Constable 1518 Civil Police v. Inspector General of Police, Deputy Inspector General of Police
2005-05-18
SANJAY MISRA
body2005
DigiLaw.ai
SANJAY MISRA, J. ( 1 ) PROCEEDINGS under the U. P. Police Officers of the Subordinate Ranks Punishment and Appeal rules 1991 were initiated against the petitioner for being absent from his duties w. e. f. 3. 1. 1995 to 25. 3. 1995 i. e. 81 days. The petitioner was a constable posted at Police Lines Allahabad. It is alleged by the petitioner that he was not given any opportunity of participating in the enquiry consequently the order dated 12. 3. 1996 of removal passed by the disciplinary authority and that the order dated 28. 2. 1997 passed by the appellate authority as also the order dated 25. 5. 2002 /10. 6. 2002 of the revisional authority was illegal. It is the case of the petitioner that he had completed fourteen years satisfactory service but due to illness he could not perform his duties as constable during the aforesaid period of 81 days. It has been stated by the petitioner that he was intimated about the order dated 12. 3. 1996 passed by the respondent No. 3. Consequently he filed an appeal dated 10. 6. 1996 before the respondent No. 2. He has further stated that he could not send his leave application through registered post on account of financial problem. The said appeal was rejected by the respondent No. 2 where after the petitioner preferred a revision before the responded No. 1. It is stated by the petitioner that the authorities concerned had failed to appreciate that in fact no enquiry what so ever has been conducted and the entire disciplinary proceedings were virtually ex-parte. It has been stated that he had given valid explanation for his absence and therefore, it was incumbent and obligatory on the part of the authorities to have objectively considered the grievance of the petitioner and the explanation submitted by him. He submits that the authorities have not considered the case of the petitioner in its right perspective and to the contrary a very narrow view has been taken which is erroneous on the lace of it and is against the rule of fair play as such being violative of Article 14 and 21 of the Constitution of india.
He submits that the authorities have not considered the case of the petitioner in its right perspective and to the contrary a very narrow view has been taken which is erroneous on the lace of it and is against the rule of fair play as such being violative of Article 14 and 21 of the Constitution of india. The petitioner has further averred that statement of fact that he did not participate in the enquiry was vague and evasive and the entire proceedings were conducted without affording reasonable opportunity to the petitioner to defend himself. Further that the punishment of dismissal is too severe and is not commensurate to the charge which has been leveled against him. ( 2 ) COUNTER affidavit has been filed on behalf of the respondents. It is stated in the counter affidavit that from 3. 1. 1995 the petitioner absented from duty which fact was recorded in the general diary and his return on 25. 3. 1995 was also recorded. It is stated that proceedings under rule 14 (1) of the Rules of 1991 were initiated against the petitioner and he was given full opportunity to participate in the enquiry. However, since the petitioner did not participate, therefore, enquiry report dated 19. 2. 1996 was submitted. The respondent No. 3 issued show cause notice dated 20 2. 1996 to the petitioner which was sent by a special messenger and due to absence of the petitioner at his residence it was served by affixation. Thereafter no response was received from the petitioner. The respondent No. 3 passed an order dated 12. 3. 1996 removing him from service. The petitioner preferred an appeal and upon dismissal of his appeal, he preferred revision which was also dismissed. It is stated that the petitioner had filed civil Misc. Writ Petition No. 7518 of 2002 and in compliance of the order of this court the petitioner was given opportunity by the respondent No. 1. It has been stated that the petitioner has alternative remedy before the State Services Tribunal. It is the case of the respondents that the petitioner has not given any intimation with respect to his absence from duty on the ground of illness and as such he has not complied with the provisions of Regulation 381 and 382 of the U. P. Police regulations.
