CRL.M.C./2071/2015 of SHAILENDRA ROY Vs STATE

Signature Not Verified

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

$~IN THE HIGH COURT OF DELHI AT NEW DELHIDecided on: 19"' November, 2018

+CRL.M.C. 2071/2015 & CRL.M.A. 7373/2015. SHAILENDRA ROY PetitionerThrough: Ms. Sirna Gulati with Mr. SubhashGulati, Mr. Shailesh Poddar & Mr.Sumit ■Saini, Advocates.

VersusSTATE . " . - .'W. R^^R^^.'Through: Mr. Mukesh Kuniar, APPV >' * :

.'W. R^^R^^APPV >>Si

coRAM:. ' * :HON'BLE MR. JUSTICE R.K.GAUB t V ^ ^ t

t V ^ ^ t ''LJ 1'? ' > ^ ^ /ORDER (ORAL^

ktFor detailed, order, the ,deGision^datel''19^'' November, 2018 inCrl.M.C. 1873/2015 be referred\to.*' 1may

K GAU

NOVEMBER 19,2018nk

IN THE HIGH COURT OF DELHI AT NEW DELHI

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

;!+ '5 I

,;: ; j '1^' V V •' !'J • It i1 (i h'ij 1■; k;^

'1^' V V •'

CRL.M.C. 1873/2015 &

CRL.]V1A. 6732/2015

S.N. SUBRAHMANYAM n '

.....Petitioner

Through: IVIr. Vikas Pahwa, Sr. Advocate with.Ms. Sima Gulati, Mr. Subhash Gulati,Mr.Shailesh Poddar, Mr. Vinit Arora■- ' & Mr. Sumit Saini, Advocates.

' versu^^; ■ „ . , "A■ ^ ' Respondent

' STATE

Through; ' 'Mn MukeshKumar, APP.

CRL.M.C. 2064/2015 'A

-DLF UNIVERSAL liTD. THR.. ITS^AUTHORIZED ' REPRESENTTIVE . Petitioner

.Through: ..Mi\ Rarhesh Gupta, Sr. Advocate with^ i ;'.y ■-.MrAS'^d^p'Kapur, Mr. Vivek Suri,'k I; J/MrvKian^th&Mr. MayankDatta,A'Advs.

' ."versus, r- '

r- STATE NOT OF DEEHi THR. FACTORY INSPECTOR-

" RespondentThrqugh: • Mr. Mukesh Kumar, APP. . ,

CRL.M.C. 20^6/2015 ■ , . ,RAJEEV TALWAR • ' ■ PetitionerThiuuglu , Mr..Sidharth Luthra, Sr. Advocate^with Mr. Sandeep Kapur, ML Viveki . Suri,Mr. Kain Seth, Mr. Mayank

■1 • \-Crl. M.C. 1S73/2015 & connected

^ of 54

Datta & Mr. Aashneet Singh,Advocates,

versus '

STATE NCT OF DELHI Through;

Respondent

Mr. Mukesh Kumar, APP.

CRL.M.C. 2067/2015MOHITQUJRAL

.....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.

CRLM.C. 2068/2015 7363/2015K VENKATARAM/#^;

PetitionerSr. Advocate with

Through:, •|^.:M^|^;Agarwal, Mr. AnujAnirudh Bh^^^

Advocates.

n versus , ,

STATE

Respondent

STATE n Through: . . Mr. Mukesh Kumar, Mukesh Kumar, Kumar, APP.+CRL.M.C. 2069/2015 & CRL.M.A« 7366/2015AMNAIK

Through: . . Mr. Mukesh Kumar, Mukesh Kumar, Kumar, APP.

.....PetitionerThrough: Mr. Kapil Sibbal & Mi".Dayanlcrishnan, Sr. Advocates withMr. Mahesh Agarwal, Mr. AnujMalhotra & Mr. Anirudh Bhat,Advocates.

n Crl. M.C. 1873/2015 &conmcted

Page 2 of 54

versus

STATE &ORS. .....Respondents

Through: Mr. Mukesh Kumar, APT.

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

Through; Mr. Dayanlaishnan, Sr. Advocate with•Mr. Mahesh Agarwal, Mr. AnujMalhotra & Mr. Anirudh Bhat,•Mr. Mahesh Agarwal, Mr. AnujMalhotra & Mr. Anirudh Bhat,

Advocates.

versus

STATE & ORS.

Respondents

Through: Mr. Mukesh Kumar, APP.

n + CRL.M.C. 2071/2015.& GRL.M.A., 7373/2015SHAILEMIRA ROY , ,

Petitioner

Through:. • Ms. Sima, Ou.lati with Mr. SubhashGulafi;:;Mr. Shailesh Poddar & Mr.Gulafi;:;Mr. Shailesh Poddar & Mr..Smiiit Sairii, Advocates.

STATE

versus

' ' Respondent

Through: Mi\ Mikesh Kumar, APP.

+CRL.M.C. 2072/2015 &'^fetoM:'i.'7375/2015R. SHANKAR RAMAN Petitioner_ _

Through: Ms. Sima Gulati with Mr. SubhashGulati,-Mfe Shailesh Poddar &Gulati,-Mfe Shailesh Poddar &n n MivSuiAihSaini, Advocates.

versus

Respondent

Through: Mr. Mukesh Kumar, APP.

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

2158/2015 & CRL.M.A. 7635/2015 & CRL.M.A. 7635/2015 CRL.M.A. 7635/2015 7635/2015 _ _PetitionerPetitionerThrough: Mr. R.K. Handoo with Mr. SandeepKapur, Mr. Vivek Suri, Mr. MayankKapur, Mr. Vivek Suri, Mr. Mayank

SUDPRR SAPIGAL

CrI. M.C. 1873/2015 & connected

Pa2e 3 of 54

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

versus

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

CRL.M.C. 2159/2015 &

CRL.M.A. 7672/2015

ASHOK KUMAR TYAGI

Petitioner

Tiirough: Mr. Sidharth Luthra, Sr. Advocate, with Ml". Sandeep Kapur, Mr. VivekSuri, Mr. Kam Seth, Mr. MayankDatta & Mr. Aashneet•Sin^,,Ad;y;0cates.

