Central Vigilance Commission vs Shri Anand Darbari
2002 Latest Caselaw 895 Del

JUDGMENT

S.B. Sinha, C.J.

1. All these LPAs being inter-related, with the consent of the parties, were taken up for hearing together and are being disposed of by this common judgment.

2. LPA 222/01 and 234/01 arise out of judgment and order dated 5.3.2001 passed by a learned Single Judge, in CW 4749/97. LPA 426/99 and 10/2000 are by Union of India - and Central Vigilance Commission respectively against the judgment dated 28.7.99 passed by the same learned Judge, in CW 3376/98. The respondent herein filed the aforementioned writ petition 4749/97 questioning an order of the CVC contained in letter dated 23-5-1997 whereby and whereunder vigilance clearance in relation to the writ petition was withheld. In CWP 3376/98 the respondent questioned a charge sheet issued against him vide memo dated 24.11.1997.

3. Both the writ petitions had been allowed by the judgment impugned herein. We may notice that CVC was not imp leaded as a party but it was allowed to file an affidavit. CVC has preferred an appeal purported to be aggrieved by certain observations made against it by the learned Single Judge in his impugned judgment.

FACTS

4. The respondent was appointed as the Chairman-cum-MD of the Cement Corporation of India for five years by order dated 3.1.1989. In the year 1995, when the said panel was coming to an end, a large number of complaints including anonymous and pseudonymous complaints were made. No substance was found therein and thus no action was taken thereupon. He was given an extension for two years. Even at that stage several complaints were made but despite that he was given extension for a period up to 1.1.1996. Complaints however were again received against the respondent in the year 1996 which related to impropriety, financial irregularities committed by him and other officials in the matter of award of tenders and grant of contracts. CVC which was constituted by reason of a resolution of the Ministry of Home dated 11.2.1964 informed the Central Govt. that seven out of 52 allegations contained in the complaint needed detailed probe. The Central Govt was advised to make a detailed investigation independently and on the basis of materials purported to have been collected by it during investigation, they apprised the Commission of their views. Pursuant thereto a two member departmental committee was constituted which submitted its report in 1997 exonerating the respondent. The said report was forwarded to CVC. However, the latter disagreed with the said report inter alia on the ground alleging that there were clear pointers to lack of transparency and commercial prudence in the transactions, as also certain amount of rashness in the financial management on the part of the respondent and surprisingly directed investigation against the members of the committee themselves. Purported to be on the basis an independent investigation in the matter, initiation of disciplinary action against the respondent was recommended by CVC. Pursuant to or in furtherance of the said recommendation of the said committee and allegedly upon an application of its independent mind, the Central Govt initiated departmental proceedings against the respondent on those charges.

5. CVC called for certain information from the department of Heavy Industry and upon obtaining the same, it was opined that vigilance clearance could not be granted. On 5.6.97 CVC further called for further documents. The Ministry sent the entire record where-after several affidavits were called on 4.7.1997. Allegedly for two months the Department of Heavy Industry supplied information in piecemeal. By order dated 27.9.1997 the Central Govt scrapped the panel consisting of two short listed candidates on the ground that vigilance clearance could not be obtained in favor of the respondent, whereas the second candidate declined to join the same.

6. PSEB was asked to carry out final selection process where after it short-listed candidates but ACC appointed one such candidate for CMD AAI. CVC finally refused to grant vigilance clearance on 5.8.97 and recommended disciplinary action against the respondent No. 1.

7. On 6-11-1997, the respondent filed CWP 4749/97 praying for the following reliefs:

"It is therefore most respectfully prayed that this Hon'ble court may be graciously pleased

(a) to allow the writ petition of the petitioner with costs

(b) to issue appropriate writ or writs order or orders directions or directions:

(i) quashing the order of the respondent cancelling the panel prepared by PESB where the petitioner was placed No. 1 in the panel for the appointment as CMD AAI

(ii) directing the respondent to appoint the petitioner as Chairman AAI in view of his name being No. 1 on the panel prepared by PESB.

