Dlf Universal Ltd. T Hr. Its Authorized Reprexenttive v. State NCT of Delhi Thr. Factory Inspector

ORDER (ORAL! / i v" I i t J For detailed order, the decision dated 19^'' November, 2018 in Grl.M.G. 1873/2015 ma|||;refp^to^^gpgf|^ k A GA K NOVEMBER 19, 2018 nk Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. I' •! ► i' ■ ■■ IN THE HIGH COURT" OF DELHI 'AT NEW DELHI ji , Reserved on: 3"^ October, 2018 \ Pronounced on: 19^''November, 2018 n CRL.M.C; 1873/2015 & CRL.M.A. 6732/2015 ■ S.N. SUBIU^IIMANYAM: .....Petitioner H ' " . ■ i Thi-ougii: Mr. Vikas Pahwa, Sr. Advocate with :; . " Ms. Sima Gulati, Mr. Subhash Gulati, Mr.Shailesh Poddar, Mr. Vinit Arora j , & Mr. Sumit Saini, Advocates. j| versus: STATE , . ^ Respondent il Through;' ivin Mukesh Kumar, APP. 'I . ' • ^ ' 1 ' . " :|+ ■CRL.M.,C.2064/20.1S/: - n DLF UNIVERSAL UTD: THR.. ITS AUTHORIZED REPRESENTTIVE ....'.Petitioner ' , I I i "! il i 1 ! I , ( . !, i i' Through: : Nh^ Rames'h Gupta, Sr. Advocate with ;; "T V', :Mr-,;.Sande^'Kapur, Mr. Vivek Suri, " . . . ', -Karan: Seth & Mr. Mayank Datta, ; : vT hAdvs. i - iVersiis. V- ! STATE NCT OF DELHI THR. FACTORY INSPECTOR i . ' Respondent ; Thrqugh: ■ Mr. Mukesh Kumar, APP. T CRL.M.C. 20^6/2015 ' i RAJEEV TALWAH ■ ' Petitioner I Thrqugh: . Mr..Sidharth Luthra, Sr. Adyocate I . , with Mr. Sandeep Kapur, ML Vivek I V Mr. Kam Seth, Mr. Mayank [Crl. M.C. 1873/2015'& connected ].X' Paged of54 IL ^ ^ ■ i ^ - r'l ! i • Datta & Mr. Aashn^et Singh, Advocates. : versus • ' , STATE NCT OF DELHI, ..... Respondent Through: Mr..Mukesh Kumar, APP. +

CRL.M.C. 2067/2015 ' MOHIT GUJRAL Petitioner Through: • Mr. Ramesh Gupta, Sr. Advocate with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Karan Seth & Mr. Mayank Datta, Advs. 1"^' versus . STATE NCT. OF DELHI TER. FACTORY INSPECTOR , - ' Respondent Through: Mi'. Mukesh Kumar, APP. + ■CRL.M.C. 2068/2015 & CFiLi^A. 7363/2015 KYBNKATARAMAp!im;\. - .v' Petitioner Througln. ' MrV©a|^'|nk:ishnan, Sr. Advocate with AnirudhBhat,. Advocates. versus STATE A ..... Respondent Through; . Mi'. Mukesh Kumar, APP. ' " CRL.M.C. 2069/2015 & CRL.M.A. 7366/2015 A M NAIK Petitioner Through: Mr. ■ Kapil Sibbal & Mi'; Dayanlaishnan, Sr. Advocates with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Anirudh Bhat, n ■ - .Advocates. ; •. 'CrL-M.C. 1873/2015 & connected i ! i i" ; I , [ j ; )' versus STATE & ORS. Respondents Through: Mr. Mukesh Kumar, APP. ' + CRL.M.C. 2070/2015 & CRL.M.A. 7369/2015 MVKOTWAL I Petitioner Through: Mr. Dayanlcrishnan, Sr. Advocate with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Anirudh Bhat, Advocates, versus , STATE & ORS. Respondents Through: Mr. Mukesh Kumar, APP. ' + CRL.M.C.2071/2015.&^G]RE*A, 7373/2015 I SHAILENDRA ROY Petitioner Through:. Ms. SirhaOulati with Ml". Subhash OuiahJ^]i::Shailesh Poddar & Mr. .SumitlSaihi, Advocates. versus , . STATE Respondent Through; Mk^Milkesh fCumar, APP. + CRLM.C.2072/2015v&'<iM:vMA7375/2015 . R. SHANICAR RAMAN Petitioner - Through: Ms. Sima Gulati with Mr. Subhash Grilati, .Mfe Shailesh Poddar & . I' MivSuthit'-^Saini, Advocates. versus STATE Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2i58/2015 & CRL.M.A. 7635/2015 ^ SUDHIRSAHGAL .....Petitioner Through: Mr. R.K. Handoo with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Mayank Crl. M.C. 1873/2015 & connected I i \ <• 1 i ) i ; v., J , 9^ Datta, Mr. Karan Seth & Mr. Aashn^t Singh, Advocates. versus STATE NCT OF DELHI Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2159/2015 & CRL.M.A. 7672/2015 ASHOK KUMAR TYAGI Petitioner Tlirough: Mr. Sidharth Luthra, Sr. Advocate with Ml'. Sandeep Kapur, Mi'. Vivek Suri, Mr. Kam Seth, Mr. Mayank Datta & Mr. Aashneet I Sin^i, Advocates. !* : versus STATE NCT OF DELHI . i Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2160/2015;'&Cia.M.A,••■7637/2015 SHRIRAMKHATTAR' A •; AA ^ ^ Petitioner Through: with Mr. Sandeep Kapuryl^'- Vivek Suri, Mi'. Mayank Datta, Mr. Karan Seth & Mr. Aashneet Singh, Advocates. ■Versus ■ STATE NOT OF DELHI Respondent Through: Mr. Mukesh Kumar, APP. CORAM; HON'BLE MR. JUSTICE R.K.GAUBA .T U D G M E N T

¶1The work of development of DLF Capital Green Project at a construction site described as 15, Shivaji Marg, Deihi-110 015 owned Cvl M.C. 1873/2015 & connected ^ I . by DLF Universal Limited ("the land owner company") was underway in May, 2014, the contract for said construction work having, been entrusted by the said land owner company to M/s. Larsen and Toubro Limited ("the. construction contractor company"). On 17.05.2014, at about 3:50 p.m. a worker named Anldt Kumar, engaged as a painter at the level of IS^'' floor of Tower No. 14, while applying paint on the face of the exterior wall, fell down to the ground suffering serious' . injuries that resulted in his death.

¶2The matter was reported, inter alia, to the Station House Officer of Police Station Moti Nagar who registered first infonnation report

(FIR) No.429/2014 and took up the investigation into offences suspected to have been committed, thby being punishable under Section 288 (negligent conduct with respect to pulling down or repairing building) and Section 304-A (causing death by negligence) of Indian Penal Code, I860- (IPG) ■. The.-in^estigation into the said FIR resulted in report under 'Sechon' "-,173' (of' Code of Criminal Procedure, 1973 (Cr.P.C.) being submitted to seek prosecution of one Shahzad son of Abdul Gani on the accusations of his complicity in the said offences under Sections 288/304-A. IPG for the reasons that he was the supervisor engaged by the sub-contractor Anwar Ahmad, to whom the work in question had been allocated by the construction contractor company, the death being attributable to" acts of commission or omission on his part.

¶3Simultaneous to the aforesaid report to the police and initiation of action by it vis-a-vis the aforementioned cognizable offences, the Q'l. M.C. 1873/2015 & connected ■ Page 5 of d4 : I I mater was also brought to the notice of the authorities in the office of labour commissioner, Govt. of National Capital Temtory of Delhi, particularly the Inspector of Building and Construction. The inquiries made by the said authorities culminated in a crimina] complaint (CC No.55Fl/14) being presented in the court of Metropolitan Magistrate on 10.07.2014 by the Inspector of Building and Construction (also Deputy Chief Inspector of Factories), the complaint alleging offence punishable under Section 47 of the Building and Other Construction Workers (Regulation of Employment and'Conditions of Service) Act, 1996 ("the Building and Construction "'Workers Act", for short). The Metropolitan Magistrate took cognizahpe hy order dated IG.09.2014 and issued summons on the said co'mpladnf inter alia, against the petitioners who have approached this court invoking inherent jurisdiction under Section 482 Cr.P,.C-. rby the captioned petitions seeking the proceedings arising out of the said criminal complaint case to be quashed on the ground the.;sarne isdh; the nature of abuse of the process of the court. ;;

¶4It may be mentioned here that the criminal complaint in which summoning order was passed which iis'.iimpugned here, fifteen (15) persons were shown in the fray as accused, they including the land owner company and the construction contractor company, five of the accused persons being associated with the land owner company while eight others connected to the construction contractor company.

