Mohit Gujral v. State NCT of Delhi

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 woikers are ordinarily employed, the emylover shall constitute aSafety Committee consistingofsuch numberof representatives ofthe.employer and the building workers as may beprescribed by theState Government: Piovided that the number ofpersons representing the workers, shall, in no case, be less than the persons o representingtheemployer. (2)In every establishment referred to in sub-section (]), the employer shall nbo appoint a safety officer who shall possess such qualifications and.perform such duties as, may beprescribed. '■

44. Responsibility of employers!.-^, employer shall be responsible for provijiniieimfimt and adequate supervision ofany bidldingpr.■.othepeonstruction work in his establishment as to ensure compliance with the provisions of this Act relating to.safety and for talcing all practicalsteps necessaiw toprevent accidents. "

18. The above-noted statutoryprovisions 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". Havingregard to the scheme ofthe statute, a contractor" having undertaken to carry out the construction Cd. M.C. 1873/2015 & connected Page 14of54 work for and on behalfofthe land owner,and also being the person who "employs building workers" in such work, also talees on the responsibilitytowardssafetyandhealth measuresfromthelatter.

19. For completion ofnarration, it may be added that Section 39 casts a duty on "the employer" to give notice, in the manner prescribed, to the specified authority in the event of-an accident occurring in its establishment, it resulting in death or bodily injuiy 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 notice of the accident was concededly given and the inquiry helilhy the concerned statutory inspectorate. '

20. The Building and Construction:porkers Act also requires a prior notice of commencement'ofbuiidingor construction work to be given,themandatory informationrequis|ofor suchpurposesbeingas indicatedinthe followingprovisiPn:r,.t:;,.v;li-v 46.^ Notice of commencemeht of building or other construction worltr employer shall, at least thirty days before the ofnnyMldins:or other cnn.tr.,nHrtr....w,, ' spd or^ cause to be sent to the Inspp.ntnr having jurisdiction in the area where the proposed building or ■ other construction work is to be executed, a writtennotin. -. containing- ~ (a) thename andsituationoftheplace where thebuilding '^"fconstructionworkisproposedto he carriedon; Cil. M.C. 1873/2015 & connected Page 15 of54 D (b)thenameandaddressoftheperson who is undertaking the buildingorotherconstruction work; (c)^ the address to which communications relating to the buildingorotherconstruction workmay besent;

(d) the nature of the work involved and the facilities, includinganyplantandmachinery,provided; (e)the arrangementsfor thestorage ofexplosives, ifany, to be usedin the buildingorotherconstruction work; (f the numberofworkerslikely to be employedduringthe variousstagesofbuildingorotherconstruction work; (s)tb.^ name and desimation ofthe person who will be in ^ charge ofthe buMdim-krkdth:^^ construction, wnrk fj atthesite: ^ (h)theapproximateduration cffhe^ork; (i)such other,mattersas may beprescribed. (2) any change occurs;,in!my ofthe particulars furnished under sub-^emon.;pU^^^^ employer shall intimate the changefia ^le■'Mspp&tor_within two days of suchchange. > ^ - j.:. (3) Nothing.contained in subNdctwn (1) shall apply in case ofsuch class ofbuilding or other construction work as the appropriate-fdoyernmentmayhymotificationspecify to be emergent worksN; - -a' ■.. ' ' (emphasis supplied)

21. The above-quotedprovisiononlyre-inforces the conclusionthat the responsibility towai'ds due compliances with health and safety measures prescribed by the law and rales 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 yi-C. 1873/2015 & connected Page 16of54 employ building workers being the"employer". The person deputed as"one m overall charge"isthe representative of"the employer",the employerbeing answerableand accountableforall actsofcommission or omission done by such representative "incharge ofthe project" or those workingunderhiscontrol. Pertinenttoadd,thedutytointimate, m advance,commencement ofthe constmction work(by prescribed notice)is notofthe land owner butofthe"employer",such statutory 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 oftiie powers confepaapon the said authority in exercise ofthe powers conferred by"thfBuilding and Construction Woikers Act,the lieutenant gqyei-npr pf(he Govt. ofNOT ofDelhi made and notified Rules which^arei(cal|fcd the Delhi Building and Other Construction Woitfers-'ifBegpli^^^^^ of Employment and ConditionsofService)Rulfes-ZOiOa( Rules forshort).

23. The criminal complaint(from which the present proceedings arise) refers specifically,to-breach oriqes.-.SP (Health and safety policy), rule 42 (Slipping, tripping,'cutting, drowning and falling hazards),rale 178(Safety beltanditsuse),rule 179(Safetynetandits use),rale 196(Guardrails)and rale 209(Safety officer)ofthe Delhi Rules. AlltheseRulesfall in different Chapters ofthird part(Safety and Health).

