iminal Appeal No 7 of 1957
38 Appeal from the judgment and order dated July 12 1956 of the Calcutta High Court in Criminal Revision No 270 of 1956
section C Mazumdar for the appellants
B Sen D N Mukherjee and P K Bose for the respondent
April 18
The Judgment of Sinha C J section K Das K C Das Gupta and N Rajagopala Ayyangar JJ
was delivered by Das Gupta J Mudholkar J delivered a separate Judgment
DAs GUPTA J
This appeal on a certificate granted by the High Court of Calcutta under article 1341c of the Constitution is against a judgment and order of that court upholding the conviction of these appellants under section 73 of the Indian  for contravention of Rule 7 of the Mines Creche Rules 1946
Rule 3 of these rules requires the owner of every Mine to Construct there a creche in accordance with the plans prepared in conformity with the rules and previously approved by the competent authority Rule 7 provides that the owner of the mine shall appoint a creche in charge who shall be a woman possessing such qualifications and training as may be approved by the competent authority
The complaint which resulted in the conviction of the two appellants of whom one Goenka was the owner of the Khas Jawbad Colliery and the other viz J N Gupta the manager of the colliery alleged that they had contravened Rule 7 of the Mines Creche Rules 1946 inasmuch as no creche attendant as required by that rule had been appointed there
After an appeal of the present appellants to the Court of Sessions was dismissed they moved the High Court in revision but were unsuccessful except that their sentences were reduced
The High Court however gave a certificate under article 1341c and on that certificate the present appeal has been filed
The main contentions raised on behalf of the appellants are 1 that the Mines Creche Rules 1946 had stood repealed along with the repeal by section 88 of the of 1952 of the Mines Act 1923
under which these rules were admittedly framed and 2 they having 39 been framed under section 30 bb of the Mines Act 1923 cannot be deemed to be rules made under the  as
the requirements of the corresponding section of the 1952 Act viz section 58b are different from what is required by section 30bb of the 1923 Act
In Criminal Appeals Nos 98 to 106 of 1959 we have decided that regulations framed under section 29 of the Mines Act 1923 survive the repeal of that Act
The same reasons which form the basis of that decision apply to the rules framed under section 30 of the Mines Act 1923 and so the first contention raised on behalf of the appellants must be rejected as unsound
The second question arises in this way
Clause bb of section 30 of the 1923 Act mentions one of the purposes for which rules may be made in these words For requiring the maintenance in mines wherein any women are ordinarily employed of suitable rooms to be reserved for the use of the children under the age of 6 years belonging to such women and for prescribing either generally or with particular reference to number of women ordinarily employed in the mine the number and standards of such rooms and the nature and extent of the supervision to be provided therein
 In the  section 58 contains the provision empowering the Central Government to make rules for all or any of the purposes mentioned there
Clause d of this section runs thus For requiring the maintenance in mines wherein any women are employed or were employed on any day of the preceding twelve months of suitable rooms to be reserved for the use of the children under the age of six years belonging to such women and for prescribing either generally or with particu lar reference to the number of women employed in the mines the number and standards of such rooms and the nature and extent of the amenities to be provided and the supervision to be exercised therein
While it is obvious that cl
d of section 58 of the 1952 Act corresponds to cl
bb of section 30 of the 1923 Act it has to be noticed that the requirement in the 1952 40 Act is wider
For whereas rules under section 30bb could require the maintenance of creches and could prescribe certain matters in regard to these only in mines wherein any women are ordinarily employed section 58d authorises the framing of similar rules for maintenance of creches and prescription of similar matters in respect of all mines wherein any women are employed or were employed on any day of the preceding twelve months
It is contended on behalf of the appellants that the Creche Rules 1946 framed as they were under section 30bb of the 1923 Act must be read as requiring the maintenance of creches and prescribing certain matters relating to creches only for mines wherein any women are ordinarily employed
They cannot therefore be considered to be rules under section 58d of the 1952 Act which have to require the maintenance of creches and prescribe matters relating thereto not only for mines where women are ordinarily employed but for mines wherein any women are employed or were employed on any day of the preceding twelve months
It is urged that the content of the rules cannot be extended by the fact that the 1952 Act permits rules to be framed in respect of mines other than those in respect of which the rules were originally framed
