R. Shankar Raman v. State NCT of Delhi

15. The seventh chapter {"safety and health measures")is what is crucial to the present.•-It#©nfers^_ Sebtion 40, power on the ^ appropriate government to make^hles"for the safety and health of building woikers,therules envisaged whereby do also cover,persub- Section(2)the following;- "(a) the safe means ofaccess to, and the safety of. any. ^orkins place, includins the provision of suitahle and sufficient scaffolding at various stages when work cannot be safely donefrom the ground orfrom any part ofa buildingorfrom aladderorsuch other meansofsupport;

I. Crl. M.C.1873/2015&connected Page 12of54 (e) the erection, installation, use and maintenance of hoists, lifting amliahces 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 keeping ofsafety nets, safety sheets andsafety belts where the special nature or the circumstances of work render them necessaryfor thesafety ofthe workers; (p) the standards to be complied with regard to scaffolding, ladders and stairs,, lifting appliances, ropes, chains and accessories,.- earth-moving equipments and floating operationalequipments; (r) the safety policy, that is to a policy relating to. steps to be taken to er^SMre ff fyfbffty cmd health ofthe building workers, the admnfstrative arrangements therefor and the matters Gohnec.ted therewith, to beframed bv the employers and contractors.,kbr the operations to be n carried on in a building or.dthefeort^truction work: (u) any other matter-coheermngM^^safety and health of workers worldng in(fff,g0fff^0raipns being carried on in a building or other construettSh work." (emphasis supplied) 0 16. This power to make rules specific to the subject of "rulesfor safety and health ofbuilding workers"is to be read with the general provision contained in Section62(power to make rules)vested inthe appropriate govermnent. Section 41 similarly entrusts the responsibility offraming ofmodel rules for safety measures unto the central government. Crl. M.C.1873/2015&connected Page13of54

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:-

(^; workers, shall, in no case, be less than the persons representingthe employer. (2) In every establishment referred to in sub-section (1), the employer shall also appoint a safet\' officer who shall possess such qualifications and perform such duties as may beprescribed. - - -

44. Responsibility of employers employer shall be responsible for proviiifik dbmlcmt and adequate supervision ofany huilding.or ■otkefyconstruction workin his establishment as to ensure compliance with the, provisions of this Act relating to safety andfor takins all practicalsteps necessaiy toprevent 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 ofthe statute, a "contractor" havingundertaken to carry out the construction Qi.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 responsibility towards safety and health measuresfrom the latter.

19. For completion of namation, 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 ofn an,accident occurring in its establishment, it resulting in death or bodily injury incapacitating a worker for a certain period, this for the purpose of inyestigation or inquiry by such authority as may be deemed necessary. In the present case, the notice of the accident was cqncededly given and the inquiry hei..d,vby the concerned statutory inspectorate. - ' ";;. ' ^ I

20. The Building and Construction:'Workers Act also requires a prior notice ofcommencement of'buiMing.pr construction work to be given,the mandatory information requisitefor such purposes being as indicated in the following provisiOmr.f::.,:;f'v "46. Notice of commencement of building or other construction worltr (1) An employer shall, at least thirty days before the commencementofany buildins or other construction work, send or cause to be sent to the Inspector having jurisdiction in the area where the proposed building or n other construction work is to be executed, a written notice containing- (a)the name and situation ofthe place where the building or other construction work isproposed to be carried,on;. 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 variousstages ofbuilding or other construction work; (g) the name and designation ofthe person who will be in overall charge ofthe buMdihg-ior^other construction work at the site; \ (h)the approximate duration qffhevkork; (i)such other matters as may bej?rescribed. (2) Where any change occurs;in'any of the particulars' furnished -under sub-section -'(If,:.-the employer shall intimate the changeJo, the\Mspf0^ two days of such change... Cv (3) Nothing contained in sub-sectibn (1) shall apply in case ofsuch class ofbuilding or other construction work as the appropriate[Government may_ by'jotification 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 ^0^ 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 underhis control. Pertinentto add,the dutytointimate, in advance, commencement ofthe construction work(by prescribed notice)is not ofthe land owner but ofthe"employer",such statutory notice requiring it to be specified, amongst others, the particulars of the person who would be accountable in the capacity ofhe being "in overall charge".

22. In exercise ofthe power's confeiidd^upon the said authority in exercise of the powers conlfefi^ byj^fh|?;Building and Construction Workers Act,the lieutenant"gqvemdi:'p^ihe Govt. ofNOT ofDelhi made and notified Rules whidlf areiiCalJfed the Delhi Building and Other Construction Workers■'^(ReghfeMG of Employment and Conditions of Service)Rul'e:s-20.^2 Rules for short).

23. The criminal complaint (from which the present proceedings arise) refers speciflcally^.to ■ breach of ^ (Health and safety. policy), rule 42 (Slipping, tripping, cutting, drowning and falling hazards), rule 178 (Safety belt and its use), rule 179 (Safety net and its use), rule 196 (Guardrails) and rule 209 (Safety officer) of the Delhi Rules. All these Rules fallTn different Chapters of third part (Safety andHealth).

24. ■ Rules 39 and 42 appear in the sixth chapter (general provisions), rules 178 and 179 in sixteenth chapter (CatchPlatform and Hoardings, Crl. M.C. 1873/2015 & connected. ' • Page 17 of54 L 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 wMiph may extend to two thousand rupees, or with both, and irtX'tlhdu base of a continidng contravention, with 'which may extendto one hundred rupees for: evety'rday during which such contravention continues after conyfctionfor thefirst such contravention.,, d. ^• (2)Ifany person who kdtk beehvibpnyicted ofany offence,' punishable under again guilty of an offence involving a contiaventioh-'drfailure ofcom.pliahce n of the same provision, he shall be punishable on a subsequent conviction with imprisonmentfor a term which may extend to six manths. or'Witfifine 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 is subsequently being convicted: Providedfurther that the authority imposing thepenalty, if it is satisfied that there are exceptional circumstances Cri. M.C. IS73/20I[5] & conmcted Page 18 of54 warranting such a course may, after recording its reasons in writing, impose afineofless thanfive hundred rupees."

