M V Kotwal v. State & Ors.

^ Provided that the number ofpersons representing the kers, 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 aopoirit a safety officer who shall possess such qualifications and perform such duties as may beprescribed. i

44. Responsibility ofemployersi-^hi emvlover shall hp. responsible—for providing, ], bbMStant and adequate supervision ofany building-of■othefS:constriir.tinri work in his establishment as to ensure comyliance with the provisions of this Act relating to safety and for taking all practicalsteps necessaiw toprevent accidents. " w (emphasis supplied)

18. The above-noted statutory provisions declare unequivocally that it is the "employer" vis-d-vis a building pr 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 "safetv committee" and a "safety officer". Havingregard to the scheme ofthe statute, a contractor' having undertaken to carry out the construction Crl. M.C. 18"3/2015 & connected Page 14of54 workforand on behalfoftheland owner,and also beingtheperson who employs building workers" in such work, also takes on the responsibilitytowardssafetyandhealthmeasuresfromthelatter.

19. For completion ofnarration,^it may be added that Section 39 casts a duty on "the employer" to give notice, in the manner prescribed, to the specified authority in the event of.an accident occurring m its establishment, it resulting in death or bodily injury incapacitating a worker for a ceifain period,this for the purpose of inyestigation or inquiry by such authority as may be deemed Q necessary. In the present case, the notice of the accident was concededly given and the inquiry heldriby the concerned statutoiy inspectorate.

20. The Building and Conshaiotion:S^orkers Act also requires _ priornotice ofcommencementofbuiiaing.orconstruction workto be given,the mandatoryinformation'requis^forsuchpurposesbeing indicated inthefollowingprovisidnittV-^ fv a as

46 Notice of commencement of building or other construction wort: J s o umu 0)An^mMomLjhag. at least thirty days before the commencementofany building or other: cansa to be sent to the InsoeoI^TTi^-r^ jurisdiction in the area where theproposed budding or other construction workis to be executed,a written notice containinQ- (a)the nameandsituation oftheplace wherethe building, orotherconstruction workisproposedto becarriedon; Cli. M.C. 1873/2015& connected Page 15of54 ri (b)the nameandaddressoftheperson who is undertaking the buildingorotherconstruction work; (c)^ the address to which communications relating to the buildingorotherconstruction workmay besent;

(d) the nature ofthe work involved and the facilities, includinganyplantand machinery,provided; (e)the arrangementsfor thestorage ofexplosives, ifany, to beusedinthebuildingorotherconstruction work; (f the numberofworkerslikelyto beemployedduringthe variousstagesofbuildingorotherconstruction work; (s)Ihe name anddesimation ofthe person who will be in overall charge ofthe bwil^m^r^dthier construntinvi M,nylr atthe site: ■■ (h)theapproximateduration qfkheyvork; (1)such other mattersas may beprescribed. (2) Where any change occurs:,in:'my ofthe particulars ■ turmshed under su^-sdction -pXythe employer shall intimate the changefta i^e:Msp0or within two days of such change. >. (3) Nothing contained in sti-sectibn (1) shall apply in case ofsuch class ofbuilding or other construction work asthe appropriate0oyermnentmayby notification specify to he emergentworks.'- N

21. The above-quoted provision onlyre-inforcesthe conclusionthat the responsibility towards due compliances with health and safety measures prescribed by the law and rules framed thereunder is primarily ofthe "employer",a person engaged as "a contractor" for carrying out the construction work,also vested with the authority to Crl. M.C.1873/2015& connected, d tr re Page 16oj54 o employ building workers-beingthe"employer". Thepersonideputed as"one m overallcharge"istherepresentativeof"theemployer",the employerbeinganswerableandaccountableforallactsofcommission or omission done by such representative"incharge ofthe project"or thoseworkmgunderhiscontrol. Pertinenttoadd,thedutytointimate, in advance,commencementofthe construction work(by prescribed notice)isnotoftlielandownerbutofthe"employer",suchstatutoiy notice requiring it to be specified,amongst others,the particulars of theperson who would beaccountableinthe capacityofhe being"in overall charge".

22. In exercise ofthe powers-c©iifti|||vupon the-said authorityin exercise ofthe powers conferred bptliuilding and Construction Woikers Act,the lieutenant gpyernOirpf'jhe Govt.ofNOT ofDelhi made and notified Rules wHifaf^areSealifed the Delhi Building and Other Construction WoritmV:(feeg;,^^ Employment and ConditionsofService)Rul4a01g Rules forshort).

23. The criminal complaint(from which the present proceedings aiise) refers specifically.tp;breach o^_^ (Health and safety policy), rule 42(Slipping,.tfippbg, Itiirig, drowning and falling hazards),rule 178(Safetybeltanditsuse),mle179(Safetynetandits use),riUe 196(Guardrails)and rule 209(Safety officer)ofthe Delhi Rules. All theseRulesfall in differentChapters ofthird part(Safety and Health)..

24. Rules39and42appearinthesixthchapter(generalprovisions), rules178and 179insixteenthchapter(CatchPlatformandHoardings, f^-C.]873/2015& connected Page 17of54. J Chutes,SafetyBeltsandNets),rule 196includedin nineteenthchapter (Scaffold),while rule 209forms partofthe provisions oftwenty-first chapter(Safety Organization).

