Chairman, Board of Mining Examination
& ANR Vs. Ramjee [1977] INSC 42 (3 February 1977)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1977 AIR 965 1977 SCR (2) 904 1977
SCC (2) 256
CITATOR INFO:
RF 1981 SC 873 (72) RF 1987 SC 593 (24)
ACT:
Coal Mines Regulations--Regulation
26--Interpretation of.
Rules of natural justice---Concept of
reasonably opportunity cannot be fitted into a rigid mould--Need for a strict
liability---Code for subterranean occupations.
HEADNOTE:
Under regulation 26(1) if, in the opinion of
the Regional Inspector, a person to whom an Overman's, Sirdar's,
Engine-driver's, Shot-firer's, or Gastesting Certificate has been granted is
incompetent or is guilty of negligence or misconduct in the performance of his
duties, he may, after giving the person an opportunity to give a written
explanation, suspend his certificate by an order in writing. U/r 26(2) he shall
within a week of such suspension report the fact to the Board together with all
connected papers including the explanation, if any received from the person concerned.
U/r 26(3) the Board may, after such inquiry as it thinks fit, either confirm or
modify or reduce the period of suspension of the certificate, or cancel the
certificate.
The respondent, a shot fired in a colliery,
violated the provisions of the Coal Mines Regulations by entrusting his risky,
technical work to an unauthorised person which resulted in an accident injuring
one Bhadu. The Regional Inspector u/r 26(1) gave him an opportunity for an
explanation in writing and after considering the materials before him forwarded
the papers to the Chairman of the Board together with a recommendation for
cancellation of the certificate under Regulation 26(3). The Board bestowed its
judgment on the materials gathered which included the delinquent's admission,
and cancelled the shot-firing certificate. The High Court allowed the writ
petition assailing the orders of cancellation of the licence and held: (1) The
Board had no jurisdiction since the Regional Inspector did not suspend the
certificate first before reporting (2) The Regional Inspector had no power to
recommend but only to report and so the Board's order influenced by the
recommendation was bad in law and (iii) the Board should have given a fresh
opportunity to be heard before cancellation of the certificate and its absence
violated natural justice, voiding the order.
Accepting the Court,
HELD: (1 ) Law is meant to serve the living
and does not beat its abstract wings in the jural void. Its functional fulfillment
as 'social engineering' depends on its scrutinized response to situation,
subject-matter and the complex of realities which require ordered control. A
holistic understanding is simple justice to the meaning of all legislations.
Fragmentary grasp of rules can, n misfire or even backfire, as in this case.
[906 H, 907 A] (2) The judicial key to construction is the composite perception
of the daha and the dahi of the provision. To be literal in meaning is to see
the skin and miss the soul of the Regulation. [909 A-B] (3) Over-jurdicialisation
can be subversive of the justice of the law. To invalidate the Board's order
because the Regional. Inspector did not suspend the certificate is a fallacy.
The Board's power is independent and is ignited by 905 the report, which exists
in this case, of the Regional Inspector. There is an overall duty of oversight
vested in the board to enforce observance of rules of safety. [909 D] (4) To
set aside the order on the ground that the Regional Inspector had no power to
recommend but only to suspend and report that his recommendation influenced the
Board's order is to enthrone a processual nicety do dethrone plain justice.
Suspension, on an enquiry, predicates a prior prima-facie finding of guilt and
to make that known to the Board implicitly conveys a recommendation. The difference
between suspension plus report and recommendatory report is little more than
between Tweedledum and Tweedledee Recommendations are not binding but are
merely raw materials for consideration. Where there is no surrender. of judgment
by the Board to the recommending Regional Inspector, there is no contravention
of the cannons of natural justice.
[909 E-F, 910D-E] (5) Natural justice is no
unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is
shown by the decision-maker to the man proceeded against, the form features and
the fundamentals of such essential processual propriety being conditioned by
the facts and circumstances of each situation. no breach of natural justice can
be complained of. Unnatural expansion of natural justice.
without reference to the administrative
realities and other factors of a given case, can be exasperating.
Courts cannot look at law in the abstract or
natural justice as a mere artifact. Nor can the), fit into a rigid mould the
concept of reasonable opportunity. If the totality of circumstances satisfies
the Court that the party visited with gelverse order has not suffered from
denial of reasonable opportunity the Court will decline to be punctilious or
fanatical as if the rules of natural justice were sacred scriptures. In the
instant case, the Board cannot be anathematised as condemning the man without
being heard. The respondent has, in the form of an appeal against the report of
the Regional Inspector, sent his explanation to the Chairman of the Board. He
has thus been heard dad compliance with Regulation 26 in the circumstances is
complete.
