Delhi High Court

Incab Sramik Sangh & Ors vs Appellate Authority For ... on 16 April, 2015

Author: Siddharth Mridul

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 16.04.2015

REVIEW PET. Nos.291/2014 & 407/2014 in W.P.(C) 5010/2011 &
CM No.10169/2011

RR KABEL LIMITED ..... Petitioner

versus

M/S INCAB INDUSTRIES LTD & ORS ..... Respondents

Advocates who appeared in this case:

For the Petitioner : Mr Rajiv Nayar, Sr. Advocate with Mr Darpan Wadhwa, Mr Saurabh Seth,
Ms Sonia Dube and Mr Anurag Singh for RR Kabel Ltd.
For the Respondents : Mr Vivek Sibal with Mr Ankur S. Kulkarni, Mr Anand Srivastava and
Mr Shubham Jaiswal for R-1
Mr Barun Kumar Sinha with Ms P. Sinha for respondent
Mr Arvind Nigam, Sr. Advocate with Mr Tarun K. Banga for Tata Steel Ltd.
Mr Vikas Singh, Sr. Advocate with Mr Sanjiv Sen, Mr Sameer Dewan and
Mr S.C. Pant for R-14, 20, 21, 27, 36, 53 and 58.
Ms Vandana Singh for Mr Ajit K. Singh for R-36, 54, 62, 67 and 87.
Mr D. Rajeshwar Rao with Mr Charanjeet Singh for Central P.F.Commissioner.
Mr Prateek Johar with Mr Aditya Sharma for Fosqua & Kamla Mills.
Mr Ankit Khurana for Mr Soran Suri for Bank of Maharashtra
Mr Himanshu.

REVIEW PET. Nos.289/2014, 295/2014 & 296/2014 in W.P.(C)
5954/2011 & CM No.12050/2011

INCAB SRAMIK SANGH & ORS ..... Petitioners

versus

APPELLATE AUTHORITY FOR INDUSTRIAL & ORS
..... Respondents

WP(C) 5010/2011, 5494/2011 & 5197/2011 Page 1 of 30
Advocates who appeared in this case:

For the Petitioners : Mr Barun Kumar Sinha with Ms P.Sinha.
For the Respondents : Mr Arvind Nigam, Sr Advocate with Mr Tarun K.Banga for Tata Steel Ltd.
Mr Vikas Singh, Sr. Advocate with Mr Sanjiv Sen, Mr Sameer Dewan and
Mr S.C. Pant for R-15, 22, 23, 46 and 28.
Mr Vivek Sibal with Mr Ankur S. Kulkarni, Mr Anand Srivastava and
Mr Shubham Jaiswal for Incab Industries Ltd.
Mr Aditya Sharma for Kamla Mills.
Mr D. Rajeshwar Rao with Mr Charanjeet Singh for Central P.F.Commissioner.
Mr Himanshu.

REVIEW PET. Nos.292/2014, 293/2014 & 294/2014 in W.P.(C)
5197/2011 & CM No.10541/2011

ALL INDIA INCAB INDUSTRIES EMPLOYEES FEDERATION &
ORS ..... Petitioner

versus

AAIFR & ORS ..... Respondents

Advocates who appeared in this case:

For the Petitioners : Mr Barun Kumar Sinha with Ms P.Sinha.
For the Respondents : Mr Vivek Sibal with Mr Ankur S. Kulkarni, Mr Anand Srivastava and
Mr Shubham Jaiswal.
Mr Arvind Nigam, Sr. Advocate with Mr Tarun K. Banga for Tata Steel Ltd.
Mr Vikas Singh, Sr. Advocate with Mr Sanjiv Sen, Mr Sameer Dewan and
Mr S.C. Pant for R-15, 22, 23, 46 and 29.
Mr Prateek Johar with Mr Aditya Sharma for Fosqua & Kamla Mills.
Mr Rajiv Nayar, Sr. Advocate with Mr Darpan Wadhwa, Mr Saurabh Seth,
Ms Sonia Dube and Mr Anurag Singh for RR Kabel Ltd.
Mr D. Rajeshwar Rao with Mr Charanjeet Singh for Central P.F.Commissioner.
Mr Himanshu.

