K. Venkataramanan v. State of Delhi

15. The seventh chapter{"safety and health measures")is whatis crucial to the present ods?,:.Itponfer^^y^ge^ 40,power on the Q appropriate government to'makl^files'^or the safety and health of buildingworkers,therulesenvisaged whereby doalsocover,persub- Section(2)thefollowing:- (a) the safe means ofaccess to,.and the safety; nf any woranff place mcludins^ the provisinn of suitnhlp nvirJ f^cientscaffolding,at various stages when work cannot ^ safely donefrom the ground orfrom any part ofa buildingorfromaladderorsuchother meansofsupport; I Crl. M.C.1873/2015&connected Page 12 of54 (e) the erection, installation, use and maintenance of hoists, liftins appliances and liftins socir including periodical testing and examination and heat treatment where necessary,precautions to be taken while raising or lowering loads, restrictions on carriage ofpersons and appointmentofcompetentpersons on hoists or other lifting appliances; (o)the keepinsofsafety nets, safetysheets andsafety belts where'the special nature Or the circumstances of work render them necessaryfor thesafety ofthe workers; (p) the standards to be, complied with regard to scaffolding, ladders and stairs,- lifting appliances, ropes, chains and accessories,,;'earth -moving equipments and (^1 floating operationaleqxupmteytts; ^ vf • V ' (r) the safety policy, that is to'-ffly, a policy relating to steps to be taken tO' ensure ihdisif^ty and health ofthe building workers, the administrative arrangements therefor and the matters connected therewith, to beframed bv the employers and contractors,ibr the operations to be carried on in a building onothehcdnftruction work: (u) any other matter concermng'ikiM safety and health of workers working in dhf^gpthfldp^Mpr^ being carried on in a building or other construetidh work." (emphasis supplied)

16. This power to make rules specific"to the subject of "rulesfor safety and health ofbuilding workers"is to be read with the general provision contained in Section62{power to make rides)vested in the appropriate government. Section 41 similarly entrusts the responsibility offraming ofmodel rules for safety measures unto the central government. Crl. M.C. 1873/2015 cSc connected SV

17. There are two specific provisions of the Building and Construction Workers Act as spell out "responsibility of the employer" vis-a-vis the statutory command for "safety and health measures"to be put in position.They read thus:- "28. Safety Committee and safety officers.-(1) In every establishment wherein,five hundred or more building workers are ordinarily employed, the employer shall constitute a Safety Committee consisting ofsuch number of representatives ofthe employer and the building workers as may beprescribedby the State Government: Provided that the number of persons representing the workers, shall, in no case, be less than the persons representingthe employer.: t.. (2) In eveiy establishment referred to in sub-section (1), the employer shall also appoint a safety officer who shall possess such qualifications and perform such duties as may beprescribed. ■ '

44. Responsibility ofemphvers:i.--,Mn employer shall be. responsible for vrovidtfiky. emfiant and. adequate; supervision ofany kmldin^,ofotfiefieonstruction work in his establishment as to ensure compliance with the provisions ofthis Act relating to safety and for takins all practicalsteps necessary topreventaccidents." O ' (emphasissupplied)

18. The above-noted statutory provisions declare unequivocally that it.is the "employer" vis-a-vis a building or other construction project who is "responsible" for arranging all the prescribed safety measures and for due compliances to be ensured,the same inclusive ofa"safety committee"and a"safety officer". Having regard to the scheme ofthe statute, a"contractor" having undertaken to carry out the construction Crl. M.C. 1873/2015& connected Page 14of54 work for and on boha-lfoftho land owner,and also being the person who "employs building workers" in such work, also takes on the responsibility towards safety and health measuresfrom the latter.

19. For completion of nairation, it may be added that Section 39' casts a duty on "the employer" to give notice, in the manner piescribed, to the specified authority in the event of- an accident occurring in its establishment, it resulting in death or bodily injury incapacitating a worker for a certain period, this for the puipose of investigation or inquiiy by such authority as may be deemed 0 necessary. In the present case, the notice of the accident was concededly given and the inquiry hefdivby the concerned statutory i',. ' f inspectorate. ^ '

20. The Building and Gonstructidn. porkers Act also requires a prior notice ofcommencement ofbuilding,or construction work to be given,the mandatory information-requMfefor such purposes being as indicated in the following providiOmrT.'.'i-'.' "46. Notice of commencement of building or other construction work.r \ /' (V An employer shall at least thirty days before the commencementofany building or other construction work. ssnd or cause to be sent to the Insvector having jurisdiction in the area where the proposed building or other construction M>ork is to be executed, a written notice containing- (a)the name andsituation oftheplace where the building or Other construction work isproposedto be carried on; Cii. M.C.]873/2015& connected Page 15of54 (h)the name andaddress oftheperson who is undertaking ' the building or other construction work; ■

(c) the address to which communications relating to the buildingor other construction workmay besent; (d)■ the nature of the work involved and the facilities, includinganyplantand machinery,provided; (e) the arrangementsfor the storage ofexplosives, ifany, to be usedin the buildingor other construction work; (f the number ofworkers likely to be employed during the variousstages ofbuilding or other construction work; (s)Ihe name and desistnation ofthe person who will be in 0 overall charge ofthe buildihgfor other construction work atthesite: '• ',, (h)the approximate duration dfthe^ork; (i)such other.mattersas may bej^rescribed. (2) Where any change occurs;in-'any ofthe particulars furnished under sub-seation fpX:.4he employer shall intimate the changefo fw two days of such change. 'f (3) Nothing contained in sub-sectihn (1) shall apply in case ofsuch class ofbuilding or other construction work as the appropriate-government maybyM' otifcation specify ^ to be emergentworks-.-". - ''' ■

21. The above-quoted provision only re-inforces the conclusion that the responsibility towards due compliances with health and safety measures prescribed by the law and rules framed thereunder is primarily ofthe "employer", a person engaged as "a contractor" for carrying out the construction work, also vested with the authority to Crl.M.C.1873/2015&connected Page16of54 employ building workers being the"employer". The person deputed as one in overall charge"is the representative of"the employer",the employer being answerable and accountablefor all acts ofcommission or omission done by such representative "incharge ofthe project" or those workingunderhiscontrol. Pertinentto add,thedutytointimate, m advance, commencement ofthe construction work(by prescribed notice)is notofthe land owner butofthe"employer",such statutoiy notice requiring it to be specified, amongst others, the particulars of the person who would be accountable in the capacity ofhe being"in overall charge".

22. In exercise ofthe powers confeiled upon the said authority in exercise of.the powers conferred byjth^'.Mlding and Construction Workers Act,the lieutenant gqvernor pflihe Govt. ofNOT ofDelhi made and notified Rules which.are^^paljfed the Delhi Building and Other Construction Workers of Employment and ConditionsofService)Rulbs.20i)2 Rules forshort).

23. The criminal complaint(from which the present proceedings arise) refers specifically.,to•breach,of rules)39 (Health and safety policy), rule 42 (Slipping, tripping, cutting, drowning and falling hazards),rule 178(Safety beltand its use),rule 179(Safety netand its use),rule 196(Guardrails)and rule 209(Safety officer)ofthe Delhi Rules. All these Rules fall in different Chapters ofthird part(Safety and Health).

24. Rules39and42appearinthesixth chapter(generalprovisions), rules 178 and 179in sixteenth chapter(CatchPlatform and Hoardings, Crl. M.C.1873/2015&connected 17of54 Chutes,Safety Belts and Nets),rule 196included in nineteenth chapter (Scaffold), while rule 209 forms part ofthe provisions oftwenty-first chapter(Safety'Organization).

