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TMI Blog1954 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... managers. 3. In cases Nos. 19/1 and 20/2 of 1951/52, the colliery involved is one Kirkend Colliery. On the 11th October, 1950, one Miss Gulati, an Assistant Inspectress, went to inspect that colliery and she found that neither any pithead bath had been constructed at the colliery as required under the Coal Mines Pithead Bath Rules, 1946, nor any creche as required by the Mines Creche Rules, 1946. The Mines Creche Rules have been made by the Central Government in exercise of the powers conferred upon it by Sub-section Cbb) of Section 30, Coal Mines Act (4 of 1923) and the Coal Mines Pithead Bath Rules have also been made by the Central Government in exercise of the powers conferred by Sub-section (bbb) of Section 30 of that Act. Rule 3 (a) of the Mines Creche Rules provides that the owner of every mine shall construct thereat a creche in accordance with plans prepared in conformity with these Rules and previously approved by the competent authority; and Rule 3(1) of the Coal Mines Pithead Bath rules provides that the owner of every coal mine shall construct thereat a pithead bath in accordance with plans prepared in conformity with these Rules and approved by the competent author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid are ultra vires and without jurisdiction, the accused persons cannot be found to be guilty. In view of the Codes of Civil and Criminal Procedure (Amendment) Act, 1951, this Court is not in a position to find that the Rules aforesaid are ultra vires and without jurisdiction in entirety or in part. At the same time, I am satisfied that in the cases pending before me the question as to the validity of the Rules properly arises and are necessary for determination for the disposal of these cases. In view of the discussion above, I am of opinion that the Indian Mines Pithead Bath Rules, 1946 and the Mines Creche Rules, 1946 are ultra vires and without jurisdiction in part, if not in entirety. I direct, therefore, that the order of this Court be referred to the High Court for a decision. 7. I consider this reference to be incompetent. The amended Sub-section (1) of Section 432, Criminal P. C., is as follows : Where any court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved a question as to the validity of any Rule framed under any Act. For these reasons, it is unnecessary to go into the merits of this reference, and the reference must be discharged as incompetent. 8. We were, however, asked to apply the provisions of Article 228 of the Constitution, and to dispose of the cases involved in the reference ourselves. Article 228 of the Constitution provides that, if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case and may either dispose of the case itself or determine the said question of law and return the case to the Court from which the case had been so withdrawn. The Article restricts the powers of the High Court to cases involving a. substantial question of law as to the interpretation of the Constitution. In the cases which are the subject-matter of the reference, there is no substantial question of law involved as to the interpretation of the Constitution. It is, therefore, not possible to act under the provisions of Article 228 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules requiring some other person to construct and maintain a creche. The verb to require means, according to the Oxford Dictionary, to order a person or to demand of a person to do something. To my mind, the verb to require connotes one person asking or demanding something from another person. I cannot construe Section 30(bb) as meaning that the Central Government could not make rules for the construction of creches and their maintenance by another. I think the words clearly mean that the Central Government may require another person so to do. Reference may be made to Section 16(1) of the Mines Act which provides that 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 . Clearly, the owner, agent and manager of a mine are responsible for the compliance of even rules made under the Act. Mr. T. K. Prasad also argued that the term maintenance in Section 30(bb), Indian Mines Act, does not include construction. I am unable to accept this construction. The words requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used constitutes an offence, and if that act or omission continues from day to day, then a fresh offence is committed on every day on which the act or omission continues. Not to have constructed the creche as required within the time allowed was a contravention of the rule, and to carry on mining operation without the creche is surely a continuing contravention of the same rule. Section 39, Indian Mines Act, provides for punishment for continuing contravention as well. It says : Whoever contravenes . any provision of this Act or of any regulation, rule or bye-law or of any order made thereunder for the contravention of which no penalty is hereinafter provided shall be punishable with, fine which may extend to one thousand rupees, in the case of a continuing contravention, with a further fine which may extend to one hundred rupees for every day on which the offender is proved to have persisted in the contravention after the date of the first