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PETITIONER: MOHAN LAL GOENKA AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 18/04/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR 1543            1962 SCR  (2)  36

ACT: Mining-Regulations providing Creches for women employees  in mines-Breach    of-Liability    of    owner,    agent    and manager--Indian Mines Act, 1923 4 of 1923), Cl. (bb) S.  30- Indian Mines Act, 1952, (35 of 1952), cls. (1)(2) s.18,  cl. (d)  S.  58-Mines  Creche Rules, 1946, sub-.Y.  (1),  r.  7- General Clauses Act, 1897 (Act X of 1897), S. 24.

HEADNOTE: The  appellants one of whom was the owner and the other  the manager  of a colliery were convicted for  contravening  the provisions of the Mines Creche Rules, 1946, under which  the owner  of  every  mine  employing  women  was  required   to construct  creches  for the use of the women  employees  and also to appoint a "Creche-in-charge" for the supervision  of the  creches.   Their contentions mainly were (1)  that  the Mines  Creche Rules, 1946 stood repealed as the  Mines  Act, 1923  itself  under  which  those  rules  were  framed  were repealed by the Mines Act of 1952 and (2)    that  the  said rules having been framed under s. 30(bb) of the   Mines Act, 1923,  could  not  be  deemed to be  rules  made  under  the corresponding  s. 58(d) of the 1952 Act the requirements  of which  were  different from those of s. 30(bb) of  the  1923 Act.   On  behalf of the manager a  further  contention  was raised  that he was not liable for the Contravention  of  r. 7(1) under which he 37 had  no duty to perform and no question of his  omission  to appoint a creche-in-charge arose. Held,  per Sinha, C. J., S. K. Das, Das Gupta and  Ayyangar, JJ., that the regulations framed tinder s. 30 of the Mines Act, 1923, survived the repeal of that Act. Criminal Appeals Nos. go to 106 of 1959, followed. The Mines Creche Rules, 1946, framed under s. 30(bb) of  the Mines  Act  of 1923 covered a part of the  ground  that  was covered  by the provisions of S. 58(d) of the Mines  Act  of 1952, and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of S. 24 of the General Clauses Act and operate as

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rules  under  the 1952 Act.  Contravention of r.  7  of  the Mines Creche Rules, 1946, was in law contravention of a rule under  s. 58(d) of the 1952 Act within the meaning of s.  73 of the Act. Under  s.  18(1) of the Mines Act, 1952,  the  manager,  the agent  and the owner are responsible for observance  of  the Mines  Creche  Rules which form part of  the  conditions  of employment  of female labour engaged in "mining  operations" and under subS. (2) of S. 18 each of them shall be deemed to be  guilty of the contravention of any rule by  "any  person whosoever",  unless  he proves that he took  all  reasonable means  to  prevent such contravention.  The manager  in  the present  case not having proved that he took all  reasonable means to prevent the contravention of r. 7 by the owner even though the rule in terms laid no duty on him, must be deemed to be guilty of the contravention. State  Government,  M. P. v. Deodatta Diddi,  A.I.R.  (1956) Nag. 71, held inapplicable. G.   D.  Bhattar v. State, A.I.R. (1957) Cal. 483, the  view making the manager liable to be approved. Per   Mudholkar,  J.-In  the  mining  industry   a   "mining operation", as contemplated under s. 18 of the Mines Act, is understood  to mean an operation undertaken for the  purpose of   mining  minerals  and  cannot  be  extended   to   mean "management  of  mines"  such as employment  of  labour  and providing amenities to employees etc.  The manager of a mine cannot  be made vicariously liable for the omission  of  the owner  to carry out his own duty under r. 7(1) of the  Mines Creche  Rules.  Sub-s. (2) of s. 18 would also  absolve  the manager  from vicarious liability if he could show "that  he had taken all reasonable means by publishing and to the best of  his  power enforcing those provisions  to  prevent  such contravention".   But  there is nothing in the  Act  or  the rules which empowers the manager to enforce the  performance by  the  owner of his duty under sub-r. (1) of r. 7  of  the Mines Creche Rules and the manager was therefore not  liable for the breach of that rule.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  7  of 1957. 38 Appeal  from the judgment and order dated July 12, 1956,  of the  Calcutta  High Court in Criminal Revision  No.  270  of 1956. S.   