CRL.M.C./2064/2015 of DLF UNIVERSAL LTD. T HR. ITS AUTHORIZED REPREXENTTIVE Vs STATE NCT OF DELHI THR. FACTORY INSPECTOR

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 DELHrDecided on: 19^'* November, 2018

+CRL.M.C. 2064/2015

DLF UNIVERSAL LTD. THR. ITS AUTHORIZEDREPRESENTTIVE ..... Petitioner

..... Petitioner

Through;

Mv_. Rarjiesh Gupta,; Sr. Advocate with:t, ' Mr. Sahdedp KapuE Yivek Suri,

AdVS^;^:'.

versus -

STATE NGT OF DELHI THR'. fACTORY INSPEGTOR

f, 'f ' :..r. RespondentThrough; . Mr. Tylukesh Kumar, APP.

:..r. Respondent

CORAM:' '■HON'BLE MR. JUSTICE R.K.GAUBA

ORDER (ORAL!

/i v" I

For detailed order, the decision dated 19^'' November, 2018 inGrl.M.G. 1873/2015 ma|||;refp^to^^gpgf|^

kKGAA

NOVEMBER 19, 2018

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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. SUBIU^IIMANYAM:

.....Petitioner

' Thi-ougii: " . Mr. Vikas Pahwa, Sr. Advocate with. " Ms. Sima Gulati, Mr. Subhash Gulati,Mr.Shailesh Poddar, Mr. Vinit Arora, & Mr. Sumit Saini, Advocates.. " Ms. Sima Gulati, Mr. Subhash Gulati,Mr.Shailesh Poddar, Mr. Vinit Arora, & Mr. Sumit Saini, Advocates.

versus:

STATE

Respondent

Through;' ivin Mukesh Kumar, APP.

". ' • ^ ' 1 ' . -■CRL.M.,C.2064/20.1S/:

DLF UNIVERSAL UTD: THR.. ITS AUTHORIZEDREPRESENTTIVE

....'.Petitioner

Through: : Nh^ Rames'h Gupta, Sr. Advocate with;; "T V', :Mr-,;.Sande^'Kapur, Mr. Vivek Suri,. ', -Karan: Seth & Mr. Mayank Datta,;: vT hAdvs.

- iVersiis. V-

STATE NCT OF DELHI THR. FACTORY INSPECTOR

. ' RespondentThrqugh: Mr. Mukesh Kumar, APP.

TiIII

CRL.M.C. 20^6/2015 'RAJEEV TALWAH ' PetitionerThrqugh: . Mr..Sidharth Luthra, Sr. Adyocate, with Mr. Sandeep Kapur, ML VivekV Mr. Kam Seth, Mr. Mayank

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

Paged of54

• Datta & Mr. Aashn^et Singh,Advocates.

: versus • ' ,

STATE NCT OF DELHI,

..... Respondent

Through: Mr..Mukesh Kumar, APP.

CRL.M.C. 2067/2015 '

MOHIT GUJRAL

Petitioner

Through: • Mr. Ramesh Gupta, Sr. Advocate withMr. Sandeep Kapur, Mr. Vivek Suri,Mr. Karan Seth & Mr. Mayank Datta,Advs.

versus

. STATE NCT. OF DELHI TER. FACTORY INSPECTOR

Respondent

Through:

Mi'. Mukesh Kumar, APP.

■CRL.M.C. 2068/2015 & CFiLi^A. 7363/2015

KYBNKATARAMAp!im;\.

Petitioner

Througln. ' MrV©a|^'|nk:ishnan, Sr. Advocate with

AnirudhBhat,.

Advocates.

versus

STATE

..... Respondent

Through; . Mi'. Mukesh Kumar, APP.

'" CRL.M.C. 2069/2015 & CRL.M.A. 7366/2015

M NAIK

PetitionerThrough: Mr. Kapil Sibbal & Mi';Dayanlaishnan, Sr. Advocates withMr. Mahesh Agarwal, Mr. AnujMalhotra & Mr. Anirudh Bhat,- .Advocates.

;•. 'CrL- M.C. 1873/2015 & connected

Page 2 of 54

ii";I,[j1;)'

versus

STATE & ORS.

Respondents

Through: Mr. Mukesh Kumar, APP.

CRL.M.C. 2070/2015 & CRL.M.A. 7369/2015MVKOTWAL I

I Petitioner

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

versus ,

STATE & ORS. Respondents

Through: Mr. Mukesh Kumar, APP.

CRL.M.C.2071/2015.&^G]RE*A, 7373/2015

SHAILENDRA ROY Petitioner

Through:. Ms. SirhaOulati with Ml". SubhashOuiahJ^]i::Shailesh Poddar & Mr..SumitlSaihi, Advocates.

versus , .RespondentRespondent

STATE

Through; Mk^Milkesh fCumar, APP.

CRLM.C.2072/2015v&'<iM:vMA7375/2015 .

R. SHANICAR RAMAN Petitioner-Through: Ms. Sima Gulati with Mr. SubhashGrilati, .Mfe Shailesh Poddar &.I' MivSuthit'-^Saini, Advocates.

versus

STATE

Respondent

Through: Mr. Mukesh Kumar, APP.

+CRL.M.C. 2i58/2015 & CRL.M.A. 7635/2015^SUDHIRSAHGAL .....PetitionerThrough: Mr. R.K. Handoo with Mr. SandeepKapur, Mr. Vivek Suri, Mr. Mayank

Crl. M.C. 1873/2015 & connected

Page 3 of 54

\Ii<•1i

Datta, Mr. Karan Seth & Mr.Aashn^t Singh,Advocates.

versus

STATE NCT OF DELHI RespondentThrough: Mr. Mukesh Kumar, APP.

+CRL.M.C. 2159/2015 & CRL.M.A. 7672/2015ASHOK KUMAR TYAGI PetitionerTlirough: Mr. Sidharth Luthra, Sr. Advocatewith Ml'. Sandeep Kapur, Mi'. VivekSuri, Mr. Kam Seth, Mr. MayankDatta & Mr. AashneetISin^i, Advocates.

!* :versusSTATE NCT OF DELHI . i Respondent

Through: Mr. Mukesh Kumar, APP.

+CRL.M.C. 2160/2015;'&Cia.M.A,••■7637/2015SHRIRAMKHATTAR' •; AA ^ ^ PetitionerThrough: with Mr. SandeepKapuryl^'- Vivek Suri, Mi'. MayankDatta, Mr. Karan Seth &Mr. Aashneet Singh, Advocates.