It is the case of the respondents that the petitioner has not given any intimation with respect to his absence from duty on the ground of illness and as such he has not complied with the provisions of Regulation 381 and 382 of the U. P. Police regulations. It is further case of the respondents that service record of the petitioner reveals that on previous occasions, the petitioner has absented himself from duty unauthorizedly and lenient view was taken but the petitioner has not improved upon his ways. ( 3 ) IN the rejoinder affidavit the petitioner has stated that entire proceedings have been conducted without providing any opportunity of hearing and in violation of principles of natural justice therefore the petitioner cannot be relegated on the ground of alternative remedy. He has further re-iterated that his absence was due to illness and in future he will try not to be absent from duty. ( 4 ) THE enquiry report has been filed as Annexure-1 to the writ petition. A perusal of which reveals following facts ; i) enquiry officer was appointed by the order dated 1. 11. 1995. ii) the charge sheet dated 4. 11. 1995 could not be served on the petitioner because he was absent from 11. 11. 1995 therefore, on 15. 11. 1995 the same was sent by special messenger to the petitioners original residence at Pure Harikara Post Shakar Daha, Police Station Baghrai District pratapgarh. The said charge sheet was served upon him in person on 1. 12. 1995. However, the petitioner did not appear before the enquiry officer within time. iii) The enquiry proceedings were started on 13. 12. 1995 and 22. 12. 1995 was fixed for departmental evidence. On 13. 12. 1995 a notice was sent by special messenger to the permanent residence of the petitioner but the petitioner was absent from his residence and therefore, special messenger pasted the notice on the door of his residence in the presence of four witness of the village on 17. 12. 1995. iv) The petitioner and departmental witnesses did not appear on 22. 12. 1995 therefore, departmental witnesses were asked to come on 29. 12. 1995. v) On the 29. 12. 1995 none appeared before the enquiry officer therefore, 8. 1. 1996 was fixed for evidence of departmental witnesses. vi) On 2. 1.
12. 1995. iv) The petitioner and departmental witnesses did not appear on 22. 12. 1995 therefore, departmental witnesses were asked to come on 29. 12. 1995. v) On the 29. 12. 1995 none appeared before the enquiry officer therefore, 8. 1. 1996 was fixed for evidence of departmental witnesses. vi) On 2. 1. 1996 notice of the said date was again sent by special messenger to the permanent residence of the petitioner which were received by the petitioner in person on 6. 1. 1996. vii) On 8. 1. 1996 evidence of the departmental witnesses started but inspite of service the petitioner did not participate in the enquiry. viii) The next date fixed in the enquiry was 13. 1. 1996 for cross examination of the departmental witnesses and to such effect on 8. 1. 1996 notice was sent to the petitioner by special messenger. Since the petitioner was absent from his residence therefore, the special messenger pasted the notice on the door of his house on 9. 1. 1996 in the presence of three witnesses of the same village. ix) Inspite of various efforts made by the enquiry officer the petitioner did not participate in the enquiry therefore, departmental evidence was concluded and 27. 1. 1996 was fixed for the defence. The notice of the said date was again sent by special messenger to the permanent residence of the petitioner but since he was absent from his residence therefore, special messenger pasted the notice on the door of his house in the presence of the witnesses. Inspite of the said service, the petitioner did not appear before the enquiry officer nor submitted any written explanation to the charges leveled against him. Consequently on the basis of evidence before the enquiry officer, he proceeded to give his enquiry report. ( 5 ) A copy of the impugned order of removal has been filed as Annexure-2 to the writ petition which indicates that a show cause notice dated 20. 2. 1996 was issued to the petitioner at his permanent residence but due to his absence the said notice was pasted on the door of his house on 2. 3. 1996 in the presence of witnesses. The petitioner did not reply to the show cause notice therefore, the respondent No. 3 after considering the enquiry report proceeded to pass the order dated 12. 3. 1996 removing the petitioner from service.
3. 1996 in the presence of witnesses. The petitioner did not reply to the show cause notice therefore, the respondent No. 3 after considering the enquiry report proceeded to pass the order dated 12. 3. 1996 removing the petitioner from service. Feeling aggrieved the petitioner preferred an appeal against the said order and in the grounds of appeal he has stated that he received the order of removal on 21. 3. 1996. ( 6 ) LEARNED counsel for the petitioner has contended that no proper enquiry was conducted by the enquiry officer and even the disciplinary authority has not given him any opportunity before passing the order of removal. He has further contended that the appellate and revisional authority have failed to consider the explanation given by the petitioner for his absence and that the punishment awarded to him is not commensurate to the charge leveled against him. In support of his submissions learned counsel has relied upon the decisions reported in 2001, 1 UPLBEC 865 sahdeo Singh v. U. P. P. S. T. and Ors. , (2001), 3 UPLBEC 2196 L/nk Musafer Yadav v. Commander 47 Bn. CRPF and Ors. , (2002) 1, UPLBEC 775 Sukhbir Singh v. SSP Agra and ors. and decision of the Apex Court reported in (2004) 2, UPLBEC 1294 Bhagwan Lal Arya v. Commissioner of Police and Ors. ( 7 ) IN the case of Sahdev Singh (Supra), a Division Bench of this Court reduced the punishment from dismissal to re-instatement with 25% of the back salary on the ground that the petitioner having been charged with consumption of liquor did not say anything in defence nor produced any witnesses and only prayed for forgiveness and also assured that he will not commit such act in future. ( 8 ) THE case of L/nk Musafer Yadav related to overstay after sanctioned leave. This court therefore, by applying the doctrine of proportionality held that the punishment of dismissal was too harsh and loss of 50% of wages was sufficient in the facts of the case. ( 9 ) IN the case of Sukhbir Singh (Supra) this court came to a conclusion that there had been complete violation of the principles of natural justice in conducting the enquiry and the respondents had not made any particular denial or averment contrary thereof in their counter affidavit.
