GOTTUMUKKALA VENKATA KRISHAMRAJU versus UNION OF INDIA & ORS. on 7 September 2018

GOTTUMUKKALA VENKATA KRISHAMRAJU

v.

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 732 of 2018)

SEPTEMBER 07, 2018.

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Recovery of Debts and Bankruptcy Act, 1993:

s. 6 (as substituted/amended by Act 44 of 2016 w.e.f. September1, 2016) – Term of office of Presiding Officer – Applicability of thesubstituted/amended provision – To the Presiding Officers who wereappointed prior to the substitution of the provision – Petitionerswere appointed as Presiding Officers – Term of the office applicableat the relevant time as per s. 6 (unamended) was for 5 years untilattaining 62 years of age, whichever was earlier – s. 6 wassubstituted w.e.f. September 01, 2016 – As per the substitutedprovision term of office was for five years till attaining the age of65 – On September 01, 2016 the petitioners had not completed 35years but were attaining 62 years of age – Writ petition claiming tobe governed by substituted s. 6 – Held: The amended /substituted s.6 shall apply in the case of petitioners.

s.6 (as substituted/amended by Act 44 of 2016) – Interpretationof – Held: Purpose of the amendment was to reduce the burden ofpendency by enhancing of age of Judges – In order to fulfill theobjective purposive interpretation is to be given to the statute –Interpretation of Statute – Purposive interpretation.

Legislation:

Substitution of a provision – Effect of – Held: Whenever thelegislature uses the word ‘substitution’, it has the effect of deletingthe old provision and make the new provision operative – The words‘substitution’ can be construed as an ‘amendment’, if it is foundthat legislature intended otherwise.

Words and Phrases:

‘Substitute’, ‘Substitution’ – Meaning of.

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AAllowing the matters, the Court

HELD: 1. The amended provisions of Section 6 shall applyin the case of petitioners as well and, therefore, if they have notcompleted five years of tenure as Presiding Officers of the DebtRecovery Tribunal they are entitled to continue to work asBPresiding Officers till they attain the age of 65 years or completefive years’ term before attaining the age of 65 years. [Para11][48-C]

2. Section 6 stands ‘substituted’ with the old Section.Ordinarily wherever the word ‘substitute’ or ‘substitution’ is usedCby the legislature, it has the effect of deleting the old provisionand make the new provision operative. The process ofsubstitution consists of two steps: first, the old rule is made tocease to exist and, next, the new rule is brought into existencein its place. The rule is that when a subsequent Act amends anearlier one in such a way as to incorporate itself, or a part ofDitself, into the earlier, then the earlier Act must thereafter beread and construed as if the altered words had been written intothe earlier Act with pen and ink and the old words scored out sothat thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard toEthe purport and object sought to be achieved by the Legislaturemay construe the word “substitution” as an “amendment” havinga prospective effect. Therefore, it is not a universal rule that theword ‘substitution’ necessarily or always connotes two severablesteps, that is to say, one of repeal and another of a fresh enactmenteven if it implies two steps. However, the aforesaid generalFmeaning is to be given effect to, unless it is found that legislatureintended otherwise. [Paras 12, 14][49-G; 50-E-H; 51-A]

3. Insofar as present case is concerned, the legislative intentwas also to give effect to the amended provision even in respectof those incumbents who were in service as on September 01,G2016. The effect, thus, would be to replace Section 6 as amendedwith the intention as if this is the only provision which exist fromthe date of introduction and the earlier provision was not thereat all. The effect of this would be that all those incumbents whoare holding the post of Presiding Officer on September 01, 2016Hwould be governed by this provision. [Paras 14, 15][51-A-C]

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4. The purpose of amending Section 6 was to reduce theburden of pendency by enhancement of age of the Judgesconcerned. This is apparent from the Report of the Lok SabhaJoint Committee qua the Amendment and from the Statement ofObjects and Reasons to the amendment. In order to fulfill theaforesaid objective of reducing the arrears and tackle the issueof pendency of cases in various Debt Recovery Tribunals,‘purposive interpretation’ is to be given. [Paras 18, 19 and 20][54-D, G; 55-C-D]

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5. Thus, while carrying out the aforesaid amendment withthe intention to substitute the amended provision with that ofunamended, the Parliament desired that the benefit of thisprovision extended even to those who are serving as PresidingOfficers on the date when the amendment became enforceable.[Para 21][55-H; 56-A]

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Reserve Bank of India v. Peerless General Finance andInvestment Co. Ltd. & Ors. (1987) 1 SCC 424 : [1987]2 SCR 1; Government of India & Ors. v. IndianTobacco Association (2005) 7 SCC 396 : [2005] 2Suppl. SCR 859; Zile Singh v. State of Haryana andOthers (2004) 8 SCC 1 : [2004] 5 Suppl. SCR 272 –relied on.

