S.N. Subrahmanyam v. State of Delhi

15. The seventh chapter(safety and health measures")is whatis crucial to the present cas.e,. It;P©nfers,.t^^Seotion 40,power on the appropriate govermnent to make rules "for the safety and health of building workers,therules envisaged whereby do also cover,persub- Section(2)the following:- "(a) the safe means ofaccess to, and the safety of. any working place, including the provision of suitable and sufficient scaffoldins 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 j[2] (e) the erection, installation, use and maintenance of hoists, liftim avvliances and lifting sear including 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 keevins ofsafety nets, safety sheets andsafety belts where the special nature or the circumstances of work render them necessaryfor the safety 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 ensure theys^flty and health ofthe building workers, the administrative arransements therefor and the matters connected therewith, to beframed by the employers and contractors.,for the operations to be carried on in a building or.othefconstruction work: (u) any other matter,concermnfihieisafety and health of workers working in akf^gpflif&p00ipns being carried on in a bidlding or other cons-truetidn work." (emphasis supplied)

16. This power to make rules specific"to the subject of "rulesfor safety and health ofbuilding workers"is to be read with the general provision contained in Section62{power to make rules)vested in the appropriate govermnent. Section 41 similarly entrusts the responsibility offraming ofmodel rules for safety measures unto the central government. Crl. M.C. IS73/2015& connected Page 13 of54

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

44. Responsibility ofemplovers:--,.-Mn emvlover shall be responsible for proviilnky ddmtcmt and. adequate supervision ofany buUdin& of■.othteffbonstruction work in his establishment as to ensure- compliance with the provisions of this Act relating to safety and for takins all practicalsteps necessaiy toprevent accidents. " O (emphasis supplied)

18. The above-noted statutory provisions declare unequivocally that it is the "employer" vis-a-vis a building or other construction project who is "responsible" for arranging all the prescribed safety measures and for due compliances to be ensured, the same inclusive of a "safety committee" and a "safety officer". Havingregard to the scheme of the statute, a "contractor" having undertaken to carry out the construction CrI: M.C. IS~3/2015 & coniiected Poge 14 of54 wolk 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 measures from the latter.

19. For completion of naiTation, it may be added that Section 39 casts a duty on "the employer" to give notice, in the manner piescribed, to the specified authority in the event of an accident occurring in its establishment, it resulting in death or bodily injuiy incapacitating a worker for a certain period, this for the purpose of investigation or inquiry by such authority as may be deemed necessaiy. In the present case, the notice of the accident was concededly given and the inquiry held.'.by the concerned statutory inspectorate. • ' '

20. The Building and Construction Workers Act also requires a prior notice ofcommencement oTbui'Ming or construction work to be given,the mandatory information requisitefor such purposes being as indicated in the following provisidhir,-:: "46. Notice of commencement of building or other construction worltr

0) An employer shall at least thirty days before the commencementofany buildin2or other construction work, send or cause to be sent to the Inspector having jurisdiction in the area where the proposed building or other construction work is to be executed, a written notice containins- (a)the name andsituation oftheplace where the building or other construction work isproposedto be carried on; Cd. M.C. 1873/2015& connected Page 15of54 (b)the name and address oftheperson who is undertaking the building or other construction work;

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

(d) the nature of the work involved and the facilities, including anyplantand machinery,provided; (e) the arrangementsfor the storage ofexplosives, ifany, to be used in the building or other construction work; (f) the number ofworkers likely to be employed during the various stages ofbuilding or other construction work; (g) the name and desisnation ofthe person who will be in O overall charge ofthe buMdirif'or''-other construction work at the site; ''. i'. (h)the approximate duration c^fhemork; (i)such other-matters as may beprescribed. (2) Where any'change occurs;in'any of the particulars furnished under sub-section f(.l)-,:.-the employer shall intimate the changefa'tfiefHsfd^p two days of such change. - f,. 'v "rv (3) Nothing.contained in-sub-sectibn (1) shall apply in case ofsuch class ofbuilding or other construction work as the appropriate-Government may ky'motification specify to be emergent worksd'. ■ ' -' C

21. The above-quoted provision only re-inforces the conclusion that the responsibility towards due compliances with health and safety measures prescribed by the law and rules framed thereunder is primarily of the "employer", a person engaged as "a contractor" for carrying out the construction work, also vested with the authority to Crl M.C. 1873/2015& connected Page 16of54 employ building workers being the "employer". The person deputed as"one in overall charge"is the representative of"the employer",the employer being answerable and accountable for all acts ofcommission or omission done by such representative "incharge ofthe project" or those working underhiscontrol. Pertinentto add,the dutytointimate, in advance, commencement ofthe constmction work(by prescribed notice)is not ofthe land owner but ofthe"employer",such statutoiy notice lequiring 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 powersnonfe^e|rUpon the said authority in exercise of the powers contted by^?fh^;:0uilding and Construction Workers Act,the heutenant"gcyemdy pf|he Govt. ofNOT ofDelhi made and notified Rules whidh ^elea^d the Delhi Building and Other Construction Workers■■;:(Regufetibn of Employment and ConditionsofService)Rul%..20|2 Rules forshort). ■

23. The criminal complaint (from which the present proceedings arise) refers specifically;!© breach of^ (Health and safety policy), rule 42 (Slipping, tripping, culling, drowning and falling hazards),rule 178(Safety beltand its use),rule 179(Safety net and its use),rule 196(Guardrails) and rtile 209,(Safety officer) ofthe Delhi Rules. All these Rules fall in different Chapters ofthird part(Safety and Health)'.

