Case ID: 5312

Judgment:
Appeal No. 502 of 1974. From the Judgment and Order dated 16.2. 1973 of the Andhra Pradesh High Court in W.A. No. 227 of 1972. Mrs. Kitty Kumaramangalam and C.V. Subba Rao for the Appellant. A. Subba Rao for the Respondents. The following Order of the Court was delivered: ORDER After hearing Smt. Kitty Kumaramangalam	 learned counsel for 802 the appellant and Shri A. Subba Rao	 learned counsel for the respondents	 we are inclined to the view that the High Court was not right in its interpretation of the word 'and ' used at the end of paragraph (b) of sub cl. (ii) of the proviso to cl. (b) of sub section (1) of section 3 of the as being conjunctive. In the present case	 admittedly the respondents are engaged in working an open cast mine. After an inspection	 the Inspector of Mines found that the respondents were engaged in the open cast mining and the number of persons employed on any one day exceeded 50. That being so	 the respondents fell within the mischief of the proviso to cl.(b) of section 3(1) of the Act and became subject to the provisions of the Act. The Inspector was therefore well within his powers to serve a notice under section 22 read with section 17 of the Act calling upon the respondents to appoint a qualified Manager for the mine. The High Court on an errone ous interpretation of the word 'and ' occurring at the end of paragraph (b) of sub cl. (ii) of the proviso to cI. (b) of sub section (1) of section 3 of the Act held that the use of the word 'and ' made the three paragraphs conjunctive and unless the conditions specified in paragraphs (a)	 (b) and (c) co existed	 the Inspector had no authority to serve the im pugned notice. It accordingly allowed the writ petition filed by the respondents and quashed the impugned notice. In order to appreciate the point involved. it is neces sary to refer to a few statutory provisions. The object and purpose of the Act	 as reflected in the long title	 is that it is an Act to amend and consolidate the law relating to the regulation of labour and safety in mines. By section 2(h) of the Act	 a person is said to be 'employed ' in a mine who works under appointment by or with the knowledge of the manager	 whether for wages or not	 in any mining operation. Sub section (1) of section 3 of the Act provides that the provisions of the Act	 except those contained in sections 7. 8	 9	 44	 45 and 46 shall not apply to (a) any mine or part thereof in which excavation is being made for prospecting purposes only and not for the purpose of obtaining minerals for use or sale	 (b) any mine engaged in the extraction of any of the minerals specified therein	 including lime stone. There is a proviso under each of the clauses (a) and (b) and they set forth three conditions on the happening of any one of which the proviso would be attracted	 that is to say	 the provi sions of the Act would be made applicable to such a mine. The provision of sub section (1) of section 3 of the Act insofar as relevant for purposes of this case reads as follows: "3. Act not to apply in certain cases (1) The provisions of 803 this Act	 except those contained in sections 7	 8	 9	 44	 45 and 46 shall not apply to a) x x (b) any mine engaged in the extrac tion of kankar	 murrum	 laterite	 boulder	 gravel	 shingle	 ordinary sand (excluding moulding sand	 glass sand and other mineral sands)	 ordinary clay (excluding kaolin	 china clay	 white clay or fire clay)	 building stone	 road metal	 earth	 fuller 's earth and lime stone: Provided that (i) x x x (ii) where it is an open cast working (a) the depth of the excavation measured from its highest to its lowest point nowhere exceeds six meters; (b) the number of persons employed on any one day does not exceed fifty; and (c) explosives are not used in con nection with the excavation." According to the plain meaning	 the exclusionary clause in sub section (1) of section 3 of the Act read with the two provisos beneath clauses (a) and (b)	 the word 'and ' at the end of paragraph (b) of sub cl. (ii) of the proviso to cl. (b) of section 3(1) must in the context in which it appears be construed as 'or '; and if so construed. the existence of any one of the three conditions stipulated in paragraphs (a)	 (b) and (c) would at once attract the proviso to clauses (a) and (b) of sub section (1) of section 3 and thereby make the mine subject to the provisions of the Act. The High Court overlooked the fact that the use of