1. The petitioner was employed by the first opponent as a fitter. He was in the service of the first opponent for about 10 years. On 22-8-1958, he was charge-sheeted for insubordination and negligence in the discharge of his duties. After holding the necessary inquiry on 30-8-1958 an order was passed against him discharging him from service with 13 days' wages in lieu of notice. He claimed that as he had put in 10 years service he was entitled to gratuity in accordance with a settlement which had been arrived at between the Union of the employees of the first opponent and the first opponent. Under the terms of that settlement, by Clause (4) it had been provided as follows:
'Gratuity will not be paid to an employee who is dismissed for dishonesty or for misconduct.'
As no amount of gratuity was paid to the petitioner, he made an application under Section 33C of the Industrial Disputes Act to the Labour Court being Recovery Application No. 34 of 1959. The Presiding Officer of the Second Labour Court, who heard the matter came to the conclusion that the petitioner must be taken to have been dismissed for misconduct for the purposes of Clause (4) of the aforesaid settlement and that he was not entitled to get any gratuity. He dismissed the application of the petitioner. The petitioner has filed the present petition under Article 227 of the Constitution. He contends that there is an error of law apparent on the face of the record and that the case calls for the exercise of our powers under Article 227 of the Constitution.
2. We have here to consider the effect of the order that has been passed by the manager of the first opponent on 30-8-1958. That order, in terms, states as under:
'The petitioner Is discharged from service with 13 days' wages in lieu of notice.'
Mr. Patwari, the learned Advocate for the first opponent strenuously urged before us that where a person has been found guilty, of misconduct and is thereafter discharged from service, the effect of the order is that he is dismissed from service and that if he is dismissed from service he is not entitled to claim any gratuity. He urges that gratuity is only payable to a person, whose conduct is compatible with the faithful discharge of his duties. He says that in the present case the conduct of the petitioner was incompatible with the faithful discharge of his duties and that he is not entitled to claim any amount by way of gratuity. The question whether a person is entitled to gratuity or not is dependent upon the terms of the agreement between the workman and the employer in a case where a settlement in that connection has been arrived at between the workmen on the one hand and the employer on the other. In this case, we are concerned with the terms of the settlement and not with the general law which might have prevailed if no settlement had been arrived at in connection with the payment of gratuity between the workmen of the first opponent and the first opponent. The language used in the settlement is that gratuity would not be paid to an employee who is dismissed for dishonesty or for misconduct.
3. In the present case, the petitioner has been found guilty of misconduct. The only question that we have to consider is whether it could be said that he is dismissed for such misconduct. Mr. Patwari strenuously urged that the petitioner cannot but be regarded as having been dismissed for misconduct. He says that we must consider the language used having regard to the intention of the parties. According to his submission, the intention of the manager, who passed the order, was not to pay any sum by way of gratuity to the petitioner. He has cited numerous authorities before us in connection with the construction, which we are called upon to put upon the words used by the manager after finding the petitioner guilty of misconduct. He relied upon a recent decision of the Supreme Court reported in : (1960)IILLJ222SC , Chartered Bank, Bombay v. Chartered Bank Employees' Union. He relies upon a passage at p. 922 of that judgment. Justice Wanchoo has there observed that there was no doubt that an employee could not dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal has no jurisdiction to inquire into the circumstances in which such termination of service simpliciter took place. He has further observed as follows:--
'In Buckingham and Carnatic Co. Ltd. v. Workers of Company, 1952 Lab AC 490, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason. It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination ......In Order to judge this, the tribunal will have to go into all the circumstances which led to the termination simpliciter and an employer cannot say that it is not bound to disclose the circumstances before the tribunal. The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of dismissal for misconduct.'
He urged that even though the form of the order in this case is that of discharge, in substance, it is an order of dismissal. In the course of that judgment Justice Wanchoo has further stated that it was always open to the tribunal to go behind the form and look at the substance; and if it cames to the conclusion, for example that though in from the order amounted to termination simpliciter it in reality cloaked a dismissal for misconduct, it would be open to it to set it aside as a colourable exercise of the power.