24. Rules 39 and 42appear in the sixth chapter(general provisions), rules 178 and 179 in sixteenth chapter(Catch Platform and Hoardings, Crl. M.C.I873/20J5& connected Page 17of54 o Chutes,Safety Belts and Nets),rule 196 included in nineteenth chapter (Scaffold), while rule 209 forrns 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 Constmction Workers Act as under:- "47. Penalty for contravention ofprovisions regarding safety measures.-(1).Whoever contravenes the provisions ofany rides made under section 40 shall be punishable with imprisonmentfor a terrh which may extend to three months, or with fine wJdich may extend to two thousand rupees, or with both, and in]dkeu case of a continuing contravention, with onlajMM&PdPfmdwhich may extend to one hundred rupees fpr every}' day during which such contravention continues pftcr cpnvibtionfor thefirst such contravention.,,: (2)Ifany person who •hak be:ert}^%f>nviG.ted ofany offence punishable under again guilty of an offence involving a conti-^avention:Orfailure ofcompliance ■ of the same provision, he shall be punishable on a subsequent conviction with imprisonmentfor a term which may extend to six months or'-with-fine/which shall not be O less thanfive hundredrupees butwhich may extend to two thousand rupees or with.both: Provided that for the purposes of this sub-section, no cognizance shall be taken ofany conviction made more than two years before the commission of the offence for which theperson is subsequently being convicted: Providedfurther that the authority imposing thepenalty, if it is satisfied that there are ■ exceptional circumstances CrI. M.C. 1873/2015 & connected ■ Page 18of54 warrantingsuch a course may, after recording its reasons in writing,imposeafine ofless thanfive hundredrupees."

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 this, mens rea i.e.the intention to committhe breach of the rules or abetment thereof on the part ofthe person sought to be prosecuted is pre-requisite. The case at hand is not one ofany ofthe accused having been previously convicted for such offence and, therefore,the enhanced punishmentis not attracted. Having regard to the punishment prescribed, the criminal case comes up before the O 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 subjectof"safety andl'limlth ofbuilding workers", as envisaged in Section 40,whicli is mad|■pqhfshable. Though the Delhi Rules have been framed andnptifiedvwitk.r^ to the rulemaking power conferred on the approp|j£^:^4^eribment 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 e-xsrcise of the power under ^, section 40.

28. The complainant presses the criminal prosecution against the petitioners primarily on the principle of vicarious liability and, for.this, the provision contained in Section 53 of the Building and Construction Workers Act is cmcial.It reads thus:- Cti. M.C. 1873/2015 & connected Page.19 of54 "S[3]. Offences by companies.-(1) Where an offence under ■ this Act has been committed by a company, every person who, atthe time the offence was committed, was in charge of and wasresponsible to, the comvanv for the conductnf the businessofthecompany as wellas thecompany,shall be deemed to he Puilffofthe offence andshall be liable to beproceededagainstandpunishedaccordingly: Provided that nothing contained in this sub-section shall fender any such person liable to any punishment, if he proves—that the—offence was committed without his knowledge or that he had exercUed all d.ue dilia^inr. tn preventthe commission^ofsuch offence. (V Nothwithstandiiiganvthinffcontainedin sub-section fl) O offence under^thisffetMas been committed bya company and it is proved: t'hSfhe offence has.- hepn committed with the cfomeht,.offconnivance of. or is attributable to anv neglect onyfhd Toart ofanv director. manager, secretary orother officer'ofthe company, such director, manager, seeretaiy other officer shall be deemedto be yuiltv ofthot.offence Andshall be liable to be proceededagainstmd-pffdskedfpcc&rdingly. Explanation.-For thepuippseffffMsfection,- (a)"company"means any body corporate and includes a fi rm or other association ofindividuals;and (b) director",in apartner in the firm." '■

29. As washighlighted duringthe course ofhearing,not onlyby 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 Crl. M.C. 1873/2015 & connected Page20 of54 M ■1 liability contained in other criminal laws to the effect of which some detailedreference shallneed to be made later.

30. It is clear from the bare reading of the statutory clause that where the offence is committedby acompany,in order to rope inany other person on the principle of vicarious criminal liability,it must be shown that suchperson was "in-charge ofandwas responsible to the company for the conduct ofits business "at the time the offence was committed". The proviso to Section 53(1) permits a person arraigned on the principle of vicarious liability to plead and show by evidence, defence, that he was not,; responsible either because the acts constituting the offence were committed-•'wzY/zottz' his knowledge" or becausehehad "exercisedalldke dik^enbejoprevent the commission oj such offence". Notwithstanding thp main provision contained in Section 53(1), the prosecutionmay,bg(mi|iated against "any Director, Manager, Secretary or other'-officer if there is proof available to show that the oifenof.cdp^tted "with the consent or connivance of, or is attributahie to any neglect on thepart of" such diiector, manager, secretaiy or other officer,of the company. While section 53(1) relies on "demng"'deewfiQ position of the person vis-a-vis the company "in-charge of" and' "responsible to", section 53(2) necessarily requires positive evidence to show active participationreflective of "consent", "connivance" or "neglect".

31. In the. criminal complaint on which the impugned order of summoning has been passed, there is reference to similar fatal accidents having occurred previously at the project site in question on Crl. M.C. 1873/2015 & connected Page 21of54 04.09.2011, 11.04.2012, 16.08.2012, 28.02.2013, and 16.01.2014 as, well. The present complaint dated 14.08.2014 cannot be treated as a complaint with reference to such previous incidents for two prime reasons; one, there are no averments as to the breach of any specific ) rules within the meaning ofsection 47 vis-a-vis the previous incidents, and,second,the criminal action vis-a-vis such earlier incidents would be barred by limitation as provided in Section 55 ofthe Building and Construction WorkersAct..

