This Criminal Original Petition has been filed to quash the proceedings in STC No.27 of 2017, on the file of the learned Additional Judicial Magistrate, Madurai.

2. The petitioner, who has been shown as a Principal Employer of M/s.HCL Technologies Limited, is facing the criminal proceedings instituted by the respondent for an offence under Section 40(1)(2)(u) of The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter shall be referred to as 'BOCW Act') r/w Rule 46 (Head Protection and Other Protective Apparel) and Section 62(1)(2)(zc) r/w Section 47 (1) of BOCW Act and Section 40 (1)(2)(r) of BOCW Act r/w Rule 39(1)(2)(3) Health and Safety Policy and Section 62(1)(2)(zc) r/w47(1) of BOCW Act.

3. It is the case of the petitioner that M/s. HCL Technologies Limited is an IT Company and it had engaged the services of M/s.G.K. Shetty Builders Private Limited to undertake the construction work of IT buildings. On 21.07.2017, the respondent came and inspected the site. Thereafter, a show cause notice dated 21.08.2017 was issued by the respondent to the petitioner alleging, breach of certain provisions of BOCW Act and Rules. The petitioner gave a detailed reply on 22.08.2017 to the respondent, informing them that the petitioner was not in violation of any of the provisions of BOCW Act or Rules. After the receipt of the reply, the respondent had proceeded to file a complaint before the learned Additional Chief Judicial Magistrate, Madurai for the above said offences.

4. The learned Senior Counsel Mr. Karthick, appearing for the petitioner submitted that under the scheme of BOCW Act, Section 53 deals with the offences by companies. Under the said provision only those person who, at the time offence was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. By pointing out this provision, the learned Senior Counsel would submit that the respondent even without adding the company as an accused has straight away proceeded against the petitioner by showing him as a principal employer. The learned Senior Counsel would submit that in all the cases, where the concept of vicarious liability is extended to the officers of the Company, the company has to be necessarily made as an accused in the complaint, failing which, the complaint itself is not maintainable. In order to substantiate the above said submission, the learned Senior Counsel has relied upon the judgment of the Hon'ble Supreme Court in Aneeta Hada Vs. Godfather Travels and Tours Private Limited reported in AIR 2012 SC 2795.

5. The learned Senior Counsel would further submit that insofar as the employer is concerned, the same is dealt with under Section 2(1)(i) of the BOCW Act. The learned Senior Counsel relied upon Sub Clause (iii) and submitted that in relation to the construction work carried on by or through a contractor, the contractor shall be deemed to be the employer of the workers supplied by him. The learned Senior Counsel therefore submitted that even if the offence is said to have taken place in the site where the construction work was carried out, only the contractor namely M/s.G.K. Shettey can be made as an accused and not the petitioner. Incidentally, the learned Senior Counsel also brought to the notice of this Court that the said building contractor namely M/s.G.K. Shetty Builders Private Limited had pleaded guilty and paid fine for the above said offence. Therefore, the respondent ought not to have proceeded against the petitioner.

6. The learned Senior Counsel further brought to the notice of this Court the judgment of the Karnataka High Court in Sri Jitendra Virwani Vs. The State of Karnataka reported in 2013 SCC Online 6547, wherein, the Karnataka High Court had dealt with a case of similar nature in relation to Section 53