PETITIONER:
CHAIRMAN, BOARD OF MINING EXAMINATION &ANOTHER
Vs.
RESPONDENT:
RAMJEE
DATE OF JUDGMENT03/02/1977
BENCH:
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1977 AIR 965 1977 SCR (2) 904
1977 SCC (2) 256
ACT
Coal Mines Regulations--Regulation 26--Interpretation of.
Rules of natural justice---Concept of reasonably oppor-
tunity cannot be fitted into a rigid mould--Need for a
strict liability---Code for subterranean occupations.
HEADNOTE
Under regulation 26(1) if, in the opinion of the Regional
Inspector, a person to whom an Overman’s, Sirdar’s,
Engine-driver’s, Shot-firer’s, or Gastesting Certificate has
been granted is incompetent or is guilty of negligence or
misconduct in the performance of his duties, he may, after
giving the person an opportunity to give a written explana-
tion, suspend his certificate by an order in writing. U/r
26(2) he shall within a week of such suspension report the
fact to the Board together with all connected papers includ-
ing the explanation, if any received from the person con-
cerned. U/r 26(3) the Board may, after such inquiry as it
thinks fit, either confirm or modify or reduce the period of
suspension of the certificate, or cancel the certificate.
The respondent, a shot-firer in a colliery, violated the
provisions of the Coal Mines Regulations by entrusting his
risky, technical work to an unauthorised person which re-
sulted in an accident injuring one Bhadu. The Regional
Inspector u/r 26(1) gave him an opportunity for an explana-
tion in writing and after considering the materials before
him forwarded the papers to the Chairman of the Board
together with a recommendation for cancellation of the cer-
tificate under Regulation 26(3). The Board bestowed its
judgment on the materials gathered which included the delin-
quent’s admission, and cancelled the shot-firing certifi-
cate. The High Court allowed the writ petition assailing
the orders of cancellation of the licence and held: (1) The
Board had no jurisdiction since the Regional Inspector did
not suspend the certificate first before reporting (2) The
Regional Inspector had no power to recommend but only to
report and so the Board’s order influenced by the recommen-
dation was bad in law and (iii) the Board should have given
a fresh opportunity to be heard before cancellation of the
certificate and its absence violated natural justice, void-
ing the order.
Accepting the Court,
HELD: (1 ) Law is meant to serve the living and does not
beat its abstract wings in the jural void. Its functional
fulfilment as ’social engineering’ depends on its scruti-
nized response to situation, subject-matter and the complex
of realities which require ordered control. A holistic
understanding is simple justice to the meaning of all legis-
lations. Fragmentary grasp of rules can, n misfire or even
backfire, as in this case. [906 H, 907 A]
(2) The judicial key to construction is the composite
perception of the daha and the dahi of the provision. To be
literal in meaning is to see the skin and miss the soul of
the Regulation. [909 A-B]
(3) Over-judicialisation can be subversive of the justice
of the law. To invalidate the Board’s order because the
Regional. Inspector did not suspend the certificate is a
fallacy. The Board’s power is independent and is ignited by
905
the report, which exists in this case, of the Regional
Inspector. There is an overall duty of oversight vested in
the board to enforce observance of rules of safety. [909 D]
(4) To set aside the order on the ground that the Re-
gional Inspector had no power to recommend but only to
suspend and report that his recommendation influenced the
Board’s order is to enthrone a processual nicety do dethrone
plain justice. Suspension, on a.n enquiry, predicates a
prior prima-facie finding of guilt and to make that known to
the Board implicitly conveys a recommendation. The differ-
ence between suspension plus report and recommendatory
report is little more than between Tweedledum and Tweedledee
Recommendations are not binding but are merely raw materials
for consideration. Where there is no surrender. of judge-
ment by the Board to the recommending Regional Inspector,
there is no contravention of the cannons of natural justice.