26. It is the contravention ofthe rules relating to health or safety measures which constitutes the offence provided by Section 47 quoted above,and for Hiis^mens rea i.e. the intention to commit the 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.

27. As observed above, it is the contravention ofthe provisions of the Rules on the subject of"safety andUefalth ofbuilding workers", as envisaged in Section 40,which is madb,-pqhishable. Though the.Delhi Rules have been framed and ndtified%itilrdferen to the rule making power conferred on the appropBate gb¥er]bment by section 62,having regard to the subjects that are thereby covered,there can be no dispute that such rules have been framed also in exeFcise ofthe power under section 40.

28. The complainant presses the criminal prosecution against the petitioners primarily on the principle ofvicarious liability and,for this, the provision contained in Section 53 ofthe Building and Construction Workers Act is crucial. It reads thus:- Cri M.C. 1873/2015 & connected -. Page 19of54

53. Offences by companies.-(1)Where an offence under' • this Act has been committed by a company, every person who, at the time the offence was committed, was in charde of and was responsible to, the company for the conductof the business ofthe comvany. as wellas the company,shall be deemed to be suiltv ofthe offence andshall be liable to n beproceededagainstandpunishedaccordingly: Proyided that nothing contained in this sub-section shall render any such person'liable to any punishment, if he proyes that.the offence was committed without his knowledge or that he Had exercised all due dilisence to. preyentthe commissionofsuch offence. (2)Nothwithstanding anythinQ.contained in sub-section(1) where any offence under this.■Actfhafbeen committedby a company and it is proved ■t Mf'fhe offence has been committed with the cpnsent,loWo'e.onnivance of, or is attributable to any neglect onfthe:part of any director. manager, secretary or other officer, of the company, such director, manager, secretary Sr. other officer shall be deemed to be suilty ofthat.offence andshallbe liable to be proceededagainst and-prim^kedfcgordingly. Explanation.-For thepmpgs'e^rSfihis-Section,- (a) "company" means any body corporate and includes a firm orother association ofindiyiduals; and (b) "director", inreljdlpp.tppi^^ apartner in the ' firm. " '■ '" '

29. As was highlighted during the course ofhearing,not only by the learned counsel representing the petitioners, but also by the counsel for the State (the complainant), the afore-quoted provision of Section 53 is almost identical with similar provisions concerning vicarious Cri M.C. 1873/2015 & connected Page 20 of54 liability contained in other criminal laws to the effect ofwhich some detailed reference shallneed to be made later.

30. It IS clear from the bare reading of the statutory clause that wherethe offenceiscommitted byacompany,in ordertoropein any other person onthe principle ofvicarious criminal liability,it mustbe shown tliatsuch person was "in-charge ofand wasresponsible to the company for the 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, defence, that he was not,;responsible either because the acts constituting the offence were.committed:' his knowledge"or because hehad "exercisedalMkedit^s^bdopreventthecommission ojsuch offence. Notwithstanding -fh^ ipain provision contained in Section 53(1),the prosecutiorimpb|im|ated against "anyDirector, n Secretary or Oth^''o^^ri6ffj§^<dbmpany"ifthere is proof availabletoshowthatthe "with theconsentor connivance of or is attributable to any neglect on the part of"such director, manager, secretaiy or other officer,ofthe company. While section 53(1)relies on "&dm%'''dU6S^the position ofthe person vis-a-vis the company "in-charge of" and "responsible to", section 53(2) necessarily requires positive evidence to show active participation reflective of"consent", "connivance"or "neglect".

31. In the 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., - Page21 of54 w 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 camiot 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 a formal contractto the-construeti'pn contractor company. It is indicated in the complaint dtself that -the construction contractor company had got itself,registered with tbe statutory authority of the appropriate government in compliance': with the requirements of Section 7. The certificate,of-registfation.•describes the construction contractor company to be thC "es'idbiishment" for purposes of construction of"DLF Capital Greens Project" by it, it being a project of "residential building", the work', to be carried out. during 02.01.2012 to 17.11.2014, its representative 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 r Cri M.C. ]873/2015& connected., Page 22 of54 U( about the fatal accident was given by the construction contractor company abiding by its responsibility under Section 39.

33. After setting out the facts pertaining to the fatal accident on 07.05.2014, while referring to the previous such incidents, and describing the positions ofthe petitioners (as indeed of three others who are- not before this court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:- "3. That Sh. Mohit.Gujral, Chairman, Sh. Rajeev Talwar,-Managing Director, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal,, Director ofM/s. DLF,Universal Ltd., Shopping Mall, 3'"'' Floor, Arjun Marg, DLF Cityl Block E, DLF Phase 1, Sector 26A, Gurgaon, n Haryana 122002 are the "Directors" and Sh. A.M. Naik, Group Executive Chairman,Sh. K. Venkatammdn.an, CEO & MD,Sh. M.V. Kotwal,.^Whole time Direetpr/dk-.^fesident, Heavy Engg., Sh. S.N. Subrahmanyan, hffiole 'titfl.e,Director & Sr. EVP (Infrastructure'& cdmtf%lipn);pfp-R. Shankar Raman, Whole time Director &.QPOFShyShailendra Roy, Whole time Director & Sr. EVP(Corporate ajfairs &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. 1873,0015& 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 eighteenthfloor and was reportedly engaged in the work ofapplying paint on theface ofthe wall,fell to the ground, causing him severe injuries resulting in death.

