judgement:
102 of 1958.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
M. K. Nambiar, and section N. Andley, for the petitioners.
H. N. Sanyal, Additional Solicitor General of India, M. P. Balagavgadhar Menon and Sardar Bahadur, for the respondents.
April 14.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The Government of Kerala( appointed a Committee in exercise of its powers 948 conferred by cl.
(a) of sub section
(1) of section 5 of the (Act XI of 1948) (hereafter called the Act), to hold enquiries and advise the Government in fixing minimum rates of wages in respect of employment in the tile industry and nominated eight persons to constitute the said Committee under section 9 of the Act.
This notification was published on August 14, 1957.
The Committee made its report on March 30, 1958.
The Government of Kerala then considered the report and issued a notification on May 12, 1958, prescribing minimum rates of wages as specified in the schedule annexed thereto.
This notification was ordered to come into effect on May 26,1958.
On that date the present petition was filed under article 32 by the nine petitioners who represent six tile factories in Feroke Kozhikode District, challenging the validity of the 'Act as well as the validity of the notification issued by the Government of Kerala.
The State of Kerala is impleaded as respondent to the petition.
The petitioners allege that the minimum wage rates fixed by the notification are very much above the level of what may be properly regarded as minimum wages and it was essential that before the impugned wage rates were prescribed the employers ' capacity to pay should have been considered.
Since this essential element had not been taken into account at all by the Committee as well as by the respondent the notification is ultra vires and inoperative.
According to them the burden imposed by the notification is beyond the financial capacity of the industry in general and of their individual capacity in particular, and this is illustrated by the fact that nearly 62 tile factories in Trichur closed soon after the notification was published.
The petitioners seek to challenge the validity of the Act on several grounds set out by them in clauses (a) to (g) of paragraph 21 of the petition.
It is urged that the Act does not define what the minimum wage is to comprise or to comprehend and as such confers arbitrary authority on the appropriate Governments to impose unreasonable restrictions on the employers. 'The law conferring such arbitrary power is violative of article 19(1)(g) of the Constitution.
Since the Act 949 empowers the fixation of a wage which may disable or destroy the industry it cannot be said to be reasonable and as such is beyond the purview of article 19(1) and (6) of the Constitution.
The Act does not lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorises any procedure to be adopted which may even violate the principles of natural justice.
It is also alleged that the Act is discriminatory in effect inasmuch as it submits some industries to its arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure of the Industrial Disputes Act.
It is on these grounds that the validity of the Act is impugned.
The petitioners impugn the validity of the notification also for the same reasons.
Besides, it is urged that the notification has in effect fixed not minimum wages but fair wages and so it was essential that the capacity of the employers to bear the burden proposed to be imposed ought to have been considered.
Failure to consider this essential aspect of the matter has, it is urged, rendered the notification void.
That in substance is the nature of the case set out by the petitioners in their present petition.
The respondent has traversed all these allegations.
It is urged that the validity of the Act is no longer open to challenge since the question is concluded by the decisions of this Court; and it is alleged that what the notification purports to do is to fix the minimum wage and no more and as such the capacity of the employer to pay such a minimum wage is irrelevant.
It is further alleged that decisions of this Court have firmly established the principle that in the matter of fixing minimum wages the capacity of the employer to pay need not be considered and that if any employer is unable to pay what can be regarded as minimum wages to his employees he has no right to carry on his industry.
It is further pointed out that out of 18 factories in Feroke only six factories have come to this Court and it is suggested that the grievance made by the petitioners that the wage rates fixed are 950 beyond their capacity is not genuine or honest.
The respondent also points out that the Committee appointed by it was a representative Committee and its report showed that it had considered the matter very carefully.
Alternatively it is urged that the report of the said Committee would show that the capacity to pay had not been ignored by the Committee.
The impact of the minimum wage, rate suggested by it had been considered by the Committee and so the Committee made its recommendations area wise.
In regard to the closure of factories in Trichur the respondent 's case was that the said closure was not the result of financial inability of the factories to bear the burden but was probably actuated by political motives.
The respondent also put in a general plea that in fact all the factories in the Kerala 'State except some of the factories in the Trichur area and one of the petitioners had implemented the notification without any objection or protest; and so it was argued that there was no substance in the grievance made by the petitioners.
That in brief is the nature of the contentions raised by the respondent in reply to the petitioner 's case.
At this stage it would be relevant to refer briefly to the Committee 's report in the order to find out how the Committee proceeded to discharge its task and what is the nature of its recommendations.
The Committee consisted of eight members three of whom were the employers ' representatives and three the employees ' representatives while the Chairman Mr. V. R. Pillai and Mr. G. S.Pillai, the District Labour Officer, were nominated on the Committee as independent members.
The Chairman Mr. Pillai is a M.A., M. Sc.
in Economics of the London University.
He is a Professor of Economics in the University College at Trivandrum and has had considerable experience inasmuch as he has served on several such Committees in the past.
The Committee issued a questionnaire to all the tile factories in the State and other persons interested, considered the replies received from them, personally visited certain factories, recorded evidence of various associations representing the 951 tile factories as well as of individuals, and took into account various facts which the Committee thought were relevant.
The report of the Committee shows that, subject to minor differences disclosed in the minute of dissent filed by Mr. K. Subramonia Iyer and the reply to it filed by Mr. A. Karunakaran, the recommendations of the Committee were unanimous and so prima facie we start with the fact that the recommendations of the Committee were approved not only by the two independent members but they secured the concurrence of the representatives of the employers as well as the employees.
The report of the Committee consists of five chapters.
Chapter 1 deals with the development of the tile industry in Kerala, chapter 11 deals with the problem of standardisation in the tile industry, chapter III considers the problem of wage structure area wise, chapter IV discusses the problem of minimum wage fixation, its principles and procedure, and chapter V records the conclusions and recommendations of the Committee.
In dealing with the problem of wage structure the Committee has observed that the prevailing wage rates in the tile factories in the State show considerable difference from one centre to another, and that, according to the Committee, is partly due to historical factors and partly to the economic status of the workers in the areas concerned.
The Committee formed the opinion that there being very little scope for alternative employment except in low paid agricultural occupations the bargaining position of the workers has all along been very weak and wages too have tended to remain at a relatively low level.
It is in the light of this background that the Committee naturally proceeded to consider the problem of the fixation of minimum wage rates.
The Committee has accepted the observation of the Fair Wages Committee that the minimum wage "must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the workers.
" Then it examined the food requirements of the employee on the basis of three consumption units recognized in Dr. Aykroyd 's formula.
It then adopted 952 the assessment made by the Planning Commission in regard to the requirements of the employees in cotton textiles and placed the employee 's requirement at a per capita consumption of 18 yards per unit, then it took into account the requirement of housing and it held that the additional requirements of workers for fuel, lighting and additional miscellaneous items of expenditure should generally be fixed at 20% of the total wage in cases where the actual percentage has not been found out by a family budget enquiry.
The Committee was conscious that it had to approach the problem from the point of view of the minimum needs of workers in order to maintain a subsistence standard, and so it enumerated the requirements of workers in that behalf as food, clothing, fuel, lighting and other miscellaneous items in which are also included rent, education, medical aid and entertainment.
On this basis the Committee formulated the weekly food budget of the employee, added to it the requirement of clothing and miscellaneous items.
According to the Committee the total weekly expen diture on this basis would be food 13.03, clothing 1.15 and miscellaneous 2.84, the total being Rs. 17.02 nP.
The Committee then observed "calculating on the basis of six days per week a worker should get a minimum of Rs. 2.67 nP. per day to maintain a 'subsistence plus ' standard." Ultimately the Committee recommended that the minimum basic wage of an unskilled worker in the "A" region, viz., Quilon and Feroke, should be Re. 1.
With a cost of living index for the tile Centers at an average figure of 400, and the minimum requirements of the workers at Rs. 2.67 nP. this basic wage corresponds to 150 in the cost of living index number.