[909 E-F, 910D-E]
(5) Natural justice is no unruly horse, no lurking land
mine, nor a judicial cure-all. If fairness is shown by the
decision-maker to the man proceeded against, the form
features and the fundamentals of such essential processual
propriety being conditioned by the facts and circumstances
of each situation. no breach of natural justice can be
complained of. Unnatural expansion of natural justice.
without reference to the administrative realities and other
factors of a given case, can be exasperating.
Courts cannot look at law in the abstract or natural justice
as a mere artifact. Nor can the), fit into a rigid mould the
concept of reasonable opportunity. If the totality of cir-
cumstances satisfies the Court that the party visited with
gelverse order has not suffered from denial of reasonable
opportunity the Court will decline to be punctilious or
fanatical as if the rules of natural justice were sacred
scriptures. In the instant case, the Board cannot be anath-
ematised as condemning the man without being heard. The
respondent has, in the form of an appeal against the report
of the Regional Inspector, sent his explanation to the
Chairman of the Board. He has thus been heard dad compli-
ance with Regulation 26 in the circumstances is complete.
[909G-H, 910 A-G]
Tereaesai’s case [1970] 1 S.C.R 251; Management of DTU
[1973] 2 S.C.R. 114: Tandon’s case [1974] 4 SCC 374 referred
to.
Observations: Sensitive occupations demand stern juristic
principles to reach at scapegraces, high and low, and not
mere long drawn-out commissions whose verdicts often prove
dilatory ’shelter’ for the men in whom Parliament his en-
trusted plenary management. Any sensitive jurisprudence of
colliery management must make it cardinal to pt nish the
Board vicariously for any major violations and dreadful
disasters, on macro:considerations of responsibility to the
community. The Board must quit, as a legal pendry, if any
dreadful deviation. deficiency, default or negligence
anywhere in the mine occurs. This is a good case for new
principles of liability, based on wider rules of sociologi-
cal jurisprudence to tighten up the law of omission and
commission at the highest levels. Responsibility and penal-
ty must be the concomitants of highly-paid power vested in
the top-brass. Any deviance on the part of these high-
powered authorities must be visited with tortious or
criminal liabilities. [908 F-H, 907 D-FI
(The Court emphasised the need for evolving a code of strict
liability calling to utmost care not only the crowd of
workers and others but the few shall care or quit so that
subterranean occupations necessary for the nation are made
as risk-proof as technology and human vigilance permit).
JUDGMENT
CIVIl, APPELLATE JURISDICTION: Civil Appeal No. 2294
1968.
Appeal from the Judgment and Order dated 25-9-1967 of the
Madhya Pradesh High Court in Misc. Petition No. 595/66.
L.N. Sinha, Sol. Genl, B. Datta and Girish Chandra for the
Appellants.
906
S.K. Gambhir, amicus curiae, for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.--If the jurisprudence of remedies were
understood and applied from the perspective of social effi-
caciousness, the problem raised in this appeal would not
have ended the erroneous way it did in the High Court.
Judges must never forget that every law has a social pur-
pose and engineering process without appreciating which
justice to the law cannot be done. Here, the socio-legal
situation we are faced with is a colliery, an explosive, an
accident, luckily not lethal, caused by violation of a
regulation and consequential cancellation of the certificate
of the delinquent shot-firer, eventually quashed by the High
Court, for processual solecisms, by a writ of certiorari.
We may state at the outset that the learned Solicitor
General agreed that the appellant, the Board of Mining
Examination, would be satisfied if the law, wrongly laid
down by the High Court, were set aside and declared a right
and he was not insisting on the formal reversal of the order
affecting the respondent (who is unrepresented before us).
We proceed on that footing.
The few necessary facts may be narrated to bring up the
legal issue in its real setting.
The respondent was a shot-firer in a colliery and being
a risky, technical job, had to possess a certificate for it.
