K Venkataramanan v. State

ORDER lORALV For detailed order, the decision'dated ,19^^ November, 2018 in Crl.M.C. 1873/2015 niay bejrefen:ed;|o: . j' NOVEMBER 19,2018 nk • It"- K G A 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. 1^ ;rl- "+ IN THE HIGH COURT OF DELHI AT-NEW DELHI Reserved on: 3'^'^ October, 2018 Pronounced on: 19^'' November, 2018 CRL.M.C. 1873/2015 & CRL.M.A. 6732/2015 S.N. SUBRAtMANYAM Petitioner Through: h/fr. Vikas Pahwa, Sr. Advocate with Ms. Sima Gulati, Mr. Subhash Gulati, .Mr.Shailesh Poddar, Mr. Vinit Arora , &. Mr. Sumit Saini, Advocates. I versus^ . STATE . ".Av . Respondent Through;-' • Mr. Mukesh-Kumar, APP. CRL.M.,C. 2064/2015 ' DLF UNIVERSAL LTD: THR. ITS^AUTHORIZED REPRESENTTIVE ' Petitioner Through: : Mi': RaMesh Gupta, Sr. Advocate with . . i -Mr> Mr. Vivek Suri, . I'Mv&arrSeth & Mr. Mayank Datta, •A s ^ ,';Advs. O '/'versus-. V'' ' state NCT of DELHI TI^R. FACTORY INSPECTOR ;■ Respondent Thi'qugh: .. Mr. Mukesh Kumar, APP. I '+ CRL.M.C. 2066/2015. L RAJEEVTALWAR j I Through: .....Petitioner Mr..Sidharth Luthra, Sr. Advocate with Mr. Sandeep Kapur, Mr, Vivek Suri, Mr. Kani Seth, Mr. Mayank ; Crl. M C. 1873/2015 & connected ■ l .'r '4 'i ! . ■i I ' ■■•v.; ' i' " c - Datta & Mr. Aashn^et Singh, Advocates, versus- ' - STATE NCT OF DELHI ....: Respondent Through: Mr. Mulcesh Kumar, APP. +

CRL.M.C. 2067/2015 MOHITGUJRAL Petitioner Through: Mr. Ramesh Gupta, Sr. Advocate with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Karan Seth & Mr. Mayank Datta, Advs. versus STATE NCT. OF DELHI THR. FACTORY INSPECTOR , - I . Respondent Through: ]\/h\,Mukesh Kumar, APP. - +

CRL.M.C. 2068/2015 & 7363/2015 K VENKATARAMANAM;; Petitioner Througlu, ' my'Da|{-,in^^ Sr. Advocate with . 1^. M^^iAgar^ Anirudh Bhat,. A-dvocates. . -versus' . ^ , STATE ' ' Respondent Through: .• Mr. Mukesh Kumar, APP. .+ CRL.M.C. 2069/2015 & CRL.M.A. 7366/2015'' AMNAIK Petitioner Through: Mr. . Kapil Sibbal •& Mi*. Dayanicrishnan, Sr. Advocates with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Anirudh Bhat, .Advocates. 1 1 I I j ! ' . - . ' I i i CrL M. a 1873/2015 & connected - i ; i I .i ! ; h- } ; v.i Li versus STATE & ORS. Respondei^ts Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2070/2015 & CRL.M.A. 7369/2015 M V KOTWAL Petitioner Through: Mh. Dayankrishnan, Sr. Advocate with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mi". Anirudh Bhat, Advocates. versus STATE & ORS. Respondents Through: Mr. Muliesh Kumar, APP. + CRL.M.C. 2071/2015.& CRL.M.A. 7373/2015 SHAILENDRAROY Petitioner Through:. ; Ms. Simg Oulati with Mi-. Subhash GuIaEJMh'Shailesh Poddar & Mr. .Smnit Sairii, Advocates. versus . .' STATE • I Respondent Through: Mh Mukesh Kumar, APP. + CRL.M.C. 2072/2015 7375/2015 R. SHANKAR RAMAN Petitioner Through: Ms. Sima Gulati with Mr. Subhash Gulati,,Mfe Shaiiesh Poddar & " Mr. SumifSaini, Advocates. versus Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2158/2015 & CRL.M.A. 7635/2015 I SUDHIR SAHGAL Petitioner Through: Mr. R.K. Handoo with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Mayank Crl M.C. 1873/2015 & connected ^ I. I 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 Tln-ough: Mr. Sidharth Luthra, Sr. Advocate with Mr. Sandeep Kapur, Mi". Vivek Suri, ivir. Kam Seth, Mr. Mayank Datta & Mr. Aashneet • Singh, ■Advocates. versus ' STATE NCT OF DELHI . i .....Respondent Through: Mr. ' • V-' • f .■" i.' + CRLM.C. 2l60/2015;'&.-GkL/l!4i-7637/2015 ' . SHRIRAM KHATT|R ■ ■; ' ■; ^ " Petitioner Through; Nh.r^.K.'.'H with Mr. Sandeep Datta, Mr. Karan Seth ■ Mr. Aaslmeet Singh, Advocates. ' •Versus ■ . G STATE NOT OF DELHI .....Respondent Through; Mr. Mukesh Kumar, APP. CORAM: • HON'BLE MR. JUSTICE R.K.GAUBA .1 IT B G M E N T

¶1The work of developitient of DLF Capital Green Project at a construction site described as 15, Shivaji Marg, Delhi-110 015 owned Crl. M.C. 1873/2015 & connected by DLF Universal Limited ("the land owner company") was underway in May, 2014, the contract for said construction work haying been entrusted by the said land owner company to M/s. Larsen and Toubro Limited ("the, constmction 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 18"^ floor of Tower No.l4, 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 information report

(FIR) No.429/2014 and took up the investigation into offences suspected to have been committed, they being punishable under Section 288 (negligent conduct with rkpect to pulling down or repairing building) and Section 304-A (pausing death by negligence) of Indian Penal Code, 1860^(IPG)^.^ The^estigation into the said FIR resulted in report under' 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 m the said offences under Sections 28'8/304-A-IPC for the reasons that he G 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 j ' I CrI. M.C. 1873/2015 & connected I ^ ' mater was also brought to the notice of the authorities in the office of labour commissioner, Govt. of National "Capital Territory of Delhi, particularly the Inspector of Building and Construction. The inquiries made by the said authorities culminated in a criminal complaint (CO No. 5 5F1/14) 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 Constnictioh'Wdrkers Act", for short). The Metropolitan Magistrate took .GGgnizahpe:?by order dated 10.09.2014 and issued summons on the said' cpirtpilMnt, inter alia, against the petitioners who have approaphed this court invoking inherent • • ' } "■ t jurisdiction under Section 482 Cr.Ii,.C'. Jhy the captioned petitions seeking the proceedings arising out of the. s'aid criminal complaint case to be quashed on the ground thessdine rsjihll^e nature of abuse of the process of the court. " :' " ■" - ■: L,-\