25. The offence to answer which the. petitioners, and three otherSj have been summoned by the Metropolitan Magistrate is defined and provided for in Section 47 ofthe Building and Constmction Workers Actasunder:- "47. Penalty for contravention ofprovisions regarding safety measures.-(1).Whoever contravenes the provisions C ofany rules made under section 40shall be punishable with imprisonmentfor a term which may extend to three,' months, or with fine which rricty.extend to two thousand rupees, or with both, and irt.yth^\,(pase of a continuing contravention, with an'addition'dffihe'which may extendto one hundred rupees for emrybdl^y during which such contravention continues jafter conyfctionfor thefirst such contravention. •, •;. (2)Ifany person who hay beedpibfnvicted ofany offence' punishable under again guilty of an offence involving a contraverdion'Orfailure ofcompliance of the same provision, he shall be punishable on a subsequent conviction with imprisonm.entfor a term which may extend to six months, or-witfifine.-which shall not be less thanfive hundred rupees but which may extend to two thousand rupees or withboth: Provided that for the purposes of this sub-section, no cognizance shall be taken ofany conviction made more than two years before the commission ofthe offencefor which theperson issubsequently being convicted: Providedfurther thatthe authority imposing thepenalty, if it is satisfied that there are'exceptional circurnstances CH.M.C. 1873/2015& connected Page 18of54 c 5"] warranting such a course may, after recording its reasons in writing,imposeafineofless thanfive hundredrupees."

26. It is the contravention ofthe mles relating to health or safety measures which constitutesthe offence provided by Section47quoted above,and forthis,7^em'rea i.e.theintentionto committhe breach of the rules or abetment thereofon the part ofthe person sought to be prosecuted is pre-requisite. The case at hand is notone ofany ofthe accused having been previously convicted for such offence and, therefore,the enhanced punishmentis notattracted. Having regard-to the punishment prescribed, the,criminal case comes up before the court of Metropolitan Magistrate'as one which' may'be tried summarily.

27. As obseiwed above,it is the contravention ofthe provisions of theRules onthesubjectof''safetyanfihealth ofbuilding workers as envisagedin Section40,which is-madb;punfshable. Though theDelhi Ruleshave been framed and notifrediwiisinferencetotherule making powerconferred on the appro;pidte goliernment by section 62,having legard to thesuojectsthatarethereby covered,there can be no dispute that such rules have beenframed also in exercise ofthe power under section 40.. ' ■ '

28. The complainant presses the criminal prosecution against the petitioners primarily ontheprinciple ofvicarious liability and,for.this, the provision contained in Section 53 oftheBuilding and Construction Workers Act is cmcial.Itreads thus:- Crl. M.C.J873/201'S& connected Page 19of54 tfO O firm. "53. Offences by companies.-(1) Where an offence under this Act has been committed by a company, every versnn who,atthe time the offence was com.mitted. wa.s in cha.rQP. of,andwasresponsible to. thecnm.pm,^for the cnnd-,jrtnf the businessofthecompany,as wellasthecompany,shall g deemedto be_gj^ofthe offence andshallbe liable to beproceededagainstandpunishedaccordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, ifhe proves that the offence was com.mitted without his wy^Mg^or that hejiad exercised all dv^ to preventthe commission.ofsuch offence. w_ere any offence under this.Acthas been committed bya company and^ it is phoved:Piafffhe nfffnre has.:, hp.pyi committed with the consentPmfConnivance of nr is attributable to any mgleet onMe^ p- art ofanv dir^rtn. manager, secretary orother officer ofthe company, such director, manager, secretary^ dr. other officer shall be andshallbeliajk^e proceededagainstanffpiintshedpc0rdingly. Explanation.-Forthepujposefc^fEisfec^^ - (a)"company"means any body corporate and includes a firm orotherassociation ofindividuals;and (b)"director",inrdmon ppfmmffiSm apartnerin the

29. Aswashighlightedduringthecourseofheai-ing,notonlybythe learned counsel representing the petitioners, but also by the counsel for the State(tlie complainant),the afore-quoted provision ofSection 53 IS almost identical with similar provisions concerning vicarious C't M.C. 1873/2015&connected Page 20of54 4 liability contained,in other criminal laws to the effectofwhich some detailed reference shallneed to be madelater.

30. It is clear from the bare reading ofthe statutory clause that -wheretheoffenceiscommitted byacompany,inordertoropein any otherperson ondieprincipleofvicariouscriminalliability,itmustbe showndratsuchperson was,"in-chargeofand wasresponsibleto the company"forthe conductofitsbusiness "atthetime the offence was committed". The provisoto Section 53(1)permits a person arraigned on the principle ofvicariousTiabilityto plead and show by evidence, m defence, that he was not;responsible either because, the acts constituting the offence were wmmsf^ywithom his knowledge"or becausehehad "exercisedcdlduediUger^etopreventthecommission ofsuch offence". Notwithstaiding d^S &ain provision contained in Section53(1),theprosecution mayb|hii|ated against "anyDirector. Manager,Secretaryorotmrafffirercofffgcbmparny"ifthereisproof availabletoshowthat-theb|fen6ewas,,.bdmi)iitted "with theconsentor connivance of, or is attributable to dnf-neglecton thepartoff such diiector, manager,secretaiy or other officer.ofthe company. While section 53(l)-rehes on "iiee-m,-mg-'cdue:fd'-'& position ofthe person vis-a-vis the company "in-charge off and "responsible to", section 53(2) necessarily requires positive evidence to show- active participation reflectiveof"consent", "connivance"or "neglect".

31. In the criminal complaint on which the impugned order of summoning has been passed, there is reference to similar fatal accidents having occurred previously atthe projectsitein questionon Crl. M.C. 1873/2015& connected n Page 21 of54 04.09.2011, 11.04.2012, 16.08.2012, 28.02.2013, and 16.01.2014 as well. The present complaint dated 14.08.2014 cannot be treated as a complaint with reference to such previous incidents for two prime reasons; one,there are no averments as to the breach ofany specific rules withinthe meaning ofsection 47 vis-a-vis the previous incidents, and,second,the criminal action vis-a-vis such earlier incidents would be barred by limitation as provided in Section 55 ofthe Building and Construction-Workers Act.

32. It is the admitted case of the complainant that the building ^ construction work in the course ofwhich the fatal accident occurred on 17.05.2014 had been entrusted by'the land owner company, through aformal contracttothe construeti'bncontractor company. Itis indicated in the complaint itself thdt the construction contractor company had got itself registered with tbe statutory authority ofthe appropriate government in eomplianepfwith the requirements of Section 7. The certificate-.of registration.-describes the construction contractor company to be the "estabtishment" for purposes of construction of"DLFCapital GreensProject"by it,it being a project of residential building",- the Work-',to be carried out during 02.01.2012 to 17.11.2014, its representative Mr. Surinder Mohan being the "employer"in-charge ofthe construction work at site. It- is an undisputed case here that the construction contractor company had given the intimation about the commencement of the work,in compliance with section 46. It is also admitted that the intimation ^0^ Crl.-M.C. 1873/2015& connected Page22of54 IS about the fatal accident was given by the construction contractor company abiding by its responsibility under Section 39.

