Patna High Court
The State vs B.L. Ohri And Ors. on 12 May, 1967
Equivalent citations: AIR1967PAT441, 1967CRILJ1684, AIR 1967 PATNA 441
JUDGMENT Shambhu Prasad Singh, J.
1. Respondents B.L. Ohri, I. D. Ambastha and Lachman Singh, at the time of the occurrence, were the Chief Mining Engineer, the Agent and the Manager respectively of Kurharbaree Colliery, Giridih, under the control of the National Coal Development Corporation. The first two of these are officers of the Government of India and were working under the Corporation on deputation. All the three were tried and convicted for an offence under Section 73 of the Mines Act 1962 for contravention of (1) Regulation No. 100 of Coal Mines Regulations, 1967, and (ii) Section 29 of the Mines Act read with Rule 47 of the Mines Rules, 1955, and sentenced to pay a fine of Rs. 500/-each; in default to undergo simple imprisonment for two months each, by the Munsif Magistrate, first class, Hazaribagh. On appeal the Additional Sessions Judge set aside the convictions and sentences passed against them and the State of Bihar has preferred this appeal against the said order of acquittal.
2. Briefly stated, the prosecution case was that the National Coal Development Corporation obtained permission of the Chief Inspector of Mines, Dhanbad, for carrying on depillaring operation in the Jakotiabad pit and another pit of the Kurharbaree Colliery as required by Regulation 100. The permission was granted subject to certain conditions by a letter dated 4th July, 1960 (Ext. 6). By letter dated 31st of January, 1961 (Ext. 6/1), the Chief Inspector of Mines withdrew the aforesaid permission as in his opinion some of the conditions prescribed in the letter (Ext. 6) had been contravened. On the representation of the Corporation the permission was again restored on the 14th of February, 1961. The letter (Ext. 6/1) reached the respondents on 3rd of February, 1963 but in spite of if they continued depillaring operations during the period 3rd of February, 1961 to 13th of February, 1961. This act of theirs amounted to contravention of Regulation 100. The 12th of February 1961, which was a Sunday, was a weekly day of rest for workmen but the respondents employed and took work from some workmen including one Pokhan Dusadh who met with an accident. This was in contravention of Section 29 of the Mines Act read with Rule 47 of the Mines Rules.
3. The defence of the respondents was that they were not guilty of any offence inasmuch as no depillaring operation was done after the receipt of Ext. 6/1 and before the restoration of permission on 14-2-1961 and as 12th of February, 1961 was not a day of weekly rest. The following questions of law were also raised by the respondents in their defence:
(i) The first two respondents, being officers of the Government of India, could not be prosecuted without their sanction.
(ii) Respondent No. 1, B.L. Ohri, was neither an Agent nor Manager of the Mine in question within the meaning of Section 18 of the Mines Act and as such no prosecution should have been launched against him
(iii) The permission having been once given, could not be withdrawn by the authorities except in the manner provided in Regulation 103 or Section 22 of the Mines Act. Therefore, the order of withdrawal of the permission itself being illegal and without jurisdiction, the respondents were not guilty of any offence even if they did allow depillaring operations to continue in the pits and
(iv) P. W 4. who filed the complaint, had not the necessary authority to do so under Section 76 of the Mines Act and his so called petition of complaint in absence of any request to the Sub-divisional Magistrate to take cognizance of the offence mentioned therein, was not a complaint in the eve of law.