5. That besides this, prima facie, it appeared on inspections that the manasement failed to ensure adequate site management as envisaged 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 Consti-uctidn Workers (Regulation of Employment and Conditions of Service) Rules, 2002: Management had, not taken all appropriate measures as per • fie, said Act and Rules framed thereunder to prevent accidents at building site of suchproportion and magriitude. /,

6. That there have beenjfatal.accidents residting into loss oflives of[5] workers in the rec'ent 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 prohibitoty order,was also issued to.them to stop.the construction work of entire site till complete/full compliances of all the safet\!provisions as mentioned in - the said Actand Rulesframes thereunder as applicable on the construction site ofthis magnitude were made.

7. That further, repeated deaths clearly pointed to neslect and commissions. & omissions and lack of due diligence towards all aspects of-human lives, safety and welfare at their site as envisaged in the said Act and Rules.framed thereunder. n 8. That dimng the course of inspection and investigation, the followins breach ofthe provisions ofthe "said Rides"read with the "said Act" were observed:- Crl. M.C. 1873/2015 & connected • Page 24 of54 H[3]

I. That the workers working at height -were n^. provided with safet\' 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 179 ofthe saidRules.

III. That the platforms and balconies, from where a worker is liable tofell, had not beenprovided with suitable..& safe suardrails and toeboards ofadequate strength in conti-avention ofthe provisions of Rule 196 of the said Rides..

IV. That more than.500'; I.e. 2700 workers were ordinarily employed at the construction site but Safety Officers as per qualificaUon dpd condition ofservice as laid down in Schedule VIII ofthe'said Rules had not-been appointed, in conti^avektioh-ofthe provisions ofRule 209 ofthe saidRules read withSectipm 8.8ofthe said Act.

V. That the mandgemehtsMmeiMot implemented their

9. That the above accused persons are thus euilty of contravenins the..provisions of Rules.39.42.178.179.196 and 209 ofthe said]Rules.read wMhtSeptions 38,40 and 53 ofthe said Act which is'punishable under section 47ofthe n "Said Act"for an imprisonmentfor a term which may extent to 03 months or with afine which may extend to Two ThousandRupees or with both.".

34. The reference to the prohibitory order having been issued by the statutoiy authority on 26.05.20,14 vis-a-vis the project site, being a Crl. M.C. 1873/2015 & connected Page 25 of54 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 formfreports dated 18.05.2014 and 24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, leply dated 18.06.2014 ofthe land owner company and replies dated 04.06.2014, 17.06.2014 and 04.08.20i[4] 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 p.oliby,'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 aclmowledgted.''. v-

36. The documents in whidh'&gai]^flhere is no dispute, upon perusal,show thatthe land owner company had entered into a contract on 29.03.2012 with; the construQtion 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 constrtiction 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 Crl. M.C. 1873/201-5&connected Page26of54' 79.[1] The contractor.shall incorporate in his operations the requirements,ofall the 'Safety Code.<;' issued by the Bureau ofIndianStandards andprovisions oftheNational Building Code ofIndia 2005including any amendments, thereof The Building and Other Construction Workers (Regulation ofEmployment and Conditions ofServices) Act, 1996 and any other applicable statutory rules and regulations. These requirements shall apply in all cases exceptwhere the regidations ofthe localauthority require more stringent measures • to be taken. Where the. requirementsofBISCodesand/orNationalBuilding Code, ' the Buildingand Other Construction Workers(Regulations ofEmployment and Conditions ofServices)Act, 1996 are duplicated bythe localregulations orthe "Safety Manual" Provided by the Owner,-. the-morp.stringent of these, regulations shall be-deedted.ioidpp)y:.. The Safety Manual provided by the Ownen is bn^0^estive and shall not castany liability on tfe^OVmeftfT-I' 79.[2] The contractorshall movideisafe means ofaccess to all workinsplaces. 79.[3] The contractor'. O vrover desim oftke'SciMUdmsp.d- emvorarv accesses. ladders and ramvs,:formwhrkfand>-hoisting' a.rra.n.p-p.mpmt.v cranes etc. to ensure safety'dfmbrkmen as well as the be maintained in safe conditions. Only-tubularscaffolding.shall be used. ^ - 79.[4] All necessary personal safetv/protective equipment. first aid kit, medically trained versonal, fully equipped ambulance and any other facilities as per the statutoiw requirements should be always available on the site for The contractor shall take adequate steps to ensure proper maintenance and use of equioment by his employees/staff/personneland workers. 79.[5] Adequate precautions shall be taken to prevent dangerfrom electricalequipment. Crl.M.C.1873/2015& connected Page27of54 79.[6] No materials on the site ofwork shall be so stacked or placed as to cause danger or inconvenience to-any person or thepublic. 19.[1] The contractor shall provide and maintain all necessary temporary fire protection and fire fighting facilities at the site during the execution ofthe works in' accordance with the NationalBuilding Code ofIndia 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and. explosive materials and goods are stored and handled in a safe manner andin accordance with thestatutory regulations. 19.[8] The contractor shall notify the ensineer immediatelv ofany occurrence ofmishaps or accidents that results in O, death or injury (including grievous injury) as defined in the Indian Penal Code. Such dnUial notifi:cation may be verbal and confirmed in writing thereafter and shall be followed by a comprehensive vyrittpn report within 24 hrs of the occurrence/incifdent..^ The^Contractor shall duly complete standardfdrrus'as..reqUirfd by the engineer and n statutory authorities. ', 'f.f 19.[9] It is made cledk'tlidt: d^ilbntractor alone as the ' ^ Principal nErnvloverkJsfi ansdvefctlilel^^ liable to all investisatin^ and le^lmMorikes'fiicludins Court ofLaw and the Owner shalTnot have any part or liability in.this resard. The Contractor alone shall be responsible and liable to compensate, the victims-..- mmediately on n the r; occurrence ofthe mishaps or accidents and also protect and indemnify and hold harmless the owner, the engineer and all persons 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, damases or losses arisins by reason,ofany violation ofthe.mfetv requirements resultins in any iniuiw or loss,oflife to the contactor's or any sub contractor's EmplOvees/Staff/personneland. Workers/Third Party (non-fatal/fatal) shall be met by the contractor who Crl. M.C. 1873/2015& connected., Page28 of54 alone will be responsible for handlins and disposal ofthe accidental cases with Govermnent/non-Government authorities. n The Contractor shall be hound to pay compensation,to the personsfor the injuries sustained or death owingto neglectofthesafetyprecautionsshouldany claim proceedings he filed against the owner/engineer. The contractor hereby agrees to indemnify the owner and the engineer against all liabilities and keep the owner, his employees, personnel, agents, representatives and anyone connected with the owner, protected from civil and criminalprosecution in such cases and be answerablefor thesame before all authorities.

