Guha Ray, J.
1. The petitioners Mohan Lal Goenka and J. N. Gupta, the owner and the Manager respectively of Khas Jambad Colliery, were convicted under Section 73 of the Mines Act for contravention of Rule 7(1) of Mines Creche Rules. And while Mohan Lal Goenka was sentenced to a fine of Rs. 150/- or in default of payment of the fine to simple imprisonment for three months, J. N. Gupta was sentenced to a fine of Rs. 100/- or in default of payment of the fine to simple imprisonment for two months. Admittedly, the mine in question engaged some women labourers and admittedly on the 24th November 1954 Miss S. Mathur, an Assistant Inspector Labour Welfare Department and an ex-officio Inspector of Mines visited the colliery which was within her circle, & found that no creche attendant had been appointed by the management as required under Sub-rule (1) of Rule 7 of the Mines Creche Rules. 1946,
2. The defence of the petitioners was that the female workers employed in the colliery had no children below six years of age so that the question of the appointment of a creche attendant did not arise, that the prosecution was barred by limitation under Section 79 of the Mines Act and that the requirements of Sub-rule (1) of Rule 7 of the Mines Creche Rules were vague.
3. The learned Magistrate found that the prosecution was not time barred, that the petitioners were aware of the required qualification of the creche attendant as prescribed by the competent authority and that they contravened the provisions of Sub-rule (11 of Rule 7 of the Mines Creche Rules. The petitioners filed an unsuccessful appeal before the Additional Sessions Judge, Asansole,
4. Mr. Dutt on behalf of the petitioners has raised a number of points. The first is that the rules which were framed under the Mines Act of 1923 lapsed with the repeal of that Act and cannot be said to be in force after the Act of 1952 came into effect. Admittedly these Rules were framed under Section 30(bb) of the Act of 1923. The corresponding section in the Act of 1952 is Section 58(d). Section 30 (bb) runs as follows:
30. The Central Government may by notification in the Official Gazette make Rules consistent with this Act for all or any of the following purposes, namely:
(bb) for requiring the maintenance in mines wherein any women are ordinarily employed of suitable rooms to be reserved for the use of children under the age of six years belonging to such women, and for prescribing, either generally or with particular reference to the 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.
This provision in the Mines Act of 1923 was inserted by the Mines Amendment Ordinance 1945, Section 58(d) of the Act of 1952 is as follows:
58. The Central Government may, by notification in the Official Gazette, make Rules consistent with this Act for all or any of the following purposes, namely:
(d) 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 children under the age of six years belonging to such women, and for prescribing, either generally or with particular reference to the number of women employed in the mine 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.
5. It is clear therefore that the power of making Rules for the maintenance of a creche in mines has been considerably widened under the present Act. Under the old Act the Rules would apply only to mines wherein women were ordinarily employed. Under the present Act these Rules will apply to mines wherein women are employed or were employed on any day of the preceding twelve months. As the powers were widened the Rules framed under narrower powers may well be said to have been framed under the wider powers and as a matter of fact Section 24 of the General Clauses Act 1897 lays down that where a Central Act is repealed & re-enacted with or without modification, then, unless it is otherwise expressly provided, any rule made or issued under the repealed Act or Regulation shall, so far as it is rot inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any rule made or issued under the provisions so re-enacted. This is also the view taken by a Full Bench of the Patna High Court in the case of the State v. Kunja Behari : AIR1954Pat371 .
6. The next point argued by Mr. Dutt is that the Rule in question is ultra-vires the rule-making power of the Central Government and that it offends against the rule against delegated legislation. Mr. Dutt argues first that it is ultra vires the rule-making power of the Central Government because Section 58(d) does not empower the Central Government requiring the owner of a mine to appoint a Creche-in-charge who shall be a woman possessing such qualifications and training as may be approved by the authority and an inferior staff on a scale approved by the said authority. But it is obvious that the Central Government is empowered to make rules prescribing the nature and extent of the supervision to be provided in a creche and the nature and extent of the supervision certainly includes the appointment of supervisors such as a Creche-in-charge and also inferior staff. The second branch of Mr. Dutt's argument on this point is that while the Rule empowers the Government to lay down the nature and extent of the supervision required in a creche itself it does not empower the Central Government to create that competent authority who is to approve the Creche-in-charge and the inferior staff appointed in a mine and who is to lay down the qualifications for such appointments. It is certainly true that the Central Government merely provided in the rule that a Creche-in-charge who shall be a woman and an inferior staff are to be provided for a creche and instead of laying down the qualifications of the Creche-in-charge or the inferior staff or lying down the scale of such staff it has left all these things to the discretion of the competent authority. The question now is whether the discretion that has been left to the competent authority is a legislative act or it is merely an executive act for carrying out the objects of the Acts or objects of the Rules laid down by the Central Government. In my opinion, what has been left to the competent authority is by no means a legislative act but merely an executive act. In this view the Rule is neither ultra vires nor does it offend against the Rules against delegated legislation.