33. After setting out the facts pertaining to the fatal accident on 07.05.201.4, while referring to the previous such incidents, and describing the positions ofthe petitioners (as indeed of three,others who are not before this court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:- "3. That Sh. Mohit.Gujral, Chairm.an, Sh. Rajeev 0 - Talwar,-ManagingDirector,Sh.Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sakgal, Director ofM/s. DLF Universal Ltd., Shopping Mall, 3''''' Floor, Arjun Marg, DLF CityfMock E, DLF Phase 1, Sector 26A, Giirgaon, Haryana 122002 are the. Directors and Sh. A.M. 'Mfik, Group Executive Chairman,Sh.K. Venkataramdn.m, CEO & MD,Sh. M.V. Kotwal, Whole time Director ■&_.:p0esident. Heavy Engg., - Sh. S.N. Subrahmanyan, fffiole t' fm^iDirector & Sr. EVP (Pnfrastructure & cotistrnctipn}; ^^-'R, Shankar Raman, Whole time Director & CFO., 'S^:..SEailendra Roy, Whole time Director & Sr. EVP (Corporate affairs &power) and Sh. Daljit Singh - Project Director, (In-charge of the construction site) of M/s. Larsen & Toubro Ltd. are the fy 'Directors" ofM/s. Larsen & Toubro Ltd. andSh. Harish Vaid, Manager (Indl. Relations) is the Manager of the construction site within the meaning of Section 53 of the saidAct (hereinafter called the accusedfor thepurpose of the Act, in thepresent case).

4. That on dated 17.05.14, at about 3.50 PM, an accident reportedly occurred at the construction site namely "Capital Green Projects" located at 15 Shivaji Marg Delhi-15 at tower no.14 having 21 floors. Upon inspection ofthe 'Construction Site' on 18.5.2014 at 11.00 - Crl. M.C. 1873/2015 & connecled Page 23 of54 AMandfurther investigation on 24.5.14 at[4].00PMalong with Sh.R.N.Dahiya,Director(ISH)andSh.J.N.Jain,Dy. Director (ISH)/Inspector's ofBuilding & Construction, it was revealed that a worker namely AnkitKumar,Painter, was working in tower No.14 on the eighteenthfloor and was reportedly engaged in the work ofapplyingpaint on' theface ofthe wall,fell to the ground, causing him severe injuries resulting in death.

5. That besides this, prima.facie, it appeared on inspections that the manasement failed to ensure adequate site mana2ementas envisaired in the provisions of the Building and other. Construction Workers (Regidation of Employment and Conditions of Service) Act, 1996 and the Delhi Building,and other Consk-uction Workers (Regulation ofEmployment and Conditions of Service) Rules, 2002. Manasement had not taken all appropriate measures as per ■ die said Act and Rules framed thereunder to prevent aUcidents at building site of suchproportion and magfi-itude., ■6. Thatthere have been.5fatal•■accidents resultinginto loss of lives of 5 workers in the recent,past, at the samesite. But, it is clear that they hdid'no.t learnt any lessons out of previous series.offatal accidents. Apart from notices, a prohibitory order was also issuedto.them to stop.the construction work of entire site till complete/full compliances of all the safet]' provisions as mentioned in the saidAct andRulesframes thereunder as applicable on the construction site ofthis magnitude were made.

7. That jiirther, repeated deaths clearly pointed to neglect and comm.issions & omissions and lack of due diligence towards all aspects of human lives, safety and welfare at their site as envisaged, in the saidAct andRules framed thereunder.

8. That dimng the course of inspection and investigation, the followins breach of the provisions of the "saidRides " read with the "saidAct " were observed:- Crl. M.C. 1873/2015 &'connected ■, Page 24 of54 K

I. That the workers working at height M'ere not. provided with safet\> belts and Personal Fall Arrest Systems fPFAS), in contravention ofprovisions of "Rule 42and 178ofthe saidRules."

II. That the safety nets were not provided at the construction site,where the workers were allowed to work. at height, in contravention ofprovisions ofRules 42 and 179 ofthe saidRules.

III. That the platforms and balconies, from where a worker is liable tofell, had not been provided with suitable & safe suardrails and toeboards ofadequate strength in contravention ofthe provisions of Rule 196 of the said Rides.,.

IV. That more than.500; I.e. 2.700 workers were ordinarily employed at the consffuction site but Safety Officers as per qualification dpd Condition ofservice,as laid down in Schedule VIII ofthe said Rules had not been appointed, in contravention ofthe.provisions ofRule 209 ofthe saidRules read withSectip.n 88ofthe said Act. / i..* i 'v,•

V. That the managements,Mmilnot implemented their

Health & Safety,fi Phlicy':.hhffiftter. and spirit, in ■contrayentionofRulbfi[9];.oft0fiaidjMules.. ' 9. That the aboye accused persons are thus 2uilty of contravenins the..provisions of Rules 39,42,178,179:196 and 209 ofthe said:Sules..read with;Sections 38,40 and 53 ofthe said Act which is'punishableiinder section 47ofthe "Said Act"for an imprisonmentfor a term which may extent to 03 months or with afine which may extend to Two ThousandRupees or with both."

34. The reference to the prohibitory order having been issued by the statutoiy authority on 26.05.2014 vis-a-vis the project site, being a Cri M.C. 1873/2015& connected Page25 of54 subsequent action, there is no case of any violation of the said prohibitory order..,.

35. In the complaint,aside from certain other documents,reference was made to inspection fonn/reports dated 18.05.2014 and 24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, leply dated 18.06.2014 ofthe land owner company and replies dated 04.06.2014, 17.06.2014 and 04.08.2014 ofthe construction contractor company. The reply dated 17.06.2014 ofthe construction contractor company,inturn,referredto letters dated 20.05.2014,03.06.2014,and 25.04.2013 and health and safety pMfey,' communicated vide letter dated 25.04.2013. As mentioned.earlier, pursuant to the directions issued, by order dated 24.09.2018, the,complainant has filed the counter-reply dated 28.09.2018. In this'reply; the exchange of the abovesaid correspondence, reliance,' whereupon is made by the petitioners,has been acknowledgeel'.-. i v:"'

36. The documents in which-•.regard^ffhere is no dispute, upon perusal,show thatthe land ownercompany had entered into a contract on 29.03.2012 with. the constructio.n contractor company. ^ Concededly,the general conditions ofthe said contract, as form part of its third annexure, clearly reveal that the construction contractor company had taken over the entire responsibility for every aspect of ■constmction including safety compliances,liability towards insurance and labour laws.The following stipulations in the contract need to be extracted for confinnation ofthe above aspect:- "79.0SAFETYPROCEDURE Cii.M.C.1873/201-5&connected Page26of54 '^^■1 The contractor shall incorporate in his oyerations the requirements of all the 'Safety Codes' issued by the Bureau ofIndian Standards andprovisions oftheNational Building Code ofIndia 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 and, regulations. These requirements shall apply in all cases except where the regulations ofthe local authority require more stringent measures to be taken. Where the requirements ofBISCodes'and/orNationalBuilding Code, theBuildingandOther Construction Workers (Regulations ofEmployment and Conditions ofServices) Act, 1996 are duplicatedby the localregulations or the "SafetyManual" provided by the Owner,-. the ■ more stringent of these regulations shall be deemed,toidppjy:- The Safety Manual provided by the Owner, is oni^Isf-ffestive and shall nqt cast any liability on the\€)wnef:f:'[f),' 79.[2] The contractor shadmomdeisafe means ofaccess to all workin2places... ' ft 79.[3] The contractor-.:sMI BkcsNlelv responsible for proper design of jthe sddi^I^fyi^kutemporarv accesses, ladders andramps.'formWBrl^iund'-.hd.istins arransements. • ■ cranes etc. to ensure siMtSi'dNImfkmen as well as. the works. Allscaffolds, ladders andother safety devices shall be maintainedin safe conditions. Only-tubular scaffolding shallbe used. '■■rC' ' -. 79.[4] All necessary personal safetv/protective equipment, first aid kit, medically trained personal, fullv equipped ambulance and any other facilities as per the statutoiw requirements should be always available on the site for use. The contractor shall take adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personnel andworkers. 79.[5] Adequate precautions shall be taken to prevent dangerfrom, electrical equipment. Crl. M.C. 1873/2015 & connected Page 27of54 79.[6] No materials on the-site ofwork shall be so stackedor placed as to cause danger or inconvenience to any person or thepublic. 79.[7] The contractor shall provide and maintain all necessary temporary fire protection and fire fighting facilities at the site during the execution ofthe works in accordance with the NationalBuilding Code ofIndia 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and explosive materials and goods are stored and handled in a safe manner and in accordance with the statutory regulations. 79.[8] The contractor shallnotify the engineer immediatelv ofany occurrence ofmishaps or accidents that results in death or injury (including ^ievpus injury) as defined in the Indian Penal Code. Such initial notification may be verbal and confirmed in writing'thereafter and shall be followed by a comprehensive firittpn report within 24 hrs of the occurrence/incident.^ fhe'-contractor, shall duly complete standardformefis reqiiired by the engineer and ■ statutory authorities., f-f) 79.[9] It is made cledf'thaf lke^fiontractor alone as the Principal EntploverkIs ■ •ans4vef^blb[7] and liable to all investisatins and lesdTaiMidriMefMcludins Court ofLaw and the Owner shall not have any part or liability in this regard. The Contractor alone shall be responsible and liable to compensate the victims-.-jmm.ediately on the occurrence ofthe mishaps or accidents and also protect and indemnify and hold harmless the ovmer, the engineer. and all persons who may be associated with or connected ■with the o-wner or the engineer and to reimburse all legal andfinancialcosts, ifincurred, by the them in this regard.