¶4It may be mentioned here that the criminal complaint in which summoning order was passed'whiPh iS7impugned here, fifteen (15) O 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 " " ' 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 rules 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 Chairmin Mdhit Gujral (petitioner in Cri:M.C.2067/2015). its Managing DiieE:#,<Rajeev Talwar (petitioner in Crl.M.C.2066/2015) and.fe.pii&h^tshriram Khattar, Ashok Kumar-Tyagi and Sudhir fers in Crl.M.a2160/2015, 2159/2015 and 2158/2015 respfctiy^iprimarily contend that the construction contract havingteejjkifrus)^ to the said other company, the work being carried oUl<und#r ffip^ejMsion and control of the latter through its sub-contractorf it '^hg no connection whatsoever with the day-to-day activity, it had no role to play or nexus with any of the acts of commission or'oifiissiofl pn'-ttib'basis of which accusatio have been leveled, no case also being made out of vicai'ious liability under the criminal law. 7, Neither the construction contractor company nor two of the other accused connected thereto - Mr-Daljit Sin^ and Mr. Harish Vaid - described as Project Director and Manager (Industrial Relations) respectively in-charge of the construction site, have come I I Crl. M.C. I873/20I5 & connected I . i d i b 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. Venkatafamanan, 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 (Infrastriicture . and Construction) (petitioner in Crl.M.C. 1873/2015); R. Shankar Raman,(-Whole-time Director & CFO (petitioner in Cii.M.C.2072/2015).; and'Shailender Rao, whole-time Director and Senior Executive Vice President (Corporate Affairs and Power) (petitioner in Crl.M.C.2071/201.5). The thmst of the arguments of this set' of petitionefs is tlidt-iwen their position in the hierarchy in the construction contractof cdmpany, having regard to the .measures that had been put in position under their directions, in strict compliance of and adherence to the law,The work in question having O been entrusted to a sub-contractor, their representative being in-charge 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. Crl. M.C. 1873/2015 & connected

¶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 m 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. ■'V; "

¶9The Building and Construction jWoflcers Act was brought on the statute book enforced w.e./ 01.03.1996 with the objective of regulating the employment and condif joris of service of building and other construction workersland'-fe^^fji^ their safety, health and welfare measures and or vj . -- - . ' incidental thereto.

¶10The expression or ^^r-^mstruction work" is defined by Section 2(l)(d) to medn, "inter alia, "the construction, alteration, repairs, maintenance or demolition, of or, in relation to, buildings... ". There is no dispute that the 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 work" within the meaning of the ; statute. The "building worker" is defined by Section 2(l)(e) to mean i ' , - \ Crl. M.C. 1873/2015 & connected i i I; i: i ■. i ! "a person who is employed to do any skilled, semiskilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment he 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 withid the meaning of the said expression.

¶11The "meaning and import of three other expressions - "contractor", "employer", and "establishment" being germane to the issues that have been raised, them dq&ifcaSi as appearing in clauses

(g), (i) and (j) of Section 2fl) 6f\t|^%mlding ,and Construction Workers Act, may be taken note of as' und'ef "(g) "contractor" means a person w/zo undertakes to produce a ?iven result -for anvikstdklishment, other than a mere supply of goo<^\prtdptucipS't^ manufacture, by the^ employment of building wbrkershdT'.who supplies building workers for any workpf ilite eslabM^ffhent! and includes a sub-contractor; .

(i) "employer", in relation to ah establishment, means the own£r thereof andmclndes,- /,y._:p;pr O

(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 specified in this behalf, or where no authority) is spec ified, 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. 1873/2015 & connected i / • : : - I r I I I ^ r . ^ t ' ' I S -. ^ . without IizitK ' contractor, the chief executive officer of tJjht■authority or estahlishrnent; ■ ' fi ■

(Hi) in f. relation if a buildin2 or other construction work carried on by or thoush a contractor^ or. : by 'tfte employment of building workers 5 supplied ■ by[ , a contractor, , the contractor; , . . "

(j) "establishhitent''ifteans any establishment belonging ■ to, or under the "conirol of Government, any body corporate or firm, an indiyidual or association or other body of individuals whicly or who. employs buildins workers in any'buildins or other construction work; and includes an establishment belonsins to a contractor, but does not include ahfhdividudl who employs such workers in any building or construction wopk in relation to his own residence the, total epsf of,fuchf,construction not being . more than rupees ten lakh; " ' . '■ ■■- (emphasis supplied)

¶12It is-clear from the above-moteiideJinitions that the "contractor" in relation to a buildifig- .(^.fp'^er^to^^-^ctten work may be a person other than' owner of the^su^|t^^^p^o^5^ly:■•^€liv'h^ instance such work is undertaken. As would be seen with reference to certain other provisions of the law, thevresponsibility for the safety measures is of .the person who falls within" the description "employer", qua the building worker. It is the "employer" who constitutes the "establishment" which is'duty bound, under the law and the rules j framed thereunder, to put iil 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 aiiH Construction "Workers Act. Besides conceiving of certain statutory, authorities including advisory or expert Crl. M.C. 1873/2015 & conmcted ■ - ■ Page Jl of 54 V ; committees (Chapter II), welfare boards (Chapter V), enforcement officers (described as Inspecting Staff) (chapter VIII), it mandates compulsory registration of establishments (Chapter III) as also building workers as beneficiaries (Chapter IV). It confers certain role upon authorities in the govemment, 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 sixth chapter ("conditions of service ofhuidding workers") deals with subjects such as-fixeilyhours, for normal working day (Section 28), wages for overtime work (Section 29), maintenance of registers and records (Sectldn ^.30), -prctoition of employment of certain persons in certain buiMinJg-or otherconstruction work (Section 31), drinlcing water (Section 3'|),, latrine's and urinals (Section 33), accommodation (Section 3%(^elaesK(i^k)n 35), First-aid (Section 36), Canteens, etc. (Sectioh^p)||^ ; ; hp- '" •!' •

