Anhad law

Employment Law Updates

NOTIFICATIONS BY CENTRAL GOVERNMENT

 

Constitution of Committees from framing draft schemes under the SS Code

On June 2, 2023, the EPFO constituted 3 (three) different committees for framing the draft schemes as mandated under the Section 15 of the Social Security Code, 2020 (“SS Code“), namely: (a) Employees’ Provident Fund Scheme; (b) Employees’ Pension Scheme and (c) Employees’ Deposit Linked Insurance Scheme. The first draft of the said schemes to be submitted by the respective committees to the Central Provident Fund Commissioner (CPFC) by June 23, 2023. The details of the committees may be accessed by clicking on the following link: https://www.epfindia.gov.in/site_docs/PDFs/Circulars/Y2023-2024/CommitteeSSCode-95074.pdf.

 

Couple of Indian Origin for the purpose of Surrogacy Rules

On June 8, 2023, the Ministry of Health and Family Welfare by framing the Surrogacy (Regulation) Amendment Rules, 2023 provided the definition of “Couple of Indian Origin” under the Surrogacy (Regulation) Rules, 2022 (“Surrogacy Rules“). After clause (a) of the Surrogacy Rules, clause (aa) has been inserted, namely,

Couple of Indian Origin means the couple where both husband (male) and wife (female) are Overseas Citizens of India cardholders in accordance with the Acts/Rules/Instructions/Guidelines being followed by the Ministry of Home Affairs from time to time subject to fulfillment of various criteria as per the Surrogacy (Regulation) Act, 2021“.

 

New standards for public buildings

On June 5, 2023, the Ministry of Social Justice and Empowerment amended the Rule 15 of the Rights of Persons with Disabilities Rules, 2017 (“Disability Rules“) by introducing the Rights of Persons with Disabilities (Amendment) Rules, 2023. As per the said amendment the standard for public buildings of 2016 as contained under clause (a) of the Rule 15 of the Disability Rules shall be replaced by the “standard for public buildings as specified in the Harmonised Guidelines and Standards for Universal Accessibility in India – 2021, notified by the Government of India in the Ministry of Housing and Urban Affairs, vide notification number O-17/4/2022-works-3-UD dated the 18th October, 2022, as amended from time to time.

 

Revised instructions for validation of option/joint options for higher pension

 On June 14, 2023, the Employees’ Provident Fund Organisation (“EPFO“) after observing that join request/undertaking/permission under Para 26(6) of the Employees’ Pension Scheme, 1995 (“Pension Scheme“), are not readily available with most of the applicants who have filed applications for validation of option/joint options covered under the Hon’ble Supreme Court judgment dated November 4, 2022, EPFO and ors. vs. Sunil Kumar B. CA N. 8143-8144/2022, introduced the following roadmap to be followed by the field officers for verifying the applications: 

  • Employer share of provident fund contribution has been remitted on employee’s pay exceeding the prevalent statutory wage ceiling of INR 5000/6500/15000 per month from day the pay exceeds the wage ceiling or November 16, 1995, whichever is later, till date/ till the date of retirement or superannuation as the case may be; and
  • Administrative charges payable by employer have been remitted on such higher wages; and
  • Provident fund account of an employee has been updated with interest as per Para 60 of the Employees’ Provident Fund Scheme, 1952, on the basis of such contribution received; and
  • Any of the following documents have been submitted along with applications for validation of option/joint options as proof of joint option and permission under Para 26(6) of the Pensions Scheme:
  1. Wage details submitted by the employer along with the applications for validation of option/joint options;
  2. Any salary slip/letter from employer authenticated by employer;
  3. Copy of joint request and undertaking from employer;
  4. Letter from EPFO issued prior to November 4, 2022, indicating provident contribution on higher wages.