¶5Though it was pointed out that in the impugned order dated

10.09.2014 whereby the petitioners have been summoned by the Crl. M.C. 1873/2015 & connected Page 6 of54. o Metropolitan Magistrate,, there is a reference to Section 179 of the Factories Act which was wholly uncalled for, the learned counsel for the petitioners fairly submitted that it having been well-understood by all concerned that the summoning order is for the offence under Section 47 of the Building and Construction Workers Act on account of breach of the mles framed thereunder, they press these petitions for quashing of the said summoning order on merits on the grounds indicated hereafter. / ~

¶6The petitions of the land owner company (petitioner in Crl.M.C.2064/2015), its Chairma:n Mohit Gujral (petitioner in Crl.'M.C.2067/2015), its Managmg-Direp^bA Talwar (petitioner , in Crl.M.C.2066/2015) rf>s.Pii^t(|^;iShru^ Khattar, Ashok Kumar Tyagi and Sudhir Shhgal :(p^|i^ers in Crl.M.C.2160/2015, 2159/2015 and 2158/2015 resp^ctiy^iprimarily contend that the construction contract having-beeb'-eHlfusJ^^^^ the said other company, the work being carried out;un%. the, sp|qi^ision and control of the latter through its sub-contractor, it having no connection whatsoever with the day-to-day activity, it had no role to p.lay or nexus with any of the acts of commission or omfesiori ,bnTi!bhasis of which accusations have been leveled, no case also being made out of vicarious liability under the criminal law.

¶7Neither the construction contractor company nor two of the other accused connected thereto - Mr. Daljit Singh and Mr. Harish Vaid -• described as Project Director and Manager (Industrial Relations) respectively in-charge of the construction site, have come t Crl. M.C. 1873/2015 & connected-I >1 up to this court with any plea assailing the order of the Metropolitan Magistrate taking cognizance of the afore-mentioned offence or summoning each of them. Six (6) others, connected to the said construction contractor company, however, are. before this court, with similar petitions under Section 482 Cr.P.C, as aforesaid, they being A.M. Naik, Group Executive Chairman (petitioner in Crl.M.C.2069/2015); K. Venkataramanan, CEO and MD (petitioner in Crl.M.C.2068/2015); M.V. Kotwal, whole-time Director and President (Heavy Engineering) (petitioner in Crl.M.C.2070/2015); S.N. Subrahmanyam, whole-time Director and Senior Executive, Vice President (Infrastructure and C'ohstruction) (petitioner in Crl.M.C. 1873/2015); R. Shanlcar Ramah,'whole-time Director & CFO / (petitioner in Cii.M.C.2072/2®15).; and" Shailender Rao, whole-time Director and Senior Executive Vice President (Corporate Affairs and Power) (petitioner in Crl.M.C.207i/20i:5). The thrust of the arguments of this set of petitionefs is tlmt'given their position in the hierarchy in the construction contractor cd'mpany, having regard to the measures that had been put in position under their directions, in stiict compliance of and adherence to the law, The work in question having ^ been entrusted to a sub-contractor, their representative being in-charge I of the project at site, they cannot be held accountable under the principle of vicarious liability for the penal offence under the special law which has been invoked by the prosecution before the Metropolitan Magistrate, and in which they have been summoned such proceedings being abuse of the law. Cii. M.C. 1873/2015 & connected \ ^ o

¶8The petitions "have been resisted by the respondent State (the complainant). Since they have arisen out of the same case and bring a challenge to the same order, they have been heard together. During the course of hearing, references were made to certain communications that had been exchanged between the companies (accused) on one hand and the statutory authorities on the other. For clarity, the complainant was directed by order dated 24.09.2018 to file an affidavit explaining its position, vis-a-vis the said documents and in compliance a reply dated 28.09.2018 styled as reply affidavit to the supplementary documents was •brought on record by the respondents on 29.09.2018. I ; . ^ .

¶9The Building and Construction t^ofkers Act was brought on the statute book enforced w.e:f. '0i.03..1996 with the objective of regulating the employment and condltioiis of service of building and other construction workers--M'%i^p0|^|'>|"Or their safety, health and welfare measures and for; <■ other ■ lipa'her^^^^ therewith oi incidental thereto.

¶10The expression •■%uilciing or oj^r:-i.^'Qristruction work" is O defined by Section 2(l)(d) to medn, Mer alia, "the construction, alteration, repairs, maintenance or demolition, of or, in relation to, buildings... ". There is. no dispute thafthe works being carried out at the site in question in the name and style of DLF Capital Greens Project, in the course of which the fatal accident occurred, were '"building or other construction worA:" within the meaning of the I statute. The "building worker" is defined by Section 2(1 )(e) to mean !l . ^ ■ \ iI I , ■ ■ VCri M.C. 1873/2015 & connected . : 1 I ' f 5 i i I ;i i i 1 I > 1 ; "a person who is employed to do any skilled, semiskilled or unskilled manual, supervisoiy, technical or clerical work for hire or reward, whether the terms of employment be - expressed or implied, in connection with any building or other construction work". There is no dispute that Ankit,Kumar, whose death due to fall on 17.05.2014 has led to the criminal action was engaged as a "building worker" at the project site in question within the meaning of the said expression.

11.. The meaning and import of three other expressions - "contractor", "employer", and "establishment" being germane to the 1^) issues that have been raised, their' definitipinsi, as appearing in clauses

(g), (i) and G) of Section 2(^1) of;t|Pifelding ,and Construction Workers Act, may be taken note of as';Undpr:- "(g) "contractor" means a persqin who undertakes to produce a ffiven result for anvkstdblishment, other than q I mere supply of gooc^\Qif:drtwlesjpf'manu^ by the employment of buildin2 workers,'br,who supplies building workers for any work, of the esiabiishment; and includes a sub-contractor; j

(i) "employer", in relation to an establishment, means the owner thereof, anddncludes, - , , j r

(i) in relation to a building or other construction work carried on by or under the authority of any department of the Government, directly without any contractor, the authority I specified in this behalf, or where no authority is specified, the head of the department;

(ii) in relation to a building or other construction work carried on by or on behalf of a local authority or other establishment, directly Crl. M.C. !873/20]5 & connected Page 10 of54 , \ w ct) without i^hny.'.cont^-actor,. the chief executive officer of iliaf authority or establishment;

(Hi) m I relation id a huildim^ or other cohstructioh work carried on by or though a contractor;^ or by 'tfie, employment of building workers) supplied by\ a contractor, . the contractor:

(j) ''establishmbnt'\me,ans any establishment belonging to, or under the control of. Government, any body corporate or firm, an individual or association or other body of individuals which; or who employs building workers in any'buildin2 or other construction work: and includes an establishment belonsins to a contractor, but O does not include anfhdpidudl: who-employs such workers in any building or construction work in relation to his oyvn residence the total epM of fuch (construction not being more than rupees ten lakh;'f • t . . . ; k ' (emphasis supplied)

¶12It is clear from the aboVe-motelidefe that the "contractor" in relation to a building o:^;;p|fier .^to^^i^etion work may be a person other than owner of the^su^bcf prppeEt^^ instance such work - is undertaken. As would be' seen with reference to certain other provisions of the law, thes responsibility for the safety measures is of ^ the person who falls within'the descfiptibn "employer", qua the building worker. It. is the "employer" who constitutes the "establishment" which is dutj^' bound, under the law and the rules \ framed thereunder, to put in position, the'requisite safety measures.

