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CASE NO.: Appeal (civil)  3725 of 2006

PETITIONER: Seema Ghosh

RESPONDENT: Tata Iron & Steel Company

DATE OF JUDGMENT: 28/08/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 15256/2005)

Dr. AR. Lakshmanan, J.

       Leave granted.

The appellant - Seema Ghosh is the wife of late Nani  Gopal Ghosh who joined the services of M/s Tata Iron & Steel  Company Limited, Jamshedpur.  According to the appellant,  the workman was born on 11.08.1929 which was duly  recorded in the Admission Register of Naba Kumar High  English School, Dacca, where he was a student from  23.01.1935 to 19.06.1942.   At the time of joining in the service, the workman  informed the concerned department of the Management that  his date of birth as 11.8.1929, but inadvertently the same was  recorded as 01.11.1923 which he came to know long after.   Subsequently and long after the workman joined the service,  the concerned department of the Management obtained the  signature of the workman on a printed proforma of service  card.  But in the said proforma, no particulars or date of birth  was mentioned.  This was on 14.04.1960.  The workman could  know of such error of record in the service record only when a  new gate pass was issued to workman in the year 1972, for  ingress and egress to and from the work place which for the  first time had the date of birth of the workman concerned  which, according to the appellant, was purportedly made on  the basis of some erroneous entry made by some  assistant/clerk of the Management earlier.   On 25.08.1972, the workman requested the concerned  department of the respondent to correct the record and to  thereby enter his actual date of birth as 11.08.1929 in place of  01.11.1923.  The said workman was thereafter asked by Chief  Personnel Manager of the Management to produce his School  Leaving Certificate vide its letter bearing No. DPR/9801/72 by  the pen of Chief Personnel Manager of the Management dated  30.10.1972.  The workman in compliance of such request  submitted the required certificate on 25.11.1972.  After a long  interval of 8 years of such submission of the School Leaving  Certificate, the Director of Personnel & Industrial Relation of  the Management, by his letter dated 20.11.1980 informed the  workman that the School Leaving Certificate submitted by him  was referred to the District Education Officer, Dacca for  verification, who informed the Management that the certificate  was not genuine and accordingly, the Management expressed  inability to consider the request of the workman for age

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rectification.  Upon fresh request made by the workman, the  Headmaster of the very same school had issued certificate of  the even date confirming that the workman - Nani Gopal  Ghosh was a student of the Naba Kumar High English School,  Dacca from 1935-1942 and that his date of birth as recorded  in the School Admission Register was 11.08.1929.   The workman thereafter submitted a fresh certificate on  25.06.1984 issued by the Headmaster of Naba Kumar High  English School, Dacca confirming the date of birth of workman  as recorded in the admission register of the school as  11.08.1929.  The said certificate was duly attested and  endorsed by the then Ministry of Education and Ministry of  Foreign Affairs of the Government of Bangladesh and also the  High Commissioner of India posted in Bangladesh at relevant  time.  In view of the above circumstances, the workman once  again requested the Management to rectify the error in the  entry with regard to his service record regarding the date of  birth and accordingly requested the Management to enter the  correct date of birth of the workman as 11.08.1929.  The  Management did not respond to the said request of the  workman and did not consider the effect of the fresh certificate  dated 19.02.1984 and September, 1984.  It is the case of the  appellant that the entire procedure followed by the  Management was clearly in violation of the norms/stipulations  in the works standing orders of the Management prepared and  approved according to relevant legislation involved, which  showed that the Management evidently acted according to its  whims and fancies with no relevance to the industrial law.  The workman superannuated on 13.09.1987 on the even  date long before the actual date of superannuation.  The  workman raised an industrial dispute on this issue before the  Government of Bihar which, in turn, made the reference to the  Labour Court, Jamshedpur with the following terms of  reference  "Whether to retire Shri N.G. Ghosh, T.No. 71937  workman of M/s Tata Iron & Steel Company, Ltd.  Jamshedpur from 13.09.1987 is justified.  If not, what  relief he is entitled?"