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

WP(C) 5010/2011, 5494/2011 & 5197/2011 Page 2 of 30
JUDGMENT

SIDDHARTH MRIDUL, J

1. By way of present petitions, the petitioners seek review of the order

dated 04.04.2014 passed by this court in WP (C) Nos.5010/2011, 5954/2011

and 5197/2011 whereby this court rejected the preliminary objection of the

petitioners, that the matter was decided by a bench of Board for Industrial

and Financial Reconstruction (hereinafter referred to as "BIFR") which

had not heard the arguments.

2. M/s Incab Industries Ltd is a sick industrial company. In October,

1999 a reference was made by it to the BIFR and subsequently, it was

declared a sick industrial company by an order passed by the BIFR dated

04.04.2000. The State Bank of India (hereinafter referred to as "SBI") was

appointed as the Operating Agency ("OA") under section 17(3) of the Sick

Industrial Companies (Special Provisions) Act,1985 (hereinafter referred to

as "SICA") to examine the viability of the company and submit a

rehabilitation scheme.

3. After several years, three proposals were submitted by Silver jubilee

Infrastructure Ltd., R.R.Kabel and Land Lease Co. Ltd. (LLC). These

proposals were examined by the OA which also held discussions with its

propounders. Thereafter, several rounds of litigation followed. In the

meantime two other companies also joined in, namely, Pegasus Assets

Reconstruction Pvt. Ltd. (PARL) and TATA Steels Ltd. (TSL). They also

submitted their respective draft rehabilitation schemes (DRS).

4. The matter reached the Delhi High Court and thereafter the Supreme

Court which gave certain directions. Pursuant to the order dated 14.05.2009,

three bidders were permitted to submit the DRS; they were R.R. Kabel , TSL

and PARL. Following the orders of the Supreme Court, hearings took place

before the BIFR on 02.07.2009, 19.08.2009 and 22.09.2009. In the

proceedings before the BIFR, several workers' associations were allowed to

join the proceedings if they so desired, subject to furnishing of proof that

they were recognized unions of the said sick company.

5. In the hearing which took place before the BIFR the coram comprised

of Mr. K Cherian Verghese, Chairman, Mr. Pawan Raina, Member and

Nirmal Singh, Member. On that date, the BIFR considered the report of the

OA dated 1.9.2009 and directed the OA to give a further report in a tabular

form setting out the parameters, to hold a joint meeting with all concerned

parties and to submit a further report containing the valuation of the three

proposals submitted by RR Kabel, TSL and PARL in accordance with the

order of the Supreme Court.

6. Pursuant to this, the OA conducted a joint meeting on 20.10.2009 and

through its report dated 26.10.2009 gave its comprehensive and comparative

analysis of all the three schemes and reiterated its earlier opinion that the

scheme propounded by the TSL was best suited and the future of the workers

of the Sick company would be secure with the TSL's proposal.

7. The report was submitted to the BIFR which held a hearing on

12.11.2009. On this date, the parties opposing the scheme prepared by TSL

objected to the report of the OA, upon which the BIFR directed them to file

written submissions. The OA as well as the sick company were directed to

give their comments on the submissions so received. The coram of the BIFR

comprised of Mr. Cherian Verghese, Chairman, Mr. Pawan Raina, Member

and Smt Saroj Bala, Member. The parties submitted their respective written

submissions to the report of the OA.

8. On. 24.11.2009, the BIFR held a hearing in which the coram

comprised of Mr. K Cherian Verghese, Chairman and V K Malhotra,

Member. It considered the report of the OA dated 26.10.2009, the

objections/submissions of the parties to the same and sought further

clarifications from the parties. The OA was directed to reconcile the figures

mentioned in the report, to recast the report and submit a supplementary

report.

9. Accordingly, on 27.11.2009, the OA gave its supplementary report in

which also it was made clear that the scheme of the TSL was the best on all

parameters, including the protection of the interest of the workers.

