Central Administrative Tribunal - Bangalore
H.R. Somappa vs Union Of India (Uoi) And Ors. on 30 April, 2003
Equivalent citations: 2004(1)SLJ171(CAT)
ORDER V. Srikantan, Member (A)
1. The applicant was appointed as Tradesman 'B' on 20.4.1987 in the Indian Rare Earths Ltd., Rare Materials Plant (RMP), Mysore (Govt. of India Undertaking), on application submitted by him in response to the advertisement No. nil dated 18.11,86 published in the newspaper (Annexure A-1). At the time of appointment, the applicant was asked to furnish certain informations in the proforma regarding particulars pertaining to age, qualification, religion, etc. and these proformas was submitted by the applicant on three different dates, i.e., 20.11.86, 3.3.87 and 6.4.87 respectively, (Annexures A-2, A-3 and A-4). The qualification as prescribed in the advertisement was SSLC or equivalent (I Class) with science subjects. The applicant served in the said company (RMP) upto 31.1.91. The RMP, Mysore was taken over by the Department of Atomic Energy (DAE) vide order dated 7.2.91 and placed under the administrative control of Bhabha Atomic Research Centre, (BARC) Mumbai which is the constituent unit of DAE and the Rare Material Plant was renamed as Rare Material Project (RMP) and all the employees on the rolls of Indian Rare Earth Limited were brought under the rolls of RMP/BARC. Consequent to taking over of RMP, by DAE/ BARC, the applicant came to be appointed on the same terms and conditions as are applicable to the employees of BARC and came to be governed by the rules and orders in force from time to time as are applicable to Central Government Employees in BARC. The applicant was appointed in a temporary capacity in the regular establishment of BARC with effect from 1.5.93 and subsequently appointed in a substantive capacity with effect from 1.5.93 vide order dated 29.7.93 (R-2). The applicant was promoted to the post of Tradesman 'C' and 'D' with effect from 1.5.91 and 1.5.95 respectively.
2. The applicant was issued the memo of charges dated 20.6.98 (Annexure A-8) under Rule 14 of the CCS (CCA) Rules, 1965. The charge was that "the said Shri H.R. Somappa, Tradesman 'D', ITS, has suppressed the factual information about his possessing diploma in Civil Engineering qualification which he acquired before his joining the Rare Material Project, Mysore. By the aforesaid conduct, the applicant has shown lack of absolute integrity and acted in a manner unbecoming of a Government Servant, thereby contravening the provisions of Sub-rules 1 (ii) and (iii) of Rule 3 of CCS (Conduct) Rules, 1964." The applicant vide letter dated 3.11.98 denied the charges. Thereafter a regular inquiry was held and the inquiry officer (I.O.) submitted his inquiry report dated 15.4.2000 (Annexure A-53) to the Disciplinary Authority holding the charge framed against the applicant as proved. The Disciplinary Authority forwarded the copy of the IA's report to the applicant vide letter dated 2.5.2000 (Annexure A-54) with instructions to the applicant to submit his representation. The applicant submitted his representation dated 14.6.2000 (Annexure A-55) and the Disciplinary Authority after going through the representations submitted by the applicant and the records of the inquiry, accepted the findings of the inquiry officer and imposed on the applicant the penalty of reduction of pay by 6 stages from Rs. 5250 to Rs. 4500 in the time scale of pay of Rs. 4500-7000 for a period of 5 years with effect from 1.12.2000 with cumulative effect vide order dated 27.11.2000 (Annexure A-56). The applicant preferred an appeal dated 8.1.2001 (Annexure A-57) to the Appellate Authority against the penalty order. The Appellate Authority however, vide order dated 22.11.2001 (Annexure A-58) confirmed the penalty imposed by the Disciplinary Authority. Aggrieved, the applicant has filed this O.A. seeking the quashing of the orders dated 27.11.2000 passed by the Disciplinary Authority and the order dated 22.11.2001 passed by the Appellate Authority and for a direction to restore the" applicant to his original position as if his pay has not been reduced from Rs. 5250 to Rs. 4500 per month and to pay back the deductions made from his pay for implementing the punishment order and to grant him the promotion whatsoever due to him with effect from the dates his juniors were promoted to higher posts.