¶15The seventh chapter ("safety and health measures") is what is crucial to the present c%.;. It,conferSj^y. S

¶40power on the appropriate government to m'^frUes'for 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 working place, includim the provision of suitahlp nnrl sufficient scaffolding at various stages when work cannot he safely done from the ground or from any part of a building or from a ladder or such other means ofsupport; ' Crl. M.C. 18T3/2015 & connected n , . (

(e) ,the erection, installation, use and maintenance of hoists, lifting appliances and lifting sear includins 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 keeping 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 I moving equipments and floating operational equipments;

(r) the safety policy, that is to''My, a policy relating to steps to be taken to ensure -the^pafety and health of the building workers, the adminijtrative arrangements therefor and the matters connected therewith, to be framed by the employers and contractors, for the operations to be carried on in a building or.othehcoristruction work:

(u) any other matter, cohe'ermngdhpi safety and health of workers working in opy offhfdp^dMons being carried on in a. building or other construetibh 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 rules) vested in the appropriate govermnent. Section ,41 similarly entrusts the responsibility of framing of model rules for safety measures unto the central govermnent. Cii. M.C. 1873/2015 connected

¶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:- "38. Safety Committee and safety officers.-(1) In every establishment • wherein five hundred or more building workers are ordinarily employed, the emvlover 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.

(2) In every establishment referred to in sub-section (1), the employer shall also appoint a safet\' officer who shall possess such qualifications and perform such duties as. may be prescribed. . I 44, Responsibility of einptoym^i^cMn emvlover shall be responsible for movidlrik.y dbmiant and , adequate supervision of anv buildin& ef \otherJ'construction work in his establishment as to ensure compliance with the provisions of this Act relating to safety and for takins all practical steps necessaiw to prevent accidents. " , ' (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 scheine of the statute, a "contractor" having undertaken to carry out the construction Crl. M.C. I8~3/2015 cv connected work for and on behalf of the 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 namation, it may be added that Section 39 casts a duty on "the employer" to give notice, in the manner prescribed, to the specified authority in the event of an accident occurring in its establishment, it resulting in death or bodily injury incapacitating a worker for a certain period, this for the purpose of investigation or inquiry by such authority as may be deemed necessary. In the present case, the notice of the accident was concededly given and the inquiry held.-by the concerned statutory inspectorate. -

¶20The Building and Gonstmction mrkers Act also requires a piior notice of commencement ofbuiMin'g.or construction work to be given, the mandatory information-requisite for such purposes being as indicated in the following provMOnirT v -' f '-' "46. Notice I of commencement of building or other construction work.-I . , . —employer shcill, at least thirty days before the commencement of any building or 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 . containiny-

(a) the nome and situation of the place where the building or other construction work is proposed to be carried on; CrL M.C. 1873/2015 & connected I Page 15 of54

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

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

(d) 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) the name and desimatmn of\the person who will be in 1^^ Q^^^<^ll charse of the buildihg'-'or-other construction work at the site: I .

(h) the approximate duration dffhewi'ork;

(i) such other.matters as may be {)rescribed.

(2) Where any change occursim'^any of the particulars ' furnished under suf-s;edtion .flfj-.-the employer shall _ intimate the chai^gefoi^iM^fmor within two days cf such change: ■! , ' 'ff-; ,(3) Nothing contained in sub-section (1) shall apply in case of such class of building or other construction work as the appropriate ■government may by inotification specify to be emergent worksdk ■ '' 'V;/":'-'' - ' O (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 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, in advance, commencement of the constmction work (by prescribed notice) IS not of the land owner but of the "employer", such statutory 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 confeiTedrupon the said authority in exercise of the powers conferred by^thd iuilding and Construction Workers Act, the lieutenant gqvernor pf fhe Govt. of NOT of Delhi made and notified Rules whibh ^arejfealjfed the. Delhi Building and Other Construction WoricWs-f^egul^bn of Employment and Conditions of Service) Rul4.20P2 Rules for short).

¶23The criminal complaint (from which the present proceedings arise) refers specifically .to-breach of jufes;.3 9 (Health and safety policy), rule 42 (Slipping, tripping, cutting, drowning and falling hazards), lule 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), lules 178 and 179 in sixteenth chapter (Catch Platfonn and Hoardings, Crl. M.C. 1873/2015 & connected /'oge 17 of 54 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 others, have been summoned by the Metropolitan Magistrate is defined and provided for in Section 47 of the Building and Construction Workers Act as under:- foY coYitYcivention of pYovisions YegciYdiYig safety measuYes.- (1) WhoeveY contYaveYies the pYovisioYis of any Yules made undev section 40 shall be punishable impYisonment foY^.a teYm which mayy extend to thYee months, oy with fine which may. extend to two thousand Yupees, OY with both, and inxthey case of a continuing contYavention, with an. addition'dlfifid' which may extend to one hundred rupees for- ■e^eryrddy during which such contravention continues fiftir cpiffiction for the first such contravention. _

(2) If any person who beipifi^pyilfied of any offence punishable under sm^s^fijMf^^^Mgain guilty of . an ■ offence involving a coYitYaveYition-Or failure of compliance ■ of the same. provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to six months, or- 'with'fine which shall not be less than five hundred rupees but which may extend to two thousand rupees or withboth: 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 M'hich the person is subsequently being convicted: Provided further that the authority imposing the penalty, if it is satisfied that there are exceptional circumstances CrI. M.C. 1873/2015 & connected Page IS of 54 warranting such a course may, after recording its reasons I in writing, impose a fine of less than five hundred rupees. " .

¶26It is the contravention of the 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 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 v/hich may be tried summarily.