As to dearness allowance the Committee recommended that it should be related to the cost of living index and that the dearness allowance should be fixed at the rate of 1 nP. for every two points for all points above 200.
Thus, when the cost of living index is 400 an unskilled worker will get Re. 1 as basic wage and Re. 1 as dearness allowance making a total of Rs. 2.
The Committee added that if the rise in the cost of living had to be completely 953 neutralised he should get Rs. 1.67 nP as dearness allowance, but he gets only Re. 1 that is to say 100/ 167 or 60% of the increase in the cost of living.
Therefore, the extent of the neutralisation of the increase in the cost of living is 60%.
The Committee recognised regional differences and so introduced five Grades classified as A, B, C, D and E for the purpose of fixing the wage structure.
The Committee hoped that the regional differences recommended by it would enable the backward areas to come up by improving the efficiency of production and marketing so that eventually they will be in a position to pay the same wages as advanced areas.
The notification issued is substantially on the lines of the recommendations made by the Committee.
Employees engaged in the tile industry have been categorised and their minimum wage rates have been classified into clauses A to E.
In regard to dearness allowance the notification provides that a flat rate of dearness allowance for all workers irrespective of sex or grade shall be paid at the rate of one naya paisa for every two points in the cost of living index in each year in excess of Rs. 200.
Thus the notification purports to prescribe the minimum rates of wages in regard to tile industry in the State; it is the validity of this notification that is impugned before us by the present petition.
Before dealing with the points raised by Mr. Nambiar on behalf of the petitioners it is necessary to refer very briefly to the material provisions of the Act.
This Act was passed in 1948, because it was thought expedient to provide for fixing minimum rates of wages in certain employments.
Under section 3 the appropriate Government is empowered to fix mini.
mum rates of wages in regard to employments as therein specified, and review the same at such intervals as specified by section 3(1).
Section 3(3) contemplates that in fixing or refixing minimum rates of wages different minimum rates of wages may be fixed for different scheduled employments, different classes of work in the same scheduled employments, adults, 120 954 adolescents, children and apprentices, and different localities.
Under section 4 any minimum rate of wages fixed or revised may, inter alia, consist of a basic rate of wages and a special allowance at a rate to be adjusted, or a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates where so authorised or an all inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions if any.
Section 5 prescribes the procedure for fixing and revising minimum wages.
It is under this section that a Committee was appointed by the respondent in the present case.
Section 9 makes provision for the composition of the Committee.
Such Committees have to consist of equal number of representatives of employers and employees and of independent persons not exceeding.
one third of the total number of members.
Section 12(1) imposes on the employer the obligation to pay the minimum rates of wages prescribed under the Act.
Section 22 provides for penalties for offences and section 22A makes a general provision for punishment of offences not otherwise expressly provided for.
Under section 25 any contract or agreement whether made before or after the commencement of this Act which affects an employee 's right to a minimum rate of wages prescribed under the Act shall be null and void so far as it purports to reduce the said minimum rate of wages.
Section 27 empowers the appropriate Government, after giving notification as prescribed, to add to either part of the schedule any employment in respect of which it is of opinion that minimum rates should be fixed, and thereupon the schedule shall be deemed to be amended accordingly in regard to that State.
In the case of The Edward Mills Co. Ltd., Beawar & Ors.
vs The State of Ajmer (1), the validity of section 27 of the Act was challenged on the ground of excessive delegation.
it was urged that the Act prescribed no principles and laid down no standard which could furnish an intelligent guidance to the administrative (1) ; 955 authority in making selection while acting under section 27 and so the matter was left entirely to the discretion of the appropriate Government which can amend the schedule in any way it liked and such delegation virtually amounted to a surrender by the Legislature of its essential legislative function.
This contention was rejected by Mukherjea, J., is he then was, who spoke for the Court.
The learned Judge observed that the Legislature undoubtedly intended to apply the Act to those industries only where by reason of un organised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low.
He also pointed out that conditions of labour vary under different circumstances and from State to State and the expediency of including at particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by a person who is placed in charge of the administration of a particular State.
That is why the Court concluded that in enacting section 27 it could not be said that the Legislature had in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act.
In the same year another attempt was made to challenge the validity of the Act in Bijay Cotton Mills, Ltd. vs The State of Ajmer (1).
This time the crucial sections of the Act, namely, sections 3, 4 and 5 were attacked, and the challenge was based on the ground that the restrictions imposed by them upon the freedom of contract violated the fundamental right guaranteed under article 19(1)(g) of the Constitution.
This challenge was repelled by Mukherjea, J., as he then was, who again spoke for the Court.
The learned Judge held that the restrictions were imposed in the interest of the general public and with a view to carry out one of the directive principles of State policy as embodied in article 43 and so the impugned sections (1) ; 956 were protected by the terms of cl.
(6) of article 19.
In repelling the argument of the employers ' inability to meet the burden of the minimum wage rates it was observed that "the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages, and that if individual employers might find it difficult to carry on business on the basis of minimum wages fixed under the Act that cannot be the reason for striking down the law itself as unreasonable.
The inability of the employers may in many cases be due entirely to the economic conditions of those employers.
" It would thus be seen that these two decisions have firmly established the validity of the Act, and there can no longer be any doubt that in fixing the minimum wage rates as contemplated by the Act the hardship caused to individual employers or their inability to meet the burden has no relevance.
Incidentally, it may be pointed out that in dealing with the minimum wage rate,,; intended to be pre scribed by the Act Mukherjea, J., has in one place observed that the labourers should be secured adequate living wages.
In the context it is clear that the learned Judge was not referring to living wages properly so called but to the minimum wages with which alone the Act is concerned.
In view of these two decisions we have not allowed Mr. Nambiar to raise any contentions against the validity of the Act.
It is true that Mr. Nambiar attempted to argue that certain aspects of the matter on which he wished to rely had not been duly considered by the Court in Bijay Cotton Mills Ltd. 's case (1).
In our opinion it is futile to attempt to reopen an issue which is clearly concluded by the decisions of this Court.
Therefore, we will proceed to deal with the present petition, as we must, on the basis that the Act under which the Committee " as appointed and the notification was ultimately issued is valid.
We have already seen what the Act purports to achieve is to prevent exploitation of labour and for (1) ; 957 that purpose authorises the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries.
In an under developed country which faces the problem of unemployment on a very large scale it is not unlikely that labour may offer to work even on starvation wages.
The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates the capacity of the employer need not be considered.
What is being prescribed is minimum wage rates which a welfare state assumes every employer must pay before he employs labour.
This principle is not disputed (Vide: Messrs. Crown Aluminium Works vs Their Workmen(1) it is, therefore, necessary to consider what are the components of a minimum wage in the context of the Act.
The evidence led before the Committee on Fair Wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to cover the bare physical needs of a worker and his family, whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities.
The Committee came to the conclusion that a minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker, and so it must also provide for some measure of education, medical requirements and amenities.
The concept about the components of the minimum wage thus enunciated by the Committee have been generally accepted by industrial adjudication in this country.
Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the, wage structure which is 'subsistence plus or fair wage, but too much emphasis on the adjective "bare" in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare (1) ; 958 physical needs and ]Keep himself just above starvation.
That clearly is not intended by the concept of minimum wage.
On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the com ponents of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his sustenance and that of his family but must also preserve his efficiency as a worker.
The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker.
Mr. Nambiar contends that when the statute purports to prescribe a minimum wage in effect it directs the fixation of a statutory minimum wage and as such, capacity to pay must be considered before such minimum wage is fixed.
His argument is that in any event the impugned notification statutorily prescribes such minimum wage rates for the tile industry in the State of Kerala and as such the rates so recommended do not constitute merely the industrial and economic minimum as understood by industrial adjudication but it constitutes a statutory minimum which can be fixed only after taking into account the employers ' capacity to pay the same.
In support of this argument Mr. Nambiar has strongly relied on some observations made by this Court in the case of Express Newspapers (Private) Ltd. vs The Union of India (1).