3. Heard both Counsel and perused documents on record including the inquiry proceedings.
4. The Counsel for the applicant stated that the verification of the attestation forms submitted by the applicant has been carried out at the time of appointment which was 11 years prior to the issue of the charge sheet stating that the applicant had suppressed factual information regarding the higher qualification which the applicant possessed. The applicant contends that the alleged suppression of information, i.e., non-mentioning of higher qualification at the time of his appointment in 1986-87 in IREL is not an act committed during the applicant's service in RMP/BARC. However, it is seen that the IREL was taken over by DAE with effect from 1.2.91 and placed under BARC and all employees were deemed to be the employees of DAE vide letter dated 7.2.91 (Annexure R-1). It is also seen from letter dated 29.7.92 (R-2) that staff including the applicant were appointed in the substantive capacity with effect from 1.5.93. It is thus clear that the applicant at the time of issue of the charge sheet was an employee of the BARC/DAE and was subject to the provisions of the CCS (Conduct) Rules and CCS (CCA) Rules and the respondents were therefore within their rights in issuing the charge sheet even though the charge pertained to suppression of information which had taken place at the time the applicant was recruited by IREL.
5. The next ground advanced by the applicant is that the charge sheet was issued by an authority other than the appointing authority. It is seen that the memorandum of charges dated 26.10.98 has been issued by the CAO and Disciplinary Authority. The respondents have pointed out that consequent on taking over RMP by DAE/B ARC, the HPD/BARC was the appointing authority in respect of Group 'C' employees of RMP. However, vide notification of DAE dated 27.8.98, CAO/RMP was notified as disciplinary/appointing authority in respect of Group 'C' employees of RMP. Accordingly, on the date of issue of charge sheet to the applicant, CAO/RMP was the competent appointing authority/Disciplinary Authority in respect of the applicant. In this view of the matter, there is no merit in the contention of the applicant that the charge sheet was issued by an authority other than the appointing authority.
6. Another ground advanced by the applicant is that the charge sheet is vague, unspecific and indefinite. This was strongly denied by the Counsel for the respondents who argued that the charges are very specific. On going through the articles of charge, it is seen that the charge against the applicant is that he had suppressed the factual information about his possessing diploma in civil engineering qualification which he acquired before joining Rare Materials Plant, Mysore. It cannot be said that this article of charge is vague. On the contrary it is very specific. In the statement of imputations it has been clearly mentioned that the applicant had acquired a diploma in civil engineering in the year 1986 from VIS.SJ Government Polytechnic, Bhadravathi and that the Principal of VIS.SJ Government Polytechnic, Bhadravathi had vide letter dated 8.9.98 intimated that the applicant had secured I class in diploma in Civil Engineering and the statement of imputation goes on to state that this fact had been suppressed by the applicant in the attestation form. Accordingly, the contention of the applicant that the charge sheet is vague is untenable.
