JUDGMENT
Pendse, J.
1. These three appeals are directed against judgment dated February 10, 1993 delivered by learned single Judge in Writ Petition No. 2416 of 1991 and Writ Petition No. 3532 of 1991. The two petitions were field before the learned Judge to challenge Award dated April 8, 1991 declared by National Industrial Tribunal at Bombay. As we propose to set aside the order of the learned single Judge and also the Award of the Tribunal and remit the matter back to the Tribunal for fresh decision, it is not necessary to set out the facts in great detail an it would be suffice if only relevant facts are referred to.
2. In year 1926, a company known as ICI (India) Private Limited was incorporated in U. K. Between years 1939 and 1961, three Indian Subsidiaries by name (a) Alkali and Chemicals Corporation of India Limited, (b) Indian Explosives Limited, and (c) Chemicals and Fibres of India Limited were set up in India. In year 11982, all the subsidiary companies were amalgamated with Indian Explosives Limited and in year 1989, the name of Indian Explosives Limited was altered to ICI Limited. The Company deals in diversified subjects like chemicals fertilizers, paints, rubber, fibre etc. The company is one of the large multinational company in India and has several manufacturing facilities at different places in the country. The company has factories at Panki in Uttar Pradesh, Gomia in State of Bihar, Rishra in West Bengal, Hyderabad in Andhra Pradesh, Ennore in Tamil Nadu, Bangalore in Karnataka, and Thane in State of Maharashtra. The company employs about 8,500 employees in its establishment all over India an out of these about 517 are categorised as ‘management staff’ while the rest are workmen within the meaning of Section 2(s) of the Industrial Disputes Act (hereinafter referred to as ‘the Act’), The employees of the company are provided with the benefits of gratuity and contributory provident fund. An industrial dispute between the management of the company and its workmen represented by New Delhi Employees Union was pending before the Industrial Tribunal, Delhi in year 1961. The workmen stationed at Delhi unit were claiming that the age of retirement should be raised from 55 years to 60 years in addition to several other demands. During the pendency of that reference, settlement was reached between the employees and the company and terms of settlement were tendered. The memorandum of settlement, inter alia, provided that the company under takes to implement the pension scheme which it had already submitted to the Tribunal and a copy of which was annexed to the memorandum of settlement. The scheme was to be called ICI (India) Employee’s Pension Benefit Scheme and the scheme was entirely voluntary on the part of the company and did not entail payment of any contribution by any employee. The object of the scheme was to provide the employees with a monthly pension in addition to their existing retirement benefits. The scheme was deemed to have come into force from January 1, 1961 and was applicable to all employees retiring after the said date. The scheme provided for minimum pension and the pension was to be calculated on the basis of the following formula :
"1 x (A x B) - D) When
--------
C
A - number of completed continuous months of service subject to a maximum of 420 months (in the case of those employees whose age of retirement is 55 years) 450 months (in the case of those employees whose age of retirement is 58 year), or 480 months (in case of those employees whose age of retirement is 60 years) respectively.
B. Annual average of salary and dearness allowance of the last 84 months immediately preceding the date of retirement.
C. 840 where the age of retirement is 55 :
900 where the age of retirement is 58 :
960 where the age of retirement is 60 :
D - Annuity value of the combined Provident Fund accumulations and gratuity of the employee at such rates of annuity as may be declared from time to time by the Life Insurance Corporation of India".
It is not in dispute that form January 1, 1961, the workmen of the company as well as the management staff were paid pensionary benefits in addition to gratuity an provident fund though the rate of pension for management staff was determined differently from those of the workmen. The scheme was revised on January 1, 1966; April 1, 1975; October 1, 1977 and, finally, on April 1, 1985. By these periodical revisions, the quantum of pension was increased.
3. The Association of Pensioners and Unions of Workmen were agitation since year 1973 about the discrimination between the classes of pensioners fixed according to their date of retirement and the differential application of rate of pension to different categories. Certain conciliation proceedings commenced before deputy commissioner of Labour, West Bengal, but resulted into failure. Ultimately, the Government of West Bengal moved Government of India to constitute Tribunal for reference of dispute for adjudication. The Central Government, by order dated August 13, 1987, passed in exercise of powers under Section 10(1)(a) of the Act, referred the dispute to National Industrial Tribunal for adjudication. The dispute referred for adjudication is :
“Whether the pension formula governing present pension scheme introduced by the management of the Indian Explosives Limited for its employees in all its establishments in the country needs revision in so far as it does not take into account the cost of living as a factor in its determination and whether the scheme in the way it is being implemented is discriminatory in its application to different categories of pensioners. If so, what is the relief to which the workers are entitled”?
