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2024 DIGILAW 5 (HP)

Mukesh Chand Sharma v. Himachal Pradesh

2024-01-01

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. CMP-T No. 1064 of 2023 For the reasons assigned, this application is allowed. CWPOA No. 5331 of 2019 2. With the consent of learned Counsel for the parties, the case was taken up for consideration today itself. 3. Brief facts necessary for the adjudication of the present petition are as under:- The petitioner was appointed as a Junior Engineer in the I&PH Department in February 1981. FIR No. 1/2001 was registered on 10.04.2001, under Sections 420 467, 468, 471 and 120-B of the Indian penal code against one Sh. S.K. Vats and others including the petitioner. On account of the lodging of this FIR, when the Departmental Promotion Committee met for considering eligible candidates for promotion to the post of Assistant Engineer from the post of Junior Engineer on 28 September 2013, the case of the petitioner was kept in sealed cover. 4. Learned Counsel for the petitioner submitted that as on the date when the Departmental Promotion Committee met, neither there was any departmental enquiry pending against the petitioner, nor charges stood framed against him in the criminal case, therefore, the act of the respondent- department of following the sealed cover procedure in his case is bad in law as the same was contrary to the law laid down by Hon’ble Supreme Court of India in Union of India and Others Versus K.V. Jankiraman and Others, (1991) 4 Supreme Court Cases 109, as has been subsequently followed by this court in various judgments. 5. Learned Law Officer argued that there is no illegality in the act of the respondent-department in following the sealed cover procedure, as on the date when the DPC met to consider the name of the petitioner alongwith other eligible candidates for promotion to the post of Assistant Engineer, an FIR stood lodged against the petitioner and the challan filed after completion of investigation was pending consideration before the learned Judicial Magistrate concerned. Accordingly, he submitted that the present petition being devoid of merit be dismissed. 6. I have heard learned Counsel for the parties and also gone through the pleadings as also the documents that have been appended alongwith the pleadings. 7. Herein, the DPC met to consider the case of eligible incumbents/Junior Engineers for promotion to the post of Assistant Engineer on 28.09.2013. 6. I have heard learned Counsel for the parties and also gone through the pleadings as also the documents that have been appended alongwith the pleadings. 7. Herein, the DPC met to consider the case of eligible incumbents/Junior Engineers for promotion to the post of Assistant Engineer on 28.09.2013. Admittedly, as on the day when DPC met, neither any departmental enquiry was pending against the petitioner nor charges stood framed against him by the learned Trial court in the FIR lodged against him. 8. This Court while dealing with an identical issue raised in CWP No. 3466 of 2021, titled as Rajeshwar Dayal Janartha versus State of Himachal Pradesh and others held as under:- “At this stage itself, it is relevant to refer to the judgment of Hon’ble Supreme Court in Union of India and others vs. K.V. Jankiraman, (1991) 4 Supreme Court Cases 109. In the said case, the question involved which stood decided by Hon’ble Supreme Court stands culled out in para-8 of the judgment, which para is reproduced herein below:- “8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are:(1) what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?' The ,'sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over'. Hence, the relevance and importance of the questions.” 10. This Court is concerned with the question No. 1 framed by Hon’ble Supreme Court, i.e. “what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee?’’ The first question was decided by Hon’ble Supreme Court as under:- “16. Hence, the relevance and importance of the questions.” 10. This Court is concerned with the question No. 1 framed by Hon’ble Supreme Court, i.e. “what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee?’’ The first question was decided by Hon’ble Supreme Court as under:- “16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/ criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge- memo/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39) "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) * * * (3) * * * (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;” 17. There' is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion no. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. 