4. On the materials on the record, the learned Additional Sessions Judge of Hazaribagh, who has acquitted the respondents, was of the view that P. W 4 was authorised by the Chief Inspector of Mines (Vide Ext. 12) under Section 75 of the Act to file complaint in respect of an offence under the Act and that in his letter dated 1-6-61 by which he forwarded the prosecution report, P. W. 4 did request the Subdivisional Magistrate to take cognizance of the offence and it did amount to a valid complaint The findings of the learned Additional Sessions Judge are supported by these documents and have not been challenged before me on behalf of the respondents. The learned Additional Sessions Judge also found that depillaring operation had been done in Jakotiabad Pit during the period 3-2-1961 to 13-2-1961 Besides the oral evidence of the prosecution witnesses on the point he placed reliance on certain statements (Exts 8 and 8/1) of P.Ws. 3 and 5 before the Regional Inspector of Mines (P. W. 4) and also that (Ext. 8/2) of respondent I. D. Ambastha before the same officer. It was contended on behalf of the accused before the Additional Sessions Judge as well as before this Court that P. W. 4 should be deemed to be a Police Officer and statements to him cannot be us ed for any other purpose except for contradicting the witnesses. Reliance in this connection was placed on the decision of the Supreme Court in the case of Raja Jaiswal v State of Bihar, AIR 1964 S. C 828 In this case it was held that an Inspector or Sub-Inspector of Excise was a Police Officer and confessions made before him by an accused were inadmissible in evidence Their Lordships of the Supreme Court distinguished their previous decision in the case of the State of Punjab v. Barkat Ram. AIR 1962 S. C. 276 where they held that a Customs Officer was not a Police Officer, on the ground that while powers of a Customs Officer under the Sea Customs Act were merely analogous to those of a Police Officer under the Code of Criminal Procedure and not identical, the powers of an Excise Inspector under the Bihar and Orissa Excise Act read with certain notifications of the Government were identical with those of Police Officers. The powers conferred upon a Regional; Inspector under the Mines Act are more similar to those of a Customs Officer under the Sea Customs Act than to those of an Excise Inspector or a Sub Inspector under the Bihar and Orissa Excise Act. Therefore, there appears to be no substance in the aforesaid contention of the learned counsel for the respondents. Ext. 9 is a chart prepared on behalf of the Corporation itself which shows that the outturn of coal during the period 8-9-61 to 18-2-61 was the same as it was before the permission had been withdrawn. This document which has been relied on by the learned Additional Sessions Judge in his judgment, strongly corroborates the evidence of the prosecution witnesses that depillaring operation was in fact done in Jakodiabad Pit during the aforesaid period and even if Ext. 8 series are kept out of consideration the evidence of the prosecution witnesses on the point shall have to be accepted. The learned counsel for the respondents also did not seriously challenge this finding of the learned Additional Sessions Judge before this Court.
5. The learned Additional Sessions Judge also held against the respondents on the question of sanction. According to him, as respondents 1 and 2 at the relevant time were under the employment of the Corporation, no sanction of the Government of India was necessary for their prosecution. Provisions of Section 197 of the Code of Criminal Procedure which are relevant to the point are as follows "When any public servant who is not removable from his office, save by or with the sanction of .. ., the Central Government, is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government .. .".
The language shows that the sanction of the Central Government is necessary only when the person accused of an offence, at the time of the commission of the offence, is employed in connection with the affairs of the Union. In the present case respondents 1 and 2 at the time of the commission of the alleged offence were employed in connection with the affairs of the National Coal Development Corporation and not of the Union of India. There fore, no sanction of the Central Government was necessary for their prosecution The aforesaid conclusion is supported by the decision of the Supreme Court in the case of R.R. Chari v. State of Uttar Pradesh, AIR 1962 SC 1573. The appellant in that case was a permanent employee in a gazetted post under the Government of Assam. In 1941 his services were lent to the Government of India and during the period covered by the charge i.e., from January, 1946 to 20th September 1946 he was still working on deputation under the Government of India. Sanction to prosecute him was granted by the Governor General It was contended on his behalf that in absence of a sanction of the Government of Assam, his prosecution was illegal. While dealing with this question Gajendragadkar. J observed that what was relevant for the purpose of deciding as to who should give the sanction, was to ask the question "where was the public servant employed at the relevant time-?" and held that as at the relevant time the appellant was employed under the Government of India, the Governor General was the authority to give the sanction. In the present case too, as the respondents were not employed in connection with the affairs of the Union at the relevant time, no sanction of the Central Government was necessary.
6. It was half-heartedly contended by Mr Balbhadra Prasad Singh who appeared for the respondents that the National Coal Development Corporation is a Government Company and whenever an officer em-plyed in connection with the affairs of the Corporation is to be prosecuted, sanction of the Central Government will be necessary. Section 617 of the Companies Act, 1956, says that for the purposes of the Act 'Government Company' means any company in which not less than 51 per cent of the paid up share capital is held by the Central Government or by any State Government or Governments or partly by the Central Government and partly by one or more Stale Governments, and includes a company which is a subsidiary of a Government Company. It is not in dispute, though there is no evidence on the record, that in National Coal Development Corporation not less than 51 per cent of the paid up share capital is held by the Central Government but Mr. Singh conceded that a company even if it is a Government Company has got a separate legal entity from the Government itself. It is not, therefore, possible to accept the contention of Mr. Singh that as the Corporation is a Government Company, sanction of the Central Government will be required for prosecution of all its employees.