¶13• It would be of advantage to bear in mind the broad scheme of law in force by the Building anh Construction Workers Act. Besides conceiving of certain statutory authorities including advisory or expert Crl. M.C. 1873/2015 & comected I committees (Chapter II), welfare boards (Chapter V), enforcement officers (described as Inspecting Staff) (chapter V7II), it mimdafeo compulsory registration of establishments (Chapter III) as also building workers as beneficiaries (Chapter IV). It confers certain role upon authorities In the government, the' "appropriate government" as per section 2(i)(iii) in relation to-such establishment as "employs building workers either directly or through a contractor" being the government of the State in which such establishment is situate..

¶14The sixtli chapter ("conditions of service of building workers ") ^ deals with subjects such' as fKe| -hotts for normal working day (Section 28), wages for overtime work (Section 29), maintenance of registers and records (Section 30),';prohibition of employment of certain persons in certain buiiaing..or ofher construction work (Section 31), drinlang water (Section 32),, lattiii# and urinals (Section 33), accommodation (Section 3##^s^S^iion 35), First-aid (Section 36), Canteens, etc. (SectMSfyl

¶15The seventh chapter {"safety and health measures") is what is crucial to the present ods?,:. It ponfer^^y^ge^ 40, power on the Q appropriate government to'makl^files' ^or the safety and health of building workers, the rules envisaged whereby do also cover, per sub-Section (2) the following:-

(a) the safe means of access to,. and the safety; nf any woranff place mcludins^ the provisinn of suitnhlp nvirJ f^cient scaffolding, at various stages when work cannot ^ safely done from the ground or from any part of a building orfrom a ladder or such other means of support; I Crl. M.C. 1873/2015 & connected

(e) the erection, installation, use and maintenance of hoists, liftins appliances and liftins socir including periodical testing and examination and heat treatment where necessary, precautions to be taken while raising or lowering loads, restrictions on carriage of persons and appointment of competent persons on hoists or other lifting appliances;

(o) the keepins of safety nets, safety sheets and safety belts where ' the special nature Or the circumstances of work render them necessary for the safety of the workers;

(p) the standards to be, complied with regard to scaffolding, ladders and stairs,- lifting appliances, ropes, chains and accessories,,;'earth -moving equipments and (^1 floating operational eqxupmteytts; ^ vf • V '

(r) the safety policy, that is to'-ffly, a policy relating to steps to be taken tO' ensure ihdisif^ty and health of the building workers, the administrative arrangements therefor and the matters connected therewith, to be framed bv the employers and contractors, ibr the operations to be carried on in a building onothehcdnftruction work:

(u) any other matter concermng' ikiM safety and health of workers working in dhf^gpthfldp^Mpr^ being carried on in a building or other construetidh work. " (emphasis supplied)

¶16This power to make rules specific "to the subject of "rules for safety and health of building workers " is to be read with the general provision contained in Section 62 {power to make rides) vested in the appropriate government. Section 41 similarly entrusts the responsibility of framing of model rules for safety measures unto the central government. Crl. M.C. 1873/2015 cSc connected SV

¶17There 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:- "28. 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 of such number of representatives of the employer and the building workers as may be prescribed by the State Government: Provided that the number of persons representing the workers, shall, in no case, be less than the persons - representing the employer. : t . .

(2) In eveiy establishment referred to in sub-section (1), the employer shall also appoint a safety officer who shall possess such qualifications and perform such duties as may be prescribed. I '

¶44Responsibility of emphvers:i.--,Mn employer shall be . responsible for vrovidtfiky. emfiant and . adequate ; supervision of any kmldin^, of otfiefieonstruction work in his establishment as to ensure compliance with the provisions of this Act relating to safety and for takins all practical steps necessary to prevent accidents. " O ' (emphasis supplied)

¶18The 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". Having regard to the scheme of the statute, a "contractor" having undertaken to carry out the construction Crl. M.C. 1873/2015 & connected work for and on boha-lf of tho 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.

¶19For completion of nairation, it may be added that Section 39' casts a duty on "the employer" to give notice, in the manner pi escribed, to the specified authority in the event of - an accident occurring in its establishment, it resulting in death or bodily injury incapacitating a worker for a certain period, this for the puipose of investigation or inquiiy by such authority as may be deemed necessary. In the present case, the notice of the accident was concededly given and the inquiry hefdivby the concerned statutory i',. ' f inspectorate. ^ '

¶20The Building and Gonstructidn. porkers Act also requires a prior notice of commencement ofbuilding, or construction work to be given, the mandatory information-requMfe for such purposes being as indicated in the following providiOmrT.'.'i-'.' "46. Notice of commencement of building or other construction work.r \ /' (V An employer shall at least thirty days before the commencement of any building or other construction work. ssnd or cause to be sent to the Insvector having jurisdiction in the area where the proposed building or other construction M>ork is to be executed, a written notice containing-

(a) the name and situation of the place where the building or Other construction work is proposed to be carried on; Cii. M.C. ]873/2015 & connected Page 15 of54

(h) the name and address of the person who is undertaking ' the building or other construction work; I

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

(d) I the nature of the work involved and the facilities, including any plant and machinery, provided;

(e) the arrangements for the storage of explosives, if any, to be used in the building or other construction work; (f the number of workers likely to be employed during the various stages of building or other construction work;

(s) Ihe name and desistnation of the person who will be in overall charge of the buildihgfor other construction work at the site: '• ' ,,

(h) the approximate duration dfthe^ork;

(i) such other.matters as may be j^rescribed.

(2) Where any change occurs; in-'any of the particulars furnished under sub-seation fpX: .4he employer shall intimate the change fo fw two days of such change. 'f

(3) Nothing contained in sub-sectihn (1) shall apply in case of such class of building or other construction work as the appropriate-government may by M' otif cation specify ^ to be emergent works-.-" . - ' ' ' I (emphasis supplied)

¶21The 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 16of 54 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 of commission or omission done by such representative "incharge of the project" or those working under his control. Pertinent to add, the duty to intimate, m advance, commencement of the construction work (by prescribed notice) is not of the land owner but of the "employer", such statutoiy notice requiring it to be specified, amongst others, the particulars of the person who would be accountable in the capacity of he being "in overall charge".

¶22In exercise of the powers confeiled upon the said authority in exercise of. the powers conferred byjth^'.Mlding and Construction Workers Act, the lieutenant gqvernor pflihe Govt. of NOT of Delhi made and notified Rules which .are^^paljfed the Delhi Building and Other Construction Workers of Employment and Conditions of Service) Rulbs.20i)2 Rules for short).

¶23The criminal complaint (from which the present proceedings arise) refers specifically., to • breach , of rules) 39 (Health and safety policy), rule 42 (Slipping, tripping, cutting, drowning and falling hazards), rule 178 (Safety 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 fall in different Chapters of third part (Safety and Health).

¶24Rules 39 and 42 appear in the sixth chapter (general provisions), rules 178 and 179 in sixteenth chapter (Catch Platform and Hoardings, Crl. M. C. 1873/2015 & connected 17 of54 Chutes, Safety Belts and Nets), rule 196 included in nineteenth chapter (Scaffold), while rule 209 forms part of the provisions of twenty-first chapter (Safety'Organization).

¶25The offence to answer which the. petitioners, and three otherSj have been summoned by the Metropolitan Magistrate is defined and provided for in Section 47 of the Building and Constmction Workers Actasunder:- "47. Penalty for contravention of provisions regarding safety measures.- (1) .Whoever contravenes the provisions C of any rules made under section 40 shall be punishable with imprisonment for a term which may extend to three,' months, or with fine which rricty. extend to two thousand rupees, or with both, and irt.yth^\,(pase of a continuing contravention, with an'addition'dffihe'which may extend to one hundred rupees for emrybdl^y during which such contravention continues jafter conyfction for the first such contravention. • , •; .

(2) If any person who hay beedpibfnvicted of any offence' punishable under again guilty of an offence involving a contraverdion 'Or failure of compliance of the same provision, he shall be punishable on a subsequent conviction with imprisonm.ent for a term which may extend to six months, or-witfi fine. -which shall not be less than five 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 of the offence for which the person is subsequently being convicted: Provided further that the authority imposing the penalty, if it is satisfied that there are' exceptional circurnstances CH. M.C. 1873/2015 & connected c 5"] warranting such a course may, after recording its reasons in writing, impose a fine of less than five hundred rupees. "

¶26It is the contravention of the mles relating to health or safety measures which constitutes the offence provided by Section 47 quoted above, and for this, 7^em' rea i.e. the intention to commit the breach of the rules or abetment thereof on the part of the person sought to be prosecuted is pre-requisite. The case at hand is not one of any of the 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.

