K. Kannan, J.
I. Scope:
Both the writ petitions arise out of the same award. By the impugned award, the Labour Court set aside the order of removal of the workman from service and directed reinstatement without back wages. The management is the petitioner in Civil Writ Petition No. 13802 of 2004, challenging the direction for reinstatement and the workman had challenged the award in Civil Writ Petition No. 720 of 2005 in so far as it had disallowed the back wages to the workman.
II. Factual background
(a) The transfer order
2. The facts giving rise to the dispute are; the workman had been appointed as an Assistant with the M/s Continental Auto Ancillary Limited (a wholly owned subsidiary of Eicher Goodearth Limited). Admittedly M/s Continental Auto Ancillary Limited was amalgamated with M/s Eicher Tractors Limited, by an order passed by the Hon'ble Delhi High Court. The workman was promoted as a Junior Officer on 01.11.1986. The management was ordered to be transferred to M/s Ramon and Demm, Madras, purported to be one of the subsidiary Companies of Eicher group. The transfer was on an occasion of a vacancy being available in M/s Ramon and Demm which matched with his job profile and since due to a general sluggishness in the economy, certain posts at Parwanoo, where the workman was employed, had to be declared as surplus, it was decided to transfer the workman.
(b) The Civil Court interlude
3. The workman did not accept the transfer and he challenged the same before a Civil Court and sought for an interim injunction against the operation of the order of transfer. The interim application was declined by the trial Court on 13.11.1995 and an appeal filed to the Ist Additional District Judge, Chandigarh, was also dismissed on 30.08.1996. A still further revision to the High Court met with the same fate by an order of dismissal on 20.11.1996. Since the workman had not joined the post as ordered, a domestic enquiry was constituted and finding him guilty of misconduct of not reporting for duty and remaining absent, he was terminated from service on 18.03.1997. The civil suit which had challenged the order of transfer was also dismissed on 15.05.1997 as having become infructuous in view of the subsequent termination made.
(c) The industrial dispute
4. The workman raised an industrial dispute complaining of the termination of service and the Labour Court found the order of transfer was illegal and unwarranted to an objection raised by the management that the workman did not conform to the definition as such under the Industrial Disputes Act, the Labour Court held without much discussion that he was a workman. The management assailed the finding of the Labour Court among other grounds contending that the Court had not even adverted to the admissions made regarding the misconduct.
III. The principal contentions
5. The workman appeared in person and argued with remarkable verve and articulated the subject involved in the litigation as following within six topics. The learned Counsel sought to sustain the judgment of the Labour Court on the finding regarding (i) his status as a workman, (ii) The alleged unjustified nature of transfer, (iii) the unjustified enquiry that led to his termination, (iv) the untenability of the termination order being a non-speaking one, (v) the error committed by the Labour Court in denying to him the back wages and (vi) the gross injustice meted out to him by not providing to him comprehensively whatever he was entitled to under Section 17-B of the Industrial Disputes Act. The discussion with reference to the case shall be dealt with in the same manner as the case is presented by the workman.
IV Status as workman
6. On the subject that the claimant was a workman within the definition of Industrial Disputes Act, the controversy could be resolved only with reference to the nature of job which had been assigned to him. In the order of appointment, the claimant's status was described as an Assistant and it did not detail the exact job description. Even the order promoting the claimant as a Junior Officer on 01.11.1986, is not produced before this Court and therefore, the issue could be considered only with reference to evidence tendered by the workman himself. The workman referred to his own affidavit before the Labour Court tendered in lieu of his chief examination to the effect that he was not authorized to sanction leave, appoint or remove, sign a cheque for payment and distribute work to anyone and working on a clerical cadre only as his functions include book writing, preparation of trial balances, vouchers, audit schedule, verification of cash vouchers, bank reconciliation and cashier job, etc. It was also alleged by him that his seniors used to assign him work. This aspect of his evidence had not been controverted at all in the cross-examination. Further, even the management had through one of its officers had filed an affidavit before the Sub Judge, Ist Class, Chandigarh, before whom the civil suit had been pending, to the effect that the model Standing Orders as applicable to the State of Himachal Pradesh were also being followed in Chennai, which by implication, according to the learned Counsel for the workman, would mean that he was only a 'workman'. For otherwise, the provisions of the model Standing Orders would not have been applicable at all. The workman's job description as spoken to by him clearly sets out a fact that he is a 'workman' who will be governed by the provisions of the Industrial Disputes Act and, therefore, I have no difficulty in accepting the contentions of the respondent that he was a workman, although the Labour Court had not examined the issue at length with reference to any documentary or oral evidence tendered by the parties.
