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tition Nos. 232 & 233 of 1983.
(Under article 32 of the Constitution of India) M.S. Joshi, N.D. Garg and Rajiv Kumar Garg for the Petitioners.
D.D. Sharma for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, CJ.
An important question arises for consideration in these two writ petitions.
That question is whether a delay exceeding two years in the execution of a sentence of death must be considered sufficient for setting aside that sentence.
Learned counsel who appears on behalf of the petitioners relies upon a decision of this Court in T.V. Vatheeswaran vs The State of Tamil Nadu(1) and contends that since more than two years have passed since the petitioners were sentenced to death by the Trial Court, they are entitled to demand that the said sentence should be quashed and substituted by the sentence of life imprisonment.
The petitioners, Sher Singh and Surjit Singh, and one Kuldip Singh were convicted under section 302 read with section 34 of the 586 Penal Code and were sentenced to death by the learned Sessions Judge, Sangrur, on November 26, 1977.
By a judgment dated July 18, 1978 the High Court of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to life imprisonment but upheld the sentence of death imposed upon the petitioners.
The High Court also imposed a sentence of fine of Rs. 5000 on Kuldip Singh and a fine of Rs. 5000 on each of the petitioners.
Special Leave Petition (Crl.) No. 1711 of 1978 which was filed by the petitioners against the judgment of the High Court was dismissed by this Court on March 5, 1979.
The petitioners then filed a Writ Petition in this Court challenging the validity of section 302 of the Penal Code.
That petition was dismissed on January 20, 1981.
Review Petition No. 99 of 1981 filed by the petitioners against the dismissal of their S.L.P. was dismissed by this Court on March 27, 1981.
The petitioners filed yet another petition under article 32 of the Constitution, this time challenging the validity of section 34 of the Penal Code.
That petition was dismissed on August 24, 1981.
After failing in these seemingly inexhaustible series of proceedings, the petitioners filed these two writ petitions on March 2, 1983, basing themselves on the decision rendered by Justice Chinnappa Reddy and Justice R.B. Misra on February 16, 1983 in Vatheeswaran.
The question which arose for consideration in Vatheeswaran is formulated by Chinnappa Reddy, J., who spoke for the Court, in these terms: "But the question is whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, is it not open to a court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding to take note of the circumstance when it is brought to its notice and give relief where necessary ?" This question arose on the following facts as stated in the judgment of Brother Chinnappa Reddy: (1) The prisoner was rightly sentenced to death.
(2) He was the 'arch villain of a villainous piece ' and the brain behind a cruel conspiracy to impersonate Customs officers, pretend to question unsuspecting visi 587 tors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims, steal their cash and jewels and finally murder them.
The plan was ingeniously fiendish and the appellant was its architect.
(3) Since January 19, 1975 when the Sessions Judge pronounced the sentence of death, the prisoner was kept in solitary confinement contrary to the decision of this Court in Sunil Batra vs Delhi Administration.
(1) Before that, he was a 'prisoner under remand ' for two years.
On these facts, the argument advanced in this Court on behalf of the prisoner was that taking away his life after keeping him in jail for ten years, eight of which were spent in illegal solitary confinement, is a gross violation of the fundamental rights guaranteed by Article 21 of the Constitution.
In Vatheeswaran, our learned Brethren have drawn sustenance to their conclusion from one judgment of the Federal Court of India, five judgments of this Court, one of the Privy Council and one of the U.S. Supreme Court.
As to the meaning and implications of Article 21 of the Constitution, they have relied upon the decisions of this Court in Sunil Batra,(1) Maneka Gandhi,(2) Bachan Singh, (3) Hussainara Khatoon (4) and Hoskot.(5) The judgment in Bhuvan Mohan Patnaik (6) and Prabhakar Pandurang Sangzgiri (7) have been relied upon to show that prisoners who are under a sentence of death and detenus are entitled to certain fundamental rights.
In Piare Dusadh, (8) the Federal Court was considering appeals against the judgments of the High Courts of Allahabad, Madras, Nagpur and Patna, under the special Criminal Courts Ordinance II of 1942.
In Case Nos.
XLI and XLII, the High Court of Patna had 588 confirmed the sentence of death passed on the appellants by the Special Judge.
It was urged before the Federal Court that the death sentence imposed in those cases should be reduced to transportation for life on account of the time that had elapsed since the sentences were first pronounced.
The Court observed: "It is true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under threat of execution, and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the validity of the sentences themselves.
We do not doubt that this court has power, where there has been inordinate delay in executing death sentence in cases which come before it, to allow the appeal in so far as the death sentence is concerned and substitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally imposed.
But this is a jurisdiction which very closely entrenches on the powers and duties of the executive in regard to sentences imposed by courts.
It is a jurisdiction which any court should be slow to exercise.
We do not propose ourselves to exercise it in these cases.
Except in Case No. XLVII (in which we are commuting the sentence largely for other reasons as hereafter appears), the circumstances of the crimes were such that if the death sentence which was the only sentence that could have been properly imposed originally, is to be commuted, we feel that it is for the executive to do so.
" It was urged before the Federal Court that in England, when cases in which death sentence has been imposed are allowed to be taken to the House of Lords on account of some important legal point, the consequential delay in finally disposing of the case was treated as a ground for the commutation of the death sentence and that a similar course might well be adopted in India in cases in which substantial questions of law as to the interpretation of the Constitution Act had to be considered by the Federal Court.
This argument was rejected on the ground that these were matters primarily for the consideration of the executive.
589 In Case No. XLVII, which was one of the cases before the Federal Court, the appellant was convicted by a special Judge of the offence of murder and was sentenced to death on September 30, 1942.
The Allahabad High Court confirmed the sentence of death but the Federal Court commuted that sentence to transportation of life.
As is evident from the parenthetical portion of the passage extracted above, this was done "largely for other reasons", that is to say, for reasons other than that a long delay had intervened after the death sentence was imposed.
The Federal Court commuted the death sentence on the ground that the sentence of transportation for life was more appropriate in the circumstances of the case.
They added that the appellant was awaiting the execution of his death sentence for over a year.
It is thus clear that Piare Dusadh is not an authority for the proposition that if a certain number of years have passed since the imposition of a death sentence, that sentence must necessarily be commuted to life imprisonment.
In Ediga Anamma(1) this Court was hearing an appeal against the sentence of death imposed upon the appellant.
Finding that the appellant was a young woman of 24 who was flogged out of her husband 's house by the father in law, this Court reduced her sentence to life imprisonment for a variety of factual reasons peculiar to the case, like her entanglement into a sex net, that she had a young boy to look after and so on.