He handed over an explosive to an unskilled hand who fired
it, an accident occurred and one Bhadu, employed in the
mine, was injured. The Regional Inspector of Mines imme-
diately enquired into the cause of the accident and
found, on the respondent’s virtual admission, qualified by
some prevarication, that the shots were fired not by himself
but by a cutter, an unauthorised person for shot-firing to
whom the respondent had wrongfully entrusted the work.
Thereby he contravened the relevant Coal Mines Regulations.
The Regional Inspector gave him an opportunity for explana-
tion and, after considering the materials before him, for-
warded the papers to the Chairman of the Board together with
a recommendation for cancellation of the certificate under
Reg. 26. The Board bestowed its judgment on the materials
gathered by the Regional Inspector at the enquiry, which
included the delinquent’s admission, and cancelled the
shot-firing certificate. The said cancellation was shot down
by a writ of the Court on the ground of violation of Reg.
26.
Was Regulation 26, in the context and set. tin. g of the
Mines Act, misinterpreted by the High Court at all? This is
the short question canvassed before .us. We permit our-
selves a few observations Which serve as perspective-set-
ters. Law is meant to serve the living and does not beat
its abstract wings in the jural void. Its functional
fulfilment as social engineering depends or its sensitized
response to situation, subject-matter and the complex of
realities which require
907
ordered control. A holistic understanding is simple justice
to the meaning of all legislations. Fragmentary grasp of
rules can misfire or even backfire, as in this case. It is
a notorious fact that collieries--Indian collieries, both
before and after nationalisation-are strategic sources of
the nation’s fuel and, operationally, areas of tragic human
hazards. We need coal, we want miners to bring it from the
bowels of the earth. The dangerous technology is not yet so
perfect in India as to ensure risk-free extraction. And,
after many lives have been lost by the neglect of operatives
or supervisors or supine bosses, follows the scenario of
tears and torn-down homes, a little monetary compensation, a
flutter in Parliament, a longdrawn-out Commission, a
routine Report about lapses and recipes and the little man’s
life-or death lot continuing to receive callous considera-
tion at the hands of the law, law-matter,
law-enforcer---this sombre colliery disaster sequence must
educate and inform the jurisprudence of high-risk opera-
tions. In short, the Mines Act (and Regulations) must
receive its judicial construction in the total setting,
teleclogically approached, not fragmentarily dissected. The
relevant regulation is only a tiny inset in the larger
justice of the statute.
The Mines Act has a scheme designed to avoid accidents
and ensure safety. A system of certificates, supervisions
and penalties is part of this scheme. The broad responsi-
bility for due enforcement of the Act rests on the Board and
the relevant regulation casts liabilities on the lesser men.
Any sensitive jurisprudence of colliery management must make
it cardinal to punish the Board vicariously for any major
violations and dreadful disasters, on macro considerations
of responsibility to the community. The Board must quit, as
a legal penalty, if any dreadful deviation, deficiency,
default or negligence anywhere in the mine occurs. In the
present case a microbreach is being punished, but when major
mishaps occur the top echelons, on account of inadequacies
in colliery codes, escape and make others the scapegoats.
Although, in this ease, only injury, not death, has oc-
curred, there is a good case for new principles of liabil-
ity, based on wider rules of sociological jurisprudence,
to tighten up the law of omission and commission, at the
highest levels. Responsibility and penalty must be the
concomitants of highly-paid power vested in the top-brass.
Back to the pedestrian statement of facts. The re-
spondent’s curious contention, accepted by the learned
Judge, is best understood after reading Regulation 26:
"26. Suspension of an Overman’s, Sir-
dar’s, EngineDriver’s, shot-firer’s, or
Gas-testing Certificate--
(1) If, in the opinion of the Regionl
Inspector, a person to whom an Overman’s,
Sirdar’s, Engine-driver’s, Shot-firer’s, or
Gas-testing Certificate has been granted ii
incompetent or is guilty of negligence or
misconduct in the performance of his duties,
the Regional Inspector may, after giving the
person an opportunity to give a written expla-
nation, suspend his certificate by an order in
writing.
