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PETITIONER: S.   S. GAREWAL

       Vs.

RESPONDENT: MESSRS.  BHOWRA KANKANEE COLLERIES

DATE OF JUDGMENT: 26/04/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. AYYANGAR, N. RAJAGOPALA

CITATION:  1966 AIR  853            1963 SCR  (2) 475

ACT: Mines-Accident-Court of Inquiry-Order to pay expenses-Amount not   quantified-Court,  if  becomes  functus   Officio   on submitting  report-Subsequent  order  quantifying  amount-If such  quantification  valid-Assessors, if must join  in  all orders of the Court of Inquiry-Mines Act, 1952 (35 of 1952), s. 24-Mines Rules, 1955, r. 22.

HEADNOTE: The Government of India under s. 24 of the Mines Act,  1952, ordered  an  enquiry into the disaster in  the  respondent’s colliery.  The Court of inquiry submitted its reporto 476 September  26, 1955, and found inter-alia that the  accident was due to the negligence on the part of the management  and therefore ordered the owners to pay the expenses of the  en- quiry  as provided by r. 22 of the Mines Rules,  1955.   The amount of the expenses to be paid were, however, not quanti- fied  in  the report.  At the request  of  Chief  Inspector, Mines, the judge of the Court of Inquiry after due notice to the  parties concerned quantified the expenses by his  order dated  September 7, 1956.  The respondents petitioned  under Art.   226  of  the  Constitution  challenging   the   order quantifying  the expenses on three grounds-(1) the Court  of Inquiry  became functus officio after it had ’submitted  its report and therefore the judge had no power left to pass the order quantifying the expenses.  If the said order was to be treated  as review of the order awarding expenses  it  would still  be void as there was no power of review in the  Court of  Inquiry- (3) When the order quantifying the expense  was passed  the  two  assessor were not  present  and  were  not associated  with the enquiry therefore, the judge could  not pass  the-  order alone.  The High Court  allowed  the  writ petition  adding that it was not interfering with the  order relating  to expenses made by the judge in his report  dated September 26, 1955. Held,  that when an order to pay expenses is passed  without quantifying the amount in a report by a Court of Inquiry, it necessarily carries with it the implication that the  person

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appointed  to hold the enquiry would quantify  the  expenses later in materials being placed before-him as otherwise such an  order would be rendered completely nugatory.   Where  no time was fixed within which the report had to be made by the Court of enquiry it cannot be said that the period for which the  Court of enquiry was appointed necessarily came to  an, end  with  the submitting of the report and  this  Court  of Inquiry became functus officio. Held,  further,  that when the report itself  contained  the order for payment for expenses, the later order is merely  a quantification  of the earlier order and would be on  a  par with what happens everyday in courts which pass decrees with costs.  When giving judgment, courts do not quantify cost in the judgment.  Therefore the order dated September 7,  1956, cannot be treated as a review or any variation of the  order pawed  in the report of September 26, 1955, which the  judge had no powers to pass. Held,  also, that it was open to the judge of the  Court  of inquiry  to  quantify  the  expenses and  that  it  was  not necessary  that  at  that  stage  the  assessors  should  be associated with him.  Under s. 24(1) of the Act$ the enquiry is held by a competent 477 person  for  the  purpose, and assessors  are  appointed  to assist the person to hold the enquiry and the assessors need not  be associated with him in all orders which are in  ’the nature  of ministerial order and quantification of  expenses must be treated as an order of a ministerial nature.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 526/59. Appeal  by special leave from the judgement and order  dated March 3, 1958, of the Patna High Court in Misc.  Judl.  case No. 940 of 1956. B.   K. Khanna and P. D. Menon for the appellant. P. K. Chatterjee, for the respondents. 1962.  April 26.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment of the Patna High Court.  The brief facts necessary for present purposes are these.  There is a colliery in  the district  of Dhanbad known as Allabad colliery of which  the respondents are the owners.  On February 5, 1955, there  was an accident in the colliery as a result of which 52  p6rsons lost  their lives.  In consequence, the Government of  India ordered  an  inquiry into the disaster under S.  24  of  the Mines  Act, No. 35 of 1962, (hereinafter referred to as  the Act).  The court of inquiry contained of Mr., Justice B.  P. Jamuar  and  two  persons were appointed to  assist  him  as assessors.   The  court of inquiry submitted its  report  on September  26,  1955, which was published  on  December  17, 1955.   A  question was raised before the court  of  inquiry whether the management should be ordered to pay the expenses of  the  inquiry as provided by r. 22 of  the  Mines  Rules, 1955,  (hereinafter  referred to as The Rules),  which  lays down that "if a court of 478 inquiry finds that the accident was due to any  carelessness or  negligence on the part of the management the  court  may direct the owners of the mine to pay all or any part of  the expenses of the inquiry in such manner and within such  time as the court may specify.  The court of inquiry found in its report  that the accident was due to negligence on the  part of  the management and therefore ordered the owners  to  pay