7. A point was raised before the Additional Sessions Judge that it was a case where warrant procedure should have been adopted in the trial and as summons procedure was adopted, the trial was vitiated The learned Additional Sessions Judge held that the proper procedure to be adopted in the case was summons procedure. He further held that even if warrant procedure was to be adopted no prejudice was caused to the accused by adopting the summons procedure. Mr. Singh was also not able to point out to this Court any prejudice to the respondents on account of the fact that summons procedure was adopted in the trial. Hence it is not necessary to decide which of the two procedures would have been proper.
8. On the question whether respondent No. 1 B.L. Ohri was an Agent or a Manager and could be prosecuted for an offence under the Mines Act too, the learned Additional Sessions Judge found against the prosecution. Section 18, Sub-section (1) of the Mines Act provides that every owner, agent and manager of a mine will be responsible for conducting all operations carried on in connection therewith in accordance with the provisions of the Act and the Regulations. Rules and Bye-laws and of any orders made thereunder. It was not disputed that the respondent No. 2 who was the Agent and respondent No. 3 who was the Manager would be liable under this Section 11 was also not disputed that the three respondents were not the owner but as observed earlier, it was claimed on behalf of respondent No. 1 that he was neither an agent nor a manager and, therefore, could not be prosecuted. On behalf of the prosecution it was not claimed that respondent No. 1 could be termed as manager but it was argued before the learned Additional Sessions Judge as well as before this Court that he comes within the term "Agent" as defined In Section 2(1)(c) of the Mines Act. The definition runs as follows:
"'Agent', when used in relation to a mine, means any individual, whether appointed as such or not, who acts as representative of the Owner in respect of the management, control and direction of the mine or of any part thereof and as such superior to a manager under this Act;".
According to the learned counsel for the State, respondent No. 1 too used to work as representative of the owner in respect of the management of the colliery. For this purpose reliance was placed on three letters, Exts. 6 series. Ext. 6 is a letter dated the 20th of January, 1961 from respondent No. 1 addressed to the Deputy Chief Inspector of Mines, Dhanbad in which it was stated with reference to his letter No. R-1/277, dated 16th January, 1961 that respondent No. 1 had taken up the matter with the A.S.O.C. Giridih and would write to Deputy Chief Inspector shortly. It further awared that suitable action will be taken in the matter. The Chief Mining Engineer is ordinarily concerned with engineering works and there is nothing on the record to show that this letter was in connection with the management of the colliery and not in respect of engineering work.
9. The letter Ext. 6/1 was also from respondent No. 1 to the Deputy Chief Inspector of Mines and dated the 15th of April, 1961. It was in reply to a letter dated 16-8-61 of the Deputy Chief Inspector addressed to respondent No. 2, DY. S. O. C.. Giridih. The letter stated that Mr. Grewal, i.e., the Chief Inspector of Mines, Dhanbad, paid a visit to the colliery along with respondent No. 1 and he (Mr. Grewal) was satisfied with the supervisory staff existing at the colliery and that the Deputy Chief Inspector should accept the words of respondent No. 1 In this connection. This letter too does not show that respondent No. 1 was acting as representative of the owner in respect of the management. As respondent No. 1 was present when the Chief Inspector of Mines visited the colliery, he appears to have written this letter to the Deputy Chief Inspector of Mines as to the observations of the Chief Inspector in support of the claim by Dy. S. O. C that he was satisfied with the supervisory staff existing at the colliery. Ext 5/2 is a letter dated 6/8th of March, 1961 from respondent No. 1 addressed to the Deputy Chief Inspector of Mines, Dhanbad. This letter was in connection with isolation of fire area of 16 bighas Pit from Central and Deep Pit workings. True it is, that the letter says that direction had been issued to the Deputy Superintendent of Collieries, Giridih, i.e. respondent No. 2, to comply with the directives given in the letter of Deputy Chief Inspector of Mines, dated 28th January, 1961, but this letter too does not show that respondent No. 1 acted as representative of the owner. Sub-isolation of fire area may be a concern of the Engineering Department of which respondent No. 1 was the head and, therefore, he might have requested respondent No. 2 who was present at Giridih, to see that the directives of the Deputy Chief Inspector of Mines, in that connection were carried out.
