JUDGMENT [ENTITY], J.
1. With the consent of the parties, arguments in all of these writ petitions have been heard together.
2. By these writ petitions, the writ petitioners have challenged the validity and legality of the orders of Industrial Tribunal dated 7th October, 2002, 12.11.2002 and awards passed by Tribunal dated 2.12.2002, 14.11.2002 16.4.2003, 14.5.2003, 15.5.2003 and 1st September, 2003 in [CASE NUMBER]. The petitioners have prayed for issuance of a writ of certiorari quashing the orders and awards whereby the termination of services of the petitioners was held legal and permission under [SECTION] was granted by the Tribunal.
3. All these awards are based on same set of facts involving same questions of law. The first set of award holds inquiry conducted by management as fair and just. By second set of awards, Tribunal dismissed applications under [SECTION] of [ACT] and by third set of awards, Tribunal allowed applications under [SECTION] of the [ACT].
4. Briefly the facts relevant for purposes of deciding these writ petitions are that charge sheets/suspension orders were served upon the writ petitioners to the following effect:
CHARGE SHEET-CUM-SUSPENSION It has been reported against you as under:
On 13th February, 2001 at about 1.50 p.m., Mr. [ENTITY], General Secretary of S.A.E.(Head Office) employees Union, ( dismissed employee of the company) instigated and provoked the employees to gherao Mr. [ENTITY], Head-HR. You along with M/s. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] struck work and joined Mr. [ENTITY] with other employees for the aforesaid cause. The employees were instigated and provoked by saying that "[ENTITY] ke pas in 35 No.building, aaj sale ko dekh lenge, Jo sala bahar nahi ata usko jabardusty kheench kar bahar lao, kab tak sale munh chupa kar baithe rahenge. Jo nahin aiyega usko ham bhi chord denge, kal ko agar uske sath kuch hotha hai to ham uska sath nahin denge. " You along with others entered the building No. 35 created havoc and completely dislocated the office working of Mr. [ENTITY], Head(Human Resources). There were about 40-50 employees who entered in the basement office of Mr. [ENTITY]. Inside the office you along with aforesaid fifteen employees came forward and were the main employees who were involved in creating the violent atmosphere, shouting, using abusive and filthy language and provoked the employees to become violent.
You further threatened Mr. [ENTITY] with dire consequences to his life and service. Similarly other fifteen employees also abused and gave threats to the life of Mr. [ENTITY] by stating as follows:
[ENTITY], kampany ka sara paisa khud kha gaya, Aaj is bahanchod ki bolti band kar do, Tere ko kisne paida kiya hai, tere aukat hi kya hai, tere qualification kya hai, Is chutiya ko kisne HRD Chief bana diya, ise kuch ata jata nahin, Aaj is harami ne hamara neta ko toka hai, kal hamko tokega, aaj tere bolti band kar denge, Abe chandra jyada mat ban nahi to apne kapre phar kar police mae fansa doongi, Ye kutta ghar phone karo to poochta hai ki personal phone kyon kiya, Is Kutte ne hamara peeche jassos chord rakhen hain, Yeh [ENTITY] sala bo ke choda hai, is sale ko maro, ye bahan chod hai, Is sale [ENTITY] ko marao ye aise nahin sudhrega, There was total commotion in the office and from each corner abuses were hurled, threatening statements were made against Mr. [ENTITY]. All offices situated in various buildings were paralyzed as practically every unionized employee unauthorizedly left his place of work and joined in gheraoing Mr. [ENTITY], Gulgar gestures were made against him. Mr. [ENTITY] wanted to pacify but instead of giving any heed to his advice, you along with others continued to abuse and threaten him till about 3.00 p.m. The telephone instrument was not allowed to be used by him to call for his protection and it was snatched away from his hand and thrown away. The table glass was broken while threatening him. There was no way by which Mr. [ENTITY] could have got out of his office for even a natural call and Mr. [ENTITY] remained under constant atmosphere of fear and danger of life.
