Rajeev Talwar v. State NCT of Delhi

5. Though it was pointed out that in the impugned order dated 10.09.2014 whereby the petitioners have been summoned by the Crl. M.C. 1873/2015 & connected Page 6 of54 Metropolitan Magistrate, there is a reference to Section 179 ofthe Factories Act which was wholly uncalled for,the learned counselfor thepetitionersfairly submittedthatithavingbeen well-understood by all concerned that the summoning order is for the offence under Section 47 ofthe Building and Construction Workers Act on account ofbreach ofthe rulesframedthereunder,they pressthese petitionsfor quashing of the said summoning order on merits on the grounds indicated hereafter.

6. The petitions of the land owner company (petitionei in Crl.M.C.2064/2015), its Chairmdn Moftit Gujral (petitioner in Crl■M.C.2067/2015),itsManagingPirep#,.:Rajeev Talwar (petitioner in Crl.M.C.2066/2015) and. its,Diifet(|s: -Shriram Khattar, Ashok Kumar Tyagi and Sudhir Sdi#^##^ers in Crl.M.C.2160/2015, 2159/2015 and 2158/2015 resppctiy|feforimarily contend that the constructioncontracthaving'lDeeh^t^t^tothe saidother company, the work being carried out;undir. and control of the latter through its sub-contractor, it havihg no connection whatsoever withtheday-to-day activity,ithadnoroletoplay ornexuswithany of the acts of commissionor-diniSsibipntfedpasis of whichaccusatums have beenleveled,no case also beingmade out of vicarious liability under the criminallaw.

7. Neither the construction contractor company nor two of the other accused connected thereto -Mr. Daljit Singh and;Mr. Harish Vaid -■ described as Project Director and Manager (Industrial Relations) respectively in-charge of the construction site, have come:| o ■' Page 7 of54 !, Crl. M.C. 1873/2015 & connected,3^ up to this court with any plea assailing the order ofthe Metropolitan Magistrate taking cognizance of the afore-mentioned offence or summoning each of them. Six (6) others, connected to the said construction contractor company,however,are before this court, with simhar petitions under Section 482 Cr.P.C. as aforesaid, they being A.M. Naik, Group Executive Chairman (petitioner in Crl.M.C.2069/2015);K.Venlcataramanan,CEO and MD(petitioner in Crl.M.C.2068/2015);M.V.Kotwal,whole-time Director andPresident (Heavy Engineering) (petitioner in Crl.M.C.2070/2015), S.N. Subrahmanyain, whole-time Director and Senioi Executive Vice President (Infrastructure and Gbhstraetion) (petitioner in Crl.M.C.1873/2015);R.ShankarRamah,\whole-time Director&CFO (petitioner in Crl.M.C.2072/2015); and'Shailender Rao, whole-time Director and Senior Executive Vice President(Corporate Affairs and Power) (petitioner in Crl.M.C.207i/201:5). The thrust of the arguments ofthis set ofpetitiohefs is tlmt^given their position in the hierarchy inthe constxuction contractorcdinpany,having regard to the measures that had been put in position under their directions,in strict compliance ofand adherence to the law,:the work in question having O been entrustedto asub-contractor,theirrepresentative beingin-charge of the project at site, they cannot be held accountable under the principle ofvicarious liability for the penal offence under the special Taw which has been invoked by the prosecution before the Metropolitan Magistrate,and in whichtheyhave beensummonedsuch proceedings being.abuse ofthelaw. CH.M.C.1873/2015&connected Page8of54

8. The petitions'have been resisted by the respondent State (the complainant).Sincetheyhave arisen outofthesame case and bring a challenge to the same order,they have been heard together. During the course of hearing, references were made to certain communications that had been exchanged between the companies (accused)on one hand and the statutory authorities onthe other. For clarity,the complainantwasdirected by orderdated24.09.2018tofile an affidavitexplainingits position,vis-a-visthesaid documentsand in compliance a reply dated 28.09.2018 styled as reply affidavit to the supplementary documents was'brought on record by the respondents on 29.09.2018. ' ■

9. TheBuilding and Construction Wofkers Actwasbroughtonthe statute book enforced w.e:f. 0.1.03.1996 with the objective' of regulating the employment and eondtjons ofservice ofbuilding and other construction workers.-iahd^'pj^3^^|o^ safety,health and welfare measures and connected therewith or incidental thereto.

10. The expression 'fuming or ^c^-jfonstruction work" is defined by Section 2(l)(d) to mean, inter alia, "the construction, alteration, repairs, maintenance or demolition, ofor, in relation to, buildings...". There is,no dispute thatthe works being carried out at the site in question in the name and style of DLF Capital Greens Project, in the course of which the fatal accident occurred, were '"building or other construction work" within the meaning of the 'Statute.The "budding worker"is defined by Section 2(l)(e)to mean ■ Page9of54 \ Crl. M.C. 1873/2015& connected. ", "dperson who is employed to do any skilled, semiskilled or unskilled manual, supervisory, technical or clerical workfor hire or reward, whether the terms of employment he expressed or implied, in connection with any building or other construction work". There is no dispute that Ankit Kumar,whose death due to fail on 17.05.2014 has led to the criminal action was engaged as a 'building worker at the projectsite in question withinthe meaning ofthe said expression.

11. The meaning and import of three other expressions - "contractor", "employer",and being germaneto the issues that have been raised,their defmitfens, as appearing in clauses (g),-(i) and G) of Section 2fl) of'.tpWlding.and Construction Workers Act,may betaken note pfasundlptvv- I "(g) "contractor" mearis a p.ersqp who undertakes to produce a mven result fdr anvkstdiblishmen.t, other than a mere supply ofgood^^..m(wfif^ijif ''^ employment ofbuilding wbrkersydpwho supplies building workersfor any work,ofthe esidblishmentt and includes a sub-contractor; ■ ' (i) "employer", in relation to an establishment, means the owner thereof, andineludes,-, ' '

(i) in relation to a building or other construction work carried on by or under the authority ofany department ofthe Government, directly without any contractor, the authority specified in this behalf or where no authority is specified, the headofthe department;

(ii) in relation to a building or other construction work carried on by or on behalfof a local authority or other establishment, directly Crl. M.C. 1873/2015 & connected without I,conti"actor, the chief executive officer 0^Mat■mthority or establishment; (Hi) mi'IrP.la.tion io\ a building ' or other construction work carried on bv or thoush a contracthrh of by (fie, Employment of building workers) supplied. by\ a contractor, the contractor: (j) 'EstablishkUnt''.means any establishment belonging to, or under (he 'control of. Government, any body corporate or firm, an individual or association or other body of individuals.which\ or who employs—building workers in anv'■building or other construction work: and includes an establishment belonsins to a contractor, but does not include an.individual who employs such workers inany buildingor construction work inrelation to his own residence the total cpst offUof:,iconstruction not being more than rupees tenlakh:'' ■ ■. (emphasis supplied),