(iii) Directing the respondent No. 1 to issue vigilance clearance to the petitioner for his appointment as CMD AAI

(iv) Directing the respondents to produce all the record pertaining to the case of the petitioner's selection to the post of CMD AAI. Papers/Files relating to vigilance clearance as also the cancellation of panel and other related documents/records connected with the writ petition.

(v) Directing the respondent to protect the career prospects of the petitioner till the disposal of this writ petition.

8. During pendency of the said writ petition a charge-sheet was served upon the respondent by the Department of Heavy Industries on 24.11.1997.

9. A statement of defense was submitted by the first respondent where after an enquiry officer was appointed. CBI submitted a report stating that there was not enough material for prosecuting the first respondent from the criminal point of view, where-after the first respondent filed C.W. 3376/98 praying for the following reliefs.:

"(a) to issue an appropriate writ or order holding the initiation of disciplinary action against the petitioner vide memorandum No. 1(2)/97-PE.XII dated 24.11.1997 as illegal, arbitrary, unfair and discriminatory.

b) to issue writ of certiorari or any other appropriate order quashing/setting aside Memorandum No. 1(2)/97-PE.XII dated 24.11.1997 along with its annexures and order No. 1(2)/97-PE.XII dated 17.7.1998;

c) to issue writ of prohibition or any other appropriate order restraining respondent No. 1 from initiating any further action or proceedings against the petitioner on the basis of Memorandum dated 24.11.1997 and restraining respondent No. 2 from taking any action pursuant to order No. 1(2)/97-PE.XII dated 17.7.1998 passed by respondent No. 1.

d) to call for the records relating to the investigations and reports of the respondent No. 1 and CBI correspondence/communications exchanged between the respondent No. 1 and CVC in the matter of disciplinary action against the petitioner and any other relevant record."

10. The said writ petition was allowed by the learned Single Judge vide order dated 28-7-99. Proceedings in the matter relating to initiation of disciplinary proceedings did not become final. A complaint was made to CVC by Department of Heavy Industries that investigation made by CBI was inadequate. Pursuant thereto CVC also observed on 14.2.1998 that report was inadequate and directed CBI to make a full enquiry in purported exercise of its power of superintendence Shri Anand Darbari thereafter filed two writ petitions before this Court, inter alia praying for quashing of the recommendations of PESB. The said writ petitions were dismissed on 27.1.2000 by Justice N.G. Nandi inter alia on the ground that PESB being an advisory body its recommendations were not final. The said decision admittedly stands affirmed in appeal SLP filed there-against has also been dismissed. On 5-3-2001 impugned judgment has been passed by Justice K. Ramamoorthy.

11. Learned Single Judge in his impugned judgment inter alia, held (1) the appellant CVC has acted unfairly in the matter, ii) despite the fact that department did not want CVC to conduct any enquiry, it did. iii) CVC should not have acted on the basis of anonymous complaint. iv) CVC resorted to a roving enquiry (V). When PESB had cleared the name of Mr. Darbari the said authority could not have taken into consideration any other factor and if it was not, his name could not have been refused to be recommended at all. (vi) CVC should have considered the matter with all dispatch and take a decision as regards the grant of vigilance clearance. (vii) The view of CVC is perverse. It was directed:

"27. On the materials available on record, I am of the view that the CVC had clearly transcended its parameters and had taken a very perverse view of the matter and therefore he view of the CVC not to clear the case of petitioner has to be annulled. Consequently, the decision of the Govt of India rejecting the panel prepared by the PESB which was recorded in the proceedings dated 29.7.1997 has to be set aside. The Government of India made the appointment during the pendency of the writ petition, subject to the result in the writ petition. In the light of the facts and circumstances it has to be assumed that the CVC is deemed to have given its clearance to the Govt of India for the appointment of the petitioner and proceed to consider the matter on the basis of the recommendation made by the PESB on the 11th September, 1996.

Accordingly, the office Memorandum dated 23.5.1997 issued by the Central Vigilance Commission/first respondent stands quashed.

