CHAIRMAN, BOARD OF MINING EXAMINATION & ANOTHER versus RAMJEE

CHAIRMAN, BOARD OF MINING EXAMINATION & ANOTHER

RAM JEE

February 3, 1977

[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]

Coal Mines Regulations-Regulation 26-lnterpretation of.

Rules of natural justice-Concept of reasonably opportunity cannot be fitted into rigid 111011/d-Need for strict liability-Code for subterranean occupa· lions.

Under regulation 26(1) if, in the opm1on of the Regional Inspector, person to whom an Overman's, Sirdar's, Engine-driver's, Shot-firer's, or Gas-testing Certificate bas been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, he may, after giving th<' person an opportunity to give written expla·nation, suspend his certificate by an order in writing. U/r 26(2) he shall within week of such suspension report the fact to the Board together with all connected papen; 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 suspen-sion of the certificate, or cancel the certificate.

The respondent, shot-firer in 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 recommendation for cancellatll)n ef. the certificate under Regulation 26(3 ). The Board bestowed its judgment on !he materials gathered which included the delinquent's admission, and cancelled the shot-firing certificate. · The High Court allowed the writ petition assai.ling the said 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 recomme.n_d 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 fresh opportunity to be hcanl before cancellation of the certificate and its absence violated nau:.ral 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 fulfilment a~ 'social engineering' depends on its scrutinized response to situation, subject-matter and the complex of realities which require ordered control. holistic understanding is simple justice to the meaning of all legislations. F1:agmentary grasp of rules ca•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 dalli of the provision. To be literal in meaning is to see the skin and miss the soul of the Regulation. [909 A-BJ

(3) Over-judicialisation 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 fallacy.· Tbe Board's vower is independent and is ignited by

law. To

!he 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 mies of safety. [909 DJ

( <:) To set aside the order on ihe ground that the Regional Inspector had no power to recommend but only to S!'Spend and report that his recommenda· lion influenced the Board's order is to enthrone processual nicety do dcihrone plain justice. Suspension, on a-n enquiry, predicates prior prima-facie finding of guilt and to make that known to the Board implicitly conveys recommen-dation. The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee. Recommenda-tions are not binding but are merely raw materials for consideration. Where there is no surrender of judgement by the Board to the recommending Regional Inspector, there is no contravention of the cannons of natural justice. [909 E-F, 9100-E]

( 5) Natural justice is no unruly horse, no lurking land mine, nor judicial cure-all. If fairness is shown by the decision-maker to the ma11 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 caa be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of given case, can be exasperating.

Courts cannot look at law in the ab~tract or natural justice as mere artifact. Nor can they fit into rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party v.isited wilh 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. 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 and compliance with Regulation 26 in the circumstances is complete. [909 G-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 f!9741 4 SCC 374 referred to.

Observations ; Sensitive occupations demand stern juristic principles to reach at sc&pegraces, high and low, and not mere long drawn-out commissions whose verdicts often prove dilatory 'shelter' for the men in whom Parliament has entrusted plenary management. Any sensitive jurisprudence of colliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro-consideratiom·-of responsi-bility to the community. The Board must quit, as legal penalty, if any dreadful deviation. deficiency, default or negligence anywhere in the mine occurs. This is good case for new principles of liability, based on wider rules of sociological jurisprudence to tighten up the law of omission and com-mission at the highest levels. Responsibility and penalty must be the con-comitants 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 criminnl liabilities. f908 F-H. 907 D-Fl

(The Court emohasised the need for evolving 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 subterranea·n occupations necessary for the nation are made as risk-proof a-s technology and human vigilance pefmit).

CrvIL APPELLATE JURISDICTION : Civil Appeal No. 2294 of 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. Gen!, B. Datta and Girish Chandra for the Appellants.

[1977] 2 s.c.R.

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 under-stood 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 Jaw has social purpose and engineering process without appreciat-ing which justice to the law cannot be done. Here, the socio-legal situation we are faced with is colliery, an explosive, an accident, luckily not lcth~l, caused by viobtion of regulation and consequen-tial cancellation of the certificate of the delinquent shot-firer, even-tually quashed by the High Court, for processual solecisms, by 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, wrong1y laid down by the High Court .. were set aside and declared right and he was not insisting on the formal reversal of the order affecting the respondent (who 1s 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 shot-firer in colliery and being risky, technical job, had to possess certificate for it. He handed ever an explosive to an unskilled h~nd who fired it, an accident occurred and one Bhadu, employed in the mine, was injµred. 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 cutter, an unauthorised person for shot-firing to whom the res-pondent 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 mater-ials before him, forwarded the papers to the Chairman of the Board together 1with 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, whicb included the delinquent's admission, and cancelled the shot-firing certificate. The said cancellation was shot down by writ of the Court on the ground of violation of Reg. 26. Was Regulation 26, in the context and setting of the Mines Act, misinterpreted by the High. Court at all? This is the short question canvassed before us. W<e permit ourselves few observations which II serve as perspective-setters. Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends or its sensitized response to situation, subject-matter and the complex of realities which require

<irdered control. holistic ,understanding is simple justice to th~ meaniqg,.of all ;legi,slatfo!ls: :f~agffien~ary grasp of rules can misfire or even backfire,'· as in this case. It is· - notorious fact that <:ollieiieis--:fodian collieries, both before . and after ' nationalisation-. are strategic sources' of the natiqn's ~e( itP,d, oper,ati\}nally, areas of tragic human hazards. We need coal, we want miners to bring it from the ~O\V.els of the earth. The da1rnerous te".hnology is not yet ·so perfect in India as to ensure risk-free extraction. And, after many lives· have been lq_st.by tge _qeglect of operatives or .supervisors or supine bosses, follows the scenario of tears and tom-down· homes, little monetary compensation, flutter in Parliament, long-drawn-out Commission, routine Report about lapses and recipes and the little man's .life-or death lot continuing to receive callous ~onsi<leration at the hands of the law, law-matter, law-enforcer-this sombre colliery disaster .sequence must educate and inform the juris-pru_dence of hlgh-rislq operations. In short, the M1nes Act (and Regulations) i'!iust receive its judicial construction in the total setting, teleclogically approached, not fragmentarily dissected. The relevant regulation is only tiny inset in the farger justice of the statute.

