Petition No 22428 Of 1988
IN SPEClAL LEAVE PETITION CIVIL NO 15228 OF 1983
From the Judgment and Order dated 1781983 of the Bombay High Court in Arbitration Petn
No 6 of 1983
FOR DIRECTIONS WlTH CMP Nos
2242988  3805f87
And in the matter of the scheme for revival sanctioned by the BIFR by its decision dated 6th September 1988 in pursuance of the directions of this Court
RF Nariman DH Nanavati Raian Karanjawala Mrs Manik Karanjawala and Hardeep section Anand for the Petitioners
Dr YS Chitale section Ganesh IR Joshi Arun Sinha P Parmeshwaran AK Sinha Mrs Vijayalakshmi Menon BR Agarwala Ms Sushma Manchanda Ms Urmila Kapoor BV Desai AK Verma DN Misra Shri Narain Atul Sharma Vineet Kumar AS Bhasme PH Parekh MK section Menon KC Dua HS Parihar KJ John AK Sinha Girish Chandra AK Sil G Joshi Ms Nina Gupta Vineet Kumar SK Dogra Harish N Salve Ms Nina Kapur and Manoj Swarup for the Respondents
NB Shetye Gopal Subramaniam and Mukul Mudgal for the Intervener
The Order of the Court was delivered by THAKKAR J More than a thousand brimming eyes are waiting to replace the tears of despair by tears of relief
No less than 600 wronged _ workers of a once prosperous industrial unit  induced or reduced to sickness  are on their toes to resort to self help to restore 1
Kamani Tubes limited KTL PG NO 126 the lost source of their butterless bread
Their pens are quivering to write a new chapter in the sage of workers  struggle for finding their true indentity  and dignity 
Their dream is coming true with the enlightened and refreshing approach of the Central and State Governments and the concerned Nationalized Banks coupled with prompt efficient and swift decision making on the part of the BIFR3 and the IDBI
And with the consensus of all the parties which is the most heartening feature who have risen above narrow individual interests by not opposing the workers  scheme in order to promote the larger National interest of reviving the industry augmenting the National product and providing employment to hundreds of starving workers three of whom became martyrs to the cause by committing suicide
Internal discord gave rise to disputes and litigations between different branches of a family headed by a pioneering and successful industrialist in the wake of his demise which culminated in SLP No 15228 of 1983 wherein all the concerned members of the family were impleaded
When the said matter came up before this Court it was 1 impressed upon the parties that the internecine conflict between the warring factions deserved to be speedily resolved not only in their own interest and for saving the name and honour of the founder but also to ensure that neither the industrial units nor the workers employed in the industries which were controlled by one or the other branch of the industrial family were ruined
A retired Judge of the Supreme Court  was accordingly prevailed upon to accept the assignment of resolving the innumerable problems in the larger interest of the warring factions as also in order to protect the interests of the community and the workers in August 1984
The learned Mediator has invested considerable time effort and accumen in order to resolve the problems presented in the course of the proceedings and has successfully disentangled the economic mess to a considerable extent
This is evident from the fact that after the learned Mediator came on the scene Income Tax and Capital Gains Tax dues to the tune of over Rs48 lakhs and over Rs35 lakhs respectively have been paid
Bank of India Canara Bank and Dena Bank
Board for Industrial and Financial Reconstruction constituted under the of 1985 Act
Industrial Development Bank of India
Shri Ramjibhai Kamani
justice AC Gupta
PG NO 127 In the course of the proceedings it came to light that 1 KTL has stopped production and ceased working in August 1985
2 KTL has not resorted to closure of the unit or to retrenchment of the workers in accordance with the relevant provisions of law
3 While in the eye of law and in theory the workers continue on the rolls of KTL and in employment of KTL the workers have not been paid wages for over 8 months since December 1984 till stoppage of work in August 1985 and ever since till now
The arrears till August 1988 work out in the region of Rs6 12 crores
4 The wages due to the workers amounting to approximately Rs25 crores have remained unpaid since December 1984
5 Employees  contribution to Provident Fund actually deducted from the wages of the workers to the tune of approximately 312 lakhs had been wrongfully retained by the management and criminal prosecutions are pending in the Criminal Courts
6 The starving workers who have not been paid their wages since December 1984 have been squatting on the factory premises which have been abandoned by the Management
The workers have remained on the premises in order to keep day and night vigil for all these years since August 1985 in order to protect the plant which had provided them work and enabled them to earn their bread with the sweat of their brow