Speaking for the Court, Krishna Iyer, J. added: "What may perhaps be an extrinsic factor but recognised by the Court as of humane significance in the sentencing context is the brooding horror of 'hanging ' which has been haunting the prisoner in her condemned cell for over two years.
The Sessions Judge pronounced the death penalty on December 31, 1971, and we are now in February 1974.
This prolonged agony has ameliorative impact according to the rulings of this Court." Piare Dusadh was regarded by the Court as a leading case on this point.
We have already adverted to the circumstances in which the death sentence was commuted to transportation for life in that case.
590 In the other cases referred to in Vatheeswaran, (supra) this Court was hearing appeals against the judgments of High Courts confirming the sentence of death.
In those cases, the sentence of death was commuted into life imprisonment by this Court by reason of the long interval which had elapsed either since the imposition of the death sentence or since the date of the occurrence.
But we must hasten to add that this Court has not taken the narrow view that the jurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence.
The question which arises in such appeals is whether the extreme penalty provided by law is called for in the circumstances of the case.
The question which arises in proceedings such as those before us is whether, even if the death sentence was the only appropriate sentence to impose in the case and was therefore imposed, it will be harsh and unjust to execute that sentence by reason of supervening events.
In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the spectre of the sentence of death for an unduly long time after the final confirmation of that sentence, consequent upon the dismissal of the prisoner 's Special Leave Petition or Appeal by this Court.
Traditionally, subsequent events are taken into account in the area of civil law.
There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable.
Undoubtedly, principles analogous to Res judicata govern all judicial proceedings but when new situations emerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already.
That final decision is not a decision on new facts.
Courts are never powerless to do justice, that is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship.
That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justiciae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court.
Some of us dealing with this case have been parties to decisions directing, in appropriate cases, that the death sentence shall not be executed by reason of supervening circumstances.
591 In Vatheeswaran, the prisoner was under the sentence of death for over eight years and was in the jail for two years before that.
After the death sentence was pronounced upon him, he was kept in solitary confinement, contrary to this Court 's ruling in Sunil Batra.
These supervening considerations, inter alia, were unquestionably germane to the decision whether the death sentence should be allowed to be executed.
The Court took them into account and commuted the sentence to life imprisonment.
Like our learned Brethren, we too consider that the view expressed in this behalf by Lord Scarman and Lord Brightman in the Privy Council decision of Neol Riley (1) is, with respect, correct.
The majority in that case did not pronounce upon this matter.
The minority expressed the opinion that the jurisprudence of the civilized world has recognized and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading: Sentence of death is one thing; sentence of death followed by lengthy imprisonment prior to execution is another.
The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in circumstances of a given case.
Death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh.
This has to be accepted as the law of the land.
We do not, all of us, share the views of every one of us.
And that is natural because, every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life.
But the decisions rendered by this Court after a full debate have to be accepted without mental reservations until they are set aside.
The fact that it is permissible to impose the death sentence in appropriate cases does not, however, lead to the conclusion that the sentence must be executed in every case in which it is upheld, regardless of the events which have happened since the imposition or the upholding of that sentence.
The inordinate delay in the execution of the sentence is one circumstance which has to be taken into account 592 while deciding whether the death sentence ought to be allowed to be executed in a given case.
In his sociological study called 'Condemned to Die, Life Under Sentence of Death ', Robert Johnson says: "Death row is barren and uninviting.
The death row inmate must contend with a segregated environment marked by immobility, reduced stimulation, and the prospect of harassment by staff.
There is also the risk that visits from loved ones will become increasingly rare, for the man who is "civilly dead" is often abandoned by the living.
The condemned prisoner 's ordeal is usually a lonely one and must be met largely through his own resources.
The uncertainties of his case pending appeals, unanswered bids for commutation, possible changes in the law may aggravate adjustment problems.
A continuing and pressing concern is whether one will join the substantial minority who obtain a reprieve or will be counted among the to be dead.
Uncertainty may make the dilemma of the death row inmate more complicated than simply choosing between maintaining hope or surrendering to despair.
The condemned can afford neither alternative, but must nurture both a desire to live and an acceptance of imminent death.
As revealed in the suffering of terminally ill patients, this is an extremely difficult task, one in which resources afforded by family or those within the institutional context may prove critical to the person 's adjustment.
The death row inmate must achieve equilibrium with few coping supports.
In the process, he must somehow maintain his dignity and integrity" (page 4) "Death row is a prison within a prison, physically and socially isolated from the prison community and the outside world.
Condemned prisoners live twenty three and one half hours alone in their cells. " (page 47) The author proceeds to say: "Some death row inmates, attuned to the bitter irony of their predicament, characterize their existence as a living death and themselves as the living dead.
They are speaking symbolically, of course, but their imagery is an appropriate description of the human experience in a world where life is so obviously ruled by death.
It takes 593 into account the condemned prisoners ' massive deprivation of personal autonomy and command over resources critical to psychological survival; tomblike setting, marked by indifference to basic human needs and desires; and their enforced isolation from the living, with the resulting emotional emptiness and death." (page 110) A prisoner who has experienced living death for years on end is therefore entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed.
That is the true implication of Article 21 of the Constitution and to that extent, we express our broad and respectful agreement with our learned Brethren in their visualisation of the meaning of that article.
The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said.
So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation.
Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution.
The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.
It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment.
(See Prabhakar Pandurang Sangzgiri, Bhuvan Mohan Patnaik and Sunil Batra).
It is a logical extension of the self same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair, Article 21 stands like a sentinel over human misery, degradation and oppression.
Its voice is the voice of justice and fairplay.
That voice can never be silenced on the ground that the time to heed to its imperatives is long since past in the story of a trial.
It reverberates through all stages the trial, the sentence, the incarceration and finally, the execution of the sentence.
In cases too numerous to mention, this Court has released undertrial prisoners who were held in jail for periods longer than the period to which they could be sentenced, if found guilty: this jurisdiction relates to pre trial procedure.
In Hussainara Khatoon (supra) and Champalal(1), speedy trial was held to be an integral part of the 594 right conferred by Article 21: this jurisdiction relates to procedure during the trial.
In Prabhakar Pandurang Sangzgiri, the Court upheld the right of a detenu, while in detention, to publish a book of scientific interest called 'Inside the Atom '; in Bhuvan Mohan Patnaik, it was held that prisoners had to be afforded reasonable human conveniences and that the live wire mechanism fixed on prison walls in pursuance of administrative instructions could not be justified as reasonable if it violated the fundamental rights of the prisoners; in Sunil Batra, solitary confinement and bar fetters were disapproved as normal modes of securing prisoners.
