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 theprayer 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 theAppellate 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.
4. On behalf of the respondent-company, R. N. Chatterjee, however, contended that all the pros and cons to revive the company were tried from every corner but no possible solution could be arrived at and for that reason both the authorities held that the revival of the company was not viable. Mr. Chatterjee, further submitted that even assuming that the surplus land of the company could be sold even then the question of revival of the company would not arise in view of the huge amount to be repaid. A preliminary objection as to the maintainability of the writ application was also filed on behalf of the respondent-company. According to Mr. Chatterjee in view of Section 25 of the Act, this writ petition should not be entertained as Section 25 is an alternative remedy available to the writ petitioners for the purpose of quashing the opinion formed by the two authorities under the said Act.
5. Learned counsel for the bank as well as the Union of India supported the arguments of Mr. Chatterjee and submitted that in view of the present position of the company, revival of the same was not possible.
6. Mr. Mukherjee, appearing for the Union of India, has drawn my attention to some of the paragraphs of the affidavit-in-opposition used by the Union of India and after taking me through the said paragraphs, he sought to contend that even if surplus land was sold that would not meet the purpose for revival of the company.
7. Learned counsel for the bank also submitted that after considering the scheme and other pros and cons of the matter regarding the question of revival of the company, both the authorities held that revival of the company was not possible and it was not for the writ court to set aside such opinion in the exercise of its extraordinary writ jurisdiction.
8. Having heard learned counsel for the parties and after going through the materials on record, I am. of the view that this writ court cannot in the facts and circumstances of this case interfere with the two concurrent opinions expressed by the Board as well as the Appellate Authority for two reasons, It cannot be forgotten that the power of the writ court is always a discretionary one and when there is a legal right enshrined by any of the parties only then the writ court can entertain a writ application and set aside the findings of the authorities constituted under the Act. The only submission that has been made by Mr. Pal, is whether by sale of surplus land, the company could be revived and it could be run, Before I proceed further I must take note of a letter written by the Government of India to the authorities regarding the scheme for revival of the company which is at page 209 of the writ application. This letter is annexure 'P' to the writ petition. From a perusal of the same it appears that this letter was writtenby the Under Secretary to the Government of India, Department of Heavy Industries to R. K. Verma, Under Secretary (Legal), Appellate Authority for Industrial and Financial Reconstruction, New Delhi. I have carefully perused this letter and from this letter it appears that the Under Secretary to the Government of India, Department of Heavy Industries, was of the opinion that the DRS was examined from their side and after examining the same the Government did not find itself in a position to provide additional resources towards implementation of the draft rehabilitation scheme in view of its projects and parameters but they had no objection to exploration of the possibility of any private entrepreneurs acquiring the company within a period of six months for the purpose of its revival and running. This letter also indicates that in the event of take over, Government will be willing to write off all the dues owed to it by the company and to pay statutory dues payable by the company on the day of take over.
9. Mr. Pal, appearing on behalf of the writ petitioners in support of his contention relied heavily on this letter. According to Mr. Pal, the Government had no objection if any individual or a private entrepreneur takes over the company and runs the same. Mr. Pal has contended that it was, therefore, open to the Appellate Authority to consider whether by sale of surplus land of the company, it would be possible to revive the company and to run the same. This aspect of the matter, according to Mr. Pal, was not at all considered by the Appellate Authority. Mr. Pal, contended that the Appellate Authority had gone wrong in observing that since the Government was not in a position to pay the amount that would be required for such revival, the company must be wound up. I am unable to agree with this contention of Mr, Pal, for two reasons. Firstly, the question whether the company could be revived is a finding of fact which cannot be interfered with by the writ court until and unless it can be shown that such finding of fact was perverse or any prudent man cannot arrive at such a finding of fact on the materials on record. In this connection, reliance can be placed in the case of Mani Nariman Daruwala v. Phiroz N. Bhatena : AIR1991SC1494a . In any view of the matter, the present case does not involve concurrent finding of fact, but only a concurrent opinion expressed by the authorities under the Act in relation to the revival of the company. The second reason is that assuming that the same finding of fact can be interfered with by the writ court as it was not dealt with by the Appellate Authority even then on the materials on record, I am unable to agree with Mr. Pal that by sale of surplus land, the company could be revived and run. In this connection, I may refer to the Draft Revival Scheme (DRS) submitted in the month of May, 1997, by the Appellate Authority for Industrial and Financial Reconstruction, Government of India. Clauses 9 and 10 of the said scheme would be relevant for the said purpose. Clause 9 says that the profitability of projections drawn on theabove cases are given in annexures II, III, IV and V. The company would start earning cash profit from the fifth year that is 2001-02. This is mainly because no interest is being charged on the fresh funds of Rs. 968 lakhs envisaged from the Government of India. The net worth of the company would become positive during 1997-98, itself mainly due to the writing off of dues of Government of India and holding company, conversion of Government of India loan and holding company loan into equity and conversion of BPMEL's loan to its subsidiary into equity of the subsidy.
