CRL.M.C./2072/2015 of R. SHANKAR RAMAN Vs STATE

Signature Not Verified

Signed By:RAM DATTSigning Date:07.10.2024 15:21Certify that the digital and physical file havebeen compared and the digital data is as perthe physical file and no page is missing.

IN THE HIGH COURT OF DELHI AT NEW DELHI •

Reserved on: 3"' October, 2018Pronounced on: 19"'November, 2018

CRL.M.C. 1873/2015 & CRL.M.A. 6732/2015

S.N. SUBRAHMANYAM Petitioner

Through: Mr. Vikas Pahwa, Sr. Advocate withMs. Sima Gulati, Mr. Subhash Gulati,Mr.Shailesh Poddar, Mr. Vinit Arora& Mr. Sumit Saini, Advocates.

versus

81. ATE

Respondent

Through:' Mr. Mukesh Kumar, APP.

CRL.M.C. 2064/2015 , I I I

DLF UNIVERSAL LTD. THR.. ITS AUTHORIZEDREPRESENTTIVE Petitioner

Through: .Mi*. Raihesh Gupta, Sr. Advocate with, j 'y, I■•Miv-,SaHdepp'Kapur, Mr. Vivek Suri,"' . Mt. Karan' Seth & Mr. MayankDatta,; Advs.

'versus, !''■/

STATE NOT OF DELHI THR. FACTORY INSPECTOR

Respondent

Throiigh: Mr. Mukesh Kumar, APP.i^

CRL.M.C. 20^6/2015

RAJEEV TALWAR Petitioner

Through: Mr..Sidharth Luthra, Sr. Advocatewith Mr. Sandeep Kapur, Mr., Vivek\Suri, Mr. Karn Seth, Mr. Mayank

Crl. M.C. 1873/2015 & connected

Page 1 of 54

Datta & Mr. Aashn^et Singh,Advocates.

versus

STATE NCT OF DELHI Through:

Respondent

Mr. Mukesh Kumar, APP.

CRL.M.C. 2067/2015

MOHIT GUJRAL

Petitioner

Through: Mr. Ramesh Gupta, Sr. Advocate with

Mr. Sandeep Kapur, Mr. Vivek Suri,Mr. Karan Seth & Mr. Mayank Datta,Advs.

versus

STATE NOT, OF DELHI THR. FACTORY INSPECTOR

Respondent

Through: Mr. Mukesh Kumar, APP.

CRL.M.C. 2068/2015 & CRLp'A. 7363/2015

K VENKATARAMAJMi- . -Dayah^^ ' v' v'

. -Dayah^^ ' v' v' PetitionerSr. Advocate withpr; -Dayah^^ . -Dayah^^ , • •. Mdli^§'hiAgarwaI, Mr. Anujife'Mr. Anirudh Bhat,

Through: pr; -Dayah^^ . -Dayah^^

Advocates.

■versus

^TATE

Respondent

Through: Mr. Mukesh Kumar, APP.

.+ CRL.M.C. 2069/2015 & CRL.M.A. 7366/2015

M NAIK Petitioner.Thi'ough: Mr. . Kapil Sibbal ■& Mi-.Dayanlcrishnan, Sr. Advocates withMr. Mahesh Agarwal, Mr. AnujMalhotra & Mr. Anirudh Bhat,Advocates.

Crl. M.C. 1873/2015 & connected ;

pQgg 2 of 54

versus

STATE &ORS.

Respondents

Through;

Mr. Mukesh Kumar^ APP.

+CRL.M.C. 2070/2015 & CRL.M.A. 7369/2015M V KOTWAL Petitioner

Through: Mr. Dayanlcrishnan, Sr. Advocate withIMr. Mahesh Agarwal, Mr. AnujMalhotra & Mr. Anirudh Bhat,Advocates.

versus

STATE & ORS.

Respondents

Tlirough:

Mr. Mukesh Kumar, APP.

+CRL.M.C. 2071/2015.& 2071/2015.& GRL.M.A. 7373/2015SHAIEENDRA ROY '

CRL.M.C. 2071/2015.& 2071/2015.& GRL.M.A. 7373/2015

Petitioner

Through:. Ms. SimuOulati withMr. SubhashGulathrlkr,. Shailesh Poddar & Mr.

.Sumit.Sairii, Advocates.

STATE

versus

Respondent

Through: Mt Mukesh Kumar, APP.

CRL.M.C. 2072/2015 7375/2015

R. SHANICAR RAMAN

Petitioner

Through: Ms. Sima Gulati with Mr. SubhashGulati, ..Mr^, Shailesh Poddar &

Ml'. SumihSaini, Advocates.

STATE

versus

Respondent

Through: Mr. Mukesh Kumar, APP.

CRL.M.C. 2158/2015 & CRL.M.A. 7635/2015SUDHIRSAHGAL

Petitioner

Through: Mr. R.K. Handoo with Mr. SandeepKapur, Mr. Vivek Suri, Mr. Mayank

Crl. M.C. IS73/20I5 & connected

Datta, Mr. Karan Seth & Mr.AashneetSingh,Advocates.

versus

STATE NCT OF DELm Respondent

Through:

Mr. Mukesh Kumar, APP.

+CRL.M.C. 2159/2015 & ASHOK KUMAR TYAGI

CRL.M.A. 7672/2015

Petitioner

Tiirough: Mr. Sidharth Luthra, Sr. Advocatewith Mr. Sandeep Kapur, Mr. VivekSuri, Mr. Kam Seth, Mr. MayankDatta & Mr. AashneetISingh, I Advocates.

versus '

STATE NCT OF DELHI . :

Respondent

Through: Mr. Mpkesh Kumar, APP.

.'f "i-

+CRL.M.C. 2160/2015,'& ■GRLM.Av:'7637/2015'SHRIRAMKHATT/^' .:v: ^ PetitionerThrough: with Mr. SandeepKhpur,-^I\Tr'. Vivek Suri, Mi*. MayankDatta, Mr. Karan Seth &Mr. Aaslmeet Singh, Advocates.

■Versus

STATE NOT OF DELHI Respondent

Through: Mr. Mukesh Kumar, APP.

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

1. The work of development of DLF Capital Green Project at aconstruction site described as 15, Shivaji Marg, Delhi-110 015 owned

C;-/. M. C. 1873/2015 & connected

by DLF Universal Limited ("the land owner company") was underwayin May, 2014, the contract for said construction work having beenentrusted by the said land owner company to M/s. Larsen and ToubroLimited ("the construction contractor company"). On 17.05.2014, atabout 3:50 p.m. worker named Anldt Kumar, engaged as painter atthe level of 18'^ floor of Tower No. 14, while applying paint on theface of the exterior wall, fell down to the ground suffering serjousinjuries that resulted in his death.

2. The matter was reported, inter alia, to the Station House Officerof Police Station Moti Nagar who registered first information report(FIR) No.429/2014 and took up the investigation into offencessuspected to have been committed, they being punishable underSection 288 I (negligent conduct with respect to pulling down orrepairing building) and Section 304-A (ciausing death by negligence)of Indian Penal Code, 1860- (IPG)v. The investigation into the said FIR.','..a i,. \ I 'resulted in report under "Seciipnyd.73'\;o,f the Code of CriminalProcedure, 1973 (Cr.P.C.) being submitted to seek prosecution of oneShahzad son of Abdul Gani on the accusations of his complicity in the■said offences under Sections 288/304-A. IPG for the reasons that hewas the supervisor engaged by the sub-contractor Anwar Ahmad, towhom the work in question had been allocated by the constructioncontractor company, the death being attributable to acts of commissionor omission on his part.

3. Simultaneous to the aforesaid report to the police and initiationof action by it vis-a-vis the aforementioned cognizable offences, the

CrI. M.C. 1873/2015 & connected

mater was also brought to the notice of the authorities in the office oflabour commissioner, Govt. of National Capital Temtory of Delhi,particularly the Inspector of Building and Construction. The inquiriesmade by the said authorities culminated in criminal complaint (CCN0.55F1/14) being presented in the court of Metropolitan Magistrateon 10.07.2014 by the Inspector of Building and Construction (alsoDeputy Chief Inspector of Factories), the complaint alleging offencepunishable under Section 47 of the Building and Other ConstructionWorkers (Regulation of Employment and Conditions of Service) Act,1996 ("the Building and Construction ■■Workers Act", for short). TheMetropolitan Magistrate took .eognfeaneer^by order dated 10.09.2014and issued summons on the said' coinpladnf inter alia, against thepetitioners who have approached this court invoking inherentjurisdiction under Section 482 Gr.Il.C'. rby the captioned petitionsthe out of the 'said criminal caseseeking proceedings arising complaint to be quashed on the groupd thessame rsfffethe nature of abuse of theprocess of the^court.'i'. G>-

4. It be mentioned here that the criminal in whichmay complaint summoning order was passed'Maibh i^miphgned here, fifteen (15)persons were shown in the fray as accused, they including the landowner company and the construction contractor company, five of theaccused associated with the land owner whilepersons being company eight others comiected to the construction contractor company.

5. Though it was pointed out that in the impugned order dated10.09.2014 whereby the petitioners have been summoned by the

Crl. M.C. 1873/2015 & connected

Page 6 of 54

Metropolitan Magistrate, there is reference to Section 179 of theFactories Act which was wholly uncalled.for, the learned counsel forthe petitioners fairly submitted that it having been well-understood byall concerned that the summoning order is for the offence underSection 47 of the Building and Construction Workers Act on accountof breach of the rules framed thereunder, they press these petitions forquashing of the said summoning order on merits on the groundsindicated hereafter.

