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PETITIONER: JOINT DIRECTOR OF MINES SAFETY

       Vs.

RESPONDENT: TANDUR & NAYANDGI STONEQUARRIES (P) LTD.

DATE OF JUDGMENT08/04/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1987 AIR 1253            1987 SCR  (2) 801  1987 SCC  (3) 208        JT 1987 (2)   153  1987 SCALE  (1)813

ACT:     Mines  Act,  1952  Sections 2(h),  3(1)(b)(ii),  17  and 22--Qualified  Manager for mine--Appointment of--word  ’and’ in  Section  3(1)(b)  (ii)--Interpretation  of--To  be  read disjunctively--Not as being conjunctive.     Interpretation of Statutes--Having regard to legislative intent manifested by the scheme of the Act--Word ’and to  be construed  as ’or’ and read disjunctively and not  as  being conjunctive.

HEADNOTE:     The Inspector of Mines, after an inspection, found  that the  respondents were engaged in working an open  cast  mine and  that  the  number of persons employed on  any  one  day exceeded 50. As respendents fell within the mischief of  the proviso  to  clause (b) of Section 3(1) of  the  Mines  Act, 1952,  and became subject to the provisions of the  Act,  he served a notice under Section 22 read with Section 17 of the Act  calling  upon the respondents to  appoint  a  qualified Manager for the mine.     The respondents filed a writ petition in the High  Court which  allowed the petition and quashed the impugned  notice on  the ground that the use of the word ’and’  occurring  at the  end of paragraph (b) of sub-clause (ii) of the  proviso to  clause  (b) of sub-section (1) of Section 3 of  the  Act made the three paragraphs conjunctive and unless the  condi- tions  specified in paragraphs (a), (b) and (c)  co-existed, the Inspector had no authority to serve the impugned notice. Allowing the appeal by the Joint Director of Mines, Safety.     HELD: 1.1. The High Court was not right in its interpre- tation of the word ’and’ used at the end of paragraph (b) of sub-clause (ii) of the proviso to clause (b) of  sub-section (1)  of Section 3 of the Mines Act, 1952, as being  conjunc- tive.  It overlooked the fact that the use of  the  negative language in each of the three clauses implied that the  word ’and’ used at the end of clause (b) had to be read  disjunc- tively. [803G] 801     2.1  Sub-section  (1) of section 3 of the  Act  provides that  the provisions of the Act, except those  contained  in ss. 7, 8, 9, 44, 45 & 46 shall not apply to (a) any mine  or

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part thereof in which excavation is being made for prospect- ing  purposes  only  and not for the  purpose  of  obtaining minerals  for use or sale, (b) any mine engaged in  the  ex- traction of any of the minerals specified therein, including lime stone. There is a proviso under each of the clauses (a) and (b) and they set forth three conditions on the happening of any one of which the proviso would be attracted, that  is to  say, the provisions of the Act would be made  applicable to such a mine. [802F-H]     2.2  According  to the plain meaning,  the  exclusionary clause in sub-section (1) of Section 3 of the Act read  with the two provisos beneath clauses (a) and (b), the word ’and’ at the end of paragraph (b) of sub-clause (ii) of the provi- so  to  clause (b) of Section 3(1) must in  the  context  in which it appears be construed as ’or’; and if so  constrned, the existence of any one of the three conditions  stipulated in  paragraphs  (a), (b) and (c) would at once  attract  the proviso to clauses (a) and (b) of sub-section (1) of Section 3 and thereby make the mine subject to the provisions of the Act.  Such construction is in keeping with  the  legislative intent mainrested by the scheme of the Act which is primari- ly meant for ensuring the safety of workmen employed in  the mines. [803E-H]     [The Department will find a qualified person and  depute him  to work as Manager, and respondents shall be liable  to pay  his salary and allowances as may be stipulated  by  the Joint Director of Mines Safety.]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 502 of 1974.     From  the  Judgment and Order dated 16.2.  1973  of  the Andhra Pradesh High Court in W.A. No. 227 of 1972.     Mrs.  Kitty  Kumaramangalam and C.V. Subba Rao  for  the Appellant. A. Subba Rao for the Respondents. The following Order of the Court was delivered: ORDER After hearing Smt. Kitty Kumaramangalam, learned counsel for 802 the appellant and Shri A. Subba Rao, learned counsel for the respondents, we are inclined to the view that the High Court was  not right in its interpretation of the word ’and’  used at  the end of paragraph (b) of sub-cl. (ii) of the  proviso to  cl. (b) of sub-s. (1) of s. 3 of the Mines Act, 1952  as being conjunctive.     In  the  present case, admittedly  the  respondents  are engaged  in working an open cast mine. After an  inspection, the  Inspector  of  Mines found that  the  respondents  were engaged  in the open cast mining and the number  of  persons employed  on  any one day exceeded 50. That  being  so,  the respondents  fell  within  the mischief of  the  proviso  to cl.(b)  of  s.  3(1) of the Act and became  subject  to  the provisions  of  the Act. The Inspector  was  therefore  well within his powers to serve a notice under s. 22 read with s. 17  of  the Act calling upon the respondents  to  appoint  a qualified Manager for the mine. The High Court on an errone- ous interpretation of the word ’and’ occurring at the end of paragraph  (b) of sub-cl. (ii) of the proviso to cI. (b)  of sub-s. (1) of s. 3 of the Act held that the use of the  word ’and’  made the three paragraphs conjunctive and unless  the conditions  specified  in paragraphs (a), (b)  and  (c)  co- existed,  the  Inspector had no authority to serve  the  im- pugned  notice.  It accordingly allowed  the  writ  petition

