JUDGMENT 1. The petitioners in the instant writ application have, inter alia, questioned the vires of a Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as 'the said Ace) as amended in the year 1991. 2. It is not disputed that the main Act is a valid piece of legislation. 3. By reason of the Amending Act of 1991 as contained in Annexure 'H' to the writ application, the words "does not include Government Companies as defined in Section 617 of the said Act" in Section 3(d) of the said Act have been omitted. 4. The principal ground of challenge of the said amendment appears to be that thereby the right of the workers-who work in a Government Company would be infringed. 5. The contention raised in this application also is that the said Amending Act is violative of Article 39(b) and (c) of the Constitution of India. 6. The principal submissions of Mr. Dutta, the learned Counsel, appearing on behalf of the writ petitioner, are :- 1. The said Act is contrary to the national interest in so far as it violates industrial policy declared by the Central Government. 2. By reason of this Act, the Central Government seeks De-nationalise Public Sector Companies and thus the same is violative of directive principles of the Constitution as contained in part-IV thereof. 3. Such De-nationalisation cannot take place without the authority of the parliament as, such nationalisation has taken place under a statute. 4. Disinvestment of Public Companies is violative of laws being against the expressed provisions of the Memorandum and Article of Association of such Companies. 7. On or about 24.7.1991 the Central Government announced its Industrial Policy in respect whereof a series of incentives namely, (a) Industrial licence, (b) Foreign investment, (c) Foreign agreements, (d) Public Sector Policy, (e) MRTP Act. were to be taken. As regards the Public Sector Undertakings the Government allegedly recognised the role played by it in the development of national economy and in preventing concentration of economic power reducing regional disparities and ensuring that plan development sub-serves the interest of the Company. However, it also cited various factors like insufficient growth in productivity, power management like research and development as being responsible for a low rate of return in Public Sector Undertakings and proposed several fresh initiative. However, it also cited various factors like insufficient growth in productivity, power management like research and development as being responsible for a low rate of return in Public Sector Undertakings and proposed several fresh initiative. inter alia, for creating a social mechanism to project interest of the workers likely to be affected by such rehabilitation package. It also announces that a part of the Government shareholding in the private making Public Sector would be offered to the public. 8. It is not disputed that the Sick Industrial Companies (Special Provisions) Act, 1995 which came into force in the year 1986 is a beneficent piece of legislation. By reason of the provisions of the said Act mechanism has been laid down for revival of the Sick Companies so declared. The said Act prior to the impugned amendment did not apply to the Government Companies. 9. As indicated hereinbefore by reason of the impugned amendment Section 3 has been amended as a result whereof the Government Companies are also brought within the purview of the said Act. 10. It is now well known that a provision can be declared unconstitutional only if the same is violative of fundamental rights as contained in Part-III or other provision of the Constitution of India. 11. Part-IV of the Constitution of India which provides for the directive principles of State although may be read with Part-III of the Constitution of India, but it is now well known that no Act can be declared ultra vires only because the same is contrary to and inconsistent with the directive principles in State Policy. 12. In (I) Deep Chand & Ors. v. The Stale of Uttar Pradesh & Ors. reported in AIR 1959 SC 648 , the apex Court states :- "We do not see any relevancy in the reference to the directive principles; for, the legislative power of a State is only guided by the directive principles of State Policy. The directions, even if disobeyed by the State, cannot affect the legislative power of the State. as they are only directory in scope and operation". 13. In (2) Fram Nusserwanji Balsara v. State of Bombay & Anr. reported in AIR 1951 Bombay 210, the law has been stated thus:- "Now Section 37 of the Constitution provides that the directive principles are "fundamental in the governance of the Country" but are not enforceable by any Court. as they are only directory in scope and operation". 13. In (2) Fram Nusserwanji Balsara v. State of Bombay & Anr. reported in AIR 1951 Bombay 210, the law has been stated thus:- "Now Section 37 of the Constitution provides that the directive principles are "fundamental in the governance of the Country" but are not enforceable by any Court. They are in the nature of instrument of instructions which both the Legislature and the executive are expected to respect and to follow, but they do not confer any Legislative competence on a Legislature in respect of any matter over which it has no competence". 14. It is further well known that the directive principle can be enforced subject to the limitation of the State. 15. The impugned Amending Act which is said to violate Article 39(b) and (c) of the Constitution of India. Article 39(b) and (c) stated thus : "(a) …. ……….. ……… ……….. ……. (b) that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment". 16. It is difficult to hold that steps taken to revive a Sick Company, the benefit whereof may be reaped by all concerned is inconsistent with the provisions of Article 39(b) and (c) of the Constitution. In fact the said Act was enacted to give effect to the said principles. 