7 Three of the starving workers have committed suicide on account of their inability to survive the burden of misfortune heaped on them
The plight of the workers notwithstanding they exhibited exemplary conduct in their part and the Kamani Employees Union KEU extended its hand of cooperation to the Kanani family group as has been noticed by the learned Mediator in his minutes dated July 2 1986
PG NO 128 The bona fides of the applicant workers would be clear from the fact that in spite of the fact that no wages have been paid to them for the last 14 months yet in order to demonstrate their spirit of cooperation the workers through their union had offered in writing to cooperate with the management and accept deferred payment of unpaid wages
The applicants repeat and reiterate that offer
The workmen always were and still are ready and willing to accept the arears of unpaid wages with increase of production and creation of surplus
I shall be happy if the authorities who have to take a decision in this matter could find their way to accepting the request of the workers who have not received wages for about 16 months now
As regards the two proposals given by the workers neither of them was found acceptable by any of the Kamani family groups present they thought that the proposals were not feasible A proposal was then mooted to sell 90 of the shares of KTL
Meanwhile the workers sought leave to frame a scheme of their own for revival the sick  unit
What exactly transpired 2 12 years back has E been recorded in the Mediator s minutes dated July 2 1986 At the end of the discussions it was decided that the different groups of the family or any of them would try to find a buyer willing to buy the 90 shares held by the family in Kamani Tubes Limited as it is at present
The buyer will have to sit with the workers of the company to come to an agreement with them with regard to the payment of their dues
If the prospective buyer wishes to inspect the factories no objection would be raised either by the workers or the present management of the company
Parties will report to me within six weeks any progress made in this matter
On behalf of the workers it was submitted that as the search for a buyer was likely to take time they may be permitted in the meantime to try and frame a scheme of their own for restarting the factories after discussing the matter with the Bank and other authorities
They are free to do so
 PG NO 129 And after an exasperating waiting period of nearly one year thereafter the workers instituted CMP No 3805 of 1987 on July 2 1987 inter alia seeking the Following prayers a All appropriate orders and directions for the sale of the shares of KTL to KEU on behalf of and representing the proposed society at such price and on such valuation as this Hon ble Court in its absolute discretion deems proper and subject to such terms and conditions as may be stipulated
b appropriate orders and directions to the said Board respondent No 59 to take expeditious remedial and other measure for the revival of the factories of the KT including directions to the said Board to consider the scheme of the applicants for the revival and rehabilitation of KT in terms of Exhibits 10 and 12 hereto
c all appropriate orders and directions for the implementation and consideration of the scheme for the revival of the factory of KT as per exhibit 10 and 12 hereto including directions for management of KT amendment of Articles of KT and all matters connected therewith with such modifications as may be deemed necessary
 By an order of this Court
dated October 13 1987 in CMP 380587 this Court directed the BIFR to file a feasibility report with respect to the scheme presented by the workers for the revival of KTL 
This Court also directed the BIFR to hear the workers as well as the different groups of Kamani family before making its recommendations
As per this direction the Board held a number of hearings which were attended inter alia by representatives of KEU 
Financial Institutions Banks State Government Central Government and different groups of the Kamani family IDBI an apex institution in the field of term lending and one of the operating agencies of BIFR was entrusted with the examination of KEU s scheme particularly with regard to technical health of the plant and time required to run it various assumptions made in respect of the parameters of costsprices estimates of production pattern vis a vis projection of future demand correctness of cost of production working capital requirement projected operating cash surplus etc
IDBI submitted its report which was discussed in the subsequent hearings and the views of the concerned agencies such as Banks State Government Central Governmentand the commitments regarding reliefs and PG NO 130 concessions that would be available from these agencies were obtained
On being so required IDBI subsequently revised its projections and viability estimates