32. It is the admitted case of the complainant that the building construction work in the course of which the fatal accident occurred on 17.05.2014 had been entrusted by/-the land owner company, through a formal contract to the-constructfpn contractor company. It is indicated in the complaint itself thdt the construction contractor company had got itself registered whh tjie statutory authority ofthe appropriate government in compliancp^/with the requirements of Section 7. The certificate nf registration'describes the constmctiOn contractor company to be the "esidblishment" for purposes of construction of"DLF Capital GreensProject" by it, it being a project of "residential building'",- the work,to be carried out during 02.01.2012 to 17.11.2014, its representative Mr. Surinder Mohan being the "employer"in-charge ofthe construction work at site. It is 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 Q-l. M.C. 1873/2015& connected ' Page22of54' \-/ 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 tliree others who are- not before this court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner "3. That Sh. Mohit.Gujral, Chairman, Sh. Rajeev Talwar, Managing Director, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, Director ofM/s. DLF Universal Ltd., Shopping Mall, 3'''^ Floor,'Arjun Marg, DLF City,, BLock E, DLF Phase 1, Sector 26A, Gurgaon, Haryana 122002 are the 'Directors" and Sh. A.M. 'Maik, Group Executive Chairman, Sh..K. Venkatammdman, CEO & MD,Sh. M.V. Kotwal, Whole time Dtreetoit &.;P0sident, Heavy Engg;, Sh. S.N. Subrahmanyan, F%ple 'titpg;^Director &Sr. EVP (infrastructure & cdnstriipttoh); S^-'R. Shankar Raman, Whole time Director S: CPOfShL.SPiailendra Roy, Whole tiine Director & Sr. EVP(Corporate ajfairs &power)and Sh. Daljit Singh - Project Director, (In-charge of the construction site) of-M/s. Larsen & Toubro Ltd. are the 'Directors"OfM/s. Larsen & Toubro Ltd. and Sh. Harish Vqid, 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 Cii. M.C. I873.Q015 & connected Page 23 of54 M \J\ c AM andfurther investigation on 24.5.14 at 4.00PMalong with Sh. R.N. Dahiya,Director(ISH)and Sh. J.N.Jain,Dy. Director (ISH)/Inspectors ofBuilding & Construction, it was revealed that a worker namely Ankit Kumar, Painter, was working in tower No.14 on the eighteenth floor and was reportedly engaged in the work ofapplying paint on theface ofthe wall,fell to the ground, causing him severe injuries resulting in death.

5. That besides this, prirna facie, it appeared on inspections that the, manasement failed to ensure adequate site management as envisaged in the provisions of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Delhi Building and other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002. Manasement had not taken all appropriate measures as per ■(he. said Act and. Rules framed thereunder to prevent accidents at. building site of suchproportion and ma.gtiitude<

6. That there have been.[5] fatal'.accidents resultins into loss oflives of[5] workers in the recent past, at the same site. But, it is clear that they had'not learnt any lessons out. of^ previous series ofjdfal, accidents. Apart from notices, a yrohibitorv 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 Act and Rulesframes thereunder as applicable on O the constructionsite ofthis magnitude were made.

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

8. That diiring • the course of inspection and investigation, the followins breach ofthe provisions ofthe "saidRides"read with the "said Act"were observed:- Crl. M.C. IS73/2015& connected Page 24 of54

I. That the workers working at height were not provided with safet\> belts and Personal Fall Arrest Svsterhs fPFAS), in contravention ofprovisions of "Rule ■ 42and 178 ofthesaidRules."

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

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

IV. That more than.500; I.e. 2700 workers were ordinarily employed at the consfructipn site but Safetv Officers as per qualification afid condition ofservice as laid down in Schedule VIII ofthe said Rules had not'been appointed, in contraventioh ofthe provisions ofRule 209 ofthe saidRules read witkSectim§8ofthesaidAct.

V. That the managements,■-hayilfiot imvlemented their

9. That the above accused persons are thus suilty of contravening the. provisions of Rules 39,42.178,179.196 and209 ofthe said.Rules.read wifp.Sections 38,40 and53 ^ ofthe saidAct whichis"punishable under section 47 ofthe "Said'Act" for an imprisonment for a term which may extent to 03 months or with a fine which may extend, to Tm>o ThousandRupees or with both."

34. The reference to theprohibitory order havingbeenissuedby the statutory authority on 26.05.2014 vis-a-vis the project site, being a CrI. M.C. 1873/2015 & connected Page25 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 fonn/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,refeiTcd to letters dated 20.05.2014,03.06.2014,and 25.04.2013 and health and safety policy, 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 co,unte,r-reply dated 28.09.2018. In this reply, the exchange of the abovesaid:correspondence, reliance; wiereupon is made by the petitioners,has been aclaiowledgfed..v.t;:"

36. The documents' in-; 'is no dispute, upon perusal,show thatthe land owner company had entered into a contract on 29.03.2012 with. the construption contractor company. O Concededly,the general conditions pfthe 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 cpnfinnation ofthe above aspect;- '7P.0SAFETYPROCEDURE Crl. M.C. 1873/2015& connected, Page26of54 \Ar ^ The contractor shall incorporate in his operations the requirements,ofall the 'Safety Cnde:^' issued by the Bureau ofIndian Standards andprovisions ofthe National Building Code ofIndia 2005 including any amendments, thereof The Building and Other Construction Workers (Regulation ofEmployment and Conditions ofServices) Act,. 1996 and any other applicable statutory rules and regulations. These requirements shall apply in all cases except where the regulations ofthe local authority require more stringent measures to be taken. Where therequirements ofBISCodes and/or NationalBuilding.Code, the Buildingand Other Construction Workers(Regulations ofEmployment and Conditions ofServices) Act, 1996 arp duplicated by the localregulations or the "Safety Manual" provided by the.Owner,■. the'-more.stringent of these regulations shall heMewheifo^dppJy^. The Safety Manual provided by the Owner: is dnkf0)0estive and shall not cast any liability on thefO^ner:)}} 7P.[2] The contractor shall orov.idetsafe means ofaccess to allworkingplaces. - ' f V y' TiV; 19.[3] The contractor'. -.skeiih BbNsMeN responsible for proper desisn of ihe- scdl^ldmSkliemDorarv accesses, ladders and ramps. IformwhrhtdhdnSistins arransements. ■ cranes etc. to ensure safety ofiwbrkmen as well as the works. Allscaffolds, ladders andother safety devices shalTbe maintained in safe conditions. Only-tubular scaffolding.. shallbe used. ^ ■ ' I • 79.[4] All necessary personal safety/protective equipment, first aid kit, medically trained personal, fully equipped ambulance and any other facilities as per the statutoiw, requirements should be always available on the site for use. The contractor shall take' adequate steps to 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 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.[7] The contractor shall provide and maintain all necessary temporary fire protection, and fire fighting facilities at the site during the execution ofthe works in accordance with the-.NationalBuilding Code ofIndia 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and. explosive materials and goods are stored: and handled in a. safe manner and in accordancewith the statutory regulations. 79.[8] - The contractor shall notify the ensineer immediately ofany occurrerice ofmishaps or accidents that i^esults in death or iniui-v (including grievous injury) as defined in the Indian Penal Code. Suehfmtial notification may be verbal and confirmed in wffiing'thereafter and shall be followed by a comprehensive iyrittlcn report within 24 hrs of the nccurrence/incident., the^c' ontractor shall duly complete standardfo'rn^sfisKreq.iiirpd by the engineer and ■ statutory authorities. ' f-ff,,. 79.[9] It is made cledk'fhdl.tfienhontractor alone as the. Principal'ErnploveriNis1''ans4vef^blkyfind liable to all investisatins and lesM.o/it^riMeslMcludms Court ofLaw and the Owner shall not have anv part or liabilitv in this regard. The Contractor alone shall be responsible and. liable to compensate the victMs-.-im.m.ediately on the occurrence ofthe mishaps or accidents and also protect and indemnify and hold harmless the OM'ner, the engineer and allpersons who may be associated with or connected with the owner or the engineer and to reimburse all legal andfinancialcosts,ifincurred, by the them,in this regard.