These three cases are illustrative of the Court 's jurisdiction to review prison regulations and to regulate the treatment of prisoners while in jail.
And, last but not the least, as we have stated already, death sentences have been commuted to life imprisonment by this Court either while disposing of Special Leave Petitions and Appeals or while dealing with Writ Petitions filed after the unsuccessful termination of the normal processes of litigation: this jurisdiction relates to the execution of the sentence.
This then is the vast sweep of Article 21.
What we have said above delineates the broad area of agreement between ourselves and our learned Brethren who decided Vatheeswaran.
We must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons why.
Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But, according to us, no hard and fast rule can be laid down as our learned Brethren have done that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death".
This period of two years purports to have been fixed in Vatheeswaran after making "all reasonable allowance for the time necessary for appeal and consideration of reprieve".
With great respect, we find it impossible to agree with this part of the judgment.
One has only to turn to the statistics of the disposal of cases in High Court and the Supreme Court to appreciate that a period far exceeding two years is generally taken by those Courts together for the disposal of matters involving even the death sentence.
Very often, four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the Special Leave Petition or an Appeal by the Supreme Court in that matter.
This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed 595 under Article 72 or article 161 of the Constitution or the time which the Government takes to dispose of applications filed under sections 432 and 433 of the Code of Criminal Procedure.
It has been the sad experience of this Court that no priority whatsoever is given by the Government of India to the disposal of petitions filed to the President under Article 72 of the Constitution.
Frequent reminders are issued by this Court for an expeditious disposal of such petitions but even then the petitions remain undisposed of for a long time.
Seeing that the petition for reprieve or commutation is not being attended to and no reason is forthcoming as to why the delay is caused, this Court is driven to commute the death sentence into life imprisonment out of a sheer sense of helplessness and frustration.
Therefore, with respect, the fixation of the time limit of two years does not seem to us to accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive.
Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment.
There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated.
A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live.
The Vinoba Bhaves, who undertake the "Prayopaveshana" do not belong to the world of ordinary mortals.
Therefore, it is understandable that a convict sentenced to death will take recourse to every remedy which is available to him under the law, to ask for the commutation of his sentence, even after the death sentence is finally confirmed by this Court by dismissing his Special Leave Petition or Appeal.
But, it is, at least relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice.
It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification.
Stay orders are obtained in those proceedings and then, at the end 596 of it all, comes the argument that there has been prolonged delay in implementing the judgment or order.
We believe that the Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it.
If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation And then, the rule of two years will become a handy tool for defeating justice.
The death sentence should not, as far as possible, be imposed.
But, in that rare and exceptional class of cases wherein that sentence is upheld by this Court, the judgment or order of this Court ought not to be allowed to be defeated by applying any rule of thumb.
Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.
The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula as a matter of "quod erat demonstrandum".
In the case before us, the sentence of death was imposed upon the petitioners by the learned Sessions Judge, Sangrur, on November 26, 1977.
It was upheld by the High Court on July 18, 1978.
This Court dismissed the Special Leave Petition filed by the petitioners on March 5, 1979.
The matter is pending in this Court since then in one form or another, by reason of some proceeding or the other.
The last of the writ Petitions filed by the petitioners was dismissed by this Court on August 24, 1981.
We do not know why the sentence imposed upon the petitioners has not been executed for more than a year and half.
The Government of Punjab must explain that delay.
We are of the opinion that, in the instant case, the sentence of death imposed upon the petitioners by the Sessions Court and which was upheld by the High Court, and this Court, cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence.
On the date when these Writ Petitions came before us, we asked the learned counsel for the petitioners to argue upon the 597 reasons why, apart from the dealy caused in executing the death sentence, it would be unjust and unfair to execute that sentence at this point of time.
Every case has to be decided upon its own facts and we propose to decide this case on its facts.
After hearing the petitioners ' counsel, we will consider the question whether the interests of justice require that the death sentence imposed upon the petitioners should not be executed and whether, in the circumstances of the case, it would be unjust and unfair to execute that sentence now We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously.
A self imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received.
Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.
Several instances can be cited, to which the record of this Court will bear testimony in which petitions are pending before the State Governments and the Government of India for an inexplicably long period.
The latest instance is to be found in Cri.
Writ Petition Nos.345 348 of 1983, from which it would appear that petitions filed under article 161 of the Constitution are pending before the Governor of Jammu & Kashmir for anything between 5 to 8 years.
A pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the Court by resorting to delaying tactics.
Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is preconditioned by the duty to be fair and quick.
Delay defeats justice.
On the question as to whether the death sentence should not be allowed to be executed in this case, we shall pronounce later after hearing the parties.
In the meanwhile, notice will go to the Government of Punjab.
Order accordingly.

Output:
The petitioners were convicted under section 302 read with section 34 I.P.C. and were sentenced to death on November 26, 1977.
The High Court upheld the conviction and sentence on July 18, 1978.
The petitioners ' Special Leave Petition against the judgment of the High Court was dismissed on March 5, 1979 and the Review Petition against the dismissal of the Special Leave Petition was also dismissed on March 27, 1981.
The petitioners ' successive writ petitions challenging the validity of sections 302 and 34 I.P.C. were dismissed on January 20, 1981 and August 24, 1981 respectively.
The present writ petitions were filed on March 2, 1983 on the basis of the decision in T.V. Vatheeswaran vs State of Tamil Nadu which was rendered on February 16, 1983.
The contention on behalf of the petitioners was that more than two years had elapsed since they were sentenced to death by the trial court and therefore they were entitled in terms of the ruling in vatheeswaran to demand that the said sentence should be quashed and substituted by the sentence of life imprisonment. ^ HELD : Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But no hard and fast rule that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death" can be laid down as has been done in Vatheeswaran.
[594 E F] (i) No absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the 583 sentence must be substituted by the sentence of life imprisonment.
There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated.
A convict is entitled to pursue all remedies lawfully open to him and get rid of the sentence of death imposed upon him and his taking recourse to them to ask for the commutation of his sentence even after it is finally confirmed by this Court is understandable.
But, it is, at least, relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice.
It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification.
Stay orders are obtained in those proceedings and then, at the end of it all, comes the argument that there has been prolonged delay in implementing the judgment or order.
The Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it.
If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation.
Further, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition if the death sentence is vacated, re matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.
The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula as a matter of "quod erat demonstrandum." [595 D H; 596 AE] T.V. Vatheeswaran vs State of Tamil Nadu.
overruled.
