1. The short question that arises for consideration in this writ petition is whether a conviction for consumption of liquor under the Provisions of the Tamil Nadu Prohibition Act will amount to a conviction for an offence involving moral turpitude. The facts may be stated as follows. The petitioner is the management of Tractors and Farm Equipments Ltd, Madras. The second respondent, Doss, was an employee under the management on a monthly remuneration of Rs. 260. According to the management, the second respondent was engaged under a contract basis along with others to load tractors manufactured by the management on the railway wagons at Korukkupet railway yard as and when railway wagons are available. While so, the management came to know that the second respondent was said to have been arrested for consuming liquor on 1-2-1976 and he was ordered to pay a fine of Rs. 60 by the Magistrate. Between 1-2-76 and 16-2-76 he did not turn up for work. On 17-2-76 when the second respondent turned up for work the management refused to entertain him. It is the case of management that the conviction was for an offence involving moral turpitude and therefore, when the second respondent turned up for work on 17-2-76 he was not allowed to do any work. Thereupon, at his instance an industrial dispute was raised regarding the non-employment of the second respondent. The first Addl. Labour Court, Madras found that the punishment under a prohibition case would not involve any moral turpitude and consequently the non-employment of the 2nd respondent was not justified. The management further contended before the Labour Court that the second respondent was not a workman within the meaning of the Industrial Disputes Act and that consequently the second respondent could not be granted the relief of reinstatement. The latter objection was also overruled by the Labour Court and it ordered the second respondent to be reinstated with all back wages and attendant benefit. Hence this writ petition.
2. Mr. Sanjay Mohan, the learned counsel for the petitioner urged two contentions, Firstly, the conviction for the offence of consumption of liquor under the Tamil Nadu Prohibition Act would involve moral turpitude. The second respondent having been so convicted was liable to be removed from service, under the model standing orders which are the standing orders applicable to the management. Secondly, the second respondent was only employed on a contract basis for the purpose of loading the tractors manufactured by the management on to the railway wagon as and when available. There is no master and servant relationship between the management and the second respondent. The second respondent, therefore, cannot claim to be a workman within the meaning of the Industrial Disputes Act. In the circumstances, the Labour Court committed an error in directing reinstatement of the second respondent with all backwages and attendant benefits.
3. Mr. Venkataraman, the learned counsel for the second respondent repudiated both the contentions of Mr. Sanjay Mohan. Mr. Venkataraman urged that the second respondent was a workman under the management and that the Labour Court had also clearly found that the second respondent was a workman under the management within the meaning of the Industrial Disputes Act. The learned counsel further urged that the management did not plead that the model standing orders applied to it, and that it was only at the stage of argument before this Court that resort was being made to the model standing orders. The learned counsel further contended that the offence of consumption of liquor without a permit under the provisions of the Tamil Nadu Prohibition Act would not constitute an offence involving moral turpitude and consequently the second respondent was not justified.
4. I shall first take up for consideration the question whether the second respondent has been convicted for an offence involving moral turpitude. In the counter-statement filed by the management before the Labour Court, the management has specifically pleaded that the conviction of the second respondent before the Criminal Court was in respect of an offence under the Prohibition Act and the conviction amounted to an offence involving moral turpitude. No doubt, there is no reference to the model standing orders in the Counter-statement. It is also true that there is no reference to the model standing orders in the affidavit field in support of the writ petition. Under the Industrial Employment (Standing Orders) Act, 1946 in the absence of there being certified standing orders for an industrial establishment, the model standing orders shall be deemed to be adopted in the establishment. In the circumstances, since there are no certified standing orders applicable to the management, the model standing orders must be deemed to have been adopted by the management. Standing Order 16(x) of the Model Standing Orders states as follows : 'The following acts and omissions shall be treated as misconduct - conviction by any Court of law for any criminal offence involving moral turpitudes.' The management has specifically pleaded in their counter-statement, as already stated, that the second respondent has been convicted for an offence involving moral turpitude. That being the case, the contention must be related to 16(x) of the Model Standing Orders. In the circumstances, the failure to make a specific reference to model standing order in the counter-statement or in the affidavit field in support of the writ petition, in my opinion, is not fatal to the case of the management.