Based on the above BIFR prepared its Feasibility Report and submitted it to this Court
After considering the report of BIFR and hearing various parties and with the consent of the parties this Court vide its order dated 20th April 1988 directed inter alia that the matter be placed before BIFR for consideration whether it should proceed to pass an order in terms of the proposed scheme as revised in consultation with IDBI under Section 184 of the 
The Board was requested to arrive at a decision after giving notice to all the concerned parties
The relevant part of the order deserves to be quoted In compliance with the Court s order dated 13th October 1987 the Board for Industrial  Financial Reconstruction New Delhi established under section 4 of the in consultation with the Industrial Development Bank of India constituted under section 3 of the as its operating agency within the meaning of section 31 of the Act considered in depth the scheme submitted by the Kamani Employees Union and has evaluated the same by its feasibility report dated 12 th January 1988
We have heard learned counsel for the parties and they agree to the order we purpose to make
We direct that the matter shall now be placed before the Board for Industrial  Financial Reconstruction for consideration as to whether it should proceed to pass an order in terms of the proposed scheme as revised in consultation with the Industrial Development Bank of India under section 184
The Board shall come to a decision after notice lo all the parties and it shall act in conformity with the provisions of the Act
The Board may if necessary frame its own scheme or adopt the proposed scheme framed by the Kamani Employees Union with such modifications as it deems fit
The Board shall also be at liberty to consider any alternative scheme at its discretion but the whole exercise shall be completed within eight weeks from today
If the objections to the Kamani Employees Union s scheme are not sustained the said scheme shall be dealt with according to law   PG NO 131 Pursuant to the direction of this Court the Board afforded a hearing to all the concerned parties on 20th May 1988 and after having  examined the submissions made but the various groups of Kamani family Banks State Government and Central Government prepared a Draft Scheme for revival of KTL
The said draft Scheme was circulated to all the parties concerned and short particulars thereof were also published in two news dailies for the information of the shareholders the creditors and the employees etc
in general
The parties were given due notice for making suggestionsraising objections with respect to the Scheme
On receipt of various suggestions objections the Board held its hearing on 28788 for considering the same
After hearing all the parties and after having examined all the writtenoral submissions made the Board has financed and sanctioned the scheme as per its decision dated 6th September 1988 which has now been placed before this Court for further orders in the light of the submissions of the concerned parties Two questions arise in the context of the Workers  Scheme which has been sanctioned by the BIFR as per its decision dated September 6 1988 1 Whether the Scheme presented by Shri Ashish Puranchand Kamani applicant in CMP No 22428 of 988 at the time of the hearing on 12th September 1988 which was not presented before BIFR deserves to be considered having regard to his claim that his scheme is preferable to the Workers  Scheme already sanctioned by the BIFR on September 6 1988 2 Whether the Workers  Scheme as sanctioned by BIFR deserves to be stamped with the imprimatur of the Court
The scheme presented by Shri Ashish Kamani who claims to hold 24 of the shares of KLT could not be presented before the BIFR
which was seized with the matter in regard to the framing of a feasible Scheme in pursuance to the directions of this Court till the BIFR rendered its decision on September 6 1988
In the order dated April 20 1988 this Court had observed that The Board may if necessary frame its own scheme or adopt the revised scheme framed by the Kamani Employees Union with such modifications as it deems fit
The board shall also be at liberty to consider any alternative Scheme PG NO 132 at its discretion but the whole exercise shall be completed within eight weeks from today
 Two points must be underscored
First that the Court had merely accorded liberty to the Board to consider any alternative scheme
and secondly that the matter was left to the discretion of the Board
It is therefore clear that no right  was conferred on any party to present a new scheme
Option was given to the Board to exercise its discretion to consider any alternative Scheme if it was presented within the time frame
Learned counsel for the applicant Shri Ashish Kamani could not contend that any right  was conferred on the applicant to present a Scheme
In fact there was no obligation on the part of the Board to consider the Scheme even if it was presented within the time frame