■Versus

STATE NOT OF DELHI Respondent

Through: Mr. Mukesh Kumar, APP.

CORAM;

HON'BLE MR. JUSTICE R.K.GAUBA

.T U M N T

1. The work of of DLF Green at adevelopment Capital Project construction site described as 15, Shivaji Marg, Deihi-110 015 owned

Cvl 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 IS^'' floor of Tower No. 14, while applying paint on theface of the exterior wall, fell down to the ground suffering serious' .injuries that resulted in his death.

2. The matter was reported, inter alia, to the Station House Officerof Police Station Moti Nagar who registered first infonnation report(FIR) No.429/2014 and took up the investigation into offencessuspected to have been committed, thby being punishable underSection 288 (negligent conduct with respect to pulling down orrepairing building) and Section 304-A (causing death by negligence)of Indian Penal Code, I860- (IPG) ■. The.-in^estigation into the said FIRresulted in report under 'Sechon' "-,173' (of'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 thesaid 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 the death attributable to" acts of commissioncompany, being or 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

Q'l. M.C. 1873/2015 & connected Page 5 of d4

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 crimina] complaint (CCNo.55Fl/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 cognizahpe hy order dated IG.09.2014and issued summons on the said co'mpladnf inter alia, against thepetitioners who have approached this court invoking inherentjurisdiction under Section 482 Cr.P,.C-. rby the captioned petitionsseeking the proceedings arising out of the said criminal complaint caseto be quashed on the ground the.;sarne isdh; the nature of abuse of theprocess of the court. ;;

4. It may be mentioned here that the criminal complaint in whichsummoning order was passed which iis'.iimpugned here, fifteen (15)persons were shown in the fray as accused, they including the landowner company and the construction contractor company, five of theaccused persons being associated with the land owner company whileeight others connected 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 of54.

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 mles 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 Chairma:n Mohit Gujral (petitioner inCrl.'M.C.2067/2015), its Managmg-Direp^bA Talwar (petitioner ,in Crl.M.C.2066/2015) rf>s.Pii^t(|^;iShru^ Khattar, AshokKumar Tyagi and Sudhir Shhgal :(p^|i^ers in Crl.M.C.2160/2015,2159/2015 and 2158/2015 resp^ctiy^iprimarily contend that theconstruction contract the said other having-beeb'-eHlfusJ^^^^ company,the work being carried out;un%. the, sp|qi^ision and control of thelatter through its sub-contractor, it having no connection whatsoeverwith the day-to-day activity, it had no role to p.lay or nexus with any ofthe acts of commission or omfesiori ,bnTi!bhasis of which accusationshave been leveled, no case also being made out of vicarious liabilityunder the criminal law.

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

t Crl. M.C. 1873/2015 & connected-

to this court with the order of the up any plea assailing 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. Venkataramanan, 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 C'ohstruction) (petitioner inCrl.M.C. 1873/2015); R. Shanlcar Ramah,'whole-time Director & CFO /(petitioner in Cii.M.C.2072/2®15).; and" Shailender Rao, whole-timeDirector and Senior Executive Vice President (Corporate Affairs andPower) (petitioner in Crl.M.C.207i/20i:5). The thrust of thearguments of this set of petitionefs is tlmt'given their position in thehierarchy in the construction contractor cd'mpany, having regard to themeasures that had been put in position under their directions, in stiictcompliance of and adherence to the law, The work in question havingbeen entrusted to sub-contractor, their representative being in-chargeIof 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 before theMetropolitan Magistrate, and in which they have been summoned suchproceedings being abuse of the law.

Cii. 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 incompliance reply dated 28.09.2018 styled as reply affidavit to thesupplementary documents was •brought on record by the respondentson 29.09.2018. I ; . ^ .

9. The Building and Construction t^ofkers Act was brought on thestatute book enforced w.e:f. '0i.03..1996 with the objective ofregulating the employment and condltioiis of service of building andother construction workers--M'%i^p0|^|'>|"Or their safety, health andwelfare measures and for; <■ other lipa'her^^^^ therewith oiincidental thereto.

10. The expression •■%uilciing or oj^r:-i.^'Qristruction work" isdefined by Section 2(l)(d) to medn, Mer alia, "the construction,alteration, repairs, maintenance or demolition, of or, in relation to,buildings... ". There is. no dispute thafthe 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 worA:" within the meaning of theI statute. The worker" is defined Section to mean"building by 2(1 )(e) !l . ^ I I \i, VCri M.C. 1873/2015 & connected . Page 9 of 54

"a person who is employed to do any skilled, semiskilled or unskilledmanual, supervisoiy, 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 project 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' definitipinsi, as appearing in clauses(g), (i) and G) of Section 2(^1) of;t|Pifelding ,and ConstructionWorkers Act, may be taken note of as';Undpr:-

"(g) "contractor" means persqin who undertakes toproduce ffiven result for anvkstdblishment, other than q Imere supply of gooc^\Qif:drtwlesjpf'manu^ by theemployment of buildin2 workers,'br,who supplies buildingworkers for any work, of the esiabiishment; and includes asub-contractor;

(i) "employer", in relation to an establishment, means theowner thereof, anddncludes, - , , j r

(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 authority Ispecified in this behalf, or where no authority isspecified, 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

Crl. M.C. !873/20]5 & connected

Page 10 of54

without i^hny.'.cont^-actor,. the chief executiveofficer of iliaf authority or establishment;

(Hi) m I relation id huildim^ or othercohstructioh work carried on by or though acontractor;^ or by 'tfie, employment of buildingworkers) supplied by\ contractor, . thecontractor:

(j) ''establishmbnt'\me,ans any establishment belongingto, or under the control of. Government, any bodycorporate or firm, an individual or association or otherbody of individuals which; or who employs buildingworkers in any'buildin2 or other construction work: andincludes an establishment belonsins to contractor, butdoes not include anfhdpidudl: who-employs such workersin any building or construction work in relation to his oyvnresidence the total epM of fuch (construction not beingmore than rupees ten lakh;'f •t. . .