25. The offence to answer which the petitioners, and three others, have been summoned by the Metropolitan Magistrate is defined and provided for m Section 47 ofthe Building and Construction Workers Act as under:- "47. Penaltyfor contravention ofprovisions regarding safety! measures.-(1) Whoever contravenes the provisions ofany rules made under section 40 shall be punishable with imprisonmentfor a terrn which may extend to three months, or with fine which may extend to two thousand rupees, or with both, and in-tfikiCase of a contifiidng contravention, with artafijdM&nMfi^ mayextendto one hundred rupeesfon every).-day during which such contravention continuesfi fterfipiffictionfor thefirstsuch contravention. (2)Ifany person who hqk besfif^rwieted ofany offence punishable under again guilty of an offence involvinga controfiemM-arfhilure ofcom.pliance of the same.provision, he shall be punishable on. a subsequentconvicfion with imprisonmentfor a term which may extend to six rnmdyis, or- wmfjfme-which shall not.be less thanfivehundredrupees butwhich may extendto two thousandrupees or withboth: Provided thatfor -the purposes of this sub-section, no cognizance shall be taken ofany conviction made more than two years before the commission ofthe offencefor which tneperson issubsequently!beingconvicted^ Providedfurtherthattheauthorityimposingthepenalty,if it is satisfied that there are exceptional circumstances Cri M.C. 1873/2015& connected ' Pn iq Page 18of54 © warrantingsuch a course may, after recording its reasons in writing,imposeafineofless thanfive hundredrupees."

26. It is the contravention ofthe rules relating to health or safety measures which constitutes the offence provided by Section 47quoted above,and forthis, mensrea i.e.the intention to committhe breach of the rules or abetment thereofon 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 notattracted. 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 ofbuilding workers", as envisaged in Section40,which ismadq/puhfshable. Though theDelhi Rules have been framed and nptified'Withreferencetothe rule making power.conferred on the appropiafeJdvemihent by section 62,having iegaid.to the subjectsthatare tliereb}'covered,there can be no dispute that such lules have been framed also in exercise ofthe power under section 40.

28. The complainant presses the criminal prosecution against the petitioners primarily onthe principle ofvicarious liability and,for.this, the provision containedin Section 53 ofthe Building and Construction Workers Act is emcial.Itreads thus:- Crl. M.C..1873/2015& connected • Page 19of54 d[3]. Offences by companies.-(1) Where an offence under mis-Act has been committed by a company, every person who,atthe time the offence was committed, wns in charge of, and was responsible to. the companyfor the conductnf the businessofthecompany,as wellas thecompany,shall ■ ^deemedto be ^uilty_ ofthe offenceandshallbeliable to beproceededagainstandpunishedaccordingly: 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 hi.. ' 'mowledge or that he had exercised all due dili^ennp to pieventthe commission ofsuch offence. ^^^^^^^^^^^^din2anp\:thin2conta.inedin suh-section /I) C) tkis-fAetkds been committed bya company and^ it, is proved.-fhaM'^Sic offence has hepr, committed with the coT^mfSfrhonnivance nf ny i. attributable to any nedleet ohlith.k part ofa.m> dir^rtny nmnager, secretary orother officer ofthe company,such director, manager, secretary Sr. other officer shall be deemedto be guiltyofthatoffenceqndshallbe liableto be pioceeded.againstcindfifinfskeffaecjdrdingly. ^^l^-ation.-ForthepuTposefff^ (a)"company"means any body corporate and includes a Jinn or other association ofindividuals;and (b) director",in relatwrnp-^rt^^jfiemsaparmerin the ^ /zm, • ■. ■■

29. Aswashighlightedduringthecourseofhearing,notonlybythe learned counsel representing the petitioners, but also by the counsel foi the State(the complainant),tire afore-quoted provision ofSection 53 IS almost identical with similar provisions concerning vicarious Crl. M.C. 1873/2015& connected ' Page20of54 ly(o liability contained in other criminal lawsto the effect ofwhich some detailedreferenceshallneedto be madelater.

30. Itis clear from the bare reading ofthe statutoiy clause that wheretheoffenceiscommittedbyacompany,inordertoropeinany otherperson ontheprincipleofvicarious criminalliability,itmustbe shown thatsuchperson was "m-chargeofandwasresponsibletothe company"fortheconductofits business "atthetimethe offence was commttted".The proviso to Section 53(1)permitsa person arraigned on the principle ofvicarious liabilityto plead and show by evidence, 0 m defence, that he was not;responsible either because the acts ■ constituting the offence werecominitted:-'Wtfcsf his knowledge» or becausehehad "exercisedalt:dUedtUge^etopreventthecommission ofsuch offence". Notwithsfapding thp main provision contained in Section53(1),theprosecutionttpb|ini|lated against "anyDirector, Manager,Secretaryorothed-q^fi^tftgcbm^ ifthereisproof availabletoshowthatthedfene^Siy^.bdrlipked "withtheconsentor connivance of.or is attributable to dfifneglecton thepartof"such director, manager,secretaiy or other officer.ofthe company. While 0, ■ 53(1)relies on duetto'the position ofthe person vis-a-vts the company "in-charge of and "responsible to", section 53(2) necessarily requires positive evidende to show active participationreflectiveof"consent", "connivance"or "neglect":

31. In the criminal complaint on which the impugned order of summoning has been passed, there is reference to similar fatal accidents having occurred previously atthe projectsitein question on Crl M.C. 1873/2015 tSc connected n o • r Page21 of54 1o 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 contractto thO construetlpn contractor company. Itis indicated in the complaint ntself that the construction contractor company had got itself registered with the statutory authority of the appropriate government in eompliancp^'with the requirements of Section 7. The certificate of registration.'describes the construction contractor company to be thb "establishment" for purposes of construction of"DLFCapitalGreensProject"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 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 cfe connected Page 22 of54 about the fatal accident was given by the construction contractor company abiding by its responsibility underSection 39.