10. On the next hearing which took place on 30.11.2009 before the BIFR,

the coram comprised of Mr. K Cherian Varghese, Chairman and Mr. VK

Malholtra, Member. The BIFR sought written submissions to the report of

the OA dated 27.11.2009 and also sought clarifications from the three

propounders as well as from the OA. They were all directed to give their

clarifications by 02.12.2009. The OA was also directed to give its views on

the clarifications given by the propounders. It was declared by the BIFR on

that date that its decision will be announced on 09.12.2009.

11. Accordingly, on 02.12.2009, RR Kabel, PARL and others opposing

the scheme of the TSL submitted their respective written submissions to the

BIFR. On 07.12.2009, the OA by its letter gave its comments to the written

submissions of the parties opposing the scheme of the TSL.

12. On 09.12.2009, the coram of BIFR comprised of Mr. K Cherian

Verghese, Chairman and V K Malhotra, Member passed the final order

holding that the scheme of the TSL is the best among all the bidders and

satisfied all the parameters set by the Supreme Court and Delhi High Court.

Accordingly, it directed the TSL to submit its draft rehabilitation scheme.

13. Appeals were preferred to the AAIFR by RRK and two of its workers'

union supporting it against the order passed by the BIFR on 09.12.2009. An

appeal was also filed by PARL.

14. One of the contentions raised before the AAIFR by the appellant was

that the bench of the BIFR which passed the final order on 09.12.2009 was

not the same bench which heard the entire arguments. Therefore, the said

bench should not have passed the final order. TSL resisted the contention by

submitting that it is not possible for the same members to hear the arguments

before BIFR since the proceedings go on for several years during which the

members of the BIFR regularly change on account of retirement etc. It was

further submitted before the AAIFR that the BIFR adopts the procedure

regularly to record the gist or the summary of the proceedings of each

hearing in the subsequent orders. It was pointed out that in its order passed

on 09.12.2009, the BIFR followed the same procedure and recorded the gist

of the meetings of each and every previous proceeding relevant for the

purpose of coming to the final decision. It was submitted on behalf of the

TSL that effective arguments were heard by the BIFR only on 24.11.2009

and 30.11.2009. On these two dates the coram comprised of Mr. K Cherian

Verghese, Chairman and V K Malhotra, Member which was the bench that

passed the final order on 09.12.2009. Therefore, it cannot be said that the

matter was disposed of by a bench which did not hear the arguments. It was

further contended that in any case none of the appellants had objected to the

proceedings before the BIFR on this ground, therefore, they are prohibited

from assailing the impugned order of the BIFR in the appeals filed before the

AAIFR. Reliance was also placed on section 10 of the SICA, which

stipulated that the proceedings of the board were not to be questioned merely

on the ground of any defect in its constitution or in the constitution of the

AAIFR. It was accordingly contended by the TSL that the proceedings

before the BIFR were valid and the order passed by the bench consisting of

the K. Cherian Verghese, chairman and Mr. VK Malhotra, Member was

perfectly in order.

15. On this argument, the majority of the AAIFR pronounced as follows:

''(i) A question has been raised about the judicial propriety of the bench which has delivered the

impugned order as this Bench was different from the Bench which heard the final arguments on 12.11.2009. We are inclined to agree with the arguments that the BIFR records the summary of proceedings of the previous hearings in the proceedings of the subsequent hearings and, therefore, there is always continuity of knowledge and information relating to the developments in a particular case before the BIFR. In this case, the same thing has happened. Ifit is accepted that with every change of a member in the composition of the Bench, a case needs to be re-heard, it will lead to constant rehearings as a result of which the adjudication and decisions in BIFR cases can be indefinitely prolonged, which, in the context of revival of such companies will not be a desirable consequence. Moreover, Section 10 of SICA clearly lays down the following: -

"Vacancies, etc., not to invalidate proceedings of Board and Appellate Authority - No act or proceeding of the Board or, as the case may be, the Appellate Authority shall be questioned on the ground merely of the existence of any vacancy or defect in the constitution of the Board or the Appellate Authority or any defect in the appointment ofa person acting as a Member of the Board or the Appellate Authority." Therefore, wefeel that the objectivity of evaluation and adjudication has been by no means compromised because ofthefact that the Bench that gave the impugned order was partially different in composition from the Bench that heard the final arguments. Therefore, we think this does not constitute any legal

infirmity. In the interest of expeditious justice, we hold that the impugned order has been validly delivered by the Bench and does not suffer from any infirmity on the aforesaid account."