The situation was so grave and violent that somebody informed the police control room for police protection. However, you along with others continued to shout slogans even in the presence of police officials. The gherao was brought under control and was vacated at about 5.00 p.m on the firm instructions of the police force to vacate the premises.
The gherao, sabotage, aggressive and violent atmosphere prevailed for about three hours which constitutes serious misconduct.
You are hereby directed to submit your written explanation within 48 hours of the receipt of this charge sheet. If your explanation is not received within the aforesaid stipulated period, it would be assumed that you have no explanation to offer and you have accepted the charges and accordingly appropriate disciplinary action would be initiated.
An enquiry would be set up on receipt of your explanation if it is found unsatisfactory.
You would remain under suspension till the Enquiry is completed in view of the serious charges leveled against you.
5. An inquiry was conducted into the charges by the inquiry officer appointed by the respondent and inquiry officer after recording evidence of both sides and considering all the documents filed by both sides, found that the charges against the petitioners stood proved. Inquiry officer gave his report dated 3.11.2001 to the management. The management concurred that the findings of inquiry officer and after considering all the facts and circumstances, issued a show cause notice to the workmen accompanied by the copy of the inquiry report as to why punishment of dismissal from service be not imposed. Punishment of dismissal was imposed on the petitioners and petitioners were dismissed vide order dated 3.12.2001. The union of employees of the respondent company had earlier issued a charter of demand and an industrial dispute regarding the demands was pending before Industrial Tribunal being [CASE NUMBER]. Since the dismissal of the employees was done during the pendency of the above industrial dispute, management filed an application before Tribunal under [SECTION] of the [ACT] seeking permission required under the provisions. Before the Industrial Tribunal, a preliminary objection was raised by the petitioners about validity of the inquiry. Industrial Tribunal vide its orders dated 7.10.02 and 12.11.2002, in respect of different petitioners, held that the inquiry officer had conducted inquiry in accordance with the principles of natural justice and had extensively dealt with the version of the management as well as that of employees. He had given full opportunity of evidence to both parties and had arrived at the findings which a prudent person would arrive at.
6. Industrial Tribunal had considered all the objections raised by the petitioner against the inquiry being not fair. The petitioners had taken the plea that an application dated 4th September, 2001 moved by the workmen before the inquiry officer was not considered and inquiry officer had threatened the workmen that if this type of application will be moved, the inquiry officer will forfeit the rights of the workmen. However, the Tribunal considered the contents of the application and the order-sheet of relevant dates and found that in fact no such application was made and whatever was written in the letter was contrary to record. The grievance in the letter was that inquiry officer had insisted that 16 concerned workmen/ employees should first lead their evidence and this was beyond the purview of an inquiry officer. He could not have issued such an instruction. Issuance of such an instruction was pressure tactics. However, the proceedings revealed that on 11.7.2001, the workmen were called upon to give details of witnesses which workman wanted to examine before the inquiry officer in serial wise. No list was filed by AR of the workmen and he produced only two witnesses. These two witnesses were examined despite objections from the AR of the management. Thereafter about examination of the witnesses of workmen, a consent procedure was recorded in the order sheet as agreed to by two ARs of the workman. The Industrial Tribunal noted that the contentions raised by the petitioner before the Industrial Tribunal were contrary to the record of the inquiry proceedings. As far as bias of the inquiry officer is concerned, the objection of bias was raised only after the inquiry report was submitted. During pendency of inquiry proceedings, no contention of bias was raised by the petitioners. Similarly, once Industrial Tribunal passed an order against the petitioners, the petitioners made applications against the Industrial Tribunal also for transfer of references to some other Tribunal.
