Byomkesh De v. Controller Of Telegraph Stores — 1963 DIGILAW 65 (CAL)

JUDGMENT 1. The petitioner, Byomkesh De, used to serve as a time-scale clerk in the returned Stores Section of the Office of the Controller of Telegraph Stores, at Alipore, Calcutta. For alleged unauthorised disposal of government stores, the petitioner was proceeded against before a Criminal Court but was ultimately discharged by the Magistrate. 2. While the criminal case against the petitioner was still pending, the controller of Telegraph Stores charged the petitioner with misconduct, under several heads, for loss of government stores. This charge-sheet, bearing the date December 10, 1959, was cancelled by Controller on March 26/28, 1960. On the same day, however, a fresh charge sheet was served on the petitioner, to the following effect: - "charge-I that the said Shri Byomkesh De while functioning as Time Scale Clerk, R. S. Section dealing with returned stores taken over from the General Manager, Automatisation, Calcutta, on 2.6.1959, had permitted unauthorised removal of departmental dismantled materials causing loss to Government and is therefore guilty of gross misconduct. Charge-II that the said Shri Byomkesh De while functioning as T. S. Clerk, R. S. Section, dealing with returned stores taken over from the Genl. Manager, Automatisation, Calcutta, had removed dismantled battery bearers from the Bank, City and South Exchanges, without obtaining permission of the competent authority and delivered the materials to the firm from a private godown without authority, thereby causing loss to Government and is therefore guilty of gross misconduct. CHARGE-III that the said Shri Byomkesh De while functioning as Time Scale Clerk, R. S. Section dealing with returned stores taken over from the General Manager, Automatisation, Calcutta was guilty of serious neglect of duty causing heavy loss to the Government. " Along with the charge sheet a "statement of allegations", on the basis whereof the charges were framed, was supplied to the petitioner. The said statement reads as follows: -"allegations Regarding Charge-I. On 2.6.1959 information was lodged by Shri Jadu Chowdhury, Sircar on duty at the South Exchange, that a Private Lorry No. WGA-1222 was seen by him as being loaded with Iron Material pertaining to recovered telephone material and by Lascars belonging to C. T. S. ' Establishment (on duty at the South Exchange) at about 1.50 P. M. on that day. He (Shri Jadu Chowdhury) was given to understand by the Lascars that the loading was being done under instructions of Shri Byomkes De, who was functioning as Time Scale Clerk Returned Stores, dealing with returned stores taken over from the General Manager, Automatisation, calcutta, and was on duty at the South Exchange on that day (2.6.59. Shri Jadu Chowdhury also made statements to indicate that he was informed by Shri Byomkes De, on enquiry that the Stores that were loaded in the Lorry had been sold and were being removed by the party concerned. The presence of the Lorry and the loading of the same with departmental stores belonging to the Department was also corroborated by other persons who were present at the South Exchange on that day at the time of occurrence. The Lorry in question is further alleged to have left the South Exchange with the stores loaded in it. Enquiries and Examination of relevant record revealed that there was no programmer of delivery of any stores disposed of by sale from the South Exchange Buildings. Allegations Regarding Charge II. It transpired from reports received that all battery bearers belonging to the equipments of the Bank and City Exchanges were removed from 8, Hare Street by Shri Byomkesh De while he was functioning as Time-Scale Clerk, R. S. Section, dealing with returned stores taken over from the General Manager, Automatisation, Calcutta, without the knowledge and permission of the competent authority. When questioned about the reasons for such removal the said Shri Byomkes De is alleged to have stated that these were required to be kept at a centralised place under his custody till their disposal. It also transpired from reports received that battery bearers were also available and seen at the South Exchange Buildings in May, 1959 i.e., long after the delivery of auctioned battery materials to M/s. Associated battery Makers (Eastern) Private Limited on 11.4.1959 and 13.4.1959. It further transpired from reports received that all the battery bearers were made over to the firm in June, 1959 from a Private godown. Allegations Regarding Charge III. It further transpired from reports received that all the battery bearers were made over to the firm in June, 1959 from a Private godown. Allegations Regarding Charge III. It came to notice that Shri Byomkes de while functioning as Time-Scale clerk, R. S. Section, dealing with returned stores taken over from the General Manager, Automatisation, calcutta, had failed to maintain a numerical account of stores taken over by him from the Telephone District Calcutta from time to time and had also failed to maintain a clear record to indicate the location of the different items of taken over stores, thereby rendering the task of a speedy verification of the stores held in the south Exchange extremely difficult. 