conviction. The section clearly contemplates a continuing contravention as well. I have no doubt in my mind that the contravention of Rule 3(a) of the Mines Creche Rules by the petitioners was a continuing one, and there can be no qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered this argument and rejected it. It is unnecessary, therefore, to consider this point any further. His further arguments were adopted by Mr. T. K. Prasad, appearing in the last case, and I now proceed to examine them. 16. He contended that, if a colliery has already in its possession suitable rooms which can be reserved for the use of children as required under Section 30(bb), Indian Mines Act, the colliery ought not to be required to make any fresh construction, and Rule 3(a) of the Mines Creche Rules, having made no exception in this respect, was 'ultra vires'. This argument can have no force in the circumstances of the present case or of the last case for the reason that it was never urged in the Courts below that the collieries concerned possessed suitable rooms which could be reserved for the use of children, and no such defence was taken. Such an argument could only be urged if it could be shown that the collieries concerned had offered suitable rooms which could be reserved for the use of children and that would involve production of evidence; indeed, we were not informed that the collieries concerned possessed such rooms. The point does not arise as no evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of double delegation. The contention was that by Section 30(bb), Mines Act, 1923, the legislature empowered the Central Government to make the required rules, and, by rule 3(a), Mines Creche Rules, the Central Government has delegated those powers, which the legislature had given to it, to another authority, and this the Central Government could not have done. Rule 3(a) has already been quoted. It will be recalled that, while requiring an owner of a mine to construct a creche, it provides that the creche must be in accordance with plans which must be previously approved by the competent authority . And competent authority has been defined in Rule 2(a) as meaning, in respect of coal mines, the Coal Mines Welfare Commissioner , and including any person authorised in writing by the said Commissioner . The argument was that the Central Government, by directing the construction of a creche in accordance with plans approved by the Coal Mines Welfare Commissioner, has delegated the authority given to it by the legislature to another person. The learned Advocate-General, appearing for the State, contended that there is, in fact, no delegation of any legislative authority; all that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars belonging to such women..... Thereupon, the Central Government made the Mines Creche Rules, and in Rule 3(a) it directed that the owner of every mine shall construct a creche according to plans prepared in conformity with those rules but previously approved by the Coal Mines Welfare Commissioner. It was contended that, whereas, in the English case cited above, the Minister or his delegate (the committee) had to select the site of the land, in the present cases before us, it was the Central Government which was bound to lay down the requirements, and those requirements could not be left to the discretion of the competent authority. It is pointed out that Section 30(bb), Mines Act, has authorised the Central Government to make rules for maintenance of suitable rooms in mines wherein any women are ordinarily employed . It is further pointed out that the Central Government has given no indication :n the rules that it would apply the rules only to mines wherein. women are ordinarily employed nor has it given any indication as to what would be suitable rooms. It has been argued that, if the Central Government had given the specifications of the rooms or the number of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which requires the maintenance of certain records, are in excess of the powers conferred under Section 30(bb) of the Mines Act. 'Prima facie', there is force in this argument. It was, therefore, argued that, the Rules being invalid, the petitioners were not bound to obey them. The learned Advocate-General, however, contended that the conviction of the petitioners being for not constructing a creche at all -- of any kind -- the conviction ought to be maintained. I do not think that this reply of the Advocate-General is adequate. If the petitioners were bound to construct a creche, they had to do so according to the plan approved by the competent authority or not at all. If the rules requiring the petitioners to construct a creche according to the plan and to provide the requirements at the creche (as mentioned above) are invalid, the petitioners cannot be found guilty for non-compliance of these requirements. 20. Another argument was in respect of Rule 7 of the Mines Creche Rules. This rule makes a provision for the staff, and lays down that at every creche the owner shall appoint supervisory and inferior staff on a scale approved by the competent authority. There can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the use of women in mines, where women are employed, and for prescribing, either generally or with particular reference to the number of men and women ordinarily employed in a mine, the number and standards of such places and rooms . 