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TMI Blog2017 (2) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... d the operation in September, 1992 with installed capacity of 4.00 lakhs TPA. As on the date of filing of the writ petition, there were 98 workers in the said unit. However, as on the date of hearing of the writ petition as submitted by the learned senior counsel for the petitioners, there were about 54 employees consisting of 52 employees, one executive and one supervisor. The CCI was declared as a sick company within the meaning of Section 2(o) of the Sick Industrial Companies Act, 1985 (SICA) (for short the Act) on 8.8.1996. The Industrial Financial Corporation of India (IFCI) was appointed as operating agency under Section 17(3) of the Act for preparation of revival scheme. From time to time various draft schemes were submitted before the Board for Industrial and Financial Reconstruction (BIFR) (for short, the BIFR) for rehabilitating the sick company, the CCI. Finally by order dated 28.07.2000, BIFR approved the rehabilitation scheme under which eight non operating units assets were identified to be sold and to rehabilitate 3 units viz., 1) unit at Bokajan in North East, 2) Rajban in Himachal Pradesh, 3) Thandur in Andhra Pradesh now in Telangana. The order dated 28.07.2000 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BIFR grievously erred in law in failing to implement its own repeated findings and observations regarding viability for revival of Adilabad unit and BIFR irrationally and without application of mind accepted and acted on the revised Draft Rehabilitation Scheme, which deliberately deleted Adilabad unit for revival, at the instance of CCI, the litigant, without even considering the valid Expert Opinion on the same. Even in 2000, Government of India wanted revival of Adilabad Unit and the action of failing to revive the same is devoid of transparency and fairness in action. The present action of 4th respondent in going for a bigger plant in Andhra Pradesh without revival of Adilabad Unit is arbitrary, irrational and is utterly devoid of bona fides apart from illegal and discriminatory. The Appellant Authority has neither applied its mind nor has given any reasons in confirming the BIFR orders and its order is a mere mechanical approval of original authoritys order and hence the same is unsustainable in law. It is the submissions of the learned senior counsel that the expert body reports of Development Consultants Limited (for short, the DCL) in 1997 and IFCI had identified the Adi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expert bodies. Sri M. Surendera Rao, learned senior counsel appearing on behalf of Ms. V. Uma Devi, learned counsel for the 4th respondent- CCI submits that the Adilabad unit had stopped production in the year 1996 and on 27.3.2001 Government of India had decided to sell all units individually or collectively. However, efforts were made from time to time to explore the possibility of rehabilitating some of the units of the company and finally the draft scheme was circulated in terms of the statutory provisions and after taking into consideration of the feasibility of rehabilitating of the company, the BIFR had approved the drafts scheme on 21.03.2006. Learned counsel refutes the allegation that the then Union Minister from North East was involved in rehabilitating originally identified unit in Bokjan unit from closure by drawing the specific attention to para No.1.13 of the scheme that such decision was taken in the year 2003 itself whereas the union elections were held in 2004. He also refutes the allegations that the letter dated 28.9.2004 of the department of heavy industry is not reason for rehabilitating Bokjan unit as set out in para 7.2.3 of the scheme. By drawing attentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately and persuasive argument of the learned senior counsel in detail the sum and substance of the argument of the learned senior counsel boils down to the effect that leaving out Adilabad plant for rehabilitation and notwithstanding the considerable concession which was extended by the State Government and the agreed sacrifices from various quarters is an arbitrary decision and further even there was no consideration of the said aspect by both the BIFR and Appellate Board; that the decision to rehabilitate Bokjan Plant in preference to the Adilabad Plant is only for extraneous considerations and inasmuch as there was no consideration of these aspects by the respective authorities, the matter requires reconsideration and it is a case for remanding the case for reconsideration by the Primary Authority itself. At the outset it may be noted that it is not in dispute that the order of the appellate authority was subject matter of challenge before a Division Bench of Delhi High Court in W.P.