3. He was also negligent in not having noticed the shortage of following items of stores, which were found to be missing, as a result of verification held in June, 1959, soon after his suspension. Condensers of (all?) sorts 484 induction Coil. . 2 arrestor and Heat Coil strips non-standard. . 340 tag Blocks of (all-?)Sorts. . 27 jack Strips 3x20 (BTS) 2354 ericsion type sub Meter plates. . 4 cabinet for condenser. . 1" 4. On receipt of the charge sheet the petitioner wrote to the respondent Controller a letter, dated April 5, 1960, asking for opportunity to inspect and take extracts from the following documents, so as to enable him to prepare his defence: - " (1) Statements of Shri Jadu Chowdhury and others who corroborated the statements of Shree Jadu Chowdhury relating to the allegations regarding Charge No. I. (2) Original Copy of ACE5/5s relating to the Iron materials pertaining to recovered Telephone materials in question referred to in the allegations regarding Charge No. I and original reports of S.C.C. thereof. (3) Original Reports of verification of the aforesaid Iron materials referred to in the allegation regarding Charge No. I. (4) Original Report of complaint lodged with the Police in regard to the aforesaid Iron materials referred to in the allegations regarding charge No. I and subsequent correspondence to the Police in support of the said complaint by the Department. (3) Original Reports of verification of the aforesaid Iron materials referred to in the allegation regarding Charge No. I. (4) Original Report of complaint lodged with the Police in regard to the aforesaid Iron materials referred to in the allegations regarding charge No. I and subsequent correspondence to the Police in support of the said complaint by the Department. (5) Original statements or Reports of persons relating to the removal of battery bearers from Bank and City Exchanges at 8, Hare Street referred to in the allegations regarding Charge No. II, (6) Original statement of the persons who had the occasion to question regarding reasons of removals of battery bearers from Bank and City Exchanges referred to in the allegations regarding Charge No. II. (7) Statement or report of persons who had seen the battery bearers at the South Exchange in the month of May, 1959, relating to allegations regarding charge II. (8) Statement or report of persons or Firm regarding making over of all the Battery bearers from a private godown in the month of June, 1959 referred to in the allegation regarding charge No. II. (9) Original Copy of ACE5/5s of all battery bearers belonging to the equipments of the Bank and City Exchanges and the S. S. C. 's recommendations thereof for disposal relating to allegation regarding Charge II. (10) Original copy of ACE5/5s of all battery bearers, belonging to the equipments of the South exchange and the S.S.C. 's recommendation thereof for disposal relating to allegation regarding charge No. II. (11) Original ACE5/5s relating to all the seven items of stores mentioned in the allegations regarding charge No. III and the S.S.C. 's recommendation thereof. (12) The Original Report/ Reports of verification by the persons who had carried out the verification of the above mentioned seven items of stores referred to in the allegation regarding charge No. III. (13) Original Reports of complaint lodged with the Police in respect of the above mentioned seven items of stores by the Department and subsequent correspondence to the Police and final findings thereof. (14) Records regarding removal of disposal of stores identical to any or all of the above mentioned seven items before and after verification. (15) My diary book which I used to keep in the drawer of my table under lock and key. (16) All the official notes in. (14) Records regarding removal of disposal of stores identical to any or all of the above mentioned seven items before and after verification. (15) My diary book which I used to keep in the drawer of my table under lock and key. (16) All the official notes in. regard to the delivery of battery materials of different Exchanges indicating order or instruction solicited or given in regard to the delivery of batteries and their equipments. (17) List of batteries and equipments of Bank and City and South. Exchanges and the relative ACE5s thereof. (18) Original letters of complaints and other correspondence furnished with the Police by the Dept. and the result of final findings by the Police thereof in regard to this case. " Police thereof in regard to this case. " By his letter, dated May 20, 1960, the respondent Controller refused permission to the petitioner to inspect documents Nos. 1, 4. 