JUDGMENT
Vijender Jain, J.
1. This petition has been filed aggrieved by, the order passed by the AAIFR dated 31st December, 2001. The petitioner company had filed a second reference on the basis of audited accounts for the year ending 31st March, 2000 which was registered with BIFR at serial number 194/2001 dated 24th May, 2001. The said reference was dismissed in liming vide order dated 27th August, 2001. Aggrieved by said order an appeal was filed by the petitioner before AAFIR which was also dismissed by order dated 31st December, 2001 which is impugned in this writ petition.
2. Prior to the said reference, another reference was filed by the petitioner company on the basis of the accounts up to 30th September, 1996. The BIFR on the said reference had declared the company sick, vide orders passed on 23rd June, 2000. Respondent No. 2/State Bank of India and respondent No. 3/Punjab National Bank filed an appeal before the AAIFR and AAIFR on 17th April, 2001 set aside the order of the BIFR. Aggrieved by the said order of the AAIFR, the petitioner preferred a writ petition in this Court being Civil Writ Petition No. 1916/2002 which was decided on 4th October, 2004. In the impugned order passed by the AAIFR on the second reference of the petitioner company, reliance was placed by the AAIFR on its order dated 17th April, 2001 which was set aside in the Civil Writ Petition No. 1916/2002 by order dated 4th October, 2004, it would be relevant to refer the observation made in the said order. Para 11 of the said order dated 4th October, 2004 is as under :-
“11. There is no finding on the basis of the Report of the Chartered Accountants appointed by the Operative Agency that the accounts were doctored or manipulated. A statement with regard to the provisions made by the petitioner was admitted by the financial institutions which is reflected from para 13 as above. In the circumstances, on what basis AAIFR has come to the conclusion that accounts were manipulated or doctored. AAIFR was not justified in coming to the finding that the accounts were doctored or manipulated said observation reflects sheer non-application of mind, reversal of the finding of BIFR that accounts were not doctored and fictitious and only had a discrepancy make the finding of AAIFR on the matter perverse and illegal. The law is well-settled. The Appellate Authority could not come to its own conclusion bereft of material before the BIFR and considerations of the record of the court of first instance. In the absence of any finding on the basis of the Report of the Chartered Accountants appointed by the OA itself that the petitioner’s accounts were manipulated or doctored, the finding of the AAIFR that the accounts were manipulated, cannot be sustained in the facts and circumstances and in law. To that extent the order of AAIFR is bad in law and is set aside. We quash the order with regard to the finding about manipulation in accounts by AAIFR which was without taking into consideration the entire and relevant portion of the Report of Chartered Accountants M/s Ray & Ray Company. The report of M/s Radbin Consultants has to be considered by BIFR. We remand the matter back to the BIFR to decide in accordance with law, after taking into consideration M/s Radbin Consultants Report. In view of the stand of the respondent that pursuant to the order passed by this Court, the financial institutions have considered the report and rejected the same cannot stand to reason on the basis of arguments advanced before us. We held that consideration of the M/s. Radbin Consultants report on the basis of finding of AAIFR regarding doctored documents by financial institution was not proper consideration. The contention of the respondents that M/s. Radbin Consultants report which was obtained by OA itself pursuant to the order of the BIFR, which in the opinion of the respondents is not material, is specifically rejected as question of sickness and the unit’s feasibility for rehabilitation and revival are the objectives of SICA. Section 16 and Section 17 cannot be read in a compartmentalised manner and they have to be read to achieve the main object of the Act that if an industrial unit is sick and whether it is possible to rehabilitate it or not. BIFR shall be entitled to consider the reasons of sickness as expounded in that report. We also make it clear that any expression on the merit of the case will not come in the way of BIFR to pass any order in the facts and circumstances and in accordance with law.”
3. Therefore the very basis on which the impugned order was passed, has been set aside in the Writ Petition No, 1916 of 2002. We need not go into details of said order dated 4th October, 2004 in Civil Writ Petition No. 1916/2002. Pursuant to the said order, the matter has been referred back to BIFR in terms of the directions passed in the aforesaid Writ Petition. That order has not been challenged by any of the parties and thus has become final.
4. Now two questions remain to be answered which are raised before us by the petitioner impugning the order dated 31st December, 2001. The two questions are :-
(1) Whether the petitioner industry had ceased to be an industrial undertaking? and
(2) Whether the second reference was barred by limitation?
