REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 732 OF 2018
GOTTUMUKKALA VENKATA KRISHAMRAJU .....PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
WITH
TRANSFERRED CASE (CIVIL) NO. 301 OF 2017
TRANSFERRED CASE (CIVIL) NO. 304 OF 2017
TRANSFERRED CASE (CIVIL) NO. 303 OF 2017
TRANSFERRED CASE (CIVIL) NO. 305 OF 2017
AND
TRANSFERRED CASE (CIVIL) NO. 306 OF 2017
J U D G M E N T
A.K. SIKRI, J.
Petitioners in these petitions were appointed as Presiding
Officers of Debt Recovery Tribunal created under the Recovery of
Debts due to Banks and Financial Institutions Act, 1993 which is
Writ Petition (Civil) No. 732 of 2018 etc. Page 1 of 21
rechristened as Recovery of Debts and Bankruptcy Act, 1993
(hereinafter referred to as the ‘Act’). The appointment was made
under the provisions of the said Act. Chapter II of the Act deals
with the establishment of Tribunal and Appellate Tribunal. The
provisions relevant for our purposes are Sections 3 to 6. Section
3 deals with establishment of the Tribunal by the Central
Government to be known as the Debts Recovery Tribunal.
Section 4 talks of composition of the Tribunal. Section 5 deals
with the qualifications for appointment as Presiding Officers.
Once appointed, the term of office of a Presiding Officer is
stipulated in Section 6. There have been amendments to the
various provisions of this Act in the year 2016. Also, the Act which
was earlier known as the Recovery of Debts due to Banks and
Financial Institutions Act, 1993 is given a new nomenclature and
is now known as the Recovery of Debts and Bankruptcy Act, 1993
by the Finance Act, 2017. Unamended Sections 3 to 6 were as
under:
“3. Establishment of Tribunal.—(1) The Central
Government shall, by notification, establish one or more
Tribunals, to be known as the Debts Recovery Tribunal, to
exercise the jurisdiction, powers and authority conferred on
such Tribunal by or under this Act.
(2) The Central Government shall also specify, in the
notification referred to in sub-section (1), the areas within
which the Tribunal may exercise jurisdiction for entertaining
and deciding the applications filed before it.
Writ Petition (Civil) No. 732 of 2018 etc. Page 2 of 21
4. Composition of Tribunal.—(1) A Tribunal shall consist
of one person only (hereinafter referred to as the Presiding
Officer) to be appointed by notification, by the Central
Government.
(2) Notwithstanding anything contained in sub-section (1),
the Central Government may authorise the Presiding
Officer of one Tribunal to discharge also the functions of
the Presiding Officer of another Tribunal.
5. Qualifications for appointment as Presiding Officer.
—A person shall not be qualified for appointment as the
Presiding Officer of a Tribunal unless he is, or has been, or
is qualified to be, a District Judge.
6. Term of Office. – The Presiding Officer of a Tribunal
shall hold office for a term of five years from the date on
which he enters upon his office or until he attains the age
of sixty-two years, whichever is earlier.”
2) As is clear from Section 6, after the appointment of a person as
Presiding Officer to a Tribunal, he could hold office for a term of
five years from the date on which he enters upon his office or
until the attainment of 62 years of age, whichever is earlier. This
Section is substituted by Act 44 of 2016 w.e.f. September 1, 2016
and the amended provision read as under:
“6. Term of office of Presiding Officer – The Presiding
Officer of a Tribunal shall hold office for a term of five years
from the date on which he enters upon his office and shall
be eligible for reappointment.
Provided that no person shall hold office as the
Presiding Officer of a Tribunal after he has attained the age
of sixty-five years.”
3) Along with that, another provision in the form of Section 6A is also
Writ Petition (Civil) No. 732 of 2018 etc. Page 3 of 21
inserted which is to the following effect:
“6A. Qualifications, terms and conditions of service of
Presiding Officer – Notwithstanding anything contained in
this Act, the qualifications, appointment, term of office,
salaries and allowances, resignation, removal and the
other terms and conditions of service of the Presiding
Officer of the Tribunal appointed after the commencement
of Part XIV of Chapter VI of the Finance Act, 2017, shall be
governed by the provisions of section 184 of that Act:
Provided that the Presiding Officer appointed before
the commencement of Part XIV of Chapter VI of the
Finance Act, 2017, shall continue to be governed by the
provisions of this Act, and the rules made thereunder as if
the provisions of section 184 of the Finance Act, 2017 had
not come into force.”
Some other provisions are also amended, but those are not
relevant for the purposes of these cases.
4) All the petitioners were appointed before the amendment to
Section 6. Thus, at the time of their appointment, the term of
their office was “five years or till attaining the age of 62 years,
whichever is earlier”. These officers have not completed five
years of service. However, they are completing/or have attained
62 years of age after coming into force amended Section 6. In
the aforesaid backdrop, the question that arises for consideration
in these petitions is as to whether the petitioners are entitled to
complete the term of five years taking advantage of the amended
provision which gives such Presiding Officers to continue until
attaining the age of 65 years or to continue till they reach the age
Writ Petition (Civil) No. 732 of 2018 etc. Page 4 of 21
of 65 years, whichever is earlier.
5) For the sake of convenience, we may give particulars in respect
of Transfer Case (Civil) No. 301 of 2017 and, at the same time,
take note of the progress in other cases as well.
Date Event
27.12.1954 Date of birth of the petitioner. The petitioner turned 62
years on 26.12.2016 and will turn 65 years, on
26.12.2019.
27.08.1993 Enactment of the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. Section 6 of the Act
prescribed that a Presiding Officer of the Debt Recovery
Tribunal shall hold office for five years form the date he
enters office or 62 years, whichever is earlier.
15.12.2014 Appointment notification of petitioner as Presiding
Officer, Debt Recovery Tribunal, Lucknow.
06.01.2015 Petitioner took office as the Presiding Officer, Debt
Recovery Tribunal, Lucknow.
12.08.2016 Amendment to the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. Section 6 of the 1993
Act was substituted. The amended Section 6
contemplates that the Presiding Officer shall hold office
for five years from the date he enters office. The
proviso clarifies that the Presiding Officer shall not
continue beyond the age of 65 years.
01.09.2016 The 2016 amendment takes effect upon being so
notified, by the Central Government.
29.09.2016 The Union of India advertises anticipated vacancies for
Presiding Officer for Debt Recovery Tribunal, Lucknow
and other Debt Recovery Tribunals.
06.10.2016 By way of an interim order, the Central Administrative
Tribunal, New Delhi, stays the release of Presiding
Officer, Debt Recovery Tribunal, Guwahati (V.K. Garg),
having regard to the enhanced age of retirement, in the
O.A. filed by him.
07.12.2016 By way of an interim order, the Allahabad High Court,
Lucknow Bench stays the release of petitioner, having
regard to the enhanced age of retirement in the writ
Writ Petition (Civil) No. 732 of 2018 etc. Page 5 of 21
petition filed by him.
09.12.2016 The Bombay High Court dismissed WP(L) No.
3299/2016 filed by Vasant Narayan Lothey Patel,
Presiding Officer, DRT III, Mumbai, whereby the said
officer sought application of the amended Section 6, to
extend his tenure to 65 years or completion of five
years.