28. The CVC is deemed to have given its clearance for the appointment of the petitioner. The proceedings dated 29.7.1997 approving the rejection of the panel prepared by the PESB stands quashed and the fourth respondent shall proceed from the stage of the recommendation of the PESB in its meeting held on 11th September, 1996. The fourth respondent shall complete the process within eight weeks from today."

12. Learned counsel appearing for the appellants has made the following submissions: (i) no reason has been assigned by the learned Single Judge. ii) No discussion was held as regards the validity of the charge-sheet or the preliminary enquiry. (iii) In any event the finding to the effect that CVC should have considered the matter with promptitude is self contradictory. The panel having been scrapped and new persons having been appointed, the question of issuing the impugned directions did not arise. (v) As the petitioner despite being given an opportunity did not appear for interview and a fresh selection was being carried out he is not entitled to any equitable relief.

13. The learned counsel appearing for the respondent on the other hand would submit that CVC did not find any material on the allegations made against the respondent in 1995. Counsel would contend that complaints made in 1995 had been the self same ones which were already looked into by CVC. It was submitted that both the CBI and DHI were looking into the complaints and despite recommendations to the contrary by the head of the department, the vigilance clearance was unjustly rejected. It was contended that even the CBI had considered the matter in great details not only once but twice and found nothing against the said respondent.

14. It was pointed out that a criminal case was instituted against the first respondent immediately after institution of CWP 4749/97 Departmental proceedings were initiated and the enquiry officer was appointed ignoring the report of CBI. In any event, as per Vigilance Manual, the Department of Heavy Industries ought to have waited for the CBI report where after only the action could be taken in terms of Ch 3.11 of the Vigilance Manual. It was pointed out that out of 52 charges only two charges were mentioned specifically which were referred to CBI who eventually found the matter to be wholly unsubstantiated. It was further pointed out that CVC has asked CBI to re-investigate the matter and file an affidavit, although it was not a party thereto. Simultaneously, CVC advised to fix responsibility on CBI officers who have not investigated the matter fully which clearly demonstrates malice on the part of the authorities of the CVC.

15. Even after the second enquiry, CBI in its report dated 15.7.1998 exonerated the petitioner. It has been pointed out that withholding of the vigilance clearance was without any basis inasmuch as even during the pendency of the application, at the direction of the court, the petitioner was granted extension. It has been contended that one Shri Tekchandani was granted vigilance clearance although he was kept in the list of persons of doubtful integrity and was guilty of accepting bribe which clearly demonstrates that the malafides of the authorities of the CVC.

16. Mr. Phoolka appearing on behalf of UOI in LPA 426/99, inter alia, submitted that departmental proceedings and criminal cases operate in different fields and only because CBI had submitted a report exonerating the petitioner from the criminal charges the same by itself would not be a ground for quashing the charge-sheet.

17. Reliance was placed on Motising v. S.D. Mehta, , State of Rajasthan v. B.K. Meena and Ors., ;

State of Karnataka and Anr. v. T. Venkataramanappa and Capt. M. Paulanthony v. Bharat Gold Mines Ltd. and Anr., .

18. It was urged that as the disciplinary proceedings were initiated prior to registration of case by CBI, it could not be held by the learned Single Judge that initiation of proceedings was bad in law. It was urged that the learned Single Judge in exercise of its power under Article 226 of the Constitution could not have considered the matter on merits by going beyond the charge sheet.

19. Merit of the allegations, counsel would contend, in the absence of any specific plea of malice was beyond the pale of judicial review and thus the learned Single Judge could not have considered the materials dehors the charge-sheet. Reliance in this connection has been placed on Transport Commissioner Madras-5 v. A. Radha Krishna Moorthy, and Pannalal Bansi Lal Pitti and Ors. v. State of A.P. and Anr., .

20. It was urged that all the charges covered by chargesheet being not before CBI and thus having not been investigated by it learned Single Judge exceeded its jurisdiction in quashing the chargesheet. It was contended that having regard to the fact that earlier proceedings against the respondent were dropped, the finding of the single Judge to the effect that action on the part of the appellant was malafide was not justified particularly when no malice was alleged against the disciplinary authority.

