GOMANTAK MAZDOOR SANGHversusSTATE OF GOA & ANR.

                          [2022] 3 S.C.R. 161                            161


                GOMANTAK MAZDOOR SANGH                                   A
                                  v.
                     STATE OF GOA & ANR.
                   (Civil Appeal No.2982 of 2022)
                           MAY 10, 2022                                  B
        [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Minimum Wages Act, 1948 – ss.4, 5 and 10 – Determination /
revision of minimum wages – Errata Notification dated 14.07.2016
issued by the State of Goa in purported exercise of s.10 of the 1948
                                                                         C
Act modifying /correcting its earlier notification dated 23/24.05.2016
– Validity of – Held: Notification dated 23/24.05.2016 was issued
in consultation with the Minimum Wage Advisory Board and
thereafter the minimum wages were revised under clause (i) of sub-
section (1) of s.4 of the 1948 Act after following due procedure as
required u/s.5 – A conscious decision was thus taken by the State        D
Government after consultation with the Minimum Wage Advisory
Board – Therefore, it cannot be said that there was any arithmetical
and/or clerical mistake, which could have been corrected in exercise
of powers u/s.10 of the 1948 Act – Even assuming that the State
was having the power to amend, vary or rescind the notification in
                                                                         E
exercise of powers u/s.21 of the General Clauses Act, in that case
also, when the earlier notification dated 23/24.05.2016 was issued
after following the due procedure as required u/ss.4 and 5 of the
1948 Act, the same procedure ought to have been followed even
while varying and/or modifying the notification – Hence, notification
dated 23/24.05.2016 could not have been modified by an Errata            F
Notification issued in purported exercise of s.10 – Errata
Notification dated 14.07.2016 was wholly without jurisdiction and
contrary to provisions of the 1948 Act, and is thus quashed – Earlier
notification dated 23/24.05.2016, accordingly, restored – General
Clauses Act, 1897 – s.21.
                                                                         G
       Minimum Wages Act, 1948 – s.10 – Fixation / revision of
minimum rate of wages – Notification issued by State Government –
Correction of errors in the notification – Scope – Held: As per s.10,
only the clerical or arithmetical mistakes in any order fixing or
revising minimum rates of wages can be corrected.
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                                 161
162            SUPREME COURT REPORTS                        [2022] 3 S.C.R.


A           Words and Phrases – Expressions “arithmetical error” and
      “clerical error” – Meaning of – Held: An arithmetical mistake is a
      mistake of calculation while a clerical mistake is a mistake in writing
      or typing.
            Allowing the appeal, the Court
B            HELD:1. Vide Notification dated 23/24.05.2016, the State
      Government determined the minimum wages, which included the
      basic rates of wages and the special allowance. The notification
      specifically stated that the said notification has been issued in
      exercise of powers conferred by clause (b) of sub-section (1) of
C     section 3 read with clause (i) of sub-section (1) of Section 4 and
      sub-section (2) of Section 5 of the Minimum Wages Act, 1948. As
      can be seen from the contents of the said notification, the said
      notification was issued in consultation with the Minimum Wage
      Advisory Board and thereafter the minimum wages were revised.
      Thus, the minimum wages were revised under clause (i) of sub-
D     section (1) of Section 4 after following the due procedure as
      required under Section 5. [Para 6][168-C-E]
            2. Once the minimum wages were revised and determined,
      which included the basic rates of wages and the special allowance
      as per Section 4(1)(i) of the Act, 1948, thereafter it cannot be
E     said that there was any clerical and/or arithmetical mistake in
      mentioning clause (i). The minimum wages were revised and
      determined even after consultation with the Minimum Wage
      Advisory Board as required under Section 5 of the Act, 1948.
      Therefore, once there was no mistake, the same could not have
F     been corrected in exercise of powers under Section 10 of the
      Act, 1948. [Para 7][170-B-C]
            3. Even as per Section 10, only the clerical or arithmetical
      mistakes in any order fixing or revising minimum rates of wages
      can be corrected. An arithmetical mistake is a mistake of
G     calculation; a clerical mistake is a mistake in writing or typing.
      An error arising out of or occurring from an accidental slip or
      omission is an error due to a careless or inadvertent mistake or
      omission unintentionally made. [Paras 7.1 and 7.2][170-C-D, F]