26.12.2016 The petitioner attained the age of 62 years.
02.02.2017 By way of an interim order, the Madras High Court stays
the release of J.V. Raj, Debt Recovery Tribunal,
Coimbatore having regard to the enhanced age of
retirement in the writ petition filed by him.
09.02.2017 By way of an interim order, the Jharkhand High Court
says the release of B.N. Dash, Debt Recovery Tribunal
having regrd to the enhanced age of retirement, in his
writ petition.
28.02.2017 By way of an interim order, the Madras High Court stays
the release of R. Ravindra Bose, Presiding Officer, Debt
Recovery Tribunal-II, Chennai having regrd to the
enhanced age of retirement.
04.10.2017 The Union of India filed five transfer petitions qua the
aforementioned petitions pending before the Central
Administrative Tribunal, Delhi and High Courts of
Allahabad, Madras, Jharkhand. A sixth transfer petition
was filed in respect of WP(L) No. 2358/2016 filed by
Mohd. Zafar Imam before the Bombay High Court. This
officer had already demitted office on 17.09.2016. On
04.10.2017, this Court issued notice in the
aforementioned transfer petitions being TP(C) Nos.
1315-1320/2017 and stayed further proceedings before
the courts concerned.
14.11.2017 This Court allowed all six transfer petitions (TP(C) Nos.
1315-1320/2017) and also passed an interim order
reinstating Mohd. Zafar Imam as Presiding Officer, DRT
II, Mumbai.
26.12.2019 The petitioner will be completing the age of 65 years.
06.01.2020 The petitioner will be completing the term of five years
on this date.
6) As per the provisions of unamended Section 6, the petitioner
could continue only upto December 26, 2016 as he had
Writ Petition (Civil) No. 732 of 2018 etc. Page 6 of 21
completed 62 years of age on that date though he had not
completed five years of term as the Presiding Officer. If amended
Section 6 is applicable, then he would be entitled to continue upto
December 26, 2019 on which date he shall attain the age of 65
years. Same is the fact situation in all these cases, though the
dates on which they would be completing five years term or
attaining 65 years of age, are different.
7) In this backdrop, the issue that has arisen in these petitions is as
to whether the petitioners would be governed by Section 6 as
amended or this provision is to be applied prospectively i.e., w.e.f.
September 1, 2016 i.e. in respect of appointments which are
made on or after September 1, 2016.
8) The endeavour of the petitioners is to demonstrate that they
would be governed by Section 6 as amended and, therefore, they
have right to continue upto the age of 65 years or till the time they
complete five years tenure before they have attained the age of
65 years. The submission which are paraphrased by the
petitioners in support of their aforesaid plea are the following:
(a) By the Amendment Act, new Section 6 stands ‘substituted’
with the old Section 6. The legislature has used the expression
‘substituted’ with a definite purpose, namely, making this provision
Writ Petition (Civil) No. 732 of 2018 etc. Page 7 of 21
applicable also to those Presiding Officers who were holding the
post as on September 1, 2016 when the amendment was brought
into force. It was argued that the very expression ‘substituted’
would mean that the old Section 6 stands obliterated.
(b) Purpose behind the amendment was to reduce the burden
of pendency by enhancing the age of the Presiding Officers. This
is categorically mentioned in the report of the Lok Sabha, Joint
Committee and also in the Statement of Objects and Reasons to
the amendment.
(c) The provision needs to be given purposive interpretation
and keeping in view the purpose and object behind the
amendment, the said purpose would be sub-served only if it is
applied to the incumbents in the service as well as on the date of
the application. Reference is made to the judgment of this Court
in Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Ors.1
9) In that very hue, it is argued that to interpret the provision as
inapplicable to the incumbent would lead to assigning a perverse
object to the amendment which would be totally illogical. For this
proposition, judgment in State of Madhya Pradesh v. Narmada
Bachao Andolan & Anr.2
is relied upon. Reliance is also placed
1 (1987) 1 SCC 424
2 (2011) 7 SCC 639
Writ Petition (Civil) No. 732 of 2018 etc. Page 8 of 21
on Boucher Pierre Andre v. Superintendent, Central Jail,
Tihar, New Delhi & Anr.3
10) Contrasting the provisions of Section 6 with Section 6A of the Act,
it is argued that proviso to Section 6A categorically makes a
provision to the effect that the Presiding Officer appointed before
the commencement of Finance Act, 2017 shall continue to be
governed by the provisions of Section 184 of the Finance Act,
2017 as if the said provisions had not coming to force. It was
submitted that there is no such proviso added to Section 6 which
makes the intention of the legislature very clear, namely, the
Presiding Officers who were in office as on the date of
amendment would be governed by the newly inserted Section 6.
11) Mr. Banerjee, learned ASG appearing for the respondent Union of
India contradicted the aforesaid arguments raised by the
petitioners with the following submissions:
No right has accrued by virtue of amendment in Section 6
to hold the office upto the age of 65 years. It was argued that
unamended Section 6 provided that the Presiding Officer shall
hold office for a term of five years or ‘until he attains the age of 62
years, whichever is earlier’. Amended provision, on the other
3 (1975) 1 SCC 192
Writ Petition (Civil) No. 732 of 2018 etc. Page 9 of 21
hand, does not state that the term of office would be five years or
until the Presiding Officer attains the age of 65 years. On the
other hand, this provision of 65 years was made in the proviso to
Section 6 which was couched in negative terms as it is stipulated
that no person shall hold the office after he has attained the age
of 65 years. Thus, no right accrues in favour of any person with
such a proviso. It was also submitted that unless a provision is
specifically given retrospective effect by the legislature, it only has
prospective operation. Therefore, intentment behind Section 6
was to make it applicable in respect of appointments which would
be made on or after September 1, 2016 when this provision was
inserted and the date from which it was specifically made
effective. It was also argued that the purpose was to infuse
young blood by deputing fresh Presiding Officers and not to give
benefit to the existing Presiding Officers. The learned ASG relied
upon judgment of this Court in C. Gupta v. Glaxo-Smithkline
Pharmaceuticals Ltd.4 and, in particular, following portion in that
judgment:
“21. In the present case, we find that for determining the
nature of amendment, the question is whether it affects the
legal rights of individual workers in the context that if they
fall within the definition then they would be entitled to claim
several benefits conferred by the Act. The amendment
should be also one which would touch upon their
substantive rights. Unless there is a clear provision to the
4 (2007) 7 SCC 171
Writ Petition (Civil) No. 732 of 2018 etc. Page 10 of 21
effect that it is retrospective or such retrospectivity can be
implied by necessary implication or intendment, it must be
held to be prospective. We find no such clear provision or
anything to suggest by necessary implication or intendment
either in the amending Act or in the amendment itself. The
amendment cannot be said to be one which affects
procedure. Insofar as the amendment substantially
changes the scope of the definition of the term “workman” it
cannot be said to be merely declaratory or clarificatory. In
this regard we find that entirely new category of persons
who are doing “operational” work was introduced first time
in the definition and the words “skilled” and “unskilled” were
made independent categories unlinked to the word
“manual”. It can be seen that the Industrial Disputes
(Amendment) Act, 1984 was enacted by Parliament on 31-
8-1982. However, the amendment itself was not brought
into force immediately and in sub-section (1) of Section 1 of
the amending Act, it was provided that it would come into
force on such day as the Central Government may by
notification in the Official Gazette, appoint. Ultimately, by a
notification the said amendment was brought into force on
21-8-1984. Although this Court has held that the
amendment would be prospective if it is deemed to have
come with effect on a particular day, a provision in the
Amendment Act to the effect that amendment would
become operative in the future, would have similar effect.