We will presently refer to the said observations but in appreciating the nature and effect of the said observations it is necessary to recall that in that case the Court was dealing with the problem of fixation of wages in regard to Working Journalists as prescribed by section 9 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955).
Section 9 of the said Act required that in fixing rates of wages in respect of working journalists the Board had to have regard to the cost of living, the prevalent (1) 959 rates of wages for comparable employments, the circumstances relating, to newspaper industry in different regions of the country and to any other circumstance which to the Board may deem relevant.
It was held that the wage structure contemplated by section 9 was not the structure of minimum wage rates, it was a wage structure permitted to be prescribed by that statute after taking into account several relevant facts and the scheme of that Act showed that the wage structure thus contemplated was very much beyond the minimum wage rates and was nearer the concept of a fair wage.
That is why the Court took the view that the expression "any other circumstance" specified by section 9 definitely included the circumstance, namely, the capacity of the industry to bear the burden and so the Board was bound to take that factor into account in fixing the wage structure.
It appeared to the Court that this important element had not been considered by the Board at all and that introduced a fatal infirmity in the decisions of the Board.
Thus, the wage structure with which the Court was concerned in that case was not the mini.
mum wage structure at all.
It is essential to remember this aspect of the matter in appreciating the argument urged by Mr. Nambiar on the strength of certain observations made by this Court in the course of its judgment.
In the course of his judgment Bhagwati, J., who spoke for the Court, has elaborately considered several aspects of the concept of wage structure including the concept of minimum wage.
The conclusion of the Fair Wage Committee as to the content of the minimum wage has been cited with approval (p. 83).
Then a distinction has been drawn between a bare subsistence or minimum wage and a statutory minimum wage, and it is observed that the statutory minimum wage is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum wage providing for some measure of education, medical requirements and amenities (p. 84).
This observation is followed by a discussion about the concept of fair wage; and in 960 dealing with the said topic the has also been referred to and it is stated that the Act was intended to provide for fixing minimum rates of wages in certain employments and the appropriate Government was thereby empowered to fix different minimum rates of wages as contemplated by section 3(3).
Then it is stated that whereas the bare minimum or subsistence wage would have to be fixed irrespective of the capacity of the industry to pay the minimum wage thus contemplated postulates the capacity of the industry to pay and no fixation of wages which ignores this essential factor of the capacity of the industry to pay could ever be supported.
Mr. Nambiar contends that the last part of the observation refers to the minimum wage prescribed by the Act and it requires that before prescribing the said wage the capacity of the industry must be considered.
We do not think that this argument is well founded.
It would be noticed that in considering the distinction drawn between the minimum wage fixed by industrial adjudication and the minimum wage prescribed by a statute which is called statutory minimum it has been made clear that the latter can be higher than the bare subsistence or minimum wage and as such is different in kind from the industrial minimum wage.
We do not think that the observation in question was intended to lay down the principle that whereas a minimum wage can be laid down by an industrial adjudication without reference to an employer 's capacity to pay the same it cannot be fixed by a statute without considering the employer 's capacity to pay.
Such a conclusion would be plainly illogical and unreasonable.
The observations on which Mr. Nambiar relies do not support the assumption made by him and were not intended to lay down any such rule.
Cases are not unknown where statutes prescribe a minimum and it is plain from the relevant statutory provisions themselves that the minimum thus prescribed is not the economic or industrial minimum but contains several components which take the statutorily prescribed minimum near the level of the fair wage,and when that is the effect of the statutory provision capacity to pay may no doubt have to be 961 considered.
It was a statutory wage structure of this kind with which the Court was dealing in the case of Express Newspapers (Private) Ltd. (1), because section 9 authorised the imposition of a wage structure very much above the level of the minimum wage and it is obvious that the observations made in the judgment cannot, and should not, be divorced from the context of the provisions with respect to which it was pronounced.
Therefore, we feel no hesitation in reject ing the argument that because the Act prescribes minimum wage rates it is necessary that the capacity of the employer to bear the burden of the said wage structure must be considered.
The attack against the validity of the notification made on this ground must therefore fail.
It still remains to consider whether in fact the noti.
fication has prescribed a wage structure which is above the level of the minimum wage properly socalled.
If the notification has in fact prescribed a wage structure which is nearer the fair wage level and is above the minimum wage structure that no doubt would introduce an infirmity in the notification since it does appear that the capacity of the employer to bear the burden has not been considered either by the Committee or by the Government.
This part of the attack against the notification is based on two grounds.
Mr. Nambiar contends that in making its calculations about the minimum wage rates the Committee has taken into account an item of entertainment, and that, says Mr. Nambiar, is clearly inadmissible.
He also points out that the Committee has described the daily minimum of Rs. 2.67 nP. ultimately deduced by it as intended to maintain the employee 's subsistence plus ' standard and that again shows that the wage structure is above the minimum, standard and goes towards the lower level of the fair wage.
We are not impressed by this argument.
It would be recalled that amongst the miscellaneous items in respect of which Rs. 2.84 nP. are added by the Committee in its calculations are rent, education, (1) 121 962 medical aid and entertainment.
The first three are not inadmissible, and so the attack is against the inclusion of the last item alone.
Even assuming that the last item is inadmissible it is not difficult to imagine that the addition of this last item could not have meant much in the calculations of the Committee, and so the grievance made on account of the inclusion of the said item cannot be exaggerated.
There are, however, two other factors which are relevant in this connection.
What the Committee has described as the subsistence plus ' standard should on its own calculations represent the daily minimum of Rs. 2.84 nP., not Rs. 2.67 nP. Rs. 2.67 nP. is plainly the result of miscalculation so that it can be safely assumed that the said sum which is taken to represent the daily minimum to maintain a 'subsistence plus ' standard in fact does not include an amount which may be attributed to entertainment.
Besides, it is necessary to remember that what the Committee has ultimately recommended is not the award of Rs. 2.67 nP. which according to it represents 'subsistence.
plus ' standard but only Rs. 2 and that itself shows that what is re. commended is below the 'subsistence plus ' standard.
There is yet another point which leads to the same conclusion.
Even if the whole of the miscellaneous item is excluded and calculations are made on the basis that the total permissible items amount to Rs. 14.18 nP. we would still reach the figure for the daily minimum which is more than Rs. 2.
Therefore, look at it how we may, it is impossible to accept the argument that the wage structure ultimately recommended by the Committee is anything higher than what the Committee thought to be the minimum wage structure.
Therefore, we are not prepared to hold that the notification which is in conformity with the recommendations of the Committee has prescribed wage rates which are higher than the minimum wage structure.
If that be so, failure to take into account the capacity of the industry to bear the burden can introduce no infirmity either in the recommendations of ' the Committee or in the notification following upon them.
963 Mr. Nambiar no doubt wanted to attack the merits of the notification on the ground that the wage rates fixed by it are unduly high.
In that connection he relied on the fact that the minimum wage rates prescribed by the Madras Government by its notification published on February 25, 1952, as well as the wage rates prevailing in other industries in Kerala were slightly lower.
He also pointed out that the wage rates awarded by industrial adjudication and even the claims made by the employees themselves would tend to show that what has been awarded by the notification is higher than the prescribed minimum wages.
It is not possible for us to entertain this contention.
The determination of minimum wages must inevitably take into account several relevant factors and the decision of this question has been left by the Legislature to the Committee which has to be appointed under the Act.
We have already referred to the composition of the Committee and have reviewed very briefly its report.
When a Committee consisting of the representatives of the industry and the employees considers the problem and makes its recommendations and when the said recommendations are accepted by the Government it would ordinarily not be possible for us to examine the merits of the recommendations as well as the merits of the wage structure finally notified by the Government.
The notification has accepted the recommendations of the Committee to categorise the workers and that obviously was overdue.
The fact that wages paid in other industries in Kerala, or in other States in comparable concerns, are lower would have been relevant for the Com mittee to consider when it made its recommendations.