Further details may be accessed by clicking on the following link:

https://www.epfindia.gov.in/site_docs/PDFs/Circulars/Y2023-2024/Circular_%20Penion_26(6)_14062023.pdf

 

Guidelines to meet the timelines for scrutinizing application for higher pension

On June 2, 2023, the EPFO directed all its Central Provident Fund Commissioners (CPFCs’) of zonal officer and Regional Provident Fund Commissioners (RPFCs’) of regional offices to expeditiously scrutinize application of joint option within 20 (twenty) days of its receipt in the login of the dealing assistant and ensure that demand letter to employer/communication to employer is issued for providing the any additional proof or evidence or correct any mistakes/errors (including made by employers/pensioners) in respect of each application. Further details may be accessed by clicking on the following link: https://www.epfindia.gov.in/site_docs/PDFs/Circulars/Y2023-2024/PensionPoHWPartFile-101123Scrutiny-e-103310-1375.pdf

 

ESIC online registration through MCA portal and inspection of the units

On June 2, 2023, the Employees’ State Insurance Corporation (“ESIC“) in view of receiving concerns from the employers registered through the Ministry of Corporate Affairs (“MCA“) portal having zero employees on their roll that the ‘dormant option’ is not reflecting on their employer ID and therefore they are unable to exercise the dormant option on the portal, clarified that portal has been developed in such a manner that companies registered in ESIC through MCA portal have to declare the status of the company within 6 (six) months of registration to avoid defaulter action. Also, before the end of the ‘inactive’ mode, the company can further extend the inactive mode for 6 (six) months and continue to extend in similar manner as per the status of the company. The option of declaring the ‘inactive mode’ is not available to employer after the expiry of 6 (six) months.

 

Method of calculation of higher pension

On June 1, 2023, the EPFO released the method of computation of pension in accordance with the Pension Scheme in respect to employees exercised option/joint options, which are as follows:

 

  • In cases found eligible for pension on higher wages where the date of commencement of pension is prior to September 1, 2019, the pension will be calculated on the average monthly pay drawn during contributory period of service in the span of service of 12 (twelve) months preceding the date of exit from the membership of the pension fund;
  • In cases found eligible for pension on higher wages where the date of commencement of pension is post September 1, 2019, the pension will be calculated on the average monthly pay drawn during contributory period of service in the span of 60 (sixty) months preceding the date of exit from the membership of the pension fund.

 

NOTIFICATIONS STATE SPECIFIC

 

GOA

Minimum Wages Goa

On May 30, 2023, the Government of Goa revised the minimum rates of wages of employees engaged in scheduled employment which shall be effective from April 1, 2023, in the entire state of Goa.  

 

GUJARAT

SOP’s for elimination of child labour

On June, 12, 2023, the Officer of Labour Commissioner of Gujarat released the Standard Operating Procedure (“SOP’s“) for elimination of child labour in Gujarat and for effective implementation of the Child and Adolescent Labour (Prohibition and Regulation) Act, 2016. The SoP’s contains the following 4 (four) chapters, namely: (a) legal framework for elimination of child labour; (b) pre-rescue, rescue and post rescue process; (c) legal provisions and (d) procedure to be followed in specific situations.

 

MAHARASHTRA

Minimum Wages in Maharashtra

On June 7, 2023, the Labour Department of Maharashtra revised the basic minimum rates of wages payable to workers employed in the construction or maintenance of roads or in building operations which shall be effective from June 7, 2023, in the entire state of Maharashtra.

 

RELEVANT CASES

 

KARNATAKA HIGH COURT – Disputes arising out of the employment agreement cannot be filed before the commercial court

In Mr. Sanjay Kumar vs. Elior India Food Services LLP, WP No. 2584/2023, the Karnataka High Court vide its judgment dated June 2, 2023, while answering to the question as to whether an employment agreement would come within the meaning of Section 2(1)(c)(xviii) of the Commercial Courts Act, 2015 for the agreement to become a commercial dispute, observed that a pure and simple employment contract cannot be given a colour of a commercial dispute by dressing it to be a provision of services. If every employment agreement of the kind that is the subject matter in the case at hand is brought within the ambit of commercial dispute, it would then be opening a pandoras’ box or will be opening flood gates of litigation before the commercial court/s that would clog the said court. In the present case the Court observed that what the employee’s claims is the incentive that was assured in the agreement. The agreement is an offshoot of the employment agreement. Therefore, it cannot but be held to be a contract of employment or a contract of incentive. It is a money claim arising out of an employment agreement.