(C) Nos.1322 of 2007, 4461 and 8295 of 2007 and the Delhi High Court had dismissed the writ petition by order dated 11.01.2008 and further the challenge to the same was also unsuccessful before the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also be noted that what is required to be considered by the BIFR is the possibility of revival and rehabilitation of the Sick Industrial Company as defined under Section 2(o) of the Act, but not a Unit of the Sick company. In other words, what is required to be considered by the Board is not the individual revival and rehabilitation of individual units but the company as a whole. In those circumstances, the mere extension of certain concessions by the State Government with respect to an individual unit and sacrifices that are made by the workers with respect to their wages etc, though may be relevant cannot be the sole basis to come to a conclusion that a particular sick company must and should revive one of its units. It may also be noted that the Adilabad unit which was started some time in 1982 became a sick unit in the year 1996 and the Government of Indias principal share holder had initially decided to close and sell all the units and thereafter considering the various aspects had come to a conscious decision to resurrect and rehabilitate three units and as one of the means of financing had decided to sell the other units in the absence of valid reasons, cannot be found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertise at its command for doing so. If the Board has taken steps in accordance with commercially advisable and legally sustainable principles after considering the view of the parties likely to be affected and in a manner which may not be said to be irrational or perverse, the Court should not interfere in the process. In Bombay Dyeing and Manufacturing Company Limited Vs. Bombay Environmental Action Group 2006 (3) SCC 434, the Apex Court observed at paras 2, 314, 325 as under: 2. Whether any synthesis between environmental aspects and building regulations vis--vis the scheme floated by the Board of Industrial and Financial Reconstruction ( for short BIFR) in terms of the provision of the Sick Industrial Companies (Special Provisions ) Act, 1985 ( for short SICA herein is possible is the core question involved in these appeals. 314. BIFR exercises its jurisdiction under a statute; the objects where of are distinct and different from a town planning scheme. BIFR is not a town planner. It is not a development authority. It has nothing to do with the town planning or development scheme or maintenance of ecological balance. BIFR was concerned only with the manner in which sick in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Government and Commissioner of Industries Promotion, Industries and Commerce Department, Government of Telangana and requests that the same be taken on record. No arguments as such have been advanced on behalf of the State of Telangana today. However, acceding to the said request, the affidavit is taken on record. In the said affidavit, it has been stated as under: It is submitted that the THEN State Government closed down the Cement Corporation of India Limited, Adilabad District in the year 1996 due to want of working capital. Thereafter, a number of representations were received from the local public as well as the employees of the Cement Corporation of India Limited, Adilabad and keeping in view of the same and after formation of State of Telangana, the Telangana State Government intends to represent the Union of India for the revival of the Cement Corporation of India Limited, Adilabad District. In the aforesaid circumstances, some more time is required to persuade the matter with the Central Government. The above-quoted paragraph merely records that the State of Telangana intends to represent to the Union of India seeking revival of the Cement Corporation of India Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the matter having been dealt with by the Division Bench of the Delhi High Court and respectfully agreeing with the same, this Court finds no merits in the writ petition and accordingly, the writ petition is dismissed making it clear that the respondent-authorities shall implement the scheme formulated with respect to the workers in letter and sprit expeditiously. No order as to costs. It may also be noted that by virtue of the SICA repeal Act, now there is neither BIFR nor separate Forum is existing and all the pending proceedings stand updated and now the aspect covered under earlier SICA are required to be dealt with under the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004) notified on 28th November, 2016 with effect from 01.12.2016 all things stand abated. In terms of the Repeal Act, the matters relating to any scheme under implementation under Sub Section 12 of Section 18 of the Repealed Enactment shall be deemed to be a sanctioned scheme are under implementation under Section 24D of the Companies Act, 1956 and shall be dealt with in accordance with the provisions contained in Part-VIA of the Companies Act, 1956 (1 of 1956). Miscellaneous Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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