Mines: Managers, Exclusions, Young Persons and Rescue Services

Some words this chapter uses

Owner and agent are the persons through whom a mine is held and run; manager is the person appointed under section 67 to run it. Sole manager means one manager for the mine, not several.

Prospecting is excavation to find out whether minerals are there, as distinct from working them for use or sale.

Open cast working is mining from the surface rather than underground.

Kankar, murrum, laterite, shingle, road metal, fuller's earth (marl, chalk) are the minor minerals named in section 68(1)(b). Moulding and glass sand, kaolin, china clay, white clay and fire clay are expressly not within that exclusion.

Apprentice takes its meaning from section 2(a) of the Apprentices Act 1961, by the Explanation to section 70.

Conclusive proof means proof which the law does not allow to be contradicted.

Section 67: the sole manager

Section 67(1). Save as may be otherwise prescribed, every mine shall be under a sole manager who shall have such qualifications as may be prescribed by the Central Government, and the owner or agent of every mine shall appoint a person having those qualifications to be the manager.

The proviso. The owner or agent may appoint himself as manager if he possesses the prescribed qualifications.

Section 67(2). Subject to any instructions given to him by or on behalf of the owner or agent, the manager shall be responsible for the overall management, control, supervision and direction of the mine, and all such instructions when given by the owner or agent shall be confirmed in writing forthwith.

Section 67(3). Except in case of an emergency, the owner or agent, or anyone on his behalf, shall not give, otherwise than through the manager, instructions affecting the fulfilment of his statutory duties, to a person employed in the mine who is responsible to the manager.

Take the three sub-sections as one scheme, because they are.

Sub-section (1) makes one person answerable, and makes the qualification a Central matter, so a State cannot lower it.

Sub-section (2) does two jobs. It gives the manager the whole running of the mine, and it makes the owner's instructions traceable: they may be given, but they must be confirmed in writing forthwith. After an accident the record shows who told whom to do what.

Sub-section (3) protects the chain of command. The owner may not go round the manager to a subordinate on anything touching that subordinate's statutory duties, except in an emergency. The mischief is obvious: an owner who tells a shift overman directly to keep production going, leaving the manager who is answerable in law unaware of it.

The proviso to sub-section (1) is worth a sentence in an answer. The owner may be his own manager, but only if he holds the prescribed qualifications. Ownership does not confer competence, and the Code says so.

Section 68: the mines that are outside most of the Code

Section 68(1). The provisions of this Code, except those contained in sections 35, 38, 40, 41 and 44, shall not apply to:

• (a) any mine or part of one in which excavation is being made for prospecting purposes only and not for obtaining minerals for use or sale, subject to conditions prescribed by the Central Government relating to the number of employees, depth of excavation and other matters;
• (b) any mine engaged in the extraction of kankar, murrum, laterite, boulder, gravel, shingle, ordinary sand (excluding moulding and glass sand and other mineral sands), ordinary clay (excluding kaolin, china clay, white clay or fire clay), building stone, slate, road metal, earth, fuller's earth (marl, chalk) and limestone, subject to conditions prescribed by the Central Government relating to workings, open cast workings and explosives.

Learn what survives the exclusion, because that is the examinable part. Even for an excluded mine, five sections continue to apply:

So the exclusion removes the standards and keeps the inspection, together with the one provision about women in dangerous operations. A small limestone quarry need not comply with the hours or welfare Chapters, but the Inspector-cum-Facilitator may still enter it, still has his special mines powers, must still be afforded facilities, and a surveyor may still measure it.

Section 68(2). Notwithstanding sub-section (1), the Central Government may declare that the provisions of this Code shall apply to such mine or part of one as it prescribes. So the exclusion can be lifted for a particular mine.

Section 68(3), and this is the sub-section that catches people out. If at any time any of the conditions specified in clause (a) or (b) is not fulfilled, the provisions of the Code not set out in sub-section (1) shall become immediately applicable, and it is the duty of the employer of the mine to inform the prescribed authority of that non fulfilment, in the manner and within the time prescribed by the Central Government.

Three things follow. The exclusion is conditional and self cancelling: nobody has to withdraw it. The re-application is immediate, not from a notification. And the employer must report his own loss of the exemption.