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 GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.                       163


     Master Construction Co. (P) Ltd. vs. State of Orissa            A
     and Anr., [1966] 3 SCR 99 – relied on.
      4. In the present case, a conscious decision was taken by
the State Government after consultation with the Minimum Wage
Advisory Board and thereafter the minimum wages were revised
and determined in exercise of power under Section 4(1)(i).           B
Therefore, it cannot be said that there was any arithmetical and/
or clerical mistake, which could have been corrected in exercise
of powers under Section 10 of the Act, 1948. [Para 7.3][170-G-H]
      5. Even by applying Section 21 of the General Clauses Act
and assuming that the State was having power to amend, vary or       C
rescind the notification, in that case also such power can be
exercised in a like manner, namely after following the procedure,
which was followed while issuing the original notification.
Therefore, in the present case, assuming that the State was having
the power to amend, vary or rescind the notification in exercise
of powers under Section 21 of the General Clauses Act, in that       D
case also, when the earlier notification dated 23/24.05.2016 was
issued after following the due procedure as required under
Sections 4 and 5 of the Act, 1948, the same procedure ought to
have been followed even while varying and/or modifying the
notification. Hence, the notification dated 23/24.05.2016 could      E
not have been modified by such an Errata Notification which was
issued in purported exercise of Section 10 of the Act, 1948.
[Para 9][172-E-G]
      6. The Errata Notification dated 14.07.2016 was wholly
without jurisdiction and contrary to the relevant provisions of      F
the Minimum Wages Act, 1948. The Errata Notification dated
14.07.2016 is hereby quashed and set aside and the earlier
notification dated 23/24.05.2016 revising and determining the
minimum wages, which included the basic rates of wages plus
special allowance is hereby restored. [Paras 10, 11][172-G;
173-B-C]                                                             G
                      Case Law Reference
[1966] 3 SCR 99               relied on              Para 3.3

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164            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal No.2982
      of 2022.
           From the Judgment and Order dated 01.08.2016 of the High Court
      of Bombay at Goa in Writ Petition No.710 of 2016.
            Mayank Pandey, Shivraj Gaonkar, Advs. for the Appellant.
B
           Abhay Anil Anturkar, Ms. Bhavya Pande, Dhruv Tank, Dr. R. R.
      Deshpande, M/s Dr. R. R. Deshpande And Associates, Advs. for the
      Respondents.
            The Judgment of the Court was delivered by
C           M. R. SHAH, J.
            1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 01.08.2016 passed by the High Court of Judicature of
      Bombay at Goa in Writ Petition No. 710 of 2016 by which the High
      Court has dismissed the writ petition preferred by the appellant herein in
D     which the appellant herein challenged the validity of the Errata
      Notification dated 14.07.2016 issued by the State of Goa modifying/
      correcting its earlier notification dated 23/24.05.2016 by which the State
      of Goa fixed the rates of minimum wages in various sectors, the appellant
      has preferred the present appeal. `
E
             2. The State of Goa issued a notification dated 23/24.05.2016 in
      exercise of the powers conferred by clause (b) of sub-section (1) of
      section 3 read with clause (i) of sub-section (1) of Section 4 and sub-
      section (2) of Section 5 of the Minimum Wages Act, 1948 (hereinafter
      referred to as the “Act, 1948”) determining the minimum rates of wages
F     payable to the various categories of the employees employed in various
      trades in the Scheduled Employment, which included the basic rates of
      wages plus special allowance. The revised minimum rates of wages as
      per the said notification is as under:-
            “a) Basic rates of wages as set out in Columns (3) of the Schedule,
G           annexed to this notification and payable to the categories of
            employees mentioned against them in Column (2) thereof; and
            b) Government also hereby introduce payment of special allowance
            (hereinafter referred to as variable dearness allowance) in addition
            to the revised minimum rates of wages as notified above at the
H
 GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.                                165
               [M. R. SHAH, J.]