33. After setting out the facts pertaining to the fatal accident on 07.05.2014, while referring to the previous such incidents, and describing the positions ofthe petitioners (as indeed ofthree others 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, ManagingDirector,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. Venkatammdmn, CEO MD,Sh. M.V. Kotwal, Whole time Dimctor,&,:P0^ Heavy Engg, Sh. S.N. Subrahm.anyan, fffiole UTpp.Director & Sr. EVP (infrastructure & cdpstrHplieti)', ^Sjvr'R. Shankar Raman, Whole time Director ^'CFOfM SEailendra Roy, Whole time Director &Sr. EVP(Corporate affairs &power)and Sh. Daljit Singh - Project Director, (In-charge of the construction site) ofM/s. Larsen- & Touhro 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 accusedjbr thepurpose of the.Act, in thepresentcase).

4. That on dated 17.05.14, at about 3.50 PM, an accident reportedly occurred at the construction site namely "Capital Green Projects" located at 15 Shivaji Marg Delhi-15 at tower no.14 having 21 floors. Upon inspection ofthe 'Construction Site'on 18.5.2014 at 11.00 Crl. M.C. 187S/2015& connscled,. Rage23of54 AMandfurther investigation on 24.5.14at[4].00PMalong withSh.R.N.•Dahiya,Director(ISH)andSh.J.N.Jain,Dy. Director (ISH)/Inspectors ofBuilding & Constructim, it was revealed thata worker namely AnkitKumar,Painter, was working in tower No.14 on the eighteenthfloor and was reportedly engaged in the work ofapplyingpaint on theface ofthe wall,fellto the ground, causing him severe injuries resulting in death.

5. That besides this, prirna facie, it appeared on inspections that the management failed to en.'jnrp adequate site managementas emisa^eA in theprovisions of the Building and other Construction Workers (Regulation ofEmployment and Conditions ofService) ^ Act, 1996and the DelhiBuilding and other Construction ^ Workers (Regulation ofEmployment and Conditions of Service) Rules, 2002. Manasement had not taken all appropriate megsm:es__qs per tHe said Act and Rules framed thereunder topreventaccidents at buildingsite of suchproportion and magnitude,

6. Thatthere have beenffatal.accidents refniltbiginto loss oflives of[5] workers in. the rpEentpast, at the samesite. But, it is clear that thev hadnot learnt any lessons out^ofprevious series'ofJdtal accidents. Apartfrom notices,a prohibitoryorder wm nhp issuedto.them tostop jtne constructipn^wprk of entire site till complete/full compliances ofall the safet\! provisions as mentioned in ^ thesaidActandRulesframes thereupder as applicable on ihe construction site ofthis magnitude were made.

7. That further, repeated deaths clearlv pointed to neglect and comm-issions & omissions and lack of due diligence towards all aspects ofhuman lives, safety and welfare attheirsite as envisagedin thesaid ActandRules framed thereunder.

8. That during the course of inspection, and investigation, the followins breach ofthe provisions ofthe ■ —i^qidRuleti read witn the saidAct"were obseiwedi- Crl.M.C.1873/2015&connected ■ Paze'>4of54 o

I. That the workers working at height M>ere not provided with safety belts and Personal Fall Arrest Systems (PFAS). in contravention ofprovisions of "Rule 42and 178ofthesaidRules."

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

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

IV. That more than,500; I.e. 2700 workers were ordinarily employed at the construction site but Safety Officers as per qualification and condition ofservice,as laid down in Schedule VIIIofthe said Rides had not been appointed, in contravention:-ofthp.provisions ofRule 209 ofthe saidRules read withSection B8ofthe saidAct.

V. That the managOmehtsyhavMnot 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 saidvRuiesiread withSections 38,40 and.53 O ofthesaidAct which isfunishable imdersection 47ofthe "Said Act"for an. imprisonmentfor a term which may extent to 03 months or with afine which may extend to Two TlwusandRupees 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 Oi.M.C. 1873/2015& connected Page25of54 subsequent action, there is no case of any violation of the said prohibitory order.

35. In the complaint,aside from certain other documents,reference was made to inspection form/reports dated 18.05.2014 and 24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, 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 of the construction contractor company,in turn,referred to letters dated 20.05.2014,03.06.2014,and ^ 25.04.2013 and health and safetyppliby,-as communicated vide letter dated 25.04.2013. As mentioned.earlier, pursuant to the directions issued, by order dated 24.09.2018, the' complainant has filed the counter-reply dated 28.09.2018. In this'reply, the exchange of the abovesaid correspondence, reliance; whereupon is made by the petitioners,has been acknowtedgied.';•'

36. The documents in whidh-Te^ri^ere is no dispute, upon perusal,showthatthe land owner company had entered into a.contract • on 29.03.2012 with. the construction contractor company. Concededly,the general conditions ofthe said contract, as form part of its third annexure, clearly reveal that the construction contractor company had taken over the entire responsibility for every aspect of constmction including safety compliances,liability towards insurance and labour laws. The following stipulations in the contract need to be extracted for confirmation ofthe above aspect:- "79.0SAFETYPROCEDURE Crl. M.C. 1873/2015& connected Page26of54 o 79.[1] The contractor shall incorporate in his operations the requirements of all 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 (Regidation 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 deemedio,apply: The Safety Manual provided by the Owner:is' bnlyij0^estive and shall not castany liability on the^^rektf-'f-. 79.[2] The contractorshaRprbvidetsafe means,ofaccess to all workingplaces..■ ' 79.[3] The contractor-. AIMI -MfsAleh responsible for proper desisn of theKsdUMldm^^^ accesses, ladders and ramyslform^fomxandi-m arransements, cranes etc. to ensure'safetf 'W:w:brkmen as well as the works. All scaffolds, ladders and other safety devices shall be maintained in safe conditions. Only tubular scaffolding. shall be used. 79.[4] All necessary personal safety/protective equipment, first aid kit, medically trained personal fully equipped ambulance and any other facilities as per the. statutory requirements should be always available on the site for use. The contractor shall take adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personnel andworkers. ' 79.[5] Adequate precautions shall be taken to prevent dangerfrom electrical equipment. Crl. M.C. 1873/2015 & connected Page'27 of54 va- 79.6- No materials on the site ofwork shall he so stackedor placed as to cause danger or.inconvenience to any person or thepublic. 79.[7] The contractor shall provide and maintain all necessary temporary fire protection and fire fighting facilities at the site during the execution ofthe works in accordance with the NationalBuilding Code ofIndia 2005 and the statutory regulations. The contractor shall ensure that all gases,fuel and other dangerous and. explosive materials and goods are stored and handled in a safe tnanner andin accordance with thestatutory regulations. The contractor shall notify the ennneer immedia.telv ofany occurrence ofmishaps or accidents that results in O, death or iniurv (including grievous injury) as defined in the Indian Penal Code. Such initial notifi-cation may be verbal and confirmed in writing thereafter and shall be followed by a comprehensive written-report within 24 hrs of the occurrence/incident.^ fheiContractor ■shall duly complete standardfdrins',as.:req.iiifdd by the engineer and ■ statutory authorities. ■/../ !/ It is made clfdh:ftMi:.ih§/)ddndractor alone as the Principal Einploveri:dsfcpas^erdl^ liable to all investieatin^ andleg^g/MBfifief^ Court ofLaw and the Owner shall not have any part or liabilitv in this regard. The Contractor alone shall be responsible and liable. to compensate the victims. Immediately on the occurrence of the mishaps or accidents and also protect and indemnify andholdharmless the owner, the engineer. andallpersons who may be associated with or connected with the owner or the engineer and to reimburse all legal andfinancialcosts, ifincurred, by the them in this regard.