6. The of the land owner inpetitions company (petitioner Crl.M.C.2064/2015), its Chairman Mdhit Gujral (petitioner inCrl ■M.C.2067/2015), its Managing Direp$dr,':Rajeev Talwar (petitionerin Cii.M.C.2066/2015) and its, Difectpis Sliriram Khattar, AshokKumar Tyagi and Sudhir Sahgab(pptfQjners in Crl.M.C.2160/2015,2159/2015 and 2158/2015 respectiy#)ib™arily contend that theconstruction contract having;bee»tru.^^^^^^ said other company,the work being carried out^undpr the.^^ti|9rvision and control of thelatter through its sub-contractor', it -having no comection whatsoeverwith the day-to-day activity, it had no role to play or nexus with any ofthe acts of commission or oiriissioh pn'-tie'basis of which accusationshave been leveled, no case also being made out of vicarious liabilityunder the criminal law.

7. Neither the consti'uction contractor nor two of thecompany other accnsed connected thereto - Mr. Daljit Singh and Mr. HarishVaid described as Project Director and Manager (IndustrialRelations) respectively in-charge of the construction site, have come

Crl. M.C. 1873/2015 & connected,

, Page 7 of 54

up to this court with any plea assailing the order of the MetropolitanMagistrate taking cognizance of the afore-mentioned offence orsummoning each of them. Six (6) others, connected to the saidconstruction contractor company, however, are before this court, withsimilar petitions under Section 482 Cr.P.C. as aforesaid, they beingA.M. Naik, Group Executive Chairman (petitioner inCrl.M.C.2069/2015); K. Venlcataramanan, CEO and MD (petitioner inCrl.M.C.2068/2015); M.V. Kotwal, whole-time Director and President(Heavy Engineering) (petitioner in Crl.M.C.2070/2015); S.N.Subrahmanyam, whole-time Director .and Senior Executive VicePresident (Infrastructure , and Construction) (petitioner inCrl.M.C. 1873/2015); R. Shankai-Raman,',-whole-time Director & CFO(petitioner in Crl.M.C.2072/2015); and' Shailender Rao, whole-timeDirector and Senior Executive Vice President (Corporate Affairs andPower) (petitioner in Crl.M.C.207r/2015). The thmst of thearguments of this set of petitiohefs is tliat-given their position in thehierarchy in the construction contractor company, having regard to themeasures that had been put in position under their directions, in strictcompliance of and adherence to the law,,the work in question havingbeen entrusted to sub-contractor, their representative being in-chargeof the project at site, they cannot be held accountable under theprinciple of vicarious liability for the penal offence under the speciallaw which has been invoked by the prosecution befoie theMetropolitan Magistrate, and in which they have been summoned suchproceedings being abuse of the law.

Crl. M.C. 1873/2015 & connected

8. The petitions "have been resisted by the respondent State (theSince have arisen out of the same case and acomplainant). they bring challenge to the same order, they have been heard together. Duringthe course of hearing, references were made to certaincommunications that had been exchanged between the companies .(accused) on one hand and the statutory authorities on the other. Forclarity, the complainant was directed by order dated 24.09.2018 to filean affidavit explaining its position, vis-a-vis the said documents and mcompliance reply dated 28.09.2018 styled as reply affidavit to thesupplementary documents was • brought on record by the respondentson 29.09.2018. •

I' "f. •9. The Building and Construction Wotkers Act was brought on thestatute book enforced w.e:f. 01.03.1996 with the objective ofregulating the employment and conditions of service of building andother construction workers-hnd'.-tpifpfoyM^^ their safety, health andwelfare measures and therewith oif6l?/-'-©tfeer;--j^a1^|^.-'fCoiinected incidental thereto.

10. The expression "building or other■ construction work" isdefined by Section 2(l)(d) to mean, inter alia, "the construction,alteration, repairs, maintenance or demolition, of or, in relation to,buildings... ". There is no dispute that the works being carried out atthe site in question in the name and style of DLF Capital GreensProject, in the course of which the fatal accident occurred, were"building or other construction work" within the meaning of thestatute. The worker" is defined Section to mean"building by 2(l)(e)

Cii. M.C. 1873/2015 & connected

Page 9 of 54

"a person who is employed to do any skilled, semiskilled or unskilledmanual, supervisory, technical or clerical work for hire or reward,whether the terms of employment be expressed or implied, inconnection with any building or other construction work". There isno dispute that Ankit Kumar, whose death due to fall on 17.05.2014has led to the criminal action was engaged as "building worker" atthe proj ect site in question within the meaning of the said expression.

-11. The meaning and import of three other expressions "contractor", "employer", and "establishment" being germane to theissues that have been raised, their defmitionSi, as appearing in clauses(g), (i) and (j) of Section 2fl) 6f\hiq;'%uilding ,and ConstructionWorkers Act, may be taken note .of as pncipf :-

"(g) "contractor" means person who undertakes toproduce 2iven result for anvkestdblishment, other than amere supply of goodspgm^wipsf^'mamfacture, by theemployment of buildins wbrkersl'brjwho supplies buildingworkers'for any work of the eftoMfflfmerit; and includes asub-contractor; - ' I

(i) "employer", in relation to an establishment, means theowner thereof anddncludps, - , ,,. , -

(i) in relation to building or otherconstruction work carried on by or under theauthority of any department of the Government,directly without any contractor, the authorityspecified in this behalf, or where no authority isspec ified, the head of the department;

(ii) in relation to building or otherconstruction work carried on by or on behalf ofa local authority or other establishment, directly

without itiny I conti^ac.tor, the chief executiveofficer of tiat'Uuthority or establishment;

^I • II *i-

fiij im I relation id building ' or otherconstruction work carried on bv or though acontractor;^ or by 'tfie 'employment of buildingworkers ^ p^pplied ,by\ ' contractor, . _thecontractor; I . ,

(j) ''establishhlknt''Means any establishment belongingto, or under 'the conirol of. Government, am bodycorporate or firm, an individual or association or otherbody of individuals which; or. who. employs buildingworkers in any'buildiny or other construction work; andincludes an establishment belonmns to contractor, butdoes not include aMindjMdMl who employs such workersin any building or constructionmork in relation to his ownresidence the total epst of construction not beingmore than rupees ten .lakh; " I , .. I ' , i

'r (emphasis supplied)12. It is clear from 'the'abQve-'uoled;^defmitioris '' " ■•I 'k . .that the con.tractofin relation to icdn^r^ work be building may personother .than owner of the instance such workis undertaken. As would be seen vVith reference to certain otherprovisions of the law, the-responsibility for the safety measures is ofthe who falls descf^tron theperson "employer", qua building worker. It is the "employer" who constitutes tlie"establishment" which is' dut^^ bound, under the law and the rulesframed thereunder, to put in position, the requisite safety measures.

13. . It would be of advantage to bear in mind the broad scheme oflaw in force by the Building and Construction Workers Act. Besidesof certain authorities or conceiving statutory including advisory expert

Crl. M.C. 1873/2015 & connected

committees (Chapter II), welfare boards (Chapter V), enforcementofficers (described as Inspecting Staff) (chapter VIII), it mandatescompulsory registration of establishments (Chapter III) as alsobuilding workers as beneficiaries (Chapter IV). It confers certain roleupon authorities in the government, the "appropriate government" asper section 2(i)(iii) in relation to such • establishment as "employsbuilding workers either directly or through contractor" being thegovernment of the State in which such establishment is situate. •

14. The sixth chapter ("conditions of service of building workers ")subjects such as fixe|; tours for normal working day(Section 28), wages for overtime work (Section 29), maintenance ofregisters and records (Secloh; 30),; prohibition of employment ofcertain persons m certain buiMip;g:'or o|her; construction work (Section31), drinldng water (Section, 3|),, latrinfs and urinals (Section 33),accommodation (Section 34|^^c|^si(Sibiion 35), First-aid (Section-36), Canteens, etc. (Sectibhi3i)f I 'fly

15. The seventh chapter ( safety and health measures") is what iscrucial to the present cas.e,. It ;P©nfers,. t^^Seotion 40, power on theappropriate govermnent to make rules "for the safety and health ofbuilding workers, the rules envisaged whereby do also cover, per sub-Section (2) the following:-

"(a) the safe means of access to, and the safety of. anyworking place, including the provision of suitable andsufficient scaffoldins at various stages when work cannotbe done from the or from of asafely ground any part building or from ladder or such other means ofsupport;

Crl. M.C. 1873/2015 & connected j2

(e) the erection, installation, use and maintenance ofhoists, liftim avvliances and lifting sear includingperiodical testing and examination and heat treatmentwhere necessary, precautions to he taken while raising orlowering loads, restrictions on carriage of persons andappointment of competent persons on hoists or other liftingappliances;

(o) the keevins of safety nets, safety sheets and safety beltswhere the special nature or the circumstances of workrender them necessary for the safety of the workers;

(p) the standards to. be complied with regard toscaffolding, ladders and stairs,, lifting appliances, ropes,chains and accessories,, earth I moving equipments andfloating operational equipments;

(r) the safety policy, that is to policy relating tosteps to be taken to ensure theys^flty and health of thebuilding workers, the administrative arransementstherefor and the matters connected therewith, to be framedby the employers and contractors., for the operations to becarried on in building or. othef construction work:

(u) any other matter, concermnf ihiei safety and health ofworkers in carried onworking akf^gpflif&p00ipns being in bidlding or other cons-truetidn work. "

(emphasis supplied)

16. This power to make rules specific "to the subject of "rules forsafety and health of building workers " is to be read with the generalprovision contained in Section 62 {power to make rules) vested in theappropriate govermnent. Section 41 similarly entrusts theresponsibility of framing of model rules for safety measures unto thecentral government.

Crl. M.C. IS73/2015 & connected

Page 13 of 54

17. There are two specific provisions of the Building andConstruction Workers Act as spell out "responsibility, of theemployer" vis-a-vis the statutory command for "safety and healthmeasures " to be put in position. They read thus:-

"38. Safety Committee and, safety officers.- (1) In everyestablishment wherein five hundred or more buildingworkers are ordinarily employed, the employer shallconstitute Safety Committee consisting of such number ofrepresentatives of the employer and the building workersas may be prescribed by the State Government:

Provided that the number of persons representing theworkers, shall, in no case, be less than the personsrepresenting the employer.

