Tarun Chatterjee, J. - (1.) In this writ application the writ petitioners who are registered trade unions of Bharat Process and Mechanical Engineers Limited (B. P. M. E. L.) have challenged an order of the Appellate Authority which is at page 210 marked as annexure "Q" to the writ petition. By the said order of the Appellate Authority the prayer of the writ petitioners for revival of the company was rejected, and the order of the Board for Industrial and Financial Reconstruction (BIFR) was confirmed. Before 1 take up the question that was raised on behalf of the writ petitioners, I may state certain facts which are relevant for the purpose of disposal of this writ applications.
(2.) The writ petitioners are the registered trade unions under the Trade Unions Act, 1926. Bharat Process and Mechanical Engineers Ltd. (hereinafter referred to as "the company") is a company which has now become a sick company. References were made under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"), to determine whether the company can be revived and to find out whether such revival can be made by any scheme. The BIFR, after appointing an operating agency and after receiving reports from the authorities rejected the prayer of the unions regarding revival of the said company. The BIFR was of the opinion that in view of the facts and circumstances of this case and the report of the different agencies, the company must be wound up and the question of revival at that stage was not viable.
(3.) Feeling aggrieved by this order, the writ petitioners preferred an appeal under the Act before the Appellate Authority. As noted hereinearlier, the BIFR appointed the Industrial Development Board of India (IDBI) as the operating agency under Section 17(3) of the Act to examine the techno-eco-nomic viability of the company and to prepare a scheme for its revival. The operating agency had to examine various alternatives including the running of the unit through a workers' co operative. The operating agency submitted before the Board that the project was not techno-economically and commercially viable. In view of the fact that there was no proposal for the rehabilitation of the company, the BIFR came to a conclusion that the company must be wound up. Accordingly, the Board directed the operating agency to make an independent techno-economic viability study of the company. The operating agency was also directed to make inventories and valuation of the assets, etc. The Board also directed the operating agency to issue an advertisement for inviting offers for rehabilitation of the company even by change in the management. The operating agency informed the Board that the Department of Heavy Industries, Government of India, had informed that on examination of the consultant's report revival of the company would not be possible. As there was no viable proposal before the Board for consideration, the Board passed the order rejecting the prayer of the union. When the appeal was filed before the Appellate Authority a further opportunity was given to the appellants to submit a revised viable proposal in connection with the company within 12 months to the operating agency after taking into account the implications of the announced general policy of the Government of India, i.e., conversion of loan into equity and waiver of approved interest and if necessary further restructuring capital, keeping in view all the need for maintaining balance between total equity and the turnover of the company. The operating agency was also directed by the Appellate Authority to consider the revised rehabilitation proposal and then to submit a report. On April 9, 1997, the operating agency was directed to submit a draft rehabilitation scheme (DRS) to the Appellate Authority within four weeks with copies to the concerned parties mainly Government of India, State Government, the appellants, the unions and the BPMEL and the bank. The Appellate Authority, was informed by the Department of Heavy Industries. Government of India that the draft rehabilitation scheme was examined and the Government did not find itself in a position to provide additional resources towards implementation of the DRS in view of its projections and parameters. It was also stated and the Government would not have any objection to exploration of any private entrepreneur taking over the management of the company within a period of six weeks for the purpose of its revival. The representatives of the writ petitioners who are the appellants, before the Appellate Authority, however, brought to the notice of the Appellate Authority that by sale of surplus land of the company it would be possible for the authorities to revive the company. Therefore, they alleged before the Appellate Authority that the company was not required to be wound up, on the other hand it can revive after selling the surplus land of the company which would meet the necessary expenses for revival of the company. The Appellate Authority, concurring with the opinion of the BIFR, came to the conclusion that as the Government of India has taken a definite stand that is not possible for them to hold that there exists some feasibility of the revival/rehabilitation of BPMEL, the opinion expressed by the BIFR must be confirmed. It is this order of the Appellate Authority which confirms the order of the BIFR which is now under challenge in this writ application. On behalf of the writ petitioners, Mr. Pal made a simple submission before me. According to him, the order of the Appellate Authority cannot be sustained in law and the matter should be remitted back to the Appellate Authority for rehearing on the ground that the proposal given by the writ petitioners for revival of the company by sale of surplus land was not at all taken into consideration by the Appellate Authority. According to Mr. Pal, if the surplus land is sold there will be every possibility of the company running with the existing management. Since this aspect of the matter was not at all considered by the Appellate Authority, Mr. Pal urged that the said order of the Appellate Authority must be set aside and the matter should be remitted back for rehearing in the light of the arguments made by him.;