( 9 ) IN the case of Sukhbir Singh (Supra) this court came to a conclusion that there had been complete violation of the principles of natural justice in conducting the enquiry and the respondents had not made any particular denial or averment contrary thereof in their counter affidavit. Hence it was held that the action of the respondents was not justified. ( 10 ) THE Honble Supreme Court in the case of Bhagwan Lal Arya (Supra) while dealing with a case under the Delhi Police (Punishment and Appeal) Rules 1980 held that punishment of dismissal/removal from service can be awarded only for an act of grave nature or as cumulative effect of continued misconduct. It was held that merely one instance of absence and that too because of bad health and valid and justified grounds cannot become basis for awarding such a punishment. The disciplinary authority did not examine the medical aspect due to which the said appellant was absent and it was held that no reasonable disciplinary authority would term absence on medical grounds with proper medical certificate from government Doctors as grave misconduct in terms of the rules. In view of the aforesaid fact, the Honble Supreme Court held that punishment of dismissal was excessive and disproportionate punishment which is not permissible under the service rules. ( 11 ) A preliminary objection has been taken by the respondents in paragraph No. 3 (ii) of the counter affidavit that the present writ petition is not maintainable before this Court for the reason that State has not been made a party and only officers who have passed impugned orders and conducted the enquiry have been made parties in this writ petition. In reply to the said objection, the petitioner has stated that since the entire proceedings were conducted behind his back without providing any opportunity of hearing and in violation of principles of natural justice therefore, the availability of alternative remedy is no bar. Such reply has not squarely met the preliminary objection raised on behalf of the State respondents. Honble supreme court in the case of Ranjeet Mal v. General Manager and Anr.
Such reply has not squarely met the preliminary objection raised on behalf of the State respondents. Honble supreme court in the case of Ranjeet Mal v. General Manager and Anr. reported in 1977 Volume-I (S. C. C) 484 has held that an employee was a servant of the Union whose removal would be removal from service of the Union therefore, any order which can be passed by any Court on a challenge of such removal would have to be enforced against the Union. The General Manager or any other authority acting in the Railway Administration is as much a servant of the Union as the employee. It was held that any order passed on an application under Article 226 or the constitution which will have the effect of setting aside the removal will fasten liability on the union and not on any Servant of the Union hence, the Union was a necessary party. Consequently the Honble Supreme Court upheld the order of the High Court rejecting the petition on the said ground. ( 12 ) IN the present case, the record indicates that every effort was made to inform the petitioner by Special Messenger on several occasions to participate in the enquiry. In spite of service of charge sheet upon him in person, the petitioner did not participate in the enquiry. Notices were sent at his residence through special messenger on many occasions and due to absence of the petitioner, the said notices were pasted on the door of his residence in front of independent witnesses who were residents of the same village. Even then the petitioner did not avail the opportunity to participate in the enquiry. Such being the circumstances, the petitioners plea that he was not given any opportunity to participate in the enquiry cannot be accepted. Before the enquiry officer, the petitioner did not give reply to the notice. He did even not reply to the show cause notice given by the respondent No. 3. ( 13 ) RULE 14 of the U. P. Police Officers of the Subordinate Ranks Punishment and Appeal Rules 1991 provides the procedure for enquiry. The Procedure has been laid down in Appendix-I to the said Rules.
He did even not reply to the show cause notice given by the respondent No. 3. ( 13 ) RULE 14 of the U. P. Police Officers of the Subordinate Ranks Punishment and Appeal Rules 1991 provides the procedure for enquiry. The Procedure has been laid down in Appendix-I to the said Rules. The same is quoted hereunder :upon institution of a formal enquiry such police officer against whom the inquiry has been instituted shall be informed in writing of the grounds on which was proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form 1 appended to these rules which shall be communicated to the charged Police Officer and which shall be so clear and precise as to give sufficient indication to the charged police officer of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the Inquiry officer so directs a oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry officer considers necessary. The charged Police Officer shall be entitled to cross examine the witnesses to give evidence in person and to have such witnesses called as he may wish; provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the finding and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Police officer. ( 14 ) IN the present case, the enquiry officer had sent communication to the petitioner on several occasions and has given reasonable time to file explanation of his defence and whether he desires to be heard in person. The opportunities as contemplated in the procedure were given to the petitioner as indicated by the record of this ease. It was the petitioner who did not avail such opportunities.