The Presiding Officer, Labour Court upon appearance of  the parties and after recording the respective statement of the  oral evidence etc. considered the submissions and arguments  of the workman and of the Management passed an award on  13.03.1995 in favour of the workman.  The Labour Court  observed in the award that the contentions of the Management  were not supported by evidence and no evidence was adduced  by the Management which could legitimately substantiate  their case.   The Labour Court passed the Award holding that the  workman is entitled to full back wages including admissible  allowances and other benefits for the period from 13.09.1987  his date of illegal superannuation to 11.08.1990 the actual  date of retirement.  The payment was directed to be paid  within 2 months failing which the amount could be realized  with interest @ 12%. The respondent Management being aggrieved challenged  the Award passed by the Labour Court by moving a writ  petition under Articles 226 and 227 of the Constitution of  India before the Ranchi Bench of the Patna High Court.  After  reorganization of the State of Bihar, the Chhotanagpur  Division of the then State of Bihar became a new State by the  name Jharkhand and accordingly Jharkhand High Court was  constituted and established at Ranchi.  Eventually all matters  pending before the earlier Ranchi Bench of Patna High Court

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automatically stood transferred to Jharkhand High Court.  The learned Single Judge of the High Court has been  pleased to allow the writ petition of the respondent and set  aside the Award passed by the Labour Court vide his  judgment dated 31.10.2002.  The workman concerned expired after protracted illness  on 28.04.2003.  On 04.01.2005, Seema Ghosh, the widow of  the said workman - Nani Gopal Ghosh preferred a Letters  Patent Appeal before the Division Bench of the High Court  which was dismissed vide judgment and order dated  04.01.2005.  Hence, the above civil appeal.  We heard Mr. Deba Prasad Mukherjee ably assisted by  Mrs. Nandini Sen, learned counsel for the appellant and Mr.  Raju Ramachandran, learned senior counsel ably assisted by  Mr. M.K.Dua, learned counsel for the respondent. We had been taken through the pleadings, order passed  by the Labour Court and of the Single Judge and the Division  Bench and the documents and annexures filed along with the  proceedings.   Mr. Mukherjee made elaborate submissions and also  took us through the Award passed by the Labour Court and of  the judgments of the High Court and other documents and  certificates produced by him for the appellant. According to  him, it was the case of the Management before the learned  Court that the age of the workman concerned at the time of  joining the employment was recorded as 24 years which was  allegedly recorded as per assessment of the Medical Officer of  the Management.  Thereafter, the Management, in 1970,  issued an identity card and gate pass was prepared showing  the said date of birth of the workman accordingly.  The  workman disputed such recording of age and such gate pass,  only in 1972.  He proceeded further to submit that a Medical  Board was constituted to assess the age of the workman  concerned and thus his age was assessed as 58 years on  13.09.1984 and that such recommendation of the Age  Rectification Committee was informed to the workman vide  letter dated 28.09.1984 and that according to the  Management, the workman accepted his age as 60 years on  13.09.1986 and enjoyed extension of a year upto 13.09.1987.   The workman, however, contended that he never accepted the  erroneous recording of date of birth but had been contesting  the same ever since 1972 when the error was brought to his  notice for the first time by the Management as aforesaid.  He would further submit that the Labour Court passed  the Award in favour of the workman upon consideration of all  the facts, circumstances and the evidences - oral and  documentary adduced by both parties to the case and that the  Labour Court categorically observed in the Award that the  contentions of the Management were not supported by  evidence.  There was no evidence adduced by the Management  which could legitimately substantiate their case.  Ultimately,  there were categorical findings regarding the following facts: 1.      "But Service Card shows that entry of the age in the  service Card was not attested by the workman at the time  of employment. It goes to show that before 14.04.1960  Service Card was not shown to the workman and entry  was not attested by him which is against the provision of  the works standing order. The workman has stated that  when his signature was obtained in the Service Card on  14.04.1960 entry of his age was not mentioned in the  Service Card." 2.      "The perusal of the documents adducted by management,  particularly Ext. M (Service record) Ext. W (Medical Card  of workman) maintained by Labour Bureau of the  Management Company reflects recording of two distinct

