CRL.M.C./2066/2015 of RAJEEV TALWAR Vs STATE NCT OF DELHI

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 DELHIDecided on: 19"* November, 2018

+CRL.M.C. 2066/2015RAJEEV TALWAR PetitionerThrough: Mr. Sidharth Luthra, Sr. Advocate. with Mr. Sandeep Kapur, Mr. Vivek:: fcl^ij SetK1r I ^Advocates. rTI versus? --f";"' ,,

STATE NCT OF DEEHI " , , ' ' Throhgh: Mr. Mukesh Kumar, APP. : !

Respondent

CORAM: HON'BLE MR.

JUSTICE R.K.GAUBAli . n-.r,'' 5l'5 crJ r^iii f<-t:', f': ' /

ORDER(ORAL)

- ' J ' Ipr ®i,

fSSf, / J, fA I

For detailed order, the decision:'dated 19 November, 2018 inCrLM.C. 1873/2015 may be referred to.

*-£:zip^P^%r'A'tC li

NOVEMBER19,2018

IN THE HIGH COURT OF "DELHI AT NEW DELHI

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

+5';i ;

: I A; . !

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

S.N. SUBRAHMANYAM

Petitioner

Through: h^Ir. Vikas Pahwa, Sr. Advocate with^ Ms. Sima Gulati, Mr. Subhash Gulati,Mr.Shailesh Poddar, Mr. Vinit AroraI & Mr. Sumit Saini, Advocates.

versus: ', . , •. ' v ^ - Respondent

STATE

Through;' Mr. Muke.sh Kumar,.APP.

CRL.M.C. 2064/2015 :

DLF UNIVERSAL LTD: THR.. ITS AUTHORIZEDREPRESENTTIVE •

Petitioner

- I - I

Through: ; Mr; Rairiekh; Gupta, Sr. Advocate with

..v y MrvBande^p Kapur, Ml". Vivek Suri,'I I ' (-'MvKaran Seth & Mr. Mayank Datta,'Advs.

."versus, v 'Z" '■ •"

STATE NOT OF DELHI THR. FACTORY INSPECTOR

Respondent

Tlmqugh: ' Mr. Mukesh Kumar, APP.

CRL.M.C. 20^6/201,5RAJEEVTALWAR-

, ...^..Petitioner

Thi-pugh: : Mn.Sidharth Luthra, Sr. Adyocate

:' with M:r. Sandeep Kapur, Mr. Viveki, Suri, Mr. Karn Seth, Mr. Mayank

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

Page I of54

Datta & Ml-. Aashne'et Singh,Advocates.

versus

STATE NCT OF DELTII Through:

Respondent

Mr. Mukesh Kumar, APP.

CRLM.C. 2067/2015MOHIT 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 THR. FACTORY INSPECTOR

Respondent

Through:

Mr. Mukesh Kumar, APP.

CRL.M.C. 2068/2015 & CRL.mX 7363/2015

K VENKATARAMANAN;',

, PetitionerThrough:. Mr.; DAy^^ Sr. Advocate with,,. Ma:he%'Agarwal, Mr. Anuj■■'•MMkd;ifa'^'"Mr. Anirudh Bhat,

Advocates.

versus . ^ . . •, ,

STATE

Respondent

Through; . Mr. Mukesh Kumar, APP.

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

AMNAIK

PetitionerThrough: Mr. • Kapil Sibbal & Mi-.Dayankrishnan, Sr. Advocates withMr. Mahesh Agarwal, Mr. Anuj

Malhotra & Mr. Anirudh Bhat,

Advocates.

Crl. M. C. 1873/2015 connected '

versus

STATE & ORS.

Respondents

Through;

Mr. Mukesh Kumar, APP.

+CRLM.C. 2070/2015 & CRL.M.A. 7369/2015MVKOTWAL Petitioner

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

versus

STATE & ORS. Respondents

Through: Mr. Mukesh Kumar, APP.

+CRL.M.C. 2071/2015.& GRE.M.A. 7373/2015SHAILENDRA ROY Petitioner

Through:. I Ms. Sirnu Oulati with Mr. SubhashGulati,.,Mr. Shailesh Poddar & Mr..Sumit Saiiii, Advocates.

versus

STATE

, I Respondent

Through: Mf. Mukesh Kumar, APP.

+CRL.M.C. 2072/2015 &'^Ci^vM:i.'7375/2015

R. SHAMCAR RAMAN Petitioner

Through: Ms. Sima Gulati with Mr. SubhashGulati, ,Me, Shailesh Poddar &I I Mr. SumiESaini, Advocates.

STATE

versus

Respondent

Through: Mr. Mukesh Kumar, APP.

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

SUDPHR SAEIGAL

Petitioner

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

CrI. M.C. 1873/20J5 & connected

Datta, Mi\ Karan Seth & Mr.Aashneet, Singh,Advocates.

versus

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

+CRL.M.C. 2159/2015 & CRL.M.A. 7672/2015ASITOK KUMAR TYAGI

Petitioner

Through: Mr. Sidharth Luthra, Sr. Advocatewith Mr. Sandeep Kapur, Mi-. VivekSuri, Mr. Kam Seth, Mr. MayankDatta & Mr. AashneetISingh,. Adyocates.

versus ' /DELHI . . i Respondent

STATE NCT OF DELHI . .