17. Socio-economic Justice which is the ideal of a welfare state depends upon various factors although such a policy decision may be taken by the State in furtherance of the objects as enshrined under Part-IV of the Constitution of India but the situation may vary from case to case. 18. The said Act sufficiently lays down various safeguards and guidelines. It may be noted that the contention of the petitioners is not that the said Amending Act is ultra vires Article 14 of the Constitution of India. 19. It has to be borne in mind that the interest of the workmen whom the petitioners seek to represent must be viewed in circumstantial flexibility. It may be noted that the contention of the petitioners is not that the said Amending Act is ultra vires Article 14 of the Constitution of India. 19. It has to be borne in mind that the interest of the workmen whom the petitioners seek to represent must be viewed in circumstantial flexibility. Although their rights, if any, under different welfare legislations may have to be implemented but the same does it mean that no attempt should be made to revive a Sick Company which may or may not ultimately lead to retrenchment or termination of service of the workmen is necessarily an anti-workmen legislation. The answer of this question, in my opinion, must be rendered in negative. 20. Reliance placed by Mr. Dutta upon (3) Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India & Ors. reported in 1981(1) Supreme Court Cases page 568 cannot be said to have any application in the context of the present case. 21. In the said decision some plants were being sold. The Apex Court held that sale of public property should be held in public interest. In the facts of that case it was held that the action of the company was not mala fide, unjust or unfair. It was further held that the workmen had no locus standi to maintain the said application as their fundamental rights have not been infringed. In this case also, neither the fundamental right of the petitioners or any of the employees have been infringed by reason of the Amending Act itself. It may also be noticed that in that case the Supreme Court was dealing with a tender matter. 22. Similarly, the decision of the Supreme Court in (4) Union of India & Ors. v. Hindustan Development Corpn. & Ors. reported in AIR 1994 SC 988 was rendered absolutely in a different fact situation. 23. There cannot be any doubt as has been submitted by Mr. Dutta relying on the decision of the Supreme Court of India in (5) His Holines Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. reported in 1973 (4) SCC. & Ors. reported in AIR 1994 SC 988 was rendered absolutely in a different fact situation. 23. There cannot be any doubt as has been submitted by Mr. Dutta relying on the decision of the Supreme Court of India in (5) His Holines Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. reported in 1973 (4) SCC. 255 and (6) Commissioner of Wealth-Tax, Gujrat v. Vimlaben Vadilal Mehta reported in AIR 1984 Supreme Court 302 that a fundamental right may be read together with the directive principles in order to enforce the directive principles but that does not mean that even an artificial construction shall be put so as to bring within its scope a legislation which does not infringe the directive principles at all. 24. In (7) Sadhuram Bansal v. Puiin Behari Sarkar reported in AIR 1984 Supreme Court 1471: 1984 (3) SCC 410 , the Apex Court was considering an absolutely different situation. In that case a property was sought to be sold with the approval of the official receiver appointed, as the concerned parties appear to have been exasperated. The concept of social Justice came up for consideration in that case and in that situation, it was stated :- "In our opinion, there appears to be some mis-apprehension about what actually social Justice is. There is no ritualistic formula or any magical charm in the concept of social Justice. All that it means is that as between two parties if a deal is made with one patty without serious detriment to the other, then the Court would lean in favour of the weaker section of the society. Social Justice is the recognition of greater good to larger number without deprivation of accrued legal rights of any body. If such a thing can be done then indeed social Justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party." 25. But in my opinion bringing the Government Companies within the purview of the said Act does not militate against the principles of social Justice. The ideas and idealisms of social Justice cannot be implemented in vacuum. It has to be implemented if an appropriate case is made out therefor. But in my opinion bringing the Government Companies within the purview of the said Act does not militate against the principles of social Justice. The ideas and idealisms of social Justice cannot be implemented in vacuum. It has to be implemented if an appropriate case is made out therefor. Furthermore a parliamentary Act cannot be held to be unconstitutional on a hypothesis that thereby concept of social Justice cannot be given effect to. Constitutionality of an Act has to be considered only in the context of Constitutional provisions and not on the basis of philosophy of some citizens. 26. It has to be borne in mind that a profit making Government Company would not come within the purview of the Sick Industries. Before the provisions of the said Act can be implemented, an industry has to be a Sick Industry and declared as such. Once an industry is declared a Sick Industry it receives various benefits under the said Act as for example the benefits laid down under Sections 22 and 23 thereof. 27. The said Act was enacted, to make in public interest, special provisions with a view to securing the timely deduction of sick and potential Sick Companies Industrial Undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such Companies and the expeditious enforcement of the measures so determined and for matters connected therewith or unconstitutional thereto. 