79.10 All consequences, damages or losses arisins by reason ofany violation ofthe safety requirements resultins: in any iniuiw or loss of life to the contactor's or any sub contractor 's Emplovees/Staff/personneland Workers/Third Party (non-fatal/fatal) shall be met by the contractor who CrLM.C. 1873/2015 & connected. Page 28 of54 alone will be responsible for handlins and disposal ofthe. accidental cases with Government/non-Government authorities. The Contractor shall he bound to pay compensation to the personsfor the injuries sustained or death owing to neglectofthe safetyprecautionsshould any claim proceedings he filed against the owner/engineer. The contractor hereby agrees to indemnify the owner and the engineer against all liabilities and keep the owner, his employees, personnel, agents, representatives and anyone, connected with the owner, protected from civil and criminalprosecution in such cases and be answerablefor the same before all authorities.

79.11 Within one week of commencement date, the contractor shall submit-.td the 'ensineer. a detailed and ■L,' comprehensive contract' shall' submit to the ensineer, a detailed and- comprehensive contract specific site safety plan, based on the requiremeny-,Mated in clause 79.[1] above. The site safety plan shall irrelude detailedpolicies, procedures andreflations\which.iwhen implemented will ensure safetv ofall thepersons, including thirdparties on or in,the vicinity of the site (including without limitation. persons to whom accesslathe,sitpihas been allowedby the ■' contractor). The contractor ■■Mallf/h.bm time to time as necessary, produce shpplohient&dolmd^site safetvplan such ■that it is at all times a'' detailed, comprehensive and contemporaneous statement by the conti^actor of his site safety 'and industrial health, obligqtioks, responsibilities, policies and procedure (under ike/laws of India) or as statedin the contract or elsewhere relating to work on site.

79.12 Any omission, inconsistency or error in the site safety plan or the Engineer's concurrence or rejection of ■ the Site Safety Plan and/or supplements thereto shall be without prejudice to the Contractor's obligations with respect to Site safety and industrial health and shall not excuse any failure by the contractor to adopt proper and. recognized safety practices throughout the execution of works. Crl. M.C. J873/2GI[5] cS; connected, Page 29 of54 o 5^

79.13 The contractor shall adhere to the Site Safety Plan and shall ensure that all sub-contractors ofall tiers, have copy ofthe Site Safety plan and comply with its vrovisions. The contactor shall appoint a qualified and experienced person as Site Safety^Officer to act as Manaser ofthe Site Safety Plan and who will he responsible for all safety matters related to the works. The contractor shall from time to time, proyide such other personnel and resources as may be required to ensure effectiye operation ofthe Site Safety Plan. The said Site Safety Officer shall submit, regular safetyTeports to the Engineer in accordance with the requirem.ents ofthe Engineer and all releyantstatutoiy authorities,. as required by Applicable laws and regulations. The contractor shall submit on a monthly basis a Certificate ofCompliance-for Health, Safety and Enyironmentasgiven mAppenfxf'Ml'." V',. (emphasis supplied)

37. It appears that in the wake'ofthe-fdt'Hll incident that occurred on 28.02.2013(death ofMaqbool);atthe/sarnie very site,prohibitory order followed by revocation order,;had beep-nSsued on 01.03.2013 and 08.03.2013. Against tiie ^aid' construction contractor company had taken steps for gehihi^ltihe.safety audit ofthe project done. An audit report dated,03.04.2013 was subrnitted to the authorities by the said coinpahy'underrthe Cov^^^ of its letter dated 25.04.2013. Reference to the said auditreport and the con*espondence exchanged in such regard was made by the constmction contractor company in its letter dated 17.06.2014, which is part ofthe.material that was submitted with the criminal complaint leading to the impugned order being passed. In the reply affidavit dated 28.09.2018, the complainant also confirms that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactory Cri M.C. 1873/2015& connected. Page20of54 report in respect ofthe safety measuresthat had been adopted by the managementofthe said companyand,in view ofsuch auditreport,the construction work was allowed to be resumed.

38. As noted earlier, it is admitted case even for the complainant that111termsoftheintimationsthathadbeengiven,Mr.DaljeetSingh, the Project Director ofthe construction contractor company,was the person "mcharge of the construction site" and Mr. Harish Vaid, Manager(Internalrelations)wastheManageroftheConstruction Site, within the meaning of Section 53 ofthe Building and Constmction.0 Workers Act. As also noted earlier,-both the said accused persons have notchallenged the.summoning order;- • ' ' D

39. Itwasalso broughtow.itiringlhe4o"rse ofhearing that atthe time ofinspection(s),leading tb reports dated 18.05.2014, 24.05.2014 being prepared,if singh,who wasfound asthepersonmchargeoft^sitp^feji^l^^ssistedthecomplainant's ofhcers in such.inspection:■at5€fc!ae;i';>rhe report, prepared on inspection carried out in the forenoon of 18.05,2014, is the most cruciai inspection report,.for purposes of the,case arising out of the incident that occurred in the afternoon of 17.05.2014. It concededly noted, vis-a-vis the requirements of. Rules 142, 178 and 179 that Personal Fall Airest System (PFAS) and safety belts had been airangedbut not provided to the workers. It a.lso noted that common safety system hadnot beenprovided "at various places", thoughnot specifying the locations where there was such deficiency in.due compliance.It confinnedthathealthand safety policy, asrequired'by Crl. M.C. 1873/2015 & connected „ Page 31of54 Rule 39 had been formulated, the breach of the statutoiy rules was noted for the reason such policy had not been submitted for approval. The report, atthe same time,confirmed thatthe inspecting officer had found and verified thatsafety committee and emergency action plan in terms ofRules 208 and 36 respectively were in position,the breach of Rule 209,however,being inferred for the reason qualifications ofthe "safety officer" were not shown. In the brief note of the concluding part ofthis report,it was further observed that the temporary platform from where the worker had fallen did not have the provision of toe board or guard rail. The inspection report dated 24.05.2014 is in ^ continuation of the report,dated 18.05:2014 and mainly noted,that Ankit Kumar(the deceased wb.rker)'w;as'applying paint on the face of the wall at the 18'^ floor level when he had slipped and fallen,to the ground,he not wearing the safety beltpr'HFAS atthat point oftime.

