Madras High Court
B.Prasada Rao vs The Government Of Tamil Nadu on 29 June, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.06.2018
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P.(MD)Nos.14113 of 2012 to 14115 of 2012
and
M.P.(MD)Nos.2,2 and 2 of 2012
1.B.Prasada Rao
2.Chairman and Managing Director,
Bharat Heavy Electricals Ltd.,
?BHEL? House,
Siri Fort, New Delhi-110 049. ... Petitioners
(in all petitions)
-Vs-
The Government of Tamil Nadu,
Rep by the Inspector of Factories,
Tuticorin. ..Respondent
(in all petitions)
COMMON PRAYER: Criminal Original petition - filed under Section 482 of Code
of Criminal Procedure, to call for the records, quash the complaint and all
consequential proceedings on the file of the learned Judicial Magistrate-1,
Tuticorin in Criminal Case No.STC 100, 99 and 101 of 2012, respectively.
For Petitioners : Mr.AL.Somayaji
Senior Counsel for
Mr.S.Ramasubramaniam
For Respondent : Mr.A.Robinson
Government Advocate
(for all petitions)
:COMMON ORDER
These Criminal Original Petitions have been filed by the then Chairman and Managing Director of Bharath Heavy Electricals Limited, New Delhi, to quash the proceedings in STC.Nos.99 to 101 of 2012, on the file of the learned Judicial Magistrate-1, Tuticorin. An industrial accident took place on 11.01.2012 in the premises of Sterlite Industries, Tuticorin at about 02.00 p.m., a construction worker by name, Vijay Misra died on account of fall from a crane. This gave rise to filing of the aforesaid private complaints for violation of the various provisions of The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
2.S.T.C.No.99 of 2012 has filed for the offence punishable under Sections 7(1)(2) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 r/w Rule 23(1) of the Tamil Nadu Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2006 and Section 62 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 r/w Rule 241(1)(a)(9) of the Tamil Nadu Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2006.
3.S.T.C.No.100 of 2012 has been filed for the offence punishable under Sections 39(1) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 r/w Rule 201(1)(a) and (b) of the Tamil Nadu Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2006 and Section 40 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 r/w Rule 5(1)(a), 51(d), 54, 42(5), 178 and 179 of the Tamil Nadu Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2006.
4.S.T.C.No.101 of 2012 has been filed for the offence punishable under Sections 46 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 r/w Rule 239 and 26(3) of the Tamil Nadu Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2006.
5.It is not in dispute that Sterlite Industries India Limited entered into an agreement with BHEL for designing, erection and commissioning of PTG Package 2*80 MW power plant to be located in Sterlite premises. BHEL, in turn had engaged Vasavi Power Services Private Limited. Separate complaints were filed against the contractor in S.T.C.Nos.102 to 104 of 2012. It is seen that the said company wanted to plead guilty. But the same was not accepted by the Trial Magistrate. Therefore, the said contractor filed Crl.O.P.(MD)No.17470 to 17472 of 2012 before this Court and this Court disposed of the matter by directing the Trial Magistrate to record the plea of guilty through counsel.
6.The learned senior counsel appearing for the petitioner raised a short and simple ground. It is not in dispute that the contract was only between the Sterlite Industries India Limited and BHEL. The petitioner herein was only the Chairman and the Managing Director of PHEL during the relevant point of time. Therefore, primary offence, if at all, can be said to have been committed only by the company in question. The liability, if at all, attributed to the petitioner, can only be in his constructive or vicarious capacity.
7.The learned senior counsel drew the attention of this Court to Section 53 (1) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. The said provisions reads as under:-
?53.Offences by companies:- (1) 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 was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded and punished accordingly.
Provided that nothing contained in the sub-section shall render any such person liable to any punishment, if he proved that the offence was committed without this knowledge or that he had exercised all due diligence to prevent the commission of such offence.?
8.Placing reliance on the unreported decision of the Hon'ble Supreme Court in SLP No.853 of 2007 that arose under the very same Act, followed by the Jharjkhand High Court in its decision in Cr.M.P.(MD)No.1614 of 2011, the learned Senior counsel contended that without making the company as a party to the criminal proceedings, the Head of the department or Chairman and Managing Director cannot be made as the sole accused.
9.Thus, the issue raised in these Original Petitions is no longer res integra. It is clearly answered in favour of the accused in the aforesaid decision of the Hon'ble Supreme Court. In the impugned private complaint, the petitioner alone has been arrayed as the sole accused. The BHEL, the construction company has not been arrayed as a party. Therefore, the complaint suffers from a fatal defect. Fully accepting the aforesaid submission of the learned senior counsel, all the impugned complaints are quashed and these Criminal Original Petitions are allowed.
To
1.The Inspector of Factories, Tuticorin.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.