ORDER :

Prayer : Criminal Original petition filed under Section 482 of Code of Criminal Procedure, praying to call for the records and quash the proceedings in C.C.No.4943 of 2021 on the file of the learned Chief Metropolitan Magistrate, Egmore as against the petitioner.

This Criminal Original Petition has been preferred seeking to call for the records in C.C.No.4943 of 2021 pending on the file of the learned Chief Judicial Magistrate, Egmore, Chennai under Section 7(1)(2) r/w Rule 23(1)(2) and Rule 27, Section 46(1) Rule 26(3) and Rule 239(1) and Section 30(1) Rule 241(1)(a)(9), Section 50(1) and 48 of The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Tamil Nadu Building and Other Construction Workers (Regulation of Employment And Conditions of Service) Rules, 2006 and quash the same.

2. It is the case of the prosecution that on 11.03.2021 when the construction site of the petitioner was inspected, it was found that (i) the application for registration of the establishment under Tamil Nadu Buildings and other Construction Workers [Regulation of Employment and Conditions of Service) Act 1996 along with prescribed fees was not submitted to the Joint Director of the Industrial Safety and Health, Chennai (ii) a written notice in Form IV under Schedule XII, intimating the actual date of commencement and the probable date of completion of the work was not submitted by him to the Deputy Director (BOCW), Industrial Safety and Health, Chennai at least thirty days before the commencement of the above said construction work and (iii) The muster roll in Form XVI and Register of Wages in Form XVII under Schedule XIII, for the workers employed in the construction work was not maintained and produced on demand during the inspection. After having sent a show cause notice to the petitioner, the case has been filed for the above violations.

3. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent. Perused the entire materials available on record.

4. The learned counsel for the petitioner submitted that the Company is not impleaded as a party in the impugned proceedings; section 2(1)(i) of the Act defines employer and the petitioner does not fall under the said definition; because the construction work in the site was given to one Mr.A.Leo Francis through a work order dated 01.10.2020, the said contractor alone can be construed as an employer; further, as per Section 53(1) of the Act if an offence is committed by the Company, the Company ought to have been impleaded as a party; but the present complaint has been given against the petitioner in his individual capacity and hence, the proceedings are liable to be quashed; this Court has confirmed the above position of law in its earlier order dated 07.09.2018 made in Crl.OP.(MD) No.2938 of 2017, order dated 12.11.2021 made in Crl.OP.Nos.20373 & 20374 of 2017 and order dated 02.08.2022 made in Crl.OP.No.16346 of 2022.

5. The learned Additional Public Prosecutor appearing for the respondent has filed a counter affidavit stating that as per Section 53(2) of the Act, if it is proved that the offence has been committed with the consent or connivance for the neglect on the part of any director, the manager, secretary or other officer of the Company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence; the entire construction work order was being carried out by the petitioner and not through any contractor; after receiving the show cause notice, the petitioner did not send any reply by stating the facts, which are now raised in the petition; hence, this Criminal Original Petition is liable to be dismissed.

6. The records would show that there is some work order agreement made between M/s.Sumanth & Co., and the Contractor by name Mr.A.Leo Francis for doing civil masonry work in respect of the residential apartments of the Company. Before