S.S. Garewal v. Messrs. Bhowra Kankanee Colleries

WANCHOO, J.-This is an appeal by special WanchooJ . leave-against the judgment of the Patna High Court. The brief facts necessary for present purposes a.re these. There is a colliery in the district of Dhanbad known as Arlabad colliery of which the respondents are the owners. On February 5, 1955, there was an accident in the • colliery as a result of which 52 persons lost their lives. In consequence, the Government of India ordered an inquiry into the disaster under s. 24 of the Mines Act, No. 35 of 1962, (hereinafter referred to as the Act). The court of inquiry contained of Mr. Justice B. P. Jamuar and two persons were appointed to assist him as assessors. The court of inquiry submitted its report on September 26, 1955, which was published on December 17, 1955. A question was raised before the court of inquiry whether the management should be ordered to pay the expenses of the inquiry as. provided by r. 22 of the Mines Rules, 1955, (hereinafter referred to as the Rules), which lays down that "if a court of

•78 SUPREME OOURT REPORTS [1963)

1912 inquiry finds that the accident was due to any care-

lessness or negligenoe oa the part of the manage-S.S. G•reu.el •• ment the court may direct the owners of the mine K.,,._,,• Jt/ 6 • ,B'°"U• to pay all or any part of the expenses of the

Collni•• inquiry in such manner and within such time as the

court may specify. The court of inquiry found iu its report that the accident was due to negligence on the part of the management and therefore order-ed the owners to pay the expenses of tho inquiry. The amount of the expenses to be paid were how- ..... ever not quantified in the report of September 26, 1955. I On July 27,1956, the Chief Inspector of Mines requested Mr. Justice Jamuar that tho amount of expenses should be specified and the manner in which it should be paid and the time within which the payment might be made, might be fixed. Notices were issued to tho parties concerned there-after and on September 7, 1956, Mr. Justice Jamua.r ordered the owners to pay Rs. 17, 778/2/- as expenses of the inquiry within t.wo months of tho date of the order. Thereupon a petition was filed under Art. 226 of the Constitution by the respondents challenging the order of September • 7, 1956. It was conceded therein that r. 22 of the

Rules conferred power on the court of inquiry to diroClt the owner to pay all or any part of the expenses of inquiry within such time as the court may spec>ify. But the order passed in this case was challenged on three grounds, firstly that the court of inquiry btlcame f1trrntus officio aftC'r it had eubmitwd its report on September 26, 1955 and therefore Mr. Justice Jamuar had no power left to pa88 the order of September 7, 1959. It was also contended that if the order of Sept.ember 7, 1956, be treated as a review of the order of Septem-ber 26, l!Jfi6 it would still be void, as there was no power of review in t.bo eourt of inquiry. · Le.stly, it was urged that when the order of September 7, 1956, was passed, the assessors were not present 1962 and were not associated with the inquiry and there· fore Mr. Justice Jamuar could not· pass the order S. S. (J41ewal •• alone. All these three contention• w.ere aooepted M/s. Bhowra by the High Court and it allowed the writ petition Kenlanee Colleries adding that it was not interfering with the order Wane.'1011 J. relating to expenses made by Mr. Justice Jamuar in his report of September 26, 1955. It is ·this order of the High Court, which is being challenged before us.

The main contention on behalf of the respon-dents is that as the court of inquiry became functus I., after the report of SP-ptember 26, 1955, it

officio was not open to Mr. Justice Jamuar to quantify the expenses by the order of September 7, 1956:

Before we deal .with this main argument we should "i like to dispose of briefly the other two submissions

made before the High Court which were also accepted by it. The first of these contentions is "'i that the order of September 7, 1957 is an order of

review and as there is no power of review granted i to the court of inquiry. Mr. Justice J amuar had no

power to pass that order. It is enough to say that the order of September 7, 1956, cannot lie called an order of review. We have already pointed out that .t the order that the owners should pay · the expenses

of the inquiry was already incorporated- ·in the report of September 26, 1955, ·though it was not quantified. All that the order of September i-7, 1956, has done is to quantify the amount

of expenses. Therefore, this order cannot be treat-ed as a review or any variation of the order passed in the report of September 26, 1955. It would have been a different matter if no order as to the· payment of expenses had been made in the report of September 26, 1955 .. In that case it may have ·-'1; . been possible for the respondents to argue that the

later order was an order reviewing the failure to pass an orclor q.s to expenses io. the .report. But

480 SUPREME OOURT REPORTS [1963]

111(1! when the report itself contained the order for pay-S. S. G"''wtl •• ment of expenses, the Inter order is merely a quanti-M/1. BhotDN fiCl\tion of that. order and would be on a par with KrJn4-aiv1 CPil«its what happeriH every day in courts which pBBS

decrees with oosts. When giving judgment, courts Ir r4nclioo J. do not quantify costs in the judgment. This quan-

tification is done later in the office of ~he court and if there is any dispute about it the court settles that dispute and then includes the cost in the decree or final order. What has happened in the present case is something similar and the order of Mr. Justice Jamuar dated Septrmber 7, 1956, cannot in the circumstances be called an order· of review which he had no power to p1188. The contention therefore under this head must fail.

