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New Beerbhoom Coal Co. Ltd. and ors. Vs. Joint Director of Mines, Safety and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 402-404 (w) of 1971
Reported inAIR1973Cal17
ActsMines Act, 1952 - Section 57; ;Coal Mines Regulations, 1957 - Regulation 191(1) and 191(2); ;Constitution of India - Articles 19(1), 19(6) and 23
AppellantNew Beerbhoom Coal Co. Ltd. and ors.
RespondentJoint Director of Mines, Safety and ors.
Appellant AdvocateP.P. Jinwalla, Adv.
Respondent AdvocateS.M. Sanyal, Adv.
Cases ReferredBijay Cotton Mills Ltd. v. State of Aimer
- .....industry to meet half of such expenditure. in paragraph 5. sri tewari has further stat-ed that the coal industry had been allowed price increase on four occasions after the decontrol by the ministry of railways to meet the impact of the implementation of wage board's recommendations and other increase in the cost of production. he has however, not specifically stated that the industry was allowed any increment of price to bear the additional burden for the protective footwear. in paragraph 6. sri tewari has further stated that the industry had also been given price increase before the decontrol taking into account its liability to pay amongst other things fifty per cent of the cost of a pair of footwear. the last aforesaid claim of sri tewari en paragraph 6 of this additional affidavit.....

Anil Kumar Sen, J.

1. These three Rules were issued on as many Writ petitions filed by the petitioners under Article 226(1) of the Constitution. The petitioners are New Beerbhoom Coal Co. Ltd. Bengal Coal Co. Ltd., Katras Jharriah Coal Co, Ltd. and some of their shareholders challenging the legality and validity of Regulation 191 of the Coal Mines Regulations, 1957 the petitioners are praying for a Writ In the nature of Mandamus commanding the respondents to forbear from enforcing or taking any steps to enforce or giving any effect to the impugned Regulation and further commanding the respondents to forbear from taking any action against the petitioners end their servants for violation of such Regulation.

2. The Regulation impugned is the one which was incorporated into the Coal Mines Regulations framed under the Mines Act. 1952 by the Central Government by the notification No. GSR 1298 dated August 22, 1967, The Impugned Regulation is set out hereunder :--

'191. Use, supply and maintenance of protective footwear--

(1) No person shall go into, or work or be allowed to go into or work in 4 mine unless he wears a protective footwear of such type as may be approved by the Chief Inspector by a general or special order in writing.

(2) The protective footwear referred to in such Regulation (1) shall be sup-plied free of charge at intervals not exceeding six months, by the owner, agent or manager of a mine who shall at all times maintain a sufficient stock of protective footwear in order to ensure minimum supply as and when need for the same arises.

(3) Where a footwear is provided otherwise than as aforesaid the supply shall be made on payment of full cost.

(4) The owner, agent or manager of a mine shall provide at suitable places in the mine dubbing and revolving brushes or make other suitable alternative arrangements for cleaning of protective foot-wear by the persons using them. It shall however, be the responsibility of the persons supplied with protective footwear to arrange the repair of the same at his own costs'.

3. The petitioners are disputing In particular the validity of sub-regulations (1) and (2) of Regulation 191 set out hereinbefore on the two fold grounds:

(1) such regulations are ultra vires the Act and

(2) such regulations impose unreasonable restriction on the petitioners' fundamental rights guaranteed under Article 19(1)(f) and (g) of the Constitution. These are also the two points pressed at the hearing by the learned Counsel for the petitioners.

4. The Rules are being contested by the respondents, I shall refer to the respective pleadings relevant to the issue where necessary hereinafter when I consider each of the points raised.

