Rajasthan High Court - Jaipur
Kshetriya Khadi Gramodyog Samiti vs Union Of India (Uoi) And Ors. on 16 September, 1994
Equivalent citations: (1998)IIILLJ1072RAJ, 1995(1)WLC450
JUDGMENT Arun Madan, J.
1. This writ petition was filed in this Court under Articles 226 and 227 of the Constitution of India in the matter of Section 7A of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 (for short 'the Act') against the order of Regional Provident Fund Commissioner, Jaipur dated June 4,1984 (impugned) in the present petition. The petitioner has also challenged the vires of Section 7A of the Act and has prayed for issuance of an appropriate writ, order or direction for deletion of the said provision from the Statute and has further prayed for quashing of the impugned order dated June 4, 1984 passed by the Regional Provident Fund Commissioner.
2. The facts giving rise to this writ petition briefly stated are that the petitioner-establishment is a registered society, registered under the Rajasthan Societies Registration Act, 1958 on April 25, 1978 and started manufacturing Khadi with effect from April, 1979. Soon after its registration, the petitioner- establishment undertook the work of manufacturing Khadi in Village Kumher in District Bharatpur, which, according to the petitioner, was earlier undertaken by Bharatpur Zila Khadi Gramodyog Samiti from Kumher area and the aforesaid work was given to the petitioner-establishment. It is further stated in the petition that since the petitioner was registered as an independent institution and had also decided to work in accordance with the policies of Khadi & Village Industries Commission, the Khadi & Village Industries Commission, Bombay, started giving loans and subsidy to the petitioner for production of Khadi. It is further stated that the petitioner-establishment has absolutely no connection with Bharatpur Zila Khadi and Gramodyog Samiti and as such it can neither be said to be continuation unit nor a part of the erstwhile unit i.e. Bharatpur Zila Khadi and Gramodyog Samiti and that the petitioner-establishment is not covered under the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The number of employees of the petitioner-establishment was 20 upto 1982 and in the year 1983 with the development of the work, strength of the workers increased to 22 employees in all.
3. The petitioner-establishment, as per the policy of the society, took unilateral decision to extend the facilities of Provident Fund to its employees from the date of formation of the society and accordingly a trust was created for the purposes of enabling the petitioner to deposit both contributions towards Provident Fund amount i.e. of employees as well as the employer's contribution in the said Trust formed for the purpose of Provident Fund with the Punjab National Bank, Kumher.
4. It has been further contended by the petitioner in the petition that on February 23, 1984 an Inspector from the office of Regional Provident Fund Commissioner, Jaipur i.e. Respondent No. 2, visited petitioner's establishment and directed the petitioner to deposit the amount of Provident Fund Contribution on account of its employees with the State Bank of India Account at (Bank of) Bikaner and Jaipur. A letter dated February 23, 1984 (Annexure 1) was also received by the petitioner in this connection.
5. On April 2, 1984, a letter (Annexure 2) was received from the office of Respondent No. 2 directing the petitioner-establishment to deposit the Provident Fund dues for the period April 1, 1979 to February, 1984 which had neither been received nor deposited with the Respondent No. 2, hence an immediate action was requested with a direction to clear the dues within 7 days from the date of receipt of the said communication. No reply was sent to the said letter by the petitioner-establishment to the Respondent No. 2. Subsequently, on May 17, 1984, a notice was sent by Respondent No. 2 to the petitioner-establishment under Section 7A of the Act with a specific direction to the petitioner that since the Employees' Provident Fund dues were still outstanding as against the petitioner-establishment, it was proposed by the Regional Provident Fund Commissioner to conduct an enquiry at 11.30 a.m. on May 29, 1984 for determining the amount due on account of the petitioner for the period April, 1979 to March, 1984. The petitioner was further directed to attend the said enquiry and to state its case with all relevant evidence in its favour relevant for the said period. This communication (Annexure 3) dated May 17, 1984 was a registered A.D. letter, the receipt of which was duly acknowledged by the petitioner and a reply to the said communication dated May 22, 1984 was sent by the petitioner with a request for extension of time by at least one month so as to enable the petitioner to participate in the said enquiry.