'' v. •'

"versus '

STATE NCT OF DELHI . :

Respondent

Through: 'Mr. Miikcish Kumar, APP.

CRLM.C. 2160/2015;i&cta/l?iiv'^637/2015

SHRIRAM KHATTAR ' T , PetitionerThrough: with Mi*. Sandeepflpurytf; Vivek Suri, M^^Datta, Mr. Karan Seth &Mr. Aaslmeet Singh, Advocates.

■Versus ■ ■

STATE NOT OF DELHI

Respondent

Through: Mr. Mukesh Kumar, APP.

'■ CORAM: . .

HON'BLE MR. JUSTICE R.K.GAUBA

JIIB-GMENT

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

Qi. M.C. 1873/2015 & connected Page 4 of 54

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 Anlcit Kumar, engaged as painter atthe level of IS^"" floor of Tower No. 14, while applying paint on theface of the exterior wall, fell down tp 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 information report(FIR) No.429/2014 and took up the investigation into offencessuspected to have been committed, thby being punishable underSection 288 conduct : with to down or(negligent respect pulling repairing building) and Section 304-A (causing death by negligence)of Indian Penal Code, 1860^(IPG)i:^ Thprtestigation into the said FIRresulted in'.report imdef''#etxibn'bi^3-- '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 thesaid offences under Sections 28'8/304-A-IPG for the reasons that hewas the supeiwisor 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. n .

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

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mater was also brought to the notice of the authorities in the office oflabour commissioner, Govt. of National Capital Territory 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 GOgnizahpq'by order dated 10.09.2014and issued summons on the sdid' cdittplmnf inter alia, against thepetitioners who ha,ve approached this court invoking inherent{jurisdiction under Section 482 Gf.F>C'. rby the captioned petitionsseeking the proceedings arising out of.the. said criminal complaint caseto be quashed on the groui|d thetisame isHh': the nature of abuse of theprocess of the court. '''7'

4. It may be mentioned here that the criminal complaint in whichsummoning order was passed^ whi'ch is7ihipugned 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 rules framed thereunder, they press these petitions forquashing of the said summoning order on merits on the groundsindicated hereafter.

6. The petitions of the land owner company (petitioner mCrl.M.C.2064/2015),/.its Chairman Mohit/Gujral (petitioner inCri:M.C.2067/2015), its Managing DirPpm^^ ^alwar (petitioner .in CrlM.C.2066/2015) ana(its,Pip#'Shriram Khattar. AshokKumar Tyagi and Sudhir SaK#li|#fciners in Crl.M.C.2160/2015,2159/2015 and 2158/2015 resppctiv^/primarily contend that theconstuction contract the said other havingbo^kw^to company,the work being carried oufcun<% ffiy^fVision and control of thelatter throu^ its sub-contractor, it having no connection whatsoeverwith the day-to-day activity, it had no role to play oi nexus with anythe acts of commission or;otniSSibB pn'tle basis of which accusations .have been leveled, no case also being made out of vicarious liabilityunder the criminal law.

7Neither the construction contractor nor two of thecompany company nother accused connected thereto - Mr, Daljit Singh and Mr. HarishVaid - described as Project Director and Manager andustrialRelations) respectively in-charge' of die construction site, have comeVaid - described as Project Director and Manager andustrialRelations) respectively in-charge' of die construction site, have come

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

, , n Page 7 of 54' , .

to this court with the order of the up any plea assailing Metropolitanof the afore-mentioned offence orMagistrate taking cognizance suminoning 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 mCrl.M.C.2069/2015); K. Venlcataramanan, CEO and MD (petitioner inCrl.M.C.2068/2015); M.V. Kotwal, whole-time Director and President(Heavy Engineering) (petitioner in Crl.M.C.2070/2015), S.N.Subrahmanyam, whole-time Director ' and Senior Executive VicePresident (Infrastructure , and C'e>n#i'Uetion) (petitioner inCrl.M.C. 1873/2015); R. Shankar Ramah,'';#hole-time Director & CFO(petitioner in 'Cii.M.C.2072/M5); and' Shailender Rao, whole-timeDirector and Senior Executive Vice President (Corporate Affairs andPower)- (petitioner in Crl.M.C.a0Tl/20f5). The thrust of thearguments of this set of petitioners is tHat:#ven their position in thehierarchy in the construction contractdf cdmpany, having regard to themeasures that had been put in position under their directions, in strictcompliance of and adherence to the law,,the work m question havingbeen entrusted to sub-contractor, their representative being in-chargeof the project at site, they cannot be held accountable under theprinciple of vicarious liability for the penal offence under the speciallaw which has been invoked' by, the prosecution before theMetropolitan Magistrate, and in which they have been summoned suchproceedings being abuse of the law.

Crl. M.C. 1873/2015 & connected

8. The petitions ^have been resisted by the respondent State (theSince have arisen out of the same case and acomplainant). they bring challenge to the same order, they have been heard together. Durmgthe 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 thedocuments was on record the supplementary ■brought by respondents'on 29.09.2018..

9. The Building and Construction Wokcers Act was brought on thestatute book enforced w.e^. 0.1.03,19^6. with the objective ofregulating the employment and condftjoiis of service of building andother construction workers.ana|j;JPi^f;|OT their safety, health andwelfare measures and therewith orincidental thereto..

