Shailendra Roy v. State

ORDER (ORAL^ k t For detailed, order, the ,deGision^datel''19^'' November, 2018 in Crl.M.C. 1873/2015 may be referred\to.*' 1 NOVEMBER 19,2018 nk -J' ;■ K GAU 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. 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.]V1A. 6732/2015 '5 S.N. SUBRAHMANYAM n ' .....Petitioner I Through: IVIr. Vikas Pahwa, Sr. Advocate with . Ms. Sima Gulati, Mr. Subhash Gulati, .

Mr.Shailesh Poddar, Mr. Vinit Arora , ;: ■- ' & Mr. Sumit Saini, Advocates. ; j ' versu^^; ■ " . , " ' 1^' ! • ' ■ A V •' 'J STATE ■ ^ ' Respondent Through; ' 'Mn MukeshKumar, APP. It CRL.M.C. 2064/2015 a 'A ' i 1 DLF UNIVERSAL liTD. THR.. ITS^AUTHORIZED ' - (i REPRESENTTIVE . Petitioner . Through: ..Mi\ Rarhesh Gupta, Sr. Advocate with h ^ i ;'.y ■-.MrAS'^d^p'Kapur, Mr. Vivek Suri, ' ij 'k I; J/MrvKian^th&Mr. MayankDatta, ■; A'Advs. k ' ."versus, r- ' STATE NOT OF DEEHi THR. FACTORY INSPECTOR- ; ^ " Respondent Thrqugh: • Mr. Mukesh Kumar, APP. . , A+ CRL.M.C. 20^6/2015 ■ , . , : ; RAJEEV TALWAR • ' ■ Petitioner Thiuuglu , Mr..Sidharth Luthra, Sr. Advocate ^ with Mr. Sandeep Kapur, ML Vivek ■ i i . Suri,Mr. Kain Seth, Mr. Mayank ■ 1 • ^ of 54 \ -Crl. M.C. 1S73/2015 & connected - c ^ : : %o Datta & Mr. Aashneet Singh, Advocates, versus ' STATE NCT OF DELHI Respondent Through; Mr. Mukesh Kumar, APP. +

CRL.M.C. 2067/2015 MOHITQUJRAL .....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 , . n Respondent Through: Mr. Mukesh Kumar, APP. + . CRLM.C. 2068/2015 7363/2015 K VENKATARAM/#^; Petitioner Through:, Sr. Advocate with • |^.:M^|^;Agarwal, Mr. Anuj Anirudh Bh^^^ Advocates. n versus , , " O STATE n ^ Respondent Through: . Mr. Mukesh Kumar, APP. + CRL.M.C. 2069/2015 & CRL.M.A« 7366/2015 AMNAIK .....Petitioner Through: Mr. Kapil Sibbal & Mi". Dayanlcrishnan, Sr. Advocates with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Anirudh Bhat, Advocates. n Crl. M.C. 1873/2015 &conmcted : j versus STATE &ORS. .....Respondents Through: Mr. Mukesh Kumar, APT. + CRL.M.C. 2070/2015 & CRL.M.A, 7369/2015 MVKOTWAL Petitioner Through; Mr. Dayanlaishnan, Sr. Advocate with • Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Anirudh Bhat, Advocates. versus STATE & ORS. Respondents Through: Mr. Mukesh Kumar, APP. n + CRL.M.C. 2071/2015.& GRL.M.A., 7373/2015 SHAILEMIRA ROY , , Petitioner Through:. • Ms. Sima, Ou.lati with Mr. Subhash Gulafi;:;Mr. Shailesh Poddar & Mr. .Smiiit Sairii, Advocates. versus STATE ' ' Respondent Through: Mi\ Mikesh Kumar, APP. + CRL.M.C. 2072/2015 &'^fetoM:'i.'7375/2015 R. SHANKAR RAMAN _ _ Petitioner Through: Ms. Sima Gulati with Mr. Subhash Gulati,-Mfe Shailesh Poddar & n n MivSuiAihSaini, Advocates. versus Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2158/2015 & CRL.M.A. 7635/2015 _ _ SUDPRR SAPIGAL Petitioner Through: Mr. R.K. Handoo with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Mayank , Pa2e 3 of 54 CrI. M.C. 1873/2015 & connected r C Datta, Mr. Karan Seth & Mr. AashneetSingh, 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 Tiirough: Mr. Sidharth Luthra, Sr. Advocate , with Ml". Sandeep Kapur, Mr. Vivek Suri, Mr. Kam Seth, Mr. Mayank Datta & Mr. Aashneet • Sin^,,Ad;y;0cates. ' ' v. •' "versus ' STATE NCT OF DELHI . : Respondent Through: 'Mr. Miikcish Kumar, APP. .r ; + CRLM.C. 2160/2015;i&cta/l?iiv'^637/2015 SHRIRAM KHATTAR ' T , Petitioner Through: with Mi*. Sandeep flpurytf; Vivek Suri, M^^ Datta, Mr. Karan Seth & Mr. Aaslmeet Singh, Advocates. ■Versus ■ ■ STATE NOT OF DELHI Respondent Through: Mr. Mukesh Kumar, APP. ■ CORAM: . . ' HON'BLE MR. JUSTICE R.K.GAUBA JIIB-GMENT .

¶1The work of deveiopiiient of DLF Capital Green Project at a construction site described as 15, Shivaji Marg, Delhi-110 015 owned Qi. M.C. 1873/2015 & connected 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 Anlcit 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 tp 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, 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, 1860^(IPG)i:^ Thprtestigation into the said FIR resulted in'.report imdef''#etxibn'bi^3-- 'the Code of Ciiminal 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 28'8/304-A-IPG for the reasons that he was the supeiwisor 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. n .