¶27As observed above, it is the contravention of the provisions of the Rules on the subject of "safety and:health ofbidlding workers as envisaged in Section 40, which is mad|;phishable. Though the Delhi Rules have been framed and nptiiedvwilh ;r0rence to the rule making power confen-ed on the appropriate pwerriment by section 62, having regard to the subjects that are tliereb)' covered, there can be no dispute that such rules have been framed also in exercise 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:- C?-l. M.C. 1873/2015 connected o Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence vas committed, was in charore of and was responsible to. the company for the conduct nf the business of the company as well as the company, shall be deemed to he p' uily of the offence and shall be liable to P^'ocseded 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 M>as committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Nothwithstandin^ a.n;vthinff contained in subsection H) where any offence mder MfiiAetMs been committed by a. company and it is proved thatdihe offence has, been committed with the comm yMs fmrdvcmce of. or is attributable to any neMect on'ydid ■wart of any director manager, secretary or other officer of the company, such director, manager, secretary Sr. .other officer shall be deemed to be miltv ofthat offp^ni. and shall be liable to be proceeded, against anfpuniS:hed\acGprdingly. Pw^anation.-For the.pufposei^,(f .M^^

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

(b) director", in relaMPn,-\o'i^fj^§irfiSdns a. partner in the firm." .. . (emphasis supplied)

¶29As was highlighted during the course of hearing, not only by the learned counsel representing the petitioners, but also by the counsel for the State (the complainant), the afore-quoted provision of Section is almost identical with similar provisions concerning vicarious Crl. M.C. 1873/2015 & connected n ■,n /■a i^\. liability contained in other criminallaws 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 the principle of vicarious criminal liability, it must be shown that 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) pennits a person arraigned on the principle of vicarious'liability to plead and show by evidence, m defence, that he , was notrresponsible either because the acts constituting the offence were eommitte^f^lwi^ozif his knowledge" or because he had "exercised all €ue dld^ffc^^o prevent the commission of such offence". Notwiths^Sing.^ thain provision contained in Section 53(1), the prosecution niaj^ b^hiilated against "any Director, Manager, Secretary or omr>pfftddr{a0d^ if there is proof. available to show that the (%ne^jy^ais.c6^i^tt "with the consent or connivance of, or is attrihutaUf to dnf neglect on the part of" such diiector, manager, secretary or other officer.of the company. While section 53(1) .relies on ''de&mmg''-dy^wm of the person vis-a-vis the company "in-charge of" and "responsible fo", 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 aecidents having occurred previously at the project site in question on Crl. M.C. 1873/2015 & connected , d t sc., Page 21 of54 O

04.09.2011, 11.04.2012, 16.08.2012, 28.02.2013, and 16.01.2014 as well. The present complaint dated 14.08.2014 cannot be treated as a complaint with reference to such previous incidents for two prime reasons; one, there are no averments as to the breach 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 I been entrusted by,' the land owner company, through a formal contract to the'construetfpb contractor company. It is indicated in the complaint ^itself that -the construction contractor company had got itself registered with t|ie statutory authority of the appropriate government in eomplianee^,'With the requirements of Section 7. The certificate of regi^ration. describes the construction contractor company to be the "establishment" 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, I its representative Mr. Surinder Mohan being the "employer" in-charge of the construction work at site. It is I an undisputed case here that the construction contractor company had given the intimation about the. commencement of the work in compliance with section 46. It is also admitted that the intimation Cr/. M.C. 1873/2015 & connected Page 22 of 54- ■m» "1 s V" ) 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

07.05.2014, while referring to the previous such incidents, and describing the positions of the petitioners (as indeed of three others who are not before , this comt) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:-

¶3That Sh. Mohit . Gujral, Chairman, Sh. Raj'eev Talwar,-Managing Director, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, ^ Director of M/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: 'AM • 'Ndik, Group Executive Chairman, Sh. K. VenkataramdnUn, CEO & MD, Sh. M.V. Kotwal, Whole time Diveetpr <&, .President, Heavy Engg., Sh. S.N. Subrahmanyan, ^4iole t' pp§K Director & Sr. EVP (Infrastructure & cdmnt^fpn); Shankar Raman, Whole time Director & 'CPOfSlf Miailendra 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 ^ "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 Or!. M.C. 1873,^2015 conmcted I 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)/Inspectors 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, 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 Employmeht and Conditions of Service) Rules, 2002. Manasement had, not taken all appropriate measures as per Me said Act and Rules framed thereunder to prevent accidents at building site of such proportion and maghitude.

¶6That there have been.5 fataPaccidents resulting into loss of lives of 5 workerk in the rec'ent. past, at the same site. But, it is clear that they ha'd not learnt any lessons out of previous series of Jatal 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, further, repeated deaths clearly pointed to rieslect and commissions & omissions and lack of due diligence towards all aspects of human lives, safety and welfare at their site as envisaged, in the said. Act and Rules framed thereunder.

¶8That diming the course of inspection and , investigation, the followins breach of the provisions of the- "saidRules " read with the "said Act" were observed:- Crl. .M.C. 1873/2015 & conmclecl I • r That the workers working at height were not vrovided 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 guardrails and toeboards of adequate strength in contravention of the provisions of Rule 196 of the said Rides. IV. That more than .500; he. ;; 2700 workers were ordinarily employed at the consfruction site but Safety Officers as per qualification dtid condition of service , as laid down in Schedule VIII of the said Rules had not been appointed, in conti'-aventiort-of-the .provisions of Rule 209 of the said Rules read withSectim §8 of the said Act. V. That the mandgemehtsyhmednQt implemented their Health & Safety. P' O' ll& rdhffcfter and spirit, in contravention of RidfSfcfifhfsa^^

¶9That the above accused persons are thus suilty of contravening the ..provisions of Rules 39,42,178,179,196 and 209 of the said. Rules..read wlfipSeptions 38,40 and 53 I of the said Act which is'punishable under section 47 of the "Said Act" for an imprisonment for a term which may I extent to 03 months or with a fine which may extend, to Two Thousand Rupees or with both. " (emphasis supplied) 34, The reference to the prohibitory order having been issued by the statutory authority on 26.05.2014 vis-a-vis the project site, being a Crl. M.C. 1873/2015 & connected Page 25 of54 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 fomi/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 constmction contractor company, in turn, refeiTed to letters dated 20.05.2014, 03.06.2014, and

25.04.2013 and health and safety pfrlihy,, as communicated vide letter

25.04.2013. .As mentioned,earlier, pursuant to the directions issued, by order dated 24.09.2018, thb complainant has filed the / counter-reply dated 28.09.2018. In this reply, the exchange of the abovesaid correspondence, reliance-wiereupon is made by the petitioners, has been aclmowledgpd. ;. :