; k ' (emphasis supplied)

12. It is clear from the aboVe-motelidefe that the "contractor"in relation to building o:^;;p|fier .^to^^i^etion work may be personother than owner of the^su^bcf prppeEt^^ instance such work-is undertaken. As would be' seen with reference to certain otherprovisions of the law, thes responsibility for the safety measures is ofthe who falls within'the theperson descfiptibn "employer", qua building worker. It. is the "employer" who constitutes the"establishment" which is dutj^' bound, under the law and the rules\framed 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 anh Construction Workers Act. Besidesconceiving of certain statutory authorities including advisory or expert

Crl. M.C. 1873/2015 & comected I

Page 11 of 54

committees (Chapter II), welfare boards (Chapter V), enforcementofficers (described as Inspecting Staff) (chapter V7II), it mimdafeocompulsory 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 sixtli chapter ("conditions of service of building workers ")deals with subjects such' as fKe| -hotts for normal working day(Section 28), wages for overtime work (Section 29), maintenance ofregisters and records (Section 30),';prohibition of employment ofcertain persons in certain buiiaing..or ofher construction work (Section31), drinlang water (Section 32),, lattiii# and urinals (Section 33),accommodation (Section 3##^s^S^iion 35), First-aid (Section36), Canteens, etc. (SectMSfyl

15. The seventh chapter {"safety and health measures") is what iscrucial to the present ods?,:. It ponfer^^y^ge^ 40, power on theappropriate government to'makl^files' ^or 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; nf anyworanff place mcludins^ the provisinn of suitnhlp nvirJf^cient scaffolding, at various stages when work cannot^ done from the or from of asafely ground any part building orfrom ladder or such other means of support;

Crl. M.C. 1873/2015 & connected

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

(o) the keepins 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 -moving equipments andfloating operational eqxupmteytts;

(r) the safety policy, that is to'-ffly, policy relating tosteps to be taken tO' ensure ihdisif^ty and health of thebuilding workers, the administrative arrangementstherefor and the matters connected therewith, to be framedbv the employers and contractors, ibr the operations to becarried on in building onothehcdnftruction work:

(u) any other matter concermng' ikiM safety and health ofworkers in carried onworking dhf^gpthfldp^Mpr^ being in building or other construetidh work. "

(emphasis supplied)

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

Crl. M.C. 1873/2015 cSc connected

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:-

"28. 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 the-workers, shall, in no case, be less than the persons representing the employer.

:t . .(2) In eveiy establishment referred to in sub-section (1),the employer shall also appoint safety officer who shallpossess such qualifications and perform such duties asmay be prescribed. I '

44. Responsibility of emphvers:i.--,Mn employer shall be. responsible for vrovidtfiky. emfiant and . adequatesupervision of any kmldin^, of otfiefieonstruction work inhis establishment as to ensure compliance with theprovisions of this Act relating to safety and for takins allpractical steps necessary 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

Crl. M.C. 1873/2015 & connected

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work for and on boha-lf of tho 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 nairation, it may be added that Section 39'casts 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 injuryincapacitating worker for certain period, this for the puipose ofinvestigation or inquiiy by such authority as may be deemednecessary. In the present case, the notice of the accident wasconcededly given and the inquiry hefdivby the concerned statutoryi',. ' finspectorate. ^ '

20. The and Gonstructidn. Act also aBuilding porkers requires prior notice of commencement ofbuilding, or construction work to bethe information- for such asgiven, mandatory requMfe purposes being indicated in the following providiOmrT.'.'i-'.'

"46. Notice of commencement of building or otherconstruction work.r

(V An employer shall at least thirty days before thecommencement of any building or other construction work.ssnd or cause to be sent to the Insvector havingjurisdiction in the area where the proposed building orother construction M>ork is to be executed, written noticecontaining-

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

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

(h) the name and address of the person who is undertaking 'the building or other construction work; I

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

(d) I 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;

(s) Ihe name and desistnation of the person who will be inoverall charge of the buildihgfor other construction workat the site: '• ' ,,

(h) the approximate duration dfthe^ork;

(i) such other.matters as may be j^rescribed.

(2) Where any change occurs; in-'any of the particularsfurnished under sub-seation fpX: .4he employer shallintimate the change fo fw two days ofsuch change. 'f

(3) Nothing contained in sub-sectihn (1) shall apply incase of such class of building or other construction workas the appropriate-government may by M' otif cation specifyto be emergent works-.-" . - ' ' ' 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,m advance, commencement of the construction work (by prescribednotice) is not of the land owner but of the "employer", such statutoiynotice requiring it to be specified, amongst others, the particulars ofthe who would be accountable in the of he "inperson capacity being overall charge".

22. In exercise of the confeiled the said inpowers upon authority exercise of. the conferred and Constructionpowers byjth^'.Mlding Workers Act, the lieutenant gqvernor pflihe Govt. of NOT of Delhimade and notified Rules which .are^^paljfed the Delhi Building andOther Construction Workers of Employment andConditions of Service) Rulbs.20i)2 Rules for short).

23. The criminal complaint (from which the present proceedingsarise) refers specifically., to • breach , of rules) 39 (Health and safetypolicy), rule 42 (Slipping, tripping, cutting, drowning and fallinghazards), rule 178 (Safety belt and its use), rule 179 (Safety net and itsuse), rule 196 (Guardrails) and rule 209 (Safety officer) of the DelhiRules. All these Rules fall in different Chapters of third part (Safetyand Health).

24. Rules 39 and 42 in the sixth appear chapter (general provisions),rules 178 and 179 in sixteenth chapter (Catch Platform and Hoardings,Crl. M. C. 1873/2015 & connected 17 of54

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

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

"47. Penalty for contravention of provisions regardingsafety measures.- (1) .Whoever contravenes the provisionsof rules made under section 40 shall be any punishablewith imprisonment for term which may extend to three,'months, or with fine which rricty. extend to two thousandrupees, or with both, and irt.yth^\,(pase of continuingcontravention, with an'addition'dffihe'which may extend toone hundred for which suchrupees emrybdl^y during contravention continues jafter conyfction for the first suchcontravention. • , •; .