19.10 All consequences, damages or losses arising bv reason ofany violation ofthe safety recfuirements residtin^ in any iniuiy or loss;oflife to the contactor's or any sub contractor 's Emplovees/Staff/personnel and Workers/Third Party (non-fatal/fatal) shall be met bv the contractor who Crl. M.C. 1873/2015 & connected Page28of54 alone will he responsible for handling:and disposal ofthe accidental cases with Government/non-Government authorities. The Contractor shall be bound to pay compensation to the personsfor the injuries sustained or death owingto neglectofthesafetyprecautionsshouldany 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 thesame before allauthorities.

79.11 Within one week of commencement date, the ^ contractor shall submit-to the engineer, a detailed and O comprehensive contract shall submit to the eriffineer. 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 regulationsmhick -when implemented will ensure safety ofall the persons, including thirdparties on or in the vicinity ofthe site (including without limitation persons to whom accesslo tkemtpMds been allowed by the contractor). The coMractor\:khMhfrom time to time as necessary, produceSMpplekkefikdolMte^sitesafety plan such that it is at all times''d''defafled, comprehensive and contemporaneous statement by the contractor of his site safety and industrieil health, obligations, responsibilities, policies and procedure (undpr the/laws ofIndia) or as statedin the contractor elsewhere relating to work on site.

79.12 Any omission, inconsistency or error in the site safety plan or the Enfineer'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 recognized safety practices throughout the execution of works. Cii. M.C. 1873/2015& connected Page29of54 9.1:> The contractor,shall adhere tn Safety Piny, gndjhall ensure that all mb-contractnrs ofall tip.r., hn.,. my-QftheSiteSafety:^nandcomply with its;pmvi.^nr,. The^tactor shall amomLamalified and expp.ri^y,na>^ to actnrMny,ncr..-^thrSUr mety^lan and who win_be.resyonsible for nil matters_related to the works. The nnyitmctor shall mejojun^rovide such other pe.r.^^nmn^.l and rp..<^nvrna. ^Jnm^equiredtoensureeffectivp.n^PTntjon pfthp. SaTet^Plm. 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 Q basis a Certificate ofCompliancefor Health, Safety and Environmentasgiven in Appendix;:"MS." ■,. I;-.. (emphasis supplied), 37. It appears that in 28.02.2013 (deathofMaqbool);atthe,sineveiysite,prohibitoryorder followed by revocation order had heepcissued on 01.03.2013 and, 08.03.2013. Against the company had taken steps fbr;|&iii|3id:adfety audit of the project done. An audit report dated 03.04.2013 was submitted to the ^ authorities by the said companymderfiate;cover of its letter dated v.-, 25.04.2013. Referencetothesaidauditreportandthecorrespondence exchangedin such regard was made by tlie construction contractor company in its letter dated 17.06.2014. which is part of the material that was submitted with the■ criminarcomplaint leading to the impugnedorderbeingpassed. Inthereply affidavit dated28.09.2018, the complainant also confirms that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactoiy cr/. M.C. 1873/2015 & connected Page 30 of54 report m respect ofthe safety measures that had been adopted by the managementofthesaid companyand,in view ofsuch auditreport,the constiuction work was allowed to be resumed,

38. As noted earlier, it is admitted case even for the complainant thatintermsoftheintimationsthathadbeengiven,Mr.DaljeetSingh, the ProjectDirector ofthe construction contractor company,was the person "mcharge of the construction site" and Mr. Harish Vaid, Manager(Internalrelations)wastheManageroftheConstructionSite, within the meaning of Section 53 ofthe Building and Construction ^ Workers Act. As also noted earlier, both the said accused persons have notchallenged thesummoning order; ■ * Ar. 39. It was also broughtoutiaiii'mgtiie'^ourse ofhearing thatatthe time ofinspection(s),leading'tfcmspfeatigh reports dated 18.05.2014, 24.05.2014 being.prepared, Singh,who wasfound asthepersonmchargeoft^sitsAji^^iiBsistedthecomplainant's officers in such.inspection atileilinteiSiSThe report, prepared inspection carried out in the forenoon of 18.05.2014, is the most crucial inspection report,for purposes,ofthe.,case arising out ofthe incidentthat occurred in the dftemoon of17.05.2014; It concededly noted, vz6'-a-vA the requirements of Rules 142, 178 and 179 that Personal Fall Ainest System (PFAS) and safety belts had been aiTanged but not provided to the workers. It also noted that common safety system had not been provided "at various places",though not specifying the locations where there was such deficiency in,due compliance.Itconfirmed thathealth and safety policy,asrequired by Crl. M.C. 1873/20]5&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 that the inspecting officer had found and verified thatsafety committee and emergency action plan in terms ofRules 208 and 36 respectively were in position,the breach of Rule 209,however,being inferred for the reason qualifications ofthe "safety officer" were not shown. In the brief note ofthe concluding part ofthis report,it was fiirther observed that the temporary platform from where the worker had fallen did not have the provision of toe board or guard rail. The inspection report dated 24.05.2014 is in continuation of the report dated 1-8.05'.2:014 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 t; ground,he not wearing the safety belt'orhFAS atthat point oftime.

