K Venkataramanan v. State

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 Section 62(power to make rules) vested in the appropriate govermnent. Section,41 similarly entrusts the responsibility offraming of model rules for safety measures unto the central govermnent. Cii. M.C. 1873/2015 connected Page 13 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:-

^ representing.the employer. (2) In every establishment referred to in sub-section (1), the employer shall also appoint a safet\' officer who shall possess such qualifications and perform such duties as. may beprescribed.. ■ 44, Responsibility ofeinptoym^i^cMn emvlover shall be responsible for movidlrik.y dbmiant and, adequate supervision ofanv buildin&ef\otherJ'construction work in his establishment as to ensure compliance with the provisions ofthis Act relating to safety and for takins all practicalsteps necessaiw topreventaccidents.", ' (emphasis supplied)

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 scheine ofthe statute, a"contractor" having undertaken to carry out the construction Crl. M.C. I8~3/2015 cv connected Page 14of54 work for and on behalfofthe land owner,and also being the person who employs building workers" in such Work, also takes on the responsibilitytowardssafety and health measuresfrom thelatter. 19..For completion ofnamation, 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 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 notice of the accident was concededly given and the inquiry held.-by the concerned statutory inspectorate. -

20. The Building and Gonstmction mrkers Act also requires a piior notice ofcommencement ofbuiMin'g.or construction work to be given,the mandatory information-requisiteforsuch purposes being as indicated in thefollowing provMOnirTv -' f'-' "46. Notice ■ of commencement of building or other construction work.- ■.,. —employer shcill, 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. containiny- (a)the nome andsituation oftheplace where the building orotherconstruction workisproposedto be carriedon; CrL M.C.1873/2015&connected ■ Page15of54 (b)the nameandaddress oftheperson who is undertaking the building or other construction work;

(c) the address to which communications relating to the bidldingorotherconstruction work may besent;

(d) the nature of the work involved and the facilities, includinganyplantand 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 variousstagesofbuilding or other construction work; (s) the name and desimatmn of\the person who will be in 1^^ Q^^^<^ll charse ofthe buildihg'-'or-other construction work atthe site: ■. (h)the approximate duration dffhewi'ork; (i)such other.mattersas may be{)rescribed. (2) Where any change occursim'^any ofthe particulars ' furnished under suf-s;edtion.flfj-.-the employer shall _ intimate the chai^gefoi^iM^fmor within two days cf such change: ■!, '' 'ff-;,(3) Nothing contained in sub-section (1) shall apply in case of such class of building or other construction work as the appropriate■government may byinotification specify to be emergent worksdk ■ '' 'V;/":'-'' - ' O

21. The above-quotedprovision 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 carrying out the construction work, also vested with the authority to CrlM.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 accountablefor all acts ofcommission or omission done by such representative "incharge ofthe project" or those workingunderhiscontrol. Pertinentto add,the dutytointimate, in advance, commencement ofthe constmction work(by prescribed notice)IS not ofthe land owner but ofthe"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 ofthe powers confeiTedrupon the said authority in exercise of the powers conferred by^thdiuilding and Construction Workers Act,the lieutenant gqvernor pffhe Govt. ofNOT ofDelhi made and notified Rules whibh^arejfealjfed the. Delhi Building and Other Construction WoricWs-f^egul^bn of Employment and ConditionsofService)Rul[4].20P[2] Rules forshort).

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

24. Rules39and 42appearinthe sixth chapter(generalprovisions), lules 178 and 179in sixteenth chapter(CatchPlatfonn and Hoardings, Crl. M.C.1873/2015&connected /'oge 17of54 Chutes,SafetyBeltsand Nets),rule 196includedin nineteenth chapter (Scaffold),while rule 209forms 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:foY coYitYcivention ofpYovisions YegciYdiYig safety measuYes.-(1) WhoeveY contYaveYies the pYovisioYis ofany Yules made undev section 40 shall be punishable impYisonmentfoY^.a teYm which mayyextend to thYee months, oy with fine which may. extend to two thousand Yupees, OY with both, and inxtheycase of a continuing contYavention, with an.addition'dlfifid'which may extendto one hundred rupees for-■e^eryrddy during which such contravention continues fi ftir cpiffictionfor thefirst such contravention. _ (2) If anyperson who beipifi^pyilfied ofany offence punishable under sm^s^fijMf^^^Mgain guilty of.an ■ offence involvinga coYitYaveYition-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-'with'finewhich shall not be less thanfive hundredrupees but which may extendto two thousandrupees or withboth: 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 of the offence for M'hich theperson is subsequently beingconvicted: Providedfurther that the authority imposingthepenalty, if it is satisfied that there are exceptional circumstances CrI. M.C. 1873/2015& connected Page ISof54 warrantingsuch a course may, after recording its reasons ■ in writing, impose afine ofless thanfive hundredrupees.". 26. It is the contravention ofthe rules relating to health or safety measures which constitutesthe 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 v/hich may be tried summarily.