22. Therefore, by the application of the tests mentioned
above, it is clear that the definition of workman as
amended must, therefore, be presumed to be prospective.
12) We have given our due consideration to the arguments advanced
by the counsel for the parties on both sides and have also
perused the relevant material. We find force in the arguments of
the petitioners that the amended provisions of Section 6 shall
apply in their cases as well and, therefore, if they have not
completed five years of tenure as Presiding Officers of the Debt
Recovery Tribunal they are entitled to continue to work as
Writ Petition (Civil) No. 732 of 2018 etc. Page 11 of 21
Presiding Officers till they attain the age of 65 years or complete
five years’ term before attaining the age of 65 years. In the first
instance, we have to bear in mind the language/terminology
which the Legislature used while inserting new Section 6 with
effect from September 01, 2016. This section stands ‘substituted’
with the old section. The word ‘substituted’ has its own
significance. In Government of India & Ors. v. Indian Tobacco
Association5
, this Court noted dictionary meaning of the word
‘substitute’ as can be seen from para 15 of the said judgment:
“15. The word “substitute” ordinarily would mean “to put
(one) in place of another”; or “to replace”. In Black's Law
Dictionary, 5th Edn., at p. 1281, the word “substitute” has
been defined to mean “to put in the place of another
person or thing”, or “to exchange”. In Collins English
Dictionary, the word “substitute” has been defined to mean
“to serve or cause to serve in place of another person or
thing”; “to replace (an atom or group in a molecule) with
(another atom or group)”; or “a person or thing that serves
in place of another, such as a player in a game who takes
the place of an injured colleague”.
13) This expression has also come up for interpretation by the Courts
in Zile Singh v. State of Haryana and Others6
, the import and
impact of substituted provision were discussed in the following
manner:
“23. The text of Section 2 of the Second Amendment Act
provides for the word “upto” being substituted for the word
5 (2005) 7 SCC 396
6 (2004) 8 SCC 1
Writ Petition (Civil) No. 732 of 2018 etc. Page 12 of 21
“after”. What is the meaning and effect of the expression
employed therein — “shall be substituted”?
24. The substitution of one text for the other pre-existing
text is one of the known and well-recognised practices
employed in legislative drafting. “Substitution” has to be
distinguished from “supersession” or a mere repeal of an
existing provision.”
14) Ordinarily wherever the word ‘substitute’ or ‘substitution’ is used
by the legislature, it has the effect of deleting the old provision
and make the new provision operative. The process of
substitution consists of two steps: first, the old rule is made to
cease to exist and, next, the new rule is brought into existence in
its place. The rule is that when a subsequent Act amends an
earlier one in such a way as to incorporate itself, or a part of
itself, into the earlier, then the earlier Act must thereafter be read
and construed as if the altered words had been written into the
earlier Act with pen and ink and the old words scored out so that
thereafter there is no need to refer to the amending Act at all. No
doubt, in certain situations, the Court having regard to the purport
and object sought to be achieved by the Legislature may
construe the word "substitution" as an "amendment" having a
prospective effect. Therefore, we do not think that it is a
universal rule that the word ‘substitution’ necessarily or always
connotes two severable steps, that is to say, one of repeal and
Writ Petition (Civil) No. 732 of 2018 etc. Page 13 of 21
another of a fresh enactment even if it implies two steps.
However, the aforesaid general meaning is to be given effect to,
unless it is found that legislature intended otherwise. Insofar as
present case is concerned, as discussed hereinafter, the
legislative intent was also to give effect to the amended provision
even in respect of those incumbents who were in service as on
September 01, 2016.
15) The effect, thus, would be to replace Section 6 as amended with
the intention as if this is the only provision which exist from the
date of introduction and the earlier provision was not there at all.
The effect of this would be that all those incumbents who are
holding the post of Presiding Officer on September 01, 2016
would be governed by this provision.
16) When we examine the matter in the aforesaid perspective, the
question as to whether Section 6, as amended, is to be given
retrospective effect or not, does not arise for consideration. The
petitioners are right in submitting that persons who demitted the
office prior to the amendment are not sought to be covered by the
amendment. Had the provision been retrospective then it would
have benefited those persons as well. No such case is set up by
any of the petitioners or any other person, it is only the
Writ Petition (Civil) No. 732 of 2018 etc. Page 14 of 21
incumbents who are serving as on the date of the amendment
are sought to be covered.
17) Though in a different context, the judgment in Boucher Pierre
Andre throws some light on the issue at hand, as can be
discerned from the following discussion in that case:
“1. …..The petitioner was arrested on November 10, 1971
in connection with an offence of theft which took place in
the night between October 31, 1971 and November 1,
1971 in Rajasthan Emporium at Ashoka Hotel, New Delhi.
He was tried by the Additional Sessions Judge, Delhi and
by an order dated July 16, 1973 he was convicted of the
offence under Section 380 of the Indian Penal Code and
sentenced to rigorous imprisonment for four years and a
fine of Rs 10,000 and in default of payment of fine, further
rigorous imprisonment of one year. An appeal preferred by
him to the High Court of Delhi failed and his conviction was
confirmed but the substantive sentence of imprisonment
was reduced to two years though the fine was enhanced to
Rs 15,000 with one year's rigorous imprisonment in default.
The order of the High Court in appeal was passed on April
4, 1974. The petitioner did not pay the amount of fine and
he was, therefore, liable under the order of the High Court
to serve a maximum sentence of imprisonment for three
years. Since the petitioner was continuing under detention
from November 10, 1971 during the investigation, enquiry
and trial of the case against him, the petitioner contended
that by reason of Section 428 of the new Code of Criminal
Procedure, which came into force from April 1, 1974, the
period of detention from November 10, 1971 upto July 16,
1973 was liable to be set off against the term of
imprisonment imposed upon him and he could be required
to undergo imprisonment only for the remainder of the term
which, after taking into account the remission granted on
account of good behaviour, expired on August 12, 1974.
The petitioner claimed that he was, therefore, entitled to be
freed on August 12, 1974 and his detention in jail since that
date was illegal. The petitioner filed an application for a writ
of habeas corpus in the High Court of Delhi challenging the
validity of his detention since August 12, 1974 but the High
Court took the view that since the conviction of the
Writ Petition (Civil) No. 732 of 2018 etc. Page 15 of 21
petitioner by the Sessions Court had taken place prior to
the coming into force of the new Code of Criminal
Procedure, Section 428 had no application and the
petitioner was bound to suffer imprisonment for the full
term of three years calculated from the date of conviction,
namely, July 16, 1973. The habeas corpus application in
the High Court having failed, the petitioner preferred the
present writ petition directly in this Court under Article 32 of
the Constitution. This writ petition also claimed the same
relief and the ground was also the same, namely, that by
reason of Section 428, the term of imprisonment imposed
on the petitioner came to an end on August 12, 1974 and
his detention since that date was contrary to law.