Through: Mr. Milkesh Kumar, APP.

+CRL.M.C. 2160/2015.^&CRL'.mA,>7637/2015SITRIRAMKHATT^R' ,

, PetitionerThrough: Mh.'R.K.-iF^^ with Mi". SandeepKhpury'I^'. Vivek Suri, Mr. MayankDatta, Mr. Karan Seth &

Mr. Aaslmeet Singh, Advocates.

I Versus I ,

STATE NOT OF DELHI RespondentTiirough: 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

Crl M. C. 1S7S/20I5 & 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.l4, while applying paint on theface of the exterior wall, fell down to the ground suffering seriousinjuries 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, they being punishable underSection 288 (negligent conduct with respect to pulling down orrepairing building) and Section 304-A (pausing death by negligence)of Indian Penal Code, 1860 (IPG) -. The investigation into the said FIRresulted in report under' Section'' vl.73 ;of ' the Code of CiiminalProcedure, 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 28-8/304-A IPC 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

Crl. M.C. 1873/2015 & connected

mater was also brought to. the notice of the authorities in the office oflabour commissioner, Govt. of National Capital Temtoiy of Delhi,particularly the Inspector of Building and Construction. The inquiriesmade by the said authorities culminated in criminal 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 cognizahee: by order dated 10.09.2014and issued summons on the said' compMnf inter alia, against thepetitioners who have approached this court invoking inherentjurisdiction under Section 482 Cr.P,.C-. I by the captioned petitionsseeking the proceedings arising out of the/said criminal complaint caseto be quashed on the ground the5;same isHin: the nature of abuse of theprocess of the court. t II

4, It may be mentioned here that the criminal complaint in whichsummoning order was passed■ whiich i'k.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

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 (petitionei Crl.M.C.2064/2015), its Chairmdn Moftit Gujral (petitioner inCrl ■M.C.2067/2015), its Managing Pirep#,.:Rajeev Talwar (petitionerin Crl.M.C.2066/2015) and. its, Diifet(|s: -Shriram Khattar, AshokKumar Tyagi and Sudhir Sdi#^##^ers in Crl.M.C.2160/2015,2159/2015 and 2158/2015 resppctiy|feforimarily contend that theconstruction contract having'lDeeh^t^t^ to the said other company,the work being carried out; undir. and control of thelatter through its sub-contractor, it havihg no connection whatsoeverwith the day-to-day activity, it had no role to play or nexus with any ofthe acts of commission or-diniSsibi pntfedpasis of which accusatumshave 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

:| o !, Crl. M.C. 1873/2015 & connected

Page 7 of 54

iii

to this court with the order of the up any plea assailing Metropolitanof the afore-mentioned offence orMagistrate taking cognizance summoning each of them. Six (6) others, connected to the saidconstruction contractor company, however, are before this court, withsimhar 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.Subrahmanyain, whole-time Director and Senioi Executive VicePresident (Infrastructure and Gbhstraetion) (petitioner inCrl.M.C. 1873/2015); R. ShankarRamah,\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.207i/201:5). The thrust of thearguments of this set of petitiohefs is tlmt ^given their position in thehierarchy in the constxuction contractor cdinpany, 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 specialTaw which has been invoked by the prosecution before theMetropolitan Magistrate, and in which they have been summoned suchproceedings being .abuse of the law.

CH. M.C. 1873/2015 & connected

Page 8 of 54

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 Wofkers Act was brought on thestatute book enforced w.e:f. 0.1.03.1996 with the objective' ofregulating the employment and eondtjons of service of building andother construction workers.-iahd^'pj^3^^|o^ safety, health andwelfare measures and connected therewith orincidental thereto.

10. The expression 'fuming or ^c^-jfonstruction 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 the' Statute. The "budding worker" is defined by Section 2(l)(e) to mean

"d 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 he expressed or implied, inconnection with any building or other construction work". There isno dispute that Ankit Kumar, whose death due to fail 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 being germane to theissues that have been raised, their defmitfens, as appearing in clauses(g),- (i) and G) of Section 2fl) of'.tpWlding .and ConstructionWorkers Act, may be taken note pf as undlptvv-

"(g) "contractor" mearis p.ersqp who undertakes toproduce mven result fdr anvkstdiblishmen.t, other than a''^mere supply of good^^..m(wfif^ijif employment of building wbrkersydpwho supplies buildingworkers for any work, of the esidblishmentt and includes asub-contractor; I '

(i) "employer", in relation to an establishment, means theowner thereof, andineludes,- , ' '

(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 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. 1873/2015 & connected

without I , conti"actor, the chief executiveofficer 0^Mat■mthority or establishment;(Hi) mi' I rP.la.tion io\ building ' or otherconstruction work carried on bv or thoush acontracthrh of by (fie, Employment of buildingworkers) supplied . by\ contractor, thecontractor:

(j) 'EstablishkUnt''.means any establishment belongingto, or under (he 'control of. Government, any bodycorporate or firm, an individual or association or otherbody of individuals .which\ or who employs—buildingworkers in anv'■building or other construction work: andincludes an establishment belonsins to contractor, butdoes not include an. individual who employs such workersin any building or construction work in relation to his ownresidence the total cpst of fUof:, iconstruction not beingmore than rupees ten lakh: '' .

