Karnataka High Court
Bhagwan Mahaveer Jain Hospital vs State Of Karnataka on 12 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION No.1583 OF 2015(GM-RES)
BETWEEN:
BHAGWAN MAHAVEER JAIN HOSPITAL
(A UNIT OF BHAGWAN MAHAVEER MEMORIAL JAIN TRUST)
NO.17, MILLERS ROAD,
VASANTH NAGAR,
BENGALURU 560052
REPRESENTED BY ITS: HONORARY SECRETARY,
MR.POOLCHAND
... PETITIONER
(BY SRI:K.R.ANAND, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY:
THE ASSISTANT DIRECTOR OF FACTORIES,
BENGALURU DIVISION-12,
DEPARTMENT OF FACTORIES,
BOILERS, INDUSTRIAL SAGETY & HEALTH
(AN INSPECTOR APPOINTED U/S 42 (3)
OF THE BOCW ACT, 1993)
KARMIKA BHAVAN, 2ND FLOOR,
NEAR DAIRY CIRCLE,
BANNERGHATTA ROAD,
2
BENGALURU 560029
2. M/S.SHAPOORJI PALLONJI & CO.LTD
7TH FLOOR, SURYA CHAMBERS,
NO.124, HAL AIRPORT ROAD,
BENGALURU 560017
REPRESENTED BY ITS VICE PRESIDENT
T.R. MALLIKARJUNA
3. M/S. NELLYADI ENGINEERING PVT LTD
NO.15/A, ALPHONSA NAGAR,
HOSAPALYA MAIN ROAD,
MADIVALA POST,
BOMMANAHALLI,
BENGALURU 560068
REP BY ITS PROPRIETOR
MR. JOHN THAMBAI
... RESPONDENTS
(BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1;
SRI: H.V. DEVARAJ, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR
THE RECORDS IN CC.NO.24735/14 ON THE FILE OF THE 8TH
ADDITIONAL CMM COURT, BENGALURU AND QUASH THE
PROCEEDINGS INITIATED BY TAKING COGNIZANCE OF THE
COMPLAINT AT ANNEX-H FILED BY THE R-1 IN SO FAR AS IT
RELATES TO THE PETITIONER AS ACCUSED NO.1 IN THE SAID
PROCEEDINGS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
"Whether the owner of an establishment is not liable for prosecution for contravention of Rule 57 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Karnataka Rules, 2006?"
is the only question that has cropped up for consideration in this petition.
2. The outline facts giving rise to the above question are as follows :-
The Assistant Director of Factories, Bengaluru filed a complaint under Section 200 Cr.P.C. before the 8th Additional Chief Metropolitan Magistrate, Bengaluru, seeking prosecution of the petitioner - Bhagwan Mahaveer Jain Hospital (A1), M/s.Shapoorji Pallonji & Company Ltd. (A2) and M/s.Nellayadi Engineering Pvt. Ltd. (A3) on the allegations that one Shaji John, a male aged about 45 years, was found working from 4 13.06.2014 as a Supervisor under M/s.Nellyadi Engineering, a Sub-Contractor appointed by M/s.Shapoorji Pallonji and Company Limited, Bengaluru. On 16.06.2014, he came to the site at about 09.00 a.m. and was supervising tile laying work.
The Sub contractor team closed work at 6.00 PM and left the site. Further it was learnt that the family of Sri.Shaji John reported to John Tambi, Proprietor of Nellyadi Engineering that he had not returned home after work. The proprietor and his team came to the project site and started searching Sri Shaji John and at around 12.30 a.m. on 17.06.2014, they found his body lying in the pit (lower basement level). Immediately they reported the matter to project team and local police. The police visited the spot and removed the body from the pit and sent it for post mortem.
3. In the complaint it is stated that M/s.Bhagwan Mahaveer Jain Hospital was an 'establishment' as defined under the provisions of The Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (herein referred to as "BOCW Act 1996" for brevity) and that it 5 had awarded the execution of the civil works to Shapoorji Pallonji and Company Limited, Bengaluru (accused No.2) who had sub contracted their work to M/s.Nellyadi Engineering Pvt. Ltd. Bengaluru(accused No.3). The further averment made in the complaint reads that, "In view of the above mentioned system in place, the following establishments will form the employers of the construction activities in place at the above mentioned premises as per the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
1) M/s.Bhagwan Mahaveer Jain Hosptial;
2) M/s.Shapoorji Pallonji & Company Limited;
3) M/s.Nellyadi Engineering Pvt. Ltd."