(2) If any person who hay beedpibfnvicted of any offence'punishable under again guilty of anoffence involving contraverdion 'Or failure of complianceof the same provision, he shall be punishable on asubsequent conviction with imprisonm.ent for term whichmay extend to six months, or-witfi 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' exceptional circurnstances

CH. M.C. 1873/2015 & connected

warranting such course may, after recording its reasonsin writing, impose fine of less than five hundred rupees. "26. It is the contravention of the mles to health or relating safetymeasures which constitutes the offence provided by Section 47 quotedabove, and for this, 7^em' 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 obseiwed above, it is the contravention of the provisions ofthe Rules on the of anfi health of workers assubject ''safety building envisaged in Section 40, which is -madb;punfshable. Though the DelhiRules have been framed and notifrediwiisinference to the rule makingpower conferred on the appro;pidte goliernment by section 62, havinglegard to the suojects that are thereby covered, there can be no disputethat such rules have been framed also in exercise of the underpower section 40. . ' I '

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:-

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"53. Offences by companies.- (1) Where an offence underthis Act has been committed versnnby company, every who, at the time the offence was com.mitted. wa.s in cha.rQP.of, and was responsible to. the cnm.pm,^ for the cnnd-,jrt nfthe business of the as well as the shallcompany, company, deemed to be_gj^ of the offence and shall be liable tobe proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shallrender such liable to if heany person any punishment, that the offence was com.mitted without hisproves wy^Mg^or that hejiad exercised all dv^ toprevent the commission.of such offence.

w_ere any offence under this .Act has been committed by acompany and^ it is phoved: Piaf ffhe nfffnre has.:, hp.pyicommitted with the consentPmfConnivance of nr isattributable to any mgleet onMe^ p- art of anv dir^rtn.manager, secretary or other officer of the company, suchdirector, manager, secretary^ dr. other officer shall beand shall be liajk^eproceeded against anffpiintshedpc0rdingly.

Explanation. - For thepujposefc^fEis fec^^ -

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

(b) "director", in rdmon ppfmmffiSm partner in the

firm.

(emphasis supplied)

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

C't M.C. 1873/2015 & connected

liability contained, in other criminal laws to the effect of which somedetailed reference shall need to be made later.

30. It is clear from the bare reading of the statutory clause that-where the offence is committed by company, in order to rope in anyother on die of vicarious criminal it must beperson principle liability, shown drat such person was, "in-charge of and was responsible to thecompany " for the conduct of its business "at the time the offence wascommitted". The proviso to Section 53(1) permits person arraignedon the principle of vicariousTiability to plead and show by evidence,m defence, that he was not; responsible either because, the actsthe offence were his orconstituting wmmsf^ywithom knowledge" because he had "exercisedcdldue diUger^eto prevent the commissionof such offence". Notwithstaiding d^S &ain provision contained inSection 53(1), the prosecution may b|hii|ated against "any Director.Manager, Secretary or otmrafffirercofffgcbmparny" if there is proofavailable to show that-the b|fen6e was,,.bdmi)iitted "with the consent orconnivance of, or is attributable to dnf -neglect on the part off suchdiiector, manager, secretaiy or other officer.of the company. Whilesection 53(l) -rehes on "iiee-m,-mg-'cdue:fd'-'& position of the personvis-a-vis the company "in-charge off 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 aswell. 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 specificrules 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-Workers Act.

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 construeti'bn contractor company. It isindicated in the complaint itself thdt the construction contractorcompany had got itself registered with tbe statutory authority of theappropriate government in eomplianepf with the requirements ofSection 7. The certificate-.of registration.-describes the constructioncontractor company to be the "estabtishment" 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

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

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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 on07.05.201.4, while referring to the previous such incidents, anddescribing the positions of the petitioners (as indeed of three, 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, Chairm.an, Sh. RajeevTalwar,-Managing Director, Sh. Sriram Khattar, Director,Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sakgal,Director of M/s. DLF Universal Ltd., Shopping Mall, 3'''''Floor, Arjun Marg, DLF CityfMock E, DLF Phase 1,Sector 26A, Giirgaon, Haryana 122002 are the.Directors and Sh. A.M. 'Mfik, Group ExecutiveChairman, Sh. K. Venkataramdn.m, CEO & MD, Sh. M. V.-Kotwal, Whole time Director ■&_.:p0esident. Heavy Engg., Sh. S.N. Subrahmanyan, fffiole t' fm^i Director & Sr. EVP(Pnfrastructure & cotistrnctipn}; ^^-'R, Shankar Raman,Whole time Director & CFO., 'S^: ..SEailendra Roy, Wholetime Director & Sr. EVP (Corporate affairs & 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. HarishVaid, 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)/Inspector's 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 on'the face of the wall, fell to the ground, causing him severeinjuries resulting in death.

5. That besides this, prima.facie, it appeared oninspections that the manasement failed to ensureadequate site mana2ement as envisaired in the provisionsof the Building and other. Construction Workers(Regidation of Employment and Conditions of Service)Act, 1996 and the Delhi Building, and other Consk-uctionWorkers (Regulation of Employment and Conditions ofService) Rules, 2002. Manasement had not taken allappropriate measures as per I die said Act and Rulesframed thereunder to prevent aUcidents at building site ofthereunder to prevent aUcidents at building site ofto prevent aUcidents at building site ofprevent aUcidents at building site ofaUcidents at building site ofat building site ofbuilding site ofsite ofofsuch proportion and magfi-itude. ,

framed thereunder to prevent aUcidents at building site ofthereunder to prevent aUcidents at building site ofto prevent aUcidents at building site ofprevent aUcidents at building site ofaUcidents at building site ofat building site ofbuilding site ofsite ofof

I 6. That there have been. 5 fatal •■accidents resulting intoloss of lives of 5 workers in the recent, past, at the same-site. But, it is clear that they hdid'no.t learnt any lessonsout of previous series. of fatal accidents. Apart fromnotices, prohibitory 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 onapplicable the construction site of this magnitude were made.

7. That jiirther, repeated deaths clearly pointed toneglect and comm.issions & omissions and lack of duediligence towards all aspects of human lives, safety andwelfare at their site as envisaged, in the said Act and Rulesframed thereunder.

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

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

I. That the workers working at height M'ere not .provided with safet\> belts and Personal Fall ArrestSystems fPFAS), in contravention of provisions of "Rule42 and 178 of the said Rules. "

II. That the safety nets were not provided at theconstruction site, where the workers were allowed to workat height, in contravention of provisions of Rules 42 andheight, in contravention of provisions of Rules 42 andin contravention of provisions of Rules 42 andcontravention of provisions of Rules 42 andof provisions of Rules 42 andprovisions of Rules 42 andof Rules 42 andRules 42 and42 andand179 of the said Rules.

.at height, in contravention of provisions of Rules 42 andheight, in contravention of provisions of Rules 42 andin contravention of provisions of Rules 42 andcontravention of provisions of Rules 42 andof provisions of Rules 42 andprovisions of Rules 42 andof Rules 42 andRules 42 and42 andand

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 strength incontravention of the provisions of Rule 196 of the saidRides. , .

IV. That more than .500; I.e. 2.700 workers wereordinarily employed at the consffuction site but SafetyOfficers as per qualification dpd Condition of service , aslaid down in Schedule VIII of the said Rules had not beenappointed, in contravention of the .provisions of Rule 209of the said Rules read withSectip.n 88 of the said Act.