 

BOMBAY HIGH COURT – Sales, services and repairs of computers and software development are manufacturing process for the purpose of applicability of the ESI Act

In Academy of Computer Technology vs. The Deputy Director, Employees State Insurance Corporation FA No. 199/2009, the Bombay High Court, observed that institute of computer technology engaged in imparting computer education carrying the activities not only of training, but dealing with sales, services and repairs and dealing with development of software and networking are covered under the definition of manufacturing process under Section 2(a) of the Factories Act and therefore, the institution is covered under the ESI Act and liable to pay the contribution. In this regard, the Court has relied on its own judgment given in the Assistant Director Employees’ State Insurance Corporation and ors. vs. M/s. Western Outdoor Interactive Pvt. Ltd. of 2012, wherein it was held that the Factories Act was enacted in year 1948 and at the relevant time, use of computer and software was aliened to the legislature. Naturally, the words which are more appropriate precisely defining the activities carried on with the help of computers that is development of software, programming of data were unknown or nor in practice. Therefore, though computer related activities like development, programming and applications are not mentioned in the definition and to that effect there is no amendment in the section, the definition takes care of activities like development and application.

 

KERALA HIGH COURT – The amount of gratuity is calculated from the day it becomes payable and not from the date of disbursement

In K. Rajendra Prasad vs. State of Kerala WP(C) No. 19171/2012, the Kerala High Court vide its judgment dated May 22, 2023, while rejecting the employee’s claim of maximum gratuity of INR 10,00,000/- (Indian Rupees Ten Lakhs) with effect from May 17, 2010 [due to insertion of Payment of Gratuity (Amendment) Act, 2010, under the Section 4 of the Payment of Gratuity Act, 1972 (“Gratuity Act“)], observed that the gratuity shall be payable to an employee on the termination of his employment. The employment of the employee was terminated on May 31, 2002, on his superannuation from service. The gratuity thus became payable to the employee with effect from superannuation date. In the present case the employee had an option to claim gratuity either under the Gratuity Act or under the service rules. The Court observed that even if it is assumed that the employee’s claim for gratuity was under the Gratuity Act, the maximum amount of gratuity payable under the Gratuity Act has to be determined with respect to the date on which the gratuity became payable and not on the date on which sanction was accorded for payment of employer.

 

Disclaimer: The contents of the above publication are based on interpretation, analysis and understanding of applicable laws and updates in law, within the knowledge of authors. Readers should take steps to ascertain the current developments given the everyday changes that may be occurring in India on internationally on the subject covered hereinabove. This is not a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law or as may be relevant for a reader. No reader should act on the basis of any statement made above without seeking professional and up-to-date legal advice.

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Manishi Pathak

ANHAD LAW MANISHI PATHAK

Expertise

Anti-Bribery & Anti-Corruption | Dispute Resolution | Environmental, Social and Governance (ESG) | Employment & Labour | Corporate, Commercial and Regulatory | Government Relations | Mergers & Acquisitions

Manishi Pathak is the Founder and Managing Partner of ANHAD LAW.

Manishi has experience of over three decades. His areas of practice include dispute resolutions, labour and employment, corporate investigations, compliance audit and investigation into non-compliance of anti-bribery and anti-corruption laws, besides advisory and transactional supports on matters involving other corporate and commercial laws.

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Manishi is also known for his expertise in the area of mergers and acquisitions/ joint ventures, corporate restructuring and re-organizations besides his government relations work. 

He has been appreciated by clients for his hands-on approach and for providing solution-oriented sound legal advice which is commercially and practically tenable. He is also known for offering unique blend of analytical thinking and business strategy, while structuring, negotiating and closing complex commercial transactions and resolution of disputes including mediation and arbitration.

Manishi also has vast experience of delivering advisory support in areas of law, including but not limited to contentious commercial disputes, regulatory compliances (involving exchange control regulations in addition to other regulatory matters), compliance advisory under various corporate and commercial laws, rules etc. (under applicable Central and/or State). 