27. As observed above,it is the contravention ofthe provisions of the Rules on the subjectof"safetyand:health ofbidlding workers as envisaged in Section40,which ismad|;phishable. Though theDelhi Rules have been framed and nptiiedvwilh;r0renceto the rule making power confen-ed onthe appropriate pwerriment by section 62,having regard to the subjectsthat are tliereb)'covered,there can be no dispute that such rules have been framed also in exercise ofthe power under section 40. ' 28, The complainant presses the criminal prosecution against the petitioners primarily on the principle ofvicarious liability and,for.this, the provision contained in Section 53 ofthe Building and Construction Workers Act is cmcial.Itreads thus:- C?-l. M.C. 1873/2015 connected Page 19of54 o Offences by companies.-(1) Where an offence under this Act has been committed by a company, every person who,atthe time the offence vas committed, was in charore of and wasresponsible to. the companyfor the conductnf the business ofthecompany as wellas thecompany,shall be deemedto he p'uilyofthe offence andshall be liable to P^'ocsededagainstandpunishedaccordingly: Provided that nothing contained in this sub-section shall render any.such person liable to any punishment, if he proves—that.the offence M>as committed without his knowledge or that he had exercised all due diligence to preventthe commission ofsuch offence. Nothwithstandin^a.n;vthinffcontainedin subsection H) where any offence mderMfiiAetMs been committed bya. company and it is proved thatdihe offence has, been committed with the commyMsfmrdvcmce of. or is attributable to any neMect on'ydid ■wart of any director manager, secretary or other officer of the company, such director, manager, secretary Sr..other officer shall be deemedto bemiltv ofthatoffp^ni.andshallbe liable to be proceeded,againstanfpuniS:hed\acGprdingly. Pw^anation.-For the.pufposei^,(f.M^^ (a) "company" means any body corporate and includes a firm or other association ofindividuals; and (b) director", inrelaMPn,-\o'i^fj^§irfiSdns a.partner inthe firm."...

29. As washighlightedduringthe course ofhearing,not onlyby the learned counsel representing the petitioners, but also by the counsel for the State (the complainant), the afore-quotedprovision of Section is almost identical with similar provisions concerning vicarious Crl. M.C. 1873/2015 & connected n ■,n /■a Page 20 of54 i^\. liability contained in other criminallaws 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 wheretheoffenceiscommitted byacompany,in ordertoropeinany other person onthe principle ofvicarious criminalliability,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)pennits a person arraigned on the principle ofvicarious'liability to plead and show by evidence, m defence, that he,was notrresponsible either because the acts constituting the offence wereeommitte^f^lwi^ozif his knowledge"or becausehehad"exercisedall€uedld^ffc^^opreventthecommission ofsuch offence". Notwiths^Sing.^ thain provision contained in Section 53(1),the prosecutionniaj^b^hiilated against "anyDirector, Manager,Secretaryoromr>pfftddr{a0d^ ifthere isproof. availabletoshowthatthe(%ne^jy^ais.c6^i^tt "with theconsentor connivance of, or is attrihutaUf to dnf neglect on thepart of"such diiector, manager, secretary or other officer.ofthe company. While section 53(1).relies on ''de&mmg''-dy^wm ofthe person vis-a-vis the company "in-charge of" and "responsible fo", section 53(2) necessarily requires positive evidence to show active participationreflective of"consent", "connivance"or "neglect".

31. In the criminal complaint on which the impugned order of summoning has been passed, there is reference to similar fatal aecidents having occurred previously atthe projectsite in question on Crl. M.C. 1873/2015& connected, d t sc., Page 21 of54 O 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 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 contracttothe'construetfpb contractor company. Itis indicated in the complaint ^itself that -the construction contractor company had got itself registered with t|ie statutory authority ofthe appropriate government in eomplianee^,'With the requirements of Section 7. The certificate of regi^ration. describes the construction contractor company to be the "establishment" for purposes of construction of"DLFCapital GreensProject" by it,it being a project of "residential building",- the work', to be carried out during 02.01.2012 to 17.11.2014,■ its representative Mr. Surinder Mohan being the "employer"in-charge ofthe construction work at site. It is I 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 Cr/. M.C. 1873/2015 & connected Page 22 of54- ■m» "1 s V" ) 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 of the petitioners (as indeed of three others who are not before, this comt) 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. Raj'eev Talwar,-ManagingDirector, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, ^ Director of M/s. DLF Universal Ltd., Shopping Mall, 3^'^' Floor, Arjun Marg, DLF City,, Block E, DLF. Phase 1,. Sector 26A, Gurgaon, Haryana 122002 are the "Directors" and Sh: 'AM • 'Ndik, Group Executive Chairman, Sh. K. VenkataramdnUn, CEO & MD, Sh. M.V. Kotwal, Whole time Diveetpr <&,.President, Heavy Engg., Sh. S.N. Subrahmanyan, ^4iole t'pp§KDirector & Sr. EVP (Infrastructure & cdmnt^fpn); Shankar Raman, Whole time Director & 'CPOfSlfMiailendra Roy, Whole time Director & Sr. EVP (Corporate affairs &power) and Sh. Daljit Singh - Project Director, (In-charge of the construction site) of M/s. Larsen- & Toubro Ltd. are the ^ "Directors" ofM/s. Larsen & Toubro Ltd. andSh. Harish ^ ' Vaid, Manager (Indl. Relations) is the Manager of the construction site within the meaning of Section 53 of the saidAct (hereinafter called the accusedfor thepurpose of the Act, in thepresent case).

