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

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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

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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

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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  Glaxo-

Smithkline 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.

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