conducting
    disciplinary proceedings-Termination order challenged on the ground that
    reference for verification ofcaste certificate not made within reasonable time-
D   High Court not interfering with finding ofCommittee but directing reinstatement
     with continuity of service with back wages-Held, delayed reference for
    verification of caste certificate does not affect legality of reference when
    foundation of caste certificate is based on fraud-Plea about long years of
    service is inconsequential-Such person does not have any right even to be
    considered for appointment and it is no appointment in the eyes of law-
E   Appointment.

          Respondent no. I joined services of appellant no.1-Bank on
    15.10.1976 under reserved category of Scheduled Tribe. Respondent no.1
    was promoted in reserved category in 1984 and his caste certificate was
    referred to the Committee for Scrutiny and Verification of Tribe Claims
F   for verification on 13.6.1987 which invalidated the caste certificate.
    Respondent no.1 filed writ petition challenging the order of the Scrutiny
    Committee which was dismissed as withdrawn granting liberty to the
    respondent no.I to challenge the legality of order of Scrutiny Committee
    and disciplinary proceedings in case any adverse inference was given .in
G   the enquiry proceedings initiated by the Bank. Enquiry Officer submitted
    report holding that the charges were proved and disciplinary authority
    after issuing show cause notice terminated the services of respondent no. I
    Writ petition filed by respondent no.1 challenging the termination order
    was allowed by the High Court holding that proceedings for verification

H                                          170
                BANK OF INDIA v. AVINASH D. ~ANDIVIKAR                   171
 of caste certificate were not initiated validly and directed reinstatement. A
 of respondent no.I in the post in which he was appointed with continuity
 of service with back wages. High Court further held that respondent no.I
 was not entitled to promotion as he did not belong to Scheduled Tribe.
 Hence this appeal by the Bank.

         Appellants contended that the conclusions of the High Court are        B
. clearly erroneous and contrary in terms"; that question of any reasonable
  period for initiation of action is immaterial when an action is founded on
  fraud; and that High Court by granting protection to respondent no.1 iias
  nullified the object for making scrutiny of the caste claim and the purpose   "'
  behind providing reservation for Scheduled Caste and Scheduled Tribes.        C
       Respondent no.I-employee contended that High Court has taken
 equitable view considering that respondent no.I has put in nearly three
 decades of service and has about three years to go before retirement and
 denied him promotion by its order; and that respondent no.I had not
 practiced any fraud in making the caste claim.                                 D
      Allowing the appeal, the Court

       HELD: 1. Respondent no.I-employee obtained appointment in the
service on the basis that he belonged to Scheduled Tribe. The Scrutiny
Committee examined the various .documents and came to a definite                E
conclusion that documents were manipulated to present false claim. When
the clear finding of the Scrutiny Committee is that he did not belong to
Scheduled Tribe, the very foundation of his appointment collapses and his
appointment is no appointment in the eyes of law. There is absolutely no
justification for his claim in respect of post he usurped, as the same was
meant for reserved candidate. The plea about long years of service in the       F
factual background of the present case is inconsequential.
                                                          (178-E-F; 179-A)

      Kumari Madhuri Patil anJ Anr. v. Additional Commissioner, Tribal
Development and Ors .. (1994) 6 SCC 241 and R. Vishwanatha Pillai v. State
of Kera/a and Ors .. [2004) 2 sec IOS, relied on.                               G
     State of Maharashtra'" Mi/ind and Ors., [200I) I SCC 4, held
inapplicable.

     2. The conclusions of the High Court are contradictory. On one hand
the High Court faulted the reference which was made after about ten years       H
      172                      SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A     and on the other hand accepted the findings of the Scrutiny Commitiee
      that the respondent no.I did not belong to Scheduled Tribe as was held
      by the Scrutiny Committee. Mere delay in making a reference does not
      invalidate the order of the Scrutiny Committee. If the High Court felt that
      the reference was impermissible because of long passage of time, then that
J3'   would have made the reference vulnerable. By accepting the findings of
      the Scrutiny Committee that the respondent no.I-employee did not belong
      to Scheduled Tribe, the observations a~out the delayed reference lose
      significance. The matter can be looked into from another angle. When
      fraud is perpetrated the parameters of consideration will be different.
      Fraud and collusion vitiate even the most solemn proceedi~gs in any
C     civilized system of jurisprudence. Therefore, mere delayed reference when
      the foundation for the same is alleged fraud does not in any way affect
      legality of the reference. [180-B-D; 181-B-C]

           Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors., JT (2005)
      7 SC 530, relied on.
D
            3. The High Court's judgment holding that the respondent no.l-
      employee was to be reinstated in the same post as originally held is clearly
      untenable. The order of termination does not suffer from any infirmity
      and the High Court should not have interfered with it. By giving protection
      for even a limited period, the result would be that a person who has a
E     legitimate claim shall be deprived the benefits. On the other hand, a person
      who has obtained it by illegitimate means would continue to enjoy it
      notwithstanding the clear finding that he does not even have a shadow of
      right even to be considered for appointment. [181-C-D)

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 347 of2004.
F
           From the Judgment and Order dated 18.9.2002 of the Bombay High
      Court in W.P. No. 5083 of 2002.

           Ms. Shiva Lakshmi, Ms. Nina Gupta, Ms. Neelam Singh, Ms. Meha
G     Kiran and Ms. Bina Gupta for the Appellants.

            V.A. Mohata, Neelkanth Nayak and D.M. Nargolkar for the Respondents.

            The Judgment of the Court was delivered by

            ARIJIT PASAYA T, J. Appellants call in question legality of the
H
            BANK OF INDIA v. AVINASH D. MANDIVIKAR [PASAY AT, J.]              173

    judgment rendered by a Division Bench of the Bombay High Court holding            A
    that the respondent no. I (hereinafter referred to as the 'employee') was to be
    reinstated in the post in which he was appointed with continuity of service
    with back wages. It was further held that he was not entitled to promotion as
    he did not belong to Scheduled Tribe.

          The background facts sans unnecessary details are as follows:               B
           The respondent joined the services of the appellant no. I-Bank on
     15.10.1976 under the reserved category of Scheduled Tribe. He was on
    probation for a period of six months and thereafter his services came to be
    confirmed. In 1984 he was promoted in the reserved category to the post of
    Junior Management Scale I. He was asked to submit fresh caste certificate in      C
    the revised form as he was promoted in the reserved category. His caste
    certificate was referred to the Committee For Scrutiny and Verification Of
    Tribe Claims, Pune Division, Pune (in short the 'Scrutiny Committee') for
    verification on 13th June, 1987. The Scrutiny Committee invalidated the
    caste certificate by order dated 18th July, 1987. The same was challenged         D
    before the High Court in Writ Petition no.3680/1994. The matter was remanded
    to the Scrutiny Committee for fresh hearing. Again by order dated 17th June,
     1995 the Scrutiny Committee invalidated the caste certificate. The matter was
    again remanded by the High Court by order dated 7th August, 1996. The
    Scrutiny Committee by order dated 24th December, 1998 invalidated the
    caste certificate. The said order was challenged before the Bombay High           E
    Court by filing writ petition which was withdrawn with liberty to file fresh
    writ petition. Another writ petition was filed which was disposed of by order
    dated 12th April, 200 I. It was prayed that enquiry proceedings were initiated
    by the employer, and if any adverse decision is given by the Enquiry Officer
    or his services are affected by any order passed by the disciplinary authority    F
    on the basis of the finding of the Enquiry Officer, liberty may be granted to
    challenge the legality of the order of the Scrutiny Committee and the
    disciplinary proceedings. The prayer was accepted and the writ petition was
    dismissed as withdrawn granting opportunity as aforenoted. The Enquiry
    Officer submitted report holding that the charges were proved and the
    disciplinary authority after issuing show cause notice terminated the services    G
    of respondent no. I-employee by order dated 28th February, 2002. The said
    order of termination was challenged before the Bombay High Court primarily
    on the ground that the proceedings for verification of the caste certificate
    were not initiated within reasonable period. The High Court found substance
    in such plea. It was noted that though respondent no. I-employee joined the       H


-
    174                       SUPREME COURT REPORTS (2005) SUPP. 3 S.C.R.