Section 69: the manager's emergency power over hours

Section 69(1). In case of:

• an emergency involving serious risk to the safety of the mine or of the persons employed in it; or
• an accident, whether actual or apprehended; or
• any act of God; or
• any urgent work to be done to machinery, plant or equipment of the mine as a result of a breakdown,

the manager may permit persons to be employed in contravention of sections 25 and 30 and section 31(1) on such work as may be necessary to protect the safety of the mine or of the persons employed in it. The power is expressed to be subject to section 38(1)(B), the Inspector-cum-Facilitator's special powers in respect of mines, and to be exercised in accordance with section 25 as to exemption from hours of work above and below ground, and section 26 as to notification of hours of work and the weekly day of rest for mines.

The proviso. In the case of urgent work to machinery, plant or equipment, the manager may act although the production of mineral would thereby be incidentally affected, but the action shall not exceed the limits necessary for the purpose of avoiding serious interference with the ordinary working of the mine.

Section 69(2). Every case in which the manager has acted shall be recorded together with the circumstances, and a report shall be made to the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator.

What the section permits is narrow and should be stated narrowly. The manager may break the hours provisions, that is section 25 (hours of work), section 30 (double employment) and section 31(1) (the notice of periods of work). He may do it only for work necessary to protect safety. And the proviso makes clear that saving production is not the purpose: production may be incidentally affected, and the departure must not exceed what avoiding serious interference requires.

Sub-section (2) is the safeguard. The power is exercised by a private person on the spot, so the Code requires a contemporaneous record with reasons and a report to the inspectorate.

Section 70: no person below eighteen

Section 70(1). No person below eighteen years of age shall be allowed to work in any mine or part thereof.

Section 70(2). Notwithstanding that, apprentices and other trainees, not below sixteen years of age, may be allowed to work, under proper supervision, in a mine or part thereof by the manager referred to in section 67.

The proviso. In the case of trainees other than apprentices, the prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator shall be obtained before they are allowed to work.

Section 70(3). The Central Government may prescribe provisions for the medical examination of an apprentice, other trainee and employee in the mine, to ensure their fitness to work, and to prevent persons below sixteen working as apprentice or trainee and those who are not adults working as such employee.

The Explanation. Apprentice means an apprentice as defined in section 2(a) of the Apprentices Act 1961.

Four points to hold, and the second is the one students get wrong.

The general rule is eighteen, higher than the Code's own definition of an adult in most contexts and far above the fourteen year line for a child.

The relaxation is sixteen, and it is not a relaxation for work. It is for apprentices and other trainees, and only under proper supervision, permitted by the manager.

Apprentices and other trainees are treated differently. An apprentice under the Apprentices Act 1961 may be allowed by the manager. Any other trainee needs the prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator. The distinction exists because an apprentice's training is already regulated by another statute and any other trainee's is not.

Sub-section (3) closes the gap by medicine as well as by law, allowing rules for examination to keep those under sixteen out of training and non adults out of employment.

Sections 71 to 73: exemptions, rescue, and what is a mine

Section 71, exemption to certain persons. The Central Government may make rules exempting certain persons or categories of persons employed in mines from section 25(1) (hours of work), section 26(1) (weekly holiday), section 30 (double employment) and section 31(1) (notice of periods of work). Note that this is exemption by rule for a class, as distinct from the manager's emergency power under section 69, which is for an occasion.

Section 72, rescue services and training. The Central Government may prescribe vocational training and rescue and recovery services for persons employed in a mine.

That single sentence carries the whole of mine rescue, and the word is may. It is the thinnest provision in this Part measured against what it covers: a rescue organisation, its stations, its equipment, its trained brigades and the drills that keep them ready are all left to be prescribed.

Section 73, whether a place is part of a mine. If a question arises whether any excavation, working or premises in or adjacent to and belonging to a mine, on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is carried on, is a mine within the meaning of the Code, the Central Government may decide the question, and a certificate signed by a Secretary to the Government of India in the Ministry of Labour and Employment shall be conclusive proof thereof.

Two features are worth naming. The question is one of jurisdiction: it decides whether the mine provisions apply at all. And the answer is made conclusive proof, so the certificate cannot be contradicted by evidence, which is a strong provision and a fair target for criticism.

A worked example

Deccan Minerals holds a limestone quarry and, four kilometres away, a small excavation being sunk to see whether there is bauxite. At the quarry it employs ninety people. It has appointed as manager of the quarry a graduate engineer holding the qualification prescribed by the Central Government.

Must the quarry have a manager? Yes. Section 67(1) requires every mine to be under a sole manager with the prescribed qualifications, appointed by the owner or agent.

The owner wants to manage it himself. He may, under the proviso to section 67(1), if he possesses the prescribed qualifications.