2. The question which arises for determination in this
petition is a narrow one and it rests on the true
interpretation of Section 428. Is this section confined in its
application only to cases where a person is convicted after
the coming into force of the new Code of Criminal
Procedure, or does it also embrace cases where a person
has been convicted before but his sentence is still running
at the date when the new Code of Criminal Procedure
came into force? It is only if the latter interpretation is
accepted that the petitioner would be entitled to claim the
benefit of the section and hence it becomes necessary to
arrive at its proper construction. Section 428 reads as
follows:
“Where an accused person has, on conviction, been
sentenced to imprisonment for a term, the period of
detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and
before the date of such conviction, shall be set off
against the term of imprisonment imposed on him on
such conviction, and the liability of such person to
undergo imprisonment on such conviction shall be
restricted to the remainder, if any, of the term of
imprisonment imposed on him.”
This section, on a plain natural construction of its language,
posits for its applicability a fact situation which is described
by the clause “where an accused person has, on
conviction, been sentenced to imprisonment for a term”.
There is nothing in this clause which suggests, either
expressly or by necessary implication, that the conviction
and sentence must be after the coming into force of the
new Code of Criminal Procedure. The language of the
Writ Petition (Civil) No. 732 of 2018 etc. Page 16 of 21
clause is neutral. It does not refer to any particular point of
time when the accused person should have been convicted
and sentenced. It merely indicates a fact situation which
must exist in order to attract the applicability of the section
and this fact situation would be satisfied equally whether an
accused person has been convicted and sentenced before
or after the coming into force of the new Code of Criminal
Procedure. Even where an accused person has been
convicted prior to the coming into force of the new Code of
Criminal Procedure but his sentence is still running, it
would not be inappropriate to say that the “accused person
has, on conviction, been sentenced to imprisonment for a
term”. Therefore, where an accused person has been
convicted and he is still serving his sentence at the date
when the new Code of Criminal Procedure came into force.
Section 428 would apply and he would be entitled to claim
that the period of detention undergone by him during the
investigation, inquiry or trial of the case should be set off
against the term of imprisonment imposed on him and he
should be required to undergo only the remainder of the
term. Of course, if the term of the sentence has already run
out, no question of set off can arise. It is only where the
sentence is still running that the section can operate to
restrict the term. This construction of the section does not
offend against the principle which requires that unless the
legislative intent is clear and compulsive, no retrospective
operation should be given to a statute. On this
interpretation, the section is not given any retrospective
effect. It does not seek to set at naught the conviction
already recorded against the accused person. The
conviction remains intact and unaffected and so does the
sentence already undergone. It is only the sentence,
insofar as it yet remains to be undergone, that is, reduced.
The section operates prospectively on the sentence which
yet remains to be served and curtails it be setting off the
period of detention undergone by the accused person
during the investigation, inquiry or trial of the case. Any
argument based on the objection against giving
retrospective operation is, therefore, irrelevant.”
(emphasis supplied)
18) Our view is also in accord with the purport and objective behind
the amendment which were reflected while carrying out the
Writ Petition (Civil) No. 732 of 2018 etc. Page 17 of 21
amendment itself. The purpose of amending Section 6 was to
reduce the burden of pendency by enhancement of age of the
Judges concerned. The Report of the Lok Sabha Joint
Committee qua the Amendment sets out the background to the
amendment as follows:
“On the issue of pendency of cases in various DRTs, the
Committee has been apprised by the Department of
Financial Services that approximately 70,000 court cases
pending in DRTs involving more than Rs. 5 Lakh Crore.
One of the reasons mentioned in the memoranda
submitted by various stakeholders for the pendency of
cases is vacancies in various stakeholders for the
pendency of cases is vacancies in various DRTs/DRATs. A
number of suggestions in this regard have been made by
the stakeholders. After detailed deliberations on the issue,
the Committee decide(d) to insert the following new
provision/substitute some of the provisions under the
RDDB & FI Act….”
(emphasis supplied)
19) Similarly, the Statement of Objects and Reasons to the
amendment inter alia notes:
“The Recovery of Debts due to Banks and Financial
Institutions Act, 1993 and the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, were enacted for expeditious
recovery of loans of banks and financial institutions.
Presently, there are approximately seventy thousand cases
pending in Debts Recovery Tribunals. Though the
Recovery of Debts due to Banks and Financial Institutions
Act provides for a period of 180 days for disposal of
recovery applications, the cases are pending for many
years due to various adjournments and prolonged
hearings. In order to facilitate expeditious disposal of
recovery applications, it has been decided to amend the
said Acts and also to make consequential amendments in
the Indian Stamp Act, 1899 and the Depositories Act,
1996.”
(emphasis supplied)
Writ Petition (Civil) No. 732 of 2018 etc. Page 18 of 21
20) In order to fulfill the aforesaid objective of reducing the arrears
and tackle the issue of pendency of cases in various Debt
Recovery Tribunals, ‘purposive interpretation’ is to be given. In
Reserve Bank of India, the Court explained this principle in the
following manner:
“33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may well
say if the text is the texture, context is what gives the
colour. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a
statute is looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words may
take colour and appear different than when the statute is
looked at without the glasses provided by the context. With
these glasses we must look at the Act as a whole and
discover what each section, each clause, each phrase and
each word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word
of a statute can be construed in isolation. Statutes have to
be construed so that every word has a place and
everything is in its place……..”
(emphasis supplied)
21) We are, thus, of the opinion that while carrying out the aforesaid
amendment with the intention to substitute the amended
provision with that of unamended, the Parliament desired that the
benefit of this provision extended even to those who are serving
as Presiding Officers on the date when the amendment became
Writ Petition (Civil) No. 732 of 2018 etc. Page 19 of 21
enforceable. This seems to be just, reasonable and sensible
outcome.
22) This interpretation is contextual as well which can be discerned
by contrasting amended Section 6 with newly inserted Section 6A
of the Act.
“…..There is a clear distinction between incumbent officers
and the officers appointed in future. In contrast, there is no
distinction, legislatively drawn, between incumbent or
officers appointed in future for application of amended
Section 6.”
23) This view of ours would negate the contention of the learned ASG
that Section 6 as amended does not create any right. If such an
interpretation is accepted, then even those persons appointed as
Presiding Officers after September 01, 2016, can be denied the
right to continue in service till 65 years. Judgment in GlaxoSmithkline
Pharmaceuticals Ltd., which was relied upon by the
learned ASG would have no application. That was a case where
there was an amendment to Section 2(s) of the Industrial
Disputes Act, 1947 which was brought into force on August 21,
1994 and the Court held the same to be prospective in nature. It
was further held that the provision which was applicable as on the
date of termination of the appellant in that case would apply.
Obviously, such a case has no application to the instant case.
Writ Petition (Civil) No. 732 of 2018 etc. Page 20 of 21
24) The writ petition and the transferred cases filed by these
petitioners, accordingly, stand allowed with no order as to costs.
As a result, those petitioners in whose favour there is an interim
stay would be allowed to continue. The petitioner in Writ Petition
(Civil) No. 732 of 2018 shall be taken back in service forthwith,
with continuity of service and salary of intervening period.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
SEPTEMBER 07, 2018.