5. In support of his plea Mr. Sanjay Mohan relied on certain decisions. The first decision is that of the Labour Appellate Tribunal of India at Calcutta in Punjab National Bank Ltd. v. Megha Singh Chowkidar, 1975 II L.L.J. 290 Mr. Sanjay Mohan cited this decision only to support his contention that a conviction under the Prohibition Act would mean a conviction for an offence involving moral turpitude and not as a precedent which is binding on this Court. In that case, a chowkidar employed in the Punjab National Bank Ltd., was found intoxicated as a result of heavy drinking of liquor and was arrested by the police. He pleaded guilty before the Magistrate and was sentenced to pay fine of Rs. 25-Since an industrial dispute was pending the Bank sought the permission of the Labour Court for permission to dismiss the chowkidar on the ground that he had been convicted of a criminal offence involving moral turpitude. Section 10(h)(i) of the Banking Companies Act stated that 'No banking company shall employ any person who is or that any time has been adjudged insolvent and has suspended payment or has compounded with his creditors or who is or has been convicted of a criminal offence involving moral turpitude.' The Tribunal held that if by a law in force in the State in which the particular employee is for the time being employed, drinking of liquor is made a criminal offence, and the employee is convicted of offence, it would be no answer to say that he should not be held to be guilty of an offence involving moral turpitude simply because of laws of some other States, in which the Bank has other branches, do not make drinking a criminal offence.'
6. The next case relied upon by the learned counsel is Sahiram v. Rajasthan State . There a person was convicted for evading customs duty under the Customs Act. It was held that a person who evaded customs duty must be held to be guilty of any offence involving moral turpitude.
7. In Baleshwar Singh v. Magistrate & Collector : AIR1959All71 the meaning of moral turpitude came up for consideration. Section 5-A (h) of the U.P. Panchayat Raj. Act, 1947 contained a provision for disqualification for a person being chosen or appointed as a Nyaya Panch if the person had been convicted for any offence involving moral turpitude. One Baijnath Singh had been convicted for an offence under S. 182 I.P.C. and 107 Cr. P.C. and consequently his appointment as a Nyaya Panch was challenged before the Allahabad high Court. Section 182 I.P.C. dealt with offence of a public servant giving any false information which he knows or believes to be false intending thereby to cause or knowing it to be likely that he would thereby cause such public servant to do or omit any thing which such publisher vent ought not to do or omit, if the true state of facts respecting which information is given were known to him; or to use lawful power of such public servant to the injury or annoyance of any person. It is in this context, a learned single Judge of the Allahabad high Court was called upon to consider what would amount to an offence involving moral turpitude. The learned Judge observed as follows :
'The expression moral turpitude is not defined anywhere, But it means anything done contrary to justice, honestly, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to society in general. If, therefore, the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not so act and he still acts contrary to it and does so knowingly his conduct must be held to be due to vileness and depravity. It will be contrary to be accepted customary rule and duty between man and man ... A duty has been cast on individuals not to act in a certain manner and direct public servants from their normal course. This is a duty which every individual who is governed by the above law owes to the society whose servant every public servant obviously is. As individual's conduct in giving false information to a public servant in the circumstances stated in S. 182(a) too is, therefore, contrary to justice, honesty and good morals and shows depravity of character and wickedness.'
In this view, the learned Judge held that Baijnath Singh had been convicted for an offence involving moral turpitude and was disqualified to be appointed as Nyaya Punch.
8. As against this Mr. Venkataraman cited the decision of Ramaswami Gounder, J., sitting as an Industrial Tribunal in an award passed on 26-4-1961 in Chinnu v. Salem Dharmapuri Union Motor Services (P) Ltd. (published in Fort. St. George Gazette dated 26-4-1961 Part II section I (supplement) page 8). Before the Tribunal it was contended on behalf of the management that violation of the Prohibition Law was an offence involving moral turpitude and in such a case, the management would be justified in dismissing the worker from service. The Tribunal held that it was not sure whether mere consumption of liquor necessarily involves any element of moral turpitude, as if the Prohibition Law has been enacted on moral grounds. Millions of people consume liquor all over the world, many of them eminent men in all walks of like, statesmen, poets, philosophers and so on, many even to the point of intoxication, and can it be said that all such persons fall short of moral stands by the consumption of liquor. In the Tribunal's opinion, the management was not concerned with the private life of morals of the workers and that only if it affected the efficiency or the discipline of the worker, or if the worker turned up for work in a drunken state, the management might be justified in taking action'.