From the letter it also does not necessarily follow that it was respondent No. 1 who had requested respondent No. 2 to comply with the directives. It may be that some other officer of the Corporation had requested respondent No. 1 to comply with the directives of the Deputy Chief Inspector on the above subject and respondent No. 1 was merely mentioning that fact in the letter. Further, the letters Exts. 5/1 and 6/2 were of a period subsequent to the occurrence and they by themselves cannot show that respondent No. 1 was acting as representative of the owner at the time of the occurrence. Again, there is nothing on the record to indicate that respondent No. 1 was in any way superior to the Manager so as to bring him within the mischief of the definition of the term "Agent". My attention was also drawn in this connection to Rule 46 of the Mines Rules 1955 by the learned counsel for the State which says that for the purposes of Section 37, a Mining, Electrical and Mechanical Engineer shall be deemed to be persons holding position of supervision or management. Section 37 provides that nothing in Sections 28, 30, 31 and 34 or Sub-section (6) of Section 36 shall apply to persons who may by rules be defined to be persons holding positions of supervision or management etc. The effect of Section 37 read with Rule 46 so far respondent No. 1 was concerned, was only this much that he was not entitled to the benefits of the provisions of the sections mentioned in Section 37. Rule 46, therefore, cannot make him liable for prosecution as an agent. In the circumstances it is not possible to take view different from the one taken by the learned Additional Sessions Judge and to hold that respondent No. 1 was an Agent or a Manager of a Mine.
10. Section 26 of the Mines Act lays down that no person shall be allowed to work in a mine on more than six days in any one week. Rule 47 of the Mines Rules, 1955 says (i) that for the purpose of Sections 28 and 29 a day of rest for any person shall mean a period of rest of at least 24 consecutive hours and (11) that there shall be posted up in a conspicuous place, outside the office of every mine, a notice showing the weekly day of rest and where the weekly day of rest is not the same day for all persons employed in the mine, the notice shall show the day of rest allowed to each relay, or set of persons, or individual. According to the defence case. 12-2-61 was not day of weekly rest. D.W.3 Kamaldeo Singh has given evidence to that effect. On the other hand, from the evidence of K.C. Ganguly (P.W. 1), Md. Kabirul Hague (P.W. 2) S.B. Rakshit (P.W. 3) and S. J. Acharya (P.W. 4) it appears that Sunday was a rest day and work was done on 12-2-61 which was a Sunday. From the evidence of P.Ws. 2 and 3, however, it appears that sometimes work used to he taken on Sundays as well though it was a weekly day of rest. The Munsif Magistrate in his order has observed that D.W. 3 admitted that Sunday was the day of weekly rest. There he does not appear to be correct. Perhaps, he was referring to the last paragraph of the evidence of this witness which read as a whole shows that he was not admitting that Sunday was the weekly day of rest but merely denying a suggestion in cross-examination to that effect. P.W 8 S.B. Rakshit is all Over-man working under the National Coal Development Corporation itself. He cannot be said to have gone hostile to the Corporation inasmuch as he was also examined as D.W. 1. It may be observed here that in allowing a witness, who was already examined as a P.W., to be examined as D. W., the Munsif Magistrate adopted somewhat unheard of procedure. If necessary he could have recalled the witness for further cross-examination. Be that as it may, Rakshit himself said while deposing as a P.W that Sunday was a rest day. Therefore, evidence of other P. Ws. that Sunday used to be a rest day in Karharbaree Colliery appears to be reliable.
11. The learned Additional Sessions Judge while dealing with this question has observed that Rule 47 merely prescribes the manner in which the days of rest, for which provision is made in Sub-section (1) of Section 10, shall be allowed. There he does not appear to be right. Rule 47 is also concerned with Section 28 is apparent from the fact that Sub-rule (1) refers to this section. I have already referred to the provisions of this rule and it is manifest from Sub-rule (2) that ordinarily there should be only one weekly day of rest for all the labourers. From the evidence of the P.Ws. or D.Ws. it does not appear that there were different weekly days of rest for different relays or set of persons or individuals, because P.Ws. 2 and 8, who were employees of the Corporation, said that whenever work used to be taken on a Sunday which was a rest day, wages were paid for it. If there had been different weekly days of pest, there must have been notice to that effect as required by Rule 47(2). No such notice was produced on behalf of the respondents. It was not even suggested to any of the P.Ws., some of whom were employees of the National Coal Development Corporation itself, that there Was such a notice. Section 58 of the Mines Act gives power to the Central Government to make (sic) Clause (w) of this section shows that there is a general power in the Central Government to make rules for any matter not provided for by the Act or the Regulations, provision for which is required in order to give effect to the Act. Rule 47(2) appears to have been made really to give effect to Section 28 of the Act and not Section 29 inasmuch as this rule does not speak anything about compensatory days of rest. It is really Rule 40 which appears to have been made under Section 29(2). The learned Additional Sessions Judge, therefore, does not appear to be correct in observing that there was no question of violation of Rule 47 and that in order to prove the second charge against the respondents the prosecution must have proved that Pokhan Dusadh and other labourers had been allowed to work in Jakotiabad Pit on more than six days in the week ending on 12-2-61.