¶3Simultaneous to the aforesaid report to the police and initiation of action by it vis-a-vis the aforementioned cognizable offences, the CrI. M.C. 1873/2015 & connected o u o 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 (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 GOgnizahpq'by order dated 10.09.2014 and issued summons on the sdid' cdittplmnf inter alia, against the petitioners who ha,ve approached this court invoking inherent { jurisdiction under Section 482 Gf.F>C'. rby the captioned petitions seeking the proceedings arising out of.the. said criminal complaint case to be quashed on the groui|d thetisame isHh': the nature of abuse of the process of the court. '''7'

¶4It may be mentioned here that the criminal complaint in which summoning order was passed^ whi'ch is7ihipugned 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. c 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 m Crl.M.C.2064/2015),/.its Chairman Mohit/Gujral (petitioner in Cri:M.C.2067/2015), its Managing DirPpm^^ ^alwar (petitioner . in CrlM.C.2066/2015) ana(its,Pip#'Shriram Khattar. Ashok Kumar Tyagi and Sudhir SaK#li|#fciners in Crl.M.C.2160/2015, 2159/2015 and 2158/2015 resppctiv^/primarily contend that the constuction contract havingbo^kw^to the said other company, the work being carried oufcun<% ffiy^fVision and control of the latter throu^ its sub-contractor, it having no connection whatsoever with the day-to-day activity, it had no role to play oi nexus with any the acts of commission or;otniSSibB pn'tle basis of which accusations . have been leveled, no case also being made out of vicarious liability under the criminal law. Neither the construction contractor company nor two of the n other accused connected thereto - Mr, Daljit Singh and Mr. Harish Vaid - described as Project Director and Manager andustrial Relations) respectively in-charge' of die construction site, have come ,, , , n I Crl.M.C. 1873/2015 & connected ' , . i !' up to this court with any plea assailing the order of the Metropolitan Magistrate taking cognizance of the afore-mentioned offence or suminoning 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 m Crl.M.C.2069/2015); K. Venlcataramanan, 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'e>n#i'Uetion) (petitioner in Crl.M.C. 1873/2015); R. Shankar Ramah,'';#hole-time Director & CFO (petitioner in 'Cii.M.C.2072/M5); and' Shailender Rao, whole-time Director and Senior Executive Vice President (Corporate Affairs and Power)- (petitioner in Crl.M.C.a0Tl/20f5). The thrust of the arguments of this set of petitioners is tHat:#ven their position in the hierarchy in the construction contractdf 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 m question having 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. n ' Crl. M.C. 1873/2015 & connected n " Ky 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. Durmg 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.. '

¶9The Building and Construction Wokcers Act was brought on the statute book enforced w.e^. 0.1.03,19^6. with the objective of regulating the employment and condftjoiis of service of building and other construction workers.ana|j;JPi^f;|OT their safety, health and welfare measures and therewith or incidental thereto..

¶10The expression "buildrng or j^^^nstruction work is defined by Section 2(l)(d) fo medn, "mier 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 ! ; 1 ' II "a person who is employed to dp any skilled, semiskilled or unskilled manual, supervisory, technical or clerical work for hire or re-ward, 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 within 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, their deiinitibhSi,^ a^ appearing in clauses

(g), (i) and Q) of Section 2^1) of^tb^imlding ,and Construction Workers Act, may be taken note of as q At> "(g) "contractor" means a person who undertakes to . nroduce a piven result fdr anv'Jestdblishment, other than a mere supply. of gooc^iomwdipiesyf^manufacture, by the, employment of buildins workers.;br\who supplies building workers for any work.of esldbkyHrhent; and includes a sub-contractor;

(i) "employer", in relation to an establishment, means the p-wner thereof, and'ineludes.,- .

(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 . n c without \any .contixt.ctor, the chief executive officer a}'Mot Authority or establishment;

(Hi) jnl I Kttladon 'idi a buildintt ' or other construction work carried on bv or thoush a contractor^ or. by the, employment of building workers''^ supplied -by a contractor, the contractor:

(j) ''establishMknt''mans any establishment belonging to, or under Me 'control df. Government, any body corporate or firm, an individual or association or othei body of individuals which, or who employs—building workers in anv'building or other construction work: and includes an establishment belonsins to a contractor, but does not include an-ihdj.vidudl: who employs such workers in any building or construction work in relation to his own residence the total cpkt ofjuchdconstruction not being more than rupees tenlakh:'!'. ^ n \ p . f ' ; / n (emphasis supplied)

¶12It is clear from the contractor in relation to a building oh;^fiepic(^rhl^^ work may be. a person other than owner of the-sul|fe?cJ:®K^|E^ instance such work is undertaken. As would be' seen with reference to certain other provisions of the law, thel'responsibility for the safety measures is of the person who falls witfliii-the descri)3tibn "employer", qua the building worker. It is the "employer" who constitutes the "establishment" which is' dut|^' 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 anil Construction Workers Act. Besides conceiving of certain statutory authorities including advisory or expert Crl. M.C. 1873/2015 & comected n , Page h oj54 committees (Chapter II), welfare boards (Chapter V), enforcement officers (described as Inspecting Staff) (chapter VIII), it mandates compulsory registration of establishments (Chapter • JII) 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 sixth chapter ( conditions of service of building workers"^ deals with subjects such as. fixed.yhoum for normal working day (Section 28), wages for overtiiije work (Section 29), maintenance of registers and records (Section ,30), prohibition of employment of certain persons in certain buiMihg;or othef-construction work (Section 31), drinlcing water (Section 3'S),, latrine's and urinals (Section 33), accommodation (Section 3%c|b]ys^S|®ion 35), First-aid (Section - 36), Canteens, etc. (Sectioh|0i)||, VVy^'ij|?/^

¶15The seventh chapter {"safety and health measures") is what is crucial to the present .•-It #©nfers^_ Sebtion 40, power on the ^ appropriate government to make^hles "for the safety and health of building woikers, the rules envisaged whereby do also cover, per sub-Section (2) the following;- "(a) the safe means of access to, and the safety of. any . ^orkins place, includins the provision of suitahle and sufficient scaffolding at various stages when work cannot be safely done from the ground or from any part of a building or from a ladder or such other means ofsupport; I . Crl. M.C. 1873/2015 & connected

(e) the erection, installation, use and maintenance of hoists, lifting amliahces and liftins sear includins periodical testing and examination and heat treatment where necessary, precautions to he taken while raising or lowering loads, restrictions on carriage 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-moving equipments and floating operational equipments;

(r) the safety policy, that is to a policy relating to. steps to be taken to er^SMre fffyfbffty cmd health of the building workers, the admnfstrative arrangements therefor and the matters Gohnec.ted therewith, to be framed bv the employers and contractors., kbr the operations to be n carried on in a building or. dthefeort^truction work:

(u) any other matter-coheermngM^^ safety and health of workers worldng in (fff,g0fff^0raipns being carried on in a building or other construettSh work. " (emphasis supplied)

¶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 government. Crl. 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 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.