C. Mazumdar, for the appellants. B.   Sen,  D.  N.  Mukherjee  and  P.   K.  Bose,  for   the respondent. 1961.  April 18.  The Judgment of Sinha C. J., S. K. Das, K. C. Das Gupta and N. Rajagopala Ayyangar JJ. was delivered by Das Gupta J. Mudholkar J. delivered a separate Judgment. DAs  GUPTA, J.-This appeal on a certificate granted  by  the High   Court  of  Calcutta  under  Art.  134(1)(c)  of   the Constitution is against a judgment and order of that  court, upholding the conviction of these appellants under s. 73  of the  Indian  Mines Act, for contravention of Rule 7  of  the Mines  Creche Rules, 1946.  Rule 3 of these  rules  requires the  owner  of  every Mine to Construct there  a  creche  in accordance  with the plans prepared in conformity  with  the rules  and previously approved by the  competent  authority; Rule 7 provides that the owner of the mine shall appoint  "a creche  in  charge,  who shall be a  woman  possessing  such qualifications  and  training  as may  be  approved  by  the

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competent  authority.  The complaint which resulted  in  the conviction  of the two appellants, of whom, one  Goenka  was the owner of the Khas Jawbad Colliery, and the other,  viz., J. N. Gupta, the manager of the colliery, alleged that  they had  contravened  Rule 7 of the Mines  Creche  Rules,  1946, inasmuch as no creche attendant as required by that rule had been  appointed  there.   After an  appeal  of  the  present appellants  to  the Court of Sessions  was  dismissed,  they moved  the  High Court in revision, but  were  unsuccessful, except  that their sentences were reduced.  The  High  Court however gave a certificate under Art. 134(1)(c) and on  that certificate the present appeal has been filed. The main contentions raised on behalf of the appellants are, (1)  that the Mines Creche Rules, 1946, had stood  repealed, along with the repeal by s. 88 of the Mines Act of 1952,  of the   Mines  Act,  1923,.  under  which  these  rules   were admittedly framed and, (2) they having 39 been framed under s. 30 (bb) of the Mines Act, 1923,  cannot be  deemed to be rules made under the Mines Act,  1952,  as. the  requirements of the corresponding section of  the  1952 Act,  viz., s. 58(b) are different from what is required  by s. 30(bb) of the 1923 Act. In  Criminal Appeals Nos. 98 to 106 of 1959 we have  decided that regulations framed under s. 29 of the Mines Act,  1923, survive the repeal of that Act.  The same reasons which form the  basis of that decision apply to the rules framed  under s.  30 of the Mines Act, 1923; and so, the first  contention raised  on  behalf  of the appellants must  be  rejected  as unsound. The  second question arises in this way.  Clause (bb) of  s. 30  of the 1923 Act mentions one of the purposes  for  which rules  may  be  made  in  these  words  "For  requiring  the maintenance  in  mines,  wherein any  women  are  ordinarily employed,  of suitable rooms to be reserved for the  use  of the  children  under the age of 6 years  belonging  to  such women,  and  for  prescribing,  either  generally  or   with particular reference to number of women ordinarily  employed in the mine, the number and standards of such rooms, and the nature  and  extent  of  the  supervision  to  be   provided therein." In  the Mines Act, 1952, section 58 contains  the  provision empowering  the Central Government to make rules for all  or any  of  the purposes mentioned there.  Clause (d)  of  this section runs thus:-               "For  requiring  the  maintenance  in   mines,               wherein   any  women  are  employed  or   were               employed, on any day of the preceding  twelve-               months,  of suitable rooms to be reserved  for               the  use of the children under the age of  six               years   belonging  to  such  women,  and   for               prescribing either generally or with  particu-               lar reference to the number of women  employed               in the mines, the number and standards of such               rooms,  and  the  nature  and  extent  of  the               amenities  to be provided and the  supervision               to be exercised therein;". While  it is obvious that cl. (d) of s. 58 of the  1952  Act corresponds to cl. (bb) of s. 30 of the 1923 Act, it has  to be noticed that the requirement in the 1952 40 Act  is  wider.  For, whereas rules under  s.  30(bb)  could require  the  maintenance  of creches  and  could  prescribe certain  matters in regard to these, only in mines,  wherein "any women are ordinarily employed", s. 58(d) authorises the