V. Tenability of transfer order
(a) Relevant provisions dealing with Management's power of transfer
7. The alleged unjustified transfer was the key issue that gained attention of the parties for elaborate arguments. The learned Senior counsel appearing for the management, Shri Arun Jain referred at first to the appointment letter which had been issued on 25.05.1983 which contained in clause 12 the following words:
You will be posted at location given above in the first instance but your services are liable to be transferred and delegated to any other establishment within India as my be directed by the Management from time to time. You will be required to reside at the place where you are posted and will make your own arrangement for residence at that place. You shall keep us informed of any change in your residential address from time to time.
Even the order of transfer that had been issued on 25.07.1995 which (ultimately culminated by virtue of failure of the workman to report at the transferred place read as follows:
This is to inform you that you are hereby transferred to Ramon and Demm Limited (Division of Eicher Tractors Limited) Prince Arcade, IIrd Floor, 22/4, Cathedral Road, Madras-600086, as Asst. Officer in L-V. You are being relieved from your duties at Eicher Tractors Parwanoo (ETP) at the end of the working hours on 25.7.95.
You are to report to Mr. V.R.V. Prasad, Manager-Mktg. at RDL, Madras within 10 days of your being relieved from ETP i.e. on 05.08.95.
All your wages as being paid at ETP stand protected and any increase as applicable to your grade at RDL will also be applicable to you as per the Company rules. You are entitled to withdraw advance against your TA, DA and transfer expenditure as per applicable to your grade, details of the same can be obtained from Personnel Deptt. ETP. The bills for the same can be submitted at RDL which will make the necessary adjustments.
Admittedly, the workman did not comply with the direction contained in the transfer order and he resorted to a civil suit. The interim directions which were seeking for, were also refused to him. An enquiry had been constituted alleging misconduct against the workman after serving charge-sheets on 26.08.1996 and 28.08.1996. Principally the charges were: (a) non-compliance of the order of transfer issued by the Company amounting to disobedience of the lawful instructions/orders of the management, and (b) absence from duty without leave effective from 06.08.1995.
(b) The workman's admitted state of unwillingness
8. Admittedly, the workman had not actively participated in the proceedings and the reason was that he sought for the proceedings to be conducted before Ambala instead of at Chandigarh due to financial constraint and health problems. The management's representative had agreed to disburse the ordinary bus fare from Ambala to Chandigarh on all the dates of hearings, since the Enquiry Officer expresses his difficulty to conduct the proceedings at Ambala. When his plea was rejected, he requested that he shall be permitted to be assisted an Advocate in the proceedings. This plea was also rejected by the Enquiry Officer. The Enquiry Officer declared that he could be assisted by a co-employee and a decision to that effect was also recorded in the proceedings. The workman did not attend the enquiry but instead of proceeding him ex parte in spite of absence on two consecutive dates, he had fixed the proceedings to take place on 07.12.1996 after informing the workman by registered letter sent on 22.11.1996. Again on the third occasion, the workman had absented himself and finding that there was no valid justification offered through any communication for his absence he set him ex parte and proceeded with the hearing and the examination of witness produced by the management. Since the two sets of charges had originated from the same act and some evidence was also necessary, the Enquiry Officer examined Mr. Kalia, who tendered evidence to the effect that the workman had been advised by the letter dated 25.07.1996 to join the Madras office i.e. M/s Ramon and Demm by 06.08.1996 and he was being posted as an Accounts Officer in level-V and pointed out to the fact that two positions in Finance Systems Department in Parwanoo unit had been declared as surplus, while about the same time a requisition had come for an Account Officer for the Madras office and reminders had also been received from the Madras office. Assuring themselves that the workman had not joined at the Madras office any time during the months of April to October, 1996 and also after ascertaining that there was no order of a Civil Court making any restraint against the management for transferring him, the management contended that the misconduct attributed had been proved. The Enquiry Officer found that there had been no willingness of the workman to join duty and as a person, who was under an obligation to obey the rightful instructions of his superiors, had chosen to remain absent from duty without authorization and held that both the charges namely, disobeying the orders of the superiors and the absence from duty without authorization as having been willfully established.