4. That on dated 17.05.14, at about 3.50 PM, an accident reportedly occurred at the construction site namely "Capital Green Projects" located at 15 Shivaji Marg Delhi-15 at tower no.14 having 21 floors. Upon, inspection ofthe 'Construction Site' on 18.5.2014 at 11.00 Or!. M.C. 1873,^2015 conmcted Page 23 of54 ■ AMandfurther investigation on 24.5.14 at 4.00PMalong with Sh.R.N.Dahiya,Director(ISH)andSh. J.N.Jain,Dy. Director (ISH)/Inspectors 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, prirna facie, it appeared on inspections that the manasement failed to ensure adequate site management as envisaged in the provisions of the Building and. other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the DelhiBuilding and other Construction Workers (Regulation ofEmploymeht and Conditions of Service) Rules, 2002. Manasement had, not taken all appropriate measures as per Me said Act and Rules framed thereunder to prevent accidents at building site of suchproportion and maghitude.

6. Thatthere have been.5fataPaccidents resulting into loss oflives of[5] workerk in the rec'ent.past, at the same site. But, it is clear that they ha'd not learnt any lessons out of previous series ofJatal accidents. Apart from notices, a prohibitory order,was also issued to.them to stop.the construction work of entire site till complete/full compliances ofall the safet\! provisions as mentioned in the said Actand Rulesframes thereunder as applicable on the construction site ofthis magnitude were made.

7. That,further, repeated deaths clearly pointed to rieslect and commissions & omissions and lack of due diligence towards all aspects of human lives, safety and welfare at their site as envisaged,in the said.Actand Rules framed thereunder.

8. That diming the course of inspection and, investigation, the followins breach ofthe provisions ofthe- "saidRules"read with the "saidAct"were observed:- Crl..M.C. 1873/2015& conmclecl ■ • Page24of54 r That the workers working at height were not vrovided 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 179 ofthesaidRules.

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 ofthe provisions of Rule 196 of the said Rides.

IV. That more than.500; he.;;2700 workers were ordinarily employed at the consfruction site but Safety Officers as per qualification dtid condition ofservice,as laid down in Schedule VIII ofthe said Rules had not been appointed, in conti'-aventiort-of-the.provisions ofRule 209 ofthe saidRules read withSectim§8ofthesaid Act.

V. That the mandgemehtsyhmednQt implemented their

9. That the above accused persons are thus suilty of contravening the..provisions of Rules 39,42,178,179,196 and 209 ofthe said.Rules..read wlfipSeptions 38,40 and 53 ■ ofthe said Act which is'punishable 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, 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 fomi/reports dated 18.05.2014 and 24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, leply dated 18.06.2014 ofthe land owner company and replies dated 04.06.2014,17.06.2014 and.04.08.2014 ofthe construction contractor company. The reply dated 17.06.2014 ofthe constmction contractor company,inturn,refeiTedtoletters dated20.05.2014,03.06.2014,and 25.04.2013 and health and safety pfrlihy,,as communicated vide letter 25.04.2013..As mentioned,earlier, pursuant to the directions issued, by order dated 24.09.2018, thb complainant has filed the / counter-reply dated 28.09.2018. In this reply, the exchange of the abovesaid correspondence, reliance- wiereupon is made by the petitioners,has been aclmowledgpd.;.:

36. The docuinents in is no dispute, upon perusal,show thatthe land ownercompany had entered into a.contract on 29.03.2012 with. the cpnstriiQtion contractor company. ^ Concededly,the general conditions ofthe said contract,asform part of its third annexure, clearly reveal that the construction contractor company had taken over the entire responsibility for every aspect of constrtiction including safety compliances,liability towards insurance and labour laws.The following stipulations in the contract.needto be extiacted for confirmation ofthe above aspect:- I "79.0SAFETYPROCEDURE Cti. M.C. 1873/201-5&connected d i/- re, Page 26oj54 I ' The contractor shall incorporate in his operations the requirements ofall the 'Safety Codes' issued by the Bureau ofIndian Standards andprovisions ofthe National Building Code ofIndia 2005 including any aTnendments 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 except where the regulations ofthe localauthority require more stringent measures to be taken. Where the requirements ofBISCodes and/orNationalBuilding Code, theBuildingand Other Construction Workers(Regulations ofEmployment and Conditions ofServices)Act, 1996 are duplicated bythe localregulations orthe "SafetyManual" provided by the Owner,-, the-more.,stringent of these regulationsshall be demned.tO;aq^. The Safety Manual provided by the Owner is onlyifffestive and shall not castany liability on theiOWneffTf' The contractor moy.ide<safe means ofaccess to. all working places..C'l K. The contractor-::sMl -^CsMelv responsible for proper desisn of IheKscaj^ldmgk-itemDorarv accesses, ladders and ramps..formwhr1Npnd> h:Qistin[2] arrangements. ■ cranes etc. to ensure'sMtv-oNMorkmen as well as:the works. Allscaffolds, ladders and other safety devices shall be maintained in safe conditions. Only.tubular ficnffnldima shall be used..''-W i-- ■f All necessary personal safety/protective eauipment first aid kit, medically trained personal, fully equipped ambulance and anv other facilities as per the statutory requirements should be always available on the site for —Th^ contractor shall take adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personnelarid^yorkers. 79.[5] Adequate precautions shall be taken to prevent dangerfrom,electricalequipment. Crl.M.C. 1873/2015&connected. Page27of54 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 contr'actor shall notify the engineer immediatelv ofany occurrence ofmishaps or accidents that results in death or injury (including grievous injury) as defined in ihe Indian Penal Code. Such Initial notifi-cation may be verbal and confirmed in writing.'thereafter and shall be followed by a comprehensive y^iritfen-report within 24 hrs of the occurrence/incident.^ TheNcontractor shall duly complete standardforipsfis.reqUirfd by the engineer and ■ statutory authorities. f.f f 79.[9] It is made cledf.'tBdi th$'ifontractor alone as the Principal Emnloveri:Is'- ans4vef^l^7'-a^ liable to all investisatinsand legdhafipiihifiefMMudins CourtofLaw and the Owner shall not have any part or liability in this resard. The Contractor alone shall be responsible and. liable to compensate the. victims--immediately on the ^ occurrence ofthe mishaps or accidents and also protect w and indemnify and hold harmless the owner, the engineer. and allpersons.who may be associated with or connected with the OMmer or the engineer and to reimburse all legal andfinancialcosts, ifincurred, by the them in this regard.