18. We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal.” 11. This Court is of the considered view that Hon’ble Supreme Court of India has clearly and in unambiguous terms laid down the law that criminal proceedings can be said to be pending against an employee only after the charges have been framed. Charges are framed by a Court. Any other interpretation of the judgment of Hon’ble Supreme Court will do violence with the judgment for the reasons that filing of the investigation report on the basis of lodging of the FIR by the Investigating Officer in terms of the provisions of Section 173 of the Code of Criminal Procedure before the Trial Court cannot be treated to be the date from which it can be said that criminal proceedings are pending against an employee. The filing of the investigation report is a statutory duty enshrined upon the Investigating Officer in terms of provisions of Section 173 of the Code of Criminal Procedure, and it is only after the Court, upon perusal of the investigation report and after hearing the accused, frames charges against the accused, then, it can be said that criminal proceedings stand initiated against the accused. In this regard, it is relevant to refer to an order passed by Central Administrative Tribunal in O.A. Nos. 941 and 1131 of 2011, titled as Chacko Eapen Vs. Union of India and others (OA No. 941 of 2011) and Raghunathan.M.V. and others Vs. Union of India and others (OA No. 1131 of 2011), decided on 8th February, 2012, in para-5 whereof, learned Tribunal, after placing reliance upon the judgment of Hon’ble Supreme Court in K.V. Jankiraman, has held as under:- “5. In the light of the O.Ms cited above, in the instant case, sealed cover procedure is applicable only when prosecution for criminal charge is pending. As stated by the respondents, vigilance clearance was not granted to the applicants as a charge sheet has been filed against the applicants in the Court. As per O.M. dated 25.10.2004, a simple vigilance clearance would need to be furnished where none of the three conditions in O.M. dated 14.09.1992 has arisen. Therefore, the issue to be decided is whether a criminal case is pending against the applicants. A criminal case can be said to be pending only after issuance of a charge sheet by the competent Court to the accused. The relevant extract from the judgment of the Apex Court in Union of India vs. K.V. Janakiraman, AIR 1991 SC 2010 , is reproduced as under: "On the first question, viz, as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have been commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceeding or a charge sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The Sealed cover procedure is to be resorted to only after the charge memo/charge sheet is filed. The Sealed cover procedure is to be resorted to only after the charge memo/charge sheet is filed. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the Sealed Cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charges memo/ charge sheet, it would not be in the interest of purity of administration to reward the employee with promotions, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases." (emphasis supplied)” 12. This Court is of the considered view that a person against whom criminal prosecution is filed can be said to be charge sheeted in those proceedings only after the framing of the charges against him. Before the charges are framed, a person can always seek his discharge and in case the person is able to make out a case for his discharge, then, the learned Court can pass appropriate orders discharging him and by dropping the case against him. Mere filing of the investigating report by the Investigating Officer before the Court concerned, cannot be said to be the stage of initiation of prosecution. Therefore also, the denial of Vigilance Clearance Certificate to the petitioner on the ground that as on the date concerned, the charge sheet stood filed by the Investigating Officer before the Court concerned is not sustainable in law. 13. Chapter 16.24 of the Hand Book on Personnel Matters Vol-I, deals with the principles for promotion to the “Selection” and “Non- Selection” posts. Chapter 16.32 deals with consideration of cases where disciplinary/Court proceedings etc. are pending. 13. Chapter 16.24 of the Hand Book on Personnel Matters Vol-I, deals with the principles for promotion to the “Selection” and “Non- Selection” posts. Chapter 16.32 deals with consideration of cases where disciplinary/Court proceedings etc. are pending. In this Chapter, it is provided that in the following cases of Government Servants, sealed cover procedure will be applicable:- “(i) Cases of Government servants to whom Sealed Cover Procedure will be applicable At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories for whom sealed cover procedure is to be adopted should be specifically brought to the notice of the Departmental Promotion Committee:- (a) Government servants under suspension (b) Government servants in respect of whom a charge sheet has been issued and disciplinary proceedings are pending; and (c) Government servants in respect of whom prosecution for a criminal charge is pending.” 14. The Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), in terms of office memorandum dated 02.11.2012 (Annexure P-18), on the subject “Comprehensive review of instructions pertaining to vigilance clearance for promotion-regarding”, after taking into consideration the pronouncement of the judgment of Hon’ble Supreme Court in K.V. Jankiraman’s case (supra) issued the three guidelines. The three guidelines referred to in para-2 of Department’s O.M. dated 14.09.1992, are as under:- “(i) Government servants under suspension; (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending.” 