6. It has been further stated in the petition that Respondent No. 2 passed the impugned order dated June 4, 1984. (Annexure 6) on the basis of the enquiry conducted under Section 7A of the Act, whereby, the Respondent No. 2, on the basis of the report obtained from Inspector and other relevant evidence on the record, came to the conclusion that since the petitioner-establishment had failed to pay the Employees' Provident Fund, Family Pension and Insurance Fund dues for the period from April, 1979 to March, 1984 and that a notice was issued earlier to the petitioner-establishment on May 17, 1984, directing it to produce the relevant records before Respondent No. 2 and which it had failed to do so during the period specified in the notice, the Respondent No. 2 proceeded to determine the amount due from the petitioner amounting to Rs. 92,950.35 by passing an ex-parte order with a direction to deposit the amount within 30 days of the receipt of the said order, failing which the same shall be recovered in accordance with Section 8 of the Act besides action under Section 14 and 14B of the Act, for which the petitioner-establishment had rendered itself liable.
7. Subsequently, on December 16, 1983 vide Annexure 7, Respondent No. 2 sent another communication to the petitioner-establishment specifically mentioning therein that the said establishment which was earlier part of Bharatpur District Khadi Gramodyog Samiti and was allotted P.P. Account No. RJ-600 had started functioning independently with effect from April 1, 1979 and the petitioner was specifically directed to deposit henceforth Provident Fund dues on account of its employees directly with Respondent No. 2 vide P.P. Account Code No. 3586 with effect from April 1, 1979 in order to escape penal consequences under the Act.
8. It is surprising to note that this communication (Annexure 7) has not been challenged by the petitioner either by making a representation before Respondent No. 2 nor any relief has been sought in respect of quashing the same before this Court. This obviously implies that the petitioner establishment was running in continuation of the earlier establishment i.e. Bharatpur Zila Khadi Gramodyog and that there was only a change of nomenclature and nothing more.
9. During the course of hearing, learned counsel for the petitioner Shri R.K. Kala contended that the petitioner-establishment is not a part of the earlier establishment i.e. Bharatpur Zila Khadi Gramodyog Samiti but was registered as an independent institution and hence is a new and independent institution. It was further contended that previous establishment was totally an independent unit and has no connection whatsoever with the petitioner-establishment. In this connection reliance was placed upon the provisions of Section 16 of the Act which is reproduced as under :--
"16. Act not to apply to certain establishments.--
(1) This Act shall not apply--
(a) to any establishment registered under the Co-operative Societies Act, 1912, or under any other law for the time being in force in any State relating to co-operative societies, employing less than fifty persons and working without the aid or power; or
(b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits; or
(c) to any other establishment set up under any Central, Provincial or State Act and whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any scheme or rule framed under that Act governing such benefits; or
(d) to any other establishment newly set up, until the expiry of a period of three years from the date on which such establishment is, or has been, set up.
Explanation--For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely by reason of a change in its location.
(2) If the Central Government is of opinion that having regard to the financial position of any class of establishments or other circumstances of the case, it is necessary or expedient so to do, it may, by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt whether prospectively or retrospectively that class of establishments from the operation of this Act for such period as may be specified in the notification."
10. Sub-section (2) of Section 16 of the Act specifically provides that in the event of any establishment seeking the benefit of exemption from the operation of the provisions of the Act, it has to apply for obtaining such exemption with the Central Government, which may grant exemption keeping in view the financial position of such establishment or other circumstances as it may be necessary or expedient so to do by issuing a notification in the official Gazette.
