Judgment Case ID: 1131

Judgment:
minal Appeal No. 131 of 1959. Appeal by special leave from the judgment and order dated November 21	 1958	 of the Patna High Court in M. J. C. No. 805 of 1958. G. section Pathak	 section C. Banerjee and P. K. Chatterjee	 for the appellant. R. Ganapathy Iyer and B. H. Dhebar	 for the respondents. February 10. The Judgment of the Court was delivered by DAs GUPTA	 J. On February 20	 1958	 there occurred in the Central Bhowra Colliery	 in Dhanbad in Bihar an accident as a result of which 23 persons lost their lives. After an inquiry under. a. 24 of the 	 into the causes of and the circumstances attending the accident	 and the publication of the report of the inquiry	 a complains was prepared by the Regional Inspector of Mines	 (Dhanbad	 under the direction of the Chief Inspector of Mines	 Dhanbad	 before the Sub Divisional Officer	 Dhanbad	 against the appellant for an offence under section 74 of the 	 for contravention of regulations 107 and 127 of the Coal Mines Regulations	 1957. The Central 35 Bhowra Colliery belongs	 and belonged at the relevant date to a private company	 viz.	 M/s. Central Bhowra Colliery Co.	 Private Limited. The appellant is and was a shareholder and a director of this company. After the Sub Divisional Officer took cognizance of the complaint and issued processes against him	 the appellant made an application to the Patna High Court under article 226 of the Constitution	 for the issue of an appropriate writ for quashing the criminal proceedings. This application was summarily dismissed. It if; against that order of dismissal that this appeal has been filed by special leave obtained from this Court. The two main grounds on which the prayer for quashing the proceedings was based were: (1) that section 76 of the 	 in pursuance of which the appellant	 who was not himself the owner of the colliery company	 but only one of the directors and shareholders has been prosecuted	 is void as it violates article 14 of the Constitution; (2) the Coal Mines Regulations	 1957	 are invalid having been framed in contravention of a. 59(3) of the . These two contentions were also urged before us in appeal. The first contention is based on an assumption that the word "any one" in section 76 means only "one of the directors	 and only one of the shareholders". This question as regards the interpretation of the word "any one" in section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines etc.) (1) and it has been decided there that the word "any one" should be interpreted there as "every one". Thus under section 76 every one of the shareholders of a private company owning the mine	 and every one of the directors of a public company owning the mine is liable to prosecution. No question of violation of article 14 therefore arises. As regards the other contention that the regulations are invalid the appellant 's argument is that the provisions of section 12 and section 59 of the 	 are mandatory. Section 12 provides: "(1) The Central Government may constitute for any part of the territories to which this. Act extends	 (1) ; 36 or for any group or class of mines	 a Mining Board consisting of (a) a person in the service of the Government	 not being the Chief Inspector or an Inspector	 appointed by the Central Government to act as Chairman; (b) the Chief Inspector or an Inspector appointed by the Central Government; (c) a person	 not being the Chief Inspector or an Inspector	 appointed by the Central Government; (d) two persons nominated by owners of mines or their representatives in such manner as may be prescribed; (e) two persons to represent the interest of miners	 who shall be nominated in accordance with provisions laid down in the section. " Section 59 empowers the Central Government to 'make regulations consistent with the Act for all or any of the purposes mentioned therein	 while section 58 empowers the Central Government to make rules consistent with the Act for all or any of the purposes mentioned therein. Section 59 after providing in its first sub section that the power to make regulations and rules conferred by sections 57 and 58 is subject to the condition of the regulations and rules being made after previous publication provides in its third sub. section further conditions as regards the making of regulations. This sub section runs thus: "Before the draft of any regulation if; published under this section it shall be referred to every Mining Board which is	 in the opinion of the Central Government concerned with the subject dealt with by the regulation	 and the regulation shall not be so published until each such Board has had a reasonable opportunity	 of reporting as to the expediency of making the same and as to the suitability of its provisions. " A similar provision was made in the fourth sub section as regards the making of rules. By an amendment made in 1959 these two subsections have been combined into one. It was not disputed before us that when the Regulations were framed	 no Board as required under section 12 37 had been constituted	 and so	 necessarily there had been no reference to any Board as required under section 59. The question raised is whether the omission to make such a reference make the rules invalid. As has been recognised again and again by the courts	 no general rule can