(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. ---

¶44Responsibility of employers employer shall be responsible for proviiifik dbmlcmt and adequate supervision of any huilding. or ■otkefyconstruction work in his establishment as to ensure compliance with the , provisions of this Act relating to safety and for takins all practical steps necessaiy 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 scheme of the statute, a "contractor" having undertaken to carry out the construction Qi.M.C. 1873/2015 & 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.

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

¶20The Building and Construction:' Workers Act also requires a prior notice of commencement of'buiMing. pr construction work to be given, the mandatory information requisite for such purposes being as indicated in the following provisiOmr.f::.,:; f' v "46. Notice of commencement of building or other construction worltr

(1) An employer shall, at least thirty days before the commencement of any buildins or other construction work, send or cause to be sent to the Inspector having jurisdiction in the area where the proposed building or n other construction work is to be executed, a written notice containing-

(a) the name and situation of the place where the building or other construction work is proposed to be carried, on;. Crl. M.C. 1873/2015 & connected

(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 building 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;

(g) the name and designation ofthe person who will be in overall charge of the buMdihg-ior^other construction work at the site; \

(h) the approximate duration qffhevkork;

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

(2) Where any change occurs; in 'any of the particulars' furnished -under sub-section -'(If,:.-the employer shall intimate the change Jo, the\Mspf0^ two days of such change. .. C v

(3) Nothing contained in sub-sectibn (1) shall apply in case of such class of building or other construction work as the appropriate [Government may_ by'jotification specify to be emergent works-." . - (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 . ^0^ employ building workers being the "employer". The person deputed as "one in overall charge" is the representative of "the employer", the employer being answerable and accountable for all acts 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 construction 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 power's confeiidd ^upon the said authority in exercise of the powers conlfefi^ byj^fh|?;Building and Construction Workers Act, the lieutenant "gqvemdi:' p^ihe Govt. of NOT of Delhi made and notified Rules whidlf areiiCalJfed the Delhi Building and Other Construction Workers ■'^(ReghfeMG of Employment and Conditions of Service) Rul'e:s-20.^2 Rules for short).

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

¶24■ Rules 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 . ' • L 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 "47. Penalty for contravention of provisions regarding safety measures.- (1).Whoever contravenes the provisions of any rules made under section 40 shall be punishable with imprisonment for a term which may extend to three, months, or with fine wMiph may extend to two thousand rupees, or with both, and irtX'tlhdu base of a continidng contravention, with 'which may extend to one hundred rupees for: evety'rday during which such contravention continues after conyfction for the first such contravention. , , d. ^ •

(2) If any person who kdtk beehvibpnyicted of any offence ,' punishable under again guilty of an offence involving a contiaventioh-'dr failure of com.pliahce n of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to six manths. 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 circumstances Cri. M.C. IS73/20I5 & conmcted 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 rules relating to health or safety measures which constitutes the offence provided by Section 47 quoted above, and for Hiis^mens rea i.e. the intention to commit the breach of the rules or abetment thereof on the part 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 observed above, it is the contravention of the provisions of the Rules on the subject of "safety andUefalth of building workers", as envisaged in Section 40, which is madb,-pqhishable. Though the.Delhi Rules have been framed and ndtified%itil rdferen to the rule making power conferred on the appropBate gb¥er]bment by section 62, having regard to the subjects that are thereby covered, there can be no dispute that such rules have been framed also in exeFcise of the power under section 40.

¶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 crucial. It reads thus:- Cri M.C. 1873/2015 & connected - .

¶53Offences by companies.- (1) Where an offence under' • this Act has been committed by a company, every person who, at the time the offence was committed, was in charde of and was responsible to, the company for the conduct of the business of the comvany. as well as the company, shall be deemed to be suiltv of the offence and shall be liable to n be proceeded against and punished accordingly: Proyided that nothing contained in this sub-section shall render any such person' liable to any punishment, if he proyes that .the offence was committed without his knowledge or that he Had exercised all due dilisence to. preyent the commission ofsuch offence.

(2) Nothwithstanding anythinQ.contained in sub-section (1) where any offence under this .■ Actfhaf been committed by a company and it is proved ■tMf'fhe offence has been committed with the cpnsent, loWo'e.onnivance of, or is attributable to any neglect onfthe: part of any director. manager, secretary or other officer, of the company, such director, manager, secretary Sr. other officer shall be deemed to be suilty of that.offence and shall be liable to be proceeded against and-prim^kedfcgordingly. Explanation. -For thepmpgs'e^rSfihis-Section, -

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

(b) "director", in reljdlpp.tp pi^^ 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 53 is almost identical with similar provisions concerning vicarious Cri M.C. 1873/2015 & connected 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 the principle of vicarious criminal liability, it must be shown tliat 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 vicarious'liability to plead and show by evidence, defence, that he was not,; responsible either because the acts constituting the offence were .committed:' his knowledge" or because he had "exercised alMke dit^s^bdo prevent the commission oj such offence . Notwithstanding -fh^ ipain provision contained in Section 53(1), the prosecutiori mpb|im|ated against "any Director, n Secretary or Oth^''o^^ri6ffj§^<dbmpany " if there is proof available to show that the "with the consent or connivance of or is attributable to any neglect on the part of" such director, manager, secretaiy or other officer,of the company. While section 53(1) relies on "&dm%''' dU6S^the position of the person vis-a-vis the company "in-charge of" and "responsible to", section 53(2) necessarily requires positive evidence to show active 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 . , - w