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the expenses of the inquiry.  The amount of the expenses  to be  paid  were  however  not quantified  in  the  report  of September 26, 1955. On  July 27,1956 the Chief Inspector of Mines requested  Mr. Justice  Jamuar  that  the  amount  of  expenses  should  be specified and the manner in which it should be paid and  the time within which the payment might be made, might be fixed. Notices were issued to the parties concerned thereafter  and on September 7, 1956, Mr. Justice Jamuar ordered the  owners to  pay Rs. 17,778/2/as expenses of the inquiry  within  two months  of the date of the order.  Thereupon a petition  was filed under Art. 226 of the Constitution by the  respondents challenging the order of September 7, 1956.  It was conceded there  in  that r. 22 of the Rules conferred  power  on  the court of inquiry to direct the owner to pay all or any  part of the expenses of inquiry within such time as the court may specify.   But the order passed in this case was  challenged on  three grounds, firstly that the court of inquiry  became functus  officio  after  it  had  submitted  its  report  on September  26, 1955 and therefore Mr. Justice Jamuar had  no power  left to pass the order of September 7, 1959.  It  was also  contended that if the order of September 7,  1956,  be treated  as a review of the order of September 26,  1956  it would still be void, as there was no power of review in  the court  of inquiry, Lastly. it was urged that when the  order of September  479 7, 1956, was passed, the assessors were not present and were not  associated with the inquiry and therefore  Mr.  Justice Jamuar  could  not pass the order alone.   All  these  three contentions  were accepted by the High Court and it  allowed the  writ petition adding that it was not  interfering  with the order relating to expenses made by Mr. Justice Jamuar in his  report of September 26, 1955.  It is this order of  the High Court, which is being challenged before us. The main contention on behalf of the respondents is that  as the court of inquiry became functus officio after the report of September 26, 1955, it was not open to Mr. Justice Jamuar to quantify the expenses by the order of September 7,  1956. Before  we  deal with this main argument we should  like  to dispose of briefly the other two submissions made before the High  Court  which were also accepted by it.  The  first  of these contentions is that the order of September 7, 1957  is an  order  of,  review and as there is no  power  of  review granted to the court of inquiry.  Mr. Justice Jamuar had  no power  to  pass that order.  It is enough to  say  that  the order  of  September 7, 1956, cannot be called an  order  of review.  We have already pointed out that the order that the owners  should pay the expenses of the inquiry  was  already incorporated in the report of September 26, 1955, though  it was  not  quantified.  All that the order  of  September  7, 1956,  has  done  is to quantify  the  amount  of  expenses. Therefore,  this order cannot be treated as a review or  any variation of the order passed in the report of September 26, 1955.  It would have been a different matter if no order  as to  the payment of expenses had been made in the  report  of September 26, 1955.  In that case it may have been  possible for  the  respondents to argue that the later order  was  an order  reviewing the failure to am an order as  to  expenses in. the report.  But 480 when  the report itself contained the order for  payment  of expenses, the later order is merely a quantification of that order  and would be on a par with what happens every day  in courts which pass decrees with costs.  When giving judgment,

