A M Naik v. State & Ors.

15. The seventh chapter {"safety and health measures")is what is crucial to the present case,. It,.e,pnfers,Vy,.Section 40, power on the appropiiate govermnent to make rules for the safety and health of building woikeis,therules envisaged whereby do also cover,persub- Section(2)the following;- "(a) the safe means ofaccess,to, and the safety of any working place, including the provision of suitable and sufficient scaffoldings at various stages when work cannot be safely donefrom the ground orfrom any part ofa buildingorfrom aladderorsuch other meansofsupport; Crl. M.C.1873/2015&connected 12of54 C (e) the erection, installation, use and maintenance of hoists, lifting aDvliances and liftins sear includins periodical testing and examination and heat treatment where necessary, precautions to he taken while raising or lowering loads, restrictions on carriage ofpersons and appointmentofcompetentpersons on hoists or other lifting appliances; (o)the keevinsofsafety nets, safety sheets andsafety belts where the special nature or the circumstances of work render them necessaryfor thesafety ofthe workers; (p) the standards to be complied with regard to scaffolding, ladders and stairs,-, lifting appliances, ropes, chains and accessories,, earth-moving equipments and floating operationalequipments; (r) the safety policy, that is tofay,-a policy relating to steps to be taken to ensme and health of the building workers, the administrative arransements therefor and the matters connected therewith, to beframed by the employers and contractors,for the operations to be carried on in a building or.other'-pdnmy'uction work: (u) any other matter,coiieermnsiihielsafety and health of workers working in dhy.c>0Md^^^^ being carried on in a bililding or other construetidn work." (emphasis supplied)

16. This power to make rules specific"to the subject of "rulesfor safety-and health ofbuilding workers"is to be read with the general provision contained in Section 62(power to make rules)vested in the appropriate government. Section 41 similarly entrusts the responsibility offraming ofmodel rules for safety measures unto the central government. Crl. M.C. 1873/2015 & connected '

17. There are two specific provisions of the Building and Construction Workers Act as spell out "responsibility of the employer" vis-a-vis the statutory command for "safety and health measures"to be putin position.They read thus:- "38. Safety Committee and safety officers.-(1) In every establishment wherein five hundred or more building workers are ordinarily employed, the employer shall constitute a Safety Committee consisting ofsuch number of representatives ofthe employer and the building workers as may beprescribed by the State Government: Provided that the number of persons representing the workers, shall, in no case, be less than the persons representing the employer. (2) In every establishment referred to in sub-section (]), the employer shall also appoint a safety officer who shall possess such qualifications and perform such duties as may beprescribed.

44. Responsibility of empioverf.r-.y.An employer shall be responsible for providiris.,, constant and, adequate supervision ofany kmldinstpr ■ojhepponstriiction work in his establishment as to ensure- compliance with the provisions of this Act relating to safety and for takins all practical steps necessary to prevent accidents. "

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 of a "safety committee" and a "safety officer". Havingregard to the scheme of the statute, a "contractor" having undertaken to carry out the construction Oi. M.C. 1873/2015 & connected Page 14 of54 work for and on behalfofthe land owner,and also being the person who "employs building workers" in such work, also takes on the responsibilitytowards safety and health measuresfrom the latter. 19, For completion of naiTation, it rday be added that Section 39 casts a duty on "the employer" to give notice, in the mtoer 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 inq^uiry held^^'hy the concerned statutory inspectorate. - " V i' ■ I -

20. The Building and Construction,porkers Act also requires a piioi notice ofcommencement,of•bui'lding;or construction work to be given,the mandatory information requisite for such purposes being as indicated in the following pr.ovisiOmriV>:^.-ff \ "46. Notice of commencement of building or other construction worltr (V An employer shall, at least thirty days before the commencementofany buildinsor other construction work, 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 containing- (a)the name andsituation oftheplace where the building or other construction work isproposed to be carriedon; Crl. M.C.1873/2015& connected Page 15of54 (b)the name and address ofthe person who is undertaking the building or other construction work;

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

(d) the nature of the work involved and the facilities, including anyplantand machinery,provided; (e) the arrangementsfor the storage ofexplosives, ifany, to be used in the building or other construction work; (f) the number ofworkers likely to be employed during the various stages ofbuilding or other construction work; (g) the name and desisnation ofthe person who will be in overall charse ofthe buifdihg-or'other construction work at the site;, (h)the approximate dimation ofibhemork; (i)such other matters as may beprescribed. (2) Where any change occurs;,in'any of the particulars furnished under sub-section.'(1)., ■.-the employer shall intimate the change.to theilhspfpior within two days of such change. ■.-v•,' '"C"' (3) Nothing contained in sub-section (1) shall apply in case ofsuch class ofbuilding or other construction work as the appropriate Government may by notification specify to be emergentworks-.-". ■ '

21. The above-quoted provision only re-inforces the conclusion that the responsibility towards due compliances with health and safety measures prescribed by the law and rules framed thereunder is primarily of the "employer", a person engaged as "a contractor" for carrying out the construction work, also vested with the authority to Crl. M.C. 1873/2015& connected Page 16of54 employ building workers being the "employer". The person deputed as"one in overall charge"is the representative of"the employer",the employer being answerable and accountable for all acts ofcommission or omission done by such representative "incharge ofthe project" or those working underhiscontrol. Pertinentto add,the dutyto intimate, in advance, commencement ofthe construction work(by prescribed notice)is not otthe land owner but ofthe"employer",such statutoiy notice requiring it to be specified, amongst others, the particulars of the person who would be accountable in the capacity ofhe being "in overall charge".