(emphasis supplied) ,

12. It is clear from the'dbo"V^e^u0teli,sdefe that the contractorin relation to work be building may personother .than owner of the subJbPt^ppl^i'aC^ instance such workis undertaken. As would be' seen with reference to certain otherprovisions of the law, thertesponsibility for the safety measures is ofthe who falls withm' the theperson descfiption "employer", ..qua building ' worker. . It is the "employer" who constitutes the"establishment" which is' diit^' 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 anS Construction Workers Act. Besidesof certain authorities or conceiving statutory including advisory expert

Crl M.C. 1872/2015 & connected ;•

Page II oj 54

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 I establishment as "employsbuilding workers either directly or through contractor" being thegoveiTiment of the State in which such establishment is situate;

14. The sixth chapter ("conditions of service of building workers ")deals with subjects such as fixed,'hours for normal working day(Section 28), wages for overture work' (Section 29), maintenance ofregisters and records (Section-30), prohibition of employment ofcertain persons in certain buUdir(g:or other construction work (Section31), drinldng water (Sectiofi, 32;),. latrines and urinals (Section 33),accomniodation (Section 3%G^ohesx(|^tion 35), First-aid (Section36), Canteens, etc. (Sectioinp)||^ ;^ ff-'-,

15. The seventh chapter {"safety and health measures") is what iscrucial to the present cds;e,..Jt .confers, b^^^ 40, power on theappropiiate govermnent to make rules for the safety and health ofbuilding woikers, 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 jplace, includins the provision of suitable andsufficient scaffolding at various stages when work cannotbe done from the or from of asafely ground any part building or from ladder or such other means of support;

Crl. M.C. 1873/2015 & comected

12 of54

(e) the erection, installation, use and maintenance ofhoists, lifting avvliahces and lifting sear includinsperiodical 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 keeping 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 isi to'ffy, policy relating tosteps to be taken to -ensure -tkiffSiqffty and health of thebuilding workers, the ' admniitratiye arrangementstherefor and the matters connected therewith, to be framedby the employers and contractors for the operations to becarried on in building or.Othehcdnstruction work:

(u) any other matter, 'coheemingllh'e) safety and health ofworkers in carried onworking d^^g0lf!d^dff)ns being in building or other constructibh 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 rules) vested in theappropriate govermnent. Section 41 similarly entrusts, theresponsibility of framing of model rules for safety measures unto thecentral govermnent.

Crl. M.C. 1S73/20]5 & connected

Page J3.of54

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 emvlover 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 (1),the employer shall also appoint safety officer who shallpossess such qualifications and perform such duties asmay be prescribed. I '

44, Responsibility of 'employers:ir.-.:2Ln emvlover shall beresponsible for proviiinz \^ dbnStcmt and . adequatesupervision of any buildins^. w pthefi-construction work inhis establishment as to ensure comvliance with theprovisions of this Act relating to safety and for taldns 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

Crl. M.C. 1S~3/20I5 cv connected

Poge 14 of 54

work 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 manner-pi 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 purpose ofinvestigation or inquiry by such authority as may be deemednecessary. In the present case, the nptice of the accident wasconcededly given and the inquiry heid/^by the concerned statutoryinspectorate. ' /

20. The Building and Gon'struction. Workers Act also requires aprior notice of commencement of"bui'Ming-or construction work to begiven, the mandatory information requisite for such purposes being asindicated in the following provisibm-V' -v'-f-v

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

(1) An employer shall, at least thirty days before thecommencement of any building 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 comimmications 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 designation of the person who will be in-over all charge of the building'orhotkter construction workat the site; I'

(h) the approximate duration ofihfwork;

(i) such other matters as may be prescribed.

(2) Where any change occurs; in-any of the particularsfurnished under sub-section fIf;.-the employer shallintimate the change .to theilksppcior within two days ofsuch change. .. ,y,- /'.

(3) Nothing contained in. sub-section (1) shall apply incase of such class of building or other construction workas the appropriate-Government m.ay by notification specifyto be emergent works/'. • ' - '

(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" forcanying out the construction work, also vested with the authority to

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 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 the said inpowers cGnfei^d,|;:upon authority exercise of the confeirdd and Constructionpowers bj/)\th^);Building Workers Act, the heutenant goyernoi: qf :|he Govt. of NOT of Delhimade and notified Rules whidii .^re^Vcallhd the Delhi Building andOther Construction Workers-';;(R^u|^bn of Employment andConditions of Service) Rulbs.20|2 (Rules for short).

