# Shiv Sagar Dwivedi v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-20
- **Case number:** Civil Misc. Writ Petition No.14185 of 1993
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-sagar-dwivedi-v-state-of-u-p-and-others-40474
- **Pages:** 8

## Headnote

S.C.

U.P.
Officer
Subordinate
Ranks
(Punishment & Appeal) Rules 1991Section-8-Termination Order-Petitioner a
Police Constable place under suspension
on the ground of misconduct alleged to
be-committed
with
superior
officerenquiry
officer
submitted
ex-parte
report-without giving the copy of inquiry
report-nor send any intimation indicating
date to participate in enquiry-the only
misconduct that he had damaged the fan
of the Barak No. 4-No charge found
proved-No misconduct held-termination
order can not sustained.

Held: Para 13

In view of the aforesaid fact, I am of the
opinion that he punishment which has
been awarded against the petitioner is
disproportionate to the charge levelled
against the petitioner. It is clear from
the record that the charges leveled
against the petitioner has not been
proved, therefore, in my view it would be
said to be a misconduct as the charge of
misconduct has not been proved. The
order of dismissal dated 16.6.1992 was
stayed by this Court by order dated
19.8.1993 and the petitioner is working
on the basis of the interim order and is
getting salary.
Case law discussed:
1992 (2) UPLBEC 851
2000 (30) SCC-450?
1998 (3) SCC 192
1995 (6) SCC-749

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
challenging the legality of an order dated
December 21, 1966. The writ petition was
filed after a gross delay for which there is
no satisfactory explanation and therefore,
the High Court was justified in dismissing
it summarily."

5. The judgment of the Supreme
Court in Naib Subedar Lachhman Dass's
case (supra) is fully attracted in the facts
of the present case. Challenge to the order
of discharge after four years was held to
be barred by laches and in the present
case the order of discharge is sought to be
challenged after 24 years.

6. Regarding delay, in writ matters,
the Courts usually go by a self imposed
rule of treating the matter as barred by
time after the lapse of three years which is
the usual period of limitation for filing
suits. But the rule is not an inflexible one.
Delays even large delays can be over
looked in special writ matters where
questions
of
public
importance
are
involved. The case of an individual right
become a sort of test case, and in such an
event the court right see it fit to take up
the case even after some excessive delay.

7. Also, in very deserving cases, the
Court might feel compelled to exercise
judicial discretion, on the basis of sound
and well settled judicial principles, when
justice requires the matter to be dealt with
so urgently and strongly, that the point of
delay and delay alone should not be made
the guiding factor in decision of the writ
the Court condoned large delays. Our case
is not such one. The writ petitioner could
have appealed at the material time. At, al
on ground that the Medical Board had
erred and he was in fact mentally sound
and fit. The point of time when the mental
insanity of the writ petitioner become an
issue has long gone by, nobody can now
test whether the writ petitioner come with
reasonable expedition after the decision
had been taken by the respondent
authorities, the test could have been
carried out and the writ Court would be in
a position to judge the matter. Today we
cannot, just because a rule of procedure
was
infringed,
assume
against
the
authorities and that the Medical Board
had erred. The writ petitioner has changed
the circumstances in such a manner by
allowing time to lapse, that he puts the
respondents in a position of disadvantage
today. As such the writ petition should be
dismissed on the ground of delay of more
than 24 years, we respectfully uphold the
judgment passed by the learned Single
Judge.

8. After the order is passed and two
other matters are disposed of learned
counsel of the Union of India seeks to put
in appearance. His name might be
recorded.
We
do
not
invite
any
submissions from him.

The appeal is, thus dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.14185 of 1993

Shiv Sagar Dwivedi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.B. Singh
Sri Vijay Sinha
2 All] Shiv Sagar Dwivedi V. State of U.P. and others

 467
Counsel for the Respondents:
S.C.

U.P.
Officer
Subordinate
Ranks
(Punishment & Appeal) Rules 1991Section-8-Termination Order-Petitioner a
Police Constable place under suspension
on the ground of misconduct alleged to
be-committed
with
superior
officerenquiry
officer
submitted
ex-parte
report-without giving the copy of inquiry
report-nor send any intimation indicating
date to participate in enquiry-the only
misconduct that he had damaged the fan
of the Barak No. 4-No charge found
proved-No misconduct held-termination
order can not sustained.