Clause 10 runs as follows :
'The success of the scheme depends on the company taking effective steps to upgrade the technology by appointing suitable foreign/domestic collaboration, rationalisation and manpower, streamlining the management set up, sale of surplus land, revamping of existing facilities and full support from workers for implementation of the need based DRS. Further the fresh term loan of Rs. 968 lakhs from Government of India will have to be free of interest which is a pre-requisite for generating the projected cash surplus. This amount will further go up for financing the future cash losses as also the increment amount on DRS. BPMEL has also to arrange for a new banker for financing its working capital needs. Since BPMEL is facing problems in procuring orders, the Government of India will have to help BPMEL in procuring orders for initial 2-3 years. The rationalisation of manpower to reduce employment cost will ultimately result in an increase in DRS cost. BPMEL may explore possibility of selling land at higher price to fund the additional project cost and may save capital gain tax by availing of benefits under Section 54A of the Income-tax Act. Possibility of selling entire land free of incumbrance and shifting existing plant of BPMEL to the premises of the other subsidiary of BBUNL may also be explored.'
10. Is it possible to revive the company only by sale of surplus land Even assuming that the Appellate Authority did not at all consider this aspect of the matter even then, from the materials on record it would not be possible for me to hold as would be evident from the aforesaid Clauses 9 and 10, that the company could be revived only by sale of surplus lands. In view of the loan and liabilities of the company as already shown, I am, therefore, of the view that by only sale of surplus land, the company, which is completely a dead company, cannot be revived. If such steps are taken it would not only incur further losses but also that will create further complications in the matter. Even assuming that it is open to the writ court to set aside the concurrent opinion of the authorities under the Act even then in view of the aforesaid findings made hereinabove and considering the fact that the remedy under Article 226 of the Constitution is a discretionary remedy. I do not find that the facts disclosed in the present writ application would warrant this writ court to exercise such discretion in favour of the union/writ petitioners. (See Union of India v. Grqffic Industries Ltd., : AIR1995SC409 .
11. The other aspect of the matter is the provisions of the Act itself. For the purpose the deciding the question referred to above, it would be necessary to refer to some of the provisions of the Act. Chapter 3 of the Act deals with references, enquiries and schemes. Section 15 of the Act says where an industrial company has become a sick industrial company, the board of directors of the company, shall, within 60 days from the date of finalisa-tion of the duly audited accounts of the company for the financial year as at the end of which the company has become a sick industrial company, make a reference to the Board for determination of the measures which shall be adopted with respect to the company. There is no dispute that in terms of Sections 15 and 16 of the Act steps were taken regarding the revival of the company and to determine the viability of the same. Sections 16 and 19 of the said Act deal with the enquiry into the working of sick industrial company and the power of the Board to make suitable order on the completion of enquiry and preparation and sanction of schemes and also rehabilitation by giving financial assistance and arrangement for continuing operation etc., during enquiry. Section 20 clearly provides that where the Board, after making enquiry under Section 16 and after consideration of all the relevant facts and circumstances of the case and after giving an opportunity of being heard to all concerned parties, is of opinion that the sick industrial company is not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and that the company as a result thereof is not likely to become viable in future and that it is just and equitable that the company should be wound up, it may record and forward its opinion to the concerned authority. From a plain reading of this Section 20 of subsection (1) of the Act, it is, therefore, clear that when the Board after making enquiry under Section 16 and after consideration of all the relevant facts and circumstances of the case and after giving an opportunity of being heard to all concerned parties, is of the opinion that (i) the sick industrial company is not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and that (ii) the company as a result thereof is not likely to become viable in future and that (iii) it is just and equitable that the company should be wound up only then it may record and forward its opinion to the High Court for acceptance of such an opinion. In the present case, there is no dispute that after the opinion of the Board, the matter has been referred to this court for its consideration in terms of sub Section (2) of Section 20 of the Act and the matter is now pending before the High Court. There is no dispute that such an opinion is now under consideration by the High Court.
