PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
SHRI A.B. SHAH & OTHERS
DATE OF JUDGMENT: 09/05/1996
BENCH:
VENKATASWAMI K. (J)
HANSARIA B.L. (J)
CITATION:
JT 1996 (5) 128 1996 SCALE (4)307
ACT
HEADNOTE
JUDGMENT
JUDGMENTK.VENKATASWAMI,J.
Aggrieved by the judgment in Criminal Appeal no.24/81 dated 26.8.1988 on the file of Bombay High Court (Nagpur Bench), this appeal is filed by special leave.
The appellant preferred a complaint under section 73 of the Mines Act 1952 (hereinafter referred to as "the Act") read with Regulation No. 100 (1) of the Coal Mines Regulations 1957 (hereinafter referred to as "the Regulation"). The facts leading to the filing of this Appeal may be stated in brief to appreciate the contentions raised before us. The facts are as under :
Kamptee Colliery originally was owned by the Oriental Coal Company Limited. At the instance of the agent of Oriental Coal Company Limited, the Director General of Mines Safety granted permission on 2.1.1971 under Regulation 100(1) of the Regulations to split pillars in conjunction with hydraulic sand stowing in No. 1 seam in the area. Later on, the agent of the Oriental Coal Company Limited applied for certain modifications in conditions Nos. 5 and 6 which was granted on 14.6.1971. Subsequently, on 30.1.1973, the possession of the coal mines was taken over by the Central Government and the ownership of the said coal mines vested in the Coal Mines Authority on 9.8.1973. The Deputy Director of Mines at Nagpur made an inspection on 2.4.1974 and found that the sizes of split galleries were about 8.2 meters. It was in violation of condition No.1 imposed by the Director of Mines Safety. The agent was called upon to explain the violation by the Joint Director of Mines Safety by his letter dated 30.4.1974. A reply was sent on 13.5.1974. Explanation was called for from respondent No.1 on 10.8.1974. No reply was received, inspite of several reminders. The Deputy Director of Mines Safety again inspected the mines in question on 26.8.1975, along with the agent. and found the violation of condition No.1 continuing and also found that the adjacent galleries were not kept stowed of the pillar where splitting had commenced. After the taking over of mines as mentioned above. the coal mine in question formed part of the Western Coal Fields Limited. As the concerned persons had not complied with the conditions subject to which the splitting of pillars in conjunction with hydraulic sand stowing was granted, the Inspector (now, Deputy Director of Mines) filed a complaint in the Court of Judicial Magistrate, First Class, Ramtak, Nagpur, alleging contravention of the conditions of permission. The Trial Court framed charges accordingly to which respondent Nos. 1 to 4 pleaded not guilty and claimed to be tried. Two principal contentions were advanced in defence before the Trial Court. They were that the complaint was barred by limitation prescribed under Section 79 of the Act and in any case, respondent Nos. 1 to 4 were not in management of the coal mines in question when the alleged offence was alleged to have been committed and, therefore, they could not be criminally proceeded against.
The learned Trial Judge accepted both the contentions of respondent Nos. 1 to 4 and consequently acquitted them. On appeal preferred by the appellant, the High Court also confirmed the acquittal accepting the same contentions. Hence the present appeal.
Before dealing with the question of law that arises for Our consideration, we want to express our anguish that we did not get the required assistance in this case. The appellant except filing the Judgment of the High Court and the grounds for special leave did not take any step, inspite of passing of 13 years to file other important relevant papers to help the Court in deciding the issue, i.e. the judgment of the Trial Court, the charge sheet filed in the Trial Court, the evidence - both oral and documentary, reply given by the agent for the initial notice etc. They are all required to fully appreciate the issue raised before us. The further agony is that inspite of notices served on the respondents, none appeared before us to answer the contentions raised in this Appeal. In this state of affairs, we have decided the issue on the basis of the typed judgment of the High Court which alone is made available, apart from the grounds in the special leave petition.
The learned counsel appearing for the appellant submitted that the Trial Court as well as the High Court grossly erred in not accepting the contention put forward on behalf of the complainant/appellant that the offence committed by the respondents being ’continuing’ in nature falling under Explanation (a) to Section 79 of the Act, the complaint was not barred by time. He also submitted that the High Court having rightly noted that out of 10 conditions, non-compliance of condition Nos. 3 and 6 would fall under ‘continuing offence’, fell into an error in holding that all the conditions must be read conjunctively and not disjunctively. If the offence is a ‘continuing offence’ falling under Explanation (a) to Section 79 of the Act, then notwithstanding the fact that respondent Nos. 1 to 4 were not in office when the offence was first detected, they are answerable to the charges levelled against them.
We have perused the judgment of the High Court. Before going to the actual question, it is necessary to set out the conditions subject to which the permission was granted. As the document was not typed and produced before us, we are setting out the relevant portion from the judgment of the High Court which reads as follows :
"By the letter ex.27 dated 2nd
January 1971, the Director General
of Mines Safety granted to the
Agent of the Messrs. Oriental Coal
Company Limited, Kamptee Colliery
"permission under regulation 100(1)
of the Coal Mines Regulations, 1957
to split pillars in conjunction
with hydraulic sand stowing in No.