28. Section 2(2) of the said Act itself provides that the same had been enacted for giving effect to the policy of the State towards securing the principles vis-a-vis Clauses (b) and (c) of the Article 39 of the Constitution. The Act provides for establishment of the Board, composition of the appellate authority the proceedings before the Board and the appellate authority. In terms of Section 14 of the Act the said proceedings are deemed to be judicial proceedings and the said authorities are deemed to be the Civil Courts for the purpose of Section 195 of Chapter 26 of the Code of Criminal Procedure, 1973. 29. In terms of Section 14 of the Act the said proceedings are deemed to be judicial proceedings and the said authorities are deemed to be the Civil Courts for the purpose of Section 195 of Chapter 26 of the Code of Criminal Procedure, 1973. 29. Section 15 of the Act provides for reference of the Board for determination of the measures which shall be adopted with respect of the company in the event the Board of Director of the Company within 60 days from the date of finalisation of the detailed audited accounts of the company for the financial year at the end of which the company has become a Sick Industrial Company. Sub-section (2) provides for power to the Central Government, Reserve Bank, State Bank or a public financial institution to make such reference. Proviso appended to sub-section (2) of Section 15, however, imposes certain restrictions. Section 16 of the Act provides for making of an enquiry into the working of the Sick Industrial Companies. 30. Section 17 empowers the Board to make suitable order on the completion of enquiry. In terms of Section 18 a scheme has to be prepared for any or more of the measures enumerated therein. 31. Section 19 provides for rehabilitation by giving financial assistance. 32. Section 19A provides for any financial assistance by way of loans etc., before completion of the enquiry under Section 16 in certain circumstances. 33. In the event of a Sick Industrial Company has to be wound up, the opinion of the BIFR and the AIFR, if any, are to be forwarded to the High Courts for its opinion and it is only the High Court which can order winding up of the Sick Industrial Company in accordance with provision of the Companies Act. 34. The provision of the said Act as briefly noticed hereinbefore, cannot be said to have conferred, unfettered discretion in favour of the BIFR or AIFR. The Sick Government Companies would also be governed by the provisions of the said Act. 35. In (8) Premium Granites & Anr. v. State of Tamil Nadu & Ors. reported in AIR 1994 SC 2233 the Supreme Court, inter alia, held that while some orders are required to be passed in public interest or in the interest of Mineral Development, sufficient guidelines must be held to have been provided under the Act itself. 35. In (8) Premium Granites & Anr. v. State of Tamil Nadu & Ors. reported in AIR 1994 SC 2233 the Supreme Court, inter alia, held that while some orders are required to be passed in public interest or in the interest of Mineral Development, sufficient guidelines must be held to have been provided under the Act itself. As indicated hereinbefore the said Act has been enacted in public interest. In case a Government Company becomes a Sick Industry, the procedures adopted by it for its revival by framing a scheme and/or by its winding up, would depend upon facts and circumstances of each case and as noticed hereinbefore, such decision is required to be arrived at in various proceedings including that of the High Court. It is, therefore, not correct to contend that the Act does not contain any guideline. In fact as indicated hereinbefore the profit making companies cannot be declared to be a Sick Company. 36. Reliance placed by Mr. Dutta upon the decision of the Supreme Court of India in (9) D.S. Nakara v. Union of India reported in AIR 1983 SC 130 , is wholly misplaced. 37. In D. S. Nakara's case (supra) the Supreme Court merely said that cut off date cannot be fixed arbitrarily. The said decision, therefore, has no application to the facto of the present case. In any event the aforementioned decision has been distinguished by Supreme Court of India in many latter cases. As indicated hereinbefore, the Amending Act does not take away the socialistic feature of the Constitution. 38. So far as the submission of Mr. Dutta to the effect that by reason of such amendment, nationalised units would be De-nationalised is concerned, the same is stated to be rejected. All Government Companies do not come into being by reason of a Nationalisation Act. It is true in Hind Cycles Limited and Sen Raileigh Ltd. (Nationalisation) Act, 1980, the properties of the said owners were to vest in the Central Government in terms of Sections 3 and 4 thereof but Section 6 of the said Act itself provides for power of the Central Government to direct vesting of the undertakings of the said companies in two Government Companies. Such Government Companies were not required to be created under the aforementioned Act. 39. The submission of Mr. Such Government Companies were not required to be created under the aforementioned Act. 39. The submission of Mr. Dutta to the effect that by reason of such Nationalisation Act the employees would become holders of a status is not wholly correct. Only when the properties remained vested in the Central Government, the employees of Nationalised Companies became employees of the Central Government but as and when such estate of Nationalised Companies are vested in the Government Companies the employees of the Government Company by reason of being employees of Government Company. They do not enjoy the said status