24. Rules39and42appeal-inthesixthchapter(generalprovisions), rules 178and 179insixteenthchapter(CatchPlatformandHoardings, Crl, M.C.1873/2015& connected Page 17of54 Chutes,SafetyBeltsandNets),rule 196includedin nineteenth,chapter (Scaffold),while rule 209forms partofthe 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, Actasunder;-

47. Penaltyfor contravention ofprovisions regarding safety measures.-(1) Whoever contravenes the provisions ofany rules made under section 40 shall be punishable ^ with imprisonmentfor a term which may extend to three or withfine wMich may;extend to two thousand rupees, or with both,.a' nfi irtfike^fase of a continuing contravention, with anl'odiMdnfif^fwhich may extendto one hundred rupees fbr.i&VBryhd^ during which such contravention continuesfi fter cpfivfctionfor thefirst such contravention. ■■, i(^ (2)Ifanyperson who has;"^emfd^pcted ofany offence punishable under guilty of an ' offence involving a ofcompliance of the same,provision, he shall be punishable on a subsequentconviction with imprisonmentfor a term which may extend to six m.onths,or witfifine'which shall not be less thanfive hundredrupees butwhich may extend to two thousandrupees or wifh.both: Provided thatfor 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 beingconvicted: Providedfurtherthattheauthorityimposingthepenalty,if It IS satisfied that there are exceptional circumstances CrI. M.C. 1873/201.[5] cS connected Page IS of54 warrantingsuch a course may,after recording its reasons in writing,imposeafineoflessthanfivehundredrupees."

26. It is the contravention ofthe rules relating to health or safety measures which constitutestheoffenceprovided by Section47quoted above,and fortins,mensreai.e.theintentiontocommitthe breachof the rules or abetmentthereofon the part ofthe person soughtto be prosecuted is pre-requisite. Thecase athand isnotone ofany ofthe accused having been previously convicted for such offence and, therefore,the,enhancedpunishmentisnotattracted. Havingregardto the pumshment prescribed, the criminal case comes up before the court of Metropolitan Magistrate as one which may be tried summarily.

27. As observed above,it is the contravention ofthe provisions of theRulesonthesubjectof^sa^tyandlHealth ofbuildingworkers as envisagedin Section40,which isiiiadh-phiai'shable. ThoughtheDelhi Ruleshavebeen framed andnptiRcdvwiiMS^ totherulemaking powerconferred onthe approplhte governmentby section 62,having legai.d tothesubjectsthatarethereby covered,there can beno dispute that such rules have been framed also in exercise ofthe power under section 40. ■ ■

28. The complainant presses the criminal prosecution against the petitionersprimarilyontheprincipleofvicariousliabilityand,forthis, theprovision containedinSection 53oftheBuildingand Constmction Workers Actis cmcial.Itreads thus:- M.L. 1873/2015& connected r, Page 19of54 c< It (1)Where,an offence under ■ this Act has been committed by acompany, every person. 0, atthe time the offence wascommuted,wasin chnrac qLa^wasreyonsihie to, thecompanyforthecondnrfof thebusinessofthecnmpjmy,aswellasthecompany,shall J.deemedto he <nnlty_oftheoffenceandshallbeliableto beproceededagainstandpunishedaccordingly: Provided that nothing contained in this sub-section shall ■ ZLZt"Z"" ""yP""''hment, me ^^ offence was cnmmiHi,rl without -hi, lmpwledge_pr that he had exercised all due dilio.u.„ to preventthecommissionofsuch offence. (2)Sothwithstandineanvthmp-containedin lifesanyoffence under,thislffetkds beencommittedbya yppary and it, is proved:-tHafithe ofTeur-e has been "f ef PmseM-ieit'titanvmance of ■ attributable to arm nefflect rmtghh t-„~t ofany dircctr.,. director manager, secretary -Or..other officer shall be ^^2y^fJ2S^Mi!tyM^^ andshallbeHabile pioceededagainstcmfdp;pMsked'4cgprdm Forthe.piupose^tC^fl^ flL boPcorporate andincludes a Jiim orotherassociation,ofindividuals;and (b)^directormrelimnyp^^^ytsapartnerinthe

29. Aswashighlightedduringthecourseofhearing,notonlybythe learned counsel representing the petitioners, but also by the Counsel forthe State(the complainant),the afore-quoted provision ofSection 53.s almost identical with similar provisions concerning vicarious CrLM.C.1S73/2015&connected ' ' '. Page20of54 c V liability contained in other criminallawsto the effect ofwhich some detailed referenceshallneed to bemadelater. ' It is clear from the bare reading of the statutory clause that wheretheoffenceiscommittedbyacompany,inordertoropeinany otherperson on theprmcipleofvicariouscriminalliability,itmustbe shownthatsuch person was "tn-chargeofand wasresponsibleto the company"fortheconductofits business "atthetime the offence was committed". The proviso to Section 53(1)permits a person arraigned on the principle ofvicarious'liability to plead and show byevidence, m defence, that he was nop responsible either because the acts constituting the offence werecommittedTVfrteaf his knowledge"or becausehehad "cxercisedimthedO^ekMctoprevemthecommissicn ofsuch offence". Notwithstanaing.lhp(fiam provision contained in Section53(1),theprosecution may;b||iii|atedagainst"anyDirector, Manager,Secretaryorothfr:-c0erC0ffMpmrpcmy"ifthereis proof availabletoshowthatthedifenfefttyas,ad||^teed "withtheconsentor connivance of, or is attrihutaUe to ahfneglecton thepartof such director, manager,secretary.or other officer.ofthe company. While section 53(1).relies on ^feem%''-due:iO%e position ofthe person vis-a-vis the company."in-cWge o/'and'"responsible to", section 53(2) necessarily requires positive evidence to show active participationreflectiveof"consent", "connivance"or "neglect".