04.09.2011, 11.04.2012,, 16.08.2012, 28.02.2013, and 16.01.2014 as, well. The present complaint dated 14.08.2014 camiot be treated as a complaint with reference to such previous incidents for two prime reasons; one, there are no averments as to the breach 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'pn contractor company. It is indicated in the complaint dtself that -the construction contractor company had got itself, registered with tbe statutory authority of the appropriate government in compliance': with the requirements of Section 7. The certificate, of-registfation.•describes the construction contractor company to be thC "es'idbiishment" for purposes of construction of "DLF Capital Greens Project" by it, it being a project of "residential building", the work ', to be carried out. during

02.01.2012 to 17.11.2014, its representative Mr. Surinder Mohan being the "employer" in-charge 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 r Cri M.C. ]873/2015 & connected. , U( 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 court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:- "3. That Sh. Mohit . Gujral, Chairman, Sh. Rajeev Talwar,-Managing Director, Sh. Sriram Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, , Director of M/s. DLF, Universal Ltd., Shopping Mall, 3'"'' Floor, Arjun Marg, DLF Cityl Block E, DLF Phase 1, Sector 2 6A, Gurgaon, n Haryana 122002 are the "Directors" and Sh. A.M. Naik, Group Executive Chairman, Sh. K. Venkatammdn.an, CEO & MD, Sh. M. V. Kotwal,.^Whole time Direetpr/dk-.^fesident, Heavy Engg., Sh. S.N. Subrahmanyan, hffiole 'titfl.e, Director & Sr. EVP (Infrastructure '& cdmtf%lipn); pfp-R. Shankar Raman, Whole time Director &. QPOFShy Shailendra Roy, Whole time Director & Sr. EVP (Corporate ajfairs & power) and Sh. Daljit Singh — Project Director, (In-charge of the construction site) of M/s. Larsen <& Toubro Ltd. are the "Directors " 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. 1873,0015 & connected 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, prima facie, it appeared on inspections that the manasement failed to ensure adequate site management as envisaged in the provisions of the Building and other . Construction Workers (Regulation of Employment and Conditions of Service) ^ Act, 1996 and the Delhi Building, and other Consti-uctidn Workers (Regulation of Employment and Conditions of Service) Rules, 2002: Management had, not taken all appropriate measures as per • fie, said Act and Rules framed thereunder to prevent accidents at building site of such proportion and magriitude. / ,

¶6That there have beenj fatal.accidents residting into loss of lives of 5 workers in the rec'ent past, at the same site. But, it is clear that they had not learnt any lessons out of previous series of fatal accidents. Apart from notices, a prohibitoty order, was also issued to. them to stop . the construction work of entire site till complete/full compliances of all the safet\! provisions as mentioned in - the said Act and Rules frames thereunder as applicable on the construction site of this magnitude were made.

¶7That further, repeated deaths clearly pointed to neslect and commissions. & omissions and lack of due diligence towards all aspects of-human lives, safety and welfare at their site as envisaged in the said Act and Rules . framed thereunder. n 8. That dimng the course of inspection and investigation, the followins breach of the provisions of the "said Rides" read with the "said Act" were observed:- Crl. M.C. 1873/2015 & connected • H3 I. That the workers working at height -were n^ . provided with safet\' belts and Personal Fall Arrest Systems (PFAS). 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 conti-avention of the provisions of Rule 196 of the said Rides. . IV. That more than .500'; I.e. 2700 workers were ordinarily employed at the construction site but Safety Officers as per qualificaUon dpd condition of service as laid down in Schedule VIII of the 'said Rules had not-been appointed, in conti^avektioh-of the provisions of Rule 209 of the said Rules read withSectipm 8.8 of the said Act. V. That the mandgemehtsMmeiMot implemented their Health & Safety.'l:/P'oUey \ dhffetter and spirit, in contravention of

¶9That the above accused persons are thus euilty of contravenins the.. provisions of Rules .39.42.178.179.196 and 209 of the said] Rules .read wMhtSeptions 38,40 and 53 of the said Act which is 'punishable under section 47 of the n "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 26.05.20,14 vis-a-vis the project site, being a Crl. 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 formfreports dated 18.05.2014 and

24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, leply dated 18.06.2014 of the land owner company and replies dated

04.06.2014, 17.06.2014 and 04.08.20 i4 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 p.oliby,'as communicated vide letter dated 25.04.2013. As mentioned.earlier, pursuant to the directions issued, by order dated 24.09.2018, the, complainant has filed the counter-reply dated 28.09.2018. In this reply, the exchange of the abovesaid correspondence, reliance.^whereupon is made by the petitioners, has been aclmowledgted.' '. v-

¶36The documents in whidh'&gai]^flhere is no dispute, upon perusal, show that the land owner company had entered into a contract on 29.03.2012 with ; the construQtion 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 extracted for confinnation of the above aspect:- "79.0 SAFETY PROCEDURE Crl. M.C. 1873/201-5 & connected Page 26 of54'

79.1 The contractor. shall incorporate in his operations the requirements, of all the 'Safety Code.<;' 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 regidations 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-morp .stringent of these, regulations shall be-deedted.ioidpp)y:.. The Safety Manual provided by the Ownen is bn^0^estive and shall not cast any liability on tfe^OVmeftf T-I'

79.2 The contractor shall movideisafe means of access to all workinsplaces.

79.3 The contractor'. O vrover desim oftke ' SciMUdmsp. d-emvorarv accesses. ladders and ramvs, :formwhrkfand>-hoisting' a.rra.n.p-p.mpmt.v cranes etc. to ensure safety'df mbrkmen as well as the be maintained in safe conditions. Only-tubular scaffolding .shall be used. ^ -

79.4 All necessary personal safetv/protective equipment. first aid kit, medically trained versonal, fully equipped ambulance and any other facilities as per the statutoiw requirements should be always available on the site for The contractor shall take adequate steps to ensure proper maintenance and use of equioment by his employees/staff/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.