79.11 Within one week- of commencement date, the contractor shall submit -to the ensineer, a detailed and comprehensive contract'shall:submit to the engineer, a detailed and comprehensive contract specific site safety plan, based on the requirements\.stated in clause 79.[1] above. The site safety plan shall ifelude detailed policies, procedures and re2idatioris{which,iwhen implemented will ensure safety ofall the persons, including thirdparties on, or in the vicinity ofthe site (including without limitation, persons to whom accessedthefilpyhds been allowed by the contractor). The cordr'actorlshMffmm time to time as necessary, producesllpp)lp^eni&d070ik^site safetyplan such that it is at all times a'detailed, comprehensive and contemporaneous statement by the conti^actor of his sitesafety and industrial health, obligations:, responsibilities, policies and procedure. (iirMer 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 recognized safety practices throughout the execution of works. CH. M,C. 1873/2015 & connected Page29of54

79.13 The conti^actor shall adhere to the Site Safety Plan ■and shall ensure that all sub-contractors ofall tiers hove copy ofthe SiteSafetyplan andcomply with its provisions. The contactor shall appoint a Qualified and experienced person as Site Safety^Offiter to act as Manager ofthe Site Safety Plan and who will be re.sponsible for all 7^^, matters related to the works. The contractor shadl, from time to time, provide such other personnel and resources as may he requiredto ensure effective operation ofthe Site Safety Plan. The said Site Safety Officer shall submit 1egular safety reports to the Engineer in accordance with the requirements oftheEngineer andallrelevant statutoiy authorities,. as required by Applicable ■ laws and regulations. Th.e contractor shall submit on a monthly « Certificate of Compliancefor Health, Safety and. Environment as given wAppendix,^''M".".; ' (emphasis supplied)

37. It appears that in the v,^afee pf thefathl incident that occurred on 28.02.2013 (deathofMaqbooljiat the:sam'e very site,prohibitory order followed by revocation order,;had,beep^ on 01.03.2013 and, 08.03.2013. Against the,|^id"bacl^r(bp||tl^ construction contractor company had taken steps fbh^gStih^:®.safety audit of the project done. An audit report dated 03.04.2013 was submitted to the authorities by the said cbinpahy-underrthe; cover of its letter dated 25.04.2013. Reference to the said auditreport andthe coiTespondence exchanged in such regard was made by the constiiiction contractor company in its letter dated 17.06.2014, which is part of the.material that was submitted with the criminal complaint leading to the impugned order beingpassed. In thereply affidavit dated 28.09.2018, the complainant also confirms that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactoiy Crl. M.C. ]873/2015 & connected Page30of54 i6poit 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 oftheintimationsthathad been given,Mr.DaljeetSingh, the Pioject Director ofthe construction contractor company,was the person "incharge of the constmction site" and Mr. Harish Vaid, Manager(Inteinalrelations)wasthe Managerofthe Construction Site, within the meaning of Section 53 of'the Building and Construction Workers Act. As also noted.earlier,-bpth the said accused persons have notchallenged the,summoning order;.

39. It was also brought outi.durihg'the^^'^ ofhearing that at the time ofinspection(s),leadingto inspbcrt^ dated 18.05.2014, 24.05.2014 being.prepared,# Singh,who was found asthepersoninchargeoft^eS'itfjiSeli^i^g^^sistedthecomplainant's officeis in such•.inspection'. atl^fe/Mtel-.f a.-'Phe report, prepared on inspection carried out in the forenoon of 18.05.2014, is the most ciucial inspection report,.for purposes o.f,.the,,case arising out of the 0 incident that occuiTed 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 arranged but not provided to the workers; It also noted that common safety system had not been provided "at various places",though not specifying the locations where there was such deficiency in due compliance.It confirmed that health and safety policy,as required by Crl. M.C. 1873/2015&connected Page31 of54 ^<9 o r. Rule 39 had been formulated^, the breach of the statutory rules was noted for the reason such policy had not been submitted for approval. The report, atthe same time,confirmed that the inspecting officer had found and verified that safety committee and emergency action plan in, terms ofRules 208 and 36 respectively were in position,the breach of Rule 209,however,being inferred for the reason qualifications ofthe "safety officer" were not shown. In the brief note 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 l-8v05'.2014 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 wearingthe safety belt-or'l^FAS atthatpointoftime.