12. It is clear fromthe'dbo"V^e^u0teli,sdefe that the contractor in relation to a building work may be a person other.than owner ofthe subJbPt^ppl^i'aC^ instance such work is undertaken. As would be' seen with reference to certain other provisions of the law, thertesponsibility for the safety measures is of the person who falls withm' the descfiption "employer",..qua the building' worker.. It is the "employer" who constitutes the "establishment" which is' diit^' bound, under the law and the rules framedthereunder,toputinposition,therequisite safety measures. 13.. It wouldbe of advantage to bear in mind the broad scheme of law in forceby the Building anS Construction Workers Act. Besides conceiving ofcertain statutory authoritiesincluding advisory or expert; Page II oj 54 Crl M.C. 1872/2015 & connected • V J committees (Chapter II), welfare boards (Chapter V), enforcement officers (described as Inspecting Staff)(chapter VIII), it mandates compulsory registration of establishments (Chapter III) as also building workers as beneficiaries(ChapterIV). It confers certain role upon authorities in the government,the "appropriate government"as per section 2(i)(iii) in relation to such ■establishment as "employs building workers either directly or through a contractor" being the goveiTimentofthe State in which such establishmentis situate;

14. The sixth chapter("conditions ofservice ofbuilding workers") deals with subjects such as fixed,'hours for normal working day (Section 28), wages for overture work'(Section 29), maintenance of registers and records (Section-30), prohibition of employment of certain persons in certain buUdir(g:or other construction work(Section 31), drinldng water (Sectiofi, 32;),. latrines and urinals (Section 33), accomniodation(Section 3%G^ohesx(|^tion 35),First-aid(Section 36),Canteens,etc.(Sectioinp)||^; ^ff-'-,

15. The seventh chapter{"safety and health measures")is what is crucial to the present cds;e,..Jt.confers, b^^^ 40, power on the appropiiate govermnent to make rules for the safety and health of building woikers,therules envisaged whereby do also cover,persub- Section(2)the following:- (a) the safe means ofaccess to, and the safety of. any working jplace, includins the provision of suitable and sufficient scaffolding at various stages when work cannot be safely donefrom the ground orfrom any part ofa buildingorfrom aladderorsuch other meansofsupport; Crl. M.C.1873/2015&comected 12of54 (e) the erection, installation, use and maintenance of hoists, lifting avvliahces and lifting sear includins periodical testing and examination and heat treatment where necessary, precautions to he taken while raising or lowering loads, restrictions on carriage ofpersons and appointmentofcompetentpersons on hoists or other lifting appliances; (o)the keeping ofsafety nets, safety sheets 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 floating operationalequipments; (r) the safety policy, that isi to'ffy, a policy relating to steps to be taken to -ensure -tkiffSiqffty and health ofthe building workers, the ' admniitratiye arrangements therefor and the matters connected therewith, to beframed by the employers and contractors for the operations to be carried on in a building or.Othehcdnstruction work: (u) any other matter,'coheemingllh'e)safety and health of workers working in d^^g0lf!d^dff)ns being carriedon in a building or other constructibh 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 rules)vested in the appropriate govermnent. Section 41 similarly entrusts, the • responsibility offraming ofmodel rules for safety measures unto the central govermnent. Crl. M.C.1S73/20]5&connected Page J[3].of54

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 putin position.They read thus:- "38. Safety Committee and safety officers.-(1) In every establishment wherein five hundred or more building workers are ordinarily employed, the emvlover shall constitute a Safety Committee consisting ofsuch number of representatives ofthe employer and the building workers as may beprescribed by the State Government: Provided that the number of persons representing the workers., shall, in no case, be less than the persons representing the employer.' (2) In every 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 of'employers:ir.-.:2Ln emvlover shall be responsible for proviiinz\^ dbnStcmt and. adequate supervision ofany buildins^.w pthefi-construction work in his establishment as to ensure comvliance with the provisions ofthis Act relating to safety and for taldns all practicalsteps necessaiy topreventaccidents."

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 outthe construction Crl. M.C. 1S~3/20I[5] cv connected Poge 14of54 work for and on behalfofthe 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 naiTation, it may be added that Section 39 casts a duty on "the employer" to give notice, in the mannerpiescribed, 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 purpose of investigation or inquiry by such authority as may be deemed necessary. In the present case, the nptice of the accident was concededly given and the inquiry heid/^by the concerned statutory inspectorate. ' / j,

20. The Building and Gon'struction. Workers Act also requires a prior notice ofcommencement of"bui'Ming-or construction work to be given,the mandatory information requisite for such purposes being as indicated in thefollowing provisibm-V'-v'-f-v "46. Notice of commencement of building or other construction worlt.r (1) An employer shall, at least thirty days before the commencementofany building or other construction work, send or cause to be sent to the Inspector having jurisdiction in the area where the proposed building or other construction work is to be executed, a written notice containins- (a)the name and situation ofthe place where the building or other construction work isproposed to be carried on; Cri M.C. 1873/2015& connected Page 15 of54 (b)the name and address oftheperson who is undertaking the building or other construction work;

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

(d) the nature of the work involved and the facilities, including anyplantand machinery,provided; (e) the arrangementsfor the storage ofexplosives, ifany, to be used in the building or other construction work; (f the number ofworkers likely to be employed during the various stages ofbuilding or other construction work; (g) the name and designation ofthe person who will be inoverall charge ofthe building'orhotkter construction work at the site; ■' (h)the approximate duration ofihfwork; (i)such other matters as may beprescribed. (2) Where any change occurs;in-any of the particulars furnished under sub-section fIf;.-the employer shall intimate the change.to theilksppcior within two days of such change...,y,-/'. (3) Nothing contained in. sub-section (1) shall apply in case ofsuch class ofbuilding or other construction work as the appropriate-Government m.ay bynotification 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 of the "employer", a person engaged as "a contractor" for canying out the construction work, also vested with the authority to Crl. M.C. 1873/2015& connected Page 16of54 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 accountable for all acts ofcommission or omission done by such representative "incharge ofthe project" or those workingunderhis control. Pertinentto add,the dutytointimate, in advance, commencement ofthe construction work(by prescribed notice)is not ofthe land owner but ofthe"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 cGnfei^d,|;:upon the said authority in exercise of the powers confeirdd bj/)\th^);Building and Construction Workers Act, the heutenant goyernoi:qf:|he Govt. ofNOT ofDelhi made and notified Rules whidii.^re^Vcallhd the Delhi Building and Other Construction Workers-';;(R^u|^bn of Employment and Conditions ofService)Rulbs.20|2 ( Rules forshort). 2o. The criminal complaint (from which the present proceedings aiise) refers specifically,it© ■ breach of r,ules>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 mle 209(Safety officer)ofthe Delhi Rules. All these Rules fall in different Chapters ofthird part(Safety and Health).