In appreciating the effect of the prevalence of lower rates it may also be relevant to bear in mind that in some places and in some industries labour is still employed on wages much below the standard of minimum rates.
In fact, in its report the Committee has pointed out that in Kerala.
the bargaining position of the workers has all along been very weak and wages have tended to remain in a deplorably low level.
Therefore, the fact that lower wages are paid in other 964 industries or in some other places may not necessarily show that the rates prescribed by the notification are unduly high.
In any event these are considerations Which ordinarily cannot be entertained by us because obviously we are not sitting in appeal over the recommendations of the Committee or the notification following upon them.
That is why the grievance made by Mr. Nambiar on the merits of the wage structure prescribed by the notification cannot succeed.
There is, however, one aspect of this problem to which we must refer before we part with this case.
It appears that soon after the notification was issued as many as 62 tile factories in Trichur closed their works and that led to unemployment of nearly 6,000 employees.
In order to resolve the deadlock thus created the respondent referred the industrial dispute arising between the Trichur factories and their employees for industrial adjudication (I.D. 45 of 1958).
On this reference an interim award was made and it was followed by a final award on September 26, 1960.
Both the interim and the final awards were the result of settlement between the parties and the order passed by the tribunal shows that the respondent, acting, through its Labour Minister, "left aside the prestige of the Government, came to the scene and effected a settlement." Mr. Nambiar has strongly criticised the conduct of the respondent in permitting a departure from the notification in respect of 62 tile factories at Trichur contrary to the provisions of the Act, and in insisting upon its implementation in respect of the other parts of the State.
His argument is two fold.
He suggests that the settlement reached between the parties in Trichur shows that the minimum prescribed by the notification was above the legally permissible minimum and beyond the capacity of the Trichur factories, and that would support his grievance that the rates prescribed are not the minimum but they are such above that level.
We are not im pressed by this argument.
As we have already observed we would ordinarily refuse to consider the merits of the wage structure prescribed by the notification.
Besides, the closure of the factories in Trichur may 965 either be because the factories there found it difficult to pay the wage structure or may be for reasons other than industrial.
We propose to express no opinion on that point because that is not a point in issue before us, and so the settlement can have no bearing on the fate of the present petition; but the other argument urged by Mr. Nambiar raises a serious question.
Under the Act the notification has to apply to all the tile factories in the State and breach of the provisions of the notification is rendered penal under section 22 of the Act.
An agreement or contract contrary to the notification would be void under section 25 of the Act.
It is to be regretted that the respondent, acting through its Labour Minister, appears to have assisted in bringing about a settlement contrary to the terms of the Act.
If the respon dent thought that such a settlement was necessary in respect of Trichur factories it may consider the question of withdrawing the notification in respect of that area and in fairness may also reconsider the problem in respect of all the other areas and decide whether any modification.
in the notification is required.
It is not appropriate that the respondent should be associated, though indirectly, with the settlement which is in breach of the provisions of the Act.
We would, therefore, suggest that the respondent should seriously consider this aspect of the matter and should not hesitate to do what may appear to be just, reasonable and fair on an objective consideration of the whole problem.
In the result, the petition fails and is dismissed.
There would be no order as to costs.
Petition dismissed.

summary:
The petitioners, representing certain tile factories, challenged the validity of the , as also the notification issued by the Kerala Government prescribing minimum rates of wages in respect of employment in the tile industry on the report of a committee constituted under the Act and consisting of the representatives both of the employers and employees who agreed with its recommendations.
The case of the petitioners was that the notification had in effect fixed not minimum wages but fair wages and since neither the committee nor the Government in fixing them had considered the capacity of the employers to pay, the notification was void.
Held, that in view of the decisions of this Court the con stitutional validity of the Act could no longer be in doubt and any hardship that may be caused to employers by the wages fixed under the Act or their incapacity to pay the same are irrelevant considerations in fixing such wages.
947 The Edward Mills Co. Ltd. vs The State of Ajmer, ; , Bijay Cotton Mills Ltd. vs State of Ajmer, ; and M/s. Crown Aluminium Works vs Their Workmen; , , referred to.
While, therefore, in fixing the minimum wage nothing can be added to its components that may take it near the lower level of the fair wage, the minimum wage must ensure not only the sustenance of the employee and his family but also preserve his efficiency as a worker and that is what is contemplated by the Act.
It is an error to think that the minimum wage is just what a worker requires to cover his physical needs and to keep himself above starvation.
There can be no analogy between the which prescribes the economic and industrial minimum and a statute which prescribes its own minimum that approximates more or less to the fair wage standard and so makes it necessary to consider the employer 's capacity to pay.
Express Newspapers (P.) Ltd. vs The Union of India, , explained and distinguished.
This Court would ordinarily refuse to consider the merits of the wage structure set up by the Notification on the recommendations of the committee, agreed to by the representatives of the employers and the employees.
The fact that wages paid in other industries in the State or in other States in comparable concerns are lower does not necessarily show that the rates prescribed by the Notification are unduly high.
A notification under the Act must apply to all the factories in the State and the State cannot permit or be associated with a departure from it for that would amount to a contravention of SS. 22 and 25 of the Act.
If a departure is considered necessary, the proper course would be to withdraw the notification in respect of the area concerned or to reconsider and modify it if necessary.


judgement:
iminal Appeal No. 119 of 1960.
Appeal by special leave from the judgment and order dated April 14, 1960, of the Madras High Court in Cr.
Petition No. 246 of 1960, D. N. Mukherjee, for the appellant.
M. section K. Sastri and T. M. Sen, for respondent.
April 19.
The Judgment of the Court was delivered by RAGHUBAR DAYAL,, J.
This appeal, by special leave, is against the order of the Madras High Court dismissing the application for quashing the commitment of the case against the appellant, to the Court of Session, for trial of offences of criminal conspiracy to cheat under section 120 B read with section 420, Indian Penal Code, and for the offence of forgery committed in pursuance of that conspiracy.
The criminal conspiracy is alleged to have been committed at Calcutta.
The other offences in pursuance of the conspiracy are alleged to have been committed within the jurisdiction of the Court of Session at Madras.
The quashing of.
the commitment was sought on the ground that, the Courts at Madras had no jurisdiction to try the offence of conspiracy.
The High Court did not accept the contention and dismissed the application.
The sole question for consideration in this appeal is whether the offence of conspiracy alleged to have been committed at Calcutta can be tried by the Court of Session at Madras.
We have held this day, in Purushottamdas Dalmia vs The State of West Bengal (1) that the Court having (1) [1962] 2S.C.R. 101.
118 jurisdiction to try the offence of criminal conspiracy can also try offences committed in pursuance of that conspiracy even if those offences were committed outside the jurisdiction of that Court, as the provisions of section 239, Criminal Procedure Code, are not controlled by the provisions of section 177, Criminal Procedure Code,which do not create an absolute prohibition against the trial of offences by a Court other than the one within whose jurisdiction the offence is committed.
On a parity of reasoning, the Court having jurisdiction to try the offences committed in pursuance of the conspiracy, can try the offence of con, ,piracy even if it was committed outside its jurisdiction.
We therefore hold that the order under appeal is correct and, accordingly, dismiss this appeal.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was committed to the Court of Session at Madras for trial under section 120 B read with section 420 of the Indian Penal Code and for committing the offence of forgery in pursuance of that conspiracy.
The Criminal conspiracy was alleged to have been committed at Calcutta, while the other offences in 117 pursuance thereof were committed at Madras.
It was urged on behalf of the appellant that the Madras Court had no jurisdiction to try the offence of criminal conspiracy.
Held, that the court having the jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed.
outside its territorial jurisdiction.
Purushottamdas Dalmia vs State of wesst Bengal; , , applied.


judgement:
Appeal No. 147 of 1958.
Appeal from the judgment and decree dated January 4, 1955, of the Allahabad High Court in Special Appeal No. 36 of 1955.