5 to 8, 13, 14 and 18 or to take extracts there from on the ground that three of the documents were not relevant for the purpose of preparing the defence and that it was against public interest to allow access to the other documents. He, however, allowed permission to the petitioner to inspect documents Nos. 11, 12, 16 and 17. So far as documents Nos. 2, 3, 9, 10 and 15 were concerned, he informed the petitioner that the said documents were not in existence. 5. However, inconvenienced the petitioner may have been by want of opportunity to inspect some documents, he submitted his written defence denying the charges. Thereafter, R. B. Malhotra, the then Controller held an enquiry into the charges in the presence of the petitioner. At the said enquiry some witnesses were examined. The petitioner wanted to examine the following witnesses: (i) Mr. A. Bhattacharjee, Assistant engineer, Dismantlement, calcutta Telephones. (ii) Mr. M. V. Rossel. (iii) Messrs. Millet, Chari, Bhattacharjee and Satyanarayan. 6. Excepting Mr. A Bhattacharjee, the Controller refused to produce other witnesses for examination by the petitioner. His reasons for not doing so appear in his letter, dated December 26/27, 1960, here in below quoted: - " (1) (2) It is not possible for this office to call Mr. M. V. Rossel to appear before me. 6. Excepting Mr. A Bhattacharjee, the Controller refused to produce other witnesses for examination by the petitioner. His reasons for not doing so appear in his letter, dated December 26/27, 1960, here in below quoted: - " (1) (2) It is not possible for this office to call Mr. M. V. Rossel to appear before me. (3) It is seen from para 3 of your letter, referred to above, that you desire that Sarvashri Millet, Chari, Bhattacharjee, and Satyanarayan should be summoned to be present at the Enquiry on account of the latter three Officers having attested a note, written by Shri Millet. As another note of identical wording has been given by Shri Millet duly signed by him (copy given to you), it is considered that it is not expedient or necessary to summon the above persons, requested to be present at the Enquiry. " R. B. Malhotra, who was conducting the enquiry could not complete the same. The enquiry was taken over by his successor-in-office K. K. Malhotra. The latter in his report of enquiry found the petitioner guilty of all the three charges and called upon him to show cause why he should not be visited with the proposed penalty of dismissal from service. At this stage the petitioner moved this Court, under Article 226 of the Constitution, praying for a Writ of Prohibition restraining the respondents from further proceeding with the disciplinary action and for a Writ of Mandamus directing the respondent No. 2 to allow the petitioner to resume his duties, and obtained this Rule. 7. Mr. S. Roy, learned Advocate for the petitioner argued three points in support of the Rule. He contended, in the first place, that the Controller did not comply with the provisions of Rule 15 (3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, when he refused to the petitioner opportunity to inspect some documents, in that he merely expressed his opinion against granting inspection but did not record in writing any reason therefor. He contended, in the next place, that the respondent Controller was wrong in not calling all the persons whom the petitioner wanted to examine as witnesses. He contended lastly that K. K. Malhotra, who succeeded R. B. Malhotra as the Controller should have conducted the enquiry denovo and should not have taken over the same after part of the enquiry had been over. He contended lastly that K. K. Malhotra, who succeeded R. B. Malhotra as the Controller should have conducted the enquiry denovo and should not have taken over the same after part of the enquiry had been over. 8. I take up for consideration the arguments of Mr. Roy in the order they were made. Rule 15 (3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, reads as follows: - "the Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if. for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or it, is against public interest to allow him access thereto. " Under the above sub-rule a Government servant has the right to inspect all the documents that he may specify and require for the purpose of preparing his defence. The disciplinary authority may refuse inspection or the taking of extracts if he is of the opinion (i) that the records are not relevant for the purpose of preparing defence by the person charged with misconduct or (ii) that it is against public interest to allow him access thereto. This opinion is not, however, subjective opinion and must be backed up by reasons to be recorded in writing. The error committed by the respondent Controller in disallowing inspection in respect of some of the documents was that he merely expressed the opinion either that they were not relevant for the purpose of preparing the defence or that it was against public interest to allow access to those documents. Why he arrived at that opinion he does not say. Even after the opinion had been challenged as unreasonable in this Rule, the respondents did not come out with any reason therefor. All that is stated in the affidavit-in-opposition is as follows: - "records which were not