24. Rules 39 and 42appearin the sixth chapter(general provisions), rules 178 and 179in sixteenth chapter(Catch Platform and Hoardings, Crl. M.C.1873/2015& connected Page 17of54 5T Chutes,Safety Belts and Nets),rule 196 included 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 others, have been summoned by the Metropolitan Magistrate is defined and provided for in Section 47 ofthe Building and Construction Workers Act as under:- ''47. Penalty for contravention ofprovisions regarding safety measures.-(1) Whoever contravenes the provisions ofany rules made under section 40 shall be punishable with imprisonmentfor a terrti which may extend to three months, or with fine which may extend to two thousand rupees, or with both, and inxthkycase of a continuing contravention, with an'addittdn'alfine'which may extend to one hundred rupees for ev.ery]-doy during which such contravention continues pfter Cmyfctionfor thefirst such contravention. J.-,, (2)Ifany person who hdk beEif^nmcted ofany offence punishable under again guilty of an offence involving a contravention-orfailure ofcompliance of the same provision, he shall be punishable on a subsequent conviction with imprisonmentfor a term which may extend to six months, or witli-fine-which shall not be less thanfive hundred rupees but which may extend to two thousand rupees or with both: Provided that for the purposes of this sub-section, no cognizance shall be taken of any conviction made more than two years before the commission ofthe offencefor M'hich theperson is subsequently being convicted: Providedfurther that the authority imposing thepenalty, if it is- satisfied that there are exceptional circumstances Crl. M.C. 1873/2015& connected Page 18of54 warranting such a course may, after recording its reasons in writing,imposeafine ofless thanfive hundredrupees." 26..It is the contravention ofthe rules relating to health or safety measures which constitutes the offence provided by Section 47quoted above,and for this, mens rea i.e.the intention to committhe breach of the rules or abetment thereof on the part ofthe person sought to be prosecuted is pre-requisite. The case at hand is not one ofany ofthe accused having been previously convicted for such offence and, therefore,the enhanced punishmentis not attracted. Having regard'to the punishment prescribed, the criminal case comes up before the court of Metropolitan Magistrate as one which may'be tried summ.arily. 2/., As obseiwed above, it is the contravention ofthe provisions of the Rules on the subject of"safety andheulth ofbuilding workers", as envisaged in Section 40,whicbi is madb-pquiahable. Though the Delhi Rules have been framed and nptMedvwiifrinference to the rule making power conferred on the approJfeiStfe;'f©vernment by section 62,having regard to the subjectsthat are thereby covered,there can be no dispute that such rules have been framed also in'exercise ofthe power under O section 40. 28, The complainant presses the criminal prosecution against the petitioners primarily on the principle ofvicarious liability and,forthis, the provision contained in Section 53 ofthe Building and Constmction Workers Act is cmcial.It reads thus:- Cii. M.C. 1873/2015& connected Page 19of54 "53. Offences by companies.-(1) Where an offence under this Act has been committed by a company, every person who,atthe time the offence M!as r.nmmifted. was in charge of, and was responsible to, the comyanv for the conductof the business ofthecompany,as wellasthe company,shall be deemedto be yuilty_ ofthe offence andshall be 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 y/as committed without his knowledge or that he had exerched all due dilia.y,.. to preventthe commission ofsuch offence. ^o^hwithstandinffanythingcontainedin.'Jub-section(1) where any offence under this Acthas been committed bya company and^ it is proved thafdhe- offence has been committed with the consent.or': connivance pf attributable to any nedlect onfthe part ofanv director manager, secretary orother officer ofthe company, such director, manager, secretary^ 6r. other officer shall be deemedto be guiltyofthatoffence andshallbe liable to be proceeded,againstand,puniS:hed\acc<ord.ingly. Explanation.-Forthe.purppsefoftFisfection,- (a) "company"means any body corporate and includes a Jirm or other association ofindividuals;and (b) director",in relation to.affirpprneans apartner in the firm." ' '- " ■■

29. Aswashighlighted duringthecourseofhearing,notonlybythe learned counsel representing the petitioners, but also by the counsel foi the State(the complainant),the afore-quoted provision ofSection IS almost identical with similar provisions concerning vicarious Crl. M.C. 1873/2015& connected Page 20of54 liability contained in other criminal laws to the effect ofwhich some detailed reference shallneed to be made later.

30. It is clear from the bare reading of the statutory clause that wherethe offenceiscommitted byacompany,in orderto ropein any other person on the principle ofvicarious criminal liability,itmust be shown thatsuch person was "in-chargeofand wasresponsible to the company"forthe conductofits business "atthe time the offence was committed". The proviso to Section 53(1)permits a person aiTaigned on the principle ofvicarious liability to plead and show by evidence, m defence, that he was not,; responsible either because the acts constituting the offence were Goiiunitted;'- his knowledge"or because hehad "exercisedalldkedM^encetopreventthecommission ofsuch offence". Notwithstanding thp main provision contained in Section 53(1),the prosecution may,b^^ijated against "anyDirector, Manager,Secretary orother-cfieer^afflM ifthere is proof availabletoshowthattheo|fen#4>^^.6o^tted "with theconsentor connivance of, or is attributable to any neglect on thepart of"such diiector, manager, secretary or other officer,ofthe company. While section 53(1)relies on "deemmg"-d^ji&HQ''l}M position ofthe person vis-a-vis the company "in-charge of" and "responsible to", section 53(2) necessarily requires positive evidence to show active participation reflective of"consent", "connivance"or "neglect".