¶36The docuinents in is no dispute, upon perusal, show that the land owner company had entered into a.contract on 29.03.2012 with . the cpnstriiQtion 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 constrtiction including safety compliances, liability towards insurance and labour laws. The following stipulations in the contract.need to be exti acted for confirmation of the above aspect:- I "79.0 SAFETYPROCEDURE Cti. M.C. 1873/201-5 & connected d i/- re, Page 26 oj 54 I ' The contractor shall incorporate in his operations 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 aTnendments 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 demned.tO;aq^. The Safety Manual provided by the Owner is onlyifffestive and shall not cast any liability on theiOWneffTf ' The contractor moy.ide<safe means of access to . all working places. .C' l K . The contractor-: :sMl -^CsMelv responsible for proper desisn of IheKscaj^ldmgk-itemDorarv accesses, ladders and ramps. . formwhr1Npnd> h:Qistin2 arrangements. I cranes etc. to ensure'sMtv-oNMorkmen as well as: the works. All scaffolds, ladders and other safety devices shall be maintained in safe conditions. Only.tubular ficnffnldima shall be used. . ''-W i-- I f All necessary personal safety/protective eauipment first aid kit, medically trained personal, fully equipped ambulance and anv other facilities as per the statutory requirements should be always available on the site for —Th^ contractor shall take adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personnel arid ^yorkers.

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 ofIndia 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and explosive materials and goods are stored and' handled in a safe manner and in accordance with the statutory regulations.

79.8 The contr'actor shall notify the engineer immediatelv of any occurrence of mishaps or accidents that results in death or injury (including grievous injury) as defined in ihe Indian Penal Code. Such Initial notifi-cation may be verbal and confirmed in writing.'thereafter and shall be followed by a comprehensive y^iritfen -report within 24 hrs of the occurrence/incident.^ TheNcontractor shall duly complete standard foripsfis. reqUirfd by the engineer and I statutory authorities. f.f f

79.9 It is made cledf.' tBdi th$ 'ifontractor alone as the Principal Emnloveri: Is'- ans4vef^l^7'-a^ liable to all investisatins and legdhafipiihifiefMMudins Court of Law and the Owner shall not have any part or liability in this resard. The Contractor alone shall be responsible and. liable to compensate the . victims-- immediately on the ^ occurrence of the mishaps or accidents and also protect w and indemnify and hold harmless the owner, the engineer. and all persons .who may be associated with or connected with the OMmer or the engineer and to reimburse all legal and financial costs, if incurred, by the them in this regard.

79.10 All consequences, damazes or losses arisins by reason of any violation of the safety requirements residtins-in any injuiy 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 bv the contractor who Crl. M.C. 1873/2015 & connected alone will be responsible for handling and disposal of the accidental cases with Governinent/non-Government authorities. . The Conti^actor shall be hound I 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 indemnijy 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 I 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 :4d .the-[ehsineer, a detailed and comprehensive contract shall: subihit to the ensineer. a detailed and comprehensive contract specific site safety plan, based on the requirements'. .stated in clause 79.1 above. The site safety olan .shall ificlMe detailed policies, procedures and resulatiohs mhich. :when implemented will ensure safety of all the persons, including third parties on or in the vicinity of the site (inplu'ding without limitation persons to whom acceksTd tUe f ilpihas been allowed by the contractor): The cmtrddtor' time to time as necessary, produce i^i!ipple^nisktoi^.-site safety plan Such that it is at all times 'd 'detdiltd, comprehensive and contemporaneous statement by the conp-actor of his site safety and industrial health, obligations:, responsibilities, policies and procedure fLinder the,'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 safet)> 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. 1873/2015 & connected contractor shall adhere to the Site Safety Plan and shall ensure that all sub-contractors of all tiers hnvp. gopy of the Site Safety plnn m^rl comvlv with its provisinyi.'^ — shall avDoint a qualified and experip.no.P.d person as Site SqMv'Officer to act m Mgnggrer ofthp. Sgjety Plan and who m?W be resvonsihlp. for all safety mattery related to the works. The contractor shalf P-nn. jtmejp time, provide such other nersonyiel ny,r] as may be required to ensure effective operation of the Site mety^m-The said Site Safety Officer shall submit regular safety reports to the Engineer in accordance with the requirements of the Engineer and all relevant 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 Environment as given in Appendix- "M". " I (emphasis supplied)

¶37It appears that in the waice pf the fathl incident that occurred on

28.02.2013 (death of Maqbool)iat the,same very site, prohibitory order followed by revocation order, ;had beenyi'ssued on 01.03.2013 and

08.03.2013. Against the 4aid bac]c|r(i)pj|t]ieconstruction contractor company had taken steps for'|^ih^:^he (safety audit of the project done. An audit report dated 03.04.2013 was submitted to the authorities by the said company• underrthe 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 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 Crl.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 yiew of such audit report, the construction work was allowed to be resumed.

¶38As noted earlier, it is admitted case even for the complainant that in terms of the intimations that had been given, Mr. Daljeet Singh, the Project Director of the construction contractor company, was the person "incharge 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 Construction Workers Act. As also noted .earlier, both the said accused persons have not challenged the. summoning order; • . I ,1, I

¶39It was also brought orh^ tong. the-fturse of hearing that at the time of inspection(s), leadinghd inspedtioh reports dated 18.05.2014,

24.05.2014 being prepared, if ^wl^^hAiB^pet Singh, who was found as the person incharge of tl^ site§;fe^^l^;^ the complaiiiant's officers in such , inspection' at#efke;N5?^ report, prepared on inspection carried out; in the forenoon of 18.05.2014, is the most ciucial inspection report for purposes of the. case arising out of the incident that occulted in the afternoon of 17.05.2014. It concededly noted, vis-a-vis the requirements of Rules 142, 178 and 179 that Personal Fall Arrest System (PFAS) and safety, belts had been aiTanged but not provided.to the workem. 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. A^.C. 1873/2015 & connected I . 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 tenns 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 l'8>OS^201-4 and mainly noted that Ankit Kumar (the deceased wo.fkef)'was'applying paint on the face of the wall at the 18"^ floor level when he had slipped and fallen, to the ground, he not wearing the safety belt pr'BF AS at that point of time.