19.1 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.

19.8 The contractor shall notify the ensineer immediatelv of any occurrence of mishaps or accidents that results in O , death or injury (including grievous injury) as defined in the Indian Penal Code. Such dnUial notifi:cation may be verbal and confirmed in writing thereafter and shall be followed by a comprehensive vyrittpn report within 24 hrs of the occurrence/incifdent..^ The ^Contractor shall duly complete standard fdrrus' as.. reqUirfd by the engineer and n statutory authorities. ' , 'f.f

19.9 It is made cledk'tlidt: d^ilbntractor alone as the ' ^ Principal n Ernvloverk Js fiansdvefctlilel^^ liable to all investisatin^ and le^lmMorikes'fiicludins Court of Law and the Owner shalTnot have any part or liability in. this resard. The Contractor alone shall be responsible and liable to compensate, the victims-..- mmediately on n the r; occurrence of the mishaps or accidents and also protect and indemnify and hold harmless the owner, the engineer and all persons who may be associated with or connected with the owner or the engineer and to reimburse all legal . andfinancial costs, if incurred, by the them in this regard.

19.10 All consequences, damases or losses arisins by reason, of any violation of the .mfetv 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 . , alone will be responsible for handlins and disposal o f the accidental cases with Govermnent/non-Government authorities. n The Contractor shall be hound 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 -to the ensineer, a detailed and comprehensive contract' shall: submit to the engineer, a detailed and comprehensive contract specific site safety plan, based on the requirements \ .stated in clause 79.1 above. The site safety plan shall if elude detailed policies, procedures and re2idatioris {which, iwhen implemented will ensure safety of all the persons, including third parties on, or in the vicinity of the site (including without limitation, persons to whom access ed the f ilpyhds been allowed by the contractor). The cordr'actorlshMffmm time to time as necessary, produce sllpp)lp^eni&d070ik^site safety 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, obligations:, responsibilities, policies and procedure. (iirMer 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 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. CH. M,C. 1873/2015 & connected Page 29 of54

79.13 The conti^actor shall adhere to the Site Safety Plan ■and shall ensure that all sub-contractors of all tiers hove copy of the Site Safety plan and comply with its provisions. The contactor shall appoint a Qualified and experienced person as Site Safety^ Offiter to act as Manager of the Site Safety Plan and who will be re.sponsible for all 7^^, matters related to the works. The contractor shadl, from time to time, provide such other personnel and resources as may he required to ensure effective operation of the Site Safety Plan. The said Site Safety Officer shall submit 1 egular 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. Th.e contractor shall submit on a monthly « Certificate of Compliance for Health, Safety and . Environment as given wAppendix,^ ''M". " . ; ' (emphasis supplied)

¶37It appears that in the v,^afee pf the fathl incident that occurred on

28.02.2013 (death of Maqbooljiat the:sam'e very site, prohibitory order followed by revocation order, ;had,beep^ on 01.03.2013 and ,

08.03.2013. Against the ,|^id"bacl^r(bp||tl^ construction contractor company had taken steps fbh^gStih^:® .safety audit of the project done. An audit report dated 03.04.2013 was submitted to the authorities by the said cbinpahy -underrthe; cover of its letter dated

25.04.2013. Reference to the said audit report and the coiTespondence exchanged in such regard was made by the constiiiction contractor company in its letter dated 17.06.2014, which is part of the. material that was submitted with the criminal complaint leading to the impugned order 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 satisfactoiy Crl. M.C. ]873/2015 & connected i6poit 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 in terms of th e intimations that had been given, Mr. Daljeet Singh, the Pioject Director of the construction contractor company, was the person "incharge of the constmction site" and Mr. Harish Vaid, Manager (Inteinal 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,- bpth the said accused persons have not challenged the, summoning order;.

¶39It was also brought outi.durihg'the^^'^ of hearing that at the time of inspection(s), leadingto inspbcrt^ dated 18.05.2014,

24.05.2014 being .prepared, # Singh, who was found as the person incharge oft^e S'itfjiSeli^i^g^^sisted the complainant's officeis in such•.inspection'. atl^fe/Mtel-. f a.-'Phe report, prepared on inspection carried out in the forenoon of 18.05.2014, is the most ciucial inspection report, .for purposes o.f ,.the,, case arising out of the incident that occuiTed in the afternoon of 17.05.2014. It concededly noted, vis-a-vis the requirements of Rules 142, 178 and 179 that Personal Fall Arrest System (PFAS) and safety belts had been arranged but not provided to the workers; It also noted that common safety system had not been provided "at various places", though not specifying the locations where there was such deficiency in due compliance. It confirmed that health and safety policy, as required by Crl. M.C. 1873/2015 & connected ^<9 o r. Rule 39 had been formulated^, the breach of the statutory rules was noted for the reason such policy had not been submitted for approval. The report, 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 l-8v05'.2014 and mainly noted that Ankit Kumar (the deceased'worker) was-applying paint on the face of the wall at the 18^'' floor level when he had slipped and fallen, to the ground, he not wearing the safety belt -or'l^FAS 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 including letters dated 20.05.2014 and

03.06.2014 followed by another dated 17.06.2014, the last referring to the previous correspondence, .which concededly includes submission by the constmction contractor company and yet another safety audit report obtained from National Safety Council, Delhi Chapter, such audit having been undertaken on 24"^ and 25"^ May, 2014. it was submitted by the construction contractor company that it was in full compliance with the statutorily prescribed health and safety measures, this having been confirmed by the safety audit report of May, 2014, Crl. M.C. 1873/2015 & connected ( ) 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 : N ' a). L&T has deployed (3) Safety Managers, (5) Safety Engineers (12) Safety Supervisors and (30) Safety Stewards at site to control and monitor the safety measures. b). L&T has provided personal protective Equipment to all workerts. and-its' usage is enforced prior to constructdpn '-siie entry. , c). The workers.: ate .Uri^d about the hazards involved in particular acfimty-before start of the d). L&T has protected the'floor edge with hard barricades. e). L&T has protected diB Opknings, cut outs with reinforcement mat. ' '■ f. L&T has closed all lift shafts with gates. g). Safety patehdhetplare^^^ below 6 m of-live working floor dfbund 'periphery to prevent fall . of materials and men. I 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.