7. After the Industrial Tribunal had come to conclusion that the inquiry was not vitiated and it was a fairly conducted inquiry, the Industrial Tribunal proceeded further with complaint filed under [SECTION] of [ACT] by the petitioners. Vide awards dated 2.12.2002, learned Industrial Tribunal held that the complaints had failed to prove that there was violation of [SECTION] of [ACT]. The complaints under [SECTION] of the [ACT] were dismissed.
8. In the complaints, the petitioners had taken the stand that [CASE NUMBER] was pending disposal before the Industrial Tribunal regarding certain demands and during the pendency of this ID, the management had terminated the services of the petitioners vide order dated 3.12.2001 after holding a biased and improper inquiry. It was also submitted that the management had been threatening and pressurizing the petitioners to withdraw the industrial dispute. The inquiry conducted by the management was not in accordance with the principles of natural justice and that the management while terminating the services of the petitioners had not paid all terminal benefits and had also withhold the gratuity and refused to withdraw the dismissal order. The management refuting the allegations of the petitioners took the stand that no violation of [SECTION] of the [ACT] was done and the management acting in accordance with law had moved application under [SECTION] of the [ACT].
9. The Tribunal gave opportunity to petitioners to prove that there was violation of [SECTION] of [ACT], however, the petitioners did not lead any evidence on the question of violation of [SECTION] of [ACT] and the Tribunal observed that the inquiry was conducted was in accordance with the principles of natural justice and there was no violation of [SECTION] of [ACT]. The Tribunal observed that the management had taken the plea that along with the dismissal order, it had sent money order representing one month's salary to each petitioner and there was no denial of this fact by the petitioners. Provisions of [SECTION] were complied with and there was no violation of provisions of [SECTION] of [ACT]. The complaints were dismissed.
10. After dealing with the complaints under [SECTION] of [ACT], Tribunal proceeded to deal with application under [SECTION] of the [ACT] made by the management and passed awards dated 16.4.2003 and 14.5.2003. Tribunal observed that it was not a case of victimization of the workmen and the management has made out a case for grant of approval and approval was granted.
11. It is contended by the petitioners that orders dated 23.11.2002, 7.10.2002 and 12.11.2002 holding that the inquiry was fair and according to the principles of natural justice were perverse. It is also contended that the orders passed by the Tribunal were passed in a mechanical manner and the Tribunal has erred in law by not examining the correctness of the decision of the inquiry officer. The Industrial Tribunal was supposed to reappraise the evidence recorded before the inquiry officer and come to an independent conclusion, as this power is vested in the Tribunal in exercise of power under [SECTION] of [ACT]. It is submitted that the petitioners were unjustifiably dismissed and made victims of unfair labour practice because the petitioners had submitted a charter of demands. The action of the management was mala fide and based on mere assumption. The Tribunal also failed to appreciate that the lady employees and other employees had got clean service records. There was no direct evidence of involvement of the petitioners in the incident. The police report made of the incident nowhere mentions of the incident as alleged. It is submitted that the punishment thrust upon the employees was grossly monstrous and no reasonable or rational management would impose such a punishment. This itself shows the prejudicial and mala fide attitude of the management. It is further submitted that the Tribunal should not have continued with the proceedings once the petitioners had made an application to the appropriate authority for transfer of the proceedings. The Tribunal continued to conduct the proceedings despite petitioners having no faith in the Tribunal.
12. In the counter filed by the respondent, the respondent, apart from raising some preliminary objections about maintainability of the writ petition, has stated that the decision of the Tribunal was in accordance with law. There was no illegality. The Tribunal had considered all legal and factual aspects. The High Court in its extraordinary jurisdiction under [SECTION] of the [ACT] can interfere only if the findings of the Tribunal are perverse/illegal i.e. if Tribunal did not consider the material placed before it. It is stated employees have also raised an industrial dispute about their dismissal and the [CASE NUMBER] was pending between the parties before Labour Court, Karkardooma. In that industrial dispute, the terms of reference was as under:
Whether the dismissal from service of S/Sh. [ENTITY] and 14 Others whose names are mentioned in Annexure-'A' are illegal and/or unjustified and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notification and to what other relief are they entitled and what directions are necessary in this respect?