25. Rule 3 (1) of these Rules is as follows : The owner of every coal mine shall construct thereat a pithead bath in accordance with plans prepared in conformity with these rules and approved by the competent authority ..... . The competent authority in these Rules is, according to Rule 2(c), the Coal Mines Weliare Commissioner or any person authorised in writing by him in this behalf. The case against the petitioners is that, on 18-10-1951, P. S. Murmu, the Junior Assistant Inspector, inspected this colliery and found that pithead baths had not been constructed in the colliery as required under Rule 3(1) of the Coal Mines Pithead Bath Rules, 1946. Mr. Shivanugrah Narayan, who appeared for the petitioners in this case also, argued that some of the rules of the Coal Mines Pithead Bath Rules, 1946, were repugnant to Section 30 (bbb) of the Indian Mines Act. In these Rules, mines have been divided into four categories, according to Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d attendants' rooms also to be provided are bad. This part of the argument is also on similar lines as the argument in respect of Rule 3(a) of the Mines Creche Rules, 1946, and I have already accepted that argument. 27. It was also argued that a manager of a colliery cannot be convicted. The reply to this argument is to be found in Sub-sections (1) and (2) of Section 16, Mines Act, 1923. Sub-section (1) is as follows : 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. And Sub-section (2) is as follows : In the event of any contravention of any such provisions by any person whomsoever, 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. The provisos to this sub-section are immaterial for our purposes. Haying regard to these provisions, I am of opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases. In view of the discussion above, I am of opinion that the Indian Mines Pithead Bath Rules, 1946, and the Mines Creche Rules, 1946 are 'ultra vires' and without jurisdiction in part, if not in entirety. I direct, therefore, that the order of this Court be referred to the High Court for a decision. 32. The question is if the reference is competent. Section 432, Criminal P. C. states, 'inter alia', that where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the court shall state a case etc. The principal point for consideration is if the cases pending before the learned Special Magistrate of Dhanbad involve a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation. 'Prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Constitution, details whereof need not now be discussed. Lord Herschell's view was supported by Lords Watson and Russell and not by Lord Morris. In England, much discussion followed -- 'Lock-wood's case (B)'. The question was again examined in -- '1931 AC 494 (C)', where Lord Dunedin examined the dicta of Lord Herschell. His Lordship quoted the observations of Lord Herschell which I have referred to above, and pointed out that the confirmation of the scheme made by the Minister of Health (their Lordships were dealing in that case with an improvement scheme made under the Housing Act, 1925) made the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it was contained was the very Act which provided for the framing of the scheme. His Lordship held that the mere confirmation would not save it; because if the scheme as made was in conflict with the Act, it would have to give way to the Act. The position would be otherwise if the scheme were embodied in a subsequent Act, for then the maxim to be applied would have been posteriora derogant prioribus. 33. Section 30, Mines Act, which enables the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act on publication; that does not necessarily mean that the rules become sacrosanct. The validity of the rules has still to be considered on the touchstone of their consistency with other provisions of the Act. To me this seems to be the correct position, and I am not prepared to hold that the reference is incompetent. 36. The question of the competency of the reference is, however, somewhat academic in the present case; because the questions which fall for decision in the Criminal Reference have to be decided by us in connection with the Criminal Revisions. Under Section 432, Criminal P. C., what has to be referred for the decision of the High Court is the question of the invalidity or imperativeness of the Mines Creche Rules and the Coal Mines Pithead Bath Rules. The validity of both those sets of rules is under consideration in the Criminal Revisions. Therefore, the decision in the Criminal Revisions will be the decision in the Criminal Reference as well. If we hold the rules to be valid, the Criminal Reference will be answered accordingly; if we hold the rules to be invalid, then also the reference will be answered accordingly. I would, therefore, decide the Criminal Referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive function. That, however, is not a point which has been canvassed by Mr. Shivanugrah Narain. He has confined his argument within a very narrow compass. His argument is that Section 30, Mines Act, 1923, is good law; but the Mines Creche Rules, 1946 and the Coal Mines Pithead Bath Rules, 1946, are bad on the ground that the Central Government acting as a delegate