40. Pursuant to the inquiries which were raised in the wake ofthe fatal incident of 17.05.2014,the epnstruc.tion 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 corresponderice,.which cohcededly 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, Crl. M.C. 1873/20]5& connected ' Page32of54 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:-

(^, live workingfl-oof dfbund'periphery to preventfall ofmaterials andmen. h). All plants and machineries are fitted with safety device and are frequently inspected and testedfor safety compliance. i). All electrical connections are routed through RCCB, MCB and at source through ELR to avoid any electrocution andoverloadprotection.

3. Medical andotherfacilities: 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 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&ThadgottheSafetyAuditconducted by National ^/ Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing^ extensive':survey / checking at site, submitted its report Tha.relevant excerpts ofthe reports are as under • a). M/s. D&T'liad ph^yided adequate no. of Safety Officers ta deafmith the requirements of safety mcmagen^hfimjUff^^ There is proper work distributfjn Safety Officers to preventclash iiri''efhphSibiih^,!,' b). The owner had cippomied expert consultant organization M/s. Turner, who has appointed NEBSOHqualifiedSafety Officers. c) work at Heightpermit: In Indian Construction majority offatalities occurs due tofall ofworkers from height. Due to this high probability, it had become necessary to ensure implem.entation of Height Work Permit. Under thepermit only those workers are allowed to proceed or work at height for whom safe access — like ladders are provided andsafe workplace like scaffolds exists there. This system is provided by L&T as shown to the Auditors. Crl. M.C. 1873/2015.di conmc.ted d)PersonalProtective Equipments ® The use ofsafety helmet hy all the construction workers was almost100%. © The use of safety belts by those who were. worldng on external side and have potential hazard offall, was more than 98%, as one worker wasfound working without anchoring it with rigidsupport. e Use ofsafetyshoe was observedalmost100%). e) LiftingEquipmentand Tackles M/sL&Thadgotnumerous lifting equipments and Q tackles. The safe use. of one lifiing equipment was checked. It wasfound that the operator was didy trained and the operator andthesignaler were understanding,the signals veiy well.,' ■ f HazardscfWorld.h:g>atfIeight L&Thadtaken thefollowinginecisures topreventfallof workersfrom height:' t; >. yfy ® All the openings-^y^eif^fyations werefound covered with bdr'nM%i.U''% ® All the floor edges were suitably fenced with appropriate hand rails:

9 The stairs were cleanedfor-prevention 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 includingBOCW (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 of54 o safety norms, which have been subject matter ofsurprise checksandthesame have beenfoundto be in order. Without prejudice to what is stated above, it is submitted that L & T had also got another Safety Audit Report done during 24-25'^ May, 2014 by the National Safety Council Delhi Chapter and nothing adverse has been reported in the Audit Report submitted. Copy of the Safety Audit report and the relevant photographs of the site are annexed as AnnexureA (colly).Further,theestablishmenthasgot 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 criminalliability ofthoseconnected to acor]:)orate bodyhavecome up m the past before the courts' in the context of'similar provisions contained in various statutes including,.Section 141.ofthe Negotiable Instruments Act, 1881 (for short, '''Negotiable Instruments Act"); Section 34 of Drugs and Cosmetics Act, 1940 (for short,"Drugs Act");Section 17(1)ofthePreventioh.ofriodd Adulteration Act,1954 (foi short, PFA Act"); and Section 33 ofthe Insecticides Act, 1968 (forshort,"Insecticides Act").

42. On coiporate criminal liability,the following observations ofa constitution bench ofSupreme Court in Standard Chartered Bank & Ors v^. Directorate ofEnforcement& Ors(2005)4SCC530provide 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& comecied „ Page36of54 covporcitio.ns ccinnot cojnynit ci CTime, ■ th.[6] 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 O corporation. In the statutes defining crimes,.the prohibition isfrequently directed^-against any "person" who commits theprohibited.aet,fqhdfn many statutes,the term person" is defused.^Wydri^lithe person is not specifically defined, it n'co.cssarity ifteludes a corporation. It is usually construed tfinfiudk.a.;corporation so as to bring it within theprohiUfign statute andsubjectit topunishment.In the word "person" is defined to include'p-co.rpprdtiofif- ■. xxx Inasmuch as allcriminal andquasi-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 basedon 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 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 " 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 Allpenal statutes 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 O been a slip thatthething isso clearly within the mischief that it must have been intended tO'be included and would have been includedfthoughtofMfpenalprovisions like all other statutes are to hefairly construed according to the legislative intentas.expressed in.the enactment."