5. Mr. Arvind Nigam, learned counsel appearing for the petitioner, has vehemently contended that the finding of the AAIFR that the company is not an industrial company is based on conjunctures and surmises and misreading of provision of law. It has been contended that the Joint Director of Madhya Pradesh Government vide its letter dated 24th July, 2001 at page 532 of the paper book has given the certificate to the following effect:-
“M/S KUSUM INGOTS. & ALLOYS LIMITED situated at Pithampur, Distt. Dhar, M.P. is a factory registered under the Factories Act, 1948. The Factory is not in operation since December-1996. Management is regularly applying for renewal of license every year with intention to restart the operation. The Factory is duly licensed till year-2001. The Management of the Company has not declared permanent closure of the unit to this office. It continues to hold license being an industrial unit.
Sd/-
(R.M. Dhoukse)
Joint Director,
Industrial Health & Safety,
Government of M.P.,
Indore Zone, Indore.”
6. It was also contended that Officer of the Labour Commissioner in response to the letter by the petitioner had observed and indicated that certain laborers were employed by the petitioner. Letter from the office of labor commissioner, Government of Madhya Pradesh, Indore dated 21st August, 2001 addressed to the petitioner at page 534 of the paper book is reproduced as under :-
“Ref: 206/27/Three/2001/23569
INDORE,
Dt. 21.08.2001
To,
The Manager,
Kusum Ingots & Alloys Ltd.
PITHAMPUR.
Sub: Your letter dated 30 July 2001
With reference to the captioned subject, your matter has been examined. In that regard, it is informed that permanent labour/regular workers and temporary workers/casual workers have been defined under the Standing Orders in the Industrial Employment Act 1961. As the labourers mentioned in your letter dated 30.07.01 have been employed as permanent labourers and there have been relationship of employer and employee, though they have attended less days in the month, they will fall under the category of permanent/regular workers as per the Standing orders. Copy of your application dated 30.07.2001 is enclosed with this letter.
Sd/-
Addl. Labour Commissioner,
Madhya pradesh, Indore
Encl: As above.”
7. The said letter was in reply to the letter by the petitioner dated 30th July, 2001 intimating about the visit of Labour inspector, Pithampur under the Minimum wages Act, 1948 on 25th January, 2001 and verifying that 53 workers including the security staff were standing outside the gate of the plant. In the inspection note of the labour inspector which was sent by the petitioner along with letter dated 30th July, 2001, it was mentioned that the labour was not allowed to go inside the plant as the plant was in possession of the Court Receiver, Bombay High Court. Labour inspector had also verified the attendance cards and salary slips and had signed the attendance register. It would be relevant to quote two paras of the said letter written to the Labour Commissioner dated 30th July, 2001 which is at page 535 of the paper book. The relevant paras are as under:
“The Labour Inspector, Pithampur under the Minimum Wages Act, 1948 visited the plant on 25.01.2000 (copy of Inspection Note enclosed) and verified 53 workers including security staff standing outside the main gate of the plant. He has further mentioned in its Inspection Note that the labourers were not allowed to go inside the plant as the plant is in the possession of Court Receiver, Bombay High Court, Bombay n terms of High Court’s order. The Labour Inspector have also verified the Attendance Cards and the salary slips and have signed the Attendance Register after verification.
Company have deposited ESIC & PF amount for the workers engaged by the company for carrying out repairs and maintenance. Copies of the challans being proof of payment to the Treasury are enclosed for your reference and record.
In view of the foregoing, it is humbly requested to kindly clarify whether the labourers employed by the Company for carrying out the repairs and maintenance at the steel plant at Pithampur, presence of whom have been even verified by the Labour Inspector, PF & ESIC for whom have been deposited and who have reported for work for 10 to 23 days will fall under the category of “regular workers” under the Act or not.”
8. It was contended that in relation to these employees who were 53, provident fund dues for the relevant period were paid, as would be evident from the certificate issued with the authorities which are from pages 539 onwards of the paper book. At page 539 is a copy of challan for deposit of employees provident fund for January, 2000. It was also contended that at pages 540 & 541 of the paper book are other documents pertaining to the employees provident fund. Similarly pages 542 to 546 are attendance registers in relation to certain workers which have been placed before us to show that all these materials were before the AAIFR, showing that the workmen were employed in the industry of the petitioner. Mr. Nigam has also placed reliance on the observation of the AAIFR in paragraph 25.