¶3Medical and other facilities : ■ Crl. M.C. 1873/2015 & connected - ■ 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 toilets dt 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 'Safety Council, Delhi Chapter in the year 2013.: The Audit Team after doing exten'siyW-survey / checking at site, submitted its report. The. relevgnt excerpts of the reports are as under ; ' ■ a). M/s. D&T''had pifiyfied adequate no. of Safety Officers td deal fmth the requirements of safety managernmtifn tUffi^ht. There ■ is proper. work distribution qmdhgsififie:se Safety Officers to prevent clash mresfiphSifiidifii.T' b): The owner had appointed expert consultant organization M/s. Turner, who has appointed NEBSOH qualified Safety Officers. c) work at Height permit: In Indian Construction majority of fatalities occurs due to fall, of workers from hdght. Due to this high probability, it had become necessary to ensure implementation of Height Work Permit. Under 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. I8'73/20I5. connected d) Personal Protective Equipments e The use of safety helmet by all the construction workers Vt^as almost 100%. ® The use of safety belts by those who were worldng on external side and have potential hazard of fall, was more than 98%, as one worker was found worldng 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 lifting equipment was checked. It was found that the operator was duly trained and the operator and the signalefwere understanding, the signals very well. I f

Hazards of Worlditg qtiHeight L&T had taken the folldwifgmbpsures to prevent fall of workers from height: •" v.. . n 'ypp-- ® All the oper00 'd^hi^§f:^l^ptions were found covered with Bdrfietk 1 * All the floor edges were suitably fenced with appropriate hand rails. n ® The stairs were cleaned for prevention of slipping ^9 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 Cri M.C. 1873/2015 & connected Page3o of 54 safety norms, which have been subject matter of surprise checks and the sam.e 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.

¶41The questions relating to eorporate liability and vicarious criminal liability of those connected to a cor]:)orate body have, come up in the past before the courts in the -context of similar provisions contained in various statutes including., Section 14Lof the Negotiable Instruments Act, 1881 (for short, ''Negotiable Instruments Act"); Section 34 of Drugs and. Cosmetics. Act, 1940 (for short, n "Drugs n ^ Act"); Section 17(1) of the,'Pre-y.enti,otl',ohTo:od Adulteration Act, 1954 (for short, .'PFA Act"); and Section 33 of the Insecticides Act, 1968 (for short, "Insecticides Act")..

¶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 n CkI 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 statuses defining crimes, Jhe prohibition is frequently n directed'^against any "person" who commits the 'prohibit^. many statutes the term "person" is dlefiltedl^p^Iff' the person is not specifically defined, it pecessanly ipeludes a corporation. It is usually constriied tdoinclud!ejqj>corporation so as to bring it within the prohibifgn Sfjt^bptatute and subject it to punishment In mo^offlt&.s-tqfjit^fidhe word "person" is defined to include a-corpprdjiofffy ; XXX ' ; I 'b.' Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily-depends :upon the terminology O employed in the statute. In the case of strict liability, the terminolog}) employed by the legislature is such as . to reveal an intent that guilt shall not be predicated upon tlie automatic breach-of the statute but on the establishment-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. M.C. 1873/2015 (Reconnected • , Page27of:}4 1^: w 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 m-ust not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to^be included and would have been included if thought: ofyAd^^pmcil provisions like all other statutes are to be fairly ' construed according to the legislative intent asi.expressed in fhe enactment. "

¶43By virtue, inter alia, of the registration, dated 22.02.2012 granted to the constructions contractor "aompany by the respondent under Section 7 of the Building and Constmction Workers Act, the complainant was privy to the above-said contractual an-angement vis-a-vis the project in question between fne'iknd 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 Cii. M.C. 1873/2015 & connected ' • Page 38,of 54 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 ''the employed - 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 py/ner company nor those in-charge of or responsible to the conduct-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 from which the present petitions arise.

¶45The case against the constructioh 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 scrutiny separately. ' 46. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors., (1983) 1 see I, while dealing with -'the applicability of Section 17(1) of PFA Act, the Supreme Court observed as under:- "15. So far as the Manager is concerned, we are satisfied that from the very nature of his duiies_ii_can_be_.jafely inferred that he would undoubtedly he vicariously liable for the offence; vicarious liability being an incident of an . n Crl. M.C. 1873/2015 & connected o£ence under the Act, So far as the Directors are concerned, there is not even a whisper nor a shred of evidence ^ nor anything to show, apart from, the presumption drawn by the complainant, that there is a.nv act committed, by the Directors from which a reasonable inference can be drawn that they could ahn hp vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (Accused 4 to 7) has been made out ex facie on the, allegations made in the complaint and the proceedings against them were rightly quashed.. (emphasis supplied) following the aforesaid-ruling-, in construing the effect of Section 34 of the Drugs Act in a decisionVreported as State ofHaryana vs. Brij Lai Mittal and Ors., (im) 5 SCC m, 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 was in charge of and was also responsible to 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. n Conversely, without bein^ a director a person can hp. iy, of and responsible to the comnanv for the cond.ur.t ~ o/" its business. From the complaint in question we, however, find that except a bald statement that the respondents M>ere directors 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) Crl. M.C. 1873/2015 & connected o to .r-j rage 40 of 34 1#^