40. Pursuant to the inquiries which were raised in the wake ofthe, fatal incident of 17.05.2014,the epnstruction contractor company had admittedly sent various letters including letters dated 20.05.2014 and 03.06.2014 followed by another dated 17.06.2014,the last referring to the previous correspondence,.which concededly includes submission 'w' by the construction-contractor company and yet another safety audit report obtained from National Safety Council, Delhi Chapter, such audit having been undertaken on 24"^ and 25''^ May, 2014. It was submitted by the construction contractor company that it was in full compliance with the statutorily prescribed health and safety measures, this having been confirmed by the safety audit report of May,2014, Crl.M.C. 1873/2015 & connected. Page 32 of54 c the safety policy having been formulated and- forwarded' to the authorities by letter dated 25.04.2014, duly qualified duty safety officers having been deployed at site, the steps taken inclusive ofthe following;-

prior to construcMondiifpnpy. c). The workers:cite\d)pi^d. ahoiit the hazards involved in particular dciwity- before start of the d). L&T has,pro.iected the-floor edge with hard barricades..'fyf'' e). L&Thasprotected all- openings, cut outs with ■reinforcement mat.t' •,p. f). L&Thas closed all liftshafts with gates. g). Safefp-patch'netpMm:p>r^^ below 6 m of live workingfloor around piriphery to preventfall ofmaterials and men. h). Ail plants and machineries are fitted with safety device and are frequently inspected and testedfor safety compliance. • i). All electrical connections are routed through RCCB, MCB and at source through ELR to avoid any electrocution and overloadprotection. - 3. Medicaland otherfacilities: Crl. M.C. 1873/2015& connected. Page 33 of54 a). Round the clock ambulance and first aid facilitiesprovidedatsite. h). Well maintained canteen atsite and workers habitat area. c). Continuous waterfacilitiesfor drinldng and sanitationfacilities. d). Mobile toilets at various places at site and permanent sanitation facilities in workers habitat area. Apartfrom the above, all the-safety and welfare aspects ofthe workers are duly taken.care ofat the work site: ThatL&Thadgot-the SafetyAuditconducted by National. c.' Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing extensive;':survey / checking at site, submitted its report. ThcK relevant excerpts ofthe, reports are as under:: ■ ■ ■ a.). M/s.'L&T had- pb^0ed adequate no. of Safety Officers to\ deal,with the requirements of safety man.agent0pt0n,t0^0prt. There is proper work distribution 'Safety Officers to preventclash ' b). The owner had appointed,expert consultant organization. M/s. Turner, who has appointed NEBSOHqualifiedlSafety Officers.. c) work'at Height permit: In Indian Construction majority offatalities occurs due tofall ofworkers from height. Due to this high,probability, it had become necessary to ensure implem.entation of Height Work Permit. Under thepermit only those workers are allowed to proceed or work at height for whom safe access - like ladders are provided andsafe workplace like scaffolds exists there. This system is provided by L&T as shown to the Auditors. Crl. M.C. 1873/2015.&connected Pa^e34of54 iT d)PersonalProtective Equipments ® The use ofsafety helmet by all the construction workers was almost 100%. ® The use of safety belts by those who were working on external side and have potential hazard offall, was more than 98%, as one worker wasfound working without anchoring it with rigidsupport. © Use ofsafetyshoe was observedalmost100%. e) LiftingEquipmentand Tackles M/sL &Thadgotnumerous lifting equipments and tackles. The safe use of one lifiing equipment was checked. It wasfound that the■oy).er,a.tor was duly trained and the operator and the sigiadler were understanding,the signals very well., ' " I f) Hazards ofWorldngatHIeight L&Thadtaken thefollpwingmleasures topreventfallof workersfrom height; ■;;,: •. s:.-: 'i.K.-ki I'' ' • © All the openings diflii^efii^fya.tions were found coveredwith Bar nM-IfffkU ® All the floor edges were suitably fenced with appropriate handrails. ® The stairs were cleanedforprevention ofslipping due to slipperyfloor. That in view of the observations of National Safety Council (Delhi Chapter) in its report after conducting extensive checks/surveys on site, it can be safely inferred that the Establishment has been complying with all the safety norms as requiredunder the law includingBOCW (RE&CS) Act. Any mishap at site despite bestprotective.measures could be an accident only with no humanfault or error. L& T has done its best to comply with all the Crl. M.C. 1.873/2015 & connected Page 35 of54 a safety norms, which have been subject matter ofsurprise checks and thesame have beenfound to be in order. Without prejudice to what is stated above, it is submitted that L & T had also got another Safety Audit Report done during 24-25"" May, 2014 by the National Safety Council Delhi Chapter and nothing adverse has been reported in the Audit Report submitted. Copy of the Safety Audit report and the relevant photogyaphs of the site are annexed as- Annexure A (colly). Further, the establishment has got its audit done from DGFASLI and the report is awaited and the same shall be submitted as and whenit is received. C 41. The questions relating to corporate liability and vicarious criminal liability ofthose connected to a cori:)orate body havecome up in the past before the courts in the context of similar provisions contained in various statutes including,Section 141.ofthe Negotiable Instruments Act, 1881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs and Cosrhetics.Abt, 1940 (for short,•"Drugs ' Act");Section 17(1)ofthe'Treventioh offiodd Adulteration Act, 1954 (for short,'PFA Act"); and Section 33 ofthe Insecticides Act, 1968 (for short,"Insecticides Act"). NJ 42. On corporate criminal liability, the following observations of a constitution bench of Supreme Court in Standard Chartered Bank & Ors vs. Directorate ofEnforcement& Ors(2005)4SCC 530 provide useful guidance;- "There is no dispute that a company is liable to be prosecuted andpunishedfor criminal offences. Although there are earlier authorities to the effect that Crl. M.C. 1873/2015& connected Page 36of54 corporations cannot commit a crime,'the generally accepted modern rule is that exceptfor such crimes as a corporation is held incapable ofcommitting by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminalprocess, although the criminal act is committed through its agents. "xxx' As in the case oftorts, the general rule prevails that the corporation may be criminally liablefor the acts ofan officer or agent, assumed to be done by him when exercising authorisedpowers, and withoutproofthat his act was expressly authorised or approved by the corporation. In the statutes defining crimes,. the prohibition is frequently directed against any "person" who commits theprohibited ac'jfandin many statutes the term "person" is defvhedlfhlitdff'the person is not specifically defined, it pecessarfiyincludes a corporation. It is usually construed tdlncludk'qicorporation so as to ^ bring it within theprohibifidn dfffifstatute andsubject it topunishment.In mofi.offhe\stathtP^''>'the word "person" is defined toinclude-q-corpprdtiofipy >xxx Inasmuch as all criminal and quasi-criminal offences are creatures ofstatute, the amenability ofthe corporation to prosecution necessarily depends'Upon the terminology employed in the statute. In the case ofstrict liability, the ■ terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach ■ of the statute but on the establishment ofthe actus reus, subject to the defence of due diligence. The law is primarily based on the terms of the statutes. In the case ofabsolute liability where the legislature by the clearest intendment establishes an ojfence where liability arises instantly upon the breach of the statutory prohibition, no particular state ofmind is a Qi. M.C. 1873/2015 c& connected Page 37of54 prerequisite to guilt. Corporations and,individual persons stand on the samefooting in theface ofsuch ~a statutory offence. It is a case of automatic primary responsibility. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability.. XXX Allpenalstatutes are to be strictly construed in the sense that the court must see that the thing,charged as an offence is within theplain meaning ofthe words used and, must not strain the words on any notion that there has been a slip that the thing is sb clearly within the mischief -that it must have been intended tO'.be included and would have been included ifthoughtofyA.ifpenalprovisionslike all other statutes are to befairly construed according to the legislative intentas-expressed in-the enactment."