      rate of Rs. 0.95 paise for every point rise or fall beyond 269 points   A
      of All India Consumer Price Index for Industrial Workers base
      year 2001=100. Commissioner, Labour and Employment, Panaji
      shall calculate, adjust and notify such special allowance first time
      on and from 01-10-2016 based on the average All India Consumer
      Price Index for Industrial workers (2001=100) for the period 1st
                                                                              B
      January to 30th June, 2016. Thereafter, Commissioner, Labour
      and Employment, Panaji shall periodically adjust and notify the
      rate of special allowance once in every six months on 1st April
      and 1st October every year based on the average of All India
      Consumer Price Index (2001=100) for the period from July to
      December and January to June of the preceding period                    C
      respectively.”
       2.1 That thereafter the State Government issued the impugned
Errata Notification dated 14.07.2016 under which it corrected the earlier
notification dated 23/24.05.2016. The word clause (i) was substituted as
clause (iii). The relevant part of the said Notification reads as under:-     D

      “PUBLISHED IN OFFICIAL GAZETTE- GOVERNMENT OF
      GOA, (EXTRAORDINARY N0.3) SERIES I No. 15
                       DATED 14TH JULY 2016
                                                                              E
                        Department of Labour
                                 Errata
      24/21/2009-LAB-ll/472
      In the Notifications from the Labour Department published in the        F
      Official Gazette, Series I No. 7 (Extraordinary No. 3) dated 24-5-
      2016 regarding revision of minimum rates of wages, the following
      may be corrected:-
      (1) At page 311, the word “clause (i)” may be read as “clause
      (iii)”.                                                                 G

                           xxxxxxxxxxxxxx”
      At this stage, it is required to be noted that the Act, 1948 allows
the State Government under Section 4(1) to fix the rates of minimum
wages in three different ways as under:-                                      H
166            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A           “(i) a basic rate of wages and a special allowance at a rate to
            be adjusted, at such intervals and in such manner as the
            appropriate Government may direct, to accord as nearly as
            practicable with the variation in the cost of living index number
            applicable to such workers; or
B           (ii) a basic rate of wages with or without the cost of living
            allowance, and the cash value of the concessions in respect of
            supplies of essential commodities at concession rates, where so
            authorised; or
            (iii) an all-inclusive rate allowing for the basic rate, the cost of
C           living allowance and the cash value of the concessions, if any.”
              2.2 The State Government while issuing the notification dated 23/
      24.05.2016 chose the first option and fixed the minimum rates of wages
      plus special allowance. Now, as per the Errata notification dated
      14.07.2016, the State Government fixed the minimum rates of wages as
D     per Section 4(1)(iii) namely an all-inclusive rate, the result and effect
      would be that instead of the basic rate of wages plus special allowance,
      as per the Errata Notificationdated 14.07.2016, there shall be no minimum
      wages plus special allowance, but as per the Errata Notification, the
      minimum wages would be the basic rate of tax – an all-inclusive rate
E     excluding the special allowance.
            2.3 Feeling aggrieved and dissatisfied with the Errata notification
      dated 14.07.2016, the appellant herein preferred the writ petition before
      the High Court. It was the case on behalf of the State before the High
      Court that there was a mistake while issuing the notification dated 23/
F     24.05.2016 and instead of clause (iii) clause (i) was mentioned and
      therefore, by the subsequent Errata Notification, the same has been
      corrected. The High Court accepted the same and by the impugned
      judgment and order, the High Court has dismissed the said writ petition.
            2.4 Feeling aggrieved and dissatisfied with the impugned judgment
G     and order passed by the High Court dismissing the writ petition, the
      original writ petitioner has preferred the present appeal.
             3. Shri Mayank Pandey, learned counsel appearing on behalf of
      the appellant has vehemently submitted that the High Court has committed
      a grave error in holding that there was a mistake while issuing the first
H
 GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.                                  167
               [M. R. SHAH, J.]