4. It is further stated that the cost of construction activities was more than Rs.25 Crores, therefore, the complainant was having jurisdiction over the above said establishment.
5. From the above averments it is clear that the petitioner herein is sought to be prosecuted in his capacity as an 6 'employer' and also for the reason that the alleged incident has taken place in the 'establishment' belonging to the petitioner.
6. The contention of the learned counsel for the petitioner is that the petitioner does not answer the description of either "establishment" or "employer" as defined under BOCW Act 1996. Petitioner had entrusted the civil works to respondent No.2 under a written agreement and therefore, by virtue of section 2(1)(i)(iii) of the Act, the contractor engaged by the second respondent alone falls within the definition of "employer" as well as "establishment" qua the victim; hence the prosecution of the petitioner is legally untenable and amounts to abuse of process of court. In other words, the contention of the petitioner is that that the provisions of the BOCW Act 1996 do not apply to the petitioner and in the first instance it applies only to contractors who took up work of construction as defined section 2(1)(i) of BOCW Act 1996.
7. Since the contention raised by the petitioner is based on the interpretation and applicability of the provisions of the BOCW 7 Act, 1996 and the Rules framed thereunder, it may be necessary to refer to the relevant provisions of the Act.
8. The term "establishment" is defined under Section 2(1)(j) of the BOCW Act, 1996 as under :-
2(1)(j) "establishment" means any establishment belonging to, or under the control of, Government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building or other construction work; and includes an establishment belonging to a contractor, but does not include an individual who employs such workers in any building or construction work in relation to his own residence the total cost of such construction not being more than rupees ten lakhs;
9. There is no serious dispute as to the fact that petitioner herein is an "establishment" within the meaning of section 2(1)(j) of the BOCW Act, 1996 and that it had engaged the second respondent as contractor to carry on construction work of the extension of the hospital building. In the petition it is specifically stated that the petitioner had issued Form-V 8 dt.6.4.2011 to the second respondent- contractor as required under the Contract Labour (Regulations and Abolition) Act, 1970 and Central Rules, 1974 (Annexure-'D') and Form VI - Form of Certificate by the Principal Employer under the Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) (Karnataka) Act, 1979 and Rules, 1981 (Annexure-'E'). Here itself it may be necessary to refer to Annexures-'D' and 'E' produced by the petitioner wherein the petitioner has described himself as an "establishment" and "principal employer". The said annexures are extracted here below :-
ANNEXURE-'D' FORM-V [SEE RULE-21(2)] FORM OF CERTIFICATE BY PRINCIPAL EMPLOYER REF.R.C.NO.ALCB1/CLA/P102/2010-11 Certified that we have engaged the applicant M/s. Shapoorji Pallonji & Co. Ltd., 124, 7th Floor, Surya Chambers, Murugesh Palya, Off Airport Road, Bangalore- 560017, as a Contractor in our establishment. We undertake to be bound by all the provisions of the Contract Labour (Regulation & Abolition Act 1970) and the Contract Labour (Regulations & Abolition) Central Rules 1974 in so far as the provision applicable to us in respect of the 9 employment of Contract Labour by the Applicant in our establishment.
For: Bhagwan Mahaveer Jain Hospital Authorised Signatory Sd/-
Place: Bangalore Date: 06.04.2011 Name of Address of Establishment Bhagwan Mahaveer Jain Hospital (A Unit of Bhagwan Mahaveer Memorial Jain Trust) Millers Road, Vasanthnagar Bangalore - 560 052 ANNEXURE-E The Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service Karnataka) Rules, 1981 Form-VI (See Rule 7(3) Form of Certificate by Principal Employer Certified that I have engaged the M/s Shapoorji Pallonji Co. Ltd., # 124, 7th Floor, Surya Chambers, Murugeshpalya, Off. Airport Road, Bangalore-560017 as a contractor in my establishment. I undertake to be bound by all the provisions of the Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) (Karnataka) Act, 1979, and the Inter-State 10 Migrant Workmen (Regulation of Employment & Conditions of Services) (Karnataka) Rules, 1981, in so far as the provisions are applicable to me in respect of the employment of migrant workmen by the applicant in my establishment.