A. V. Viswanatha Sastri, C. P. Lal and G. C. Mathur, for the appellants.
K. B. Bagchi, section N. Mukherjee for P. K. Bose, for the respondent No. 1. 1961.
April 18.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by certificate raises the question of construction of a will executed by one Pyare Mohan Bannerji.
29 The facts giving rise to this appeal lie in a small compass and they are as follows: Pyare Mohan Bannerji died in October 1874 leaving behind him considerable property.
He executed a will dated February 12, 1874, making various bequests, including the payment of certain amounts to the first respondent, Uttar para Hitakari Sabha.
After his death, his widow held the property for life till her death on March 25, 1945.
Thereafter, the property went into the possession of the appellants, who are the heirs at law of the testator.
On March 17, 1950, the first respondent, Uttarpara Hitakari Sabha (hereinafter referred to as the Sabha) filed an application in the High Court of Judicature at Allahabad under section 10 of the Official Trustees Act (Act II of 1913) claiming that the late Pyare Mohan Bannerji had created a trust by his will and praying that an official trustee be appointed to be the trustee of the properties of the trust.
This was registered as Testamentary Case No. 9 of 1950.
The appellants contested the claim of the Sabha and contended, inter alia, that no trust had been created by the testator and that the appellants, being the legal heirs of the testator, were entitled to succeed to the entire pro perty left by him.
Mootham, J., as he then was, who heard the said case at the first instance, held that by his last will Pyare Mohan Bannerji created a trust in favour of the Sabha, and appointed the Official Trustee a trustee of all the properties left by Pyare Mohan Bannerji specified in Schedule B to the petition.
On appeal, a division bench of the said High Court, consisting of Malik, C. J., and Agarwala, J., agreed with Mootham, C. J., that the will created a trust in favour of the Sabha; but the learned Judges held that the Sabha was entitled only to a half share in the cash and properties pertaining to the estate of the said testator, and appointed the Official Trustee as trustee only in regard to the said share: on that basis, suitable directions were given.
The first respondent accepted that position, but the appellants, i.e., the persons claiming to be the heirs at law, preferred the present appeal against the judgment of the High Court in so far as it went against them.
30 Learned counsel for the appellants contends that under the will not a trust but only a charge was created in favour of the first respondent and, therefore, the first respondent could not invoke in aid the provisions of section 10 of the Act.
Section 10 of the Act reads: "(1) If any property is subject to a trust other than a trust which the Official Trustee is prohibited from accepting under the provisions of this Act, and there is no trustee within the local limits of the ordinary or extraordinary original civil jurisdiction of the High Court willing or capable to act in the trust, the High Court may on application make an order for the appointment of the Official Trustee by that name with his consent to be the trustee of such property.
" It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in the section.
Therefore, the only question is whether the will created a trust or a charge in favour of the first respondent.
The concepts of trust and charge are well defined.
A trust is "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner.
" Where property "of one person is made security for the payment of money to another, the latter person is said to have a charge on the property.
" The boundaries between the two concepts are well demarcated; but, more often than not, courts found considerable difficulty in construing a particular document to place it in one or other of the categories.
The same difficulty was encountered even in England.
The test laid down for marking out the one from the other by some of the authoritative text books on the subject may be useful in construing the will in question.
In Halsbury 's Laws of England, 2nd Edn.
33 (Lord Hailsham), the distinction between the two concepts has been stated thus at p. 98: "Where property is given to a person upon condition that he does a certain act or confers a 31 certain benefit on another person, the condition may constitutes a trust if it is directed to be, or must necessarily be, performed and satisfied out of the property, and consequently imposes a fiduciary obliga tion in respect of the property; but it will not be construed as a trust if this is not the case and the condition merely imposes a collateral duty.
Similarly, a devise of land upon condition of paying a sum of money or an annuity does not create a trust, though it may create a charge.
A charge does not in itself create a trust, but it may do so if it is coupled with other trusts or the context, otherwise so requires.
Conversely a trust may amount merely to a charge." Lord St. Leonards points out (Sugden on Powers, 7th Edn., p. 122) that, "What by the old law was deemed a devise upon condition, would now, perhaps, in almost every case be construed as a devise in fee upon trust, and by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by suit in equity.
" In The Commissioners of Charitable Donations and Bequests vs Wybrants (1) a testator had devised lands to trustees and their heirs upon trust to grant and convey the same to the use of John Wybrants for life 'subject nevertheless to and charged and chargeable with ' four annuities, three of which were to be paid to charitable institutions and the fourth to the poor of a parish.
In construing that provision, the Lord Chancellor said at p. 285: "It certainly is not necessary to use the word 'trust ' in order to create an express trust.
I do not intend to lay it down that every charge creates a trust, although it imposes a burden; but a charge may create a trust; depending on the nature of the charge.
In Bailey vs Ekins (2) Lord Elton said he was confident Lord Thurlow 's opinion was that a charge (of debts) is a devise of the estate, in substance and effect, pro tanto upon trust to pay the (1) (1845) 69 R.R. 278.
(2) , 323.
32 debts:and this is supported by the current of authorities.
The principle is no less powerful in the case of charities, particularly where the charity is to a fluctuating, uncertain body, like the poor of a parish.
The testator gives the estate to one, subject to this charge.
Who is to pay the annuities but the person who is liable to the burden: and this, in the case of a charity, impresses him with the character of a trustee for the charity.
By the ancient rule of equity, no one could acquire an estate, with notice of a charitable use, without being liable to it.
" The fact that a beneficial interest is also created in favour of the trustees in respect of the property subject to a trust does not make the transaction any the less a trust.
The law permits a person to bequeath his property to another subject to a trust in respect of a portion of the income in favour of a third party or a charity.
On this subject in Lewin on Trusts, it is stated at P. 133: "Upon this subject a distinction must be observed between a devise to a person for a particular purpose with no intention of conferring the beneficial interest, and a devise with the view of conferring the beneficial interest, but subject to a particular injunction.
" So too, Tudor in his book on Charities, 5th Edn., says much to the same effect at p. 52: "A charitable trust may be made to attach to a part of the property only, or it may be limited to particular payments directed to be made out of the income, as in the numerous cases where property has been given to a college, or municipal corporation, or city guild, upon trust or to the intent that certain specified charitable payments shall be made or subject to or charged with certain charitable payments.
In these cases, as will be seen, the donees as a rule take beneficially, subject only to the specified charitable payments.
" The said tests may afford a guide to ascertain whether a document creates a charge or a trust; but they are subject to the fundamental rule of construction that a trust may be created in language sufficient 33 to show the intention, and no technical words are necessary; the said intention must be gathered from a fair reading of the provisions of the document.
In the light of the foregoing discussion, let us look at the provisions of the will to ascertain the express intention of the testator.
At the time the testator executed the will he had a wife, and a nephew by name Sital Prasad Chatterji, but no children.
He had many other close relatives and dependents.
He was also charitably disposed.
He executed the will making suitable provision for his wife, nephew, relatives and for charities.
He could carry out his intention in two ways: he could bequeath his entire property to his widow and nephew subject to a fiduciary obligation imposed on them to pay certain amounts to the relatives and the charities; or, he could give the entire property to his widow and nephew subject to the payment of certain amounts charged on the said property.
The question is, what did he intend to do by this document? He did not use either the word "trust" or "charge" and, therefore, we must gather the intention only from the circumstances obtaining at the time the document was executed and the recitals found therein.
Under the will the testator made the following bequests depending upon different contingencies: Firstly, the property was given to his wife and nephew in equal shares for their lifetime subject to the payment of all his debts, annuities and charges; it is also provided therein for the sale of a standing jungle in Doomree and Sukhiae in the Gorakhpore District for the purpose of discharging the debts.
The second contingency related to the event of the testator and his nephew begetting son or sons; in that event, after the lifetime of his wife and nephew the son or sons of his nephew would get one fourth share subject to their paying one fourth of the annuities and charges, and whole of the remainder was given to his son or sons subject to their paying the remaining three fourths of the annuities and charges.