/ i. . * i 'v , •

V. That the managements,Mmilnot implemented theirHealth & Safety, fiPhlicy':. hhffiftter. and spirit, inI contrayentionofRulbfi9;.oft0fiaidjMules.

.' 9. That the aboye accused persons are thus 2uilty ofcontravenins the..provisions of Rules 39,42,178,179:196and 209 of the said:Sules..read with; Sections 38,40 and 53of the said Act which is'punishable iinder section 47 of the"Said Act" for an imprisonment for term which mayextent to 03 months or with fine which may extend toTwo Thousand Rupees or with both. "

(emphasis supplied)

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

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,leply 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, referred to letters dated 20.05.2014, 03.06.2014, and25.04.2013 and health and safety pMfey,' communicated vide letterdated 25.04.2013. As mentioned.earlier, pursuant to the directionsissued, by order dated 24.09.2018, the, complainant has filed thecounter-reply dated 28.09.2018. In this'reply; the exchange of theabovesaid correspondence, reliance,' whereupon is made by thepetitioners, has been acknowledgeel'.-. i v:"'

36. The documents in is no which-•.regard^ffhere dispute, uponperusal, show that the land owner company had entered into contracton 29.03.2012 with . the constructio.n contractor company.Concededly, the general conditions of the said contract, as form partof its third annexure, clearly reveal that the construction contractorhad taken over the entire for ofcompany responsibility every aspect I constmction including safety compliances, liability towards insuranceand labour laws. The following stipulations in the contract need to beextracted for confinnation of the above aspect:-

"79.0 SAFETY PROCEDURE

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'^^■1 The contractor shall incorporate in his oyerationsthe requirements of all the 'Safety Codes' issued by theBureau ofIndian Standards and provisions of the NationalBuilding Code of India 2005 including any amendmentsthereof The Building and Other Construction Workers(Regulation of Employment and Conditions of Services)Act, 1996 and. any other applicable statutory rules and,These shall in all casesregulations. requirements apply except where the regulations of the local authority requiremore stringent measures to be taken. Where therequirements of BIS Codes'and/or National Building Code,the Building and Other Construction Workers (Regulationsof Employment and Conditions of Services) Act, 1996 are-duplicated by the local regulations or the "Safety Manual " provided by the Owner,- . the more stringent of theseregulations shall be deemed,toidppjy:- The Safety Manualprovided by the Owner, is oni^Isf-ffestive and shall nqtcast any liability on the\€)wnef:f:'[ f),'

79.2 The contractor shad momdeisafe means of access toall workin2 places. . . ' ft

79.3 The contractor-. :sMI BkcsNlelv responsible forproper design of jthe sddi^I^fyi^kutemporarv accesses,•ladders and ramps.'formWBrl^iund'-.hd.istins arransements. cranes etc. to ensure siMtSi'dNImfkmen as well as. theworks. All scaffolds, ladders and other safety devices shallbe maintained in safe conditions. Only-tubular scaffoldingshall be used. '■■rC'' - .

79.4 All necessary personal safetv/protective equipment,first aid kit, medically trained personal, fullv equippedambulance and any other facilities as per the statutoiwrequirements 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

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

79.7 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 safemanner and in accordance with the statutory regulations.

79.8 The contractor shall notify the engineer immediatelvof any occurrence of mishaps or accidents that results indeath or injury (including ^ievpus injury) as defined inthe Indian Penal Code. Such initial notification may beverbal and confirmed in writing'thereafter and shall befollowed by comprehensive firittpn report within 24 hrsof the occurrence/incident.^ fhe '-contractor, shall dulycomplete standard forme fis reqiiired by the engineer andI statutory authorities. ,f-f )

79.9 It is made cledf'thaf lke^fiontractor alone as thePrincipal Entploverk Is I •ans4vef^blb7 and liable to allinvestisatins and lesdTaiMidriMefMcludins Court of Lawand the Owner shall not have any part or liability in thisregard. The Contractor alone shall be responsible andliable to compensate the victims-.-jmm.ediately on theoccurrence of the mishaps or accidents and also protectand indemnify and hold harmless the ovmer, the engineer.and all persons who may be associated with or connected■with the o-wner or the engineer and to reimburse all legalandfinancial costs, if incurred, by the them in this regard.

79.10 All consequences, damages or losses arisins byreason of any violation of the safety requirements resultins:in any iniuiw or loss of life to the contactor's or any subcontractor 's Emplovees/Staff/personnel and Workers/ThirdParty (non-fatal/fatal) shall be met by the contractor who

alone will be responsible for handlins and disposal of the. accidental 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 he 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 anyone,connected 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-. td the 'ensineer. detailed andcomprehensive contract' shall' submit to the ensineer, adetailed and- comprehensive contract specific site safetyplan, based on the requiremeny-, Mated in clause 79.1above. The site safety plan shall irrelude detailed policies,procedures and reflations \which. iwhen implemented willensure safetv of all the persons, including third parties onor in, the vicinity of the site (including without limitation. persons to whom access la the,sitpihas been allowed by the ■' contractor). The contractor ■■Mallf/h.bm time to time asnecessary, produce shpplohient&dolmd^site safetv plan such■that it is at all times a'' detailed, comprehensive andcontemporaneous statement by the conti^actor of his sitesafety 'and industrial health, obligqtioks, 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 and.recognized safety practices throughout the execution ofworks.

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, Page 29 of 54

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 vrovisions.The contactor shall appoint qualified and experiencedperson as Site Safety^ Officer to act as Manaser of the SiteSafety Plan and who will he 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 submit,regular safety Teports 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 given mAppenfxf 'Ml'. "

V', . (emphasis supplied)37. It appears that in the wake 'of the -fdt'Hll incident that occurred on28.02.2013 (death of Maqbool); at the/sarnie very site, prohibitory orderfollowed by revocation order, ;had beep-nSsued on 01.03.2013 and08.03.2013. Against tiie ^aid'construction contractorcompany had taken steps for gehihi^ltihe.safety audit of the projectdone. An audit report dated ,03.04.2013 was subrnitted to theauthorities by the said coinpahy'underrthe Cov^^^ of its letter dated25.04.2013. Reference to the said audit report and the con*espondenceexchanged in such regard was made by the constmction 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

Cri M.C. 1873/2015 & connected.

Page 20 of 54

report in respect of the safety measures that had been adopted by themanagement of the said company and, in view of such audit report, theconstruction work was allowed to be resumed.