In our opinion the argument is not without force and it might be difficult to say that the Mines Creche Rules framed under section 30bb of the 1923 Act would apply to all mines contemplated by section 58d of the 1952 Act
This difficulty would not however stand in the way of the Mines Creche Rules 1946 operating in respect of mines where women are ordinarily employed as rules under the 1952 Act
It has to be noticed that the mines in respect of which rules may be made under section 58d of the 1952 Act do not exclude mines where women are ordinarily employed the description mine wherein any women are ordinarily employed include in the first place the mines where women are ordinarily employed and include in addition to those other mines wherein any women are employed or were employed on any day of the preceding twelve months  even though the attribute of women being ordinarily 41 employed there is not present
Assuming therefore as correct the argument that the content of the rules does not stand extended the Mines Creche Rules 1946 may still be reasonably deemed to be rules under section 58d of the 1952 Act though not fully exhausting the purpose mentioned in that section
In other words the position is that while under section 58d of the 1952 Act rules may be framed in respect of 1 mines wherein women are ordinarily employed and 2 mines wherein though women are not ordinarily employed women are employed and 3 mines where though women are not ordinarily employed women were employed on any day of the preceding twelve months the Mines Creche Rules 1946 cover a part of the ground that could be covered by rules under section 58d of the 1952 Act
To the extent the provisions of section 58d of the 1950 Act and section 30bb of the earlier enactment overlap these rules would continue in force by virtue of section 24 of the 
On an examination of the evidence adduced in the case before the Magistrate we find that the Jawabad Mine was one where women were ordinarily employed
With regard to this Mine therefore the Mines Creche Rules operated as rules under the 1952 Act and consequently contravention of Rule 7 of the Mines Creche Rules 1946 was in law a contravention of a rule made under the 1952 Act within the meaning of section 73 of that Act
On behalf of the second appellant Gupta who was the manager of the colliery at the relevant time a further contention is raised
It is pointed out that Rule 71 does not in terms lay any duty on the manager and it is contended that the manager having no duty to perform under Rule 71 of the Creche Rules no question of his contravening the same by omission to appoint a creche in charge arises
The answer to this question depends on the interpretation of section 18 of the  which is in these words 18
Duties and responsibilities of owners agents and managers 6 42 1 The owner agent and manager of every mine shall be responsible that all operations carried on in connection therewith are conducted in accordance with the provisions of this Act and of the regulations rules and bye laws and of any orders made thereunder
2 In the event of any contravention of any such provisions by any person whosoever the owner agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention
3 It shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act
It has to be noticed that after the first sub section states in general terms that the owner agent and manager shall be responsible for the carrying out of all operations carried on in connection with the mine in accordance with the provisions of the Act and of the regulations rules and bye laws and of any orders made thereunder the second sub section d eals with the question of guilt of the owner the agent and manager for contravention of such provisions by any person whosoever and the third sub section goes on to say that the owner or agent cannot escape liability merely because a manager of the mine has been appointed
The first contention urged on behalf of the appellant is that the Mines Creche Rules have nothing to do with operations carried on in the mines and that section 18 deals only with the proper observance of the provisions of the Act directly touching the work carried on in the mines for raising coal and allied activities
In our opinion that will be an unduly narrow interpretation of the section
The employment of female labour is obviously and admittedly connected with the raising of coal in the mine and all conditions of employment of female labour should reasonably be held to be 43 inextricably connected with operations carried on in the mines
The Mines Creche Rules are no less conditions of female labour than are the provisions of say section 46 of the Act
That section prohibits the employment of women in a mine which is below ground and also employment of women in mines above ground except between 6 am and 7 pm except to the extent there is variation of the hours of employment above ground by the Central Government in exercise of the powers given by that very section
Section 46 as it now stands also provides that every woman shall be allowed an interval of not less than eleven hours between the termination of employment on any day and the commencement of the next period of employment