The third contingency related to the testator getting no children, but his nephew having sons; in that event, after the 34 death of his wife and nephew, the whole of his property would go to the said son or sons subject to the said annuities and charges.
In the event of the testator having children and the nephew having no son or sons, after the death of his wife and nephew, the property would go to his children subject to the payment of annuities and charges mentioned in the first portion of the will.
The last contingency contemplated was that neither the testator nor his nephew had any issue; in that event the whole of the property was given to his legal heirs subject to the payment of annuities and charges.
The quantum of bequests made in favour of the Sabha expanded from contingency to contingency.
During the lifetime of the nephew and the widow, the said Sabha got rupees fifteen per month.
In the event of either the testator or his nephew not having any children, the direction was that the said Sabha should get rupees fifty per month.
In that contingency not only the said Sabha but any other institution which took its place ' would get the said amount.
It was also mentioned that the amount should be given only to be spent in paying the school fees of indigent boys of Coterie reading in the Ooterpara School and whose parents or guardians might not have the means to pay their school fees.
On the happening of the last contingency, that is, both the testator and his nephew dying without children, his legal heirs took the property subject to the payment of half of the net income to the said Sabha or any institution which might take its place.
The said amount was directed to be paid thus: "Rupees fifty per month in payment of schooling fees of indigent boys of Ooterpara reading in the Ooterpara school and the balance, if any, as scholarships to persons resident of Ooterpara or failing such of Bengal who after passing the entrance examination of the Calcutta University may wish to learn practical agriculture or Chemistry or Mechanics.
" At present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testator 's nephew and that the Sabha is the only institution entitled to receive the 35 amounts provided for under the will.
We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons.
On the happening of that event the property passed to his legal heirs.
When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection.
The amount was payable to the Sabha or any other institution which might take its place.
Further, there was a direction that the said amount should be spent towards specified charitable purposes.
The direction was couched in an elastic form to prevent the charitable object being defeated.
The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured.
It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually.
That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bonafide purchaser for value of the property bequeathed to the legal heirs.
Learned counsel emphasized the fact that under the will the first respondent had to spend the moneys for specified objects and not the legal heirs and contended that the first respondent might be in the position of a trustee in respect of the amounts received from the legal heirs, but the legal heirs were not trustees in respect of the charity.
The question is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whether the legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes.
Having regard to the circumstances visualized at the time the last contingency happened, 36 the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than a charge.
No other question arises in this appeal.
For the foregoing reasons, we hold that the conclusion arrived at by the High Court is correct.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
One P died in 1874 leaving considerable property.
He also left a will which provided for several contingencies; the first respondent was given an interest under each contingency which was enlarged from contingency to contingency.
Under the last contingency which happened the entire property was given to the heirs with a direction that half of the income of the property be given to the first respondent.
The heirs contended that the direction merely created a charge and not a trust of half of the property.
Held, that the direction created a trust rather than a charge.
The charity was conceived to be a permanent one and it was necessary to secure regular payments to it.
The testator clearly intended that the heirs should regularly pay half the income to the first respondent so that the specified charities may be carried on perpetually.
This object could not be achieved if the direction merely created a charge and not a trust.
The Commissioners of Charitable Donations and Bequests vs Wybrants , (1845) 69 R. R. 278 and Bailey vs Ekins, 7 Ves. 319, referred to.


judgement:
iminal Appeal No. 7 of 1957.
38 Appeal from the judgment and order dated July 12, 1956, of the Calcutta High Court in Criminal Revision No. 270 of 1956.
section C. Mazumdar, for the appellants.
B. Sen, D. N. Mukherjee and P. K. Bose, for the respondent.
April 18.
The Judgment of Sinha C. J., section K. Das, K. C. Das Gupta and N. Rajagopala Ayyangar JJ.
was delivered by Das Gupta J. Mudholkar J. delivered a separate Judgment.
DAs GUPTA, J.
This appeal on a certificate granted by the High Court of Calcutta under article 134(1)(c) of the Constitution is against a judgment and order of that court, upholding the conviction of these appellants under section 73 of the Indian , for contravention of Rule 7 of the Mines Creche Rules, 1946.
Rule 3 of these rules requires the owner of every Mine to Construct there a creche in accordance with the plans prepared in conformity with the rules and previously approved by the competent authority; Rule 7 provides that the owner of the mine shall appoint "a creche in charge, who shall be a woman possessing such qualifications and training as may be approved by the competent authority.
The complaint which resulted in the conviction of the two appellants, of whom, one Goenka was the owner of the Khas Jawbad Colliery, and the other, viz., J. N. Gupta, the manager of the colliery, alleged that they had contravened Rule 7 of the Mines Creche Rules, 1946, inasmuch as no creche attendant as required by that rule had been appointed there.
After an appeal of the present appellants to the Court of Sessions was dismissed, they moved the High Court in revision, but were unsuccessful, except that their sentences were reduced.
The High Court however gave a certificate under article 134(1)(c) and on that certificate the present appeal has been filed.
The main contentions raised on behalf of the appellants are, (1) that the Mines Creche Rules, 1946, had stood repealed, along with the repeal by section 88 of the of 1952, of the Mines Act, 1923,.
under which these rules were admittedly framed and, (2) they having 39 been framed under section 30 (bb) of the Mines Act, 1923, cannot be deemed to be rules made under the , as.
the requirements of the corresponding section of the 1952 Act, viz., section 58(b) are different from what is required by section 30(bb) of the 1923 Act.
In Criminal Appeals Nos. 98 to 106 of 1959 we have decided that regulations framed under section 29 of the Mines Act, 1923, survive the repeal of that Act.
The same reasons which form the basis of that decision apply to the rules framed under section 30 of the Mines Act, 1923; and so, the first contention raised on behalf of the appellants must be rejected as unsound.
The second question arises in this way.
Clause (bb) of section 30 of the 1923 Act mentions one of the purposes for which rules may be made in these words "For requiring the maintenance in mines, wherein any women are ordinarily employed, of suitable rooms to be reserved for the use of the children under the age of 6 years belonging to such women, and for prescribing, either generally or with particular reference to 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.
" In the , section 58 contains the provision empowering the Central Government to make rules for all or any of the purposes mentioned there.
Clause (d) of this section runs thus: "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 the children under the age of six years belonging to such women, and for prescribing either generally or with particu lar reference to the number of women employed in the mines, 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;".
While it is obvious that cl.
(d) of section 58 of the 1952 Act corresponds to cl.
(bb) of section 30 of the 1923 Act, it has to be noticed that the requirement in the 1952 40 Act is wider.
For, whereas rules under section 30(bb) could require the maintenance of creches and could prescribe certain matters in regard to these, only in mines, wherein "any women are ordinarily employed", section 58(d) authorises the framing of similar rules for maintenance of creches and prescription of similar matters, in respect of all mines, "wherein any women are employed or were employed on any day of the preceding twelve months".
It is contended on behalf of the appellants that the Creche Rules, 1946, framed as they were under section 30(bb) of the 1923 Act, must be read as requiring the maintenance of creches and prescribing certain matters relating to creches, only for mines "wherein any women are ordinarily employed".
They cannot therefore be considered to be rules under section 58(d) of the 1952 Act, which have to require the maintenance of creches, and prescribe matters relating thereto, not only for mines where women are ordinarily employed, but for mines "wherein any women are employed or were employed on any day of the preceding twelve months".
It is urged that the content of the rules cannot be extended by the fact that the 1952 Act permits rules to be framed in respect of mines other than those in respect of which the rules were originally framed.
In our opinion, the argument is not without force, and it might be difficult to say that, the Mines Creche Rules framed under section 30(bb) of the 1923 Act, would apply to all mines contemplated by section 58(d) of the 1952 Act.
This difficulty would not however stand in the way of the Mines Creche Rules, 1946, operating in respect of "mines where women are ordinarily employed", as rules under the 1952 Act.
