(Co-authored with Sudipto Banerjee and Karthik Suresh)
Since the enactment of the Insolvency and Bankruptcy Code (IBC) in 2016, the National Companies Law Tribunal (NCLT) has been admitting insolvency cases against public sector enterprises (for example, the Tamil Nadu Generation and Distribution Co. Ltd., the Northern Power Distribution Co. Ltd.). A final resolution order was passed in the case of Burn Standard and Co. Ltd. while liquidation proceedings were ordered in the case of Hindustan Paper Co.Ltd. This suggests that the IBC was being used for resolving defaults by public sector enterprises (PSEs).
The case of Hindustan Antibiotics Ltd. (HAL) has led to uncertainty regarding the applicability of the IBC to PSEs. In this case, the NCLT could not arrive at a decision on the applicability of the IBC to HAL. The dispute was referred to a third member of the NCLT. In the meanwhile, HAL filed a writ petition before the Bombay High Court challenging the constitutional validity of the IBC insofar as it applies to government companies, which was admitted by the Court. This, in effect, has stayed the proceedings before the NCLT. The High Court will now decide on the question of whether the IBC applies to government companies.
This article revisits the dispute and examines the position of PSEs within the ambit of the IBC. It argues that creditors of PSEs (or PSEs themselves) should be able to access the IBC. Removing PSEs from the IBC's purview may lead to delays in resolution, and may close an important route which the government could use for disinvestment.
The dispute
Hindustan Antibiotics Ltd. (HAL) is a central PSE in the business of supplying affordable drugs and antibiotics. The company has been incurring losses since 1993-94. In March 1997, HAL was declared a sick company and placed under the Board for Industrial and Financial Reconstruction (BIFR) which approved a restructuring package in June 2007. However, the company's financial situation continued to deteriorate. In December 2016, the Union Cabinet stated that it will look at options for conducting a strategic sale of HAL, dispose of the surplus land and structure a voluntary retirement scheme (VRS) for its employees. As of January 2020, the strategic sale has not taken place. The company has been unable to pay the salaries of its employees on time.
As a consequence, employees of HAL have filed cases against the company for non payment of salaries and other dues before various courts. Three public sector banks have sent recovery notices to the company under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act). Employees have also filed cases before the Controlling Authority under the Payment of Gratuity Act, 1972 for non payment of dues. Three operational creditors including Mr. Harish Pinge, an employee of HAL, filed cases under the IBC before the NCLT.
The impugned order of the NCLT is concerned with the petition filed by Harish Pinge. The company acknowledged the portion of Mr. Pinge's retirement dues but was unable to pay due to its financial condition. When Mr. Pinge approached the NCLT, the company took the view that IBC does not contemplate handling the insolvency resolution process of PSEs and hence the petition was not maintainable.
The NCLT's order
The judicial member took the view that HAL was a central PSE and thus an 'instrumentality of the state'. He held that even if the company is loss-making and is unable to pay its dues, it cannot be closed. This is because it would be unconstitutional for a tribunal to pass an order to close a PSE which is an instrument of the state itself. The relevant paragraph is extracted as follows:.
In view of the above findings, I am of the considered view that CIRP process cannot be initiated against an instrumentality of the state. To say these words I have made an attempt to lift the corporate veil of the Corporate Debtor to see who is behind the same and I found that it is none other than Govt. of India, in the name of President of India. Initiating CIRP process against the Corporate Debtor practically amounts to initiating CIRP process against the Govt. of India which is impermissible under the Constitution/Law. The law makers while enacting the IBC appears to have not envisaged such a situation otherwise they would have exempted Govt. Companies from the CIRP process as the application of the Code on the said Govt. Companies would create a chaos and defeat the very intent for which IBC is brought into existence. At the same time there is also another way looking at it and that is, there is no reason even to expressly exempt the Govt. Companies because it is an instrumentality of the state and de-horsing the corporate character and independent entity, there is everything to say that the Govt. Companies are an instrumentality of the state or rather we can say that there an alter ego of the state itself and the result of the same is that the IBC cannot interfere with the state owned undertakings. In view of the above the point No. (i) and (ii) are answered against the Petitioner as the Petitioner can have an alternate remedy in a civil court or by way of proceeding under Article 226 or 32 of the Constitution of India in an appropriate forum if so advised. (emphasis added)
The technical member held that all PSEs are liable to be subject to the CIRP as prescribed in the IBC in case of a default. He was of the view that PSEs are instruments of the state but the instrumentality argument cannot be used to negate the statutory right of a reditor. Only financial services providers are explicitly excluded from the definition of 'corporate debtor'. He observed that there are lacunae in the government's own process for restructuring PSEs after the closure of Bureau for Reconstruction of Public Sector Enterprises (BRPSE) in 2015 and suggested that adoption of the IBC process is in the best interest of the corporate debtor.
Since the members had disagreed with each other, the President of the NCLT referred the case to a third member in accordance with the Companies Act, 2013. While the proceedings were pending before the NCLT, the company filed a writ petition before the Bombay High Court.