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, Crl. M.C. 1873/2015& connected Page 32of54 ( ) the safety policy having been, formulated and- forwarded" to the authorities by letter dated 25.04.2014, duly qualified duty safety officers having been deployed at site, the steps taken inclusive ofthe following "2. On site safety measures: N ' a). L&T has deployed (3) Safety Managers, (5) Safety Engineers (12) Safety Supervisors and (30) Safety Stewards at site to control and monitor the safety measures. b). L&T has provided personal protective Equipment to all workerts. and-its'usage is enforced prior to constructdpn'-siie entry., c). The workers.:ate.Uri^d about the hazards involved in particular acfimty- before start of the d). L&T has protected the'floor edge with hard barricades. e). L&Thasprotected diBOpknings, cut outs with reinforcement mat. ' '■ f. L&Thas closedalllift shafts with gates. g). Safetypatehdhetplare^^^ below 6 m oflive workingfloor dfbund'periphery to preventfall. ofmaterials andmen. I h). All plants and machineries are fitted with safety device and are frequently inspected and testedfor safety compliance. i). Allelectricalconnections areroutedthrough 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 facilitiesprovided atsite. b). Well maintained canteen at site and workers habitat area. c). Continuous waterfacilitiesfor drinking and sanitationfacilities. d). Mobile toilets dt 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&Thadgot the Safety Audit conductedbyNational 'Safety Council, Delhi Chapter in the year 2013.: The Audit Team after doing exten'siyW-survey / checking at site, submitted its report. The.relevgnt excerpts of the reports are as under; ' ■ a). M/s. D&T''had pifiyfied adequate no. of Safety Officers td dealfmth the requirements of safety managernmtifn tUffi^ht. There■ is proper. work distribution qmdhgsififie:se Safety Officers to prevent clash mresfiphSifiidifii.T' 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 to fall,of workers from hdght. Due to this high probability, it had become necessary to ensure implementation 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. I8'73/20I[5]. connected Page 34 of54 d)PersonalProtectiveEquipments e The use ofsafety helmet by all the construction workers Vt^as 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 worldng without anchoring it with rigid support. © 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 duly trained and the operator and thesignalefwere understanding,the signals very well. I f Hazards ofWorlditgqtiHeight L&Thadtakenthefolldwifgmbpsures topreventfallof workersfrom height:•" v...n'ypp-- ® All the oper00'd^hi^§f:^l^ptions werefound covered with Bdrfietk[1] * All the floor edges were suitably fenced with appropriate handrails. n ® The stairs were cleanedforprevention ofslipping ^9 due toslipperyfloor. 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 Cri M.C.1873/2015&connected Page3o of54 safety norms, which have been subject matter ofsurprise checks and thesam.e have beenfound to be in order. Without prejudice to what is stated above, it is submitted that L & T had also got another Safety Audit Report'done during 24-25"^ May, 2014 by the National Safety' Council Delhi Chapter and nothing adverse has been reported' in the Audit Report submitted. Copy ofthe Safety Audit report and the relevant photographs of the site are annexed as. Annexure A (colly). Further, the establishment has got its audit done from DGFASLI and the report is awaited and the same shall be submitted as and when it is.received.

41. The questions relating to eorporate liability and vicarious criminal liability ofthose connected to a cor]:)orate body have,come up in the past before the courts in the -context of similar provisions contained in various statutes including.,Section 14Lofthe Negotiable Instruments Act, 1881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs and. Cosmetics.Act, 1940 (for short,n "Drugs n ^ Act");Section 17(1)ofthe,'Pre-y.enti,otl',ohTo:od 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 vs. 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 n CkI M.C. 1873/2015 & connected Page 36 of54 corporations cannot commit a crime,'the generally accepted modern rule is that exceptfor such crimes as a corporation is held incapable ofcommitting by reason of the fact that they,involve personal malicious intent, a corporation may be subject to indictment or other criminalprocess, although the criminal act is committed through its agents. XXX As in the case oftorts, the general rule prevails that the corporation may be criminally liablefor the acts ofan officer or agent, assumed to be done by him when exercising authorisedpowers, and withoutproofthat his act was expressly authorised or approved by the corporation. In the statuses defining crimes, Jhe prohibition is frequently ndirected'^against any "person" who commits the'prohibit^. many statutes the term "person" is dlefiltedl^p^Iff'the person is not specifically defined, it pecessanlyipeludes a corporation. It is usually constriied tdoinclud!ejqj>corporation so as to bring it within theprohibifgn Sfjt^bptatute andsubjectit topunishment In mo^offlt&.s-tqfjit^fidhe word "person" is defined to include a-corpprdjiofffy; XXX '; I 'b.' Inasmuch as all criminal and quasi-criminal offences are creatures ofstatute, the amenability ofthe corporation to prosecution necessarily-depends:upon the terminology O employed in the statute.In the case ofstrict liability, the terminolog}) employed by the legislature is such as.to reveal an intent that guilt shall not be predicated upon tlie automatic breach- of the statute but on the establishment-ofthe actus reus, subject to the defence of due diligence. The law isprimarily based on the terms of the statutes. In the case ofabsolute liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutoryprohibition, noparticular state ofmind is a Crl. M.C. 1873/2015(Reconnected •, Page27of:}4 1^: w 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. 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 m-ust not strain the words on any notion that there has been a slip that the thing isso clearly within the mischief that it must have been intended to^be included and would have been included ifthought:ofyAd^^pmcilprovisionslike all other statutes are to befairly'construed according to the legislative intentasi.expressedin fhe enactment."

43. By virtue, inter alia, of the registration, dated 22.02.2012 granted to the constructions contractor"aompany by the respondent under Section 7 of the Building and Constmction Workers Act, the complainant was privy to the above-said contractual an-angement visa-vis the projectin questionbetweenfne'iknd 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 ofthe Cii. M.C. 1873/2015& connected ' • Page38,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. Under the law,it is the construction contractorcompany which,inthe presentcase,is''the employed -the establishment which was to make compliances for safety measures to be put in position. There is no responsibility shown ofthe land owner company,or anyone connected thereto,this having- been clearly understood and explicitly so stated even in the contract entered upon by it with the construction contractor company on 29.03.2012. Thus,neither/the larid py/ner 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 Acton the facts set out in the complaint from which the present petitions arise.

