2018 (9) TMI 455 - SC - Indian Laws

Tenure of Presiding Officers Officers of Debt Recovery Tribunal (DRT) - 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 of 65 years, whichever is earlier? 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? Held 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 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, it is to be borne 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. 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 - the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise. Insofar as present case is concerned, 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 - 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. Whether Section 6, as amended, is to be given retrospective effect or not? - Held that - 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 incumbents who are serving as on the date of the amendment are sought to be covered - The purpose of amending Section 6 was to reduce the burden of pendency by enhancement of age of the Judges concerned. 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 enforceable. This seems to be just, reasonable and sensible outcome. Petition allowed.

Summary

Issues Involved:
1. Applicability of the amended Section 6 of the Recovery of Debts and Bankruptcy Act, 1993 to the Presiding Officers appointed before the amendment.
2. Interpretation of the term "substituted" in the context of legislative amendments.
3. Legislative intent behind the amendment to Section 6.
4. Impact of the amendment on the tenure and retirement age of existing Presiding Officers.

Issue-wise Detailed Analysis:

1. Applicability of the Amended Section 6:
The primary issue was whether the petitioners, who were appointed as Presiding Officers of Debt Recovery Tribunals (DRTs) before the amendment to Section 6, are entitled to continue in office until they attain the age of 65 years or complete five years of tenure, whichever is earlier, as per the amended provision. The unamended Section 6 stipulated a term of five years or until the age of 62 years, whichever is earlier. The amended Section 6, effective from September 1, 2016, extended the tenure to five years with eligibility for reappointment, provided the officer does not exceed 65 years of age.

2. Interpretation of the Term "Substituted":
The court examined the term "substituted" used in the legislative amendment. It was argued that the term "substituted" means the old provision is entirely replaced by the new one, making the new provision applicable to those already in service as of the amendment date. The court referred to definitions and previous judgments to establish that "substitution" implies the old rule ceases to exist and the new rule takes its place, thus applying to current incumbents.

3. Legislative Intent:
The court considered the legislative intent behind the amendment, which was to reduce the backlog of cases by extending the retirement age of Presiding Officers. The Lok Sabha Joint Committee Report and the Statement of Objects and Reasons highlighted the need to address the pendency of cases and ensure continuity in the functioning of DRTs. The court emphasized that the purpose of the amendment would be served only if it applied to incumbents in service as of the amendment date.

4. Impact on Tenure and Retirement Age:
The court found that the amended Section 6 should apply to the petitioners, allowing them to continue their tenure until they reach 65 years of age or complete five years, whichever is earlier. This interpretation aligns with the legislative intent and ensures the effective functioning of DRTs. The court noted that the amended provision does not create a retrospective effect but applies prospectively to those in service on the amendment date.

Conclusion:
The court allowed the petitions, stating that the petitioners are entitled to the benefits of the amended Section 6. This decision ensures that the Presiding Officers can continue in their roles until the age of 65 or the completion of their five-year term, thus supporting the legislative objective of reducing case backlogs in DRTs. The judgment emphasizes the importance of purposive interpretation and the significance of legislative terminology in determining the applicability of amendments.