22. In exercise ofthe powers-confeiie.drupon the said authority in exercise of the powers conferred byM^fBuilding and Construction Workers Act, the lieutenant gqvernor pf'fhe Govt. of NOT ofDelhi made and notified Rules which.grej^califcd the Delhi Building and Other. Construction Wodcers-ygiegd^ of Employment and Conditions ofService)Rulbs.20i22 Rules forshort).

23. The criminal complaint (from which the present proceedings arise) refers specifically,to breach of rules ■39 (Health and safety policy), rule 42 (Slipping, tripping, cutting, drowning and falling hazards),rule 178(Safety beltand its use),mle 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. Rules 39 and 42appearin the sixth chapter(general provisions), rules 178 and 179in sixteenth chapter(Catch Platform and Hoardings, Cd. M.C.1873/2015& connected Page 17of54 Chutes,Safety Belts and Nets),rule 196.included in nineteenth chapter (Scaffold), while rule 209 forms part ofthe provisions oftwenty-first chapter(Safety Organization).

25. The offence to answer which the petitioners, and three others, have been summoned by the Metropolitan Magistrate is defined and provided for in Section 47 ofthe Building and Construction Workers Act as under "47. Penalty for contravention ofprovisions regarding safety^ measures.- (1) Whoever contravenes the provisions ofany rules made under section 40 shall be punishable with imprisonmentfor a term which may extend to three months, or with fine which m:ay extend to two thousand rupees, or with both, and in.'the.case of a continuing contravention, with an'additidndlfihdwhich may extend to one hundred rupees for everyi-day during which such contravention continues pfter opnytctionfor thefirst such contravention:. (2)Ifany person who hdk'beeifbcppvicted ofany offence punishable under sitb-sepfipWfiffi^t'again guilty of an ojfence involving a contravention'orfailure ofcompliance ■ of the same provision, he shall be punishable on a subsequent conviction with imprisonmentfor a term which may extend to six months,or-withfme. which shall not be less thanfive hundred rupees but which may extend to two thousand rupees or with,both: Provided that for the purposes of this sub-section, no cognizance shall be taken of any conviction made more than two years before the commission ofthe offencefor which theperson issubsequently being convicted: Providedfurther that the authority imposing thepenalty, if it is satisfied that there are exceptional circumstances CrI. M.C. 1873/2015& connected Page IS of54 warranting such a course may, after recording its reasons in writing, impose afine ofless thanfive hundredrupees."

26. It is the contravention ofthe mies relating to health or safety measures which constitutes the offence provided by Section 47quoted above,and for this, mens rea i.e.the intention to committhe breach of the rules or abetment thereof on the part ofthe person sought to be prosecuted is pre-requisite. The case at hand is not one ofany ofthe accused having been previously convicted for such offence and, therefore,the enhanced punishment is not attracted. Having regard'to the punishment prescribed, the criminal case comes up before the court of Metropolitan Magistrate as one which may'be tried - summarily., ■ 2/. As observed above, it is the contravention ofthe provisions of the Rules on the subjectof''safety and:health ofbuilding workers", as envisaged in Section 40,which|s-made-pquishable^ Though the Delhi ' • "■ '• li' Rules have been framed and notiiedvwith.reference to the rule making power conferred on the appropBate'government by section 62, having regard to the subjects that are thereby covered, there can be no dispute that such mles have been framed also in exercise of the power under section 40. -

28. The complainant presses the criminal prosecution against the petitioners primarily on theprinciple of vicarious-liability and, for this, the provision containedin Section 53 of the Building andConstruction Workers Act is cmcial.It reads thus:- Crl. M.C. J873/20I[5] connected ' Page l[9] of54 D

53. Offences by companies.-(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charfxp. of, and was responsible to. the companyfor the conduct6f the business ofthe company,as wellas the company,shall be deemed to be milt){ofthe offence andshall be liable to beproceededagainstandpunishedaccordingly: Provided that nothing contained in this sub-section shall lender any such person liable to any punishment, ifhe proves_—that the offence was committed without his knowledge or that he had exercised all due diligence to preventthe commission ofsuch offence. (^)^o^h'^ithstandinganvthins■containedinsub-.^ection fl) ciny offence under this-Aletifidkbeen committedby a company and it is proved:-thai' -'Jbhe- offence has-been committed with the c:on:seM,.'oT:f.e.0nnivance of. or is attributable to any neglect oh:dh& part of anv director. manager, secretary or other officer of the company, such director, manager, secretary fr. other officer shall be deemedto be guilty ofthot.offence andshallbe liable to be proceededagainstanfpuniskedpccprdingly. Explanation.'For the..puhp.os!^j(fffl^isection,- ' (a.) "company" means any body corporate and includes a firm or other association ofindiyiduals; and (b) director", in a.partner in the firm. "

29. As washighlightedduringthe course ofhearing,not onlyby the learned counsel representing'the petitioners, but also by the counsel foi the State (the complainant), the afore-quotedprovision of Section 53 is almost identical with similar provisions concerning vicarious Crl.M.C. 1873/2015& connected Page20of54 n liability contained in other criminal laws to the effect ofwhich some detailed reference shall need to be made later.

30. It is clear from the bare reading of the statutory clause that wherethe offence is committed byacompany,in orderto rope in any other person on the principle ofvicarious criminal liability,it must be shown that such person was "in-charge ofand was responsible to the company"forthe conductofits business "atthe time the offence was committed. The proviso to Section 53(1)permits a person arraigned on the principle ofvicarious liability to plead and show by evidence, in defence, that he was not: responsible either because the acts constituting the offence were cominitteM' his knowledge"or because he had "exercisedaildkedrk^eribedopreventthecommission ofsuch offence. Notwithstanding-thp ikain provision contained in Section 53(1),the prosecutiori nfay,b|ihi|ated against "any Director, Manager,Secretary or othek'df^Gerf^dMtkc^^ "ifthere is proof availableto show thatthe "with the consentor connivance of, or is attrihutabie to any neglect on the part of" such diiector, manager, secretary-or other officer.ofthe company. While section 53(1)relies on ''&eM%'''due'-B ofthe person vis-a-vis the company "in-charge of" and "responsible to", section 53(2) necessarily requires positive evidence to show active participation reflective of "connivance"or "neglect".