A services of the Bank in 1976, the reference was made in the year 1987. It was
    held that the period was not reasonable for initiation of proceedings. The
    High Court accordingly held that the proceedings were not initiated validly.
    Having held so, it was further held that respondent no. I-employee does not
    belong to Scheduled Tribe and, therefore, w11s not entitled to promotion in
B   the next higher rank. Direction was given to reinstate in the post he was
    appointed with continuity of service with back wages.

           Learned counsel for the appellants submitted that the view taken by the
    High Court is clearly erroneous. The High Court has not interfered with the
    invalidation order of the Scrutiny Committee. The conclusions of the High
C   Court are contrary in terms. On one hand, it has been held that the reference
    was not made within reasonable time. On the other hand, it has been held that
    respondent no.I did not belong to Scheduled Tribe. This conclusion obviously
    is based on the order of invalidation passed by the Scrutiny Committee.
    When an action is founded on fraud the question of any reasonable period for
    initiation of action is clearly immaterial. By granting protection of the
D   respondent no. I-employee the High Court has in essence nullified the object
    for which scrutiny of the caste claim is made and the purpose for which
    reservation has been made for Scheduled Caste and the Scheduled Tribes.

          Per contra, learned counsel for respondent no. I-employee submitted
    that the High Court has taken equitable view. Reference was made to a
E decision of the Constitution Bench of this Court in State of Maharashtra v.
    Mi/ind and Ors., [200 I] I SCC 4; more particularly para 38 thereof which
    did not disturb the admissions which had become final but it was held that
    in future no benefit in the status of Scheduled Tribe was to be conferred.

F       . in Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribal
    Development and Ors., [1994] 6 SCC 241 the object for granting certain
    benefits to persons belonging to Scheduled Caste and Scheduled Tribe and
    the approach to be adopted in matters where benefits are fraudulently obtained
    was highlighted. At para 13 of the judgment it was, inter alia, noted as
    follows:
G
           "13. The admission wrongly gained or appointment wrongly obtained
           on the basis of false social status certificate necessarily has the effect
           of depriving the genuine Scheduled Castes or Scheduled Tribes or
           OBC candidates as enjoined in the Constitution of the benefits
           conferred on them by the Constitution. The genuine candidates are
H          also denied admission to educational institutions or appointments to


                                                                                        -
BANK OF IND!Av. AVINASH D. MANDIVIKAR[PASAYAT, J.)                    175
office or posts under a State for want of social status certificate. The     A
ineligible or spurious persons who falsely gained entry resort to dilatory
tactics and create hurdles in completion of the inquiries by the Scrutiny
Committee. It is true that the applications for admission to educational
institutions are generally made by a parent, since on that date many
a time the student may be a minor. It is the parent or the guardian
who may play fraud claiming false status certificate. It is, therefore,      B
necessary that the certificates issued are scrutinised at the earliest and
with utmost expedition and promptitude. For that purpose, it is
necessary to streamline the procedure for the issuance of social status
certific·ates, their scrutiny and their approval, which may be the
following:                                                                   C
    I. The application for grant of social status certificate shall be
    made to the Revenue Sub-Divisional Officer and Deputy Collector
    or Deputy Commissioner and the certificate shall be issued by
    such officer rather than at the Officer, Taluk or Manda! level.

    2. The parent, guardian or the candidate, as the case may be,            D
    shall file an affidavit duly sworn and attested by a competent
    gazetted officer or non-gazetted officer with particulars of castes
    and sub-castes, tribe, tribal community, parts or groups of tribes
    or tribal communities, the place from which he originally hails
    from a_nd other particulars as may be prescribed by the Directorate      E
    concerned.