be laid down for deciding whether any particular provision in a statute is mandatory	 meaning thereby that non observance thereof involves the consequence of invalidity or only directory	 i.e.	 a direction the non observance of which does not entail the consequence of invalidity	 whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions that nonobservance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute	 the intended benefit to public of what is enjoined by the visions and the material danger to the public by pro the contravention of the same. In the present case we have to determine therefore on a consideration of all these matters whether the legislature intended that the provisions as regards the reference to the Mines Board could be contravened only on pain of invalidity of the regulation. Looking at the language of the section	 we find	 the legislature	 after saying in the first part of sub section (3)	 that before any regulation is published	 it "shall be" referred to every Mining Board which is	 in the opinion of the Central Government concerned with the subject	 and goes on to say in the latter part	 that the regulation "shall not" be published until each Board has had a reasonable opportunity of reporting as to the expediency and suitability of the provisions. While it is true that language is only one of the many considerations which have to be taken into account in deciding whether a requirement is directory or mandatory	 it is legitimate to note that the language used in this case is emphatic and appears to be designed to express an anxiety of the legislature that the publication of the regulation	 which is condition precedent to the making of the regulations	 should 38 itself be subject to two conditions precedent first	 a reference to the Mining Boards concerned	 and secondly	 that sufficient opportunity to the Board to make a report as regards the expediency and suitability of the proposed regulations. The cause of this anxiety becomes patent	 when one examines the matters on which regulations can be made	 Even a cursory examination of the purposes set out in the 27 clauses of section 57 shows that most Of them impinge heavily on the actual working of the mines. To mention only a few of these	 viz.	 cl. (c) under which regulations may be made for prescribing the duties of owners	 agents and managers of mines and of persons acting under them; (g) for determining the circumstances 'in which and the conditions subject to which it shall be lawful for more mines than one to be under a single manager; (j) for prohibiting	 restricting or regulating the employment of adolescents and women in mines; (k) for providing for the safety of the persons employed in a mine; (m) for providing for the safety of the roads and working places in mines; (n) for the inspection of workings and sealed off fire areas in a mine; (o) far providing for the ventilation of mines; (r) for providing for proper lighting of mines and regulating the use of safety amps therein; are sufficient to show that the very purpose of the Act may well be defeated unless suitable and practical regulations are framed to help the achievement of this purpose	 Arbitrary and haphazard regulations without full consideration of their practicability and ultimate effect on the efficient working of the mines	 would	 apart from	 often defeating the purpose of the Act	 affect injuriously the general economy of the country. That we are entitled to presume	 is the reason behind the legislature 's anxiety that Mining Boards should have an opportunity of examining regulations	 and expressing their opinion before they are finalised. As has been already mentioned section 12 which deals with the formation of boards provides for representation thereupon of two persons nominated by owners of mines or their representatives and two persons to re. present the interests of persons employed in mines	 in 39 addition to three persons representing the Government. The constitution is calculated to ensure that all aspects including on the one hand the need for securing the safety and welfare of labour and on the other hand the practicability of the provisions proposed from the point of	 view of the likely expense and other considerations can be thoroughly examined. It is certainly to the public benefit that Boards thus constituted should have an opportunity of examining regulations proposed in the first place	 by an administrative department of the government and of express ing their opinion. It is true that the law does not require concurrence of the Board with the regulations proposed. It is reasonable to expect however that when a Board has expressed an opinion in favour of the rejection or modification of a proposed regulation	 the department would not treat it lightly. But	 even where the opinion expressed by the Board is not accepted the very fact that there has been such an examination by the Board	 and a consequent re. examination by the department is likely to minimise the risks to public welfare. There can be little doubt therefore that generally speaking strict obedience of the command in sub section 3 of section 59 regarding consultation with the Mining Board is likely to promote public welfare. Let us now examine the matter from another aspect and ask ourselves the question: what risk