Madras High Court
M/S.Ocean Life Spaces India Private ... vs Deputy Director (Bocw-Building And ... on 2 August, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.16346 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.16346 of 2022
and Crl.M.P.Nos.9431 & 9433 of 2022
M/s.Ocean Life Spaces India Private Limited,
Represented by one of its Director,
Sylvanus King Peter,
Ramaniyam Krishna Tower,
2nd Floor, Door No.31-B, Industrial Estate,
Ekkatuthangal, Guindy, Chennai - 600 032. .. Petitioner
Vs.
Deputy Director (BOCW-Building and Other Construction Workers)
Industrial Health and Safety,
Guindy, Chennai - 600 032. .. Respondent
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., seeking
to call for the records in C.C.No.4352 of 2021 pending on the file of the
learned Chief Metropolitan Magistrate, Egmore, Chennai and quash the same.
For Petitioner : Mr.P.Solomon Francis
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
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ORDER
https://www.mhc.tn.gov.in/judis 1/6 Crl.O.P.No.16346 of 2022 This Criminal Original Petition has been filed to quash the proceedings in C.C.No.4352 of 2021 pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai for the offences under Section 40(1)(2)(u) Rule 42(5) and Section 40(1)(2)(r) Rule 39(1 to 4) of the Building and other Construction Workers (Regulation of Employment and Condition of Services) Act, 1996 and Tamil Nadu Building and other Construction Workers (Regulation of Employment and Conditions of Services) Rules, 2006.
2. The contention of the learned counsel appearing for the petitioner is that the company has been prosecuted and the Managing Director has also been prosecuted separately for minor violation. It is his further contention that absolutely there is no whisper made in the complaint as to who was incharge of the building site at the relevant point of time. Without making any enquiry in this regard, prosecution cannot be initiated mechanically. It is further submitted that as against the show cause notice, they have given reply and they have also filed an appeal and re-inspection was ordered by the Appellate Authority and during the re-inspection it was found that the said minor violations have been rectified. Hence, the prosecution is nothing but an abuse of process of law.
https://www.mhc.tn.gov.in/judis 2/6 Crl.O.P.No.16346 of 2022
3. The learned Additional Public Prosecutor appearing for the respondent submitted that during inspection at the building site, emergency staircase has not been provided with the handrails and they have also not prepared a written statement of policy in respect of safety and health of building workers. Therefore, show cause notice was issued and after three months period prosecution has been initiated as per law. 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 this quash Petition.
4. I have perused the entire materials.
5. The only allegation against the petitioner is that they have not provided temporary handrails in the entire building. It is not even averred who was in-charge of the company. Whether the construction was carried out by the company itself or through contractor. Without verifying, the prosecution has been launched. It is relevant to note that Section 2(i)(iii) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act)., defines an “employer” and it is extracted hereunder:
"Section 2(i) “employer”, in relation to an establishment, means the owner thereof, and includes,— https://www.mhc.tn.gov.in/judis 3/6 Crl.O.P.No.16346 of 2022
(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 specified, 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 without any contractor, the chief executive officer of that authority or establishment;
(iii) in relation to a building or other construction work carried on by or though a contractor, or by the employment of building workers supplied by a contractor, the contractor.”
6. Section 2(i)(iii) makes it very clear that in respect of any building or other construction work carried on by or through a contractor or by the employment of building workers supplied by a contractor, apart from the owner the Contractor is also to be considered as employer. The meaning of the employer assigning in the definition is inclusive one. However, it is to be noted that though the above provision includes owner, when the owner was not incharge of the building and in full control of construction, contractor alone to be considered as employer.
7. It is to be noted that the prosecution has not even whispered in the complaint as to whether the petitioner alone is the owner of the property, to bring the petitioner within the definition of Section 2 of the Act. It has not https://www.mhc.tn.gov.in/judis 4/6 Crl.O.P.No.16346 of 2022 been ascertained who was in-charge of the construction site. Merely on the fact that the petitioner's company are constructing, they cannot be mechanically prosecuted. Admittedly the violations have also been rectified as per the report of the Joint Director of BOCW, Chennai.
8. Such view of the matter the prosecution is nothing but a futile exercise and it will not serve any purpose. According, this Criminal Original Petition stands allowed and the proceedings in C.C.No.4352 of 2021 pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai is quashed. Consequently, the connected miscellaneous petitions are closed.
02.08.2022 kk To
1. The Deputy Director (BOCW-Building and Other Construction Workers) Industrial Health and Safety, Guindy, Chennai - 600 032.
2. The Public Prosecutor, Madras High Court.
https://www.mhc.tn.gov.in/judis 5/6 Crl.O.P.No.16346 of 2022 N.SATHISH KUMAR, J.
kk Crl.O.P.No.16346 of 2022 and Crl.M.P.Nos.9431 & 9433 of 2022 02.08.2022 https://www.mhc.tn.gov.in/judis 6/6