9. In Mangali v. Chhakki Lal : AIR1963All527 Srivastava, J., after extracting the observation on Tandon, J., in Baleshwar Singh v. District Magistrate : AIR1959All71 observed as follows :
'With great respect, it appears to me that some of the observations made in these decisions have been too widely stated and if followed literally may make every act punishable in law an offence involving moral turpitude, that, however, could not be the intention with which those observations were made. From consideration of the dictionary meaning of the words 'moral' and 'turpitude' as well as the real ratio deciding of the cases the principle which emerges appear to be that the question whether a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed, it is not punishable act that can be considered to be an offence involving moral turpitude. Had that been so, the qualification 'involving moral turpitude' would not have been used by the Legislature and it would have disqualified every person who had been convicted of the offence. The tests which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appear to be : (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general, (2) whether the motive which led to the act was a base one and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. No absolute standard can be laid down for deciding whether a particular act is to be considered one involving moral turpitude but the above are the general tests which should be applied and which should in most cases be sufficient for enabling one to arrive at a correct conclusion on the question.
In that case, a person belonging to the district of Etawah where there was no prohibition against taking bhang was found in possession of bhang in another district in which there prohibition, and he was found guilty under S. 60(a) of the Excise Act. In such circumstances, the learned Judge held that the conviction could not be considered to be in respect of an offence involving moral turpitude.
10. The next case cited by Mr. Venkataraman was the decision of Punjab High Court in Risal Singh v. Chandgi Ram . The question was whether a conviction under S. 19(f) of Arms Act amounted to a conviction involving moral turpitude. The learned Judges applied the test laid down by Srivastava, J., in Mangali v. Chhakki Lal (supra) and held that the offence of being in possession of a unlicensed revolver implies no depravity or wickedness of character or disposition which would involve any moral turpitude.
11. Mr. Venkataraman then cited the decision of the Bombay High Court in Jaysing Rangarao Raut v. M. S. Ele. Board, 1980 L.L.R. 117 . An employee of the Maharashtra Electricity Board was convicted for an offence under Ss. 149 and 341 I.P.C. Regulation of the Board empowered the Board to terminate the services of an employee on account of conviction of the employee in a Criminal Court for an offence involving moral turpitude. The employee was found guilty under S. 149 I.P.C. since he was a member of an unlawful assembly which surrounded a jeep in which some engineers of the board where travelling. He was convicted under S. 341 IPC for wrongful restraint. The learned Judge observed as follows :
'Can it be said that this action of the petitioner for which he has been convicted constitutes an offence involving moral turpitude The term 'moral turpitude' by its very nature is somewhat nebulous because it involves an examination of an action in the light of the prevailing moral norms. Unlike legal norms, moral norms are somewhat nebulous. They can very from time to time, from society to society and even from individual to individual. Hence it is quite possible that an action which may be violative of moral norms in one society may appear acceptable to another society. Hence one can only judge the action in any given case in the light if what one considers to be the prevailing moral norms of the society in which such an action has taken place. Secondly, the action should not merely be contrary to moral norms but it should involve a violation of the moral code in such a manner that it indicates business or depravity of character.'
On a consideration of the various decisions cited before me I am inclined to accept the test laid down by Srivastava, J. in Mangali v. Chhakki Lal : AIR1963All527 .
12. I shall now refer to the meaning given to the word 'moral turpitude' in the various dictionaries. In Black's Law Dictionary, Fifth Edition, at page 910 moral turpitude is explained thus :' 'Moral turpitude - The act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man or to society in general, contrary to accepted and customary rule of right and duty between man and man. Turpitude is explained at page 1359 thus : Turpitude - In its ordinary sense, inherent business or vileness of principle or action; shameful wickedness, depravity. In its legal sense, everything done contrary to justice, honesty, modesty or good morals. An action showing gross depravity.