16. The majority of the AAIFR also dealt with the merits of the different

rehabilitation schemes and eventually upheld the decision of the BIFR that

the scheme propounded by TSL was the most suitable.

17. The minority view of the AAIFR (the Chairman) on this issue was

different. The relevant portion of his view is as below; -

2. But, so far as order passed in Appeal No.16/10, 37/10, 38/10 and 40/10 are concerned, with due regards to my Brother, I am imable to agree with his findings recorded in this appeal andfinal order passed and signed by them. Today, I am demitting my Office on completion of my tenure. As such, I am unable to write a detailed order in the matter and also it could not be possible for me to go through the full text of the order due to paucity of time. However, on seeing the findings and final opinion recorded in the order, prima facie, according to me, these appeals should be remanded back to the BIFR for reconsideration particularly on the ground of judicial propriety of the passing of the order by the Bench of the at page 65 ofthe order prepared by Shri A.K. Mohapatra, he has considered the question of judicial propriety of the Bench of the BIFR which has delivered the impugned order. The Bench which passed the order was different from the Bench which heard the final arguments on 12.11.09. In my opinion, this will make the whole

order liable to be set aside as another Bench which has not heard the final arguments cannot pass the order. This reasoning that there is always continuity of knowledge and information on record is available, is not acceptable. In my view, the impugned order of the BIFR dated 9.12.09 is liable to be set aside on this ground alone."

18. The chairman of the AAIFR(minority) took the view that the OA did

not act as an independent agency in considering the three schemes and did

not record its findings properly on evaluation of the schemes. Accordingly,

he remitted the matter to the BIFR with the direction that it should consider

the three schemes afresh objectively.

19. Thereafter, the petitioners filed writ petitions being WP(C) Nos.

5010/2011, 5954/2011 and 5197/2011before this court challenging the order

dated 30.06.2011. These writ petitions were heard and order was reserved on

03.10.2013 on the preliminary objection that the matter was decided by a

bench of BIFR which had not heard the arguments. This preliminary

objection was rejected by this court by way of reasoned order dated

04.04.2014. (order under review)

20. Mr Rajiv Nayyar, the Learned Senior Counsel appearing on behalf of

RR Kabel contended that this court has erred in its order under review as the

bench of BIFR which passed the final judgment was partially different in

composition from the bench that heard the final arguments. Thus, the order

passed by the BIFR suffers from the vice of "Hearing by one, decision by

another." He contends that the bench of the BIFR which heard the final

arguments on 12.11.2009 comprised of Mr. Cherian Verghese, Chairman,

Mr. Pawan Raina, Member and Smt Saroj Bala, Member. While the bench

that passed the final order on 09.12.2009 comprised of Mr. K Cherian

Verghese, Chairman and V K Malhotra, Member.

21. Mr Nayyar further contended that the merits of the scheme were

argued only on 12.11.2009. There is even a categorical finding by the bench

of the AAIFR which passed the final judgment that the bench of the BIFR

which passed the final judgment was partially different in composition from

the bench that heard the final arguments and this finding was never

challenged by the Respondents. The subsequent bench did not have the

benefit of oral arguments on comparison of the rival schemes which was

already concluded on 12.11.2009.

22. It was further contended that there is an error on the face of the record

as the petitioners had argued that the hearings which were held on

24.11.2009 and 30.11.2009 did not deal with the main issue of comparison

of schemes propounded, but addressed a different issue altogether.

23. Mr Nayyar further contended that there is an error apparent on the

face of the record as this court has wrongly recorded in para 37 of the order

under review that the BIFR after hearing oral arguments on 12.11.2009

directed the parties to file "written objections". In fact the BIFR in the said

order in para 2.19 directed the parties to file "written submissions".