(ii) The period of two years purports to have been fixed in Vatheeswaran after making "all reasonable allowance for the time necessary for appeal and consideration of reprieve.
" It is not possible to agree with this part of the judgment in that case.
The fixation of the time limit of two years does not accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive.
A period far exceeding two years is generally taken by the High Court and this Court together for the disposal of matters involving even the death sentence.
Very often four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the Special Leave Petition or an Appeal by this Court in that matter.
This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed under article 72 or article 161 of the Constitution or the time which the Government takes to dispose of application filed under sections 432 and 433 of the Code of Criminal Procedure.
[594 F H; 595 AC] (iii) Piare Dusadh is not an authority for the proposition that if a certain number of years have passed since the imposition of a death sentence, 584 that sentence must necessarily be commuted to life imprisonment.
In that case the Federal Court commuted the sentence of death to sentence of transportation for life for reasons other than that a long delay had intervened after the death sentence was imposed.
In Ediga Anamma, Piare Dusadh was regarded as a leading case on the point.
In the other judgments of this Court referred to in Vatheeswaran, this Court was hearing appeals against judgments of High Courts confirming the sentence of death.
However, the Court has not taken the narrow view that the jurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence.
In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the spectre of the sentence of death for an unduly long time after the final confirmation of that sentence.
[589 B D H; 590 A D] Piare Dusadh, [1944] F.C.R. Vol.6 61; Ediga Anamma; , ; Sunil Batra vs Delhi Administration, ; ; Maneka Gandhi [1978] 2 S.C.R. 621; Bachan Singh, , Hussainara Khatoon; , ; Hoskot; , ; Bhuvan Mohan Patnaik; , ; and Prabhakar Pandurang Sangzgiri; , referred to.
(iv) Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution.
The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.
It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment.
It is a logical extension of the self same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair.
A prisoner who has experienced living death for years on end is entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed.
That is the true implication of article 21 of the Constitution.
[593 B G] Bhuvan Mohan Patnaik; , ; Prabhakar Pandurang Sangzgiri; , ; and Sunil Batra vs Delhi Administration; , referred to.
(v) Traditionally, subsequent events are taken into account in the area of civil law.
There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable.
Principles analogous to res judicata govern all judicial proceedings but when new situations emerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already.
That final decision is not a decision on new facts.
Courts are never powerless to do justice, that 585 is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship.
That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justiciae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court.
[590 E H] In the instant case, the sentence of death imposed upon the petitioners by the Sessions Court and which was upheld by the High Court and this Court cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence.
Counsel for the petitioners have been asked to argue upon the reasons why, apart from the delay caused in executing the death sentence, it would be unjust and unfair to execute that sentence at this point of time.
The question will be decided after hearing the parties.
[596 G H; 597 A B] 2.
Petitions filed under articles 72 and 161 of the Constitution and under sections 432 and 433, Cr.
P.C. must be disposed of expeditiously.
A self imposed rule should be followed by the executive authorities that every such petition shall be disposed of within a period of three months from the date on which it is received.
[597 C]


Input:
Appeal No. 2053 of 1971.
Appeal by special leave from the Judgment & Order dated the 8th July, 1971 of the Bombay High Court in S.C.A. No. 1346/68.
M. C. Bhandare, P. H. Parekh and section Bhandare, for the appellant.
The Judgment of the Court was delivered by SARKARIA, J.
Whether the difference of 10 per cent between an Industrial Company and other Companies in the levy of Income tax provided in the Finance Act, 1966 is to be construed a "rebate" or "relief" in the payment of any direct tax, for the development of an industry for the purposes of section 7(e) of the , (for short, the Bonus Act) is the short question that falls to be answered in this appeal by special leave.
The appellant is a Private Ltd. Company.
it manufactures automobile ancillaries and other goods in its Factory at Bombay.
It employs about 170 workmen.
The workmen demanded bonus for the year 1964 65.
Their demand was not met by the Company.
Conciliation proceedings before the Conciliation Officer having failed, the dispute was submitted to the Government which by its Order, dated May 2, 1967 referred the same for adjudication to the Industrial Tribunal.
One of the points mooted before the Tribunal was, whether in calculating the available surplus, the direct tax payable by the Company was deductible at the rate of 55 per cent or 65 per cent.
The case of the Mazdoor Saneh (Respondent No. 1) was that the rate should be 55 per cent as the Company was paying the tax at the rate As against this, the Company contended that it was entitled to deduct as per section 7(e) of the Bonus Act, direct tax at the normal rate of 65 per cent and not at 55 per cent which was only a confessional levy amounting to a "relief" for the purpose of development.
The Tribunal accepted the contention of the Company.
After referring to the speech of the Finance Minister on the Budget of 196667, the Tribunal held: assessed to income tax at the rate of 65 per cent, those engaged in industrial undertakings have been assessed at the concessional rate of 55 per cent, as a measure of rendering assistance to their growth.
Such a concession would, unquestionably amount to relief for the purpose of development as contemplated by Section 7(e) of the Act.
" Aggrieved, the Mazdoor Sangh impugned the Tribunal 's Award, dated 29 2 1968, by a Writ Petition under Article 227 of the Con 544 stitution before the High Court of Bombay.
The High Court held that the Company being an Industrial Company, was liable to pay tax under the Finance Act, 1966 at the rate of 55% only on its total income after deducting depreciation.
Therefore it could not claim deduction at a rate higher than 55% in calculating the available surplus.
In the result, the High Court set aside the Award and remitted the case to the Tribunal for further disposal in accordance with law.
Hence this appeal by the Company.
Broadly, the scheme of the Bonus Act is this : At first, the gross profits derived by an employer from an establishment are calculated in the manner specified in the First Schedule, or the Second Schedule, whichever may be applicable (section 4).
On the basis of such gross profits, the available surplus for the particular accounting year is computed.
This is done by deducting therefrom the sums referred to in Section 6.
According to Clause (c) of Section 6, one of the sums so deductible is: "Subject to the provisions of Section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year".
Section 7, to which section 6(c) is subject, provides how for the purposes of the Act, the direct tax payable by the employer is to be calculated.
Clause (e) of Section 7 is material.
It runs thus : "no account shall be taken of any rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbefore mentioned in section) in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act, for the development of any industry".
The rates of income tax applicable to Private Ltd. Companies tinder Paragraph F, Part I of the First Schedule fixed by the Finance Act, 1966, are as follows : 1.
In the case of a domestic Company(A) (1). (2) where the Company is not a company in which the public are substantially interested.
(i) in the case of an industrial Company (1) on so much of the total income as does not exceed Rs. 10,00,000 55 per cent.