31. In the criminal complaint on which the impugned order of summoning ■has been passed, tiiere is reference to similar fatal accidents having occurred previously attheprojectsite in question on CH. M.C. 1873/2015& connected Page2i 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-visthe 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, ■ • C through afonnal contracttothe consttuetiph-contractorcompany. Itis indicated in the complaint itself tbidt ihe construction contractor company had got itself registered with the statutory authority ofthe appropiiate government in eomplianee''with the requirements of Section 7. The certificate:of-registration-'-describes the construction contractor company to- be the "estdbUshment" for purposes of construction of"DLFCapital GreensProject"by it, it being a project of residential building", the work'.-to be carried out during O 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 thatthe 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 Crl.M.C.1873/2015&connected ' 22of54 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 ofthree others i who are not before,this court) vis-a-vis the two companies, the complainant has narrated its case in manner the complaint in the following

3. That Sh. Mohit^,Gujrdl, Chairman, Sh. Rajeev Talwar,-Managing Director,Sh. Sriram.Khattar, Director, C' ^shok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, Director ofM/s. DLF Universal Ltd., Shopping Mall, 3'"' ' Floor, Arjun Marg, DLF Cit^. mcL E, DLF Phase 1, Sector 26A, Gurgaon, Hafyana 122002 are the Directors and Sh. A.M.i 'Naik, Group Executive Chairman,Sh.K. Venkataramman, CEO & MD,Sh. M.V. Kotwal, Whole time Director^■&,..pfesident. Heavy Engg., Sh. S.N. Subrahmanyan, Whole ittmg>Director & Sr. EVP (Infrastructure & cdpstrnptiphf ^^r'R, Shankar Raman, Whole time Director dc'CFO/MMMaUendra Roy, Whole tikeDirector & Sr. EVP (Corporate affairs &power) and, Sh. Daljit Singh - Project. Director, (In-charge of theconstruction site) of M/s. Larsen & Toubro Ltd. are the '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 calledthe 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 21floors. Upon inspection ofthe 'Construction Site' on 18.5.2014 at 11.00 Crl. M.C. I873.QQ15 & connected j 2iof54 c AMandfurther investigation on 24.5.14 at[4].00PMalong with Sh.R.N.Dahiya,Director(ISH)andSh.J.N.Jain,Dy. Director (ISH)/Inspectors ofBuilding & Construction, it was revealed that a worker namely AnkitKumar,Painter, was working in tower No.l[4] 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 mana2ementas envisaged in theprovisions 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^ ofEmployment and Conditions of bervice) Rules, 2002. Manasement had not taken all approvriate measures.as per ■ die said Act and Rules framed thereunder to prevent accidents at building site of suchproportion and magnitude,:

6. Thatthere have been.5fatal\accidents resulting into loss oflives of[5] workers in the recent past, at the samesite. But, it is clear that they hdd'not learnt any lessons out ofprevious series offatal accidents. Apart from notices, a prohibitoiy order,was also issued to.them to stop the_j^mstructipn work of entire site till complete/full compliances ofall the safet\! provisions as mentioned in the said ActandRulesframes thereunder as applicable on the construction site ofthis magnitude were made.

7. That further, repeated deaths clearlv pointed to neglect_ and commissions & omissions and lack of due diligence towards all aspects of-hum-an lives, safety and M^elfare attheir site as envisagedin the said ActandRules framed thereunder.

8. That diming the course of inspection and investigation, the following breach ofthe provisions ofthe "saidRides"read with the "saidAct"were observed:- Crl.M.C.1873/20/5&connected ■ Pa^e'>4of54

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 178ofthe said Rules."

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 beenprovided with suitable & safe suardrails and toeboards ofadequate strength in contravention ofthe provisions of Rule 196 of the said Rules.

IV. That, more than-.500; i.e. 2700 workers were ordinarily employed at the construction site but Safety Officers as per qualification dfid 'condition ofservice.as laid down in Schedule.VIII ofthe mid Rides had not-been appointed, in conti'aventioh'ofthe provisions ofRule 209 ofthe saidRules readwithSectim§8ofthesaidAct.

V. That the manag&nMtsihavefhot implemented their

9. That the above accused persons are thus 2uiltv of contravenin£ the provisions of Rules 39.42.178.179.196 and 209 ofthe said:..Rules..read wMfh-Sections 38,40 and.53 ofthe said Act which is'punishabte'under section 47ofthe "Said Act"for an imprisonmentfor a term which may extent to 03 months or with a fine- which may extend to Two ThousandRupees or with both."