Held: Para 13

In view of the aforesaid fact, I am of the
opinion that he punishment which has
been awarded against the petitioner is
disproportionate to the charge levelled
against the petitioner. It is clear from
the record that the charges leveled
against the petitioner has not been
proved, therefore, in my view it would be
said to be a misconduct as the charge of
misconduct has not been proved. The
order of dismissal dated 16.6.1992 was
stayed by this Court by order dated
19.8.1993 and the petitioner is working
on the basis of the interim order and is
getting salary.
Case law discussed:
1992 (2) UPLBEC 851
2000 (30) SCC-450?
1998 (3) SCC 192
1995 (6) SCC-749

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition, petitioner has approached this
Court for issuing a writ of certiorari
quashing the order of termination dated
16.6.1992
passed
by
the
Senior
Superintendent of Police, respondent No.2
(Annexure 4 to the writ petition) and the
appellate order dated 2.4.1993 (Annexure
7 to the writ petition) passed by
respondent No.3 and issue a writ of
mandamus directing the respondents to
reinstate the petitioner with retrospective
effect and give all consequential benefits.

2. The fact arising out of the present
writ petition are that the petitioner entered
into police service as Constable on
1.1.1978 and since then performing his
duties with utmost sincerity and to the
entire
satisfaction
of
his
superior
authorities. In the year 1989, while the
petitioner was posted at Fatehpur, his
service was dismissed by order dated
1.7.1989 on the ground of misconduct, as
it has been alleged that the petitioner has
misbehaved with R.I. Sri Shyam Bir
Singh on 6.4.1989. Against the order
dated 1.7.1989, the petitioner has filed a
Writ Petition before this Court as Writ
Petition No.19745 of 1989 and this Court
vide order dated 11.12.1989 was pleased
to stay the operation of the order dated
1.7.1989. That while the petitioner was
posted at Kanpur at Phoolganj Police
Chouki, P.S. Pilkhana, the petitioner was
suspended by the Senior Superintendent
of Police, Kanpur Nagar vide order dated
8.8.1990 on false charges. Against the
order of suspension the petitioner filed
another Writ petition No.30524 of 1990
and this Court was pleased to stay the said
order of suspension vide order dated
20.11.1990. The petitioner received a
charge sheet dated 22.6.1991 with regard
to the incident, which has taken place on
6.4.1989 while the petitioner was posted
at Fatehpur. A copy of the charge sheet
has been filed as Annexure 2 to the writ
petition. The petitioner submitted a reply
to the charge sheet on 10th July, 1991.
Thereafter the petitioner could not receive
any information from the side of the
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Enquiry Officer. In fact no enquiry
proceedings were conducted nor the
petitioner was given opportunity to appear
in the alleged proceedings. Even the
petitioner
has
not
been
given
an
opportunity
to
cross-examine
the
witnesses alleged to have been produced
on behalf of the department, nor he was
allowed to produce his witness. However,
the Enquiry Officer submitted an ex-parte
report on 2.12.1991. A copy of the
enquiry report has been filed as Annexure
3 to the writ petition. On the basis of the
aforesaid enquiry report, the petitioner
was dismissed from service by order
dated 16.6.1992. A copy of the order of
dismissal has been filed as Annexure 4 to
the writ petition. Aggrieved by the order
passed by the disciplinary authority, the
petitioner filed an appeal under Rule 20 of
the
U.P.
Police
Officers
of
the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 before the Deputy
Inspector General of Police, Kanpur
Range, Kanpur. The petitioner submits
that the petitioner sent various reminders
to the authority concerned for deciding
the appeal of the petitioner but the
petitioner's appeal was not decided and
thereafter the petitioner filed a writ
petition before this Court and this Court
had passed an order directing the
respondents to decide the appeal of the
petitioner by order dated 16.2.1993. The
appeal of the petitioner had been decided
by the respondent No.3 vide order dated
2.4.1993. A copy of the same has been
filed as Annexure 7 to the writ petition.

