SC: Amended “age of retirement” shall apply even to Presiding officers of DRTs appointed before amendment.

The Hon’ble Supreme Court today in the matter of Gottumukkala Venkata Krishamraju  v. Union of India & ors. enunciated that the amendment to the age of retirement of Presiding officers of Debt Recovery Tribunals which specifies the age of retirement as 65 years shall apply even to those Presiding officers of Debt Recovery Tribunals who were appointed before the amendment when the age of retirement was 62 years.

As per the Recovery of Debts and Bankruptcy Act, 1993, once appointed, the term of office of a Presiding Officer was stipulated in Section 6. There have been amendments to the various provisions of this Act in the year 2016. Also, this 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.

Prior to the amendment according to the 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 has been substituted by Act 44 of 2016 w.e.f. September 1, 2016 and the amended provision reads as under:

“Section 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.”

The issue that had arisen was that whether the presiding officers appointed before the amendment 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.

The endeavour of the petitioners was 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 respondent side contended 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 Hon’ble Supreme Court observed:

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 Presiding Officers till they attain the age of 65 years or complete five years’ term before attaining the age of 65 years. (Para 12)

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. (Para 14)

The purpose of amending Section 6 was to reduce the burden of pendency by enhancement of age of the Judges concerned. (Para 18)

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 enforceable. This seems to be just, reasonable and sensible outcome. (Para 21)

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. (Para 24)

Copy of Judgement: Judgement 7th Sep. 2018

-Tushar Kaushik

Leave a Reply

Your email address will not be published. Required fields are marked *