31. In the criminal complaint on which the'impugned order of summoning has been passed, there is reference to similar fatal accidents having occurred previously atthe project site in question on Crl. M.C.1873/2015&connected Page2!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 of any specific rules within the meaning ofsection 47 vis-a-vis the previous incidents, and,second,the criminal action vis-a-vis such earlier incidents would be barred by limitation as provided in Section 55 ofthe Building and Construction Workers Act.

32. It is the admitted case of the complainant that the building construction work in the course-of which the fatal accident occurred on 17.05.2014 had been entrusted by/the land owner company, through a formal contract to the constfuetfpn contractor company. Itis indicated in the complaint itself that the construction contractor company had got itself registered with the statutory authority of the appropriate government in compliance'' with the requirements of Section 7. The certificate of registration.describes the constmction contractor company to be the "estdblishment" for purposes of construction of"DLF Capital Greens Project" by it, it being a project of "residential bidlding", the work'.to be carried out during 02.01.2012 to 17.11.2014, its representative Mr. Surinder Mohan being the "employer" in-charge ofthe construction work at site. It is an undisputed case here that the construction contractor company had given the intimation about the commencement of the work in compliance with section 46. It is also admitted that the intimation Crl. M.C. 1873/2015 & connected Page 22of54 o 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 court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:- "3. That Sh. Mohit.Gujral, Chairman, Sh. Rajeev Talwar,-Managing Director, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, Director ofM/s. DLF Universal Ltd., Shopping Mall, 3"' Floor, Arjun Marg, DLF City,. Mock E, DLF Phase 1, Sector 26A, Gurgaon, Haryana 122002 are the 'Directors" and Sh. 'A.M. 'Naik, Group Executive Chairman, Sh. K. Venkatajfamdn.an, CEO & MD,Sh. M.V. ■ Kotwal, Whole time Djbeetor,S:^.Mi&^^dent, Heavy Engg., Sh. S.N. Subrahmdnyan,. tfhdle fiptte^Director &Sr. EVP (Lnfrastructure & cdpsh^lioh)-; Shankar Raman, Whole time Director <fe Roy, Whole time Director &Sr. EVP(Corporate affairs &power)and Sh. Daljit Singh — Project Director, (In-charge ■ of the _ construction site) ofM/s. Larsen- & Toubro Ltd. are the "Directors"ofM/s. Larsen <& Toubro Ltd. and Sh. Harish Vaid, Manager (Indl. Relations) is the Manager of the construction site within the meaning ofSection 53 ofthe said Act(hereinafter called the accusedfor the purpose of the Act, in thepresentcase).

4. That on dated 17.05.14, at about 3.50 PM, an accident reportedly occurred at the construction site namely "Capital Green Projects" located at 15 Shivaji. Marg Delhi-15 at tower no.14 having 21 floors. Upon inspection ofthe 'Construction Site'on 18.5.2014 at 11.00 Crl. M.C. 1873.^2015 connected 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 eighteenth floor 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 management failed to ensure adequate site management as envisased in the provisions of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Delhi Building,and other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002. Management had not taken all appropriate measures.as per (He. said Act and Rules framed thereunder to prevent accidents at building site of suchproportion andinagHitude.

6. ■ That there have been. 5fatalaccidents resulting into loss oflives of[5] workerk in the recent past, at the same site. But, it is clear that they had'not learnt any lessons out of previous series offatal 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 Act and Rulesframes thereunder as applicable on the construction site ofthis magnitude were made.

7. Tha.t further, repeated deaths clearly pointed to ne2lect and commissions & omissions and lack of due diligence towards all aspects of human lives, safety and M-'elfare at. their site as envisaged i?i the said Act and Rules framed thereunder.

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

I. That the workers working at height were not provided with safet\> belts and Personal Fall Arrest Systems fPFAS), in contravention ofprovisions of "Rule 42and 178ofthesaidRules." IT That the safety nets were not provided at the construction site where the workers were allowed to work at height, in contravention ofprovisions ofRules 42 and 179ofthesaidRules.

III. That the platforms and balconies, from where a worker is liable tofell, had not been provided with suitable & safe suardrails and toeboards ofadequate strength, in contravention of the provisions ofRule 196 of the said Rides. TV. That more than 500; I.e. 2700 workers were ordinarily employed at the consfruction site but Safety Officers as per qualification arid condition ofservice as laid down in Schedule VIIIofthe said Rides had notheen apvointed, in contravention-ofthe provisions ofRule 209 ofthesaidRules read withSection88ofthesaidAct.

V. That the manag^mmlsrhavednot 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 wfh:Sections 38,40 and53 ofthe said Act which is'"punishablb"under section 47ofthe "Said Act"for an imprisonm.entfor a term which may extent to 03 months or with a fine which may extend to Two ThousandRupees or with both."