(2) In every establishment referred to in sub-section (I),the employer shall also appoint safety officer who shallpossess such qualifications and perform such duties as.may be prescribed. I •

44. Responsibility of emplovers:--,.-Mn emvlover shall beresponsible for proviilnky ddmtcmt and . adequatesupervision of any buUdin& of ■.othteffbonstruction work inhis establishment as to ensure- compliance with theprovisions of this Act relating to safety and for takins allpractical steps necessaiy to prevent accidents. "

(emphasis supplied)

18. The above-noted statutory provisions declare unequivocally thatit is the "employer" vis-a-vis building or other construction projectwho is "responsible" for arranging all the prescribed safety measuresand for due compliances to be ensured, the same inclusive of "safetycommittee" and "safety officer". Having regard to the scheme of thestatute, "contractor" having undertaken to carry out the construction

CrI: M.C. IS~3/2015 & coniiected

Poge 14 of 54

wolk for and on behalf of the land owner, and also being the personwho "employs building workers" in such work, also takes on theresponsibility towards safety and health measures from the latter.

19. For completion of naiTation, it may be added that Section 39casts duty on "the employer" to give notice, in the mannerpi escribed, to the specified authority in the event of an accidentoccurring in its establishment, it resulting in death or bodily injuiyincapacitating worker for certain period, this for the purpose ofinvestigation or inquiry by such authority as may be deemednecessaiy. In the present case, the notice of the accident wasconcededly given and the inquiry held.'.by the concerned statutoryinspectorate. • ' '

20. The and Construction Workers Act also aBuilding requires prior notice of commencement oTbui'Ming or construction work to bethe information for such asgiven, mandatory requisite purposes being indicated in the following provisidhir,-::

"46. Notice of commencement of building or otherconstruction worltr

0) An employer shall at least thirty days before thecommencement of any buildin2 or other construction work,send or cause to be sent to the Inspector havingjurisdiction in the area where the proposed building orother construction work is to be executed, written noticecontainins-

(a) the name and situation of the place where the buildingor other construction work is proposed to be carried on;

(b) the name and address of the person who is undertakingthe building or other construction work;

(c) the address to which communications relating to thebuilding or other construction work may be sent;

(d) the nature of the work involved and the facilities,including any plant and machinery, provided;

(e) the arrangements for the storage of explosives, if any,to be used in the building or other construction work;

(f) the number of workers likely to be employed during thevarious stages of building or other construction work;

(g) the name and desisnation ofthe person who will be inoverall charge of the buMdirif'or''-other construction workat the site; '' . i ' .

(h) the approximate duration c^fhemork;

(i) such other-matters as may be prescribed.

(2) Where any ' change occurs; in 'any of the particularsfurnished under sub-section f(.l)-,: .-the employer shallintimate the change fa'tfie fHsfd^p two days ofsuch change. - , . ' v " r v

(3) Nothing .contained in-sub-sectibn (1) shall apply incase of such class of building or other construction workas the appropriate-Government may ky'motification specify-'to be emergent worksd'. I '

(emphasis supplied)

21. The above-quoted provision only re-inforces the conclusion thatthe responsibility towards due compliances with health and safetymeasures prescribed by the law and rules framed thereunder isprimarily of the "employer", person engaged as "a contractor" forcarrying out the construction work, also vested with the authority to

Crl M.C. 1873/2015 & connected

employ building workers being the "employer". The person deputedas "one in overall charge" is the representative of "the employer", theemployer being answerable and accountable for all acts of commissionor omission done such of the orby representative "incharge project" those working under his control. Pertinent to add, the duty to intimate,in advance, commencement of the constmction work (by prescribednotice) is not of the land owner but of the "employer", such statutoiynotice lequiring it to be specified, amongst others, the particulars ofthe who would be accountable in the of he "inperson capacity being overall charge". I ,

22. In exercise of the the said inpowers nonfe^e| rUpon authority exercise of the contted and Constructionpowers by^?fh^;:0uilding Workers Act, the heutenant "gcyemdy pf|he Govt. of NOT of Delhimade and notified Rules whidh ^elea^d the Delhi Building andOther Construction Workers II;:(Regufetibn of Employment andConditions of Service) Rul%..20|2 Rules for short). I

23. The criminal complaint (from which the present proceedingsarise) refers specifically ;!© breach of ^ (Health and safetypolicy), rule 42 (Slipping, tripping, culling, drowning and fallinghazards), rule 178 (Safety belt and its use), rule 179 (Safety net and itsuse), rule 196 (Guardrails) and rtile 209, (Safety officer) of the DelhiRules. All these Rules fall in different Chapters of third part (Safetyand Health)'.

24. Rules 39 and 42 appear in the sixth chapter (general provisions),rules 178 and 179 in sixteenth chapter (Catch Platform and Hoardings,

Crl. M.C. I873/20J5 & connected

Page 17 of54

Chutes, Safety Belts and Nets), rule 196 included in nineteenth chapter(Scaffold), while rule 209 forrns part of the provisions of twenty-firstchapter (Safety Organization).

25. The offence to answer which the petitioners, and three others,have been summoned by the Metropolitan Magistrate is defined andprovided for in Section 47 of the Building and Constmction WorkersAct as under:-

"47. Penalty for contravention of provisions regardingsafety measures.- (1) .Whoever contravenes the provisionsof any rides made under section 40 shall be punishablewith imprisonment for terrh which may extend to threemonths, or with fine wJdich may extend to two thousandrupees, or with both, and in] dkeu case of continuingcontravention, with onlajMM&PdPfmd which may extend toone hundred rupees fpr every }' day during which suchcontravention continues pftcr cpnvibtion for the first suchcontravention. , ,:

(2) If any person who •hak be:ert}^%f>nviG.ted of any offencepunishable under again guilty of anoffence involving conti-^avention: Or failure of complianceIof the same provision, he shall be punishable on asubsequent conviction with imprisonment for term whichmay extend to six months or'-with-fine/which shall not beless than five hundred rupees but which may extend to twothousand rupees or with.both:

Provided that for the purposes of this sub-section, nocognizance shall be taken of any conviction made morethan two years before the commission of the offence forwhich the person is subsequently being convicted:

Provided further that the authority imposing the penalty, ifit is satisfied that there are I exceptional circumstances

warranting such course may, after recording its reasonsin writing, impose fine ofless than five hundred rupees. "

26. It is the contravention of the rules relating to health or safetymeasures which constitutes the offence provided by Section 47 quotedabove, and for this, mens rea i.e. the intention to commit the breach ofthe rules or abetment thereof on the part of the person sought to beprosecuted is pre-requisite. The case at hand is not one of any of theaccused having been previously convicted for such offence and,therefore, the enhanced punishment is not attracted. Having regard tothe punishment prescribed, the criminal case comes up before thecourt of Metropolitan Magistrate as' one which may" be triedsummarily. , .

27. As observed above, it is. the contravention of the provisions ofthe Rules on the subject of "safety andl'limlth of building workers", asenvisaged in Section 40, whicli is mad| ■pqhfshable. Though the DelhiRules have been framed and nptifiedvwitk.r^ to the rule makingpower conferred on the approp|j£^:^4^eribment by section 62, havingregard to the subjects that are thereby covered, there can be no disputethat such rules have been framed also -in e-xsrcise of the power undersection 40.

28. The complainant presses the criminal prosecution against thepetitioners primarily on the principle of vicarious liability and, for. this,the provision contained in Section 53 of the Building and ConstructionWorkers Act is cmcial. It reads thus:-

Cti. M.C. 1873/2015 & connected

"S3. Offences by companies.- (1) Where an offence under this Act has been committed by company, every personwho, at the time the offence was committed, was in chargeof and was responsible to, the comvanv for the conduct nfthe business of the as well as the shallcompany company, be deemed to he Puilff of the offence and shall be liable tobe proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shallfender such liable to if heany person any punishment, proves—that the—offence was committed without hisknowledge or that he had exercUed all d.ue dilia^inr. tnprevent the commission^ of such offence.

(V Nothwithstandiiig anvthinff contained in sub-section fl)offence under^ this ffetMas been committed aby company and it is proved: t'hS fhe offence has.- hepncommitted with the cfomeht,.off connivance of. or isattributable to anv neglect onyfhd Toart of anv director.manager, secretary or other officer 'of the company, suchdirector, manager, seeretaiy other officer shall bedeemed to be yuiltv of thot. offence And shall be liable to beproceeded against md-pffdskedfpcc&rdingly.

Explanation.-For thepuippseffffMsfection,-

(a) "company" means any body corporate and includes afirm or other association of individuals; and

(b) director", in partner in thefirm." '■

(emphasis supplied)

29. As was highlighted during the course of hearing, not only by thelearned counsel representing the petitioners, but also by the counselfor the State (the complainant), the afore-quoted provision of Section53 is almost identical with similar provisions concerning vicarious

Crl. M.C. 1873/2015 & connected

contained in other criminal laws to the effect of which someliability detailed reference shall need to be made later.

30. It is clear from the bare reading of the statutory clause thatwhere the offence is committed by company, in order to rope in anyother on the of vicarious criminal it must beperson principle liability, shown that such was of and was to theperson "in-charge responsible company for the conduct of its business "at the time the offence wascommitted". The to Section proviso 53(1) permits person arraignedon the principle of vicarious liability to plead and show by evidence,defence, that he was not,; responsible either because the actsthe offence were committed- •'wzY/zottz' his orconstituting knowledge" because he had "exercised all dke dik^enbejo prevent the commissionoj such offence". Notwithstanding thp main provision contained inSection 53(1), the prosecution may,bg(mi|iated against "any Director,Manager, Secretary or other'-officer if there is proofavailable to show that the oifenof"with the consent or.cdp^tted connivance of, or is attributahie to any neglect on the part of" suchdiiector, manager, secretaiy or other officer , of the company. Whilesection 53(1) relies on "demng"'dee wfiQ position of the personvis-a-vis the company "in-charge of" and' "responsible to", section53(2) necessarily requires positive evidence to show activeparticipation reflective of "consent", "connivance" or "neglect".