9. On the basis of the said observation of the AAIFR, it was contended before us that AAIFR in paragraph 25 has held that if the losses sustained by the petitioner are accepted as genuine, the accumulated losses exceeded net worth of the company as on 30th September, 1997, on other hand it has been held that the company ceased to be an industrial undertaking in terms of the Section 3(1)(e) of the Sick Industrial Companies (Special Provisions) Act, 1985, therefore, the findings of the AAFIR are not proper and correct. It was contended that at the instance of the State Bank of India, Court Receiver in relation to the company was appointed by the Bombay High Court on 29th September, 1997. However, the petitioner filed a Special Leave Petition before the Supreme Court and that order of appointment of Court Receiver by the Bombay High Court was stayed by the Supreme Court by order dated 30th March, 1998. However, in spite of stay granted by Supreme Court, receiver has not handed over the factory to the petitioner till date.
10. On the basis of the aforesaid factual matrix of the matter, it was contended before us that once the Court Receiver had taken over the plant of the company, the petitioner was not allowed to run the plant nor the petitioner had any control over the plant. On the basis of the aforesaid letters, it was contended that for all intent and purposes, the petitioner was interested in running its plant but for the reasons stated above, the Court Receiver has not permitted running the plant of the petitioner. 53 workers were in employment and they were paid wages and their provident fund was also deposited by the petitioner.
11. Lastly, it was contended with regard to the second reference being time barred that same was not so. On the first reference filed by the petitioner, the BIFR had declared the petitioner company sick by order dated 23rd June, 2000. Aggrieved by the said order, the respondent No. 2 and 3 filed an appeal before the AAIFR and AAIFR by order on 17th April, 2001 set aside the order of the BIFR. Against the order dated 17th April, 2001 dismissing the first reference of the petitioner, a Writ Petition was preferred in this Court being Civil Writ Petition No. 1916/2002. It was contended that when the appeal from first reference was decided by the AAIFR on 17th April, 2001 whereby the order passed by BIFR was, set aside, the second reference could not be filed before 17th April, 2001 and therefore the second reference made by the petitioner on 8th May, 2001, i.e., after three weeks of the order passed by the AAIFR was without any delay on the part of the petitioner and second reference was not barred by time before the BIFR. Counsel for the petitioner, thus contended that the second reference was maintainable and not time barred. Counsel for the petitioner also placed reliance on the Division Bench Judgment of this Court in Madhumilan Syntex Ltd. v. AAIFR and Ors. in Civil Writ Petition No. 6266/2000 decided on 19th October, 2000.
12. On the other hand, Ms. Maneesha Dhir, learned counsel appearing for respondent No. 2/SBI has contended that from 1st April, 1997, the company has not employed any worker and in that view of the matter, the petitioner was not an industrial undertaking within the meaning of the Act. Learned counsel for the respondent placed reliance on Section 3(1)(e),. (f) and (n) of the Sick Industrial Companies (Special Provisions) Act, 1985 as under:-
“3(1) In this Act, unless the context otherwise requires :-
(e) “Industrial company” means a company which owns one or more industrial undertakings;
(f) “Industrial undertakings” means any undertaking pertaining to a schedule industry carried on in one or more factories by any company but does not include-
(i) an ancillary industrial undertaking as defined in clause (aa) of Section 3 of the Industrial (Development and Regulation) Act 1951 (65 of 1951); and
(ii) a small scale industrial undertaking as defined in clause (i) of the aforesaid Section 3.
(n) “Scheduled industry” means any of the industries specified for the time being in the First Schedule to the Industries (Development and Regulation) Act 1951 (65 of 1951).”
13. On the basis of the definition of industrial company as occurring in Section 3(1)(e) and 3()(f), it was contended that words and expression used and not defined under the Sick Industrial Companies (Special Provisions) Act, 1985 or the Company Act shall have the meaning, assigned to them in the Industries (Development and Regulation) Act, 1951. It was contended that Section 3(c) of the Industries (Development and Regulation) Act, 1951, defines the word ‘factory’ as under:-
“3(c) “Factory” means any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on:-
(i) with the aid of power, provided that fifty or more workers are working or were working thereon on any day of the preceding twelve months; or
(ii) without the aid of power, provided that one hundred or more workers are working or were working thereon on any day of the preceding twelve months and provided further that in no part of such premises any manufacturing process is being carried on with the aid of power.”