43. By virtue, inter a//a, of'the registration, dated 22.02.2012 I I granted to the constructions contractpr'co.mpany by the respondent under Section 7 of the Building and O'onstmction Workers Act, the complainant was privy to the above-said contractual arrangement visa-vis the project in questionbetween the-land owner company and the construction contractor company. O

44. It is' vivid from bare perusal of the provisions ofthe Building and Construction Workers Act,as indeed the rules framed thereunder, that the land owner company having chosen to outsource the work of the constructions, had passed oil the responsibility for all compliances to be made by the construction contractor company in terms of the Crl. M.C. 1873/2015& connected ' Page 28 of54 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,itis theconstructioncontractorcompany which,inthepresentcase,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 ^ contractentered upon by itwith-the construction contractor company Qn 29.03.2012. Thus,neither the land owner company nor those incharge of or responsible to the- cohdupt of its business can be prosecuted for the offence under Section 47 of the Building and Construction Workers Act on the facts set out inthe complaint from which the present petitions arise.

45. The case againsttheconsfructioiie^ractorcompany andthose stated to be in-charge of or responsibie for conduct of its business, however,would stand on a different footing and,thus,need scrutiny separately. ■ ■' ■ ■ 46. InMunicipalCorporation ofDelhivs.Ram KishanRohtagiand Ors.,(1983)1see I,while dealing with the applicability ol Section 17(1)ofPFA Act,theSupremeCourtobseiwed asunder;- "15.Sofaras theManageris concerned,wearesatisfied thatfrom the w'n' ynfm-p, ofhis duties_U_ca]jj2^Jm(^ inferred that ^^>nnld undoubtedly be^ariously liable fnr the offence;vicariousliability beingan incidentofan ■ Page 39of54 ■ Crl. M.C. 1873/2015 & connected • 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, thguherejsanv act committed by the Directorsfrom which a rea.,ny,nhlo inference can be drawn that thev r.mdd also bp, yjcariouslv liable In these circumstances, therefore we owr^e/m m complete agreement with the argument ofthe High Court that no case against the Directors (Accused 4 to 7) has been made out exfacie on the allegations made in the complaint and the proceedings againstthemwererightly quashed. O 47. Following the aforesaid ruling-, in construing the effect of Section34oftheDrugsActmadecisionVreportedasStateofHaryana vs.BrljLaiMittalandOrs.,(199S)5SCCm,Itwasheld thus:- "S...the vicarious liability of a person for being prosecutedfor an offence committed under the Act by a ' company arises ifatthe materialtime he M>as in chnr<rp nf ^4Ami.akpj^^ thecompanyfor the condnr.t ofIts business. Simply because aperson is a director of ^^^^ompany it does notnecessarily mean that hefulfils both the above requirements so as to make him liable. Conversely, M^ mLhem^director a person can b^ it. O ofandresponsible tothecnmpanvforthp.r.mnrtnjnt ^ QUdi.bm^. 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 ey were in charge,ofthe companyandalso responsible to thecompanyforthe conductofits business." Ctl. M.C. 1873/2015&connected Page40of54 o 48.^ Thecounselfortliepetitionershaveplaced relianceonNational SmalllndustriesCorpn.Ltd.vs.HarmeetSinghPalntal,(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),itwasobservedthus:iiibiliN^andil' creatingvicarious cZoTv JfeZ, PP^AmirnUomoMjuJd cmmXJtatement in a comiolaint that the tv~ZZ. companywithout anything more as to the role of the D'rector. ButIhe^mdmmshouldsnell amZ7lZow mdrnwhat rnanner llesp„rA.^t,1.was in,.. oTitZbSr^t7-'Z'^^'^'^otnpcmyfortheconduct siness. 2his is 'in fcphsonance with strict interpretation ofpenalsmmh fsoeciolh, v,he..s^ch statutes create virnriouh:lihhO.iiy.M0'' ■ 14- f <'°m'a>iy tiay-^ff$..pS,^ *0 make any or all m-DmSSs as accused in a ■ c^plaintmerelyonthebasisofastatementthattheyare 7J ''^P°"^«>lefor the conduct of the sZncZ[7] ^Hhout'cmytliing more is nota SXfL,f~

49. InPooJa RavinderDevidasani(supra)while observing that"a director ofa company is liable to be convictedfor an offence committed by the company ifhe/she was in charge ofand Was responsible to the companyforthe conductofits business or ifitis Cil.M.Ci 1873/2015& connected Page41 of54 L\ proved that the ojfence was-committed with the consent or connivance of, or was attributable to any negligence on the part ofthe Director concerned" and noting that"zw 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 vs. Rajiv.Khurana,(2010)11 SCC 469, taldhg note ofthe law which has developed primarily in the context of'Section 141 of Negotiable Instruments Act,it was held thus:- • "17. The ratio ofall these cases is thatthe complainantis required to state in the complaint how a Director who is sought to be-made an accused, was in charge of the business ofthe company or responsiblefor the conductof the company's business. Every Director need not be and is not in charse of the business ofthe company. Ifthat is the position with regard 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 andin whatmanner he is responsible or liable."

51. Reliance has also been placed on the decision ofthe Supreme Court reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, Crl. M.C.1873/2015&connected^., Page42of54 (2005)8see 89; Gunmala Sales vs. Ann Mehta,(2015) 1 See 103 and Standard eharteredBank vs. State ofMaharashtra,(2016)6See 62, all cases dealing with issues relating to the effect and import of Section 141'of Negotiable Instruments Act. Taking note of such decisions in Jwala Devi Enterprises P. Ltd. vs. Fadi ElJaouni, 2018 SeeOnline Del 10030this Court culled outthe settled law as under;-

^ thus:— ' • ■

(i) It is only those persons who are in charse ofor responsible for the conductofthe business of the company at the time of ' commission ofthe offence under Section 138 ofthe Negotiable Instrum.ents Act, 1881 who can be subjected to criminal action with reference to Section 141; (a) If the person committing an offence under Section 138 of the Negotiable Instruments Act, 1881 is a company, the person who wassisnatorv to the cheque which is dishonoured is clearly resvonsible for the ^ incriminating act and would be liable to be proceeded against underSection 141(2); (Hi) Bv virtue of the office they hold, the persons workins in the capacily of the Manas:ins Director or Joint Manasins. Director are deemed to be in chars;e of, and responsible for the conduct ofthe business of. the company and, therefore, can beproceeded againstin terms ofSection 141; Cii. M.C. 1873/2015 connected 43 of54