It has to be noticed that the mines in respect of which rules may be made under section 58(d) of the 1952 Act, do not exclude mines, where women are ordinarily employed; the description "mine wherein any women are ordinarily employed "include, in the first place the mines where women are ordinarily employed and include in addition to those other mines", 'wherein any women are employed or were employed on any day of the preceding twelve months ', even though the attribute of "women being ordinarily 41 employed there", is not present.
Assuming therefore as correct the argument that the content of the rules does not stand extended, the Mines Creche Rules, 1946, may still be reasonably deemed to be rules under section 58(d) of the 1952 Act, though not fully exhausting the purpose mentioned in that section.
In other words, the position is that while under section 58(d) of the 1952 Act rules may be framed in respect of (1) mines wherein women are ordinarily employed and (2) mines wherein though women are not ordinarily employed, women are employed and (3) mines, where though women are not ordinarily employed, women were employed on any day of the preceding twelve months, the Mines Creche Rules, 1946, cover a part of the ground that could be covered by rules under section 58(d) of the 1952 Act.
To the extent the provisions of section 58(d) of the 1950 Act and section 30(bb) of the earlier enactment overlap, these rules would continue in force by virtue of section 24 of the .
On an examination of the evidence adduced in the case before the Magistrate, we find that the Jawabad Mine was one, where women were ordinarily employed.
With regard to this Mine therefore the Mines Creche Rules operated as rules under the 1952 Act; and consequently, contravention of Rule 7 of the Mines Creche Rules, 1946, was in law a contravention of a rule made under the 1952 Act, within the meaning of section 73 of that Act.
On behalf of the second appellant, Gupta, who was the manager of the colliery at the relevant time, a further contention is raised.
It is pointed out that Rule 7(1) does not in terms lay any duty on the manager and it is contended that the manager having no duty to perform under Rule 7(1) of the Creche Rules; no question of his contravening the same by omission to appoint a creche in charge arises.
The answer to this question depends on the interpretation of section 18 of the , which is in these words: "18.
Duties and responsibilities of owners, agents and managers: 6 42 (1) 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.
(2) 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 he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention.
(3) It shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act".
It has to be noticed that after the first sub section states in general terms that the owner, agent and manager shall be responsible for the carrying out of "all operations carried on" in connection with the mine, in accordance with the provisions of the Act and of the regulations, rules and bye laws and of any orders made thereunder, the second sub section d eals with the question of guilt of the owner, the agent and manager for contravention of such provisions by "any person whosoever"; and the third sub section goes on to say that the owner or agent cannot escape liability merely because a manager of the mine has been appointed.
The first contention urged on behalf of the appellant is that the Mines Creche Rules have nothing to do with "operations carried on in the mines" and that section 18 deals only with the proper observance of the provisions of the Act directly touching the work carried on in the mines, for raising coal and allied activities.
In our opinion that will be an unduly narrow interpretation of the section.
The employment of female labour is obviously and admittedly connected with the raising of coal in the mine; and all conditions of employment of female labour should reasonably be held to be 43 inextricably connected with "operations carried on" in the mines.
The Mines Creche Rules are no less conditions of female labour than are the provisions of, say, section 46 of the Act.
That section prohibits the employment of women in a mine which is below ground and also employment of women in mines above ground except between 6 a.m. and 7 p.m. except to the extent there is variation of the hours of employment above ground by the Central Government in exercise of the powers given by that very section.
Section 46 as it now stands also provides that every woman shall be allowed an interval of not less than eleven hours, between the termination of employment on any day and the commencement of the next period of employment.
It cannot be seriously argued that if in any mine, women labour is employed, in breach of these provisions of section 46, operations would have been carried on in the mine in accordance with the provisions of the Act.
We see no reason why employment of female labour in a mine, without compliance with the Mines Creche Rules, should not be similarly held to amount to "carrying on operations in connection with the mine" in contravention of a rule made under the Act.
The true position in our opinion is that in order that operations carried on in connection with the mine can be said to have been conducted in accordance with the provisions of the Act, and of the regulations, rules and bye laws, and of the orders made thereunder, it is necessary not only that such provisions as are directly connected with the work of raising coal are observed, but also that provisions governing the conditions of employment of the persons engaged in the mining operations are also observed.
The Mines Creche Rules, as already pointed out undoubtedly form part of the conditions of employment, of female labour engaged in mining operations.
Observance of these rules is therefore necessary before operations can be said to have been carried on in accordance with the rules made under the Act.
In our opinion, therefore, the effect of section 18(1) is that all three the manager, the agent and the owner are responsible for the Observance of the Mines Creche Rules.
44 On behalf of the State it is urged that the result of such a responsibility being laid on all the three is that the manager is liable to penalty for a contravention of the Mines Creche Rules by the owner.
It is unnecessary however to consider whether section 18(1) by itself has this consequence; for the matter is put beyond doubt by section 18(2).
This sub section of section 18 makes all the three the owner, the agent and the manager severally liable for the breach of any regu lations by "any person whosoever".
Not only is that person who contravened the provisions guilty but each of these three the manager, the agent and the owner is also deemed to be guilty though the contravention was not by himself.
It would be illogical to say in the face of this provision that two of them should not be held liable for the contravention of the provisions within section 18(1) by the third.
But, says, the manager appellant, such a construction of section 18(2) should be avoided as it will be thorough.
by unjust.
"How am I to secure", says he, "the observance of a rule which in terms fixes a duty on the owner only to do certain things".
The argument really is that the Legislature acted improperly making the owner, the agent and the manager vicariously liable for the contravention of certain provisions by " any person whosoever".
With the wisdom of the law the Court is not however concerned.
It is pertinent to notice however that it was clearly to avoid injustice which may result from the fixation of such vicarious liability that the legislature has provided for a special defence of the owner, the agent and the manager in such cases.
Thus, if a rule or a bye law in terms lays a duty on the manager, and the owner is prosecuted he will escape punishment as soon as he shows that he did all that he could reasonably do in seeing that the manager duly performed his duty.
The effect of sub section (3) is that the mere appointment of a manager would not be a sufficient defence.
Where, as in the present case, the rule in question lays a duty in terms on the owner and the manager is prosecuted he will escape conviction on showing that he took all reasonable 45 means to prevent the contravention of the rules by the owner.
The whole purpose of section 18 read as a whole appears to be clearly this: The provisions of the Act and of the regulations, rules and bye laws or orders made thereunder may require certain things to be done or forbidding the doing of certain things with or without mentioning the person required to do the thing or forbidden to do it.
Where a person definitely indicated is required to do or forbidden to do a certain thing he is straightaway, liable to penalty for contravention of the rules.
But the owner, the agent and the manager will have the additional responsibility that even though any of them is not named as the person required or forbidden to do a thing, the owner, the manager or the agent, will be liable to punishment for the contravention of the rule, subject to this that the liability will disappear as soon as he shows that he had taken all reasonable means to prevent the contravention.
In the present case, the manager appellant has neither suggested nor proved that he took all reasonable means to prevent the contravention of the provisions of Rule 7 of the Mines Creche Rules by the owner.
He must therefore be deemed guilty of the contravention, even though the rule in terms laid no duty on him.
In support of his contention that the law does not impose any duty on the manager of the mines to carry out the provisions of the Creche Rules, Mr. Majumdar relied on a decision of the Nagpur High Court in the State Government, M. P. v Deodatta Diddi (1).
The question there was whether one Deodatta Diddi, Agent, Rawanwara Khas Colliery, could be held to have contravened rule 3(1) of the Coal Mines Pithead Bath Rules, 1946, where no pithead baths had been con structed as required by the rules.
In terms, rule 3(1) provided that the owner of every coal mine shall construct pithead baths in accordance with the plans prepared in conformity with the rules and approved by the competent authority.
It was held by the High (1) A.I. R. (1956) Nag.