38. As noted earlier, it is admitted case even for the complainantthat 111 terms of the intimations that had been given, Mr. Daljeet Singh,the Director of the construction contractor was theProject company, person "mcharge 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 ConstmctionWorkers Act. As also noted earlier,- both the said accused personshave not challenged the. summoning order;- •

39. It was also brought ow.itiring lhe4o"rse '' Dof hearing that at thetime of inspection(s), leading tb reports dated 18.05.2014,24.05.2014 being prepared, if singh, who was foundas the of t^ the person mcharge sitp^feji^l^^ssisted complainant'sofhcers in such on.inspection:■at5€fc!ae;i';>rhe report, prepared inspection carried out in the forenoon of 18.05,2014, is the mostcruciai 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 (PFAS) and safety belts had beenbut not to the workers. It a.lso noted that commonairanged provided safety system had not been provided "at various places", though notspecifying the locations where there was such deficiency in. dueIt confinned that health and as compliance. safety policy, required' by

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Page „31 of54

Rule 39 had been formulated, the breach of the statutoiy 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 inferred for the reason qualifications of the"safety officer" were not shown. In the brief note of the concludingpart of this report, it was further 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 18.05:2014 and mainly noted, thatAnkit Kumar (the deceased wb.rker)' w;as 'applying paint on the face ofthe wall at the 18'^ floor level when he had slipped and fallen, to theground, he not wearing the safety beltpr'HFAS 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 and03.06.2014 followed by another dated 17.06.2014, the last referring tothe previous correspondence, .which concededly includes submissionby the construction- contractor company and yet another safety auditreport obtained from National Safety Council, Delhi Chapter, suchaudit 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 . Page 32 of 54

the safety policy having been formulated and- forwarded' to theauthorities by letter dated 25.04.2014, duly qualified duty safetyofficers having been deployed at site, the steps taken inclusive of thefollowing;-

"2. On site safety measures :

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

b). L&T has provided personal protectiveEquipment to aUfvorLeiis..and:ps-usage is enforcedprior to construcMondiif pnpy.

c). The workers :cite\d)pi^d. ahoiit the hazardsinvolved in particular dciwity- before start of thed). L&T has, pro.iected the-floor edge with hardbarricades. . 'fyf''

e). L&T has protected all- openings, cut outs withI reinforcement mat. t ' • ,p.

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

g). Safefp-patch'netpMm:p>r^^ below 6 m oflive working floor around piriphery to prevent fallof materials and men.

h). Ail plants and machineries are fitted withsafety device and are frequently inspected andtestedfor 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

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

h). Well maintained canteen at site and workershabitat area.

c). Continuous water facilities for drinldng andsanitation facilities.

d). Mobile toilets at various places at site andpermanent sanitation facilities in workers habitatarea.

Apart from 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 Safety Audit conducted by National.Safety Council, Delhi Chapter in the year 2013. TheAudit Team after doing extensive;':survey / checking atsite, submitted its report. ThcK relevant excerpts of the,reports are as under : : I I I

a.). M/s. 'L&T had- pb^0ed adequate no. ofSafety Officers to\ deal,with the requirements ofsafety man.agent0pt0n,t0^0prt. There is properwork distribution 'Safety Officers toprevent clash '

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

.c) work'at Height permit: In Indian Constructionmajority of fatalities occurs due to fall of workersfrom height. Due to this high, probability, it hadbecome necessary to ensure implem.entation ofHeight Work Permit. Under the permit only thoseworkers 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 theAuditors.

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

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 wereworking on external side and have potentialhazard of fall, was more than 98%, as oneworker was found working without anchoring itwith rigid support.working on external side and have potentialhazard of fall, was more than 98%, as oneworker was found working without anchoring itwith rigid support.

© Use of safety shoe was observed almost 100%.

e) Lifting Equipment and Tackles

M/s L &T had got numerous lifting equipments andtackles. The safe use of one lifiing equipment waschecked. It was found that the ■oy).er,a.tor was duly trainedand the operator and the sigiadler were understanding, thesignals very well. , ' "

f) Hazards ofWorldngatHIeight

L&Thad taken the follpwingmleasures to prevent fall ofworkers from height; ; ; ,: • . s:.-:

'i .K.-ki I'' '

© All the openings diflii^efii^fya.tions were foundcovered with Bar nM-IfffkUcovered with Bar nM-IfffkU

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

® The stairs were cleaned for prevention of slippingdue to slippery floor.due to slippery floor.

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 protective.measures could be an accident only with no human faultor 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 therelevant photogyaphs of the site are annexed as-Annexure (colly). Further, the establishment has gotits audit done from DGFASLI and the report isawaited and the same shall be submitted as and when-it is received.

41. The questions relating to corporate liability and vicariouscriminal liability of those connected to cori:)orate body have come upin the past before the courts in the context of similar provisionscontained in various statutes including, Section 141. of the NegotiableInstruments Act, 1881 (for short, ''Negotiable Instruments Act");Section 34 of Drugs and Cosrhetics. Abt, 1940 (for short, • "DrugsAct"); Section 17(1) of the'Treventioh offiodd 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

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corporations cannot commit crime, ' the generallyaccepted modern rule is that except for such crimes as acorporation is held incapable of committing by reason ofthe fact that they involve personal malicious intent, acorporation 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, assumed to be done by him whenexercising authorised powers, and without proof that hisact was expressly authorised or approved by thecorporation. In the statutes defining crimes, . theprohibition is frequently directed against any "person"who commits the prohibited ac'jfandin many statutes theterm "person" is defvhedl fhlitdff' the person is notspecifically defined, it pecessarfiy includes corporation.It is usually construed tdlncludk'qi corporation so as to^ bring it within the prohibifidn dfffif statute and subject itto punishment. In mofi. offhe\stathtP^''> 'the word "person "is defined to include-q-corpprdtiofipy >-

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 liability, theI terminology employed by the legislature is such as toreveal an intent that guilt shall not be predicated uponthe automatic breach I of the statute but on theestablishment of the actus reus, subject to the defence ofdue diligence. The law is primarily based on the terms ofthe statutes. In the case of absolute liability where thelegislature by the clearest intendment establishes anojfence where liability arises instantly upon the breach ofthe statutory prohibition, no particular state of mind is

prerequisite to guilt. Corporations and, individualpersons stand on the same footing in the face ofsuch ~astatutory offence. It is case of automatic primaryresponsibility. 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 and, must not strain the words on any notion that there hasbeen slip that the thing is sb clearly within the mischief-that it must have been intended tO'.be included and wouldhave been included if thought ofyA.ifpenal provisions likeall other statutes are to be fairly 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 . ''company 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, between 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 company having chosen to outsoqrce the work ofthe constructions, had passed on the responsibility for all compliancesto be made by the construction contractor company in terms of the

law, and the contractual arrangement, to which detailed referenceshave been made above. It is the construction contractoi 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 formeasures 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 p^^ner company nor those in-charge of or responsible to the condhet of its business can beprosecuted for the offence under Section 47 of the Building andConstruction Workers Act on the facts' set out in the complaint fi:omwhich the present petitions arise.