45. The case againsttheconstructiohc^ractorcompany andthose 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 MunicipalCorporationofDelhivs.Ram KishanRohtagiand Ors.,(1983)1see I,while dealing with-'the applicability of Section 17(1)ofPFA Act,theSupremeCourtobserved asunder:- "15.Sofarasthe Manageris concerned,wearesatisfied thatfrom the very nature ofhis duiies_ii_can_be_.jafely inferred that he would undoubtedly he vicariously liable for the offence; vicarious liability being an incidentofan. Page39of54 n Crl. M.C. 1873/2015 & connected o£ence 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 a.nv act committed,by the Directors from which a reasonable inference can be drawn that they could ahn hp 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 wererightly quashed.. (emphasissupplied) following the aforesaid- ruling-, in construing the effect of Section34oftheDrugsActin adecisionVreported asStateofHaryana vs.BrijLaiMittaland Ors.,(im)5SCCm,it was heldthus:- 8...the vicarious liability of a person for being prosecutedfor an offence committed under the Act by a ' company arises ifatthe materialtime he was in 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. n Conversely, without bein^ a director a person can hp. iy, ofandresponsible to the comnanv for the cond.ur.t ~ o/" its business. From the complaint in question we, however, find that except a bald statement that the respondents M>ere directors ofthe manufacturers, there is no other allegation to indicate, even primafacie, that they were in charge,ofthe company andalso responsible to the companyfor the conductofits.business.. Crl. M.C. 1873/2015& connected o to.r-j rage 40of34 1#^

48. Thecounselforthepetitionershaveplaced relianceon National- SmallIndustriesCorpn.Ltd.vs.HarmeetSinghPalntal,(2010)3SCC 330 and Pooj'a Ravinder.Devidasani vs. State ofMaharashtra and Am.,(2014)16SCC[1] both dealing with issues ofvicarious liability under the Negotiable Instalments Act. In NationalSmallIndustries Coipn.Ltd.(supra),it was observed thus:- ^41 is apenalprovision creating vicarious liability, and which, asper settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint thm thr, Dirrc'rr (arrayed as an accused)'is in charge ofand respon^ihlp tojhe companyfor the. conduct ofthe business ofthe. company without anything more.■as to the role of the Director. But the complaint.ihmJJd spell nut as to how and in what manner Respondent d'Was in charge of or msr^mrn^ the ackasedACompanyfor the conduct 0] its business. This, is 'in.ycohsonance with strict interpretation erfpencf.stmtisfiekieciallv. wharp.^urh statutescreate vicariotisd^Ui^irfrf' ■

14. A company ofDirectors and to make any or all. tMe 'Vimciorh as accused in a complaintmerely on the.basis ofastatement that they are in charge of and responsible for the conduct of the business of the company without-anything more is not a sufficient or adequate fulfilment of the requirements under Section 141.

49. InPooja Ravinder Devidasani (supra) while observing that "a director of a company is liable to be convicted for an offence committed by the company if he / she M>as in charge of and was responsible to the companyfor the conduct ofits business or ifit is CrI.M.C. IS73/20}5&comected - ' Page41of54 (9 i. • 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'^in the entire complaint neither the role of the appellant in the affairs ofthe company was explained nor in what manner the appellant is responsiblefor the conduct ofbusiness ofthe company was explained',the prosecution against the appellant for the offence under Section 138 of the Negotiable Instruments Act was quashed.

50. Wliile examining similar questions vis-a-vis Section 33 of Insecticides Act, in judgment,reported as State ofNCT ofDelhi vs. Rajiv-Khurana,(2010) 11 SCC 469,,taldrig note of the 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 complainantii required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business ofthe company or responsiblefor the conduct of the company's business. Even'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 responsibilities in the conduct ofbusiness ofthe company and how and in what manner he is responsible or liable." (emphasissupplied)

51. Reliance has also been placed on the decision of the Supreme Court reported as S.M.S.. Pharmaceuticals Ltd. vs. Neeta Bhalla, Cii. M.C. 1873/2015& connected Page 42of54 c (lOOSy 8see 89; Gunmala Sales vs. Am Mehta,(2015) 1 See 103 andStandard eharteredBankvs. 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 m Jwala Devi Enterprises P. Ltd. vs. Fadi ElJaouni, 2018 SeeOnlineDel10030this Courtculled outthe settled law as under:- "14. The guiding principles with reference to Section. 141 ofthe Negotiable Instruments Act, 1881, which are now well settled by judicial pronouncements, some of which have been noted above, may be summarised thus:— •. n,

(i) It is only those persons who are in charge ofor responsible for the conductofthe business of the company at the time of commission ofthe offence under Section 138 ofthe Negotiable Instimments Act, 1881 who can be subjected to criminal action with, reference to Section 141;

(ii) If the person committing an offence lender Section 138 of the Negotiable

Instruments Act, 1881 is a company, the person who wassignatory to the cheque which is dishonoured is clearly responsible for the incriminciting act and would be liable to be proceededagainstunderSection 141(2); (Hi) Fv virtue of the office thev hold, the persons working: in the capacity—of— Managin[2] Director or Joint Manasins Director are deemed to be in charge of and rp.^pnnsihle for the conductofthe business of the company and, therefore, can beproceeded n againstin termsofSection 141; Crl. M.C. 1873/2015 & connected

(iv) Merely because a person is a director ofthe company is not sufficient to. make him liable under Section 141,- there beins.no deemins.that by holdinssuch position he is in charge of, or responsiblefor the conduct of the business of the company within the meaning ofSection 141; (y) It is necessaryfor the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsiblefor the conduct ofthe business of the company in terms of Section 141, there ^ bein[2] no need for further particulars to be siyen in the complaint about his role, this bein2subject toproofatthetrial: (yi) 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 cannotget the complaint quashed by the High Court byfiling apetition under Section 482 of the Code ofCriminalProcedure, 1973 merely on the ground that no particulars as to his role haye been setout in the complaint;and n (yii) Theperson who has been summoned as 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 incontrovertible material or acceptable circumstances" substantiating his contention CrI.M.C. 1873./2015 & connected ' Page 44 of54 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 he an abuse ofthe process of court, but nototherwise."