[909G-H, 910 A-G] Tereaesai's case [1970] 1
S.C.R 251; Management of DTU [1973] 2 S.C.R. 114: Tandon's case [1974] 4 SCC
374 referred to.
Observations: Sensitive occupations demand
stern juristic principles to reach at scapegraces, high and low, and not mere
long drawn-out commissions whose verdicts often prove dilatory 'shelter' for
the men in whom Parliament his entrusted plenary management. Any sensitive
jurisprudence of colliery management must make it cardinal to pt nish the Board
vicariously for any major violations and dreadful disasters, on macro considerations
of responsibility to the community. The Board must quit, as a legal pendry, if
any dreadful deviation. deficiency, default or negligence anywhere in the mine
occurs. This is a good case for new principles of liability, based on wider
rules of sociological jurisprudence to tighten up the law of omission and
commission at the highest levels. Responsibility and penalty must be the
concomitants of highly-paid power vested in the top-brass. Any deviance on the
part of these high powered authorities must be visited with tortious or
criminal liabilities. [908 F-H, 907 D-FI (The Court emphasised the need for
evolving a code of strict liability calling to utmost care not only the crowd
of workers and others but the few shall care or quit so that subterranean occupations
necessary for the nation are made as risk-proof as technology and human
vigilance permit).
CIVIl, APPELLATE JURISDICTION: Civil Appeal
No. 2294 1968.
Appeal from the Judgment and Order dated
25-9-1967 of the Madhya Pradesh High Court in Misc. Petition No. 595/66.
L.N. Sinha, Sol. Genl, B. Datta and Girish
Chandra for the Appellants.
906 S.K. Gambhir, amicus curiae, for the
Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.--If the jurisprudence of remedies were understood and applied
from the perspective of social efficaciousness, the problem raised in this
appeal would not have ended the erroneous way it did in the High Court.
Judges must never forget that every law has a
social purpose and engineering process without appreciating which justice to
the law cannot be done. Here, the socio-legal situation we are faced with is a
colliery, an explosive, an accident, luckily not lethal, caused by violation of
a regulation and consequential cancellation of the certificate of the
delinquent shot-firer, eventually quashed by the High Court, for processual
solecisms, by a writ of certiorari.
We may state at the outset that the learned
Solicitor General agreed that the appellant, the Board of Mining Examination,
would be satisfied if the law, wrongly laid down by the High Court, were set
aside and declared a right and he was not insisting on the formal reversal of
the order affecting the respondent (who is unrepresented before us).
We proceed on that footing.
The few necessary facts may be narrated to
bring up the legal issue in its real setting.
The respondent was a shot-firer in a colliery
and being a risky, technical job, had to possess a certificate for it.
He handed over an explosive to an unskilled
hand who fired it, an accident occurred and one Bhadu, employed in the mine,
was injured. The Regional Inspector of Mines immediately enquired into the
cause of the accident and found, on the respondent's virtual admission,
qualified by some prevarication, that the shots were fired not by himself but
by a cutter, an unauthorised person for shot-firing to whom the respondent had
wrongfully entrusted the work.
Thereby he contravened the relevant Coal
Mines Regulations.
The Regional Inspector gave him an
opportunity for explanation and, after considering the materials before him,
forwarded the papers to the Chairman of the Board together with a
recommendation for cancellation of the certificate under Reg. 26. The Board
bestowed its judgment on the materials gathered by the Regional Inspector at
the enquiry, which included the delinquent's admission, and cancelled the
shot-firing certificate. The said cancellation was shot down by a writ of the
Court on the ground of violation of Reg.
Was Regulation 26, in the context and set.
tin. g of the Mines Act, misinterpreted by the High Court at all? This is the
short question canvassed before .us. We permit ourselves a few observations
Which serve as perspective-setters. Law is meant to serve the living and does
not beat its abstract wings in the jural void. Its functional fulfillment as
social engineering depends or its sensitized response to situation,
subject-matter and the complex of realities which require 907 ordered control.
A holistic understanding is simple justice to the meaning of all legislations.
Fragmentary grasp of rules can misfire or even backfire, as in this case. It is
a notorious fact that collieries--Indian collieries, both before and after
nationalisation-are strategic sources of the nation's fuel and, operationally,
areas of tragic human hazards. We need coal, we want miners to bring it from
the bowels of the earth. The dangerous technology is not yet so perfect in
India as to ensure risk-free extraction. And, after many lives have been lost
by the neglect of operatives or supervisors or supine bosses, follows the
scenario of tears and torn-down homes, a little monetary compensation, a
flutter in Parliament, a long drawn-out Commission, a routine Report about
lapses and recipes and the little man's life-or death lot continuing to receive
callous consideration at the hands of the law, law-matter, law-enforcer---this
sombre colliery disaster sequence must educate and inform the jurisprudence of
high-risk operations. In short, the Mines Act (and Regulations) must receive
its judicial construction in the total setting, teleclogically approached, not
fragmentarily dissected. The relevant regulation is only a tiny inset in the
larger justice of the statute.
