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Joint Director of Mines Safety Hyderabad Region, Hyderabad Vs. the Tandur and Navandgi Stone Quarries (P) Ltd., Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 227 of 1972
Judge
Reported inAIR1973AP315
ActsMines Act, 1952 - Sections 3(1)
AppellantJoint Director of Mines Safety Hyderabad Region, Hyderabad
RespondentThe Tandur and Navandgi Stone Quarries (P) Ltd., Hyderabad
Appellant AdvocateK. Subrahmanya Reddy, Standing Counsel for Central Government
Respondent AdvocateK. Srinivasamurthy, Adv.
Excerpt:
.....and (ii). thus cumulatively for both these clauses, there are three conditions and that is why the word 'conditions 'is used in sub-section (3). it would not be reasonable to require the satisfaction of that word separately in clauses (a) and (b). that is clearly not the meaning of sub-section(3). this alone is the way to harmonise sub-section (3) with sub-section (1) of section 3. any other interpretation would lead to absurd or unreasonable results. 2 in the proviso to clause (b) is satisfied. we do not therefore think that it was any time intended by the legislature to make one of the three sub-conditions mentioned in paragraph (ii) of the proviso if satisfied the entire provisions of the act would apply. on the other hand, we are satisfied that it was clearly intended that all the..........3. we are not impressed with this argument. what is ignored in advancing this argument is that the word 'conditions' mentioned in sub-section (3) refers cumulatively to sub-clauses (i), (ii) and (iii), in the proviso to clause (a) and distinctively to sub-clause (i) or (ii) in proviso to clause (b). it does not refer to the paragraphs (a), (b) and (c) of sub-section (ii) of the proviso to clause (a), if one reads the proviso to clause (a), it would immediately be plain that the sub-clauses are indicated to roman figures, but it cannot be doubted that though there appear to be three conditions mentioned in the proviso to clause (a) but because of the word 'and' at the end of sub-clause (ii) in effect there is only one condition. there are however two conditions enumerated in roman figures.....
Judgment:

Gopal Rao Ekbote, C.J.

1. This appeal is from the judgment of our learned brother M. Krishna Rao, J., given in W. P. No. 1579 of 1970 on 3-3-1972 whereby the learned Judge allowed the writ petition and quashed the impugned notice.

2. The facts in outline are that the petitioner-Company has a number of mines wherein building stones and limestone are extracted. One of such mines is Kaidgira lime stone mine situated in the District of Hyderabad. The said mine is an open cast quarry. It is engaged in extraction of building stones and lime stones.

3. The Joint Director of Mines Safety issued the impugned notice under Section 22(1) of the Mines Act directing the petitioner-company to appoint a qualified Mines Manager under Section 17 of the Act. The petitioner-company submitted its explanation on 1-4-1970 contending inter alia that the provisions, except those mentioned in Section 3, are not applicable and as a result, the Joint Director cannot ask the petitioner-company to appoint a Manager as Section 17 is not applicable.

4. The Joint Director, however rejecting the explanation offered by the petitioner-company in his letter dated 8-4-1970 directed the petitioner-company to comply with the notice. It is that notice which brought the petitioner to this Court.

5. The petitioner mainly contended in the petition that the provisions of the Act except those mentioned in Section 3 including Section 17 do not apply to the mine in question inasmuch as sub-clause (ii) of the proviso to clause (b) of sub-section (1) of Section 3 is not satisfied inasmuch as the petitioner-company has, though employed 50 persons a day, the other two paragraphs are not attracted to the facts of the present case. The learned Judge accepted this contention and held that all the three requirements i. e., paragraphs (a), (b) and (c) of sub-clause (ii) of the proviso to clause (b) of Section 3(1) must be satisfied and since only one requirement alone has been satisfied and not the two others, the provisions of the Act except those mentioned in Section 3 are not attracted to the case. The learned Judge therefore found that the case comes within the exemptions granted under Section 3 of the Act and as stated earlier, ultimately quashed the notice.

6. In this appeal the principal contention of Sri K. Subrahmanya Reddy, the learned counsel for the appellant, is that although the word ' and ' is used at the end of paragraph (b) of sub-clause (ii) of the proviso to clause (b) of sub-section (1) of Section 3, it has to be read as ' or ' and consequently argued that if the provision is so read, then any one condition mentioned in the three paragraphs of sub-clause (ii) of the proviso to clause (b) would be attracted and would make section 17 applicable to the petitioner-company's case.