¶27As obseiwed above, it is the contravention of the provisions of the Rules on the subject of ''safety anfi health of building workers as envisaged in Section 40, which is -madb;punfshable. Though the Delhi Rules have been framed and notifrediwiisinference to the rule making power conferred on the appro;pidte goliernment by section 62, having legard to the suojects that are thereby covered, there can be no dispute that such rules have been framed also in exercise of the power under section 40. . ' I '

¶28The 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:-Crl. M.C. J873/201'S & connected tfO O firm. "53. Offences by companies.-(1) Where an offence under this Act has been committed by a company, every versnn who, at the time the offence was com.mitted. wa.s in cha.rQP. of, and was responsible to. the cnm.pm,^ for the cnnd-,jrt nf the business of the company, as well as the company, shall g deemed to be_gj^ of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was com.mitted without his wy^Mg^or that hejiad exercised all dv^ to prevent the commission.of such offence. w_ere any offence under this .Act has been committed by a company and^ it is phoved: Piaf ffhe nfffnre has.:, hp.pyi committed with the consentPmfConnivance of nr is attributable to any mgleet onMe^ p-art of anv dir^rtn. manager, secretary or other officer of the company, such director, manager, secretary^ dr. other officer shall be and shall be liajk^e proceeded against anffpiintshedpc0rdingly. Explanation. -For thepujposefc^fEis fec^^ -

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in rdmon ppfmmffiSm a partner in the (emphasis supplied)

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

¶30It is clear from the bare reading of the statutory clause that -where the offence is committed by a company, in order to rope in any other person on die principle of vicarious criminal liability, it must be shown drat such person was, "in-charge of and was responsible to the company " for the conduct of its business "at the time the offence was committed". The proviso to Section 53(1) permits a person arraigned on the principle of vicariousTiability to plead and show by evidence, m defence, that he was not; responsible either because, the acts constituting the offence were wmmsf^ywithom his knowledge" or because he had "exercisedcdldue diUger^eto prevent the commission of such offence". Notwithstaiding d^S &ain provision contained in Section 53(1), the prosecution may b|hii|ated against "any Director. Manager, Secretary or otmrafffirercofffgcbmparny" if there is proof available to show that-the b|fen6e was,,.bdmi)iitted "with the consent or connivance of, or is attributable to dnf -neglect on the part off such diiector, manager, secretaiy or other officer.of the company. While section 53(l) -rehes on "iiee-m,-mg-'cdue:fd'-'& position of the person vis-a-vis the company "in-charge off and "responsible to", section 53(2) necessarily requires positive evidence to show-active participation reflective of "consent", "connivance" or "neglect".

¶31In 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 nPage 21 of54

04.09.2011, 11.04.2012, 16.08.2012, 28.02.2013, and 16.01.2014 as well. The present complaint dated 14.08.2014 cannot be treated as a complaint with reference to such previous incidents for two prime reasons; one, there are no averments as to the breach of any specific rules within the meaning of section 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 of the Building and Construction-Workers Act.

¶32It 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 construeti'bn contractor company. It is indicated in the complaint itself thdt the construction contractor company had got itself registered with tbe statutory authority of the appropriate government in eomplianepf with the requirements of Section 7. The certificate-.of registration.-describes the construction contractor company to be the "estabtishment" 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 of the 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 ^0^ Crl. -M.C. 1873/2015 & connected IS about the fatal accident was given by the construction contractor company abiding by its responsibility under Section 39.

¶33After setting out the facts pertaining to the fatal accident on

07.05.201.4, while referring to the previous such incidents, and describing the positions of the petitioners (as indeed of three, others who are not before this court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:- "3. That Sh. Mohit .Gujral, Chairm.an, Sh. Rajeev - Talwar,-Managing Director, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sakgal, Director of M/s. DLF Universal Ltd., Shopping Mall, 3''''' Floor, Arjun Marg, DLF CityfMock E, DLF Phase 1, Sector 26A, Giirgaon, Haryana 122002 are the. Directors and Sh. A.M. 'Mfik, Group Executive Chairman, Sh. K. Venkataramdn.m, CEO & MD, Sh. M. V. Kotwal, Whole time Director ■&_.:p0esident. Heavy Engg., - Sh. S.N. Subrahmanyan, fffiole t' fm^i Director & Sr. EVP (Pnfrastructure & cotistrnctipn}; ^^-'R, Shankar Raman, Whole time Director & CFO., 'S^: ..SEailendra Roy, Whole time Director & Sr. EVP (Corporate affairs & power) and Sh. Daljit Singh - Project Director, (In-charge of the construction site) of M/s. Larsen & Toubro Ltd. are the fy 'Directors " of M/s. Larsen & Toubro Ltd. and Sh. Harish Vaid, Manager (Indl. Relations) is the Manager of the construction site within the meaning of Section 53 of the said Act (hereinafter called the accused for the purpose of the Act, in the present case).

¶4That 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 of the 'Construction Site' on 18.5.2014 at 11.00 - Crl. M.C. 1873/2015 & connecled AM and further investigation on 24.5.14 at 4.00 PM along with Sh. R.N. Dahiya, Director (ISH) and Sh. J.N.Jain, Dy. Director (ISH)/Inspector's of Building & 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 of applying paint on' the face of the wall, fell to the ground, causing him severe injuries resulting in death.

¶5That besides this, prima.facie, it appeared on inspections that the manasement failed to ensure adequate site mana2ement as envisaired in the provisions of the Building and other. Construction Workers (Regidation of Employment and Conditions of Service) Act, 1996 and the Delhi Building, and other Consk-uction Workers (Regulation of Employment and Conditions of Service) Rules, 2002. Manasement had not taken all appropriate measures as per I die said Act and Rules framed thereunder to prevent aUcidents at building site of such proportion and magfi-itude. , I 6. That there have been. 5 fatal •■accidents resulting into loss of lives of 5 workers in the recent, past, at the same-site. But, it is clear that they hdid'no.t learnt any lessons out of previous series. of fatal accidents. Apart from notices, a prohibitory 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 Rules frames thereunder as applicable on the construction site of this magnitude were made.

¶7That jiirther, repeated deaths clearly pointed to neglect and comm.issions & 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.

¶8That dimng the course of inspection and investigation, the followins breach of the provisions of the "said Rides " read with the "said Act " were observed:- Crl. M.C. 1873/2015 &'connected ■ , K I. That the workers working at height M'ere not . provided with safet\> belts and Personal Fall Arrest Systems fPFAS), in contravention of provisions of "Rule 42 and 178 of the said Rules. " II. That the safety nets were not provided at the construction site, where the workers were allowed to work . at height, in contravention of provisions of Rules 42 and 179 of the said Rules. III. That the platforms and balconies, from where a worker is liable to fell, had not been provided with suitable & safe suardrails and toeboards of adequate strength in contravention of the provisions of Rule 196 of the said Rides. , . IV. That more than .500; I.e. 2.700 workers were ordinarily employed at the consffuction site but Safety Officers as per qualification dpd Condition of service , as laid down in Schedule VIII of the said Rules had not been appointed, in contravention of the .provisions of Rule 209 of the said Rules read withSectip.n 88 of the said Act. / i. . * i 'v , • V. That the managements,Mmilnot implemented their Health & Safety, fiPhlicy':. hhffiftter. and spirit, in I contrayentionofRulbfi9;.oft0fiaidjMules. . ' 9. That the aboye accused persons are thus 2uilty of contravenins the..provisions of Rules 39,42,178,179:196 and 209 of the said:Sules..read with; Sections 38,40 and 53 of the said Act which is'punishable iinder section 47 of the "Said Act" for an imprisonment for a term which may extent to 03 months or with a fine which may extend to Two Thousand Rupees or with both. " (emphasis supplied)

¶34The reference to the prohibitory order having been issued by the statutoiy authority on 26.05.2014 vis-a-vis the project site, being a Cri M.C. 1873/2015 & connected subsequent action, there is no case of any violation of the said prohibitory order. . , .