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State of Madhya Pradesh v. Narmada Bachao Andolan& Anr. (2011) 7 SCC 639 : [2011] 6 SCR 443; BoucherPierre Andre v. Superintendent, Central Jail, Tihar, NewDelhi & Anr. (1975) 1 SCC 192; Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd. (2007) 7 SCC 171 :[2007] 7 SCR 800 – referred to.

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Case Law Reference

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ACIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.732 of 2018.

Under Article 32 of the Constitution of India.

WITH

BT.C (C) Nos. 301, 304, 303, 305, 306 of 2017.

Vikramjeet Banerjee, ASG, Ashok Kumar Panda, R. Basant,Sr. Advs., Ravindra Kumar, M. A. Chinnasamy, K. Ethiraj,Ms. C. Rubavathi, V. Senthil Kumar, Santosh Krishnan, ChandraBhushan Prasad, Tejaswi Kumar Pradhan, M. Paikaray, AniruddhaCPurushotham, Ms. Shobha Gupta, Nachiketa Joshi, Ms. SwarupamaChaturvedi, Ms. Disha Rai, Mrs. Anil Katiyar, B.V. Balram Das, Advs.for the appearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. Petitioners in these petitions were appointedDas Presiding Officers of Debt Recovery Tribunal created under theRecovery of Debts due to Banks and Financial Institutions Act, 1993which is rechristened as Recovery of Debts and Bankruptcy Act, 1993(hereinafter referred to as the ‘Act’). The appointment was made underthe provisions of the said Act. Chapter II of the Act deals with theestablishment of Tribunal and Appellate Tribunal. The provisions relevantEfor our purposes are Sections 3 to 6. Section 3 deals with establishmentof the Tribunal by the Central Government to be known as the DebtsRecovery Tribunal. Section 4 talks of composition of the Tribunal. Section5 deals with the qualifications for appointment as Presiding Officers.Once appointed, the term of office of a Presiding Officer is stipulated inFSection 6. There have been amendments to the various provisions ofthis Act in the year 2016. Also, the Act which was earlier known as theRecovery of Debts due to Banks and Financial Institutions Act, 1993 isgiven a new nomenclature and is now known as the Recovery of Debtsand Bankruptcy Act, 1993 by the Finance Act, 2017. UnamendedSections 3 to 6 were as under:G

“3. Establishment of Tribunal.—(1) The Central Governmentshall, by notification, establish one or more Tribunals, to be knownas the Debts Recovery Tribunal, to exercise the jurisdiction, powersand authority conferred on such Tribunal by or under this Act.

(2) The Central Government shall also specify, in the notificationreferred to in sub-section (1), the areas within which the Tribunalmay exercise jurisdiction for entertaining and deciding theapplications filed before it.

4. Composition of Tribunal.—(1) A Tribunal shall consist ofone 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), theCentral Government may authorise the Presiding Officer of oneTribunal to discharge also the functions of the Presiding Officerof another Tribunal.

5. Qualifications for appointment as Presiding Officer.—Aperson shall not be qualified for appointment as the PresidingOfficer 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 shallhold office for a term of five years from the date on which heenters 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 asPresiding Officer to a Tribunal, he could hold office for a term of fiveyears from the date on which he enters upon his office or until theattainment of 62 years of age, whichever is earlier. This Section issubstituted by Act 44 of 2016 w.e.f. September 1, 2016 and the amendedprovision read as under:

“6. Term of office of Presiding Officer – The Presiding Officerof a Tribunal shall hold office for a term of five years from thedate on which he enters upon his office and shall be eligible forreappointment.