52. Having regard to the statutoiy scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from prima facie conclusion that the construction contractor company is not only the principal employer of the workers engaged in the construction n project wherethefatal accident■took,placebut was alsoresponsible for arranging all theprescribed safety measuredunder the Rules. Section 47 read with Section 53 of theBuildingaph Construction Workers Act thus creates a coiporate crimmahliability against the said company and by virtue ofthe principles of vioarioi|S'"'cri'ininal liability, every person who, at the time when the sM^:pfenG|y^'momm^ was in-charge of, and was responsible tOo) for-the conduct of its business, as well as the cdiiif:;.:d:Semed to be liable to be proceeded against. Just as in the case of Section 141 of Negotiable Instruments Act, by virtue,of the.office they -hold,, such persons as work in the capacity of a managing director or the joint managing director or, for that matter, persons employed as in-charge of the construction work at site, be it in a managerial position or in any.supervisory position, are deemod to be in-charge of and responsible for the conduct of the business, to the company. They can, therefore,;be proceeded against in tenns of Section 53. At the same time, however, merely because a person is a "director" of the company is CrL M.C. 1873/20!5 & connected Page 45 of54 0^ not sufficient to attract Section 53, there being no deeming that by holding such position he is rendered to be one who is 'Hn-charge of or'^responsible to the company"for the conduct ofits business. As is also well settled in the context of prosecutions under the Negotiable Instruments Act, though it is necessary to specifically aver in the complaint that the person sought to be prosecuted was in-charge ofor responsible to the company for the conduct ofits business"at the time the offence was committed',there is no requirement in law for"further particulars to be given" in the'complaint about his role, this,being subject matter ofproofto be adduced atthe trial.

53. In the considered view ofthis C.ouif,the words"for the conduct of the business of the company" appearmg in Section 53 are most crucial, pregnant with meankig and provide the key to determine, whether a person connected tofhe compdny may be held accountable for the acts ofcommission or omissidn^'Gohstituting the offence-under Section 47 ofthe Building^andlSonstructibn'Workers Act. After all, it is the status ofbeing"in-chafge of or being "responsible" for such business of the coihpany that exposes the individual to vicarious criminal liability. Ifthe act-ofeom'missioh of omission is attributable to the neglect ofthe'person or on account of his "connivance" or for that matter, with his "consent", sub-section(2)of Section 53 directly attracts the application of penal provision. For the deeming clause contained in sub-section(1)ofSection 53 to kick in,there has to be a nexus between the area ofresponsibility ofthe person concerned, on one hand, and the act of commission or omission leading to the Crl. M.C. 1873/2015 &■connected Page 46 of54 rcontraventioii ofthe rules under Section 40, on the other. To put it more precisely,and clearly,inthe contextofthe offence under Section 47 ofBuilding and Construction Workers Act,the responsibility vis-a vis the specific rule framed under Section 40(the breach of which is alleged) has to be shown to be in existence for a person connected with the business of the company presumed to be 'Hn-charge" or ''responsible". There can be no thumb rule that every person "incharge of" or "responsible to",for,the conduct ofthe business ofthe company in the general sense ofthe term would be vicariously liable under the criminal law whether or not he was expected to play any specific role or discharge respbnsibil'ityfowards a specific rule,atthe stage whenits breach hasledtothefataiity orseriousincident.

54. A different approach ^a^ihe|0)|e|^ove to the sutyect might lead to unjust results. ma;^" illustrated by two simple examples. As noted earferj---^!§r^i^^er {establishment) is duty bound, in terms of Section intimation, prior to commencement ofthe building or othef:c"onstruction work, as'to the name and designation of,the person who willbe"in overallcharge of the building or such constiudtionWbrkfr7Having regard tothe scheme of the enactment and the rules framed thereunder, the employei {establishment)is alsoresponsibletoframe a"safetypolicy (rule39) and also to appoint and deploy a"safety officer"{m\o 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 "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 ofthe rules noted at the level ofthe supervisory staffatthe construction site(i.e.the person incharge of the construction work at site,under Section 46 or those assisting him in the task)they havinginot'ensured the safety equipment to be availed ofby the workers,4he forrhef(those responsible for the conduct of the business at the higher levels) cannot be held accountable underthe deeming,proyisi^ni,,-.' n..A, ^ I'-

55. It is the argumenly^of^hdy.^^^ connected•'to-.the construction contractor cortiphhy viz;;, A M Naik (Cii.M.C. 2069/2015), K Venkatramanan (Crl.M.C. 2068/2015), M V Kotwal (Crl.M.C 2.070/2015), S.N. Subrahhiarfyam {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 mles. framed thereunder and that the breaches, if any, occurred at the level ofthe person(s) in-charge ofthe construction site i.e. Daljit Singh,Project Crl. M.C. 1873/2015& connected- ' • Page 48 of54 Director and Harish Vaid,Manager(Industrial Relations). It is further their argumentthat it is not correcttO'accuse them,under the deeming provision ofSection 53,ofcomplicity in the offence under Section 47 in the context ofthe fatal accident of 17.05.2014 also for the reason that the worker in question (Ankit Kumar) had been engaged by a sub-cOntractor, the representative of such sub-contractor being the person who has been found responsible in the investigation by police in the corresponding case for IPG offences. In this context, they crave reference to the sub-contract in terms of which the deceased worker(Ankit Kumar)had been.dqplpyed at the 18"^ floor level fi 'om where he fellto the ground to suffer mortal injuries.