4. He also relied upon a decision reported in : (1960)ILLJ587SC , Assam Oil Go. Ltd., New Delhi v. Its Workmen. In that case also a question of the bona fides of the order was raised. In that case, Justice Gajendragadkar observes as follows--:
'If the contract gives the employer the power to terminate the services of his employee after a month's notice or subject to some other condition it would be open to him to take recourse to the said term or condition and terminate the services of his employer; but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial tribunal to enquire whether the impugned discharge has been effected in the bona fide exercise of the powers conferred by the contract. If the discharge has been ordered by the employer in bona fide exercise of his power then the Industrial tribunal may not Interfere with it; but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter and the industrial tribunal would be entitled to go behind the words and the form arid decide whether the discharge is a discharge simpliciter or not. If it appears that the purported exercise of the power to terminate the services of the employee was infact the result of the misconduct alleged against him then the tribunal will be justified in dealing with the dispute on the basis that despite its appearance to the contrary the order of discharge is in effect an order of dismissal.'
These two decisions deal with the interpretation of an order passed by an employer outwardly showing that there was simply a termination of the services of an employee. If, in reality, it was found that the order was the result of a finding that the employee was guilty of misconduct, then the form of the order would not conclude the matter, The form of the order may be regarded as a cannot flage to hide the real intention to punish the employee. In that event, If the employee is said to be punished, then the pre -requisites, which are necessary to be complied with before arty punishment could be inflicted, must be fulfilled, and the Industrial tribunal would have jurisdiction to inquire whether those pre-requisites have been satisfied or not, and if these pre-requisites are found not to have been satisfied, to consider the order to be bad. These authorities do not help us in deciding the question that is before the the bona fides of the manager in passing the order of discharge are not in question. It is nobody's case that the Order was in its present form by way of camouflage to hide something or to avoid certain consequences.
5. We have in this case to interpret the order which has been passed. Having regard to the words used in the order, we have to consider the order as a whole. If an employee is found guilty of misconduct it is open to the employer to dismiss him from service. If the employer is kind hearted, he may elect not to dismiss him from service and may be content merely with discharging him from the employment. In the present case if the manager of the first opponent, after he found the petitioner guilty of misconduct, had desired to dismiss the employee for misconduct; there was no necessity for him to pay any sum by way of wages in lieu of notice. The manager being entitled to and empowered to inflict the punishment of dismissal has not chosen to impose such punishment. He has passed an order of discharge with 13 days' wages in lieu of notice. If the manager has acted in a generous manner -- and there is no reason for us to believe otherwise --we cannot hold that an order of dismissal which is not passed should be deemed to have been passed in this case in spite of the express language used by him and in spite of the fact that he has directed payment of 13 days' wages in lieu of notice.
6. Mr. Patwari has relied upon several cases with a view to establish the proposition that whenever a person, who has been found guilty of misconduct, is discharged from service, it must be deemed that he has been dismissed from service. He relied upon a decision reported in : (1958)ILLJ544SC Parshotam Lal Dhingra v. Union of India. The learned Judges of the Supreme Court had to consider the language used in Article 311(2) of the Constitution. That Article provides as under:--
'No such person (who is a member of a civil service of the Union Or an all India service or a civil service of a State or holds a civil post under the Union or a State) shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposes to be taken in regard to him.'
The aforesaid Article is applicable in three different types of cases: (1) where such person is dismissed, (2) where such person Is removed, and (3) where such person has been reduced in Bank. A distinction has been made between dismissal from service and removal from service in this Article. Chief Justice Das, in dealing with this. Article observes as follows:--
A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311 for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma On the officer affecting his future career.'
He has further observed as under:--
'The use of the expression 'terminate' Or 'discharge' is not conclusive. In spite of the use of such innocuous impressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the past or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests, then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'
This decision merely lays down that where the termination or the discharge of the services of an employee is by way of punishment, then it would attract the provisions of Article 311 of the Constitution.
7. Mr. Patwari also relied upon a case reported in : (1957)IILLJ37Bom , between the Municipal Corporation, Greater Bombay v. Labour Appellate Tribunal of India. It is a decision of a Division Bench of the Bombay High Court. In that case the meaning of the expression 'retrenchment' was considered and it was held that the expression 'retrenchment' meant discharge of surplus labour or stall and did not mean termination of the contract of employment for other causes. At p. 39 (of Lab LJ): (at p. 190 of AIR), Justice J. C. Shah (as he then was) has observed that punishment by discharge was recognised by standing order 21, Clause 1, Sub-clause (f), applicable in that case. He has further observed that it was clear from the provisions referred to therein that the Bombay Industrial Relations Act and the standing orders had made a distinction between dismissal or discharge from service which may be Ordered by the employer for misconduct of the employee and the termination of the contract of employment which may he effected by the employer or the employee and that before an order in the nature of discharge or dismissal can be passed the employee must be given an opportunity of showing cause and submitting his explanation at a formal inquiry. He has further observed that mere termination of service is not dismissal or discharge from service and that termination can take place by notice in the manner prescribed by standing order 26, applicable in that case. If any thing, this decision is against Mr. Patwari. A distinction is made between dismissal from service for misconduct and discharge from service for misconduct. No doubt the learned Judge has observed that the form of the order terminating the employment is not always decisive of the true nature of the order and that if an Order in form terminating the employment Is passed merely to camouflage an order dismissing or discharging from employment, a Court may be entitled to come to the conclusion, having regard to the circumstances in which the order was passed, that the requisite formalities not having been followed the order was unlawful and could not be given effect to. As I have already indicated earlier, no question of camouflage arises in this case when the Order was passed by the manager of the first opponent.