relevant to the case for preparing a defence end which could not be shown to the petitioner in the public interest were not allowed access to. " 9. Objection to allow inspection of documents on the ground of public interest should not be too freely taken. " 9. Objection to allow inspection of documents on the ground of public interest should not be too freely taken. Such objections may be taken on consideration of national defence, diplomatic relationship, proper functioning of administrative services and on consideration that the documents relate to affairs of state. In dealing with cases where such an objection may not be taken, Viscount Simon L. C. observed in (1) Duncan v. Cammel Laird and Co. Ltd., (1942) 1 All. E. R. 587 (595): - "it is not sufficient ground that the documents, are 'state documents' or 'official' or are marked as 'confidential'. It would not be a good ground that, if they are produced, the consequences might involve the department or the government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the minister or the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, e. g., where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of public service. " 10. When I quote the observations, I am no; unmindful of the majority decision of the Supreme Court in (2) State of Punjab v. Sodhi Sukhdev Singh, (A. I. R. 1961 S. C. 492) wherein Gajengadkar, J., considered the provisions of sections 123 and 162 of the Evidence Act, in the context of refusal to disclose documents on the ground of injury to public interest. His Lordship observed: - "in other words the argument is that sections 123 and 162 are intended to lay down that, when a privilege is claimed by a State in the matter of production of State documents, the total question with regard to the said claim falls within the discretion of the head of the department concerned, and he has to decide in his discretion whether the document belongs to the privileged class and whether its production would cause injury to public interest let us now turn to section 123. " It reads thus: 'no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. ' this section refers to evidence derived from unpublished official records which have a relation to any affairs of State and provides that such evidence shall not be permitted to be given unless the head of the department concerned gives permission in that behalf. In other words, as a result of this section a document which is material and relevant is allowed to be withheld from the court and that undoubtedly constitutes a very serious departure from the ordinary rules of evidence. The principle on which this departure can be and is justified is the principle of the overriding and paramount character of public interest. A valid claim for privilege made under section 123 proceeds on the basis of the theory that the production of the documents in question would cause injury to the public interest, and that where a conflict arises between public interest and private interest the latter must yield to the former care has, however, to be taken to see that interest other than that of the public do not masquerade in the grab of public interest and take undue advantage of section 123 though section 123 does not expressly refer to injury to public interest that principle is obviously implicit in it and indeed is its sole foundation If under the section 123 a dispute arises as to whether the evidence in question is derived from unpublished official records that can be easily resolved but what presents considerable difficulties is a dispute as to whether the evidence in question relates to any affairs of State. What are the affairs of State under section 123? In the latter half of the 19th Century affairs of State may have had a comparatively narrow content. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political and administrative character relating, for instance, to national defence, public peace and security and good neighborly relation. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and can-dour of expression of opinion in the determination and execution of public policies it may be that when the Act was passed (namely the Evidence Act) the concept of governmental functions and their extent was limited and so was the concept of the words 'affairs of State' correspondingly limited, but as is often said words are not static vehicles of ideas or concepts. As the content of the idea or concept conveyed by respective words expands, so does content of the words keep pace with the said expanding idea or concept and that naturally tends to widen the field of public interest which the section wants to protect. The inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent, activities which were formerly treated as purely commercial and documents in relation to such commercial activities undertaken by the State in the pursuit of public policy of social welfare are also apt to claim the privilege of documents relating to the affairs of the State 'affairs of State' according to Mr. Seervai are synonymous with public