The Mines Act has a scheme designed to avoid
accidents and ensure safety. A system of certificates, supervisions and
penalties is part of this scheme. The broad responsibility for due enforcement
of the Act rests on the Board and the relevant regulation casts liabilities on
the lesser men.
Any sensitive jurisprudence of colliery
management must make it cardinal to punish the Board vicariously for any major
violations and dreadful disasters, on macro considerations of responsibility to
the community. The Board must quit, as a legal penalty, if any dreadful deviation,
deficiency, default or negligence anywhere in the mine occurs. In the present
case a microbreach is being punished, but when major mishaps occur the top
echelons, on account of inadequacies in colliery codes, escape and make others
the scapegoats.
Although, in this ease, only injury, not
death, has occurred, there is a good case for new principles of liability,
based on wider rules of sociological jurisprudence, to tighten up the law of
omission and commission, at the highest levels. Responsibility and penalty must
be the concomitants of highly-paid power vested in the top-brass.
Back to the pedestrian statement of facts.
The respondent's curious contention, accepted by the learned Judge, is best
understood after reading Regulation 26:
"26. Suspension of an Overman's, Sirdar's,
EngineDriver's, shot-firer's, or Gas-testing Certificate-(1) If, in the opinion
of the Regionl Inspector, a person to whom an Overman's, Sirdar's,
Engine-driver's, Shot-firer's, or Gas-testing Certificate has been granted ii
incompetent or is guilty of negligence or misconduct in the performance of his
duties, the Regional Inspector may, after giving the person an opportunity to
give a written explanation, suspend his certificate by an order in writing.
10--206SC1/77 908 (2) Where the Regional
Inspector has suspended a certificate under sub-regulation (1) he shall within
a week of such suspension report the fact to the Board together with all
connected papers including the explanation if any received from the person
concerned.
(3) The Board may, after such inquiry as it
thinks fit, either confirm or modify or reduce the period of suspension of the
certificate, or cancel the certificate." The plain purpose of the
regulation is to pre-empt further harm by suspending the certificate of the
shot-firer 'if in the opinion of the Regional Inspector' he 'is incompetent or
is guilty of negligence or misconduct in the performance of his duties... after
giving the person an opportunity to give a written explanation'. This
suspension is itself a punishment liable to confirmation, modification,
reduction of the period of suspension or, by way of enhancement, cancellation
of the certificate by the Board. Before taking such action by way of cessation,
as it were, the Board gets a report from the Regional Inspector of the fact of
suspension and makes 'such enquiry as it thinks fit'. In the present case, the
Board had an explanation (styled an appeal) from the respondent, and also a
recommendation by the Regional Inspector for cancellation of the certificate.
The latter had not suspended the delinquent
but had merely hold an enquiry, reached the prima facie view of guilt and
instead of suspension at once, only made a recommendation to the Board for
cancellation.
The Regional Inspector has, among his
statutory duties, the supervision of the observance of the safety rules and the
holding of enquiries (see sections 7 & 14). He has to report to the Board
on breaches of regulations and conditions. The Board, in its turn, has the
over-all charge of the safe management of the mine. Derelictions and violations
must reach its vigilant eye and be visited with prompt action.
Jurisprudentially speaking, there is need to cast an obligation on the Board
and the higher inspectorate not to be negligent, indifferent or in society in
the discharge of its overall responsibility which includes anticipation of
likely mishaps and introduction of the latest measures to promote safety for
the men working in the dark depths at the mercy of the wicked mood of Yama. Any
deviance on the part of these high-powered authorities must be visited with
tortious or criminal liability. Such is the price which high position must pay
for the consequences of calamitous failures. Sensitive occupations demand stern
juristic principles to reach at scapegraces, high and low, and not mere
long-grown-out commissions whose verdicts often prove dilatory 'shelter' for
the-men-in whom Parliament has entrusted plenary management. We emphasize this
matter to awaken the law-makers to evolve a code of strict liability calling to
utmost care not only the crowd of workers and others but the few who shall care
or quit so that subterranean occupations necessary for the nation are made as
risk proof as technology and human vigilance permit..
909 Unfortunately, the High Court surrendered
to narrowness of interpretation of Regulation 26 by accepting the submission of
the respondent. To be literal in meaning is to see the skin and miss the soul
of the Regulation. The judicial key to construction is the composite perception
of the deha and the dehi of the provision. So viewed, Reg. 26 is easy of
comprehension.