¶35In 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, leply dated 18.06.2014 of the land owner company and replies dated

04.06.2014, 17.06.2014 and 04.08.2014 of the construction contractor company. The reply dated 17.06.2014 of the construction contractor company, in turn, referred to letters dated 20.05.2014, 03.06.2014, and

25.04.2013 and health and safety pMfey,' 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 acknowledgeel'.-. i v:"'

¶36The documents in which-•.regard^ffhere is no dispute, upon perusal, show that the land owner company had entered into a contract on 29.03.2012 with . the constructio.n contractor company. ^ Concededly, the general conditions of the 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 I constmction including safety compliances, liability towards insurance and labour laws. The following stipulations in the contract need to be extracted for confinnation of the above aspect:- "79.0 SAFETY PROCEDURE Cii. M.C. 1873/201-5 & connected Page 26of54 '^^■1 The contractor shall incorporate in his oyerations the requirements of all the 'Safety Codes' issued by the Bureau ofIndian Standards and provisions of the National Building Code of India 2005 including any amendments thereof The Building and Other Construction Workers (Regulation of Employment and Conditions of Services) Act, 1996 and. any other applicable statutory rules and, regulations. These requirements shall apply in all cases except where the regulations of the local authority require more stringent measures to be taken. Where the requirements of BIS Codes'and/or National Building Code, the Building and Other Construction Workers (Regulations of Employment and Conditions of Services) Act, 1996 are duplicated by the local regulations or the "Safety Manual " - provided by the Owner,- . the ■ more stringent of these regulations shall be deemed,toidppjy:- The Safety Manual provided by the Owner, is oni^Isf-ffestive and shall nqt cast any liability on the\€)wnef:f:'[ f),'

79.2 The contractor shad momdeisafe means of access to all workin2 places. . . ' ft

79.3 The contractor-. :sMI BkcsNlelv responsible for proper design of jthe sddi^I^fyi^kutemporarv accesses, ladders and ramps.'formWBrl^iund'-.hd.istins arransements. • ■ cranes etc. to ensure siMtSi'dNImfkmen as well as. the works. All scaffolds, ladders and other safety devices shall be maintained in safe conditions. Only-tubular scaffolding shall be used. '■■rC' ' - .

79.4 All necessary personal safetv/protective equipment, first aid kit, medically trained personal, fullv 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 and workers.

79.5 Adequate precautions shall be taken to prevent danger from, electrical equipment. Crl. M.C. 1873/2015 & connected

79.6 No materials on the -site of work shall be so stacked-or placed as to cause danger or inconvenience to any person or the public.

79.7 The contractor shall provide and maintain all necessary temporary fire protection and fire fighting facilities at the site during the execution of the works in accordance with the National Building Code of India 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and explosive materials and goods are stored and handled in a safe manner and in accordance with the statutory regulations.

79.8 The contractor shall notify the engineer immediatelv of any occurrence of mishaps or accidents that results in death or injury (including ^ievpus injury) as defined in the Indian Penal Code. Such initial notification may be verbal and confirmed in writing'thereafter and shall be followed by a comprehensive firittpn report within 24 hrs of the occurrence/incident.^ fhe '-contractor, shall duly complete standard forme fis reqiiired by the engineer and I statutory authorities. , f-f )

79.9 It is made cledf'thaf lke^fiontractor alone as the Principal Entploverk Is I •ans4vef^blb7 and liable to all investisatins and lesdTaiMidriMefMcludins Court of Law and the Owner shall not have any part or liability in this regard. The Contractor alone shall be responsible and liable to compensate the victims-.-jmm.ediately on the occurrence of the mishaps or accidents and also protect and indemnify and hold harmless the ovmer, the engineer. and all persons who may be associated with or connected ■with the o-wner or the engineer and to reimburse all legal andfinancial costs, if incurred, by the them in this regard.

79.10 All consequences, damages or losses arisins by reason of any violation of the safety requirements resultins: in any iniuiw or loss of life to the contactor's or any sub contractor 's Emplovees/Staff/personnel and Workers/Third Party (non-fatal/fatal) shall be met by the contractor who CrL M.C. 1873/2015 & connected . Page 28 of54 alone will be responsible for handlins and disposal of the . accidental cases with Government/non-Government authorities. The Contractor shall he bound to pay compensation to the persons for the injuries sustained or death owing to neglect of the safety precautions should any 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 criminal prosecution in such cases and be answerable for the same before all authorities.

79.11 Within one week of commencement date, the contractor shall submit-. td the 'ensineer. a detailed and ■L,' comprehensive contract' shall' submit to the ensineer, a detailed and-comprehensive contract specific site safety plan, based on the requiremeny-, Mated in clause 79.1 above. The site safety plan shall irrelude detailed policies, procedures and reflations \which. iwhen implemented will ensure safetv of all the persons, including third parties on or in, the vicinity of the site (including without limitation . persons to whom access la the,sitpihas been allowed by the ■' contractor). The contractor ■■Mallf/h.bm time to time as necessary, produce shpplohient&dolmd^site safetv plan such ■that it is at all times a'' detailed, comprehensive and contemporaneous statement by the conti^actor of his site safety 'and industrial health, obligqtioks, responsibilities, policies and procedure (under ike/laws of India) 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 shall be without prejudice to the Contractor's obligations with respect to Site safety and industrial health and shall not excuse any failure by the contractor to adopt proper and. recognized safety practices throughout the execution of works. Crl. M. C. J873/2GI5 cS; connected o 5^

79.13 The contractor shall adhere to the Site Safety Plan and shall ensure that all sub-contractors of all tiers, have copy of the Site Safety plan and comply with its vrovisions. The contactor shall appoint a qualified and experienced person as Site Safety^ Officer to act as Manaser of the Site Safety Plan and who will he 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 of the Site Safety Plan. The said Site Safety Officer shall submit, regular safety Teports to the Engineer in accordance with the requirem.ents of the Engineer and all releyant statutoiy authorities, . as required by Applicable laws and regulations. The contractor shall submit on a monthly basis a Certificate of Compliance -for Health, Safety and Enyironment as given mAppenfxf 'Ml'. " V', . (emphasis supplied)

¶37It appears that in the wake 'of the -fdt'Hll incident that occurred on

28.02.2013 (death of Maqbool); at the/sarnie very site, prohibitory order followed by revocation order, ;had beep-nSsued on 01.03.2013 and

08.03.2013. Against tiie ^aid' construction contractor company had taken steps for gehihi^ltihe.safety audit of the project done. An audit report dated ,03.04.2013 was subrnitted to the authorities by the said coinpahy'underrthe Cov^^^ of its letter dated

25.04.2013. Reference to the said audit report and the con*espondence exchanged in such regard was made by the constmction 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 being passed. In the reply affidavit dated 28.09.2018, the complainant also confirms that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactory Cri M.C. 1873/2015 & connected. report in respect of the safety measures that had been adopted by the management of the said company and, in view of such audit report, the construction work was allowed to be resumed.

¶38As noted earlier, it is admitted case even for the complainant that 111 terms of the intimations that had been given, Mr. Daljeet Singh, the Project Director of the construction contractor company, was the person "mcharge of the construction site" and Mr. Harish Vaid, Manager (Internal relations) was the Manager of the Construction Site, within the meaning of Section 53 of the Building and Constmction .0 Workers Act. As also noted earlier,- both the said accused persons have not challenged the. summoning order;- • ' ' D

¶39It was also brought ow.itiring lhe4o"rse of hearing that at the time of inspection(s), leading tb reports dated 18.05.2014,

24.05.2014 being prepared, if singh, who was found as the person mcharge of t^ sitp^feji^l^^ssisted the complainant's ofhcers in such .inspection:■at5€fc!ae;i';>rhe report, prepared on inspection carried out in the forenoon of 18.05,2014, is the most cruciai 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 (PFAS) and safety belts had been airanged but not provided to the workers. It a.lso 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 confinned that health and safety policy, as required' by Crl. M.C. 1873/2015 & connected " Page 31 of54 Rule 39 had been formulated, the breach of the statutoiy rules was noted for the reason such policy had not been submitted for approval. The report, at the same time, confirmed that the inspecting officer had found and verified that safety committee and emergency action plan in terms of Rules 208 and 36 respectively were in position, the breach of Rule 209, however, being inferred for the reason qualifications of the "safety officer" were not shown. In the brief note of the concluding part of this 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 18.05:2014 and mainly noted, that Ankit Kumar (the deceased wb.rker)' w;as 'applying paint on the face of the wall at the 18'^ floor level when he had slipped and fallen, to the ground, he not wearing the safety beltpr'HFAS at that point of time.