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framing  of  similar rules for maintenance  of  creches  and prescription  of similar matters, in respect of  all  mines, "wherein any women are employed or were employed on any  day of the preceding twelve-months".  It is contended on  behalf of  the  appellants that the Creche Rules, 1946,  framed  as they  were under s. 30(bb) of the 1923 Act, must be read  as requiring the maintenance of creches and prescribing certain matters  relating  to creches, only for mines  "wherein  any women  are ordinarily employed".  They cannot  therefore  be considered to be rules under s. 58(d) of the 1952 Act, which have  to require the maintenance of creches,  and  prescribe matters relating thereto, not only for mines where women are ordinarily  employed, but for mines "wherein any  women  are employed or were employed on any day of the preceding twelve months".   It is urged that the content of the rules  cannot be  extended by the fact that the 1952 Act permits rules  to be framed in respect of mines other than those in respect of which the rules were originally framed.  In our opinion, the argument is not without force, and it might be difficult  to say  that, the Mines Creche Rules framed under s. 30(bb)  of the  1923 Act, would apply to all mines contemplated  by  s. 58(d)  of the 1952 Act.  This difficulty would  not  however stand in the way of the Mines Creche Rules, 1946,  operating in  respect of "mines where women are ordinarily  employed", as rules under the 1952 Act.  It has to be noticed that  the mines  in respect of which rules may be made under s.  58(d) of  the  1952  Act, do not exclude mines,  where  women  are ordinarily employed; the description "mine wherein any women are  ordinarily  employed "include, in the first  place  the mines  where  women are ordinarily employed and  include  in addition  to  those  other mines", ’wherein  any  women  are employed or were employed on any day of the preceding twelve months’,   even  though  the  attribute  of   "women   being ordinarily 41 employed  there",  is not present.   Assuming  therefore  as correct the argument that the content of the rules does  not stand  extended, the Mines Creche Rules, 1946, may still  be reasonably  deemed  to be rules under S. 58(d) of  the  1952 Act,  though not fully exhausting the purpose  mentioned  in that  section.  In other words, the position is  that  while under  s.  58(d)  of the 1952 Act rules  may  be  framed  in respect of (1) mines  wherein women are ordinarily  employed and (2)   mines  wherein  though women  are  not  ordinarily employed,  women  are employed and (3) mines,  where  though women  are not ordinarily employed, women were  employed  on any  day  of the preceding twelve months, the  Mines  Creche Rules,  1946,  cover  a part of the  ground  that  could  be covered  by  rules under s. 58(d) of the 1952 Act.   To  the extent  the  provisions of s. 58(d) of the 1950 Act  and  s. 30(bb)  of the earlier enactment overlap, these rules  would continue in force by virtue of s. 24 of the General  Clauses Act. On an examination of the evidence adduced in the case before the Magistrate, we find that the Jawabad Mine was one, where women  were  ordinarily employed. With regard to  this  Mine therefore the Mines Creche Rules operated as rules under the 1952 Act; and consequently, contravention of Rule 7 of  the Mines  Creche Rules, 1946, was in law a contravention  of  a rule made under the 1952 Act, within the meaning of s. 73 of that Act. On behalf of the second appellant, Gupta, who was the manager of the colliery at the relevant time, a  further contention is raised.  It is pointed out that Rule 7(1) does not in terms lay any duty on the manager and it is contended that  the manager having no duty to perform under Rule  7(1)