11. It was contended by the learned counsel for the petitioner that notwithstanding the petitioner's representation vide letter dated May 22, 1984 received by Respondent No. 3 on May 26, 1984, no extension of time was granted to the petitioner-establishment nor any reasonable opportunity of being heard was given to the petitioner-establishment. The petitioner-establishment was further not provided a copy of the expert-report while it is an implied condition that reasonable opportunity of being heard should have been given to the petitioner to comment on the report of the Inspector after supplying its advance copy to the petitioner. It has been further stated that the impugned order is simply based on the report of the inspector and not on any other independent evidence. It was further stated that the petitioner-establishment was functioning as an independent institution with effect from April 1, 1979 as would be clear vide Annexure 7 dated December 16, 1983, since independent Code Number was allotted to the petitioner-establishment and, therefore, it could not beheld liable to pay any amount during the period April, 1979 to March, 1984 which according to the learned counsel was the responsibility of the erstwhile establishment. In support of his contention, learned counsel for the petitioner has placed reliance upon the following judgments :--
1. FLR 1990 (60) Page 143
2. FLR 1991 (63) Page 30 & 303
3. FLR 1987 (55) Page 675
4. LLN 1988(1) Page 524
5. RLR 1989 (2) Page 62
6. Lab.I.C. 1988 Page 1102
7. FLR 1993 (67) Page 928
8. LLN 1988 (2) Page 128
9. Lab.I.C. 1993 Page 1740
10.(1992-I-LLJ-903)(Raj)
12. I have gone through the ratio of the Judgments referred to above and heard the learned counsel for the parties at length.
13. In the matter of Khoja Lime Udyog v. RPF Commissioner, reported in 1990(1) RLR, 130, this Court while dealing with the case relating to the recovery of Provident Fund dues held that the 2 units should be held to be different and distinct units unless an interconnection between the 2 units is established of mutual dependence of one on the other so that one cannot function altogether in the absence of the other. In this connection, learned counsel for the petitioner has invited the attention of the Court to the reply submitted by the respondents, wherein the respondents have taken the stand that separate code number was allotted to the petitioner-establishment and the employees working in the Kumher Branch of the petitioner-establishment were also employees of Bharatpur Zila Khadi Gramodyog Samiti and the Provident Fund accumulation of the said establishment were transferred by the Bharatpur Samiti to the petitioner-establishment. It has been further stated in the said reply that the petitioner-establishment did not apply for exemption under Section 17 of the Act till the date of final decision of Respondent No. 2.
14. In the matter of Niranjan Lal and Anr. v. Badri Lal reported in RLR 1989 (2) 635, this Court while dealing with the provisions of the Act held that where the evidence with regard to unity of employment or any evidence with regard to the functional integrality has been placed on the record, unity of ownership does not by itself make the said establishment as one establishment. It was further held that a firm cannot be deprived of infancy benefits of new establishment under Section 16 of the Act.
15. In the matter of the Associated Cement Companies Ltd. v. Their Workmen, reported in (1960-I-LLJ-l) the Apex Court has held that the Act has not prescribed any specific test for determination as to what constitutes one establishment. However; certain tests were laid down by the Apex Court while determining the true relationship between the Parties, Branches, Units etc. and Management and control, regarding functional integrality, and general unity etc., which however, will depend upon the facts and circumstances of each particular case and which obviously means that there is no standard test to be applied universally in each and every case. On the basis of the ratio of the decisions rendered by the different High Courts as well as the Apex Court regardingthe question of financial, managerial and functional integrality, it was contended by the learned counsel for the petitioner that merely common ownership was not sufficient to justify the liability of employer under the Act for payment and dues to its employees.
16. In rebuttal Shri N.K. Jain, learned counsel for the respondents has strongly refuted the contentions advanced by the learned counsel for the petitioner and reiterated the stand taken by the Department by contending that the petitioner-establishment was earlier under Bharatpur Zila Khadi Gramodyog Samiti and with effect from April 1, 1979, it has become an independent unit. Specific reference was made by the learned counsel to para 4 of the writ petition which is reproduced as under:-
"That as per policy of the Government of India, Khadi & Village Industries Commission, they generally register one institution in a particular area and prior to 1979 Bharatpur Zila Khadi Gramodyog Samiti, Bharatpur was carrying on work of Khadi and Village Industries in Bharatpur and various other areas including Kumher as per policies of All India Khadi & Village Industries Commission, Bombay."