7. In order to appreciate the implications of this contention, it is necessary to read Section 3 in so far as it is relevant :--

'3 (1) The provisions of this Act, except those contained in Sections 7, 8, 9, 44. 45 and 46 shall not apply to

(a) xx xx xx xx xx xx

(b) any mine engaged to the extraction of Kankar, murrum, laterite, boulder, gravel shingle, ordinary sand ( excluding mounding sand, glass sand and other mineral sands ), ordinary clay ( excluding kaolin, china clay, white clay or fire clay ) building stone, road metal, earth, fullers earth and limestone ;

Provided that --

(i) the workings do not extend below super jacent grounds ; or

(ii) where it is an open cast working--

(a) the depth of the excavation measured from its highest to its lowest point no where exceeds six metres ;

(b) the number of persons employed on any one day does not exceed fifty ; and

(c) explosives are not used in connection with the excavation.

(2). Notwithstanding anything contained in sub-section (1), the Central Government may, if it is satisfied that, having regard to the circumstances obtaining in relation to a mine or part thereof group or class of mines, it is necessary or desirable so to do, by notification in the Official Gazette, declare that any of the provisions of this Act, not set out in sub-section (1) shall apply to any such mine or part thereof or group or class of mines or any class of persons employed therein.

(3) Without prejudice to the provisions contained in sub-section (2), if at any time, any of the conditions specified in the proviso to clause (a) or clause (b) of sub-section (1) is not fulfilled in relation to any mine referred to in that sub-section, the provisions of this Act not set out in sub-section (1), shall become immediately applicable, and it shall be the duty of the owner, agent or manager of the mine to inform the prescribed authority in the prescribed manner and within the prescribed time about the non-fulfilment. '

8. A careful reading of clause (b) of sub-section (1) of Section 3 would indicate that the provisions of this Act, except those mentioned therein, shall not apply to any mine engaged in the extraction of building stone or lime stone. The section then excepts out of these mines by providing two conditions. Firstly, if the workings do not extend below super jacent ground in cases of building stone or limestone then the exemption granted in sub-section (1), cl. (b) would not apply. In other words, all the provisions other than those mentioned in sub-section (1) would also apply to such a case. The second case in which all the provisions of the Act would apply is where it is an open cast working, the depth of the excavation of which measured from its highest to its lowest point nowhere exceeds six metres ; the number of persons employed on any one day does not exceed fifty ; and explosives are not used in connection with the excavation. In such a case also, the main clause (b) of sub-section (1) of Sec. 3 would not govern. In other words, if sub-clause (ii) of the proviso to clause (b) in its totality is satisfied, then all the provisions other than those mentioned in sub-section (1) would also be attracted. The exemption in such cases provided by Section 3 (1) (b) would not be available.

9. The contention of the learned Advocate for the appellant is that although apparently it may be seen that the word ' and ' is conjunctively used, but if the provisions of sub-section 3 are borne in mind and the legislation being a social welfare legislation is kept in view, the word ' and ' appearing at the end of para (b) of sub-clause (ii) of the proviso to clause (b) of sub-sec. (1) of Section 3 would have to be interpreted as ' or ' which would mean that any one of the three conditions of sub-clause (ii) if satisfied, the entire Act would apply to such a case. And since one of the conditions, that is, the number of persons employed on any one day by the petitioner-company admittedly exceeds 50, all the provisions of the Act including Section 17 must apply to the petitioner-company.

10. Now, in ordinary usage, ' and ' is conjunctive and ' or ' disjunctive. But to carry out the intention of the legislature, it may sometimes be necessary to read ' and ' in place of the disjunctive ' or ' and vice versa.

11. In Stroud's Judicial Dictionary, 3rd Edition, it is stated at page 135 that the word ' and ' has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of the word ' or '. Sometimes, however, even in such a connection it is, by force of a context, read as ' or ' . When two or more requirements are provided in a section and it is the legislative intent that all of the requirements must be fulfilled in order to comply with the statute, the conjunctive ' and ' is used. On the other hand, where a failure to comply with any requirement imposes liability the disjunctive ' or ' is used. What is, thus, plain is that ordinarily the word ' and ' would be used in the cumulative sense and would require the fulfilment of all the conditions unless the context shows otherwise. In other words when the term ' and ' is used, it is presumed to be used in the conjuctive sense, unless the legislative intent is clearly contrary.

12. It is true that there has been so great laxity in the use of these terms that Courts have generally said that the words are interchangeable and that one may be substituted for the other, if to do so is consistent with the legislative intent.

13. Is there anything in Section 3 then which compels us to give the word ' and ' a meaning other than the meaning which is ordinarily attributed to that word It could not be disputed that the proviso to clause (b) of sub-section (1) of Section 3, if read plainly, would have no other meaning than the word ' and ' , ordinarily has, that is to say, that it is conjunctive and joins all the three paras (a), (b) and (c) attracted to sub-clause (ii) of the proviso to clause (b).