¶40Pursuant to the inquiries which were raised in the wake of the fatal incident of 17.05.2014, the construction contractor company had admittedly sent various letters ihcluding letters dated 20.05.2014 and

03.06.2014 followed by another dated 17.06.2014, the last referring to the previous coiTCSpondence, .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 haying been confirmed by the safety audit report of May, 2014, Crl. M.C. 1873/2015 & connecled , • . . 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 all yvorkefs ah'd/its-usage is enforced prior to construction 'site entry. ', c). The woiLerd I are .hfiifed about the hazards involved in partipyilar activity before start of the d). L&T has protected thf-floor edge with hard barricades. I : e). L&T has protected all o' penings, cut outs with reinforcement f. L&T has closed all lift shafts with gates. g). Sc^oty p0chlhpts, areyproy^ below 6 m of live working floor around p'" iriphery to prevent fall of materials and men. h). All plants and machineries are fitted with safety device and are frequently inspected and testedfor safety compliance.

i). All electrical connections are routed through RCCB, MCB and at source through ELR to avoid any electrocution and overload protection.

¶3- Medical and other facilities Crl M.C. 1873/2015 & connected I . a). Round the clock ambulance and first aid facilities provided at site. b). Well maintained canteen at site and workers habitat area^ c). Continuous water facilities for drinking and sanitation facilities. d). Mobile toijets at various places at site and permanent sanitation facilities in workers habitat area. N Apart from the above, all the-safety and welfare aspects of the workers are duly taken care of at the work site. I That L&T had got the Safety Audit conducted by National Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing eyitensivet:survey / checking at site, submitted its report. The. relevant excerpts of the reports are as under : /•' . v a). M/s. 'L&T' had pb^yMed adequate no. of Safety Officers td\ feal iM>i:th the requirements of safety mcmagerheiqfmJUfMc^ There is proper work distributipn aipQH^sfimese. Safety Officers to prevent clash injresfphsM^^ b). The owner had a'ppointed expert consultant organization M/s. Turner, who has appointed NEBSOH qualified. Safety Officers. I 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 implementation 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 d) Personal Protective Eqiiipm.ents e, The use. of safety helmet, by all the construction worker's was almost 100%. ® The use of safety belts by those who yvere 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 numerpus lifting equipments and tackles. The safe use' of one lifting equipment was checked. It was found that the operptor was duly trained and the operator and fkie signaler were understanding, the signals very well ' , • ' f

Hazards cfWorldhgat::Height L&Thad taken the fdllpwmgmbasures to prevent fall of workers from height: . V /' ® All the were found covered with bar nMUUfMdkP © All the floor edges were suitably fenced with appropriate hand rails. ® The stairs yvere cleaned for preyention 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. 1873/2015 & connected k_J. 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 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. . I I ■41. The questions. relating to Gorporate liability and vicarious criminal liability of those connected to a corporate 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, 1,881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs, and Cosmetics.-Act, 1940 (for short, • "Drugs ■ Act"); Section 17(1) of the Pfeventibh^ofeli^^ Adulteration Act, 1954 (for short, 'PFA Act"); and Section 33 of the Insecticides Act, 1968 (for short, "Insecticides Act").

¶42- On corporate criminal liability, the following observations of a constitution bench of Supreme Court in Standard Chartered Bank & Ors V5'. 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 J 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 prohihited. ae'fMhd^^ many statutes the term "person" is defhedl. person is not specifically defined, it peaessanly vheludes a corporation. It is usually construed td'tncludk-fii corporation so as to bring it within the prohibition ifptfib statute and subject it to punishment In mofififfl0iStqtft0:i-the word "person" is defined to includefi coipprdfiofift:. 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 terminology^ employed by the legislature is such as to reveal an intent'that guilt shall not be predicated upon . the automatic breach-of the statute but on the establishment of the actus reus, subject to the defence of due diligence. The law is primarily based on 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 statutory prohibition, no particular state of mind is a Crl. Ivl.C. 1873/2015 & connected Page, 37 of 54 prerequisite to guilt. Corporations and individual persons stand oh the same footing in the face of.such a statutory offence. It is a case of automatic primary responsihilit)'. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability. XXX . 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 thihg is so clearly within the mischief that it must have been intended tO' be included and would have been included if thought of: M'lpena.1 provisions like all other statutes are to be fairly construed according to the legislative intent as .expressed in the enactment. " .

¶43By virtue, inter a/za, 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 an-angement vis-a-vis the project in question.b^twden the-iand 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 outsource the work of the constructions, had passed on the responsibility for all compliances to be made by the construction contractor company in terms of the { ' . Crl. M.C. 1873/2015'& connected ' Page 38 0/54 J t, law, and the contractual arrangement, to which detailed references have been made above. It is the construction contractor company which was given the responsibility of carrying out the construction work and, for such purpose, engage the workers. Under the law, it is . the construction contractor company which, in the present case, is 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 larid pinner company nor those in-charge of or responsible to the condfet. of its business can be prosecuted for the offence mhder Section 47 of the Building and Construction Workers Act on the facts set out in the complaint from which the present petitions arise.,

¶45• The case against the constructioii c^ractor 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 scmtiny separately. I I 46. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors., (1983) 1 SCC I, while dealing with the applicability of Section 17(1) of PFA Act, the Supreme Court observed as under.- "

¶15So far as the Manageris concerned, we are satisfied that from the ver^> nature_of his duties_iLcM-J^^.^ inferred that he. would mdouhtedly_bewiariously ham fnr the offence; vicarious liability, being an incident of an I I ' Crl. M.C. 1873/2015 &'connected ,4??^ c. offence under the Art. 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 presumptipn drawn by the complainant, that there is nnv act committed:bv the Directors from which a reasnnnhl^ inference can be drawn that thev could also I 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) Following the aforesaid nllmg; in construing the effeet of Section 34 of the Drugs Act in a decisisnvrepoited as State ofHaryana vs. Brij Lai Uittal and Ors.. (1998) S SCC 343, it was held thus:- ! ' " j ...the vicarious, liability of a person for being prosecuted for an offence committed under the Act by a ' company arises if at the material tim.e he wn., ir, nhn.tr. of and was also responsible to the company for the cond.ur.t 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. Conversely, without bein^ a director a person cnr, m of and responsible to the com.pnm; fnr th. VL' y bminess,. From the complaint in question we however, find that except a bald statement that the respondents were directors of the manufacturers, there is ' no other allegation to indicate, even prima facie, that they were in charge of the com.pany and also responsible to the company for the conduct of its business. " (emphasis supplied) Crl. M.C. 187.3/2015 & connected-Page 40 of54