7. It has been contended by the applicant that the suppression of the fact that the applicant was in possession of a diploma in civil engineering does not constitute a misconduct and it is nowhere mentioned in CCS (CCA) Rules as amounting to misconduct. In support, the applicant has relied on the decision of the Punjab and Haryana High Court in the case of B. Venugopal Reddy v. Union of India and Ors., 1991(1) SLR 222, and the decision of the Supreme Court in the case of R.V. Patel v. Ahmedabad Municipal Corporation and Anr., AIR 1985 SC 504. The Counsel for the respondents on the other hand contended that what constitutes misconduct enumerated in the CCS (CCA)/Conduct Rules is only illustrative and not exhaustive and that in the circumstances, the respondents were fully justified in treating the suppression regarding the possession of diploma in civil engineering by the applicant as misconduct and taking disciplinary action against the applicant. In support, the Counsel for the respondents relied on the judgment of the Supreme Court in the case of State of Punjab and Ors. v. Ram Singh Ex-Constable, (1992) 4 SCC 54=1992(3) SLJ 160 (SC). It is no doubt true that in the case of B. Venugopal Reddy v. Union of India and Ors. supra, the Supreme Court had held termination of the services on the ground of suppression of facts regarding involvement in a criminal case prior to recruitment as invalid as the offence committed did not involved moral turpitude and the petitioner was fully exonerated by judicial magistrate. It had been pointed out by the Supreme Court in that case that only the criminal case stood registered against him and its trial had not even commenced and therefore there was no legal obligation on the part of the petitioner to narrate all these facts and his omission to do so does not amount to suppression or concealment of any material particulars at the time of his recruitment to service. It is thus clear that the facts and circumstances in this judgment of the Supreme Court are very different and are hence inapplicable in the case of the applicant. In the case of R.V. Patel v. Ahmedabad Municipal Corporation (supra), the Supreme Court had held that the dismissal of the petitioner on the ground of suppression of material fact in application for employment alleging it to be a misconduct had held that the dismissal of the petitioner to be bad in law as the alleged misconduct did not fall within the enumerated misconduct in the service regulations or standing orders. This view of the Supreme Court was based on the well settled canon of penal jurisprudence that removal or dismissal from the service on account of misconduct constitutes penalty in law. However, in the case of the applicant it is seen that he was neither removed or dismissed from service. In the facts and circumstances, this judgment is also not applicable in the case of the applicant. In the case of State of Punjab and Ors. v Ram Singh Ex-constable supra, in para 5 of the judgment, the Supreme Court have extracted the definition of misconduct as given in Black's Law Dictionary and P. Ramanatha Aiyar's Law Lexicon which are extracted as under:--
5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour; delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the fact of an affirmative duty to act."
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error or judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule or action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
In para 6, the Supreme Court have gone on to state as under:
6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to be scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
8. It is thus seen that in terms of the above extracts of the Supreme Court judgments any act which is wilful in character could also amount to misconduct. In the case of the applicant, it is seen that, the fact that the applicant possessed diploma in civil engineering had been suppressed and such a suppression was wilful in character and hence has to be construed as misconduct. In the circumstances, the respondents were fully justified in treating the suppression as misconduct and taking disciplinary action against the applicant.
9. Another ground taken by the applicant was that the documents mentioned in the annexures to charge sheet were not introduced by any witnesses and thereby the applicant was denied the opportunity to cross-examine the witnesses on the contents of the documents and accordingly the principles of natural justice have been violated. The Counsel for the respondents has however argued that the applicant never disputed the genuineness of the documents and there was no need for a witness to introduce the documents in this case. In support he relied on the judgment of the Supreme Court in the case of DG, ICMR v. Doctor Anil Kumar Ghosh and Anr., 1998(7) SCC 97. In this case the Supreme Court had held that when the genuineness of the documents produced before the inquiry was not in dispute than their authors need not be examined. In the case of the applicant it is seen that the applicant had inspected all the documents mentioned in the annexures to the charge sheet and had not raised any objections about their genuineness. It was also noticed by us that out of the 5 documents listed at Annexure III to the memorandum of charges, the first 3 documents, i.e. application dated 20.11.86, application dated nil for the post of Tradesman 'B' submitted at the time of interview and attestation form dated 6.4.87 were all submitted by the applicant himself and hence the question of introducing the documents through witness was not relevant. The remaining 2 documents related to the letter received from the Principal VIS. SJ Govt. Polytechnic, Bhadravathi dated 8.9.98 and extracts from Annual 1986 provisional issue register of the Polytechnic indicating that the applicant studied in the said polytechnic during the years 1983-84 and 1985-86 and had secured I class in diploma in civil engineering. It is nowhere the claim of the applicant that this information is not correct. In the circumstances, there was no need to examine the authors of the above 2 documents. In the circumstances, we find absolutely no merit in the allegation that principles of natural justice had been violated in the case of applicant.