12. Mr. Chatterjee, appearing on behalf of the company, submitted that since the opinion is to be considered by the High Court, this writ courtmay not exercise its discretionary power under Article 226 of the Constitution in entertaining this writ application. In this connection, the power of the Appellate Authority under Section 25 of the Act needs to be dealt with. Section 25 of the Act deals with an appeal from an order or the opinion of the Board to the Appellate Authority. Section 25 says that any person aggrieved by an order of the Board made under this Act, may within 45 days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority provided that the Appellate Authority may entertain any appeal after the said period of 45 days but not after 60 days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
13. Section 26 of the Act clearly bars the jurisdiction of any civil court to entertain any proceeding in connection with the opinion of the Board as well as the Appellate Authority. Let it be, therefore, considered whether pendency of a proceeding under this Sub-section (2) of Section 20 in this court would bar the writ petitioners from moving a writ application against the final order passed by the Appellate Authority. In my view, subsection (2) of Section 20 of the Act amply confers power on the High Court to go into the correctness of the opinion submitted by the BIFR for considering the winding up of the company, and to decide as to whether it should proceed with the winding up of the company or not in accordance with the provisions of the Companies Act, 1956. In this connection, I have meticulously considered each and every word used in Sub-section (2) of Section 20 of the Act. After careful consideration of the provisions made in Sub-section (2) of Section 20 of the Act particularly the use of the words 'may proceed and cause to proceed', it cannot be held that it is obligatory on the High Court to order winding up of the company, once it receives an opinion from the BIFR without examining the correctness of the opinion. In this connection, reliance can be placed on a Division Bench decision of the Madras High Court in V. R. Rama Raju v. Union of India [1997] 89 Comp Cas 600. This judgment of the Division Bench has been affirmed by the Supreme Court (page 609 of 89 Comp Cas) in the following manner :
'We do not find any ground to interfere with the High Court's view which has rejected the challenge to the constitutional validity of Sub-section (2) of Section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985.
It is obvious that Sub-section (2) has to be construed to mean that the High Court in deciding the question of winding up of the company has to take into account the opinion of the Board forwarded to it under Sub-section (1) and is not to abdicate its own function of determining the question of winding up. So read, Sub-section (2) does not suffer from any infirmity. This in substance is the view taken by the High Court in the impugned order.'
14. In view of my findings made hereinabove which are based on the principles laid down by the aforesaid two decisions, I am also of the view that it would be open to the writ petitioner to question the opinion of the authorities before the High Court where the application for winding up is now pending. Accordingly, in view of the existence of an alternative remedy to the writ petitioner for questioning the orders of the authority, I am also not inclined to entertain the writ application on the ground of availability of an efficacious remedy. In view of my conclusions made above, I am of the view that the Appellate Authority, while disposing of the appeal, had not acted illegally and without jurisdiction in the matter of confirming the opinion of the Board by not considering the effect of selling surplus lands of the company in order to revive the same as I am of the view that even if surplus land is sold, the question of revival of the company shall not arise. However, I keep it open for the writ petitioners to agitate such questions before the High Court where the proceedings for winding up under the Companies Act are now pending.
15. For the reasons aforesaid, I do not find any merit in this writ application and accordingly, the writ application is dismissed. There shall be no order as to costs. In view of the order passed on the original writ application the interim order granted shall stand vacated and the application for grant of interim order shall stand disposed of.
16. Let a xerox copy of this judgment duly countersigned by the Assistant Registrar of this court be given to the parties upon their undertaking to apply for and obtain certified copy of the same on the usual undertaking.