21. Mr. M. Chandrersekharan appearing on behalf of the respondent, would on the other hand urge that although imputations mentioned in the charge-sheet are numerous, in effect and substance, departmental enquiry was confined to one charge only, namely, leverage of coal. A bare perusal of the charge made and the allegations made in the FIR, counsel would urge, clearly show that the same are identical although thrust in the allegations may be different. Drawing our attention to the submissions made by the then learned Addl Solicitor General before the learned Single Judge, counsel would urge that therein a statement was made with regard to certain gray areas which required further investigation without specifying as to what they are. Counsel would contend that even if the departmental proceedings were initiated prior to filing of the report by CBI, the learned Single Judge was entitled to consider the subsequent event and enter into the question as to whether it is a fit case where departmental proceedings should be allowed to continue.

22. Counsel for the parties have also taken us to the minutest detail to the factual matrix of the matter with a view to show that the allegations made in the departmental proceedings and the FIR are almost identical.

23. Having considered the rival contentions, we are of the opinion that it may be necessary for us to consider each and every argument advanced by the learned counsel of the parties. In the writ petitions out of which LPAs No. 222/2001 and 234/2001 have arisen it is not in dispute that the panel of two persons prepared had been scrapped. It is not in dispute that role of CVC has an important bearing in the matter of appointment of Chairman-cum-Managing Director in the public sector undertaking. For appointment in the said posts vigilance clearance is imperative. Grant or refusal thereof to grant vigilance clearance therefore may make or mar the career of an otherwise deserving person. The responsibility of the CVC thus must be discharged nt only in a fair and impartial manner but also with promptitude. In the instant case, CVC's action appears to be tainted. It is not in dispute that vigilance clearance was granted on 5.9.1995 and it is reasonably accepted that any allegation prior thereto had been looked into by CVC. It is also not in dispute that a PIL and an application before the National Consumer Disputes Redressal Commission were pending at the relevant time.

24. When the matter for further extension was pending, two sets of anonymous complaints were received and 56 other allegations were also received from DOPT and PMO by DHI. They were typed on plain sheets of paper without any letterhead, without any name printed on them and purported to have been written by some MP.

25. It has been brought on record that as per DOPT memorandum, any enquiry on anonymous or pseudonymous complaints, are generally prohibited. CVO of the organisation should in such cases obtain specific orders of the head of the department. According to the first respondent, despite of recommendation of CVO and the Secretary of the Ministry the said allegations were examined. It is in this connection, guuidelines provided by DOPT dated 23.5.1997 may be noticed:

"The CVC while examining the antecedents of an officer already working for the Government/PSU, need not necessarily review/enquire into the officer's record from the very beginning. If a person is functioning in a particular post, the appointment to which was done after vigilance clearance, the CVC shall then limit its enquiry to the period spent in that particular post without going into the officer's entire past career.

There are sometimes a spate of complaints against individuals whose names are being considered/finalized by the PESB, CVC should normally not take cognizance of anonymous or pseudonymous complaints received up to six months prior to the initiation of the selection/promotion process. Further, petty complaints, if any, against such officers should be disposed of quickly."

26. It is not in dispute that remaining complaints which were not the subject matter of enquiry by CVC earlier, the same were looked into by CVO of DHI on 4.2.1997 and 10.2.1997 and their report in this regard is as follows:

"The Principal Director, Audit Board, New Delhi vide his letter dated 15.11.1996 (copy enclosed) had enclosed a draft paragraph on blocking of funds and avoidable liability of penal interest on imported spares/equipment-avoidable loss of Rs. 531.26 lakh relating to CCI and had stated that the same is proposed to be incorporated in the audit report (Commercial) of the C&AC. He had requested that the Ministry's acceptance of the facts and figures mentioned in the draft paragraph and comments, if any, thereon may be furnished to them early so that the same can be incorporated in the para. Accordingly, the company had replied to audit board regarding draft para requesting them to drop this para. This department vide letter dated 20.1.1997 (copy enclosed) has requested to principal Director Audit Board New Delhi to reconsider there audit observation in the light of the position explained by the company. Now the Principal Director Audit Board vide his letter dated 24.1.1997 (copy enclosed) has revised the draft para. They have now taken a view that blocking of funds and avoidable liability of penal interest on imported spares was the result of failure on the part of the Department of Heavy Industry to take action for arranging adequate funds. CVC may kindly advise on this issue regarding closing the case.