13. In view of the fact that petitioners have preferred an industrial dispute for same relief as claimed in the writ petition, the writ petition was not maintainable. It is submitted that the petitioners had failed to point out as to how the inquiry was not fair or how there was violation of provisions of [SECTION] of the [ACT] and how the award allowing applications under [SECTION] were bad. There was no contravention of [SECTION] done by the respondent and the findings of the Tribunal have been challenged on the vague grounds.
14. It is not disputed by the petitioners that on 13.2.2001, a demonstration was staged by the petitioners. While petitioners had contended that the demonstration was peaceful, the management's case is that the demonstration was violent and the petitioners had hurled abuses, broken the glass of table and thrown telephone instruments on the ground and did not allow HR Head to leave office till police action. The proceedings of inquiry report are on record and the Tribunal had considered all pleadings and objections raised by the petitioners.
15. Although the Tribunal has gone into the question whether the inquiry was fair or not and has come to conclusion that the inquiry conducted by the inquiry officer regarding the misconduct of the petitioners was fair and the inquiry officer had followed the principles of natural justice, still to find out whether the inquiry conducted was fair or not. I went through the proceedings of inquiry officer. It would be seen that inquiry officer accommodated the petitioners on all dates. The petitioners were allowed to be represented through two representative of their choice and one of them was an advocate. All the witnesses produced by the petitioners were recorded. The procedure followed by the inquiry officer was in accordance with the principles of natural justice and he considered all evidence which had come on record from both sides. He overruled objections of the management on various occasions and allowed the petitioners to proceed with the evidence as they liked. After considering the entire evidence from both sides, inquiry officer came to conclusion that the incident of misconduct did take place and the petitioners were involved in misconduct. The petitioners had given abuses to the Head of HRD Department, gheroed him, broken the glass of table, thrown telephone instruments on the ground and detained Head of HRD Department in the cabin and police had to be called. There is no force in the arguments of the petitioners that, to the police, management had stated that the matter has been settled and nothing has happened.
16. After proving all the charges against the petitioners in inquiry, management issued show cause notice imposing the punishment of termination and the petitioners were heard even at that time. The contention of the petitioners that the punishment awarded to them was monstrous, is untenable. No organization can function in a smooth manner if indiscipline is tolerated. Coming late, going early, taking nap during the working hours, can be corrected by management by giving warning to the employees and watching his conduct in future. But incident of the workman getting violent and giving filthy abuses, damaging the property, are of nature that if the employees indulging in such indiscipline remain in the organization, they work as catalyst of indiscipline and the entire organization suffers from chain reaction of indiscipline. The authority of the management is undermined and the efficiency of organization goes down. I consider that such an indiscipline should not be tolerated by any organization. The punishment awarded by the management cannot be said to be disproportionate to the gravity of misconduct and is not shocking to the conscious of the court. A person who seeks employment and consequently gets employed in the organization, subjects himself to the discipline and some sort of control of his superiors in the organization. Such discipline and control is necessary for achieving the objects of organization/industry for the purpose of which he is employed. By destroying the discipline, he cannot remain the part of organization.
17. In [PRECEDENT] Supreme Court held:
In [PRECEDENT] relying upon a large number of decisions, this Court opined:(SCC p.348, paras 11-12).
11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesday case [PRECEDENT] the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency of decision-making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed," (para 23) In [PRECEDENT] it was held:(SCC p.499, paras 30-32).
30. Furthermore, it it trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four corners thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.
31.If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground.