14. It was contended by Ms. Dhir that there should have been 50 workers working in the factory of the petitioner so as to become an industrial undertaking. She contended that the petitioner did not have 50 workers and, therefore, no fault can be found with the finding of the AAIFR that the petitioner was not an industrial undertaking. Repelling the contention of the counsel for the petitioner that more than 50 workers were employed by the petitioner, it was contended by the respondents that as per the pleadings in the writ petition and as per the SI Audit reports submitted by M/s. Ray and Ray at page 165 of the paper book, more than 50 workmen as alleged by the petitioner were not employed. Learned counsel for the respondent placed reliance on the submission made by the petitioner, before Special Investigative Auditor. It was contended that the petitioner company had closed its plant and retrenched all its employees in December, 1996 and the fact was known in February, 1997 when accounts were adopted by the Board. It was also contended that even in ‘Radbin’ Report at page 357, the level of employment had been shown as none and similarly at page 359 in Radbin Report in paragraph 4.01 it has been stated that :-
“Due to the closure of the unit, all the employees that include managerial, administrative, technical staff and workmen left the company and hence the day to day operations of the unit does not arise. Presently, a skeleton staff headed by a General Manager (Finance) is on the role of the company, who deals in ‘the present business affairs of the company under the guidance of the Board.”
15. On, the basis of the aforesaid submission, it was contended by counsel for respondent No. 2 that the finding arrived at by the AAIFR at paragraph 32 of the impugned order is correct and legally tenable. It was contended that no reliance can be placed on any letter of the Labour Commissioner, Government of Madhya Pradesh or from the Department of Industry, Government of Madhya Pradesh. It was contended by learned counsel for respondent No. 2 that as per the audited balance sheet which was submitted by the petitioner, it would be seen that for relevant year the petitioner has shown an expense of Rs. 1,56,544/- as payment made to the employees. Therefore, it was contended that such a meager payment would show that the stand of the petitioner that the petitioner had employed more than 50 workmen at the site, was not correct. It was contended by the counsel for the respondent No. 2 that after taking possession by the Court Receiver of the plant, attempts were made by the Court Receiver for finalizing the agency arrangement which would have resulted in proper maintenance of the plant and would have facilitated some recovery for the dues of the Banks/financial institutions. The petitioner company, however, made all attempts to frustrate the initiatives. The petitioner Company on one hand had expressed willingness to act as agents of Court Receiver and on the other hand it chose to approach the Supreme Court and sought stay on the appointment of Court Receiver. In this connection, the letter of the respondent to the petitioner dated 9th May, 2001 and on similar line retreating same stand on 28th January, 2002 filed along with the counter affidavit of the respondents has been relied on.
16. On the basis of the aforesaid submission, it was contended by the learned counsel for respondent No. 2 that there were no manufacturing activities in the industrial undertaking of the petitioner and the petitioner had not employed 50 workmen or more as per the requirement of a ‘factory’ to attract the provision of the Sick Industrial Companies (Special Provisions) Act, 1985 and, therefore, has supported the finding of the AAIFR.
17. Mr. Rakesh Kumar Singh, counsel appearing for Punjab National Bank has adopted the arguments of the counsel for State Bank of India. In addition to the aforesaid arguments, it was contended that the letters produced by the petitioner at page 532 and 534 and thereafter documents showing payment of Provident Fund dues or getting the renewal of license would not show that the petitioner company was involved in any manufacturing activity. From none of the document it could be ascertained that the company was having any manufacturing activities. Therefore, it was contended that the AAIFR has rightly ignored these letters as no significance could be attached to these documents placed on record by the petitioner before the AAIFR nor it could be inferred that it was a ‘factory’ as contemplated under Industries (Development & Requisition) Act, 1951. It was also contended by Mr. Singh that at page 499 of the paper book in the impugned order, the contention of the petitioner has been recorded and the petitioner himself has admitted that the manufacturing of the company had been temporarily closed because of adverse market conditions and financial difficulties and not permanently. It was also contended that in the Writ Petition it is admitted by the petitioner that the petitioner unit is lying closed. It was contended by learned counsel appearing for respondent No. .3 that as far as limitation is concerned, the plea of the petitioner that they could not have filed the second reference earlier will not extend the period of limitation and, therefore, it was contended that while exercising jurisdiction under Article 226 of the Constitution of India, the Court will not upset the finding of the Appellate Tribunal which had taken into consideration all the relevant factors.