2o. The criminal complaint (from which the present proceedingsaiise) refers specifically , it© I breach of r,ules> 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 mle 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. 1873/2015 & connected Page 17 of 54

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 others,have been summoned by the Metropolitan Magistrate is defined andprovided for in Section 47 of the Building and Construction WorkersAct as under:-

''47. Penalty for contravention of provisions regardingsafety measures.- (1) Whoever contravenes the provisionsof any rules made under section 40 shall be punishablewith imprisonment for terrti which may extend to threemonths, or with fine which may extend to two thousandrupees, or with both, and inxthkycase of continuingcontravention, with an'addittdn'al fine'which may extend toone hundred rupees for ev.ery]-doy during which suchcontravention continues pfter Cmyfction for the first suchcontravention. J.-,,

(2) If any person who hdk beEif^nmcted of any offencepunishable under again guilty of anoffence involving contravention-or failure of complianceof the same provision, he shall be punishable on asubsequent conviction with imprisonment for term whichmay extend to six months, or witli-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 forM'hich the person is subsequently being convicted:

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

warranting such course may, after recording its reasonsin writing, impose fine of less 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 triedsumm.arily.

2 /., As obseiwed above, it is the contravention of the provisions ofthe Rules on the subject of "safety andheulth of building workers", asenvisaged in Section 40, whicbi is madb-pquiahable. Though the DelhiRules have been framed and nptMedvwiifr inference to the rule makingpower conferred on the approJfeiStfe;'f©vernment by section 62, havingregard to the subjects that are thereby covered, there can be no disputethat such rules have been framed also in'exercise 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 ConstmctionWorkers Act is cmcial. It reads thus:-

Cii. M.C. 1873/2015 & connected

"53. Offences by companies.- (1) Where an offence underthis Act has been committed by company, every personwho, at the time the offence M!as r.nmmifted. was in chargeof, and was responsible to, the comyanv for the conduct ofthe business of the as well as the shallcompany, company, be deemed to be yuilty_ 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, proves—that the offence y/as committed without hisknowledge or that he had exerched all due dilia.y,.. toprevent the commission of such offence.

^o^hwithstandinff anything contained in .'Jub-section (1)where any offence under this Act has been committed by aand^ it is thafdhe- offence has beencompany proved committed with the consent .or': connivance pfattributable to nedlect onf the of anv directorany part manager, secretary or other officer of the company, suchdirector, manager, secretary^ 6r. other officer shall bedeemed to be guilty of that offence and shall be liable to beproceeded, against and,puniS:hed\acc<ord.ingly.

Explanation. - For the.purppsefof tFisfection,-

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

(b) director", in relation to .affirpp rneans partner in the-firm. " ' ' " II

(emphasis supplied)

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

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 for the conduct of its business "at the time the offence wascompany" committed". The proviso to Section 53(1) permits person aiTaignedon the principle of vicarious liability to plead and show by evidence,m defence, that he was not,; responsible either because the actsconstituting the offence were Goiiunitted;'-his knowledge" orbecause he had "exercised alldke dM^ence to prevent the commissionof such offence". Notwithstanding thp main provision contained inSection 53(1), the prosecution may, b^^ijated against "any Director,Manager, Secretary or other-cfieer^ afflM if there is proofavailable to show that the "with the consent oro|fen#4>^^.6o^tted connivance of, or is attributable to any neglect on the part of" suchdiiector, manager, secretary or other officer , of the company. Whilesection 53(1) relies on "deemmg"- d^ji&HQ''l}M 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 ciiminal 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

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rage p 2i ->I oj .rc.i54

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 avennents 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-constfuetibn contractor company. It isindicated in the complaint, itself that -the construction contractorcompany had got itself registered with the statutory authority of theappropriate government in eomplianepv with the requirements ofSection 7. The certificate of registratioh- describes -the constmctioncontractor company to be the "estdbiishment" 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 Mi*. Surinder Mohanbeing the "emp/oyer" in-charge of the construction work at site. It isIan 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

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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 on07.05.2014, 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, 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, S""''Floor, Arjun Marg, DLF City, Bhck E, DLF Phase 1,Sector 26A, Gurgaon, Haryana 122002 are the'Directors" and Sh. ' 'A.M. 'Nqik, Group ExecutiveChairman, Sh. K. Venkataraindnm, CEO & MD, Sh. M. V.Kotwal, Whole time Di'pect0r -Si,-,P0sident, Heavy Engg,Sh. S.N. Subrahmanyan, fffiole i'fpp, Director & Sr. EVP(Infrastructure & cdmtrFpimh) f^^ R. Shankar Raman,Whole time Director & QpOf Slki S' fiailendra Roy, Wholetiine Director & Sr. EVP (Corporate affairs & power) andSh. Daljit Singh — Project Director, (In-charge of theconstruction site) of M/s. Larsen Si Toubro Ltd. are the'Directors " of M/s. Larsen S 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 jor 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

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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)/lnspectors 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, prima facie, it appeared oninspections that ' the manasement failed to ensureadequate site manasement as envisased 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 the. said Act and Rules Iframed thereunder to prevent accidents at building site ofsuch, proportion and maghitude,

6. Tha.t there have been, 5 fatal -.accidents resulting intoloss of lives of 5 workers in the rec'ent past, at the samesite. But, it is clear that they hd.dnot learnt any lessonsout of previous series of fatal dqcidents. Apart fromnotices, prohibitory order, wds also issued, to. them to stopthe construction work of entire site till complete/fullcompliances of all the safet\' provisions as mentioned inthe said Act and Rides 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 aspects of ■hum.an lives, safety andM'elfare at their site as envisaged in the said Act and Rulesframed thereunder.