3. It has been submitted on behalf of
the petitioner that the order dated
2.4.1993 is ex-facie bad, illegal, arbitrary
and without jurisdiction. Rule 4 of the
U.P. Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991,
deals with the punishment and dismissal
from service comes under the major
penalty. Rule 8 provides that no police
officer shall be dismissed except after
proper
enquiry
and
disciplinary
proceedings as contemplated by these
rules. Rule 14 of the Rules 1991 deals
with
procedure
for
conducting
departmental proceedings, which lays
down that the departmental proceedings
in the cases referred under Rule (1) of
Rule 5 may be conducted in accordance
with the procedure laid down in Appendix
-1. The further contention of the
petitioner is that Para 478 of the Police
Regulation deals with the punishment of
dismissal or removal from the force is a
major punishment. It provides that
punishment may be awarded only after
departmental proceedings. In the present
case mandatory provisions of law has not
been complied with. The petitioner has
not been given an opportunity to defend
his case and on the basis of the ex-parte
enquiry the decision has been taken and
the petitioner has been dismissed from
service
on
the
basis
of
irrelevant
considerations of false charge sheet. The
petitioner
has
not
been
given
an
opportunity to cross-examine Shyam Bir
Singh with whom it has been alleged that
the petitioner had misbehaved. The order
of dismissal and the appellate orders are
contrary to the principle of natural justice
and it is also contrary to U.P. Police
Regulations of U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991. The charge, which
has been levelled against the petitioner is
of 1989, which alleges that when the
petitioner was posted at district Fatehpur
in 1989, he had damaged the government
fan, which was placed at Barrack No.3 on
6.4.1989 and the said act of the petitioner
is loss to the government property and has
2 All] Shiv Sagar Dwivedi V. State of U.P. and others

 469
also misbehaved with the officer. The
further allegation against the petitioner is
that when on the day of inspection i.e.
7.4.1989, he was standing below to the
damaged fan in the same barrack only to
show the broken fan for the purposes of
making
complaint
to
the
Inspector
concerned. The petitioner submits that
the charges levelled against the petitioner
has not been proved, as such, the services
of the petitioner cannot be terminated. It
has further been submitted that the
witnesses, who has been examined has
not supported the case of the petitioner.
The statements of Angad Singh and
Shyam Bir Singh do not support the case
of the respondents that the petitioner has
broken the said fan. The statement of Sri
Shyam Bir Singh Company Commander,
under whom the petitioner was working
on the day of the incident has stated that
the petitioner has misbehaved but he has
not made any complaint to any authority
regarding
the
misconduct
of
the
petitioner, clearly goes to show that the
petitioner has falsely been implicated.
The statement to this effect that there is a
reason to believe that the fan has been
damaged or broken by the petitioner
cannot be treated to be misconduct and
only on this basis the services of the
petitioner cannot be dispensed with. The
finding of the Enquiry Officer to this
effect that the charges levelled against the
petitioner has been proved beyond any
doubt and such type of indisciplined
person should not be retained in service is
based on no evidence.

4. The disciplinary authority without
any basis has accepted the finding of the
enquiry report and has passed an order of
dismissal of the services of the petitioner.
It has been submitted on behalf of the
petitioner that the appeal filed by the
petitioner has also been dismissed without
affording any opportunity.

5. The further argument of the
petitioner is that the order of dismissal is
to harsh as the only charge against the
petitioner as alleged in the charge sheet is
that he has misbehaved with one Shyam
Bir Singh. It is clear from the statement
given by Sri Shyam Bir Singh that the
petitioner has misbehaved with him on
6.4.1989 and as he was alone he went
silently from there and has not reported
the aforesaid alleged misconduct to any
higher authorities. In this way the
petitioner submits the incident of 1989 but
the charge sheet for the purposes of taking
a disciplinary action against the petitioner
has been given on 22nd June 1991.