After the reference was made, application dated January 11, 1988 was filed by the Association of Pensioners of the company for impleading the Association as party to the reference. The application was resisted by the company but the Tribunal, by order dated June 10, 1988, overruled the objections and granted the application of the Association for being joined as a party to the reference. The company then raised preliminary objections regarding competency of the reference an jurisdiction of the Tribunal to adjudicate upon the dispute referred. The preliminary objections were also overruled by the Tribunal by a reasoned order dated August 21, 1989. The company had challenged the findings of the Tribunal in respect of joining the Association of Pensioners as a party to the reference and in regard to the preliminary issues raised before this Court and the supreme court respectively. This Court and the supreme Court declined to entertain the petition and made it clear that the grievance of the company can be raised after the Award is passed.
The Federation of the workers field statement of claims before the Tribunal and the demands were –
(a) existing pension scheme should be substantially revised and the pension should be paid at the rate of 50% of the last drawn basic salary an dearness allowance thereon;
(b) there should be no discrimination in payment of pension on the basis of the date of retirement and all revision made in pension should be made applicable to all the pensioners;
(c) all employees who have retired prior to January 1, 1961 should be eligible for pension on the same lines as those who retired subsequently;
(d) all widows/widowers of employees or pensioner who had retired prior to January 1, 1961 should be eligible for pension;
(e) widows/widowers of employees or pensioners should be paid pension at the rate of 50% of the pension payable to the deceased employee;
(f) the period of 20 years service for eligibility of pension should be reduced to 15 years of service;
(g) pension should be rationalised and the discrimination should be removed; and
(h) the revised pension scheme should be effective from January 1, 1982.
The company resisted the reference by, inter alia, claiming that the company is the first in private sector to introduce the pension scheme in addition to grant of benefit of provident fund an gratuity an the Tribunal should not foist additional liability on the company by providing revisions of pension scheme. The company also claimed that the demand of the workmen that the entitlement of pensionary benefit should be linked with the cost of living index cannot be accepted because the workmen cannot claim dearness allowance on the quantum of pension payable. The company also pleaded that the financial condition of the company is not sound and it is not possible to bear the additional burden. The workmen did not lead any evidence before the Tribunal and the company had field two affidavits of Mr. Jejurikar and Mr. Jejurikar was cross-examined on behalf of the workmen.
4. The Tribunal, by Award dated April 8, 1991, held that the pension scheme in force form April 1, 1985 does not substantially take into account the factor of the cost of living in determination of the pension and as such requires to be revised. The Tribunal, thus, declared that pension for workmen who retired on or after January 1, 1961 or will retire hereafter shall be computed according to any of the following three schemes which may be most beneficial to the pensioners/workmen concerned :
Scheme A : For workmen who retire on or after 1.12.1979, 1.5% of the pensionable salary for each completed year of service. Pensionable salary will mean the last drawn basic salary of the workman concerned, subject to the maximum of Rs. 1,500/-
Scheme B : The existing formula linked with deduction of annuity as may be applicable to the workman/pensioner concerned.
New Scheme :
1 x (A x B) – C : D1 – D2, where
— —–
12 (720)
A = Number of completed continuous months of service subject to a maximum of 420 months (in the case of those employees whose age of retirement is 55 years), 450 months (in the case of those employees whose age of retirement is 58 years), or 480 months (in case of those employees whose age of retirement is 60 years) respectively.
B = Salary and dearness allowance during the last 12 months immediately preceding the date of retirement.
C = Annuity value of the combined provident fund accumulations and gratuity of the employee at such rates of annuity as may be declared from time to time by the Life Insurance Corporation of India.
D1 = Dearness allowance payable on the amount of 1 x (AxB) -C 12 720
for the month the pension is to be computed
D2 = Dearness allowance payable on the amount of 1 x (AxB) -C 12 720
according to the rates prevailing on the date of retirement.