(c) Effect of flouting a valid order of transfer-Management's perception.
9. The Enquiry Officer's report had been sent to the workman along with letter dated 16.01.1997. The response by the workman was one of justification of his own conduct by urging that the order of transfer was incompetent and finding that the reply to be unsatisfactory, the Company had chosen to dismiss him from service with immediate effect by an order dated 18.03.1997. The learned Counsel appearing for the management, therefore, would contend that having regard to the fact that the power of transfer had been specifically retained by the management and even the initial order of appointment provided that the workman was occupying a transferable job, the failure to report at the transferred place was clearly unjustified and constituted a serious misconduct. The learned Counsel refers to the decision of the Hon'ble Supreme Court in State Bank of India v. Anjan Sanyal and Ors. : J.T. 2001(5) S.C. 203. The case dealt with the provisions of Section 43 of the State Bank of India Act and the relevant rules relating to the power of the employer to transfer and the effect of failure of the workman to join the duty. The Hon'ble Supreme Court has held:
The entire fact situation unerringly point out to one fact namely the respondent flouted the orders of transfer, did not join the place of posting, did not apply for or take leave for his absence, did not discharge his duties, and yet the High Court in exercise of its discretionary jurisdiction, not only set aside the order of transfer on a pretext which does not appeal to us with regard to the non-communication of the orders of transfer and even directed that the respondent would be entitled to his salary, increment, promotion and then only, could be considered for further transfer to anywhere else. To us, it appears that the High Court has granted premium to an errant officer, who did not obey the orders of transfer and did not discharge any duty for which conduct of his, he could have been proceeded with, in a departmental proceeding on the charge of gross misconduct and could have been punished.
The learned Counsel refers to this decision by pointing out that the conduct of a workman in hot joining the place of posting would amount to an officer not willing to discharge his duty and the charge of such gross misconduct leading to dismiss him from service could not be interfered by a Court. The learned Counsel appearing for the management also pointed out that the workman had not alleged anywhere that there was any mala fides attached to the order of transfer. If the post was transferable and the power of transfer could also be seen to reside with the management, there being no challenge on the grounds of transfers legally vitiated, the Labour Court could not have held that the order of transfer was illegal. The learned Counsel, therefore, sought for reversal of the decision as regards the validity of the transfer order and the justification of the management to terminate his services when the workman had brazenly defied the order of transfer.
(d) Justification for workman 's refusal-workman's perception
10. The workman has sought to contend several sub issues on the alleged unjustified nature of transfer. According to him, the person, who is incharge of the Unit where he was working was nowhere connected with the General Manager, M/s Ramon and Demm at Madras. The transfer constituted a change of service conditions and he seeks to draw strength at his arguments by reference to the contentions of the management in their objections filed before the Labour Court when it stated that there were specific General Mangers, who were duly authorized for each business unit and were also authorized to appoint, terminate and take all important decisions. The contention was, therefore, the person, who appointed him, cannot be a person, who can terminate him, if he joined in another business unit of the respondent establishment. Referring to Section 2(ka), the workman sought to contend that the Unit at Chennai was a different industrial establishment and the terms and conditions of employment would be changed if he was to be transferred, which meant another employer and the transfer was not merely what was contemplated in the terms of appointment originally but setting up a new employer in their own place. His contention was that the General Manager of ETL, Parwanoo was not competent to transfer from one division to another division in the absence of rules and regulations of the Company for inter-divisional transfers. According to the petitioner, a mere clause for transfer in order of appointment would not do. The entire salary structure/salary package for both the divisions were different and the rules governing the service of the employees were also different. The workman would contend that he was appointed and confirmed by Parwanoo division of the Company by its General Manager and was getting a salary only from there. He had held a divisional cadre post and was entitled for future growth on the basis of his seniority in the division and as such, the inter-divisional transfer was invalid and illegal, being without his consent. (e) Present dispensation on the issue of transfer.