The High Court held that the order of
cancellation was illegal for a few reasons which strike us as untenable.
The argument runs thus. Without first
suspending the certificate, the Regional Inspector cannot report to the Board
and without such a report following upon a suspension the latter cannot take
seisin of the matter. Since the Regional Inspector did not suspend the
respondent, the Board had no jurisdiction. Secondly, the Regional Inspector had
no power to recommend, but only to report and so the Board's order, influenced
by the recommendation, was bad in law.
Thirdly, the Board should have given a fresh
opportunity to be heard before cancellation of the certificate and its absence
in the present case violated natural justice, voiding the order.
All the three points serve to warn the courts
how over-judicialisation can be subversive of the justice of the law. Now, how
can the cancellation order by the Board be bad for failure to suspend the
certificate by the Regional Inspector ? The Board's power is independent and is
ignited by the report of the Regional Inspector. Such a report exists here.
There is an overall duty of over sight vested in the Board to enforce
observance of rules of safety. To invalidate the Board's order because the
Regional Inspector did not suspend the certificate is a fallacy.
Now to the next point. The vice that vitiates
the Board's order is stated to be the recommendation contained in the Regional
Inspector's report. Had he suspended and reported, he would have been in order.
But suspension, on an enquiry, predicates a prior prima facie finding of guilt
and to make that known to the Board implicity conveys a recommendation. The
difference between suspension plus report and recommendatory report is little
more than between Tweedledum and Tweedledee. And to set aside an order on such
a ground is to enthrone a processual nicety to dethrone plain justice.
The last violation regarded as a lethal
objection is that Board did not enquire of the respondent, independently of the
one done by the Regional Inspector. Assuming it to be necessary, here the
respondent has, in the form of an appeal against the report of the Regional
Inspector, sent his explanation to the Chairman of the Board. He has thus been
heard and compliance with Reg. 26, in the circumstances, is complete. Natural justice.
is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness
is shown by the decision-maker to the man proceeded against, the form, features
and the fundamentals of such essential processual propriety being conditioned
by the facts and circumstances of each situation, no breach of natural justice
can be complained of. 'Unnatural expansion 910 of natural justice, without
reference to the administrative realities and other factors of a given case,
can be exasperating. We can neither be finical nor fanatical but should be
flexible yet firm in this jurisdiction. No man shall be hit below the
belt--that is the conscience of the matter.
Shri Gambir, who appeared as amicus curiae
and industriously helped the Court by citing several decisions bearing on
natural justice, could not convince us to reach a contrary conclusion. It is
true that in the context of Art.
311 of the Constitution this Court has
interpreted the quality and amplitude of the opportunity to be extended to an
affected public servant. Certainly we agree with 'the principles expounded therein.
But then we cannot look at law in the abstract or natural justice as a mere
artifact.
Nor can we fit into a rigid mould the concept
of reasonable opportunity. Shri Gambhir cited before us the decisions in
Teredesai(1); Management of DTU(2) and Tandon(3); and one or two other rulings.
The ratio therein hardly militates against the realism which must inform
reasonable opportunity' or the rule against bias. If the authority which takes
the final decision acts mechanically and without applying its own mind, the
order may be bad, but if the decision-making body, after fair and independent
consideration, reaches a conclusion which tallies with the recommendations of
the subordinate authority which held the preliminary enquiry, there is no error
in law. Recommendations are not binding but are merely raw material for
consideration. Where there is no surrender of judgment by the Board to the
recommending Regional Inspector, there is no contravention of the canons"
of natural justice. We agree with Shri Gambhir that the adjudicating agency
must indicate in the order, at least briefly why it takes the decision it does
unless the circumstances are so clear that the concluding or decretal part of
the order speaks for itself even regarding the reasons which have led to it. It
is desirable also to communicate the report of the Inquiry Officer, including
that part which relates to the recommendation in the matter of punishment, so
that the representation of the delinquent may be pointed and meaningful.
These general observations must be tested on
the concrete facts of each case and every miniscule violation does not spell
illegality. If the totality of circumstances satisfies the Court that the party
visited with adverse order has not suffered from denial of reasonable
opportunity the Court will decline to be punctilious or fanatical as if the
rules of natural justice were sacred scriptures.
We are satisfied that the order of the Board
cannot be anathematised as condemning the man without being heard.
The appeal, on the point of law, must be
allowed but, in the light of the concession made, as stated earlier, we leave
the formal order of the High Court undisturbed. No costs.
S.R. High Court orders maintained.
(1) [1970] 1 S.C.R. 251.
(2) [1973] 2. S.C.R. 114.
(3) [1974] 4 S.C.C. 374.
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