8. That during the course of inspection, a' ndinves tiga tion, the following breach of the provisions of the"said Rides " read with the "said Act" were observed:-

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I. That the workers working at height were notprovided 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 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 guardrails and toeboards of adequate strength, incontravention of the provisions of Rule 196 of the saidRules.

IV. That more than .500; .i.e.; 2700 workers wereordinarily employed at the consffuction site but SafetyOfficers as per qualification and condition of service aslaid down in Schedule VIII of the said Rules had not beenappointed, in conti^aventioh of the provisions of Rule 209of the said Rules read with--Section ks of the said Act.

V. That the managemmtsMav&lnot imvlemented theirHealth & Safetv. -iP'&Ukv' and spirit, incontravention of

9. That the above accused persons are thus suiltv ofcontravening the.. provisions of Rules .39,42,178.179,196and 209 of the said.Rules .read wifipSeptions 38,40 and 53of the said Act which is'punishabie'under 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 thestatutory authority on 26.05.2014 vis-a-vis the project site, being

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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 form/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 constmction contractorcompany, in turn, referred 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 thecounter-reply dated 28.09.2018. In this reply, the exchange of theabovesaid correspondence, reliance; whereupon is made by thepetitioners, has been acknowledgfed.' -- ;

36. The documents in is no WhidhTregard''lhere dispute, uponperusal, show that the land owner company had entered into contracton 29.03.2012 with , the construction contractor company.Concededly, the general conditions of 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 confirmation of the above aspect:-

'7P. 0 SAFETY PROCEDURE

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^ The coYitractor shall incorporate in his operationsthe requirements of all the 'Safety Ccide.^' by theBureau ofIndian Standards and provisions of the NationalCode of India 2005 amendmentsBuilding including any thereof The Building and Other Construction Workers(Regulation of Employment and Conditions of Services)Act, 1996 and any other applicable statutory rules andThese shall in all casesregulations. requirements apply except where the regulations of the local authority requiremore stringent measures to be taken. Where therequirements ofBIS Codes and/or National Building Code,the Building and Other Construction Workers (Regulationsof Employment and Conditions of Services) Act, 1996 areduplicated by the local regulations or the "Safety Manual"provided by the Owner,-. the I mor^ .stringent of theseregulations shall be demed, to, dp^.The Safety Manualprovided by the Owner is onl^fjig^estive and shall notcast any liability on thei0rme0:-

contractor shall proyide'isafe means of access toall workinsplaces. (

^^■3 The—contractor'. ■sHdtl . 1 y'.l^blrsofelv resvonsible forproper design—of the scdff0dmg^Ai.iemporarv accesses.-ladders and ramps, f&rmv(6.rkfand hmstin2 arrangements. cranes etc. to ensure safety ■dfimbrkmen as well as . theworks. All scaffolds, ladders and other safety devices shallbe maintained in safe conditions. Only .tubular scaffoldingshall be used.

All necessary personal safety/protective equivment.first aid kit, medically trained personal, fully equippedambulance and other facilities as the any per statutoryrequirements should be always available on the site for—The contractor shall take' to ensureadequate steps maintenance and use of hisproper equipment by employees/staff/personnel and workers.

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

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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.

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 ofIndia 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 occurrence of mishaps or accidents that results indeath or injury (including grievous injury) as defined inthe Indian Penal Code. Such 'initial notifi.cation may beverbal and confirmed in writing thereafter and shall befollowed by comprehensive v^ritfen-report within 24 hrsof the occurrence/incident.^ The > contractor shall dulycomplete standard forrns' as req.Uirfd by the engineer and• statutory authorities. ' , ilf J,'.

79.9 It is made cledr'' that the: Contractor alone as thePrincival Emploverk is '/ansiv-er^bfeC' and liable to allinvesti2atms and lesdl ailihoidties'/iHcludins 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-.-immediately on theoccurrence of the mishaps or accidents and also protectand indemnify and hold harmless the owner, the engineer.and all persons who may be associated with or connectedwith the OM'ner 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 resultingin any iniuiw or loss of life to the contactor's or any subcontractor 's Emplovees/Staff/oersonnel and Workers/ThirdParty (non~fata.l/fatal) shall be met by the contractor who

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alone will be responsible for handlins and disposal of theaccidental cases with Govermnent/non-Governmentauthorities. The Contractor shall he hound 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 liahilities and keep the owner, hisemployees, personnel, agents, representatives and anyoneconnected with the owner, protected from civil andcriminal prosecution in such cases and he answerable forthe same before all authorities.

79.11 Within one week of commencement date, thecontractor shall submit to the ensineer. 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 shall include detailed policies,procedures and resulatiohs ;whic:h, when implemented willensure safetv of all the persons, including third parties onor in the vicinity of the site (including without limitationpersons to whom access lo' the,sifpMs been allowed by thecontractor). The contrdctor I shdl.h ]fr.bm time to time asnecessarv. produce slippte^ents;7p!fhk.site safetv plan suchthat it is at all times a' defailed, comprehensive andcontemporaneous statement by the contractor of his sitesafety and industrial health, obligations, responsibilities,policies and procedure (under the '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 of-the 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 andrecogiaized safety practices throughout the execution ofworks.

