STATE OF MYSORE v. M. CHANDRASEKHAR — 1974 DIGILAW 88 (KAR)

VENKATASWAMI, J. ( 1 ) IN these two appeals by the Stale, common questions of law and fact arise and parties are also common , and they are, thereforee disposed of by a common judgment. ( 2 ) THEY arise from a common judgment of acquittal made by the jmfc at Chincholi in CC. Nos. 307/3 and 308/3 of 1972 on his file. The respondents herein (hereinafter referred to a,s the 'accused') are the Mines, manager and Secretary of M/s. Tandur and Navandgi Stone Quarries (P) ltd. of Basheerabad of Andhra Pradesh. They were charged with offences concerning the breach of Rules 5, 5a, 8 (1) (i), 8 (1) (ii), 8a, 12a and 17 (1) of the Payment of Wages (Mines) Rules, 1956 ('payment of Wages Rules' for short,); made punishable under Rule 22 of the said Rules. Two separate complaints were lajd against the accused, one concerning contravention of Rules 5, 12a and 17 (1) and the other with the remaining charges. ( 3 ) THE complainant is the Labour Enforcement Officer (Central), Gulbarga,. The accused, as the name of the company would point, were operating quarries, which, it is not in dispute, answer the description of a 'mine' as defined in the Mines Act, 1952. Apparently in view of the pleas of the accused, no evidence has been led in the case. The contention urgqd for the accused was that in view of the provisiqns of S. 3 of the Mines Act, read with Rule 1 (2) of the Payment, of Wages Rules, the prosecution would not be maintainable. They did not however dispute the contravention of payment of Wages Rules complained of. The learned Magistrate accepted the plea and acquitted the accused. Hence these appeals. ( 4 ) IT is necessary to, notice some of the statutory provisions referred to and relevant for the case. Re: Payment of Wages Act, 1936 :"s. 2 (ii) "industrial establishment" means any- * * * * * * (d) mine, quarry or oil-field * * * * * * (iia) 'mine' has the meaning assigned to it in clause (i) of sub- sec. (1) of S. 2 of the Mines Act, 1952:"re: Mines Act of 1952 :"3. Act not to apply in certain cases- (1) The provisions of this act, except those contained in Ss. (1) of S. 2 of the Mines Act, 1952:"re: Mines Act of 1952 :"3. Act not to apply in certain cases- (1) The provisions of this act, except those contained in Ss. 7, 8, 9, 44, 45 and 46, shall not apply to- * * * * * (b) any mine engaged in the extraction of kankar, murrum, laterite, boulder, gravel, shingle, ordinary sand (excluding moulding sand, glass sand and other mineral sands), ordinary clay (excluding kaolin, china, clay, white clay or fire clay), building stone, ro,ad metal, earth, fullers earth and lime stone : provided that- (i) the workings do not extend below superjacent ground; or (ii) where it is an open cast working- (a) the depth of the exacavation measured from its highest to its lowest point nowhere exceeds six metres; (b) the number of persons employed on any day does nqt exceed fifty; and (c) explosives are not used in connection with the excavation. (3) Without prejudice to the provisions contained in sub-sec. (2), if at any time any of the conditions specified in the proviso to Cl. (a) or Cl. (b) of sub-sec. (1) is not fulfilled in relation to any mine referred to in that sub-section, the provisions of this Act not set out in sub-sec, (1), shall become immediately applicable, and it shall be the, duty of the owner, agent or manager of the mine to inform in the prescribed manner and within the prescribed timei about the non-fulfilment. "re; Payment of Wages (Mine) Rules, 1956 :"1. Short title, application and extent- (1) These rules may be called the Payment of Wages (Mines) Rules, 1956. (2) These rules apply in respect of the payment of wages to persons employed, either by the owner or by a contractor engaged by the owner, in any mine to which the Mines Act, 1952 (35 of 1952), applies (or in any oil-field ). (3) They extend to the whole of India except the State of J and K. * * * * * 2. Definitions-In these rules, unless the context otherwise requires, - * * * * * (j) 'mine' means a, mine as defined in Cl. (j) of S. 2 of the Mines act, 1952 (35 of 1952 ). " ( 5 ) ON behalf of the appellant, Sri J. M. Riazuddin, thq learned Govt. Definitions-In these rules, unless the context otherwise requires, - * * * * * (j) 'mine' means a, mine as defined in Cl. (j) of S. 2 of the Mines act, 1952 (35 of 1952 ). " ( 5 ) ON behalf of the appellant, Sri J. M. Riazuddin, thq learned Govt. Pleader, urged tha,t ihe view Off the trial Court in construing the, provisions of Rule 1 (2) of the Payment of Wages Rules and S. 3 of the Mines Act was clearly erroneous in that the mine of the accused, even if assumed to be falling within the provisions of S. 3 of the Mines Act, would not be one totally excepted from the provisions of the Act, since some of the provisions of the said Act, as expressly specified in that section, would still be operative in regard to it. In this view, it would attract the application of the Payment of Wages Rules according to the true intent and purpose underlying Rules 1 (2) and 2 (j) o,f such Rules. He, placed reliance, on a learned single Judg's decision of the High Court of Andhra, Pra,desh in Public prosecutor v. Subba Reddy, (1968) 1 L and IC. 825. The accused, therefore, would be liable for the contraventions charged with. ( 6 ) ON behalf of the accused, Sri K. Srinivasa Murthy, the learned counsel, canvassed certain contentions in the alternative. They are that : (1) The provisions specified in and excluded from the provsions of s. 3 of the Mines Act, are not material or substantial for