Writ Petition (Civil) No. 732 of 2018 etc. Page 21 of 21
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 732 OF 2018
GOTTUMUKKALA VENKATA KRISHAMRAJU .....PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
WITH
TRANSFERRED CASE (CIVIL) NO. 301 OF 2017
TRANSFERRED CASE (CIVIL) NO. 304 OF 2017
TRANSFERRED CASE (CIVIL) NO. 303 OF 2017
TRANSFERRED CASE (CIVIL) NO. 305 OF 2017
AND
TRANSFERRED CASE (CIVIL) NO. 306 OF 2017
J U D G M E N T
A.K. SIKRI, J.
Petitioners in these petitions were appointed as Presiding
Officers of Debt Recovery Tribunal created under the Recovery of
Debts due to Banks and Financial Institutions Act, 1993 which is
Writ Petition (Civil) No. 732 of 2018 etc. Page 1 of 21
rechristened as Recovery of Debts and Bankruptcy Act, 1993
(hereinafter referred to as the ‘Act’). The appointment was made
under the provisions of the said Act. Chapter II of the Act deals
with the establishment of Tribunal and Appellate Tribunal. The
provisions relevant for our purposes are Sections 3 to 6. Section
3 deals with establishment of the Tribunal by the Central
Government to be known as the Debts Recovery Tribunal.
Section 4 talks of composition of the Tribunal. Section 5 deals
with the qualifications for appointment as Presiding Officers.
Once appointed, the term of office of a Presiding Officer is
stipulated in Section 6. There have been amendments to the
various provisions of this Act in the year 2016. Also, the Act which
was earlier known as the Recovery of Debts due to Banks and
Financial Institutions Act, 1993 is given a new nomenclature and
is now known as the Recovery of Debts and Bankruptcy Act, 1993
by the Finance Act, 2017. Unamended Sections 3 to 6 were as
under:
“3. Establishment of Tribunal.—(1) The Central
Government shall, by notification, establish one or more
Tribunals, to be known as the Debts Recovery Tribunal, to
exercise the jurisdiction, powers and authority conferred on
such Tribunal by or under this Act.
(2) The Central Government shall also specify, in the
notification referred to in sub-section (1), the areas within
which the Tribunal may exercise jurisdiction for entertaining
and deciding the applications filed before it.
Writ Petition (Civil) No. 732 of 2018 etc. Page 2 of 21
4. Composition of Tribunal.—(1) A Tribunal shall consist
of one person only (hereinafter referred to as the Presiding
Officer) to be appointed by notification, by the Central
Government.
(2) Notwithstanding anything contained in sub-section (1),
the Central Government may authorise the Presiding
Officer of one Tribunal to discharge also the functions of
the Presiding Officer of another Tribunal.
5. Qualifications for appointment as Presiding Officer.
—A person shall not be qualified for appointment as the
Presiding Officer of a Tribunal unless he is, or has been, or
is qualified to be, a District Judge.
6. Term of Office. – The Presiding Officer of a Tribunal
shall hold office for a term of five years from the date on
which he enters upon his office or until he attains the age
of sixty-two years, whichever is earlier.”
2) As is clear from Section 6, after the appointment of a person as
Presiding Officer to a Tribunal, he could hold office for a term of
five years from the date on which he enters upon his office or
until the attainment of 62 years of age, whichever is earlier. This
Section is substituted by Act 44 of 2016 w.e.f. September 1, 2016
and the amended provision read as under:
“6. Term of office of Presiding Officer – The Presiding
Officer of a Tribunal shall hold office for a term of five years
from the date on which he enters upon his office and shall
be eligible for reappointment.
Provided that no person shall hold office as the
Presiding Officer of a Tribunal after he has attained the age
of sixty-five years.”
3) Along with that, another provision in the form of Section 6A is also
Writ Petition (Civil) No. 732 of 2018 etc. Page 3 of 21
inserted which is to the following effect:
“6A. Qualifications, terms and conditions of service of
Presiding Officer – Notwithstanding anything contained in
this Act, the qualifications, appointment, term of office,
salaries and allowances, resignation, removal and the
other terms and conditions of service of the Presiding
Officer of the Tribunal appointed after the commencement
of Part XIV of Chapter VI of the Finance Act, 2017, shall be
governed by the provisions of section 184 of that Act:
Provided that the Presiding Officer appointed before
the commencement of Part XIV of Chapter VI of the
Finance Act, 2017, shall continue to be governed by the
provisions of this Act, and the rules made thereunder as if
the provisions of section 184 of the Finance Act, 2017 had
not come into force.”
Some other provisions are also amended, but those are not
relevant for the purposes of these cases.
4) All the petitioners were appointed before the amendment to
Section 6. Thus, at the time of their appointment, the term of
their office was “five years or till attaining the age of 62 years,
whichever is earlier”. These officers have not completed five
years of service. However, they are completing/or have attained
62 years of age after coming into force amended Section 6. In
the aforesaid backdrop, the question that arises for consideration
in these petitions is as to whether the petitioners are entitled to
complete the term of five years taking advantage of the amended
provision which gives such Presiding Officers to continue until
attaining the age of 65 years or to continue till they reach the age
Writ Petition (Civil) No. 732 of 2018 etc. Page 4 of 21
of 65 years, whichever is earlier.
5) For the sake of convenience, we may give particulars in respect
of Transfer Case (Civil) No. 301 of 2017 and, at the same time,
take note of the progress in other cases as well.
Date Event
27.12.1954 Date of birth of the petitioner. The petitioner turned 62
years on 26.12.2016 and will turn 65 years, on
26.12.2019.
27.08.1993 Enactment of the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. Section 6 of the Act
prescribed that a Presiding Officer of the Debt Recovery
Tribunal shall hold office for five years form the date he
enters office or 62 years, whichever is earlier.
15.12.2014 Appointment notification of petitioner as Presiding
Officer, Debt Recovery Tribunal, Lucknow.
06.01.2015 Petitioner took office as the Presiding Officer, Debt
Recovery Tribunal, Lucknow.
12.08.2016 Amendment to the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. Section 6 of the 1993
Act was substituted. The amended Section 6
contemplates that the Presiding Officer shall hold office
for five years from the date he enters office. The
proviso clarifies that the Presiding Officer shall not
continue beyond the age of 65 years.
01.09.2016 The 2016 amendment takes effect upon being so
notified, by the Central Government.
29.09.2016 The Union of India advertises anticipated vacancies for
Presiding Officer for Debt Recovery Tribunal, Lucknow
and other Debt Recovery Tribunals.
06.10.2016 By way of an interim order, the Central Administrative
Tribunal, New Delhi, stays the release of Presiding
Officer, Debt Recovery Tribunal, Guwahati (V.K. Garg),
having regard to the enhanced age of retirement, in the
O.A. filed by him.
07.12.2016 By way of an interim order, the Allahabad High Court,
Lucknow Bench stays the release of petitioner, having
regard to the enhanced age of retirement in the writ
Writ Petition (Civil) No. 732 of 2018 etc. Page 5 of 21
petition filed by him.
09.12.2016 The Bombay High Court dismissed WP(L) No.
3299/2016 filed by Vasant Narayan Lothey Patel,
Presiding Officer, DRT III, Mumbai, whereby the said
officer sought application of the amended Section 6, to
extend his tenure to 65 years or completion of five
years.