43. By virtue, inter alia, of"the- registration, dated 22.02.2012 granted to the constructions contractor.''company by the respondent under Section 7 of the Building and Construction Workers Act, the complainant was privy to the above-said contractual arrangement visa-vis the project in question,between the-iahd owner company and the construction contractor company.

44. It is vivid from bare perusal of the provisions of the Building and Construction Workers Act,as indeed the rules framed thereunder, that the land owner company having chosen to outsoqrce the work of the constructions, had passed on the responsibility for all compliances to be made by the construction contractor company in terms of the Crl. M.C. 1873/2015& connected ' ' Page 28 of54 c law, and the contractual arrangement, to which detailed references have been made above. It is the construction contractoi company which was given the responsibility of carrying out the construction work and,for such purpose,engage the workers. Underthe law,it is the construction contractor company which,inthe presentcase,is the employer''-the establishment which was to make compliances for safety measures to be put in position. There is no responsibility shown ofthe land owner company,or anyone connected thereto,this having been clearly understood and explicitly so stated even in the contract entered upon by it with^the construction contractor company on 29.03.2012. Thus,neither.the land p^^ner company nor those incharge of or responsible to the condhet of its business can be prosecuted for the offence under Section 47 of the Building and Construction Workers Act on the facts'set out in the complaint fi:om which the presentpetitions arise.

45. The case againstthe Gonstfuction epntractor company and those stated to be in-charge of or responsible for conduct of its business, however, would stand on a different footing and,thus, need scrutiny separately. ■

46. In Municipal Corporation ofDelhivs. Ram Kishan Rohtagiand Ors.,(1983)1 see 1,while dealing with the applicability ofSection 17(1)ofPFA Act,the Supreme Courtobserved asunder:- "75.Sofar as the Manager is concerned, we aresatisfied thatfrom the very nature ofhis duties it can be.safely, inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incidentofan Cii. M.C. 1873/2015 & connected Page39of54 A' offence under, the. Act. So.far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from, the presumption drawn by the complainant, that there is am; act committed,by the Directors from, which a reasonable inference can be drawn that they could nhn ho vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of 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 proceedings againstthem wererightlyquashed. (emphasissupplied) the aforesaid; ruling-, in construing the effect of Section34oftheDrugsActinadecisiondeported asStateofHaryana vs.BrijLaiMittaland Ors.,(1998)5SCC343,it washeld thus:- 8...the vicarious liability of a person for being prosecutedfor an offence committed under the Act by a.company arises ifatthe material time he wn. nhn.rr.. and was also responsjblejp the companyfor the conduct of Its business. Simply because aperson is a director of the company it does not necessarily mean that hefulfils both the above requirements so as to make him liable. ■. Conversely, without beinp a director a person cam hp m. responsible to the cnmpnr,^,fn.the cond.ur.t of Its business. From the. complaint in question we however, find that except a bald statement that the respondents M>ere directors ofthe manufacturers, there is no other allegation to indicate, even primafacie, that they were in charge,ofthe companyandalso responsible to the companyfor the conductofits business." C)L M.C.!87.3/2015& connected Page40of54 c- ^1 48..The counselforthe petitionershaveplaced relianceon National SmallIndustriesCorpn.Ltd.vs.HarmeetSinghPaintal,(2010)3SCC 330 and Pooja Ravinder.Devidasani vs. State ofMaharashtra and Anr.,(2014)16SCC[1] both dealing with issues ofvicariousliabiiity under the Negotiable Instruments Act. In NationalSmallIndustries Coipn.Ltd.(supra),it was observedthus:provision creating vicarious liability, and which, asper settled law, must be strictly construed. It is therefore, not sufficient to maP.,a bald cursory statement in. a complaint that the Director (arrayed as an accusedfis in charge ofnnrt ■ tojhe companyfor the.'conduct,ofthe business ofthe companywithout anything more:as to the role of the Director. Butthe complaintshould.snel! out as to hnw and in what^manner Respr,r,de„t,t ' msresponsible to theaqbusedtCompanyfor theconduct o) Its business. This.is in.lcohsonance with strict interpretation ofpengl,stattitfyifspeciallv. where such statutescrente vi,-nWir.ui,.pa.tyut.^:.iri:.r;'

14. A company tikiy''lt^)dn£§)lr ofDirectors and to make any or all MrDiMtSS'as accused in a complaintmerelyonthe basisofastatementthattheyare in charge ofand responsible for the conduct of the business ofthe company without-anything more is nota.. sufficient or adequate fulfilment'of the requirements under Section 141. ■

49. In PoojaRavinderDevidasani(supra)while observing that"a director of a company is liable to be convictedfor an offence comm.itted by the company ifhe/she was in charge ofand was responsible to the companyfor the conductofits business orifitis Cil.M.C. 1873/2015& connected Page41 of54 proved that the offence was-committed with the consent or connivance of or was attributable to any negligence on the part ofthe Director concerned!''' and noting,that"w the entire complaint neither the role of the appellant in the affairs ofthe company was explained nor in what manner the appellant is responsiblefor the conductofbusiness ofthe company was prosecution against the appellant for the offence under Section 138 of the Negotiable Instruments Act was, quashed.

50. Wliile.examining similar questions vis-a-vis Section 33, of Insecticides Act, in judgment reported as State ofNCT ofDelhi vs. Rajiv-Khurana,(2010)

II SCC 469, taking note ofthe law which has developed primarily in the context of Section 141 of Negotiable Instruments Act,it was held thus:- "77. The ratio ofall these cases is thatthe complainants required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business ofthe company or responsiblefor the conductof the company's business. Every Director need not be and is not in charse ofthe.business ofthe company.Ifthat is the position with resard to a Director, it is needless to emphasise that in the case ofnon-Director officers, it is cill the more necessary to state what were his duties and responsibilities in the conductofbusiness ofthe company and how and in whatmanner he is'responsible or liable." (emphasissupplied)

51. Reliance has also been placed on the decision ofthe Supreme Court, reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, Crl. M.C.1873/20}5&connected Page42of54 (2005)8see 89; Gunmala Sales vs. Am Mehta,(2015)I See 103 and Standard eharteredBank vs. State ofMaharashtra,(2016)6See 62, all cases'dealing with issues relating to the effect and import of Section 141 of Negotiable Instruments Act. Taking note of such decisions in Jwala Devi Enterprises P. Ltd. vs. Fadi El Jaouni, 2018 SeeOnline Del10030this Court culled outthe settled law as under:- "14. The guiding principles with reference'to Section 141 ofthe Negotiable Instruments Act, 1881, which a.re now well settled by judicial pronouncements, some of which have been noted above, may be summarised thus:—

(i) It is only those persons who are in charge ofor responsible for the conduct ofthe. business of the company at the time of commission ofthe offence under Section 138 ofthe Negotiable Insti'uments Act, 1881 who can be subjected to criminal action with reference to Section 141;

(ii) If the person committing an offence under Section 138 of the Negotiable

Instruments Act, 1881 is a company, the person who wassisnatoiy to the cheque which is dishonoured is clearly responsible for the incriminating act and would be liable to be proceededagainstunderSection 141(2); (Hi) By virtue of the office they hold, the persons working in the, capacity of the Manasiny Director or Joint Managing. Director are deemed to be in charse of. and responsible for the conduct ofthe business of, the company and, therefore, can beproceeded againstin terms ofSection 141;. Crl M.C. 1873/2015& connected Page 43 of54 ^<1