(iv) Merely because a person is a director ofthe company is not sufficient to make him liable under Section 141, there heins no deemins that by holding such position he is in ■ • charge of, or responsiblefor the conduct of the business of, the company within the meaning ofSection 141; (y) It is necessaryfor the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsiblefor the conduct ofthe business of, the company in terms of Section 141, there beins no need for further particidars to be O 2iyen in the complaint about his role, this beinssubjecttoproofatthetrial; (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 ofCriminal Procedure, 1973 merely on the ground that no particidars as to his role have been setout in the complaint;and (yii) Theperson who has been summoned as an accused,for offence under Section 138 of the Negotiable Instruments Act, 1881 byinvoking 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 furnishins "some sterling incontrovertible material or acceptable circumstances" substantiating his contention CrI. M.C. 1873/2015& connected, ' Page 44 of54 c o that he was not in charge,ofnor responsible for the conductofthe business ofthe company "at the.time the offence was committed" and thereby showing a case that making him stand the trial would be an abuse ofthe process of ■ court, but not otherwise."

52. Having regard to the statutory scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from the prima facie conclusion that the construction contractor company is not only the principal employer of the workers engaged in the construction project where the fatal accident'took place but was also responsible for arranging all the prescribed salfety measured under the Rules.,Section 47 read with Section 53 ofthe Building and Construction Workers Act thus creates a coiporate criminahiiabiiity againstthe said company and I * by virtue ofthe principles ofviearibUk'crirninal liability, every person who,at the time when the was in-charge. of, and was responsible tclijhe^isaidLebh;:^^ for the conduct of its business, as well as the c6mphhy(;'ardfdee^ 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. 1873/2015 & connected. ' Page 45 of54 o 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 companf 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 wasin-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 Cop#,the words"for the conduct of the business of the: company''' appealing 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 acc'ountable for the acts ofcommission or omission'dOhstituting the offence under Section 47 ofthe Buildingnnd.Construatijoh'Workers Act. After all, it is the status ofbeing "in-chafge of or being "responsible" for such business of the company that exposes the individual to vicarious criminal liability. Ifthe act ofdom'missioh or omission is attributable to the neglect ofthe person or on account of his "connivance''' or for that matter, with his "consent", sub-section(2)of Section 53 directly attracts the application of penal provision. For the deeming clause contained in sub-section(1)ofSection 53 to kick in,there has to be a nexus between the area ofresponsibility ofthe person concerned, on one hand, and the act of commission or omission leading to the Crl. M.C. 1873/2015& connected ' Page46of54 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 respo.nsibi#towards a specific rule,at the stage when its breach hasled to.thefatahfy'or serious incident.

54. A different approach tltatii the, one,v;above to the subject might lead to unjust results. This- illustrated by two simple examples. As noted earier5-fhe;ieifr|l^ {establishment) is duty bound, in terms of Secti6n-'4i(^lJ§);;tOyiive intimation, prior to commencement ofthe building^'or:othef'construction work, as to the name and designation ofthe person who will be"in overallcharge of ^ the building orsuchconstruction^Ork;.'ilTaying regardtothescheme of the enactment, and the mules framed thereunder, the employer {establishment)is also responsibletoframe a"safetypolicy (lule 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 Crl. M.C. 1873/2015 & connected o "construction, work at site'' cannot be held accountable. After all, framing of policy, or appointment of safety officers, as required by law, are matters of policy and subject to decision of the persons at superior levels(unless the authority is delegated to the one who is incharge at site) including those working as managing director. Similarly, if those responsible for framing or taking of policy decisions or making available all requirements in the nature of manpower (safety officers) or safety equipment (safety belts, safety net etc.) have done-their bit and the breach of the rules noted at the level ofthe supervisory staffatthe construction site(i.e.the person incharge of the constmction work at site,under Section 46 or those assisting him in the task)they hdvinginbl:'ensured the safety equipment to be availed ofby the workers,.the forrhef(those responsible for the conduct of the business at the kighCr levels) cann.ot be held accountable underthe deeniing provisito^^,■

55. It, is the argumelfty^o;fj;(^lier^b^^ connected to the construction contractor coihphhy vik,^ 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. SftbrallhiaiijrM-'CCrl.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. 1873/2015 & connected Page 48 of54 /1PK C.y' Director and Harish Vaid,Manager(Industrial Relations). Itis further their argumentthatitis notcorrecttO'accusethem,underthe deerning provision ofSection 53,ofcomplicity inthe offence under Section47 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 conresponding case for IPG offences. In this context, they crave reference to the sub-contract in terms of which the deceased worker(AnldtKumar)had been,deployed,atthe 18"\floor levelfrom where hefelltothe groundto sufferindrtjalinjuiies. • ■

56. The copy ofthe sub-Gohtfact,;a|:shpy/n atthe hearing cannotbe treated (without proper proof) as.authentic or "incontrovertible materiar or as one exonerating the construction contractor company of its entire responsibility in tfe-madprr in view of its continued responsibility ofthe sub-contractor as per clause 79.13 ofthe contracfdated29.03.2012,referred to earlier. The argument based on the sub-contract, entered upon by the ^ constructioncontr^actorc01npahy;,Withthefimmediateemployer,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]., ' Page 49of54■ CrL M.C. 1873/2015& connected o

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 infrastmcture, metallurgical & material handling, power transmission and distribution, hydrocarbon engineering,valves, alloys, power development,infotech,finalnce,construction and mining machinery etc.