18. Ms. Mathur, learned counsel appearing for respondent No. 3 has also adopted the arguments of Ms. Dhir.
19. We have given our careful consideration to the arguments advanced by learned counsels appearing for all the parties. Let us first deal with the impugned order insofar as it deals with the petitioner company not being an industrial undertaking in terms of the Sick Industrial Companies (Special Provisions) Act, 1985. Section 3(1)(e) of the Sick Industrial Companies (Special Provisions) Act, 1985 defines an “industrial company” means a company which owns one or more industrial undertakings. Section 3(1)(f) of the Sick Industrial Companies (Special Provisions) Act, 1985 defines “industrial undertakings”. It means any undertaking pertaining to a scheduled industry carried on in one or more factories by any company but does not include an ancillary industrial and a small scale industrial undertaking. Section 3(1)(n) of the Sick Industrial Companies (Special Provisions) Act, 1985 defines “scheduled industry”. A scheduled industry means any of the industries specified for the time being in the First Schedule to the Industries (Development and Regulation) Act, 1951. Let us consider the definitions of the word ‘factory’ as occurring in the Industries (Development and Regulation) Act, 1951. Section 3(c) of the Industries (Development and Regulation) Act, 1951 defines ‘factory’ which means any premises including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on. .From the plain language of the definition of factory, it postulates two contingencies. A factory is a premises from where a manufacturing process is being carried on or is ordinarily so carried on. The expression of two eventualities used in the definition clause of factory postulates that manufacturing process is on in the present context or manufacturing process is being carried on. So the subsequent part of the sentence ‘or is so ordinarily carried on’ used by the legislature envisages that even at present no manufacturing process is carried on but was ordinarily so carried on will fulfilll the requirement of a ‘factory’. Therefore, the arguments advanced by learned counsel for the respondents that if no manufacturing activities are on, the factory ceases to be a factory are fallacious. Entire argument of the respondents is based on the submission that manufacturing activity was not carried on. As a matter of fact, AAIFR construed these two different expressions used in the aforesaid Section to mean that manufacturing process must be on, which is not the intention of the legislature and it could not have been so because if a factory or an industrial undertaking for the purposes of the Sick Industrial Companies (Special Provisions) Act, 1985 is sick, it is possible that no manufacturing activity is taking place as in the instance case before us.
20. The same intention is discernible if we carefully and harmoniously read Sub-clause I of Section 3(c) of Industries (Development and Regulation) Act, 1951. The said clause also postulates two eventualities where with the aid of power, 50 or more workers are working or were working on any day of preceding twelve months. The second eventuality contemplated by Sub-clause(i) of Section 3(c) of the said Act after the word “or were working thereon on any day of the preceding 12 months” clearly demonstrates that there can be a factory where 50 workers were working in the past on any day of the preceding 12 months. Therefore, if harmonious construction of Section 3(c)(i) of the said Act is to be given then the first eventuality is that there must be manufacturing process carried on and 50 or more workers are working. In second eventuality, the manufacturing process was ordinarily carried on and 50 workers were working previously on any day of the preceding 12 months and that factory would also be a factory in terms of the said Act. Therefore, the finding of the AAIFR has completely ignored the harmonious interpretation of the aforesaid statute and has taken into consideration only one situation where manufacturing activity must be on and not the other contemplating manufacturing activity ordinarily so carried on any day of the preceding twelve months. If the unit is sick, its chances of non-functioning or non-manufacturing is greater.
21. The factory of the petitioner is with the Court Receiver appointed by the Bombay High Court, then how that industrial undertaking could be having any process of manufacturing? We have been told that till date in spite of the order of stay granted by the Supreme Court against the ‘appointment of Court Receiver, the possession of the industrial undertaking is with the Court Receiver who was appointed at the instance of respondent No. 2. In case, if a factory is running, it will be in consonance with first part of the definition where manufacturing activity is going on but if a factory is not running then to contend that the ‘factory’ must have 50 persons or more working, would make the second part of the definition of ‘factory'(or is ordinarily so carried on) totally redundant.