8. Mr. Patwari Velied upon the case of Provincial Transport Services v. Asst. Labour Commr. Nagpur, reported in (1958) 1 Lab LJ 758. In that case also it has been observed that the form of the order is not decisive of the matter and termination of services may foe a cloak for dismissal.
9. A reference has also been made to a decision reported in : AIR1953Cal188 , Ramesh Chandra v. State of West Bengal. In that case the provisions of section 240 of the Government of India Act, 1935, came up for consideration. By Sub-section (3) of that section it has been provided that no Person, who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to he taken in regard to him. Mr. Patwari strongly relied upon paragraphs 51, 52 and 53 of the judgment of Mr. Justice Das. In that case, instead of using the word 'dismissed' the word used was 'discharged'. It was argued by the Senior Government Pleader in that case that Sub-sections (2) and (3) of Section 240 contain the words 'dismissed' of 'reduced in rank', and that the section did not apply as the plaintiff in that case was not 'dismissed' but merely 'discharged'. Reference is then made to Murray's Oxford Dictionary, and it is stated that the word 'discharge' in that dictionary is defined to include 'dismissal from service' and the word 'dismissal' is defined to include 'discharge from service'. The learned Judge there observed that if the contention that 'dismissal' did not include 'discharge' be accepted, the congruous result would be that a person who was merely reduced in rank, would enjoy the immutable protection conferred by Section 240(3), but a person who was subjected to a more serious penalty by way of a 'discharge' would be deprived of the protection. He further pointed out that in High Commissioner for India v. I.M. Lall, reported in , the purported 'removal' of the civil servant was held to be synonymous with 'dismissal' so as to attract Section 240(3). He held that the word 'discharge' had the same connotation as 'removal'. He also held that there was no ground to hold that the word 'dismissal' in Section 240 did not include 'discharge'. The learned Judges in that case were considering the language of Section 240. In the context of the words used in that enactment it was held that the expression 'dismissal' included 'discharge' from service for misconduct, Since the passing of the Government of India Act, 1935, there have been various enactments dealing with questions affecting labour. These enactments draw a distinction between dismissal for misconduct and discharge for misconduct. Even in the provisions corresponding to Section 240, Government of India Act, 1935, in the Constitution of India, Article 311 makes a distinction between dismissal from service and removal from service.
10. Mr. Patwari drew our attention to the provisions of the Employees' State Insurance Act, 1948. He relied upon Section 73 of that Act. That Section provides as under:--
'No employer ' shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work.'
This section however has been relied upon for a different purpose by Mr. Patwari. It draws a distinction between the punishment of dismissal and the punishment of discharge. If an employee is punished by way of dismissal, it cannot be equated with the punishment by way of discharge. The fact that an employee after he is found guilty may be discharged from service as distinguished from being punished by way of dismissal from service is brought out in Section 39 of the Industrial Disputes Act, 1947. Sub-section (l) of that section provides that during the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer slially for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute. Sub-section (2) (b) of that section provides that during the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 'for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman, subject to the proviso there under contained. This section clearly refers to an employee being discharged for misconduct. It also refers to an employee being punished by dismissal for any misconduct. The expression 'dismissal' and the expression 'discharge' in connection with punishment for misconduct have acquired in industrial law different connotations and the one cannot be equated with the other having regard to what has been stated in Murray's Oxford Dictionary.