10. Yet another ground raised by the applicant is that the applicant was denied the services of a defence assistant (DA) and the names suggested by the applicant for appointment of a DA was not approved by the I.O. and moreover, his request during the inquiry proceedings seeking more time to produce a DA was rejected. Accordingly, it is argued by the Counsel for the applicant that the disciplinary proceedings are vitiated and require to be quashed. From the records it is seen that the applicant had forwarded the consent letter from his DA, Shri P. Ravindran to the I.O. on 9.2.99 (Annexure A-15). However, the I.O. did not accept the nomination of Shri P. Ravindran as his DA on the ground that engaging a DA from outstation will delay the conduct of the proceedings besides involving the expenditure to the Government and this was intimated to the applicant vide letter dated 10.2.99 (Annexure A-16). The applicant represented through letter dated 24.3.99 (Annexure A-18) to the Disciplinary Authority regarding rejection of Shri P. Ravindran as his DA by the I.O., but the Disciplinary Authority upheld the decision of the I.O. and informed accordingly vide letter dated 25.3.99. The applicant, thereafter submitted a representation on 1.4.99 (Annexure A-20) addressed to the Head, Personnel Division, BARC but was informed by the Disciplinary Authority vide letter dated 9.4.99 to engage a DA from Mysore itself. The applicant, had therefore written a letter dated 22.4.99 (Annexure A-27) to the I.O. to reconsider the decision in not allowing or engaging of outstation DA but the same was not accepted by the I.O. vide his letter dated 8.5.99. When the next hearing was held on 13.5.99, the applicant did not bring his DA and the applicant was informed by the I.O. that since sufficient time had already been given the hearing cannot be postponed and thereafter the PO presented the case and the next hearing was fixed on 7.7.99. The applicant vide letter dated 7.6.99 (Annexure A-30) intimated the I.O. about the nomination of Shri Chabaque, retired Central Govt. employee from Bangalore as his DA and was informed by the I.O. vide letter dated 15.6.99 stating that Shri Chabaque must submit a certificate stating that he did not have more 5 case on hand including the one for which he has given his consent, On 8.7.99, when the next hearing was held the applicant gave a letter stating that his DA has 5 cases in hand but the I.O. did not agree to grant permission to nominate Shri Chabaque as his DA and the next hearing was fixed for 20.8.99 and the applicant was informed by the I.O. to bring his DA on that date, failing which proceedings will be held ex pane. The regular hearing rescheduled on 20.8.99 was postponed and the I.O. vide letter dated 11.8.99 directed the applicant to indicate the particulars of the DA on or before 31.8.99. Through the detailed order dated 23.9.99, the applicant was informed by the I.O. that this will be the final chance for the applicant to present the case before the regular hearing by engaging a DA, failing which the proceedings will be held ex-parte. In the regular hearing held on 20.10.99, the applicant did not bring his DA and he was asked to produce his DA in the afternoon, but when the proceedings were taken up at 1400 hours, the applicant was unable to produce his DA. Under these circumstances, the applicant was asked to present his case himself but the applicant sought for one week's time to bring his DA but was informed by the I.O. that enough opportunities have already been given and thereafter proceeded with the inquiry. It was strongly argued by the Counsel for the applicant that the turning down of the request of the applicant to engage a person from outstation, Shri Ravindran and the subsequent turning down of the request of the applicant to take Shri Chabaque as his DA and insisting that Shri Chabaque should produce a certificate that he does not have more than 5 cases in hand including that of the applicant was illegal and not covered by rules. The Counsel for the applicant referred to the judgment of the Mysore High Court in the case of K. Santhanam v. Union of India and Anr., 1970 Lab. IC Vol. 3 CN 27; and the judgment of the High Court in the case of Shri V.S. Iyengar v. The Karnataka Handloom Development Corporation Limited and Ors., 1991 Lab.IC 2110, and the orders passed by this Tribunal on 3.9.2002 in O.A. 387/2002. On the other hand, it was argued by the Counsel for the respondents that sufficient opportunity had been given to the applicant to obtain the services of a DA but the applicant was unable to obtain the services of a DA and thereafter the applicant had not protested the continuation of the disciplinary proceedings but in fact participated in the inquiry. If the applicant had been aggrieved, he should at that stage has not participated in the inquiry and should have approached the Central Administrative