Judgment Case ID: 1245

Judgment:
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 134(1)(c) 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 134(1)(c) 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 The main contentions raised on behalf of the appellants are	 (1) that the Mines Creche Rules	 1946	 had stood repealed	 along with the repeal by section 88 of the of 1952	 of the Mines Act	 1923	.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 58(b) are different from what is required by section 30(bb) 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 30(bb) 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 58(d) 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 30(bb) 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 58(d) 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 30(bb) of the 1923 Act	 would apply to all mines contemplated by section 58(d) 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 58(d) 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 58(d) of the 1952 Act	 though not fully exhausting the purpose mentioned in that section. In other words	 the position is that while under section 58(d) 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 58(d) of the 1952 Act. To the extent the provisions of section 58(d) of the 1950 Act and section 30(bb) 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 7(1) does not in terms lay any duty on the manager and it is contended that the manager having no duty to perform under Rule 7(1) 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 a.m. and 7 p.m. 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 18(1) 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 18(1) by itself has this consequence; for the matter is put beyond doubt by section 18(2). 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 18(1) by the third. But	 says	 the manager appellant	 such a construction of section 18(2) 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 3(1) of the Coal Mines Pithead Bath Rules	 1946	 where no pithead baths had been con structed as required by the rules. In terms	 rule 3(1) 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) A.I. 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. 7(1) 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) A.I.R. (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"	 i.e.	 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. 7(1) of the Mines Creche Rules. There is an additional reason for coming to the same conclusion. Upon the language of section 18(2) 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 57(c) 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 30(bb) of the Mines Act	 1923	 could not be deemed to be rules made under the corresponding section 58(d) of the 1952 Act the requirements of which were different from those of section 30(bb) of the 1923 Act. On behalf of the manager a further contention was raised that he was not liable for the Contravention of r. 7(1) 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 30(bb) of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of section 58(d) 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 58(d) of the 1952 Act within the meaning of section 73 of the Act. Under section 18(1) 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	 A.I.R. (1956) Nag. 71	 held inapplicable. G. D. Bhattar vs State	 A.I.R. (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. 7(1) 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.