TaxTMI 
TaxTMI 
1954 (4) TMI 67
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....n those cases are colliery owners and 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 ....
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....if the provisions of the rules 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 i....
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.... not include a reference where there is involved 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 a....
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....tenance" indicate that the Central Government may make rules 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 ....
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....ay be completed offence or a continuing offence. The expression "continuing offence" means that, if an act or omission on the part of an accused 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 wel....
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....olliery owner cannot be required to make a construction of a creche, as the words "for requiring the maintenance" do not include for requiring a "construction" of a creche. I have already considered 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 wh....
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....ne, and he shall have to meet the costs unless otherwise provided. 18. It was next argued that Rule 3(a) Mines-Creche Rules, 1946, is invalid as it offends against the principle 'delegatus non potest delegare', that is to say, the rule savours 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 ....
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....9;. In the case before us, the legislature, in enacting Section 30(bb) of the Mines Act, said : "The Central Government may.....make rules for requiring the maintenance of mines wherein any women are ordinarily employed of suitable rooms to be reserved for the use of children under the age of six years 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 tha....
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....o be constructed by the competent authority, nor does it empower the Central Government to make any rule for the provision of such articles as have been mentioned above, and, therefore, the Rules are also in excess of the powers conferred upon the Central Government. Similarly, it was argued that Rule 6, which provides for medical arrangements, and Rule 8, 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 ....
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....s, 1946, have been made by the Central Government under powers conferred by Section 30 (bbb), Indian Mines Act, 1923. This section empowers the Central Government to make rules; "for requiring the maintenance at or near pitheads of bathing places equipped with shower baths and of locker-rooms for the use of men employed in mines and of similar and separate places and rooms 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 co....
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....adopted in respect of Rule 3(1) of the Pithead Bath Rules. My conclusions in respect of this rule is the same. It was, furthermore, pointed out that under Section 30 (bbb) of the Mines Act, although shower baths and locker rooms are required to be provided, latrines, urinals and attendants' rooms are not required to be provided, and that, therefore, the rule requiring latrines, urinals and 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 a....
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.... the reference under Section 432, Criminal P. C. The learned Special Magistrate has stated his opinion in the following words : "I am satisfied that in the cases pending before me, the question as to the validity of the rules (namely the Mines Creche Rules, 1946, and the Coal Mines Pithead Bath Rules, 1946) properly arises and is 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." 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 ....
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.... would be treated as the governing consideration and the rule as subordinate to it." It is no doubt true that the question of 'ultra vires' has to be approached from a somewhat different standpoint in England where there is no written constitution, and where an Act of Parliament cannot be questioned in a Court of law. In India the position is somewhat different by reason of various provisions in the 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 ....
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....ules are treated as if they were in the Act, the argument that they are inconsistent with other provisions of the Act including Section 30 has to be rejected 'in limine.' It seems to me that having regard to the object of Section 432, Criminal P. C., as enacted in 1951, it is more in consonance with that object to include within the expression "any provision contained in any Act, Ordinance or Regulation" such rules as become part of the 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....
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....ded for by the Act or the Regulations, provision for which is required in order to give effect to the Act. This clause is usually known as Henry VIII clause; because, says the Report of the Committee on Ministers' Powers, that "King is regarded popularly as the impersonation of executive autocracy". In the context of the Indian Constitution, Clause (k) pushed to its logical extreme, may in certain circumstances result in abdication of legislative 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) ....
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....sion before us. The Oxford dictionary gives the following as some of the meanings of the expression "standard" : "Degree of excellence etc. required for a particular purpose"; "minimum of material comfort with which a person or class or community may reasonably be content"; "thing recognised as a model for imitation etc."; "thing serving as a basis of comparison". It seems to me that the word "standard" in Clause (bb) of Section 30 has been used in a wide sense. It is to be remembered that the object of 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. T....
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.... that the only rule which needs consideration in the cases before us is Rule 3(a) of the Mines Creche Rules, 1946. I am not at present speaking of the Coal Mines Pithead Bath Rules; J am speaking of only those cases in which the violation of the Mines Creche Rules, 1946, is under consideration. The rule in respect of which a violation is alleged is Rule 3(a) of the Mines Creche Rules. That rule certainly is not in excess of the rule-making power. It has been contended that Rule 3(a) is also in excess of the rule-making power, because it requires the owner of every mine 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....
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....ines Welfare Commissioner or any person authorised in writing by him in this behalf. Rule 3 (1) lays down 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 authority; the rule then gives some power of exemption or relaxation. Rule 3 (2) provides the scale of shower baths and for the purpose of the scale, mines have been put in four categories A, B, C and D. Rule 4 lays down the standards of construction. Rules 5 and 6 relate to water and lighting. Rule 7 relates to attendance, 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 ....
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....t is perhaps not very accurate to use the expression "double delegation"; it must be more accurate to use the expression "sub-delegated legislation." When Acts of Parliament delegate to Ministers or other authorities the power to make laws, those laws are normally the final instructions; sometimes, however, those laws in their turn empower the making of rules or regulations which have the force of law. The classic example is the Emergency Powers (Defence) Act, 1939, which authorised His Majesty in Council to make Defence Regulations; these Regulations frequently empowered Ministers 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 some....
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....wer to the Minister of Agriculture to make certain directions : the Minister could also delegate his power under Reg. 66(1). The Minister did actually delegate his power to the war agricultural executive committee; therefore, the war agricultural committee could alone make the direction. My view is that the facts of 'Allingham's case (A)' are different from the facts of the cases under our consideration, and the principle laid down therein does not apply in the present cases. I can do no better than quote an extract from the Principles of Administrative Law by Griffith and Street (1952 Edition, pp. 68 and 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 mak....
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.... is to be found in Clause (6) of Article 19. The restrictions imposed are undoubtedly in the interests of the general public; because the welfare of women labourers and their children under the age of six years, when they cannot look after themselves, is in the interest of the community as a whole. Indeed, it is a measure of social welfare. 44. For the reasons given above, I would hold that neither Rule 3(a), Mines Creche Rules, nor Rule 3(1), Coal Mines Pithead Bath Rules, 1946, is in-valid or inoperative. Both those rules are, in my opinion, good rules, and their violation is liable to be penalised. I would accordingly hold that 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 plac....
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....l law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen 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 delega....
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....ers or certain administrative bodies the duty of making subordinate rules within the prescribed limits. With the growth in the necessities of a modern State and in the ever present complexity of the conditions with which Governments have to deal, we must have different kinds of statutes, and for enforcing those statutes it is essential to frame rules and regulations. The authority to make rules and regulations in order to carry out an express legislative purpose, or to effect the operation and the enforcement of a law, is not a power exclusively legislative in character but is rather administrative in its nature. It was, therefore, in my opinion, within the competence 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 competen....