10--206SC1/77
908
(2) Where the Regional Inspector has
suspended a certificate under sub-regulation
(1) he shall within a week of such suspen-
sion report the fact to the Board together
with all connected papers including the expla-
nation if any received from the person
concerned.
(3) The Board may, after such inquiry as
it thinks fit, either confirm or modify or
reduce the period of suspension of the certif-
icate, or cancel the certificate."
The plain purpose of the regulation is to pre-empt further
harm by suspending the certificate of the shot-firer ’if in
the opinion of the Regional Inspector’ he ’is incompetent
or is guilty of negligence or misconduct in the performance
of his duties... after giving the person an opportunity to
give a written explanation’. This suspension is itself a
punishment liable to confirmation, modification, reduction
of the period of suspension or, by way of enhancement, can-
cellation of the certificate by the Board. Before taking
such action by way of cessation, as it were, the Board gets
a report from the Regional Inspector of the fact of
suspension and makes ’such enquiry as it thinks fit’. In
the present case, the Board had an explanation (styled
an appeal) from the respondent, and also a recommendation by
the Regional Inspector for cancellation of the certificate.
The latter had not suspended the delinquent but had merely
hold an enquiry, reached the prima facie view of guilt and
and instead of suspension at once, only made a recommenda-
tion to the Board for cancellation.
The Regional Inspector has, among his statutory duties,
the supervision of the observance of the safety rules and
the holding of enquiries (see sections 7 & 14). He has to
report to the Board on breaches of regulations and condi-
tions. The Board, in its turn, has the over-all charge of
the safe management of the mine. Derelictions and viola-
tions must reach its vigilant eye and be visited with
prompt action. Jurisprudentially speaking, there is need to
cast an obligation on the Board and the higher inspectorate
not to be negligent, indifferent or insoucient in the
discharge of its overall responsibility which includes
anticipation of likely mishaps and introduction of the
latest measures to promote safety for the men working in the
dark depths at the mercy of the wicked mood of Yama. Any
deviance on the part of these high-powered authorities must
be visited with tortious or criminal liability. Such is the
price which high position must pay for the consequences of
calamitous failures. Sensitive occupations demand stern
juristic principles to reach at scapegraces, high and low,
and not mere long-grown-out commissions whose verdicts often
prove dilatory ’shelter’ for the-men-in whom Parliament has
entrusted plenary management. We emphasize this matter to
awaken the law-makers to evolve a code of strict liability
calling to utmost care not only the crowd of workers and
others but the few who shall care or quit so that subterra-
nean occupations necessary for the nation are made as risk-
proof as technology and human vigilance permit..
909
Unfortunately, the High Court surrendered to nar-
rowness of interpretation of Regulation 26 by accepting the
submission of the respondent. To be literal in meaning is
to see the skin and miss the soul of the Regulation. The
judicial key to construction is the composite perception of
the deha and the dehi of the provision. So viewed, Reg. 26
is easy of comprehension.
The High Court held that the order of cancellation
was illegal for a few reasons which strike us as untenable.
The argument runs thus. Without first suspending the cer-
tificate, the Regional Inspector cannot report to the Board
and without such a report following upon a suspension the
latter cannot take seisin of the matter. Since the Region-
al Inspector did not suspend the respondent, the Board had
no jurisdiction. Secondly, the Regional Inspector had no
power to recommend, but only to report and so the Board’s
order, influenced by the recommendation, was bad in law.
Thirdly, the Board should have given a fresh opportunity to
be heard before cancellation of the certificate and its
absence in the present case violated natural justice, void-
ing the order.
All the three points serve to warn the courts how
over-judicialisation can be subversive of the justice of the
law. Now, how can the cancellation order by the Board be
bad for failure to suspend the certificate by the Regional
Inspector ? The Board’s power is independent and is ignited
by the report of the Regional Inspector. Such a report
exists here. There is an overall duty of over sight vested
in the Board to enforce observance of rules of safety. To
invalidate the Board’s order because the Regional Inspector
did not suspend the certificate is a fallacy.