¶48The counsel for the petitioners have placed reliance on National-Small Industries Corpn. Ltd. vs. Harmeet Singh Palntal, (2010) 3 SCC 330 and Pooj'a Ravinder .Devidasani vs. State of Maharashtra and Am., (2014)16 SCC 1 both dealing with issues of vicarious liability under the Negotiable Instalments Act. In National Small Industries Coipn. Ltd. (supra), it was observed thus:- ^41 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint thm thr, Dirrc'rr (arrayed as an accused)'is in charge of and respon^ihlp tojhe company for the. conduct of the business of the. company without anything more .■as to the role of the Director. But the complaint .ihmJJd spell nut as to how and in what manner Respondent d'Was in charge of or msr^mrn^ the ackasedACompany for the conduct 0] its business. This, is ' in .ycohsonance with strict interpretation erf pencf.stmtisfiekieciallv. wharp .^urh statutes create vicariotisd^Ui^irfrf' ■

¶14A company of Directors and to make any or all. tMe 'Vimciorh as accused in a complaint merely on the. basis of a statement that they are in charge of and responsible for the conduct of the business of the company without-anything more is not a sufficient or adequate fulfilment of the requirements under Section 141. (emphasis supplied)

¶49In Pooja Ravinder Devidasani (supra) while observing that "a director of a company is liable to be convicted for an offence committed by the company if he / she M>as in charge of and was responsible to the company for the conduct of its business or if it is CrI.M.C. IS73/20}5&comected - ' Page 41 of54 (9 i. • 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 '^in 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.

¶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) 11 SCC 469,, taldrig note of the law which has developed primarily in the context of'.Section 141 of Negotiable Instruments Act, it was held thus:- "17. The ratio of all these cases is that the complainant ii 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. Even' 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 all 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, Cii. M.C. 1873/2015 & connected c (lOOSy 8 see 89; Gunmala Sales vs. Am Mehta, (2015) 1 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 m 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 are now well settled by judicial pronouncements, some of which have been noted above, may be summarised thus:— • . n ,

(i) It is only those persons who are in charge 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 Instimments Act, 1881 who can be subjected to criminal action with, reference to Section 141;

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

(Hi) Fv virtue of the office thev hold, the persons working: in the capacity—of— Managin2 Director or Joint Manasins Director are deemed to be in charge of and rp.^pnnsihle for the conduct of the business of the company and, therefore, can be proceeded n against in terms of Section 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 beins. 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 ^ bein2 no need for further particulars 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 n

(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-Mi 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 furnishing "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 trial would he an abuse of the process of court, but not otherwise. " (emphasis supplied)

¶52Having regard to the statutoiy scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from prima facie conclusion that the construction contractor company is not only the principal employer of the workers engaged in the construction n project 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 aph Construction Workers Act thus creates a coiporate crimmahliability against the said company and by virtue of the principles of vioarioi|S'"'cri'ininal liability, every person who, at the time when the sM^:pfenG|y^'momm^ was in-charge of, and was responsible tOo) for-the conduct of its business, as well as the cdiiif :;.:d:Semed to be liable to be proceeded against. Just as in the case of Section 141 of Negotiable Instruments Act, by virtue, of the .office they -hold,, such persons as work in the capacity of a managing director or the joint managing director or, for that matter, persons employed as in-charge of the construction work at site, be it in a managerial position or in any . supervisory position, are deemod to be in-charge of and responsible for the conduct of the business, to the company. They can, therefore, ; be proceeded against in tenns of Section 53. At the same time, however, merely because a person is a "director" of the company is CrL M.C. 1873/20!5 & connected 0^ not sufficient to attract Section 53, there being no deeming that by holding such position he is rendered to be one who is 'Hn-charge of or '^responsible to the company" for the conduct 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" appearmg in Section 53 are most crucial, pregnant with meankig and provide the key to determine, whether a person connected to fhe compdny may be held accountable for the acts of commission or omissidn^'Gohstituting the offence-under Section 47 of the Building^andlSonstructibn'Workers Act. After all, it is the status of being "in-chafge of or being "responsible" for such business of the coihpany that exposes the individual to vicarious criminal liability. If the act-of eom'missioh 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 r-contraventioii 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 respbnsibil'ity fowards a specific rule, at the stage when its breach has led to the fataiity or serious incident.

¶54A different approach ^a^ ihe|0)|e|^ove to the sutyect might lead to unjust results. ma;^" illustrated by two simple examples. As noted earferj---^!§r^i^^er {establishment) is duty bound, in terms of Section intimation, prior to commencement of the building or othef:c"onstruction work, as' to the name and designation of,the person who will be "in overall charge of the building or such constiudtion Wbrkfr7Having regard to the scheme of the enactment and the rules framed thereunder, the employei {establishment) is also responsible to frame a "safety policy (rule 39) and also to appoint and deploy a "safety officer" {m\o 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 Crl. M.C. 1873/2015 & connected "construction work at site'" cannot be. held accountable. After all, framing of policy, or appointment of safety officers, as required by law, are matters of policy and subject to decision of the persons at superior levels (unless the authority is delegated to the one who is 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 construction work at site, under Section 46 or those assisting him in the task) they havinginot'ensured the safety equipment to be availed of by the workers,4he forrhef (those responsible for the conduct of the business at the higher levels) cannot be held accountable under the deeming, proyisi^ni,,-.' n ..A, ^ I'-

¶55It is the argumenly^of^hdy.^^^ connected •'to- .the construction contractor cortiphhy viz;;, A M Naik (Cii.M.C. 2069/2015), K Venkatramanan (Crl.M.C. 2068/2015), M V Kotwal (Crl.M.C 2.070/2015), S.N. Subrahhiarfyam {Crl.M.C. 1873/2015), R Shankar Raman (Crl.M.C. 2072/2015) and Shailendra Roy (Crl.M.C. 2071/2015) that they had discharged their responsibility for due compliances to be made, in letter and spirit, with, the provisions of Building and Construction Workers Act and the mles . framed thereunder and that the breaches, if any, occurred at the level of the person(s) in-charge of the construction site i.e. Daljit Singh, Project Crl. M.C. 1873/2015 & connected- ' • 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.dqplpyed at the 18"^ floor level fi'om where he fell to the ground to suffer mortal injuries.

