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2019 Supreme(Mad) 1434
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
M.S. Srinivasan – Appellant
Versus
The Deputy Director (BOCW) – Respondent
Crl. O.P. No. 24507 of 2015, M.P. Nos. 1, 2 of 2015
Decided On : 06-02-2019
Advocate Appeared:
For the Appellant : Mr. C. Manishankhar for Mr. K. Krishnamoorthy.
For the Respondent: Mr. M. Mohamed Riyaz.
Headnote:
Negotiable Instruments Act,1881 - Sections 141 and 57 - Buildings and Other Constructions Workers (Regulation of Employment and Conditions of Services) Act 1996 - Section (2) (1)(i)(iii) ,40 (1) (2) (r ), 62 (1) (2) (zc), (ii),40 (1) (2) (n) ,40 (1) (2) (u) - Buildings and Other Constructions Workers (Regulation of Employment and Conditions of Services) Rules, 1996 - Rules 5(3),39(1) (2) (3) (4),46,47 - Quashing of Order - Termination of services - Buildings and Other Constructions Workers Act hereinafter referred as BOCW Act and TN BOCW Rules made there under - Petitioner is Chairman of M/s IL & FS Tamil Nadu Power Company Ltd entered into an agreement to put up construction at project site in Cuddalore District with one M/s. Shandong Tiejun Electric Power Engineering Limited in turn they entered into an agreement in its capacity as an employer with M/s. Larsen & Toubro Ltd as its contractor to execute and render such services as employer may require and for this purpose they entered into agreement - As per agreement M/s. Larsen & Toubro Limited is contractor and owner is M/s. IL & FS Tamil Nadu Power Company Ltd said agreement also contemplates employer namely M/s Shandong Tiejun Electric Power Engineering Limited to engage services of any other Sub contractor also - As per agreement contractor is person who is solely responsible for adequacy suitability and safety of its operation on site and shall also maintain such health and safety records and reports at site - They are also liable for and shall indemnify protect defend and hold harmless employer/owner - They are also liable for accidents or injuries caused to workmen and contractor shall all time indemnify employer against all claims - An accident occurred at project site in which three contract employers suffered serious injuries and succumbed to injuries died - That apart three other contract labourers suffered minor injuries and they were taken to hospital and treated as out patients - Respondent issued notice and conducted inspection - Thereafter a show cause notice was issued by respondent to petitioner in respect of violation of provisions of BOCW Act and BOCW rules - Petitioner submitted his explanation to show cause notice to respondent - After receipt of reply submitted by petitioner respondent initiated proceedings by way of complaint before Chief Judicial Magistrate Cuddalore for above said offences - Held, Limitation of Prosecution - No court shall take cognizance of an offence punishable under this Act unless complaint thereof is made within three months from date on which alleged commissions of offence came to knowledge of Director- General Chief Inspector an office-bearer of a voluntary organisation or as case may be an office-bearer of any concerned trade union - Where an offence under this Act has been committed by a company every person who at time offence was committed was in charge of and was responsible to company for conduct of business of company as well as company shall be deemed to be guilty of offence and shall be liable to be proceeded and punished accordingly - Court arrive at irresistible conclusion that for maintaining prosecution under Section 141 of Act arraigning of a company as an accused is imperative - Other categories of offenders can only be brought in drag-net on touchstone of vicarious liability as same has been stipulated in provision itself - Court say so on basis of ratio laid down in which is a three-Judge Bench decision - View expressed in does not correctly lay down law and accordingly is hereby overruled - Decision in Anil Hada is overruled with qualifier as stated in para - Decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove - Criminal Original Petition Allowed
ORDER :
1. This Criminal Original Petition has been filed by the Chairman of M/s. IL & FS Tamil Nadu Power Company Limited having their registered office at B4, Navin Presidium, Nelson Manickam Road, Aminjaikarai Road, Chennai 600 029 to quash the complaint in C.C. No. 20 of 2015 on the file of the learned Chief Judicial Magistrate, Cuddalore, who has taken cognizance for the offence under Section 40 (1) (2) (r ) - Power of appropriate Government to make rules for the safety and health of building workers, rule 39(1) (2) (3) (4) - health and safety policy and section 62 (1) (2) (zc), (ii). Section 40 (1) (2) (n) - Power of appropriate Government to makes rules for the safe safety and health of building workers, rule 47 - Electrical hazards & section 62 (1) (2) (zc) and (iii). Section 40 (1) (2) (u) - Power of appropriate Government to makes rules for safety and health of building workers, Rule 46 - Head protection and others protective apparel and section 62(1) (2) (zc) - Power to make rules.
2. The crux of the complaint is that violations pertaining to the Buildings and Other Constructions Workers (Regulation of Employment and Conditions of Services) Act 1996 hereinafter referred as BOCW Act and the TN BOCW Rules made there under. The petitioner is the Chairman of M/s. IL & FS Tamil Nadu Power Company Ltd. entered into an agreement to put up construction at the project site in Cuddalore District with one M/s. Shandong Tiejun Electric Power Engineering Limited, in turn they entered into an agreement in its capacity as an employer with M/s. Larsen & Toubro Ltd. as its contractor to execute and render such services as the employer may require and for this purpose, they entered into agreement dated 06.02.2012. As per the agreement M/s. Larsen & Toubro Limited is the contractor and owner is M/s. IL & FS Tamil Nadu Power Company Ltd. The said agreement also contemplates the employer namely M/s. Shandong Tiejun Electric Power Engineering Limited to engage the services of any other Sub contractor also. As per the agreement, the contractor is the person who is solely responsible for the adequacy, suitability and safety of its operation on the site and shall also maintain such health and safety records and reports at the site. They are also liable for and shall indemnify, protect, defend and hold harmless the employer/owner. They are also liable for accidents or injuries caused to the workmen and the contractor shall all the time indemnify the employer against all claims. On 26.07.2014, an accident occurred at the project site in which three contract employers suffered serious injuries and succumbed to the injuries died on 30.07.2014. That apart three other contract labourers suffered minor injuries and they were taken to hospital and treated as out patients. On 06.08.2014, the respondent issued notice and conducted inspection on 28.07.2014. Thereafter a show cause notice was issued by the respondent to the petitioner on 18.08.2014 in respect of violation of provisions of the BOCW Act and the BOCW rules. The petitioner submitted his explanation to the show cause notice dated 18.08.2014 to the respondent on 17.09.2014. After receipt of the reply submitted by the petitioner, the respondent initiated proceedings by way of complaint before the learned Chief Judicial Magistrate, Cuddalore for the above said offences.
3. Mr. C. Manishankhar, the learned Senior Counsel appearing on behalf of Mr. K. Krishnamoorthy, the learned counsel for the petitioner submitted that no offence is made out as against the petitioner who is neither employer nor a contractor as per the said Act and Rules. Even as per the case of the complainant, the offence was committed by the company M/s. IL & FS Tamil Nadu Power Company Ltd. (As per Section 53 of the Act provides for offence by company). According to the said provision where an offence under this act has been committed by a company, every person, who at the time, the offence was committed, was in charge of, and