The Tribunal held that the minimum pension shall be Rs. 300/- per month for sub. staff and Rs. 350/- per month for the general staff. The Tribunal directed that arrears of pension in compliance with the modifications made under the Award shall be payable from April 1, 1985 onwards.
5. The Award was challenged by the company by filing Writ Petition No. 2416 of 1991 while the workmen preferred Writ Petition No. 3532 of 1991 under Article 226 of the Constitution of India before learned single Judge. The Award was attacked by the company by claiming that the reference was incompetent and the Award was made without jurisdiction; that the Tribunal erred in impleading Association of Pensioners as a party; that the Award was vitiated as it is contrary to the principles of adjudication of industrial disputes and there are patent errors; that the Award yields irrational results and is incapable of compliance. The workmen that the Award does not provide for benefit of pension to the workmen who had retired prior to January 1, 1961, the formula devised by the Tribunal does not give relief to the workmen who had retired prior to April 1, 1979; and that the Tribunal was in error in not accepting that period for eligibility for pension should be 15 years instead of 20 years. These contentions were not accepted by the learned Judge. The workmen also claimed that those employees who had retired between December 1, 1979 and March 31, 1985 were ineligible for the pensionary benefits as the revision was made effective from April 1, 1985 but the Tribunal failed to cure this defect. It was also claimed that in the case of workmen who are eligible to minimum pension there is no mechanism of escalation lined with the cost of living. The workmen also claimed that the Award grants benefits to widows/widowers of the employees who died subsequent to June 1, 1980 but no benefit is granted to the widows/widowers of those who died prior to June 1, 1980. These contentions of the workmen found favour with the learned Single Judge.
The learned Judge, by the impugned judgment, held that the Tribunal was perfectly justified in permitting Association of Pensioners to be joined as a party to the reference. The learned judge further held that the preliminary objections raised by the company about maintainability of the reference and the jurisdiction of the Tribunal to entertain the reference were devoid of any merit. The learned Judge concurred with the finding of the Tribunal that the company enjoys sound financial position and it is necessary to link the pensionary benefit with cost of living index. After recording these findings, the learned Judge observed, in paragraph 85 of the judgment, that the Award, like the proverbial curte’s egg, is partly good and partly bad. The learned Judge noted that there were some grievances made by the company which were legitimate and so also some grievances made on behalf of the employees. After recording this finding, the learned Judge held that it is not necessary to remit the matter back to the Tribunal for reconsideration and declaration of fresh Award and the exercise of correcting the Award cab be undertaken in writ jurisdiction. The learned judge then proceeded to correct the modified scheme prescribed by the Tribunal. The modifications prescribed by the learned judge are as follows :
“1. The pension for workmen who retired on or after 1.1.1961 or who retired after 1.5.1985 or retire hereafter, shall be computed according to any one of the following two schemes, whichever, is more beneficial to the pensioners/workmen concerned.
(a) Scheme A for workmen who retired or after 1.12.197, 1 per cent of pensionable salary for each year of completed service.
Pensionable salary shall mean the last drawn basic salary plus dearness allowance of the concerned workmen subject to the maximum of Rs. 1,500/- per month.
OR
(b) Scheme B Monthly Pension
1 x (AxB) – C
– —–
12 (720)
Plus an additional 40% of the gross amount where :
A. Number of completed continuous months of service subject to a maximum of 420 months (in case of those employees whose age of retirement is 55 years), 450 months (in the case of those employees whose age of retirement is 58 years), or 480 months (in case of those employees whose age of retirement is 60 years) respectively.
B. Salary and dearness allowance during the last 12 months immediately preceding the date of retirement.
C. Annuity value of the combined Provident Fund Accumulations and Gratuity of the employee at such rates of annuity as may be declared from time to time by the Life Insurance Corporation of India.
2. The minimum pension shall be Rs. 300/- per month for Sub-Staff and Rs. 30/- per month for the General Staff, irrespective of the scheme applicable.
3. The pension receivable by the workmen either under Scheme A or Scheme B or the minimum pension shall be lined to All India Consumer Price Index Number for industrial workmen (1961 : 100) 600. For every 10 points rise in the six monthly average of the said Consumer-Price Index Number over 600, the workmen/pensioners shall be entitled to an additional amount of pension at the rate of 5/- per mont. The six monthly average shall be computed for the period January-June and July-December every year and the additional payments shall be accordingly made ion the months of July and January every year.