10. The expression "buildrng or j^^^nstruction work isdefined by Section 2(l)(d) fo medn, "mier 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 Greensin the course of which the fatal accident wereProject, occurred, "building or other construction work" within the meaning of thestatute. The "building worker" is defined by Section 2(l)(e) to mean

,I :'Crl. M:C. 1873/2015 & connected

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"a person who is employed to dp any skilled, semiskilled or unskilledmanual, supervisory, technical or clerical work for hire or re-ward,whether the terms of he or inemployment expressed implied, connection with or other construction work". There isany building no 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 deiinitibhSi,^ a^ appearing in clauses(g), (i) and Q) of Section 2^1) of^tb^imlding ,and ConstructionWorkers Act, may be taken note of as q At>

"(g) "contractor" means person who undertakes to. nroduce piven result fdr anv'Jestdblishment, other than amere supply. of gooc^iomwdipiesyf^manufacture, by the,employment of buildins workers.;br\who supplies buildingworkers for any work.ofesldbkyHrhent; and includes asub-contractor;

(i) "employer", in relation to an establishment, means thep-wner thereof, and'ineludes.,- .

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

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

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without \any .contixt.ctor, the chief executiveofficer a}'Mot Authority or establishment;

(Hi) jnl I Kttladon 'idi buildintt ' or otherconstruction work carried on bv or thoush acontractor^ or. by the, employment of buildingworkers''^ supplied -by contractor, thecontractor:

(j) ''establishMknt''mans any establishment belongingto, or under Me 'control df. Government, any bodycorporate or firm, an individual or association or otheibody of individuals which, or who employs—buildingworkers in anv'building or other construction work: andincludes an establishment belonsins to contractor, butdoes not include an- ihdj.vidudl: who employs such workersin any building or construction work in relation to his ownresidence the total cpkt ofjuchdconstruction not beingmore than rupees tenlakh:'!'. ^

n\ p . ' ; / n (emphasis supplied)

12. It is clear from the contractorin relation to work be. building oh;^fiepic(^rhl^^ may personother than owner of the-sul|fe?cJ:®K^|E^ instance such workis undertaken. As would be' seen with reference to certain otherprovisions of the law, thel'responsibility for the safety measures is ofthe person who falls witfliii- the descri)3tibn "employer", qua thebuilding worker. It is the "employer" who constitutes the"establishment" which is' dut|^' bound, under the law and the rulesframed thereunder, to put in position, the requisite safety measures.

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

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

, Page oj54

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

14. The sixth chapter ( conditions of service of building workers"^deals with subjects such as. fixed.yhoum for normal working day(Section 28), wages for overtiiije work (Section 29), maintenance ofregisters and records (Section ,30), prohibition of employment ofcertain persons in certain buiMihg;or othef-construction work (Section31), drinlcing water (Section 3'S),, latrine's and urinals (Section 33),accommodation (Section 3%c|b]ys^S|®ion 35), First-aid (Section36), Canteens, etc. (Sectioh|0i)||, VVy^'ij|?/^

15. The seventh chapter {"safety and health measures") is what iscrucial to the present .•-It #©nfers^_Sebtion 40, power on theappropriate government to make^hles "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. any.^orkins place, includins the provision of suitahle 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 ofsupport;

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(e) the erection, installation, use and maintenance ofhoists, lifting amliahces and liftins 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- moving equipments andfloating operational equipments;

(r) the safety policy, that is toa policy relating to.steps to be taken to er^SMre fffyfbffty cmd health of thebuilding workers, the admnfstrative arrangementstherefor and the matters Gohnec.ted therewith, to be framedbv the employers and contractors., kbr the operations to ben carried on in building or. dthefeort^truction work:

(u) any other matter-coheermngM^^ safety and health ofworkers in carried onworldng (fff,g0fff^0raipns being in building or other construettSh work. "

(emphasis supplied)

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

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

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

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

(2) In every establishment referred to in sub-section (1),the employer shall also appoint safet\' officer who shallpossess such qualifications and perform such duties asmay be prescribed. - - -

44. Responsibility of employersemployer shall beresponsible for proviiifik dbmlcmt and adequatesupervision of any huilding. or ■otkefyconstruction work inhis establishment as to ensure compliance with the ,provisions of this Act relating to safety and for takins allpractical steps necessaiy to prevent accidents. "

(emphasis supplied)

18. The above-noted statutory provisions declare unequivocally thatit is the "employer" vis-a-vis building or other construction projectwho is for all the measures"responsible" arranging prescribed safety and 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

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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 namation, it may be added that Section 39casts duty on "the employer" to give notice^ in the mannerprescribed, to the specified authority in the event of n an, accidentoccurring in its establishment, it resulting in death or bodily injuryincapacitating worker for certain period, this for the purpose ofinyestigation or inquiry by such authority as may be deemednecessary. In the present case, the notice of the accident wascqncededly given and the inquiry hei..d,vby the concerned statutory"inspectorate. - ' ;;

20. The Building and Construction:' Workers Act also requires aprior notice of commencement of'buiMing. pr construction work to begiven, the mandatory information requisite for such purposes being asindicated in the following provisiOmr.f::.,:; f' v

"46. Notice of commencement of building or otherconstruction worltr

(1) An employer shall, at least thirty days before thecommencement of any buildins or other construction work,send or cause to be sent to the Inspector havingjurisdiction in the area where the proposed building orn other construction work 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;.

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

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

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

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

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

(g) the name and designation ofthe person who will be inoverall charge of the buMdihg-ior^other construction workat the site; \

(h) the approximate duration qffhevkork;

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

(2) Where any change occurs; in 'any of the particulars'furnished -under sub-section -'(If,:.-the employer shallintimate the change Jo, the\Mspf0^ two days ofsuch change. .. v

(3) Nothing contained in sub-sectibn (1) shall apply incase of such class of building or other construction workas the appropriate [Government may_ by'jotification specify-to 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" forcarrying-out the construction work, also vested with the authority to

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

employ building workers being the "employer". The person deputedas "one in overall charge" is the representative of "the employer", theemployer being answerable and accountable for all acts of commissionor omission done such of the orby representative "incharge project" those working under his control. Pertinent to add, the duty to intimate,in advance, commencement of the construction work (by prescribednotice) is not of the land owner but of the "employer", such statutorynotice 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 power's confeiidd ^upon the said authority inexercise of the conlfefi^ and Constructionpowers byj^fh|?;Building Workers Act, the lieutenant "gqvemdi:' p^ihe Govt. of NOT of Delhimade and notified Rules whidlf areiiCalJfed the Delhi Building andOther Construction Workers ■'^(ReghfeMG of Employment andConditions of Service) Rul'e:s-20.^2 Rules for short).