Manishi’s primary area of interest and specialization besides dispute resolution and government relations is Labour and Employment laws. He enjoys a distinguished status and standing in the sphere of Labour and Employment law practice. He is widely recognized as a ‘top ranked specialist’ in this area of practice owing to his deep knowledge and vast experience of dealing with range of matters in the domain of labour and employment laws practice including court litigation and appellate work. 

Manishi has retained most top accolades on offer by leading global legal ranking bodies such as Chambers & Partners, Legal 500 etc., in the field of Labour and Employment laws in India. For over last decade, Manishi and he been retained title of ‘Top Ranked’ ‘Leading Practitioner’, ‘Specialist’, owing to established expertise and in-depth knowledge he possesses in the sphere of Labour and Employment laws practice in India. 

Manishi is considered to be one of the first legal professionals who identified the scope, ambit and applicability of various central and state specific labour and employment legislations in India, while making foreign and Indian multinational corporations having business presence in India recognize the importance of compliance to various labour and employment laws related legislations in India. 

Undisputedly, in the context of Indian scenario, Manishi is regarded as the legal professional who played a pivotal role that lead to recognition and acceptance of ‘labour and employment’ laws as a prominent and established area of practice, amongst other practice areas. 

As the practice head, Manishi is actively involved in advising on a wide range of labour laws related queries, preparation and standardization of employment agreements and other agreements such as non-compete and non-solicitation agreement, non-disclosure and confidentiality agreements, HR policies/handbooks/manuals etc., including structuring of ESOPs, closure of businesses, termination/transfer of employees, other termination related issues, trade union related disputes, social security and/or insurance claims, etc. The Firm predominantly represents companies/corporations and their management on employment related projects and litigation.

Manishi also leads members of the firm on matters involving employment audits, whistle-blower investigations, closure of establishments, transfer of business and undertakings, sexual harassment complaints, employer and employee rights and matters involving trade unions. He is also known for his involvement in investigations and/or enquiries concerning employees including in matters of misconduct by employees and/or associated parties. 

Prior to founding Anhad Law, Manishi has been the Partner of other renowned law firms of India.

Manishi has considerable experience of representing clients belonging to manufacturing as well as services business, across varied sectors including but not limited to automobiles, aviation, banking, chemicals, commerce, electronics, FMCG, information technology, paper, packaging, pharmaceuticals, ports, real estate, retail and telecommunications, amongst others.

Chambers and Partners lists Manishi in Band 1 for Employment Law and he has been recognised as a leading employment law specialist in India since 2013. They have provided the following comments as well: Manishi Pathak commands ‘great respect in the employment market,’ clients valuing him especially as a ‘very experienced partner who brings a lot of insight to particularly complex employment issues.’ He offers significant expertise in the handling of the employment aspects of M&A transactions and in advising international clients on ensuring that their operations comply with Indian employment laws.  Chambers and Partners ranked Manishi as a New Delhi based recognized practitioner in the area of Corporate/M&A for the years 2014 and 2015. He has been ‘Top Ranked’ for 2022 by Chambers and Partners (Asia-Pacific).   Chambers Global ranked him as a New Delhi based recognized practitioner in the area of Corporate/M&A for the year 2014 and 2015.  Asia Law Profiles 2022 has ranked him as an “Elite Practitioner’ for Labour & Employment Law in India. He was also earlier listed by Asia Law Profiles in 2017, 2019 and 2020.  He has been listed in the Who’s Who Legal of Indian practitioners in the field of Labour & Employment law since 2009.  Legal 500 has further recognised him amongst India’s leading lawyers for the last several years including 2021. 

He has authored several publications on Indian Labour & Employment law for Kluwer Law and Law Business Research and he writes and speaks regularly on a range of subjects, including foreign investment in India and Labour and Employment law. 

Some of his prominent publications include “Restrictive Covenants” (India Chapter) by Kluwer Law Publication; “Hiring and retaining Talent” (India Chapter) by Kluwer Law Publication; “Getting The Deal Through (Labour & Employment)”, India Chapter by Law Business Research; Labour and Employment Compliance in India, 9 editions, published by Kluwer Law since 2008 including of 2021. 