4. The widows/widowers of workmen would be entitled to an amount of pension calculated at the rate of 50 per cent of the pension (including the dearness component) computed in the foregoing manner. The minimum pension payable to the widows/widowers shall be Rs. 150/- for Sub-Staff and Rs. 175 for General Staff.
5. All other conditions with regard to eligibility of pension such as length of service shall remain unaffected.
6. The arrears of pension payable in accordance with the above formula shall be paid with effect from 1.5.1985. The arrears to be computed and paid within four months from today.
The company has challenged the judgment of the learned Single Judge by Appeal No. 423 of 1993 while the workmen have preferred Appeal No. 628 of 1993 and Appeal No. 629 of 1993.
6. Mr. Habbu, learned counsel appearing on behalf of the company, submitted that the Tribunal was in error in permitting Association of Pensioners to be impleaded as a party to the reference. The Tribunal had passed speaking order dated June 10, 1988 giving reasons why joining of Association of Pensioners to the reference is necessary. The learned counsel urged that the Association had no locus standi in the dispute before the Tribunal as the pensioners had retired from the employment and can no longer be considered as workmen within the meaning of Section 2(s) of the Act. It was contended that the dispute does not relate to the employment or unemployment or the terms of the employment of the pensioners and, consequently, they are not covered by the reference. The Tribunal has held that the pensioners are vitally interested in the dispute which encompasses demand of revision benefit of pensioners, past as well as present. In our judgment, the finding recorded by the Tribunal is absolutely correct. The expression ‘Industrial dispute’, as defined under Section 2(k) of the Act, means” any dispute or difference between employers and employees which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person”. It was urged that Section 2(s) defines ‘workman’ as any person employed in any industry for hire ore reward and a pensioner, who is retired from employment, cannot be treated as ‘any person employed. We are unable to find any merit in the contention. The expression ‘any person’ in Section 2(s) must be interpreted liberally so as to include past and present about revision of pensionary benefit cannot be raised by the existing workmen and which dispute takes in its sweep the benefit which is available even to a retired employee. The objection to impleading Association of Pensioners overlooks that the reference is made not at the behest of the Association but at the behest of the existing employees and in such a reference a demand is made for revision of scheme providing for grant of pension and, therefore, joining of Association of Pensioners to the reference was absolutely in order. The pensioners, who are former employees of the company, were obviously interested in the result of adjudication and, in any event, we are unable to appreciate what prejudice was caused to the company by joining of the Association of Pensioners to the reference.
7. Mr. Habbu them submitted that the reference was incompetent as the reference relates to the claim of pensioners who had retired form employment. The Tribunal very rightly overruled the objection by referring to a decision of the Supreme Court reported in 1958 I LLJ 500 Workmen of Dimakuchi Tea Estate (Assam Chaha Karmachari Sangh) v. Dimakuchi Tea Estate where it was observed that the dispute need not be strictly speaking between workmen and the employers within the meaning of the Act but must be one in which the workmen as a class have a direct or substantial interest. It can not be even debated that the workmen as a class have substantial interest. It can not be even debated that the workman as a class have substantial interest in the revision of pension scheme. Mr. Habbu then submitted that pension is not a matter specified or prescribed under the 3rd Schedule of the Act and is not a matter which can reasonably fall within the scope of the 2nd Schedule and, consequently, the subject matter of the reference, i.e. pension scheme, is beyond the jurisdiction of the Tribunal. The Tribunal, very rightly, held that the preliminary objection raised on behalf of the company is not maintainable. It is undoubtedly true that pension is not specifically mentioned in the 3rd Schedule nor in items 1 to 5 of the 2nd Schedule, but item 6 in the 2nd Schedule is wide enough to cover the industrial dispute relating to the pension. Item 6 of the 2nd Schedule of the Act reads as follows :
“All matters other than those specified in the Third Schedule”
It was claimed that item 6 is limited to matters peripheral to the matters related to items 1 to 5 and will have to be interpreted by applying the doctrine of ejusdem jeneris. It is not possible to accede to the submission because item 6 is a residuary clause which covers all disputes which are not covered by item 1 to 5. The interpretation in industrial jurisprudence should be liberal and the reference cannot be defeated on such unsustainable objections. It must be noted that the National Tribunal has jurisdiction to adjudicate upon any industrial dispute, whether covered by 2nd Schedule or 3rd Schedule. Section 7A of the Act contemplates –
“The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule…”
and these industrial disputes can be referred to the Industrial Tribunal by virtue of Section 10(1)(c) of the Act. There are no limitations to the constitution of National Industrial Tribunal and National Industrial Tribunal cab be constituted for adjudication of industrial disputes which, in the opinion of the Central Government, involve question of a national importance or are of such a nature that industrial establishments situated in more than one state are likely to be interested in or affected by such disputes. In our judgment, the preliminary objection of the company as to maintainability is without any substance and was rightly turned down both by the Tribunal and the learned single Judge.