31. In the. criminal complaint on which the impugned order ofsummoning has been passed, there is reference to similar fatalaccidents occurred at the site in onhaving previously project question

Crl. M.C. 1873/2015 & connected

04.09.2011, 11.04.2012, 16.08.2012, 28.02.2013, and 16.01.2014 as,well. The present complaint dated 14.08.2014 cannot be treated as acomplaint with reference to such previous incidents for two primereasons; one, there are no averments as to the breach of any specific)rules within the meaning of section 47 vis-a-vis the previous incidents,and, second, the criminal action vis-a-vis such earlier incidents wouldbe barred by limitation as provided in Section 55 of the Building andConstruction WorkersAct. .

32. It is the admitted case of the complainant that the buildingconstruction work in the course of which the fatal accident occurredon 17.05.2014 had been entrusted by/-the land owner company,through formal contract to the-constructfpn contractor company. It isindicated in the complaint itself thdt the construction contractorcompany had got itself registered whh tjie statutory authority of theappropriate government in compliancp^/with the requirements ofSection 7. The certificate nf registration' describes the constmctiOncontractor company to be the "esidblishment" for purposes ofconstruction of "DLF Capital Greens Project" by it, it being projectof "residential building'",- the work, to be carried out during02.01.2012 to 17.11.2014, its representative Mr. Surinder Mohanbeing the "employer" in-charge of the construction work at site. It isan undisputed case here that the construction contractor company hadgiven the intimation about the commencement of the work incompliance with section 46. It is also admitted that the intimation

Q-l. M.C. 1873/2015 & connected '

Page 22 of 54'

about the fatal accident was given by the. construction contractorcompany abiding by its responsibility under Section 39.

33. After setting out the facts pertaining to the fatal accident on07.05.2014, while referring to the previous such incidents, anddescribing the positions of the petitioners (as indeed of tliree otherswho are- not before this court) vis-a-vis the two companies, thecomplainant has narrated its case in the complaint in the followingmanner

"3. That Sh. Mohit .Gujral, Chairman, Sh. RajeevTalwar, Managing Director, Sh. Sriram Khattar, Director,Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal,Director of M/s. DLF Universal Ltd., Shopping Mall, 3'''^Floor, 'Arjun Marg, DLF City,, BLock E, DLF Phase 1,Sector 26A, Gurgaon, Haryana 122002 are the'Directors" and Sh. A.M. 'Maik, Group ExecutiveChairman, Sh.. K. Venkatammdman, CEO & MD, Sh. M. V.Kotwal, Whole time Dtreetoit &.;P0sident, Heavy Engg;,Sh. S.N. Subrahmanyan, F%ple 'titpg;^ Director & Sr. EVP(infrastructure & cdnstriipttoh); S^-'R. Shankar Raman,Whole time Director S: CPOf ShL.SPiailendra Roy, Wholetiine Director & Sr. EVP (Corporate ajfairs & power) andSh. Daljit Singh - Project Director, (In-charge of theconstruction site) of -M/s. Larsen & Toubro Ltd. are the'Directors " Of M/s. Larsen & Toubro Ltd. and Sh. HarishVqid, Manager (Indl. Relations) is the Manager of theconstruction site within the meaning of Section 53 of thesaid Act (hereinafter called the accused for the purpose ofthe Act, in the present case).

4. That on dated 17.05.14, at about 3.50 PM, anaccident reportedly occurred at the construction sitenamely "Capital Green Projects" located at 15 ShivajiMarg Delhi-15 at tower no. 14 having 21 floors. Uponinspection of the 'Construction Site' on 18.5.2014 at 11.00

AM and further investigation on 24.5.14 at 4.00 PM alongwith Sh. R.N. Dahiya, Director (ISH) and Sh. J.N.Jain, Dy.Director (ISH)/Inspectors of Building & Construction, itwas revealed that worker namely Ankit Kumar, Painter,was working in tower No. 14 on the eighteenth floor andwas reportedly engaged in the work of applying paint onthe face of the wall, fell to the ground, causing him severeinjuries resulting in death.

5. That besides this, prirna facie, it appeared oninspections that the, manasement failed to ensureadequate site management as envisaged in the provisionsof the Building and other Construction Workers(Regulation of Employment and Conditions of Service)Act, 1996 and the Delhi Building and other ConstructionWorkers (Regulation of Employment and Conditions ofService) Rules, 2002. Manasement had not taken allappropriate measures as per I (he. said Act and. Rulesframed thereunder to prevent accidents at. building site ofsuch proportion and ma.gtiitude<

6. That there have been. 5 fatal'.accidents resultins intoloss of lives of 5 workers in the recent past, at the samesite. But, it is clear that they had'not learnt any lessonsout. of ^ previous series ofjdfal, accidents. Apart fromnotices, yrohibitorv order, was also issued to. them to stop. the construction work of entire site till complete/fullcompliances of all the safet\! provisions as mentioned inthe said Act and Rules frames thereunder as applicable onthe construction site of this magnitude were made.

7. That further, repeated deaths clearly pointed toneslect and commissions & omissions and lack of duediligence towards all asyects of human lives, safety andwelfare at their site as envisaged in the said. Act and Rulesframed thereunder.

8. That diiring • the course of inspection andinvestigation, the followins breach of the provisions of the"saidRides" read with the "said Act" were observed:-

I. That the workers working at height were notprovided with safet\> belts and Personal Fall ArrestSvsterhs fPFAS), in contravention of provisions of "Rule 42 and 178 of the said Rules. "

II. That the safetv nets were not provided at theconstruction site where the workers were allowed to workat height, in .contravention of provisions of Rules 42 and179 of the said Rules.

III. That the platforms and balconies, from, where aworker is liable to fell, had not been provided with suitable& safe suardrails and toeboards of adequate strensth, incontravention of the provisions of Rule 196 of the saidRules.

IV. That more than .500; I.e. 2700 workers wereordinarily employed at the consfructipn site but SafetvOfficers as per qualification afid condition of service aslaid down in Schedule VIII of the said Rules had not'beenappointed, in contraventioh of the provisions of Rule 209of the said Rules read witkSectim §8 of the said Act.

V. That the managements, ■-hayilfiot imvlemented theirHealth & SaIetvViI%likv: nn0^r and spirit, in. Qontravention of

9. That the above accused persons are thus suilty ofcontravening the. provisions of Rules 39,42.178,179.196and 209 of the said. Rules .read wifp. Sections 38,40 and 53of the said Act which is "punishable under section 47 of the"Said'Act" for an imprisonment for term which mayextent to 03 months or with fine which may extend, toTm>o Thousand Rupees or with both."

(emphasis supplied)

34. The reference to the prohibitory order having been issued by thestatutory authority on 26.05.2014 vis-a-vis the project site, being

CrI. M.C. 1873/2015 & connected

subsequent action, there is no case of any violation of the saidprohibitory order.

35. In the complaint, aside from certain other documents, referencewas made to inspection fonn/reports dated 18.05.2014 and24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014,reply dated 18.06.2014 of the land owner company and replies- dated04.06.2014, 17.06.2014 and 04.08.2014 of the construction contractorcompany. The reply dated 17.06.2014 of the'construction, contractorcompany, in turn, refeiTcd to letters dated 20.05.2014, 03.06.2014, and25.04.2013 and health and safety policy, as- communicated vide letterdated.25.04.2013. .As mentioned.earlier, pursuant to the directionsissued, by order dated 24.09.2018, the, complainant has filed theco,unte,r-reply dated 28.09.2018. In this reply, the exchange of theabovesaid : correspondence, reliance; wiereupon is made by thepetitioners, has been aclaiowledgfed. .v .t ; :"

36. The documents' in-; 'is no dispute, uponperusal, show that the land owner company had entered into contracton 29.03.2012 with . the construption contractor company.Concededly, the general conditions pf the said contract, as form partof its third annexure, clearly reveal that the construction contractorcompany had taken over the entire, responsibility for every aspect ofconstmction including safety compliances, liability towards insuranceand labour laws. The following stipulations in the contract need to beextracted for cpnfinnation of the above aspect;-

'7P. 0 SAFETY PROCEDURE

Crl. M.C. 1873/2015 & connected ,

Page 26 of54

^ The contractor shall incorporate in his operationsthe requirements, of all the 'Safety Cnde:^' issued by theBureau ofIndian Standards and provisions of the NationalBuilding Code of India 2005 including any amendments,thereof The Building and Other Construction Workers(Regulation of Employment and Conditions of Services)Act,. 1996 and any other applicable statutory rules andregulations. These requirements shall apply in all casesexcept where the regulations of the local authority requiremore stringent measures to be taken. Where the-requirements ofBIS Codes and/or National Building .Code,the Building and Other Construction Workers (Regulationsof Employment and Conditions of Services) Act, 1996 arpduplicated by the local regulations or the "Safety Manual"provided by the .Owner,■ . the'-more .stringent of theseregulations shall heMewheifo^dppJy^. The Safety Manualprovided by the Owner: is dnkf0)0estive and shall notcast any liability on thefO^ner:)}}

7P.2 The contractor shall orov.idetsafe means of access toall working places. - '

19.3 The contractor'. -.skeiih BbNsMeN T iV;responsible forproper desisn of ihe- scdl^ldmSkliemDorarv accesses,ladders and ramps. IformwhrhtdhdnSistins arransements. cranes etc. to ensure safety ofiwbrkmen as well as theworks. All scaffolds, ladders and other safety devices shalT-be maintained in safe conditions. Only-tubular scaffolding. .shall be used. ^ 'I •

79.4 All necessary personal safety/protective equipment,first aid kit, medically trained personal, fully equippedambulance and any other facilities as per the statutoiw,requirements should be always available on the site foruse. The contractor shall take' adequate steps to ensureproper maintenance and use of equipment by hisemployees/staff/personnel and workers.