23. The criminal complaint (from which the present proceedingsarise) refers speciflcally^. to ■ breach of ^ (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 fallTn 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,

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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 term which may extend to three,months, or with fine wMiph may extend to two thousandrupees, or with both, and irtX'tlhdu base of continidngcontravention, with 'which may extend toone hundred rupees for: evety'rday during which suchcontravention continues after conyfction for the first suchcontravention. , , d. ^ •

(2) If any person who kdtk beehvibpnyicted of any offence ,'punishable under again guilty of anoffence involving contiaventioh-'dr failure of com.pliahcenof the same provision, he shall be punishable on asubsequent conviction with imprisonment for term whichmay extend to six manths. 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 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 Hiis^mens rea i.e. the intention to commit the breach ofthe rules or abetment thereof on the part of the person sought to beprosecuted is pre-requisite. The case at hand is not one of any of theaccused having been previously convicted for such offence and,therefore, the enhanced punishment is not attracted. Having regard tothe punishment prescribed, the criminal case comes up before thecourt of Metropolitan Magistrate as one which may be triedsummarily.

27. As observed above, it is the contravention of the provisions ofthe Rules on the subject of "safety andUefalth of building workers", asenvisaged in Section 40, which is madb,-pqhishable. Though the.DelhiRules have been framed and ndtified%itil rdferen to the rule makingpower conferred on the appropBate gb¥er]bment by section 62, havingregard to the subjects that are thereby covered, there can be no disputethat such rules have been framed also in exeFcise of the power undersection 40.

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

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Page 19 of 54

53. Offences by companies.- (1) Where an offence under' •this Act has been committed by company, every personwho, at the time the offence was committed, was in chardeof and was responsible to, the company for the conduct ofthe business of the as well as the shallcomvany. company, be deemed to be suiltv of the offence and shall be liable ton be proceeded against and punished accordingly:

Proyided that nothing contained in this sub-section shallrender any such person' liable to any punishment, if heproyes that .the offence was committed without hisknowledge or that he Had exercised all due dilisence to.preyent the commission ofsuch offence.

(2) Nothwithstanding anythinQ.contained in sub-section (1)where offence under this .■ Actfhaf been committed aany by company and it is proved ■tMf'fhe offence has beencommitted with the cpnsent, loWo'e.onnivance of, or isattributable to any neglect onfthe: part of any director.manager, secretary or other officer, of the company, suchdirector, manager, secretary Sr. other officer shall bedeemed to be suilty of that.offence and shall be liable to beproceeded against and-prim^kedfcgordingly.

Explanation. - For thepmpgs'e^rSfihis-Section, -

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

(b) "director", in reljdlpp.tp pi^^ partner in the 'firm. " ' ■'" '

(emphasis supplied)

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

Cri M.C. 1873/2015 & connected

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

30. It IS clear from the bare reading of the statutory clause thatwhere the offence is committed by company, in order to rope in anyother on the of vicarious criminal it must beperson principle liability, shown tliat such was of and was to theperson "in-charge responsible company for the conduct of its business "at the time the offence wascommitted". The proviso to Section 53(1) permits person arraignedon the principle of vicarious'liability to plead and show by evidence,defence, that he was not,; responsible either because the actsconstituting the offence were .committed:'his knowledge" orbecause he had "exercised alMke dit^s^bdo prevent the commissionoj such offence . Notwithstanding -fh^ ipain provision contained inSection 53(1), the prosecutiori mpb|im|ated against "any Director,nSecretary or Oth^''o^^ri6ffj§^<dbmpany " if there is proofavailable to show that the "with the consent orconnivance of or is attributable to on the of" suchany neglect part director, manager, secretaiy or other officer,of the company. Whilesection 53(1) relies on "&dm%''' dU6S^the position of the personvis-a-vis the company "in-charge of" and "responsible to", section53(2) necessarily requires positive evidence to show activeparticipation reflective of "consent", "connivance" or "neglect".

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

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

04.09.2011, 11.04.2012,, 16.08.2012, 28.02.2013, and 16.01.2014 as,well. The present complaint dated 14.08.2014 camiot 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'pn contractor company. It isindicated in the complaint dtself that -the construction contractorcompany had got itself, registered with tbe statutory authority of theappropriate government in compliance': with the requirements ofSection 7. The certificate, of-registfation.•describes the constructioncontractor company to be thC "es'idbiishment" 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

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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, 3'"''Floor, Arjun Marg, DLF Cityl Block E, DLF Phase 1,Sector 2 6A, Gurgaon, n Haryana 122002 are the"Directors" and Sh. A.M. Naik, Group ExecutiveChairman, Sh. K. Venkatammdn.an, CEO & MD, Sh. M. V.Kotwal,.^Whole time Direetpr/dk-.^fesident, Heavy Engg.,Sh. S.N. Subrahmanyan, hffiole 'titfl.e, Director & Sr. EVP(Infrastructure '& cdmtf%lipn); pfp-R. Shankar Raman,Whole time Director &. QPOFShy Shailendra Roy, Wholetime Director & Sr. EVP (Corporate ajfairs & power) andSh. Daljit Singh — Project Director, (In-charge of theconstruction site) of M/s. Larsen <& Toubro Ltd. are the"Directors " of M/s. Larsen & Toubro Ltd. and Sh. 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 of .the Act, in the present case).

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

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

5. That besides this, prima facie, it appeared oninspections that the manasement failed to ensureadequate site management as envisaged in the provisionsof the Building and other . Construction Workers(Regulation of Employment and Conditions of Service)Act, 1996 and the Delhi Building, and other Consti-uctidnWorkers (Regulation of Employment and Conditions ofService) Rules, 2002: Management had, not taken allappropriate measures as per • fie, said Act and Rulesframed thereunder to prevent accidents at building site ofsuch proportion and magriitude. / ,

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

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

n8. 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 -were n^ .provided with safet\' belts and Personal Fall ArrestSystems (PFAS). 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 suardrails and toeboards of adequate strength inconti-avention of the provisions of Rule 196 of the saidRides. .