It has further been stated that the
punishment, which has been awarded to
the petitioner is too harsh and does not
commensurate to the offence committed.
The main charge against the petitioner
regarding misbehavior with Sri Shyam
Bir Singh, has not been proved from the
statement of Shyam Bir Singh. As Sri
Shyam Bir Singh has admitted this fact
during the enquiry proceedings that he has
not intimated the incident to any higher
authority, therefore, it is clear that the
aforesaid charge had been levelled against
the petitioner after a lapse of two years
only to punish the petitioner. It is also not
the case of the respondents authorities that
due to the act of the petitioner there was
any loss to the Government property.
Regarding the damage of the fan, which is
one of the charge against the petitioner
has not been proved during the enquiry
proceedings and no witnesses have ever
stated in their statement that it has been
done by the petitioner. The head
constable Angad Singh has also stated the
470 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
fact that he does not know any incident,
as he was on leave on that day when the
alleged incident had taken place. The
petitioner contends that the punishment,
which has been awarded, is a punishment,
which is to harsh as no charges against the
petitioner has been proved. The charge
levelled against the petitoner was of
misconduct
has
not
been
proved.
Therefore, punishment, which has been
awarded by the authorities below is
disproportionate.

6. The petitioner placed reliance
upon a judgment of the Apex Court
reported in B.C. Chaturvedi Versus V.C.
Union of India and others (1995) 6 SCC
Page 749 and has placed reliance upon
Paras 22, 24, and 23 of the said judgment
and has submitted that the High Court
would be within its jurisdiction to modify
the punishment, penalty by moulding the
relief. In a case of dismissal, the Article
21 gets attracted and in view of inter
dependence of fundamental rights, the
punishment awarded has to be reasonable
and if it is unreasonable Article 14 would
be violated. If Article 14 were to be
violated the High Court can take care of
the same by substituting, in appropriate
cases, a punishment deemed reasonable
by it.

The relevant paras are being quoted
below-

22. The aforesaid has, therefore, to be
avoided and I have no doubt that a High
Court would be within its jurisdiction to
modify
the
punishment/penalty
by
moulding the relief, which power it
undoubtedly has, in view of a long line of
decisions of this Court, to which reference
is not deemed necessary, as the position is
well settled in law. It may, however, be
stated that this power of moulding relief
in cases of the present nature can be
invoked by a High Court only when the
punishment/penalty awarded shocks the
judicial conscience.

23. It deserves to be pointed out that the
mere fact that there is no provision
parallel to Article 142 relating to the
High Courts, can be no ground to think
that they have not to do complete justice,
and if moulding of relief would do
complete justice between the parties, the
same cannot be ordered. Absence of
provision like Article 142 is no material,
according to me. This may be illustrated
by pointing out that despite there being no
provision in the Constitution parallel to
Article 137 conferring power of review on
the High Court, this Court held as early
as 1961 in Shivdeo Singh Case that the
high Courts too can exercise power of
review, which inheres in every court of
plenary jurisdiction. I would say that
power to do complete justice also inheres
in every court, not to speak of a court of
plenary jurisdiction like a High Court. Of
course, this power is not as wide as which
this Court has under Article 142. That,
however, is a different matter.

24. What has been stated above may be
buttressed by putting the matter a little
differently. the same is that in a case of a
dismissal, Article 21 gets attracted, and,
in view of the interdependence of
Fundamental rights, which attracted, and
in view of the interdependence of
fundamental rights, which concept was
first accepted in the case commonly
known as Bank Nationalization case,
which thinking was extended to cases
attracting Article 21 in Maneka Gandhi
V. Union of India, the punishment
/penalty awarded has to be reasonable;
2 All] Shiv Sagar Dwivedi V. State of U.P. and others

 471
and if it be unreasonable, Article 14
would be violated. That Article 14 gets
attracted in a case of disproportionate
punishment was view of this Court in
Bhagat Ram Vs. State of H.P. also. Now if
Article 14 were to be violated, it cannot
be doubted that a High Court can take
care of the same by substituting in
appropriate cases, a punishment deemed
reasonable by it.