the enforcement of the Mines Act in that they merely relate fro inspection and such other matters in regard to mines in general, whether exempted or not, and have no relevance to any matter relating to wages of workmen and such other matters. Therefore, the true intention of the framers of Payment of Wages rules could only have been to exclude such excepted mines from the operation of the said Rules; (2) Having regard to the provisions of S,2 (ii) (d) of the Payment of wages Act which makes a, distinction between a mine, quarry and oil field and which distinction is sought to be maintained even after the amendment of Mines Act and, Rule 1 (2) of the Payment of Wages Rules, a 'quarry' must be deemed to be outside the definition of a 'mine', as defined in the Mines Act, for the purpose of the application and enforcement of of the various ameliorative provisions of the Payment of Wages Act and the Rules concerned herein, and in this view the acquittal deserves to be sustained. He also invited attention to the decision of the, High Court of andhra Pradesh in Jt. Director of Mines Safety v. Tandur and Navandgi stone Quarries (P) Ltd. , AIR. 1973 AP. 315, in order to show that the mine concerned therein was the, same as the, one concerned herewith and that it is an excepted mine within the meaning of S. 3 of the Mines Act. ( 7 ) ON a careful and anxious consideration of the matter, wq are clearly of the view that these appeals must succeed and the contentions urged on behalf of the respondehts cannot prevail. ( 8 ) ON behalf of the appellant, no question has been raised whether the mine of the accused is excepted pursuant tq the provisions of S. 3 of the Mines Act. Indeed the submission made on the appellant's behalf assumes, without conceding, that the mine in question is such an excepted one. In view of this stand, it is unnecessary to examine or say anything in regard to the decision relied on behalf of the respondents. ( 9 ) TURNING now to the contentions urged on behalf of both, the parties bearing on the question of applicability of Payment off Wages Rules to a mine falling within the purview of S. 3 of the Mines Act and, therefore exempted from the operation of the Mines Act, except for the provisions specified therein, it is to be remembered that this was the only question raised and argued for the accused before the trial Court. We have also observed earlier that the argument of the appellant assumes that the mine of the accused is suck an excepted mine. On behalf of the accused, it has been argued that the Payment of Wages Rules in question would be inapplicable to such excepted mines. The submission is that alhaugh S. 3 of the Mines Act does not provide for complete exclusion of operation of the Mines Act in rfgard to a mine as the one in question, thq provisions which are saved by that section are merely of an administrative character said have no relevance to the workmen as such and the financial benefits to be derived by them. In this view, and having regard to the, object underlying the Payment of Wages Act, it is reasonable to conclude that the framers of the Rules could not have contemplated that the Rules should also be applicable to such excepted mines. We are not persuaded to agree with this submission. ( 10 ) IT ig seen from sub-rule (2) of Rule 1, earlier extracted, that it provides that the Payment of Wages Rules shall be applicable to any and every mine tq which the Mnies Act of 1952 is attracted. That being so, it is manifest that what the framers of the said Rules intended was that they shall apply tq all those mines which are regulated by all or any of the provisions of the Mines Act. It seems to us that in enacting the Payment of Wages Act and the Rules, the Legislature has merely adopted the device of referring to the definition of a 'mine' contained in the Mines Act instead of defining the said expression qnce over for the purpose of the former Act and Rules. It follows, therefore, that whether or not a mine is excepted under S. 3 of the Mines Act, so long as an establishment falls within the purview of the definition of 'mine,' in the Mines Act of 1952, the Payment of Wages Rules would apply to such establishment. It follows, therefore, that whether or not a mine is excepted under S. 3 of the Mines Act, so long as an establishment falls within the purview of the definition of 'mine,' in the Mines Act of 1952, the Payment of Wages Rules would apply to such establishment. We are, therefore, clearly of the view that the company of the accused is clearly within the intention of Rule 1 (2) of the Payment of Wages Rules, and, there is no warrant for holding that the intention behind the Rule is that only when all the provisions of the Mines Act are applicable to a mine the Payment of Wages Rules should become applicable, as contended and implied in the submission on behalf of the accused. This view of ours is partly supported by the decision of the High Court of Andhra, Pradesh in Subba Reddy's case relied on by the learned Govt Pleader. We are further of the view that the exemption enacted in S. 3 of the Mines Act is only to achieve the purpose underlying that Act and not any other. We are, therefore, clearly of the view that the learned Magistrate was in error in holding that an excepted mine under S. 3 of the Mines Act would also be exempted from the operation of the Payment of Wages Rules, 1956. ( 11 ) BUT, on behalf of the accused, alternatively, a fresh contention has been urged for the first time in an effort to sustain the acquittal of the accused. Since it was almost entirely based on the interpretation