IV. That more than .500'; I.e. 2700 workers wereordinarily employed at the construction site but SafetyOfficers as per qualificaUon dpd condition of service aslaid down in Schedule VIII of the 'said Rules had not-beenappointed, in conti^avektioh-of the provisions of Rule 209of the said Rules read withSectipm 8.8 of the said Act.

V. That the mandgemehtsMmeiMot implemented theirHealth & Safety.'l:/P'oUey \ dhffetter and spirit, incontravention of

9. That the above accused persons are thus euilty ofcontravenins the.. provisions of Rules .39.42.178.179.196and 209 of the said] Rules .read wMhtSeptions 38,40 and 53of the said Act which is 'punishable under section 47 of then "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 26.05.20,14 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 formfreports 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 04.08.20 i4 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 p.oliby,'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 aclmowledgted.' '. v-

36. The documents in is no whidh'&gai]^flhere dispute, uponperusal, show that the land owner company had entered into contracton 29.03.2012 with ; the construQtion 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 of.company responsibility every aspect constrtiction 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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79.1 The contractor. shall incorporate in his operationsthe requirements, of all the 'Safety Code.<;' issued by theBureau ofIndian Standards and provisions of the NationalBuilding Code of India 2005 including any amendments,thereof The Building and Other Construction Workers(Regulation of Employment and Conditions of Services)Act, 1996 and any other applicable statutory rules andThese shall in all casesregulations. requirements apply except where the regidations of the local authority requiremore stringent measures • to be taken. Where the.requirements of BIS 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-morp .stringent of these,regulations shall be- deedted.ioidpp)y:.. The Safety Manualprovided by the Ownen is bn^0^estive and shall notcast any liability on tfe^OVmeftf T-I'

79.2 The contractor shall movideisafe means of access toall workinsplaces.

79.3 The contractor'.vrover desim oftke ' SciMUdmsp. d- emvorarv accesses.ladders and ramvs, :formwhrkfand>-hoisting' a.rra.n.p-p.mpmt.vcranes etc. to ensure safety'df mbrkmen as well as thebe maintained in safe conditions. Only-tubular scaffolding^.shall be used. -

79.4 All necessary personal safetv/protective equipment.first aid kit, medically trained versonal, fully equippedambulance and any other facilities as per the statutoiwrequirements should be always available on the site forThe contractor shall take adequate steps to ensureproper maintenance and use of equioment by hisemployees/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.

19.1 The contractor shall provide and maintain allnecessary temporary fire protection and fire fightingfacilities at the site during the execution of the works in 'accordance 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.

19.8 The contractor shall notify the ensineer immediatelvof any occurrence of mishaps or accidents that results indeath or injury (including grievous injury) as defined inthe Indian Penal Code. Such dnUial notifi:cation may beverbal and confirmed in writing thereafter and shall befollowed by comprehensive vyrittpn report within 24 hrsof the occurrence/incifdent..^ The ^Contractor shall dulycomplete standard fdrrus' as.. reqUirfd by the engineer andn statutory authorities. ' ,'f.f

19.9 It is made cledk'tlidt: d^ilbntractor alone as thePrincipal n Ernvloverk Js fiansdvefctlilel^^ liable to allinvestisatin^ and le^lmMorikes'fiicludins Court of Lawand the Owner shalTnot have any part or liability in. thisresard. The Contractor alone shall be responsible andliable to compensate, the victims-..- mmediately on n theoccurrence of the mishaps or accidents and also protectand indemnify and hold harmless the owner, the engineerand all persons who may be associated with or connectedwith the owner or the engineer and to reimburse all legal. andfinancial costs, if incurred, by the them in this regard.

19.10 All consequences, damases or losses arisins byreason, of any violation of the .mfetv requirements resultinsin 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

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

79.11 Within one week- of commencement date, thecontractor shall submit -to the ensineer, detailed andcomprehensive contract' shall: submit to the engineer, adetailed and comprehensive contract specific site safetyplan, based on the requirements \ .stated in clause 79.1above. The site safety plan shall if elude detailed policies,procedures and re2idatioris {which, iwhen implemented willensure safety of all the persons, including third parties on,or in the vicinity of the site (including without limitation,persons to whom access ed the ilpyhds been allowed by thecontractor). The cordr'actorlshMffmm time to time asnecessary, produce sllpp)lp^eni&d070ik^site safety plan suchthat it is at all times a'detailed, comprehensive andcontemporaneous statement by the conti^actor of his site-safety and industrial health, obligations:, responsibilities,policies and procedure. (iirMer 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 ofthe Site Safety Plan and/or supplements thereto shall bewithout prejudice to the Contractor's obligations withrespect to Site safety, and industrial health and shall 'notexcuse any failure by the contractor to adopt proper andrecognized safety practices throughout the execution ofworks.

79.13 The conti^actor shall adhere to the Site Safety Plan■and shall ensure that all sub-contractors of all tiers hovecopy of the Site Safety plan and comply with its provisions.The contactor shall appoint Qualified and experiencedperson as Site Safety^ Offiter to act as Manager of the SiteSafety Plan and who will be re.sponsible for all 7^^,matters related to the works. The contractor shadl, fromtime to time, provide such other personnel and resourcesas may he required to ensure effective operation of the SiteSafety Plan. The said Site Safety Officer shall submit1 egular safety reports to the Engineer in accordance withthe requirements of the Engineer and all relevant statutoiyauthorities, . as required by Applicable ■ laws andTh.e contractor shall submit on regulations. monthly« Certificate of Compliance for Health, Safety and. Environment as given wAppendix,^ ''M". " .