79.10 All consequences, damazes or losses arisins by reason ofany violation ofthe safety requirements residtinsin any injuiy or loss,oflife to the contactor's or any sub contractor's Emplovees/Staff/personneland. Workers/Third Party (non-fatal/fatal) shall be met bv the contractor who Crl. M.C. 1873/2015& connected Page28of54 alone will be responsible for handling and disposal ofthe accidental cases with Governinent/non-Government authorities.. The Conti^actor shall be hound■ to pay compensation to the personsfor the injuries sustained or death owing to neglectofthesafetyprecautionsshouldany claim proceedings he filed against the owner/engineer. The contractor hereby agrees to indemnijy 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 thesame before,all authorities.

79.11 Within one week of commencement date, the contractor shall submit:4d.the-[ehsineer, a detailed and comprehensive contract shall: subihit 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 olan.shall ificlMe detailed policies, procedures and resulatiohsmhich.:when implemented will ensure safety ofall the persons, including thirdparties on or in the vicinity ofthe site (inplu'ding without limitation persons to whom acceksTdtUefilpihas been allowed by the contractor): The cmtrddtor' time to time as necessary, producei^i!ipple^nisktoi^.-sitesafetyplan Such that it is at all times 'd'detdiltd, comprehensive and contemporaneous statement by the conp-actor of his site safety and industrial health, obligations:, responsibilities, policies and procedure fLinder 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 safet)> 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. 1873/2015 & connected Page29of54 contractor shall adhere to the Site Safety Plan and shall ensure that all sub-contractors ofall tiers hnvp. gopyoftheSiteSafety plnn m^rlcomvlv with its provisinyi.'^ — shall avDoint a qualified and experip.no.P.d person as Site SqMv'Officer to act m Mgnggrer ofthp. Sgjety Plan and who m?W be resvonsihlp. for all safety matteryrelated to the works. The contractor shalf P-nn. jtmejp time, provide such other nersonyiel ny,r] as may be requiredto ensure effective operation ofthe Site mety^m- The said Site Safety Officer shall submit regular safety reports to the Engineer in accordance with therequirementsoftheEngineerandallrelevantstatutoiy authorities,. as required by Applicable laws and regulations. ^ The contractor shall submit on a monthly basis a Certificate ofCompliancefor Health, Safety and Environmentasgiven inAppendix-"M"." ■ (emphasis supplied)

37. It appearsthatin the waicepfthe fathl incidentthat occurred on 28.02.2013(death ofMaqbool)iatthe,same verysite,prohibitoryorder followed by revocation order,;had beenyi'ssued on 01.03.2013 and 08.03.2013. Against the 4aid bac]c|r(i)pj|t]ieconstruction contractor company had taken steps for'|^ih^:^he(safety audit ofthe project done. An audit report dated 03.04.2013 was submitted to the authorities by the said company•underrthe cover of its letter dated 25.04.2013. Referenceto thesaid auditreportandthe correspondence exchanged in such regard was made by the constmction contractor company in its letter dated 17.06.2014, which is part ofthe.material that was submitted with the criminal complaint leading to the impugned order being passed. In thereply 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 Crl.M.C.1873/2015&connected Page30of54 report in respect ofthe safety measures that had been adopted by the managementofthe said companyand,in yiew ofsuch auditreport,the construction work was allowed to be resumed.