79.10 All consequences, damases or losses arising by reason ofanv violation of.the safety requirements resulting in anv infuiy or loss oflife to the contactor's or anv sub contractor's Emvlovees/Staff/personneland Workers/Third Party fnon-fatal/fatal) shall be met bv the contractor who Crl. M.C. 1873/2015&connected Page28of54 u. o\ alone will be responsible for handlins and disposal ofthe accidental cases with Government/non-Government authorities. The Contractor shall he bound to pay compensation to the personsfor the injuries sustained or death owing to neglectofthe safetyprecautionsshould any claim proceedings be filed against the owner/engineer. The contractor herebyagrees to indemnify the owner and the engineer against all liabilities and keep the owner, his employees, personnel, agents, representatives and anyone connected with the owner, protected from civil and criminalprosecution in such cases and be answerablefor the same before all authorities. '

79.11 Within one week of commencement date, the ^ contractor shall submit.to the, engineer, a detailed and V.,. comprehensive contract shall'submit to the engineer, a detailed and comprehensive contract specific site safetv plan, based on the requirements{.stated in clause 79.[1] above. The site safety plan shad include detailed policies, procedures and resulatiohs;which.:when implemented will ensure safetv ofall the.persons, induding third parties on or in the vicinity ofthe site (ingluding without limitation persons to whom accessedtdaeisitpfiids been allowed by the contractor). The contractor shMfih-bm time to time as necessary,producedippte^enidM'M^^'sitesafetvplan such that it is at all times d'detailed, comprehensive and contemporaneous statement by the contractor of his site safety and indudfial.health, obligations., responsibilities, ^ policies and procedure (under ike'laws ofIndia) or as stated in the contract or.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 shallbe 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. Crl. M.C. 1873/2015 & connected, '■ " Page 29of54

79.13 The contractor shall adhere to the Site Safety Plan and shall ensure that all sub-contractors ofall tiers, have copy ofthe Site Safety plan and comply with its provisions. The contactor shall appoint a qualified and experienced person as Site Safety^Officer to act as Manager ofthe Site Safety Plan and who will be responsible for all safety matters related to the works. The contractor shall from time to time, proyide such other personnel and resources as may be required to ensure effectiye operation ofthe Site Safety Plan. The said Site Safety Officer shall submit regular safety reports to the Engineer in accordance with the requirem.ents ofthe Engineer and all releyantstatutoiy authorities, as required by Applicable laws and regulations. The contractor shall submit on a monthly basis a Certificate of'Compliancefor Health, Safety and Enyironmentasgiyen in Appendix,''M"." ' (emphasis supplied)

37. It appears thatin the wake ofthe fatal incident that occurred on 28.02.2013(death ofMaqbool)iatthe.same very site,prohibitory order followed by revocation orderyhad beenyi'ssued on 01.03.2013 and 08.03.2013. Against the,Said bachdrbptythe'construction contractor company had taken steps for'getting'the,safety audit of the project done. An audit report dated 03.04.2013 was submitted to the authorities by the said company'undervthe cover of its letter dated 25.04.2013. Reference to the said audit report and the correspondence exchanged in such regard was made by the construction contractor company in its letter dated 17.06.2014, which is part ofthe material that was submitted with the criminal complaint leading to the impugned order being passed. In the reply affidavit dated 28.09.2018, the complainant also confirms that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactory Cr!. M.C, 1873/2015& connecled Page 30of54 report in respect ofthe safety measures that had been adopted by the managementofthe said compan}'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 Diiector ofthe construction contractor company, was the person "incharge of the construction site" and Mr. Harish Vaid, Manager(Internalrelations)wasthe Managerofthe Construction Site, within the meaning of Section 53 ofthe Building and Construction Q Workers Act. As also noted.earlier, both the said accused persons have notchallenged the summoning o'rderf • C

39. It was also broughtouf^iuringthe^course ofhearing that atthe time ofinspection(s),leading'to inspectiph reports dated 18.05.2014, 24.05.2014 beingprepared,ifwd§ivi^a^pet Singh,who wasfbtind asthe personinchargeoft|e thecomplainant's officers in such.inspection,.'Skei--. ^.■^e report, prepared on inspection canded out in the forenoon of 18.05.2014, is the most ciucial inspection report,for purposes of the,,case arising out of-the incident that occurred in the afternoon of 17.05.2014. It concededly noted, vis-a-vis the requirements of Rules 142, 178 and 179 that Personal Fall Airest System (PF.AS) 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. It confirmed that health and safety policy, as required by Crl. M.C. 1873/2015 & connected Page 3iof54- I \ V Rule 39 iiad 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 thatthe 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 infeiTed for the reason qualifications, ofthe "safety officer" were not shown. In the brief note ofthe concluding part ofthis report,it was fiirther observed thatthe temporary platform from where the worker had fallen did not have the provision oftoe board or guard rail. The inspection report dated 24.05.2014 is in continuation of the report dated.18.05.'.2!O14 and mainly noted that AnkitKumar(the deceased worker)was-#plying paint on the face of; the wall at the 18^'\floor level wto he.Sad slipped and fallen,to the ground,he notwearingthe safety belt;or'BFAS atthatpointoftime.