11. Most of the contentions which were raised by the workman seem to be wrought out of mere apprehensions. A transfer itself cannot be termed to be a condition of service. The change of conditions of service as contemplated in Section 9-A refers to the subjects as found in schedule IV of the Industrial Disputes Act. The schedule does not include transfer as one of the subjects constituting a change of service; The order of transfer specifically states that his salary was protected. It also states that any increase as applicable to his grade at RDL would be applicable to him as per Company rules. There is no definite evidence available to show that the career prospects were in any way sullied by a transfer from Himachal Pradesh to Madras. Even the issue that the General Manager, who had appointed him in Parwanoo, could not retain control over him and that the General Manager at Chennai alone would be the person, who would henceforth be the authority to take action against him for removal, ought not to be an issue that the workman could raise for objecting to transfer. The inter-division transfers, if they have not been provided for at all, it shall be impermissible. But here, in this case, the order of appointment specifically states that the workman shall be liable for transfer to any part of India. I have already pointed out that clause 12 of the appointment letter states specifically that he may be delegated to any other establishment within India as directed by the management from time to time (emphasis supplied). The place of transfer could, therefore, be to any other establishment or Branch and could also be to any place within India. The expression is wide enough to allow for transfer from one division to another. The attempt of the workman was, therefore to show the incidence of the order of transfer as a 'unfair labour practice'. He would point out to Schedule V, Entry 7 that details of acts that shall fall within the category which includes transfer in serial No. 7. The claim statement states that the management was victimizing the workman by the order of transfer. The elaborate contentions raised in para 5 of the statement about the alleged discrimination, the victim of the workman the denial of promotion, the change in pay structure go without any substantiation. The workman did not avail of the opportunity before the Enquiry Officer and the workman could not have hoped to start a fresh finding from the Labour Court, without successfully assailing that the enquiry was not fair or proper. If he had a reason to suspect that the management was looking for a ruse, it ought to have been established by the workman. At least, the management had a reason to give for a transfer. It had specifically explained the circumstances under which the order of transfer had been made. In the counter filed to the claim statement, the management had stated that the Company was multi product, multi business unit having its Units in Faridabad, Alwar, Parwanoo and Madras and having marketing offices across the country. The Company needed to post the employees in all the locations and it was Company's policy to fill the various vacancies first out of the employees available internally among the existing employees declared as surplus. This kind of practice was said to be very common and prevalent in various industries where vacancies available in different locations, would be first filled up through internal resources in order to accommodate the surplus manpower within the Company in other business units. It is pointed out that when the workman had not joined at M/s Ramon and Demm unit, they had got another person namely R. Thayagarajan working in Pithampur (Andhra Pradesh) to go and join at Madras (Chennai as it is now).
12. The management had also placed the records before the Labour Court which were letters and reminders, received from M/s Ramon and Demm on 13.01.1995, 20.02.1995. 18.03.1995, 15.04.1995 and 10.05.1995 requesting the Parwanoo unit to send a suitable candidate for the Accounts Office vacancy in Madras. The justification, which the management had given for transferring the workman to Madras to one of their own manufacturing units, ought to be taken merely as a management's policy which the Court cannot doubt. At least, there were no instances immediately in the past which could be identified as working in the mind of the management to pitch-fork him to Chennai. The workman refers to several decisions of the Hon'ble Supreme Court and decisions of other Courts where Courts have interfered of transfers wherever they found that they amounted to unfair trade practice. He also refers to Himachal Pradesh Industries Standing Orders which includes after Item No. 10 of the schedule of the Industrial Establishment Standing Orders Act, 1946, transfer as falling within the serial No. 10 (a)(iv). The Model Standing Orders concerning transfer refers to the fact that a workman may be transferred according to the exigencies of work from one shop or department to another or from one station to another or from one establishment to another under the same employer; provided that the wages, grade, continuity of service or her conditions of service of the workman shall not adversely be affected by the transfers; provided further that the workman is transferred from one job to another which he is capable of doing; provided further that a reasonable notice is given to such workman and reasonable joining time is allowed in case of transfer from one station to another.