¶40Pursuant to the inquiries which were raised in the wake of the , fatal incident of 17.05.2014, 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 correspondence, .which concededly includes submission 'w' 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 of May, 2014, Crl.M.C. 1873/2015 & connected . c the safety policy having been formulated and-forwarded' to the authorities by letter dated 25.04.2014, duly qualified duty safety officers having been deployed at site, the steps taken inclusive of the following;- "2. On site safety measures : 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 I safety measures. . - b). L&T has provided personal protective Equipment to aUfvorLeiis..and:ps-usage is enforced prior to construcMondiif pnpy. c). The workers :cite\d)pi^d. ahoiit the hazards involved in particular dciwity-before start of the d). L&T has, pro.iected the-floor edge with hard barricades. . 'fyf'' e). L&T has protected all-openings, cut outs with I reinforcement mat. t ' • ,p. f). L&T has closed all lift shafts with gates. g). Safefp-patch'netpMm:p>r^^ below 6 m of live working floor around piriphery to prevent fall of materials and men. h). Ail plants and machineries are fitted with safety device and are frequently inspected and testedfor safety compliance. •

i). All electrical connections are routed through RCCB, MCB and at source through ELR to avoid any electrocution and overload protection. - 3. Medical and other facilities : Crl. M.C. 1873/2015 & connected . a). Round the clock ambulance and first aid facilities provided at site. h). Well maintained canteen at site and workers habitat area. c). Continuous water facilities for drinldng and sanitation facilities. d). Mobile toilets at various places at site and permanent sanitation facilities in workers habitat area. Apart from the above, all the-safety and welfare aspects of the workers are duly taken .care of at the work site: That L&T had got -the Safety Audit conducted by National. c.' Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing extensive;':survey / checking at site, submitted its report. ThcK relevant excerpts of the, reports are as under : : I I I a.). M/s. 'L&T had-pb^0ed adequate no. of Safety Officers to\ deal,with the requirements of safety man.agent0pt0n,t0^0prt. There is proper work distribution 'Safety Officers to prevent clash ' b). The owner had appointed, expert consultant organization. M/s. Turner, who has appointed NEBSOH qualifiedl Safety Officers. . c) work'at Height permit: In Indian Construction majority of fatalities occurs due to fall of workers from height. Due to this high, probability, it had become necessary to ensure implem.entation of Height Work Permit. Under the permit only those workers are allowed to proceed or work at height for whom safe access - like ladders are provided and safe work place like scaffolds exists there. This system is provided by L&T as shown to the Auditors. Crl. M.C. 1873/2015. & connected Pa^e34of54 iT d) Personal Protective Equipments ® The use of safety 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 98%, as one worker was found working without anchoring it with rigid support. © Use of safety shoe was observed almost 100%. e) Lifting Equipment and Tackles M/s L &T had got numerous lifting equipments and tackles. The safe use of one lifiing equipment was checked. It was found that the ■oy).er,a.tor was duly trained and the operator and the sigiadler were understanding, the signals very well. , ' " I f) Hazards ofWorldngatHIeight L&Thad taken the follpwingmleasures to prevent fall of workers from height; ■ ; ; ,: • . s:.-: 'i .K.-ki I'' ' • © All the openings diflii^efii^fya.tions were found covered with Bar nM-IfffkU ® All the floor edges were suitably fenced with appropriate hand rails. ® The stairs were cleaned for prevention of slipping due to slippery floor. That in view of the observations of National Safety Council (Delhi Chapter) in its report after conducting extensive checks/surveys on site, it can be safely inferred that the Establishment has been complying with all the safety norms as required under the law including BOCW (RE&CS) Act. Any mishap at site despite best protective .measures could be an accident only with no human fault or error. L& T has done its best to comply with all the Crl. M.C. 1.873/2015 & connected a safety norms, which have been subject matter of surprise checks and the same have been found 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 of the Safety Audit report and the relevant photogyaphs 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. C

¶41The questions relating to corporate liability and vicarious criminal liability of those connected to a cori:)orate body have come up in the past before the courts in the context of similar provisions contained in various statutes including, Section 141. of the Negotiable Instruments Act, 1881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs and Cosrhetics. Abt, 1940 (for short, • "Drugs ' Act"); Section 17(1) of the'Treventioh offiodd Adulteration Act, 1954 (for short, 'PFA Act"); and Section 33 of the Insecticides Act, 1968 (for short, "Insecticides Act"). NJ

¶42On corporate criminal liability, the following observations of a constitution bench of Supreme Court in Standard Chartered Bank & Ors vs. Directorate of Enforcement & Ors (2005) 4 SCC 530 provide useful guidance;- " There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that Crl. M.C. 1873/2015 & connected corporations cannot commit a crime, ' the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents. "xxx' As in the case of torts, the general rule prevails that the corporation may be criminally liable for the acts of an officer or agent, assumed to be done by him when exercising authorised powers, and without proof that 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 the prohibited ac'jfandin many statutes the term "person" is defvhedl fhlitdff' the person is not specifically defined, it pecessarfiy includes a corporation. It is usually construed tdlncludk'qi corporation so as to ^ bring it within the prohibifidn dfffif statute and subject it to punishment. In mofi. offhe\stathtP^''> 'the word "person " is defined to include-q-corpprdtiofipy >- xxx Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily depends'Upon the terminology employed in the statute. In the case of strict liability, the I terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach I of the statute but on the establishment of the actus reus, subject to the defence of due diligence. The law is primarily based on the terms of the statutes. In the case of absolute liability where the legislature by the clearest intendment establishes an ojfence where liability arises instantly upon the breach of the statutory prohibition, no particular state of mind is a Qi. M.C. 1873/2015 c& connected Page 37 of54 prerequisite to guilt. Corporations and, individual persons stand on the same footing in the face ofsuch ~a statutory offence. It is a case of automatic primary responsibility. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability. . XXX All penal statutes are to be strictly construed in the sense that the court must see that the thing, charged as an offence is within the plain meaning of the words used and , must not strain the words on any notion that there has been a slip that the thing is sb clearly within the mischief -that it must have been intended tO'.be included and would have been included if thought ofyA.ifpenal provisions like all other statutes are to be fairly construed according to the legislative intent as-expressed in-the enactment. "

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

¶44It 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 outsoqrce the work of the constructions, had passed on the responsibility for all compliances to be made by the construction contractor company in terms of the Crl. M.C. 1873/2015 & connected ' ' c law, and the contractual arrangement, to which detailed references have been made above. It is the construction contractoi company which was given the responsibility of carrying out the construction work and, for such purpose, engage the workers. Under the law, it is the construction contractor company which, in the present case, is the employer'' - the establishment which was to make compliances for safety measures to be put in position. There is no responsibility shown of the 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 p^^ner company nor those in-charge of or responsible to the condhet of its business can be prosecuted for the offence under Section 47 of the Building and Construction Workers Act on the facts' set out in the complaint fi:om which the present petitions arise.