Place: Bengaluru Signature of the Principal
Employer
Date: 06.04.2011 Sd/-
Name of Address of Establishment
Bhagwan Mahaveer Jain Hospital
(A Unit of Bhagwan Mahaveer
Memorial Jain Trust)
Millers Road, Vasanthnagar
Bangalore - 560 052
10. In view of these documents and the clear averments found in the petition, there cannot be any dispute that the petitioner is an "establishment" as defined under the BOCW Act. No doubt, as per the above definition, "establishment" belonging to the contractor is also an "establishment", but that does not mean that, by entrusting the construction work to a contractor, the petitioner ceases to be an "establishment" within the meaning of the BOCW Act.
11. In this backdrop, if the term "employer" as defined under section 2(1)(i) of the Act is analysed, it states that, 11 2(1)(i) "employer", in relation to an establishment, means the owner thereof, and includes,-
(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;
(underlining mine)
12. The normal rule is that, general words in a statute must receive a general construction unless there is something in the Act itself such as the subject matter which the Act is dealing or context in which the said words are used to show the intention of the Legislature that they must be given restrictive meaning. In the case in hand, in the definition of the term "establishment" as well as the definition of the term "employer", the Legislature in its wisdom has used the 12 expression "and includes" meaning thereby that the establishment belonging to the Government, Body Corporate or Firm, or an individual or association which employs building workers in building or other construction work including the establishment belonging to a contractor who employs such workers in any building or construction work fall within the ambit of "establishment". This intention of the Legislature gets further amplified from the definition of the "employer" wherein the definition clause opens with the expression "'employer', in relation to an establishment means the owner thereof and includes, - in relation to a building or other construction work carried on by the Government, head of the department; in relation to a building or other construction work carried on by a local authority, the Chief Executive Officer of that authority or department; in respect of construction work carried on through a contractor."
13. In this context, it may be apt to refer to the principles of statutory interpretation of definition clauses. Justice G.P.Singh in his Treatise "Principles of Statutory Interpretation (14th edition)", explains that "a definition which defines a word to mean A and to include B and C cannot in its application be construed to exclude A and to include 13 only B and C". As explained by the Author, the word 'include' is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. Viewed in this manner, the definition referred above brings within its sweep the "owner" as well as the "contractor" within the meaning of the term "employer". The definition does not exclude the "owner" from the purview of the Act even if the construction work is entrusted to a "contractor". The scheme of the Act and the definition of the terms "employer" under section 2(1)(i) and "establishment" under section 2(1)(j) of the BOWA Act in particular makes the provisions of the BOWA Act applicable to the "owner" and the "contractor" alike.
14. That being the intendment of the Legislature, the interpretation placed by the learned counsel for the petitioner on the term "employer" and "establishment" if accepted, it would not only defeat the very object of the Act, but would also lead to an anomalous situation where the construction work is entrusted to a contractor, the owner would cease to hold any control or dominion over the establishment and the work carried on by the contractor and he would be relegated to a non-entity insofar as the establishment is concerned. 14 This is not the intendment of the Act and apparently to obviate such a situation, the Legislature appears to have included the "owner" as well as the "contractor" within the expression "employer" as defined under the Act. That being the legal position, the petitioner cannot absolve himself from the consequences following from the violation of provisions of the Act and the Rules made thereunder on the ground that the construction work was entrusted by him to a contractor. The provisions of the Act in general and the term "employer" and the "establishment" in particular, renders the petitioner being the "employer" liable to answer the violation of provisions of the BOWA Act including the contravention of Rule 57 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Karnataka Rules, 2006. As a result, the contention urged by learned counsel for the petitioner is liable to be rejected and is accordingly rejected.
Consequently, petition fails and the same is dismissed.
Sd/-
JUDGE rs.
Bss.