34. The reference to the prohibitory order having been issued by the 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 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 of.the 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 constmction contractor company,inturn,referredtoletters datjsd20.05.2014,03.06.2014,.and 25.04.2013 and health and safety pplicy,as oommunicated 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 ofthe abovesaid correspondence, reliance; whereupon is made by the petitioners,has been acknowledged.-;7

36. The documents in whidh>refer|A^^ is no dispute,'upon perusal,show thattheland ownercompany had enteredinto acontract on 29.03.2012 with, the construQtio.ri 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.Thefollowing stipulations in the contract need to be extracted for confinnation ofthe above aspect:- '7P.0SAFETYPROCEDURE CH. M.C. 1873/201-5& connected Page 26of54 7P.[1] The contractor shall incorporate in his overations the requirements ofall the 'Safety Code<i' issued by the Bureau ofIndian Standards andprovisions 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 requirements ofBISCodes and/orNationalBuilding Code,. the Buildingand Other Construction Workers(Regulations ofEmployment and Conditions ofServices)Act, 1996 are duplicated by the localregulations orthe "SafetyManual" provided by the Owner,-, tfe-■ mope stringent of these ^ regulations shall be deemd,. The Safety Manual provided by the Owmr.-is and shall not castany liability on the^OWnePfff ( The contractorshallmoyidefsafe meansofaccess to all workinsplaces., 'f'-'(.•' The contractorssMh BkrsM^ responsible for orover desWn of the-scnff6ldim<Atiemporarv accesses. ladders and ramvs.'f ormwOrMfand'hoistins arrangements. ■ cranes etc. to ensure'safety' 'd£iw.brkmen as well as:the ■ works. Allscaffolds, ladders and othersafety devicesshall be maintained in safe conditions. Only-tubular scaffolding shall he used. ' v P. ^ All necessary personal safety/protective equipment. first aid Idt. 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 eu^ura proper maintenance and use of eaumment by his ^yyrployees/stafflpersonneland workers. 79.[5] Adequate precautions shall be taken to prevefit dangerfrom electricalequipment. Crl. M.C. 1873/2015& connected p Page 27of04 ( / 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 andin accordance with thestatutory regulations. 79.[8] The contractor shall notify the ensineer immediatelv ofany occurrence ofmishaps or accidents that results in death or iniurv (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 written report within 24 hrs of the occurrence/incident.^ The • contractor ■shall duly complete standardformsfis.reqiiir^d by the engineer and ■ statutory authorities. ' ■ is made clear thai the'contractor alone as the Principal Emploverj. is ■ ■ansiv.erd&e/ and liable to all investisatins and lesdl oiMiN'itiefMcluding- Court ofLaw and the Owner shall not have anvpart or liability in this regard. The Contractor alone shall be responsible and liable to compensate the victims- -.iinmediately on the occurrence of the mishaps or accidents and also protect and indemnify andholdharmless the owner, the engineer and allpersons who may be associated with or connected with the owner or the engineer and to reimburse all legal andfinancialcosts, ifincurred, by the them in this regard,

19.10 All consequences, damages or losses arising. bv reason ofanv violation ofthe safetv requirements residtinc in any injwy or loss oflife to the contactor's or anv sub contractor s Emplovees/Staff/personnel and. Workers/Third Party (non-fatal/fatal) shall be met bv the contractor who Crl. M.C. 1873/2015 & connected 28 of34 'KT alone wi.ll be responsible for handling and disposal ofthe accidental cases with Government/non-Government authorities. The Contractor shall be bound to pay compensation to the personsfor the injuries sustained or death owing to neglectofthe safetyprecautionsshould any claim proceedings be filed against the owner/engineer. The contractor hereby agrees to ind.emnify 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/to the ensineer. a detailed and comprehensive contract shall submit to the ensineer, a detailed and comprehensive contract specific site safety plan, based on the requirements.stated in clause 79.[1] above. The site safety plan shall include detailed policies, procedures and resulafiohs-.which, when implemented will ensure safety ofall the persons, including third parties on or in the vicinity ofthe site (including without limitation persons to whom accessidtke'sitpihds been allowed by the contractor). The contractor ■khdlh likb.m time to time as necessary, producesupDtetkent$::tQH&-site safetyplan such that it is at all times d'detailed, comprehensive and contemporaneous statement by the contractor of his site safety and industrial, health, obliga,tions, responsibilities, policies and procedure (under the laws ofIndia) or as stated in the contractor 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 anyfailure by the contractor to,adopt proper and recognized safety practices throughout the execution of works. Crl. M.C. 1873/2G15 & connected Page 29of54

79.13 The contractor shall adhere to the Site Safetyj Plan and shall ensure that all sub-contractors ofall tiers, have copy ofthe Site Safety plan andcomply with its provisions. The contactor shall appoint a ciualified and experienced person as Site SafetyOfficer to act as Manager ofthe Site Safety Plan and who will be responsible for all safety matters related to the works. 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 ofCompliancefor Health, Safety and Environmentasgiven in Appendm"MS";. ■':/ (emphasis supplied)