    J. Application for verification of the caste certificate by the
    Scrutiny Committee shall be filed at least six months in advance
    before seeking admission into educational institution or an
    appointment to a post.                                                   F
    4. All the State Governments shall constitute a Committee of
    three officers, namely, (I) an Additional or Joint Secretary or any
    officer higher in rank of the Director of the department concerned,
    (II) the Director, Social Welfareffribal Welfare/Backward Class
    Welfare, as the case may be, and (III) in the case of Scheduled          G
    Castes another officer who has intimate knowledge in the
    verification and issuance of the social status certificates. In the
    case of the Scheduled Tribes, the Research Officer who h!lS
    intimate knowledge in identifying the tribes, tribal communities,
    parts of or groups of tribes or tribal communities.
                                                                             H
    176                      SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A         5. Each Directorate should constitute a vigilance cell consisting of
          Senior Deputy Superintendent of Police in over-all charge and such
          number of Police Inspectors to investigate into the social status claims.
          The Inspector would go to the local place of residence and original
          place from which the candidate hails and usually resides or in case
          of migration to the town or city, the place from which he originally
B         hailed from. The vigilance officer should personally verify and collect
          all the facts of the social status claimed by the candidate or the parent
          or guardian, as the case may be. He should also examine the school
          records, birth registration, if any. He should also examine the parent,
          guardian or the candidate in relation to their caste etc. or such other
c         persons who have knowledge of the social status of the candidate and
          then submit a report to the Directorate together with all particulars as
          envisaged in the proforma, in particular, of the Scheduled Tribes
          relating to their peculiar anthropological and ethnological traits, deity,
          rituals, customs, mode of marriage, death ceremonies, method of burial
          of dead bodies etc. by the castes or tribes or tribal communities
D         concerned etc.

          6. The Director concerned, on receipt of the report from the vigilance
          officer if he found the claim for social status to be "not genuine" or
          'doubtful' or spurious or falsely or wrongly claimed, the Director
          concerned should issue show-cause notice supplying a copy of the
E         report of the vigilance officer to the candidate by a registered post
          with acknowledgment due or through the head of the educational
          institution concerned in which the candidate is studying or employed.
                                     .
          The notice should indicate that the representation or reply, if any,
          would be made within two weeks from the date of the receipt of the
F         notice and in no case on request not more than 30 days from the date
          of the receipt of the notice. In case, the candidate seeks for an
          opportunity of hearing and claims an inquiry to be made in that
          behalf, the Director on receipt of such representation/reply shall
          convene the committee and the Joint/Additional Secretary as
          Chairperson who shall give reasonable opportunity to the candidate/
G         parent/guardian to adduce all evidence in support of their claim. A
          public notice by beat of drum or any other convenient mode may be
          published in the village or locality and if any person or association
          opposes such a claim, an opportunity to adduce evidence may be
          given to him/it. After giving such opportunity either in person or
H         through counsel, the Committee may make such inquiry as it deems
BANK OF JNDIAv. AVINASHD.MANDIVIKAR[PASAYAT,J.]                      177
expedient and consider the claims vis-a-vis the objections raised· by       A
the candidate or opponent and pass an appropriate order with brief
reasons in support thereof.

7. In case the report is in favour of the candidate and found to be
genuine and true, no further action need be taken except where the
report or the particulars given are procured or found to be false or        B
fraudulently obtained and in the latter event the same procedure as is
envisaged in para 6 be followed.

8. Notice contemplated in para 6 should be issued to the parents/
guardian also in case candidate is minor to appear before the
Committee with all evidence in his or their support of the claim for        C
the social status certificates.

9. The inquiry should be completed as expeditiously as possible
preferably by day-to-day proceedings within such period not exceeding
two months. If after inquiry, the Caste Scrutiny Committee finds the
claim to be false or spurious, they should pass an order cancelling the     D
certificate issued and confiscate the same. It should communicate
within one month from the date of the conclusion of the proceedings
the result of enquiry to the parent/guardian and the applicant.

 I 0. In case of any delay in finalising the proceedings, and in the
meanwhile the last date for admission into an educational institution       E
or appointment to an officer post, is getting expired, the candidate be
admitted by the Principal or such other authority competent in that
behalf or appointed on the basis of the social status certificate already
issued or an affidavit duly sworn by the parent/ guardian/candidate
before the competent officer or non-official and such admission or          p
appointment should be only provisional, subject to the result of the
inquiry by the Scrutiny Committee.

