TMI Blog2018 (9) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 65 years, whichever is earlier. 5) For the sake of convenience, we may give particulars in respect of Transfer Case (Civil) No. 301 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. (1987) 1 SCC 424 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. (2011) 7 SCC 639 is relied upon. Reliance is also placed on Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi Anr. (1975) 1 SCC 192 10) Contrasting the provisions of Section 6 with Section 6A of the Act, it is argued that proviso to Section 6A categorically makes a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Act. The amendment should be also one which would touch upon their substantive rights. Unless there is a clear provision to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entenced to rigorous imprisonment for four years and a fine of ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 20) In order to fulfill the aforesaid objective of reducing the arrears and tackle the issue of pendenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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