¶45The case against the Gonstfuction epntractor 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. I

¶46In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors., (1983) 1 see 1, while dealing with the applicability of Section 17(1) of PFA Act, the Supreme Court observed as under:- "75. So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be .safely, inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an Cii. M.C. 1873/2015 & connected A' 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 am; act committed, by the Directors from, which a reasonable inference can be drawn that they could nhn ho 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 against them were rightly quashed. (emphasis supplied) the aforesaid; ruling-, in construing the effect of Section 34 of the Drugs Act in a decisiondeported as State ofHaryana vs. Brij Lai Mittal and Ors., (1998) 5 SCC 343, it was held thus:- ...the vicarious liability of a person for being prosecuted for an offence committed under the Act by a . company arises if at the material time he wn. nhn.rr. . and was also responsjblejp the company for the conduct of Its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. I . Conversely, without beinp a director a person cam hp m. responsible to the cnmpnr,^, fn. the cond.ur.t of Its business. From the. complaint in question we however, find that except a bald statement that the respondents M>ere directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in charge, of the company and also responsible to the company for the conduct of its business. " (emphasis supplied) C)L M.C. !87.3/2015 & connected Page 40 of54 c- ^1

¶48. The counsel for the petitioners have placed reliance on National Small Industries Corpn. Ltd. vs. Harmeet Singh Paintal, (2010) 3 SCC 330 and Pooja Ravinder .Devidasani vs. State of Maharashtra and Anr., (2014)16 SCC 1 both dealing with issues of vicarious liabiiity under the Negotiable Instruments Act. In National Small Industries Coipn. Ltd. (supra), it was observed thus:- provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to maP., a bald cursory statement in . a complaint that the Director (arrayed as an accusedf is in charge of nnrt I tojhe company for the. 'conduct, of the business ofthe company without anything more :as to the role of the Director. But the complaint should .snel! out as to hnw and in what^ manner Respr,r,de"t ,t ' ms responsible to the aqbusedtCompany for the conduct o) Its business. This .is in.lcohsonance with strict interpretation of pengl, stattitfyi fspeciallv. where such statutes crente vi,-nWir.ui,.pa.tyut.^:.iri:.r;'

¶14A company tikiy''lt^)dn£§)lr of Directors and to make any or all MrDiMtSS 'as accused in a complaint merely on the basis ofa statement that they are in charge of and responsible for the conduct of the business ofthe company without-anything more is not a .. sufficient or adequate fulfilment ' of the requirements under Section 141. I (emphasis supplied)

¶49In Pooja Ravinder Devidasani (supra) while observing that "a director of a company is liable to be convicted for an offence comm.itted by the company if he / she was in charge of and was responsible to the company for the conduct of its business or if it is Cil.M.C. 1873/2015 & connected proved that the offence was-committed with the consent or connivance of or was attributable to any negligence on the part of the Director concerned!''' and noting, that "w the entire complaint neither the role of the appellant in the affairs of the company was explained nor in what manner the appellant is responsible for the conduct of business of the company was prosecution against the appellant for the offence under Section 138 of the Negotiable Instruments Act was, quashed.

¶50Wliile .examining similar questions vis-a-vis Section 33 , of Insecticides Act, in judgment reported as State of NCT of Delhi vs. Rajiv-Khurana, (2010) II SCC 469, taking note of the law which has developed primarily in the context of Section 141 of Negotiable Instruments Act, it was held thus:- "77. The ratio of all these cases is that the complainants required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charse of the.business of the company. If that is the position with resard to a Director, it is needless to emphasise that in the case of non-Director officers, it is cill the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is'responsible or liable. " (emphasis supplied)

¶51Reliance has also been placed on the decision of the Supreme Court, reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, Crl. M.C. 1873/20}5 & connected

(2005) 8 see 89; Gunmala Sales vs. Am Mehta, (2015) I See 103 and Standard ehartered Bank vs. State of Maharashtra, (2016) 6 See 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 El Jaouni, 2018 SeeOnline Del 10030 this Court culled out the settled law as under:- "14. The guiding principles with reference'to Section 141 of the Negotiable Instruments Act, 1881, which a.re now well settled by judicial pronouncements, some of which have been noted above, may be summarised thus:—

(i) It is only those persons who are in charge of or responsible for the conduct of the . business of the company at the time of commission of the offence under Section 138 of the Negotiable Insti'uments Act, 1881 who can be subjected to criminal action with reference to Section 141;

(ii) If the person committing an offence under Section 138 of the Negotiable Instruments Act, 1881 is a company, the person who was sisnatoiy to the cheque which is dishonoured is clearly responsible for the incriminating act and would be liable to be proceeded against under Section 141 (2);

(Hi) By virtue of the office they hold, the persons working in the, capacity of the Manasiny Director or Joint Managing. Director are deemed to be in charse of. and responsible for the conduct of the business of, the company and, therefore, can be proceeded against in terms of Section 141; . Crl M.C. 1873/2015 & connected ^<1

(iv) Merely because a person is a director of the company is not sufficient to make him liable under Section 141, there heins. no deemins that by holding such position he is in charge of, or responsible for the conduct of the business of, the company within the meaning ofSection 141;

(y) It is necessary for 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 responsible for the conduct of the business of, the company in terms of Section 141, there heins no need for further particidars to be siyen in the complaint about his role, this bein2 subject to proof at the trial:

(yi) The person who has been summoned as an accused for offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis of averment that he was director of the company accused, he being in charge of or responsible for the conduct of its business cannot get the complaint quashed by the High Court by filing a petition under Section 482 of the Code of Criminal Procedure, 1973 merely on the ' ground that no particulars as to his role haye been set out in the complaint; and

(yii) The person 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 141 may persuade the High Court to quash the process in exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 by furnishins "some sterlins incontrovertible material or acceptable circumstances" substantiating his contention Crl. iVI.C. 1873/2015 & connected ' Page 44 of 54: that he was not in charge of nor responsible for the conduct of the business of the company "at the time the offence was committed" and thereby showing a case that making him stand I the trial would be an abuse of the process of court, but not otherwise. " (emphasis supplied)

¶52Having regard to the statutory scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from Xht prima facie conclusion that the construction contractor company is not only the principal employer of the workers. engaged in the construction project where the fatal acciderit'tdok.place'but was also responsible for arranging all the prescribed safety measured under the Rules. Section 47 read with Section 53 of the .Building and Construction Workers Act thus creates a coiporate criminaMlability against the said company and I I . by virtue of the principles of vicarious'feriminal liability, every person who, at the time when the s'M%^|tenG|>W:^%oinmitted, was in-eharge of, and was responsible t©|'; jhe;lsai^lebif:^4hy for the conduct of its business, as well as the cbmp^§?|ficel'd€emed to be liable to be proceeded against. Just as in the case of Section 141 of Negotiable Instruments Act, by yirtiie. of the::.office they hold, such persons as work in the capacity of a managing director or the joint managing director or, for that matter, persons employed as in-charge of the construction work' at site, be it in a managerial position or in any . supervisory position, are deemed to be in-charge of and responsible for the conduct of the 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 the coinpany is Crl. M.C. 1873/20!5 Aconnecled Page 45 0/54 A c 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 of its 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 of or responsible to the company for the conduct of its business "at the 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 of proof to be adduced at the trial.

¶53In the considered view of this C.oprt, 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 of commission or omissidn^constituting the offence under Section 47 of the Building nnd Constructibn'Workers Act. After all, it is the status of being "in-chafge of or being "responsible" for such business of the conipany that exposes the individual to vicarious criminal liability. If the act-of commission~of omission is attributable to the neglect of the 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) of Section 53 to kick in, there has to be a nexus between the area of responsibility of the person concerned, on one hand, and the act of commission or omission leading to the Crl. M.C. 1873/2015 & connected c contravention of the rules under Section 40, on the other,. To put it more precisely, and clearly, in the context of the offence under Section 47 of Building 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 "in-charge'' or ''responsible". There can be no thumb rule that every person "in-charge of " or "responsible to", for the conduct of the business of the company in the general sense of the term would be vicariously liable under the criminal law whether, or not .he was expected to play any , specific role or discharge responsibSity fowards a specific rule, , at the stage when its breach has led to the fataiity. or serious incident;

¶54A different approach tliajrii hie,one,?ja^ to the subject might lead to unjust results. Thts-^majl^f)^ illustrated by two simple examples. As noted earierj- 'feentip^^er {establishment) is duty bound, in terms of Section A^ll^C-g).', t^-give intimation; prior, to commencement of the building or other construction work, as to the name and designation of the person who will be "in overall charge" of the building or such construction Wbrk.'.'diaying regard to the scheme of the enactment and the rules framed thereunder, the employer {establishment) is also responsible to frame a "safetypolicy" (rule 39) and also to appoint and deploy a "safety officer" (rule 209). 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 of" the CrI. M.C. 1873/2015 & connected . Page 47 0/54 u c \ "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 in-charge 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 of the supervisory staff at the construction site (i.e. the person in-charge of the constmction work at .site, under Section 46 or those assisting him in the task) they havingmot'ensured the safety equipment to be availed of by the workers,.the forihef (those responsible for the conduct of the business at the higher levels) cannot be held accountable under the deeming, provisibm '