34. The referenceto the prohibitory order having been issued bythe statutory authority on 26.05.2014 vis-a-vis the project site, being a Crl. M.C. 1873/2015 & connected Page25of54 O. 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/repoits dated 18.05.2014 and 24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, reply dated 18.06.2014 ofthe land owner company and replies dated 04.06.2014, 17.06.2014 and 04.08.2014 ofthe construction contractor company. The reply dated 17.06.2014 ofthe construction contractor company,in turn,referredto letters dated 20.05.2014,03.06.2014,and 25.04.2013 and health and safety pfrliey, as communicated vide letter dated 25.04.2013. As mentioned,earlieit pursuant to the directions issued, by order dated 24.09.2018, the complainant has filed the counter-reply dated 28.09.2018. In this,reply, the exchange of the abovesaid correspondence, reliance: whereupon is made by the petitioners,has been acknowledged.'',

36. The documents in vdaidfr^freprdj&ere is no dispute, upon perusal,show thatthe land owner company had entered into a contract on 29.03.2012 with, the eonstruction pontractor company. Concededly,the general conditions ofthe said contract, as form part of its third annexure, clearly reveal that the construction contractor company had taken over the entire responsibility for every aspect of constmction including safety compliances,liability towards insurance and labour laws. The following stipulations in the contract need to be extracted for confinnation ofthe above aspect:- "79.0SAFETYPROCEDURE Oi. M.C. 1873/2015&connected Page26of54 79.[1] 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 amendments thereof The Building and Other Construction Workers (Regulation ofEmployment and Conditions of Services) Act, 1996 and any other applicable statutory rules and regulations. These requirements shall apply in all cases except where the regulations ofthe local authority require more stringent measures to be taken.. Where the requirements ofBIS Codes and/or NationalBuilding Code, the Buildingand Other Construction Workers(Regulations ofEmployment and Conditions ofServices) Act, 1996 are duplicated by the localregulations or the "Safety Manual" provided by the Owner,-, the ■ more stringent of these regulations shall be deemedfo,apply.- The Safety Manual provided by the Owner, is.onlyps.dggestive and shall not castany liability on the^OyvneNf' 79.[2] The contractor shall nrovideisafe means ofaccess to all working places. 'ii' 79.[3] The contractor'.sli'dlh Be-'solely responsible for proper desisn of the • scAffold:m[2]::..temporary accesses, ladders and ramps..fprmvi>.b.rlbmnd ho.istins arrangements, cranes etc. to ensure safety ofiwbrkmen as well as the works. Allscaffolds, ladders and other safety devices shall be maintained in safe conditions. Only-tubular scaffolding shall be used. ' v:-" -v ' ■ 79.[4] All necessary personal safety/protective equipment, first aid kit, medically trained personal fully equipped ambulance and any other facilities as per the statutoi-y requirements should be always available on the site for use. The contractor shall take adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personneland workers. 79.[5] Adequate precautions shall be taken to prevent dangerfrom,electricalequipment. Crl. M.C. 1873/2015& connected Page27of54 UM 79.[6] No materials on the site ofwork shall be so stacked or placed as to cause danger or inconvenience to any person or thepublic. 79.[7] The contractor shall provide and maintain all necessary temporary fire protection and fire fighting facilities at the site during the execution ofthe works in accordance with the NationalBuilding Code ofIndia 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and explosive materials and goods are stored and handled in a safe manner and in accordance with the statutory regulations. 79.[8] The contractor shall notify the engineer immediatelv ofany occurrence ofmishaps or.accidents that results in death or injury (including grievous injury) as defined in the Indian Penal Code. Such Initial notifiaation may be verbal and confirmed in writing thereafter and shall be followed by a comprehensive M^rittm-report within 24 hrs of the occurrence/incident.^ The'-contractor ■shall duly complete standardforinspsreqUirpd by the engineer and ■ statutory authorities. ' f 79.[9] It is made eledfmatJkc'contractor alone as the Principal EmployerkIs ': ems4vef<fljle? and liable to all investisafins and lesdl mfhmlMefMcludins Court ofLaw and the Owner shall not have any part or liability in this re2ard. The Contractor alone shall be responsible and liable to compensate the, victims-.--Immediately on the occurrence ofthe mishaps or accidents and also protect and indemnify and hold harmless the owner, the engineer. and allpersons who may be associated with or connected with the OMmer or the engineer and to reimburse all legal andfinancialcosts, ifincurred, by the them in this regard.

79.10 All consequences, damases or losses arisins by reason ofany violation ofthe safety requirements resulting in any iniwy or loss oflife to the contactor's or any sub contractor's Emvlovees/Staff/personnel and Workers/Third ■ Party (non-fatal/fatal) shall be met by the contractor who Crl. M.C. 1873/2015& conmctecl. Page 28of54 o alone will be responsible for handlin[2] and disposal ofthe accidental cases with Governrnent/non-Government authorities. The Contractor shall be hound to pay compensation to the personsfor the injuries sustained or death owing to neglectofthe safetyprecautions should any claim proceedings be filed against the owner/engineer. The contractor hereby agrees to indemnify the owner and the engineer against all liabilities and keep the owner, his employees, personnel, agents, representatives and anyone connected with the owner, protected from civil and criminalprosecution in such cases and be answerablefor the same before all authorities.

79.11 Within one week of Commencement date, the contractor shall submit 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 regulations-.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 accesslo the.sitpMds been allowed by the contractor). The contractor\shdljifr.bm time to time as necessary,producesupplpMentss.toxiTie.site safety plan such that it is at all tmes -a detailed, comprehensive and contemporaneous statement by the contractor of his site safety and industrial health, obligations; responsibilities, policies and procedure (under the, laws ofIndia) or as ■ 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 adoptproper and j-ecognized safety practices throughout the execution of works. Crl. M.C. I873/2G15 & connected Page 29 of54

79.13 The contractor shall adhere to the Site Safety Plan and shall ensure that all sub-contractQrs ofall tiers have copy ofthe Site Safety plan and comply with its provisions. The contactor shall avpoint a qualified and exverienoed person as Site Safety'Officer to act as Manaser 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 he 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 oftheEngineer and allreleyantstatutoiy authorities, as required by Applicable laws and regulations. The contractor shall submit on a monthly basis a Certificate ofCompliance-fbr Health, Safety and Enyironmentasgiven in Appendix}''MT." ' (emphasis supplied)