The opportunities as contemplated in the procedure were given to the petitioner as indicated by the record of this ease. It was the petitioner who did not avail such opportunities. Even in the writ petition very vague statement has been made with respect to the fact of pasting of notices on the door of the petitioners residence in the presence of the witnesses belonging to the village and in fact there is no specific denial with respect to such notices which were sent by special messengers on various dates. On the other hand, the petitioner has in various paragraphs of the writ petition stated that authorities concerned ought to have considered the reasons given by him before the appellate and revisional authority in an objective manner and in a correct perspective. It has not been specifically stated by the petitioner in his pleadings as to whether the said various notices sent by special messenger to his residence and pasted on the door of his residence in presence of witnesses due to the petitioners absence were not known to him. He has not come up with the case that the said Special Messenger did not serve the notice by pasting before the witnesses belonging to the same village. ( 15 ) IT is true that no one should be condemned unheard. Giving of notice would be the first step towards informing the employee so that he may be able to meet the charge. Sufficient time for the purpose would be necessary before the fact finding enquiry proceeds. These are the basic requirements of the rule of fair play and they also ensure protection of the right of the employee. In the appeal filed by the petitioner he has admitted the fact that he was served with the charge sheet on 1. 12. 1995. He has also admitted receiving the notice dated 6. 1. 1996 sent by the enquiry officer. ( 16 ) IN View of the aforesaid it cannot be held that no effort was made to serve the petitioner on various occasions, on the other hand, the enquiry officer has found that the petitioner has not cooperated with the enquiry and has deliberately absented himself from his duty even during the period the enquiry was being conducted. The record indicates that the petitioner absented himself from 11. 11. 1995 for the entire period of enquiry.
The record indicates that the petitioner absented himself from 11. 11. 1995 for the entire period of enquiry. Even such absence during the period of enquiry was unauthorized and without obtaining sanction of leave. Such being the facts and circumstances of the case, this Court finds that there has not been violation of the principles of natural justice in conducting the enquiry. ( 17 ) AS has already been found from the records of this case and a perusal of the impugned orders that the petitioner has absented himself without sanction of leave not on one but on several occasions therefore, the provisions of Regulation 381 and 382 of the Police Regulations would be attracted. The said regulations make it incumbent for them to apply for leave. ( 18 ) BEFORE the respondent No. 1 the petitioner was given opportunity of hearing and order was passed thereafter. The order of the respondent No. 1 indicates that the defence which was taken by the petitioner before the appellate authority and before the revisional authority was considered on merits and it came to the conclusion that the petitioner absented from duty without obtaining any leave whatsoever. The respondent No. 1 has also taken into account the fact that the petitioner was a habitual absentee without obtaining leave in accordance with rules. Such instances of the past have been detailed in the order passed by the respondent No. 1. It is evident from the record that the petitioner was given hearing by the respondent No. 1. It was a post decisional hearing. ( 19 ) THE petitioner further seeks quashing of the impugned orders on the ground that the punishment awarded is too severe and is not commensurate to the charges leveled against him. It is settled law that the Court while reviewing the punishment has to take into account certain factors the Court cannot go into the correctness of choice of extent of punishment made by the disciplinary authority unless it involves one of such factors. In the case of Union of India and anr.
It is settled law that the Court while reviewing the punishment has to take into account certain factors the Court cannot go into the correctness of choice of extent of punishment made by the disciplinary authority unless it involves one of such factors. In the case of Union of India and anr. v. G. Ganayutham, AIR 1997 SC 3387 the Honble Supreme Court has laid down in paragraphs 28 as quoted here under : "the current position of proportionality in administrative law in England and India can be summarized as follows : 1) To judge the validity of any administrative order or statutory discretion, normally the wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could on the material before him and within the frame work of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the wednesbury test. 2) The Court would not interfere with the administrators decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standard. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles. 3. (a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into english Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have on the material before him arrived at the primary judgment in the manner he has done.