It cannot be seriously argued that if in any mine women labour is employed in breach of these provisions of section 46 operations would have been carried on in the mine in accordance with the provisions of the Act
We see no reason why employment of female labour in a mine without compliance with the Mines Creche Rules should not be similarly held to amount to carrying on operations in connection with the mine in contravention of a rule made under the Act
The true position in our opinion is that in order that operations carried on in connection with the mine can be said to have been conducted in accordance with the provisions of the Act and of the regulations rules and bye laws and of the orders made thereunder it is necessary not only that such provisions as are directly connected with the work of raising coal are observed but also that provisions governing the conditions of employment of the persons engaged in the mining operations are also observed
The Mines Creche Rules as already pointed out undoubtedly form part of the conditions of employment of female labour engaged in mining operations
Observance of these rules is therefore necessary before operations can be said to have been carried on in accordance with the rules made under the Act
In our opinion therefore the effect of section 181 is that all three the manager the agent and the owner are responsible for the Observance of the Mines Creche Rules
44 On behalf of the State it is urged that the result of such a responsibility being laid on all the three is that the manager is liable to penalty for a contravention of the Mines Creche Rules by the owner
It is unnecessary however to consider whether section 181 by itself has this consequence for the matter is put beyond doubt by section 182
This sub section of section 18 makes all the three the owner the agent and the manager severally liable for the breach of any regu lations by any person whosoever
Not only is that person who contravened the provisions guilty but each of these three the manager the agent and the owner is also deemed to be guilty though the contravention was not by himself
It would be illogical to say in the face of this provision that two of them should not be held liable for the contravention of the provisions within section 181 by the third
But says the manager appellant such a construction of section 182 should be avoided as it will be thorough
by unjust
How am I to secure says he the observance of a rule which in terms fixes a duty on the owner only to do certain things
The argument really is that the Legislature acted improperly making the owner the agent and the manager vicariously liable for the contravention of certain provisions by  any person whosoever
With the wisdom of the law the Court is not however concerned
It is pertinent to notice however that it was clearly to avoid injustice which may result from the fixation of such vicarious liability that the legislature has provided for a special defence of the owner the agent and the manager in such cases
Thus if a rule or a bye law in terms lays a duty on the manager and the owner is prosecuted he will escape punishment as soon as he shows that he did all that he could reasonably do in seeing that the manager duly performed his duty
The effect of sub section 3 is that the mere appointment of a manager would not be a sufficient defence
Where as in the present case the rule in question lays a duty in terms on the owner and the manager is prosecuted he will escape conviction on showing that he took all reasonable 45 means to prevent the contravention of the rules by the owner
The whole purpose of section 18 read as a whole appears to be clearly this The provisions of the Act and of the regulations rules and bye laws or orders made thereunder may require certain things to be done or forbidding the doing of certain things with or without mentioning the person required to do the thing or forbidden to do it
Where a person definitely indicated is required to do or forbidden to do a certain thing he is straightaway liable to penalty for contravention of the rules
But the owner the agent and the manager will have the additional responsibility that even though any of them is not named as the person required or forbidden to do a thing the owner the manager or the agent will be liable to punishment for the contravention of the rule subject to this that the liability will disappear as soon as he shows that he had taken all reasonable means to prevent the contravention
In the present case the manager appellant has neither suggested nor proved that he took all reasonable means to prevent the contravention of the provisions of Rule 7 of the Mines Creche Rules by the owner
He must therefore be deemed guilty of the contravention even though the rule in terms laid no duty on him
In support of his contention that the law does not impose any duty on the manager of the mines to carry out the provisions of the Creche Rules Mr Majumdar relied on a decision of the Nagpur High Court in the State Government M P v Deodatta Diddi 1
The question there was whether one Deodatta Diddi Agent Rawanwara Khas Colliery could be held to have contravened rule 31 of the Coal Mines Pithead Bath Rules 1946 where no pithead baths had been con structed as required by the rules