38. As noted earlier, it is admitted case even for the complainant thatintermsoftheintimationsthathadbeen given,Mr.DaljeetSingh, the Project 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 ofthe Building and Construction Workers Act. As also noted.earlier, both the said accused persons have notchallenged the.summoning order; •. ■,1, ■

39. It was also brought orh^tong.the-fturse ofhearing that at the time ofinspection(s),leadinghd inspedtioh reports dated 18.05.2014, 24.05.2014 being prepared,if^wl^^hAiB^petSingh,who wasfound asthepersoninchargeoftl^site§;fe^^l^;^ thecomplaiiiant's officers in such,inspection'at#efke;N5?^ report, prepared on inspection carried out;in the forenoon of 18.05.2014, is the most ciucial inspection reportfor purposes ofthe.case arising out of the incident that occultedin the afternoon of 17.05.2014. It concededly noted, vis-a-vis the requirements of Rules 142, 178 and 179 that Personal Fall Arrest System (PFAS) and safety, belts had been aiTanged but not provided.to the workem. 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 Crl. A^.C. 1873/2015&connected ■. Page31of54 Rule 39 had been formulated, the breach of the statutoiy rules was noted for the reason such policy had not been submitted for..approval. The report, atthe same time,confirmed that the inspecting officer had found and verified that safety committee and emergency action plan in tenns ofRules 208 and 36 respectively/were in position,the breach of Rule 209,however,being inferred for the reason qualifications ofthe- "safety officer" were not shown. In the brief note of the concluding part ofthis report,it was further observed that the temporary platform from where the worker had fallen did not have the provision of toe board or guard rail.. The inspection report dated 24.05.2014 is in continuation of the report dated l'8>OS^201-4 and mainly noted that Ankit Kumar(the deceased wo.fkef)'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 pointoftime.

40. Pursuant to the inquiries which were raised in the wake ofthe fatal incident of 17.05.2014,the construction contractor company had admittedly sent various letters ihcluding letters dated 20.05.2014 and 03.06.2014 followed by another dated 17.06.2014,the last referring to the previous coiTCSpondence,.which cohcededly 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 haying been confirmed by the safety audit report of May,2014, Crl. M.C. 1873/2015 & connecled, •. 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

^ b). L&T has provided personal protective Equipment to all yvorkefs ah'd/its- usage is enforced prior to construction'site entry.', c). The woiLerd ■are.hfiifed about the hazards involved in partipyilar activity before start of the d). L&T has protected thf-floor edge with hard barricades. ■: e). L&Thasprotected allo'penings, cutouts with reinforcement f. L&Thas closed all liftshafts with gates. g). Sc^otyp0chlhpts,areyproy^ below 6 m of live workingfloor around p'" iriphery to preventfall ofmaterials and men. h). All plants and machineries are fitted with safety device and are frequently inspected and testedforsafety compliance. i). Allelectricalconnections are routed through RCCB, MCB and at source through ELR to avoid any electrocution and overloadprotection.

3. - Medicaland otherfacilities Crl M.C. 1873/2015& connected ■. Page 33 of54 a). Round the clock ambulance and first aid facilitiesprovidedatsite. b). Well maintained canteen atsite and workers habitatarea^ c). Continuous waterfacilitiesfor drinking and sanitationfacilities. d). Mobile toijets at various places at site and permanent sanitation facilities in workers habitat area. N 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 eyitensivet:survey / checking at site, submitted its report. The.relevant excerpts ofthe reports are as under: /•'.v a). M/s.'L&T'had pb^yMed adequate no. of Safety Officers td\ fealiM>i:th the requirements of safety mcmagerheiqfmJUfMc^ There is proper work distributipn aipQH^sfimese.Safety Officers to preventclash injresfphsM^^ b). The owner had a'ppointed expert consultant organization M/s. Turner, who has appointed NEBSOHqualified.Safety Officers. ■ c) -work at Height permit: In Indian Constructionmajority 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 providedandsafe workplace like scaffolds exists there. This system is provided by L&T as shown to the Auditors. '.. Crl. M.C. 1873/2015.&connected Page34of54 d)PersonalProtective Eqiiipm.ents e, The use.ofsafety helmet,by all the construction worker's was almost 100%. ® The use of safety belts by those who yvere 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 numerpuslifting equipments and tackles. The safe use' of one lifting equipment was checked. It wasfound that the operptor was duly trained and the operator andfkiesignaler were understanding,the signals very well ', • ' f HazardscfWorldhgat::Height L&Thadtaken thefdllpwmgmbasures topreventfallof workersfrom height:. V /' ® All the werefound covered with bar nMUUfMdkP © All the floor edges were suitably fenced with appropriate handrails. ® The stairs yvere cleanedforpreyention 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 Crl. M.C. 1873/2015 & connected k_J. 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 Gorporate liability and vicarious criminal liability of those connected to a corporate body have come up in the past before the courts in the context of similar provisions contained in various statutes including.Section 141. of the Negotiable Instruments Act, 1,881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs, and Cosmetics.-Act, 1940 (for short,• "Drugs ■ Act"); Section 17(1) of the Pfeventibh^ofeli^^ 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 CharteredBank & Ors V5'. 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 J 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 isfrequently-directed'against any "person" who commits theprohihited.ae'fMhd^^ many statutes the term "person" is defhedl. person is not specifically defined, itpeaessanly vheludes a corporation. It is usually construedtd'tncludk-fi icorporation so as to bring it within theprohibition ifptfib statute andsubject it topunishment In mofififfl0iStqtft0:i-the word "person" is defined to includeficoipprdfiofift:. Inasmuch as all criminal and quasi-criminal offences are creatures ofstatute, the amenability ofthe corporation to prosecution necessarily ■depends 'Upon the terminology ■ employed in the statute. In the case ofstrict liability, the terminology^ employed by the legislature is such as to reveal an intent'that guilt shall not be predicated upon. the automatic breach- of the statute but on the establishment of the actus reus, subject to the defence of due diligence. The law isprimarily based on the terms- of the statutes. In the case of absolute liability where the. legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutoryprohibition, noparticular state ofmind is a Crl. Ivl.C. 1873/2015 & connected Page,37 of54 prerequisite to guilt. Corporations and individual persons stand oh the samefooting in theface of.such a statutory offence. It is a case of automatic primary responsihilit)'. 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 thihg is so clearly within the mischief that it must have been intended tO'be included and would have been included ifthought of:M'lpena.1provisionslike all other statutes are to befairly construed according to the legislative intentas.expressed in the enactment.".