79.5 Adequate precautions shall be taken to preventdanger from electrical equipment.

Crl. M.C. 1873/2015 & connected' .

Page 27 of 54

79.6 No materials on the site of work shall be so stackedor placed as to cause danger or inconvenience to anyperson or the public.

19.7 The contractor shall provide and maintain allnecessary temporary fire protection, and fire fightingfacilities at the site during the execution of the works inaccordance with the-. National Building Code of India 2005and the statutory regulations. The contractor shall ensurethat all gases, fuel and other dangerous and. explosivematerials and goods are stored: and handled in a. safemanner and in accordance with the statutory regulations.

79.8 - The contractor shall notify the ensineer immediatelyof any occurrerice of mishaps or accidents that i^esults indeath or iniui-v (including grievous injury) as defined inthe Indian Penal Code. Sueh fmtial notification may beverbal and confirmed in wffiing'thereafter and shall befollowed by comprehensive iyrittlcn report within 24 hrsof the nccurrence/incident., the ^ c' ontractor shall dulycomplete standard fo'rn^s fisKreq.iiirpd by the engineer andI statutory authorities. ' f-f ,, .

79.9 It is made cledk' fhdl.tfienhontractor alone as the. Principal' ErnploveriNis1''ans4vef^blkyfind liable to allinvestisatins and lesM .o/it^riMeslMcludms Court of Lawand the Owner shall not have anv part or liabilitv in thisregard. The Contractor alone shall be responsible and.liable to compensate the victMs-. -im.m.ediately on theoccurrence of the mishaps or accidents and also protectand indemnify and hold harmless the OM'ner, the engineerand all persons who may be associated with or connectedwith the owner or the engineer and to reimburse all legalandfinancial costs, if incurred, by the them, in this regard.

79.10 All consequences, damases or losses arising byreason of anv violation of .the safety requirements resultingin anv infuiy or loss of life to the contactor's or anv subcontractor 's Emvlovees/Staff/personnel and Workers/ThirdParty fnon-fatal/fatal) shall be met bv the contractor who

alone will be responsible for handlins and disposal of theaccidental cases with Government/non-Governmentauthorities. The Contractor shall he bound to paycompensation to the persons for the injuries sustained ordeath owing to neglect of the safety precautions should anyclaim proceedings be filed against the owner/engineer.The contractor hereby agrees to indemnify the owner andthe engineer against all liabilities and keep the owner, hisemployees, personnel, agents, representatives and anyoneconnected with the owner, protected from civil andcriminal prosecution in such cases and be answerable forthe same before all authorities. '

79.11 Within one week of commencement date, thecontractor shall submit . to the, engineer, detailed andcomprehensive contract shall' submit to the engineer, adetailed and comprehensive contract specific site safetvplan, based on the requirements {.stated in clause 79.1above. The site safety plan shad include detailed policies,procedures and resulatiohs ;which. :when implemented willensure safetv of all the.persons, induding third parties onor in the vicinity of the site (ingluding without limitationpersons to whom accessed tdaeisitpfiids been allowed by thecontractor). The contractor shMfih-bm time to time asnecessary, produce dippte^enidM'M^^'site safetv plan suchthat it is at all times 'detailed, comprehensive andcontemporaneous statement by the contractor of his sitesafety and indudfial.health, obligations., responsibilities,policies and procedure (under ike 'laws of India) or asstated in the contract or. elsewhere relating to work on site.

79.12 Any omission, inconsistency or error in the sitesafety plan or the Engineer's concurrence or rejection ofthe Site Safety. Plan and/or supplements thereto shall bewithout prejudice to the Contractor's obligations withrespect to Site safety and industrial health and shall notexcuse any failure by the contractor to . adopt proper andrecognized safety practices throughout the execution ofworks.

Crl. M.C. 1873/2015 & connected

, ' I "

79.13 The contractor shall adhere to the Site Safety Planand shall ensure that all sub-contractors of all tiers, havecopy of the Site Safety plan and comply with its provisions.The contactor shall appoint qualified and experiencedperson as Site Safety^ Officer to act as Manager of the SiteSafety Plan and who will be responsible for all safetymatters related to the works. The contractor shall fromtime to time, proyide such other personnel and resourcesas may be required to ensure effectiye operation of the SiteSafety Plan. The said Site Safety Officer shall submitregular safety reports to the Engineer in accordance withthe requirem.ents of the Engineer and all releyant statutoiyauthorities, as required by Applicable laws andregulations. The contractor shall submit on monthlybasis Certificate of 'Compliance for Health, Safety andEnyironment as giyen in Appendix, ''M". "

'(emphasis supplied)

37. It appears that in the wake of the fatal incident that occurred on28.02.2013 (death of Maqbool)iatthe.same very site, prohibitory orderfollowed by revocation orderyhad beenyi'ssued on 01.03.2013 and08.03.2013. Against the ,Said bachdrbptythe'construction contractorcompany had taken steps for'getting'the,safety audit of the projectdone. An audit report dated 03.04.2013 was submitted to theauthorities by the said company'undervthe cover of its letter dated25.04.2013. Reference to the said audit report and the correspondenceexchanged in such regard was made by the construction contractorcompany in its letter dated 17.06.2014, which is part of the materialthat was submitted with the criminal complaint leading to theimpugned order being passed. In the reply affidavit dated 28.09.2018,the complainant also confirms that National Safety Council (NSC)which had conducted the said safety audit had given satisfactory

Cr!. M.C, 1873/2015 & connecled

Page 30 of 54

report in respect of the safety measures that had been adopted by themanagement of the said compan}' and, in v iew of such audit report, theconstruction work was allowed to be resumed.

38. As noted earlier, it is admitted case even for the complainantthat in terms of the intimations that had been given, Mr. Daljeet Singh,the Diiector of the construction contractor was thePioject company, person "incharge of the construction site" and Mr. Harish Vaid,Manager (Internal relations) was the Manager of the Construction Site,within the meaning of Section 53 of the Building and ConstructionWorkers Act. As also noted .earlier, both the said accused personshave not challenged the summoning o'rderf •39. It was also brought ouf^iuring the ^course of hearing that at thetime of inspection(s), leading'to inspectiph reports dated 18.05.2014,24.05.2014 being prepared, if wd§ ivi^a^pet Singh, who was fbtindas the the person incharge oft|e complainant'sofficers in such . inspection, .'Skei--. ^.■^e report, prepared oninspection canded out in the forenoon of 18.05.2014, is the mostciucial inspection report, for purposes of the,, case arising out of-theincident that occurred in the afternoon of 17.05.2014. It concededlynoted, vis-a-vis the requirements of Rules 142, 178 and 179 thatPersonal Fall Airest System (PF.AS) and safety belts had beenbut not to the workers. It also noted that commonaiTanged provided safety system had not been provided "at various places", though notspecifying the locations where there was such deficiency in dueIt confirmed that health and as compliance. safety policy, required by

Crl. M.C. 1873/2015 & connected

Page 3iof54-

Rule 39 iiad been formulated, the breach of the statutory' rules wasnoted for the reason such policy had not been submitted for approval.The report, at the same time, confirmed that the inspecting officer hadfound and verified that safety committee, and emergency action plan interms of Rules 208 and 36 respectively were in position, the breach ofRule 209, however, being infeiTed for the reason qualifications , of the"safety officer" were not shown. In the brief note of the concludingpart of this report, it was fiirther observed that the temporary platformfrom where the worker had fallen did not have the provision of toeboard or guard rail. The inspection report dated 24.05.2014 is incontinuation of the report dated . 18.05.'.2!O14 and mainly noted thatAnkit Kumar (the deceased worker) was -#plying paint on the face of the wall at the 18^'\ floor level wto he. Sad slipped and fallen, to theground, he not wearing the safety belt;or'BFAS at that point of time.

40. Pursuant to the inquiries which were raised in the wake of thefatal incident of 17.05.2014, the epnstruction contractor company hadadmittedly sent various letters including letters dated 20.05.2014 and 03.06.2014 followed by another dated 17.06.2014, the last referring tothe previous cortespondence, .which cohcededly includes submissionby the construction-contractor company and yet another safety auditreport obtained from National Safety Council, Delhi Chapter, such. audit having been undertaken on 24'^ and . 25^'^ May, 2014. it wassubmitted by the construction contractor company that it was in fullcompliance with the statutorily prescribed health and safety measures,this having been confirmed by the safety audit report of May, 2014,

Crl M.C. 1873/2015 & connected

the safety policy having been formulated and forwarded' to theauthorities by letter dated 25.04.2014, duly qualitled duty safetyofficers having been deployed at site, the steps taken inclusive of the"following:- -

"2. On site safety measures ;

a)i L&T has deployed (3) Safety Managers, (5)Safety Engineers (12). Safety Supervisors and (30)Safety Stewards at site to control and monitor thesafety measures., ' .

b). L&T has provided personal protectiveEquipment to all woidkefts arid; its' usage is enforcedprior to construction siif entry.

c). The workers.: afe idm^d. about the hazardsinvolved, in parHpplar acimty- before start of theshift. ' S

d). L&T has protected the-floor edge with hard-barricades. I 1

e). L&T has prbtecfed dM openings, cut outs withreinforcementrtiat. -^''

f. L&T has closed all lift shafts with gates.

g). Safety eqtch-.'netsiarp:^^^^^^ below 6 m oflive working floor around periphery to prevent fallof materials and men.

h). All plants and machineries are fitted withsafety device and are frequently inspected andtested for safety compliance.

i). All electrical connections are routed throughRCCB, MCB and at source through ELR to avoidany electrocution and overload protection,

3. Medical and other facilities :

' Crl. M.C. 1873/2015 & connected

Page 33 of 54

a). Round the clock ambulance and first aidfacilities provided at site.

h). Well maintained canteen at site and workershabitat area. I , I ' I

c). Continuous water facilities for drinking andsanitation facilities.