45. The case against the Gonstfuction epntractor 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. I

46. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi andOrs., (1983) 1 see 1, while dealing with the applicability of Section17(1) of PFA Act, the Supreme Court observed as under:-

"75. So far as the Manager is concerned, we are satisfiedthat from the very nature of his duties it can be .safely,inferred that he would undoubtedly be vicariously liablefor the offence; vicarious liability being an incident of an

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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 am;act committed, by the Directors from, which reasonableinference can be drawn that they could nhn hovicariously 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)

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

8...the vicarious liability of person for beingfor an offence committed under the Act aprosecuted by . company arises if at the material time he wn. nhn.rr. and was also the for the conductresponsjblejp company of Its business. Simply because person is director ofthe it does not mean that he fulfilscompany necessarily both the above requirements so as to make him liable. Conversely, without beinp director person cam hp m.responsible to the cnmpnr,^, fn. the cond.ur.tof Its business. From the. in wecomplaint question however, find that except bald statement that therespondents M>ere directors of the manufacturers, there isno other allegation to indicate, even prima facie, thatthey were in charge, of the company and also responsibleto the company for the conduct of its business. "

(emphasis supplied)

48. . The counsel for the petitioners have placed reliance on NationalSmall Industries Corpn. Ltd. vs. 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 liabiiityunder the Negotiable Instruments Act. In National Small IndustriesCoipn. Ltd. (supra), it was observed thus:-

provision creating vicariousliability, and which, as per settled law, must be strictlyconstrued. It is therefore, not sufficient to maP., baldcursory statement in . complaint that the Director(arrayed as an accusedf is in charge of nnrt tojhe company for the. 'conduct, of the business ofthewithout more :as to the role of thecompany anything Director. But the complaint should .snel! out as to hnwand in what^ manner Respr,r,de„t ,t 'ms responsible to the aqbusedtCompany for the conducto) Its business. This .is in.lcohsonance with strictinterpretation of pengl, stattitfyi fspeciallv. where suchstatutes crente vi,-nWir.ui,.pa.tyut.^:.iri:.r;'

14. of Directors andcompany tikiy''lt^)dn£§)lr to make any or all MrDiMtSS 'as accused in aon the basis ofa statement that arecomplaint merely they in charge of and responsible for the conduct of thebusiness ofthe company without-anything more is not a.. sufficient or adequate fulfilment ' of the requirementsunder Section 141. I

(emphasis supplied)

49. In Pooja Ravinder Devidasani (supra) while observing that "adirector of is liable to be convicted for an offencecompany comm.itted 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

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proved that the offence was- committed with the consent or connivanceof or was attributable to any negligence on the part of the Directorconcerned!''' and noting, that "w 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 prosecution against the appellant for theoffence under Section 138 of the Negotiable Instruments Act was,quashed.

50. Wliile .examining similar questions vis-a-vis Section 33 , ofInsecticides Act, in judgment reported as State of NCT of Delhi vs.Rajiv-Khurana, (2010) II SCC 469, taking note of the law which hasdeveloped primarily in the context of Section 141 of NegotiableInstruments Act, it was held thus:-

"77. The ratio of all these cases is that the complainantsrequired 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 iscill the more necessary to state what were his duties andresponsibilities in the conduct of business of the companyand how and in what manner he is'responsible or liable. "required 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 iscill the more necessary to state what were his duties andresponsibilities 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,

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(2005) 8 see 89; Gunmala Sales vs. Am 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 a.renow well settled by judicial pronouncements, some ofwhich have been noted above, may be summarisedthus:—

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

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

(Hi) By virtue of the office they hold, thepersons working in the, capacity of theManasiny Director or Joint Managing.Director are deemed to be in charse of. andresponsible for the conduct of the business of,the company and, therefore, can be proceededagainst in terms of Section 141; .

(iv) Merely because person is directorof the company is not sufficient to make himliable under Section 141, there heins. nodeemins that by holding such position he is incharge 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, thereheins no need for further particidars to besiyen in the complaint about his role, thisbein2 subject to proof at the trial:

(yi) 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 of'the Negotiable Instruments Act, 1881 byinvoking the provision contained in Section141 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 sterlinsincontrovertible 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 stand"at the time the offence was committed" andthereby showing case that making him standIthe trial would be an abuse of the process ofcourt, but not otherwise. "court, but not otherwise. "

(emphasis supplied)

52. Having regard to the statutory scheme and also the stipulationsof the contract dated 29.03.2012, there is no escape from Xht primafacie conclusion that the construction contractor company is not onlythe principal employer of the workers. engaged in the constructionproject where the fatal acciderit'tdok.place'but was also responsible forarranging all the prescribed safety measured under the Rules. Section47 read with Section 53 of the .Building and Construction Workers Actthus creates coiporate criminaMlability against the said company andII .by virtue of the principles of vicarious'feriminal liability, every personwho, at the time when the s'M%^|tenG|>W:^%oinmitted, was in-ehargeof, and was responsible t©|'; jhe;lsai^lebif:^4hy for the conduct of itsbusiness, as well as the cbmp^§?|ficel'd€emed to be liable to beproceeded against. Just as in the case of Section 141 of NegotiableInstruments Act, by yirtiie. 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 the coinpany is

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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 company" 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 C.oprt, 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 omissidn^constituting the offence underSection 47 of the Building nnd Constructibn'Workers Act. After all,it is the status of being "in-chafge of or being "responsible" for suchbusiness of the conipany that exposes the individual to vicariouscriminal liability. If the act-of commission~of 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

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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 vis-avis the specific rule framed under Section 40 (the breach of which isalleged) has to be shown to be in existence for person connectedwith the business of the company presumed to be "in-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 any ,specific role or discharge responsibSity fowards specific rule, , at thestage when its breach has led to the fataiity. or serious incident;