37. It appears thatin the wake ©fthe fatal incidentthat occurred on 28.02.2013(death ofMaqboor)iatthe.sa;itie veiy site,prohibitory order followed by revocation order;had beenyi's'sued on 01.03.2013 and 08.03.2013. Against the 4aid back|r6p|.vthe-construction contractor company had taken steps for getehg'the..safety audit of the project done. An audit report dated '03.04.2013 was submitted to the authorities by the said cbmpahy -undervthe- Oover of its letter dated ■ 25.04.2013. Reference to the said auditreport and the 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 the reply affidavit dated 28.09.2018, the complainant also confirms that National Safety Council(NSC) which had conducted the said safety audit had given a satisfactory CrI. M.C. 1873/2015& connected Page30of54 report 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 Project Director ofthe construction contractor company, was the person "incharge of the construction site" and Mr. Harish Vaid, Manager(Internalrelations)wasthe Manager ofthe 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.sumnioning order;, •

39. It was also brought out,fering the-course ofhearing that at the time ofinspection(s),leading.to ins;pe,btioh dated 18.05.2014, 24.05.2014 being prepared,ify|4'^lD^petSingh,who wasfound asthe personinchargeoftl^site§,;fehdi^p^sistedthecomplainant's officers in such.inspection at^lir^.'HteK report, prepared-on inspection carried 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 noted, vis-a-vis the requirements of Rules 142, 178 and 179 that Personal Fall Arrest System (PFAS) and safety belts had been airanged but not provided to the workers. It also noted that comrnon 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. M.C. 1873/2015&connected Page31 of54 /«\ Rule 39 had been formulated, the breach of the statutoiy rules was noted for the reason such policy had not been submitted for approval. The report, atthe same time,confirmed thatthe inspecting officer had found and verified 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 ofthe 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 1-8.05^201'4 and mainly noted that Ankit Kumar(the deceased worker)was'applying paint on the face of the wall at the 18"^. floor level when he had slipped and fallen to the ground,he not wearing the safety belt'or'BFAS atthat point oftime.

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 including letters dated 20.05.2014 and 03.06.2014 followed by another dated 17.06.2014,the last referring to the previous correspondence,.which concededly includes submission by the constmction contractor company and yet another safety audit report obtained from National Safety Council, Delhi Chapter, such audit having been undertaken on 24"^ and 25"^ May, 2014. It was submitted by the construction contractor company that it was in full compliance with the statutorily prescribed health and safety measures, this having been confirmed by the safety audit report of May,2014, Cfl. M.C. 1873/2015 & connected C' the safety policy having been formulated and- forwarded" to the authorities by letter dated 25.04.2014, duly qualified duty safety officers having been deployed at site, the steps taken inclusive ofthe foliowing:-

prior to construction'siiq entry. a). The worli^s.:-dre ■. about the hazards involved in partidylar aciivity before start of the d). L&T has protected the'floor edge with hard, barricades. • e). L&ThasprotecteddMOpenings, cut outs with reinforcementrnat. f. L&Thas closedalllift shafts withgates. g). Safety patch,netparp^pnoyvd^d below 6 m of live workingflhdt arbundperiphery to preventfall ofmaterials andmen. h). All plants and machineries are fitted with safety device 'and are frequently inspected and testedfor safety compliance. i). Allelectrical connections are routedthrough RCCB, MCB and at source through ELR to avoid any electrocution andoverloadprotection.

3. Medical andotherfacilities: Crl. M.C. 1873./20I[5] & conmcted ■ Page 33 of54 a). Round the clock ambulance and first aid facilitiesprovidedatsite. h). 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 Safety Auditconducted by National Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing exten'siyetjsurvey / checking at site, submitted its report'. The^ relevant excerpts of the reports are as under: ■ A • a). M/s.'L&T had ppfMdQd adequate no. of Safety Officers td deal.,hyiffi the requirements of safety mcm.ager^!e}^.tiffiMd.fildht. There is proper work distributipn qindh^tffiese.Safety Officers to preventclash mj-resppmibii^^^ b). The owner had appointed expert consultant organization M/s. Turner, who has appointed. NEBSOHqualifiedSafety Officers. ^ c) -work at Height permit: In Indian Construction ^ majority offatalities occurs due tofall ofworkers from height. Due to this high probability, it had become necessary to ensure implementation..of Height Work Permit Under the permit only thoseworkers are allowed to proceed or work at height for whom safe access - like ladders are provided andsafe workplace like scaffolds exists there. This system is provided by L&T as shown to the Auditors. - Crl. M.C. 1873/2015.& connected Page 34 of54 c d)PersonalProtective Eqiiipm.ents ® The use ofsafety helmet by all the construction workers was almost 100%. ® The use of safety belts by those who were working on external side and have potential hazard offall, was more than 98%), as one worker wasfound working without anchoring it with rigidsupport. © Use ofsafetyshoe was observedalmost100%. e) LiftingEquipmentand Tackles M/sL &Thadgotnumerous lifting equipments and tackles. The safe use- of one lifting equipment was checked. It wasfound thatthe-operator was didy trained and the operator and thesignaler were understanding.jhe signals very well.,' ■ ' f HazardsqfP^orldhgjfyHeight L&Thadtaken thefollowing'measures topreventfallof workersfrom height:■' v.-.• --f.'fy All the openings'dtkiii^ef:-}^0yations were found coveredwith hatrhd- ■All the floor- edges were suitably fenced with appropriate handrails. ® The stairs were cleanedforprevention of slipping ^ due to slipperyfloor. ■That in view of the observations of National Safety Council (Delhi Chapter) in its report after conducting extensive checks/surveys on site, it can be safely inferred that the Establishment has been complying- with all the safety norms as requiredunder the law includingBOCW (RE&CS) Act. Any mishap at site despite bestprotective measures could be an accident only with no humanfault or error. L& T has done its best to comply with all the Crl. M.C. 1.S73/20I[5] & connected safety norms, which have been subject matter ofsurprise checks and thesame have beenfound to he in order. Without prejudice, to what is stated above, it is submitted that L & T had also got another Safety Audit Report done during 24-25^^^ May, 2014 by the 'National Safety Council Delhi Chapter and nothing adverse has been reported in the Audit Report submitted. Copy ofthe Safety Audit report and the relevant photographs of the site are annexed as ■ Annexure A (colly). Further, the establishment has got its audit done from DGFASLI and the report is awaited and the same shall be submitted as and when it is received.