He has also authored “India Chapter on Employment Law in the Employment Law Review” by Law Business Research since 2010 -15. Manishi also contributed to National Law School Publication (Business Law Review) “An overview of contract labour related laws in India”. He has also contributed to the World Bank Group‘s publication Employing Workers 2021. 

Manishi is a member and was an officer of the Employment and Industrial Relations Law Committee of the International Bar Association (IBA). He is also a member of the Delhi High Court Bar Association and Inter Pacific Bar Association (IPBA).

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  4. You agree not to access the Website by any means other than through a standard web browser on a computer or mobile device. You further agree that you will not damage, disable, alter, overburden, or impair the Website or interfere with any other party’s use and enjoyment of it.
  5. In the event you are accessing the Website on a shared computer/ mobile device, we would strongly recommend that you clear your recent browsing history, cookies and cache from your internet browser and re-access the Website so that you may review our disclaimer and accept the Terms of Use. Anhad Law disclaims all liability in the event of non-compliance on part of the user in this regard.
  6. The Content available on the Website is intended to be a general information resource and is provided solely on an “AS IS” and “AS AVAILABLE” basis. Information provided on the Website is believed to be reliable when posted, but there is no guarantee that it is accurate or complete or current at all times. The Website is a resource for informational purposes only and is intended, but not promised or guaranteed, to be correct, complete, and up-to-date. Anhad Law does not warrant that the information contained on this Website is accurate or complete, and hereby disclaims any and all liability to the User or any other person for any loss or damage caused by errors or omissions, regardless of whether such errors or omissions result from negligence, accident or any other cause. Further, Anhad Law assumes no liability for the interpretation and/or use of the information contained on this Website, nor does it offer a warranty of any kind, either expressly or impliedly. You are encouraged to confirm the information contained herein. You should not construe Anhad Law publication of the Content as a warranty or guarantee of the quality or availability of any services or the accuracy, completeness or reliability of the Content or any part thereof.
  7. The Website may contain links to websites operated by other parties. Anhad Law provides these links to other websites as a convenience, and use or access of these sites is at solely your own risk. The linked sites are not under the control of Anhad Law, and Anhad Law is not responsible for the content available on such sites. Such links do not imply Anhad Law’s endorsement of information or material on any other site and Anhad Law disclaims all liability with regard to your access to and use of such linked Websites and the consequences of such access or use. Anhad Law does not intend that the links from this Website to other internet websites, be considered referrals to, endorsements of, or affiliations with the linked entities. Anhad Law is not responsible for, and makes no representations or warranties (i) the contents of the websites to which links may be provided from this Website, or (ii) other such websites or links may be active or always available. You must review and agree to the terms and conditions of these sites before using these sites.
  8. Maps are published by Google and sourced under an open license. The boundaries and names shown and the designations used do not necessarily imply the expression of opinion on the part of Anhad Law or its personnel in respect of the legal status of any geographic region, frontier, or boundaries.
  9. You must not link to Anhad Law’s Website without a written agreement between you and Anhad Law authorizing you to do so.
  10. Unauthorized use of any Anhad Law trademark, service mark or logo are prohibited, and may be a violation of applicable trademark laws.
  11. The website and all content on the website are provided to you on an “AS IS” and “AS AVAILABLE” basis without making warranty of any kind either express or implied, representations, endorsements or conditions with respect to the Website or the information, including but not limited to any implied warranties as to usefulness, completeness, accuracy, correctness, reliability fitness for a particular purpose, and non-infringement. Anhad Law makes no warranty as to the accuracy, completeness or reliability of any Content available through the website. You are responsible for verifying any Content or information before relying on it. Use of the Website and the Content available on the Website is at your sole risk.
  12. Anhad Law makes no representations or warranties that the Website will be available or will meet the user(s) requirements, that access/use of the website will be uninterrupted, that there will be no delays, failures, errors or omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted or that no damage will occur to user’s computer system. You have the sole responsibility for adequate protection and backup of data and/or equipment and to take reasonable and appropriate precautions to scan for computer viruses or other destructive properties.