11. Mr. Patwari relied upon a decision of the Allahabad High Court reported in (S) : (1958)IILLJ380All , Chaman Lal Seth v. State of Uttar Pradesh. In that case, the Court was construing the provisions of Article 311(2) of the Constitution. In that case, the order in terms stated that the petitioner was discharged from service. The Court there observed that the use of the word 'discharged' in its opinion was not conclusive. It stated that it was the substance of the matter which must be looked at and if in fact the petitioner had been removed from service as a punishment, the use of the word 'discharge' would not absolve the Government from complying with the provisions of Article 311(2). In the view of the Court, the question was whether the termination of the petitioner's service brought about by the order of discharge was tantamount to his removal from service, and the answer to that question would depend upon whether the nature and incident of the action resulting in removal were to be found in the action of discharge. In that case, having regard to the language used in Article 311(2), it was held that the order of discharge was tantamount to an order of removal from service. This decision does not very much assist Mr. Patwari. In Article 811(2), the words 'dismissed or removed from (sic) appear. On a true construction of the order the Court held that the petitioner in that case had been removed from service for the purpose of Article 311(2) of the Constitution.
I2. Mr. Patwari next referred to the Supreme Court case of State of Bihar v. Gopi Kishore Prasad, reported in : (1960)ILLJ577SC In that case summarising the position of a probationary public servant, Chief Justice Sinha has observed that if the probationer was discharged an any one of those grounds referred to by him earlier without a proper inquiry and without his getting a reasonable opportunity of showing cases against his discharge, it would amount to a removal from service within the meaning of Article 311(2) of the Constitution. This case does not carry the matter any further.
13. Still one more decision relied upon by Mr. Patwari was that reported in : (1957)IILLJ189Bom , Srinivas Ganesh v. Union of India. In that case, a Division Bench of the Bombay High Court was considering an order discharging the appellant in that case. Chief Justice Chagla, in the course of his judgment, observed that it could not be disputed that if the Government had discharged the appellant without giving any reasons at all that order could not have been challenged by the appellant because the appellant being a temporary servant had no security of beware and could not claim to continue in Government service for any length of time, and the Government like any other employer would be entitled to dispense with his services at any time it thought proper. The question was whether the (sic) that the Government had given a reason for disposing with the services of the appellant altered with an order of discharge into an order of disposal or removal. Chief Justice Chagia then proceeds to state that the Court must look at the substance of the matter and it should not be influenced by the language used in the order, and the mere fact that Government chose to use the expression 'discharge' was not conclusive of the matter, and notwithstanding the use of that expression, it might still he an order of dismissal or removal This decision merely reiterates the fact that an order which purports to be an order of discharge, may not, in reality be an order of discharge.
14. In order to determine whether an order which purports to be an order of discharge is in reality an order other than that of discharge, surrounding circumstances have to be considered. The mere fact that the order of discharge has been passed after the employee has been found guilty of misconduct does not by itself suffice for the purpose of holding that the order is not what its language says or implies but is something different from what the language used in the order implies aS we have indicated earlier, an order of discharge may be passed after an employee has been held guilty of misconduct. The authority may take a lenient view of the matter, the authority may take a charitable or generous view and In-stead of imposing the extreme punishment of dismissal may be content with passing an order of discharge. In this case, there is nothing on the record to warrant the conclusion that the authority, namely, the manager of the first opponent wanted to inflict the extreme punishment of dismissal. On the contrary, far from being desirous of inflicting such a punishment, the manager has ordered the payment of 13 days' wages in lieu of notice. In such circumstances, it would be manifestly unjust to regard the order passed by the manager of the first opponent as an order imposing the extreme penalty of dismissal. We have to consider the order as a whole and having regard to the language used and having regard to the intention of the manager as evidenced by the terms of that order, we cannot but hold that the order was an Order of discharge and not of dismissal.
15. (7-2-1961)-- It is next urged that under the terms of the agreement arrived at between the workmen of the first opponent and the first opponent in connection with the payment of gratuity, the expression 'dismissed for dishonesty or misconduct' appearing in Clause (4) was intended to cover both dismissal for dishonesty or misconduct and discharge for dishonesty or misconduct. It is urged that the expression 'dismissed for dishonesty or misconduct' was intended to cover the termination of the employment of the workman on his being found guilty of dishonesty or of misconduct. In considering the meaning to be given to the words used in Clause 4 of the agreement, we have to consider the intention of the parties. There is nothing on the record to indicate that by using the expression 'dismissed for dishonesty or for misconduct' it was intended by the parties to cover an order of discharge from service for dishonesty or misconduct. The agreement was arrived at between the Union of the workmen of the employer on the one hand and the employer on the other. It was arrived at between the parties who were conversant with the distinction, in industrial law, between dismissal and discharge. There is nothing to indicate that the expression 'dismissed for dishonesty or misconduct' covered any order of discharge for dishonesty or for misconduct.