40. Pursuant to the inquiries which were raised in the wake ofthe fatal incident of17.05.2014,the epnstruction 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 cortespondence,.which cohcededly includes submission by the construction-contractor company and yet another safety audit report obtained from National Safety Council, Delhi Chapter, such. audit having been undertaken on 24'^ and.25^'^ May, 2014. it was submitted by the construction contractor company that it was in full compliance with the statutorily prescribed health and safety measures, this having been confirmed by the safety audit report ofMay,2014, Crl M.C. 1873/2015 & connected Page 32 of54 the safety policy having been formulated and forwarded' to the authorities by letter dated 25.04.2014, duly qualitled duty safety officers having been deployed at site,the steps taken inclusive ofthe following:- - " "2. On site safety measures;, a)i 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 ^ Equipmentto all woidkefts arid;its'usage is enforced prior to constructionsiifentry. c). The workers.:afeidm^d.about the hazards involved, in parHpplar acimty- before start of the shift. ' S d). L&T has protected the-floor edge with hardbarricades. ■ 1 e). L&Thasprbtecfed dMopenings, cutouts with reinforcementrtiat.-^'' f. L&Thas closed allliftshafts with gates. g). Safety eqtch-.'netsiarp:^^^^^^ below 6 m of live workingfloor around periphery to preventfall ofmaterials and men. h). All plants and machineries are fitted with safety device and are frequently inspected and tested for safety compliance. i). Allelectricalconnections are routed through RCCB, MCB and at source through ELR to avoid any electrocution and overloadprotection,

3. Medicaland otherfacilities: ' Crl. M.C. 1873/2015& connected - Page33of54 y 'v' a). Round the clock ambulance and first aid facilitiesprovided atsite. h). Well maintained canteen atsite and workers habitatarea. ■, ■ ' ■ c). Continuous waterfacilitiesfor drinking and sanitationfacilities..d). Mobile toilet's at various places at site and permanent sanitation facilities in workers habitat area. Apartfro?n the'above, all the-safety and welfare aspects ofthe workers are duly taken care ofat the work site.. ThatL&Thadgotthe Safely Auditconducted by National Safety Council, Delhi Chapter in the year 2013. The. Audit Team after doing extenSive'.survey / checking -at site, submitted its report. T' ha ndl'ev.ant excerpts of the reports are as under: a.). M/s. 'L&T':had pifdyi^ed adequate no. of Safety Officers td deal,kvi0 the requirements of safety managemmPiikjHd.Pidht. There is proper. work distribiitipn'qfndngsVtliese Safety Officers to preventclash mr.esfphsibitiiy.f b). The owner Had appointed expert consultant organization M/s. Turner, who has appointed NEBSOHqualified.Safety Officers. c) work at Height perm.it: 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 the permit only thoseworkers are allowed to proceed or.work at height for whom safe access - like ladders are provided andsafe workplace like scaffolds exists there. This system is provided by L&T as shown to the Auditors. - " Crl. M.C. 1873/2015.& connected Page34of54 V ^ d)PersonalProtective Equipments e The use ofsafety helmet by all the construction workers was almost 100%. ■© The use of safety belts by those who were, working on external side and have potential hazard of fall, was more than 9S%, as one worker wasfound working without anchoring it with rigidsupport. ® Use ofsafety shoe was observedalmost 100%. e) LiftingEquipment and Tackles WsL &Thadgot numerousLiftingequipments and tackles. The safe ^use- of one lifting equipment was^ checked. It wasfound, that the.operator was dtdy trained andthe operator andthe signaler were understanding,the signals very well., f Hazards of Worldfgqtfleight L&Thadtaken thefollowingmbasure? topreventfallof workersfrom height: ' >•' >. ® All the openings'dfLii^er':}flffa.tions were found covered with Bar * All the floor edges were suitably fenced with appropriate handrails. * The stairs Were cleanedforprevention ofslipping O slipperyfloor. That in view of the observations of National Safety Council (Delhi Chapter) in its report after conducting extensive checks/surveys on site, it can be safely inferred that the Establishment has been complying with all the safety norms as requiredunder the law includingBOCW. (RE&CS) Act. Any mishap at site despite bestprotective measures could be an accident only with no humanfaultor error. L& T has done its best to comply with all the Crl. M.C. 1.873/2015 & connected Page 35 of54 / safety norms, which have been subject matter ofsurprise checks and thesame have beenfound to be in order. Without prejudice to what is stated above, it is submitted that L & T had also got another Safety Audit Report done during 24-25"^ May, 2014 by the National Safety Council Delhi Chapter and nothing adverse has been reported in the Audit Report submitted. Copy ofthe Safety Audit report and the releva?it 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 porporate 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 includLng.,Section 141.ofthe Negotiable Instruments Act, 1881 (for short, ''Negotiable Instmments Act"); Section 34 of Drugs and Cosmetics Apt, 1940 (for short,■"Drugs Act");Section 17(1)ofthePrevention ohiond Adulteration Act,1954 (for short,'PFA Act"); and Section 33 ofthe Insecticides Act, 1968 (for short,"Insecticides Act").