Provided that no person shall hold office as the Presiding Officerof a Tribunal after he has attained the age of sixty-five years.”

Along with that, another provision in the form of Section 6A isalso inserted which is to the following effect:

“6A. Qualifications, terms and conditions of service ofPresiding Officer – Notwithstanding anything contained in this A

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AAct, the qualifications, appointment, term of office, salaries andallowances, resignation, removal and the other terms andconditions of service of the Presiding Officer of the Tribunalappointed after the commencement of Part XIV of Chapter VIof the Finance Act, 2017, shall be governed by the provisions ofsection 184 of that Act:BProvided that the Presiding Officer appointed before thecommencement 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 184of the Finance Act, 2017 had not come into force.”CSome other provisions are also amended, but those are not relevantfor the purposes of these cases.

4. All the petitioners were appointed before the amendment toSection 6. Thus, at the time of their appointment, the term of their officeDwas “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 intoforce amended Section 6. In the aforesaid backdrop, the question thatarises for consideration in these petitions is as to whether the petitionersare entitled to complete the term of five years taking advantage of theEamended provision which gives such Presiding Officers to continue untilattaining the age of 65 years or to continue till they reach the age of 65years, whichever is earlier.

5. For the sake of convenience, we may give particulars in respectof Transfer Case (Civil) No. 301 of 2017 and, at the same time, takeFnote of the progress in other cases as well.

DateEvent27.12.1954 Date of birth of the petitioner. The petitioner turned 62 years on 26.12.2016 and will turn 65 years, on 26.12.2019. G27.08.1993Enactment 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 His earlier.

urned rs, on ks and he Act Debt years hever 15.12.2014Appointment notification of petitioner as Presiding AOfficer, 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 Bthe 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. C29.09.2016 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 DOfficer, 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 Epetition 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. F26.12.2016 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 Gsays 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 Henhanced age of retirement.

A04.10.2017The 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 BCourt. 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. C14.11.2017 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 Dyears on this date.

6. As per the provisions of unamended Section 6, the petitionercould continue only upto December 26, 2016 as he had completed 62years of age on that date though he had not completed five years ofterm as the Presiding Officer. If amended Section 6 is applicable, thenEhe would be entitled to continue upto December 26, 2019 on which datehe shall attain the age of 65 years. Same is the fact situation in all thesecases, though the dates on which they would be completing five yearsterm or attaining 65 years of age, are different.

7. In this backdrop, the issue that has arisen in these petitions is asFto whether the petitioners would be governed by Section 6 as amendedor 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 afterSeptember 1, 2016.

8. The endeavour of the petitioners is to demonstrate that theyGwould be governed by Section 6 as amended and, therefore, they haveright to continue upto the age of 65 years or till the time they completefive years tenure before they have attained the age of 65 years. Thesubmission which are paraphrased by the petitioners in support of theiraforesaid plea are the following:

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a the ntral s of nsfer 2016 High e on otice P(C) ings P(C) erim ding ars.five (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 provisionapplicable also to those Presiding Officers who were holding thepost as on September 1, 2016 when the amendment was broughtinto force. It was argued that the very expression ‘substituted’would mean that the old Section 6 stands obliterated.

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(b) Purpose behind the amendment was to reduce the burden ofpendency by enhancing the age of the Presiding Officers. This iscategorically mentioned in the report of the Lok Sabha, JointCommittee and also in the Statement of Objects and Reasons tothe amendment.

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(c) The provision needs to be given purposive interpretation andkeeping in view the purpose and object behind the amendment,the said purpose would be sub-served only if it is applied to theincumbents in the service as well as on the date of the application.DReference is made to the judgment of this Court in Reserve Bankof India v. Peerless General Finance and Investment Co. Ltd.& Ors.[1]

9. In that very hue, it is argued that to interpret the provision asinapplicable to the incumbent would lead to assigning a perverse objectto 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 on Boucher Pierre Andrev. Superintendent, Central Jail, Tihar, New Delhi & Anr.[3]

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10. Contrasting the provisions of Section 6 with Section 6A of theAct, it is argued that proviso to Section 6A categorically makes a provisionto the effect that the Presiding Officer appointed before thecommencement of Finance Act, 2017 shall continue to be governed bythe provisions of Section 184 of the Finance Act, 2017 as if the saidprovisions had not coming to force. It was submitted that there is nosuch proviso added to Section 6 which makes the intention of thelegislature very clear, namely, the Presiding Officers who were in officeas on the date of amendment would be governed by the newly insertedSection 6.