  13. The User understands that the Website is used by him/her solely at his/her own risk, cost and liability. To the maximum extent permitted by applicable law, Anhad Law disclaims all liability, whether based in contract, tort (including negligence), strict liability or otherwise, and further disclaims the user or anyone else for any loss, damages or other amounts whatsoever (including but not limited to direct, indirect, incidental, special, consequential, exemplary or punitive damages) arising out of or in connection with user’s use of or inability to use the Website or the information contained therein/Content , or any action or decision made by user in reliance on the Website or the information contained therein, or any unauthorized use or reproduction of the Website or the information therein, even if Anhad Law has been advised of the possibility of such damages.
  14. You agree to indemnify, defend and hold Anhad Law, its subsidiaries, and affiliates, and their respective officers, agents, members, partners, associates, directors, consultants and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, due to or arising out of your use of the Website and/or breach of these Terms of Use.
  15. Copyright © 2021 Anhad Law, All rights reserved – The Website is protected by applicable copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Website, or individual sections of the content, design or layout of the Website, without Anhad Law’s express prior written permission.
  16. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to us via our contact form:
  17. (i) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is claimed to be infringed; (ii) A description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) A description of where the material that you claim is infringing is located on the Site (providing URL(s) in the body of the communication is the best way to help Anhad Law locate content quickly); (iv) Your name, address, telephone number and e-mail address; A signed statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (v) A statement by you, made under penalty of perjury, that the information provided in your Notice is accurate and that you are the copyright or intellectual property owner or licensee or authorized to act on the copyright or intellectual property owner’s or licensee’s behalf. You can write to us at:Email ID: delhi@anhadlaw.com
  18. Anhad Law may, in its sole discretion, disable and/or terminate use of or access to the Website by users who infringe the intellectual property of others or of Anhad Law. The user agrees that Anhad Law with or without any reason, may immediately terminate his/her access to the Website without prior notice. Without limiting the foregoing, Anhad Law may terminate or temporarily suspend his/her access to the Website if he/she (a) breaches or violates these Terms, (b) there is a request by law enforcement or other government agencies, or (c) in case of unexpected technical issues or problems.
  19. Users agree that all terminations of access to the Website shall be made at the sole discretion of Anhad Law, and that Anhad Law shall not be liable in any manner whatsoever to either him/ her or any third-party for any termination of access to this Website.
  20. By agreeing to these terms, you acknowledge that Anhad Law may collect, use and disclose your information as described in our Privacy Policy, also available on the Website.
  21. If any provision of these Terms of Use is held to be illegal, invalid or unenforceable, such provision shall be disregarded and the remaining provisions shall remain in full force.
  22. Anhad Law’s failure to act or delay in acting with respect to any failure by you or others to comply with these Terms of Use does not waive or limit its right to act with respect to that, subsequent or similar failures.
  23. Terms of Use set forth the entire understanding and agreement between you and Anhad Law with respect to the subject matter hereof.
  24. Any cause of action or claim you may have with respect to these Terms of Use or the Website must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred.
  25. You may not assign or transfer your rights or obligations under these Terms of Use without the prior written consent of Anhad Law, and any purported assignment or transfer in violation of this provision shall be null and void.
  26. Anhad Law causes the control and maintenance of this Website from India. Anhad Law makes no representations that the information and material contained in this Website are appropriate or permitted for use in jurisdictions outside India.
  27. These Terms of Use are governed by the laws of India without giving effect to any principles of conflicts of laws.
  28. The usage of the Website by the user is subject to the exclusive jurisdiction of the courts located in Delhi without prejudice to the right of Anhad Law to take action in any jurisdiction whatsoever.
  29. Anhad Law reserves the right to investigate complaints or reported violations of these Terms and to take any action we deem necessary and appropriate. Such action may include but not be limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties. In addition, Anhad Law may take action to disclose any information necessary or appropriate to such persons or entities relating to user’s profiles, e-mail addresses, usage history, IP addresses and traffic information.
  30. Anhad Law reserves the right to seek all remedies available at law and in equity for violations of these Terms of Use and/or the rules and regulations set forth on the Website, including without limitation the right to block access from a particular internet address.
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