Turning now to the other contention, namely, that the order of September 7, I9r>6, was bad be-cause the two assessors were not associated with Mr .• Justice Jamuar wheu the order WM passed, it is .,uough to say that under s. 24 (I) the inquiry is held hy a compd,ent person appointed for the pur-pose and assessor are appointed to assist tho pnson appointed to hold the inquiry. Even so, the person who holdll the inquiry is the person appointed to do Hu and the assessors need not in our opinion be aSMoci .. 100 wiLl1 him in all orders whiob are in the nature of mini8terial orders and quantification of expenses must be treated as an or !er of a minis-t,..,rial nature. It is not disputed that tlie asseBl!ors were as•nciatod with Mr. J usticti .Jamuar when the report of Septem her 26, l9ii5, wll.ll made and it was ordered that the owners should pay th" expenses of the ;nquiry. That was in 1.ur opinion the order of th•• court of inquiry M to payment of expenses and in that tho asaossors were associated. The later ord•,r wo.~ mere quantific,.tion of that and it was in our opinion not nccePMry that th•· !\HRC8~0r• sht.ultl hb IMll!ocia.t.od a.t thu.t blago u.luo, f1,r t.h,, order of quantification is more or less of a. ministeri-19112 al nature and w&s made by the pel'!lon who was appointed to hnld the inquiry. In the circumstan-S. S. •• GM<Wal ces we are of opinion that the fac~ that the order M/•.Bhouwa of Septe-r1ber 7, 1956, was by Mr. Justice Kankdflle c.lleritlJ p~ssedonly Ja.muar and the assessors were not associated with .T, wa~ehar him would not make it invalid for this was merely carrying out the order in the report of September 26, :>., 1956 by which the owners were ordered to pay the

expenses of the inquiry and in that order the asses-sors were associated .. The contention on this head l also must therefore fail.

This brings us to the main contention raised on behalf of the respondents, namely, that the court of inquiry became functus officio when the report was made on September 26, 1955, and there-after it was not open to Mr. Justice Jamuar to p<iss any order quantifying the expenses. Now it is not in dispute that there was no time fixed within which the report had to be made by the cqurt of inqniry.

Therefore, it cannot be said that the period for which the court of inquiry was appointed came necessarily to an end on September 26, 1955, and so the court of inquiry became functus officio on that dat~. If the court of inquiry when it submit-ted its report in this case on September 26, 1955 had ordered the owners to pA.y the expenses of the inquiry and had added further that expenses would be quantified later by the person holding the inquiry it could not possibly be argued that it was not open to the person appointed to hold the inquiry to quantify the expenses later. But it is said that in thid case though the court of inquiry ordered that the expenses should be paid by the owners it did not say in the report that the expenses to be paid would be quantified later by the person appointed to hold the inquiry. ·rhat is undoubtedly so. But we ha.ve to see what the order in the report of September 26, 1955 by which the owners were

482 SUPREME OOURT REPORTS [1963)

ordered to pa.y the expenses of the inquiry, neces-sarily implies. It is obvious thi.t the intention of S.8.Gan1Ml tne court of inquiry was that the owners should pa.y

Y.

Mfs. Rhowra the expenses. Generally it may not be poSBible to Kakantt c.Jlnits quantify the expenses incurred in the inquiry a.t

w .... 1too .1. that !ltage and a quantification of expenses would

ordinarily take place after the report is submitted. It seems to us therefore clear that when a. court of inquiry orders that the ownen1 shall pay the expen-ses such an order necessa.rily carries with it the implication that the person appointed to hold the inquiry would later quantify the expenses after necessary materials a.re put before him. This is exactly what happened in thie oa.se. After the order of the court of inquiry that the owners should pay the expenses was known to the Chief Inspector of Mines, he applied that the expenses should be quantified and Mr. Justice Ja.mua.r passed the order doing so. The order therefore that was passed on September 7, 1956, was merely a. consequential order to what the court of inquiry had decided on :September 26, Hl55 a.nd in our view the earlier order of September 26, 1955, had neoessarily impli-cit in it that the person appointed to hold the inquiry would quantify the expenses as soon as the materials for that purpose a.re placed before him. It was not nece888ry therefore to aa.y in so many words in the report of September 26, 1955, that the expenses would be quantified by the person appoin-ted to hold the inquiry later on mR teria\s being placed before him. If this were not to be implicit in the order that was ·p&88ed on September 26, 1955, that order would be completely useleBS for it does not specify the a.mount which could be recovered e.s expenses. We a.re therefore of opinion tba.t when such a.n order is pe.ssed in a report of a court of inquiry it nece868rily ca.rries with it the imp\io'!.tion that thA person appointed to hold the inquiry would quantify the expeD86s later on materials being

2 s.c.R. ; SUPREME OOUR.T REPORTS 483

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placed before him, as · otherwise such an order 1962 would be rendered completely nugatory. There-S.S. GarWJal fore, tmless we find anything in s; 24 which pre· v. vents such an order of quantification being passed M/s. Bhowa Kankanu Colleries later .. by the person appointed to hold tht> inquiry, we see no reason why such a qu:mtification should Wa11choo J. not be made later. We have also pointed out that the order appointing the court of inquiry in this ::J.. case did not fix a date by which the report was to

be made. Therefore, in these circumstances we are of opinion that It was open to Mr. Justice Jamuar to quantify the expenses and that it was not neces-sary that at that stage the assessors should be associated with him. We are therefore of opinion that it cannot be said that the person appointed to hold the inquiry was f unctus officio in this case and could not quantify the expenses in accordance with the direction contained in the report of September 26, 1955. The appeal is hereby allowed and the 'i order of the High Court is set aside. The High

Court has allowed no costs in its order; in the circumstances we think that the parties should bear their own costs of this Court.

Appeal all.owe</, •