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filed by the respondents and quashed the impugned notice.     In order to appreciate the point involved. it is  neces- sary to refer to a few statutory provisions. The object  and purpose of the Act, as reflected in the long title, is  that it  is an Act to amend and consolidate the law  relating  to the regulation of labour and safety in mines. By s. 2(h)  of the  Act,  a person is said to be ’employed’ in a  mine  who works  under  appointment by or with the  knowledge  of  the manager, whether for wages or not, in any mining  operation. Sub-s.  (1) of s. 3 of the Act provides that the  provisions of  the Act, except those contained in ss. 7.. 8, 9, 44,  45 and  46 shall not apply to (a) any mine or part  thereof  in which excavation is being made for prospecting purposes only and  not  for the purpose of obtaining minerals for  use  or sale,  (b) any mine engaged in the extraction of any of  the minerals specified therein, including lime stone. There is a proviso  under each of the clauses (a) and (b) and they  set forth three conditions on the happening of any one of  which the  proviso would be attracted, that is to say, the  provi- sions  of the Act would be made applicable to such  a  mine. The  provision of sub-s. (1) of s. 3 of the Act  insofar  as relevant for purposes of this case reads as follows:               "3. Act not to apply in certain cases--(1) The               provisions of               803               this  Act, except those contained in  sections               7, 8, 9, 44, 45 and 46 shall not apply to--               a) x         x                        (b)  any mine engaged in the  extrac-               tion  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,  road metal, earth, fuller’s earth  and               lime stone:               Provided that--               (i) x     x     x               (ii) where it is an open cast working--                        (a)  the  depth  of  the   excavation               measured from its highest to its lowest  point               nowhere exceeds six meters;                        (b) the number of persons employed on               any one day does not exceed fifty; and                        (c)  explosives are not used in  con-               nection with the excavation."     According to the plain meaning, the exclusionary  clause in sub-s. (1) of s. 3 of the Act read with the two  provisos beneath  clauses (a) and (b), the word ’and’ at the  end  of paragraph  (b) of sub-cl. (ii) of the proviso to cl. (b)  of s. 3(1) must in the context in which it appears be construed as  ’or’; and if so construed. the existence of any  one  of the  three conditions stipulated in paragraphs (a), (b)  and (c) would at once attract the proviso to clauses (a) and (b) of  sub s. (1) of s. 3 and thereby make the mine subject  to the  provisions  of the Act. The High Court  overlooked  the fact  that the use of the negative language in each  of  the three clauses implied that the word ’and’ used at the end of cl.  (b) had to be read disjunctively. That construction  of ours is in keeping with the legislative intent manifested by the scheme of the Act which is primarily meant for  ensuring the safety of workmen employed in the mines. We  accordingly allow the appeal, set aside the judgment  of the 804

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High  Court and dismiss the writ petition. However,  it  was represented by learned counsel for the respondent that it is difficult to find a duly qualified person to come and  serve as Manager of a mine in rural areas and we should call  upon the  appellant to find a suitable person for appointment  as Manager.  Learned  counsel  for the  appellant  was  however gracious  enough to suggest that the Department will find  a qualified person and depute him 26 work as Manager, and  the respondents shall be liable to pay his salary and allowances as may be stipulated by the Joint Director of Mines  Safety. The Joint Director will select and depute a proper person to serve as Manager of the respondents’ mine within thirty days from the receipt of this order.     In view of this, the appellant will consider the  feasi- bility  of not launching a prosecution against the  respond- ents  for  their past failure to appoint  a  duly  qualified Manager as required under s. 17 of the Mines Act, 1952. N.P.V.                                                Appeal allowed. ?805