;' (emphasis supplied)37. It appears that in the v,^afee pf the fathl incident that occurred on28.02.2013 (death of Maqbooljiat the:sam'e very site, prohibitory orderfollowed by revocation order, ;had,beep^ on 01.03.2013 and08.03.2013. Against the ,|^id"bacl^r(bp||tl^ construction contractorcompany had taken steps fbh^gStih^:® .safety audit of the projectdone. An audit report dated 03.04.2013 was submitted to theauthorities by the said cbinpahy -underrthe; cover of its letter dated25.04.2013. Reference to the said audit report and the coiTespondenceexchanged in such regard was made by the constiiiction 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 audit had safety given satisfactoiy

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i6poit 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 in terms of th intimations that had been given, Mr. Daljeet Singh,the Pioject Director of the construction contractor company, was theperson "incharge of the constmction site" and Mr. Harish Vaid,Manager (Inteinal relations) was the Manager of the Construction Site,within the meaning of Section 53 of'the Building and ConstructionWorkers Act. As also noted .earlier,- bpth the said accused personshave not challenged the, summoning order;.

39. It was also brought outi.durihg'the^^'^ of hearing that at thetime of inspection(s), leadingto inspbcrt^ dated 18.05.2014,24.05.2014 being .prepared, # Singh, who was foundas the oft^e the person incharge S'itfjiSeli^i^g^^sisted complainant'sofficeis in such•.inspection'. atl^fe/Mtel-. a.-'Phe report, prepared oninspection carried out in the forenoon of 18.05.2014, is the mostciucial inspection report, .for purposes o.f ,.the,, case arising out of theincident that occuiTed in the afternoon of 17.05.2014. It concededlynoted, vis-a-vis the requirements of Rules 142, 178 and 179 thatPersonal Fall Arrest System (PFAS) and safety belts had beenarranged but not provided to the workers; It also noted that commonsafety 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 in ,terms 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 l-8v05'.2014 and mainly noted thatAnkit Kumar (the deceased'worker) was-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 belt -or'l^FAS at that point of time.

40. Pursuant to the inquiries which were 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 correspondence, .which concededly includes submissionby the constmction contractor company and yet another safety auditreport obtained from National Safety Council, Delhi Chapter, suchaudit been undertaken on 24"^ and 25"^ 2014. it washaving May, submitted 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. and- its' usage is enforcedprior to constructdpn '-siie entry. ,

c). The workers.: ate .Uri^d about the hazardsinvolved in particular acfimty- before start of the

d). L&T has protected the'floor edge with hardbarricades.

e). L&T has protected diB Opknings, cut outs withreinforcement mat. ' '■

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

g). Safety patehdhetplare^^^ below 6 m of-live working floor dfbund 'periphery to prevent fall .of 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 :

■ Crl. M.C. 1873/2015 & connected

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

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

c). Continuous water facilities for drinking andsanitation facilities.

d). Mobile toilets dt 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 exten'siyW-survey / checking atsite, submitted its report. The. relevgnt excerpts of thereports are as under ; ' ■

a). M/s. D&T''had pifiyfied adequate no. ofSafety Officers td deal fmth the requirements oftUffi^ht. There ■ is safety managernmtifn proper.work distribution qmdhgsififie:se Safety Officers toprevent clash mresfiphSifiidifii.T'

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

c) work at Height permit: In Indian Constructionmajority of fatalities occurs due to fall, of workersfrom hdght. 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. . -

d) Personal Protective Equipments

The use of safety helmet by all the constructionworkers Vt^as almost 100%.workers Vt^as almost 100%.

® The use of safety belts by those who wereworldng on external side and have potentialhazard of fall, was more than 98%, as oneworker was found worldng without anchoring itwith rigid support.worldng on external side and have potentialhazard of fall, was more than 98%, as oneworker was found worldng 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 lifting equipment waschecked. It was found that the operator was duly trainedand the operator and the signalefwere understanding, thesignals very well.

fHazards of Worlditg qtiHeight

L&T had taken the folldwifgmbpsures to prevent fall ofworkers from height: •" v.. . n 'ypp--

® All the oper00 'd^hi^§f:^l^ptions were foundcovered with Bdrfietk 1covered with Bdrfietk 1

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

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

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

Cri M.C. 1873/2015 & connected

safety norms, which have been subject matter of surprisechecks and the sam.e 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 asAudit 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 as. Annexure (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.its audit done from DGFASLI and the report isawaited and the same shall be submitted as and whenit is.received.

41. The questions relating to eorporate 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 including., Section 14Lof the NegotiableInstruments Act, 1881 (for short, ''Negotiable Instruments Act");Section 34 of Drugs and. Cosmetics. Act, 1940 (for short, n "DrugsAct"); Section 17(1) of the,'Pre-y.enti,otl',ohTo:od 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 statuses defining crimes, Jheprohibition is frequently n directed'^against any "person"who commits the 'prohibit^. many statutes theterm "person" is dlefiltedl^p^Iff' the person is notspecifically defined, it pecessanly ipeludes corporation.It is usually constriied tdoinclud!ejqj>corporation so as tobring it within the prohibifgn Sfjt^bptatute and subject itto punishment In mo^offlt&.s-tqfjit^fidhe word "person"is defined to include a- corpprdjiofffy ;

'; I 'b.'

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 upontlie 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 thethe clearest intendment establishes anlegislature by offence where liability arises instantly upon the breach ofthe statutory prohibition, no particular state of mind is

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prerequisite to guilt. Corporations and individualpersons stand oh the same footing in the face of such astatutory offence. It is case of automatic primaryresponSihilit)!. 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 andm-ust 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: ofyAd^^pmcil provisions likeall other statutes are to be fairly ' construed according tothe legislative intent asi.expressed in fhe enactment. "

43. By virtue, inter alia, of the registration, dated 22.02.2012granted to the constructions contractor "aompany by the respondentunder Section 7 of the Building and Constmction Workers Act, thecomplainant was privy to the above-said contractual an-angement vis-a-vis the project in question between fne'iknd owner company and theconstruction contractor company.