Now to the next point. The vice that vitiates the
Board’s order is stated to be the recommendation contained
in the Regional Inspector’s report. Had he suspended and
reported, he would have been in order. But suspension, on
an enquiry, predicates a prior prima facie finding of guilt
and to make that known to the Board implicity conveys a
recommendation. The difference between suspension plus
report and recommendatory report is little more than
between Tweedledum and Tweedledee. And to set aside an
order on such a ground is to enthrone a processual nicety to
dethrone plain justice.
The last violation regarded as a lethal objection is
that Board did not enquire of the respondent, independently
of the one done by the Regional Inspector. Assuming it to
be necessary, here the respondent has, in the form of an
appeal against the report of the Regional Inspector, sent
his explanation to the Chairman of the Board. He has thus
been heard and compliance with Reg. 26, in the circum-
stances, is complete. Natural justice. is no unruly horse,
no lurking land mine, nor a judicial cure-all. If fairness
is shown by the decision-maker to the man proceeded against,
the form, features and the fundamentals of such essential
processual propriety being conditioned by the facts and
circumstances of each situation, no breach of natural
justice can be complained of. ’Unnatural expansion
910
of natural justice, without reference to the administra-
tive realities and other factors of a given case, can be
exasperating. We can neither be finical nor fanatical but
should be flexible yet firm in this jurisdiction. No man
shall be hit below the belt--that is the conscience of the
matter.
Shri Gambir, who appeared as amicus curiae and indus-
triously helped the Court by citing several decisions bear-
ing on natural justice, could not convince us to reach a
contrary conclusion. It is true that in the context of Art.
311 of the Constitution this Court has interpreted the
quality and amplitude of the opportunity to be extended to
an affected public servant. Certainly we agree with ’the
principles expounded therein. But then we cannot look at
law in the abstract or natural justice as a mere artifact.
Nor can we fit into a rigid mould the concept of reasonable
opportunity. Shri Gambhir cited before us the decisions in
Teredesai(1); Management of DTU(2) and Tandon(3); and
one or two other rulings. The ratio therein hardly mili-
tates against the realism which must inform reasonable
opportunity’ or the rule against bias. If the authority
which takes the final decision acts mechanically and without
applying its own mind, the order may be bad, but if the
decision-making body, after fair and independent considera-
tion, reaches a conclusion which tallies with the recommen-
dations of the subordinate authority which held the prelim-
inary enquiry, there is no error in law. Recommendations
are not binding but are merely raw material for considera-
tion. Where there is no surrender of judgment by the Board
to the recommending Regional Inspector, there is no contra-
vention of the canons" of natural justice. We agree with
Shri Gambhir that the adjudicating agency must indicate in
the order, at least briefly why it takes the decision it
does unless the circumstances are so clear that the conclud-
ing or decretal part of the order speaks for itself even
regarding the reasons which have led to it. It is desirable
also to communicate the report of the Inquiry Officer,
including that part which relates to the recommendation in
the matter of punishment, so that the representation of the
delinquent may be pointed and meaningful.
These general observations must be tested on the con-
crete facts of each case and every miniscule violation does
,not spell illegality. If the totality of circumstances
satisfies the Court that the party visited with adverse
order has not suffered from denial of reasonable opportunity
the Court will decline to be punctilious or fanatical as if
the rules of natural justice were sacred scriptures.
We are satisfied that the order of the Board cannot be
anathematised as condemning the man without being heard.
The appeal, on the point of law, must be allowed but, in
the light of the concession made, as stated earlier, we
leave the formal order of the High Court undisturbed. No
costs.
S.R. High Court orders main-
tained.
(1) [1970] 1 S.C.R. 251.
(2) [1973] 2. S.C.R. 114.
(3) [1974] 4 S.C.C. 374.
911