Tribunal but the applicant had not done so. It was therefore argued that in the circumstances, the reliance could not be placed on the judgments of the Karnataka High Court supra referred to. It is no doubt correct that in the case of K. Santhanam v. Union of India and Anr. (supra), the Mysore High Court had held that the Disciplinary Authority cannot refuse permission on plea of inconvenience. In that case, the Disciplinary Authority had not allowed the petitioner the assistance sought for on the ground that it would entail unnecessary delay and expenses but this plea was not accepted by the Mysore High Court. However, on going through the facts, it is seen that in that case, the petitioner had not participated in the inquiry and immediately on being informed that the applicant's request for appointing a particular person as DA had been rejected had filed a petition before the High Court. However, in the case of the applicant, it is seen that the applicant had participated in the inquiry. Accordingly, the facts and circumstances of the applicant are different, in the case of V.S. Iyengar v. Karnataka Handloom Development Corporation supra, the Court had held that employees right to use the services of a particular co-employee restricted to 2 inquiries was discriminatory since there was no such restriction in the rules in this behalf. Here again it is seen that on going through the facts that when permission to utilise the services of a particular co-employee was denied to the petitioner, the petitioner had not participated in the inquiry but the inquiry had been conducted in absentia of the employee. Here, once again, the facts are different. In the case of the applicant, the applicant had participated in the inquiry. The applicant has also referred to the orders passed by this Tribunal on 3.9.2002 in O.A. 387/2002. In this O.A. it is seen that the office memorandum dated 23.1.2002 was quashed on the ground that the Disciplinary Authority was not the competent authority to pass an order in the matter of engaging a DA. Accordingly, the facts are entirely different and not relevant to the case of the applicant. In the circumstances, we do not find any merit in this contention of the applicant.
11. Yet another ground raised by the applicant is that all documents sought for by the applicant in support of his defence were not made available. However, on going through the records, it is seen that the applicant had requested for supply of additional documents vide his letter dated 22.7.99 and the same had been considered by the I.O. and after examining the relevance of the documents requested for by the applicant, the I.O. vide letter dated 29.7.99 had requested the respondents to supply copies of documents which had been agreed to by him. It is also seen that the applicant was informed of the reasons wherever the I.O. had not agreed to supply the copies of certain documents. Accordingly, there is no merit in this contention of the applicant.
12. Another contention of the applicant is that the substantive provisions under Rule 14 of CCS (CCA) Rules were not observed; specifically the provisions of Sub-rules 16 and 18 of Rule 14 were given the go by and such the inquiry proceedings are vitiated. It was strongly argued by the Counsel for the applicant that Sub-rules 16 and 18 of Rule 14 being substantive rules were required to be followed but the same had not been done. In support, he cited the judgment of the Supreme Court in the case of Central Bank of India v. P.C. Jain, AIR 1969 SC 983. In this judgment, the Supreme Court had held that while technical rules of evidence do not apply to domestic inquiry yet substantive rules which form part of principles of natural justice cannot, however, be ignored by domestic Tribunals. These findings were recorded by the Supreme Court in the context of the inquiry officer relying on statements made behind the back of the charged person. The Counsel for the respondents on the other hand argued that Sub-rules 16 and 18 of Rule 14 are not substantive rules but procedural rules and mere non-observance of procedural rules will not vitiate the proceedings unless prejudice can be established which is not the case of the applicant. In this context he referred to the judgment of Supreme Court in the case of State Bank of Patiala and Ors. v. S.K. Sharma, 1996(3) SCC 364. In this judgment the Supreme Court had held that substantive provisions have normally to be complied with but in the case of procedural provisions which are not of substantial or mandatory character if no prejudice is caused to the person proceeded against, no interference of Court called for and substantial compliance with such provisions is enough. Sub-rule 16 of Rule 14 reads as under:
"(16) When the case for the Disciplinary Authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded, and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed."