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dates of birth viz. 18.08.1924 and 12.04.1923 in the  Medical Card itself and as per the service record  produced in court, strangely reflected his age as 24 years  as on 1.11.1947 whereas quite incredibly 58 years as on  13.09.1984." The Labour Court also gave observation and finding  regarding the management; such as; examination of the  workman with regard to his date of birth has been  produced. In absence of these evidence the date of birth  of workman recorded by the management in service card  cannot be relied upon and it cannot be accepted to be  true." 3.      The Labour Court was pleased to also observe on the  contention of the management that workman accepted  the correctness of record of his age and could not be  allowed to challenge the same later was not tenable, as  the workman had been challenging the same ever since  the year 1972 when for the first time he came to know  about his wrongly recorded date of birth in new gate  pass. 4.      The certificates issued by the school where he had been a  student and situated in Dacca, Bangladesh revealed (Ext  W/2) that his date of birth was 11.08.1929, which fact he  was consistently stating from the very beginning. The  court observed "Prime facie the certificate appears to be  genuine.  The correctness of this certificate cannot be  challenged unless it is proved otherwise."

On the aforesaid conclusion in favour of the workman,  the Labour Court passed the following Award:  "The workman is entitled to full back wages including  admissible allowances and other benefits for the period  from 13.09.1987 the date of illegal superannuation to  11.08.1990 the actual date of retirement." The payment  was directed to be paid within two months failing which  the amount could be realized with interest @ 12%."

He would further submit the learned Single Judge of the  High Court has virtually reconsidered and reassessed the  evidence of the parties in the case and thereby exercised  jurisdiction in the manner which is highly unwarranted in law  and exceeded its limited writ jurisdiction and cannot,  therefore, be sustained.  It was submitted that the judgment of  the learned Single Judge was clearly one-sided and perverse.   Learned counsel for the appellant further submitted that the  Division Bench also failed to appreciate that in a writ petition  arising from an Award in an industrial dispute matter, the  findings arrived at by the Labour Court on the basis of the  materials and evidence recorded in the case oral and  documentary, the Writ Court cannot set aside the findings of  the Labour Court on the basis of alleged non-consideration or  ignoring of certain materials by the Labour Court as a Court of  appeal.  In other words, learned counsel submitted that the  Division Bench fell in grave error of jurisdiction in re-assessing  and re-valuing the weight of evidence in the case recorded by  the Labour Court, by which it came to a conclusion that the  workman was illegally and prematurely superannuated, in the  service under the respondent.  The respondent failed to  produce any reliable evidence, much less any of the relevant  contemporaneous documents relating to their contention in  defence and in order to rebut the evidence produced by the  workman in support of his case of illegal superannuation.  He  would further submit that the High Court has wrongly relied  upon the one-sided testimony of the Management and arrived  at a wrong conclusion regarding the date of birth of the

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workman by this process, the High Court gave undue credence  to the conclusion of the Management said to be based on the  unconfirmed and unauthenticated report from the authorities  of the school in which the workman happened to be a student;  which allegedly indicated that the report submitted by the  workman was not genuine.  Even though same was without  any other communicated and corroborating material, as to  when the enquiry was made by the employer, how and by  which officer the enquiry was initiated by writing a letter to the  said school authorities and what the terms of enquiry was etc.  It was further submitted that the workman had further  documentary evidence with the Management in counter to  such un-authenticated information and relied upon fresh  certificate in support of his case which were duly  authenticated and certified by the Ministry of Education and  Foreign Affairs of Bangladesh as also endorsed by the office of  the High Commissioner of Government of India in Dacca,  Bangladesh categorically mentioning and referring to the date  of birth of the workman as 11.08.1929 as was entered in the  admission register of the school in the usual course of  business, where the workman studied from 1935 to 1942.  Per contra Mr. Raju Ramachandran, learned senior  counsel submitted that the civil appeal is misconceived and  the impugned order does not deserve to be interfered with by  this Court under Article 136 of the Constitution of India and  that the case in hand is fully covered by an order of this Court  in Bharat Coking Coal Ltd. Vs. Presiding Officer and  Another, 1995 Supp (2) SCC 598 wherein this Court has held  that if the workman did not challenge opinion of the Medical  Board constituted by the Management, for determining the age  of the workman and permitted the workman to work till his  attaining the age of retirement, the workman is estopped from  challenging the correctness of the opinion of the Medical  Board after his retirement.  He would submit that the learned  Single Judge had relied upon the aforesaid order and observed  the Award of the Tribunal cannot be sustained in law.  Mr. Raju Ramachandran also invited our attention to the  events which led to the constitution of the Medical Board for  determining the age of the workman. He submitted that the  Labour Court fell in grave error in discarding the opinion and  findings of the Medical Board merely on the ground that no  medical officer of the Company, who assessed the age of the  workman, was examined nor any report of the Medical Board  had been filed.  He further submitted that the High Court in  its jurisdiction can interfere with the findings of the Labour  Court if the findings are perverse.  The Management also filed I.A. No.3 of 2006 for filing  additional documents on behalf of the Management because  according to them all the documents which were filed before  the Labour Court were not available with the respondent  because the same were not traceable being the old ones and  were filed before the Labour Court in 1991.  Therefore, they  filed additional documents along with I.A.No.3 of 2006 and our  attention was also drawn to those annexures and we have  perused the same.  We have carefully perused the entire  records.  The case of the Management is that the workman was  employed in 1947 and his date of birth was recorded as 24  years based on the assessment of his age by the Company’s  Medical Officer and that the workman confirmed his age by  putting his signature on the service record and that the  workman did not produce any documentary evidence in  support of his age and he, for the first time, disputed his age  in 1972 by producing a transfer certificate issued from the  Headmaster of Nava Kumar High English School, Dacca which