notification dated 23/24.05.2016 in which by mistake instead of clause          A
(iii), clause (i) was mentioned.
       3.1 It is submitted that as such the notification dated 23/24.05.2016
was issued after following due procedure as required under Section 4
read with Section 5 of the Act, 1948. It is submitted that as such there
was a conscious decision,as after the draft notification was                    B
published,objections were invited and considered and thereafter the
notification was issued determining the minimum rates of wages, which
included the basic rates of wages plus special allowance. In support of
above, learned counsel appearing on behalf of the appellant has heavily
relied upon paras 8 and 9 of the counter filed before this Court. It is         C
submitted that in that view of the matter and as there was no mistake
either clerical and/or arithmetical, even in exercise of power under Section
10 of the Act, 1948, the same could not have been corrected unless a
fresh procedure as required under Section 4/5 has been followed. Reliance
is placed on Section 21 of the General Clauses Act.
                                                                                D
       3.2 It is submitted that accordingto the respondent State, there
was a clerical error, which has been corrected vide Errata Notification
dated 14.07.2016. It is submitted that if the original notification dated 23/
24.05.2016 is considered, it can be seen that a conscious decision was
taken while determining the minimum wages and the minimum wages
were fixed as per Section 4(1)(i). It is contended that therefore, once a       E
conscious decision was taken, it cannot be said that there was any clerical
mistake, which could have been corrected in exercise of the powers
under Section 10 of the Act, 1948.
      3.3 Learned counsel appearing on behalf of the appellant has
heavily relied upon the decision of this Court in the case of Master            F
Construction Co. (P) Ltd. Vs. State of Orissa and Anr., (1966) 3
SCR 99 on what can be said to be an arithmetical and/or clerical error.
      Making the above submissions, it is prayed to allow the present
appeal.
                                                                                G
       4. Shri Abhay Anil Anturkar, learned counsel appearing on behalf
of the respondent State has tried to support the impugned judgment and
order passed by the High Court as well as the Errata Notification dated
14.07.2016.
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168                SUPREME COURT REPORTS                       [2022] 3 S.C.R.


A            4.1 It is submitted that as such when the draft notification was
      issued, clause (iii) of Section 4(1) was under consideration. However,
      by mistake, thereafter when the notification was issued clause (i) of
      Section 4(1) was mentioned and therefore, the same was corrected in
      exercise of the powers under Section 10 of the Act, 1948. It is urged
      that Section 10 of the Act, 1948 permits the correction of a clerical or
B
      arithmetical mistake in any order fixing or revising the minimum rates of
      wages. It is submitted that therefore the High Court has rightly dismissed
      the writ petition.
             5. We have heard the learned counsel appearing for the respective
C     parties at length.
             6. Vide Notification dated 23/24.05.2016, the State Government
      determined the minimum wages, which included the basic rates of wages
      and the special allowance. The notification specifically stated that the
      said notification has been issued in exercise of powers conferred by
D     clause (b) of sub-section (1) of section 3 read with clause (i) of sub-
      section (1) of Section 4 and sub-section (2) of Section 5 of the Act,
      1948. As can be seen from the contents of the said notification, the said
      notification was issued in consultation with the Minimum Wage Advisory
      Board and thereafter the minimum wages were revised. Thus, the
      minimum wages were revised under clause (i) of sub-section (1) of
E     Section 4 after following the due procedure as required under Section 5.
      Sections 4 and 5, which are relevant for our purpose are extracted
      asunder:-
                  “4. Minimum rate of wages.—(1) Any minimum rate of
            wages fixed or revised by the appropriate Government in respect
F           of scheduled employments under Section 3 may consist of—
            (i)      a basic rate of wages and a special allowance at a rate to
                     be adjusted, at such intervals and in such manner as the
                     appropriate Government may direct, to accord as nearly as
                     practicable with the variation in the cost of living index
G
                     number applicable to such workers (hereinafter referred to
                     as the “cost of living allowance”); or
            (ii)     a basic rate of wages with or without the cost of living
                     allowance, and the cash value of the concessions in respect
H
GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.                               169
              [M. R. SHAH, J.]