43. By virtue, inter a/za, of -the registration, dated 22.02.2012 granted to the constructions contractor company by the respondent under Section 7 of the Building and Construction Workers'Act, the complainant was privy to the above-said contractual an-angement visa-vis the project in question.b^twden the-iand owner company and the construction contractor company.

44. It is vivid from bare perusal ofthe provisions of the 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 on the responsibility for all compliances to be made by the construction contractor company in terms of the { '. Crl. M.C. 1873/2015'& connected ' Page380/54 J t, 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. Underthe law,it is. the construction contractor company which,inthe present case,is 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 larid pinner company nor those incharge of or responsible to the condfet. of its business can be prosecuted for the offence mhder Section 47 of the Building and Construction Workers Act on the facts set out inthe complaintfrom which the present petitions arise.,

45. • The case againstthe constructioiic^ractorcompany 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 scmtiny separately. ■ ■ 46. InMunicipalCorporationofDelhivs.Ram KishanRohtagiand Ors.,(1983)1 SCCI,while dealing with the applicability ofSection 17(1)ofPFA Act,theSupremeCourtobserved asunder.- "15.SofarastheManagerisconcerned,wearesatisfied thatfrom the ver^> nature_ofhis duties_iLcM-J^^.^ inferred that he. would mdouhtedly_bewiariously ham fnr the offence;vicarious liability,beingan incidentofan ■ ■ Page 39of54 ' Crl. M.C. 1873/2015 &'connected,4??^ 47 c. offence under the Art. 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 presumptipn drawn by the complainant, that there is nnv act committed:bv the Directorsfrom which a reasnnnhl^ inference can be drawn that thev could also ■ vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (Accused 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings againstthem wererightlyquashed. Following the aforesaid nllmg; in construing the effeet of Section34oftheDrugsActinadecisisnvrepoitedasStateofHaryana vs.BrijLaiUittalandOrs..(1998)SSCC343,it washeldthus:- ! ' " j 8...the vicarious, liability of a person for being prosecutedfor an offence committed under the Act by a ' companyarisesifatthe materialtim.e he wn.,ir,nhn.tr.of and was also responsible to the companyforthe cond.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 bein^a director a person cnr, m ofandresponsible to the com.pnm;fnr th. VL' y bminess,. 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 com.panyandalso responsible to the companyforthe conductofits business." Crl. M.C. 187.3/2015& connected- Page40of54 48..Thecounselforthe petitioners haveplaced reliance onNational SmallIndustriesCorpn.Ltd.vs.HanneetSinghPaintal,(2010)3SCC 330 and Pooja Ravinder.Devidasani vs. State ofMaharashtra and Anr.,(2014)16see[1] both dealing with issues ofvicai-ious liability under the Negotiable Instruments Act. In NationalSmallIndustries Coipn.Ltd.(supra),it was observed thus:- ^ provision creating vicarious liability, and which, asper settled law, must be strictly construed It is therefore, notsufficient to m.ake>. n hnU curspiy.statement in - a complaint thm the Director (arrayed as an accused)djjncharge ofand respnnNihl. tPjhe companyfor th^fconduct ofthe business ofthe company without anything more,as to the role of the Director. But the complamUhpuld smll out a.N tn hn..oMjnwhgt manner RespondentDwon m charge ofor theuf^ed^GompariyforihiT^t j IS business. This is 'in fconsonance with strict interpretation ofpenal.,sfmth ^Jsoeciallv. whpr4> such staiutes create vicario.usdiiibili^i'^if' ■

14. A company tii^-'h4vff)d.ntit#ier ofDirectors and to make any or all MlvmSiSs as accused in a complaintmerelyonthebasisofastatementthattheyare m charge of and responsiblefor the conduct of.the business of the company without'anything more is nota sufficient or adequate fulfilment of the requirements ' under Section 141. 1 ^3

49. In PoojaRavinderDevidasani(supra)while obser\-ingthat"a director of a company is liable to be convictedfor an offence committed by the company ifhe/she was in charge ofand was re.wonsible to the companyforthe conductofits business or ifit is Crl. M.C. 1873/2015 ti connected •.. ■, Page 41 of54 L" 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"z« 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. While examining similar questions vis-a-vis Section 33 of Insecticides Act, in judgment reported as State ofNCT ofDelhi Rajiv.Khurana,(2010)

II SCC 469, talcing note ofthe law which-has developed primarily in the context of Section 141 of Negotiable Instruments Act,it was held thug:- "

17. The ratio ofall thesefiases 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 conduct of 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 responsibilities in the conductofbusiness ofthe company and how and in M>hat manner he is responsible or liable."