business and he contends that section 123 provides for a general prohibition against the production of any documents relating to public business unless permission for production is given by the head of the department concerned. On the other hand it has been urged by Mr. Sastri that the expression 'documents relating to any affairs of State' should receive a narrow construction and it should be confined only to the class of noxious documents. It would thus be seen that that on the point in controversy between the parties three views are possible. On the other hand it has been urged by Mr. Sastri that the expression 'documents relating to any affairs of State' should receive a narrow construction and it should be confined only to the class of noxious documents. It would thus be seen that that on the point in controversy between the parties three views are possible. The first view is it is the head of the department who decides to which class the document belongs if he comes to the conclusion that the document is innocuous he will give permission to its production if, however, he comes to the conclusion that the document is noxious he would withhold such permission the other view is that it is for the court to determine the character of the document and if necessary inquire into the possible consequences of its disclosure. A third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class it may leave it to the head of the department to decide whether its production should be permitted or not. Our conclusion is that reading sections 123 and 162 together the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the documents in question. That is a matter for the authority concerned to decide but the court is competent and is indeed bound to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question whether the evidence relates to an affair of State under section 123 or not. " It will appear from the above judgment, from which I have quoted a long extract, that the Indian law as to privilege is not identical with the law of privilege as explained by Viscount Simon in (1) Duncan v. Cammel Lair and Co. Ltd., (Supra. But nothing contained in the judgment of Supreme Court militates against the view that I have taken in matter of privilege, which may be claimed under Rule 15 (3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. Here the claim as to privilege is not based on sections 123 and 162 of the Evidence Act. Ltd., (Supra. But nothing contained in the judgment of Supreme Court militates against the view that I have taken in matter of privilege, which may be claimed under Rule 15 (3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. Here the claim as to privilege is not based on sections 123 and 162 of the Evidence Act. The refusal to produce documents is, in this case, founded on the power of the Disciplinary authority under Rule 15 (3) above quoted. The respondent Controller did not claim privilege because the documents which he had refused to produce related to "affairs of State". He used the expression 'against public interest' without indicating, in writing, as he was bound to do under Rule 15 (3), how disclosure of the said documents would injure any public interest. What he stated was merely an expression of opinion. His opinion need not be accepted as the correct opinion without more. No reason was given at the time when the inspection of the documents was refused. No further light was thrown on the reasons behind his opinion in his affidavit-in-opposition. 11. Some of the documents of which the petitioner was refused inspection or the taking of extracts appear to be documents referred to in the 'statement of allegations'. To say that the petitioner did not require inspection of even those documents, so as to prepare his defence, is to say too much, without anything more. In one of the letters that passed between the respondent controller and the petitioner (Annexure 'd' at page 22 of the affidavit-in-opposition) it is no doubt stated (1) that the report of the stock-taking had been shown to the petitioner and that he had been allowed to copy out the same and (2) that the Police Enquiry against the petitioner would not be taken into consideration in the departmental proceeding against him. But even then the petitioner might require the other papers asked for, in order to make out his defence. At least they may have been of relevant consideration either for demolishing the Stock-taking Report or for negativing the charges. Then again, to withhold the documents on the plea that access to them would be against public interest, without indicating in which way it would be so, may be erroneous or even more than that, that is to say, a mere pretext. Then again, to withhold the documents on the plea that access to them would be against public interest, without indicating in which way it would be so, may be erroneous or even more than that, that is to say, a mere pretext. For the reason aforesaid I uphold the first branch of the argument of Mr. Roy that the respondent Controller violated the provisions of Rule 15 (3) of the Central Civil Services (Classification, Control and Appeal) Rules, in disallowing inspection of documents, in the manner done. 12. The second branch of the argument of Mr. Roy may be shortly disposed of. It has been held by this Court in several cases, e. g., in (3) K. G. Bose v. Director of Telegraphs, (60 C. W. N. 692) ; (4) A.R.S. Chowdhury v. Union of India, (60 C.W.N. 933) ; (5) Sailendra Nath Bose v. State of West Bengal, [1963 (6) F. L. R. 26] that witnesses, who are under the control of the authorities and whom the delinquent desires to examine should be produced for examination. 