The Mines Act has scheme designed to avoid accidents and .ensure safety. system of certificates, supervisions and penalties is part of this scheme. The broad responsibility for due enforce-ment of the Act rests on the Board and the relevant regulation casts liabilities on' the lesser men. Any sensitive jurisprudence of colliery maI)agement must make it cardinal to .punish the Board yicariously for any major violations and dreadful disasters, on macro-considera-tions of responsibility to the community. The Board must quit; as , ,legal penalty, if any dreadful deviation, deficiency, default or negl_i-gence anywhere in the mine occurs. In the present case micro-breach is peii:g .punished, but when major mishaps occur the top echelons, on account of inadequacies in colliery codes, escape and make others the scapego,ats. Although, in this case, only injury, not death, has occurred, there is good case for new principles ot . !~ability, 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 v.ested in the top-brass. ·

.Back to .th~ pe<lestrjan statement of, facts. The r~spondent's {:_unous contention, accepted by the learned Judge, is best understood after rea~i~g Regulation 26 :

"26. Suspension of an Overman's, Sirdar's, Engine-

. Driver's, shot-firer's, or Gas-testing Cert·ificate-

(l) If, .in ,the opinion of the Regional Inspector, person to whom an Overman's, . Sirdar's, Engine-driver's, ~hot-firer'_s, or Gas-~esting Certificate has been granted is mcompetent or is guilty of negligence or misconduct in the .p~r~ormance of.his duties, the Regional Inspector may, after ~vmg the person an opportunity to give written explana-tion, suspend his certificate by an order in writing. 10-206SCT /77

(2) Where the Regional Inspector has suspended certificate under sub-regulation (1) he shall writhin 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 suspem;ion 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 P'~rson an opportunity to give written explanation'. This suspension is itself punishment liable to confirmation, modification, reduction of the period of suspension or, by way of enhancement, cancellation ot the certificate by the Board. Before taking such action by way ot cessation, as it were, the Board gets 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 re~pondent, and also recommendation by the Regional Inspector for cancellation of the certificate. The latter had not suspended the delinquent but had merely held an enquiry, reached the prima facie view .of guilt and and instead of suspension at once, only made 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 o:E the mine. Derelic-tions and violations must reach its vigilant eye! and be viiited with prompt action. Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negli-gent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely miihaps 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 authoriti1!s 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 1:ommissions 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 code of strict liability calling to utmost care not only the crowd of workers an:! 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.Unfortunat~ly, the High Court surren?ered to· n.ar~owness ot interpretation of Regulation 26 by acceptmg the subm1ss1on of t?e 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 th~ 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 few reasons which strike us as untenable. The argument nms thus. Without first suspending the certificate, the Regional Inspector cannot report to the Board and without such report following upon 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 recomml!nd, but only to report and so the Board's order, influenced by the recommendation, was bad in law. Thirdly, the lloard should have given 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-judicialisa-tion 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 inde-pendent and is ignited by the report of the Regional Inspector. Such report exists here. There is an overall duty of over sight vested iR 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 fallacy. Now to the next point. The vice that vitiates the Board's order is stated to be the recommendation contained in the Regional Inspec-tor'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 imphcity conveys 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 , ground is to enthrone processual nicety to dethrone plain justice.

The last violation regarded as lethal objection is that Board did not enquire of the respondent, independently of the one Jone by the Regional Inspector. Assmning 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 Chainnan of the Board. He has thus been heard and compfonce with Reg. 26, in the circumstances, is complete. Natural justice is no unruly horse, no lurking land mine, nor 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 exp~nsion

of natural justice, without reference to the administrative realities and other factors of 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 cons-cience 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 contrary conclusion. It is true that in the context of Art. 311 of the Constitution this Court :~as inter-preted 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 iustice as mere artifact. Nor can we fit into rig;id mould . the concept of reasonable opportunity. Shri Gambhir cited before us the decisions in Teredesai('); Management of DTU([2 ]) and Tandon([3]); and one or two other rulings. The ratio theNin hardly militates against the realism which must inform 'reasonable opportu-nity' or the rule against bias. If the authority which take:; th1! 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 conclusion vJhich tallies with the recommendations of the subordinate authority whch 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 conclud-ing or decretal part of the order speaks for ito,elf even regarding the reasons which have led to it. It is desiratie also to ccmmunicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the repre-8entation 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 spe:tl 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 anathe-matised as condemning the man without being heard.

The appeal, on the point of law, must be allowed but, in the light of the conc€ssion made, as stated earlier, we leave the formal order of the High Court undisturbed. No costs. S.R. High Court orders maintained.

<ll [1970J 1 s.c.R. 2s1. (2) [1973] 2. s.c.R. 114. (3) [1974] 4 s.c.c. 374.