On going through the disciplinary proceedings it is seen that the I.O. asked the applicant to present his case by himself, the applicant had stated that without the DA he would not be able to present his case and wanted one week's time to bring his DA. This statement was made despite the fact that the I.O. had noted that the applicant had come to the inquiry proceedings without his DA despite being given sufficient opportunity and it is in this context that the inquiry officer proceeded with the inquiry. In the circumstances it cannot be held that there has been violation of Sub-rule 16 of Rule 14 of CCS (CCA) Rules. It is also obvious that the I.O. had given the applicant an opportunity to present his case but the same had not been availed of by the applicant. In the circumstances, we do not find any merit in the contention of the applicant that no opportunity was given to the applicant to produce documents/witnesses in his defence.
13. The applicant has also stated that the I.O. has put leading questions to the applicant. On going through the inquiry proceedings it is seen that before concluding the inquiry, the I.O. had asked the applicant in terms of Sub-rule 18 of Rule 14 of CCS CCA Rules certain questions in respect of the documents which are against the interest of the applicant. We war of the view that such action on the part of the I.O. was perfectly in accordance with Sub-rule 18 of Rule 14 of CCS (CCA) Rules which permits the I.O. to generally question the charged officer on circumstances appearing against him in the evidence for the purpose of enabling the charged office to explain any circumstances appearing in the evidence against him.
14. Yet another ground urged by the applicant is that the inquiry officer was biased against the applicant. However, on going through the records, it is seen that the question of bias against the I.O. was raised on 20.12.99 whereas the inquiry proceedings had been concluded on 28.10.99 itself. According to prescribed instructions, any representations alleging bias against the I.O. are required to be preferred at the initial stage of such proceedings. In this view of the matter the question of bias against the I.O. is untenable.
15. It has also been contended by the applicant that the orders of Disciplinary Authority and Appellate Authority are not speaking orders. We have gone through the orders passed by the Disciplinary Authority and the Appellate Authority. It is seen that the orders passed by the Disciplinary Authority dated 27.11.2000 are detailed and have touched on all aspects raised by the applicant in his written statement of defence and that the relevant records as also the inquiry report and the representation of the applicant were duly considered before the punishment was imposed on the applicant. Similarly, the Appellate Authority's order dated 22.11.2001 also considered all the contentions raised by the applicant in his appeal and thereafter only upheld the punishment imposed on the applicant by the Disciplinary Authority.
16. Finally, it is also the contention of the applicant that the punishment imposed on the applicant is too severe and shockingly disproportionate to the charge of suppression of material information. We are not impressed with this argument. It is seen from the order of the Disciplinary Authority that the Disciplinary Authority has stated that misconduct on the part of the applicant warrants imposition of the major penalty of dismissal from service but the Disciplinary Authority has taken a lenient view and imposed the penalty of reduction of pay by six stages in the time scale of pay of Rs. 4500-7000 for a period of 5 years with effect from 1.12.2000 with cumulative effect. Accordingly, we do not find any grounds to interfere with the punishment imposed on the applicant by the Disciplinary Authority and upheld by the Appellate Authority.
17. For the above reasons, we do not find any merit in this application and the application is accordingly dismissed. No costs.