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

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 ''theemployed - 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 it with the construction contractor upon by companyon 29.03.2012. Thus, neither/the larid py/ner 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 constructioh c^ractor company and those-stated to be in-charge of or responsible for conduct of its business,however, would stand on different footing .and, thus, need scrutinyseparately.

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

"15. So far as the Manager is concerned, we are satisfiedthat from the nature of his very duiies_ii_can_be_.jafelythat from the nature of his very duiies_ii_can_be_.jafelyinferred that he would undoubtedly he vicariously liablefor the offence; vicarious liability being an incident of anfor the offence; vicarious liability being an incident of an

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o£ence 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 a.nvact committed, by the Directors from which reasonableinference can be drawn that they could ahn hpvicariously 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)

following the aforesaid- ruling-, in construing the effect ofSection 34 of the Drugs Act in decisionVreported as State ofHaryanavs. Brij Lai Mittal and Ors., (im) 5 SCC m, it was held thus:-

8...the vicarious liability of person for beingfor an offence committed under the Act 'prosecuted by company arises if at the material time he was in charge ofand was also responsible to the company for the conductof its business. Simply because person is director ofthe it does not mean that he fulfilscompany necessarily both the above requirements so as to make him liable. nConversely, without bein^ director person can hp. iy,of and responsible to the comnanv for the cond.ur.to/" its business. From the complaint in question we,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 for the conduct of its. business. .company

(emphasis supplied)

Crl. M.C. 1873/2015 & connected

rage o 40 to of .r-j34

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

^41 is penal provision creating vicariousliability, and which, as per settled law, must be strictlyconstrued. It is therefore, not sufficient to make baldcursory statement in complaint thm thr, Dirrc'rr(arrayed as an accused)'is in charge of and respon^ihlptojhe company for the. conduct of the business of the.company without anything more .■as to the role of theDirector. But the complaint .ihmJJd spell nut as to howand in what manner d'Was in of orRespondent charge msr^mrn^ the ackasedACompany for the conduct0] its business. This, is ' in .ycohsonance with strictinterpretation erf pencf.stmtisfiekieciallv. wharp .^urhstatutes create vicariotisd^Ui^irfrf' ■

14. of Directors andcompany to make any or all. tMe 'Vimciorh as accused in aon the. basis of statement that arecomplaint merely they in charge of and responsible for the conduct of thebusiness of the company without- anything 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 M>as 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 '^in the entire complaint neither the role of-the appellant in the affairs of the company was explained nor in what manner 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. Wliile examining similar questions vis-a-vis Section 33 ofInsecticides Act, in judgment , reported as State of NCT of Delhi vs.Rajiv-Khurana, (2010) 11 SCC 469,, taldrig 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 iirequired 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. Even' Director need not be andis not in charse of the business of the company. If that isthe position with resard to Director, it is needless toemphasise that in the case of non-Director officers, it isall the more necessary to state what were his duties 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,

Cii. M.C. 1873/2015 & connected

(lOOSy 8 see 89; Gunmala Sales vs. Am 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 m 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 Section.141 of the Negotiable Instruments Act, 1881, which arenow well settled by judicial pronouncements, some ofwhich have been noted above, may be summarisedthus:— • . n ,(i) It is only those persons who are incharge of or responsible for the conduct of thebusiness of the company at the time ofcommission of the offence under Section 138of the Negotiable Instimments Act, 1881 whocan be subjected to criminal action with,reference to Section 141;

(ii) If the person committing an offencelender Section 138 of the NegotiableInstruments Act, 1881 is company, thewho was to the whichperson signatory cheque is dishonoured is clearly responsible for theincriminciting act and would be liable to beproceeded against under Section 141 (2);

(Hi) Fv virtue of the office thev hold, thein the persons working: capacity—of—Managin2 Director or Joint ManasinsDirector are deemed to be in charge of andrp.^pnnsihle for the conduct of the business ofthe company and, therefore, can be proceededn against in terms of Section 141;

(iv) Merely because person is directorof the company is not sufficient to. make himliable under Section 141,- there beins. nodeemins. that by holdins such position he is incharge of, or responsible for the conduct ofthe business of the company within themeaning of Section 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, therebein2 no need for further particulars 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 Section-Mi may persuade the High Court to quashthe process in exercise of its inherent powerunder Section 482 of the Code of CriminalProcedure, 1973 by furnishing "some sterlingincontrovertible 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 stand'the trial would he an abuse of the process ofcourt, but not otherwise. "

(emphasis supplied)

52. Having regard to the statutoiy scheme and also the stipulationsof the contract dated 29.03.2012, there is no escape from primafacie conclusion that the construction contractor company is not onlythe principal employer of the workers engaged in the construction nproject 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 Building aph Construction Workers Actthus creates coiporate crimmahliability against the said company andby virtue of the principles of vioarioi|S'"'cri'ininal liability, every personwho, at the time when the sM^:pfenG|y^'momm^ was in-chargeof, and was responsible tOo) for-the conduct of itsbusiness, as well as the cdiiif:;.:d:Semed to be liable to beproceeded against. Just as in the case of Section 141 of NegotiableInstruments Act, by virtue, of the .office they -hold,, such persons aswork in the capacity of managing director or the joint managingdirector or, for that matter, persons employed as in-charge of theconstruction work at site, be it in managerial position or in any. supervisory position, are deemod to be in-charge of and responsiblefor the conduct of the business, to the company. They can, therefore,; be proceeded against in tenns 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 C.ouif, the words "for the conductof the business of the company" appearmg in Section 53 are mostcrucial, pregnant with meankig and provide the key to determine,whether person connected to fhe compdny may be held accountablefor the acts of commission or omissidn^'Gohstituting the offence-underSection 47 of the Building^andlSonstructibn'Workers Act. After all,it is the status of being "in-chafge of or being "responsible" for suchbusiness of the coihpany that exposes the individual to vicariouscriminal liability. If the act-of eom'missioh 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

Crl. M.C. 1873/2015 &■ connected

contraventioii 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 the in the sense of the term would be liablecompany general vicariously under the criminal law whether or not he was expected to play anyspecific role or discharge respbnsibil'ity fowards specific rule, at thestage when its breach has led to the fataiity or serious incident.