54. different approach tliajrii hie,one,?ja^ to the subject mightlead to unjust results. Thts-^majl^f)^ illustrated by two simpleexamples. As noted earierj- 'feentip^^er {establishment) is dutybound, in terms of Section A^ll^C-g).', t^-give intimation; prior, tocommencement of the building or other construction work, as to thename and designation of the person who will be "in overall charge" ofthe building or such construction Wbrk.'.'diaying regard to the schemeof the enactment and the rules framed thereunder, the employer{establishment) is also responsible to frame "safetypolicy" (rule 39)and also to appoint and deploy "safety officer" (rule 209). If thebreach 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 of" the

"construction work at site" cannot be held accountable. After all,framing of policy, or appointment of safety 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) they havingmot'ensured the safety equipmentto be availed of by the workers,.the forihef (those responsible for theconduct of the business at the higher levels) cannot be heldaccountable under the deeming, provisibm '

55. It is 'the argument^':of connected to- theConstruction contractor coniphhy " viz;, M Naik (Crl.M.C.2069/2015), K Venkatramanan (Crl.M.C. 2068/2015),. M V Kotwal(Crl.M.C 2070/2015), S."N. SubraMai§ahi-(Crl.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 mles' 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

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Director and Harish Vaid, Manager (Industrial Relations). It is furthertheir argument that it is not correct to- accuse them, under the deemingprovision of Section 53, of complicity in the offence under Section 47in the context of the fatal accident of 17.05.2014 also for the reasonthat the worker in question (Anldt Kumar) had been engaged by asub-contractor, the representative of such sub-contractor being theperson who has been found responsible in the investigation by policein the con-esponding 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 suffer mortal .mjuries.56. The copy of the sub-contract,jas:shpwn at the hearing cannot betreated (without proper proof) as authentic or ^Hncontrovertiblemateriar or as one exonerating the construction contractor companyof its entire responsibility in the-inattpr^;'particularly in view of itscontinued responsibility of the sub-contractor asper clause 79.13 of the contracfdated'29.03.2012, referred to earlier.The argument based- .on the sub-contract, entered upon by -theconstruction contr^actor cdlnpahy;W'ith fhenmm 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].

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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 subsidiariesI has its own separate Board of Directors and supervisory personnelusing the nomenclature of Chief Executive Officer (CEO), ChiefFinancial Officer (CFO) and Human Resources (HR) Head, Thesubsidiaries and the associate companies have been incorporated tooperate in different schemes or spheres including building andfactories, civil infrastmcture, metalurgical & material handling,power transmission and distribution, hydrocarbon engineering, valves,alloys, power development, info.tech, fma'nce, construction and miningmachineiy etc.

58. The complaint on which the summoning order was passed itselfdescribes Mr. A.M. Naik, petiti'dner in.Cfl.M.C.2069/2015 to be theGroup Executive Chairmaii'-of.^e^ [©pnis^Moh contractor company. •I ,vVV " ... .i'-Similarly, the description of Mr.'M.V. Rotwal, Mr. R. Shankar Ramanand Ml-. 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 point 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 (Coi-j^orate Affairs and Power)respectively. By- no stretch of reasoning or logic, these fourpetitioners can be said to be responsible for the compliances to be

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

59. Unlike the above, it cannot be said that the offices held, or theresponsibilities shouldered, by Mr. K. Venkataramanan (petitioner inCrl.M.C. 2068/2015) or Mr. SiN. Subrahmanyam (petitioner inCrl.M.C. 1873/2015) had no connection with the obligations of theestablishment of the "employer'^ (constmction contractor coinpany)^towards compliances of the Buiiding :.and'U0nstruction Workers Act orthe rules framed' thereunder. These petitioners do not dispute that atthe time of alleged commission of thUoffence under Section 47 of theBuilding and Construction Workers Act, ithey were worldng for the•constmction contractor company in the/cdpacity of CEO & ManagingDirector'and whole-time SO^^iExecutive Vice President(Infrastructure & Constmctfen)j|sp^iy|lp^ '

60. The very description of the port-folios they held and theresponsibilities that would entail-therefrprn/pn??^rzyhcze 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, theyI could 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 Constmction Workers Act

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that concern, day-to-day use of safety belts, safety nets,, safetyplatforms, or personal fall, arrest systems. But then, it cannot beignored 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 tenns of rule 39 andnon-appointment of duly qualified safety officers in breach of therequirements of rule 209 read with Section 38 of the Building andConstraction Workers Act. These two specific areas cannot, by anystretch of arguments, be relegated to the domain of the managerialstaff (Ml-. Daljit Singh and Mr. Harish Vaid) made in-charge of theconstniction site. - I .

62: The above petitioners, however,' alsp. raise the defence based onthe two safety audit reports, 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 .reportysubrnftted' on 25.04.2014, obtainedafter the fatal accidents in questiun, .can be,#eated as one representingthe correct position prevailing' 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 of,the fatal accident of 17.05,2014., There are specific allegations in thecomplaint that as on the said date, z.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 ConstructionWoikeis Act. Since this area v/ould fall prima facie within the

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domain of the responsibilities held by petitioners K. Venlcataramananand 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 conkituting the offences were committed without theirIcnowledge or that they had exercised all due diligence to preventcommission of such breaches (or offences).

63. On the above facts, and in the citcumstances, initiation ofcriminal action against petitioners - DLF Universal Ltd. (petitioner inCrl.M.C.2064/2015), Mobit Gujral tpetifioner in Crl.M.C.2067/2015),Rajeev Talwar (petitioner in GrUv[:c.20.66/2O15), Shriram Khattar(petitioner in Crl.M.C.2160/2015), Ashok:Kumar Tyagi (petitioner inCrl.M.C.2159/2015), Sudhtf SaJigal (petitioner inCrl.M.C.2158/2015), A.M. Naik (petitioner in Crl.M.C.2069/20I5);M.V. Kotwal (petitioner in.-Grl;M,G.-2eg0^^^ R. shankar Raman(petitioner in Cr).M.C. Roy (petitioner inCrl.M.C.2071/2015) being unfoundsdf^e continuation of suchthem would be an abuse of the of'law.'proceedings against process Therefore, their petitions'£ne;al(dwed>:and-the proceedings againstthem m the criminal I 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. Subiahmanyam (petitioner in

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/Crl.M.C. 1873/2015) and K. Venkataramanan (petitioner inCrl.M.C.2068/2015). In the consequence, the said petitions are herebydismissed. It must, however, be added that nothing stated abovewouid be treated as final expression of opinion on merits of the caseagainst the said petitioners.

65. The and the filed therewith are petitions applications disposedof in above terms.

NOVEMBER 19,2018vk/nlc/yg

LK.-GAtj|A>JUBGE

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