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1 (1987) 1 SCC 4242 (2011) 7 SCC 6393 (1975) 1 SCC 192

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48SUPREME COURT REPORTS

A11. Mr. Banerjee, learned ASG appearing for the respondent Unionof India contradicted the aforesaid arguments raised by the petitionerswith the following submissions:

No right has accrued by virtue of amendment in Section 6 tohold the office upto the age of 65 years. It was argued that unamendedBSection 6 provided that the Presiding Officer shall hold office for a termof five years or ‘until he attains the age of 62 years, whichever is earlier’.Amended provision, on the other hand, does not state that the term ofoffice would be five years or until the Presiding Officer attains the ageof 65 years. On the other hand, this provision of 65 years was made inthe proviso to Section 6 which was couched in negative terms as it isCstipulated that no person shall hold the office after he has attained theage of 65 years. Thus, no right accrues in favour of any person withsuch a proviso. It was also submitted that unless a provision is specificallygiven retrospective effect by the legislature, it only has prospectiveoperation. Therefore, intentment behind Section 6 was to make itDapplicable in respect of appointments which would be made on or afterSeptember 1, 2016 when this provision was inserted and the date fromwhich it was specifically made effective. It was also argued that thepurpose was to infuse young blood by deputing fresh Presiding Officersand not to give benefit to the existing Presiding Officers. The learnedASG relied upon judgment of this Court in C. Gupta v. Glaxo-SmithklineEPharmaceuticals Ltd.[4]and, in particular, following portion in thatjudgment:

“21. In the present case, we find that for determining the natureof amendment, the question is whether it affects the legal rightsof individual workers in the context that if they fall within theFdefinition then they would be entitled to claim several benefitsconferred by the Act. The amendment should be also one whichwould touch upon their substantive rights. Unless there is a clearprovision to the effect that it is retrospective or such retrospectivitycan be implied by necessary implication or intendment, it must beGheld to be prospective. We find no such clear provision or anythingto suggest by necessary implication or intendment either in theamending Act or in the amendment itself. The amendment cannotbe said to be one which affects procedure. Insofar as theamendment substantially changes the scope of the definition of H 4 (2007) 7 SCC 171

the term “workman” it cannot be said to be merely declaratory orclarificatory. In this regard we find that entirely new category ofpersons who are doing “operational” work was introduced firsttime in the definition and the words “skilled” and “unskilled” weremade independent categories unlinked to the word “manual”. Itcan be seen that the Industrial Disputes (Amendment) Act, 1984was enacted by Parliament on 31-8-1982. However, theamendment itself was not brought into force immediately and insub-section (1) of Section 1 of the amending Act, it was providedthat it would come into force on such day as the CentralGovernment may by notification in the Official Gazette, appoint.Ultimately, by a notification the said amendment was brought intoforce on 21-8-1984. Although this Court has held that theamendment would be prospective if it is deemed to have comewith effect on a particular day, a provision in the Amendment Actto the effect that amendment would become operative in the future,would have similar effect.

22. Therefore, by the application of the tests mentioned above, itis clear that the definition of workman as amended must, therefore,be presumed to be prospective.

12. We have given our due consideration to the argumentsadvanced by the counsel for the parties on both sides and have alsoperused the relevant material. We find force in the arguments of thepetitioners that the amended provisions of Section 6 shall apply in theircases as well and, therefore, if they have not completed five years oftenure as Presiding Officers of the Debt Recovery Tribunal they areentitled to continue to work as Presiding Officers till they attain the ageof 65 years or complete five years’ term before attaining the age of 65years. In the first instance, we have to bear in mind the language/terminology which the Legislature used while inserting new Section 6with 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 Association[5], thisCourt noted dictionary meaning of the word ‘substitute’ as can be seenfrom 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, 5 (2005) 7 SCC 396

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A5th Edn., at p. 1281, the word “substitute” has been defined tomean “to put in the place of another person or thing”, or “toexchange”. In Collins English Dictionary, the word “substitute”has been defined to mean “to serve or cause to serve in place ofanother person or thing”; “to replace (an atom or group in amolecule) with (another atom or group)”; or “a person or thingBthat serves in place of another, such as a player in a game whotakes the place of an injured colleague”.