there is to the public welfare of an insistence in all cases that the omission of consultation as enjoined in section 59 would invalidate a regulation. Emergencies may arise	 when in order that the public may not suffer. regulations must be framed with the least possible de lay; and much valuable time may be lost if a reference must be made to all the Mining Boards concerned and opportunity given to them to express their opinion before regulations are made. In such cases	 public interest may well be endangered if regulations	 in order to be valid have to conform	to the requirements of previous consultation with	 the Mining Boards. We find however that such cases of emergency have been specially dealt with in a. 60 of the Act	 the operative portion of which runs thus: 40 "Notwithstanding anything contained in subsec tions (1)	 (2) and (3) of section 59	 regulations under clause (1) and clauses (k) to (a) excluding clause (1) of section 57 may be made without previous publication and without previous reference to Mining Boards	 if the Central Government is satisfied that for the prevention of apprehended danger or the speedy remedy of conditions likely to cause danger it is necessary in making such regulations to dispense with the delay that would result from such publication and reference". Thus	 the apprehended danger to public interest from requiring as a condition of the validity of regulations previous consultation with the Mining Board is averted. An examination of all the relevant circumstances	 viz.	 the language used	 the scheme of the legislation	 the benefit to the public on insisting on strict compliance as well as the risks to public interest on insistence on such compliance leads us to the conclusion that the legislative intent was to insist on these provisions for consultation with the Mining Board as a prerequisite for the validity of the regulations. This conclusion is strengthened by the fact that in section 60 when providing for the framing of regulations in certain cases without following the procedure enjoined in section 59	 the legislature took care to add by a proviso that any regulation so made "shall not remain in force for more than two years from the making thereof". By an amendment made in 1959 the period has been changed to one year. It is not unreasonable to read this proviso as ex. pressing by implication the legislature 's intention that when the special circumstances mentioned in section 60 do not exist and there is no scope for the application of that section no regulation made in contravention of s.59 will be valid for a single day. Strew was laid on behalf of the respondent on the fact that section 59 does not require that regulations must have the concurrence of the Mining Boards; and it was pointed out that this Court in State of U. P. vs Manbodhan Lal Srivastava (2) in holding that article 320(3) (2) ; 41 of the Constitution was not mandatory	 relied	 inter alia	 on the fact that "the requirement of the consultation with the Commission does not extend to making the advice of the Commission	 on these matters	 binding on the government". While it is true that this Court did attach weight to this circumstance	 we have to remember that this was the only one of the several circumstances	 on the total consideration of which	 the court decided that the provision for consultation in article 320(3) was not mandatory. One of these circumstances was that article 320(3) contained a proviso	 which gave a clear indication "of the intention of the Constitution makers that they did envisage certain cases or class of cases in Which the Commission need not be consulted". "If the provisions of article 320(3) were of a mandatory character"	 observed Sinha	 J.	 (as he then was)	 while delivering the judgment of the Court	 "the Constitution would not have left it to the discretion of the head of the executive government to undo these provisions by making regulations to the contrary". It has to be noticed	 as pointed out above	 that section 60 of the 	 also lays down clear provisions where the consultation as required in section 59 need not take place. Here	 however	 the legislature has not left it to the discretion of the executive government "to undo these provisions by making regulations to the contrary". The legislature itself has given clear guidance as to the cases where such consultation need not be made by the Government. What is more	 the legislature has laid down that regulations made without such consultation would have a limited life. In Srivastava 's Case (1) this Court quoted with approval the following observations of the Privy Council in Montreal Sirgeet Railway Company vs Nor. mandin ("): "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience	 (1) ; (2) ; 	 175. 