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79.13 The contractor shall adhere to the Site Safety Planand shall ensure that all suh-contractors of all tier.'; hoveQPPy of the Site Safety plan and comply with its provisions.The contactor shall apyoint qualified and experiencedperson as Site Safety^ Offiber to act as Manaser of the SiteSafety Plan and who will be responsible for all safetymatters related to the worlds. The contractor shall, fromtime to time, provide such other personnel and resourcesas may be required to ensure effective operation of the SiteSafety Plan. The said Site Safety Officer shall submitregular safety reports to the Engineer in accordance withthe requirements of the Engineer and all relevant statutoiyauthorities, . as required by Applicable laws andThe. contractor shall submit on regulations. monthlybasis Certificate of Compliance far Health, Safety andEnvironment as given in Appendixf 'M''. "

; ^ ' (emphasis supplied)

37. It appears that in the "Wjaicg pf the ihthl incident that occurred on28.02.2013 (death ofMaqbool)[atthe.sa;me veiy site, prohibitory orderfollowed by revocation order, ;had beend's'sued on 01.03.2013 and08.03.2013. Against the -.lair bacj^rop^ I -■ construction contractorhad taken for audit of the company steps gMhi-'the.Safety projectdone. An audit report dated 03.04.2013 was submitted to theauthorities by the said company• undervfhe 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 confinns that National Safety Council (NSC)which had conducted the said audit had safety given satisfactory

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

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

39. It was also brought oiil,a«ng fhe'lomse of heai-ing that at thetime of inspection(s), leading td iBspp;dh|h reports dated 18.05.2014,24.05.2014 being prepared, if «fsiyfefD^pet Singh, who was foundas &e of the person incharge t^sitpAi|^^sisted complainant'sofficers in such at^feMeifiSiithe on.inspection report, prepared inspection canied out in the forenoon of 18.05.2014, is the mostcrucial inspection report.,for purposes of the., case arising out of .theincident that occurred in the afternoon of 17.05.2014. It concededlynoted, vis-ci-vis the requirements of Rules 142, 178 and 179 thatPersonal Fall AiTest System (PFAS) 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

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Rule 39 had 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 18.05^2014 and mainly noted thatAnldt Kumar (the deceased worker) was-applying paint on the face ofthe wall at the 18^'^ floor level when he had slipped and fallen to theI; ^ground, he not wearing the safety beltpr'IfFAS at that point of time.

40. Pursuant to the inquiries which we're raised in the wake of thefatal incident of 17.05.2014, the construction 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 coiTespondence, .which coheededly 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,

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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 thesafety measures.

b). L&T has provided personal protectiveEquipment to all workerts arid- its- usage is enforcedprior to construction site entry.

c). The M'orkers are . bWkfed. about the hazardsinvolved in particular activity- before start of theshift. S

d). L&T has protected thf-floor edge with hardbarricades. I ; , I ■'

e). L&T has protected dB openings, cut outs withreinforcement-inat. --- V' '

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

g). Safefy hpts!, below 6 m oflive working flhot drbund periphery to prevent fallof materials and men.

h). All 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 :

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

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

c). Continuous water facilities for drinking 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 NationalSafety Council, Delhi Chapter .in the year 2013. TheAudit Team after doing extensiye'-survey / checking atsite, submitted its report. I The;, relevant excerpts of thereports are as under : • ,:a

a.). M/s. 'L&T- had pifdyifed adequate no. ofSafety OfficerNtd ■feahiwim the requirements ofsafety managemmMw. Ahf .P-lqht. There is -properwork distribution fhese Safety Officers toprevent clash mmesppnsdpilhy.;.'

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

c) M'ork 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 implementation 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.

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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

Ws L &T had got numerous lifting equipments andtackles. The safe use. of one lifting equipment waschecked. It was found that the operator was didy trainedand the operator and the signaler were understanding, thesignals very well '

fHazards of Working at:fleight

L&T had taken the following mbasures to prevent fall ofworkers from height:' . .. .• ; . ; . . v:-:

© All the oper0gk' were foundcovered with BdrnM-'fffff.covered with BdrnM-'fffff.

® 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 inferred,that 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 faultor error. L& T has done its best to comply with all the

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 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 corporate 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 includmg. Section 141. of the NegotiableInstruments Act, 1881 (for short, ''Negotiable Instmments Act");Section 34 of Drugs and .Cosihetics, Act, 1940 (for short, - "DrugsAct"); Section 17(1) of the Pre-ventiotl ohf^^^^^ 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 V.S. 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 when. exercising 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 act, findJn many statutes, theterm "person" is defiriedf-3fihffrthe person is notspecifically defined, it necessaidfy)^ Includes corporation.It is usually construed idpinclud!e.a^ corporation so as tobring it within the prphibifign Sflfie, statute and subject itto punishment In moshpffiie\stdtdPdS', the word "person "is defined to includep- coypprdtiofif';,

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, theterminolog)> 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 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 anoffence 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 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 to-be included and wouldhave been included if thought of Alfpenal 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 contrac,tot 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-land 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 outsource the work ofthe constructions, had passed on the responsibility for all compliancesto be made by the construction contractor company in terms of the

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law, and the contractual arrangement, to which detailed referenceshave 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 forsafety measures to be put in position. There is no 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 ppner company nor those in-charge of or responsible to the conduct 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 fromwhich the present petitions arise.