24. It was submitted that the hearing before the BIFR on 12.11.2009 was a

substantial hearing. A part heard matter whether marked "part heard" or not,

has to be heard by the same bench if available otherwise, it ought to be

reheard by a fresh bench.

25. Reliance was placed by Mr Nayyar on the decision of the Supreme

Court in Gullapalli Nageswara Rao v. AP State Road Transportaion Copr.

And Others: AIR 1959 SC 308, wherein the Apex court held as under:

31. The second objection is that while the Act and the Rules framed there under impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade

the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.

26. Mr. Barun Sinha, Learned Counsel stated that adequate opportunity of

hearing was not given to the workers by the later bench of the BIFR. Further,

there is an erroneous finding of this court in the order under review that the

workers were heard on 24.11.2009, inasmuch as, they were not heard on

24.11.2009. The further hearing which was held on 30.11.2009, was a date

not fixed for hearing.

27. Mr Vivek Sibal, Learned Counsel appearing on behalf of Incab

Industries stated that in para 37 of the order under review, the finding that

there is no material to hold that the hearing was completed any date prior to

24.11.2009 and "respondents do not deny it" are wrong as para 25 of the

order records that Incab's submission was that 12.11.2009 was the date of

final hearing.

28. Mr Sibal further stated that it has been wrongly recorded that Mr. Kirti

Uppal, Senior Advocate appeared for Incab Industries Ltd. and supported the

arguments of Mr. Vikas Singh, Senior Advocate. The counsel stated that

Incab has never authorized nor engaged Mr Kirti Uppal, Senior Advocate to

appear on behalf of Incab.

29. Mr. Vikas Singh, the learned senior counsel appearing on behalf of the

workers supporting the TSL Scheme argued that RR Kabel did not argue in

the appeal that the matter was part heard before one bench and decided by

another. It was further argued that no objection was taken qua the change of

bench of the BIFR from 24.09.2009. Also, as per provision laid down under

section 10 of SICA, any defect in the constitution of the Board shall not

invalidate any act or proceeding of the Board. Thus, in the present case the

petitioners have no right to raise such a preliminary objection.

30. It was further argued that there were full fledged hearings even after

12.11.2009.

31. It was also argued that as per the order of the BIFR dated 12.09.2009,

the BIFR directed the parties to file written submissions. The written

submissions so filed were actually in the nature of objections to the report of

the OA (SBI).

32. It was then argued that petitioners have not suffered any prejudice,

since their arguments and written submissions have all been taken note of by

the bench of BIFR which passed the order on 09.12.2009. On 12.11.2009,

oral objections were raised to the report of the OA dated 26.10.2009. On

24.11.2009, these objections were put in writing before the BIFR bench

comprising of Cherian Varghese, Chairman and VK Malhotra, Member.

Thus, this does not in any manner vitiate the proceedings. The bench

constituted on 24.11.2009 had the written objections before them for

consideration. On 24.11.2009, the oral objections were concluded. A further

opportunity was given to the parties to file written submissions on

30.11.2009. This opportunity was given by the bench consisting of Cherian

Varghese, Chairman and VK Malhotra, Member which passed the final order

on 09.12.2009. Thus, the order of the BIFR does not suffer from the vice of

"Hearing by one, decision by another."

33. Mr Arvind Nigam, the learned Senior Counsel supported the

arguments of Mr. Vikas Singh, Senior Advocate and contended that the

endeavor of the petitioners is to reargue the main matter which ought not to

be permitted at this stage.

34. We have heard the rival submissions put forward by the counsel for the

parties. PARL has withdrawn its petition.

35. We are of the view that there is no error in the order under review.

The decision in Gullapalli (supra) is not applicable to the facts of the present

case. The order under review has correctly held as follows:

