Mohan Lal Goenka and Another v. the State of West Bengal

Judgment

36 [1962] r96r the fluctuating amount the donees had to pay, the Ab . -h - permanent nature of the charity and the declared inas Chandra . of h J!anneri mten ion t e testator to pay as much as half the 1 net income towards the carrying out of the said charitu11"'pa.a able object, we hold that the legal heirs took, the prollitakari Sabha perty of the testator subject to a trust rather than a chavge. Subba Rao /. 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. I961 April I8. Appeal dismissed. MOHAN LAL GOENKA AND ANOTHER THE STATE OF WEST BENGAL (B. P. SINHA, 0. J., s. K. DAS, K. 0. DAS GUPTA, N. RAJAGOPALA AYYANGAR and J. R. MuDHOLKAR, JJ.) Mining-Regulations providing Crechcs for women employees in mines-Breach of-Liability of owner, agent and manager- I ndian Mines Act, x923 (4 of x923), cl. (bb) s.

30--Jndion Mines Act, r952, (35 of r952), els. (r)(z) s. r8, cl. (d) s. 58--Mincs Creche Rules, r946, sub-r. (I), r. 7-Gcneral Clauses Act, r897 (Act X of r897), s, 24. The appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening tbe provisions of the l\lines Creche Rules, 1946, under which the onwer of every mine employing women was required to const1 uct 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 Their contentions mainly were (1) that the Mines Creche Rules, 1946 stood repealed as the Mines Act, 1923 itself under which those rules were framed were repealed hy the Mines Act of 1952 and (2) that the said rules having been framed under s. 3o(bb) of the Mines Act, 1923, could not be deemed to be rules made under the corresponding s. 58(d) of the 1952 Act the requirements of which were different .from those of s. 3o(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 t 37 had no duty to perform and no question of his omission to appoint a creche-in-charge arose. Held, per Sinha, C. J., S. K. Das, Das Gupta and Ayyangar, JJ., that the regulations framed under s. 30 of the Mines Act, r923, survived the repeal of that Act. Criminal Appeals Nos. 90 to ro6 of r959, followed. The Mines Creche Rules, 1946, framed under s. 3o(bb) of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of s. 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 s. 24 of the General Clauses Act 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 s. 58(d) of the 1952 Act within the meaning of s. 73 of the Act. Under s.

18(1) of the Mines Act, 1952, 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 s. rS each of them shall be deemed to be guilty of the contfavention of any rule by "any pers0n 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. v. Deodatta Diddi, A.LR. (1956) Nag. 71, held inapplicable. c;. D. Bhattar v. State, A.1.R. (19:ii) Cal. 483, the view making the manager liable to be approved. Per Mudholkar, J. - In the mining industry a "mining operation'', as contemplated under s.

18 of the Mines Act, 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 OYi'ner to carry out his own duty 1inder r. 7(1) of the Mines Creche Rules. Sub-s. (2) of s. 18 would also absolve the manager from vicariuus 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. (r) of r. 7 of the Mines C:re<;he Rules and the manager was therefore not liable for the breach of that rule. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 7 of 1957, Mohan Lal Goenka State of West Bengal Mohan Lal Goenka Slate of West Bengal Das Gupta J. 38 [1962]

Appeal from the judgment and order dated July 12, 1956, of the Calcutta High Court in Criminal Revision No. 270 of 1956. S. C. Mazumdar, for the appellants. B. Sen, D. N. M·ukherjee and P. K. Bose, for the respondent. 1961. April 18. The Judgment of Sinha C. J., S. 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 Art. 134(l)(c) of the Constitution is against a judgment and order of that court, upholding the convict.ion of these appellants under s. 73 of the Indian Mines Act, 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 contra. vened 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 Art. 134(l)(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 s.

88 of the Mines Act of 1952, of the Mines Act, 1923, under which these rules were admittedly framed and, (2) they having I 39 bet'ln framed under s. 30 (bb) of the Mines Act, 1923, qannot be deemed to be rules made under the Mines Ad, 1952, as the requirements of .the corresponding secti9n of the 1952 Act, viz., s. 58(b) are different from what is required bys. 30{bb) of the 1923 Act. In Criminal Appeals Nos. 98 to 106of1959 we have decided that regulations framed under s. 29 of the Mines Act, 1923, survive the repeal of ,that Act. The SMne reasons which form the basis of that decision apply to the rules framed under .s. '30 of the Mines Ac't, 1923; and so, the first contention raised on behalf of the appellants must be'iejected as unsound. The second question arises in this way. Clause (bb) of s.