'the authorities, however, have a discretion in the matter and they may not produce witnesses needlessly sought to be examined by the delinquent out of ulterior motives, such as, show, publicity or bravado. In the instant case the respondent controller produced at the enquiry one of the witnesses whom the petitioner wanted to examine but refused to produce another on the ground that it was not possible for him so to do and the others on the ground of want of necessity. Mr. Roy could not show that in the absence of the witnesses, who were not produced for examination, the petitioner suffered inconvenience or prejudice. I, therefore, do not make much of the second branch of the argument. I now turn to the last argument of Mr. Roy, namely, that K. K. Malhotra should have held the enquiry denovo and should not have started from the stage where his predecessor-in-office R. B. Malhotra had left. It is no doubt true that where the enquiring authority has the duty to come to a conclusion as to the guilt of the delinquent upon evaluation and assessment of evidence, then it is entirely necessary that he should be the person who should hear the evidence of the witnesses. It is no doubt true that where the enquiring authority has the duty to come to a conclusion as to the guilt of the delinquent upon evaluation and assessment of evidence, then it is entirely necessary that he should be the person who should hear the evidence of the witnesses. Sinha, J. rightly pointed out in the case of (6) Amulya Kumar Sirkar v. L. M. Bakshi, (62 C. W. N. 690): "it is impossible to evaluate the evidence of a witness taken on proxy, because one of the salient features in such a proceeding is to observe the demeanour of the witness. To any one conversant with such trials, it is but an elementary proposition that the demeanour of a witness is the most important element in assessing the value of his evidence. The evidence of a witness which might sound all right on paper, may be rendered useless by observing his demeanour. In this case it is not as if the evidence that was given before the Superintendent was a mere formal evidence or an evidence which did not contribute to the ultimate decision. The evidence of the two witnesses mentioned above appears to have contributed largely to the ultimate judgment of the enquiry authority in such a case it was highly improper for the opposite party No. 1 to have delegated the task of hearing witnesses to some one else for two days and then deciding the case, upon mere record of evidence. By this action the petitioner has been prejudiced. In my opinion, the procedure adopted has vitiated the departmental proceedings and cannot be supported. The petitioner cannot be said to have a reasonable opportunity of defending himself. " I respectfully agree with the above quoted observations of Sinha, J. 13. In this case it appears, from paragraph 13 of the petition, that evidence of all the witnesses examined by the department, was recorded by R. B. Malhotra, the then enquiring officer. That statement is not denied in the affidavit-in-opposition. It also appears from the enquiry report that in finding the petitioner guilty particularly of Charge No. 1, considerable emphasis was laid on the oral evidence of departmental witnesses by K. K. Malhotra, who made out the report, although he had not himself examined those witnesses and had no opportunity to observe their demean-our. It also appears from the enquiry report that in finding the petitioner guilty particularly of Charge No. 1, considerable emphasis was laid on the oral evidence of departmental witnesses by K. K. Malhotra, who made out the report, although he had not himself examined those witnesses and had no opportunity to observe their demean-our. Therefore, the petitioner may have justifiable grievance that he had not a reasonable opportunity to defend himself. For the reason aforesaid I uphold the last argument made by Mr. Roy. 14. In the result the Rule succeeds and is made absolute. The enquiry report and the notice on the petitioner to show cause against the proposed penalty stand quashed and the respondents are restrained from proceeding further on the basis of the report. Let a Writ of Certiorari and a consequential Writ of Mandamus accordingly issue. Nothing contained in this judgment will, however, debar the respondents from proceeding afresh on the basis of charges leveled against the petitioner, according to law. There will be no order as to costs.