(2) on the balance, if any of the total income 60 per cent.
(ii) in any other case 65 per cent of the total income".
It is not disputed that the Company being an industrial Company with total income for the relevant year, not exceeding Rs. 10,00,900,, 545 the rate of tax under the above Paragaph 1(A) (2) (i), applicable to it was 55 per cent and not 65 per cent of the total income.
However, Mr. Bhandare 's contention is that this was only a concessional rate and not the normal rate which was prescribed under Clause (ii) of the above Paragraph 1(A) (2).
The point pressed into argument is that this ten per cent concession in the tax rate was given to Industrial Companies with a view to promote development of Industry and, as such, must be deemed to be a "relief" or "rebate" in the payment of direct tax of the kind contemplated by Section 7(e) of the Act.
Reliance for this contention has been placed on the speech of the Finance Minister on the Budget of 1966 67, wherein he proposed to provide "certain reliefs" which he considered "necessary for providing a suitable climate of growth", and, in that context, described the rate of 55% tax on Industrial Companies as a "concessional rate".
We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7.
The language of that provision is manifestly clear and unequivocal.
It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.
As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain ing the object which the Legislature had in view in using the words in question.
In the case before us, the language of Section 7(e) is crystal clear and self contained.
It indicates in unmistakable terms that the 'rebate or relief ' in the payment of any direct tax in order to fall within the purview of this clause must satisfy two conditions, viz., (i) that it must be a rebate or relief "allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act", and further, (ii) that it must be a relief or rebate for the development of any Industry.
In the present case, condition (i) is lack ing.
The Finance Act, 1966, does not say that this difference of 10per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry.
Nor has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.
546 The High Court was, therefore, right in holding that it was not ,permissible to use the speech of the Finance Minister to construe the clear language of the statute,.
For the forgoing reasons the question posed above is answered in the negative and the appeal is dismissed.
As regards the costs, the delay in payment of the bonus caused by the pendency of this appeal has been amply compensated vide this Court 's order dated February 17, 1972, which is to this effect "The order of ex parte stay is made absolute on the condition that the petitioner appellant shall pay six percent interest on any amount that is found payable by the appellant to the respondent workmen from the date the award become enforceable till the disposal of the appeal in this Court, in case the appeal fails in this Court.
" The appeal has been heard ex parte, we therefore make no order as to costs.
P.B.R. Appeal dismissed.

Output:
Section 7 of the Bonus Act provides as to how the direct tax payable by an employer is to be calculated for the purpose of computing the available surplus.
Clause (e) of section 7 enacts that no account shall be taken of any 'rebate ' or 'relief ' or deduction in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act for the development of any industry.
in the case of an industrial company, which is not a company in which public ,arc substantially interested, the Finance Act.
1966 fixed the rate of income tax at 55% on so much of the total income as did not exceed Rs. ten lakhs, on the balance, if any, of the total income 60% and 65% in the case of any other ,company.
In a dispute between its employees and the appellant, which is an industrial company the latter contended that for the purpose of computing the available surplus it was entitled to deduct direct tax at 65% and not 55% which was only a confessional levy amounting to a 'relief ' for the purpose of development.
The Tribunal accepted the contention of the appellant.
The High Court allowed the respondent 's writ petition under article 227 of the Constitution holding that the company being an industrial company could not claim deduction at a rate higher than 55% in calculating the available surplus.
On appeal it was contended that the 10% concession in the rate was given to industrial companies with a view to promote development of industry and as such must be deemed to be a 'relief ' or 'rebate ' in be payment of direct tax contemplated by section 7(e) of the Bonus Act.
Reliance for this had been placed on the speech of the Finance Minister on the budget for the year 1966 67.
Dismissing the appeal, HELD : (1) The company being an industrial company with total income not exceeding rupees ten lakhs the rate of tax under paragraph 1(A)(2)(i) of the Finance Act.
1966 applicable to it was 55% and not 65% of the total income.
[544H 545A] (2) The 'rebate or relief ' in the payment of any direct tax, in order to fall within the purview of section 7(e) of Bonus Act.
must be a rebate or relief "allowed under any law for the time being in force relating.
to direct taxes or under the relevant Finance Act.
for the development of any industry" which is one of the conditions to be satisfied.
In the present case it did not satisfy this condition.
The Finance Act, 1966 did not say that this difference of 10% in the rate of tax applicable to an industrial company and any other company is to be deemed to be a rebate or relief for the development of industry.
No, has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.
[545F H] 3 (a) It was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.
[545C D] (b) As a general principle of interpretation, where the words of a statute are ,plain, precise and unambiguous the intention of the Legislature has to be gathered from the language of the statute itself and no external evidence such as Parliamentary debate , Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more 543 than one meaning or shades of meaning that external evidence as to the evils.
if any.
which the statute was intended to remedy.
or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain ing the object which the Legislature had in view in using the words in question.
[545D F]


Input:
ivil Appeal No. 1201 of 1966.
Appeal by special leave from the judgment and order dated June 24, 1965 of the Bombay High Court in Appeal No. 79 of 1963.
F. section Nariman, K. D. Mehta and 1.
N. Shroff, for the appellants.
M. C. Chagla and A. K. Verma, for the respondents.
The Judgment of the Court was delivered by Shah, J.
Dadiba Hormusji Boatwalla was one of the eight partners of Messrs Meghji Thobhan & Company a firm of Muccadams and cotton brokers.
Boatwalla died on February 20, 1957.
By virtue of cl. 8 of the deed of partnership the business of the firm was continued by the surviving partners.
Khorshed and Nariman widow and son respectively of Boatwalla obtained letters of administration to the estate of Boatwalla and commenced an action in the High Court of Bombay for an account of the partnership between Boatwalla and the surviving partners and for an order paying to the plaintiffs the amount determined to be due to Boatwalla at the time of his death.
The suit was resisted by the surviving partners who will hereinafter be called ` the defendants '.
Tarkunde, J., passed a preliminary decree declaring that qua Boatwalla the partnership stood 'dissolved on February 20, 1957, but not in respect of the surviving partners, and directed that an account be taken of the partnership upto February 20, 1957.
Against that decree the defendants appealed under cl. 15 of the Letters Patent.
In appeal the High 'Court modified the decree.
The learned Judges held that the plaintiffs were not entitled to an account in the profits and losses of the firm after the death of Boatwalla, nor to exercise an option under section 37 of the Partnership Act, but that the plaintiffs were entitled only to interest at six per cent.
per annum on the amount found due as Boatwalla 's share in the assets of the partnership including .the goodwill.