I I. The order passed by the Committee shall be final and conclusive
only subject to the proceedings under Article 226 of the Constitution.

12. No suit or other proceedings before any other authority should          G
lie.

13. The High Court would dispose of these cases as expeditiously as
possible within a period of three months. Jn case, as per its procedure,
the writ petition/miscellaneous petition/matter is disposed of by a         H
    178                        SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A           Single Judge, then no further appeal would lie against that order to
            the Division Bench but subject to special leave under Article 136.

            14. In case, the certificate obtained or social status claimed is found
            to be false, the parent/guardian/the candidate should be prosecuted
            for making false claim. If the prosecution ends in a conviction and
B           sentence of the accused, it could be regarded as an offence involving
          · moral turpitude, disqualification for elective posts or offices under
            the State or the Union or elections to any local body, legislature or
            Parliament.

            15. As soon as the finding is recorded by the Scrutiny Committee
c           holding that the certificate obtained was false, on its cancellation and    '
            confiscation simultaneously, it should be communicated to the               '
                                                                                        t
            educational institution concerned or the appointing authority by
            registered post with acknowledgment due with a request to cancel the
            admission or the appointment. The Principal etc. of the educational
            institution responsible for making the admission or the appointing
D
            authority, should cancel the admission/appointment without any further
            notice to the candidate and debar the candidate from further study or
            continue in office in a post."

          Respondent no. I-employee obtained appointment in the service on the
E   basis that he belonged to Scheduled Tribe. When the clear finding of the
    Scrutiny Committee is that he did not belong to Scheduled Tribe, the very
    foundation of his appointment collapses and his appointment is no appointment
    in the eyes of law. There is absolutely no justification for his claim in respect
    of post he usurped, as the same was meant for reserved candidate.

F         It was urged by learned counsel for the respondent no. I-employee that
    there was no fraud practiced and it was, in fact, under a bona fide belief that
    the claim was made and there is no finding about any fraud having been
    practiced by the employee. The Scrutiny Committee examined the various
    documents and came to a definite conclusion that documents were manipulated
G   to present false claim.

          Stand of the respondent no. I-employee is to the effect that he has put
    in nearly three decades of service and has about three years to go before
    retirement, and in terms of the High Court's order he has been denied
    promoiion. Therefore, the order of the High Court is an equitable order.
H


                                                                                        -
         BANK OF INDIA v. AVINASH D. MANDIVIKAR [PASA YAT, J.]                179

       A similar plea about long years of service was considered by this Court        A
 in R. Vishwanatha Pillai v. State of Kera/a and Ors., [2004] 2 SCC I 05 to
 be inconsequential. In para 19 it was observed:

         "It was then contended by Shri Ranjit Kumar, learned Senior Counsel
         for the appellant that since the appellant has rendered about 27 years
         of service, the order of dismissal be substituted by an order of             B
         compulsory retirement or removal from service to protect the
         pensionary benefits of the appellant. We do not find any substance in
         this submission as well. The rights to salary, pension and other service
         benefits are entirely statutory in nature in public service. The appellant
         obtained the appointment against a post meant for a reserved candidate       C
         by producing a false caste certificate and by playing a fraud. His
         appointment to the post was void and non est in the eye of the law.
         The right to salary or pension after retirement flows from a valid and
         legal appointment. The consequential right of pension.and monetary
         benefits can be given only if the appointment was valid and legal.
         Such benefits cannot be given in a case where the appointment was            D
         found to have been obtained fraudulently and rested on a false caste
         certificate. A person who entered the service by producing a false
         caste certificate and obtained appointment for the post meant for a
         Scheduled Caste, thus depriving a genuine Scheduled Caste candidate
         of· appointment to that post, does not deserve any sympathy or               E
          indulgence of this Court. A person who seeks equity must come with
         clean hands. He, who comes to the court with false claims, cannot
         plead equity nor would the court be justified to exercise equity
         jurisdiction in his favour. A person who seeks equity must act in a
         fair and equitable manner. Equity jurisdiction cannot be exercised in
         the case of a person who got the appointment on the basis of a false         F
         caste certificate by playing a fraud. No sympathy and equitable
         consideration can come to his rescue. We are of the view that equity
         or compassion cannot be allowed to bend the arms of law in a case
         where an individual acquired a status by practising fraud."