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courts  do not quantify costs in the judgment.   This  quan- tification  is done later in the office of the court and  if there is any dispute about it the court settles that dispute and  then  includes the cost in the decree or  final  order. What  has happened in the present case is something  similar and the order of Mr. Justice Jamuar dated September 7, 1956, cannot  in’ the circumstances be called an order  of  review which  he  had no power to pass.  The  contention  therefore under this head must fail. Turning now to the other contention, namely, that the  order of September 7, 1956, was bad because the two assessors were not  associated with Mr. Justice Jamuar when the  order  was passed, it is enough to say that under s. 24 (1) the inquiry is held by a competent person appointed for the purpose  and assessor  are  appointed to assist the person  appointed  to hold the inquiry.  Even so, the person who holds the inquiry is the person appointed to do so and the assessors need  not in  our opinion be associated with him in all  orders  which are  in the nature of ministerial orders and  quantification of  expenses  must be treated as an order of  a  ministerial nature.   It  is  not  disputed  that  the  assessors   were associated  with  Mr.  Justice Jamuar  when  the  report  of September  26,  1955, was made and it was ordered  that  the owners should pay the expenses of the inquiry.  That was  in our opinion the order of the court of inquiry as to  payment of expenses and in that the assessors were associated.   The later  order wag mere quantification of that and it  was  in our  opinion  not  necessary that the  assessors  should  be associated at that stage also, for the  481 order  of  quantification is more or less of  a  ministerial nature and was made by the person who was appointed to  hold the  inquiry.  In the circumstances we are of  opinion  that the  fact  that the order of September 7, 1956,  was  passed only  by  Mr.  Justice Jamuar and  the  assessors  were  not associated  with him would not make it invalid for this  was merely carrying out the order in the report of September 26, 1956 by which the owners were ordered to pay the expenses of the inquiry and in that order the assessors were associated. The contention on this head also must therefore fail. This  brings us to the main contention raised on  behalf  of the respondents, namely, that the., court of inquiry  became functus  officio when the report was made on  September  26, 1955,  and thereafter it was not open to Mr. Justice  Jamuar to  pass any order quantifying the expenses.  Now it is  not in  dispute  that there was no time fixed within  which  the report  had to be made by the court of inquiry.   Therefore, it  cannot  be said that the period for which the  court  of inquiry  was  appointed  came  necessarily  to  an  end   on September  26,  1955,  and so the court  of  inquiry  became functus officio on that date.  If the court of inquiry  when it  submitted its report in this case on September 26,  1955 had  ordered the owners to pay the expenses of  the  inquiry and  had  added further that expenses  would  be  quantified later  by  the  person  holding the  inquiry  it  could  not possibly  be  argued  that it was not  open  to  the  person appointed  to  hold  the inquiry to  quantify  the  expenses later.  But it is said that in this case though the court of inquiry  ordered  that the expenses should be  paid  by  the owners it did not say in the report that the expenses to  be paid  would be quantified later by the person  appointed  to hold  the inquiry.  That is undoubtedly so.  But we have  to see  what  the order in the report of Septmber 26,  1955  by which the owners were 482

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ordered  to  pay the expenses of  the  inquiry,  necessarily implies.   It is obvious that the intention of the court  of inquiry  was  that  the  owners  should  pay  the  expenses. Generally  it may Dot be possible to quantify  the  expenses incurred  in the inquiry at that stage and a  quantification of expenses would ordinarily take place after the report  is submitted.  It seems to us therefore clear that when a court of  inquiry  orders that the owners shall pay  the  expenses such  an order necessarily carries with it  the  implication that  the person appointed to hold the inquiry  would  later quantify  the  expenses after necessary  materials  are  put before  him.  This is exactly what happened in  this,  case. After  the  order of the court of inquiry  that  the  owners should pay the expenses was known to the Chief Inspector  of Mines, he applied that the expenses should be quantified and Mr.  Justice  Jamuar passed the order doing so.   The  order therefore that was passed on September 7, 1956, was merely a consequential order to what the court of inquiry had decided on  September 26, 1955 and in our view the earlier order  of September 26, 1955, had necessarily implicit in it that  the person  appointed  to hold the inquiry  would  quantify  the expenses  as  soon  as the materials for  that  purpose  are placed before him.  It was not necessary therefore to say in so many words in the report of September 26, 1955, that  the expenses would be quantified by the person appointed to hold the inquiry later on materials being placed before him.   If this were not to be implicit in the order that was passed on September  26, 1955, that order would be completely  useless for it does not specify the amount which could be  recovered as expenses.  We are therefore of opinion that when such  an order  is  passed  in  a report of a  court  of  inquiry  it necessarily carries with it the implication that the  person appointed  to hold the inquiry would quantify  the  expenses later on materials being  483 placed  before  him,  as otherwise such an  order  would  be rendered  completely  nugatory.  Therefore, unless  we  find anything   in  s.  24  which  prevents  such  an  order   of quantification being passed later by the person appointed to hold the inquiry, we see no reason why such a quantification should not be made later.  We have also pointed out that the order  appointing the court of inquiry in this case did  not fix  a date by which the report was to be made.   Therefore, in these circumstances we are of opinion that it was open to Mr. Justice Jamuar to quantify the expenses and that it  was not  necessary  that at that stage the assessors  should  be associated  with him.  We are therefore of opinion  that  it cannot be said that the person appointed to hold the inquiry was functus officio in this case and could not quantify  the expenses  in accordance with the direction contained in  the report of September 26, 1955.  The appeal is hereby  allowed and  the  order of the High Court is set  aside.   The  High Court   has   allowed  no  costs  in  its  order;   in   the circumstances  we think that the parties should  bear  their own costs of this Court.. Appeal allowed. 484