1.This appeal has been preferred by the State Government against the judgment dated the 28th of January, 1959 passed by the Magistrate First Class Ohhindwara. in Criminal Case No, 908 of 1958 whereby he acquitted the above-named respondents of an offence under Section 74 of the Indian Mines Act for contravention of Regulation No. 38 read with Regulation No. 91 of the Indian Metalliferous Mines Regulations of 1926.
2. The respondent Chaturbhuj was at the relevant time the Agent of the Gowari Wadhona Mangenese Mines; whereas respondent R. Shrinivasan worked as its Manager. The respondent Allauddin worked as a contractor in the said Mines whereas respondent Sohansingh was its general foreman.
3. The case for the prosecution is that the abovenamed respondents were on 2040-1957 working in their respective capacities as mentioned above in the Gowari Wadhona Manganese Mines. The work of extracting Manganese ore in an open cast working was in progress and a batch of about 25/30 persons was engaged to work as labourers in connection with it. While the work was in progress one of the sides of the excavation collapsed, with the result that the debris fell down on the persons working therein, killing two of them; namely Barelal and Abdul Hamid on the spot and causing injuries to certain others.
4. PW.1-Ichpurani the Mines Inspector, on inspecting the spot and after holding an inquiry into the cause of the incident, came to the conclusion that it had occurred on account of the fact that the sides of the open cast excavation had neither been properly formed in steps or benches nor slopped back to an angle of safety. The case for the prosecution is that the management failed to slope back the sides of the excavation to an angle of safety and that its sides were not stepped or secured in such a manner as to prevent danger from the falls of material.
5. The present respondents were, on the facts stated above, prosecuted and tried for the offence Under Section 74 of the Indian Mines Act for contravention of Regulation No. 38 read with Regulation No. 91 of the Indian Metalliferous Mines Regulations, 1926. At the conclusion of the trial the present respondents were ordered to be acquitted of the said offence.
6. The respondents admitted in their statements under Section 342, Cri. P.C. that they were on the relevant day working in the respective capacities mentioned above. They also admitted that the southern side of the excavation collapsed as a result of which Barelal and Abdul Hamid were crushed to death. Chaturbhuj pleaded that at the commencement of the open cast working, the Manager had duly instructed the workers, mate and foreman to construct the steps in accordance with the regulations. He further stated that the Manager discovered on the morning of 20-10-1957 that the work had not been carried out in accordance with his instructions. He, therefore, gave a direction to the workers to remove the loose material, slope back the sides to an angle of safety, as also to prepare steps as required under the regulations. The contention of this accused was that while this work was being done, the southern side of the excavation collapsed.
7. The Manager also made a similar statement. He pleaded that he had directed the workers to slope down the sides, and remove the over-burden. While this work was in progress he left the site only to learn a little later that one of the sides of the excavation had fallen down. This accused also did not dispute that the steps were not formed according to the rules and that the workers had not carried out the instructions given by him on the previous day. The contractor Allauddin pleaded that he was not present at the spot and that ho had given general instructions to the workers to. do their work in accordance with the instructions given to them by the Manager and the foreman. Sohansingh denied that the sides of the excavation were not sloped to an angle of safety. According, to him the side fell down whilst the steps were being prepared from the top of the excavation.
8. The trial Court held that in the absence of any statutory provisions as to the dimensions of the steps to be constructed or the slope to be given, the matter is left to the discretion of the persons on the spot. It, therefore, held that there was nothing fundamentally wrong if the Manager in charge of the working found an angle of 45 degrees to be the angle of repose. The trial Magistrate further held that the directions given by the Manager to remove the over-burden was in accordance with Regulation No. 40 of the Indian Metalliferous Mines Regulations, 1926. He, therefore, held that the Manager was not guilty of any negligence in observing the regulations. While discussing the case as against the Agent the learned Magistrate observed that although there had been a breach of the regulations up to a certain stage, the Agent could not be convicted unless there was some evidence to show that he did not take precautions in appointing proper persons or to make necessary arrangements for the working of the Mines in accordance with the rules. In the case of Allauddin and Sohansingh also the learned Magistrate held that they were not guilty of any such negligence as would render them vicariously liable.
9. The question which, therefore, arises for consideration in the present appeal is whether the view of law on which the judgment of the trial Court is based is correct. In paragraph 11 of its judgment the trial Court has clearly held that there had been a breach of regulations up to a certain stage by the persons responsible in the night shift. The respondent Chaturbhuj admitted the fact that the labourers working in the night shift did not act in accordance with the instructions issued to them and that it was discovered on the morning of the 20th of October, 1957 that the work had not been done in accordance with the regulations, namely to slope back the side to an angle of safety as also to construct steps. Such a direction would not have been given if the sides had already been sloped to an angle of safety or the steps had been properly made. The stand taken by the Manager also was to the same effect. He admitted that he directed the labourers on the morning of the 20th of October, 1957 to slope down the sides and remove the overburden. The mere fact that the Manager thought that even at that time the angle of repose was quite safe in his estimation is no answer to the charge against the respondents. The term 'angle of repose' is not capable of such an interpretation as to the learned trial Magistrate seems to have put on it. The Manager himself admitted that he wanted the southern side to be sloped back to art angle of safety. Why he should do so if the angle at which the southern side stood was in his opinion already safe passes ordinary commonserise. The fact that the sides were not sloped and the steps secured in such a manner as to prevent danger from falls of material is proved by the evidence on record, and is not specifically denied by the respondents.
10. It was held by a Division Bench of this Court in the case of State of M.P. v. Jamilkhan 1957 MP LJ (Notes) 196 that Sections 72 and 74 of the Indian Mines Act have not any necessary ingredient of rashness or negligence in them. They merely provide a penalty for breach of rules to be observed in the working of the Mines. Such a breach per se becomes punisable under Sections 72 or 74 of the Indian Mines Act, as the case may be, without proof of any rashness or negligence.
11. The mere fact that the Manager had given instructions to the labourers and the foreman to do the work according to the regulations does not absolve him or the Agent from their responsibility for the due observance of the regulations. We do not find anything in the scheme of the Indian Mines Act or in the provisions of Section 72 to justify the interpretation placed on the same by the trial Magistrate.
12. The respondent Allauddin, who had gone away some 15 or 20 days before the incident in question to the Gadda Mines would not in our opinion be liable to be convicted merely because the labourers who were working at the open cast working had been engaged by him.
13. We would, therefore, dismiss the appeal preferred by the State in so far as respondent Allauddin is concerned.
14. The Agent Chaturbhuj, the Manager Shrinivas Ratnam and Sohanlal, the general foreman, were directly responsible for the work in the open cast working being done in accordance with Regulation No. 38. They are, therefore, liable to be punished under Section 74 of the Indian Mines Act for breach of Regulation No, 38 of the Indian Metalliferous Mines Regulations, 1926.
15. In the result the respondents Chaturbhuj, R. Shrinivas Ratnam and Sohansingh are convicted under Section 74 of the Indian Mines Act and sentenced to pay a fine of Rs. 200/- each or in default to suffer rigorous imprisonment for a period of three months.