They further declared that the interest of Boatwalla in the firm ceased on February 20, 1957, and deleted the direction with regard to the dissolution of the firm as between Boatwalla and the defendants.
With special leave, this appeal has been filed by the defendants.
The defendants contend that the plaintiffs as legal representatives of Boatwalla were not entitled to a share in the value of the goodwill of the firm because the goodwill of a firm may be taken into account only when there is a dissolution of the firm and in any event because Boatwalla had agreed that his interest in the goodwill shall cease on his death and the business shall 691 be continued by the surviving partners.
The defendants do not challenge the decree of the High Court awarding to the plaintiffs Boatwalla 's share in the assets of the firm other than goodwill icy contend that in the goodwill of the firm the plaintiffs had to share.
By section 14 of the Partnership Act, 1932, it is enacted that "Subject to contract between the partners, the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm or acquired, by purchase or otherwise, by or for the firm or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.
" Goodwill of the firm is expressly declared to be the property of he firm.
Counsel for the defendants relied upon section 55 of the Partnership Act which makes a provision with regard to sale of goodwill after dissolution.
It is provided by sub section
(1) of section 55 that : "In settling the accounts of a firm after dissolution, the goodwill shall, subject to contract between the partners, be included in the assets, and it may be sold either separately or along with other property of the firm.
But it is not enacted thereby that goodwill may be taken into account only when there is a general dissolution of the firm, and not when the representatives of a partner claim his share in the firm, which by express stipulation is to continue notwithstanding the death of a partner.
Nor do sections 39, 42 and 46 which were relied upon by counsel for the 'defendants support that contention.
Under section 39 the dissolution of partnership between all the partners of a firm is called the "dissolution of the firm"; and by section 42 a firm is said to be dissolved subject to the contract between the partners on the happening of certain contingencies.
Section 46 provides that on the dissolution of a firm every partner or his representative is entitled as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights.
These provisions deal with the concept and consequences of dissolution of the firm : they do not either abrogate the terms of the contract between the partners relating to the consequences to ensue in the event of the death of a partner when the firm is not to stand dissolved by 692 such death, nor to the right which the partner has in the, assets an( property of the firm.
The Partnership Act does not operate to extinguish the right in the assets of the firm of a partner who dies when the partnership agreement provides that on death the partnership is to continue.
In the absence of a term in the deed Of partnership to that effect, it cannot be inferred that a term that the partnership shall continue notwithstanding the, death of a partner will operate to extinguish his proprietary right in the assets of the firm.
Clause 8 of the deed of partnership reads as follows "This partnership shall not be dissolved or determined by the death of any of _the parties hereto but the same shall be continued as between the surviving part:ners on the same terms and conditions but with such shares as shall then be determined.
" Mr. Nariman says that goodwill is nothing but the right to the name, the place of business and the reputation of the firm, and when all these components of the right by express agreement between the partners devolve upon the surviving partners '.
it follows that. the share of the deceased partner in the goodwill of the firm devolves upon the surviving partners and not upon his legal representatives.
The goodwill of a business is however an intangible asset being the whole advantage of the reputation and connections formed with the customers together with the circumstances which make the connection durable.
It is that component of the total value of the undertaking which is attributable to the ability of the concern to earn profits over a course of years because of its reputation, location and other features.
An agreement between the partners that the name, the place of business and the reputation of the firm are to be utilised by the surviving partners will not necessarily warrant an inference that it was intended that the heirs of the deceased partner will not be entitled 'to a s hare in the goodwill.
Our attention was invited to Hunter vs Dowling( '); Smith vs Nelson(2); and Bachubai and L. 'A. Watkins vs Shamji Jadowji(3).The first two cases proceed upon the interpretation Of certain clauses in partnership Agreements It was inferred in those cases from the terms of the agreement that the right in the goodwill of a partner in a firm dying or retiring shall not survive to ' his legal representatives.
Bachubai and L. A. Watkin 's case(") arose out of a case in which in the partnership agreement it was provided that (1) (2) 96 Law Times Reports.
(3) 1.
L. R. 9 Bom .
536. 694 the firm shall be the agents of a company: carrying on business as a manufacturer of cotton textiles so long as the firm carries on business in Bombay, or until the firm should resign.
The firm were appointed the agents of the Corn any and continued to act as agents.
One of the, partners died, and a representative of the partner filed a suit,.
claiming a certain share in the assets of the firm including the goodwill.
It was observed by Sargent, c.
J,in rejecting the claim of the plaintiff to a share in the goodwill of the business as an asset of the firm, that "Assuming_ (which may well be doubted) that the term "goodwill" is applicable to a business of this nature, it is plain that it is attached to the name of the firm which, by the partnership agreement itself is to be used by the surviving partners, or partner for their own benefit.
Such an arrangement between the partners must take away all value from the goodwill; even if it be not, as Mr. Justice Lindley in his Treatise on Par tnership, p. 887, (3rd ed.), considers it to be inconsistent.
with its being an asset at all" The, learned Chief Justice expressed a doubt presumably relying upon old.
English decisions that the goodwill of a firm may not be an asset at all.
These observations do not set out any rule, of interpretation of a deed 'of partnership.
But the question is now settled by statutory enactment.
Under the Partnership Act, 1932, it is expressly declared that the goodwill of a business is ' an asset.
Whether the goodwill has any substantial value may be determined on the facts of each case.
We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be continued by the surviving partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.
The goodwill of a firm is an asset.
In interpreting the deed of partnership, the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.
In the absence of a provision expressly made or clearly implied, the normal rule.
that the share of a partner in the assets devolves upon his legal representatives will apply to the goodwill as well as to other assets.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.

Output:
D who was one of eight partners in a firm, died on February 20, 1957.
By virtue of a provision in the partnership deed, the business of the firm was continued by the surviving partners.
The respondents, being the widow and son of D commenced an action for an account of the partnership between D and the surviving partners, praying for an order for the payment of the amount determined to be due to D at the time of his death.
A single judge of the High Court passed a preliminary decree directing that an account be taken of the partnership as on February 20, 1957.
A Division Bench, in appeal, modified the decree holding that the respondents were entitled only to interest at 6 % p.a. on.
the amount of D 's share in the assets of the partnership, including good will.
In appeal to this Court it was contended on behalf of the appellants that the respondents as legal representatives of D were not entitled to a share in the value of the good will of the firm because good will may be taken into account only when there is a dissolution and not otherwise; and.
furthermore, because D had agreed that his interest in the good will would cease after his death and the business shall be continued by the _surviving, partners.
HELD : Dismissing the appeal, It could not be held that in interpreting a deed of partnership, business.
whereof, it is stipulated shall be continued by the surviving I partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.