¶55It is 'the argument^':of connected to-the Construction contractor coniphhy " viz;, A M Naik (Crl.M.C. 2069/2015), K Venkatramanan (Crl.M.C. 2068/2015),. M V Kotwal (Crl.M.C 2070/2015), S."N. SubraMai§ahi-(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 of the person(s) in-charge' of the construction site i.e. Daljit Singh, Project Crl. M.C. 1873/2015 & connected . Page 48 of 54: V J) Director and Harish Vaid, Manager (Industrial Relations). It is further their argument that it is not correct to-accuse them, under the deeming provision of Section 53, of complicity in the offence under Section 47 in the context of the fatal accident of 17.05.2014 also for the reason that the worker in question (Anldt 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 con-esponding case for IPG offences. In this context, they crave, reference to the sub-contract in terms of which the deceased worker (Ankit Kumar) had been, deployed, at the 18^'\ floor level from where he fell to the ground to suffer mortal .mjuries.

¶56The copy of the sub-contract,jas:shpwn at the hearing cannot be treated (without proper proof) as authentic or ^Hncontrovertible materiar or as one exonerating the construction contractor company of its entire responsibility in the-inattpr^;'particularly in view of its continued responsibility of the sub-contractor as per clause 79.13 of the contracfdated'29.03.2012, referred to earlier. The argument based- .on the sub-contract, entered upon by -the construction contr^actor cdlnpahy;W'ith fhenmm 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 & connected-I . . . Page 49 of54

¶57There 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 of its such subsidiaries I has its own separate Board of Directors and supervisory personnel using the nomenclature of Chief Executive Officer (CEO), Chief Financial Officer (CFO) and Human Resources (HR) Head, The subsidiaries and the associate companies have been incorporated to operate in different schemes or spheres including building and factories, civil infrastmcture, metalurgical & material handling, power transmission and distribution, hydrocarbon engineering, valves, alloys, power development, info.tech, fma'nce, construction and mining machineiy etc.

¶58The complaint on which the summoning order was passed itself describes Mr. A.M. Naik, petiti'dner in.Cfl.M.C.2069/2015 to be the Group Executive Chairmaii'-of.^e^ [©pnis^Moh contractor company. • I ,vVV " ... .i'- Similarly, the description of Mr.'M.V. Rotwal, Mr. R. Shankar Raman and Ml-. 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 (Coi-j^orate 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 made with regard to the prescribed safety measures concernihg the constmction project in question. By virtue of the respective positions each of them held, their responsibilities had no nexus with the subject at hand.

¶59Unlike 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. SiN. Subrahmanyam (petitioner in Crl.M.C. 1873/2015) had no connection with the obligations of the establishment of the "employer'^ (constmction contractor coinpany)^ T*' - towards compliances of the Buiiding :.and'U0nstruction Workers Act or the rules framed' thereunder. These petitioners do not dispute that at the time of alleged commission of thUoffence under Section 47 of the Building and Construction Workers Act, ithey were worldng for the •constmction contractor company in the/cdpacity of CEO & Managing Director'and whole-time SO^^iExecutive Vice President (Infrastructure & Constmctfen)j|sp^iy|lp^ '

¶60The very description of the port-folios they held and the responsibilities that would entail-therefrprn/pn??^rzyhcze shows that the —^ allegations in the criminal complaint as to their deemed liability under Section 53 cannot be said to be unfounded, not the least without trial.

¶61There is merit -in the argument of the last two above-mentioned petitioners that given the positions held by them in the company, they I 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 Constmction Workers Act Crl. M.C. 1873/2015 & connected Page 5! of 54 -r, that concern, day-to-day use of safety belts, safety nets,, safety platforms, or personal fall, arrest systems. But then, it cannot be ignored that in (eighth para of) the complaint (extracted earlier), there are also allegations of breach on account of non-implementation {in letter and spirit) of health and safety policy in tenns of rule 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 Constraction Workers Act. These two specific areas cannot, by any stretch of arguments, be relegated to the domain of the managerial staff (Ml-. Daljit Singh and Mr. Harish Vaid) made in-charge of the constniction site. - I . 62: The above petitioners, however,' alsp. raise the defence based on the two safety audit reports, one dated p3:;04.2013 and the other dated 24-25.05.2014. It would be a subject matter of factual inquiiy as to whether the safety audit .reportysubrnftted' on 25.04.2014, obtained after the fatal accidents in questiun, .can be,#eated as one representing the correct position prevailing' at the time of commission of the offence.. Further, it would be the onus of the defence to show that the certification by audit report 03.04.2013 would hold good till date of, the fatal accident of 17.05,2014., There are specific allegations in the complaint that as on the said date, z.e.,' 17.05.2014, duly qualified safety officers were not in position they having not been appointed in terms of the obligation of the 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 drage 02 of 54 , ' I 13> domain of the responsibilities held by petitioners K. Venlcataramanan and S.N. Subrahmanyam,they are liable to be proceeded against under the deeming clause of Section 53. At the trial, they would have the opportunity, in terms of proviso to Section 53(1), to prove that the breaches conkituting the offences were committed without their Icnowledge or that they had exercised all due diligence to prevent commission of such breaches (or offences).

¶63On the above facts, and in the citcumstances, initiation of criminal action against petitioners - DLF Universal Ltd. (petitioner in Crl.M.C.2064/2015), Mobit Gujral tpetifioner in Crl.M.C.2067/2015), Rajeev Talwar (petitioner in GrUv[:c.20.66/2O15), Shriram Khattar (petitioner in Crl.M.C.2160/2015), Ashok:Kumar Tyagi (petitioner in Crl.M.C.2159/2015), Sudhtf SaJigal (petitioner in Crl.M.C.2158/2015), A.M. Naik (petitioner in Crl.M.C.2069/20I5); M.V. Kotwal (petitioner in.-Grl;M,G.-2eg0^^^ R. shankar Raman (petitioner in Cr).M.C. Roy (petitioner in Crl.M.C.2071/2015) being unfoundsdf^e continuation of such proceedings against them would be an abuse of the process of'law.' Therefore, their petitions'£ne;al(dwed>:and-the proceedings against them m the criminal I complaint case (CC 55F1/14) pending in the court of the Metropolitan Magistrate are hereby quashed.

¶64For the reasons set out above, however, there is no case made out for this court to exercise its inherent power and jurisdiction under Section 482 Cr.P.C. to . inhibit the criminal proceedings in the aforementioned case against S.N. Subiahmanyam (petitioner in O'l-M.C. 1873/2015 & connected Page 53 0/54 / Crl.M.C. 1873/2015) and K. Venkataramanan (petitioner in Crl.M.C.2068/2015). In the consequence, the said petitions are hereby dismissed. It must, however, be added that nothing stated above wouid be treated as final expression of opinion on merits of the case against the said petitioners.

¶65The petitions and the applications filed therewith are disposed of in above terms. NOVEMBER 19,2018 vk/nlc/yg LK.-GAtj|A> JUBGE Crl.M.C. 1873/2015 & connected Page 54 of 54.

$- IN THE HIGH COURT OF DELHI AT NEW DELHr Decided on: 19^'* November, 2018 + CRL.M.C. 2064/2015 DLF UNIVERSAL LTD. THR. ITS AUTHORIZED REPRESENTTIVE ..... Petitioner Through; Mv_. Rarjiesh Gupta,; Sr. Advocate with :t, ' Mr. Sahdedp KapuE Yivek Suri, AdVS^;^:'. versus - STATE NGT OF DELHI THR'. fACTORY INSPEGTOR f , 'f ' :..r. Respondent Through; . Mr. Tylukesh Kumar, APP. CORAM:' '■ HON'BLE MR. JUSTICE R.K.GAUBA t ^ ^