54. different approach ^a^ ihe|0)|e|^ove to the sutyect mightlead to unjust results. ma;^"illustrated by two simpleexamples. As noted earferj---^!§r^i^^er {establishment) is dutybound, in terms of Sectionintimation, prior tocommencement of the building or othef:c"onstruction work, as' to thename and designation of,the person who will be "in overall charge ofthe building or such constiudtion Wbrkfr7Having regard to the schemeof the enactment and the rules framed thereunder, the employei{establishment) is also responsible to frame "safety policy (rule 39)and also to appoint and deploy "safety officer" {m\o 209). If thebreach relates to default in framing of written statement of safety^ policy, or appointment of duly qualified safety officer, by theestablishment, the person appointed as "overall in charge of the

Crl. M.C. 1873/2015 & connected

"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 havinginot'ensured the safety equipmentto be availed of by the workers,4he forrhef (those responsible for theconduct of the business at the higher levels) cannot be heldaccountable under the deeming, proyisi^ni,,-.'

n..A, ^ I'-55. It is the argumenly^of^hdy.^^^ connected •'to- .theconstruction contractor cortiphhy viz;;, M Naik (Cii.M.C.2069/2015), K Venkatramanan (Crl.M.C. 2068/2015), M V Kotwal(Crl.M.C 2.070/2015), S.N. Subrahhiarfyam {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

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 corresponding case for IPG offences. In this context, theycrave reference to the sub-contract in terms of which the deceasedworker (Ankit Kumar) had been.dqplpyed at the 18"^ floor level fi'omwhere he fell to the ground to suffer mortal injuries.

56. The copy of the sub-Gontkct,,:.d&::shpwn at the hearing cannot betreated (without proper prObf) .as .apthentic or ''incontrovertiblemateriar or as one exonerating, the cohsfrtjction contractor companyof its entire responsibility in-the--inattpr;:-'particularly in view of itscontinued responsibility vz5-(3.-rviA^h^ of the sub-contractor asper clause 79.13 of the contracf rtated ■29.03.2012, referred to earlier.The argument based on the sub-contract, entered upon by theconstruction contractor cOmpiahyr.With thertmmediate employer, of thedeceased worker cannot also be accepted at this stage of thein exercise of the and ofproceedings, particularly power jurisdiction this 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 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 incoiporated tooperate in different schemes or spheres including building andfactories, civil infrastmcture, n metallurgical & material handling,power transmission and distribution, hydrocarbon engineering, valves,alloys, power development, infotecfi, fmaince, construction and miningmachinery etc.

58. The complaint on which the smtimbning order was passed itselfdescribes Mr. A.M. Naik, petitioner, in Ofl.M.C.2069/2015 to be theGroup Executive Chairmaih^0£•■^g'-cons^#on contractor company.Similarly, the description of Mr,'M.¥.is:otwal, 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 (Coiporate 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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ma.de with regard to the prescribed safety, measures concerning tlieconstruction 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. S.N. Subrahmanyam (petitioner inCrl.M.C. 1873/2015) had no connection with the obligations of theestablishment of the ''employer''' (construction contractor company)towards compliances of the Buiiding .and "Construction 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 working for theconstruction contractor company in thq capacity of CEO & ManagingDirector and whole-time Diire.^t6|^l5&/'^^^^^XExecutive Vice President-(Infrastructure & Construcfion),.|lsp%i^ifP '

60. The very description of the port-folios they held a.nd theresponsibilities that woiild ent.ailrtherefrpin^ facie shows that theallegations in the criminal complaint as to their deemed liability underSection 53 cannot be said to be unfounded, not the least without trial.

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

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that concern day-to-day use of safety belts, safety nets,, safetyplatforms, or personal fall aiT.est 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 specific areas cannot, by anystretch of arguments, be relegated to the domain of the managerialstaff (f/lr. Daljit Singh and Mr. Harish Vaid) made in-charge of theconstruction site. • ' ' n '

62. The above petitioners, however,'.a^p. raise the defence based onthe two safety audit reports, one dated p3:i04.2013 and the other dated24-25.05.2014. It would be a'subjecf mkter of factual inquiiy as towhether the safety audit report; submrj^d on 25.04.2014, obtainedafter the fatal accidents in can beftreated as one qpestion, 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 wbuld 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 obligation of the construction contractor company underrule 209 read with Section 38 of the Building and ConstructionWoikeiS Act. Since this area v/ould fall prima facie within the

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

St of14

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

On the above facts, and in the circumstances, initiation ofcriminal action against petitioners - DLF Universal Ltd. (petitioner inCrl.M.C.2064/2015), Mohit Gujral (petitioner in Crl.M.C.2067/2D15),Rajeev Talwar (petitioner in'Crl.M!C;.2066/2O15), Shriram Khattar(petitioner in Crl.M.C.2160/2015), AshokKumar Tyagi (petitioner inCrl.M.C.2159/2015), n Sudhif - Sahgal ' (petitioner inCrl.M.C.2158/2015), A.M. Nailc (petitip'her in Crl.M.C.2069/2015),M.V. Kotwal (petitioner m-6rl.;lM:G.30p0/2O15), R. Shanlcar Raman(petitioner in Crl.MU, 20^fia|).4^'g^|endra Roy (petitioner inCrl.M.C.2071/2015) being uHfoundgdf%e continuation of suchproceedings against them would be an abuse of the process of law.Therefore, their petitions'are. atlehvedvand. 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 unherent power and jurisdiction underSection 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 inIn the the said are CrLM.C.2068/2015). consequence, petitions herebydismissed. It must, however, be added that" nothing stated abovewould be treated as final of on merits of the caseexpression opinion against the said petitioners.

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

NOVEIWBER 19, 2018 vk/nlc/yg

.(kK.GAtJ|A>,''

Crl. M.C. 1873/2015 & connected