32. In Regional Manager, Rajasthan SRTC vs. Sohan Lal (2004) 8 SCC [SECTION]8 : 2004 SCC (L&S) 1078 it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that the quantum of punishment imposed upon the respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary.(para 24) In M.P. Electricity Board v. Jagdish [ENTITY] Sharma this Court held: (SCC p.408, para 9)
9. In the case on hand, the employee has been found guilty of hitting and injuring his superior officer at the workplace, obviously in the presence of other employees. This clearly amounted to breach of discipline in the organization. Discipline at the workplace in an organization like the employer herein, is the sine qua non for the efficient working of the organization. When an employee breaches such discipline and the employer terminates his service, it is not open to a Labour Court or an Industrial Tribunal to take the view that the punishment awarded is shockingly disproportionate to the charge proved. We have, already referred to the views of this Court. To quote [ENTITY], discipline is a form of civilly responsible behavior which helps maintain social order and contributes to the preservation, if not advancement, of collective interests of society at large'.
Obviously this idea is more relevant in considering the working of an organization like the employer herein or an industrial undertaking. Obedience to authority in a workplace is not slavery. It is not violative of one's natural rights. It is essential for the prosperity of the organization as well as that of its employees. When in such a situation, a punishment of termination is awarded for hitting and injuring a superior officer supervising the work of the employee, with no extenuating circumstance established, it cannot be said to be not justified. It cannot certainly be termed unduly harsh or disproportionate. The Labour Court and the High Court in this case totally misdirected themselves while exercising their jurisdiction. The Industrial Court made the correct approach and came to the right conclusion.
In [PRECEDENT] this Court held: (SCC p.258, para 9).
9. From the above it is clear that once a domestic tribunal based on evidence comes to a particular conclusion, normally it is not open to the Appellate Tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passenger to reject the said finding which in our opinion, as held by this Court in the case of [ENTITY] State of Harayana v. [ENTITY] is not a condition precedent. We may herein note that the judgment of this Court in [ENTITY] has since been followed by this Court in [PRECEDENT].
It was further held:(SCC p. 259, para 12)
12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal. (para 27) This Court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at th workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline; with impunity. Our country is governed by rule law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of [SECTION] of the [ACT], as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employees unless an appropriate case is made out therefore. The Tribunal being interior to this Court was bound to follow the decisions of this Court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same. (para 30)
18. In [PRECEDENT], Supreme Court upheld the order of High Court dismissing the writ petition of the petitioner wherein the petitioner, a safety officer, had committed misconduct of abusing his inquiry officer and was dismissed from service.
19. In [PRECEDENT], Supreme Court held:
In [PRECEDENT] it was observed:(SCC p.762, para 18).
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."(para 12) In [PRECEDENT] this Court summed up the position relating to proportionality in paras 31 and 32, which read as follows:(SCC pp.478-80)
31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the [ENTITY] test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternative open to him. Nor could the court substitute its decision to that of the administrator. This is the [ENTITY] test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the [PRECEDENT] principles.
(3)(a) As per [PRECEDENT] and [PRECEDENT], ex p Smith (1996) 1 All ER 257 : 1996 QB 517 : (1996) 2 WLR 305(CA) as long as the convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done:
3(b) If the convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a)The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on [ENTITY] and CCSU principles as stated by Lord [ENTITY] and Lord [ENTITY] respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
4(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under [SECTION], [SECTION] etc. are involved and not for [SECTION].
32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of 'proportionality'. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to 'irrationality', there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in 'outrageous' defiance of logic. Neither [ENTITY] nor CCSU tests are satisfied. We have still to explain '[PRECEDENT] The common thread running through in all decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in [ENTITY] case [PRECEDENT] the court would not go into the correctness of the choice made by the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
20. I consider that the indiscipline of the employees which stood proved during the inquiry was such that no other penalty would have been appreciate. Employment is not given to workmen to hear filthy and choicest abuses from them by the management and to have furniture broken at their hands. The Tribunal rightly allowed applications under [SECTION] of the [ACT].
[SECTION]. In view of my above discussion, the writ petitions are hereby dismissed being without merits. No orders as to cost.