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of  the  Creche Rules; no question of his  contravening  the same by omission to appoint a creche-in-charge arises.   The answer to this question depends on the interpretation of  s. 18 of the Mines Act, 1952, which is in these words:- "18.   Duties  and responsibilities of  owners,  agents  and managers:- 6 42               (1)   The  owner, agent and manager  of  every               mine shall be responsible that all  operations               carried   on  in  connection   therewith   are               conducted in accordance with the provisions of               this  Act  and of the regulations,  rules  and               bye-laws and of any orders made thereunder.               (2)   In the event of any contravention of any               such  provisions by any person whosoever,  the               owner,  agent  and manager of the  mine  shall               each  be  deemed  also to be  guilty  of  such               contravention  unless  he proves that  he  had               taken all reasonable means, by publishing  and               to  the  best  of his  power  enforcing  those               provisions, to prevent such contravention.               (3)   It  shall  not  be  a  defence  in   any               proceedings brought against an owner or  agent               of a mine under this section that a manager of               the mine has been appointed in accordance with               the provisions of this Act". It has to be noticed that after the first sub-section states in general terms that the owner, agent and manager shall  be responsible for the carrying out of "all operations  carried on"  in  connection with the mine, in  accordance  with  the provisions of the Act and of the regulations, rules and bye- laws   and  of  any  orders  made  thereunder,  the   second sub-section d eals with the question of guilt of the  owner, the  agent and manager for contravention of such  provisions by "any person whosoever"; and the third sub-section goes on to  say  that  the owner or agent  cannot  escape  liability merely because a manager of the mine has been appointed. The  first  contention urged on behalf of the  appellant  is that  the  Mines  Creche  Rules  have  nothing  to  do  with "operations  carried on in the mines" and that s.  18  deals only with the proper observance of the provisions of the Act directly  touching  the work carried on in  the  mines,  for raising  coal  and allied activities.  In our  opinion  that will be an unduly narrow interpretation of the section.  The employment  of  female labour is  obviously  and  admittedly connected  with  the raising of coal in the  mine;  and  all conditions of employment of female labour should  reasonably be held to be 43 inextricably  connected with "operations carried on" in  the mines.   The  Mines Creche Rules are no less  conditions  of female labour than are the provisions of, say, s. 46 of  the Act.   That section prohibits the employment of women  in  a mine  which is below ground and also employment of women  in mines  above ground except between 6 a.m. and 7 p.m.  except to the extent there is variation of the hours of  employment above  ground by the Central Government in exercise  of  the powers  given  by that very section.  Section 46 as  it  now stands  also provides that every woman shall be  allowed  an interval  of  not  less  than  eleven  hours,  between   the termination of employment on any day and the commencement of the  next  period  of employment.  It  cannot  be  seriously argued  that  if in any mine, women labour is  employed,  in breach  of these provisions of s. 46, operations would  have

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been  carried  on  in  the  mine  in  accordance  with   the provisions  of the Act.  We see no reason why employment  of female  labour in a mine, without compliance with the  Mines Creche  Rules,  should not be similarly held  to  amount  to "carrying  on  operations in connection with  the  mine"  in contravention  of  a  rule made under  the  Act.   The  true position  in  our opinion is that in order  that  operations carried  on in connection with the mine can be said to  have been conducted in accordance with the provisions of the Act, and  of  the  regulations, rules and bye-laws,  and  of  the orders  made thereunder, it is necessary not only that  such provisions  as  are  directly connected  with  the  work  of raising   coal  are  observed,  but  also  that   provisions governing  the  conditions  of  employment  of  the  persons engaged  in  the mining operations are also  observed.   The Mines Creche Rules, as already pointed out undoubtedly  form part  of  the  conditions of employment,  of  female  labour engaged in mining operations.  Observance of these rules  is therefore  necessary before operations can be said  to  have been carried on in accordance with the rules made under  the Act.   