under Section 30 of the Act cannot redelegate its powers, as it has done in the Mines Creche Rules and the Coal Mines Pithead Bath Rules. Mr. Shivanugrah Narain has invoked to his aid the principle 'delagatus non potest delegare. The two rules which Mr. Shivanugrah Narain has particularly challenged are Rule 3(a) of the Mines Creche Rules, 1946 and Rule 3(1) read with 2(c), of the Coal Mines Pithead Bath Rules. It is necessary to read these two rules at this stage. As I shall first deal with the Mines Creche Rules, I read first Rule 3(a) of the said rules. The rule is in these terms : The owner of every mine shall construct thereat a creche in accordance with plans prepared in conformity with these rules and previously approved by the competent authority. My learned brother Jamuar has said in one part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Clause (bb) of Section 30 is apparently such regulation of a mine as will conduce to the welfare of women employed in it. The care of children under the age of six years becomes necessary, because women are employed in the mine. In considering such social legislation one must, to some extent, divest one's mind of- narrow legislative interpretations, unless the words used in the statute are such that no wider interpretation is possible. If the word standard is given a wide connotation, it seems to me that most of the rules in the Mines Creche Rules are consistent with Section 30, Clause (bb) of the Act. The previous approval of plans prepared in conformity with the rules does not appear to me to be anything but a mere administrative act. It should be obvious that it is impossible for the Central Government to lay down all details, with meticulous care, in respect of all mines. Clause (bb) of Section 30 itself says that the rules may be made generally or with particular reference to the number of women ordinarily employed in a mine. It was, therefore, necessary to create an administrative agency for the approval of plans and also to give that authority power of exemption a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine to construct a creche in accordance with plans previously approved by the competent authority. It is pointed out that the owner of a mine cannot construct a creche unless it is in accordance with the type plan approved by the competent authority and unless it contains the necessary standard equipment. The argument is that judged from that point of view, Rule 3(a) cannot be severed or taken separately from the other rules; therefore, all the rules must stand or fall together. I am unable to accept this argument. In my opinion, the standard of equipment 'inside the rooms', such as is mentioned of in Rule 4 (vi), can be easily separated from 'the standard of rooms themselves'. Assuming that the standard of equipment inside the rooms is in excess of the rule-making power, I do not see why Rule 3(a) should fall on that ground. That rule does not talk of the standard of equipment inside the rooms; it talks of a previous approval of the plan of a creche (consisting of more than one room), prepared in conformity with the rules. My point is that the plan relates to the structure of the rooms and not necessarily to the equipment inside. No doubt, the building and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, Rule 8 to locker rooms and Rr. 9 and 10 to sanitary facilities and cleanliness. So far as sanitary facilities and the supply and maintenance of medical appliances and comforts are concerned, Clause (c) of Section 30, Mines Act, is relevant; because it enables the Central Government to make rules prescribing the scale of latrine and urinal accommodation to be provided at mines and the supply and maintenance of medical appliances and comforts. Rule 4 (vi) of the Mines Creche Rules and Rr. 9 and 10 of the Coal Mines pithead Bath Rules may be supported as coming within the ambit of Clause (c) of Section 30, Mines Act. As in the case of Mines Creche Rules, so also in the case of the Coal Mines Pithead Bath Rules, the only rule which really requires consideration is Rule 3 (1). In the cases before us, the violation complained of is the non-construction of any pithead bath; in other words, the complaint is the violation of Rule 3 (1). On the same reasoning, which I have explained in connection with the Mines Creche Rules, it is really unnecessary to consider the validity of any other rule except Rule 3 (1) of the Coal Mines Pithead Bath Rules, 1946. The rule, in my opinion, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters to make Orders. Under these Orders directions were sometimes issued and licenses (?) might result from the directions. The number of tiers of instructions which are issued under an Act depends to a large extent on the degree of generality in the Act itself; speaking generally, there were four tiers under the Emergency Powers (Defence) Act, 1939. In India, we had a similar case in the Defence of India Act, 1939 and the rules made thereunder. The problem that arises in connection with legislation of that type, popularly known as grand-parent legislation, is somewhat different from the problem which we are now discussing. If the Act itself contains powers of delegation, such as were contained in the Defence Act of 1939. the problem is as to whether the legislature itself has abdicated its function; in