31. In the ciiminal complaint on which the impugned order of summoning has been passed, there is reference to similar fatal accidents having occurred previously atthe project site in question on Oi. M.C. 1873/2015& connected p -> ■.rc.i rage 2i oj54 V 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 avennents as to the breach of any specific rules within the 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 of which the fatal accident occurred on 17.05.2014 had been entrusted by, the land owner company, through aformal contractto the-constfuetibn contractor company. Itis indicated in the complaint, itself that -the construction contractor company had got itself registered with the statutory authority of the appropriate government in eomplianepv with the requirements of Section 7. The certificate of registratioh-describes-the constmction contractor company to be the "estdbiishment" for purposes of construction of"DLF Capital Greens Project" 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 Mi*. Surinder Mohan being the "emp/oyer"in-charge ofthe construction work at site. It is I 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 O Crl M.C. 1873/2015& connected Page22of54 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 07.05.2014, 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, Chairman, Sh. Rajeev Talwar,-Managing Director,Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal,, Director ofM/s. DLF Universal Ltd., Shopping Mall, S""'' Floor, Arjun Marg, DLF City, Bhck E, DLF Phase 1, Sector 26A, Gurgaon, Haryana 122002 are the 'Directors" and Sh.' 'A.M. 'Nqik, Group Executive Chairman, Sh. K. Venkataraindnm, CEO & MD,Sh. M.V. Kotwal, Whole time Di'pect0r -Si,-,P0sident, Heavy Engg, Sh. S.N. Subrahmanyan, fffiole i'fpp,Director & Sr. EVP (Infrastructure & cdmtrFpimh) f^^R. Shankar Raman, Whole time Director & QpOfSlki S' fiailendra Roy, Whole tiine Director &Sr. EVP(Corporate affairs &power)and Sh. Daljit Singh — Project Director, (In-charge of the construction site) ofM/s. Larsen Si Toubro Ltd. are the ^ 'Directors"ofM/s.Larsen S Toubro Ltd. andSh. Harish Vaid, Manager (Indl. Relations) is the Manager of the construction site within the meaning ofSection 53 ofthe said Act(hereinafter called the accusedjor thepurpose of the Act, in thepresentcase).

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. 1873,0015& connected Page23.of54 1,'V AM andfurther investigation on 24.5.14 at 4.00PM along with Sh.R.N. Dahiya,Director(ISH)andSh. J.N.Jain, Dy. Director (ISH)/lnspectors ofBuilding & Construction, it was revealed that a worker namely Ankit Kumar, Painter, was working in tower No.14 on the eighteenthfloor and was reportedly engaged in the work ofapplying paint 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 manasement as envisased in the provisions of the Building and other Construction Workers (Regulation of Employment and. Conditions of Service) Act, 1996 and the Delhi Building and other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002. Manasement had not taken all appropriate measures.as per ■ the. said Act and Rules ■ framed thereunder to prevent accidents at building site of such,proportion and maghitude,

6. Tha.t there have been,5fatal-.accidents resulting into loss oflives of[5] workers in the rec'ent past, at the same site. But, it is clear that they hd.dnot learnt any lessons out of previous series offatal dqcidents. Apart from notices, a prohibitory order,wds also issued,to.them to stop the construction work of entire site till complete/full compliances of all the safet\' provisions as mentioned in the said Act and Ridesframes thereunder as applicable on (^i the construction siteofthis magnitude were made.

7. That further, repeated deaths clearly pointed to neslect and commissions & omissions and lack of due diligence towards all aspects of■hum.an lives, safety and M'elfare at their site as envisaged in the saidAct andRules framed thereunder.

8. That during ■ the course of inspection, a' nd investigation, the following breach of theprovisions of the "saidRides " read with the "saidAct" were observed:- Crl. M.C. 1873/2015 & connected - 1 Page 24 of54 \ I

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

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 179ofthesaidRules.

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

IV. That more than.500;.i.e.;2700 workers were ordinarily employed at the consffuction site but Safety Officers as per qualification and condition ofservice as laid down in Schedule VIII ofthe said Rules had not been appointed, in conti^aventioh ofthe provisions ofRule 209 ofthesaidRulesreadwith--Section ksofthesaidAct.

V. That the managemmtsMav&lnot imvlemented their

9. That the above accused persons are thus suiltv of contravening the..provisions of Rules.39,42,178.179,196 and 209 ofthe said.Rules.read wifipSeptions 38,40 and53 ofthe said Act which is'punishabie'under 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. Thereference to the prohibitory order having been issued bythe statutory authority on 26.05.2014 vis-a-vis the project site, being a Crl. M.C.1873/2015& connected Page25of54 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 form/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 of the constmction contractor company,in turn,referred to letters dated 20.05.2014,03.06.2014,and 25.04.2013 and health and safety policy, as 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 acknowledgfed.'--;

36. The documents in WhidhTregard''lhere is no dispute, upon perusal,show thatthe land owner company had entered into a contract on 29.03.2012 with, the construction 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 confirmation ofthe above aspect:- '7P.0SAFETYPROCEDURE Crl. M.C. 1873/2015<£ connected' Page26of54 i ¥ ^ The coYitractor shall incorporate in his operations the requirements ofall the 'Safety Ccide.^' by the Bureau ofIndian Standardsandprovisions ofthe National Building Code ofIndia 2005 including any amendments thereof The Building and Other Construction Workers (Regulation ofEmployment and Conditions ofServices) Act, 1996 and any other applicable statutory rules and regulations. These requirements shall apply in all cases exceptwhere the regulations ofthe localauthority require more stringent measures to be taken. Where the requirementsofBISCodesand/orNationalBuilding Code, theBuildingand Other Construction Workers(Regulations ofEmploymentand Conditions ofServices)Act, 1996are duplicatedby thelocalregulations orthe "SafetyManual" provided by the Owner,-. the ■ mor^.stringent of these regulationsshall be demed,to,dp^.. TheSafety Manual provided by the Owner is onl^fjig^estive and shall not castanyliabilityon thei0rme0:contractorshallproyide'isafe means ofaccess to all workinsplaces. (.[1] y'. ^^■3 The—contractor'. ■sHdtl l^blrsofelv resvonsible for proper design—of the scdff0dmg^Ai.iemporarv accesses. ladders andramps, f&rmv(6.rkfandhmstin[2] arrangements. cranes etc. to ensure safety ■dfimbrkmen as well as. the works. Allscaffolds, ladders andother safety devices shall be maintainedin safe conditions. Only.tubular scaffolding shallbe used. All necessary personal safety/protective equivment. first aid kit, medically trained personal, fully equipped ambulance and any other facilities as per the statutory requirements should be always available on the site for —The contractor shall take' adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personnelandworkers. 79.[5] Adequate precautions shall be taken to prevent dangerfrom, electricalequipment. Oi.M.C. 1873/2015& connected Page27of54 \Y 79.[6] No materials on the site ofwork shall be so stacked or 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 thestatutory regulations. 79.[8] The contractor shall notify the ensineer immediately ofany occurrence ofmishaps or accidents that results in death or injury (including grievous injury) as defined in the Indian Penal Code. Such'initial notifi.cation may be verbal and confirmed in writing thereafter and shall be followed by a comprehensive v^ritfen-report within 24 hrs of the occurrence/incident.^ The > contractor shall duly complete standardforrns'asreq.Uirfd by the engineer and • statutory authorities. ', ilf J,'. 79.[9] It is made cledr''that the:Contractor alone as the Princival Emploverk is'/ansiv-er^bfeC' and liable to all investi2atms and lesdl ailihoidties'/iHcludins 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-.-immediately on the ^ occurrence ofthe mishaps or accidents and also protect ' and indemnify and hold harmless the owner, the engineer. and allpersons who may be associated with or connected with the OM'ner 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 resulting in any iniuiw or loss oflife to the contactor's or any sub contractor's Emplovees/Staff/oersonneland Workers/Third Party (non~fata.l/fatal) shall be met by the contractor who Crt. M.C. 1873/2015& connected Page28of54 alone will be responsible for handlins and disposal ofthe accidental cases with Govermnent/non-Government authorities. The Contractor shall he hound to pay compensation to the personsfor the injuries sustained or death owingto neglectofthesafetyprecautionsshouldany claim proceedings he filed, against the owner/engineer. The contractor hereby agrees to indemnify the owner and the engineer against all liahilities and keep the owner, his employees,personnel, agents, representatives and anyone connected with the owner, protected from civil and criminalprosecution in such cases and he answerablefor thesame before all authorities.