30 of the '1923 Act mentions one of the purposes for which rules may-be made in these words ''For requiring the maintenance fn mines, wherein any women are ordip.arily employed, of suitable rooms to be reserved for the use of the childre~ under the age of 6 years· belonging to such women, and for prescrib, ing, either generally or with particular reference to number of wonien 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 Mineb Act, 1952, 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 empioyed 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 particular 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 s. 58 of the 1952 Act corresponds to cl. (bb) of s. 30 of the' 1923 Act, it has to be noticed that the requirement in the 1952 I96I Mohan Lal Goenkp State of West Bengal Das Gupta ]. Mohan Lal Goenka Slate of !Vest Bengal Das Gupla .J. 40 SUPR~¥E COURT .REEORTS :[1962]

Act is wider, For, whe~Jl(l.S ruie!l .un!}er s •. ll.Q(l;>l:i) could require the maintei;i,anoe of ~r\lches at)d:,~ould-.prescril?,e. certain matters ~n. regard. tq. :these, '.,only ia mi,ne&,::- wherein "any women- ·a.re ercfip.!ljrily ·,amplo.yeJ:l"; s. 58(d) n,µthorises th,e fram_ing of similar rules ,for ma.in,tenance of .creches and prescription of .simila.r. matters, in respect <;>f ,&11-,mil}t;S, ''..whe~ei);I any W?:rpep. are employed or were. !)mployed on any :aay ·ofth.Ei preceding twelve-mon~hs". It is contended on behal£ of the appellants that the Creche Rules, 1946, framed as they were under, s. 30(bb) of ~be 1923 Act; must -be read ::is requiring .the mainten~nca .of crechl(s and prescribiIJg certain matters re1ating to creches, only for mines "wherein any women are ordinarily employed". They cannpt therefore be considered to b.e rules under s.

58(a) of the 1952 Act, which have to requir.e the maintenance of creches, .and prescribe matters relating thereto, not only :for mines where women ate ordl_narily employ,ed, J:mt for mines"'wherein any women are·empJpyed or were employed on any day o! the preceding twelve m.onths". It is urged that the cqntent of the rules cannot be exte)'lded by the fact that the 1952 Act permit& rules to be frame\! in -respect of mines other th;in those in respect·of whicli the rules were ,originally frnrned. In our opinion, the argum'int is not without force, and it might be.difficult to say tba~ the Mines Creche Rules framed .under s. 30(bb) of the 1923 4.ct, would apply to all mines contemplated qy s. 58(d) of the 1952 Act. This difficulty would n,9t ho~eyer stal}d in the way of the Mines Creche Rules, 1946, op,erating in respect of "mines where women arJl ordinarily employed", as rules under the 1952 Act.

It has to be noticed that 'the mines in respect of w hicb rules may be made under s. ,58(d) of the 1~5.2 Act, do not ~xclude mines, where wqmen are ,Qrdinarily employ\ld; the description "mine wherein any women are qrdinarHy employed "ir~clude, in the first place the mines where women are ordinarily employed and include in addition to ·those other mines", 'wherein any women, are ·einployed or were .employed on any day of the preceding twelve months', even though the attribute of"women being ordinarily I 2 S.C.R. SUP~EME COURT ;:tEPORTS 41 employed there", is not present. Assuming therefore as correct tbe ;i.rgument tha~ the.con.tent of the rules doe~ ncit stand extended,. the M.ines Creche Rules, 1946; may still be reasonaply deemed 'to be rules under s.- 58(d) of the 1952 Act, though not fully exhausting the purpose mentioned in that section .. In other word!'l, the position is that wh\le under s.

58(d) ·of the 1952 Act rules may be 'framed in respect of (1) mines wherein women are qrdinarily eµiployed and (2) mines wherein though womeµ (Ire not ordinarily employed, woµien are emp1oyed. a,nd (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 s. 58(d) of the 1952 Act. To the extent the provisions of s. 58(d) of.the 1950 Act and s. 30(bb) of the earlier enactment overlap, these rules would continue in force by virtue of s . .24 of the· General Clauses Act. On an examination of the evidence adduced in the case before the Magistrate, we find th;i.t the Jawabad Mine was one, where women were ordinarily emplpyed.