15. In this office memorandum, reference has also been made to Rule 9(6)(b)(i) of CCS (Pension) Rules, 1972, which provides as under:- “(b) judicial proceedings shall be deemed to be instituted- (i) In the case of criminal proceedings, on the date of which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made.” 16. The un-amended Clause 6.4 of the Vigilance Manual of the Government of Himachal Pradesh was as under:- “6.4. The un-amended Clause 6.4 of the Vigilance Manual of the Government of Himachal Pradesh was as under:- “6.4. The vigilance clearance certificate will not be issued by the Vigilance Department or the competent authority as the case may be in respect of a Government servant if- (1) His name figures in the list of officers of doubtful integrity, or (2) Regular department action against him has been advised by the Vigilance Department, or (3) A case of vigilance nature is pending against him in a court of law, or But the vigilance clearance certificate will be issued by the competent authority or the Vigilance Department as the case may be in respect of Government servant in all other cases.” 17. After the amendment was carried out in Clause 6.4 vide Annexure P-20, now the same reads as under: “6.4 “The vigilance clearance certificate will not be issued by the Vigilance Department or the competent authority as the case may be in respect of a Government servant if- 1. He/she is under suspension; or 2. In respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; or 3. Against whom prosecution for a criminal charge is pending. Note:- As regards the stage when prosecution for a criminal charge can be stated to be pending, the Rule-9(6)(b)(i) of CCS(Pension) Rules, 1972 shall be followed which provides as under: “(b) judicial proceedings shall be deemed to be instituted- (i) In the cases of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made” But the vigilance clearance certificate will be issued by the competent authority or the Vigilance Department as the case may be in respect of a Government servant in all other cases.” 18. Clause 3 of the amended para 6.4 has to be read down to mean that a criminal charge has to be construed to be pending against an incumbent only after charges stands framed against him by the competent Court of law and thereafter charge sheet stands issued to him. By no stretch of imagination, it can be held that judicial proceedings can be deemed to be pending against an incumbent on the date on which an investigation report is submitted the officer in terms of the provisions of Section 173 of the Code of Criminal Procedure. By no stretch of imagination, it can be held that judicial proceedings can be deemed to be pending against an incumbent on the date on which an investigation report is submitted the officer in terms of the provisions of Section 173 of the Code of Criminal Procedure. This Court would again like to lay stress on the fact that Hon’ble Supreme Court of India in K.V. Jankiraman’s case (supra) has categorically held while answering question No. 1 “as to when for the purpose of sealed cover procedure, disciplinary proceedings can be said to have commenced”, that the same can be said to have been commenced only when a charge sheet in a criminal prosecution is issued to the employee. Hon’ble Supreme Court has upheld the findings of the learned Tribunal that sealed cover procedure is to be resorted to only when a charge sheet is issued. 19. Chapter-XII of the Criminal Procedure Code, 1973, deals with information to the Police and their powers to investigate. Section 173 of the same provides for report of the Police Officer on completion of investigation. This section is reproduced herein below:- “Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5). (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).” 20. Thus a carful perusal of Section 173 demonstrates that the same provides that as soon as the investigation is completed, the officer in- charge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report “a report in the form prescribed by the State Government, stating— (a) The names of the parties; (b) The nature of the information; (c) The names of the persons who appears to be acquainted with the circumstances of the case; (d) Whether any offence appears to be have been committed and, if so, by whom; (e) Whether the accused has been arrested; (f) Whether he has been released on his bond and, if so, whether with or without sureties; (g) Whether he has been forwarded in custody under section 170; (h) Whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C [Section 376D or section 376E of the Indian Penal Code (45 of 1860)] 21. Now incidentally, Section 173 nowhere uses the word ‘charge sheet’. Word ‘charge’ finds mention in Chapter XVII of the Code of Criminal Procedure, which Chapter contains Sections 211 to 244 of the Code of Criminal Procedure. Section 211 of the Code deals with the contents of charge and the same reads as under:- “211. Contents of charge. (1) Every charge under this Code shall state the offence with which the accused is charged. Section 211 of the Code deals with the contents of charge and the same reads as under:- “211. Contents of charge. (1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific- name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. Illustrations (a) A is charged with the murder of B. This is equivalent to a statement that A' s act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it. (b) A is charged under section 326 of the Indian Penal Code (45 of 1860), with voluntarily causing grievous hurt to B by means of an instrument for shooting. (b) A is charged under section 326 of the Indian Penal Code (45 of 1860), with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code-, and that the general exceptions did not apply to it. (c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property- mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property- mark, without reference to the definitions of those crimes contained in the Indian Penal Code (45 of 1860); but the sections under which the offence is punishable must, in each instance, be referred to in the charge. (d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.” 22. Chapter XVI of the Code of Criminal Procedure deals with commencement of proceedings before Magistrates and close scrutiny of the provisions of Section 204 to 210 also demonstrates that in none of these statutory provisions, the word ‘çharge sheet’ is used. Section 207 of the Code also provides for supply to the accused of copy of police report and other documents in any case where the proceedings have been instituted on a police report. This Section also does not the word ‘çharge sheet’. Therefore, a criminal charge can be stated to be pending against an incumbent only when a charge sheet is served upon the accused and which obviously will follow the framing of the charge and thus by no stretch of imagination it can be held that a prosecution for criminal charge can be said to be pending against an employee before the charges are framed. Clause 3 of the amended para 6.4 of the Himachal Pradesh Vigilance Manual is thus read down as above. Clause 3 of the amended para 6.4 of the Himachal Pradesh Vigilance Manual is thus read down as above. Meaning thereby that the Vigilance Clearance Certificate cannot be withheld in respect of a government servant against whom charges have not yet been framed in a criminal case and the said certificate cannot be withheld only on the ground that the police report stands filed before the Magistrate concerned under Section 173 of the Criminal Procedure Code. If we apply the above discussion to the facts of the present case, it is abundantly clearly that adopting of sealed cover procedure in the case of the present petitioner was totally uncalled for because Vigilance Clearance Certificate could not have been denied in favour of the petitioner as it is not in dispute at all that as on the date when the Vigilance Clearance Certificate was requisitioned or when the DPC met for consideration of eligible candidates for promotion to the post of Additional Excise and Taxation Commissioner, charges had yet not been framed in the criminal case against the petitioner.” 9. Thus, in terms of the judgment passed by this court in Rajeshwar Dayal Janartha versus State of Himachal Pradesh and others (supra) which stands quoted in extensio to avoid repetition of the legal preposition, it has been held categorically that no prosecution for criminal charges can be said to be pending against an employee before the charges are framed. In this case, admittedly, no charges were framed against the petitioner as on the day when the DPC met. In fact, in para 6 (xii) of the petition, there is a categorical averment made by the petitioner that the criminal case pending against the petitioner and others, in the court of Chief Judicial Magistrate, Solan, was at the stage of challan and no charges were framed against him and no departmental proceedings were initiated against the petitioner and he had also not been suspended. Incidentally, the reply filed by respondents No. 1 and 2 to the petition in general and para 6(xii) in particular, demonstrates that all that stood mentioned therein was that a chargesheet has been filed against the petitioner by the Police in the competent Court of jurisdiction. 10. Incidentally, the reply filed by respondents No. 1 and 2 to the petition in general and para 6(xii) in particular, demonstrates that all that stood mentioned therein was that a chargesheet has been filed against the petitioner by the Police in the competent Court of jurisdiction. 10. That being the case, as no charges were framed against the petitioner as on the date when DPC met, the act of the respondent-department to resort to sealed cover procedure is not sustainable in the eyes of law. 11. Accordingly, this writ petition is allowed and direction is issued to the respondents to forthwith open the sealed cover, in which, the case of the petitioner was kept after consideration by the DPC. It is further ordered that in case the petitioner is found recommended for promotion by DPC, then promotion be conferred upon him as from the date when other incumbents who were also recommended by the said DPC alongwith him for promotion to the post of Assistant Engineer, were promoted, with all consequential benefits, including seniority as well as monetary. Pending miscellaneous application(s), if any, also stand disposed of accordingly.