79.11 Within one week of commencement date, the contractor shall submit to the ensineer. a detailed and comprehensive contract shall submit to the engineer, a detailed and comprehensive contract specific site safetv plan, based on the requirements:stated in clause 79.[1] above. The site safety plan shall include detailed policies, procedures and resulatiohs;whic:h, when implemented will ensure safetv ofall the persons, including thirdparties on or in the vicinity ofthe site (including without limitation persons to whom accesslo'the,sifpMs been allowed by the contractor). The contrdctor ■shdl.h]fr.bm time to time as necessarv. produce slippte^ents;7p!fhk.site safetv plan such that it is at all times a'defailed, comprehensive and contemporaneous statement by the contractor of his site safety and industrial health, obligations, responsibilities, policies and procedure (under the'laws ofIndia) or as statedin the contractor elsewhere relating to workon site.

79.12 Any omission, inconsistency or error in the site safety plan or the Engineer's concurrence or rejection ofthe 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 anyfailure by the contractor to adoptproper and recogiaized safety practices throughout the execution of works. Crl. M.C. 1873/2015 & connected Page 29 of54 \

79.13 The contractor shall adhere to the Site Safety Plan and shall ensure that all suh-contractors ofall tier.'; hove QPPyoftheSiteSafety plan andcomply with its provisions. The contactor shall apyoint a qualified and experienced person as Site Safety^Offiber to act as Manaser ofthe Site Safety Plan and who will be responsible for all safety matters related to the worlds. The contractor shall, from time to time, provide such other personnel and resources as may be required to ensure effective operation ofthe Site Safety Plan. The said Site Safety Officer shall submit regular safety reports to the Engineer in accordance with the requirements oftheEngineerandallrelevantstatutoiy authorities,. as required by Applicable laws and regulations. The.contractor shall submit on a monthly basis a Certificate ofCompliancefar Health, Safety and Environmentasgiven in Appendixf'M''.";^ ' (emphasis supplied)

37. It appears thatin the"Wjaicg pftheihthl incidentthat occurred on 28.02.2013(death ofMaqbool)[atthe.sa;me veiy site,prohibitory order followed by revocation order,;had beend's'sued on 01.03.2013 and 08.03.2013. Against the-.lairbacj^rop^ ■ -■construction contractor company had taken steps for gMhi-'the.Safety audit of the project done. An audit report dated 03.04.2013 was submitted to the authorities by the said company•undervfhe cover of its letter dated 25.04.2013. Reference to the said auditreport andthe correspondence exchanged in such regard was made by the construction contractor company in its letter dated 17.06.2014, which is part of the,material that was submitted with the criminal complaint leading to the impugned order beingpassed. Inthereply affidavit dated28.09.2018, the complainant also confinns that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactory CriM.C. 1873/2015& connected Page30of54 report m respectofthe safety measures that had been adopted by the managementofthesaidcompanyand,in viewofsuch auditreport,tlie constiuction work was allowsd to be resumed.

38. As noted earlier, it is admitted case even for the complainant thatmtermsoftheintimationsthathadbeengiven,Mr.DaljeetSingh, the Project Director ofthe construction contractor company,was the person "incharge of the construction site" and Mr. Harish Vaid, Manager(Internalrelations)wastheManageroftheConstructionSite, within the meaning of Section 53 ofthe Building and Constmction Workers Act. As also noted earlier, both the said accused persons have notchallenged thesumrrioning order;

39. It was also broughtoiil,a«ngfhe'lomseofheai-ing thatatthe time ofinspection(s),leading td iBspp;dh|h reports dated 18.05.2014, 24.05.2014 being prepared,if«fsiyfefD^petSingh,who wasfound as&epersoninchargeoft^sitpAi|^^sistedthecomplainant's officers in such.inspection at^feMeifiSiithe report, prepared on inspection canied out in the forenoon of 18.05.2014, is the most crucial inspection report.,for purposes ofthe.,case arising out of.the incident that occurred in the afternoon of17.05.2014. It concededly noted, vis-ci-vis the requirements of Rules 142, 178 and 179 that Personal Fall AiTest System (PFAS) and safety belts had been aiTanged but not provided to the workers. It also noted thatcommon safety system had not been provided"at various places",though not specifying the locations where there was such deficiency in, due compliance.Itconfirmedthathealth and safety policy,asrequired'by Crl. M.C. 1873/2015& connected n r Page31 of54 Rule 39 had been formulated, the breach of the statutory 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 that safety committee and emergency action plan in terms ofRules 208 and 36 respectively were in position,the breach of Rule 209,however,being infeiTed for the reason qualifications ofthe "safety officer" were not shown. In the brief note ofthe concluding part ofthis report,it was fiirther 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 Anldt Kumar(the deceased worker)was-applying paint on the face of the wall at the 18^'^ floor level when he had slipped and fallen to the I; ^ ground,he not wearingthe safety beltpr'IfFAS atthatpointoftime.