           of supplies of essential commodities at concession rates,        A
           where so authorised; or
   (iii)   an all-inclusive rate allowing for the basic rate, the cost of
           living allowance and the cash value of the concessions, if
           any.
                                                                            B
          (2) The cost of living allowance and the cash value of the
   concessions in respect of supplies of essential commodities at
   concession rates shall be computed by the competent authority at
   such intervals and in accordance with such directions as may be
   specified or given by the appropriate Government.
                                                                            C
          5. Procedure for fixing and revising minimum
   wages.—(1) In fixing minimum rates of wages in respect of any
   scheduled employment for the first time under this Act or in revising
   minimum rates of wages so fixed, the appropriate Government
   shall either—
                                                                            D
   (a)     appoint as many committees and sub-committees as it
           considers necessary to hold enquiries and advise it in respect
           of such fixation or revision, as the case may be, or
   (b)     by notification in the Official Gazette, publish its proposals
           for the information of persons likely to be affected thereby     E
           and specify a date, not less than two months from the date
           of the notification, on which the proposals will be taken into
           consideration.
          (2) After considering the advice of the committee or
   committees appointed under clause (a) of sub-section (1) or, as          F
   the case may be, all representations received by it before the date
   specified in the notification under clause (b) of that sub-section,
   the appropriate Government shall, by notification in the Official
   Gazette, fix, or, as the case may be, revise the minimum rates of
   wages in respect of each scheduled employment, and unless such           G
   notification otherwise provides, it shall come into force on the
   expiry of three months from the date of its issue:
          Provided that where the appropriate Government proposes
   to revise the minimum rates of wages by the mode specified in
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170             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A           clause (b) of sub-section (1), the appropriate Government shall
            consult the Advisory Board also.”
             7. Therefore, once the minimum wages were revised and
      determined, which included the basic rates of wages and the special
      allowance as per Section 4(1)(i) of the Act, 1948, thereafter it cannot be
B     said that there was any clerical and/or arithmetical mistake in mentioning
      clause (i). The minimum wages were revised and determined even after
      consultation with the Minimum Wage Advisory Board as required under
      Section 5 of the Act, 1948. Therefore, once there was no mistake, the
      same could not have been corrected in exercise of powers under Section
C     10 of the Act, 1948.
             7.1 Even as per Section 10, only the clerical or arithmetical mistakes
      in any order fixing or revising minimum rates of wages can be corrected.
      Section 10 of the Act, 1948 reads as under:-
            “10. Correction of errors.—(1) The appropriate Government
D           may, at any time, by notification in the Official Gazette, correct
            clerical or arithmetical mistakes in any order fixing or revising
            minimum rates of wages under this Act, or errors arising therein
            from any accidental slip or omission.
            (2) Every such notification shall, as soon as may be after it is
E
            issued, be placed before the Advisory Board for information.”
            7.2 What can be said to be an arithmetical or clerical error has
      been dealt with and considered by this Court in the case of Master
      Construction Co. (P) Ltd. (supra). It is observed and held that an
F     arithmetical mistake is a mistake of calculation; a clerical mistake is a
      mistake in writing or typing. An error arising out of or occurring from an
      accidental slip or omission is an error due to a careless or inadvertent
      mistake or omission unintentionally made.
            7.3 In the present case, as observed hereinabove, a conscious
G     decision was taken by the State Government after consultation with the
      Minimum Wage Advisory Board and thereafter the minimum wages
      were revised and determined in exercise of power under Section 4(1)(i).
      Therefore, it cannot be said thattherewas any arithmetical and/or clerical
      mistake, which could have been corrected in exercise of powers under
      Section 10 of the Act, 1948.
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 GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.                                 171
               [M. R. SHAH, J.]