13. Moral is explained in Random House Dictionary of the English Language, College .... Edition, thus : Moral - of pertaining to or concerned with right conduct or its principles. Being in accordance with such principles, confirming to these principles rather than to law, custom, etc. turpitude is stated to mean - business or depravity. A base or depraved act.
14. In words and Phrases, Permanent Edition, Vol. 27, page 556, it is stated thus :
'Moral turpitude is an act of business, vileness or depravity in private or social duties owing to fellow men or society in general, contrary to accepted and customary rules. Moral turpitude is an act of baseness, villainy, or depravity in the private social duties which a man owes to his fellowmen or to society in general contrary to the accepted and customary rule of right and duty between man and man. The words involving moral turpitude as used in the law with reference to crimes, refer to conduct which is inherently base, vile or depraved, contrary to accepted rules or morality, whether it is or is not punishable as a crime, they do not refer to conduct which, before it was made punishable as a crime, was not generally regarded wrong or corrupt. Turpitude is defined as inherent baseness or vileness of principle, words or actions, or shameful wickedness or depravity, whereas moral describes conduct that conforms to the generally accepted rules which society recognizes should govern everyone in his social and commercial relations with others regardless of whether those rules constitute legal obligations, so that 'moral turpitude' implies something in itself whether punishable by law or not, the word 'moral' serving only to emphasis the nature of the wrong committed.
At page 565 the following passage is found : 'Conviction for violation of the Prohibition law is not such conviction of crime as involves moral turpitude.
At page 556 it is found. :
'The illegal sale of intoxicating liquors is not a crime involving moral turpitude within Kirby's Dig authorizing the revocation of physician's licence on his conviction of crime involving moral turpitude, the words moral turpitude implying something immoral, regardless of the fact that it is punishable by law, and offences against the liquor laws, such as illegal sales of liquor, are statutory crimes and merely mala prohibita.
15. In Ramanatha Aiyar's Law Lexicon, 1940 edition, at page 832 it is stated thus :
'Moral turpitude. Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general contrary to the accepted and customary rule of right and duty between man and man.'
16. From the above it is clear that every act punishable in law would not amount to an offence involving moral turpitude. If that had been the intention, then there is no necessity at all for statutes to say that a person convicted of an offence involving moral turpitude would be exposed to certain consequences or disqualification. The legislature would have merely stated that a person who is punished for violation of any law would be exposed to such consequences, or disqualification. The question whether conviction for a particular offence involves moral turpitude will depend upon the facts and circumstances of the case. However, in order to come within the scope of the phrase moral turpitude there must be an element of baseness and depravity in the act for which a particular individual has been punished. The act must be vile and harmful to society in general or contrary to accepted rules of rights and duties between men and men. Merely a violation of a particular statute cannot amount to the commission of an act involving moral turpitude. I am in complete agreement with Srivastava, J. of the Allahabad High Court in Mangali v. Chhakki Lal : AIR1963All527 who has laid down the following tests : (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general, (2) whether the motive which led to the act was a base one and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Tested in the light of the above principles, the punishment of an individual for consuming liquor without permit in violation of the provision of Prohibition Act cannot be said to be an offence involving moral turpitude. It cannot be said that drinking is considered by society to be so base or vile as to characterise a man who consumes liquor as one of depraved character or as one who is to be looked down upon by society. Further Prohibition Act itself provides permit to be granted by the State Government under certain circumstances. The question whether consumption of alcoholic liquor by itself makes a man to be ostracized by society on the ground that he is a man of depraved character has to be decided, in my opinion not on the basis of prohibition law prevalent in a particular State but on the basis of the situation in the country as a whole. No doubt, in the States of Tamil Nadu, there is Prohibition Act which at the relevant time was more stringent than what it is today. At the same time, there are States in India where there is no prohibition at all I am emphasising this aspect only to show that drinking as such is not considered as harmful to society in general or contrary to accepted rules of rights an duties between men and men. I am, therefore, of the view that conviction for an offence for consumption of liquor under the Prohibition Act does not amount to an offence involving moral turpitude.