17. It was contended by Shri Jain that specific reference has been made in the writ petition to the areas including Kumher in District Bharatpur prior to the year 1979 which obviously means and implies that the petitioner-establishment is not a new establishment but is in continuation of the earlier establishment known as Bharatpur Zila Khadi Gramodyog Samiti. It was further contended that prior to 1978, the petitioner-establishment was already in existence and with effect from April 1, 1979, it has been registered as an independent unit, hence there is only change of nomenclature and nothing more. In this connection reference has also been made to the communication dated December 16, 1983 (Annexure 7), wherein there is a specific reference that the petitioner-establishment was allotted a separate code number with effect from April 1, 1979, to which there has been no challenge on behalf of the petitioner-establishment since neither any representation was moved on behalf of the petitioner nor received by the respondents in this regard and hence obvious inference which should be drawn is to the effect that the petitioner-establishment had succeeded over all the assets and liabilities of the erstwhile establishment and its employees being the same as those of the earlier establishment, the petitioner-establishment could not escape the liability for payment of PF dues as computed vide impugned order dated June 4, 1984 as referred to above. In support of his contention, he has placed reliance on the judgment of the Apex Court delivered by the Constitution Bench in the matter of Laxmi Ratan Engineering v. RPF Commissioner, Punjab and Ors., reported in (1966-I-LLJ-741), wherein the Constitution Bench of the Apex Court while interpreting the provisions of Section 16(1)(b) of the Act, has held as under at pp. 742-743 :
"The words of Section 16(1)(b) of the Employees' Provident Funds Act are quite clear and leave no room for doubt that the period of three years should count from the date on which the establishment was first established and the fact that there has been a change in the ownership makes no difference to the counting of this period of three years, so long as the establishment has continued to work all along. This view is further reinforced by the explanation to Section 16(1) which lays down that "the date of the establishment of an establishment shall not be deemed to have been changed merely by reason of a change of the premises of the establishment."
Thus, even if there is a change in the location of an establishment, that would not affect the date from which the establishment began, provided there was continuity of working. A mere change in the line of business would not make any difference to the date of first establishment where a running factory is taken over."
18. The ratio of the aforesaid decision of the Apex Court clearly lays down that if a new establishment is to take the benefit of exemption, the Applicant/establishment should apply to the Central Government or the State Government as the case may be, within a period of 3 years from the date on which such establishment is or has been set-up but the benefit shall not be extended after the expiry of the said period. This benefit is again subject to the subjective satisfaction of the Central Government having regard to the financial position or other circumstances of the case, as may be necessary or expedient, which may vary from the facts and circumstances of each particular case as contemplated by Sub-section (2) of Section 16 of the Act. Section 17 of the Act is a beneficial provision which deals with the powers of the appropriate Government to provide exemption from the applicability of the provisions of the Act in suitable cases but since the petitioner-establishment did not apply for exemption, under Section 17 of the Act, I am of the considered opinion that the petitioner is not entitled to claim any benefit of such exemption as a new unit so as to escape liability of P.F. dues to its employees under the Act having not availed the benefit of exemption within a period of 3 years as referred to above.
19. In my view, however, no evidence has been tendered on the record by the petitioner for having obtained the benefit of exemption clause, as referred to above, by moving a necessary application to the Central Government in this regard and in the absence of which, it was not incumbent upon the Respondent No. 2 to extend such benefit to the petitioner-establishment. I am further of the view that change of ownership does not by itself absolve the new establishment from the applicability of the provisions of the Act which are statutorily binding on the employer/ management, since merely because there has been any change of ownership of an establishment does not by itself, mean that the provisions of the Act with regard to the liability fastened on the employer for the purposes of compulsory deductions towards provident fund account of employees as envisaged under the Act for the benefit of employees of the establishment should be waived in favour of management of a new establishment.
20. I am fortified in my view by the judgment of the Apex Court, referred to above. The Apex Court held that change of ownership of an establishment does not by itself absolve the new management of its liability on account of P.F. deductions for welfare of its employees.
21. In the matter of R. Ramakrishna Rao v. State of Kerala, reported in (1969-II-LLJ-682) the Apex Court while interpreting the provisions of Section 16 of the Act held as under at pp. 684-685:
"The language of Section 16(1)(b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up', show both cases where the establishment is new and where the establishment is old. The word 'is' shows that a new establishment is meant and the words 'has been' show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words 'is set up' would have been sufficient. The construction sought to be placed would render the words 'has been' otiose.
Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a past participle be used the meaning is the same. Clause (b) of Section 1(3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right. The appeals fail and will be dismissed."
22. In the matter of Bikaner Cold Storage Company, Bikaner v. RPF, Commissioner, Employees' Provident Fund, Raj., reported in (1981-I-LLJ-181), the Full Bench of this Court held as under at pp. 182-183 :
"However, the Central Government has not been made a party to the writ petition nor any order of the Central Government issued or purported to have been issued under Section 19A is subject matter of challenge in the present writ petition. Rather, as pointed out above, it is the case of both the parties that the Central Government did not issue any direction under Section 19-A of the Act in this case, although the petitioner had made a reference to the Central Government in respect of the question in controversy between the parties. Thus, in the present case, we cannot proceed to resolve the conflict of decisions regarding the interpretation of Section 19-A of the Act, on account of the absence of the Central Government, as the same could not be done without affording an opportunity of hearing to the Central Government."
23. With regard to the aspect of the functional integrality no challenge has been made in the writ petition by the petitioner establishment since in the prayer clause the only relief which has been sought is that the impugned order dated June 4, 1984 passed by respondent No. 2 imposing the levy of Rs. 92,950.35 towards P.F. dues for the period April, 1979 to March, 1984 should be quashed and set aside on the basis of the proceedings initiated under Section 7A of the Act and further that the provisions of Section 7A of the Act be also declared as illegal and the same be deleted. This by itself is not a sufficient ground for quashing the impugned order passed by the Respondent No. 2 since it is admitted case of the parties that the petitioner-establishment started functioning as an independent unit with effect from April 1, 1979.
24. From the pleadings of the parties, it is clearly apparent that the petitioner-establishment was a part of the earlier establishment and there has been no change of ownership nor there has been any change in its employees nor any evidence has been tendered on the record on the aspect of functional integrality or ownership of the two institutions. Hence, in the absence of this evidence no finding can be recorded in favour of the petitioner that the enquiry initiated under Section 7A of the Act on the basis of which the petitioner was held liable to pay the P.P. dues is vitiated on any count, on the contrary there is statutory liability on any registered society under the provisions of the Act to pay the P.P. dues to the employees which is a compulsory contribution by the employer in favour of its employees and the very scope and purpose of the enactment would be defeated if the employer is permitted to escape its liability under the Act inasmuch as it is a beneficial legislation for protecting the interest of the employees. From the statement of objects and reasons of the Act 33 of 1988 (Amended Act) it is apparent that the Act provides for the Institution of the benefit of the P.P., Family Pension Fund and Deposit Linked Insurance Fund for the benefit of employees working in factories and other establishments. The very aim and object of the Act is very beneficial and hence 1 am of the view that the provisions of the Act should be liberally construed in favour of the employees.
25. Keeping in view the facts and circumstances of the case, I am, therefore, of the considered opinion that the operation of the statute does not depend upon any decision being taken by the authorities to their advantage to the detriment of employees but its provisions have to be rationally construed and the Court must not place its own interpretation so as to defeat the provisions of the Act which is a social legislation. I am fortified in my view by the judgment of the Apex Court in the matter of The Regional Provident Fund Commissioner, Punjab v. Shibu Metal Works, reported in (1965-I-LLJ-473), wherein the Apex Court held that the beneficial interpretation is required while interpreting the provisions of the Act.