37. It appears that in the walce of the fatdl incident that occurred on 28.02.2013 (deathofMaqboor)iatthe.same veiy site,prohibitory order followed by revocation order,;had beend's'sued on 01.03.2013 and 08.03.2013. Against the 4aid"back^rbp^ 'construction contractor company had taken steps for •gettih^ fhe'..safety audit of the project done. An audit report dated 03.04.2013 was submitted to the authorities by the said company'underdhe cover of its letter dated 25.04.2013. Reference to the saidauditreport and the 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 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.I873/2015&comecled Page30of54 icport in respect ofthe safety measures that had been adopted by the managementofthe said company and,in view ofsuch auditreport,the construction work was allowed to be resumed. ■ 38. As noted earlier, it is admitted case even for the complainant thatinterms ofthe,intimationsthathad been given,Mr.DaljeetSingh, the Pioject Director ofthe construction contractor company, was the person "incharge of the construction site" and Mr. Harish Vaid, Manager(Internalrelations)Wasthe Managerofthe Construction Site, within the meaning of Section 53 of"the Building and Construction Workers Act. As also noted.earlier, both the said accused persons have notchallenged the summoning ofdey;.

39. It was also brought out^toring the-pourse ofhearing that at the time ofinspection(s),leading'to.inspection reports dated 18.05.2014, 24.05.2014 being,prepared,;iCwd§]\#|D^pet Singh,who wasfound asthe personincharge.of thecomplainant's offlceis in such.inspection atv^het/sitel.f;>"The report, prepared on inspection can-led out in the forenoon of 18.05.2014, is the most ciucial inspection report..for purposes of the.,case arising out of..the incident that occurred in the afternoon of 17.05.2014. It concededly C' noted, vi&'-a-vis the requirements of Rules 142, 178 and 179 that Personal Fall Anest System (PFAS) and safety belts had been aiianged but not provided to the workers. It also noted that common safety system had not been provided "at various places",though not specifying the locations where there was such deficiency in due compliance.It confirmed that health and safety policy,as required by CW.M.C. 1873/2015&comected jj. 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, at the same time,confirmed that the 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 inferred for the,reason qualifications ofthe "safety officer" were not shown.. In the brief note of the concluding part ofthis report,it was flirther observed thatthe 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 wo.rkef)was'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'BFAS atthat point oftime. 40.' Pursuant to the inquiries which were raised in the wake ofthe fatal incident of 17.05.2014,the epnstrucfion 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 coiTesponderice,.which concededly includes submission,[7] i 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 con'ipliance 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 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:- "2. On site safety measures: a). L&T has deployed (3) Safety Managers, (5) ■ Safety Engineers (12) Safety Supervisors and (30) Safety Stewards at site to control and monitor the safety measures. ( b). L&T has. provided personal protective Equipment to all y^oid<ie}ts./arid is enforced prior to constructiphsiie.entfy. c). The workers.:ode\ljm^d about the hazards involved, in par0$lar actimty: before start of the shift. ';: d). L&T has protected the'floor edge with hard barricades. • ■ e). L&Thas protected MlOpenings, cut-outs with reinforcement mat.--'r'■ i f. L&Thas closed all liftshafts with gates. g). Safely catchM&ts.ar^-pnoyvded below 6 m of live workingfloof around periphery to preventfall ofmaterials,and men. h). All plants and machineries are fitted with safety device and. are frequently inspected and testedfor safety compliance. i). Allelectrical 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 ', Page33of54 a). Round the clock ambidance and first aid facilitiesprovided atsite. b). Well maintained canteen atsite 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 SafetyAuditconducted by National Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing extensive^-survey / checking at site, submitted its report. The^'nelpvant excerpts ofthe reports are as under:: a.), M/s.'L&T-had pifdyided adequate no. of Safety Officers td fiealtlwitk- the requirements of safety managemfrttfinMdfi^ There is proper work dis-tributipn cdndji^^ifinese.Safety Officers to preventclash m^re;fitphsifiii^.^^' b). The owner had appointed expert consultant organization M/s. Turner, who has appointed NEBSOHqualifiedSafety Officers. - c) work at Height permit: In Indian Construction CV majority offatalities occurs due tofall ofworkers from height. Due to this high probability, it had become necessary to ensure implementation.of Height Work Permit. Under the permit 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. J873/2015.cSc comec.ted Page34of54 d)PersonalProtective Equipments e 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 &Thadgot numerpus lifting equipments and tackles. The safe use- of one lifting equipment was O checked. Itwasfound thatthe operator was didy trained and the operator and tine signaler were understanding,the signals very well. f) Hazards ofWorkingatHeight L&Thad taken thefollowingmeasures topreventfallof workersfrom height: '■■■■■■ -■; >, - ■ -.,yc ® All the openikigk^-dl^S^^r'T^nfyeitions were found coveredwithEctr'nMUTfffk-d • All the floor edges were suitably fenced with appropriate handrails. ® The stairs were cleanedfbnprevention of slipping due to slipperyfloor. r: That in view of the observations of National Safety Council (Delhi Chapter) in its report after conducting extensive ckecks/swyeys 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. 1873/201.[5] & connected Page 35 of54 91safety 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 24-2f^ 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 including,Section 141.ofthe Negotiable Instruments Act, 1881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs and Cosmetics Act, 1940 (for short,•"Drugs Act"); Section 17(1)ofthe■Preventibh ohi''0 Adulteration Act, 1954 (for short, 'PFA Act"); and Section 33 of the Insecticides Act, 1968 (for short, "Insecticides Act").^