40. Pursuant to the inquiries which we're raised in the wake ofthe fatal incident of 17.05.2014,the construction 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 coiTespondence,.which coheededly includes submission 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, Oi M.C. 1873/2015& conmcled ■ Page 32 of54 I 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

b). L&T has provided personal protective Equipment to allworkerts arid-its- usage is enforced prior to constructionsite entry. c). The M'orkers are.bWkfed. about the hazards involved in particular activity- before start of the shift. S d). L&T has protected thf-floor edge with hard barricades. ■;, ■ ■' e). L&ThasprotecteddBopenings, cut outs with reinforcement-inat.--- V' '.f. L&Thas closedalllift shafts with gates. g). Safefy hpts!, below 6 m of live workingflhot drbundperiphery to preventfall ofmaterials andmen. h). All plants and machineries are fitted with safety device and are frequently inspected and testedfor safety compliance. i). Allelectrical connections are routedthrough RCCB, MCB: and at-source through ELR to avoid any electrocution andoverloadprotection.

3. Medical andotherfacilities: Crl. M.C. 1873/2015 & connected. Page 33 of54 V ■ cC). Round the clock ambulance and first aid facilitiesprovided atsite. h). Well maintained canteen at site and workers habitat area. c). Continuous waterfacilitiesfor drinking 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&Thadgotthe Safety Auditconducted by National Safety Council, Delhi Chapter.in the year 2013. The Audit Team after doing extensiye'-survey / checking at site, submitted its report.■ The;,relevant excerpts of the reports are as under: •,:a a.). M/s. 'L&T- had pifdyifed adequate no. of Safety OfficerNtd ■feahiwim the requirements of safety managemmMw.Ahf.P-lqht. There is -proper work distribution fhese Safety Officers to prevent clash mmesppnsdpilhy.;.' b). The owner had appdihied expert consultant organization M/s. Turner, who has appointed NEBSOHqualifiedSafety Officers. C c) M'ork at Heightpermit: In Indian Construction majority offatalities occurs due to fall of workers from height. Due to this high probability, it had become necessary to ensure implementation of Height Work Permit. Under thepermit only those workers are allowed toproceed 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 Page 34 of54 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 observed almost100%. e) LiftingEquipmentand Tackles WsL &Thadgot numerous lifting equipments and tackles. The safe use. of one lifting equipment was checked. It wasfound that the operator was didy trained and the operator and thesignaler were understanding,the signals very well ' I f Hazards ofWorkingat:fleight L&Thad taken thefollowing mbasures topreventfallof workersfrom height:'....•;.;.. v:-: © All the oper0gk' werefound covered with BdrnM-'fffff. ® All the floor edges were suitably fenced with appropriate.hand rails. » 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 required under the law including BOCW (RE&CS)Act. Any mishap atsite despite bestprotective measures could be an accident only with no humanfault or error. L& T has done its best to comply with all the Cii. M.C. 1873/2015& connected. Page 35 of54 \ 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 ofthe Safety Audit report and the relevant photographs 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 when it is received.

41. The questions relating to corporate liability and vicarious criminal liability ofthose connected to a cor];)orate body have come up in the past before the courts in the context of similar provisions contained in various statutes includmg.Section 141.ofthe Negotiable Instruments Act, 1881 (for short, ''Negotiable Instmments Act"); Section 34 of Drugs and.Cosihetics, Act, 1940 (for short,-"Drugs Act"); Section 17(1)ofthePre-ventiotl ohf^^^^^ Adulteration Act, 1954 (for short,'PFA Act"); and Section 33 ofthe Insecticides Act, 1968 (for short,"Insecticides Act").

42. On corporate criminal liability, the following observations-of a constitution bench of Supreme Court in Standard Chartered Bank & Ors V.S. Directorate ofEnforcement& Ors(2005)4SCC530 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 Page36of54 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 act,findJn many statutes,the term "person" is defiriedf-3fihffrthe person is not specifically defined, it necessaidfy)^Includes a corporation. It is usually construedidpinclud!e.a^corporation so as to bring it within theprphibifign Sflfie,statute andsubject it topunishment In moshpffiie\stdtdPdS',the word "person" is defined to includep-coypprdtiofif';, 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 terminolog)> 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 isprimarily based on the terms of the statutes. In the case ofabsolute liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition, no particular state ofmind is a Crl. M.C. 1873/2015& connected •. Page37of54 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 so clearly within the mischief that it must have been intended to-be included and would have been included ifthoughtof Alfpenalprovisions like 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 contrac,tot 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 questionbetween the-land owner company and the construction contractor company.

44. It is vivid from bare perusal ofthe provisions ofthe Building and Construction Workers Act,as indeed the rules framed thereunder, that the land owner company having chosen to outsource the work of theconstructions,had passed on the responsibility for all compliances to be made by the construction contractor company in terms ofthe Crl. M.C. 1873/2015& connected ' Page38of54 { law, and the contractual arrangement, to which detailed references have been made above. It is the construction contractor company which was given the responsibility of carrying out the construction work and,for such purpose,engage the workers. Under the law,it is the construction contractor company which,in the present case,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 ppner company nor those incharge of or responsible to the conduct 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 from which the present petitions arise.

45. The case againstthe construGtion contractor 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 ofDelhi vs. Ram Kishcin Rohtagiand Ors.,(1983) 1 SCO-1, while dealing with the applicability ofSection 17(1)ofPFA Act,theSupreme Courtobserved asunder:- ■ '."75.Sofar as the Manager is concerned, we aresatisfied thatfrom the ver\> nature ofhis duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence: vicarious liability being an incident ofan ' Cd.M.C.1873/2015&connected Page39oj54 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, ftigUhereisanv act committed,by the Directorsfrom which a reasn-nnhlo inference can be drawn that they could nhn h. vicariously liahle_ 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 wererightly quashed. Following the aforesaid' mling-, in construing the effect of Section34oftheDrugsActinadecisiomieported asStateofHaryana vs.BrijLaiMittalandOrs.,(1998)5SCC343,itwasheldthus:- "8...the vicarious liability of a person for beingprosecutedfor an offence committed under the Act by a company arises ifatthe materialtim.e he was in chnrap n-r and was abo respomihle tn 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 being a director a person r.nm ho ^ responsible to the com.pnmifnr th. 0/ Its business, From the complaint in question we owevei, find that-except a bald statement that the respondents were directors ofthe manufacturers there is ' no other allegation to indicate, even primafacie, that t ey were in charge,ofthe companyandalso responsible to the companyfor the conductofits business.",(emphasis supplied) Ctl. M.C.!873/2015& connected Page 40of54

48. ThecounselforthepetitionershaveplacedrelianceonNational ■SmallIndustriesCorpn.Ltd.vs.HarmeetSinghPaintal.(2010)3SCC 330 and Pooja Ravinder.Devidasani vs. State ofMaharashtra and Anr..(2014)16SCC[1] both dealing with issues ofvicarious liability under the NegotiableInstruments Act. In NationalSmallIndustries Corpn.Ltd.(supra),itwas observed thus:- ' i'"P"""'P''°''^^'"''-eating vicarious liability, and which, asper settled law, must be strictlv construed. It is therefore, npLsufficient to JZTTZ cursoiy statement in a complmnt tif^f Director tr.T lojhe companyfor the. conduct ofthe business oflhe companywithout anything more as to the role of the ' Director. Butthemmplamtshould:spell r.„t g,to- hn«. andjliwhat manner Respnn^^tLwas in ofor msmm^&aeMtsed,Gomp^yfyrytffyyt of Its business. Ihis is in..consonance with strict mterpretauon ofpenal,mmhiesrnciallv wher.such Statutes create vicarioukl^IthmdyifiMr

14. A company inwl^:k..pil^^. m.ake any or all m'mmZrf as accused in a complaintmerelyon thebasisofastatementthattheyare in charge of and responsible for the conduct of the business of the com.pany withoulmything more is not a sufficient or adequate fulfilment of the requirements under Section 141.