26. In the matter of Arvind Mills Ltd. v. R.M. Gandhi and Ors., reported in 1982 Lab.I.C, 344, a Division Bench of the Gujarat High Court held that the financial stringency or financial hardship of the employer is not a mitigating factor and it was further held that even the fact that the company is running at a loss for some years would not justify committing defaults in respect of the payments due under the P.F. Act and the scheme formulated thereunder. The said observation of the Gujarat High Court is based on the concept of punitive damages which have been recognised by the Supreme Court in the matter of Organo Chemicals Industries' case, reported in (1979-II-LLJ-416) wherein the Apex Court held that the said concept regarding award of punitive damages against an establishment would be defeated if this was to be considered as a legitimate ground for shutting one's eyes to the defaults or taking a lenient view of defaults. Applying the above ratio to the facts of the instant case, it becomes evidently clear that in the case concerning the liability of the employer towards its employees regarding deposit of P.F. dues in the employees' P.P. Account is a statutory liability cast on the employer under the Act and if the employer commits a default in not complying with the statutory provisions, it is not open to the authorities to take a lenient view of such default. The liability of the employer/ management towards its employees is inescapable with regard to the deposit of P.F. dues.
27. I am fortified in my view, in this regard, by the Division Bench judgment of Patna High Court in the matter of Inter-state Transport Agency, Sita Marhi v. R.P.F. Commissioner, Patna, wherein the High Court while dealing with the relevant provisions of the Act, more particularly Section 7A, held that the said provision is not ultra vires of Article 14 of the Constitution and Act is a measure of social security and the subject of legislation is creation of a contributory fund requiring compulsory deduction and deposit. It was further held that once industries and establishments answer conditions of applicability of the Act, the employers of such concerns are liable to contribute to the fund, which contribution constitute the employees' share deducted from their salary at a certain rate and a matching contribution by the employer. The High Court further observed that the operation of the statute does not depend upon any decision being taken by the authorities under the statute. It depends upon its own provision. In usual course it is a routine procedure requiring arithmetic calculation on the part of the employer. It is not comparable to a taxing statute requiring regular assessment.
28. After hearing the learned counsel for the parties and after having examined rival claims and contentions and after having perused the relevant documents tendered on the record, I am of the considered opinion that the petitioner is not entitled to succeed on merits and the writ petition merits dismissal.
29. A perusal of the case file clearly reveals that notices were duly sent by the Provident Fund Commissioner for service on the management of the petitioner and the report of the process-server on the said notice is indicative of the fact that the petitioner-establishment had refused to accept the service of the notices. If the petitioner intended to contest the proceedings initiated under the Act, then it would have certainly participated in the said proceedings before the Provident Fund Commissioner instead of assailing his order in the present writ petition and explained the position to the said authority. As a matter of fact, what the petitioner management should have done before the Provident Fund Commissioner, they have not done so hence it is not open to the petitioner to contend that it was not afforded sufficient opportunity of hearing before passing the impugned order dated June 4, 1984, as referred to above. Without even participating in the proceedings before the Provident Fund Commissioner (Respondent No. 2) the petitioner cannot allege any violation of fundamental rights or principles of natural justice for not having been heard by the said respondent. As a matter of fact the said respondent was not obliged to wait indefinitely for participation of the petitioner in the proceedings before the said authority.
30. Accordingly, I am of the view that the impugned order dated June 4, 1984 (Annexure 6), passed by Respondent No. 2 deserves to be maintained and the petitioner is not entitled to any relief in this regard. It is, therefore, directed that a sum of Rs. 50,000/- which were deposited by the petitioner with Respondent No. 2 pursuant to the interim-order of this Court dated April 25, 1985 need not be deposited again and the petitioner is entitled to claim the benefit of such deduction out of its total liability of Rs. 92,950.35 towards provident fund dues of the employees for the period April, 1979 to March, 1984. With regard to the remaining amount of Rs. 42,950.35, the petitioner is directed to deposit the same with the Regional Provident Fund Commissioner, Jaipur (Respondent No. 2) within a period of four weeks from today and on the said deposit being made, Respondent No. 2 is directed to deposit the same in the P.F. Account of the employees who have been held entitled for the benefit of the same. The amount of Rs. 92,950.35 shall also carry interest @ Rs. 12% per annum from the due date till the date of deposit pursuant to the order dated June 4, 1984 of Respondent No. 2.
31. With regard to the second prayer of the petitioner regarding deletion of the provisions of Section 7A of the Act, 1952, I am of the view that there is nothing wrong with the vires of the said provision and that no order, direction or a writ can be issued by this Court for deletion of the same from enactment.
32. With the above directions this writ petition is disposed of with no order as to costs.