"46....The judgment of the Supreme Court in Gullapalli Nageswara Rao and Ors. V. APSRTC and Anr. (supra) cited by the petitioners, is a case which arose under the Motor Vehicles Act, 1939. That Act and the rules framed thereunder imposed a duty on the State Government to give a personal hearing. The Rules provided that it was the duty of the Secretary of the Transport Department of the State to hear and the Transport Minister to decide. By a majority of 3 : 2, the Supreme Court held that such a procedure defeats the object of personal hearing and such divided responsibility is destructive of the concept of judicial hearing. It was held that personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear his doubts during the arguments and the party appearing is enabled to persuade the authority to accept his point of view by a reasoned argument. It was held that if one person hears and another decides, then personal hearing becomes an empty formality. This case which arose under the administrative law does not have any application to the case before us. There is no divided responsibility in the present case which can be said to be destructive of the concept of judicial hearing. Herein there are no two authorities - one to hear and another to decide. The authority which hears and decides is the same, namely the BIFR. The

BIFR acts through its Benches and we have already seen that as per regulation 16(3), every order made or act done by a Bench in exercise of its powers shall be deemed to be the order or act as the case may be, of the Board. Regulation 3(b) defines "Board" to mean the BIFR and includes, where the context so requires, a Bench exercising the jurisdiction, powers and authority of the Board. Keeping these regulations in view, it is difficult to accept the proposition that the earlier Bench consisting of the Chairman and two Members and the later Bench consisting of the Chairman and V K Malhotra were different authorities entrusted with a divided responsibility which could destroy the concept of judicial hearing. It is the very same authority, namely the BIFR, which hears and decides through its Benches and such Benches could be differently constituted at different times. The position may however be different if a proceeding is marked as "part-heard", in which case it is that Bench alone, unless otherwise directed by the Chairman for valid reasons, that can continue to hear the proceedings. The decision is therefore of no help to the petitioners in the present case..."

36. We are in agreement with the order under review that the case of

Gullapalli (supra) arose under administrative law and does not have any

application in the present case. In the present case, there were no two

authorities, one which heard and another which decided. It is the BIFR only

that heard and decided the matter. On the other hand, in Gullapalli (supra)

the procedure prescribed rules which imposed a duty on the Secretary to hear

and the Chief Minister to decide.

37. The order under review cannot be challenged on the ground that this

court has erroneously recorded "written submissions" as "written objections"

in para 37 of the order where the written submissions so filed pursuant to the

order of the BIFR dated 12.11.2009, were in the nature of written objections

to the report of the OA. If at all, this is a minor mistake of inconsequential

import.

38. It is correctly held in the order under review that the petitioners had

full opportunity of submitting their case. On 12.11.2009(Earlier bench),

directed the parties to file written submissions on 16.11.2009. Accordingly,

the written submissions were filed, on the next date of hearing i.e.,

24.11.2009, before the bench that passed the final order. That bench had the

opportunity to go through the written submissions and comments of the OA.

Even on 24.11.2009, the bench of BIFR which passed the final order on

09.12.2009 directed the parties to file further clarifications etc. The OA was

directed to recast its earlier report and file a supplementary report. These

directions were also complied with. On 30.11.2009 also, the aforesaid bench

directed the parties to react to the supplementary report and file their

respective written submissions. The same was done accordingly on

02.12.2009. The OA filed its reply to the submissions of the parties on

07.12.2009. Therefore, at every stage of the proceedings the petitioners were

given full opportunity to put forth their case. This shows that there was

always continuity of knowledge and information. Everything including the

comparison of schemes propounded were considered by the later bench of

the BIFR. Therefore, no prejudice was caused to the petitioners due to the

changes in the composition of the Bench from 24.11.2009 onwards.

39. With regard to the contention raised by Mr. Sibal, that the

respondents therein have not denied the fact that there is no material on

record to hold that the hearing was complete before 24.11.2009, even if the

respondents denied the fact that the hearing was not completed before

24.11.2009, nothing on record was brought to our notice to establish the

same. Therefore, this argument stands rejected.

40. The BIFR regularly records the summary of the proceedings of each

hearing in the subsequent orders. In the order dated 09.12.2009 also, the

bench of the BIFR followed the same procedure and recorded the summary

of the meetings of each and every previous proceedings relevant for the

purpose of coming to the final decision. Therefore, all the proceedings before

the BIFR were considered by the later bench.

41. The order under review is correct in holding that if the petitioners

thought that the hearings before the BIFR stood concluded on 12.11.2009,

they should have brought it to the notice of the bench constituted on

24.11.2009, which was not done. It is a clear indication that the petitioners

were also of the view that the hearings were not concluded on 12.11.2009.