41. The questions relating to corporate liability and vicarious criminal liability ofthose connected to a cor]:)orate body have come up in the past before the courts, in the context, of simikr-provisions contained in various statutes inGluding,,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)ofthePre-vdnti,bh'.GffioX)d Adulteration Act,1954:(for short,'PFA Act"); and Section 33 ofthe Insecticides Act, 1968 (for"short,"Insecticides Act").■

42. On corporate criminal liability, the following observations of a ■. ■ constitution bench of Supreme Court in Standard Chartered Bank & Ors V.S. Directorate ofEnforcement& Ors(2005)4SCC 530 provide useful guidance:- "There is no dispute that a company is liable to be prosecuted andpunishedfor criminal offences. Although there are earlier authorities to the effect that Crl M.C.!873/2015& connected Page 36of54 V •' corporations cannot commit a crime,'the generally accepted modern ride 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 theprohibited aet,^tm^jm many statutes the term "person" is 'defiltedl. person is not specifically defined, it pecessarityiMludes a corporation. It is usually constriiedtdpinclud!ep(:corporation so as to bring it within theprohibifiQn dftfifstatute andsubjectit topunishment.In mofi.cffhp:fidtdt^sl the word "person" is defined to includep-corpprdfiofif:,;,•. r... {* ' » xxx ' Inasmuch as all criminal and quasi-criminal offences are. creatures ofstatute, the amenability ofthe corporation to prosecution necessarily depends•upon the terminology employed in the statute. In the case ofstrict liability, the terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach- of the statute but on the establishment ofthe actus reus, subject to the defence of due diligence. The law isprimarily based on the terms of the statutes. In the case of absolute liability where the legislature by the clearest intehdment establishes an offence where liability arises instantly upon the breach of the statutoryprohibition, no particular state ofmind is a Cii. M.C. 1873/2015& connected Page37of54 prerequisite to guilt. Corporations and individual persons stand oh the samefooting in theface ofsuch a statutory offence. It is a case of automatic primary responsibility. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could, be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability. XXX Allpenalstatutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within theplain meaning ofthe words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to- be included and woidd have been included ifthoughtofMfpenalprovisions like all other statutes are to befairly construed according to the legislative intentas expressed in the enactment."

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

44. It is vivid from bare perusal ofthe provisions ofthe Building and Construction Workers Act,as indeed the rules framed thereunder, that the land owner company having chosen to outsource the work of 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. 1873/20]5& connected ' Page38qf54 law, and the contracthal arrangement, to which detailed references have been made above. It is the construction contractor company which was given the responsibility of carrying out the construction work and,for.such purpose,engage the workers. Under the law,it is the construction contractor company which,inthe presentcase,is the employer"-the establishment which was to make compliances for safety measures to be put in position. There is no responsibility shown ofthe land owner company,or anyone connected thereto,this having been clearly understood and explicitly so stated even in the contract entered upon by it with the construction contractor company on 29.03.2012. Thus,neithertlle larid owner company nor those incharge of or responsible to the conduct of its business can be prosecuted for the offence under Section 47 of the Building and Construction Workers Act on the facts set out in the complaint from whichthe present petitions arise.

45. The case againstthe constmctioiic'dnttactor company and those stated to be in-charge of or responsible for conduct of its business, however,would stand on a different footing-and,thus,need scrutiny separately. ■. ■ 46. In Municipal Corporation ofDelhivs.Ram KishanRohtagiand Ors.,(1983)1 see I,while dealing with the applicability of Section 17(1)ofPFA Act,theSupremeCourtobserved asunder;- "i[5].Sofaras the Manager is concerned,we aresatisfied thatfrom the very nature ofhis duties it can be.safely, inferred that he would undoubtedly he vicariously liable for the offence;vicarious liability beingan incidentofan, Page 39'of54 Crl. M.C. 1873/2015 & connected: offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from- the presumption drawn by the complainant, that there is anv act committed,by the Directors from which a reasonable ■ inference—can be drawn that thev could also be 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 were rightly quashed. 4"=^, 47. Following the aforesaid mlingi in construing the effect of Section 34oftheDrugs Actin adecisionVfeported asState ofHaryana vs. BrijLaiMittaland Ors.,(1998)5SCC343,it was held thus:- 1 ■.. 8...the vicarious liability of a person for being prosecutedfor an offence committed under the Act-by a companyarises ifatthe materialtime he wasin charge of and was also responsible to the company for the conduct ofits 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 beins a director a person can be in charge ofandresponsible to the companyfor the cond.ur.t —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 prima facie, thai they were in charge,ofthe company andalso responsible. tothecompanyfor the conductofits business." CrlM.C.!873/2015&connected ' Page40of54

48. The counselforthe petitionershave placed reliance on National SmallIndustries Corpm 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 m.oke a bald cursory statement in a complaint that the Dirprfnv (arrayed as an accused)'is in charge ofand re.^pnn.cihJp companyfor the conduct^ ofthe business ofthe company without anything more.as to the role of the Director. But the complainUhould spell nut m hn.u and in what manner Respondent P.wn.c in charge nfnr the acfmsedCornpanyfor the conduct oj its business. This, is in ybbhsonance with strict interpretation ofpenalsmmh d' smciallv.'whevp such statutes create vicariouflldhihmNif^^^