(iv) Merely because a person is a director ofthe company is not sufficient to make him liable under Section 141, there heins.no deemins that by holding such position he is in charge of, or responsiblefor the conduct of the business of, the company within the meaning ofSection 141; (y) It is necessaryfor the complainant tp_ specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsiblefor the conduct ofthe business of, the company in terms ofSection 141, there heins no need for further particidars to be siyen in the complaint about his role, this bein2subjectto proofat the trial: (yi) Theperson who has been summoned as an accusedfor offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis ofaverment that he was director ofthe company accused, he being in charge of or responsible for the conduct of its business cannotget the complaint quashed by the High Court byfiling apetition under Section 482 of the Code ofCriminalProcedure, 1973 merely on the'ground that no particulars as to his role haye been setout in the complaint;and (yii) Theperson who has been summoned as an accused,for offence under Section 138 of 'the Negotiable Instruments Act, 1881 by invoking the provision contained in Section 141 may persuade the High Court to quash the process in exercise ofits inherent power under Section 482 of the Code of Criminal Procedure, 1973 by furnishins "some sterlins incontrovertible material or acceptable circumstances" substantiating his contention Crl.iVI.C. 1873/2015& connected ' Page 44of54: that he was not in charge ofnor responsible for the conductofthe business ofthe company "at the time the offence was committed" and therebyshowing a case that making him stand ■ the trial would be an abuse ofthe process of court, but nototherwise."

52. Having regard to the statutory scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from Xht prima facie conclusion that the construction contractor company is not only the principal employer of the workers.engaged in the construction project wherethefatal acciderit'tdok.place'but was also responsible for arranging allthe prescribed safety measured under the Rules. Section 47 read with Section 53 ofthe.Buildingand Construction Workers Act thus creates a coiporate criminaMlability againstthe said company and I ■. by virtue ofthe principles ofvicarious'feriminal liability, every person who,atthe time when the s'M%^|tenG|>W:^%oinmitted,wasin-eharge of, and was responsible t©|';jhe;lsai^lebif:^4hy for the conduct ofits business, as well as the cbmp^§?|ficel'd€emed to be liable to be proceeded against. Just as in the case ofSection 141 ofNegotiable Instruments Act, by yirtiie.of the::.office they hold, such persons as work in the capacity of a managing director or the joint managing director or, for that matter, persons employed as in-charge of the construction work'at site, be it in a managerial position or in any.supervisory position, are deemed to be in-charge of and responsible for the conduct ofthe business,to the company. They can,therefore, be proceeded against in terms of Section 53. At the same time, however, merely because a person is a "director" ofthe coinpany is Crl. M.C. 1873/20!5 Aconnecled Page 450/54 A c not sufficient to attract Section 53, there being no deeming that by holding such position he is rendered to be one who is'Hn-charge of or''responsible to the company"for the conduct ofits business. As is also well settled in the context of prosecutions under the Negotiable Instruments Act, though it is necessary to specifically aver in the complaint that the person sought to be prosecuted was in-charge ofor responsible to the company for the conduct ofits business"at the time the offence was committed',there is no requirement in law for"further particulars to he given" in the'complaint about his role, this being subject matter ofproofto be adduced atthe trial.

53. In the considered view ofthis C.oprt,the words"for the conduct of the business of the company" appearing in Section 53 are most crucial, pregnant"with meaning and provide the key to determine whether a person connected to'the company may be held accountable for the acts ofcommission or omissidn^constituting the offence under Section 47 ofthe Building nnd Constructibn'Workers Act. After all, it is the status ofbeing "in-chafge of or being "responsible" for such business of the conipany that exposes the individual to vicarious criminal liability. Ifthe act-ofcommission~of omission is attributable to the neglect ofthe person or on account of his "connivance" or for that matter, with his "consent", sub-section(2)of Section 53 directly attracts the application of penal provision. For the deeming clause contained in sub-section(1)ofSection 53 to kick in,there has to be a nexus between the area of responsibility ofthe person concerned, on one hand, and the act of commission or omission leading to the Crl. M.C. 1873/2015& connected Page 46of54 c contravention ofthe rules under Section 40, on the other,. To put it more precisely,and clearly,in the contextofthe offence under Section 47 ofBuilding and Construction Workers Act,the responsibility vis-a vis the specific rule framed under Section 40(the breach of which is alleged) has to be shown to be in existence for a person connected with the business of the company presumed to be "in-charge'' or ''responsible". There can be no thumb rule that every person "incharge of"or "responsible to",for the conduct ofthe business ofthe company in the general sense ofthe term would be vicariously liable under the criminal law whether,or not.he was expected to play any, specific role or discharge responsibSityfowards a specific rule,,at the stage whenits breach hasledtothefataiity.orseriousincident;

54. A different approach tliajrii hie,one,?ja^ to the subject might lead to unjust results. Thts-^majl^f)^illustrated by two simple examples. As noted earierj-'feentip^^er {establishment) is duty bound, in terms of Section A^ll^C-g).', t^-give intimation; prior,to commencement ofthe building or other construction work, as to the name and designation ofthe person who will be"in overallcharge"of the building or such construction Wbrk.'.'diaying regard to the scheme of the enactment and the rules framed thereunder, the employer {establishment)is also responsible to frame a"safetypolicy"(rule 39) and also to appoint and deploy a "safety officer"(rule 209). Ifthe breach relates to default in framing of a written statement of safety policy, or appointment of a duly qualified safety officer, by the establishment, the person appointed as "overall in charge of" the CrI. M.C. 1873/2015 & connected. Page470/54 u c \ "construction work at site" cannot be held accountable. After all, framing of policy, or appointment of safety officers, as required by law, are matters ofpolicy and subject to decision of the persons at superior levels(unless the authority is delegated to the one who is incharge at site) including those working as managing director. Similarly, if those responsible for framing or taking of policy decisions or making available all requirements in the nature of manpower (safety officers) or safety equipment{safety belts, safety net etc.) have done their bit and the breach of the rules noted at the level ofthe supervisory staffatthe construction site(i.e.the person incharge of the constmction work at.site,under Section 46 or those assisting him in the task)they havingmot'ensured the safety equipment to be availed of by the workers,.the forihef(those responsible for the conduct of the business at the higher levels) cannot be held accountable underthe deeming,provisibm '

55. It is 'the argument^':of connected to- the Construction contractor coniphhy" viz;, A M Naik (Crl.M.C. 2069/2015), K Venkatramanan (Crl.M.C. 2068/2015),.M V Kotwal (Crl.M.C 2070/2015), S."N. SubraMai§ahi-(Crl.M.C. 1873/2015), R Shankar Raman(Crl.M.C. 2072/2015)and Shailendra Roy (Crl.M.C. 2071/2015) that they had discharged their responsibility for due compliances to be made, in letter and spirit, with the provisions of Building and Construction Workers Act and the mles'framed thereunder and that the breaches, if any, occurred at the level ofthe person(s) in-charge'of the construction site i.e. Daljit Singh, Project Crl. M.C. 1873/2015 & connected. Page 48 of54: V J) Director and Harish Vaid,Manager(Industrial Relations). It is further their argumentthat it is notcorrectto-accuse them,underthe deeming provision ofSection 53,ofcomplicity in the offence under Section 47 in the context ofthe fatal accident of 17.05.2014 also for the reason that the worker in question (Anldt Kumar)had been engaged by a sub-contractor, the representative of such sub-contractor being the person who has been found responsible in the investigation by police in the con-esponding case for IPG offences. In this context, they crave,reference to the sub-contract in terms of which the deceased worker(AnkitKumar)had been,deployed,at the 18^'\floor level from where he fellto the ground to suffer mortal.mjuries.