The relevant portion of the order under review is reproduced below:

"37. So far as issue (b) is concerned, the question is whether the petitioner, who included the unsuccessful propounders, were given an opportunity of being heard at the stage of considering their objections. It cannot be disputed that oral arguments were heard on 12.11.2009 as to the objections to the report of the OA dated 26.10.2009. On 12.11.2009, the Bench consisted of the Chairman, Mr. Pawan Raina and Ms. Saroj Bala, Members of the BIFR. They directed the parties to file written objections on 16.11.2009. Accordingly, TSL, RRK and PARL filed the written objections on 16.11.2009. On this, parties before us are agreed. The next hearing took place on 24.11.2009, on which date the Bench consisted of only the Chairman, BIFR and Mr. V.K. Malhotra, Member. On this date, though the Benchwas of a different composition, the written objections of the parties were already on record and were taken into consideration by the Bench. The petitioners do not

deny that there was a hearing on 24.11.2009 in which they participated; even Mr. B.K. Sinha, the learned counsel appearing for the workers' union, was heard on that date. Thus there is no material to hold that the hearing was complete at any date prior to 24.11.2009. What had taken place prior to that date, i.e., on 12.11.2009 was of course a hearing by the BIFR consisting of the Chairman and two Members of the BIFR but it had not concluded on that date. Oral arguments were advanced by the concerned parties (including secured creditors, Government of West Bengal and workers' union) and certain directions as per paragraph 2.19 of the proceedings were issued on that date. This is the case even of Mr. Rajiv Nayyar, the learned senior counsel appearing for RRK; the respondents do not deny it. The point of difference between them is that while Mr. Nayyar contends that the hearing was concluded on 12.11.2009, and therefore the same Bench ought to have passed the orders and not a different Bench, both Mr. Vaidyanathan and Mr. Vikas Singh, appearing for TSL and the Tata Workers' union (supporting TSL) respectively, contend to the contrary and submit that the matter was effectively heard only on 24.11.2009 and 30.11.2009 and therefore there was nothing improper in the Bench which heard it on those dates (Chairman and Malhotra, Member) passing final orders upholding the rehabilitation scheme submitted by TSL. Having regard to the course the hearings took, it is not possible to accept the claim of Mr. Nayyar. A robust approach would be to ask oneself the question: if the hearing stood concluded

on 12.11.2009, what was the need to have further hearings on 24.11.2009 and 30.11.2009? The petitioners would have, if they had also thought that the hearing stood concluded on 12.11.2009 (as they claim before us), certainly brought it to the notice of the BIFR on 24.11.2009 and asked for orders to be passed by the Bench which concluded the hearing on 12.11.2009. Without bringing in the notions of estoppel or waiver or acquiescence for the present, one would have expected the petitioners to at least bring it to the notice of the Bench constituted on 24.11.2009 that the hearing had already concluded on 12.11.2009. The fact that they did not, is an indication that they also thought that the hearing had not concluded on that date."

42. According to us, it cannot be said that the hearing was concluded on

12.11.2009 and no opportunity was given to the petitioners to put forward

their case before the bench of the BIFR. The bench of the BIFR would have

marked the matter as "part heard" if it was so. The petitioners had not

brought this to the notice of the later bench. There is nothing on record to

hold that the matter was "part heard" before the earlier bench of the BIFR.

43. The order under review is correct in holding that it is the normal

practice for the courts and tribunals to continue to hear the proceedings in

this manner and there is nothing per se improper. The purpose of calling

upon the parties to file written submissions is to ensure that in case the

constitution of the bench changes, there is a record of the earlier

proceedings which will facilitate the later bench to ensure continuity of the

proceedings. It is correctly held in the order under review that the position

may be different if such a matter would have been marked "part heard". A

part heard matter is to be heard only by that same bench until the matter is

released from that category. It would result in absurd consequence if the

proceedings have to be reheard every time a member changes and thus the

proceedings before BIFR will go on indefinitely.