The good will of a firm is an.
asset of the firm.
In interpreting the deed of partnership, the Court will insist upon, some indication that the right to a share in the assets is, by virtue of the agreement that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.
In the absence of a provision expressly made or clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the good will as well as to other assets.
[693 F H] There is no indication in section 55 of the Partnership Act that goodwill may be taken into account only when there is a general dissolution of the firm,.
and not when the reprensentatives of a partner claim his share in the firm, which by express stipulations is to continue not with standing the death of a partner.
Nor do sections 39, 42 and 46 of the Act support such a contention.[691 F] Hunter vs Dowling, [18951 ; Smith vs Nelson 96 Law Times Reports 313; Bachubai and L. A. Watkins vs Shamji Jadowji, I.L.R. ; referred to.
Cl/70 14. 690


Input:
Civil Appeal No.655 of 1986.
From the Judgment and Order dated 23.4.1984 of the Delhi High Court in Letters Patent Appeal No.25 of 1984.
M.K.Ramamurthy, Ms section Pappuh, B.P.Singh, Rishi Kesh, Raj Birbal, Sanjeev Sabharwal, B.R.Sabharwal and M.M. Kashyap for the appearing parties.
S.S.Harlakha appeared in person.
S.S.Onkarmal appeared in person for the Intervener.
The Judgment of the Court was Delivered by K. Ramaswamy, J.
In this appeal by special leave, by way of additional grounds with leave, the appellant impugnes Rule 5 of the Orissa Insurance Co operative Society Ltd. Service Rules (for short "the Rules") as unconstitutional and void offending Article 14 of the Constitution of India.
The material facts relevant to the point are that while the appellant was working as Divisional Manager at Delhi, the general insurance business was nationalised and its management was taken over by the Central Government under General Insurance (Emergency Provisions) Ordinance, 1971 replaced by Act 57 of 1972 (for short "the Act") and vested in the custodian of the New India Assurance Co. Ltd., the management of Orissa Insurance Co operative Society Ltd.
By operation of s.7 of the Act, the services of the appellant and others stood transferred and vested with the custodian.
Under the Act, the Board of Directors was empowered to terminate the service of the officer/employee of the insurer.
The appellant was kept under suspension from August 9,1973 pending investigation into the embezzlement, Explanation was called for on October 16, 1973.
in response thereto the appellant submitted his reply on december 7, 1974.
While dropping the 223 proceeding, the appellant was served with termination order dated April 17,1975 issued by the respondent.
The appellant challenged it in a writ petition in Delhi High Court which was dismissed by a learned Single Judge on November 11, 1983 and was confirmed by the Division Bench in Letter Patent Appeal No.351/1984 dated April 23, 1984.
Section 7 of the Act provides that every whole time officer or other employee of an existing insurer employed in connection with his General Insurance business, immediately before the appointed day, shall become an officer/employee of the Indian Insurance Co. in which the undertaking of the insurer to which the service of the officer relates has vested and would hold his office on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him, if there had been no such vesting and shall continue to do so unless and until his appointment is terminated.
Section 16(1) in Chapter V provides that if the Central Govt.
is of the opinion that for the more efficient carrying on of General Insurance business, it is necessary to do so, it may by notification, frame one or more schemes providing for all or any of the following matter; (e) the rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary.
Pursuant thereto, the central Govt.
framed the New India Assurance Co. Ltd Merger Scheme, 1973 with effect from December 31, 1973.
Thereunder by Rule 3, the undertaking was transferred to the respondent; under Rule 5 the existing whole time officer etc.
became the officer of the transferee company (New Indian Assurance Co. Ltd) and could hold his office on the same terms and conditions as would have been admissible to him if there had been no such transfer, as referred to in paragraph 3.
He shall continue to remain an officer unless and until his employment, in the transferee company is terminated or the terms and conditions are duly altered by any other scheme framed under the Act.
By notification dated April 29, 1976 the Central Govt.
also framed the scheme called the General Insurance (Rationalisation of pay scales and other Conditions of Service of Development Step) Scheme, 1976 which came into force on May 1, 1976, the details of which are not material for the reason that service of the appellant was terminated , in terms of the existing rule 5 of the Rules.
Suffice to state that pursuant to the nationalisation under the Act and Scheme, the appellant became the officer of the respondent.
Rule 5 read thus: Termination of Service: 224 "An employee whether permanent or temporary shall not leave or discontinue his service in the Society without first giving 30 days notice in writing of his intention to do so, to the Principal Officer, Failure to do so will entail forfeiture of the pay of the month.
In the event of the Society not having any further need of any employee 's service whether permanent or temporary, which shall be decided by the Board, the Principal Officer shall give 30 days ' notice in writing for termination of his service or in lieu thereof pay such employee a sum equivalent to his one month pay including allowance upto the termination of the period of notice by way of compensation provided that nothing in these rules shall affect the rights of the society to dismiss an employee under Rule 8 for misconduct etc.
without any notice or salary in lieu of notice, in the manner prescribed in these rules.
An employee shall ordinarily retire from the Society 's services on completion of his 55th year unless the Board reserves to continue him in office of such period as may be determined from time to time.
" It is thus manifest that an employee, whether permanent or temporary, has an option to leave or discontinue by giving 30 days ' notice in writing of his intention to do so.
His failure thereof shall entail forfeiture of the pay of the month.
The employee ordinarily would be superannuated on completion of his 55th year unless the Board continues him for an extended period as may be determined from time to time.
Equally in the event of the Society not having any further need of the employee 's service, whether permanent or temporary, which should be decided by the Board, the Principal Officer shall give 30 days ' notice in writing for termination of his service or in lieu thereof, pay one month 's salary including allowances upto the period of termination.
The respondent also has the right to dismiss an employee, under Rule 8, for misconduct in the manner prescribed in the Rules.
Admittedly, though action was initiated against the appellant for the charges of embezzlement etc.
which are misconduct, the charges were dropped.
Taking aid of Rule 5 and without conducting an enquiry or giving an opportunity, the appellant 's service was terminated by tendering one month 's salary in lieu of notice and also a direction to pay all the allowances upto that date including the period of his suspension.
It is not necessary to go into the grounds taken in the High Court assailing the invalidity of the termination order as they are not pressed before us.
Sri Ramamurthy, the learned Senior counsel for the appellant placing reliance on the ratio of the majority view in D.T.C. vs D.T.C Mazdoor Congress & Ors., 225 Judgment today contended that Rule 5 is ultra vires of Article 14 of the Constitution.