The owner telephones the shift overman and tells him to keep the face working past the notified hours. That contravenes section 67(3): except in an emergency, the owner may not give instructions affecting the fulfilment of statutory duties otherwise than through the manager to a person responsible to the manager. Any instruction he does give the manager must, under section 67(2), be confirmed in writing forthwith.

Does the whole Code apply to a limestone quarry? Not necessarily. Section 68(1)(b) excludes a mine engaged in the extraction of limestone among other minor minerals, subject to conditions prescribed by the Central Government relating to workings, open cast workings and explosives.

So the Inspector-cum-Facilitator cannot come? He can. The exclusion is expressly except sections 35, 38, 40, 41 and 44, which are his general powers, his special powers in respect of mines, the facilities to be afforded to him, the special officer's power to survey and measure, and the safety of women in dangerous operations.

The quarry starts using explosives outside the prescribed conditions. Then under section 68(3) the rest of the Code becomes immediately applicable, and it is the employer's duty to inform the prescribed authority of the non fulfilment, in the prescribed manner and time.

And the bauxite excavation? If it is being made for prospecting purposes only, and not to obtain minerals for use or sale, section 68(1)(a) excludes it, subject to conditions on the number of employees, depth of excavation and other matters.

A pump fails and water begins to rise. That is urgent work to machinery as a result of a breakdown under section 69(1). The manager may permit employment in contravention of sections 25, 30 and 31(1) on work necessary to protect the safety of the mine or of the persons employed in it. Under the proviso he may act although production is incidentally affected, but not beyond what is necessary to avoid serious interference with the ordinary working of the mine.

What must he then do? Under section 69(2) the case must be recorded together with the circumstances, and a report made to the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator.

A seventeen year old asks for work at the quarry. Section 70(1) forbids it: no person below eighteen shall be allowed to work in any mine or part of one.

He is offered a place as a trainee instead. He is sixteen. Under section 70(2) apprentices and other trainees not below sixteen may be allowed to work under proper supervision by the manager. If he is an apprentice within section 2(a) of the Apprentices Act 1961, the manager may allow it. If he is any other trainee, the prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator must be obtained first.

Deccan Minerals asks whether the crushing yard next to the quarry is part of the mine. If a question arises whether premises in or adjacent to and belonging to a mine, on which a process ancillary to the getting, dressing or preparation for sale of minerals is carried on, is a mine within the Code, the Central Government may decide, and a certificate signed by a Secretary to the Government of India in the Ministry of Labour and Employment is conclusive proof: section 73.

Who provides rescue cover? Under section 72 the Central Government may prescribe vocational training and rescue and recovery services for persons employed in a mine.

What this does NOT mean

Part IV does not begin at section 69. It begins at section 67; sections 67 and 68 are mines sections, not audio-visual ones.

A mine may not have two managers. Section 67(1) requires a sole manager.

The owner is not silenced. He may instruct the manager, but the instructions must be confirmed in writing forthwith, and outside an emergency he may not instruct the manager's subordinates on their statutory duties.

An excluded mine is not unregulated. Sections 35, 38, 40, 41 and 44 continue to apply.

The exclusion is not permanent. It falls away immediately if a condition is not fulfilled, and the Central Government may in any case declare the Code applicable.

Section 69 is not a power to keep producing. It is a power to do what is necessary to protect safety, and production may only be incidentally affected.

Sixteen is not a working age in a mine. It is the floor for an apprentice or other trainee, under proper supervision, and any trainee who is not an apprentice needs the prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator.

Section 72 does not establish a rescue service. It permits the Central Government to prescribe one.

Limits and criticism

The whole of mine rescue is one permissive sentence. Section 72 says the Central Government may prescribe vocational training and rescue and recovery services. The Mines Act 1952 that this Code repeals had a developed body of provision on the subject, and its content now depends entirely on rules.

The qualifications of the manager are not in the Code. Section 67(1) leaves them to be prescribed, so the competence of the one person answerable for a mine is fixed outside the statute.

Section 68 is a list of minerals rather than a test of risk. A quarry working limestone with explosives may be more dangerous than a small underground working of some mineral not on the list, but the exclusion follows the mineral, subject only to conditions in rules.

Section 68(3) depends on the employer reporting his own exemption has lapsed. The provision that re-applies the Code is triggered automatically in law, but its enforcement rests on a duty to inform that the person losing the exemption owes about himself.

Section 69 gives a private person power to set aside statutory hours. The safeguards are a record and a report after the event, and the Code does not require the Inspector-cum-Facilitator to do anything on receiving the report.

Section 73 makes the certificate conclusive proof. A document signed in a Ministry decides, beyond contradiction by evidence, whether a place is a mine and therefore whether the safety provisions apply to the people working in it.

