Dilip Kumar Seth, J.@mdashThe order dated 23-2-2001 passed by the Board of Industrial Financial Reconstruction in Case No. 501 /2000 of
Eastern Coalfields Ltd. has since been challenged in this writ petition on the ground that the same order has been passed in violation of sub-
paragraph (6) of Regulation 20 of BIFR Regulations, 1987 without giving any hearing to the petitioners as well as the other respondents Union.
Relying on the order dated 30-8-2000, Mr, Subodh Ukil, the learned counsel for the petitioners, contends that Form AA which is the foundation
for the procedure was not furnished to the Union which was directed to be furnished by the said order dated 30-8-2000 pursuant to which the
petitioners had submitted its written statement and representation. Therefore, by reason of sub-paragraph (6) of Regulation 20, it was incumbent
on the Board to give hearing to the petitioners as well as the other Unions. Instead of doing so, the Board had passed an order without giving
opportunity of hearing to the petitioners and the other Unions though in the said order dated 30-8-2000 it was pointed out that there would be a
next hearing. According to him, hearing was contemplated and the expression ''further hearing may be given or may not be given'' becomes
superseded. He further contends that even then the Board has not considered the statement submitted by the petitioners by making representation
in terms of the order dated 30-8-2000. Therefore, the order dated 23-2-2001 should be set aside and the matter may be remitted to the Board
for taking fresh decision after giving opportunity of hearing to the petitioners as well as the other Unions.
2. Mr. Darsan, the learned counsel appearing for the respondent Nos. 8, 9 and 15 supports Mr. Ukil and contends that there has been a violation
of the principle of natural justice inasmuch as no opportunity of hearing was ever given after the order dated 30-8-2000 was passed and before
passing the impugned order dated 23-2-2001 despite such opportunity of hearing being mandatory in terms of sub-paragraph (6) of regulation 20
of BIFR Regulations, 1987. Therefore, the said order dated 23-2-2001 should be set aside.
3. Mr. Debasish Kundu, the learned counsel, appearing for the respondent No. 17 had pointed out that in the order dated 23-2-2001 the Board
has not considered the statement made by or on behalf of the Union or written statement made. The question is a serious one and should not have
been dealt with in the cursory manner as has been made by the said order. Therefore, the order dated 23-2-2001 should be set aside and the
matter may be remanded to the Board for passing fresh order after giving opportunity of hearing to the Unions.
4. Mr. Anindya Mitra, the learned counsel, appearing for the respondent Coal India and Eastern Coalfields India Limited on the other hand
contended that appeal lies u/s 25 of the Sick Industrial Companies (Special Provisions) Act, 1985 (''the Act'') and, therefore, this writ petition is
not maintainable. He further contends that sub-paragraph (6) of Regulation 20 does not postulate giving of hearing as mandatory. It is only that any
of the parties want to be heard, he is to intimate the Board about his intention to be heard and only when such intention is intimated, in that event he
is allowed hearing. Be that as it may, according to him, in the present case hearing was given on 30-8-2000 when the respective parties made their
submissions. He had drawn my attention to the order dated 30-8-2000 to point out that there was nothing to indicate that they were constrained to
make their submissions in the hearing in the absence of Form AA. On the other hand, they have made their submissions on merits of their case
without reference to any constraint. Thus, the hearing having been given, it does not postulate any further hearing. He further contends that even
then such hearing is available to the Union, when the scheme will be considered. According to him, this order will not prejudice the Union in any
manner.
5. In reply, Mr. Ukil contended that there are materials to show that the hearing was not given and that the petitioners could not make proper use
of the evidence in the absence of the documents which were admittedly supplied to the petitioners after the order dated 30-8-2000. He had
pointed out that giving of hearing is not only mandatory but also the absence of it violates the principles of natural justice and as such hearing should
be given and this is a fit case for referring the matter back to the Board for rehearing.
6. Mr. Darsan and Mr. Kundu both support Mr. Ukil in reply.
7. I have heard the learned counsel for the respective parties at length.
8. A preliminary objection was taken by Mr. Mitra to the extent that in view of Section 25 having an adequate alternative remedy, this writ petition
should be dismissed. Admittedly, Section 25 provides for an alternative remedy by way of appeal whether all these questions can be gone into. But
before embarking on the said question we will refer to the merits of the case as contended, namely, whether opportunity of hearing was given and
whether such opportunity of hearing was mandatory and that in the absence of it, this Court is empowered to interfere with the order.