5. The impugned Regulation had been made by the Central Government in exercise of its powers under Section 57 of the Mines Act, 1952 (Act 35 of 1952). This Act was passed with a view to amending and consolidating the law relating to the regulation of labour and safety in mines, It is obvious that the Regulation made is a safety measure adopted to protect the workmen from avoidable physical injuries while working in the mines. Upon the petitioners' own showing the Board of Conciliation constituted under the Trade Disputes Act. 1926 made on recommendation as early as in May, 1947 that such a protective measure should be adopted. It, however, recommended that such footwear should be issued at concessional rates so that workers may take them and do not waste the materials. The All India Industrial Tribunal (Colliery Disputes) constituted under the Industrial Disputes Act, 1947 in its award made in May, 1958 recommended that all workmen drawing emoluments of less than Rs. 100/- a month should be supplied once in a year one pair of protective footwear at the concessional rate of 50 per cent. of the cost. The Central Government on October 24. 1957 promulgated Regulation 191 providing that the Regional Inspector or the Chief Inspector may by a general or special order require the provision and use of gloves, boots, hard hats, goggles and other protective equipment where it appears that any person or class of persons is exposed to undue hazard by reason of the nature of his employment. The Regulation was on such terms when a committee appointed by the Central Government known as Merchant Committee was set up to consider the procedure for use of footwear and this Committee recommended that footwear be provided free of cost to all workmen. Control over the price of coal which was so long in existence since 1944 was withdrawn in July, 1967 and after the price was decontrolled in August 1967 the Regulation 191 was amended in the manner set out hereinbefore which is the subject-matter of, challenge now before this Court.

6. Mr. Jinwalla. who has led the challenge on behalf of the petitioners, has first submitted that Section 57 of the Mines Act furnishes no authority to the Central Government to promulgate any Regulation of the kind as in Regulation 191 introduced on amendment in 1967. On the other hand Mr. Sanyal appearing for the respondents has contended that the impugned Regulation could well be made by the Central Government on the authority given to it by Section 57 read with Clauses (j), (k) and (zz). Mr. Jinwalla, however, strongly contests the proposition that the impugned Regulation would come within the sanction of any of these clauses. In my view, the Regulation would not obviously come withing Clause (i) or Clause (zz) but would come within the sanction of Clause (k).

7. Section 57 read with Clause (k) is as follows:--

'57. Power of Central Government to make regulations. The Central Government may, by notification in the official gazette, make Regulations consistent with this Act for all or any of the following purposes, namely.:--

* * * * * (k) For providing for the safety of the persons employed in a mine, their means of entrance there into and exit therefrom, the number of shafts or out lets to be furnished and the fences of shafts, pits, outlets, pathways and subsidences'.

8. Mr. Jinwalla has very strongly contended that. Clause (k) as aforesaid does not contemplate any provision for a protective footwear for a workman working in the mine. According to him what Clause (k) contemplates is measures not pertaining to the workmen but to the mine itself. He asks me to read the clause 'safety of persons' with reference to what follows in the clause there-after and according to him what follows clearly indicates that protective measures contemplated are measures pertaining to the structure and configuration of the mine and its appurtenances and their working. I am, however, unable to accept such, a limited construction of Clause (k) as contended for by Mr. Jinwalla. That would also not be the reasonable construction of the clause. In my reading the different matters referred to in this clause are quite independent of each other and are in no way restricted one by the other. What follows the clause 'safety of persons' is not even illustrative. They are all individual enumeration of different matters on which regulations can be made by the Central Government Therefore, when Section 57(k) authorises the Central Government to make a Regulation providing for the safety of the persons employed in a mine It certainly contemplates every safety measure which may be necessary for the workmen working in the mine whether the measure relates to the workmen's kits or It relates to the structure or the configuration of the mine. Mr. Jinwalla In his argument before this Court has conceded that protective measures contemplated by Section 57(k) may relate to operation of the mine and if that is conceded I fail to understand how a measure like the present one providing for protective footwear to workmen employed in the operation of the mine can be said to be foreign to the provision itself. Incidentally Mr. Jinwalla has further contended that even if Regulation 191 (1) may come within the sanction of Section 57, Regulation 191 (2) which lays a financial burden on the employer making it incumbent for them to provide two pairs of footwear in a year to workmen free of costs can never come within the sanction of Section 57. According to him It was open to the Central Government to make a Regulation as in 191 (1) and leave it to the employer and the employees to bargain between them as to how the financial burden is to be borne. He goes on to argue that the Central Government may have authority to make it obligatory for workmen to wear a footwear while working in the mines but it has no authority to impose the financial burden for the measure on the employer alone. This contention, however, does not appeal to me. In my view, a provision as to who should provide the footwear and in what manner it would be so provided is an integral part of making the provision for safety measure contemplated by Section 57(k). The Central Government may be well justified in thinking that the financial burden for such a protective measure could not have been borne by the workmen on their existing wages or that the measure could not have been made effective if the burden is laid on the workmen so that to make the measure effective it also makes a provision like the one in Regulation 191 (2). In my view, therefore, any provision for imposition of the consequent financial burden for any protective measure would be an integral part of providing the measure itself and as such would come within the sanction of Section 57(k) of the Mines Act In this view I overrule the first contention raised on behalf of the petitioners that the impugned Regulation is ultra vires the Act