14. A company ofDirectors and to make any or all tfie'DjfefiorS as accused in a complaintmerelyon the basisofastatementthattheyare in charge of and responsible for the conduct of.the business ojthe company withouPcmythmg more is not a sufficient or adequate fulfilment of the requirements f] under Section 141. In Pooja Ravinder Devidasani(supra)while observing that"a director of a company is liable to be convicted for an offence committed by the company ifhe /she was in charge ofand was responsible to the companyfor theconductofits business or ifit is CrI. M.C.!873/2015d connected " ■ ' n ■ c Page41 of54 proved that the offence was-committed with the consent or connivance of or was attributable, to any negligence on the part ofthe Director concerned''and noting that 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)

II 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 b required to state in the complaint how a Director who is sought to be-made an accused, was in charge of the business ofthe company or responsiblefor the conductof the company's business.. Every Director need not be and is not in charse ofthe business ofthe company.Ifthat is the position with resard to a Director, it is needless to emphasise that in the case ofnon-Director officers, it is all the more necessary to state what were his duties and resvonsibilities in the conductofbusiness ofthe company and how and in what 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. 1873/20]5& connected Page 42of54 -'J (2005)8see 89; Gunmala Sales vs. Ann Mehta,(2015) 1 See 103 andStandard eharteredBank v^. State ofMaharashtra,(2016)6See 62, all cases'dealing,with issues relating to the effect and import of Section 141 of Negotiable Instruments Act. Taking note of such decisions in Jwala Devi Enterprises P. Ltd. v^. Fadi ElJaouni, 2018 SeeOnlineDel10030this Court culled outthesettled law as under;-

/^j proceededagainstunderSection 141(2); (Hi) Bv virtue of the office they hold, the persons workins; in the capacity of the Mana2in[2] Director or Joint Manaeins. Director are deemed to be in change of and responsible for the conductofthe business of, the company and, therefore, can beproceeded againstin terms ofSection 141; ■ - Crl. M.C. 1873/2015 connected N54

(iv) Merely because a person is a director ofthe comvanv is not sufficient to make him liable under Section 141, there heins.no deemins that hv holdinssuch position he is in charge of, or responsiblefor the conduct of the business of, the company within the meaning ofSection 141;

(v) 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 ofSection 141, there bein£ no need for further particulars to be given in the complaint about his role, this being subject to proofat the trial:

(vi) Theperson who has been summoned as an accusedfor offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis ofaverment that he was director ofthe company accused, he being in charge of or responsible for the conduct of its business cannotgetthe complaint quashed by the High Court byfiling apetition underSection 482 of the Code ofCriminalProcedure, 1973 m.erely on the'ground that no particidars as to his role have been setout in the complaint;and

(vii) Theperson who has been summoned as

J an accused,for offence under Section 138 of 'the Negotiable Instruments Act, 1881 by invoking the provision contained in Section- Mi 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 furnishing "some sterling inconti''overtible rnaterial or acceptable circumstances" substantiating his contention Qi.M.C. 1873/2015& comected '. Page 44 of54 J 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 tjial would he 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 mealsured under the Rules. Section 47 read with Section 53 ofthe©uildihg and Construction Workers Act thus creates a coiporate criminahliability againstthe said company and I by virtue ofthe principles ofvinarious'-'erihiinal liability, every person who,atthetime whenthes^%^^G^Y^p'''eommitted,was in-charge of, and was responsible tcijjhe'isaidLcBh^^ for the conduct ofits business, as well as the c6rhpiayi''afelidbem 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 CrI. M.C. 1873/20!5& connected Page45of54 rnot sufficient to attract Section 53, there being no deeming that by holding such position he is rendered to be one who is ''in-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 Cotiif,the words"for the conduct of the business of the company" appearing in Section 53 are most crucial, pregnant with meaning and provide the key to determine whether a person connected to'the company may be held accountable for the acts ofcommission Or-omission'dqhstituting the offence under Section 47 ofthe Building-and Bonstructijbh'Workers Act. After all, it is the status ofbeing"in-chafge of or being "responsible'''' for such business of the coinpany that exposes the individual to vicarious criminal liability. Ifthe act-of corn'missioh or omission is attributable Cj to the neglect ofthe person or on account ofhis"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 Cti. M.C. J873/2015 & connected Page 46of54 contravention of the rules under Section 40, on the other. To put it more precisely,and clearly,in the contextofthe offence under Section 47 ofBuilding and Construction Workers Act,the responsibility vis-avis 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 responsibiiityfowards a specific rule,at the stage when its breach hasled to the fatallfy.or serious incident.

54. A different approach thap the,,one;,;above to the subject might lead to unjust results. Thtsyma5l|)4- illustrated by two simple examples. As noted earherj {establishment) is duty bound, in terms of Section 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 wOrk'.fMIaying regard to the scheme of the enactment and the rules framed thereunder, the employer {establishment)is also responsible to frame a"safetypolicy"(rule 39) and also to appoint and deploy a "safety officer"(rule 209). Ifthe breach relates to default in framing of a written statement of safety policy, or appointment of a duly qualified safety officer, by the establishment, the person appointed as "overall in charge of" the CH. M.C.1873/2015&connected Paged?of54 "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 ofthe rules noted at the level oftlie supervisory staffatfhe construction site(i.e.the person incharge of the construction work at site,under Section 46 or those assisting him in the task)they having.'not'ensured the safety equipment to be availed ofby the workers,dhe former(those responsible for the conduct of the business at the higher levels) cannot be held accountable under the deemihg provision.- >■. " ■ ■ ■' ■' '

55. It is the argument;.^of,V|he:::.j3ef^^ connected to the construction contractor comphhy viz., A M Naik (Crl.M.C. 2069/2015), K Venkatramanan (Crl.M.C. 2068/2015), M V Kotwal (Crl.M.C 2070/2015), S.N. Subrahniahyam' (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 of the person(s) in-charge' of the construction site i.e. Daljit Singh, Project Crl. M.C. 1872/2015 & connected Page 48 of54 Director and Harish Vaid,Manager(Industrial Relations). It is fiirther their argumentthat it is 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(Ankit Kumar)had been,deployed,at the 18"^ floor level from ( where he fell to the groundto s.uffer mdilal injuries.