In terms rule 31 provided that the owner of every coal mine shall construct pithead baths in accordance with the plans prepared in conformity with the rules and approved by the competent authority
It was held by the High 1 AI R 1956 Nag
46 Court that it was the owner alone who could be deemed to have contravened the rule and that the Agent even assuming that he was the representative of the owner in respect of the management of the colliery had no duty to perform in this matter
We notice however that the attention of the learned Judges was not drawn to the provisions of section 18 of the Indian 
This decision is therefore of no assistance
The question as regards the liability of any agent or manager of the mine for the construction of pithead baths or of mine creches appears to have been raised before the Calcutta High Court in G D Bhattar vs The State 1
In that ease both the learned Judges considered section 18 of the  but came to different conclusions one of them holding that under section 18 the manager would be liable for carrying out the provisions of these rules while the other learned Judge took a different view
In our opinion the former view is correct
All the contentions raised on behalf of the appellants therefore fail
The appeal is accordingly dismissed
MUDHOLKAR J
While I agree to the order proposed with respect to Mohan Lal Goenka I am of the opinion that the conviction of the co appellant Gupta who was a manager of the mines cannot be sustained
It has throughout been accepted that under r 71 of the Mines Creche Rules 1946 as they stood on the date of the alleged contravention the responsibility for appointing a creche in charge was on the owner of the mine only
It was therefore contended on behalf of Gupta that he cannot be held liable for the contravention of the rule made by the owner Mohan Lal Goenka
Reliance was however placed on behalf of the State in the courts below as well as before us on the provisions of section 18 of the 35 of 1952
That section reads thus 1 The owner agent and manager of every mine shall be responsible that all operations carried on in connection therewith Are conducted in accordance with the provisions of this Act and of the 1 AIR 1957 Cal
47 regulations rules and bye laws and of any orders made thereunder
2 In the event of any contravention of any such provisions by any person whosoever the owner agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention Provided that the owner or agent shall not be so deemed if he proves a that he was not in the habit of taking and did not in respect of the matter in question take any part in the management of the mines and b that he had made all the financial and other provisions necessary to enable the manager to carry out his duties and c that the offence was committed without his knowledge consent or connivance
3 Save as hereinbefore provided it shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act
 It was urged that this section holds the owner the agent as well as the manager liable for the contravention of any provision of the Act or of a regulation rule or bye law made by any person unless the owner agent or manager can bring his case within any of the exceptions set out in sub section 2 of section 18
It is pointed out that Gupta has not relied on any exception and therefore his conviction is correct in law
Section 18 is in Chapter IV of the which deals with Mining operations and Management of mines
This chapter thus deals with two topics
Section 18 however deals with only one of these two topics that is Mining operations
This would clearly follow from the language of sub section
1 or section 18
The duties and responsibilities of owners agents and managers with which this section deals are with respect to all operations carried on in connection there with ie the mine
Therefore the inference must be that this section deals with duties etc in connection with mining 48 operations only
The chapter itself has drawn a distinction between Mining operations and Management of mines
Employment of labour providing amenities for them and allied matters would pertain mainly to management and not to Mining operations
The expression Mining operations occurring in an Act dealing with mines should be accorded that meaning which it has in the mining industry
In the industry a mining operation is understood to mean an opera tion undertaken for the purpose of winning minerals and cannot as suggested by my learned brother be given an extended meaning so as to embrace within it matters such as employment of labour providing amenities to labour etc even though that labour is utilised or required for the purpose of carrying on mining operations
I can see no justification for giving an extended meaning to the expression Mining operations and none was suggested at the bar
Upon this view it would follow that the manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his duty under r 71 of the Mines Creche Rules
There is an additional reason for coming to the same conclusion
Upon the language of section 182 the manager of a mine cannot be held liable for the contravention by the owner of any provision of the Act regulation rule or bye law unless that contravention was with respect to a matter in  regard to which the exception could be available