With regard to this Mine thei;e'fore 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 s. 73.of that Act. On behalf of the second appellant, Gupta, who was the manager of the colliery at the riilevant time, a further contention is raised. It is pointed out that Rule 7(1) .does not in. term1> lay any duty on the manager and it is conten<:led 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 iuterpret.ation of s. 18 of the Mines Act, 1952, which is in these words:- "18. Dut_ies and responsibilities of owners, agents and managers:- 6 111 ohan Lal Goenka State of West Bengal pas Gupta ]. Mohan Lal• Goe11ka Slate of We;t Bengal Das Gupta ]. 42 [1962] (1)

The owner, a.gent 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 mana,ger 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_ t~e carrying out of "all operations carried on" in connection with t)le 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 deals 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.sectiop goes on to say that the owner or agent cannot escape liability merely hecause 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 s. 18 deals only with the proper ooservance 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 C/l,rriecl on" in tho mines. The Mines Creche Itules are no less conditions of female labom than are the provisions of, say, s. 46 of tho Act.

That section prohibits the employment of women in a mine which is helu11· ground and also employment of women in mines above ground except between 6 a.m. and 7 p.m. c1xcept to the extent there is variation of tho hours of employment aboYe ground by the Central Governmeut in exercise of the powers given by that very section. Section 46 ns it now stands also provid8:l that every woman shall be allowed an interval of not less than eleven hours, between the termination of employment on any clay and the commencement of the next period of employment. It cannot be seriously argued that if in any mine, women la hour is employed, in breach of these provisions of s. 46, operations would have been carried on in the mine in accordance with the provisions of the Act.

W'e see no reason why tlmploymcnt o.f female labour in a mine, without compliance with the l\Hnes Oreche 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 ottr opinion is that in order that operations carried on in connection with the mine can be said to have been conducted in accorclance 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 Oreche Rules, as alre~,dy pointed out undoubtedly form part of the conditions of employment of female labour engaged in mining oparatiom'.

Obsenra11ce of these rules ia th0refore necessary before operation:; c1tn be said to have been carried on in nccordancc with the rnlos made under tlte Act. ln our opinion, therefore, the effect of s. 18(1) is that all three-the manager, the 1tgent and the owner-are responsiblP, for the observance of the J\Iines Creche Hnles. .ll oha n l_ al Gotnlu>; St11te of iVesf De11gal ,itohan I.al r; c·ni/;-a S'taf, u.f Das Gi'f'a 7. 44 [1962] On behalf of the Rtate it is urged that the result of such a responsibility being laid on all the three is that the mana.ger is liable to penalty for a contravention of the Mines Creche Rufos by the owner. It is unnecessary however to consider whether s. 18(1) by itself has this oonsequence; for the matter is put beyond doll b• by s. 18(2). This suh-section of s. 18 makes all the three-the 0'\1 ner, the agent and the manager- -severally liable for the breach of any regulat.ions by "any person whosoever".

Not only is that person who coutravened the provisions guilty but each of these three--the manager, t.he agent arnl the owner ---is also deemed to he guilty though the con1.ravention wflS not by himsPlf. It would be illogical to say in the face of this prov[siou that two of them should not be held liable for the contnw"ntion of the provisions within s. 18( I) by the thirtl . .But, says, the manager-appellant, ,;uch a construction of s.18(2) should be avoided as it will be thoroughly unjust. "How am I to senure", says he, "the observance of a rule which in terms fixes a duty on the owner only to do certain things''. The argument rc.J,lly is that the Legislature acted improperly making the owner, the agent and tl1e 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 pertin011t, to notice however that it was clearly to a void injustice which may result from the fixation of such vicarious liability that the legislature has provided for a special defence of the owner, tho agent and the manager in such cases. Thus, if a mle 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. \Vhere, 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 t,he rules by the owner. The whole purpose of s.

18 read as a whole appears to be clearly this:-Tlw provisions of the Act and of the regulations, rules and bye-laws or orders made thereunde.r may require certain things to be done or forbidding the doing of certain things with or without mentioning tho person required to do the thing or forbidden to do it. vVhuee a pcrnon definitely indicated is required lo do or forbidden to do a certain thing he is straight.away liable t-0 penalty for contravention of the rules. But the owner, the agent and the manager \\ill h··· ve the additional responsibility that even thougJ, any of them is not named as the perwn required or fo. 0idden 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 prev-0nt 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 Minos 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. l\fajumdar relied on a decision of the Nagpur High Court in the State Government, M. P. v Deodatta Didd·i (1). The question there was whether one Deodatta Diddi, Agent, Rawanwara Khas Colliery, could be hold to have contravened rule 3(1) of the Coal Mines Pithead Il'1th Rules, 1946, where no pithead baths had been constructed 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. 7x. Ji1ohan Lal (;otnl'a State of IVtst Bengal ])as Guffa ]. }.f ohan Lai Goc;rtl1a Siate of Das Guj'llt J. i\fudholkar ], 46 [1962) Court Urnt it was the owner alone who could be deemed to have contravened the rulo and that the Agent even a,Rsumiug that he was the representatiYe of the owner in reHpect of the management of the colliery had no duty to perform i11 this matter. \Ve notice however that the attention of the learned Judges was not drawn to the provisions of s. 18 of the Indian Mines Act. 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 appearn to have been raised before the Calcntca High Court in G. D. Bhattar v. The State (1 ).