¶48. The counsel for the petitioners have placed reliance on National Small Industries Corpn. Ltd. vs. Hanneet Singh Paintal, (2010) 3 SCC 330 and Pooja Ravinder .Devidasani vs. State of Maharashtra and Anr., (2014)16 see 1 both dealing with issues of vicai-ious liability 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, notsufficient to m.ake>. n hnU curspiy . statement in - a complaint thm the Director (arrayed as an accused)djjncharge of and respnnNihl. tPjhe company for th^fconduct of the business of the company without anything more , as to the role of the Director. But the complamUhpuld smll out a.N tn hn..- oMjnwhgt manner Respondent D won m charge of or theuf^ed^Gompariyfor ihiT^t j IS business. This is 'in fconsonance with strict interpretation of penal., sfmth ^Jsoeciallv. whpr4> such staiutes create vicario.usdiiibili^i'^if' I

¶14A company tii^-'h4vff)d.ntit#ier of Directors and to make any or all MlvmSiSs as accused in a complaint merely on the basis ofa statement that they are m charge of and responsible for the conduct of. the business of the company without'anything more is not a sufficient or adequate fulfilment of the requirements ' under Section 141. ^3 (emphasis supplied)

¶49In Pooja Ravinder Devidasani (supra) while obser\-ing that "a director of a company is liable to be convicted for an offence committed by the company if he / she was in charge of and was re.wonsible to the company for the conduct of its business or if it is Crl. M.C. 1873/2015 ti connected • . . I , Page 41 of54 L" 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 "z« 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 explained', the prosecution against the appellant for the offence under Section 138 of the Negotiable Instruments Act was quashed.

¶50While examining similar questions vis-a-vis Section 33 of Insecticides Act, in judgment reported as State of NCT of Delhi Rajiv .Khurana, (2010) II SCC 469, talcing note of the law which-has developed primarily in the context of Section 141 of Negotiable Instruments Act, it was held thug:- "

¶17The ratio of all these fiases is that the complainant is I 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 charge 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 all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in M>hat 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. v.?. Neeta Bhalla, Crl. M.C. 1873/2015 & connected

(2005) 8 see 89; Gunmala Sales vs. Ann 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 Jaoitni, 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 are . now well settled by judicial pronouncements, some of which have been noted above, may be summarised thus:— . .

(i) It is onlv those persons who are in charse 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 Instruments 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 I person who was signatory to the cheque which is dishonoured is clearly resvonsible 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 cavacity of the Manasino: Director or Joint Manasms Director are deemed to be in charge of, and responsible for the conduct of the business of, the company and, therefore, can be proceeded againsiinterms ofSection 141; Crl. M.C. 1873/2015 & connected '

(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 holdins such position he is in ' charge of, or responsible for the conduct of the business of, the company within the meaning of Section 141;

(y) It is necessary for the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsible for the conduct of the business of, the company in terms of Section 141, there beins no need for further particulars to be 2iyen in the complaint about his role, this beins 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 ayerment 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 have been set out in the complaint; and

(vii) 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 sterling incontrovertible material or acceptable circumstances substantiating his contention CrI. M.C. 1873/2015 & connected 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 the tidal 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 the prima facie conclusion that the construction contractor company is not only the principal employer of the workers engaged in the construction project where the fatal accident'took place but was also responsible for arranging all the prescribed safety measured under the Rules. Section 47 read with Section 53 of the Building and Construction Workers Act thus creates a coiporate criminakliability against the said company and I by virtue of the principles of viearious%jffiiinal liability, every person who, at the time when the sMdipffe^^ was in-charge of, and was responsible .t4': for the conduct of its business, as well as the noihpanyt'" 3ife to be liable to be proceeded against. Just as in the case of Section 141 of Negotiable Instruments Act, by virtue, of the. office they hold, such persons as work in the capacity of a managing director or the joint managing director or, for that matter, persons employed as in-charge of the construction work at site, be it in a managerial position or in any . supervisory position, are 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 saine time, however, merely because a person is a "director" of the company is CrI. M.C. 1873/2015 & connected I u I < 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 be 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.ouif, the words "for the conduct of the business of the company" appear|hg 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 of • omission'Constituting the offence under Section 47 of the Building'and Constructijbh'Workers Act. After all, it is the status of being "in-charge of or being "responsible" for such business of the corhpany that exposes the individual I to yicarious 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. 18'73/2015 & connected .Page 46of 54 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 'Hn-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 responsibility fowards a specific rule, at the stage when its breach has led to the fatality, or serious incident. 54, A different approach tilia.Tii the,;one',;iabove to the subject ihight lead to unjust results. ' This';nnay|;5fe,4'', illustrated by two simple examples. As noted earten-feer^^ {establishment) As duty bound, in terms of Secti0n:;4|(lj§)i 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 WOrkXif-Saying regard to the scheme of the enactment and the rules framed thereunder,, the employer {establishment) is also responsible to frame a safety policy (rule 39) and also to appoint and deploy a ''safety officer" (rule 209). If the breach relates to default in fi-aming of a written statement of safety policy, or appointment of a duly qualified safety officer, by the establishment, the person appointed as "overall in charge of the Crl. M.C. ]873/2015 & connected "construction work at site'^ cannot be held accountable. After ail, framing of policy, or appointment of safety officers, as required by law, are matters of-policy and subject to decision of the persons at superior levels (unless the authority is delegated to the one who is 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 staffat the construction site (i.e. the person in-charge of the construction work at site, under Section 46 or those assisting him in the task) they having .' not insured the safety equipment to be availed of by the workers,,the fonhef (those responsible for the conduct of the business at the higher levels) cannot be held accountable under the deemingprovisiqm. r. I

¶55It is the argtmiea^/so-r^)^vi)i^^||Mers connected to the construction contractor comphhy vi^r, A M Naik (Cii.M.C. 2069/2015), K Venkatramanan (Cii.M.C. 2068/2015), M V Kotwal (Crl.M.C 2070/2015), S.N. Subrahma5am {Crl.M.C. 1873/2015), R Shankar Raman (Cii.M.C. 2072/2015) and Shailendra Roy (Crl.M.C. 2071/2015) that they had discharged their responsibility for due compliances to be made, in letter and. spirit, with the provisions of Building and Construction Workers Act and the rules framed thereunder and that the breaches, if any, occurred at the level of the person(s) in-charge of the construction site i.e. Daljit Singh, Project I . . . Crl. M. C. 1873/2015 & connected Page 48 of54 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 (Ankit Kumar) had been engaged by a sub-contractor, the representative of such sub-contractor being the person who has been found responsible in the investigation by police in the corresponding case for IPG offences. In this context, they crave reference to the sub-contract in" terms of which the deceased worker (Ankit Kumar) had been, deployed at the 18^'^ floor level jfrom where he fell to the ground to snffermdilal injuries. .