These are the CCSU principles. 3. (a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into english Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have on the material before him arrived at the primary judgment in the manner he has done. 3 (b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. 4 (a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. ( 20 ) THEREFORE, the courts should not interfere unless the decision of the disciplinary authority was illogical and was shocking to the conscience of the Court, being in defiance of logic or moral standards The scope is therefore, limited to the deficiency in the decision making process and not the decision. ( 21 ) IN the case of Maan Singh v. Union of India and Ors. (2003) Vol. 3, S. C. C. 464, the honble Supreme Court has held in paragraph 11 as quoted hereunder. Para. 11. Relying on State of Punjab v. Ram Singh Ex. Constable one of the arguments advanced before us is that it is only in cases where the misconduct is of the gravest kind an order of dismissal shall be made. This case was decided in the contest of Rule 16. 2 (1) of the Punjab police Manual 1934 Vol. II. The said Rule reads as follows : "dismissal stall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfit ness for police service.
This case was decided in the contest of Rule 16. 2 (1) of the Punjab police Manual 1934 Vol. II. The said Rule reads as follows : "dismissal stall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfit ness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension. " After analyzing the said provision, this Court in Ram Singh case held that Rule 16. 2 (1) consists of two parts. Firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer is proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified. ( 22 ) IN the present case, the petitioner was absent for 81 days without any leave for which the enquiry was conducted. However, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police services was taken into account. A reading of the order of revisional authority indicates that the petitioner had made it a habit to absent himself without leave and therefore, even if one misconduct may not itself have warranted an order of dismissal reference to his past conduct of similar misconduct on several occasions was considered. Having considered the same it was found that the petitioner was habitual absentee for long period therefore, the view taken by the respondent authorities in such facts and circumstances cannot be said to be unjustified. ( 23 ) IN the case of Regional Manager UPSRTC and Anr. v. Holi Lal and Anr.
Having considered the same it was found that the petitioner was habitual absentee for long period therefore, the view taken by the respondent authorities in such facts and circumstances cannot be said to be unjustified. ( 23 ) IN the case of Regional Manager UPSRTC and Anr. v. Holi Lal and Anr. reported in 2003 volume-3 SCC 605, the Honble Supreme court has laid down that the test of proportionality is very limited and restricted to exceptional cases. While dealing with a case of misconduct that had caused a loss of Rs. 16 to the State, the Honble Supreme Court held that mere statement that the punishment was disproportionate would not be sufficient. It was held that disciplinary authority and the appellate authority being the fact finding authorities have exclusive power to consider the evidence and with a view to maintain discipline, it is in their discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. It is only when punishment imposed by such authorities shocks the conscious of the court that it would be appropriate for the Court to direct said authorities to reconsider the penalty imposed or the Court may itself in exceptional and rare cases impose appropriate punishment with cogent reasons. While deciding the proportionality of punishment factors such as mental set up, type of duty and similar circumstances have to be taken into consideration. The police force is a disciplined force and in a case where it has been found by evidence that employee is habitual absentee without sanctioned leave, the High Court would not interfere in such punishment, the same being not disproportionate to the charge levelled against him. ( 24 ) THE disciplinary proceedings have been taken against the petitioner under the 1991 Rules. The authority has been given the discretion to take a decision under the said Rules. Such decision has to be based upon the facts of each case. The fact finding authorities have found the charge to be true. The respondent No. 1 has also taken into consideration the past service record of the petitioner wherein it has been found that the petitioner is a habitual absentee. Such instances in the service record as found by the respondent No. 1 are as given below : i) In 1985 the petitioner was given a warning for his absence without sanctioned leave.
Such instances in the service record as found by the respondent No. 1 are as given below : i) In 1985 the petitioner was given a warning for his absence without sanctioned leave. ii) In 1988-89 and 1993-94 there is an entry to the effect that the petitioner is a habitual absentee. iii) In 1992 the petitioner was suspended for being absent without leave. iv) In 1994 the petitioner remained absent for 213 days and was given a warning. v) In 1995, the petitioner was given minor punishment for being absent without sanctioned leave. ( 25 ) ON a consideration of the aforesaid facts, the order of removal of the petitioner cannot be said to be not commensurate with the charge leveled against him. ( 26 ) FOR the reasons as stated above, this court comes to the conclusion that there has not been any violation of the principles of Natural Justice and also that the punishment of removal from service awarded to the petitioner is commensurate to the charge levelled against him. ( 27 ) THIS writ petition has no merits and is accordingly dismissed. There will be no order as to costs. . .