COMMON ORDER

Two complaints have been filed by the Deputy Director, Industrial Safety and Health Department for violation of the provisions of Building and Other Construction Workers (Regulation of Employment and Conditions of Service)

Act, 1996 (BOCW Act).

2. It is the case of the prosecution that on 15.02.2017, one worker viz., Elumalai was employed in the Second Floor of the building owned by the petitioner herein, while mixing the cement, fell down from the second floor and succumbed to injury. Thereupon, the Respondent has conducted an enquiry and found that the employer has not sent notice of accident immediately and violated the provisions of the Section 39(1) r/w Rule 210(1)(a)(b) and Rule 210(7) of the BOCW Act and the Tamil Nadu Building and other Construction Workers (Regulation of Employment and Conditions of Services) Rules, 2006.

3. Similarly, it is also alleged that the petitioner being an employer, has not provided constant and adequate supervision of any building or other construction work in his establishment, therefore, violated the Section 44 Rule 5(5) of the Act and Rules. That they violated Section 34 rule 5 and other violations alleged that he has not maintained the Muster Roll in Form XVI and Register of Wages in Form XVII under Schedule XIII for the workers employed in the above construction. Thereby, violated the provisions of the Section 62(1)(2)(t) Section 30(1) Rule 241(1)(a)(9) of the Act and Rules. Another complaint was also lodged under Section 62(1)(2)(zc) Section 40(1)(2)(u)

Rules 42(5) of the Act and Rules.

4. The learned counsel appearing for the petitioner mainly contened that the prosecution launched against the petitioner is not according to law and in fact the Petitioner will not come under the definition of the employer as per the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act).

5. It is the further contention of the learned counsel for the Petitioner that as per the definition 2(1)(i) of the BOCW Act referred above, only the contractor would be the employer and it is his further contention that in the similar matter, this Court has quashed the proceedings in the judgement in Babu Bhardagond vs. The State Rep.by the Deputy Diretor (BOCW) [Crl.O.P.(MD) NO.2938 of 2017 Dated 07.09.2018]. Learned Counsel for the Petitioner also contended that even in the inspection report filed by the authorities clearly indicated that the entire building construction work was given to a contractor. Such being the position, launching the prosecution against the person, who is no way connected to the alleged violation is not sustainable in law. At the worst case even assuming that the company can be prosecuted under Section 53 of the Act even then the only person who was incharge of day to day affairs of the company would be prosecuted. But herein, the prosecution simply filed the complaint against the petitioner who is not a company. Learned counsel further submitted that when the entire contruction work was carried away through contractor as per the Act itself, only the contractor alone would be construed as an employer. Therefore, submitted that the prosecution launched by the Respondent is nothing but abuse of process of law and cannot be sustained. It is also submitted that the prosecution has already launched against the contractor in STC.No.1996 and 1997 of 2017 for the similar provisions for the same violations, wherein the contractor has already admitted the guilt and paid fine.

6. The learned Government Advocate (Crl.Side) admitted that the contractor has already paid fine and thereafter two private complaints have been filed aginst him. It is his contention that the definition of the employer covers the owner also. Therefore, there is no bar for lodging a complaint against the owner of the building. Hence, opposed to order these Petitions. 7. I have perused the entire materials. As indicate above, for various violations, the private compl