56. The copy ofthe sub-contract,jas:shpwn atthe hearing cannot be treated (without proper proof) as authentic or ^Hncontrovertible materiar or as one exonerating the construction contractor company of its entire responsibility in the-inattpr^;'particularly in view of its continued responsibility ofthe sub-contractor as per clause 79.13 ofthe contracfdated'29.03.2012, referred to earlier. The argument based-.on the sub-contract, entered upon by -the construction contr^actor cdlnpahy;W'ith fhenmm employer ofthe deceased worker cannot also be accepted at this stage of the proceedings, particularly in exercise ofthe power and jurisdiction of this Court under Section 482 Cr.P.C., inasmuch as it involves questions of fact [Rajiv Thapar and Ors. vs. Madan Lai Kapoor, (2013)3see330]. Crl.M.C. 1873/2015& connected- ■... Page 49of54

57. There is no contest to the submission that the construction contractor company is a group of companies comprising of a large number of subsidiaries (130) and associate independent companies (15), it being structured in a manner that each ofits such subsidiaries ■ has its own separate Board of Directors and supervisory personnel using the nomenclature of Chief Executive Officer (CEO), Chief Financial Officer(CFO) and Human Resources (HR) Head, The subsidiaries and the associate companies have been incorporated to operate in different schemes or spheres including building and factories, civil infrastmcture, metalurgical & material handling, power transmission and distribution,hydrocarbon engineering,valves, alloys,power development,info.tech,fma'nce,construction and mining machineiy etc.

58. The complaint on whichthe summoning order was passed itself describes Mr. A.M. Naik, petiti'dner in.Cfl.M.C.2069/2015 to be the Group Executive Chairmaii'-of.^e^[©pnis^Moh contractor company.• ■,vVV "....i'- Similarly,the description ofMr.'M.V.Rotwal,Mr.R.Shankar Raman and Ml-. Shailendra Roy - petitioners in Crl.M.C; Nos. 2070/2015, 2072/2015 and 2071/2015,- even-as per.the-complainant has been that they were working at the relevant point of time in the capacities of whole-time Director and President(Heavy Engineering), whole-time Director and ChiefFinancial Officer(CFO),and whole-time Director and Senior Executive Vice President (Coi-j^orate Affairs and Power) respectively. By- no stretch of reasoning or logic, these four petitioners can be said to be responsible for the compliances to be Crl. M.C. 1873/2015& connected Page50of54 made with regard to the prescribed safety measures concernihg the constmction project in question. By virtue ofthe respective positions each ofthem held,their responsibilities had no nexus with the subject at hand.

59. Unlike the above, it cannot be said that the offices held, or the responsibilities shouldered, by Mr.K.Venkataramanan (petitioner in Crl.M.C. 2068/2015) or Mr. SiN. Subrahmanyam (petitioner in Crl.M.C.1873/2015) had no connection with the obligations of the establishment of the "employer'^ (constmction contractor coinpany)^ T*'- towards compliances ofthe Buiiding:.and'U0nstruction Workers Actor the rules framed'thereunder. These petitioners do not dispute that at the time ofalleged commission ofthUoffence under Section 47 ofthe Building and Construction Workers Act,ithey were worldng for the •constmction contractor company in the/cdpacity ofCEO & Managing Director'and whole-time SO^^iExecutive Vice President (Infrastructure&Constmctfen)j|sp^iy|lp^'

60. The very description of the port-folios they held and the responsibilities that would entail-therefrprn/pn??^rzyhcze shows that the —^ allegations in the criminal complaint as to their deemed liability under Section 53 cannot be said to be unfounded,notthe least withouttrial.

61. There is merit-in the argument ofthe last two above-mentioned petitioners that given the positions held by them in the company,they ■ could not be expected to remain present at the construction work site to ensure due compliances to be made with rules 42, 178, 179 or 196 read with Section 38 ofthe Building and Constmction Workers Act Crl. M.C. 1873/2015& connected Page5!of54 -r, that concern, day-to-day use of safety belts, safety nets,, safety platforms, or personal fall,arrest systems. But then, it cannot be ignored thatin(eighth paraof)the complaint(extracted earlier),there are also allegations ofbreach on account ofnon-implementation {in letter and spirit) ofhealth and safety policy in tenns ofrule 39 and non-appointment of duly qualified safety officers in breach of the requirements ofrule 209 read with Section 38 ofthe Building and Constraction Workers Act. These two specific areas cannot,by any stretch ofarguments, be relegated to the domain ofthe managerial staff(Ml-. Daljit Singh and Mr. Harish Vaid)made in-charge ofthe constniction site. - ■. 62: The above petitioners,however,'alsp.raise the defence based on the two safety auditreports,one dated p[3]:;04.2013 and the other dated 24-25.05.2014. It would be a subject matter offactual inquiiy as to whether the safety audit.reportysubrnftted' on 25.04.2014, obtained afterthe fatal accidentsin questiun,.can be,#eated asonerepresenting the correct position prevailing' at the time of commission of the offence.. Further,it would bethe onus ofthe defence to show thatthe certification by audit report 03.04.2013 would hold good till date of, the fatal accidentof17.05,2014., There are specific allegations in the complaint that as on the said date, z.e.,' 17.05.2014, duly qualified safety officers were notin position they having not been appointed in terms ofthe obligation ofthe construction contractor company under rule 209 read with Section 38 of the Building and Construction Woikeis Act. Since this area v/ould fall prima facie within the Crl. M.C. 1873/2015& connected d rage02 of54, ' ■ 13> domain ofthe responsibilities held by petitioners K.Venlcataramanan andS.N.Subrahmanyam,theyareliableto beproceeded againstunder the deeming clause ofSection 53. Atthe trial,they would have the opportunity, in terms ofproviso to Section 53(1), to prove that the breaches conkituting the offences were committed without their Icnowledge or that they had exercised all due diligence to prevent commissionofsuch breaches(oroffences).

63. On the above facts, and in the citcumstances, initiation of criminal action againstpetitioners-DLF UniversalLtd.(petitionerin Crl.M.C.2064/2015),MobitGujraltpetifionerin Crl.M.C.2067/2015), Rajeev Talwar (petitioner in GrUv[:c.20.66/2O15), Shriram Khattar (petitioner in Crl.M.C.2160/2015),Ashok:Kumar Tyagi(petitionerin Crl.M.C.2159/2015), Sudhtf SaJigal (petitioner in Crl.M.C.2158/2015), A.M. Naik (petitioner in Crl.M.C.2069/20I[5]); M.V.Kotwal(petitioner in.-Grl;M,G.-2eg0^^^ R. shankar Raman (petitioner in Cr).M.C. Roy(petitioner in Crl.M.C.2071/2015) being unfoundsdf^e continuation of such proceedings against them would be an abuse ofthe process of'law.' Therefore, their petitions'£ne;al(dwed>:and-the proceedings against them m the criminal■complaint case(CC 55F1/14) pending in the courtofthe Metropolitan Magistrate areherebyquashed.

64. For the reasons set out above,however,there is no case made outforthis courtto exercise its inherentpowerandjurisdiction under Section 482 Cr.P.C. to.inhibit the criminal proceedings in the aforementioned case against S.N. Subiahmanyam (petitioner in O'l-M.C. 1873/2015& connected Page530/54 / Crl.M.C.1873/2015) and K. Venkataramanan (petitioner in Crl.M.C.2068/2015). Inthe consequence,the said petitions are hereby dismissed. It must, however, be added that nothing stated above wouid be treated as final expression ofopinion on merits ofthe case againstthe said petitioners.

65. The petitions and the applications filed therewith are disposed ofin above terms.