¶56The copy of the sub-GqntkGt,,:.a&;sh(3\vn at the hearing eannot be treated (without proper proof) " as .. apthentie or ''incontrovertible material" or as one exonerating the GonsfruGtion GontraGtor Gompany of its entire responsibility in the'unatter^'partiGularly in view of its continued responsibility of the sub-contractor as per clause 79.13 of the Gontract'dated'29.03.2012, referred to earlier. The argument based on the sub-eontract. entered upon by the construction contrpetor Gohipaiiy; V/'ith & 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 230]. CrLM.C. 1873/2015 & connected . {

¶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 has its own separate Board of Directors and supervisory persomiei using the nomenclature of Chief Executive Officer (CEO), Chief Financial Officer (CFO) and. Human Resources (HR) Head. The subsidiaries and the associate companies have been incorporated to operate in different schemes or spheres including building and factories, civil infrastructure, metallurgical & material handling, power transmission and distribution, hydrocarbon engineering, valves, alloys, power development, infotecli, fmaince, construction and mining machinery etc. -

¶58The complaint on which the suihmpning order was passed itself describes Mr. A.M.-Naik, petitioner in Crl.M.C.2069/2015 to be the Group Executive Chairmaft'.-o£.=^p-^ contractor company. Similarly, the description ofMr.'M.V. ICotWal, Mr. R. Shankar Raman and Mr. Shailendra Roy - petitioners in Crl.M.C. Nos. 2070/2015, 2072/2015 and 2071/2015, - even as per. the complainant has been that they were working at the relevant point of time in the capacities of whole-time Director and President (Heavy Engineering), whole-time Director and Chief Financial Officer (CFO), and whole-time Director and Senior Executive Vice President (Coiporate Affairs and Power) respectively. By no stretch of reasoning or logic, these four petitioners can be said to be responsible for the compliances to be Crl. M.C. 1873/2015 & connected , ' Page-50'of 54 made with regard to the prescribed safety; measures concerning the construction project in question. By virtue of the respective positions each of them held, their responsibilities had no nexus with the subject at hand.

¶59.Unlike the above, it cannot be said that the offices held, or the responsibilities shouldered, by Mr. K. Venkataramanan (petitioner in Crl.M.C. 2068/2015) or Mr.. S;N. Subrahmanyam (petitioner in Crl.M.C. 1873/2015) had no connection with the obligations of the establishment. of the "emp/oyer" (cohstmction contractor company) towards compliances of the Building:,and 'Construction Workers Act or u _ - • • ' the rules framed-thereunder. These petitioners do not dispute that at , the time of alleged commission of the ^offence under Section 47 of the Building and Construction Workers Act,.-they were working for the constmction contractor company; in the, c^'Jacity of CEO & Managing Director and whole-time Diiff ^61piio'r^Executive Vice President. (Inlfastructure & Construction) j^p^iy^l|^^^^ '

¶60The very description of, the port-folios they held and the responsibilities that woiild entaihtherefrpm,.^7jz7^ shows that the allegations in the criminal complaint as tb'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 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. 1873/2015 & connected that concern day-to-day use of safety belts, safety nets,- safety platforms, or personal fall aiTCst 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 terms 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 Construction Workers Act. These two specific areas cannot, by any stretch of arguments, be relegated to the domain of the managerial staff (^/h^ Daljit Singh and Mr. Harish Vaid) made in-charge of the construction site. ' . • ?/

¶62The above petitioners, however,' afsp. raise the defence based on the two safety audit reports, onf dated ,03^04.2013 and the other dated 24-25.05.2014. It would be a subjecf matter of factual inquiiy as to whether the safety audit report; submitted on 25.04.2014, obtained after the fatal accidents in question, can be.-treated 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 goqd till date of accident of 17.05.2014. There are specific allegations in the complaint that as on the said date, i.e., 17.05.2014, duly qualified safety officers were not in position they having not been appointed in terms of the obligation of the construction contractor company under rule 209 read with Section 38 of the Building and Construction Woikers Act. Since this area v/ould fall prima facie within the Cri M. C. 1873/2015 & connected 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 constituting 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 circumstances, initiation of criminal action against petitioners - &hF Universal Ltd. (petitioner in Crl.M.C.2064/2015), Mohit GujraL(petifi0ner in Crl.M.C.2067/20I5), Rajeev Taiwan (petitioner in Crl.M:C.2066/2O15), Shriram Khattar (petitioner in Crl.M.C.2160/2015). AsholC Kumar Tyagi (petitioner in Crl.M.C.2159/2015). • Sudhif Sahgal ' (petitioner in Crl.M.C.2158/2015), A.M. Nailt (petitioher in Crl.M.C.2069/2015), M.V. Kotwal (petitioner in,;&lpG.-20.?fi/2O15), R. Shankar Raman (petitioner in CrI.M.C. ^0^ (Petitioner in CrI.M.C.2071/2015) being •unToundddHhe continuation of such proceedmgs against thepi would be an abuse of the process of law. Therefore, their petitions are. alfawedt-aad. the proceedings against them m the criminal complaint case (CC 55F1/14) pending in the court of the Metropolitan Magisti'ate 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. - Subrahmanyam (petitioner in M.C. 1873/2015 & connected Rage 53 of 54 Cv Crl.M.C.1873/20I5) and K. Venkataramanan (petitioner in Crl.M.C.2068/20I5). In the consequence, the said petitions are hereby dismissed. It must, however, be added that nothing stated above would 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. . I /yi^ (R.K. GA NOVEMBER 19,2018 . I .'V-, , JUDGE vk/nlo^yg I , A) C.H..M.C. 1873/2015 & connected ' n j-cj Page 54 oj 54-

$" + IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 19^^ November, 2018 CRL.M.C. 2068/2015 i& CRL.M.A. 7363/2015 ^ K VENKATARAMANAN Petitioner Through: Mr. Dayarikrishnan, Sr. Advocate with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Ajiirudh Bhat, Advocates. versus STATE Through: Mr. Mukesh Kumar, APP: I...Respondent COjRAM: HON'BLE MR. JUSTICE R.K.GAUBA -- - . ^ 1 , V S - - f