nor can they claim any protection as regards services in terms of Part-XIV of the Constitution of India. Furthermore even such Government Companies may not be State within the meaning of Article 12 of the Constitution of India and in that view of the matter their conditions of services would be governed under general statutes. In a case where the Government Company is a State within the meaning of Article 12 of the Constitution of India, Part-III of the Constitution of India shall be applicable in such cases. This Court is not concerned with any of such cases at the present juncture. Furthermore no such case has been made out that the right of any such workman has been put to jeopardy nor any relief has been and/or would be claimed in that regard in the writ application. Petitioner No.1 is an association and other petitioners are employees of 'various Government Companies. They do not allege infringement of any of their fundamental rights nor any argument has been advanced to demonstrate as to how their fundamental rights, if any, are infringed by reason of the impugned Act. 40. Furthermore the respective Government Companies having not been impleaded as parties in the writ application and thus such a question cannot be decided in the present writ application. 41. Mr. Dutta submits that even after the amendment, the Government Companies do not come within the provision of the Act. The said submission, in my opinion, is not correct and is misconceived Section 3(d) as it now stands defines 'Company' as meaning a Company defined in Section 3 of the Companies Act. Section 3(1)(i) of the Companies Act means a Company formed and registered under the said Act. The said submission, in my opinion, is not correct and is misconceived Section 3(d) as it now stands defines 'Company' as meaning a Company defined in Section 3 of the Companies Act. Section 3(1)(i) of the Companies Act means a Company formed and registered under the said Act. A Government Company as defined under Section 617 of the Companies Act is also a Company formed and registered under the Indian Companies Act. Section 617 merely states that in such Government Company not less than 51 persons of the paid up share capital would be held by the. Central Government or by any Stale Government or Governments or partly by the Central Government and partly by one or more State Governments are includes a Company which is a .subsidiary of a Government Company. 42. A Government Company as defined under Section 617 of the Companies Act, therefore, remains a company as defined under Section 3 thereof. Section 3 is the genus of which Section 617 is a special. 43. So far as the other submissions made by Mr. Dutta are concerned, the same cannot be gone into in this writ application inasmuch as such questions can be decided only in a given case and not on the basis of any hypothesis. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot declare a statute unconstitutional only on surmises and conjectures. Factual foundation must be laid down therefor. The onus to prove that a statute is unconstitutional lies upon the petitioners. In the instant case the petitioners have failed to discharge the said onus. 44. If in a given case as has been submitted by Mr. Dutta as also Mr. Roy Chowdhury the learned Counsel appearing on behalf of the aided respondent that there exists a prohibition for sale of share to the public, such objection may be taken as and when occasion arises therefor. Moreover in a proceedings before the BIFR or AIFR, all concerned parties including the workmen can be heard. 45. What action in such a situation can be taken must be left with the statutory functionaries. If the authorities under the said Act find that there exists insurmountable difficulties in preparing a sanctioned scheme, they may not do it and in such case the Company may be directed to be wound up. 46. 45. What action in such a situation can be taken must be left with the statutory functionaries. If the authorities under the said Act find that there exists insurmountable difficulties in preparing a sanctioned scheme, they may not do it and in such case the Company may be directed to be wound up. 46. The submissions to the effect that the Government cannot deal with the resources of the nation recklessly or irresponsibly is again a matter which must be specifically raised in the writ application. 47. So far as the submission of Mr. Dutta to the effect that in the case a Company is privatised, the rights of the worker would be violated cannot be decided in this writ application inasmuch as no such case has been made out. 48. Mr. Roy Chowdhury, the learned Counsel, appearing on behalf of the added respondents submitted that the cases of the added respondents amongst others are pending before BIFR. Mr. Roy Chowdhury's client has merely been permitted to intervene in the writ application. As an intervenor he cannot have a right higher than the rights of the writ petitioners. An intervenor cannot obtain a relief which cannot be granted to the writ petitioner nor by reason of an addition of party, the scope of the writ application can be enlarged. If the added parties have any grievance in relation to the functioning of the BIFR. they may take such action as is permissible in law and may raise their grievances before an appropriate forum. 49. Furthermore, BIFR is merely a recommending authority. As-against its order an appeal lies to AIFR. As indicated hereinbefore for the purpose of winding up of a company, the matter has to be referred to the High Court for its opinion and in all such proceedings, the affected parties may raise their grievances which have to be considered in their proper perspective. For the reasons aforementioned, I do not find any merit in this application which is accordingly dismissed but in the facts and circumstances of this case there will be no order as to costs.