In that case both the learned Judges considered s. 18 of the Mines Act, 1952, but came to different conclusio11s, one of them holding that under s. 18 the managf'r would be iiable 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,,-\Vhi1" I ag1n (i the ordPr proposed with rcHpect to JVJ.,h:1n ],a] Gondm, I am of the opinion that the conviction of thl· co-8ppellant Gupta who was a manager of l;ie rninc1 Cf11rnot b~ su8taincd. It has throughout bee11 aeceptcd that under r. 7(1) of the ~1iues Creche Rules, 1946, as Otey stood on the date of the alleged contravention the responsibility for appointfog 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 s. 18 of the Mines Act, 1952 (35 of 1952). That section reads thus: "(I) The owner, agent and manager of every mine shall be responsible that all operations carried 011 in connection therewith are conduoted in accordance with the provisiuns of thiH Act and of the (t) A,l.R. (195/) Cal. 483. 47 regulations, rules and bye-laws and of any orders made thereunder. (2) In the event of '1ny contravention of any oiwh provisions by any perHon whosoever, the nwner, 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 reasona.hle means, by publishing and to the best of his power pnforcing 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, a.nd 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 manage1· 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 a.ny of the exceptions set out in sub-s. (2) of s. 18.

It is pointed out that Gupta has not relied on any exeeption and, therefore, his conviction is correct in law. Section 18 is in Chapter IV of the Mines Act which deals with "Mining operations" and "Management of mines". This chn,pter 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-s. (1) of s. 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 therewith", i.e., the mine. Therefore, the inference must be that this section deals with duties etc., in connection with mining z96z }.} ,Jhan Lal Gnnd:a Starr uf iFes-t Bn1gal JI 11dl.ol111u J. ;.11ohan Lal Goenka State of JVest Bengal Afudholkar ]. 48 [1962] 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 "l\Iiniug 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 meau an operation 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 moaning to the expression "Mining operations" and none was suggested at the bar. Upon this view it would follow that the manager of a mine cn.nnot be made vicariously liable for tho omission of the owner to carry out his duty under r. 7(1) of the Mines Creche Rules.

There is an additional rei1son for coming to the same conclusion. Upon the language of s. 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 s. 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 provisions 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 inapplicable 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. 2 S.C.R. SUPREME COURT REPOHTS 4!-J Them is nothing in the Act or the rulr8 which "Illpowers tho manager to enforce the performance b.) the OWlh>r of his duties under sub-r. (l) of r. 7. Since that is tho position it must be held that Llw m<Laag<'r is not liablo fur the contrnv1,nLiun by the owner· uf his duty uncler sub-1·. (1) of r. 7 of the :\lines Crech<· H11lcs. That the construction I an pl»cing on th is prov isinn is (.he pruper one would a1Jp<'<>r from the following illustration. Section 17 of the Act provides that thP owner or an agent of every mine shall appoint a person having the prescribed q ualitication as a manager of the mine.

Section 57(c) prnvides for the framing of regulatiorrn prescribing the qualifications for t.he manager , 1f mines. l will assume that regulations h;we !wen made thereunder prescribing the qualifinations for managern. lf a person is appointed as a nrn1wger of a mine even thongh 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 npon the owner and agent by a Hegulation and by s. 17? I do not think that there would be any difficulty in saying that he would not be !iv.hie for the simple reason that it was not, within hii! powel' to enforce the compliance by the owner of the duty cast upon him by the regulatio1rn. l would, therefore, al:ow the appeal of Gupta aud set aside the sentence of conviction passed upon him. OHDER. In accordance with the opinion of the mttjority the appeal, on behttlf of both the appellants, is dismissed. Appeal di8missed. / ·_,'Jr .1loiia11 Lal v