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certificate was referred to the District Education Officer, Dacca  for verification and it was found that the certificate was not  genuine.  The further case of the Management is that the Age  Rectification Committee in its Meeting held on 23.07.1984  decided to refer the case of the respondent No.2 to Special  Medical Board and accordingly the workman was sent to the  Medical Board for assessment of age and the Medical Board  assessed the age of the workman as 58 years on 13.09.1984.   The date of birth of the workman was accordingly rectified and  the same was accepted by the workman.  On the basis of the  date of birth assessed by the medical board the workman was  to superannuate on 30.09.1987. After superannuation the  workman illegally raised dispute with regard to his age and the  same was referred to the Labour Court for adjudication. The  Labour Court after considering the facts of the case and the  evidence adduced before him erroneously came to the  conclusion that the management has failed to prove that the  date of birth of the workman is 13.09.1926 as recorded in the  service card on the basis of which he was superannuated. The  Labour Court further erroneously held that the correct date of  birth of the workman is 11.08.1929 and he was entitled to  continue in service till 11.08.1990. Consequently the Labour  Court by the impugned award directed the management to pay  full back wages together with interest to the workman from  13.09.1987 to 11.08.1990.  It is also seen that in spite of that, the workman was  medically examined as per decision of the age rectification  committee and the date of birth assessed by the Medical Board  was again entered in the service record which was accepted by  the workman which was not accepted or appreciated by the  Labour Court when the workman attained the age of  superannuation he was given one year’s extension and the  same was accepted by the workman without raising any  objection and it is only after the retirement, the wife of the  workman raised an industrial dispute with regard to his age.   The admitted facts that emerge from the above are: a)      the workman was taken in service in 1947; b)      the workman was examined by the Medical Board and  his age was assessed; c)      In 1960 a service card was issued to the appellant by  the Management wherein the age of the workman was  recorded as 24 years and the same was duly accepted  by the workman by putting his signature; d)      Only in 1972, for the first time, the workman produced  a transfer certificate issued from the school and  disputed his age; e)      The said transfer certificate was sent to the District  Education officer who informed the Management that  the transfer certificate was not genuine; f)      It is also not disputed that after the age rectification  committee took a decision the workman was examined  by a specially constituted Medical Board in 1984 and  his age was assessed as 13.09.1926. g) The service record was again corrected and it was  made in 1926.  In this way, the service of the workman was  increased by 2 years.  h) The workman accepted the age assessed by the  Medical Board in 1984 and according to the age so  assessed by the Medical Board workman was  increased by 2 years.  Therefore, according to the assessment of the age made  by the Medical Board, the workman was to superannuate in  1986 instead of 1984.  In 1986, the workman was given one year’s extension in

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service and accepted the said extension without raising any  objection and retired on 13.09.1987.  The Labour Court, in  our opinion, has failed to appreciate the fact that in 1984 the  workman was again medically examined and having been  found fit one year extension of service was given.  The Labour  Court ignoring all the above vital facts decided the issue on  conjectures and surmises and erroneously determined the age  of the workman.  It is also very useful to notice the events which led to the  constitution of the Medical Board for determining the age of  the workman which are as under:  a)      Nani Gopal Ghosh (hereinafter referred to as  "workman") joined the Company on 25.11.1947. As no  documentary evidence in support of his date of birth  was produced by the workman, it was recorded as  1.11.1923 based on the assessment of age of the  workman as 24 years by the Company’s Medical Officer.  A Medical Card was prepared on 29.11.1947 and in  token thereof, the workman put his signatures on it.  