49. In Pooja Ravinder Devidasani(supra)while observing that"a director of a company is liable to be convictedfor an offence committed by the company ifhe/she was in charge ofand was responsible Co the companyfor the conductofits business or ifit is Cil. M.O.!S73/2015 ti connected Page 41 of54 c 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 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 explained',the.prosecution against the appellant for the offence under Section 138 of the Negotiable Instruments Act was quashed.

50. While examining similar questions vis-a-vis Section 33 of Insecticides Act, in judgment reported as State ofNCT ofDelhi V[5]. Rajiv-Khurana,(2010)11 SCC469, taking note ofthe law which has developed primarily in the context of;Section 141 of Negotiable Instruments Act,it was held thus:- "

17. The ratio ofall these cases is thatthe complainantis 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 com-pany's business. Every Director need not be and is 7iot in charse of the business ofthe company.Ifthat is ■ the position with regardto a Director, it is needless to emphasise that in the case ofnon-Director officers, it is all the more necessary to state what were his duties and responsibilities in the conductofbusiness of.the company and how andin M>hat manner 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, I Crl. M.C.1873/2015& connected Page42of54 f (2005)8see 89; Gunmala Sales vs. Anu Mehta,(2015) 1 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 Del 10030this Court culled outthe settled law as under:- "14. The guiding principles with reference'to Section 141 ofthe Negotiable Instruments Act, 1881, which are now well settled by judicialpronouncements, some of which have been noted above, may be summarised thus:— ■

(i) It is only those persons who are in charse ofor responsible for the conduct ofthe. business of the company at the time of commission ofthe offence under Section 138 ofthe Negotiable Instruments Act, 1881 who can be subjected to criminal action with reference to Section 141; (a) If the'person committing an offence under Section 138 of the Negotiable Instruments Act, 1881 is a company, the person who wassignatory to the cheque which is dishonoured is clearly responsible for the incriminating act and would be liable to be proceededagainstunderSection 141(2); ■ (Hi) By yirtue of the office they hold, the persons workins in the capacity of the Manasins Director or Joint Manasins ■■' Director are deemed to be in charge of. and responsible for the conduct ofthe business of, the company and, therefore, can beproceeded againstin terms ofSection 141; Crl. M.C. ]873/2015& connected Page 43of54

(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 to 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 of Section 141, there beins no need for further particulars to be siyen in the complaint about his role, this beinssubjecttoproofat the trial: (yi) Theperson who has been summoned as an accusedfor offence uhder 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 have been setout in the complaint;and

(vii) Theperson who has been summoned as an accusedfor offence under Section 138 of 'the Negotiable Instruments Act, 1881 by involdng 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 CrI. M.C. 1873/2015& connected.. <• Page 44of54 h that he was not in charge ofnor responsible for the conduct ofthe business ofthe company "at the time the offence was committed" and thereby showing 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 the prima facie conclusion that the construction contractor company is not only the principal employer of the workers engaged in the construction project where the fatal accident'took place but was also responsible for arranging all the prescribed safety measured under the Rules. Section 47 read with Section 53 ofthe Buildihg and Construction Workers Act thus creates a coiporate criminahliability againstthe said company and

I. by virtue ofthe principles ofvicarious'crtoinal liability, every person who,atthe time when the'sMi;.d#^d|:f1^:^%ommitted,was in-charge of, and was responsible jhei'ismdlclj^^ny for the conduct of its business,-as well as the cdmpii^t-'alc^imiemed to' be liable to be proceeded against. Just as in the case ofSection 141 ofNegotiable Instmments Act, by virtue,of the.office they hold, such persons as work in the capa.city 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 iii 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 company is Ci-l. M.C. 1873/20!5& connected ■ - Page 45 of54 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 ofprosecutions under the Negotiable Instruments Act, though it is necessary to specifically aver in the complaint thatthe person sought to be prosecuted was in-charge ofor responsible to the company for the conduct ofits business"atthe time the offence was committed',there is no requirementin law for"further particulars to be given" in the'complaint'about his role, this being subject matter ofproofto be adduced atthe trial.

53. In the considered view ofthis Coud',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 omission■•cdnstituting the offence under Section 47 of the BuildingnndlSonstructidn'Workers Act. After all, it is the status of being "in-charge of or being "responsible" for such business of the company that exposes the individual to vicarious criminal liability. If the act-of commission of omission is attributable to the neglect of the"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) of Section 53 to kick in, there has to be a nexus between the area of responsibility of the person concerned, on one hand, and the apt of commission or omission leading to the Crl. M.C. 1873/2015 & connected Page 46 of54 contravention of the 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 'Hn-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 npt,he was expected to play any specific role or discharge responsibilityfpwards a specific rule, at the stage when its breach hasled to the-fatality.or serious incident.