26.12.2016 The petitioner attained the age of 62 years.
02.02.2017 By way of an interim order, the Madras High Court stays
the release of J.V. Raj, Debt Recovery Tribunal,
Coimbatore having regard to the enhanced age of
retirement in the writ petition filed by him.
09.02.2017 By way of an interim order, the Jharkhand High Court
says the release of B.N. Dash, Debt Recovery Tribunal
having regrd to the enhanced age of retirement, in his
writ petition.
28.02.2017 By way of an interim order, the Madras High Court stays
the release of R. Ravindra Bose, Presiding Officer, Debt
Recovery Tribunal-II, Chennai having regrd to the
enhanced age of retirement.
04.10.2017 The Union of India filed five transfer petitions qua the
aforementioned petitions pending before the Central
Administrative Tribunal, Delhi and High Courts of
Allahabad, Madras, Jharkhand. A sixth transfer petition
was filed in respect of WP(L) No. 2358/2016 filed by
Mohd. Zafar Imam before the Bombay High Court. This
officer had already demitted office on 17.09.2016. On
04.10.2017, this Court issued notice in the
aforementioned transfer petitions being TP(C) Nos.
1315-1320/2017 and stayed further proceedings before
the courts concerned.
14.11.2017 This Court allowed all six transfer petitions (TP(C) Nos.
1315-1320/2017) and also passed an interim order
reinstating Mohd. Zafar Imam as Presiding Officer, DRT
II, Mumbai.
26.12.2019 The petitioner will be completing the age of 65 years.
06.01.2020 The petitioner will be completing the term of five years
on this date.
6) As per the provisions of unamended Section 6, the petitioner
could continue only upto December 26, 2016 as he had
Writ Petition (Civil) No. 732 of 2018 etc. Page 6 of 21
completed 62 years of age on that date though he had not
completed five years of term as the Presiding Officer. If amended
Section 6 is applicable, then he would be entitled to continue upto
December 26, 2019 on which date he shall attain the age of 65
years. Same is the fact situation in all these cases, though the
dates on which they would be completing five years term or
attaining 65 years of age, are different.
7) In this backdrop, the issue that has arisen in these petitions is as
to whether the petitioners would be governed by Section 6 as
amended or this provision is to be applied prospectively i.e., w.e.f.
September 1, 2016 i.e. in respect of appointments which are
made on or after September 1, 2016.
8) The endeavour of the petitioners is to demonstrate that they
would be governed by Section 6 as amended and, therefore, they
have right to continue upto the age of 65 years or till the time they
complete five years tenure before they have attained the age of
65 years. The submission which are paraphrased by the
petitioners in support of their aforesaid plea are the following:
(a) By the Amendment Act, new Section 6 stands ‘substituted’
with the old Section 6. The legislature has used the expression
‘substituted’ with a definite purpose, namely, making this provision
Writ Petition (Civil) No. 732 of 2018 etc. Page 7 of 21
applicable also to those Presiding Officers who were holding the
post as on September 1, 2016 when the amendment was brought
into force. It was argued that the very expression ‘substituted’
would mean that the old Section 6 stands obliterated.
(b) Purpose behind the amendment was to reduce the burden
of pendency by enhancing the age of the Presiding Officers. This
is categorically mentioned in the report of the Lok Sabha, Joint
Committee and also in the Statement of Objects and Reasons to
the amendment.
(c) The provision needs to be given purposive interpretation
and keeping in view the purpose and object behind the
amendment, the said purpose would be sub-served only if it is
applied to the incumbents in the service as well as on the date of
the application. Reference is made to the judgment of this Court
in Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Ors.1
9) In that very hue, it is argued that to interpret the provision as
inapplicable to the incumbent would lead to assigning a perverse
object to the amendment which would be totally illogical. For this
proposition, judgment in State of Madhya Pradesh v. Narmada
Bachao Andolan & Anr.2
is relied upon. Reliance is also placed
1 (1987) 1 SCC 424
2 (2011) 7 SCC 639
Writ Petition (Civil) No. 732 of 2018 etc. Page 8 of 21
on Boucher Pierre Andre v. Superintendent, Central Jail,
Tihar, New Delhi & Anr.3
10) Contrasting the provisions of Section 6 with Section 6A of the Act,
it is argued that proviso to Section 6A categorically makes a
provision to the effect that the Presiding Officer appointed before
the commencement of Finance Act, 2017 shall continue to be
governed by the provisions of Section 184 of the Finance Act,
2017 as if the said provisions had not coming to force. It was
submitted that there is no such proviso added to Section 6 which
makes the intention of the legislature very clear, namely, the
Presiding Officers who were in office as on the date of
amendment would be governed by the newly inserted Section 6.
11) Mr. Banerjee, learned ASG appearing for the respondent Union of
India contradicted the aforesaid arguments raised by the
petitioners with the following submissions:
No right has accrued by virtue of amendment in Section 6
to hold the office upto the age of 65 years. It was argued that
unamended Section 6 provided that the Presiding Officer shall
hold office for a term of five years or ‘until he attains the age of 62
years, whichever is earlier’. Amended provision, on the other
3 (1975) 1 SCC 192
Writ Petition (Civil) No. 732 of 2018 etc. Page 9 of 21
hand, does not state that the term of office would be five years or
until the Presiding Officer attains the age of 65 years. On the
other hand, this provision of 65 years was made in the proviso to
Section 6 which was couched in negative terms as it is stipulated
that no person shall hold the office after he has attained the age
of 65 years. Thus, no right accrues in favour of any person with
such a proviso. It was also submitted that unless a provision is
specifically given retrospective effect by the legislature, it only has
prospective operation. Therefore, intentment behind Section 6
was to make it applicable in respect of appointments which would
be made on or after September 1, 2016 when this provision was
inserted and the date from which it was specifically made
effective. It was also argued that the purpose was to infuse
young blood by deputing fresh Presiding Officers and not to give
benefit to the existing Presiding Officers. The learned ASG relied
upon judgment of this Court in C. Gupta v. Glaxo-Smithkline
Pharmaceuticals Ltd.4 and, in particular, following portion in that
judgment:
“21. In the present case, we find that for determining the
nature of amendment, the question is whether it affects the
legal rights of individual workers in the context that if they
fall within the definition then they would be entitled to claim
several benefits conferred by the Act. The amendment
should be also one which would touch upon their
substantive rights. Unless there is a clear provision to the
4 (2007) 7 SCC 171
Writ Petition (Civil) No. 732 of 2018 etc. Page 10 of 21
effect that it is retrospective or such retrospectivity can be
implied by necessary implication or intendment, it must be
held to be prospective. We find no such clear provision or
anything to suggest by necessary implication or intendment
either in the amending Act or in the amendment itself. The
amendment cannot be said to be one which affects
procedure. Insofar as the amendment substantially
changes the scope of the definition of the term “workman” it
cannot be said to be merely declaratory or clarificatory. In
this regard we find that entirely new category of persons
who are doing “operational” work was introduced first time
in the definition and the words “skilled” and “unskilled” were
made independent categories unlinked to the word
“manual”. It can be seen that the Industrial Disputes
(Amendment) Act, 1984 was enacted by Parliament on 31-
8-1982. However, the amendment itself was not brought
into force immediately and in sub-section (1) of Section 1 of
the amending Act, it was provided that it would come into
force on such day as the Central Government may by
notification in the Official Gazette, appoint. Ultimately, by a
notification the said amendment was brought into force on
21-8-1984. Although this Court has held that the
amendment would be prospective if it is deemed to have
come with effect on a particular day, a provision in the
Amendment Act to the effect that amendment would
become operative in the future, would have similar effect.