to be placed on the statutory provisions governing the question on hand, we permitted the learned Counsel to urge it. We shall proceed to examine it. ( 12 ) THE contention in question has been briefly set out earlier. In substance, the contention is that a 'quarry' as the one with which we, are concerned herein, is outside the, purview of the Payment of Wages Act and rules. The basis for this contention is that in defining the expression industrial establishment in S. 2 (ii) (d), for the purpose of the Payment of Wages Act, a, 'mine' has been treated differently from a, 'quarry'. The basis for this contention is that in defining the expression industrial establishment in S. 2 (ii) (d), for the purpose of the Payment of Wages Act, a, 'mine' has been treated differently from a, 'quarry'. This differentiation has been continued to be, maintained, notwithstanding the amendment of the Minos Act of 1952 by the Mines (Amendment) Act of 1959, as a result of which a 'quarry' has been brought within the definition of a 'mine' for the first time. It is also pointed out that even when Rule 1 (2) of the Payment of Wages Rules had been amended in the year 1962, that is subsequent to the Mines (Amendment) Act of 1959, no attempt has been made to bring the Rule in conformity with the definition in the parent act, by adding the expression 'quarry', if the intention of the rule makers had been to apply the Payment of Wages Rules to quarries also. It is, therefore, urged that the said Rules are not attracted to the mine of the accused. ( 13 ) WE find great difficulty in accepting this contention, We have earlier concluded that the definition of a 'mine' occurring in the Mines Act had been borrowed, as by way of reference, only for the purpose of the payment of Wages Act, and not the whole of the, Mines Act including S. 3 thereof. It is no doubt true that the word 'quarry' has been separately mentioned in the definition of ' industrial establishment' in the Payment of wages Act. But on that account, there is no warrant for presuming that a 'quarry' of the kind before us, which it is conceded is a, mine, within the meaning of the Mines Act, does not fall within that expression. That this is so, would be clear when one sees the definition of 'mine' in the payment of Wages Act itself reproduced earlier. This definition has also been reproduced in Rule 2 (j) of the Payment of Wages Rules. That this is so, would be clear when one sees the definition of 'mine' in the payment of Wages Act itself reproduced earlier. This definition has also been reproduced in Rule 2 (j) of the Payment of Wages Rules. Therefore, so long as the expression 'mine' includes a 'quarry' within the meaning of the definition of it in the Mines Act, the mere fact that a 'quarry' finds separate mention in the Payment of Wages Act would not affect or restrict the scope of the meaning to be assigned to, the word 'mine', for the purpose of the latter Act, so as to exclude a quarry of the kind concerned herein. ( 14 ) AS regards the, argument based on a possible intention of the legislature and framers of the Rules, in regard to the Payment of Wages act and Rules, suffice to point out that the very present definition of 'mince' occurring in S. 2 (iia) of the Payment of Wages Act has been introduced by Section 3 of Act 53 of 1964, long subsequent to the amendment of the mines Act in 1959, when for the first time a 'quarry' has been brought within the expression 'mine' on which so much stress has been laid on behalf of the accused. It is therefore reasonable, to presume that the Legislature had in mind the definition of a 'mine' in Mines Act of 1952, as amended in 1959, and, therefore, a 'quarry' was included therein. It follows, therefore, that the expression 'mine' occurring in S. 2 (ii) (d) of the Payment of Wages act 1936, as also in the Rules, has to be understood and interpreted in accordance with this new definition, if new it is, contained in S. 2 (iia) of that Act along with S. 2 (j) of the Mines Act 1952, notwithstanding the fact of separate mention of 'quarry' in S. 2 (ii) (d) of the former Act. Hence this contention also has to fall. ( 15 ) IN the light of the above discussion, the judgments of acquittal cannot be, sustained. They are accordingly set aside. The accused-respondents, therefore, are held guilty in regard to all the charges framed against them under Rules 5, 8 (1) (i), 8 (1) (ii), 8a, 12a and 17 (1) of the Payment of Wages Rules. ( 15 ) IN the light of the above discussion, the judgments of acquittal cannot be, sustained. They are accordingly set aside. The accused-respondents, therefore, are held guilty in regard to all the charges framed against them under Rules 5, 8 (1) (i), 8 (1) (ii), 8a, 12a and 17 (1) of the Payment of Wages Rules. Tt is to be noticed that in regard to each of them, there are two counts under Rules 5 and 12a. ( 16 ) AS a result of this discussion, the respondents-accused are severally convicted in regard to, each of the changes framed Against them, in both the cases. On each of these counts, they are severally sentenced to pay a fine of Rs. 100 under Rule 22 of the Payment of Wages Rules. In default, in regard to each of the above sentences, they are to undergo simple imprisonment for a week. ( 17 ) WE, however, direct that if the fine were to be recovered, 50 per cent (fifty per cent) of all such sums shall be paid over to the complainant, labour Inspector (Central), Gulbarga, for being remitted to the credit of the Govt. under the head particularised in the complaints in question. Appeals stand allowed accordingly. --- *** --- .