        The protection under the Milind's case (supra) cannot be extended to          G
  the respondent no. I-employee as the protection was given under the peculiar
  factual background of that case. The employee concerned was a doctor and
  had rendered long years of service. This Court noted that on a doctor public
  money has been spent and, therefore,. it will not be desirable to deprive the
· society of a doctor's service. Respondent no.I-employee in the present case         H
    180                       SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.
A is a bank employee and the factor which weighed with this Court cannot be
    applied to him.

         We find the conclusions of the High Court to be contradictory. On one
    hand the High Court faulted the reference which was made after about ten
    years and on the other hand accepted the findings of the Scrutiny Committee
B that the respondent no. I did not belong to Scheduled Tribe as was held by
    the Scrutiny Committee. Mere delay in making a reference does not invalidate
    the order of the Scrutiny Committee. If the High Court felt that the reference
    was impermissible because of long passage of time, then that would have
    made the reference vulnerable. By accepting the findings of the Scrutiny
     Committee that the respondent no. I-employee did not belong to Scheduled
C   Tribe, the observations about the delayed reference lose significance. The
    matter can be looked into from another angle. When fraud is perpetrated the
    parameters of consideration will be different. Fraud and collusion vitiate
    even the most solemn proceedings in any civilized system of jurisprudence.
    This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors., JT
D   (2005) 7 SC 530 dealt with effect of fraud. It was held as follows in the said
    judgment:

            "14 .............. Fraud is proved when it is shown that a false
            representation has been made (i) knowingly, or (ii) without belief in
            its truth, or (iii) recklessly, careless whether it be true or false'.
E
            15. This aspect of the matter has been considered by this Court in
            Roshan Deen v. Preeti Lal, (2002] 1 SCC 100; Ram Preeti Yadav v.
            U.P. Board of High School and Intermediate Education [2003] 8
            SCC 311 ), Ram Chandra Singh 's, case (supra) and Ashok Leyland
            Ltd. v. State of TN. and Anr., [2004] 3 SCC I.
F
            16. Suppression of a material document would also amount to a fraud
            on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust,
            (1996] 3 SCC 3 IO and S.P. Chengalvaraya Naidu 's case (supra).

            17. "Fraud" is a conduct either by letter or words, which induces the
G           other person or authority to take a definite determinative stand as a
            response to the conduct of the former either by words or letter.
            Although negligence is not fraud but it can be evidence on fraud; as
            observed in Ram Preeti Yadav 's case (supra).

            18. In Lazarus Estate Ltd. v. Beasley, (1956) I QB 702, Lord Denning
H           observed at pages 712 & 713, "No judgment of a Court, no order of
         BANK OF INDIA v. AVINASH D. MANDIVIKAR [PASAYAT, J.]            181

         a Minister can be allowed to stand if it has been obtained by fraud.   A
         Fraud unravels everything." In the same judgment Lord Parker LJ
         observed that fraud vitiates all transactions known to the law of
         however high a degree of solemnity. (page 722)

         19. These aspects were recently highlighted in the State of Andhra
         Pradesh and Anr. v. r Suryachandr Rao, (2005) 5 SCALE 621"             B
      Therefore, mere delayed reference when the foundation for the same is
alleged fraud does not in any way affect legality of the reference.

      Looked from any angle the. High Court's judgment holding that the
respondent no. I-employee was to be reinstated in the same post as originally   C
held is clearly untenable. The order of termination does not suffer from any
infirmity and the High Court should not have interfered with it. By giving
protection for even a limited period, the result would be that a person who
has a legitimate claim shall be deprived the benefits. On the other hand, a
person who has obtained it by illegitimate means would continue to enjoy it     D
notwithstanding the clear finding that he does not even have a shadow of
right even to be considered for appointment.

     The appeal is allowed but without any order as to costs.

A.K.T.                                                      Appeal allowed.     E