As a matter of fact the applicant did not present any scheme before BIFR within the time bracket specified by this Court
And the Board has after full and complete deliberation rendered a well considered decision sanctioning the Scheme of the workers
On 6th September 1988 about a week before Shri Ashish Kamani the applicant was able to present his Scheme
It is not necessary to examine the issue as to whether or not there was any justification for not presenting the Scheme before the stipulated deadline
Even though it is too late to examine the applicant s scheme it is not considered appropriate to shut out consideration of the scheme only on the ground that it is being presented so late and the workers  scheme has already been sanctioned much earlier
In case the applicant is able to persuade the Court that the Scheme presented by him is preferable to the workers  scheme in the larger interest of all concerned the decision rendered by the BIFR could possibly be set aside and the Scheme presented by the applicant could possibly be remitted to the BIFR for considering the whole matter afresh
Of course it would cause great hardship to all concerned more particularly because the Scheme sanctioned by BIFR on 6th September 1988 comes into force with immediate effect 
It has also to be realised that the matter would be delayed by several months at the cost of the suffering workers
These are considerations which are more than adequate to discourage and deter the Court from undertaking any such exercise
All the same we have heard the learned counsel for the applicant in regard to the Scheme presented by him even at this late stage
As indicated earlier learned counsel for the applicant stated that while the applicant did not oppose the Scheme presented by the workers the applicant was confident of persuading the Court to hold that the Scheme presented by the applicant was by far in the larger interest of all concerned as compared to the Scheme presented by the workers and sanctioned by the Board
In PG NO 133 order to effectively deal with this question the cantours of the two Schemes require to be traced Scheme presented by the Scheme presented by Shri Workers Ashish Kamani 1
It contemplates starting 1
It envisages the operations with the existing replacement of the existing machinery after effecting machinery by imported second necessary repairs and hand press and plant reconditioning of the plant equipment at an estimated to the extent necessary
It cost of Rs345 lakhs
It is is envisaged that the not known how much time will production can be commenced elapse in replacement and within about six months
when operations can be commenced
There is not even a vague idea about this factor
The scheme is fully backed 2
The Scheme does not show by the same Nationalized that there is even a banks as are secured tentative commitment much creditors of KTL
These banks less a firm commitment by any have also made firm Banks or financial commitments for further institutions to finance the financial assistance
project
Nor is it shown that the applicant himself is investing any sizeable amounts to lauch the project
The Scheme is altogether silent as to how the resources are to be raised in regard to the modernization programme involving Rs694 lakhs
The Central Govt
and the 3
Neither the Central State Govt
have agreed to Govt
nor the State Govt
grant tax concessions having has shown its willingness to regard to the fact that it is give any concession to the the first Scheme of its kind applicant
In fact there for reviving an industrial appears little likelihood of unit framed by the very such concessions having workers rendered jobless on Regard to fact that the account of the sickness
special factors relating to public interest involved in enabling the workers themselves to revive the sick industrial unit does not exist in the case of the applicant
PG NO 134 4
The workers themselves 4
The workers would not have agreed  I to make wage agree to forego any part of sacrifice of 25  for the their wages or make a wage first year of operations and sacrifice to enable the 15 for the next two years
applicant to take over the in other words the workers unit
Nor the workers would have agreed to forego 15 to accept deferment of dues or 25 of the wages which they to rationalization of staff would be otherwise entitled pattern or retrenchment
to having regard to the fact Learned counsel for KEU has that it is the workers own stated that they are not at Scheme calculated to benefit all prepared to do so
them atleast in future 2 to deferment of annual increments for two years as also 3 to rationalisation of the staff pattern by persuading the workers to be 3retrenched on payment of compensation in the larger interest of the workers and to restrict the workers to 600 4 to forego dues subsequent to 311285 5 to deferment of prestoppage dues till other dues are paid off
The secured oreditors have 5