Proceedings before the Bombay High Court
At the Bombay High Court, the petitioner argued that the provisions regarding the definition of 'corporate debtor', 'person' and the provisions which give financial and operational creditors the right to approach the NCLT in case of default are in direct conflict with a) the statutory provisions of Companies Act, 2013 and b) Article 14 of the Constitution of India as far as 'government companies' are concerned.
The High Court held that the NCLT is not the proper forum for deciding on questions of constitutionality. The court referred to the Supreme Court's decision in Hindustan Construction Co. Ltd. v. Union of India where it has was held that that statutory bodies (like National Highway Authority of India) are not limited in liability and are hence not covered in either the definition of 'corporate person' or 'person' under the IBC. The Bombay High Court said that it would look at whether this decision of the Supreme Court has any bearing on government companies as well. Consequently, it imposed a stay on the proceedings before the NCLT.
In the subsequent paragraphs we discuss why the IBC should be applied to government companies as well.
The IBC does not exclude PSEs
The HAL case seems to depend on the interpretation of 'corporate debtor'. Under the provisions of the IBC, 'corporate debtor' means a corporate person who owes a debt to any person. The definition of 'person' includes a company. Most PSEs are registered as government companies under the Companies Act, 2013 and are generally subject to its provisions and rules.
A similar argument was made by the solicitor general in the context of Hindustan Construction Co. Ltd. v. Union of Indiasupra). He admitted (para 58) that government companies are covered in the definition of 'corporate person' under section 3(7) of the IBC. The court did not make a clear pronouncement on this specific issue since the facts of the case were not primarily concerned with it. But we can presume that the solicitor general, being the statutory lawyer of the Union government, has stated the view of the government on the law.
There are specific provisions in the Companies Act, 2013 which exempt government companies from certain requirements. It is a settled principle of statutory interpretation that legislature speaks its mind by use of correct expression and unless there is ambiguity in law, the law has to be read in its literal sense. The literal reading of the provisions does not indicate exemption of PSEs from IBC.
Inference can also be drawn from the earlier legislation like Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) where it was expressly mentioned that the definition of company did not include a government company. This was removed by an amendment in 1993. Further, the IBC substituted the provisions on revival of sick industrial companies and winding up given under the Companies Act, 2013.
The importance of the IBC to PSEs
There are several reasons that the case before the High Court is extremely important.
The IBC is a time bound process which helps preserves the value of the firm and improves recovery. The World Bank's Ease of Doing Business survey reflects this change --- the recovery rate per dollar has increased from 28.6 cents per dollar to 71.6 cents per dollar since the IBC was brought into force. The exclusion of PSEs from this process will be expensive to its creditors, which are often public sector banks. For instance, the report of the Lok Sabha Committee on Public Undertakings observed that for 2016-17, the losses of the top three loss making central PSEs i.e. Air India, BSNL and MTNL accounted for 55.66% of total losses among central PSEs. The annual reports of BSNL (2015-16), MTNL (2018-19) and Air India (2018-19) show that all of their term loans are from public sector banks, except Air India where there is only one private sector bank. Further, if a PSE defaults on its loan repayment, resolution under IBC can help in the process of disinvestment.
The Public Enterprises Survey (2017-18) showed that 71 central PSEs are loss making, out of which 56 showed negative net worth. It is likely that several PSEs may not have been able to service their debts to their financial or operational creditors. Until 2016, these companies were subject to the restructuring process under the BIFR. However, the process of closure has been far from satisfactory. For example, in 2011, the Comptroller and Auditor General of India (CAG) in its report on closure of PSEs stressed on the need of professional insolvency practitioners to ensure maximum value is obtained either from restructuring or closure of the central PSEs. The Public Enterprises Survey (2015-16) showed that BIFR had listed 18 central PSEs for winding up and closure. But as on July, 2019, only two of those companies were actually closed. In the event of a default by a sick company, the IBC can greatly expedite the process of closure.
Conclusion
Under the older laws governing insolvency, due to multiplicity of processes, the High Court often played the role of being the main forum for settlement of claims. We have already seen that the High Courts, acting as the company court, have demonstrated high rates of pendency. For instance, the Official Liquidator in the Bombay High Court reported that out of 1464 cases pending before the court, 739 have been pending for more than ten years. The IBC has been formulated as a complete code for insolvency laws with specified tribunals and an administrative machinery for its enforcement.
We believe that there is nothing in the IBC that precludes its use by PSEs. Using the IBC to resolve the financially insolvent and bankrupt PSEs in a time-bound manner will facilitate and may even help expedite the process of disinvestment by the government. It can also have implications for the policy concerning restructuring and closure of PSEs.
The authors are, respectively, an Associate Professor, and Research Fellows, NIPFP.
The views expressed in the post are those of the authors only. No responsibility for them should be attributed to NIPFP.
This article was first published in The Leap Blog on February 18, 2020.