13. This expression has also come up for interpretation by theCourts in Zile Singh v. State of Haryana and Others[6], the import andimpact of substituted provision were discussed in the following manner:C

“23. The text of Section 2 of the Second Amendment Act providesfor the word “upto” being substituted for the word “after”. Whatis the meaning and effect of the expression employed therein —“shall be substituted”?

D24. The substitution of one text for the other pre-existing text isone of the known and well-recognised practices employed inlegislative drafting. “Substitution” has to be distinguished from“supersession” or a mere repeal of an existing provision.”

14. Ordinarily wherever the word ‘substitute’ or ‘substitution’ isEused by the legislature, it has the effect of deleting the old provision andmake the new provision operative. The process of substitution consistsof two steps: first, the old rule is made to cease to exist and, next, thenew rule is brought into existence in its place. The rule is that when asubsequent Act amends an earlier one in such a way as to incorporateitself, or a part of itself, into the earlier, then the earlier Act must thereafterFbe read and construed as if the altered words had been written into theearlier Act with pen and ink and the old words scored out so that thereafterthere is no need to refer to the amending Act at all. No doubt, in certainsituations, the Court having regard to the purport and object sought to beachieved by the Legislature may construe the word “substitution” as anG“amendment” having a prospective effect. Therefore, we do not thinkthat it is a universal rule that the word ‘substitution’ necessarily or alwaysconnotes two severable steps, that is to say, one of repeal and another ofa fresh enactment even if it implies two steps. However, the aforesaidgeneral meaning is to be given effect to, unless it is found that legislature 6 (2004) 8 SCC 1H

intended otherwise. Insofar as present case is concerned, as discussedhereinafter, the legislative intent was also to give effect to the amendedprovision even in respect of those incumbents who were in service as onSeptember 01, 2016.

15. The effect, thus, would be to replace Section 6 as amendedwith the intention as if this is the only provision which exist from the dateof introduction and the earlier provision was not there at all. The effectof this would be that all those incumbents who are holding the post ofPresiding Officer on September 01, 2016 would be governed by thisprovision.

16. When we examine the matter in the aforesaid perspective,the question as to whether Section 6, as amended, is to be givenretrospective effect or not, does not arise for consideration. Thepetitioners are right in submitting that persons who demitted the officeprior to the amendment are not sought to be covered by the amendment.Had the provision been retrospective then it would have benefited thosepersons as well. No such case is set up by any of the petitioners or anyother person, it is only the incumbents who are serving as on the date ofthe amendment are sought to be covered.

17. Though in a different context, the judgment in Boucher PierreAndre throws some light on the issue at hand, as can be discerned fromthe following discussion in that case:

“1. …..The petitioner was arrested on November 10, 1971 inconnection with an offence of theft which took place in the nightbetween October 31, 1971 and November 1, 1971 in RajasthanEmporium at Ashoka Hotel, New Delhi. He was tried by theAdditional Sessions Judge, Delhi and by an order dated July 16,1973 he was convicted of the offence under Section 380 of theIndian Penal Code and sentenced to rigorous imprisonment forfour years and a fine of Rs 10,000 and in default of payment offine, further rigorous imprisonment of one year. An appeal preferredby him to the High Court of Delhi failed and his conviction wasconfirmed but the substantive sentence of imprisonment wasreduced to two years though the fine was enhanced to Rs 15,000with one year’s rigorous imprisonment in default. The order ofthe High Court in appeal was passed on April 4, 1974. The petitionerdid not pay the amount of fine and he was, therefore, liable under A