There is no such agreed to convert 50 of commitment on behalf of the dues into interest free loan secured creditors
Nor is repayable within 10 years and there any liklihood of such a moratorium of one year for concessions for the benefit for 50 of outstandings 
of the applicant 
The Scheme has been found 6
The fessibility of the to be feasible and viable by applicant s claim has not experts and by the operating been examined by any agency viz IDBI which is competent or authorised fully equipped to form the agency acceptable to the opinion in this behalf
When the two Schemes are viewed in juxtaposition there is no manner of doubt that the scheme presented by the applicant appears in a rather poor light
In fact the said scheme suffers from some fundamental infirmities
It is not shown that there is any commitment on behalf of any Bank of financial institution to provide the requisite financial PG NO 135 resources to enable the applicant to modernize the plant and to run it
The applicant hopes  to purchase a second hand plant from some foreign country
It is not known whether any such second hand plant in working condition with reasonable life expectancy is available
It is not known what would be the cost thereof
It is not known whether the Central Govt
would release foreign exchange in order to enable the applicant to purchase the said plant
Thus the entire scheme is wrapped in imponderables and there is no concrete basis to entertain a reasonable belief that the hope  entertained by the applicant would materialise at all in the foreseeable future
It is proposed to finance the cost of the additional plant and machinery to the tune of Rs694 lakhs out of which it is stated that Rs520 lakhs will be by way of term loan assistance from banks and financial institutions
It is conceded that there have been no negotiations with any Bank or financial institution and there has not been even a tentative not to speak of a firm commitment in this behalf
With regard to the remaining Rs174 lakhs it is stated that it will be by way of promoters contribution or through issue of share capital
whether or not Rs174 lakhs can be so raised is in the realm of wishful thinking and conjecture
It merely reflects the hope of the applicant which is not rooted in reality
It is built on a non existant foundation
Nor is it shown whether the applicant himself has any sizeable financial resources of his own
Or whether he is in a position to raise such resources
The Scheme is a manifestation of the hope and desire of the applicant and no more
There is little doubt about the fact that no useful purpose will be served by granting the request of the applicant in these circumstances
Even so we would have considered the matter further if the applicant had satisfied this Court about his bona fides and provided an assurance that delay will not be to the detriment or prejudice of the workers or at their cost
An enquiry was accordingly made from the learned counsel for the applicant whether the applicant was prepared to deposit a sum of Rs 1 crore representing about 15 of the arrears of wages which have by now become payable to the workers to enable the Court to examine the matter notwithstanding the aforesaid short comings
The learned counsel for the applicant frankly stated that the applicant was not in a position to deposit such a sum sp In fact he did not even mention that the applicant was prepared to deposit a lesser sum in order to show his good faith and bona fides and in order to protect the legitimate interests of the workers
Counsel wanted the Court to consider the Scheme without any such provision being made merely on the assertion that the Scheme presented by the applicant was the only feasible Scheme which appears to be an altogether ill founded assertion for the foregoing reasons
Under the circumstances we do not have the slightest hesitation in refusing the applicant s prayer in this behalf
PG NO 136 In order to deal with the remaining question as regards stamping the Scheme sanctioned by the BIFR on September 6 1988 with the imprimatur of the Court is concerned it will be appropriate to take a glance at the provisions of the under which the Board has been constituted before the exercise is undertaken
The statement of objects and reasons reveals the purpose underlying the benevolent legislation as also the anxiety of the legislature to provide for preventive ameliorative and remedial measures essential for reviving sick or potentially sick companies and for ensuring expeditious enforcement of the measures devised by the competent authority under the Act
The statement of objects and reasons discloses the anxiety of the legislature at the alarming increase in the incidence of sickness of industrial companies and it also reveals that the legislation has been enacted with the end in view to 1
afford maximum protection of employment 2
optimise the use of funds of the companies etc
 3 salvaging the production assets 4
realising the amounts due to the Banks etc and 5