       7.4 At this stage, it is required to be noted that in theErrata         A
Notification dated 14.07.2016, as such nothing has been mentioned as to
under which provisionof law, the said notification has been issued. Only
from the submission on behalf of the State beforethe High Court, the
State has come out with a case that there was a clerical mistake, which
is corrected by the Errata Notification. Therefore, we presume that the
                                                                               B
Errata notification has been issued in exercise of powers under Section
10 of the Act, 1948. As observed hereinabove, as such, there was no
clerical mistake at all and a conscious decision was taken while issuing
the notification dated 23/24.05.2016 and therefore, the same could not
have beencorrected in exercise of powers under Section 10 of the Act,
1948.                                                                          C
       8. Even from the counter affidavit filed on behalf of the respondent
before this Court, it is crystal clear that when the earlier notification
dated 23/24.05.2016 was issued, the same was issued after due application
of mind and after the draft notification was issued in which the minimum
wages were sought to be revised as per Section 4(1)(iii). However, after       D
the objections and suggestions were invited, the LabourUnion submitted
their representations and then a final decision was taken to revise the
minimum wages as per Section 4(1)(i). In paragraphs 8,9 and 10, it is
stated as under:-
      “8. That, the Respondent No. 1 in exercise of the powers conferred       E
      by clause(b) of Sub-Section (1) of Section 3, read with clause (iii)
      of Sub-Section (1) of Section 4 and Section 5 (1) (b) of the Minimum
      Wages Act, 1948, published a Draft Notification in the Official
      Gazette, Series I, No. 9, dated 28/05/2015 in Order to consider
      objections, suggestions, and representations by the Respondent           F
      No. 1 from all the concerned stakeholders.
      9. That, I state that at this stage, the representatives of the Labour
      Union objected to the draft Notification by putting forth their views
      for introduction of a special allowance in the form of ‘Variable
      Dearness Allowance’ (VDA). That, the deliberations continued             G
      over a long period of time thereby resulting in delay in issuing the
      Final Notification for minimum wages.
      10. That, I further state that taking into consideration the demand
      and need for introduction of special allowances in the form of
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172            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A           Variable Dearness. Allowance (VOA) and the delay caused in
            the deliberations resulting in hike in Consumer Price Index and to
            avoid any further delay, the State Government had in the Final
            Notification raised the minimum rates of wages proposed in Draft
            Notification and also provided for introduction of VOA to be
            notified for the first time in October 2016, and the same was to be
B
            revised every six months i.e. in the month of October and April
            each year.”
             8.1 Therefore, considering paragraphs 8 to 10 of the counter, even
      according to the State, after the representation of the Labour Union,
C     which objected to the draft notification by putting forth their views for
      introduction of a special allowance in the form of ‘Variable Dearness
      Allowance’ and after due deliberations for a longer period of time, the
      final notification was issued determining the minimum wages with special
      allowance. Therefore, subsequent case on behalf of the State that under
      the notification dated 23/24.05.2016, there was a clerical mistake by
D     mentioning clause (i), which was corrected by issuing the subsequent
      Errata Notification cannot be accepted.
             9. Even by applying Section 21 of the General Clauses Act and
      assuming that the State was having power to amend, vary or rescind the
      notification, in that case also such power can be exercised in a like
E     manner, namely after following the procedure, which was followed while
      issuing the original notification. Therefore, in the present case, assuming
      that the State was having the power to amend, vary or rescind the
      notification in exercise of powers under Section 21 of the General Clauses
      Act, in that case also, when the earlier notification dated 23/24.05.2016
F     was issued after following the due procedure as required under Sections
      4 and 5 of the Act, 1948, the same procedure ought to have been followed
      even while varying and/or modifying the notification. Hence, the
      notification dated 23/24.05.2016 could not have been modified by such
      an Errata Notification which was issued in purported exercise of Section
      10 of the Act, 1948.
G
            10. Therefore, we are of the opinion that the Errata Notification
      dated 14.07.2016 was wholly without jurisdiction and contrary to the
      relevant provisions of the Minimum Wages Act, 1948, which ought to
      have been set aside by the High Court. The High Court has erred in
      dismissing the writ petition challenging the Errata Notification dated
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 GOMANTAK MAZDOOR SANGH v. STATE OF GOA & ANR.                               173
               [M. R. SHAH, J.]

14.07.2016 by accepting the case on behalf of the State that there was       A
a clerical mistake, which is subsequently corrected by the Errata
Notification.
       11. In view of the above and for the reasons stated above, present
appeal succeeds. The impugned judgment and order passed by the High
Court dismissing the writ petition is hereby quashed and set aside. The      B
subsequent Errata Notification dated 14.07.2016 is hereby quashed and
set aside and the earlier notification dated 23/24.05.2016 revising and
determining the minimum wages, which included the basic rates of wages
plus special allowance is hereby restored.
      Present appeal is allowed accordingly. However, in the facts and       C
circumstances of the case, there shall be no order as to costs.


Bibhuti Bhushan Bose                                       Appeal allowed.

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