¶56The copy of the sub-Gontkct,,:.d&::shpwn at the hearing cannot be treated (without proper prObf) .as .apthentic or ''incontrovertible materiar or as one exonerating, the cohsfrtjction contractor company of its entire responsibility in-the--inattpr;:-'particularly in view of its continued responsibility vz5-(3.-rviA^h^ of the sub-contractor as per clause 79.13 of the contracf rtated ■29.03.2012, referred to earlier. The argument based on the sub-contract, entered upon by the construction contractor cOmpiahyr.With thertmmediate employer, of the deceased worker cannot also be accepted at this stage of the proceedings, particularly in exercise of the power and jurisdiction of this Court under Section 482 . Cr.P.C., inasmuch as it involves questions of fact [Rajiv Thapar and Ors. vs. Madan Lai Kapoor,

(2013) 3 see 330]. CrlM.C. 1873/2015 & connected L C*S.

¶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 persomiel using the nomenclature of Chief Executive Officer (CEO), Chief Financial Officer (CFO) and Human Resources (HR) Head. The subsidiaries and the associate companies have been incoiporated to operate in different schemes or spheres including building and factories, civil infrastmcture, n metallurgical & material handling, power transmission and distribution, hydrocarbon engineering, valves, alloys, power development, infotecfi, fmaince, construction and mining machinery etc.

¶58The complaint on which the smtimbning order was passed itself describes Mr. A.M. Naik, petitioner, in Ofl.M.C.2069/2015 to be the Group Executive Chairmaih^0£•■^g'-cons^#on contractor company. Similarly, the description of Mr,'M.¥.is:otwal, Mr. R. Shankar Raman and Mr. Shailendra Roy - petitioners in Crl.M.C; Nos. 2070/2015, 2072/2015 and 2071/2015, - even aS'per.the-complainant has been that they were working at the relevant point of time in the capacities of whole-time Director and President (Heavy Engineering), whole-time Director and Chief Financial Officer (CFO), and whole-time Director and Senior Executive Vice President (Coiporate Affairs and Power) respectively. By no stretch of reasoning or logic, these four petitioners can be said to be responsible for the compliances to be CH. M.C. 1873/2015 & connected ' a ma.de with regard to the prescribed safety, measures concerning tlie 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 ''employer''' (construction contractor company) towards compliances of the Buiiding .and "Construction Workers Act or 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,'ithey were working for the construction contractor company in thq capacity of CEO & Managing Director and whole-time Diire.^t6|^l5&/'^^^^^XExecutive Vice President- (Infrastructure & Construcfion),.|lsp%i^ifP '

¶60The very description of the port-folios they held a.nd the responsibilities that woiild ent.ailrtherefrpin^ facie shows that the j^; 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 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 ^0 that concern day-to-day use of safety belts, safety nets,, safety platforms, or personal fall aiT.est systems. But then, it cannot be ignored 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 (f/lr. Daljit Singh and Mr. Harish Vaid) made in-charge of the construction site. • ' ' n '

¶62The above petitioners, however,'.a^p. raise the defence based on the two safety audit reports, one dated p3:i04.2013 and the other dated 24-25.05.2014. It would be a'subjecf mkter of factual inquiiy as to whether the safety audit report; submrj^d on 25.04.2014, obtained after the fatal accidents in qpestion, can beftreated 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 wbuld 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, i.e., 17.05.2014, duly qualified safety officers were not in position they having not been appointed in teims 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 St of14 <t\ 1*4, domain of the responsibilities held by petitioners K. Venkataramanan 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 n offences were committed without' then-knowledge or that they had exercised all due diligence to prevent commission of such breaches (or offences). On the above facts, and in the circumstances, initiation of criminal action against petitioners - DLF Universal Ltd. (petitioner in Crl.M.C.2064/2015), Mohit Gujral (petitioner in Crl.M.C.2067/2D15), Rajeev Talwar (petitioner in'Crl.M!C;.2066/2O15), Shriram Khattar (petitioner in Crl.M.C.2160/2015), AshokKumar Tyagi (petitioner in Crl.M.C.2159/2015), n Sudhif - Sahgal ' (petitioner in Crl.M.C.2158/2015), A.M. Nailc (petitip'her in Crl.M.C.2069/2015), M.V. Kotwal (petitioner m-6rl.;lM:G.30p0/2O15), R. Shanlcar Raman (petitioner in Crl.MU, 20^fia|).4^'g^|endra Roy (petitioner in Crl.M.C.2071/2015) being uHfoundgdf%e continuation of such proceedings against them would be an abuse of the process of law. Therefore, their petitions'are. atlehvedvand. the proceedings against them m the criminal 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 unherent 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 , , Page 53 of54 Crl.M.C. 1873/2015) and K. Venkataramanan (petitioner in CrLM.C.2068/2015). 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. . (kK.GAtJ|A> NOVEIWBER 19, 2018 ,'' vk/nlc/yg Crl. M.C. 1873/2015 & connected Page 54 of54

/ . il- IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 19"' November, 2018 + CRL.M.C. 2071/2015 & CRL.M.A. 7373/2015 . SHAILENDRA ROY Petitioner Through: Ms. Sirna Gulati with Mr. Subhash Gulati, Mr. Shailesh Poddar & Mr. Sumit ■Saini, Advocates. Versus STATE . " . - .'W. R^^ . 'Through: Mr. Mukesh Kuniar, APPV > coRAM:. ' * : HON'BLE MR. JUSTICE R.K.GAUB A Si t V ^ t '' L J ' ? ' > ^ ^ /