51. Reliance has also been placed on the decision ofthe Supreme Court reported as S.M.S. Pharmaceuticals Ltd. v.?. Neeta Bhalla, Crl. M.C.1873/2015& connected Page 42of54 (2005)8see 89; Gunmala Sales vs. Ann Mehta,(2015) I See 103 andStandard eharteredBank vs. StateofMaharashtra,(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 ElJaoitni, 2018 SeeOnline Del10030this Court culled outthe settled law as under:- "14. The guiding principles with reference to Section 141 ofthe Negotiable Instruments Act, 1881, which are. now well settled by judicialpronouncements, some of which have been noted above, may be summarised thus:—..

(i) It is onlv 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;

(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 clearly resvonsiblefor the incriminating act and would be liable to be proceededagainstunderSection 141(2); (Hi) By virtue of the office they hold, the persons working in the cavacity of the Manasino: Director or Joint Manasms Director are deemed to be in charge of, and responsible for the conductofthe business of, the company and,therefore, can beproceeded againsiinterms ofSection 141; Crl. M.C. 1873/2015& connected ' Page43of54

(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 holdinssuch 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 2iyen in the complaint about his role, this beinssubjecttoproofatthe trial; (yi) Theperson who has been summoned as an accusedfor offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis ofayerment 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 CrI. M.C. 1873/2015& connected '. ' Page44of54 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 tidal 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 where the fatal accident'took place but was also responsible for arranging all the prescribed safety measured under the Rules. Section 47read with Section 53 oftheBuilding and Construction Workers Act thus creates a coiporate criminakliability againstthe said company and I by virtue ofthe principles ofviearious%jffiiinal liability, every person who,atthe time when the sMdipffe^^ was in-charge of, and was responsible.t4': for the conduct of its business, as well as the noihpanyt'"3ife to be liable to be proceeded against. Just as in the case of Section 141 of Negotiable 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 saine time, however, merely because a person is a "director" ofthe company is CrI. M.C. 1873/2015 & connected ■ Page 45 of54 u ■ < 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 complaintthat the person soughtto 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 be given" in the'complaint about his role, this being subject matter ofproofto be adduced atthe trial.

53. In the considered view ofthis C.ouif,the words"for the conduct of the business of the company" appear|hg 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 of•omission'Constituting the offence under Section 47 ofthe Building'and Constructijbh'Workers Act. After all, it is the status ofbeing"in-charge of or being"responsible" for such business of the corhpany that exposes the individual■ to yicarious criminal liability. Ifthe act-ofcommission of omission is attributable to the neglect ofthe person or on account of his "connivance" or for that matter, with his "consent",sub-section(2)of Section 53 directly attracts the application of penal provision. For the deeming clause contained in sub-section(1)ofSection 53 to kick in,there has to be a nexus between the area ofresponsibility ofthe person concerned, on one hand, and the act of commission or omission leading to the Crl. M.C. 18'73/2015& connected.Page 46of54 contravention of the rules under Section 40, on the other. 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 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 not he was expected to play any specific role or discharge responsibilityfowards a specific rule,atthe stage whenits breach hasledtothefatality,orseriousincident. 54, A different approach tilia.Tii the,;one',;iabove to the subject ihight lead to unjust results.' This';nnay|;5fe,4'',illustrated by two simple examples. As noted earten-feer^^ {establishment)As duty bound, in terms of Secti0n:;4|(lj§)i intimation, prior to commencement ofthe building-or.other construction work, as to the name and designation ofthe person who will be in overallcharge, of ^ the building or such construction WOrkXif-Saying regard to the scheme of the enactment and the rules framed thereunder,, the employer {establishment)is also responsible toframe a safetypolicy (rule39) and also to appoint and deploy a''safety officer"(rule 209). Ifthe breach relates to default in fi-aming 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.]873/2015& connected Page47of54 "construction work at site'^ cannot be held accountable. After ail, 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)theyhaving.'notinsured the safety equipment to be availed ofby the workers,,the fonhef(those responsible for the conduct of the business at the higher levels) cannot be held accountable underthe deemingprovisiqm.r. ■

55. It is the argtmiea^/so-r^)^vi)i^^||Mers connected to the construction contractor comphhy vi^r, A M Naik (Cii.M.C. 2069/2015), K Venkatramanan (Cii.M.C. 2068/2015), M V Kotwal (Crl.M.C 2070/2015), S.N. Subrahma5am{Crl.M.C. 1873/2015),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 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 ■ 1... Crl. M.C. 1873/2015& connected Page48 of54 Director and Harish Vaid,Manager(Industrial Relations). It is further their argumentthatit is not correcttO'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 jfrom where he felltothe ground to snffermdilal injuries..