Shyamala Pappu, the learned Senior counsel for the respondent contended that unlike Rule 9 in D.T.C 's case Rule 5 provides guidelines.
The Board of Directors have to take a decision, whether the need to continue the employee 's service subsists which would be based on the relevant material.
Thereby, there would be objective consideration before taking a decision, not only regarding the need to continue the post but also the services of the officer or the employee.
Though the rule does not provide for prior notice, post decisional opportunity would be read into the rule.
If so read, the rule is not ultra vires Article 14.
In our view the ratio in D.T.C. 's case has no application.
Rule 9 of the rules of Delhi Transport Corporation Service Regulation gives naked power to terminate the services of a permanent employee by giving one month 's notice or pay in lieu thereof.
It was not the contention therein, that the rule was capable of two constructions.
It is settled law that there is a presumption of constitutionality of the rule.
The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, Since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions.
Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the constitution.
If the provisions of law or the rule is construed in such a way as would make it consistent with the constitution and another interpretation would render the provision or the rule unconstitutional, the court would lean in favour of the former construction.
In view of this settled legal position, the question emerges whether the language in Rule 5 would be capable to be construed consistent with the fundamental rights in Part III.
As stated earlier, the phrase "in the event of the Society not having any further need of any employee 's service whether permanent or temporary which shall be decided by the Board" is susceptible of two interpretations.
The one interpretation put up by Sri Ramamurty is that the Board may unilaterally and arbitrarily decide that there is no need for the services of a particular employee, in given facts and circumstances, though the post which the employee is occupying may continue and would be put to an end by giving one month 's notice or pay in lieu thereof.
In that event the rule per se is arbitrary offending Article 14.
The other view capable to be construed from the language employed would be that the Board of Management may form an objective opinion, on the basis of the material, that the post which the officer or the employee is occupying no longer is in need.
Thereby, the post would be abolished.
This would be a policy decision depending on the exigencies.
In consequences the service of the employee also would become 226 redundant or surplus.
In that event his service would no longer be needed.
The officer or employee may be permanent or temporary but the absence of the need for the continuance of the post would necessitate to terminate the service of an employee or officer.
It must not be a pretext or a rouse to get rid of the service of an inconvenient officer or of an employee.
If that be so.
it would become colourable exercise of power and would be liable to be quashed as offending Article 14.
Once the Board reaches a decision to abolish the post, in consequence the service of the officer/ employee occupying couched in Rule 5 also is capable of that interpretation.
In that light we are of the opinion that Rule 5 does not become arbitrary.
unreasonable or void offending Article 14.
Accordingly, we hold that the rule is valid.
But from the facts, it is clear that the Board of Management did not abolish the post but put an end to the service of the appellant.
Obviously due to loss of confidence as his honesty and integrity became suspicious and his continuance in service was felt inexpedient and not in the interest of the business of the respondents.
But Rule 8 was available for taking action for misconduct but was not availed.
Therefore, the impugned order terminating the services of the appellant is illegal.
What would be the consequence? Normally the appellant is entitled to reinstatement but in our view the ends of justice would be met by directing the respondent to pay him Rs. 1,00,000 as compensation, instead of reinstatement and further continuance in service.
The compensation awarded would be staggered between the year 1973 till date for the purpose of income tax and given the appropriate relief.
In this view it is not necessary to deal with other contentions or decisions cited across the bar.
Before parting with the case it is necessary to mention that march of service jurisprudence necessitates the respondent to recast the rules in tune with the constitution and the law.
The appeal is allowed but without cost.
The intervention application filed by Sri S.S. Onkarmal Harlalka is dismissed.
S.B. Appeal allowed.

Output:
While the appellant was working as Divisional Manager at Delhi, the general insurance business was nationalised and its management was taken over by the Central Government under General Insurance (Emergency Provisions) Ordinance, 1971 which was replaced by Act 57 of 1972 and vested in the Custodian of the New India Assurance Co. Ltd. the management of Orissa Insurance Co operative Society Ltd. By operation of Section 7 of the Act the services of the appellant and others stood transferred and vested with the custodian.
The appellant was kept under suspension from August 9,1973 pending investigation into charges of embezzlement.
Explanation was called for on October 16,1973 and the appellant submitted his reply on December 7, 1974, While dropping the proceeding, the appellant was served with a termination order dated april 17, 1975 issued by the respondent.
The appellant challenged the aforesaid termination order in a writ petition in Delhi High Court which was dismissed by a Single Judge on November 11,1983 and this judgment was confirmed by the division Bench in a Letter Patent Appeal.
In the appeal to this Court it was contended on behalf of the 221 appellant placing reliance on the majority view in D.T.C vs D.T.C Mazdoor Congress & Ors.
judgment Today 1990(3) SC 725 that Rule 5 of the Orissa Insurance Co operative Ltd. services Rules is ultra vires of Article 14 of the Constitution.
On behalf of the respondent it was contended that unlike Rule 9 involved in D.T.C 's case, Rule 5 in the instant case provided guidelines, and that the Board of Directors had to take a decision, whether the need to continue the employee 's service subsists which would be based on relevant material and thus there would be objective consideration before taking a decision, not only regarding the need to continue the post but also the services of the Officer or the employee, and if so construed the rule is not ultra vires of article 14.
Allowing the appeal, this Court, HELD: Rule 5 of the Orissa Insurance Co operative Society Ltd. is capable of the interpretation that the Board of management may form an objective opinion, on the basis of material, that the post which the officer or the employee is occupying is no longer in need and that the post would be abolished.
This would be a policy decision depending on the exigencies.
Once the Board reaches such a decision to abolish the post, in consequence the service of the officer/employee occupying the post could be terminated.
Viewed in that light the said rule does not become arbitrary, unreasonable or void offending Article 14 and therefore the rule is valid.
[225G 226 B] There is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the constitution.
If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction.
[225 E] It is clear in the instant case, that the Board of Management did not abolish the post but put an end to the service of the appellant, obviously due to loss of confidence as his honesty and integrity became suspicious and his continuance in service was felt inexpedient and not in the interest of the business of the respondents.
But rule 8 was available for taking action for misconduct but was not availed.
Therefore, the order terminating the services of the appellant is illegal.
[226 C] 222 Normally the appellant is entitled to reinstatement but the ends of justice would be met by directing the respondents to pay him Rs. 1,00,000 as compensation, instead of reinstatement and further continuance in service.
The compensation awarded would be staggered between the year 1973 till date for the purpose of income tax and given the appropriate relief.
[226D E] March of service jurisprudence necessitates that the respondent recast Rule 5 in tune with the Constitution and the law.
[226 E]