the negative language in each of the three clauses implied that the word 'and ' used at the end of cl. (b) had to be read disjunctively. That construction of ours is in keeping with the legislative intent manifested by the scheme of the Act which is primarily meant for ensuring the safety of workmen employed in the mines. We accordingly allow the appeal	 set aside the judgment of the 804 High Court and dismiss the writ petition. However	 it was represented by learned counsel for the respondent that it is difficult to find a duly qualified person to come and serve as Manager of a mine in rural areas and we should call upon the appellant to find a suitable person for appointment as Manager. Learned counsel for the appellant was however gracious enough to suggest that the Department will find a qualified person and depute him 26 work as Manager	 and the respondents shall be liable to pay his salary and allowances as may be stipulated by the Joint Director of Mines Safety. The Joint Director will select and depute a proper person to serve as Manager of the respondents ' mine within thirty days from the receipt of this order. In view of this	 the appellant will consider the feasi bility of not launching a prosecution against the respond ents for their past failure to appoint a duly qualified Manager as required under section 17 of the . N.P.V. Appeal allowed.

Summary:
The Inspector of Mines	 after an inspection	 found that the respondents were engaged in working an open cast mine and that the number of persons employed on any one day exceeded 50. As respendents fell within the mischief of the proviso to clause (b) of Section 3(1) of the 	 and became subject to the provisions of the Act	 he served a notice under Section 22 read with Section 17 of the Act calling upon the respondents to appoint a qualified Manager for the mine. The respondents filed a writ petition in the High Court which allowed the petition and quashed the impugned notice on the ground that the use of the word 'and ' occurring at the end of paragraph (b) of sub clause (ii) of the proviso to clause (b) of sub section (1) of Section 3 of the Act made the three paragraphs conjunctive and unless the condi tions specified in paragraphs (a)	 (b) and (c) co existed	 the Inspector had no authority to serve the impugned notice. Allowing the appeal by the Joint Director of Mines	 Safety. HELD: 1.1. The High Court was not right in its interpre tation of the word 'and ' used at the end of paragraph (b) of sub clause (ii) of the proviso to clause (b) of sub section (1) of Section 3 of the 	 as being conjunc tive. It overlooked the fact that the use of the negative language in each of the three clauses implied that the word 'and ' used at the end of clause (b) had to be read disjunc tively. [803G] 801 2.1 Sub section (1) of section 3 of the Act provides that the provisions of the Act	 except those contained in sections 7	 8	 9	 44	 45 & 46 shall not apply to (a) any mine or part thereof in which excavation is being made for prospect ing purposes only and not for the purpose of obtaining minerals for use or sale	 (b) any mine engaged in the ex traction of any of the minerals specified therein	 including lime stone. There is a proviso under each of the clauses (a) and (b) and they set forth three conditions on the happening of any one of which the proviso would be attracted	 that is to say	 the provisions of the Act would be made applicable to such a mine. [802F H] 2.2 According to the plain meaning	 the exclusionary clause in sub section (1) of Section 3 of the Act read with the two provisos beneath clauses (a) and (b)	 the word 'and ' at the end of paragraph (b) of sub clause (ii) of the provi so to clause (b) of Section 3(1) must in the context in which it appears be construed as 'or '; and if so constrned	 the existence of any one of the three conditions stipulated in paragraphs (a)	 (b) and (c) would at once attract the proviso to clauses (a) and (b) of sub section (1) of Section 3 and thereby make the mine subject to the provisions of the Act. Such construction is in keeping with the legislative intent mainrested by the scheme of the Act which is primari ly meant for ensuring the safety of workmen employed in the mines. [803E H] [The Department will find a qualified person and depute him to work as Manager	 and respondents shall be liable to pay his salary and allowances as may be stipulated by the Joint Director of Mines Safety.]