45. The case against the construGtion contractor 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 Kishcin Rohtagi andOrs., (1983) 1 SCO -1, while dealing with the applicability of Section17(1) of PFA Act, the Supreme Court observed as under:- I '

."75. So far as the Manager is concerned, we are satisfiedthat from the ver\> nature of his duties it can be safelyinferred that he would undoubtedly be vicariously liablefor the offence: vicarious liability being an incident of an

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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, ftigUhereisanvact committed, by the Directors from which reasn-nnhloinference can be drawn that they could nhn h.vicariously liahle_ 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 theallegations made in the complaint and the proceedingsagainst them were rightly quashed.

(emphasis supplied)

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

"8 ...the vicarious liability of person for being-for an offence committed under the Act aprosecuted by company arises if at the material tim.e he was in chnrap n-rand was abo respomihle tn the company for the conductOf 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 being director person r.nm horesponsible to the com.pnmi fnr th.0/ Its business, From the complaint in question weowevei, find that-except bald statement that the'respondents were directors of the manufacturers there is no other allegation to indicate, even prima facie, thatt were in of the and ey charge, company also responsibleto the company for the conduct of its business. "

, (emphasis supplied)

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48. The counsel for the petitioners have placed reliance on NationalI Small 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 liabilityunder the Negotiable Instruments Act. In National Small IndustriesCorpn. Ltd. (supra), it was observed thus:-

'liability, and which, i'" as P"""'P''°''^^'"''-eating per settled law, must be vicariousstrictlvconstrued. It is therefore, npLsufficient to JZ TTZcursoiy statement in complmnt tif^f Directortr.Tfor the. conduct of the business oflhelojhe company without more as to the role of the 'company anything Director. But themmplamt should: spell r.„t g, to- hn«.manner L was in of orandjliwhat Respnn^^t msmm^ & aeMtsed,Gomp^yfyrytffyytof Its business. Ihis is in..consonance with strictmterpretauon of penal, mmhi esrnciallv wher. suchStatutes create vicarioukl^IthmdyifiMr

14. company inwl^:k..pil^^ m.ake any or all m 'mmZrf as accused in aon the basis of statement that arecomplaint merely they in charge of and responsible for the conduct of thebusiness of the com.pany withoul mything more is not asufficient or adequate fulfilment of the requirementsunder 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 Co 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 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 NCT of Delhi V5.Rajiv-Khurana, (2010) 11 SCC 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 com-pany's business. Every Director need not be andis 7iot in charse of the business of the company. If that is Ithe position with regard 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 andresponsibilities in the conduct of business of.the companyand how and in M>hat 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. Anu Mehta, (2015) 1 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) It is only those persons who are incharse of or responsible for the conduct of the .business of the company at the time ofcommission 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 signatory to the cheque whichis dishonoured is clearly responsible for theincriminating act and would be liable to beproceeded against under Section 141 (2); I

(Hi) By yirtue of the office they hold, thepersons workins in the capacity of theManasins Director or Joint Manasins IIDirector are deemed to be in charge of. andresponsible for the conduct of the business of,the company and, therefore, can be proceededagainst in terms ofSection 141;

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(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 inIcharge of, or responsible for the conduct ofthe business of, the company within themeaning ofSection 141;

(y) It is necessary for the complainant tospecifically 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 ofthe company in terms of Section 141, therebeins no need for further particulars to besiyen in the complaint about his role, thisbeins subject to proof at the trial:

(yi) The person who has been summoned asan accused for offence uhder 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 have been set out in the complaint; and

(vii) The person who has been summoned asan accused for offence under Section 138 of'the Negotiable Instruments Act, 1881 byinvoldng 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

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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 standthe trial would be an abuse of the process of ^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 the primafacie 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 measured under the Rules. Section47 read with Section 53 of the Buildihg and Construction Workers Actthus creates coiporate criminahliability against the said company andI.by virtue of the principles of vicarious'crtoinal liability, every personwho, at the time when the' sMi;.d#^d|:f1^:^%ommitted, was in-chargeof, and was responsible jhei'ismdlclj^^ny for the conduct of itsbusiness, -as well as the cdmpii^t-'alc^imiemed to' be liable to beproceeded against. Just as in the case of Section 141 of NegotiableInstmments Act, by virtue, of the .office they hold, such persons aswork in the capa.city of managing director or the joint managingdirector or, for that matter, persons employed as in-charge of theconstruction work at site, be it iii 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 company 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 be 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 Coud', 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■•cdnstituting the offence underSection 47 of the BuildingnndlSonstructidn'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 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 apt 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 '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 npt,he was expected to play anyspecific role or discharge responsibility fpwards specific rule, at thestage when its breach has led to the- fatality.or serious incident.