to replace the existing time consuming and inadequate machinery by efficient machinery for expeditious determination by a body of experts
The scheme envisaged by Section 187 of the Act inter alia provides for the reduction of the interest or rights of the shareholders in the sick industrial companies to the extent necessary for the reconstruction rovival or rehabilitation of the sick company
There is also a very salutory provision which contemplates transfer of the shares in the sick industrial company at face value or intrinsic value which may be discounted value or such other value as may be specified inter alia 7
Section 182f the reduction of the interest or rights which the shareholders have in the sick Industrial company to such an extent as the Board considers necessary in the interests of the reconstruction rovival or rehabilitation of the sick industrial company or for the maintenance of the business of the sick industrial company PG NO 137 to the employees of the sick industrial companies
The provision for transferring the shares to the employees which makes manifest the intention of the legislature to encourage the employees to take over the sick units and to clothe the competent authority with power to direct the transfer of the shares to the employees in this behalf
Thus the authority and competence of the Board to issue a direction for the transfer of the shares to the employees has the full backing of the benevolent legislation  enacted especially in order to restructure or revive the sick undertakings
In the course of the discussion in the earlier part of this order we have referred to the abortive efforts made by the learned Mediator and the members of the different family groups of Kamanis for selling 90 of the shares of KTL
It however appears that no purchaser was coming forth
The aforesaid exercise however shows the willingness and preparedness of the concerned members of the Kamani group to transfer their shares on their own even without a directive
Their willingness is however irrelevant since the BIFR is clothed with the authority and competence to reduce the value of the shares from Rs10 per share to Re1 per share and direct the transfer of the shares to the employees
A point was made before the BIFR for the transfer of the shares as regards the order reducing the value of the share and the direction to transfer the shares at the reduced value of Re1 per share
BIFR has closely carefully and dispassionately considered this dimension of the matter and has rightly reached the conclusion that the intrinsic value of the share is zero
The liabilities far exceed the assets and even by applying the break up or back up method suggested by the members of the Kamani family the value of the shares could be determined only at the intrinsic value of the shares and the Board reached the firm conclusion that each share had zero value
And even so the Board directed that the value of the share be reduced to Re 1 per share and directed them to transfer the shares at Re l per share
Having given our anxious consideration to this factor even on our own we are fully convinced and fully satisfied that the Board was perfectly right in directing the members of the Kamani family to transfer the shares at the rate of Re l per share in order to effectuate the Scheme for revival of KTL
We may also mention that the BIFR was wholly right that the provisions of the Act were immune from challenge by virtue of the declaration contained in Section 2 of the Act attracting the application of article 31C of the Constitution
Turning to the merits of the Scheme sanctioned by 8
Section 1821 transfer or issue of the shares in the sick industrial company at the face value or at the intrinsic value which may be a discounted value or such other value as may be specified to any industrial company or any person including the executives and employees of the sick industrial company PG NO 138 BIFR it does not suffer from any infirmity
It has been considered to A be feasible and economically viable by experts
It envisages the management by a Board of Directors consisting of fully qualified experts and representatives of Banks Government and of the employees
The Scheme has the full backing of the nationalized Banks and the encouragement from the Central Government and the State Government which have made commitments for granting tax concessions
The backing and the concessions are forthcoming essentially because it is a Scheme framed by the employees who themselves are making tremendous wage sacrifice and are trying to stand erect on their feet in order to salvage the ship which has been almost wrecked by others
It is appropriate to refer to one more important aspect
The Scheme envisages that the liability of the guarantors under the con tract of guarantee executed in favour of the concerned Banks should remain unaffected by the framing of the Scheme