22. Law is not something abstract. It must deal with ground realities. A case where a Court Receiver is appointed from 1997 at the instance of the respondent No. 2, the plant being in the possession of the Court Receiver, even to assume that some workers must be working and carrying on manufacturing process would be adding burden on an already sick industry. This is apart from the documents which had been filed by the petitioner before the AAIFR with regard to the engagement of certain workers for maintenance of the plant or of the unit. The contention of the respondents that the reliance could not be placed on the report of the Labour Commissioner is also without any rational. The labor inspector had carried out the inspection under the Minimum wages Act and found 53 workers outside the plant who were not allowed entry in the plant by the court receiver. The labor commissioner acted on that report and held that such workers will fall under the category of permanent/regular workers as per standing orders. The AAFIR committed error in not considering the letter issued by the Additional Labor Commissioner, Madhya Pradesh, Indore. Joint Director Industrial Health & Safety also issued a certificate that the management of the petitioner had been regularly applying for renewal of license every year with the intention to restart the operation and the factory of the petitioner was duly licensed till year 2001. It was also noted by the Joint Director that the petitioner had not declared permanent closure of the unit. These documents and other documents showing that the petitioner had workers, ought to have been considered by the AAFIR. Non consideration of these relevant documents by the AAFIR makes its order erroneous and liable for setting aside. The argument of the respondents that amount of Rs. 1,56,544 paid to the workers is meager and from this it can be inferred that more than 50 workers were not employed by the petitioner, is fallacious and based on surmises on the part of the respondents. Since no manufacturing activity was carried on and was suspended temporarily by the petitioner which was also affirmed by the Joint Director, Industrial health and safety, it is apparent that the workers were employed not for the entire period. Nonetheless the regular/permanent workers were employed and payments were also made to them. Reliance placed by the respondent on SI Audit report or M/s. Radbin report is out of context. Admission of the petitioner in these reports is regarding temporary closure because” of adverse conditions. Taking it from any perspective, it can not be held that the petitioner did not have a ‘factory’ and thus an industrial Undertaking within the meaning of the Act.
23. Therefore, the AAIFR fell in grave error while interpreting Section 3(c) of the definition of factory. Definition of ‘factory’ postulates two contingency and confining it to one only, i.e where manufacturing activity is carried on will be fallacious and not in consonance with the said act. Once two eventualities were contemplated in relation to the definition of factory and relying on one of the eventualities only was totally illegal. The finding of the AAFIR that the. petitioner is not an industrial company and thus its reference was not maintainable is erroneous on the face of it. The AAFIR did not consider the relevant documents and misconstrued the definition of ‘factory’ under the Industries (Development & Regulation) Act, 1951. The contention of the respondents that error committed by the AAFIR which is ex-facie apparent can not be corrected in the writ petition under Article 226 of the Constitution of India is also without any basis and is liable to be rejected. We set aside the finding of the AAIFR on this score.
24. Coming back to the submission of counsel appearing for Punjab National Bank/respondent No. 3 that the limitation would be applicable and the second reference was time barred, as has been held by the AAIFR. We see no force in the argument of learned counsel appearing for Punjab National Bank and the finding of the AAFIR in this regard is also erroneous. Admittedly the BIFR had declared the petitioner company as sick in 2000 which order was assailed by the Punjab National Bank by filing an appeal before the AAIFR. The AAIFR had passed the order on first reference petition on 17th April, 2001. Till 17th April, 2001 there had been an order that the petitioner company is a sick company by the BIFR and second reference on the basis of subsequent years accounts could not be filed till 17th April, 2001. It is only on 17th April, 2001 that the petitioner company came to know that they are no longer a sick company as the order of BIFR that the petitioner company was a sick company, was set aside and, therefore, filed a second reference on 8th May, 2001. Therefore, the reference filed by the petitioner company was as per the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 as contained in Section 15(i) of the Sick Industrial Companies (Special Provisions) Act, 1985 and will not be time barred and can not be construed to be barred under the provisions of the act. Findings of the AAFIR to the contrary are erroneous and are liable to be set aside.
25. For the aforesaid reasons, we set aside the impugned order dated 31st December, 2001 passed by AAFIR in Appeal No. 311 of 2001 dismissing the appeal of the petitioner impugning the order dated 27th August, 2001 passed by the BIFR and also set aside the said order of BIFR and remand the case back to the BIFR to consider the second reference afresh in terms of the observations made hereinabove. Writ Petition is allowed. Rule is made absolute. Parties to bear their own costs.