44. In view of the aforesaid discussion, we are of the view that on the

hearing held on 24.11.2009 and 30.11.2009 which took place before the

bench of BIFR, none of the petitioners objected to the constitution of the

later bench. All the submissions were on record to be considered by the later

bench with due application of mind. The reasoning given in the order under

review is correct in holding that there would be nothing improper if a

request would have been made to the chairman of the BIFR to continue the

constitution of the earlier bench. Relevant paragraph of the order under

review is reproduced below:

"40. It needs mention here that when a different Bench consisting of the Chairman and Mr. Malhotra, Member took up the hearing of the

proceedings under Section 18(3) on 24.11.2009, no objection was raised by the petitioners that the Bench should not continue with the hearing since the matter was earlier heard by a different Bench for a considerable period of time during which considerable arguments have been advanced. Mr. Nayar, as noted earlier, raised the point that it would be impossible or impractical for the litigant to object to the constitution of the Bench. It is true that under Section 12(2) of the SICA, it is the rerogative of the Chairman to constitute the Benches. However, there would be in our view nothing improper if a request is made in a given case to the Chairman of the BIFR to continue the constitution of the earlier Bench, if the parties agree that considerable progress has been made in the case before the earlier Bench. We do not think that the Chairman of the BIFR would have been so unreasonable as to reject such a request, if jointly made by the parties. This does not in any case affect the prerogative of the Chairman to constitute the Benches. But in the present case no such request was made by the petitioners; if the matter had progressed and reached such an advanced stage that only the formality of winding-up the hearing remained, nothing prevented the petitioners from bringing this to the attention of the Chairman who, we do not doubt, would have certainly taken note of the same in the right spirit and perspective and passed appropriate orders. It is only because the proceedings had

not reached the stage of final arguments and were still at the stage of exchange of the pleadings, written submissions, clarifications, written objections, etc. that even the petitioners believed that the proceedings had not reached such a crucial stage that a change in the constitution of the Bench would have put them to prejudice. The later Bench consisting of the Chairman and Mr. Malhotra continued the proceedings and it was before this Bench that considerable progress was made not only in the completion of the exchange of papers, written submissions, written objections, etc. but also in the matter of oral arguments and this Bench also issued directions to the parties to react to the supplementary report filed by the OA and once the reaction of the parties was brought on record in writing, directed the OA to submit its reply, which completed the proceedings. All this was done from 24.11.2009 to 07.12.2009 and on 09.12.2009 the orders were pronounced by the BIFR. Thus there was no breach of the rules of natural justice."

45. With regard to the contention of Mr. Sinha that the workers were not

heard on 24.11.2009 and 30.11.2009, which implies that adequate

opportunity was not granted to the workers, the order of the BIFR dated

30.11.2009 states that, several hearings were held and adequate opportunities

were given to all parties including the three proposers and workers on their

point of view on the rehabilitation of the company. The relevant paragraph of

the order is as reproduced below:

"2.10 The bench observed that several hearings were held and adequate opportunities were given to all concerned including three proposers, the workers and the company to present their point of view on rehabilitation of the company. The bench also observed that as per the directions issued in the hearing held on 24.11.2009 the three proposers have not furnished information in respect of item (ii) number of workers to be retrenched and (ix) policies of the respective Governments to the OA (SBI) and BIFR to indicate that there is likelihood of the reliefs being approved."

46. Even if the workers were not heard by the later bench of BIFR, no

such grievance was made before the bench of the BIFR on 30.11.2009 on

which date the bench announced that it will deliver its final order on

09.12.2009. Such an objection is not maintainable at this belated stage to set

the clock back.

47. With regard to the argument that Mr Kirti Uppal, Senior Advocate

was never engaged or authorized by Incab Industries as erroneously recorded

in the order under review. Even if it is so, it does not affect the outcome of

the preliminary objection raised by the petitioners.

48. Reliance was placed on the decision of the Supreme Court in Kamlesh

Verma v. Mayawati: (2013) 8 SCC 320. Relevant portion of the judgment is

reproduced below:

"20.1 When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki: AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors. (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors. JT 2013 (8) SC 275.

20.2 When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.