42. On corporate criminalliability,the following observations-ofa 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 Crl. M.C. 1873/2015& connected ' Page 36of54 corporations cannot commit a crime,'the generally accepted modern ride is that exceptfor such crimes as a corporation is held incapableofcommitting 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 generalrule prevails that the corporation may be criminally liablefor the acts ofan officer or agent, assupied to be done by him when exercising authorisedpowers, and withoutproofthat his act was expressly authorised or approved by the <^) corporation. In the ■.statutes defining crimes,.the prohibition is frequently ■directed^ against any "person" who commits theprohibited,aeffindih many statutes the term "person" is defihedi-fly^j^rthe person is not specifically defined,it p^G.cCsarilydfieludes a corporation. It is usually construedId■includfia.';corporation so as tobringit within theprohibifign dfffkjtatute andsubject it topunishment.In mofi,pffilp\stqlM§fyiI^^ word "person" is defined to include dcorpprdfiofifp; ■ xxx. Inasmuch as all criminal and quasi-criminal offences are creatures ofstatute, the amenability ofthe corporation to prosecution necessarily, depends-upon the terminology employed in the statute. In,the case ofstrict lialbility, 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 reu's, subject to the defence of due diligence. The lawisprimarily 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 CrL M.C. 1873/2015 &conne-cled. Page 37 of54 prerequisite to guilt. Corporations and individual persons standon the samefooting in theface ofsuch a statutory offence.. It is a case of automatic primary responsibilit)'. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecutedfor any offence punishable under law, whether it is coming under the strict liability or under absolute liability. XXX Allpenalstatutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within theplain meaning ofthe words used and must not strain the words^ on any notion that there has I been a slip that the thing isso clearly within the mischief that it must have been intended,tofe included and would have been included ftimitghtofMlpenalprovisions like^ all other statutes are to bejairly^construed according to the legislative intentas.expressed in the enactment."■

43. By virtue, inter alia, of the registration, dated 22.02.2012 granted to the constructions contractor;co.mpany by the respondent under Section 7 of the Building and Construction Workers Act, the complainant was privy to the above-said contractual arrangement visa-vis the project in question.b#weehthe-iahd owner company and the construction contractor company.

44. It is vivid from bare perusal of the provisions of the Building and Construction Workers Act, as indeed the rules framed thereunder, that the land owner company having chosen to outsource the work of the constructions, had passed on the responsibility for all compliances to be made by the construction contractor company in terms of the Cii. M.C. !873/2015 & connected Page 38 of54 o 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,engagethe workers. Underthe law,it is theconstruction contractor company which,inthepresentcase,is''the employer''-the establishment which was to make compliances foi 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.land ^py^ner company nor those incharge of or responsible to the condhcf of its business can be prosecuted for the offence under Section 47 of the Building and Construction Workers Act on the faets'set out in the complaint from, which the present petitions arise.

45. The case againstthe constructioh c'dptractor company and.those stated to be in-charge of or responsible for conduct of its business, however,would stand on a different footing.and,thus,need scrutiny ^ separately. • 46. In MunicipalCorporationofDelhivs.Ram KishanRohtagiand Ors.,(1983)1 SCO I,while dealing with'the applicability ot Section 17(1)ofPFA Act,theSupremeCourtobseiwed asunder;- "75.SofarastheManagerisconcerned,wearesatisfied thatfrom the inferred that hp. would undoubtedly bep^riouslv liapie for the offence; vicarious liability being an incidentojan • Page 39of54 ■ Crl. M.C. 1873/2015 &'connected I<9 ( O offence under the Act.- So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from.' the presumption drawn by the complainant, that there is anv act committed,by the Directors from which a reasonable' inference can be drawn that thev could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (Accused 4 to 7) has been made out ex facie on the. allegations made in the complaint and the proceedings againstthem were rightly quashed.

47. Following the aforesaid; riiling-, in construing the effect of Section 34ofthe Drugs Actin a decisionVreported asState ofHaryana vs.BrijLaiMittaland Ors.,(1998)5SCC343,it was held thus:- "8...the vicarious liability of a person for being prosecutedfor an offence committed under the Act by a company arises ifatthe material time he was in charge of and was also responsible to the company for the conduct ofits business. Simply because a person is a director of the company it does not necessarily mean that hefulfils both the aboye requirements so as to make him liable. Conyersely, without bein.[2] a director a person can, be in. charse ofand responsible to the companyfor the conduct of its business. From the complaint in question we, howeyer, find that except a bald statement that the ■ respondents were directors ofthe manufacturers, there is no other allegation to indicate, eyen prirna facie, tha.t they were in charge,ofthe com.pany and also responsible to the companyfor the conductofits business." (emphasis supplied). Crl. M.C.1873/2015&connected Page40of54

48. The counselforthe petitioners have placed reliance on National SmallIndustries Corpn.Ltd.vj'.HarmeetSinghPaintal,(2010)3SCC 330 and Pooja Ravinder.Devidasani vs. State ofMaharashtra and Anr.,(2014)16SCC[1] both dealing with issues of vicarious liability under the Negotiable Instruments Act. In National Small Industries Corpn.Ltd.(supra),it was observed thus:- J^'. isapenalprovision creating vicarious liability, and which, asper settled law, must be strictly construed. It is therefore, not sufficient to make a hnid cursojy statement in a complaint thnt tho (arrayed as an accused)ris in charge ofand responsible tpjhe companyfor the conduct,ofthe business ofthe. company without anything more as:to the role of the Director. But.the complaint should spell out as to how and in what manner Respondent.I was in nhnra(> n-f ■ was responsible to the ac;6used]Gompanyfor the conduct of its business. This is 'infconsonance with strict interpretation ofpencd..staiplisi-eso.ecialh. where such statutescreate vicarioyfi^iMmMd'^

14. A company and ■ to make any or all tide'Djfhciimk as accused in a. complaintmerelyon the basis ofastatementt^iattheyare in charge of and responsible for the conduct of the business ojthe company without;anything more is not a ^ sufficient or adequate fulfilment of the requirements ■ ^ under Section 141.

49. In Pooja Ravinder Devidasani(supra) while observing that"a director of a company is liable to be convicted for an offence committed by the company if he /she was in charge ofand was responsible to the companyfor the conduct ofits business or ifit is CrL M.C. 1873/2015&connected Page'41 ofVl proved thatthe offence was committed with the consent or connivance of or was attributable, to any negligence on the part ofthe Director concerned" and nciting that'Hn 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 conductofbusiness 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 ofNOT ofDelhi V[5]. Rajiv.Khurana,(2010)11 SCO 469, taking note ofthe law which has developed primarily,in the context of-^Section 141 of Negotiable Instruments Act,it was held thus:- "17. The ratio ofall these cases is thatthe complainant"is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business ofthe company or responsiblefor the conductof the company's business. Every Director need not be and is not in charse ofthe business ofthe company.Ifthat,is the position with resard to a Director, it is needless to emphasise that in the case ofnon-Director officers, it is all the more necessary to state what were his duties and resvonsibilities in the conductofbusiness ofthe company and how and in what manner he is responsible or liable."