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the order of the High Court to serve a maximum sentence ofimprisonment for three years. Since the petitioner was continuingunder detention from November 10, 1971 during the investigation,enquiry and trial of the case against him, the petitioner contendedthat by reason of Section 428 of the new Code of CriminalProcedure, which came into force from April 1, 1974, the periodof detention from November 10, 1971 upto July 16, 1973 wasliable to be set off against the term of imprisonment imposed uponhim and he could be required to undergo imprisonment only forthe remainder of the term which, after taking into account theremission granted on account of good behaviour, expired on August12, 1974. The petitioner claimed that he was, therefore, entitled tobe freed on August 12, 1974 and his detention in jail since thatdate was illegal. The petitioner filed an application for a writ ofhabeas corpus in the High Court of Delhi challenging the validityof his detention since August 12, 1974 but the High Court took theview that since the conviction of the petitioner by the SessionsCourt had taken place prior to the coming into force of the newCode of Criminal Procedure, Section 428 had no application andthe petitioner was bound to suffer imprisonment for the full termof three years calculated from the date of conviction, namely,July 16, 1973. The habeas corpus application in the High Courthaving failed, the petitioner preferred the present writ petitiondirectly in this Court under Article 32 of the Constitution. Thiswrit petition also claimed the same relief and the ground was alsothe same, namely, that by reason of Section 428, the term ofimprisonment imposed on the petitioner came to an end on August12, 1974 and his detention since that date was contrary to law.

2. The question which arises for determination in this petition is anarrow one and it rests on the true interpretation of Section 428.Is this section confined in its application only to cases where aperson is convicted after the coming into force of the new Codeof Criminal Procedure, or does it also embrace cases where aperson has been convicted before but his sentence is still runningat the date when the new Code of Criminal Procedure came intoforce?It is only if the latter interpretation is accepted that thepetitioner would be entitled to claim the benefit of the section andhence it becomes necessary to arrive at its proper construction.Section 428 reads as follows:

“Where an accused person has, on conviction, been sentencedto imprisonment for a term, the period of detention, if any,undergone by him during the investigation, inquiry or trial ofthe same case and before the date of such conviction, shall beset off against the term of imprisonment imposed on him onsuch conviction, and the liability of such person to undergoimprisonment on such conviction shall be restricted to theremainder, if any, of the term of imprisonment imposed on him.”

This section, on a plain natural construction of its language, positsfor its applicability a fact situation which is described by the clause“where an accused person has, on conviction, been sentenced toimprisonment for a term”. There is nothing in this clause whichsuggests, either expressly or by necessary implication, that theconviction and sentence must be after the coming into force ofthe new Code of Criminal Procedure. The language of the clauseis neutral. It does not refer to any particular point of time whenthe accused person should have been convicted and sentenced. Itmerely indicates a fact situation which must exist in order to attractthe applicability of the section and this fact situation would besatisfied equally whether an accused person has been convictedand sentenced before or after the coming into force of the newCode of Criminal Procedure.Even where an accused person hasbeen convicted prior to the coming into force of the new Code ofCriminal Procedure but his sentence is still running, it would notbe inappropriate to say that the “accused person has, on conviction,been sentenced to imprisonment for a term”. Therefore, wherean accused person has been convicted and he is still serving hissentence at the date when the new Code of Criminal Procedurecame into force. Section 428 would apply and he would be entitledto claim that the period of detention undergone by him during theinvestigation, inquiry or trial of the case should be set off againstthe term of imprisonment imposed on him and he should be requiredto undergo only the remainder of the term. Of course, if the termof the sentence has already run out, no question of set off canarise. It is only where the sentence is still running that the sectioncan operate to restrict the term. This construction of the sectiondoes not offend against the principle which requires that unlessthe legislative intent is clear and compulsive, no retrospective A

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Aoperation should be given to a statute. On this interpretation, thesection is not given any retrospective effect. It does not seek toset at naught the conviction already recorded against the accusedperson.The conviction remains intact and unaffected and so doesthe sentence already undergone. It is only the sentence, insofaras it yet remains to be undergone, that is, reduced. The sectionBoperates prospectively on the sentence which yet remains to beserved and curtails it be setting off the period of detentionundergone by the accused person during the investigation, inquiryor trial of the case. Any argument based on the objection againstgiving retrospective operation is, therefore, irrelevant.”