9. Mr. Jinwalla next contends that the Regulation as framed with the financial burden on the employers imposes an unreasonable restriction on the employers' fundamental right to acquire, hold and dispose of properties and carry on any occupation, trade or business; in other words, according to Mr. Jinwalla the impugned Regulation is violative of Article 19(1)(f) and (g) and as such is void. Both these clauses of Article 19 are however, subject to the limitation that nothing thereunder would prevent the State from making any law imposing reasonable restriction on the exercise of such rights in the interest of general public. I shall now consider how far the restrictions imposed, if any, are unreasonable or are not in the interest of general public. According to Mr. Jinwalla the cost to be incurred by the industry to provide for such protective footwear would work out at the figure between 30 paise and 40 paise per ton in the minimum depending on the nature of protective footwear. This cost he contends must be added to the cost of production and be covered by the prices otherwise it would not provide viable opportunity to the employer to work the mines. With reference to the statements made in the petition and the affidavits it has been pointed out by Mr. Jinwalla that between the period of 1944 to 1967 when the price of coal was con-trolled no increment of price was allowed to the industry to meet this cost. Even after the decontrol in July. 1967 the bulk purchaser of coal is the Government either for the Railways or fop the Steel Hants but in spite of repeated demands made by the industry the Government has refused to enhance the price so as to meet the liability arising out of this Regulation. Therefore, Mr. Jinwalla has contended that to force the industry bear the additional cost without allowing it to reflect the same in the price would really kill the industry and such Regulation cannot be considered to be reasonable.