BIFR has rightly made a provision in this behalf and sanctioned the Scheme subject to the direction that the sanctioning of the Scheme will not result in the detraction from the obligations incurred by the guarantors towards the Banks
Since the Scheme is being framed under the statutory authority and directive in order to revive the same in the larger public interest and inasmuch as there is a necessary declaration contained in Section 2 of the Act which attracts the applicability of article 31C of the Constitution the decision rendered by the BIFR is unassailable and unimpeachable
Besides the Scheme has been framed as per the direction and mandate of this Court in exercise of its inherent jurisdiction and its constitutional jurisdiction under article 142 of the Constitution and therefore the framing of the Scheme and the enforcement of the sanctioned Scheme does not detract from or have any impact on the obligation incurred by the guarantors in regard to the debts incurred by KTL in the past
The concerned Banks were and are bound by the directives and mandates
Having given our anxious consideration to the decision rendered by BIFR sanctioning the Scheme taking into account all the factors we fully agree with the reasoning and conclusion of BIFR and hereby stamp the Scheme with the imprimatur of this Court
An apprehension has been expressed that same attempts might be made by those who are not happy with the sanctioning of the Workers  Scheme to throw a spanner in the wheel and to impede the implementation of the Scheme
We do not think any such effort would be made having regard to the fact that the Scheme has been devised as per the directions of this Court and that it has now been stamped with the PG NO 139 imprimatur of this Court pursuant to this order
It is of course true that if the legal forum is utilised with an eye on impeding the implementation of the Scheme it could throw everything out of gear
This cannot be countenanced as implementation of the Scheme with expedition is of the essence of the present exercise
The Act itself has been enacted in order to evolve a speedy and efficient machinery so that a sick industry could be revived with utmost expedition production could be started locked up funds could be utilised for furthering socioeconomic development
And so that the unemployment of starving workers could be ended before they are starved to death and they are provided with employment to enable them to live  with dignity instead of existing  in humiliating conditions
We therefore make it clear that notwithstanding any order that may be secured by any party from any other forum the Scheme shall be implemented in obeisance to the judicial command embodied in this order and that in case there is any problem it may be brought to this Court for seeking appropriate directions instead of resorting to other forums to impede the implementation of this socially and economically wholesome Scheme
A note of caution is required to be sounded before we conclude this order
While the Act enacted in 1985 does envisage the revival of sick units by the workers who had been rendered unemployed it is as far as is known for the first time that the legislative intent reflected in the relevant provisions of the Act to encourage workers  schemes is being given a concrete shape in this manner
It is perhaps for the first time that such a Scheme sponsored by the suffering employees themselves has come to be sanctioned
Under the circumstances a very heavy burden rests on the shoulders of KEU and the concerned employees
Tens of thousands of similarly situated workers would be watching with anxious eves the outcome of this bold experiment undertaken by the workers of KTL
On their success or failure will depend the future hope and destiny of tens of thousands of similarly situated workers
Success of this venture will instil new confidence and enable the workers to try to build their own future with their own hands albeit at Some initial sacrifice
Failure will be visited with disastrous consequences
We therefore not only hope and trust that KEU and the concerned workers will make themselves fully aware of this crucial factor but also beseech them to rise to the occasion and individually and collectively do their best to make it a success
They will have an opportunity to show to the world that the workers in New lndia are capable of managing their own affairs shaping their own destiny and building their own future
They will also have an opportunity to establish that when the workers are inspired by an ideal they can produce optimum quantity PG NO 140 as also the best quality
Because they would be working for a great cause and working for themselves instead of working for others who often deny to them their legitimate dues and even deprive them of such legitimate dues by appropriating to themselves the fruits of the worker s labour
Be it also realized that the Trade Union Movement in the event of the success of this exercise will be stepping into a new creative phase in the struggle of the working class to assert its identity