56. The copy ofthe sub-Gontkct,,:.d&::shpwn atthe hearing cannot be treated (without proper prObf).as.apthentic or ''incontrovertible materiar or as one exonerating,the cohsfrtjction contractor company of its entire responsibility in-the--inattpr;:-'particularly in view of its continued responsibility vz5-(3.-rviA^h^ ofthe sub-contractor as per clause 79.13 ofthe contracfrtated ■29.03.2012, referred to earlier. The argument based on the sub-contract, entered upon by the construction contractor cOmpiahyr.With thertmmediate employer,of the deceased worker cannot also be accepted at this stage of the proceedings, particularly in exercise of the 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) 3 see 330]. CrlM.C. 1873/2015 & connected Page 49 of54 L C*S.

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 incoiporated to operate in different schemes or spheres including building and factories, civil infrastmcture,n metallurgical & material handling, power transmission and distribution,hydrocarbon engineering,valves, alloys,power development,infotecfi,fmaince,construction and mining machinery etc.

58. The complaint on whichthe smtimbning order was passed itself describes Mr. A.M. Naik, petitioner,in Ofl.M.C.2069/2015 to be the Group Executive Chairmaih^0£•■^g'-cons^#on contractor company. Similarly, the description ofMr,'M.¥.is:otwal,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 Chief Financial 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 CH. M.C. 1873/2015 & connected ' Page 50 of54 a ma.de with regard to the prescribed safety, measures concerning tlie 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 Buiiding.and"Construction Workers Act or the rules framed-thereunder.. These petitioners do not dispute that at the time ofalleged commission ofthe offence under Section 47 ofthe Building and Construction Workers Act,'ithey were working for the construction contractor companyin thq capacity ofCEO & Managing Director and whole-time Diire.^t6|^l5&/'^^^^^XExecutive Vice President- (Infrastructure&Construcfion),.|lsp%i^ifP'

60. The very description of the port-folios they held a.nd the responsibilities that woiild ent.ailrtherefrpin^ facie shows thatthe j^; allegations in the criminal complaint as to their deemed liability under Section 53 cannot be said to be unfounded,notthe least withouttrial.

61. There is merit in the argument ofthe last two above-mentioned petitioners that given the positions held by them in the company,they could not be expected to remain present at the construction work site to ensure due compliances to be made with rules 42, 178, 179 or196 read with Section 38 of the Building and Construction Workers Act Crl M.C. 1873/2015& connected Page 51 of54 ^0 that concern day-to-day use of safety belts, safety nets,, safety platforms, or personal fall aiT.est systems. But then, it cannot be ignored thatin(eighth paraof)the complaint(extracted earlier),there are also allegations of breach on account ofnon-implementation {in letter and spirit) ofhealth and safety policy in terms ofrule 39 and non-appointment of duly qualified safety officers in breach of the requirements of rule 209 read with Section 38 of the Building and Construction Workers Act. These two specific areas cannot,by any stretch of arguments, be relegated to the domain ofthe managerial ^ staff(f/lr. Daljit Singh and Mr. Harish Vaid) made in-charge ofthe construction site. • ' ' n '

62. The above petitioners,however,'.a^p.raise the defence based on the two safety auditreports,one dated p[3]:i04.2013 and the other dated 24-25.05.2014. It would be a'subjecf mkter offactual inquiiy as to whether the safety audit report;submrj^d on 25.04.2014, obtained afterthe fatal accidentsin qpestion,can beftreated as onerepresenting the correct position prevailing- at the Time of commission of the offence. Further,it would be the onus ofthe defence to show thatthe certification by audit'report 03.04.2013 wbuld 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 notin position they having not been appointed in teims ofthe obligation ofthe construction contractor company under rule 209 read with Section 38 of the Building and Construction WoikeiS Act. Since this area v/ould fall prima facie within the Crl. M.C.1873/2015&.connected Stof14 <t\ 1*4, domainoftheresponsibilities held bypetitionersK.Venkataramanan andS,N.Subrahmanyam,theyareliabletobeproceededagainstunder the deeming clause ofSection 53. Atthe trial,they would have the opportunity, in terms ofproviso to Section 53(1), to prove that the breaches constituting the noffences were committed without'thenknowledge or that they had exercised all due diligence to prevent commissionofsuch breaches(oroffences). On the above facts, and in the circumstances, initiation of criminalactionagainstpetitioners-DLFUniversalLtd.(petitionerin Crl.M.C.2064/2015),MohitGujral(petitionerin Crl.M.C.2067/2D15), Rajeev Talwar (petitioner in'Crl.M!C;.2066/2O15), Shriram Khattar (petitioner in Crl.M.C.2160/2015),AshokKumarTyagi(petitionerin Crl.M.C.2159/2015), n Sudhif - Sahgal ' (petitioner in Crl.M.C.2158/2015), A.M. Nailc (petitip'her in Crl.M.C.2069/2015), M.V. Kotwal(petitioner m-6rl.;lM:G.30p0/2O15), R. Shanlcar Raman (petitionerin Crl.MU,20^fia|).4^'g^|endraRoy(petitioner in Crl.M.C.2071/2015) being uHfoundgdf%e continuation of such proceedings against them would be an abuse ofthe process oflaw. Therefore, their petitions'are.atlehvedvand.the proceedings against them m the criminal complaint case(CC 55F1/14) pending in the courtofthe Metropolitan Magistrate areherebyquashed.

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

65. The petitions and the applications filed therewith are disposed ofin above terms.. (kK.GAtJ|A> NOVEIWBER 19,2018,'' vk/nlc/yg Crl. M.C. 1873/2015& connected Page54of54