. d). Mobile toilet's at various places at site andpermanent sanitation facilities in workers habitat

area.

Apart fro?n the 'above, all the-safety and welfare aspectsof the workers are duly taken care of at the work site..That L&T had got the Safely Audit conducted by NationalSafety Council, Delhi Chapter in the year 2013. The .Audit Team after doing extenSive '.survey / checking -atsite, submitted its report. T' ha ndl'ev.ant excerpts of thereports are as under :

a.). M/s. 'L&T': had pifdyi^ed adequate no. ofSafety Officers td deal ,kvi0 the requirements ofsafety managemmPiikjHd.Pidht. There is proper.work distribiitipn' qfndngsVtliese Safety Officers toprevent clash mr.esfphsibitiiy.f

b). The owner Had appointed expert consultantorganization M/s. Turner, who has appointedNEBSOH qualified. Safety Officers.

c) work at Height perm.it: In Indian Constructionmajority of fatalities occurs due to fall of workers .from height. Due to this high probability, it hadbecome necessary to ensure implem.entation ofHeight Work Permit. Under the permit only those-workers are allowed to proceed or. work at heightfor whom safe access - like ladders are providedand safe work place like scaffolds exists there. Thissystem is provided by L&T as shown to the"Auditors. -

d) Personal Protective Equipments

The use of safety helmet by all the constructionworkers was almost 100%.workers was almost 100%.

■© The use of safety belts by those who were ,working on external side and have potentialhazard of fall, was more than 9S%, as oneworker was found working without anchoring itwith rigid support.working on external side and have potentialhazard of fall, was more than 9S%, as oneworker was found working without anchoring itwith rigid support.

® Use of safety shoe was observed almost 100%.

e) Lifting Equipment and Tackles

Ws L &T had got numerous Lifting equipments andtackles. The safe ^use- of one lifting equipment was^checked. It was found, that the . operator was dtdy trainedand the operator and the signaler were understanding, thesignals very well. ,

fHazards of Worldfgqtfleight

L&Thad taken thefollowingmbasure? to prevent fall ofworkers from height: ' >•' >.

® All the openings 'dfLii^er':}flffa.tions were foundcovered with Barcovered with Bar

All the floor edges were suitably fenced withappropriate hand rails.appropriate hand rails.

The stairs Were cleaned for prevention of slippingfloor.floor.slippery

That in view of the observations of National SafetyCouncil (Delhi Chapter) in its report after conductingextensive checks/surveys on site, it can be safely inferredthat the Establishment has been complying with all thesafety norms as required under the law including BOCW.(RE&CS) Act. Any mishap at site despite best protectivemeasures could be an accident only with no human fault-or error. L& T has done its best to comply with all the

Crl. M.C. 1.873/2015 & connected

safety norms, which have been subject matter of surprisechecks and the same have been found to be in order.

Without prejudice to what is stated above, it issubmitted that L & T had also got another SafetyAudit Report done during 24-25"^ May, 2014 by theNational Safety Council Delhi Chapter and nothingadverse has been reported in the Audit Reportsubmitted. Copy of the Safety Audit report and thereleva?it photographs of the site are annexed asAnnexure (colly). Further, the establishment has gotits audit done from DGFASLI and the report isawaited and the same shall be submitted as and whenit is received.

41. The questions relating to porporate liability and vicariouscriminal liability of those connected to cor];)orate body have come upin the past before the courts,in the context of similar provisionscontained in various statutes includLng., Section 141. of the NegotiableInstruments Act, 1881 (for short, ''Negotiable Instmments Act");Section 34 of Drugs and Cosmetics Apt, 1940 (for short, I "DrugsAct"); Section 17(1) of the Prevention ohiond Adulteration Act, 1954(for short, 'PFA Act"); and Section 33 of the Insecticides Act, 1968(for short, "Insecticides Act").

42. On corporate criminal liability, the following observations-of aconstitution bench of Supreme Court in Standard Chartered Bank &Ors vs. Directorate of Enforcement & Ors (2005) 4 SCC 530 provideuseful guidance:-

"There is no dispute that company is liable to beprosecuted and punished for criminal offences. Althoughthere are earlier authorities to the effect that

Crl. M.C. 1873/2015 & connected

' Page 36 of 54

corporations cannot commit crime, ' the generallyaccepted modern ride is that except for such crimes as acorporation is held incapable of committing by reason ofthe fact that they, involve personal malicious intent, Icorporation may be subject to indictment or othercriminal process, although the criminal act is committedthrough its agents.

"xxx'

As- in the case of torts, the general rule prevails that thecorporation may be criminally liable for the acts of anofficer or agent, assupied to be done by him whenexercising authorised powers, and without proof that hisact was expressly authorised or approved by thecorporation. In the I . statutes defining crimes, . theprohibition is frequently I directed^ against any "person"who commits the prohibited, aeffindih many statutes theterm "person" is defihedi-fly^j^rthe person is notspecifically defined, it p^G.cCsarilydfieludes corporation.It is usually construed Id ■includfia.'; corporation so as to-bring it within the prohibifign dfffkjtatute and subject itto punishment. In mofi,pffilp\stqlM§fyiI^^ word "person "is defined to include corpprdfiofifp ;

xxx

Inasmuch as all criminal and quasi-criminal offences arecreatures of statute, the amenability of the corporation toprosecution necessarily, depends- upon the terminologyemployed in the statute. In,the case of strict lialbility, theterminology employed by the legislature is such as toreveal an intent that guilt shall not be predicated uponthe automatic breach- of the statute but on theestablishment-of the actus reu's, subject to the defence ofdue diligence. The law is primarily based on the terms ofthe statutes. In the case of absolute liability where thethe clearest intendment establishes anlegislature by offence where liability arises instantly upon the breach of

the statutory prohibition, no particular state of mind is

CrL M.C. 1873/2015 &conne-cled

prerequisite to guilt. Corporations and individualpersons stand on the same footing in the face ofsuch astatutory offence.. It is case of automatic primaryresponsibilit)'. Therefore, as regards corporate criminalliability, there is no doubt that corporation or companycould be prosecuted for any offence punishable underlaw, whether it is coming under the strict liability orunder absolute liability.

XXX

All penal statutes are to be strictly construed in the sensethat the court must see that the thing charged as anoffence is within the plain meaning of the words used andmust not strain the words^ on any notion that there hasbeen slip that the thing is so clearly within the mischiefthat it must have been intended, tofe included and wouldhave been included ftimitght of Mlpenal provisions like^all other statutes are to be jairly^ construed according tothe legislative intent as.expressed in the enactment. "■

43. By virtue, inter alia, of the registration, dated 22.02.2012granted to the constructions contractor; co.mpany by the respondentunder Section 7 of the Building and Construction Workers Act, thecomplainant was privy to the above-said contractual arrangement vis-a-vis the project in question.b#weeh the-iahd owner company and theconstruction contractor company.

44. It is vivid from bare perusal of the provisions of the Buildingand Construction Workers Act, as indeed the rules framed thereunder,that the land owner chosen to outsource the work ofcompany having the constructions, had passed on the responsibility for all compliancesto be made by the construction contractor company in terms of the

Page 38 of 54

Cii. M.C. !873/2015 & connected

law, and the contractual arrangement, to which detailed references-have been made above.' It is the construction contractor companywhich was given the responsibility of carrying out the constructionwork and, for such purpose, engage the workers. Under the law, it isthe construction contractor company which, in the present case, is ''theemployer'' - the establishment which was to make compliances foimeasures to be "in There is no safety put position. responsibilityshown of the land owner company, or anyone connected thereto, thishaving- been clearly understood. and explicitly so stated even in thecontract entered upon by it with the construction contractor companyon 29.03.2012. Thus, neither the.land ^py^ner company nor those in-charge of or responsible to the condhcf of its business can beprosecuted for the offence under Section 47 of the Building andConstruction Workers Act on the faets'set out in the complaint from,which the present petitions arise.

45. The case against the constructioh c'dptractor company and. thosestated to be in-charge of or responsible for conduct of its business,however, would stand on different footing .and, thus, need scrutinyseparately.

•46. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi andOrs., (1983) 1 SCO I, while dealing with 'the applicability ot Section17(1) of PFA Act, the Supreme Court obseiwed as under;-

"75. So far as the Manager is concerned, we are satisfiedthat from theinferred that hp. would undoubtedly bep^riouslv liapiefor the offence; vicarious liability being an incident oj an

Page 39 of 54

ICrl. M.C. 1873/2015 &'connected

offence under the Act. - So far as the Directors areconcerned, there is not even whisper nor shred ofevidence nor anything to show, apart from.' thepresumption drawn by the complainant, that there is anvact committed, by the Directors from which reasonable 'inference can be drawn that thev could also bevicariously liable. In these circumstances, therefore, wefind ourselves in complete agreement with the argumentof the High Court that no case against the Directors(Accused 4 to 7) has been made out ex facie on the.allegations made in the complaint and the proceedingsagainst them were rightly quashed.

(emphasis supplied)

47. Following the aforesaid; riiling-, in construing the effect ofSection 34 of the Drugs Act in decisionVreported as State ofHaryanavs. Brij Lai Mittal and Ors., (1998) 5 SCC 343, it was held thus:-

"8 ...the vicarious liability of person for beingprosecuted for an offence committed under the Act by acompany arises if at the material time he was in charge ofand was also responsible to the company for the conductof its business. Simply because person is director ofthe company it does not necessarily mean that he fulfilsboth the aboye requirements so as to make him liable.Conyersely, without bein.2 director person can, be in.charse of and responsible to the company for the conductof its business. From the complaint in question we,howeyer, find that except bald statement that the Irespondents were directors of the manufacturers, there isno other allegation to indicate, eyen prirna facie, tha.tthey were in charge, of the com.pany and also responsibleto the company for the conduct of its business. "

(emphasis supplied).