1 seam in the area indicated in
plan No.1 Dep/15/70 dated 26.6.70
at Kamptee Colliery" subject to the
following conditions :
1. Each pillar shall be divided
into four equal stooks by central
dip and level splits. For different
depths, the maximum and minimum
dimensions of galleries and stooks
respectively shall be as follows :
For depth Gallery which Stooks shall be
not exceeding shall not less than
exceed
60 metres 5.4 metres 5 mts x 5 mts
90 metres 5.4 metres 6.6 mts x 6.6 mts
120 metres 5.4 metres 9 mts x 9 mts
153 metres 4.8 metres 10.5 mts x 10.5mts
2. The final height of original and
split galleries shall not exceed
3.6 meters.
3. After splitting is completed all
original and split galleries shall
be stowed solid with sand.
4. Not more than two pillars shall
be under splitting at any time in a
panel.
5. A pillar shall not be split
unless all original and split
galleries on the inbye side have
been fully stowed.
6. Not more than a total length of
45 meters of split shall be left
unstowed at any time in a whole
panel. (Emphasis added)
7. Before starting splitting of
pillars in a panel, it shall be
insolated by stoppings in
compliance with the provisions of
regulation 100(4) of the Coal Mines
Regulation, 1957, and an intimation
to that effect shall be sent to
this Directorate and the Joint
Director of Mines Safety. These
stopping shall be constructed to
the specifications laid down in
this Directorate Circular No.17 of
1964 as modified by Circular No.1
of 1968.
8. No splitting or reduction of
pillars shall be done beneath and
in the vicinity of
dwelling/building or public road,
if any, likely to be affected by
the splitting operations.
9. In the event of any change in
the circumstances connected with
this splitting permission, which is
likely to affect the safety of the
work persons or the mine or the
surface features, an intimation
shall be sent immediately to this
Directorate and the Joint Director
of Mines, Safety and splitting
operations shall be stopped. The
splitting of pillars shall not be
resumed, except with permission in
writing from the Director General
of Mines, Safety.
10. The above permission may be
amended or withdrawn at any time,
if considered necessary.
By letter ex.28 dated 8th
April 1971, the Agent of the
Oriental Coal Company, Kamptee
Colliery applied to the Director
General of Mines Safety, for
certain modifications in conditions
Nos. 5 and 6 of the above
conditions and by the letter Ex.31
dated 14.6.1971 the Director
General of Mines, Safety accepted
the proposal and modified these
conditions. These modified
conditions were as follows :
Condition No.5 :
A pillar shall not be
completely split unless all
original and split galleries on the
inbye side have been fully stowed.
(i.e. the word "completely" was
added) and
Condition No.6:
Not more than 150 meters of
split galleries shall be left
unstowed at anytime in the whole
panel. (i.e. the figure "150
meters" was substituted for the
original words "45 meters").
It is seen from the judgment of the High Court that it accepted that violation of condition Nos. 3 and 6 would constitute ‘continuing offence’ in the light of Sections 73 and 79 of the Act read with Regulation 100 of the Regulations. The High Court however held as follows :
"Here, Shri Bobde for the
respondents Nos. 1 to 4 very
rightly pointed out that the gist
of the offence alleged under
Section 73 of the Mines Act, 1952
in the present case is
‘dipillaring’ in breach of the
conditions contained in Ex.27 dated
2.1. 1971 and not the breach of the
said conditions themselves.
Analyzing the provisions of Section
73 of the Mines Act, 1952, it was
pointed out that the section
contemplates 3 categories of
contraventions made punishable
thereunder :
(a) Contravention of any provisions
of the Mines Act, 1952, or
(b) Contravention of any
regulation, rule or bye-law made
under the Mines Act, 1952 (i.e.
subordinate legislation), or
(c) contravention of any order made
under any provisions of the Mines
Act, 1952 or under any regulation,
rule or bye-law made under the
Mines Act, 1952 (i.e. contravention
of order made under any subordinate
legislation under the Mines Act.
1952).
The present was not a case
falling under the category (a) or
(c) above. There was no order made
in writing as would come within the
ambit of category (c). The
permission Ex.27 dated 2.1.1971 was
not an "order" made under the Mines
Act, 1952 or under the provisions
of any subordinate legislation
thereunder. Shri Bobde pointed out
instances of provisions for making
of such orders by reference to
section 22 and 72(b) of the Mines
Act, 1952 and to Regulations Nos.
65, 101, 103 and 128 of the Coal
Mines Regulations 1957. Shri Bobde
is entirely right in these
contentions. The gist of the
offence alleged in the present case
is "depillaring" in contravention
of the conditions in Ex.27 dated
2.1.1971 on which permission to
depillar was granted. Breach of any
of these conditions by itself is
not punishable under Section 73 of
the Mines Act, 1952."