51. Reliance has also been placed on the decision ofthe Supreme Court reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, Crl. M.C.1873/201.5&connected Page42of54 o (2005} 8see 89; Gunmala Sales vs. Ann Mehta,(2015) I 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 Del10030this Court culled outthe settled law as under;-

proceededagainstunderSection 141(2); '-(Hi) Bv virtue of the office fhev hold, the persons working in the capacity of the Manasins Director or Joint Manasing Director are deemed to be in charse of. and responsible for the conduct ofthe business of, the company and, therefore, can be proceeded againstin terms ofSection 141; o Crl. M.C. 1873/2015& connected ' Page43of54 (iy) Merely because a person is a director ofthe company is not sufficient to make him liable under. Section 141, there heins.no deemins that by holdinssuch position he is in • charge of, or responsiblefor the conduct of the business of the company within, the meaning ofSection 141; (y) It is necessaryfor the complainant tp_ 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 conductofthe business of, the company in terms ofSection 141, there beins no need for further particulars to be ) siyen in the complaint about his role, this. beinssubjecttoproofatthe trial:

(vi) Theperson who has been summoned as an accusedfor offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis ofaverment that he was director ofthe company accused, he being in charge of or responsible for the conduct of its business 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 setoutin the complaint;and ■ (yii) Theperson who has been summoned as an accusedfor offence under Section 138 of the Negotiable Instruments Act, 1881 by invoking the provision contained in Section, 141 may persuade the High Court to quash the process in exercise ofits inherent power under Section 482 ofthe Code of Criminal Procedure, 1973 by furnishins "some sterling incontrovertible material or acceptable circumstances" substantiating his contention CrI.M.C. 1873/2015& connected ' /' Page 44of54 0^. that he was not in charge ofnor responsible for the conductofthe,business ofthe company "at the time the offence was committed" and thereby showing a case that making him.stand ■ the tidal would be an abuse ofthe process of court, butnototherwise." ■

52. Having regard to'the statutoiy scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from iht prim^facie conclusion that the construction contractor company isnot only the principal employer of the workers engaged in the construction projectwherethefatal accident'tookplacebutwas also responsiblefor arranging allthe prescribed safety meaishred underthe Rules. Section 47read with Section 53 oftheSuildihg and Construction Workers Act thus creates a coiporate criminakllability.againstthesaid company and. i r'. by virtue ofthe principles ofvtcariouhmrifriinal liability,every person 'who,atthe time whenthe sMd.bffence^f'jyia^ was in-cllarge of and was responsible tof the^isaidllcbihb'ahy for the conduct of its business, as well as.the cOmpAhy,t arevdeemed 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 forthe conductofthe 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" of company is a. ■, ■ GH. M.C. 1873/2015 & connected o 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 was in-charge ofor responsible to the company for the conduct ofits business"atthe time the offence was committed',there is no requirement in law for"further particulars to he given" in the' complaint about his role, this being subject matter ofproofto be adduced atthe trial.

53. In the considered view ofthis Court,the words"for the conduct of the business of the company" appearing in Section 53 are most crucial, pregnant with meaning and provide the key to determine whether a person connected to'the company may be held accountable for the acts ofcommission or^omission/constituting the offence under Section 47 ofthe Buildingnnd Constructipn'Workers Act. After all, it is the status ofbeing "in-charge of or being "responsible" for such business of the company that exposes the individual to vicarious criminal liability. Ifthe acfofcommission 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 c& connected Page46of54 contravention of the rules under Section 40, on the other. To put it more precisely,and clearly,in the context ofthe offence under Section 47 ofBuilding and Construction Workers Act,the responsibility vzh-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 comiected 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 responsibhityfowards a specific rule, at the stage when its breach has led to the-fatahfy.'or serious incident.-.

54. A different approach Majh ihe/johe^^^ove to the subject might lead to unjust results. " This-■.ma)|',i)^ illustrated by two simple examples. As noted earlierj•• §]3|iiB^er (establishment) is duty bound, in terms of Sectibn ^'^(liCgJ, intimation, prior to commencement of the building'or otKef construction work, as to the name and designation of the person who will be "in overall charge" of the building or such constructionwOrk.f'TTaying regard to the scheme of the enactment and the rules fi"amed thereunder, the employer (establishment) is also responsible to frame a "safetypolicy" (rule 39) and also to appoint and.deploy »a "safety officer" (rule 209). If the •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 o/'fthe Crl. M.C. ]873/2015 & connected. Page 47 of54 r "construction work at site'' cannot be held accountable. After all, framing of policy, or appointment of safely 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 staff.at-the construction site(i.e.the person incharge of the constmction work at site,under Section 46 or those assisting him in the task)theyliavingmbt'ensured the safety equipment to be availed ofby the workefs,fthe fonher(those responsible for the conduct of the business at the higher levels), cannot be held accountable under the deeming proyisipn;-.,-:'

55. It is the •argumeHt=;.-.-o.|,.|)"^M"0hers comiected to- the construction contractor comphhy vik;, A M Naik (Cii.M.C. 2069/2015), K Venkatramanan (Cii.M.C. 2068/2015), M V Kotwal ^ (Crl.M.C 2.070/2015),S.k SubraMariyam{Cii.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 rales 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

7. ■ ' ■ Crl. M.C. 1873/2015& connected Page 48 of54 Director and Harish Vaid,Manager(Industrial Relations). It is flirther their argumentthatitis notcorrectto-accusethem,underthe deeming provision ofSection 53,ofcomplicity inthe offence under Section 47, in the context ofthe fatal accident of 17.05.2014 also for the reason that the worker in question (Ankit Kumar)had been engaged by a sub-contractor, the representative of such sub-contractor being the person who has been found responsible in the investigation by police in the corresponding case for IPG offences. In this context, they crave reference to the sub-contract in terms of which the deceased worker(AnkitKumar)had been deployed atthe 18"\floor level from where he fellto the groundto S.uffer hidrfcafinjuries.