Crl. M.C. 1873/2015 & connected

Page 40 of54

48. The counsel for the petitioners have placed reliance on NationalSmall Industries Corpn. Ltd. vj'. Harmeet Singh Paintal, (2010) 3 SCC330 and Pooja Ravinder .Devidasani vs. State of Maharashtra andAnr., (2014)16 SCC 1 both dealing with issues of vicarious liabilityunder the Negotiable Instruments Act. In National Small IndustriesCorpn. Ltd. (supra), it was observed thus:-

J^'. is penal provision creating vicariousliability, and which, as per settled law, must be strictlyconstrued. It is therefore, not sufficient to make hnidcursojy statement in complaint thnt tho(arrayed as an accused)ris in charge of and responsibletpjhe company for the conduct, of the business of the.without more as : to the role of thecompany anything Director. But .the complaint should spell out as to howand in what manner Respondent.I was in nhnra(> n-f Iwas responsible to the ac;6used]Gompany for the conductof its business. This is ' inf consonance with strictinterpretation of pencd.. staiplisi -eso.ecialh. where suchstatutes create vicarioyfi^iMmMd'^

14. company and to make any or all tide 'Djfhciimk as accused in a.on the basis of statement t^iat arecomplaint merely they in charge of and responsible for the conduct of thebusiness oj the company without; anything more is not asufficient or adequate fulfilment of the requirements Iunder Section 141.

(emphasis supplied)

49. In Pooja Ravinder Devidasani (supra) while observing that "adirector of is liable to be convicted for an offencecompany committed by the company if he / she was in charge of and wasresponsible to the company for the conduct of its business or if it is

CrL M.C. 1873/2015 & connected

proved that the offence was committed with the consent or connivanceof or was attributable, to any negligence on the part of the Directorconcerned" and nciting that 'Hn the entire complaint neither the role ofthe appellant in the affairs of the company was explained nor in whatmanner the appellant is responsible for the conduct of business of thecompany was explained', the. prosecution against the appellant for theoffence under Section 138 of the Negotiable Instruments Act wasquashed.

50. While examining similar questions ,vis-a-vis Section 33 ofInsecticides Act, in judgment reported as State of NOT of Delhi V5.Rajiv .Khurana, (2010) 11 SCO 469, taking note of the law which hasdeveloped primarily , in the context of-^Section 141 of NegotiableInstruments Act, it was held thus:-

"17. The ratio of all these cases is that the complainant "isrequired to state in the complaint how Director who issought to be made an accused, was in charge of thebusiness of the company or responsible for the conduct ofthe company's business. Every Director need not be andis not in charse of the business of the company. If that, isthe position with resard to Director, it is needless toemphasise that in the case of non-Director officers, it isall the more necessary to state what were his duties andresvonsibilities in the conduct of business of the companyand how and in what manner he is responsible or liable. "

(emphasis supplied)

51. Reliance has also been placed on the decision of the SupremeCourt reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla,

Crl. M.C. 1873/201.5 & connected

Page 42 of 54

(2005} 8 see 89; Gunmala Sales vs. Ann Mehta, (2015) I See 103and Standard ehartered Bank vs. State of Maharashtra, (2016) 6 See62, all cases' dealing with Issues relating to the effect and import ofSection 141'of Negotiable Instruments Act. Taking note of suchdecisions in Jwala Devi Enterprises P. Ltd. vs. Fadi El Jaouni, 2018SeeOnline Del 10030 this Court culled out the settled law as under;-

"14. The guiding principles with reference to Section141 of the Negotiable Instruments Act, 1881, which arenow well settled by judicial pronouncements, some ofwhich have been noted [above, may be summarisedthus. I ,

I(i) It' is only those persons who are incharse of or responsible for the conduct of the .business of the company at the time ofcomrnission of the offence under Section 138of the Negotiable Instruments Act, 1881 whocan be subjected to criminal action withreference to Section 141;

(a) If the person committing an offenceunder Section 138 of. the NegotiableInstruments Act, 1881 is company, theperson who was si2natorv to the cheque whichis dishonoured is clearly responsible for theincriminating act and would be liable to beproceeded against under Section 141 (2);

'-(Hi) Bv virtue of the office fhev hold, thepersons working in the capacity of theManasins Director or Joint ManasingDirector are deemed to be in charse of. andresponsible for the conduct of the business of,the company and, therefore, can be proceededagainst in terms ofSection 141;

Crl. M.C. 1873/2015 & connected

(iy) Merely because person is directorof the company is not sufficient to make himliable under. Section 141, there heins. nodeemins that by holdins such position he is in•charge of, or responsible for the conduct ofthe business of the company within, themeaning ofSection 141;

(y) It is necessary for the complainant tp_specifically aver in the complaint that at thetime the offence was committed, the personsought to be prosecuted was in charge of orresponsible for the conduct of the business of,the company in terms of Section 141, therebeins no need for further particulars to besiyen in the complaint about his role, this.beins subject to proof at the trial:

(vi) The person who has been summoned asan accused for offence under Section 138 ofthe Negotiable Instruments Act, 1881 on thebasis of averment that he was director of thecompany accused, he being in charge of orresponsible for the conduct of its businesscannot get the complaint quashed by the HighCourt by filing petition under Section 482 ofthe Code of Criminal Procedure, 1973 merelyon the' ground that no particulars as to hisrole haye been set out in the complaint; and

(yii) The person who has been summoned asan accused for offence under Section 138 ofthe Negotiable Instruments Act, 1881 byinvoking the provision contained in Section,141 may persuade the High Court to quashthe process in exercise of its inherent powerunder Section 482 of the Code of CriminalProcedure, 1973 by furnishins "some sterlingincontrovertible material or acceptablecircumstances" substantiating his contention

that he was not in charge of nor responsiblefor the conduct of the, business of the company"at the time the offence was committed" andthereby showing case that making him. standIthe tidal would be an abuse of the process ofcourt, but not otherwise. " I

(emphasis supplied)

52. Having regard to'the statutoiy scheme and also the stipulationsof the contract dated 29.03.2012, there is no escape from iht prim^-facie conclusion that the construction contractor company is not onlythe principal employer of the workers engaged in the constructionproject where the fatal accident'took place but was also responsible forarranging all the prescribed safety meaishred under the Rules. Section47 read with Section 53 of theSuildihg and Construction Workers Actthus creates coiporate criminakllability. against the said company and.i r' .by virtue of the principles of vtcariouhmrifriinal liability, every person' who, at the time when the sMd.bffence^f'jyia^ was in-cllargeof and was responsible tof the^isaidllcbihb'ahy for the conduct of itsbusiness, as well as . the cOmpAhy,t arevdeemed to be liable to beproceeded against. Just as in the case of Section 141 of NegotiableIInstruments Act, by virtue, of the-.office they -hold, such persons aswork in the capacity of managing director or the joint managingdirector or, for that matter, persons employed as in-charge of theconstruction work at site, be it in managerial position or in any. supervisory position, are deemed to be in-charge of and responsiblefor the conduct of the business, to the company. They can, therefore,be proceeded against in terms of Section 53. At the same time,however, merely because person is "director" of company is

GH. M. C. 1873/2015 & connected

not sufficient to attract Section 53, there being no deeming that byholding such position he is rendered to be one who is 'Hn-charge ofor ''responsible to the companf for the conduct of its business. As isalso well settled in the context of prosecutions under the NegotiableInstruments Act, though it is necessary to specifically aver in thecomplaint that the person sought to be prosecuted was in-charge of orresponsible to the company for the conduct of its business "at the timethe offence was committed', there is no requirement in law for "furtherparticulars to he given" in the' complaint about his role, this beingsubject matter of proof to be adduced at the trial.

53. In the considered view of this Court, the words "for the conductof the business of the company" appearing in Section 53 are mostcrucial, pregnant with meaning and provide the key to determinewhether person connected to 'the company may be held accountablefor the acts of commission or^ omission/ constituting the offence underSection 47 of the Building nnd Constructipn'Workers Act. After all,it is the status of being "in-charge of or being "responsible" for suchbusiness of the company that exposes the individual to vicariouscriminal liability. If the acf of commission or omission is attributableto the neglect of the 'person or on account of his "connivance" or forthat matter, with his "consent', sub-section (2) of Section 53 directlyattracts the application of penal provision. For the deeming clausecontained in sub-section (1) of Section 53 to kick in, there has to be anexus between the area of responsibility of the person concerned, onone hand, and the act of commission or omission leading to the

Crl. M.C. 1873/2015 c& connected

Page 46 of 54

contravention of the rules under Section 40, on the other. To put itmore precisely, and clearly, in the context of the offence under Section47 of Building and Construction Workers Act, the responsibility vzh-a-vis the specific rule framed under Section 40 (the breach of which isalleged) has to be shown to be in existence for person comiectedwith the business of the company presumed to be 'Hn-charge" or''responsible". There can be no thumb rule that every person "in-charge of " or "responsible to", for the conduct of the business of thecompany in the general sense of the term would be vicariously liableunder the criminal law whether , or not he was expected to play anyspecific role or discharge responsibhity fowards specific rule, at thestage when its breach has led to the- fatahfy.'or serious incident.-.

54. different approach Majh ihe/johe^^^ove to the subject mightlead to unjust results. " This-■.ma)|',i)^ illustrated by two simpleexamples. As noted earlierj•• §]3|iiB^er (establishment) is dutybound, in terms of Sectibn ^'^(liCgJ, intimation, prior tocommencement of the building 'or otKef construction work, as to thename and designation of the person who will be "in overall charge" ofthe building or such construction wOrk.f'TTaying regard to the schemeof the enactment and the rules fi"amed thereunder, the employeris also to frame (establishment) responsible "safetypolicy" (rule 39)and also to appoint and .deploy »a "safety officer" (rule 209). If the•breach relates to default in framing of written statement of safetypolicy, or appointment of duly qualified safety officer, by theestablishment, the person appointed as "overall in charge o/'fthe

Crl. M. C. ]873/2015 & connected .