One can almost hear the footsteps of the new era in the corridors of future
The workers must therefore ensure the roaring success of this Scheme in this noble cause at any cost
We also hope and trust that the concerned nationalized Banks IDBI and the concerned Governments will continue to cooperate with the same enthusiasm and zeal and with the same motivation in order to make the Scheme a success so as to usher in a new era in the industrial history of New India
On this note of cautious optimism we conclude


Summary:
The UP Public Service Commission made an advertisement in various newspapers inviting applications for the post of Food  Drug Controller UP The requisite qualification for the said post were specified in the advertisement as l a degree from any recognised University in MedicineSciencePharmaceutical Chemistry and 2 experience of five years in Drug Standardization and problems relating to control of Drug standards or Drug manufacture or Drug testing in a renowned institution
Pursuant to the said advertisement Dr MC Bindal Dr SK Majumdar the appellants in the two appeals CA No 37984 and CA No 392684 respectively and Ram Chander Singh
the respondent in the first appeal along with others filed applications
The Commission after holding interview recommended the appointment of a in the main list RC Singh and b in the reserved list Dr
MC Bindal Provisional and made it clear that the word Provisional  denoted that the recommendation was subject to the candidate meeting the necessary qualification experience of five years
The State of Uttar Pradesh intimated the Commission that the candidature of RC Singh did not appear to be suitable in view of the vigilance enquiry against him and that Dr Bindal had the requisite experience of five years
In its reply the Commission intimated that the right to appoint or not to appoint a candidate vested with the State of UP and it was for the State Government to take a decision accordingly
On receipt of this letter the State Government appointed Dr MC Bindal as Food  Drug Controller
Two writ petitions were filed in the High Court one by PG NO 36 PG NO 37 RC Singh and another by SK Majumdar challenging the appointment of Dr MC Bindal on the ground that he had not the requisite experience
The High Court by a common judgment allowed in part the writ petitions and held that though Dr Bindal is not per se unsuitable or disqualified for the post his appointment was to be treated as only provisional and subject to the final decision of the State Government
Dr Bindal appealed to this Court
In the meantime the Service Commission directed one of its officers to verify whether Dr Bindal fulfilled the qualifications relating to practical experience of 5 years in Drug Standardization or Drug testing in a renowned institution
The Deputy Secretary after enquiry sent a report that the total period of experience of Dr Bindal on the date of submission of his application was only 3 years 4 months and 9 days whereas the essential qualification required was experience should be for 5 years
The Commission thereafter took the decision that the Commission withdraws and cancels the provisional recommendation and the candidature because Dr Bindal did not possess the requisite qualification section In the appeal and the writ petition it was contended on behalf of Dr Bindal that the Service Commission was wrong and patently in error in withdrawing the candidature of the appellant and in cancelling its recommendation
Allowing CA No 3926 of l986 filed by Dr Majumdar and dismissing CA No 3797 of l984 WP No 756 of 19X6 filed by Dr Bindal and CA No 3798 of l984 filed by the State of l P the Court HELD 1
A candidate in order to be considered for appointment for the post must have to comply with the requisite qualification namely the educational qualification as well as experience
If any of these essential qualifications is lacking then the candidate cannot claim to be appointed in the said Post
42E 2
Under Article 3203a and b it is the duty of the Public Service Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement
42G 3
The Commission in the instant case has duly got verified the certificates of Dr Bindal in regard to his experience of five years in drug testing by a Deputy Secretary of the Commission and after considering his report as well as the certificates came to the conclusion that the appellant though fulfilled educational PG NO 38 qualification lacked in the requisite experience of five years in drug testing
The Commission therefore revised its earlier decision and also cancelled the recommendation earlier given in favour of the appellant
The decision of the Public Service Commission cannot be faulted
42H 43A B 4
It is the constitutional requirement envisaged in Article 320 that the Commission will have to perform the duty of recommending the candidate fulfilling all the requisite qualifications for the post to the Government for being considered for appointment to the post concerned
143B C