42. On corporate criminal liability, the following observations of a constitution bench of Supreme Court in Standard Chartered Bank & Ors v.y. Directorate ofEnforcement & Ors (2005) 4 SCC 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 36 of54 2:7 1^. 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 othercriminalprocess, 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 isfrequency directed'against any "person" who commits theprohibited.ae'f.andfin many statutes the term "person" is defifted'. person is not specifically defined,,it peGessanlyincludes a corporation. It is usually construed idyinclud!e>a^corporation so as to bring it within theprphibifign dfffie.statute andsubjectit topunishment In moftfiffljeiStatM^dhe word "person" is defined to includep-co.rpprdfi[6].fif xxx Inasmuch as all criminal and quasi-criminal offences arecreatures 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 offence where liability arises instantly upon the breach of the statutory prohifition, no particular state ofmind is a Qi. M.C 1873/2015 & connected Page 27of54 prerequisite to guilt. Corporations and individual persons stand on the samefooting in theface ofsuch a statutory offence. It is a case of automatic primary responsihilit)K 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 intendedtO'be included and would ^ have been included iftHought:of^Adlpmalprovisionslike all other statutes are to befairly construed according to the legislative intentas,expressed in-the enactment."

43. By virtue, inter a//a, of'the registration, dated 22.02.2012 granted to the constructions contractor■'cp,mpany by the respondent under Section 7 of the Building and Construction Workers Ac% the complainant was privy to the above-said contractual arrangement visa-vis the project in question-bptween the-land owner company and the r ^ ( constructioncontractorcompany.

44. It is vivid from bare perusal of the 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 the constructions, had passed oh the responsibility for all compliances to be made by the construction contractor company in terms of the Crl. M.C. 1873/2015& connected ' Page3'8of54 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 laWi itis 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 29.03.20.12. Thus, neither;the land owner company nor those mdiarge 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 GonstEUction c^dnfractor 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 MunicipalCorporation ofDelhivs.Ram KishanRohtagiand Ors.,(1983)1 see I,while dealing with'the applicability ot Section 17(1)ofPFA Act,theSupremeCourtobserved asunder;- "iJ.Sofarasthe Manager isconcerned,we aresatisfied thatfrom the very nature ofhis. duties_ it can bc.jpfkbi inferred thnfh'' unAouhtedlv be vicariously liable for the offence;vicarious liability beingan incidentofan Crl. M.C.1873/2015&connected ■ Page39of54 r: QSmce_under_t^^ So far as the Directors are coricerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from, the presumption drawn by the complainant, ftigithereisanv act committed.bv the Directorsfrom which a reasn-nnhlo ' injerence can be drawn that they could nhn h. v}cariouslv liable In these circumstances, therefore, we fnd 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 exfacie on the, allegations made in the complaint and the proceedings (Againstthem wererightlyquashed.

47. Following the aforesaid' ruling-,.in construing the effect of Section34oftlieDi-ugsActinadecisionrreportedasStateofHaryana vs.BrijLaiMittalandOrs..(im)5SCC,343,itwasheldthus:- S...the vicarious liability of a -person for being prosecutedfor an offence committed under the Act by a company arises ifatthe materialtime he was in chn.r^rp n-F and was also responsible tothe companyfor the con.d.ur.t 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 can, he in charge ofand,responsible to the comnanv fnr the cond.uct of Its business. From the complaint in question we however, find that except a bald, statement that the respondents were directors ofthe manufacturers, there is no other allegation to indicate, even primafacie, that they were in charge,ofthe company andalso responsible to thecompanyfor the conductofits business." CH. M.C. 1873/2015& connected ■ - Page 40of54 5l

48. The counselforthepetitionershave placed 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 ofvicarious liability under the Negotiable Instruments Act. In NationalSmallIndustries Corpn.Ltd.(supra),it was observed thus:- 7 ^ provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to makp. n hnl^t ■ cursoiy statement in a GOmplaint thnt fh^ r^jro^rtrr (arrayed as an accusedf^isMAarge ofand rP..,pnpiNihlo to_me companyfor the conduct^ofthe business ofihe company without anything more.as to the role of the Director. But the complamuhpuld spell out as to hn^, and in wha.t manner R.P..'^.pnmr]ant I'-was in charge ofnr the aqdmed^Conyoanyfor the conduct of IS business. This is dnpcohsonance with strict interpretation ofpenal,mmtksjfmecialh. wh^r.such statutescrea.te vicariouNdihhfldfmir.