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18. Our view is also in accord with the purport and objectivebehind the amendment which were reflected while carrying out theamendment itself. The purpose of amending Section 6 was to reducethe burden of pendency by enhancement of age of the Judges concerned.DThe Report of the Lok Sabha Joint Committee qua the Amendment setsout the background to the amendment as follows:

“On the issue of pendency of cases in various DRTs, the Committeehas been apprised by the Department of Financial Services thatapproximately 70,000 court cases pending in DRTs involvingEmore than Rs. 5 Lakh Crore. One of the reasons mentioned inthe memoranda submitted by various stakeholders for thependency of cases is vacancies in various stakeholders forthe pendency of cases is vacancies in various DRTs/DRATs.A number of suggestions in this regard have been made by theFstakeholders. After detailed deliberations on the issue, theCommittee decide(d) to insert the following new provision/substitute some of the provisions under the RDDB & FI Act….”

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19. Similarly, the Statement of Objects and Reasons to theGamendment inter alia notes:

“The Recovery of Debts due to Banks and Financial InstitutionsAct, 1993 and the Securitisation and Reconstruction of FinancialAssets and Enforcement of Security Interest Act, 2002, wereenacted for expeditious recovery of loans of banks and financial institutions. Presently, there are approximately seventythousand cases pending in Debts Recovery Tribunals. Thoughthe Recovery of Debts due to Banks and Financial InstitutionsAct provides for a period of 180 days for disposal of recoveryapplications, the cases are pending for many years due tovarious adjournments and prolonged hearings. In order tofacilitate expeditious disposal of recovery applications, it hasbeen decided to amend the said Actsand also to makeconsequential amendments in the Indian Stamp Act, 1899 and theDepositories Act, 1996.”

20. In order to fulfill the aforesaid objective of reducing the arrearsand tackle the issue of pendency of cases in various Debt RecoveryTribunals, ‘purposive interpretation’ is to be given. In Reserve Bank ofIndia, the Court explained this principle in the following manner:

“33. Interpretation must depend on the text and the context. Theyare the bases of interpretation. One may well say if the text is thetexture, context is what gives the colour. Neither can be ignored.Both are important. That interpretation is best which makes thetextual interpretation match the contextual. A statute is bestinterpreted when we know why it was enacted.With thisknowledge, the statute must be read, first as a whole and thensection by section, clause by clause, phrase by phrase and wordby word.If a statute is looked at, in the context of its enactment,-with the glasses of the statutemaker, provided by such context,its scheme, the sections, clauses, phrases and words may takecolour and appear different than when the statute is lookedat without the glasses provided by the context.With theseglasses we must look at the Act as a whole and discover whateach section, each clause, each phrase and each word is meantand designed to say as to fit into the scheme of the entire Act. Nopart of a statute and no word of a statute can be construed inisolation. Statutes have to be construed so that every word has aplace and everything is in its place……..”

21. We are, thus, of the opinion that while carrying out the aforesaidamendment with the intention to substitute the amended provision with AB

C

DE

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Athat of unamended, the Parliament desired that the benefit of this provisionextended even to those who are serving as Presiding Officers on thedate when the amendment became enforceable. This seems to be just,reasonable and sensible outcome.

22. This interpretation is contextual as well which can be discernedBby contrasting amended Section 6 with newly inserted Section 6A of theAct.

“…..There is a clear distinction between incumbent officers andthe officers appointed in future. In contrast, there is no distinction,legislatively drawn, between incumbent or officers appointed inCfuture for application of amended Section 6.”

23. This view of ours would negate the contention of the learnedASG that Section 6 as amended does not create any right. If such aninterpretation is accepted, then even those persons appointed as PresidingOfficers after September 01, 2016, can be denied the right to continue inDservice till 65 years. Judgment in Glaxo-Smithkline PharmaceuticalsLtd., 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 theIndustrial Disputes Act, 1947 which was brought into force on August21, 1994 and the Court held the same to be prospective in nature. It wasfurther held that the provision which was applicable as on the date ofEtermination of the appellant in that case would apply. Obviously, such acase has no application to the instant case.

24. The writ petition and the transferred cases filed by thesepetitioners, accordingly, stand allowed with no order as to costs. As aresult, those petitioners in whose favour there is an interim stay wouldFbe allowed to continue. The petitioner in Writ Petition (Civil) No. 732 of2018 shall be taken back in service forthwith, with continuity of serviceand salary of intervening period.

Kalpana K. TripathyG

Matters allowed.

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