The High Court further held in paragraph 12 as under :
"Here Shri Bobde very rightly
pointed out that the ten conditions
contained in the letter Ex. 27
dated 2.1.71 have to be read
together as a whole and not one or
two of them separately and in
isolation without the context.
These ten are the composite
conditions on which permission to
depillar is granted. Shri Bobde
drew my attention to the title
mentioned at the subject of the
letter Ex. 27 dated 2.1.71 which in
essence is "permission - to split
pillars in conjunction with
hydraulic sand stowing -" stowing
with sand is, therefore, intended
as an integral part of the
operation of splitting pillars,
i.e. depillaring and does not stand
on its own independent basis. Shri
Bobde pointed out that there is no
provision in the Mines Act, 1952 or
the Coal Mines Regulations 1957
under which the running of a mine
with a failure to stow after
depillaring is itself made an
offence. The charge in the present
case is in respect of breach of
regulation 100 (1), the subject of
which is "Depillaring operation",
in essence the charge is
"Depillaring" or "splitting" in
breach of the conditions on which
permission to split pillars was
granted vide letter Ex.27 dated
2.1.1971."
So far as condition No.6 is concerned, the High Court held as follows :
"Therefore the words "at any time"
contained in condition No.6" not
more than 150 meters of split
galleries shall be left unstowed at
any time in the whole panel"
necessarily imply "during the
operation of splitting", and are
not indicative of a state of
continuity in the mines year after
the splitting is completed, as a
continuing contravention punishable
under Section 73 of the Mines Act,
1952, read with Regulation 100(1)
of the Coal Mines Regulations 1957.
The offence is, therefore, not a
continuing one, it is completed as
soon as splitting or dipillaring is
commenced or conducted or carried
out in breach of any of the
conditions on which permission to
depillar was granted."
Now, the issue is whether the High Court was right in coming to the conclusion that the offence was not a ’continuing offence’ on the main ground that all the conditions must be read together.
In State of Bihar vs. Dev Karan (AIR 1973 SC 908) this Court had the occasion to consider the meaning of ’continuing offence’ falling under Explanation (a) to Section 79 of the Act. This Court held as follows in para 5:
"Continuing offence is one which is
susceptible of continuance and is
distinguishable from the one which
is committed once and for all. It
is one of those offences which
arise out of a failure to obey or
comply with a rule or its
requirement and which involve a
penalty, the liability for which
continues until the rule or its
requirement is obeyed or complied
with. On every occasion that such
disobedience or noncompliance
occurs and recurs there is the
offence committed. The distinction
between the two kinds of offences
is between an act or omission which
constitutes an offence once and for
all and an act or omission which
continues and therefore constitutes
a fresh offence every time or
occasion on which it continues. In
the case of a continuing offence,
there is thus the ingredient of
continuance of the offence which is
absent in the case of an offence
which takes place when an act or
omission is committed once and for
all."
Bearing the above principle in mind, we have to find out whether the offence committed by the respondents, in particular violation of conditions Nos. 3 and 6, could be treated as ’continuing offence’ or completed offence. To appreciate this, we must also bear in mind the object and purpose of the Act. This we can get from the long title which reads "An Act to amend and consolidate the law relating to the regulation of labour and safety in mines". If we look into condition Nos.3 and 6 with the object and purpose of the Act in mind. it has to be held that these conditions are not only relatable to what was required at the commencement of dipillaring of process, but the unstowing for the required length must exist always. The expression "at any time" finding place in condition No.6 has to mean, in the context in which it has been used, "at any point of time", the effect of which is that the required length must be maintained all the time. The accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word "any" has a diversity of meaning and in Black’s ’Law Dictionary’ it has been stated that this word may be employed to indicate "all" or "every", and its meaning will depend "upon the context and subject matter of the statute". A reference to what has been stated in Stroud’s ’Judicial Dictionary’ Vol.I, is revealing inasmuch as the import of the word "any" has been explained from pages 145 to 153 of the 4th Edition, a perusal of which shows it has different connotations depending primarily on the subject matter of the statute and the context of its use. A Bench of this Court in Lucknow Development Authority vs.M.K. Gupta 1994 (1) SCC 243, gave a very wide meaning to this word finding place in the section 2(o) of the Consumers Protection Act, 1986 defining "service".(See para 4).
We, therefore, hold that the aforesaid conditions have to be obeyed always, disobedience of which shall become "continuing offence," in the light of what has been stated in the decision of Dev Karan (supra). So, even if other conditions are held to be falling under completed offence, violation of condition Nos. 3 and 6 cannot be so treated as to invoke the time limit prescribed under Section 79 of the Act. Therefore, we are inclined to differ from the view taken by the High Court and hold that violation of conditions Nos. 3 and 6 are ’continuing offences’ and the charge framed is not barred by limitation. Once this conclusion is reached, the plea taken by respondent Nos. 1 to 4 that they were not the concerned officers when the offence was detected, will not hold water. Consequently, the preliminary objection raised by the respondent Nos.1 to 4 cannot be sustained.
The appeal is, therefore, allowed. The matter is remanded to the Trial Court for disposal on merits in accordance with law.