b)      The aforementioned date of birth was also entered into  Service Card prepared on 14.06.1960 and in that Card  too, the age of the workman was recorded as 24yrs as  on 01.11.1947 and in token thereof, the workman again  put his signatures on it.

c)      In 1970, fresh identity cards including that of the  workman were prepared in respect of each workman  and the said identity card also contained the age and  date of birth which was also signed by the workman.

d)      The workman, for the first time on 25.08.1972, disputed  his age by producing a transfer certificate, purported to  have been issued by the Headmaster of Nabakumar  High English School, Dacca. The said certificate was  referred to the District Education Officer, Dacca for  verification of the entry made therein. It appears that  the District Education Officer made inquiry from the  Headmaster of Nabakumar Institution and the  Headmaster of the said Institution vide letter dated  29.10.1980 informed the District Education Officer that  the entries made in the transfer certificate of Nani Gopal  Ghosh are not at all genuine. The company received the  said letter after being endorsed by District Education  Officer. A copy of the letter dated 29.10.1980 is annexed  as R-1. Accordingly, the workman was informed vide  letter dated 20.11.1980 that the certificate produced by  him was not genuine.

e)      The workman again produced another certificate dated  19.02.1984 purpotedly issued by the Headmaster of the  School, inter alia, mentioning the date of birth as  11.08.1929. The then Chief Personnel Manager again  sought confirmation about the genuineness of the  certificate from the District Education Officer, Dacca  but no reply was received by the Management.

f)      The workman would have retired on 31.10.1983 by  counting his superannuation from the date of birth i.e.  01.11,1923, as noted at the time of the employment.  

g)      However, the Company, as a special case in the  aforesaid circumstances, referred the matter to its Age  Rectification Committee. The said Committee met on  23.07.1984 and decided to refer the case of the

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workman to a special Medical Board for assessment of  the age of the workman as a special case.  Accordingly,  workman was sent to the Medical Board for assessment  of his age and the Medical Board assessed the age of the  workman as 58yrs on 13.09.1984 meaning thereby date  of birth as 13.09.1926. The said assessment of the  Rectification committee was also informed to the  workman vide letter dated 28.09.1984.

h)      That the workman accepted the said rectification of his  date of birth as 13.09.1926 for all purposes and no  objection was ever raised.

i)      That, as per the accepted position, the workman was to  attain the age of superannuation i.e. 60yrs on  13.09.1986.

j)      That before superannuation, the workman was sent for  medical examination in which he was found medically  fit for extension of his service for one year as per SO 56  of the certified standing orders and thus his service was  extended for one year more.

k)      That, the acceptance for extension of one year after  expiry of 60yrs, itself indicates that the workman  accepted his date of birth as 13.09.1926, as  recommended by the Age Rectification Committee.

l)      The workman accepted the said date of birth and  acknowledged the same by signing a declaration on his  Personal-cum-Family Verification & Service Card dated  13.03.1987. The said declaration reads as under:- " I certify that my date of birth as recorded in the  Medical Card and the service Card on the basis of  Matriculation Certificate/School Leave Certificate/  Medical Examination held on xxxxxxx is (in figure)  13.09.1926 (in words) Thirteen September Nineteen  Hundred Twenty Six as per report  DPL 5689/84  and the same is correct. I am bound by this and  that the same will not be disputed in the future by  me.                                                          Sd/-                                       Signature/ L.T.I. of the  Party                                              Date: 13.03.1987"

A copy of Personal-cum-Family Verification & Service  Card dated 13.03.1987 of the petitioner is annexed as  Annx.R-2.

m)      That, accordingly, the workman retired from service  w.e.f. 13.09.1987 even after enjoying one year’s  extension."