22. Therefore, by the application of the tests mentioned
above, it is clear that the definition of workman as
amended must, therefore, be presumed to be prospective.
12) We have given our due consideration to the arguments advanced
by the counsel for the parties on both sides and have also
perused the relevant material. We find force in the arguments of
the petitioners that the amended provisions of Section 6 shall
apply in their cases as well and, therefore, if they have not
completed five years of tenure as Presiding Officers of the Debt
Recovery Tribunal they are entitled to continue to work as
Writ Petition (Civil) No. 732 of 2018 etc. Page 11 of 21
Presiding Officers till they attain the age of 65 years or complete
five years’ term before attaining the age of 65 years. In the first
instance, we have to bear in mind the language/terminology
which the Legislature used while inserting new Section 6 with
effect from September 01, 2016. This section stands ‘substituted’
with the old section. The word ‘substituted’ has its own
significance. In Government of India & Ors. v. Indian Tobacco
Association5
, this Court noted dictionary meaning of the word
‘substitute’ as can be seen from para 15 of the said judgment:
“15. The word “substitute” ordinarily would mean “to put
(one) in place of another”; or “to replace”. In Black's Law
Dictionary, 5th Edn., at p. 1281, the word “substitute” has
been defined to mean “to put in the place of another
person or thing”, or “to exchange”. In Collins English
Dictionary, the word “substitute” has been defined to mean
“to serve or cause to serve in place of another person or
thing”; “to replace (an atom or group in a molecule) with
(another atom or group)”; or “a person or thing that serves
in place of another, such as a player in a game who takes
the place of an injured colleague”.
13) This expression has also come up for interpretation by the Courts
in Zile Singh v. State of Haryana and Others6
, the import and
impact of substituted provision were discussed in the following
manner:
“23. The text of Section 2 of the Second Amendment Act
provides for the word “upto” being substituted for the word
5 (2005) 7 SCC 396
6 (2004) 8 SCC 1
Writ Petition (Civil) No. 732 of 2018 etc. Page 12 of 21
“after”. What is the meaning and effect of the expression
employed therein — “shall be substituted”?
24. The substitution of one text for the other pre-existing
text is one of the known and well-recognised practices
employed in legislative drafting. “Substitution” has to be
distinguished from “supersession” or a mere repeal of an
existing provision.”
14) Ordinarily wherever the word ‘substitute’ or ‘substitution’ is used
by the legislature, it has the effect of deleting the old provision
and make the new provision operative. The process of
substitution consists of two steps: first, the old rule is made to
cease to exist and, next, the new rule is brought into existence in
its place. The rule is that when a subsequent Act amends an
earlier one in such a way as to incorporate itself, or a part of
itself, into the earlier, then the earlier Act must thereafter be read
and construed as if the altered words had been written into the
earlier Act with pen and ink and the old words scored out so that
thereafter there is no need to refer to the amending Act at all. No
doubt, in certain situations, the Court having regard to the purport
and object sought to be achieved by the Legislature may
construe the word "substitution" as an "amendment" having a
prospective effect. Therefore, we do not think that it is a
universal rule that the word ‘substitution’ necessarily or always
connotes two severable steps, that is to say, one of repeal and
Writ Petition (Civil) No. 732 of 2018 etc. Page 13 of 21
another of a fresh enactment even if it implies two steps.
However, the aforesaid general meaning is to be given effect to,
unless it is found that legislature intended otherwise. Insofar as
present case is concerned, as discussed hereinafter, the
legislative intent was also to give effect to the amended provision
even in respect of those incumbents who were in service as on
September 01, 2016.
15) The effect, thus, would be to replace Section 6 as amended with
the intention as if this is the only provision which exist from the
date of introduction and the earlier provision was not there at all.
The effect of this would be that all those incumbents who are
holding the post of Presiding Officer on September 01, 2016
would be governed by this provision.
16) When we examine the matter in the aforesaid perspective, the
question as to whether Section 6, as amended, is to be given
retrospective effect or not, does not arise for consideration. The
petitioners are right in submitting that persons who demitted the
office prior to the amendment are not sought to be covered by the
amendment. Had the provision been retrospective then it would
have benefited those persons as well. No such case is set up by
any of the petitioners or any other person, it is only the
Writ Petition (Civil) No. 732 of 2018 etc. Page 14 of 21
incumbents who are serving as on the date of the amendment
are sought to be covered.
17) Though in a different context, the judgment in Boucher Pierre
Andre throws some light on the issue at hand, as can be
discerned from the following discussion in that case:
“1. …..The petitioner was arrested on November 10, 1971
in connection with an offence of theft which took place in
the night between October 31, 1971 and November 1,
1971 in Rajasthan Emporium at Ashoka Hotel, New Delhi.
He was tried by the Additional Sessions Judge, Delhi and
by an order dated July 16, 1973 he was convicted of the
offence under Section 380 of the Indian Penal Code and
sentenced to rigorous imprisonment for four years and a
fine of Rs 10,000 and in default of payment of fine, further
rigorous imprisonment of one year. An appeal preferred by
him to the High Court of Delhi failed and his conviction was
confirmed but the substantive sentence of imprisonment
was reduced to two years though the fine was enhanced to
Rs 15,000 with one year's rigorous imprisonment in default.
The order of the High Court in appeal was passed on April
4, 1974. The petitioner did not pay the amount of fine and
he was, therefore, liable under the order of the High Court
to serve a maximum sentence of imprisonment for three
years. Since the petitioner was continuing under detention
from November 10, 1971 during the investigation, enquiry
and trial of the case against him, the petitioner contended
that by reason of Section 428 of the new Code of Criminal
Procedure, which came into force from April 1, 1974, the
period of detention from November 10, 1971 upto July 16,
1973 was liable to be set off against the term of
imprisonment imposed upon him and he could be required
to undergo imprisonment only for the remainder of the term
which, after taking into account the remission granted on
account of good behaviour, expired on August 12, 1974.
The petitioner claimed that he was, therefore, entitled to be
freed on August 12, 1974 and his detention in jail since that
date was illegal. The petitioner filed an application for a writ
of habeas corpus in the High Court of Delhi challenging the
validity of his detention since August 12, 1974 but the High
Court took the view that since the conviction of the
Writ Petition (Civil) No. 732 of 2018 etc. Page 15 of 21
petitioner by the Sessions Court had taken place prior to
the coming into force of the new Code of Criminal
Procedure, Section 428 had no application and the
petitioner was bound to suffer imprisonment for the full
term of three years calculated from the date of conviction,
namely, July 16, 1973. The habeas corpus application in
the High Court having failed, the petitioner preferred the
present writ petition directly in this Court under Article 32 of
the Constitution. This writ petition also claimed the same
relief and the ground was also the same, namely, that by
reason of Section 428, the term of imprisonment imposed
on the petitioner came to an end on August 12, 1974 and
his detention since that date was contrary to law.