7. The 3rd point raised by Mr. Dutt is that in this particular case there has been no contravention because on the evidence it is clear that although women were employed in the mine they had no children. The question now is whether as the Rule stands it is obligatory on the owner or manager of a mine where women are employed and where a creche is maintained to employ the Creche-in-charge as well as an inferior staff irrespective of the fact whether the women employed in the mine have children or not. At first sight it would certainly appear to be meaningless to require a manager or owner of a mine to appoint a Creche-in-charge or inferior staff for a creche when there are no children at all to be attended to. But the Rule having empowered the Central Government to frame Rules on the matter and the Central Government having framed Rules, these Rules acquire the force of law and where the Rules require that at every creche the owner of the mine shall appoint a Creche-in-charge the omission to appoint a Creche-in-charge although there is a creche would appear to be a contravention of the Rules whether or not there are children to be attended to in the creche. That these Rules apply only to a mine wherein women are employed is clear. The Rules therefore have to be read subject at least to this qualification that they apply to a mine wherein women are employed or were employed on any day during the preceding 12 months. The question is whether these Rules are subject to the further qualification that they apply only to a mine wherein not merely women are employed but where the women employed have children below six years of age. As the Rules stand it is difficult to say that although they are subject to the first qualification that they apply only to a mine wherein women were employed, they are also subject to the further qualification that they apply to a mine not merely employing women but in which the women employed have children below 6 years of age. The reason for this conclusion is that the maintenance of a creche is not obligatory in a mine where women are not employed and have never employed at any time during the preceding 12 months. But where women were employed and where a creche is maintained because of the employment of women in the mine, Rule 7(1) requires the appointment of a Creche-in-charge. Or in other words, wherever there is a creche there must be a Creche-in-charge. That being so, the contention of Mr. Dutt that because there were no children below 6 years belonging to the women employed in the mine it was not obligatory on the owner of the mine to employ a Creche-in-charge in the creche maintained in the mine cannot be given effect to.
8. The next contention of Mr. Dutt is that the Rule expressly requires the owner only to maintain a creche and it is only the owner on whom the liability for contravening the Rule can be fastened and there is no obligation on the manager to maintain the creche and he cannot be penalised for contravention of something which does not impose any duty on him. Mr. Banerjee on behalf of the State points out that Section 18(1) provides that 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. Then Sub-section (2) provides that 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 that he had taken all reasonable means, by publishing and to the best of his power enforcing these provisions, to prevent such contravention, on behalf of the petitioners it is argued that this section applies only to mining operations and the maintenance of creche is no part of mining operations. Although the maintenance of a creche may have nothing directly to do with the mining operations, the employment of women is possible in mining operations and the employment of women in mines carries with it the obligation on the part of the owner of the mine to maintain a creche so that the maintenance of a creche is at least indirectly connected with the mining operations. In order therefore, that the mining operations might be conducted in accordance with the provisions of this Act and of the regulations, rules and bye-laws and of any orders made thereunder, the Rules relevant to the maintenance etc, of a creche have to be followed as otherwise the mining operations cannot be said, to be carried on in accordance with the provisions of the Rules framed under the Act. The contentions therefore raised on behalf of the petitioners must fail.
9. Lastly, Mr. Dutt argued that in view of the technical nature of the offence committed by the petitioners they should be lightly dealt with. There is a certain amount of force in this contention and I think the ends of justice will be fully served if the sentence of fine imposed upon the owner and the manager be reduced from Rs. 150/- and Rs. 100/-, respectively, to Rs. 50/- each (Rs. fifty only) and the defaulting sentence in the case of each to one month's simple imprisonment only.
10. Subject to these modifications, in the sentences, the Rule is discharged. If the fines have been recovered in full, the balance should be refunded.