9. It appears that the petitioners had submitted written statement before the Board after the order dated 11-1-2000 was passed prima facie
treating the company as sick company. It is not disputed that the notices for hearing were given before the Board passed order on the basis of the
statement made by the petitioners in its written statement. It appears from the order dated 30-8-2000 that all the Unions were present in the
proceedings who were heard. The details of the statements made by the respective parties were also recorded, particularly that of the petitioners
was recorded in detail in paragraph 4 of the said order which reflects that on merits the Board was addressed. But it does not appear that there
was anything to indicate that the petitioners or any of the Unions were constrained to make their statement in the absence of Form AA though,
however, at one point of time certain statements were made for giving inspection of the accounts. But then each of the unions represented had
made their statements as recorded in the said order which were taken into consideration. Only in paragraph 23 it has been pointed out that the
company had sought for sometime which the Board does not normally allow. But considering that Eastern Coalfields Ltd. being a large public
sector company and the promoters were not present in the hearing, the Board had allowed opportunity to the company. At this juncture it was
noted that various unions had submitted that they were not given copies of Form AA which was directed to be given within seven days. The unions
were asked to submit their representation within fifteen days thereafter. The workers unions were asked to submit specific observation relating to
erosion of networth in terms of the Act and the mandatory accounting policies to the Bench within fifteen days. It is further noted in the said order
that on receipt of the Company''s statement and those of the other involved agencies, the Bench would pass further appropriate order with or
without holding any further hearing while directing the holding company as Government of India to depute their Senior Officer duly authorised for
the next hearing. The representative of the holding company and the representative of Govt. of India were not present on the said day''s hearing.
Now it appears that the petitioners had submitted its representations and comments which is Annexure ''L'' to this writ petition. Supplementary
comments were also submitted by the petitioners which is Annexure ''P'' to this writ petition. But it appears from the said two comments or
representations or written statement that nowhere the petitioners have asked for giving any hearing in terms of sub-paragraph (6) of Regulation 20.
There is nothing before this Court to shew that any of the Unions had asked for giving of hearing after the order dated 30-8-2000 was passed in
terms of sub-paragraph (6) of Regulation 20. Sub-paragraph (6) of Regulation 20 provides as follows :
(6) The informant, the concerned industrial company when it is not the informant, and other interested persons, who have sent their comments or
suggestions to the Board, and expressed the desire that they would like to be heard and whom the Board may determine to hear shall be intimated
about the date of hearing. The persons who have sent their comments or suggestions and intimation that they would like to participate in the hearing
shall file with the Board, not less than 10 days before the date of hearing, a written statement containing the gist of the submissions that they would
like to make at the hearing.
10. It provides that other interested persons who had submitted comments or suggestions to the Board and had expressed their desire that they
would like to be heard and whom the Board may determine to hear shall be intimated about the date of hearing. The persons who have sent their
comments or suggestions and intimation that they would like to participate in the hearing shall file with the Board not less than 10 days before the
date of hearing, a written statement containing the gist of the submissions that they would like to make at the hearing.
11. Thus, sub-paragraph (6) of Regulation 20 does not postulate giving hearing unless it is asked for. It is at the discretion of the Board to give
such hearing or not to give such hearing, even when asked for. In the present case hearing was given and that the petitioners and other Unions had
made their submissions. But whether they would be interested in further hearing or not, it does not appear from any of the documents produced
before this Court that they had asked for further hearing as contemplated in sub-paragraph (6) of Regulation 20.
12. Be that as it may, it is not necessary to go into such question. But on the face of the documents as produced before this Court, prima facie, it
appears that the petitioners had not asked for such hearing as contemplated in sub-paragraph (6) of Regulation 20.
13. However, this finding is tentative since the parties who have not filed affidavits of the petitioners were not given opportunity of detailed hearing.
This tentative finding is for the purpose of finding out as to whether this petition should be maintained or the matter be kept open for decision in the
appeal since Section 25 provides for an appeal. Therefore, I do not think that at this stage this Court should interfere, prima facie, on the ground
that no hearing was given. Admittedly this Court can interfere only when there is violation of the fundamental principle of law or violation of the
principle of natural justice and equity which is the accepted proposition of law as was held in the State of Uttar Pradesh and Others Vs. Indian
Hume Pipe Co. Ltd., as cited by Mr. Ukil. The proposition is well-settled and needs no elaboration. Mr. Ukil also relied on the decision in the
case of Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, which also propounded the same proposition. He had also
restrained himself from multiplying citation on this score.
14. Having regard to the said decision, this Court, if finds that there has been violation of the principle of law or that there has been a flagrant
violation of the principle of natural justice and equity, then this Court can invoke writ jurisdiction despite existence of alternative remedy.
15. As discussed above, for the purpose of finding out tentative or prima facie finding, I find that there has been no violation of the fundamental
principle of law nor there has been any flagrant violation of the principle of natural justice and equity. However, this finding has been gone into
tentatively for the purpose of deciding the writ petition. All points are kept open to be decided by the appellate authority when any appeal is
preferred by any of the parties. This point will remain open to be agitated before the appellate authority and the appellate authority shall decide the
same, if raised, according to its own wisdom and discretion without being influenced by any observation made in this order.
16. Having regard to the facts and circumstances of this case, I am not inclined to invoke writ jurisdiction in the present case in view of the
adequate alternative remedy provided in Section 25.
17. This writ petition is, therefore, dismissed as not maintainable.
18. In case any appeal is preferred and delay is sought to be condoned, the appellants authority shall condone the delay and determine the appeal
on its merit as early as possible, preferably within a period of three months from the date of preferring such appeal after giving opportunity of
hearing to the respective parties in accordance with law without being influenced by any observation made in this order. All points are kept open.
19. Xerox certified copy of this order, if applied for, be given within seven days from the date of making such application.