In our opinion, therefore, the effect of s. 18(1)  is that  all  three-the manager, the agent  and  the  owner-are responsible for the Observance of the Mines Creche Rules. 44 On behalf of the State it is urged that the result of such a responsibility  being  laid  on all the three  is  that  the manager  is  liable to penalty for a  contravention  of  the Mines Creche Rules by the owner.  It is unnecessary  however to consider whether s. 18(1) by itself has this consequence; for  the matter is put beyond doubt by s. 18(2).  This  sub- section  of s. 18 makes all the three-the owner,  the  agent and the manager-severally liable for the breach of any regu- lations by "any person whosoever".  Not only is that  person who  contravened  the provisions guilty but  each  of  these three-the  manager, the agent and the owner is also  deemed to  be guilty though the contravention was not  by  himself. It  would be illogical to say in the face of this  provision that  two  of  them  should  not  be  held  liable  for  the contravention  of  the  provisions within s.  18(1)  by  the third. But, says, the manager-appellant, such a construction of  s. 18(2)  should be avoided as it will be thorough. by  unjust. "How  am  I to secure", says he, "the observance of  a  rule which in terms fixes a duty on the owner only to do  certain things".  The argument really is that the Legislature  acted improperly  making  the  owner, the agent  and  the  manager vicariously   liable  for  the  contravention   of   certain provisions  by " any person whosoever".  With the wisdom  of the law the Court is not however concerned.  It is pertinent to  notice  however that it was clearly to  avoid  injustice which  may  result  from  the  fixation  of  such  vicarious liability  that the legislature has provided for  a  special defence  of  the owner, the agent and the  manager  in  such cases. Thus,  if  a rule or a bye-law in terms lays a duty  on  the manager,  and  the  owner  is  prosecuted  he  will   escape punishment as soon as he shows that he did all that he could reasonably do in seeing that the manager duly performed  his duty.   The  effect  of sub-section (3)  is  that  the  mere appointment of a manager would not be a sufficient  defence. Where,  as in the present case, the rule in question lays  a duty in terms on the owner and the manager is prosecuted  he will   escape  conviction  on  showing  that  he  took   all reasonable 45

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means  to  prevent  the contravention of the  rules  by  the owner. The  whole  purpose of s. 18 read as a whole appears  to  be clearly   this:-The  provisions  of  the  Act  and  of   the regulations,  rules and bye-laws or orders  made  thereunder may  require  certain things to be done  or  forbidding  the doing  of  certain  things with or  without  mentioning  the person  required  to  do the thing or forbidden  to  do  it. Where  a  person definitely indicated is required to  do  or forbidden  to do a certain thing he is straightaway,  liable to  penalty for contravention of the rules.  But the  owner, the   agent  and  the  manager  will  have  the   additional responsibility that even though any of them is not named  as the  person required or forbidden to do a thing, the  owner, the  manager or the agent, will be liable to punishment  for the  contravention  of the rule, subject to  this  that  the liability  will  disappear as soon as he shows that  he  had taken all reasonable means to prevent the contravention. In  the  present  case, the  manager-appellant  has  neither suggested  nor proved that he took all reasonable  means  to prevent the contravention of the provisions of Rule 7 of the Mines  Creche  Rules  by the owner.  He  must  therefore  be deemed guilty of the contravention, even though the rule  in terms laid no duty on him. In  support of his contention that the law does  not  impose any  duty  on  the manager of the mines  to  carry  out  the provisions  of  the Creche Rules, Mr. Majumdar relied  on  a decision  of the Nagpur High Court in the State  Government, M. P. v Deodatta Diddi (1).  The question there was  whether one Deodatta Diddi, Agent, Rawanwara Khas Colliery, could be held to have contravened rule 3(1) of the Coal Mines Pithead Bath  Rules,  1946,  where no pithead baths  had  been  con- structed  as  required by the rules.  In  terms,  rule  3(1) provided  that the owner of every coal mine shall  construct pithead  baths  in  accordance with the  plans  prepared  in conformity  with  the rules and approved  by  the  competent authority.  