12. Section 26 of the Mines Act, no doubt, says that where a person is deprived of any of the weekly days of rest for which provision is made in Section 28, he shall be allowed compensatory days of rest equal ill number of the days of rest of which he has been deprived but the section further says that an employee can be deprived of the weekly day of rest only in certain circumstances either when the case comes under Section 34 or when a Mine or person employed therein has been exempted from the provisions of Section 28. Section 38 speaks of exemptions from the provisions of the Act in case of an entergency with which we are not concerned here. Section 39 gives power to the Central Government for making rules providing for exemption from the provisions of Section 28 and other sections of the Act. The relevant rule on the point is Rule 50 which says that for the purpose of Section 89 of the Act male adults employed in a mine on any work specified in column 1 of the Fourth Schedule shall be exempted from the provisions of the sections of the Act specified in column 2 subject to such conditions as are specified in column 3. The Fourth Schedule of the Rules show that exemption is permissible only in cases of (i) emergencies or (H) urgent work in case of an accident, actual or apprehended or a breakdown.
Thus, it cannot be said that the Management could take work from the employees in the facts of the present case on the weekly day of rest and compensate the employee later on by allowing another day of rest. As the prosecution has been able to prove that 12-1-61, which was a Sunday, was a weekly day of rest and the Management took work from the employees on that day it has been established that respondent Nos. 2 and 3, the Agent and the Manager of the Colliery acted in contravention of Section 28 of the Mines Act read with Rule 47 of the Mines Rules, 1966. The finding of the learned Additional Sessions Judge that even this part of the prosecution case has not been proved against any of the respondents, appears to be erroneous. The fact that in the prosecution report while describing the nature of offence it was mentioned that the respondents had contravened the provision of Section 99 read with Rule 47 does not make any difference inasmuch as it is clear that the evidence led against them wag that they took work from some of the employees on 12-2-61 which was a weekly day of rest and they had full opportunity to meet that case and were not prejudiced in the least by the said mistake in the prosecution report as to the section of the law which was applicable.
13. One of the questions argued at length before this court was whether the Chief Inspector of Mines, Dhanbad could withdraw by his letter (Ext. B/1) the permission for depillaring granted by him by his letter (Ext. 6). The main ground for withdrawal of the permission mentioned in the said letter (Ext. 6/1) was that the Management had been continuing operations in the Mine in direct contravention of the conditions laid down in Ext. 6. According to the learned counsel for the respondents, once permission for depillaring was granted under Regulation 100 of the Coal Mines Regulations, 1957, the depillaring could be prohibited by the Regional Inspector under Regulation 103 or by the Chief Inspector or an Inspector under Section 22 of the Mines Act and in no other case. On the other hand, it was contended by the learned counsel for the State that the authority which could permit depillaring under Regulation 100 could also withdraw the permission even in a case where it was not covered by Regulation 108 or Section 22. Reliance in this connection was placed on Section 21 of the Central General Clauses Act (Act X of 1897) which says that where by any Central Act or Regulation, power to issue notifications. Orders, Rules or Byelaws is conferred, that power also includes a power to rescind the notifications. Orders, Rules or Bye-laws so issued. It is now well settled that Section 21 of the General Clauses Act merely enunciates a rule of construction of the Statutes and where it is found that the context and effect of the relevant provisions of the Statute is repugnant to the application of the said rule of construction, a party cannot be allowed to invoke the assistance of the said section.
In the case of State of Bihar v. D.N. Ganguly, AIR 1958 SC 1018, a question arose whether after an industrial dispute was referred to a Tribunal for adjudication by the appropriate Government under Section 10(1) (d) of the Industrial Disputes Act, 1947 (XIV of 1947), could the said Government supersede the said reference pending adjudication before the Tribunal constituted for the purpose Their Lordships of the Supreme Court after examining the relevant provisions of the Industrial Disputes Act held that the scheme of the Act was repugnant to the application of the rule of construction enunciated by Section 21 of the General Clauses Act to Section 10 of the Industrial Disputes Act and the rule, so far it referred to the power of rescinding or cancelling the original order could not be invoked.