27. Upon enquiry a repot to the following effect was submitted on 10.2.97.

"Subject: complaint against Shri Anand Darbari, CMD, Cement Corporation of India Ltd. 9 CCI.

This Department has received a complaint from Joint Action Committee on behalf of officers' Association and Staff Association of CCI dated nil (copy of complaint is enclosed) against Shri Anand Darbari, CMD, Cement Corporation of India Ltd.(CCI)

2. This was a pseudonymous complaint. However, it was examined and found that none of the allegation can be substantiated. Our parawise comments on each allegation is enclosed. In view of the above this department proposes to close the case.

CVC please advise for further course of action to be taken."

28. However, despite the same a two member committee was constituted. It submitted its report on 15.4.97 exonerating the respondent. The said recommendations were accepted with regard to six out of 7 allegations but the 7th allegation was not accepted. Yet again additional queries were raised on 24.4.97 by the Secretary CVC. Two members committee looked into the said allegations and recommended closure of the case.

29. Shri S.V. Giri, Commissioner in his note dated 20.5.97 observed:

"The instances brought out are cause for real concern. While the material collected so far may not be adequate to frame a charge and initiate disciplinary action against Shri Darbari, there are clear pointers to the lack of transparency and commercial prudence in the transactions, and a certain rashness in financial management. Keeping these in view it is not advisable to accord him a clear chit for his proposed appointment as Chairman, Airport Authority of India. This institution is a complex technical organisation with lot of administrative and financial responsibilities. Its vigilance health is also not too commendable. Viewed together the Commission may express its reservation against Shri Darbari being considered for appointment to this post.

The affairs relating to coal linkages through private parties, emergency importation of spares which are still lying at the port and some of the other items earlier referred to by the then CVO would need to be probed further.

We may get the papers looked into in the Commission.

30. Joint Secretary DHI, however on 4.7.1997 wrote to the Inquiry officer of DOPT that allegations against the respondent were not substantiated. Eventually the panel had been scrapped.

31. The question which arises for consideration would be as to whether even if it be held that the first respondent had wrongly been denied vigilance clearance but the panel itself having been scraped on 29.9.1997 and where after another panel had been created, the learned single Judge was correct in issuing the directions?

32. We are of the opinion that the learned single Judge erred in allowing the writ petition and directing that despite the same the petitioner should be considered on the basis of the old panel. It is not in dispute that a panel should not be kept alive for a long time. Life of the panel was for one year and after expiry of the said period the selected did not have any legal right to insist that the said panel should be kept alive. Furthermore, at the relevant point of time departmental proceedings, rightly or wrongly were continuing against the respondent. During the continuance of the proceedings, the first respondent could not have been considered for appointment.

33. One of us, (A.K. Sikri, J.) in the case of VNP Sinha v. UOI CWP 4957/99 disposed of on 7.3.2000, considered the question in great details (although factual matrix involved therein may be different) and held:

"Once based on such relevant material CVC has considered the case of such a person after scrutinising his antecedents and comes to one or the other conclusion that would be reasonable exercise of power. Of course, one may put a word of caution here. When CVC considers such a material it should be careful enough to find out as to whether material which is placed before it and which puts question mark about the integrity of a person is genuine material or whether it is a material which is planted against such person by those who are disgruntled or biased against the concerned person/candidate. It is a matter of common knowledge that whenever selection process to such board level post in PSUs is under way people start writing frivolous complaints. For this reason, anonymous/pseudonymous complaints are normally to be ignored. CVC should also ensure that the complaints against the concerned person/candidate are not motivated or fabricated at this stage just to stall his appointment to the post. The function of CVC therefore is delicate one: on the other hand it has to ensure that people with impeccable integrity and honesty are appointed to board level post and on the other hand it has to ensure that innocent person do not become victim of the dishonest, malicious and frivolous complaints made by people with vested interest."