14. ^ compimy to make any or all the D' ireetmS" as accused in a complaintmerelyon the basisofastatementthiattheyare m charge of and responsible for the conduct of the busmess of the company without;,anything more is not a sufficient or adequate fulfilment of the requirements under Section 141. (emphasissupplied)

49. In Pooja Ravinder Devidasani(supra)wliile observing that"a director of a company U liable to be convicted for'an offence' committed by the company ifhe /she was in charge ofand was ■esponsihle to the companyfor the conduct ofits business or ifit is Crl. M.C: !873/2015 connected. „ Page 41 of54 r r. 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"m 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 conduct ofbusiness ofthe company was'explained\ the 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) 11 SCC 469, talcing 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 complainant is 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 charge 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 all the more necessary to state what were his duties and resvonsibilities in the conduct ofbusiness ofthe company and how and in M'hat manner he is responsible or liable."

51. Reliance has also been placed on the decision of the Supreme Court reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, Crl. M.C. 1873/2015& connected Page 42of54 (2005}8see89; Gunmala Sales vs. Ami Mehta,(2015)1 See 103 andStandard 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. Lta. vs. Fadi El Jaouni, 2018 ^ SeeOnlineDel10030this Courtculled 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 conductofthe business of the comvanv 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;

(ii) 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 clearlv responsible for the incriminating act and would be liable to be proceededagaij;istunderSection 141.(2); (Hi) By virtue of the office thev hold, the persons working in the capacity of the Manasin[2] Director or Joint Managing 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. 1873/2015 c?- connected Page 43of54

(iv) Merely because a person is a director ofthe company is not sufficient to make him liable under Section 141, there being.no deemins that by holdinssuch position he is in charge of, or responsible for 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 particidars to be siven in the complaint about his role, this beins:subjectto proofatthe trial: (yi) The person 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 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 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 sterling incontrovertible material or acceptable circumstances" substantiating his contention Crl. M.C. 1873/2015 & connected Page 44 of54 3^ that he was not in charge ofnor responsible for the conductofthe 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 not otherwise."

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 wherethe 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 corporate criminahliability againstthe said company and I by virtue ofthe principles ofvicarious'erifninal liability, every person who,atthe time when the said,offence;,wg^ was in-charge of, and was responsible jfliellsaidiebi^^^ny for the conduct of its business, as well as the cor]Qpihy,)-afd-'dbemed to be liable to be proceeded against. Just as in the case ofSection 141 ofNegotiable Instruments Act, by virtue 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 company is CrL M.C.!873/20!5 & connected 45of54 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 requirementin 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 Conrt,the words"for the conduct of the business of the company''' appearihg 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-ohiission-Gohstituting the offence under Section 47 ofthe Building^and (Sonstructipn'Workers Act. After all, it is the status ofbeing "in-charge of or being "responsible'''for such business of the company that exposes the individual to vicarious criminal liability. Ifthe act-ofcommission or 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 ofresponsibility ofthe person concerned, on one hand, and the act of commission or omission leading to the Cii. M.C. 1873/2015 & connected Page 46of54 I contravention ofthe ruies under Section 40, on the othei. To put it more precisely,and clearly,inthe contextofthe offence under Section 47 ofBuilding and Construction Workers Act,the responsibility vis-a vis the specific rule framed under Section 40(the breach ofwhich 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 not he was expected to play any specific role or discharge responsibility towards a specific rule,atthe stage when its breach hasledto the-fatality or serious incident.

54. A different approach tha,h the.one.viabove to the subject might lead to unjust results. This^may^'^^illustrated by two simple examples. As noted earfierj- thejenlpldyer {establishment) is duty bound, in terms of Section A'dyK-g),.toygive 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 constmctionwOrk.';-Haying regard to the scheme of the enactment and the rules framed thereunder, the employer {establishment)is also responsibletoframe a"safetypolicy (rule39) 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 Crl. M.C. 1873/2015 & connected h ' "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 staffatthe construction site(i.e.the person incharge of the construction work at.site,under Section 46 or those assisting him,in the task)they havingmot'ensured the safety equipment to be availed ofby the workel/S,,the forrher(those responsible for the;.. i conduct of the business at the higher levels).cannot be held accountable underthe-deeraiftg:ptovisfeni *

55. It is the •argumenl?-- -tliftNers connected• to the construction contractor coinphhy viz;., A M Naik (Crl.M.C. 2069/2015), K Venkatramanaii (Cii.M;C. 2068/2015), M V Kotwal (Crl.M.C 2070/2015), S.N. Subrahmaifyam'{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 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 Page48of54 Director and Harish Vaid,Manager(Industrial Relations). It is further their argumentthat itis notcorrectto-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 corresponding 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 atthe 18"^ floor level fi'om ^ where hefelltothe groundto suffer mortalinjuries.

56. The copy ofthe sub-contfaehniishpwn atthe hearing cannotbe treated (without proper prOof)^.as,authentic or '"'"incontrovertible materiar or as one exonerating the constrtiction contractor company of its entire responsibility in tfe-rnatterj-'particularly in view of its continued responsibility vM-drvliS ofthe sub-contractor as per clause 79.13 ofthe contract'dated29.03.2012,referred to earlier. The argument based on the sub-contract, entered upon by. the construction contractor company^v/ith theriinmediate 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], Cii. M.C. 1873/2015& connected Page49of54

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 supeiwisory 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 infrastmcture,; m'etaMurgical & material handling, power transmission and distribution,hydrocarbon engineering,valves, alloys,power development,infotech,finance,construction and mining machinery etc..