8. That takes us to the principal contention urged by the learned counsel for the company that the employees are not entitled ton pensionary benefit as condition of service and, in any event, it was not open for the Tribunal to link the pensionary benefit to cost of living index. As regards the contention that pensionary benefit is not a service condition, the submission is only required to be stated to be rejected. The company had introduced pension scheme from January 1961 and though the scheme was referred to in the settlement in dispute pending before the Industrial Tribunal at Delhi, it is not in dispute that the company had decided to float the pension scheme independently of the dispute. The company declared on more than one occasion that the pensionary benefit is condition of service and that fact was reiterated in terms of the settlement between the employees and company. Not only the pensionary benefit was given from January 1961 onwards, but the pension scheme was revised from time to time giving additional benefit to the employees. It is, therefore, too late in the day even to suggest that the company was giving a bounty or a gift to the employees by providing for payment of pensionary benefit. We are unable to find any force in the submission urged on behalf of the company that no other company in the private sector is giving pensionary benefit in addition to provident fund and gratuity and the current thinking even in the public sector is to provide for either gratuity and pension or gratuity and provident fund but not all the three. The company had voluntarily introduced the pension scheme and it is futile to suggest that the company will not be and is not bound to give pensionary benefit because it was not a part of conditions of service.
9. In our judgment, the question as to whether the scheme floated by the company requires reconsiderations demands determination of three facets. The first is whether there is an entitlement to claim revision of the pension scheme as the value of the amount promised was eroding from year 1961 onwards. In case the entitlement is established, then the second question is what would be the additional financial burden for the company and the last question would be whether the company is in such a sound financial position to bear the additional burden. As regards entitlement, it cannot be debated that value of rupee has substantially eroded from 1961 onwards. The company had assured pensionary benefit to the retired employees with effect from January 1, 1961 and it cannot even be suggested that the value of rupee has remained stable from 1961 till 1991 when the Award was passed. The company had promised amount ‘X’ to an employee who retired at the end of January 1961. It is not open for the company to claim that the employee is entitled only to amount ‘X’ irrespective of the erosion of the rupee and increase in the cost of living. The employee is entitled to demand that the company shall pay the equivalent value of amount ‘X’ from time to time. The entitlement of the employee for the revision of the amount of pension, therefore, cannot be seriously disputed. In case the company’s contention that the employee is entitled only to amount ‘X’ which was determined payable at the end if January 1961, is accepted, then the pensionary benefit becomes merely illusory and does not really give benefit of pension to the employee. It is now well settled by catena of decisions of the Supreme Court that pension is neither a bounty nor a gift nor a gratuitous payment depending upon the sweet will to grace of the employer but a right enforceable at law when pensionary benefit is a condition of service. It is also well settled that the pension is payable for the past services rendered and is a social welfare measure rendering socio-economic justice to those who, in the hay days in their life, ceaselessly worked on an assurance that there will be economic security in days of invalidity and they would not be left in the lurch. The contention of Mr. Habbu that the workmen are not entitled to claim revision of pension scheme and must be satisfied with whatever was determined in the year 1961 and revised according to the sweet will of the company from time to time is impossible to accept. The entitlement of the workmen to get the true value of the amount of pension cannot be questioned and it is for the Tribunal to ascertain what is the erosion of the rupee from year 1961 onwards and adjust the quantum of pension payable to the employees from time to time.