It was held by the High (1)  A.I..R. (1956) Nag. 71. 46 Court  that  it was the owner alone who could be  deemed  to have  contravened the rule and that the Agent even  assuming that  he was the representative of the owner in  respect  of the  management  of the colliery had no duty to  perform  in this  matter.  We notice however that the attention  of  the learned  Judges was not drawn to the provisions of s. 18  of the  Indian  Mines Act.  This decision is  therefore  of  no assistance.   The question as regards the liability  of  any agent or manager of the mine for the construction of pithead baths or of mine creches appears to have been raised  before the  Calcutta High Court in G. D. Bhattar v. The State  (1). In that ease both the learned Judges considered s. 18 of the Mines  Act, 1952, but came to different conclusions, one  of them  holding that under s. 18 the manager would  be  liable for  carrying  out the provisions of these rules  while  the other learned Judge took a different view.  In our  opinion, the former view is correct. All  the  contentions  raised on behalf  of  the  appellants therefore fail.  The appeal is accordingly dismissed. MUDHOLKAR,  J.-While  I  agree to the  order  proposed  with respect  to Mohan Lal Goenka, I am of the opinion  that  the conviction  of the co-appellant Gupta who was a  manager  of the mines cannot be sustained. It  has throughout been accepted that under r. 7(1)  of  the Mines  Creche Rules, 1946, as they stood on the date of  the alleged  contravention the responsibility for  appointing  a

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creche in charge was on the owner of the mine only.  It was, therefore,  contended on behalf of Gupta that he  cannot  be held  liable for the contravention of the rule made  by  the owner  Mohan Lal Goenka.  Reliance was, however,  placed  on behalf of the State in the courts below as well as before us on  the  provisions of s. 18 of the Mines Act, 1952  (35  of 1952).  That section reads thus:               "(1)  The  owner, agent and manager  of  every               mine shall be responsible that all  operations               carried   on  in  connection   therewith   Are               conducted in accordance with the provisions of               this Act and of the               (1)   A.I.R. (1957) Cal. 483.               47               regulations,  rules  and bye-laws and  of  any               orders made thereunder.               (2)   In the event of any contravention of any               such  provisions by any person whosoever,  the               owner,  agent  and manager of the  mine  shall               each  be  deemed  also to be  guilty  of  such               contravention  unless  he proves that  he  had               taken all reasonable means, by publishing  and               to  the  best  of his  power  enforcing  those               provisions, to prevent such contravention:               Provided that the owner or agent shall not  be               so deemed if he proves-               (a)   that he was not in the habit of  taking,               and  did  not  in respect  of  the  matter  in               question  take, any part in the management  of               the mines; and               (b)  that he had made all the   financial  and               other  provisions  necessary  to  enable   the               manager to carry out his duties; and               (c)   that  the offence was committed  without               his knowledge, consent or connivance.               (3)   Save as hereinbefore provided, it  shall               not  be a defence in any  proceedings  brought               against an owner or agent of a mine under this               section  that a manager of the mine  has  been               appointed in accordance with the provisions of               this Act." It was urged that this section holds the owner, the agent as well  as  the manager liable for the  contravention  of  any provision  of  the Act or of a regulation, rule  or  bye-law made  by any person unless the owner, agent or  manager  can bring his case within any of the exceptions set out in  sub- s.  (2)  of  s. 18.  It is pointed out that  Gupta  has  not relied  on any exception and, therefore, his  conviction  is correct in law. Section  18  is in Chapter IV of the Mines Act  which  deals with  "Mining operations" and "Management of  mines".   