56. The copy ofthe sub-contract,,:..a|::sh|jwn atthe hearing cannotbe treated (without proper proof) as apthentic or ^incontrovertible or as one exonerating the construction contractor company of its entire responsibility in the-Matter;^ particularly in view of its continued responsibility vws0.rvi'^>phe>:cb ofthe sub-contractor,as per clause 79.13 ofthe contracf-'dated'29.03.2012, referred to earlier. The argument based'.on the sub-contracts entered upon by the construction contractor cOinpahyry/ith thehmme employer ofthe deceased worker cannot also be accepted at this stage of the proceedings, particularly in exercise ofthe power and jurisdiction of this Court under Section 482 Cr.P.C., inasmuch as it involves questions of fact [Rajiv Thapar and Ors. vs. Madan Lai KapOor, (2013)3see330].' Crl. M.C. 1873/2015& connected Pags49of54

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

58. The complaint on whichthe summdning order was passed itself describes Mr. A.M. Naik, petitipner. in,;Cfl.M.C.2069/2015 to be the Group Executive Chairma^;.-©!. contractor company. Similarly,the description ofMr.'M.Y.'Rotwal,Mr.R.Shankar Raman and Mr. Shailendra Roy - petitioners in Crl.M.C. Nos. 2070/2015, 2072/2015 and 2071/2015,- even as per.the complainant has been that C they were working at the relevant point oftime 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 Page50of54 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 ^'employer''' (construction contractor company) towards compliances ofthe Building.and'Construction Workers Act or the rules framed thereunder. These petitioners do not dispute that at the time ofalleged commission ofthe offi^nGe under Section 47 ofthe Building and Construction Workers Act, they were working for the constRiction contractor company;in the.capacity ofCEO Sc Managing Director and whole-time Dife.Gtdrt:&',Senidr;Executive Vice President (Inlfastructure&Constructi0n)rtispd!CtiVe^

60. The very description of the port-folios they held and the responsibilities that would entail^therefromj^rrmrzfacie shows thatthe allegations in the criminal complaint as to their deemed liability under Section 53 camiot 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 of the Building and Construction Workers Act Crl. M.a 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 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 of the managerial staff(Ji/lr. Daljit Singh and Mr. Harish.Vaid) made in-charge ofthe "f.. construction site. • •,. ■ f\..

62. The above petitioners, howevery.ayp raise the defence based on the two safety audit reports,Pnq dated p3";04.2013 and the other dated 24-25.05.2014. It would be a'subject matter offactual inquiiy as to whether the safety audit neportysubmrttel on 25.04.2014, obtained after the fatal accidents in question,can be.ffeated 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 lule 209 read with Section 38 of the Building and Construction Workers Act. Since this area v/ould fall prima facie within the Qi.M.C.187.3/2015& connected Page52of54 r domain ofthe responsibilities held by petitioners K.Venlcataramanan and S.N.Subrahmanyam,they are liable to be proceeded againstunder the deeming clause of Section 53. At the trial, they would have the opportunity, in terms of proviso 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 commission ofsuch breaches(or offences).

63. On the above facts, and in.the circumstances, initiation of criminal action against petitioners — DLF Universal Ltd.(petitioner in Crl.M.C.2064/2015),Mohit Gujral(petitioner in Crl.M.C.2067/2'015), Rajeev Talwar (petitioner in Grl.M;C.2Q66/2015), Shriram Khattar (petitioner in Crl.M.C.2160/2015,), AsholfKumar Tyagi(petitioner in Crl.M.C.2159/2015), ■ Sudhlf iSahgal (petitioner in Crl.M.C.2158/2015), A.M. Naik.(petitioner in Crl.M.C.2069/2015); M.V. Kotwal (petitioner in-GflvlCG.20;7O/2O15), R.Shankar.Raman (petitioner in Crl.M.C. 20lS/2{%;and':giaiiendra Roy(petitioner in Crl.M.C.2071/2015) being unfounded^"the continuation of such proceedings against them would be an abuse of the process of law. Therefore, their petitions are;.ahOwed"'.M'd proceedings against them in the criminal complaint case (CC 55F1/14) pending in the courtofthe Metropolitan Magistrate are hereby quashed.

64. For the reasons set out above, however,there is no case made out for this court to exercise its inherent power and jurisdiction under Section 482 Cr.P.C. to ■ inhibit the criminal proceedings in the aforementioned case against S.N. Subrahmanyam (petitioner in Crl. M.C. J873/20I5&connected Page53of54 Crl.M.C.1873/2015) and K. Venkataramanan (petitioner in Crl.M.C.2068/2015). In the consequence,the said petitions are hereby dismissed. It must, however, be added that nothing stated above would be treated as final expression ofopinion on merits ofthe case againstthe said petitioners.

65. The petitions and the applications filed therewith are disposed ofin above terms; (k.K.GA' JUDGE NOVEIWBER 19,2018 ■ vk/nk/yg.v Crl M.C.]873/2015& connected ' Page54of54