14. If one analyses, Section 3(1), it will be plain that to certain cases the Act does not apply. It is manifest that except the sections which are mentioned therein, other provisions of the Act shall not apply to cases mentioned in clauses (a) and (b) of sub-section (1). Both these clauses however have provisos. Clause (a) divides the cases into two categories of cases to which except the sections mentioned therein, the Act shall not apply and the cases to which the whole Act shall apply. The first category i.e. referred to in clause (a) and the second category appears in the proviso to clause (a). Thus to the category mentioned in the main clause (a) to which Act shall not apply has an exception in the proviso. And it is to cases coming within the proviso alone that the Act shall apply.

15. Similar is the case with clause (b). The main clause (b) specifies the general category of cases to which the Act shall not apply. The provisos then make exception to this general cases and refers to two categories of cases to which the Act shall apply. They are referred to in sub-clause (i) and (ii). The cases covered by category 2, however, have three standards to satisfy. In other words only that ' open cast working ' case is covered which satisfies the three standards cumulatively indicated in paras (a), (b) and (c). Thus, it will be seen that while proviso to clause (a) has only one condition and if that is satisfied the Act shall apply to such a case, proviso to clause (B) however has two conditions which, if satisfied, would make the entire Act applicable to these cases. The second condition, it will be seen, will be satisfied only when the three standards mentioned in paras (a), (b) and (c) are fulfilled.

16. Proviso to clause (a) has three sub-clauses indicated by Roman digits. It would, however, be seen that at the end of sub-clauses (ii) the word 'and' appears which word being conjuctive makes the fulfilment of all the three sub-clauses necessary before proviso to clause (a) can be said to apply.

17. Before clause (b) begins and after clause (a) has ended there appears the word 'or' which can leave no-one in doubt that clause (a) is disjunctive and separate from clause (b).

18. The proviso to clause (b) has also two sub-clauses. It is pertinent to note that after sub-clause (I) and before sub-clause (ii) the word 'or' is used, which makes these two sub-clauses disjunctive and separate.

19. We then come to sub-clause (ii) of the proviso to clause (b). It has three paras (a), (b) and (c). After paras (a) and (b) semicolons are given. But after the semicolon at the end of para (b) the word 'and' is used . It is, in our judgment, beyond doubt that this conjunctive word combines and joins all the three paragraphs in order to constitute one single condition. Thus, in order to apply sub-clause (ii) of the proviso to clause (b) the requirements of the three paras (a), (b) and (c) ought to be fully satisfied. There is no warrant for any contention that if any one of the said three requirements is satisfied, the condition mentioned in sub-clause (ii) would be found to have been satisfied. There is no room in the context of the proviso which would compel us to treat the word 'and' to mean 'or'.

20. That this is the only fair and reasonable construction can be seen from the proviso to clause (a). Although the draftsman, unlike sub-clause (ii) to clause (b) has adopted a different mode and has used Roman digits to indicate the sub-clauses but at the end of sub-clause Roman (ii) the word 'and' is employed which as seen earlier must mean that in order to attract proviso to clause (a) the requirements of all the sub-clauses (1), (2) and (3) ought to be satisfied. The same intention is made clear in sub-clause (ii) of the proviso to clause (b)although instead of Roman digits this time the draftsman has used small alphabets. We do no think that merely because the draftsman has used two different devices in expressing himself in the two provisos the intention of the author and the meaning of the term 'and' would in any manner differ. On the other hand, if one looks at the latest trend in drafting the Statutes, it would be evident that in order to solve the difficulty which many times arises because of the use of either the conjunctive or disjunctive is avoided, a different technique is employed. When compliance with every standard set by the provision is desired and one standard is not intended to be a condition upon another, a mere itemization of the standards is considered to be the best practice and is now-a-days freely used. That is what is done in the instant case. The proviso to clause (a) as well as proviso to clause (b) (ii) have itemised the standards though be adopting different modes of indicating the items and at the same time by using the word 'and' also. This method has doubly assured the clear intention of the author.

21. The use of 'or' and 'and' in Section 3 therefore clearly shows that the legislature was aware of the meaning of and the difference in these words and that is why they have been very appropriately used in Section 3 wherever they wanted to indicate their intention clearly. Thus a plain reading of Section 3(1)(b) can leave no one in doubt that the word 'and' appearing in para (b) of sub-clause (ii) of the proviso to clause (b) cannot mean 'or'. It requires that all the requirement must be satisfied in order to comply with the sub-clause (ii). If it is to be construed in disjunctive sense it would not effectuate legislative intent.