7. The further reliance has been
placed upon the judgment of this Court
reported
in
Colour-Chem
Ltd
Vs.
A.L.Alaskurta
and
others
1998(3)
Supreme Court Cases 192 and has
submitted that the nature of misconduct
are passed record of the service if it
appears to the Court that the punishment
imposed is shockingly disproportionate to
the charges held proved against the
employee the minor punishment should
be awarded.

8. The further reliance has been
placed on a judgment of UPSRTC Vs.
Mahesh Kumar Misra 2000 (30) SCC
page 450 the counsel for the petitioner
placed reliance upon Para 6, 10 and 12
and has submitted that High Court will be
in its jurisdiction to interfere upon the
finding that the punishment of dismissal is
shockingly
disproportionate
the
substitution of reinstatement against the
dismissal was justified.

Para 6 is being reproduced below-

6. It was in the background of these
circumstances
that
the
high
Court
exercised its discretion under Article 226
of the Constitution and interfered with the
quantum of punishment inflicted by the
disciplinary authority. It maybe that the
order of dismissal was held to be valid
and proper by the U.P. State Public
Services Tribunal but the Tribunal also
overlooked the fact that though sufficient
evidence could have been collected at the
spot to indicate that the passengers to
whom
tickets
were
issued
by
the
respondent has boarded the bus at the
"High Court" and not at "Zero Road"
but this was not done. It was a bus plied
in the city itself and therefore, the
passengers, who were available in the
bus, being local passengers, could have
been approached at the spot for stating
whether they had boarded the bust at
the"High Court" or at "Zero Road".
Learned counsel for the appellants have
placed reliance upon an unreported
decision of this Court in UPSRTC Vs. Om
Prakash Pandey in which the order of The
submission of the learned counsel for the
petitioner is that high Court, by which
interference
was
made
with
the
punishment inflicted upon the delinquent
employee of the Corporation, was set
aside. This case is clearly distinguishable
on the ground that a number of
passengers were allowed to travel without
tickets, and therefore, the misconduct
imputed to the employee was serious. This
is not the case here as the respondent had
issued tickets to all the passengers, who
were found traveling in the bus, but the
dispute was only with regard to the spot
or place at which they had boarded the
bus. To put it differently, the dispute was
whether they had boarded the bus at
"Zero Road" or at the "High Court". In
these circumstances, the High Court was
justified in interfering with the quantum of
punishment."

9. The further reliance has been
placed upon by the counsel for the
petitioner is Girja Shanker Singh Vs.
General Manager UPSRTC 1992 (2)
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
UPLBEC Page 851 and it has been held
by this Court that High Court has a power
to reduce the punishment.

10. In view of the principle laid
down by the Apex Court it has been
submitted on behalf of the petitioner that
as the misconduct has not been proved
and the punishment, which has been
awarded to the petitioner is too harsh,
therefore, the same is liable to be
quashed.

11. A counter affidavit has been
filed. It has been stated that entire
enquiry has been conducted strictly in
accordance with the legal provisions and
the petitioner was given full opportunity
of hearing and no illegality of any kind
has been committed in the enquiry. It has
further
been
submitted
that
after
conclusion of the enquiry, the petitioner
was found guilty of negligence for
holding post and as such, penalty of
removal from service is completely legal
and justified.

I have heard learned counsel for the
petitioner and the learned Standing
Counsel and have perused the record.

12. It is clear from the record that
earlier a writ petition was filed by the
petitioner by which the service of the
petitioner was dismissed by order dated
1.7.1989 for some offence and the interim
order was granted in favour of the
petitioner. Then in the year 1990, the
petitioner
was
suspended
and
subsequently
on
the
basis
of
the
disciplinary proceedings, the petitioner is
dismissed from service. After perusal of
the statements of Sri Shyam Bir Singh, it
is clear that the incident is of 1989 and the
action of that misconduct has been taken
after a period of two years. It is also clear
from the statement that he has not
reported the matter to any authority,
which is apparent from his statement.
Regarding the damage of the fan of
Barrack No.4, one Angad Singh, who was
produced as witnesses has not supported
the case of the respondents. He himself
has stated that he was on leave on that
day. Meaning thereby he was not present
and no person had seen that the petitioner
had damaged the fan. It is not the case of
the respondents that the fan had been
stolen or it had been taken out by the
petitioner. The charge is that some
damage is being done with the fan, which
was installed at barrack No.4. It has also
not been clarified by the respondents that
up to what extent the fan was damaged.