34. So far the second question is concerned, we are of the opinion that in the absence of any allegation of malafides against the disciplinary authority, the charge-sheet as such could not have been quashed. It is trite law that normally a charge sheet should not be quashed. It was not a case of the first respondent that the charges have been levelled against him malafide. There may not be much substance in the chargesheet but normally the court would not quash the same at that stage In State of Uttar Pradesh v. Shri Braham Datt Sharma and Anr. 1987 SC 943 it has been held:

"9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt servant under a statutory provision calling upon him to show cause, ordinarily the Govt servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought not to have interfered with the show cause notice."

35. We may notice that report of CBI dated 16.7.98 which is as follows:

"Please refer to the letter cited. A case was registered in RC 2(A)/97ACU-VII against officials of Cement Corporation of India on 25.11.1997 and a copy of the FIR was sent to the Director (Vigilance).

The investigation of the case has been completed. A report on the result of investigation is enclosed. The report has concluded that the allegations are not substantiated."

36. As indicated above, the only contention raised was that an inquiry officer was appointed without waiting for the CBI report which is in violation of the Vigilance Manual, but in our opinion, the same by itself would not vitiate the departmental proceedings. It is trust that on 14.12.98 CVC directed CBI to re-investigate the matter in furtherance whereof CBI submitted its report on 9.2.1999 wherein it has been reported:

"26. This case was registered mainly on the allegations that the officers of the CCI had obtained pecuniary advantage by abusing their official position in the procurement of coal through private parties. The crucial point for determination was whether there was any dishonest invest on the part of public servants to cause wrongful gain to the suppliers at the cost of CCI. The perusal of records and the statements of the witnesses etc did not establish any dishonest intention on the part of the public servants and therefore a closure report under Section 173 Cr.P.C. has been filed in the court of Special Judge Delhi."

37. CBI has been asked to consider the case from the point of view as to whether a criminal prosecution could be sustained. It was found that the same could not be sustained. However, having regard to the decision of the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. , it cannot be said that initiation of the departmental proceedings was absolutely bad in law. In the aforementioned decision the Apex Court held:

"13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decision we do not intend to refer to in this case, and the various pronouncements of this court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.

35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof would not be applicable to the instant case."

38. The learned Single Judge in a situation of this nature particularly in view of the fact that the disciplinary proceedings was pending should not thus have quashed the chargesheet.

39. We, are furthermore of the opinion that interest of justice would be subserved if the respondents are directed to conclude the departmental proceedings within a time frame. They are directed to do so. In our opinion departmental proceedings, having regard to the fats and circumstances of the case, should be directed to be completed within three months from the date of communication of the order subject to course to rendition of all cooperation by the first respondent.

40. The inquiry officer who has been appointed may continue to hold the inquiry and if he is not available, another inquiry officer may be appointed within two weeks from date. The first respondent may file his written statement of defense within three weeks thereafter, where after the inquiry proceedings should commenced and if possible the same should continue on day to day basis.

41. We have no doubt that the inquiry officer and the disciplinary authority shall act independently and without any prejudice whatsoever against the first respondent. PESB may also hold its meeting immediately upon completion of the departmental proceedings and decide the matter one way or the other.

42. Subject to the outcome of the departmental proceedings the case of the first respondent may be considered for appointment along with other eligible candidates. We may further observe that in this case of CVC had not been very fair. Its direction to the effect the departmental proceedings may be held against members of the committee as also the authorities of CBI who had held investigation are absolutely uncalled for and unwarranted. We hope that CVC, which is not even a statutory authority would learn its lessons from this case in future would act strictly within the four concerns of law.

43. These appeals are disposed of accordingly but without any order as to costs.