10. At one stage of the hearing of this Rule Mr. Sanyal appearing for the respondents contested this claim of Mr. Jinwalla by submitting that it is not correct to suggest that the Government had not allowed the increase in the cost of implementation of such a measure to reflect on the price controlled or paid by the Government. But in the two affidavits then filed by the respondents there was no material whatsoever to support such a submission of Mr. Sanyal and as such Mr. Sanyal was given an opportunity to file an additional affidavit to support his statement that fifty per cent of the cost for the footwear was taken into consideration by the Government in fixing the price of coal. Pursuant to the said leave a further affidavit has been filed by one Sri J. D. Tewari on May 9. 1972 and the petitioners have also filed an additional affidavit on this point. These affidavits, however, do not establish the claim of Mr. Sanyal Sri Tewari in paragraph 4 of his additional affidavit has stated that average cost of footwear of the workmen had been taken to be Rs. 30/- and working out half the financial obligation on that basis it was found that the additional cost to be incurred by the industry would amount to nineteen paise per ton to enable the Industry to meet half of such expenditure. In paragraph 5. Sri Tewari has further stat-ed that the coal industry had been allowed price increase on four occasions after the decontrol by the Ministry of Railways to meet the impact of the implementation of Wage Board's recommendations and other increase in the cost of production. He has however, not specifically stated that the industry was allowed any increment of price to bear the additional burden for the protective footwear. In paragraph 6. Sri Tewari has further stated that the industry had also been given price increase before the decontrol taking into account its liability to pay amongst other things fifty per cent of the cost of a pair of footwear. The last aforesaid claim of Sri Tewari En paragraph 6 of this additional affidavit does not appear to be consistent with the official records disclosed by the petitioners in their additional affidavit. In the additional affidavit filed by Sri Raidharilal on June 12, 1972 it has been clearly stated In paragraph 2 (d) that during the period there was control of price of coal, industry was allowed increase of price on twenty-five occasions but none of these to compensate the cost for providing a footwear. They have referred to a statement placed before the House of the Parliament by the Ministry of Steel, Mines and Metals regarding the increase in coal price and their reasons which is made annexure 'B' to the said affidavit. This statement obviously negatives the vague claim of Sri Tewari that the industry had been given price increase be-fore the decontrol to meet fifty per cent of the cost of protective footwear. As for the increments allowed after the decontrol by the Ministry of Railways it is obvious on the annexure to the affidavit of Sri Tewari that the four increments were given on 1-9-1967. 1-7-1968. 1-10-1969 and 1-1-1971. Of these four Increments the last one was not in respect of collieries in Bengal and Bihar to which group the petitioners belong. Therefore, so far as the petitioners are concerned, there was no increment on 1-1-1971 as for the other three increments allowed it has been plainly established on the affidavit of Raidharilal that none of them did cover the cost for the protective footwear. Therefore, on the materials now before this Court it is not possible for me to hold that the price paid to the industry for the coal was ever allowed to meet the obligation imposed by the impugned Regulation.

11. But even if I assume that the price paid by the Government for the coal purchased does not reflect the additional burden imposed by the impugned Regulation still it is difficult to hold that the Regulation imposes any unreasonable restriction on the petitioner's right to hold any property or carry on any trade, business or occupation. It should be remembered that the impugned Regulation was enforced only in August, 1967 after the statutory control over the price of coal was withdrawn. Therefore, at the relevant time there is no statutory bar on the petitioners adding the cost which they may now incur for providing this protective measure to the Price of coal sold by them. It is not Mr. Jinwalla's case before me that there is any statutory compulsion on the industry to sell coal either to the Railways or to the Steel Plant at a particular price. It is conceded by him that the prices for such sale are also subject to bargain. If that is so it is always open to the industry to refuse any sale at any price which it does not consider economic and it would not be open to the industry to come up before this Court and complain of any unreasonable restriction out of their own failure to bargain the proper price for the coal sold by it The Regulation, there-fore, in my view, imposes no unreasonable restriction because it is quite open to the industry to provide the protective measure and add the cost to its price. There is no statutory bar in their doing so. If they fail to do so due to their own inability or due to lack of bargaining power that would not render regulation unreasonable. Mr. Jinwalla in his argument before this Court had incidentally referred to the Supreme Court decision in the case of Premier Automobiles v. Union of India, (AIR 1972 SC 1690). But that decision, in my view, is of no help to Mr. Jinwalla because there what was challenged was fixation of price of cars under the Motor Car (Distribution and Control) Amendment Order. 1969 and the contention of the industry was fixation of an uneconomic price is not lawful. No such issue, however, arises in the present case and on my findings made hereinbefore it is always open to the industry to revise its price appropriately to meet the additional obligation. In this view I must overrule the petitioners' contention that the impugned Regulation imposes any unreasonable restriction and it is not disputed before me that the restriction imposed is in the interest of the general public.