16. It is lastly Urged that no relief should be given in this case inasmuch as even though there might be an error committed by the Second Labour Court in interpreting the language of the settlement, the error is not one, which is apparent on the face of the record and that we should not interfere with that order in the exercise of the power given to us under Article 227 of the Constitution. Reliance was placed in this connection on a decision reported in ( : 1SCR890 ), Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavannppa Tirumale. It is a decision of the Supreme Court. Justice Das Gupta, who delivered the Judgment of the Court, observed in that case at p. 152 (of Bom LR): (at p. 142 of AIR) as follows:--
'Article 227 corresponds to Section 107 of the Government of India Act, 1915. The scope of that section has been discussed in many decisions of Indian High Courts. However wide it may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure Or under Article 227''.
17. In the case before us we have to consider the order passed by the Second Labour Court. The Presiding Officer of that Court, in the course of his judgment, observes that it was clear that the manager having found the applicant guilty of misconduct intended to terminate his service. That no doubt is true. He then proceeds to state that the termination of service on the ground of misconduct was in his opinion nothing but dismissal for misconduct whatever the language in which the order was couched. He proceeds to state, to use his own words, as follows:--
'Surely while terminating the service of the applicant the manager never intended to pay any gratuity to the applicant under this settlement. Instead of using the word 'discharge' the General Manager could very well have used the word 'dismissed' but I think the Manager did not see any distinction between the word 'discharged' and 'dismissed'. In my opinion the applicant must be taken to have been dismissed for misconduct for the purposes of Clause (4) of the settlement Ex. 23.'
There is no evidence of any sort to indicate the Intention of the authority passing the order. The Prasiding Officer of the Second Labour Court was under an obligation to consider the order that has been passed as a whole. That order, after stating in terms that the petitioner was discharged, proceeded to order payment of 13 days' wages in lieu of notice. The Presiding Officer has tailed to consider the effect of this provision. He has imputed an intention to the manager of dismissing the petitioner, when the manager did not himself use the word 'dismissal'. He has failed to take into account the language used by the manager and imputed to the manager an intention, which the manager never expressed. It was open to the general manager to dismiss the employee by way of punishment without paying him any wages in lieu of notice. The manager does not choose to do so. There is nothing on the record which would justify the Presiding Officer of the Second Labour Court in thinking that the manager did not see any distinction between the word discharged and dismissed. There is a manifest error which is apparent on the face of the record. There is no reason why we, when we find such error, should not interfere in the exercise o our powers under Article 227 of the Constitution.
18. Mr. Daru, the learned advocate for the petitioner has invited our attention to an unreported judgment of the Supreme Court, delivered on 12th December 1960, in Civil Appeal No. 243 of 1959 (since reported in : (1961)ILLJ1SC ), Shri Ambika Mills Co. Ltd.v. S.B. Bhatt, Mr.
Justice Gajendragadkar, who delivered the judgment of the Court in that case, observes, after referring to the well known observations of Danning L.J. in the case of R. v. Northumberland Compensation Appeal Tribunal (1952) 1 All ER 122, as follows:--
'Difficulty, however, arises when it is attempted to lay down tests for determining when an error of law can be said to be an error apparent on the face of the record. Sometimes it is said that it is only errors which are self-evident, that is to say, which are evident without any elaborate examination of the merits that can be corrected, and not those which can be discovered only after an elaborate argument. In a sense it would be correct to say that an error of law which can be corrected by a writ of certiorari must be self-evident; that is what is meant by saying it is an error apparent on the face of the record, and from that point of view, the test that the error should be self-evident and should not need an elaborate examination of the record may be satisfactory as a working test in a large majority of cases; but as observed by Venkatarama Ayyar, J. in Hari Vishnu Kamath v. Sayed Ahmad Ishaque : 1SCR1104 there must be cases in which even this test might break down because judicial opinions also differ, and an error that may be considered by one Judge as self-evident might not be so considered by another'. Judicial experience, however, shows that though it cannot be easy to lay down an unfailing lost of general application it is usually not difficult to decide whether the impugned error of law is apparent on the face of the record or not.'
19. On the facts of the present case, in respect of the Judgment given by the Presiding Officer of the Second Labour Court, it is not difficult to decide whether the error of law in this case is apparent on the face of the record. In our view, the error is of a manifest character, and we are entitled to correct the same under Article 227 of the Constitution.
20. In the result, we set aside the order passed by the Second Labour Court on 14th March1960, and direct the Presiding Officer of theSecond Labour Court to determine the amountpayable to the petitioner on the footing that heis entitled to be paid gratuity within the terms ofthe settlement arrived at between the Union ofthe employees of the first opponent and the firstopponent. We Order the first opponent to pay tothe petitioner the costs of the Special Civil Application.