17. Further on the facts of this case it has also to be noted there is absolutely no evidence as to the circumstances in which the second respondent was arrested for a violation of the provisions of the Prohibition Act. No doubt, it is not disputed that the second respondent pleaded guilty before a Magistrate for the offence of consuming liquor. That apart, there is nothing else to show the place where the second respondent was arrested and whether he was found drunk in a public place. While the case of the second respondent is that he was picked up from his house and a case under the Prohibition Act was foisted on him and he was forced to plead guilty, the petitioner's case is that the second respondent was really arrested for violation of the provisions of the Prohibition Act for having consumed liquor without a permit. No order of conviction or any record relating to the criminal case has been filed in this case.
18. Apart from this, it is significant to state that Standing Order 16(X) of the Model Standing Order is not attracted to the facts of this case. The finding of the Labour Court in this respect is not liable to be interfered with.
19. The nest question that arises for consideration is whether the second respondent is a workman within the meaning of Industrial Dispute Act. The case of the management is that the second respondent was only a casual employee. He was engaged along with the others for the purpose of loading the tractors into railway wagons as and when wagons are available. In the circumstances, the contention of Mr. Sanjay Mohan was that the second respondent was not a workman within the meaning of Industrial Disputes Act and would not be entitled to reinstatement. The learned counsel also stressed upon the fact that the Labour Court had not given any finding in this case whether the second respondent was a casual employee or not. In this context, the learned counsel referred to the decision of Ismail, J., (as he then was) in Crompton Engg. Co. v. Additional Labour Court, Madras, : (1975)ILLJ207Mad . In this case the services of three persons were terminated by the Crompton Engineering Co. Ltd., and at their instance an industrial dispute regarding their non-employment was raised for adjudication. It was contended before the Labour Court by the management that the said persons were only casual labourers and therefore were not workmen with the meaning of S. 2(S) of the Industrial Disputes Act. The Labour Court held that even casual labourers were included in the definition of S. 2(S) of the Industrial Disputes Act and directed the reinstatement of the employees. Before Ismail, J. (as he then was) the question that was argued was whether casual labourers would be workmen within the meaning of S. 2(s) of the Act. The learned Judge factually found that the orders of the appointment of the concerned employees established that they were appointed only for a particular period or for a particular job, and as soon as a period or job was over the appointment automatically came to an end and that the said position was not disputed before the Court. On the basis of this factual finding, the learned Judge observed as follows :
'Under these circumstances, even tough the respondents 2 to 4 would come within the scope of the term 'workman' in S. 2(s) of the Industrial Disputes Act, they would not be entitled to reinstatement as ordered by the Labour Court since there was no question of termination of their services or discharge of the workmen concerned as their employment itself was for a particular period or for a particular job and such employment came to an end automatically as soon as the term was over or the job was over'
The decision of Ismail, J. (as he then was) is, therefore, not an authority for the proposition that a casual labourer will not fall within the scope of the term 'workman' in S. 2(s) of the Industrial Disputes Act. The facts of that case are clearly distinguishable from the facts of this case.
20. Mr. Venkataraman cited the decision of the Kerla High Court in Calicut Mordum Spg. and Wvg. Mills v. Industrial Tribunal, (1977) Lab. I.C. 1673. The dispute arose on account of the denial of employment to six persons by the management of the Calicut Mordum Spg. and Wvg. Mills, Chelambra. The management contended that the work which the persons were doing was a work which was available on casual basis. The management used to call the said persons only when they had enough work and the work would be available only when the lorries came with raw materials. It was further contended by the management that the workmen were casual labourers and hence not liable to be reinstated. The judgment of Ismail, J., (as he then was) was relied upon by the management. The learned Judges felt that in the case before them the Tribunal had found that the work of loading and unloading the lorries was work of permanent nature although it might not have been available for being undertaken itself in sufficient frequency or volume to keep the workmen permanently employed and that by itself would not make the work one of a casual nature, nor the workmen casual workmen. In this view, the learned Judges came to the conclusion that there was no foundation on the facts before them to apply decision of Ismail J.