12. Alternatively the Issue as to whether the impugned Regulation imposes any unreasonable restriction on citizens' fundamental rights guaranteed under Article 19 (1) (f) and (g) or not should be looked into from another point of view. The impugned Regulation has rightly been claimed by Mr. Sanyal to be a welfare measure meant to provide protection to workmen against occupational hazards when they are employed in such an industry as would expose them otherwise to such hazards at any time resulting in physical injuries. Need for such protection in my view, is absolute whatever its financial burden and whoever is made to bear it. It is reasonable because of the public interest itself and such Interest outweighs other consideration. In my view, reasonableness of such a measure is made out on its object and the object is such that it must override the other consideration of the financial burden. To hold otherwise is to hold that if the industries are unable to meet financially the economic burden of providing the minimum protection to the life and health of workmen employed in establishments where such workmen are easily and ordinarily exposed to occupational hazards they would nonetheless be protected by Article 19 in exploiting the labour and making them face such occupational hazards and refuse them, the minimum protection against the same. In essence such a position is against the principles underlying Article 23 of the Constitution itself. The view, I take, is, in my opinion, well sup-ported by a number of decisions of the Supreme Court. Thus in the case of State of Madras v. V. G. Row. : 1952CriLJ966 Patanjali Shastri. C. J. observed, 'it is important ............ to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and even urgency sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should also enter into judicial verdict'. Again in Cooverjee B. Bha-rucha v. Excise Commissioner, : [1954]1SCR873 , Mahalan. C. J observed, 'in order to determine the reasonableness of the restriction regard must be had to the nature of the business ............... it can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere Regulation. The nature of the business is therefore, an important element in deciding the reasonableness of the restriction. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority ............ essential to the safety, health, peace, order and morals of the community'. Reference may also be made to the decision in the case of Sivarajan v. Union of India, : AIR1959SC556 and Hatisingh . v. Union of India, : (1960)IILLJ1SC , In the former the Supreme Court had clearly laid down 'control and regulation of any trade though reasonable within the meaning of Article 19, Sub-Article 6. may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced, but once it is conceded that the regulation of the trade and its control are justified in the public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under Article 19 (g) and challenge the validity of the regulation or the rule in question'. The same view was taken by the Supreme Court in an earlier decision strongly relied on by Mr. Sanyal in the case of Bijay Cotton Mills Ltd. v. State of Aimer, : (1955)ILLJ129SC . Mr. Jinwalla sought to distinguish the decision of the Supreme Court in the case of Bijay Cotton Mills Ltd. on two grounds. In the first) place, he submits that in the said case it was not the industry as a whole which was unable to bear the economic burden. Such was the position only with the uneconomic units. While in the present case he submits the industry as a whole Is unable to bear the financial burden. Secondly he submits that the burden there imposed was under the Minimum Wages Act which itself provided a detail-ed procedure for fixation of the minimum wage with appropriate safeguard be the interest of the industry which is not the case now under consideration. In my view, however, the points of distinction sought to be made out by Mr. Jinwalla is of no conseauence, Regulations like the present one are meant to meet a, social need and afford protection to work-men against physical injuries while in employment Any regulation as already observed by me to serve such a social purpose must outweigh the consideration of its financial burden irrespective of whether the burden is incapable of being borne by particular units or the industry as a whole. It lays down the minimum standard of safety to men employed by others before they venture to initiate or carry on a trade or business where the workmen are exposed to occupational hazards. The fact that the industry as a whole is incapable to meet the financial burden cannot afford any constitutional sanction to citizen to nonetheless carry on such a trade at the cost of the workmen. Secondly in the decision relied on by Mr. Sanyal what was considered by the Supreme Court was the validity of fixation of a minimum wage which the Industry on the admitted position was unable to meet. The method of Its fixation was not the subject-matter of consideration. The Supreme Court up-held the fixation as it was in the interest of the general public meant to secure adequate living wages irrespective of the consideration whether the employer had the financial capacity to bear it or not. Tested in this light Mr. Jinwalla's challenge to the reasonableness of the impugned Regulation must also fail.

13. As both the points raised in support of these Rules fail applications fail and the Rules are discharged.

14. Though the Rules are being discharged, the Court considers it desirable that the Central Government should adjudge in an appropriate manner the reasonableness or otherwise of the claim of the petitioners that the industry is not in a position to bear the burden of the additional expenses resulting from the enforcement of the impugned regulation and if any such case be found to be made out then the Government should revise the price paid by it as the bulk purchaser of coal.

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