The Labour Court, in our opinion, fell in grave error in  discarding the opinion and findings of the Medical Board  merely on the ground that no medical officer of the Company  who assessed the age of workman was examined nor any  report of the Medical Board had been filed.  Once the workman  himself has accepted the opinion in the finding of the Medical  Board and continued to work till 13.09.1986 and one year of  extension thereafter there was no necessity for the Company  to examine the Medical officer and/or to produce the report of  the Medical Board.  Moreover, the Medical Board examined the  workman in 1984 and the Medical Officer who examined the

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workman may or may not have been in the service of the  company.  Learned Single Judge of the High Court allowed the writ  petition by the Management keeping in view of the law laid  down by this Court in Bharat Coking Coal Ltd. (supra) case.   The High Court, in our view, was fully justified in setting aside  the Award of the Labour Court as the said Award was perverse  and illegal inasmuch as the judgment of this Court in Bharat  Coking Coal Ltd. (supra) was ignored by the Labour Court.  It is also to be noticed that the Company has not relied  upon the report of the District Education Officer, Dacca,  wherein it was written that the entry is in the transfer  certificate submitted by the petitioner are not at all genuine.  It  is only because of the uncertainty about the date of birth of  the workman, the Company constituted a special Medical  Board in 1984 to determine the age and hence the date of  birth of the workman.  Mr. Mukherjee relied on Jiwan Kishore vs. Delhi  Transport Corporation and Another, 1980 (Supp) SCC 678  which is a short judgment rendered by this Court.  The sole  question raised in that appeal is as to the age of the employee- appellant.  There was a discrepancy, which was rather wide  since the year of birth, according to one record was 1917 and  according to another record 1927.  In view of this considerable  discrepancy, the employer, the Delhi Transport Corporation,  appointed its Medical Board to fix the age of the appellant and  according to the assessment of the age by the Medical Board,  it is seen that he was 51 on June 13, 1975.  This Court has  observed that there was no reason to ignore the scientific  fixation of age when the Court have records which are  flagrantly conflicting.  Therefore, the Court fixed the age of the  appellant in partial allowance of his appeal at 51 on June 13,  1975 which means he will retire at the age of 58 on June 12,  1982.  A reading of the judgment would also go to show that  the Bench was not going into the vires in this case as both  sides agree that if the court fixes the age as per the Medical  Board’s determination, they will accept and abide by it.  On  this footing, the Bench disposed of the appeal in partial  allowance and set aside the order of retirement and further  directed that the appellant be continued in service with all the  consequential benefits as a regular employee until June 12,  1982.  The above judgment is not distinguishable on facts as  well as on law.  We have elaborately dealt with the events  which led to the constitution of the Medical Board for  determining the age of the workman.  The workman did not  challenge the opinion of the Medical Board constituted by the  Management for determining the age of the workman and  permitted the workman to work till his attaining the age of  retirement.  Therefore, the workman in the present case is  estopped from challenging the correctness of the opinion of the  Medical Board after his retirement.  This apart, school leaving  certificate which was produced by the workman was forwarded  to the DEO, Dacca for verification who informed the  Management that the certificate is not genuine.  The workman  was to superannuate in the year 1986 but on the basis of the  assessment of age made by the Apex Medical Board, he was  allowed to continue till 13.09.1987.  At that stage, the  workman did not challenge the decision of the Medical Board.   It is only after enjoying the benefits given to the workman and  after availing the benefits, the workman raised a dispute after  his retirement in pursuance of which the Labour Court has  passed the Award.  The High Court has not given any undue  credence to the evidence of the Management or wrongly relied  upon the one-sided testimony of the Management as alleged

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by the appellant.  We have already noticed that the findings  arrived at by the Labour Court is nothing but perverse against  the facts and passed the award in favour of the workman on  totally mis-placed sympathy.  In our opinion, both the learned  Single Judge and of the Division Bench are right and within  their jurisdiction in re-assessing and re-valuing the weight of  the evidence in the case recorded by the Labour Court by  which the High Court came to the conclusion that the  workman was not entitled to any relief.  When the judgment of  the Labour Court is perverse and against the facts and  records, the High Court is entitled to exercise its jurisdiction  under Article 226 and to interfere with the perverse finding  and set aside the same.  For the foregoing reasons, the appeal filed by the wife of  the workman has no force and merit or substance and,  therefore, is liable to be dismissed and accordingly we do so by  affirming the well-considered judgment of the learned Single  Judge of the High Court and as affirmed by the Division  Bench.  No costs.