Nothing in Part IV addresses contract labour in mines, although it is the ordinary way underground work is now done. Those workers are reached only through Part I and the general Chapters.

Quick revision

• Section 67: every mine under a sole manager with Central prescribed qualifications, appointed by the owner or agent; proviso, the owner or agent may appoint himself if qualified. The manager has overall management, control, supervision and direction, subject to the owner's instructions, which must be confirmed in writing forthwith. Except in an emergency, the owner may not instruct the manager's subordinates on their statutory duties otherwise than through the manager.
• Section 68: the Code does not apply, except sections 35, 38, 40, 41 and 44, to (a) prospecting excavations, and (b) mines extracting kankar, murrum, laterite, boulder, gravel, shingle, ordinary sand, ordinary clay, building stone, slate, road metal, earth, fuller's earth and limestone, in each case subject to prescribed conditions. The Central Government may declare the Code applicable; and if a condition is not fulfilled the Code applies immediately and the employer must inform the prescribed authority.
• Section 69: on emergency, accident actual or apprehended, act of God, or urgent work after a breakdown, the manager may permit employment contrary to sections 25, 30 and 31(1) for work necessary to protect safety; production may be incidentally affected but not beyond what avoids serious interference. Every case recorded with the circumstances and reported to the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator.
• Section 70: no person below eighteen may work in a mine; apprentices and other trainees not below sixteen may, under proper supervision, by the manager; prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator for trainees other than apprentices; medical examination may be prescribed. Apprentice as in section 2(a) of the Apprentices Act 1961.
• Section 71: the Central Government may make rules exempting persons or categories from sections 25(1), 26(1), 30 and 31(1).
• Section 72: the Central Government may prescribe vocational training and rescue and recovery services.
• Section 73: the Central Government decides whether a working or premises is part of a mine; a certificate signed by a Secretary to the Government of India in the Ministry of Labour and Employment is conclusive proof.

Test yourself

1. What does section 67 require, and how are the owner's instructions controlled? Every mine must be under a sole manager holding qualifications prescribed by the Central Government, appointed by the owner or agent, who may appoint himself if he holds those qualifications. The manager is responsible for the overall management, control, supervision and direction of the mine, subject to the owner's or agent's instructions, and all such instructions must be confirmed in writing forthwith. Except in an emergency, the owner or agent may not give instructions affecting statutory duties, otherwise than through the manager, to a person responsible to the manager.

2. Which five sections continue to apply to a mine excluded by section 68? Sections 35, 38, 40, 41 and 44: the powers of the Inspector-cum-Facilitator, his special powers in respect of factories, mines, dock work and building work, the facilities to be afforded to him, the special officer's power to enter, survey, level and measure a mine, and adequate safety of employment of women in dangerous operations.

3. What happens if an excluded mine stops fulfilling the prescribed conditions? The provisions of the Code not set out in section 68(1) become immediately applicable, and it is the duty of the employer to inform the prescribed authority of the non fulfilment in the prescribed manner and within the prescribed time: section 68(3).

4. In what circumstances may a manager depart from the hours provisions, and what must he do afterwards? In an emergency involving serious risk to the safety of the mine or of the persons employed in it, on an accident actual or apprehended, on an act of God, or for urgent work to machinery, plant or equipment following a breakdown, he may permit employment contrary to sections 25, 30 and 31(1) on work necessary to protect safety. Afterwards, every such case must be recorded together with the circumstances, and a report made to the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator: section 69(2).

5. State the age rules in section 70, and the difference between an apprentice and any other trainee. No person below eighteen may be allowed to work in a mine. Apprentices and other trainees not below sixteen may be allowed to work under proper supervision by the manager. For trainees other than apprentices the prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator must be obtained first. An apprentice is one as defined in section 2(a) of the Apprentices Act 1961.

6. How is a question whether premises form part of a mine decided, and what is the evidentiary effect? The Central Government may decide the question where it arises in relation to any excavation, working or premises in or adjacent to and belonging to a mine on which a process ancillary to the getting, dressing or preparation for sale of minerals or coke is carried on; and a certificate signed by a Secretary to the Government of India in the Ministry of Labour and Employment is conclusive proof: section 73.

7. Why is section 72 open to criticism? Because vocational training and rescue and recovery services for a mine, which the Mines Act 1952 dealt with as a developed body of provision, are reduced to a single permissive sentence: the Central Government may prescribe them. Nothing in the Code requires a rescue station, equipment, trained brigades or drills to exist.