13. It may be noticed that the transfer itself is not barred under the Model Standing Orders. All that is required to be done is that sufficient notice and time shall be given to enable a workman to relocate himself to another place. The workman had been granted 10 days' time to join and when he had not joined, there were seven reminders to him which only showed that they had not closed their options and were extending further time to the workman to join at Chennai. The workman himself had not complained against the transfer as being done without adequate notice or he did not have sufficient time to join at the place where he was directed to report. On the other hand, the objection to transfer is founded on a lack of power of the management to transfer him elsewhere or at any rate beyond his division at Parwanoo. The decision of the Hon'ble Supreme Court in the The Manager Pyarchand Kesarimal Porwal Bidi Factory v. Onkar Laxman Thenge and Ors. : A.I.R. 1970 Supreme Court 823(1), held as under:
A contract of service being incapable of transfer unilaterally a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service and to make a new contract between the employee and the third party. So long as the contract of service is not terminated, a new contract is not made and the employee continues to be in the employment of the employer. When an employer orders him to do a certain work for another person, the employee still continues to be in his employment. The employee has the right to claim his wages from the employer and not from the third party. Such third party-hirer may pay his wages but that is because of his agreement with the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But the hirer third party cannot dismiss him. The right of dismissal vests in the employer.
The judgment only points out that if an employee is lent to another person, it should be effected by a tripartite agreement and the original employer will not lose his control over him, although the salary may be paid by a person to whom the employees services are lent. This judgment only supports a position that in the worst situation of the workman assuming himself to be employed and controlled by the General Manager, Parwanoo, be continued to exercise the power of termination of his services and that cannot be exercised by a person at Chennai. It will be irrelevant to consider a contingency which has never arisen. Here was a case where he had not gone and reported at Chennai nor was he visited with any order of termination by the General Manager at Chennai.
14. The petitioner refers to decision in BCPP Mdzdoor Sangh and Anr. v. N.T.P.C. 2007(6) S.L.R. 678. The decision dealt with the impermissibility of transfer without an employee's consent from one employer to another employer. The Hon'ble Supreme Court was dealing with the case of a person appointed by a Corporation established under a statute who was directed to be transferred to a private Company without the consent of the employee. Such a situation does not arise in this case at all. The conditions of service which are protected by the Constitution under Article 311 of the Constitution are wholly different from workman engaged by private employers. A constitutional guarantee for an individual against a State is not available against a private employer, unless specifically protected by contract. He has relied on Indian Potash Limited v. State of Assam and Ors. : 2009-1 L.L.J. 673, that dealt with the case of a petty employee in Class-IV being transferred in the backdrop of a long battle between the employer and the workman. The Court found it to be an instance of deliberate victimization. The decision in Press Trust of India and Anr. v. Press Trust of India Employee's Union (Western India) and Anr. 2003(3) S.L.R. 614, was to the effect that a person that challenges an order of transfer is not bound to exercise the right only after reporting at the place of transfer. A workman could file a complaint even without reporting to the transferred place. The question whether a workman can object to the transfer without reporting at Chennai, is not the issue here. The issue is whether the workman, who is governed by the terms of employment could resist the mode of the management to transfer him to another division. E. Hill and Co. Ltd. v. State of U.P. and Ors. : 2002-III L.L.J.-524, dealt with the case where the workman had claimed compensation at the place of transfer when the Unit had been closed and later objected to the transfer. The Court found that after receipt of closure compensation from the transferee unit, the workman cannot object to the transfer. This judgment is irrelevant for the purpose of this case. The workman also has referred to certain decisions of the Administrative Tribunals which I have not felt compelled to cite since they do not constitute binding precedents to a High Court exercising jurisdiction under Article 226 of the Constitution. None of the judgments referred has any bearing to support the cause of the workman.