2. The question which arises for determination in this
petition is a narrow one and it rests on the true
interpretation of Section 428. Is this section confined in its
application only to cases where a person is convicted after
the coming into force of the new Code of Criminal
Procedure, or does it also embrace cases where a person
has been convicted before but his sentence is still running
at the date when the new Code of Criminal Procedure
came into force? It is only if the latter interpretation is
accepted that the petitioner would be entitled to claim the
benefit of the section and hence it becomes necessary to
arrive at its proper construction. Section 428 reads as
follows:
“Where an accused person has, on conviction, been
sentenced to imprisonment for a term, the period of
detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and
before the date of such conviction, shall be set off
against the term of imprisonment imposed on him on
such conviction, and the liability of such person to
undergo imprisonment on such conviction shall be
restricted to the remainder, if any, of the term of
imprisonment imposed on him.”
This section, on a plain natural construction of its language,
posits for its applicability a fact situation which is described
by the clause “where an accused person has, on
conviction, been sentenced to imprisonment for a term”.
There is nothing in this clause which suggests, either
expressly or by necessary implication, that the conviction
and sentence must be after the coming into force of the
new Code of Criminal Procedure. The language of the
Writ Petition (Civil) No. 732 of 2018 etc. Page 16 of 21
clause is neutral. It does not refer to any particular point of
time when the accused person should have been convicted
and sentenced. It merely indicates a fact situation which
must exist in order to attract the applicability of the section
and this fact situation would be satisfied equally whether an
accused person has been convicted and sentenced before
or after the coming into force of the new Code of Criminal
Procedure. Even where an accused person has been
convicted prior to the coming into force of the new Code of
Criminal Procedure but his sentence is still running, it
would not be inappropriate to say that the “accused person
has, on conviction, been sentenced to imprisonment for a
term”. Therefore, where an accused person has been
convicted and he is still serving his sentence at the date
when the new Code of Criminal Procedure came into force.
Section 428 would apply and he would be entitled to claim
that the period of detention undergone by him during the
investigation, inquiry or trial of the case should be set off
against the term of imprisonment imposed on him and he
should be required to undergo only the remainder of the
term. Of course, if the term of the sentence has already run
out, no question of set off can arise. It is only where the
sentence is still running that the section can operate to
restrict the term. This construction of the section does not
offend against the principle which requires that unless the
legislative intent is clear and compulsive, no retrospective
operation should be given to a statute. On this
interpretation, the section is not given any retrospective
effect. It does not seek to set at naught the conviction
already recorded against the accused person. The
conviction remains intact and unaffected and so does the
sentence already undergone. It is only the sentence,
insofar as it yet remains to be undergone, that is, reduced.
The section operates prospectively on the sentence which
yet remains to be served and curtails it be setting off the
period of detention undergone by the accused person
during the investigation, inquiry or trial of the case. Any
argument based on the objection against giving
retrospective operation is, therefore, irrelevant.”
(emphasis supplied)
18) Our view is also in accord with the purport and objective behind
the amendment which were reflected while carrying out the
Writ Petition (Civil) No. 732 of 2018 etc. Page 17 of 21
amendment itself. The purpose of amending Section 6 was to
reduce the burden of pendency by enhancement of age of the
Judges concerned. The Report of the Lok Sabha Joint
Committee qua the Amendment sets out the background to the
amendment as follows:
“On the issue of pendency of cases in various DRTs, the
Committee has been apprised by the Department of
Financial Services that approximately 70,000 court cases
pending in DRTs involving more than Rs. 5 Lakh Crore.
One of the reasons mentioned in the memoranda
submitted by various stakeholders for the pendency of
cases is vacancies in various stakeholders for the
pendency of cases is vacancies in various DRTs/DRATs. A
number of suggestions in this regard have been made by
the stakeholders. After detailed deliberations on the issue,
the Committee decide(d) to insert the following new
provision/substitute some of the provisions under the
RDDB & FI Act….”
(emphasis supplied)
19) Similarly, the Statement of Objects and Reasons to the
amendment inter alia notes:
“The Recovery of Debts due to Banks and Financial
Institutions Act, 1993 and the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, were enacted for expeditious
recovery of loans of banks and financial institutions.
Presently, there are approximately seventy thousand cases
pending in Debts Recovery Tribunals. Though the
Recovery of Debts due to Banks and Financial Institutions
Act provides for a period of 180 days for disposal of
recovery applications, the cases are pending for many
years due to various adjournments and prolonged
hearings. In order to facilitate expeditious disposal of
recovery applications, it has been decided to amend the
said Acts and also to make consequential amendments in
the Indian Stamp Act, 1899 and the Depositories Act,
1996.”
(emphasis supplied)
Writ Petition (Civil) No. 732 of 2018 etc. Page 18 of 21
20) In order to fulfill the aforesaid objective of reducing the arrears
and tackle the issue of pendency of cases in various Debt
Recovery Tribunals, ‘purposive interpretation’ is to be given. In
Reserve Bank of India, the Court explained this principle in the
following manner:
“33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may well
say if the text is the texture, context is what gives the
colour. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a
statute is looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words may
take colour and appear different than when the statute is
looked at without the glasses provided by the context. With
these glasses we must look at the Act as a whole and
discover what each section, each clause, each phrase and
each word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word
of a statute can be construed in isolation. Statutes have to
be construed so that every word has a place and
everything is in its place……..”
(emphasis supplied)
21) We are, thus, of the opinion that while carrying out the aforesaid
amendment with the intention to substitute the amended
provision with that of unamended, the Parliament desired that the
benefit of this provision extended even to those who are serving
as Presiding Officers on the date when the amendment became
Writ Petition (Civil) No. 732 of 2018 etc. Page 19 of 21
enforceable. This seems to be just, reasonable and sensible
outcome.
22) This interpretation is contextual as well which can be discerned
by contrasting amended Section 6 with newly inserted Section 6A
of the Act.
“…..There is a clear distinction between incumbent officers
and the officers appointed in future. In contrast, there is no
distinction, legislatively drawn, between incumbent or
officers appointed in future for application of amended
Section 6.”
23) This view of ours would negate the contention of the learned ASG
that Section 6 as amended does not create any right. If such an
interpretation is accepted, then even those persons appointed as
Presiding Officers after September 01, 2016, can be denied the
right to continue in service till 65 years. Judgment in GlaxoSmithkline
Pharmaceuticals Ltd., which was relied upon by the
learned ASG would have no application. That was a case where
there was an amendment to Section 2(s) of the Industrial
Disputes Act, 1947 which was brought into force on August 21,
1994 and the Court held the same to be prospective in nature. It
was further held that the provision which was applicable as on the
date of termination of the appellant in that case would apply.
Obviously, such a case has no application to the instant case.
Writ Petition (Civil) No. 732 of 2018 etc. Page 20 of 21
24) The writ petition and the transferred cases filed by these
petitioners, accordingly, stand allowed with no order as to costs.
As a result, those petitioners in whose favour there is an interim
stay would be allowed to continue. The petitioner in Writ Petition
(Civil) No. 732 of 2018 shall be taken back in service forthwith,
with continuity of service and salary of intervening period.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
SEPTEMBER 07, 2018.
Writ Petition (Civil) No. 732 of 2018 etc. Page 21 of 21