56. The copy ofthe sub-contfact,■asishjjwn at thehearing cannot be treated (without proper, proo^ as.authentic or ^Hncontrovertible materiar or as one exonerating the construction contractor company of its entire responsibihty in tbe^-naattpr^;particularly in view of its continued responsibility of tho sub-contractor as per clause 79.13 of the contract'dated"■2'9.03.2012, refemed to earlier. The argument based on the sub-contract, entered upon by the construction contr^actor company--.Mth the:immediate 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]. Crl.M.C. 1873/2015 & comectad. Page49 of54

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, metallurgical & material handling,. ■ powertransmission and distribution,hydrocarbon engineering,valves, alloys,power development,infotech,finUnce,construction and mining machineiy etc. ',

58. The complainton whichthe smhmoning order was passed itself describes Mr. A.M.-Naik, petitipner.in 0x1^.0.2069/2015 to be the Group Executive Chairmafe'.-Q.f."^p-':©pnshli.6don contractor company. Similarly,the description ofMr.'M.V.Eotwal,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 complainanthas been that they were working at the relevant poi.nt 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 Page50of54; ■ ■ _., ■- <^1 made with regard to tlie prescribed safety measures concerning the, constmctionproject in question. By virtue of the respectivepositions each ofthemheld, their responsibilitieshadno nexus withthe subject at hand. 59..Unhke the above, it cannot be said that the offices held, or the lesponsibilities shouldered, by Mr. K. Venkataramanari (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) C' -towards compliances oftheBuilding:.and"Construction Workers Act or the rules framed-thereunder. These petitioners do not dispute that at the time of alleged commission ofthenfAnce under Section 47 of the Building and Construction Workers Act,!;they were worldng fOr the construction contractor company;in thecapacity of CEO & Managing Director and whole-time ^^;^#«Executive Vice President. (Infrastructure-& Constructibn).||sp^k^fel|of ^

60. The very description of the port-folios they held and the responsibilities that woiild entjail-therefrpni.^^z/wayhc/e shows that the allegations inthe criminal.complaint as to their deemed liability under Section 53 cannot be said to be unfounded,not the least without trial.

61. There is merit in the argument of the last two above-mentioned petitioners that given the positions heldby them in the company, they could not be expected to remain present- at the construction work site to ensure due compliances to be made with rules 42, 178, 179 or 196 read with Section 38 of the Building and Construction Workers Act Crl. M.C. 1873/2013 & connected ' Page 51of54 0^ that concern day-to-day use of safety belts, safety nets,, safety platforms, or personal fall aiTest systems. But then, it cannot be ignoied thatin(eighth para of)the complaint(extracted earlier),there are also allegations-of breach on account ofnon-implementation {in letter and spirit) ofhealth and safety policy in terms ofrule 39 and non-appointment of duly qualified safety officers in breach of the requirements of rule 209 read with Section 38 of the Building and Construction Workers Act. These two specific areas cannot,by any stretch of arguments, be relegated to the domain ofthe.managerial staff(M-. Daljit Singh and Mr. Harish Vaid)made in-charge ofthe construction site. •,

62. The above petitioners,however,'.alsp raise the,defence based on the two safety auditrepqrts,one dated p[3]::04.2013 and the other dated 24-25.05.2014. It would be a subject matter offactual inquiiy as to whether the safety audit.report;submitted on 25.04.2014, obtained aftei the fatal accidentsin ques.ti0n,can be,.ffeated as onerepresenting the correct position prevaiiing at the time of commission of the offence. Further,it would be the onus ofthe defence to show thatthe certification'by audit report 03.04.2013 would hold good till date of the,fatal accident of17.05.2014. There are specific allegations inthe complaint that as on the said date, i.e., 17.05.2014, duly qualified safety officers were notin position they having not been appointed in terms ofthe obligation ofthe construction contractor company under rule 209 read with Section 38 of the.Building and Construction Workers Act. Since this area would fall prima facie within the- Crl. M.C. 1873/2015& connected a /-ca P,age52of54 domainofthe responsibilities held bypetitiottersK.Venkataramanan andS.N.Subrahmanyam,theyareliabletobeproceededagainstunder the deeming clause ofSection 53. Atthetrial,they would have the opportunity, in terms ofproviso to Section 53(1), to prove thatthe breaches constituting the offences:were committed without their knowledge or that they had exercised■all due diligence to prevent commissionofsuch breaches(oroffences). ^ On the above facts, and in the circumstances,.initiation of criminalaction againstpetitioners-DLFUniversalLtd.(petitionerin ^ Crl.M.C.2064/2015),MohitGujraf(petitionerin Crl.M.C.2067/2015), Rajeev Talwar (petitioner in.Crl.M:C.2066/2O15), Shriram Khattar (petitionerin Crl.M.C.2160/2015),AshoH:KumarTyagi(petitionerin Crl.M.e.2159/2015), ■, Sudhir •.Sahgal ' (petitiorier ■ in Crl.M.C.2158/2015),:A.M. Naik (petitioner in Crl.M.C.2069/2015); M.V. Kotwal (petitioner m'6i®t(E.2epQ015), R. Shankar Raman (petitioner in Cri.M.C..2Ofe/20t);and|piendraRoy (petitioner in Crl.M.C.2071/2015) being unfoundedf'fhe continuation of' such proceedings against them would be an abuse of the process of law'. Therefore, their petitions"are,aifswed-vSnd.the proceedings against them in the criminal complaint case (CC 55F1/14) pending in the courtoftheMetropolitanMagistratearehereby quashed.. 64. For the reasons set out above, however, there is no case made out for this court to exercise itsinherentpower andjurisdictionunder Section 482 Cr.P.C. to■ inhibit the criminal proceedings in the aforementioned case against' S.N. Subrahmanyam (petitioner', in Cil.M.C. 1873/2015 & connected Page 53 of54 V-^ Ca.M,C.117!/20U) „a t i. Crl.M.C.2068/2015). Inthe-consequence,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 aboveterms. - ■ (k.K.GA' NOVEMBER!9,2018 V. JUDGE vk/nlc/yg. w ■ A) CiI. M.C. I87j/20]5& connected Page54of54