58. The complaint on which the summoning order was passed itself describes Mr. A.M.-Naik, petitipner. in,-Cfl.M.C.2069/2015 to be the Group Executive Chairmah.of.'tlie-^cpns^^^ contractor company. Similarly,the description ofMr.'M.V.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 they were working at the relevant point of time in the capacities of whole-time Director and President(Heavy Engineering), whole-time Director and ChiefFinancial Officer(CFO),and whole-time Director and Senior Executive Vice President (Corporate Affairs and Power) respectively. By no stretch of reasoning or logic, these four petitioners can be said to be responsible for the compliances to be Crl M.C. 1873/2015& connected Page 50 of54 o 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 Cii.M.C. 2068/2015) or Mr. S.N. Subrahmanyam (petitioner in CrhMX.1873/2015) had no connection with the obligations of the establishment of the ''employer" (construction contractor company) towards compliancesofthe Buiidihgr,andUonstruction Workers Actor the rules framed thereunder. These petitioners do not dispute that at the time ofalleged commission oftheoffdnce under Section 47 ofthe Building and Construction Workers Act,,ithey were worldng for the construction contractor company;ip tHq capacity ofCEO & Managing Director and whole-time;Executive Vice President• (Infrastructure&Construcd0n)4|s]pd^^i(r

60. The very description of the port-folios they held and the responsibilities that would entaildherefroni,^prma/acie showsthatthe allegations inthe criminal complaintasto their deemed liability under Section53 camiotbe,said to be unfounded,notthe least withouttrial.

61. There is merit in the argument ofthe last two above-mentioned petitionersthat given the positions held by them in the company,they could not be expected to remain present atthe construction work site to ensure due compliances to be made with rules 42,.178, 179 oi 196 read with Section 38 ofthe Building and Construction Workers Act Crl. M.C. 1S73/2015& connected Page5!of54 o Ir-] that concern day-to-day use of safety belts, safety nets, safety Pa o^s,or personal fall mrsst systems. But then,it cannot be tgnoiedthatm(eighthparaof)thecomplaint(extractedearfier).there also allegations ofbreach on accountofnon-implementation(« etter andspirit)ofhealth and safety policy in terns ofrule39and ' ■non-appointment of duly qualified safety officers in breach of the requirements ofrule 209 read with Section 38 of the Building and. ConstmctionWorkers Act. These two specific areas cannot;by any stretch of.guments, be relegated to the domain of the managerial (M-. Daljit Singh and hfii.Harish Vaid) made in-charge ofthe construction site.

62. Theabovepetitioners,however,'also,raisethedefencebasedon ttetwo safe^auditreports,onfdatedp3S04.2013 andtheotherdated ^5.05.2014. It wouldbe aaubjectm^er offactualinquiiy as to w ether the safety audit reporf submiftg on 25.04.2014, obtained aterthefatalaccidentsinquestion,canBi.,treatedasonerepresenting •he correct position prevailing' at the time of commission of the offence. Further,it wouldbetheonusofthedefencetoshowthatthe ^ certification by audit report 03.04.2013 wouldhold good till date of ■ the fatalaccident of17.05.2014. Therearespecific allegationsinthe complaint that as on the said date, i.e., 17.05.2014, duly qualified safetyofficerswerenotinpositiontheyhavingnot beenappointedin teims ofthe obligationofthe construction contractor company under rue 209 read with Section 38 of the Building and Constniction ceis Act. Smce this area v/ould fall prima facia within the Ctl. M.C. 1873/2015 & connected Page 52 of54 domam oftheresponsibilitiesheld bypetitionersK.Venlcataramanan ™''S-N-Subrahmanyam,theyareliabletobeproceededagainstimder the deeming clause ofSection 53. Atthetrial,they would have the opportunity, in terms ofproviso to Section 53(1), to prove that the breaches constituting the offences were committed without their knowledge or that they had exercised all due diligence to prevent commission ofsuch breaches(oroffences).

63. On the above facts, and in the circumstances, initiation of criminalaction againstpetitioners.-DLFUniversalLtd.(petitionerin Q Cil.M.C.2064/2015),MohitGujralXpetitionerin Crl.M.C.2067/20I[5]), Rajeev Talwar (petitioner in Crl.MiC.2066/2015), Shriram Khattar (petitionerin Crl.M.C.2160/2015),AsWKumarTyagi(petitionerin Crl.M.C.2159/2015). ■ Sudhfr Sahgal ' (petitioner in Crl.M.C.2158/2015), A.M. Ntiik (petitioner in Crl.M.C.2069/2015); M.V.Kotwal(petitioner m,-&lp;G..307:0/2O15), R.Shankar Raman (petitioner in Crl.M.C.20^fi%).and Sltpendra Roy(petitioner in Crl.M.C.2071/2015) being unfoundddffhe continuation of such proceedings against them would'be an abuse ofthe process oflaw. Therefore, their petitions'are,affewed''and.the proceedings against them in the criminal complaint case(CC 55F1/14)pending in the courtoftheMetropolitan Magistrateareherebyquashed.'

64. Foi'the reasons set out above,however,there is no case made outforthis courtto exerciseitsinherentpowerandjurisdiction under Section 482 Cr.P.C. to.inhibit the criminal proceedings in the aforementioned case against S.N. Subrahmanyam (petitioner in C'bM.C. 1873/2015&connected Page53of54 Crl.M.C.1873/20I[5]) and K. Venkataramanan (petitioner in erl.M.C.2068/2015),.InHieconsequence,thesaidpetitionsarehereby dismissed. It must, however, be added that nothing stated above would be treated as final expression ofopinion on merits ofthe case againstthe said petitioners. 65, The petitions and the appiications filed therewith are disposed ofin above terms. (k.K.GA NOVEMBER19,2018.,':' '^UDGE vk/nlc/yg J Crl. M.C. 1873/20]5& connected Page54of54