13. In view of the aforesaid fact, I
am of the opinion that he punishment
which has been awarded against the
petitioner is disproportionate to the charge
levelled against the petitioner. It is clear
from the record that the charges leveled
against the petitioner has not been proved,
therefore, in my view it would be said to
be a misconduct as the charge of
misconduct has not been proved. The
order of dismissal dated 16.6.1992 was
stayed by this Court by order dated
19.8.1993 and the petitioner is working on
the basis of the interim order and is
getting salary.

14. In view of the aforesaid fact, the
order passed by the respondents dated
16.6.1992 (Annexure 4 to the writ petition
passed by the respondent No.2 and order
dated 2.4.1993 (Annexure 7 to the writ
petition) passed by the respondent No.3 is
hereby quashed. The writ petition is
allowed.
However,
the
facts
and
2 All] Shiv Sagar Dwivedi V. State of U.P. and others

 473
circumstances of the case, no order as to
costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.5.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.12402 of 2003

Lok Pal Singh and others
...Petitioner
Versus
IInd Additional District Judge, Bijnor and
others

...Respondents

Counsel for the Petitioner:
Sri J.P.S. Chauhan

Counsel for the Respondents:
Sri R.K. Shukla

Small Causes of Courts Act-Section -25Power of Revisional Court-Question of
jurisdiction decided by the J.S.C.C.-
revisional court reversed the findings of
Trial Court-instead of direction to further
remand,
revisional
court
illegally
dismissed the suit itself-held-not properOrder passed by the revisional court
Quashed-matter remitted back to decide
as fresh.

Held: Para 4

This writ petition is, therefore, allowed
and the order of the revisional court
dated 29.11.2002 is quashed but in the
interest of justice instead of remanding
back to the revisional court with the
direction to further remand back the
matter to the trial court, order of the
trial court also for the reasons given by
the revisional court is quashed. The
matter will now go back to the trial court
to be decided afresh in accordance with
law after affording opportunity to the
parties.
Case law discussed:
1981 ARC 545 (D.B.) relied on

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition has been filed
by the plaintiff-landlord who filed a suit
before the Judge of Small Cause Court on
the ground that the defendant is the tenant
of the accommodation in dispute and
according to the plaint allegation the
construction
of
the
building
was
completed in the year, 1985. The same
was let out to the defendant-tenant in the
year, 1986 and since the defendant has
committed default in payment of agreed
rent, therefore, the plaintiff-landlord filed
a suit being Suit No. 62 of 1997 for the
ejectment of the defendant-tenant and
arrears of rent and damages after
terminating the tenancy by the notice
under Section 106 of the Transfer of
Property Act. The defendant-tenant has
contested the aforesaid suit and filed
written statement denying the plaint
allegation firstly that the land over which
the building is constructed, is agricultural
land
to
which
the
provisions
of
U.P.Z.A.L.R. Act are applicable and since
the land occupied by the plaintiff, over
which the building in dispute stands, still
retains its character of agricultural land
therefore, the court of small causes do not
have jurisdiction to entertain the suit. On
the question of applicability of the
provisions of U.P. Act No. 13 of 1972, the
defendant pleaded that the building in
question is constructed in the year, 1981,
therefore, the provisions of U.P. Act No.
13 of 1972 are applicable and further on
the first date of hearing the defendant has
complied with the provisions of Section
20 (4) of U.P. Act No. 13 of 1972, the
defendant is entitled to the benefit of
provisions of Section 20 (4) and no decree
for ejectment on the ground of arrears of