14. Regulation 100 dues not expressly give any power to the authority to withdraw the permission for depillaring after it is once granted. Regulation 103 provides that if the provisions of Regulations 98, 99, 100 and 108 of any order issued under any of these regulations are found not complied with, the Regional Inspector may give notice in writing to the owner, agent or manager requiring him to take such protective measures within such time as he may specify in the notice and in case of non-compliance with the requirements of the notice, may, by an order in writing, prohibit the extraction of coal until the requirements specified in the notice are complied with. Admittedly no notice was served on the Management as required by Regulation 103. Section 22(1) also provides for a notice for removing the defects within the period specified in the notice even when they are dangerous to human life or safety or defective so as to threaten or tend to, the bodily injury of any person and only if the Management fails to comply with the terms of the notice within the period specified, the Chief Inspector or the Inspector may prohibit the employment in or about the mine or any part thereof, of any person Sub-section (2) of Section 22, however, lays down that if in the opinion of the Chief Inspector or the Inspector, extraction or reduction of pillars or blocks of minerals in any mine or part thereof is likely to cause the crushing of pillars or blocks of minerals or the premature collapse of any part of the workings or otherwise endanger the mine or the life or safety of persons employed therein or if in their opinion adequate provision against the outbreak of fire and flood has not been made by providing for the sealing off and isolation of the part of the mine, they may prohibit, by an order in writing, extraction or reduction of pillars or blocks of minerals in any mine or part thereof. No notice appears to be necessary in such cases. Sub-section (3) of Section 22 also provides for prohibition by the Chief Inspector or an Inspector by a general or special order in writing without prior notice of employment of any person in cases of urgent and immediate danger to the life or safety of any person employed in the mine or part thereof.
It was frankly conceded by the learned counsel for the State that the letter (Ext. 6/1) cannot be said to be an order in writing under Sub-sections (2) or (8) of Section 22 Sub-section (6) of Section 22 confers upon the Management a right of appeal against an order of the Chief Inspector under Sub-section (2) or (3) to the Central Government which shall refer the same to a Committee for disposal An examination of the aforesaid provisions of the Regulation and Act will show that the scheme of the Act is that, except in the cases covered by Sub-sections (2) and (3) of Section 22, depillaring operation cannot be stopped once permission is granted for that without giving a notice for removing the de-feels within a period specified therein Even in cases which are covered by Sub-sections (2) and (8) of Section 22, the Management has got a right of appeal to the Central Government but if it is held that the permission for depillaring granted under Regulation 100 can be withdrawn by virtue of the provisions of Section 21 of the Central General Clauses Act, the Management will have no right to appeal to the Central Government against such an order of withdrawal. It is manifest, therefore; that the rule of construction enunciated in Section 21 of the Central General Clauses Act so far it refers to the power of rescinding or cancelling the original order cannot be invoked in espect of the provisions of Regulation 100 of the Coal Mines Regulations, 1957 inasmuch as it will be repugnant to the scheme of the Mines Act and the Regulations. Thus, the view taken by the learned Additional Sessions Judge that the permission for depillaring granted by Ext. 6 could not be withdrawn by Ext. 6/1, cannot he said to he erroneous.
15. As a result of the foregoing considerations, It cannot be said that there was any contravention of the provisions of Regulation 100 of the Coal Mines Regulations, 1957 by any of the respondents or there was any contravention of Rule 47 of the Mines Rules, 1955 read with Section 28 of the Mines Act by respondent No 1.
However, respondents 2 and 3 are guilty of the contravention of the provisions of said Rule 47 read with Section 28 of the Mines Act, 1952 and liable to be punished under Section 73 of the Mines Act, The appeal is.
therefore, dismissed so far respondent No. 1is concerned, but allowed as against respondents Nos. 2 and 3 who are convicted under Section 73 of the Mines Act and sentenced to pay a fine of Rs. 250 each. In default of the payment of fine, they shall have to undergo simple imprisonment for three weeks each.
The learned Munsif Magistrate had passed a sentence of fine of Rs. 600 each against the respondents but as, in fact, respondent Nos. 2.
and 3 have been found guilty of only one out of the two charges, the amount of fine has been reduced. The order of the Munsif Magistrate that the accused in default of payment of fine shall suffer simple imprisonment of two months, appears to be illegal, because the maximum sentence of Imprisonment under Section 78 is only three months and under Section 85 of the Indian penal Code, when the accused were sentenced to fine only, the sentence in default could not exceed one-fourth of the maximum sentence of imprisonment fixed for the offence.