other words, the problem is one which usually goes by the name of delegated legislation. Where, however, the statute empowers an authority to make subordinate laws by means of rules or regulations, can the authority make sub-delegated legislation where the statute does not expressly empower to do so? This question is usually known as sub-delegated legislation; in other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 69) : It is the statute which must be looked at. If the Minister is empowered to take a multitude of actions over the whole area of the country, then it is possible that an authority to delegate this power to local officials, whether of the Ministry or of the local government authority, will be implied. If it were otherwise, the exercise of the power might be administratively impossible. It seems to follow that the Minister may issue instructions to such delegates and the courts may hold these instructions to be legislative. If the Minister is empowered to make subordinate legislation, it is suggested that his power to authorise himself or others by such subordinate legislation to make sub-delegated legislation depends on the generality of the statute and the extent to which the powers to legislate are there defined. If the statute is so widely phrased that two or more tiers of subordinate legislation are necessary to reduce it to specialised rules on which action can be based, then it may be that the courts will imply the power to make the necessary sub-delegated legislation. In the absence of authority, it is not possible to be more dogmatic. I am aware that the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Criminal Revisions are without merit and must be dismissed. As to the liability of a manager, I agree with my learned brother and need not say anything more. I also agree with my learned brother that the cases before us have to be decided on the basis of the provisions of the Indian Mines Act, 1923. That Act has now been replaced by the Indian Mines Act, 1952; but we are not called upon in these cases to determine the validity of the Mines Creche Rules or the Coal Mines Pithead Bath Rules under the new Act. The contraventions in these cases took place before the Act of 1952 came into force; therefore, the legal position must be considered with reference to the position of the rules under the Indian Mines Act, 1923, as it existed at the time of the alleged contravention of the rules. Narayan Roy, J. (Concurring) 45. I have had the advantage of reading the judgments of my learned brothers, and though I had some difficulty in making up my mind in this case, I am now inclined to agree generally with the views of my learned brother Das J. on the two main points of difference. 46. The most important point on which my learned brothers are not able to agree is the point as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fit to confide this sovereign trust. -- Cooley. Because the legislative power of the government is vested exclusively in the legislature, the general rule enunciated by Cooley, is that the legislature cannot surrender or abdicate such power and any attempt to do so will be unconstitutional and void. There is also the well-known maxim 'dele-gatus non potest delegare', which means that the power to make laws cannot be delegated by the legislature to any other authority. But, notwithstanding these observations against delegation, the extent of delegation went so far as to make an American writer say that because of the rise of the administrative process, the old doctrine prohibiting the delegation of legislative power has virtually retired from the field and given up the right . Pazl Ali J. (as he then was) said in -- 'AIR 1951 SC 332 (D)', that this was in one sense an over-statement, because the American Judges had never ceased to be vigilant to check any undue or excessive authority being delegated to the executive authorities as would appear from certain recent decisions of the American Supreme Court in -- 'Panama Refining Co. v. Ryan' (1935) 293 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Central Government to give certain powers to the Coal Mines Welfare Commissioner in connection with the construction of the creche or the pit-head bath. I think, I must agree with my learned brother Das, J. that the use of the word standard in Clause (bb) is very important and that the word has been used in a very wide sense. But, certainly, the rules regarding the supply of medicines, linen, bedding, utensils and toys are in excess of the powers, and neither the Central Government nor the competent authority can enforce such rules. Though the competent authority could prepare plans for the construction of suitable rooms , they could not direct the construction of a 'chautra'. Some of the clauses in the rules that are to be found in the notifications are, certainly, in excess of the rule-making powers, but I am not able to disagree with my learned brother Das, J. that these rules are not so inseparable as to stand or fall with the other rules . In the circumstance. I also have reached the conclusion that this is not a case of double delegation. 47. The next question of importance is whether these convictions can be sustained, inasmuch as the defence can legi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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