58. The complaint on whichthe summoning order was passed itself describes Mr. A.M. Naik, petitipner in Crl.M.C.2069/2015 to be the- I.1' Group Executive Chairmah-mf.flae^eohstmetion contractor company. Similarly,the description ofMr.'M.Mv'FvOtwal,Mr.R.Shankar Raman and Ml-..Shailendra Roy - petitioners in Crl.M.C. Nos. 2070/2015, 2072/2015 and 2071/2015,- even as perthe 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-porate 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 CH. M.C. 1873/2015& connected Page 50of54. made with regard to the prescribed safety measures concerning the construction 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. S.N.'Subrahmanyam (jDetitioner in Crl.M.C.l873/2015) had no connection with the obligations of the establishment of the "emp/oyer" (construction contractor company) towards compliances ofthe Buiiding:and"Construction Workers Act or ^ the rules framed thereunder. These petitioners do not dispute that at the time ofalleged commission ofthooffbnce under Section 47 ofthe Building and Construction Workers Act,ithey were worldng for the construction contractor company;m the/c^iacity ofCEO & Managing Director and whole-time Diireigt6f'?&' ^Executive Vice President- (Infrastructure&Construcf|0n).ilsp^fetiVeif,l'"

60. The very description of the port-folios they held and the responsibilities that would entail^therefrorn facie shows thatthe allegations in the criminal'complaint as to their deemed liability under Section 53 camrotbe,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 m^de with rules 42, 178, 179 or 196 read with Section 38 of the Building and Construction Workers Act Qi. 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 that in(eighth para of)the complaint(extracted earlier),there are also allegations of breach on account of non-implementation {in letter and spirit) of health and safety policy in tenns of rule 39 and non-appointment of duly qualified safety officers in breach of the requirements of rule 209 read with Section 38 of the Building and Construction Workers Act. These two specific areas cannot, by any stretch of arguments, be relegated to the domain of the managerial staff(f/h'. Daljit Singh and Mr. Harish Vaid) made in-charge ofthe constinction site. < • C "

62. The above petitioners, however,'also raise the defence based on the two safety audit reports,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 report: submitted on 25.04.2014, obtained after the fatal accidents in question,can befreated as one representing the correct position prevailing' at the time of commission of the offence. Further,it would be the onus ofthe defence to show that the certification by audit'report- 03.04.2013 would hold good till date of the fatal accident of17.05.2014. There are specific allegations in the complaint that as on the said date, i.e., 17.05.2014, duly qualified safety officers were not in 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 Workers Act. Since this area v/ould fall prima facie within the Crl. M.C. 1873/2015& comiected Page52of54 -71 domamoftheresponsibilitiesheld bypetitionersK.Venkataratnanan »dS.N.Subr^„ra„yam,fheyareliabletobeproceededagainstunder the deenting clause ofSection SS.' A.thetrial,they would havethe opportumty,,n terms ofproviso to Section 53(1), to prove thatthe. breaches constituting the offences were committed without their knowledge or that they had exercised all due diligence to prevent commissionofsuch breaches(oroffences).

3. On the above facts, and in the circumstances, initiation of onmmalactionagainstpetitioners-DLFUniversalLtd.(petitionerin I ■.C.2064/2015),MohitGujral:(peti(i0uerin Crl.M.C.2067/2015) Rajeev Talwar (petitioner in Crl.M:C.2ae6/2015), Shriram Khattar (petnionerin Crl.M.C.2160/2015).AshoKumarTyagi(petitionerin r.C.2159/2015), ■ Sudhfr '.Sahgal (petitioner in r.M.C.2158/2015),'A.M. Naik (petitioner in Crl.M.C.2069/2015); M.V.Kotwal(petitioner imGrthLe.aw/ioiS),R.Shankar Ramari ^etmonerin Crl.M.C. apd'^j^g^draRoy(petitionerin r.M.C.2071/2015) being unfoundbdf'the continuation of such proceedings againstthem would be an abuse ofthe process oflaw yterefore, their petitions-are,allowed^hnd.the proceedings against Item m the criminal complaint case(CC 55F1/14)pending in the courtoftheMetropolitanMagistrateareherebyquashed.

64. Forthe reasonssetoutabove,however,there is no case made out orthiscourtto exerciseitsinherentpowerandjurisdictionunder Section 482 Cr.P.C. to-inhibit the criminal proceedings in the a orementioned case against S.N. Subrahmanyam (petitioner in C//. A/.C. 1873/2015&connected Page53of54. I 7^ Crl.M.C.1873/2015) and K. Venkataramanan (petitioner in CrI.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 9-g[3].instth[6] said petitioners.

65 The petitions and the applications filed therewith are disposed ofin above terms. fi^r NOVEMBER 19,2018. • vk/nk/yg; Crl..M.C. 1873/2015& connected Page54of54'