42 or injustice to persons who have no control over those entrusted with the duty	 and at the same time would not promote the main object of the Legislature	 it has been the practice to hold such provisions to be directory only	 the neglect of them	 though punishable	 not affecting the validity of the acts done." and applied the principle thus laid down to the case before it. There is however no scope in the present case of applying this principle in support of the directory nature of section 59(3). As we have pointed out above	 the inconvenience that might be caused by holding regulations made in contravention of section 59(3) invalid is removed by the provisions of section 60; and on the other hand to hold that regulations may be validly made without following the procedure laid down in section 59even in cases not falling within section 60 is likely to be harmful to public interest	 and to cause general incon venience. It is really a converse case of what the Privy Council had to consider in Montreal Street Railway Company 's Case (1) and this Court considered in Srivastava 's Case (2). For all the reasons given above	 we are of opinion that the provisions in section 59(3) of the 	 are mandatory. There remains for consideration the question whether these provisions were complied with before the Coal Mines Regulations	 1957	 were I framed. As has been pointed out above	 it was not disputed before us that at the time when the regulations were framed no new Mining Board had been constituted under the 	 and consequently no consultation with any Mining Board constituted under the 1952 Act took place. It has been stated before us however on behalf of the respondents that the Mining Boards constituted under section 10 of the Mines Act	 1923	 were continuing to operate at the time these regulations were framed and that there was full consultation with these Mining Boards before these regulations were framed. (1) ; 	 175. (2) ; 43 If in fact there was such consultation the further question would arise whether consultation with the Mining Boards constituted under the provisions of the Mining Act	 1923	 would be sufficient compliance with the provisions of section 59(3) of the present Act. Before these questions are decided it is not possible to come to a definite conclusion whether the Coal Mines Regulations	 1957	 are valid or not. As there is not sufficient material before us to decide the question	 whether in fact the Mining Boards constituted under section 10 of the 1923 Act were functioning at the date when these regulations were made and whether these Boards were consulted before the regulations were framed	 we have not thought fit to consider here the further question whether if such consultation had taken place that would be sufficient compliance with section 59(3) of the 1952 Act. In the circumstances	 the proper course	 in our opinion	 is to direct that the criminal proceedings pending in the court of the sub divisional magistrate be disposed of by him or any other magistrate to whom the case may be transferred in accordance with law	 after deciding the question whether there was consultation with Mining Boards constituted under section 10 of the Mines Act	 1923	 before the regulations were framed and	 if so	 whether such consultation amounted to sufficient compliance with section 59. If his conclusion is that there has not been compliance with the provisions of section 59 the regulations must be held to be invalid and the accused would be entitled to an acquittal; if	 on the other hand	 he holds that there has been sufficient compliance with the provisions of section 59 he should dispose of the case after coming to a conclusion on the evidence as regards the allegations made against the appellant in the petition of complaint. The appeal is disposed of accordingly. Appeal allowed. Case remanded.

Summary:
Section 76 of the 	 provides that where the owner of a mine is a private company any one of the shareholders thereof may be prosecuted and punished under this Act for any offence for which the owner of the mine is punishable. The appellant who was a shareholder and a director of a private company owning a colliery	 was prosecuted for an offence under section 74 Of the Act for contravention of Regulations 107 and 127 Of the Coal Mines Regulations	 1957. He challenged the validity of the prosecution on the grounds (1) that section 76 of the Act in pur suance of which he who was not himself the owner of the colliery but only one of the directors and shareholders had been prosecuted	 was void as it violated article 14 of 'the Constitution of India	 and (2) that the Coal Mines Regulations	 1957	 were invalid as they had been framed in contravention of section 59 (3) of the Act	 inasmuch as there was no consultation with a Mining Board before they were published as required by that sub section. It was not disputed that when the Regulations were framed	 no Mining Board as required under section 12 Of the Act had been con stituted. and so there had been no reference to any such Board	 34 but it was alleged that there was consultation with the Mining Board constituted under section 10 of the Mines Act	 1923. Held: (1) that the words "any one" in section 76 of the 	 should be interpreted as "every one" and that under that section every one of the shareholders of a private company owning the mine was liable to prosecution. Accordingly	 section 76 did not contravene article 14 Of the Con stitution. Chief Inspector of Mines vs Lala Karam Chand Thapar	 	 followed. (2) that compliance with the provisions in section 59 (3) Of the Act was mandatory. State of U. P. vs Manbodhan Lai Srivastava	 [1958] section C. R. 533	 distinguished. Quaere	 whether consultation with the Mining Boards con stituted under the provisions of the Mines Act	 1923	 would be sufficient compliance with section 59 (3) Of the .