10. It was then contended that linking the pensionary benefit with the cost of living index would create serious problems and in paragraph 8(m) of Writ Petition No. 2416 of 1991 filed by the company, illustrations are given to indicate how the scheme prepared by the Tribunal would cause irrational results. In fact, it was submitted that even the learned single Judge did not find favour with the scheme prescribed by the Tribunal. Mr. Habbu is right in his contention that once the learned single Judge, in exercise of writ jurisdiction, found that the Award is partly good and partly bad, then the appropriate course was to remit back the matter to the Tribunal for fresh adjudication. We subscribe to the submission of Mr. Dudhia, learned counsel for the employees, that the Writ Court need not remit the matter back to the Tribunal in each and every case and it is open for the Writ Court to modify the Award, if the modification or the variation is not of a substantial nature. The Writ Court should not hesitate to carry put such minor variations looking to the time spent in the litigation and expenses incurred by the parties but it is not permissible to carry out major modifications to the Award declared by the Tribunal in exercise of writ jurisdiction and the proper course is only to remit back the proceedings to the Tribunal for fresh adjudication and the proper course is only to remit back the proceedings to the Tribunal for fresh adjudication. Mr. Dudhia, with his usual fairness, accepted that the modifications made by the learned single Judge are of substantial nature. Mr. Dudhia urged that the modifications carried out by the learned Judge to the Award, in fact, are detrimental to the interest of the employees. We do not wish to express any opinion on the merits of the scheme suggested by the learned Judge because, in our judgment, it is not permissible to modify the Award without giving a fair opportunity to the company to offer the objections, if any, to such modifications. In our judgment, the proper course for the learned Judge was to remit back the proceedings to the Tribunal for a fresh Award once a finding was reached that the Award was partly good and partly bad and the bad part of the Award, according to the learned Judge, was in respect of the revision of the pension scheme.
Mr. Habbu submitted, and, in our judgment with considerable merit, that the Tribunal, while declaring the Award, held that the financial position of the company is sound but the Tribunal did not examine or ascertain what is the financial burden which will be imposed on the company by revision of the scheme. It was contended that the burden is not one time determination but is a recurring burden and the Tribunal should have ascertained what is the additional burden before determining whether the company is in a position to bear the additional financial burden. It is undoubtedly true that the Tribunal did not examine the question as to what is the additional financial burden on the company because of the revision of the pension scheme and that exercise is required to the undertaking by the Tribunal after determining the revision of the pension scheme. As mentioned above, the pension scheme should be revised so as to give the true value of the pensionary amount assured by the company and the true value can be determined with reference to the erosion of the value of rupee. It is open for the Tribunal to determine which is the best method to compensate as far as possible for the erosion of the value of rupee and we leave that exercise to the Tribunal. The Tribunal will thereafter examine whether the revisions carried out by the company from time to time meet the demand of the employees and, if not, then devise a method and revise the pension scheme accordingly. The Tribunal will then ascertain the additional burden on the company and record finding as to whether the company is in a position to bear such additional burden.
11. Mr. Dudhia submitted that the workmen are not happy with the part of the revised scheme framed by the Tribunal as well as the modifications carried out by the learned single Judge to the revised scheme and the workmen would point out the fallacies in the revised scheme framed by the Tribunal as well as its modifications. We make it clear that all questions as to how the scheme should be revised are left open for fresh adjudication and it is open for both the parties to place before the Tribunal their respective point of views.
12. Mr. Habbu assured that the employees will be paid pensionary benefits in accordance with the existing scheme and as revised from time to time during the pendency of the adjudication before the Tribunal. Both the counsel request that the Tribunal should be directed to dispose of the reference as early as possible by providing a time limit. We have no hesitation in observing that the Tribunal will take into consideration the fact that the dispute is pending for last over several years and will proceed to declare the Award as early as possible. We mark it clear that whatever benefits the employees have received in pursuance of the interim order passed by this Court during the pendency of the appeal will not be required to be paid back.
13. Accordingly, all the three appeals are partly allowed and, while confirming the findings recorded by the Tribunal as well as by the learned single Judge on the preliminary objections raised by the company as well as joining of Association of Pensioners as a party to the reference, the Award as well as the impugned judgment is set aside and the proceedings are remitted back to the Tribunal for fresh adjudication in accordance with the observations made in the judgment.
14. In the circumstances of the case, there will be no order as to costs in all the three appears.