56. The copy ofthe sub-GqntkGt,,:.a&;sh(3\vn atthe hearing eannotbe treated (without proper proof)" as..apthentie or ''incontrovertible material" or as one exonerating the GonsfruGtion GontraGtor Gompany of its entire responsibility in the'unatter^'partiGularly in view of its continued responsibility ofthe sub-contractor as per clause 79.13 ofthe Gontract'dated'29.03.2012, referred to earlier. The argument based on the sub-eontract. entered upon by the construction contrpetor Gohipaiiy;V/'ith&immediate 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)3see230]. CrLM.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 supervisory persomiei 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 infrastructure, metallurgical & material handling, powertransmission and distribution,hydrocarbon engineering,valves, alloys,power development,infotecli,fmaince,construction and mining machinery etc. -

58. The complainton which the suihmpning order was passed itself describes Mr. A.M.-Naik, petitioner in Crl.M.C.2069/2015 to be the Group Executive Chairmaft'.-o£.=^p-^ contractor company. Similarly,the description ofMr.'M.V.ICotWal,Mr.R.ShankarRaman 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 (Coiporate 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-50'of54 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 (petitioner in Crl.M.C.1873/2015) had no connection with the obligations of the establishment.of the "emp/oyer" (cohstmction contractor company) towards compliances ofthe Building:,and'Construction Workers Act or u_ - • • ' the rules framed-thereunder. These petitioners do not dispute that at, the time ofalleged commission ofthe^offence under Section 47 ofthe Building and Construction Workers Act,.-they were working for the constmction contractor company;in the,c^'Jacity ofCEO& Managing Director and whole-time Diiff ^61piio'r^Executive Vice President. (Inlfastructure&Construction)j^p^iy^l|^^^^ '

60. The very description of, the port-folios they held and the responsibilities that woiild entaihtherefrpm,.^7jz7^ shows thatthe allegations in the criminal complaint as tb'their deemed liability under Section 53 cannot be said to be unfounded,notthe least withouttrial.

61. There is merit in the argument ofthe last two above-mentioned petitioners that given the positions held by them in the company,they could not be expected to remain present at the construction work site to ensure due compliances to be made with rules 42, 178, 179 or 196 read with Section 38 ofthe Building and 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 aiTCst systems. But then, it cannot be ignored thatin(eighth para,of)the complaint(extracted earlier),there are also allegations of breach 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 of the Building,and Construction Workers Act. These two specific areas cannot,by any stretch of arguments, be relegated to the domain ofthe managerial staff(^/h^ Daljit Singh and Mr. Harish Vaid) made in-charge ofthe construction site. '. • ?/

62. The above petitioners,however,'afsp.raise the defence based on the two safety auditreports,onfdated,03^04.2013 and the other dated 24-25.05.2014. It would be a subjecf matter offactual inquiiy as to whether the safety audit report;submitted on 25.04.2014, obtained afterthe fatal accidentsin question,can be.-treated as onerepresenting the correct position prevailing' at the time of commission of the offence. Further,it would be the onus ofthe defence to show thatthe certification by audit report 03.04.2013 would hold goqd till date of 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 notin position they having not been appointed in terms ofthe obligation ofthe construction contractor company under rule 209 read with Section 38 of the Building and Construction Woikers Act. Since this area v/ould fall prima facie within the Cri M.C. 1873/2015& connected domain ofthe responsibilitiesheld by petitioners K.Venlcataramanan andS.N.Subrahmanyam,theyareliabletobeproceededagainstunder the deeming clause ofSection 53. At the trial,they would have the opportunity, in terms ofproviso to Section 53(1), to prove that the breaches constituting the offences, were committed without their Icnowledge or that they had exercised all due diligence to prevent commissionofsuch breaches(oroffences).

63. On the above facts, and in the circumstances, initiation of criminal action againstpetitioners-&hFUniversalLtd.(petitionerin Crl.M.C.2064/2015),MohitGujraL(petifi0nerin Crl.M.C.2067/20I[5]), Rajeev Taiwan (petitioner in Crl.M:C.2066/2O15), Shriram Khattar (petitioner in Crl.M.C.2160/2015).AsholCKumarTyagi(petitioner in Crl.M.C.2159/2015). • Sudhif Sahgal ' (petitioner in Crl.M.C.2158/2015), A.M. Nailt(petitioher in Crl.M.C.2069/2015), M.V.Kotwal(petitioner in,;&lpG.-20.?fi/2O15), R.Shankar Raman (petitioner in CrI.M.C. ^0^(Petitioner in CrI.M.C.2071/2015) being •unToundddHhe continuation of such proceedmgs against thepi would be an abuse ofthe process oflaw. Therefore, their petitions are.alfawedt-aad.the proceedings against them m the criminal complaint case(CC 55F1/14) pending in the courtofthe Metropolitan Magisti'ate arehereby quashed.

64. For the reasons set out above,however,there is no case made outforthis courtto exercise itsinherentpowerandjurisdiction 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 Rage53of54 Cv Crl.M.C.1873/20I[5]) and K. Venkataramanan (petitioner in Crl.M.C.2068/20I[5]). Intheconsequence,thesaidpetitionsarehereby dismissed. It must, however, be added that nothing stated above would betreated as final expression ofopinion on merits ofthe,case againstthe said petitioners.

65. The petitions and the applications filed therewith are disposed ofin above terms.. ■ /yi^ (R.K.GA NOVEMBER19,2018. ■.'V-,, JUDGE vk/nlo^yg ■, A) C.H..M.C. 1873/2015& connected ' n j-cj Page54 oj54-