21. Mr. Venkataraman also cited the decision of the Supreme Court in Y. L. Agarwalla v. Tozhilali Union 1978 Lab. I.C. 1264 the head note of which reads as follows :
'Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over workers' subsistence, skill, and continued employment. If he, for any reason, chocks-off, the worker is, virtually, laid-off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex-contractual is of no consequence when on lifting the veil or looking at the conspectus of factors governing employment, it is found, though in different perfect paper arrangement, that the real employer is the management, not the immediate contractor.'
22. In the case before me, the Labour Court factually found that the second respondent was a workmen within the definition of Industrial Disputes Act. The Labour Court has factually found that the second respondent was a workman with the definition of Industrial Disputes Act. The Labour Court has referred to Ext, M-1 the attendance register wherein the name of the second respondent finds a place. The Labour Court has also observed that Ext. M-1 show the regularity of employment or control which the management exercised over persons like the second respondent who are being engaged for loading tractors into railway wagons. The Labour Court has referred to the evidence of W.W. 1 wherein he has stated that he used to load 15 to 40 tractors everyday and when there was no work for him he could not attend to the work of some other management. The Labour Court has also referred to the evidence of M.W. 1 Krishanamurthy a clerk in the management working at the Korukkupet yard. M.W. 1 has stated that if the workman like the second respondent were not able to at end the work they should send a substitute and in the attendance register the letter ('R') would be written to show that he was a replacement, and that the wages should be paid to the person replaced by the particular employee. M.W. 1 had also stated that the second respondent and others similarly situated had to report for work everyday and that he would supervise their work and correct them in the workshop if the work was not done properly. Every day he would allot work for them and even though tractors did not arrive, they had to wait for the same. The Labour Court has further stated that the evidence given by M.W. 1 clearly established the fact that the management to the respondent company had got absolute control over the work of the workman and they supervised the work of the workman in respect of loading of the tractors and there was a regular attendance register. On these facts, the Labour Court came to the conclusion that the second respondent was a workman within the meaning of S. 2(s) of the Industrial Disputes Act. Mr. Sanjay Mohan was not able to convince me on the basis of the relevant records that this finding of the Labour Court was either perverse or not based on any materials or vitiated by any error apparent on the face of the record. Apart from this, unlike the facts in the case that arose for consideration before Ismail, J. (as he then was) in Crompton Engg. Co. v. Additional Labour Court, Madras, : (1975)ILLJ207Mad , the facts of this case are similar to the facts that arose for consideration before the Kerala High Court in Calicut Mordum Spg. & Wvg Mills v. Industrial Tribunal. Admittedly, in this case the management manufactures tractors and the tractors are being loaded into the railway wagons. For the said purpose, the second respondent and others were being regularly, employed by the management. In the claim statement, it is stated that the work that the second respondent was performing was and continued to be of a permanent nature. Loading of tractors is an absolute necessity in the day to day operations of the respondent-company and forms part of the manufacturing operations of the respondent company. The assembled tractors are loaded for dispatch to the various destinations both by the rail and road transport and everyday the claimant had to stay late in the evening awaiting the assembled tractors from the factory, if on the previous day all tractors had been loaded and no tractors became available for dispatch'. In the counter statement, it is stated : 'A reference to the nature of work and the activities carried on by the respondent-management as submitted above is irrelevant since the petitioner's name has been removed from the list of casual employees'. It must, therefore, be taken to be admitted that the work in which the second respondent was being engaged was of a permanent nature and that his claim that he was being regularly employed has not been denied. Consequently, the case clearly falls within the ration of the decision in Calicut Mordum Spg. & Wvg. Mills v. Industrial Tribunal. I am, therefore, convinced on the materials placed before me that the second respondent is a workman within the meaning of S. 2(s) of the Industrial Disputes Act, The order of the Labour Court cannot, therefore, be said to be vitiated in any manner. The writ petition, therefore, fails and is dismissed, but in the circumstances there will be no order as to costs.