22. It was, however, contended that sub-section (3) is a compelling provision in the light of which the word 'and' shall have to be used as 'or'. Now sub-section (3) undoubtedly says that if at any time any of the conditions specified in the proviso to clause (a) or clause (b) of sub-section (1) is not fulfilled, then a certain consequence would follow. What was argued was that the words 'any of the conditions' used in sub-section (3) would only mean that any one of the conditions in sub-clauses (a) or (b) or (c) of paragraph (ii) of the proviso to cl. (B) of sub-section (1) of Section 3. We are not impressed with this argument. What is ignored in advancing this argument is that the word 'conditions' mentioned in sub-section (3) refers cumulatively to sub-clauses (I), (ii) and (iii), in the proviso to clause (a) and distinctively to sub-clause (I) or (ii) in proviso to clause (b). It does not refer to the paragraphs (a), (b) and (c) of sub-section (ii) of the proviso to clause (a), If one reads the proviso to clause (a), it would immediately be plain that the sub-clauses are indicated to Roman figures, but it cannot be doubted that though there appear to be three conditions mentioned in the proviso to clause (a) but because of the word 'and' at the end of sub-clause (ii) in effect there is only one condition. There are however two conditions enumerated in Roman figures in the proviso to clause (b). The sub-conditions enumerated in condition No. 2 in the proviso to clause (b) cannot strictly be called as conditions, because they are requirements of condition No. 2. They altogether make condition No, 2 and that is why after the first condition was enumerated, the word 'or' is used before the second condition was laid down. What becomes therefore, plain is that three paragraphs mentioned in sub-clause (ii) of the proviso to clause (b) not being conditions but requirements of condition No. 2, sub-section (3) would not in any manner change the ordinary meaning of the word ' and ' . In any case it would not compel this Court to treat the word ' and ' as ' or '. Any such construction would prevent giving effect to or harmonizing of all the provisions of Section 3. It is true that the word used in sub-section (3) is ' conditions ' whereas proviso to clause (a) as seen, in effect, has only one condition. But, that, in our judgment, will make no difference obviously because proviso to clause (b) has indisputably two conditions (i) and (ii). Thus cumulatively for both these clauses, there are three conditions and that is why the word ' conditions ' is used in sub-section (3). It would not be reasonable to require the satisfaction of that word separately in clauses (a) and (b). That is clearly not the meaning of sub-section(3). This alone is the way to harmonise sub-section (3) with sub-section (1) of Section 3. Any other interpretation would lead to absurd or unreasonable results.

23. It is also relevant to mention that sub-section(2) commences with a non obstante clause and then confers powers on the Central Government to declare that any of the provisions of the Act not set out in sub-section (1) shall apply to any such mine or part thereof or group or class of mines employed therein. With this wide power entrusted by the Legislature to the Government, it does not seem possible that the Legislature would have meant to apply the provisions of the Act even to a case where one of the three sub-conditions mentioned in condition No. 2 in the proviso to clause (b) is satisfied.

24. If the construction sought to be placed by the learned Advocate for the appellants is accepted then it would create some results which we do not think were even intended by the Legislature. For example, if very much less than 50 persons day are employed to excavate a mine whose depth is far less than six metres, then all the provisions of the Act would apply and it could not be doubted that the provisions which are to be intended to safeguard the interests of the Labour by creating pleasant conditions of work at the place where they are working would be too onerous to bear by such a mine. We do not therefore think that it was any time intended by the Legislature to make one of the three sub-conditions mentioned in paragraph (ii) of the proviso if satisfied the entire provisions of the Act would apply. On the other hand, we are satisfied that it was clearly intended that all the three sub-conditions mentioned in condition No. 2 ought to be satisfied before the other provisions of the Act are also applied to a mine.

25. The contention that the enactment being a social welfare legislation, we should be liberal in our construction and interpret the word ' and as ' or ' is not impressive. It is true that this Court is always reluctant to put an interpretation upon labour legislation which is likely to prejudice the rights and welfare of labour. It is fully conscious of the fact that the labour legislation has been put by the legislature on the Statute book primarily for purpose of redressing the balance between the employer and the employee and it would not, unless compelled to do so, by clear language of the Legislature, put any construction upon the provisions of labour legislation which will in any way prejudicially affect their rights. We are, however, very clear, in our opinion, that Section 3(1) (b) is so clearly worded that it is not possible to put the construction which is sought to be put upon it by the learned Advocate appearing for the appellant. We do not think that by accepting that interpretation we would be advancing in any manner the purpose of the legislation. If one remembers that the main intention of Section 3(1)(b) is to exempt the extraction of building stone and limestone from the mines generally, then condition No. 2 of the proviso to clause (b) which is an exception to this general provision would have to be interpreted strictly in order to carry out the main purpose of the legislation. We are satisfied that it is by putting the ordinary construction on the word ' and ' which has been deliberately used by the Legislature that the intention of the Legislature in enacting Section 3(1)(b) would be advanced.

26. For the reasons we have given, the appeal fails and is dismissed with costs. Advocate's fee Rs. 100 /-.

27. Appeal dismissed.


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