"construction work at site'' cannot be held accountable. After all,framing of policy, or appointment of safely officers, as required bylaw, are matters of policy and subject to decision of the persons atsuperior levels (unless the authority is delegated to the one who is in-charge at site) including those working as managing director.Similarly, if those responsible for framing or taking of policydecisions or making available all requirements in the nature ofmanpower (safety officers) Or safety equipment (safety belts, safetynet etc.) have done their bit and the breach of the rules noted at thelevel of the supervisory staff.at -the construction site (i.e. the person in-charge of the constmction work at site, under Section 46 or thoseassisting him in the task) theyliavingmbt 'ensured the safety equipmentto be availed of by the workefs,fthe fonher (those responsible for theconduct of the business at the higher levels), cannot be heldaccountable under the deeming proyisipn;-. ,-:'

55. It is the • comiected to- theargumeHt=;.-.-o.|,.|)"^M"0hers construction contractor comphhy vik;, M Naik (Cii.M.C.2069/2015), K Venkatramanan (Cii.M.C. 2068/2015), M V Kotwal(Crl.M.C 2.070/2015), S.k SubraMariyam {Cii.M.C. 1873/2015), RShankar Raman (Crl.M.C. 2072/2015) and Shailendra Roy (Crl.M.C.2071/2015) that they had discharged their responsibility for duecompliances to be made, in letter and spirit, with the provisions ofBuilding and Construction Workers Act and the rales framedthereunder and that the breaches, if any, occurred at the level of theperson(s) in-charge' of the construction site i.e. Daljit Singh, Project

Crl. M.C. 1873/2015 & connected

Director and Harish Vaid, Manager (Industrial Relations). It is flirthertheir argument that it is not correct to- accuse them, under the deemingprovision of Section 53, of complicity in the offence under Section 47,in the context of the fatal accident of 17.05.2014 also for the reasonthat the worker in question (Ankit Kumar) had been engaged by asub-contractor, the representative of such sub-contractor being thewho has been found in the person responsible investigation by policein the corresponding case for IPG offences. In this context, theycrave reference to the sub-contract in terms of which the deceasedworker (Ankit Kumar) had been deployed at the 18"\ floor level fromwhere he fell to the ground to S.uffer hidrfcaf injuries.

56. The copy of the sub-contfact, ■asishjjwn at the hearing cannot betreated (without proper, proo^ as .authentic or ^Hncontrovertiblemateriar or as one exonerating the construction contractor companyof its entire responsibihty in tbe^-naattpr^; particularly in view of itscontinued of tho sub-contractor asresponsibility per clause 79.13 of the contract'dated" ■2'9.03.2012, refemed to earlier.The argument based on the sub-contract, entered upon by theconstruction contr^actor company--.Mth the: immediate employer of thedeceased worker cannot also be accepted at this stage of theproceedings, particularly in exercise of the power and jurisdiction ofthis Court under Section 482 Cr.P.C., inasmuch as it involvesquestions of fact [Rajiv Thapar and Ors. vs. Madan Lai Kapoor,(2013) 3 see 330].

Crl. M.C. 1873/2015 & comectad .

Page 49 of 54

57. There is no contest to the submission that the constructioncontractor company is group of companies comprising of largenumber of subsidiaries (130) and associate independent companies(15), it being structured in manner that each of its such subsidiarieshas its own separate Board of Directors and supervisory persomielusing the nomenclature of Chief Executive Officer (CEO), Chief Financial Officer (CFO) and Human Resources (HR) Head. Thesubsidiaries and the associate companies have been incoiporated tooperate in different schemes or spheres including building andfactories, civil infrastmcture, metallurgical & material handling, power transmission and distribution, hydrocarbon engineering, valves,alloys, power development, infotech, finUnce, construction and miningmachineiy etc. ' ,

58. The complaint on which the smhmoning order was passed itselfdescribes Mr. A.M.-Naik, petitipner. in 0x1^.0.2069/2015 to be theGroup Executive Chairmafe'.-Q.f."^p-' :©pnshli.6don contractor company.Similarly, the description of Mr.' M.V. Eotwal, Mr. R. Shankar Ramanand Mr. Shailendra Roy - petitioners in Crl.M.C. Nos. 2070/2015,2072/2015 and 2071/2015, - even as per.the complainant has been thatthey were working at the relevant poi.nt of time in the capacities ofwhole-time Director and President (Heavy Engineering), whole-timeDirector and Chief Financial Officer (CFO), and whole-time Directorand Senior Executive Vice President (Corporate Affairs and Power)respectively. By no stretch of reasoning or logic, these fourpetitioners can be said to be responsible for the compliances to be

made with regard to tlie prescribed safety measures concerning the,constmction project in question. By virtue of the respective positionseach of them held, their responsibilities had no nexus with the subjectat hand.

59. .Unhke the above, it cannot be said that the offices held, or thelesponsibilities shouldered, by Mr. K. Venkataramanari (petitioner inCrl.M.C. 2068/2015) or Mr. S.N. Subrahmanyam (petitioner inCrl.M.C. 1873/2015) had no connection with the obligations of theestablishment of the ''employer" (construction contractor company)-towards of the Workers Act orcompliances Building:.and"Construction the rules framed- thereunder. These petitioners do not dispute that atthe time of alleged commission of the nfAnce under Section 47 of theBuilding and Construction Workers Act,!;they were worldng fOr theconstruction contractor company;in the capacity of CEO & ManagingDirector and whole-time ^^;^#«Executive Vice President.(Infrastructure-& Constructibn).||sp^k^fel|of ^

60. The of the held and thevery description port-folios they responsibilities that woiild entjail-therefrpni .^^z/wayhc/e shows that theallegations in the criminal.complaint as to their deemed liability underSection 53 cannot be said to be unfounded, not the least without trial.

61. There is merit in the argument of the last two above-mentionedpetitioners that given the positions held by them in the company, theycould not be expected to remain present- at the construction work siteto ensure due compliances to be made with rules 42, 178, 179 or 196read with Section 38 of the Building and Construction Workers Act

Crl. M.C. 1873/2013 & connected '

Page 51 of 54

that concern day-to-day use of safety belts, safety nets,, safetyplatforms, or personal fall aiTest systems. But then, it cannot beignoied that in (eighth para of) the complaint (extracted earlier), thereare also allegations - of breach on account of non-implementation {inletter and spirit) of health and safety policy in terms of rule 39 andnon-appointment of duly qualified safety officers in breach of therequirements of rule 209 read with Section 38 of the Building andConstruction Workers Act. These two specific areas cannot, by anystretch of arguments, be relegated to the domain of the. managerialstaff (M-. Daljit Singh and Mr. Harish Vaid) made in-charge of theconstruction site. • ,

62. The above petitioners, however,'.alsp raise the,defence based onthe two safety audit repqrts, one dated p3::04.2013 and the other dated24-25.05.2014. It would be subject matter of factual inquiiy as towhether the safety audit .report; submitted on 25.04.2014, obtainedaftei the fatal accidents in ques.ti0n, can be,.ffeated as one representingthe correct position prevaiiing at the time of commission of theoffence. Further, it would be the onus of the defence to show that thecertification'by audit report 03.04.2013 would hold good till date ofthe,fatal accident of 17.05.2014. There are specific allegations in thecomplaint that as on the said date, i.e., 17.05.2014, duly qualifiedsafety officers were not in position they having not been appointed interms of the of the construction contractor underobligation company rule 209 read with Section 38 of the . Building and ConstructionWorkers Act. Since this area would fall prima facie within the-

Crl. M.C. 1873/2015 & connected

domain of the responsibilities held by petitiotters K. Venkataramananand S.N. Subrahmanyam, they are liable to be proceeded against underthe deeming clause of Section 53. At the trial, they would have theopportunity, in terms of proviso to Section 53(1), to prove that thebreaches constituting the offences :were committed without theirknowledge or that they had exercised I all due diligence to preventcommission of such breaches (or offences).

^ On the above facts, and in the circumstances,. initiation ofcriminal action against petitioners - DLF Universal Ltd. (petitioner inCrl.M.C.2064/2015), Mohit Gujraf (petitioner in Crl.M.C.2067/2015),Rajeev Talwar (petitioner in. Crl.M:C.2066/2O15), Shriram Khattar(petitioner in Crl.M.C.2160/2015), AshoH:Kumar Tyagi (petitioner inCrl.M.e.2159/2015), ■, Sudhir • .Sahgal ' (petitiorier inCrl.M.C.2158/2015),:A.M. Naik (petitioner in Crl.M.C.2069/2015);M.V. Kotwal (petitioner m'6i®t(E.2epQ015), R. Shankar Raman(petitioner in Cri.M.C..2Ofe/20t);and|piendra Roy (petitioner inCrl.M.C.2071/2015) being unfoundedf'fhe continuation of ' suchproceedings against them would be an abuse of the process of law'.Therefore, their petitions" are, aifswed-vSnd. the proceedings againstthem in the criminal complaint case (CC 55F1/14) pending in thecourt of the are Metropolitan Magistrate hereby quashed.

64. For the reasons set out above, however, there is no case madeout for this court to exercise its inherent and underpower jurisdiction Section 482 Cr.P.C. to inhibit the criminal proceedings in theaforementioned case against' S.N. Subrahmanyam (petitioner', in

Cil.M.C. 1873/2015 & connected

Page 53 of 54

Ca.M,C.117!/20U) „a t i.Crl.M.C.2068/2015). In the- consequence, the said petitions are herebydismissed. It must, however, be added that nothing stated abovewould be treated as final of on merits of the caseexpression opinion 'against the said petitioners. .

65. The and the filed therewith are petitions appiications' disposedof in above terms. - I

(k.K.GA'A)JUDGE

NOVEMBER!9,2018 vk/nlc/yg

V. . w I

CiI. M.C. I87j/20]5 & connected

Page 54 of54