54. different approach tha.i the;;ohe:-,,above to the subject mightlead to unjust results. This^vina^J)^ illustrated by two simpleexamples. As noted earlieri- the:' en!||ldfer {establishment) is dutybound, in terms of Section 4§(.lj(;g),''.fevgiVe intimation, prior tocommencement of the buiiding'"or other construction work, as to thename and designation of the person who will be "in overall charge" ofthe building or such construdtion \v0rk.7;Haying regard to the schemeof the enactment and the rules framed thereunder, the employee{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 finming 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 construction work at:site, under Section 46 or thoseassisting him in the task) they havingmbt'ensured the safety equipmentto be availed of by the workers,,the former (those responsible for theconduct of the business at the higher levels) cannot be heldaccountable under the deeming provisibn.-,

55. It is the connected to theargument•.*of%heiy.|)^ifei^ construction contractor .comphhy viz., M Naik (Cii.M.C.2069/2015), K Venkatramanan (Cii.M.C. 2068/2015), M V Kotwal(Crl.M.C 2070/2015), S.k Subrahmaiiam-{Cii.M.C. 1873/20^ RShankar Raman (Cii.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 Constinction Workers Act and the rules 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 (Ankit 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 IPC 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 rndrtaf injuries.56. The copy of the sub-cohtfact,-as^ shdwn at the hearing cannot betreated (without proper proof) as authentic or ""incontrovertiblematerial" or as one exonerating the construction contractor companyof its entire responsibility in t^nn'atter;;^ particularly in view of itscontinued responsibility of the sub-contractor asper clause 79.13 of the contract' dated 2'9.03.2012, referred to earlier.The argument based on the sub-contract, entered upon by theconstruction contr^actor cOinpaiiy^With rneTm^ 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 Thcipar 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 subsidiarieshas its own separate Board of Directors and supervisory persomielusing 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 infrastracture, metallurgical & material handling,power transmission and distribution, hydrocarbon engineering, valves,alloys, power development, infotech, fina!nee, construction and miningmachinery etc. I ,

58. The complaint on which the summoning order was passed itselfdescribes Mr. A.M.-Naik, petitioner, in-Cfl.M.C.2069/2015 to be theGroup Executive Chairma3^-.0£'^o^ '©p.ns^ftion contractor company.Similarly, the description of Mr.'M.M. 'KotWal, 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 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 (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

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made with legard to the prescribed safety measures concerning theconstruction 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 thelesponsibilities shouldered, by Mr. K. Venkataramanan (petitioner inCrl.M.C. 2068/2015) or Mr. S.N. Subrahmanyam (petitioner inCrl.MU. 1873/2015) had no connection with the obligations of theestablishment of the ''employer'' (constaiction contractor company)towards compliances of the Buiiding and Uonstruction Workers Act orthe rules framed- thereunder. These petitioners do not dispute that atthe time of alleged commission of the-offence under -Section 47 of theBuilding and Construction Workers Act,'ithey were worldng for theconstruction contractor company;;m the/c4->acity of CEO & ManagingDirector and whole-time.Executive Vice President.(Inlf astructure & Construcf|6n)..i!^pdiGdi^|^

60. The very description of the port-folios they held and theresponsibilities that would entaildhereffpm ./jUmayh^ shows that theallegations in the criminal compiaint as to'their deemed liability underSection 53 camiot 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 Sectiori 38 of the Building and Construction Workers Act

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that concern day-to-day use of safety belts, safety nets,- safetyplatforms, or personal fall aiTest 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 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 areas specific cannot, by anystretch of arguments, be relegated to the domain of the managerialstaff (M-. Daljit Singh and Mr. Harish Vaid) made in-charge of theconstmction site. I •

62. The above petitioners, however,'als;o, raise the defence based onthe two safety audit reports, one dated 93^.2013 and the other dated24-25.05.2014. It would be a'subjept matter of factual inquiiy as towhether the safety audit report; subrnj^tbd on 25.04.2014, obtainedafter the fatal accidents in question, .can be,vfreated 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 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 inteims 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. Venlcataramanan

and S.N. Snbrahmanyam. 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 all due diligence to preventcommission of such breaches (or offences).

On the above facts, and in the circumstances, initiation of

criminal action against petitioners - DLF Universal Ltd. (petitioner inCil.M.C.2064/2015), Mohit Gujral (petitioner in Crl.M.C.2067/2015),Rajeev Talwar (petitioner in Crl.M;C.2Q66/2015), Shriram Khattar(petitioner in Crl.M.C.2160/2015), Ashoh:Kumar Tyagi (petitioner inCrl.M.C.2159/2015), I , Sudhir .Sahgal (petitioner inCrl.M.C.2158/2015), A.M. Naik, (petitipher in Crl.M.C.2069/2015);M.V. Kotwal (petitioner in. GrKl^O.^07h/2Ol^ R. Shankar Raman(petitioner in Crl.M.C. 20^/^|)rCrl.M.C.2071/2015) being urifoundedf the continuation of suchthem would be an abuse of the of law.pioceedings against process Therefore, their petitions are. anowed- ,and. the proceedings againstthem m 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

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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 abovewould be treated as final of on merits of the caseexpression opinion against the said petitioners.

I65. The and the filed therewith are petitions applications disposedof in above terms.

kK. GAJUDGE

NOVEMBER 19, 2018

vk/nlc/yg

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