54. A different approach tha.i the;;ohe:-,,above to the subject might lead to unjust results. This^vina^J)^illustrated by two simple examples. As noted earlieri-the:'en!||ldfer {establishment) is duty bound, in terms of Section 4§(.lj(;g),''.fevgiVe intimation, prior to commencement ofthe buiiding'"or other construction work, as to the name and designation ofthe person who will be"in overall charge"of the building or such construdtion\v0rk.7;Haying regard to the scheme of the enactment and the rules framed thereunder, the employee {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 finming 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 Crl. M.C. 1873/2015& connected Page47of54 "construction work at site''' cannot be held accountable. After all, framing of policy, or appointment of safety officers, as required by law, are matters of policy 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 staff.atthe construction site(i.e.the person incharge of the construction work at:site,under Section 46 or those assisting him in the task)they havingmbt'ensured the safety equipment to be availed ofby the workers,,the former(those responsible for the conduct of the business at the higher levels) cannot be held accountable underthe deeming provisibn.-,

55. It is the argument•.*of%heiy.|)^ifei^ connected to the construction contractor.comphhy viz., A M Naik (Cii.M.C. 2069/2015), K Venkatramanan (Cii.M.C. 2068/2015), M V Kotwal (Crl.M.C 2070/2015), S.k Subrahmaiiam-{Cii.M.C. 1873/20^ R Shankar Raman (Cii.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 Constinction Workers Act and the rules framed thereunder and that the breaches, if any, occurred at the level ofthe person(s) in-charge ofthe construction site i.e. Daljit Singh, Project \. - ■ Crl. M.C. 1873/2015& connected Page 48of54' Director and Harish Vaid,Manager(Industrial Relations). It is further their argument that it is not correct tO'accuse them,under the 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 (Ankit 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 IPC offences. In this context, they crave reference to the sub-contract in terms of which the deceased worker(Ankit Kumar)had been-deployed at the 18^'^ floor level from where he fellto the groundto suffer rndrtafinjuries.

56. The copy ofthe sub-cohtfact,-as^shdwn atthe hearing cannot be treated (without proper proof) as authentic or ""incontrovertible material" or as one exonerating the construction contractor company of its entire responsibility in t^nn'atter;;^ particularly in view of its continued responsibility ofthe sub-contractor as per clause 79.13 ofthe contract'dated 2'9.03.2012, referred to earlier. The argument based on the sub-contract, entered upon by the construction contr^actor cOinpaiiy^With rneTm^ 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 Thcipar and Ors. vs. Madan Lai Kapoor, (2013)3.see330]. Crl. M.C. 1873/2015& connected. Page 49of54 l") I

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 persomiel 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 infrastracture, metallurgical & material handling, power transmission and distribution,hydrocarbon engineering,valves, alloys,power development,infotech,fina!nee,construction and mining machinery etc. ■,

58. The complaint on whichthe summoning order was passed itself describes Mr. A.M.-Naik, petitioner,in-Cfl.M.C.2069/2015 to be the Group Executive Chairma3^-.0£'^o^'©p.ns^ftion contractor company. Similarly,the description ofMr.'M.M.'KotWal,Mr.R.Shankar Raman and Mr. 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 (Corporate 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 Page.50of54. r'\ made with legard to the prescribed safety measures concerning the construction projectin 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 lesponsibilities shouldered,by Mr.K.Venkataramanan (petitioner in Crl.M.C. 2068/2015) or Mr. S.N. Subrahmanyam (petitioner in Crl.MU.1873/2015) had no connection with the obligations of the establishment of the ''employer''(constaiction contractor company) towards compliances ofthe BuiidingandUonstruction Workers Act or the rules framed-thereunder. These petitioners do not dispute that at the time ofalleged commission ofthe-offence under -Section 47ofthe Building and Construction Workers Act,'ithey were worldng for the construction contractor company;;m the/c4->acity ofCEO& Managing Director and whole-time.Executive Vice President. (Inlfastructure&Construcf|6n)..i!^pdiGdi^|^

60. The very description of the port-folios they held and the responsibilities that would entaildhereffpm./jUmayh^ shows that the allegations in the criminal compiaint as to'their deemed liability under Section 53 camiotbe 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 Sectiori 38 ofthe Building and Construction Workers Act Crl. M.C. 1873/2015& connected Page51 of54 that concern day-to-day use of safety belts, safety nets,- safety platforms, or personal fall aiTest systems. But then, it cannot be Ignored thatin(eighth para of)the complaint(extracted earlier),there are also allegations ofbreach on account ofnon-implementation (in letter and spirit) ofhealth and safety policy in terms ofrule 39.and non-appointment of duly qualified safety officers in breach of the requirements of rule 209 read with Section 38 ofthe Building and, Construction Workers Act. These two specific areas cannot,by any stretch of arguments, be relegated to the domain ofthe managerial staff(M-. Daljit Singh and Mr.Harish Vaid)made in-charge ofthe constmction site. ■ •

62. The above petitioners,however,'als;o,raisethe defence based on the two safety auditreports,one dated93^.2013 and the other dated 24-25.05.2014. It would be a'subjept matter offactual inquiiy as to whether the safety audit report;subrnj^tbd on 25.04.2014, obtained afterthe fatal accidentsin question,.can be,vfreated 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 inthe complaint that as on the said date, i.e., 17.05.2014, duly qualified safety officers were notin position they having not been appointed in teims 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 CH.M.c.}873/20rs&connected. 52of54 7^ domainofthe responsibilities held by petitionersK.Venlcataramanan andS.N.Snbrahmanyam.theyareliabletobeproceededagainstunder the deeming clause ofSection 53. Atthe trial,they would havethe opportunity, in terms ofproviso to Section 53(1), to prove that the breaches constituting the offences were committed without their knowledge or that they had exercised all due diligence to prevent commissionofsuch breaches(oroffences). On the above facts, and in the circumstances, initiation of criminal action againstpetitioners-DLFUniversalLtd.(petitionerin Cil.M.C.2064/2015),MohitGujral(petitionerin Crl.M.C.2067/2015), Rajeev Talwar (petitioner in Crl.M;C.2Q66/2015), Shriram Khattar (petitionerin Crl.M.C.2160/2015),Ashoh:Kumar Tyagi(petitionerin Crl.M.C.2159/2015), ■,Sudhir.Sahgal (petitioner in Crl.M.C.2158/2015), A.M. Naik,(petitipher in Crl.M.C.2069/2015); M.V.Kotwal (petitioner in.GrKl^O.^07h/2Ol^ R. Shankar Raman (petitioner in Crl.M.C.20^/^|)r Crl.M.C.2071/2015) being urifoundedf the continuation of such pioceedings against them would be an abuse ofthe process oflaw. Therefore, their petitions are.anowed-,and.the proceedings against them m the criminal complaint case(CC 55F1/14) pending in the courtofthe Metropolitan Magistrate are hereby quashed.

64. For the reasons set out above,however,there is no case made outfor this courtto exercise its inherent power andjurisdiction under Section 482 Cr.P.C. to • inhibit the criminal proceedings in the aforementioned case against S.N. Subrahmanyam (petitioner in M.C. 1873/2015& connected ' n Page53of54 f \ 7y Crl.M.C.1873/2015) and K. Venkataramanan (petitioner, in Crl.M.C,2068/2015). Intheconsequence,thesaidpetitionsarehereby dismissed. It must, however, be added that nothing stated above would be treated as final expression ofopinion on merits ofthe case againstthe said petitioners. I

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