This chapter  thus deals with two topics.  Section  18,  however, deals  with only one of these two topics, that  is,  "Mining operations".  This would clearly follow from the language of sub-s.  (1)  or s. 18.  The duties and  responsibilities  of owners,  agents and managers with which this  section  deals are with respect to "all operations carried on in connection there with", i.e., the mine.  Therefore, the inference  must be  that this section deals with duties etc., in  connection with mining 48 operations only.  The chapter itself has drawn a distinction between  "Mining  operations"  and  "Management  of  mines". Employment  of  labour,  providing amenities  for  them  and allied matters would pertain mainly to "management" and  not

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to "Mining operations".  The expression "Mining  operations" occurring  in an Act dealing with mines should  be  accorded that  meaning which it has in the mining industry.   In  the industry a mining operation is understood to mean an  opera- tion  undertaken  for the purpose of  winning  minerals  and cannot,  as  suggested by my learned brother,  be  given  an extended meaning so as to embrace within it matters such  as employment  of labour, providing amenities to  labour  etc., even  though  that labour is utilised or  required  for  the purpose  of  carrying on mining operations.  I  can  see  no justification   for  giving  an  extended  meaning  to   the expression "Mining operations" and none was suggested at the bar.   Upon this view it would follow that the manager of  a mine  cannot be made vicariously liable for the omission  of the owner, to carry out his duty under r. 7(1) of the  Mines Creche Rules. There  is  an  additional  reason for  coming  to  the  same conclusion.  Upon the language of s. 18(2) the manager of  a mine  cannot  be held liable for the  contravention  by  the owner of any provision of the Act, regulation, rule or  bye- law  unless that contravention was with respect to a  matter in’  regard to which the exception could be  available.   To put  it  a  little differently, a  manager  cannot  be  held vicariously  liable for a contravention unless there was  on his  part also an omission to do something which was in  his power  to  do.   Sub-section (2) of s. 18  would  absolve  a manager  from vicarious liability if he could show "that  he had taken all reasonable means by publishing and to the best of  his power enforcing those provi. sions to  prevent  such contravention".  This, therefore, implies that by  resorting to certain steps he can escape liability.  The first part of the quotation is clearly in. applicable to the present case. The  second  part would apply provided the manager  had  the power to enforce the performance of a particular duty by the owner. 49 There is nothing in the Act or the rules which empowers  the manager  to  enforce  the performance by the  owner  of  his duties under sub-r. (1) of r. 7. Since that is the  position it  must  be  held that the manager is not  liable  for  the contravention  by the owner of his duty under sub-r. (1)  of r. 7 of the Mines Creche Rules.  That the construction I  am placing  on  this provision is the proper one  would  appear from the following illustration. Section 17 of the Act provides that the owner or an agent of every  mine  shall appoint a person  having  the  prescribed qualification  as  a  manager of the  mine.   Section  57(c) provides  for  the framing of  regulations  prescribing  the qualifications for the manager of mines.  I will assume that regulations  have  been  made  thereunder  prescribing   the qualifications for managers.  If a person is appointed as  a manager  of  a  mine even though he  does  not  possess  the prescribed qualification would he be held vicariously liable for  the  contravention  by the owner or the  agent  of  the duties  placed upon the owner and agent by a Regulation  and by s. 17?  I do not think that there would be any difficulty in saying that he would not be liable for the simple, reason that  it was not within his power to enforce the  compliance by  the owner of the duty cast upon him by the  regulations. I would, therefore, allow the appeal of Gupta and set  aside the sentence of conviction passed upon him. ORDER.   In accordance with the opinion of the majority  the appeal, on behalf of both the appellants, is dismissed. Appeal dismissed. 50

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