To put it a little differently a manager cannot be held vicariously liable for a contravention unless there was on his part also an omission to do something which was in his power to do
Sub section 2 of section 18 would absolve a manager from vicarious liability if he could show that he had taken all reasonable means by publishing and to the best of his power enforcing those provi
sions to prevent such contravention
This therefore implies that by resorting to certain steps he can escape liability
The first part of the quotation is clearly in
applicable to the present case
The second part would apply provided the manager had the power to enforce the performance of a particular duty by the owner
49 There is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duties under sub r
1 of r 7
Since that is the position it must be held that the manager is not liable for the contravention by the owner of his duty under sub r
1 of r 7 of the Mines Creche Rules
That the construction I am placing on this provision is the proper one would appear from the following illustration
Section 17 of the Act provides that the owner or an agent of every mine shall appoint a person having the prescribed qualification as a manager of the mine
Section 57c provides for the framing of regulations prescribing the qualifications for the manager of mines
I will assume that regulations have been made thereunder prescribing the qualifications for managers
If a person is appointed as a manager of a mine even though he does not possess the prescribed qualification would he be held vicariously liable for the contravention by the owner or the agent of the duties placed upon the owner and agent by a Regulation and by section 17 I do not think that there would be any difficulty in saying that he would not be liable for the simple reason that it was not within his power to enforce the compliance by the owner of the duty cast upon him by the regulations
I would therefore allow the appeal of Gupta and set aside the sentence of conviction passed upon him
ORDER
In accordance with the opinion of the majority the appeal on behalf of both the appellants is dismissed
Appeal dismissed


Summary:
The appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening the provisions of the Mines Creche Rules 1946 under which the owner of every mine employing women was required to construct creches for the use of the women employees and also to appoint a Creche in charge for the supervision of the creches
Their contentions mainly were 1 that the Mines Creche Rules 1946 stood repealed as the Mines Act 1923 itself under which those rules were framed were repealed by the Mines Act of 1952 and 2 that the said rules having been framed under section 30bb of the Mines Act 1923 could not be deemed to be rules made under the corresponding section 58d of the 1952 Act the requirements of which were different from those of section 30bb of the 1923 Act
On behalf of the manager a further contention was raised that he was not liable for the Contravention of r 71 under which he 37 had no duty to perform and no question of his omission to appoint a creche in charge arose
Held per Sinha C J section K Das Das Gupta and Ayyangar JJ that the regulations framed tinder section 30 of the Mines Act 1923 survived the repeal of that Act
Criminal Appeals Nos
go to 106 of 1959 followed
The Mines Creche Rules 1946 framed under section 30bb of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of section 58d of the Mines Act of 1952 and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of section 24 of the and operate as rules under the 1952 Act
Contravention of r 7 of the Mines Creche Rules 1946 was in law contravention of a rule under section 58d of the 1952 Act within the meaning of section 73 of the Act
Under section 181 of the  the manager the agent and the owner are responsible for observance of the Mines Creche Rules which form part of the conditions of employment of female labour engaged in mining operations and under subS 2 of section 18 each of them shall be deemed to be guilty of the contravention of any rule by any person whosoever unless he proves that he took all reasonable means to prevent such contravention
The manager in the present case not having proved that he took all reasonable means to prevent the contravention of r 7 by the owner even though the rule in terms laid no duty on him must be deemed to be guilty of the contravention
State Government M P vs Deodatta Diddi AIR 1956 Nag 71 held inapplicable
G D Bhattar vs State AIR 1957 Cal
483 the view making the manager liable to be approved
Per Mudholkar J
In the mining industry a mining operation as contemplated under section 18 of the  is understood to mean an operation undertaken for the purpose of mining minerals and cannot be extended to mean management of mines such as employment of labour and providing amenities to employees etc
The manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his own duty under r 71 of the Mines Creche Rules
Sub section
2 of section 18 would also absolve the manager from vicarious liability if he could show that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention
But there is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duty under sub r
1 of r 7 of the Mines Creche Rules and the manager was therefore not liable for the breach of that rule