VI. The fairness & propriety of domestic enquiry
15. The workman also contended that the enquiry had not been properly held and it was vitiated totally. This was a case where the workman chose not to report at the place where he was ordered to be transferred and when an enquiry was held, he expressed his difficulty for participating in the enquiry and sought for change of venue. The management had offered to pay the transport expenses to come to the venue of the enquiry but still the Labour Court held by reference to the fact that when the transfer of the workman was not justified, the enquiry conducted, finding misconduct as having been established by non joining at Madras was also vitiated. The reasoning of the Labour Court was a complete non-sequeter. The propriety and validity of the enquiry is to be seen from the context of whether the workman had been granted sufficient opportunity, whether the proceedings applied rules of natural justice and whether a reasoned decision had been given while giving the report of enquiry. None of the aspects were discussed by the Enquiry Officer and it had just observed that since the transfer was bad in its opinion, the enquiry must be treated as vitiated. It was like putting a cart before the horse. An enquiry cannot be vitiated by the fact that a transfer is bad. The petitioner referred to decision in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. : A.I.R. 1983 Supreme Court 109. The decision is an authority for the proposition that if the Presenting Officer of the management is a legally trained person, the refusal to an employee to be represented by a lawyer would amount to denial of reasonable opportunity. There is no such situation obtaining in this case to apply the law. P.L. Mehta v. State of Haryana 1999(4) S.C.T. 235, characterized the conduct of an Enquiry Officer in proceeding to set the workman ex parte after denying to the workman an adjournment and non-payment of subsistence allowance as grounds for declaring the action of the authorities to be totally unfair, illegal, arbitrary and violative of principle of natural justice. None of the characterization would apply to this case where opportunities had been granted and that had not been availed by the workman. A further reference to Baldev Singh v. The Secretary to Government, Punjab Rehabilitation Department and Ors. 1969 S.L.R. 689, was with reference to a case where the validity of constitution of an enquiry in violation of Article 311 for a civil servant was dealt with. In a case involving private employment, the applicability of principles of Article 311 has no role to pay. Jagmel Singh v. State of Punjab and Ors. 2005(1) S.L.R. 491, was cited by the petitioner to show that a punishment directing dismissal from service without reasons was bad in the eye of law. The order of termination, in this case, has proceeded to explain the circumstances and how the workman had not complied with the directions for joining the duty as justification for termination of service. The orders speaks for itself, supported by adequate reasons and it did not require to be buttressed by any external aids to sustain the same.
VII. The approach of Labour Court-inadequate
16. The manner of disposal of the case by the Labour Court itself leaves much to be desired. The Labour Court had dealt with the rival contentions in a mechanical fashion running to 17 paragraphs in about 40 pages. All but the penultimate paragraphs are narration of facts and without a wee bit of reasoning. The Labour Court has stated in paragraph 18 that the contentions of the representative of the management have no force. He assumed that the pay of the workman was less when he joined at Chennai in comparison to Parwanoo when it was specifically stated even in the order of transfer that his salary was protected. The Labour Court held that the Madras office had demanded an Account Officer at Level-5 whereas the workman was not an Accounts Officer or a Commercial Officer, but he was only as an Assistant Officer. The Labour Court failed to note that the workman himself had admitted to the status in the same rank as Assistant Officer in L-5 both at Parwanoo as well as in Chennai. There have been no change in job profile or his designation. The management had actually pointed out that his total salary at Parwanoo was Rs. 5,312/- while his salary at Madras office was meant to be Rs. 5,521/- which registered an increase of Rs. 209/- per month. The management had also explained that the workman had been handling the Account Officer's job which included voucher authorization in a supervisory category and his job profile matched with the requirements of the office at Chennai. It is not, therefore, possible to accept the reasoning of the Labour Court that the workman had been offered some other job to some other designation which ill-suited to him.
VIII. Workman's claim in his writ petition
17. The workman has filed his own writ petition i.e. Civil Writ Petition No. 720 of 2005 seeking back wages which was denied to him.
Since I have proceeded to set aside the order of the Labour Court itself, the consideration of his claim for back wages in the writ petition does not arise. He has also claimed that the subsistence allowance has not been paid to him properly. The contention of the workman was that he was being paid regularly as per his last drawn salary and the workman was not entitled to make any complaint against the same. In the affidavit filed by Shri Vijay Bhatt in C.M. No. 8278 of 2008, he has given details of all payments made right from the year 2004 pointing out to payment of over Rs. 2,03,437/- between April, 2004 to March, 2008. He has also affirmed at the time of arguments that the benefits on the basis of the last drawn pay, were extended till the time when the arguments were advanced. The contentions raised by the workman that all the benefits as secured by law were not given to him during the pendency of the case before this Court, have no substance.
IX. Conclusion
18. The writ petition in Civil Writ Petition No. 13802 of 2004 filed by the management is allowed and Civil Writ Petition No. 720 of 2005 filed by the workman is dismissed. There shall be no directions as to costs.