46 Court that it was the owner alone who could be deemed to have contravened the rule and that the Agent even assuming that he was the representative of the owner in respect of the management of the colliery had no duty to perform in this matter.
We notice however that the attention of the learned Judges was not drawn to the provisions of section 18 of the Indian .
This decision is therefore of no assistance.
The question as regards the liability of any agent or manager of the mine for the construction of pithead baths or of mine creches appears to have been raised before the Calcutta High Court in G. D. Bhattar vs The State (1).
In that ease both the learned Judges considered section 18 of the , but came to different conclusions, one of them holding that under section 18 the manager would be liable for carrying out the provisions of these rules while the other learned Judge took a different view.
In our opinion, the former view is correct.
All the contentions raised on behalf of the appellants therefore fail.
The appeal is accordingly dismissed.
MUDHOLKAR, J.
While I agree to the order proposed with respect to Mohan Lal Goenka, I am of the opinion that the conviction of the co appellant Gupta who was a manager of the mines cannot be sustained.
It has throughout been accepted that under r. 7(1) of the Mines Creche Rules, 1946, as they stood on the date of the alleged contravention the responsibility for appointing a creche in charge was on the owner of the mine only.
It was, therefore, contended on behalf of Gupta that he cannot be held liable for the contravention of the rule made by the owner Mohan Lal Goenka.
Reliance was, however, placed on behalf of the State in the courts below as well as before us on the provisions of section 18 of the (35 of 1952).
That section reads thus: "(1) 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 (1) A.I.R. (1957) Cal.
47 regulations, rules and bye laws and of any orders made thereunder.
(2) 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 he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention: Provided that the owner or agent shall not be so deemed if he proves (a) that he was not in the habit of taking, and did not in respect of the matter in question take, any part in the management of the mines; and (b) that he had made all the financial and other provisions necessary to enable the manager to carry out his duties; and (c) that the offence was committed without his knowledge, consent or connivance.
(3) Save as hereinbefore provided, it shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act.
" It was urged that this section holds the owner, the agent as well as the manager liable for the contravention of any provision of the Act or of a regulation, rule or bye law made by any person unless the owner, agent or manager can bring his case within any of the exceptions set out in sub section (2) of section 18.
It is pointed out that Gupta has not relied on any exception and, therefore, his conviction is correct in law.
Section 18 is in Chapter IV of the which deals with "Mining operations" and "Management of mines".
This chapter thus deals with two topics.
Section 18, however, deals with only one of these two topics, that is, "Mining operations".
This would clearly follow from the language of sub section
(1) or section 18.
The duties and responsibilities of owners, agents and managers with which this section deals are with respect to "all operations carried on in connection there with", i.e., the mine.
Therefore, the inference must be that this section deals with duties etc., in connection with mining 48 operations only.
The chapter itself has drawn a distinction between "Mining operations" and "Management of mines".
Employment of labour, providing amenities for them and allied matters would pertain mainly to "management" and not to "Mining operations".
The expression "Mining operations" occurring in an Act dealing with mines should be accorded that meaning which it has in the mining industry.
In the industry a mining operation is understood to mean an opera tion undertaken for the purpose of winning minerals and cannot, as suggested by my learned brother, be given an extended meaning so as to embrace within it matters such as employment of labour, providing amenities to labour etc., even though that labour is utilised or required for the purpose of carrying on mining operations.
I can see no justification for giving an extended meaning to the expression "Mining operations" and none was suggested at the bar.
Upon this view it would follow that the manager of a mine cannot be made vicariously liable for the omission of the owner, to carry out his duty under r. 7(1) of the Mines Creche Rules.
There is an additional reason for coming to the same conclusion.
Upon the language of section 18(2) the manager of a mine cannot be held liable for the contravention by the owner of any provision of the Act, regulation, rule or bye law unless that contravention was with respect to a matter in ' regard to which the exception could be available.
To put it a little differently, a manager cannot be held vicariously liable for a contravention unless there was on his part also an omission to do something which was in his power to do.
Sub section (2) of section 18 would absolve a manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provi.
sions to prevent such contravention".
This, therefore, implies that by resorting to certain steps he can escape liability.
The first part of the quotation is clearly in.
applicable to the present case.
The second part would apply provided the manager had the power to enforce the performance of a particular duty by the owner.
49 There is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duties under sub r.
(1) of r. 7.
Since that is the position it must be held that the manager is not liable for the contravention by the owner of his duty under sub r.
(1) of r. 7 of the Mines Creche Rules.
That the construction I am placing on this provision is the proper one would appear from the following illustration.
Section 17 of the Act provides that the owner or an agent of every mine shall appoint a person having the prescribed qualification as a manager of the mine.
Section 57(c) provides for the framing of regulations prescribing the qualifications for the manager of mines.
I will assume that regulations have been made thereunder prescribing the qualifications for managers.
If a person is appointed as a manager of a mine even though he does not possess the prescribed qualification would he be held vicariously liable for the contravention by the owner or the agent of the duties placed upon the owner and agent by a Regulation and by section 17? I do not think that there would be any difficulty in saying that he would not be liable for the simple, reason that it was not within his power to enforce the compliance by the owner of the duty cast upon him by the regulations.
I would, therefore, allow the appeal of Gupta and set aside the sentence of conviction passed upon him.
ORDER.
In accordance with the opinion of the majority the appeal, on behalf of both the appellants, is dismissed.
Appeal dismissed.

summary:
The appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening the provisions of the Mines Creche Rules, 1946, under which the owner of every mine employing women was required to construct creches for the use of the women employees and also to appoint a "Creche in charge" for the supervision of the creches.
Their contentions mainly were (1) that the Mines Creche Rules, 1946 stood repealed as the Mines Act, 1923 itself under which those rules were framed were repealed by the Mines Act of 1952 and (2) that the said rules having been framed under section 30(bb) of the Mines Act, 1923, could not be deemed to be rules made under the corresponding section 58(d) of the 1952 Act the requirements of which were different from those of section 30(bb) of the 1923 Act.
On behalf of the manager a further contention was raised that he was not liable for the Contravention of r. 7(1) under which he 37 had no duty to perform and no question of his omission to appoint a creche in charge arose.
Held, per Sinha, C. J., section K. Das, Das Gupta and Ayyangar, JJ., that the regulations framed tinder section 30 of the Mines Act, 1923, survived the repeal of that Act.
Criminal Appeals Nos.
go to 106 of 1959, followed.
The Mines Creche Rules, 1946, framed under section 30(bb) of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of section 58(d) of the Mines Act of 1952, and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of section 24 of the and operate as rules under the 1952 Act.
Contravention of r. 7 of the Mines Creche Rules, 1946, was in law contravention of a rule under section 58(d) of the 1952 Act within the meaning of section 73 of the Act.
Under section 18(1) of the , the manager, the agent and the owner are responsible for observance of the Mines Creche Rules which form part of the conditions of employment of female labour engaged in "mining operations" and under subS. (2) of section 18 each of them shall be deemed to be guilty of the contravention of any rule by "any person whosoever", unless he proves that he took all reasonable means to prevent such contravention.
The manager in the present case not having proved that he took all reasonable means to prevent the contravention of r. 7 by the owner even though the rule in terms laid no duty on him, must be deemed to be guilty of the contravention.
State Government, M. P. vs Deodatta Diddi, A.I.R. (1956) Nag. 71, held inapplicable.
G. D. Bhattar vs State, A.I.R. (1957) Cal.
483, the view making the manager liable to be approved.
Per Mudholkar, J.
In the mining industry a "mining operation", as contemplated under section 18 of the , is understood to mean an operation undertaken for the purpose of mining minerals and cannot be extended to mean "management of mines" such as employment of labour and providing amenities to employees etc.
The manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his own duty under r. 7(1) of the Mines Creche Rules.
Sub section
(2) of section 18 would also absolve the manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention".
But there is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duty under sub r.
(1) of r. 7 of the Mines Creche Rules and the manager was therefore not liable for the breach of that rule.