Madras High Court
Office Address vs Government Of Tamil Nadu on 26 April, 2023
Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.04.2023
PRONOUNCED ON : 26.04.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Criminal Original Petition Nos. 22336, 22343, 17778,
16249 & 16251 of 2019
and
Crl.M.P. Nos. 11594, 11601, 8118,
8119, 8121, 8123 & 8969 of 2019
Mr. Sain Singh Rawat,
Director,
Bridge and Roof Co.(India) Ltd.,
Employer / Contractor,
Construction Site Address:
1x800 MW North Chennai Thermal Power Project,
(Stage III) – BTG Package,
Athipattu, Thiruvallur District
Office Address:
Kankaria Centre, 5th floor,
2/1, Russel Street, Kolkata – 700 071. ... Petitioner in Crl.O.P. No.
22336 of 2019
Bridge and Roof Co.(India) Ltd.,
Employer / Contractor,
Construction Site Address:
1x800 MW North Chennai Thermal Power Project,
(Stage III) – BTG Package,
Athipattu, Thiruvallur District
Office Address:
Kankaria Centre, 5th floor,
https://www.mhc.tn.gov.in/judis
1/18
Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019
2/1, Russel Street, Kolkata – 700 071. ... Petitioner in Crl.O.P. No.
22343 of 2019
Mr.Manoj Kumar Varma
Director (Power),
Corporate Office (Power Sector),
Bharat Heavy Electricals Ltd.,
BHEl House, Siri Fort,
New Delhi – 110049. ...Petitioner in Crl.O.P. No.
17778 of 2019
Mr.Manoj Kumar Varma
Director (Power),
Corporate Office (Power Sector),
Bharat Heavy Electricals Ltd.,
BHEl House, Siri Fort,
New Delhi – 110049. ...Petitioner in Crl.O.P. No.
16249 of 2019
Bharat Heavy Electricals Ltd.,
Employer / Contractor Manoj Kumar Varma
BHEl House, Siri Fort,
New Delhi – 110049. ...Petitioner in Crl.O.P. No.
16251 of 2019
Versus
Government of Tamil Nadu,
Represented by
Joint Director and Industrial Safety and Health,
47/1, Thiru-Vi-Ka Industrial Estate,
Guindy, Chennai – 600 032. ... Respondents
in all the petitions
PRAYER in Crl.O.P. Nos.22336 & 22343 of 2019: Criminal Original
https://www.mhc.tn.gov.in/judis
2/18
Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019
Petitions filed under Section 482 of the Criminal Procedure Code seeking
to call for the records, quash the complaint and all consequential
proceedings in S.T.C. Nos. 196 & 197 of 2019 on the file of the Chief
Judicial Magistrate, Thiruvallur together with the summons issued
therein as against the petitioners respectively.
PRAYER in Crl.O.P. Nos.17778, 16249 & 16251 of 2019: Criminal
Original Petitions filed under Section 482 of the Criminal Procedure
Code seeking to call for the records, quash the complaint and all
consequential proceedings in S.T.C. Nos. 192 & 193 of 2019 on the file
of the Chief Judicial Magistrate, Thiruvallur.
For Petitioners in
Crl.O.P.Nos. 22336
& 22343 of 2019) : Mr. Sai Srujan Tayi for
M/s.Giridharan & Sai
For Petitioners in
Crl.O.P.Nos. 17778
16249 & 16251 of 2019) : Mr. Krishna Srinivasan, Senior
Counsel for M/s.Ramasubramaniam
Associates.
For Respondent in
all the petitions : Mr. A. Damodaran,
Additional Public Prosecutor.
COMMON ORDER
The above petitions have been filed challenging the complaints filed by the respondent herein for violation of the provisions of the https://www.mhc.tn.gov.in/judis 3/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter referred to as 'the Act' for the sake of convenience) along with the Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Central Rules, 1998 (hereinafter referred to as 'the Rules' for the sake of convenience). The following tabular column will show the violations for which the petitioners have been charged with;
S.No. Criminal Original Name of the Violations Case Number
Petition Number Petitioner alleged
1. Crl.O.P.No.22336 of Mr.Sain Section 44 S.T.C.No.196
2019 Singh Rawat Section of 2019
40(1)(2)
Rule 42(5)
2. Crl.O.P.No.22343 of Bridge and Section 44 S.T.C.No.197 2019 Roof Section of 2019 Co.India 40(1)(2) Ltd., Rule 42(5) (hereinafter referred to as 'BRCL')
3. Crl.O.P.No.17778 of Mr.Manoj Section S.T.C.No.192 2019 Kumar 62(1)(2)(c) of 2019 Varma Section 7(1)(2) Rule 23 (1)(2) Rule 26(5) and Rule 27 https://www.mhc.tn.gov.in/judis 4/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 read with Sec.2(i) and Sec 2(j) and Section 44 Section 40(1)(2) Rule 42(5)
4. Crl.O.P.No.16249 of Mr.Manoj Section S.T.C. No.193 2019 Kumar 62(1)(2)(c) of 2019 Varma Section 7(1)(2) Rule 23 (1)(2) Rule 26(5) and Rule 27 read with Sec.2(i) and Sec 2(j) and Section 44 Section 40(1)(2) Rule 42(5)
5. Crl.O.P.No.16251 of Bharat Section S.T.C.No.192 2019 Heavy 62(1)(2)(c) of 2019 Electricals Section Ltd., 7(1)(2) (hereinafter Rule 23 referred to as (1)(2) Rule 'BHEL') 26(5) and Rule 27 read with Sec.2(i) and Sec 2(j) and Section 44 Section 40(1)(2) Rule 42(5)
2. All these petitions have been taken up together for disposal https://www.mhc.tn.gov.in/judis 5/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 since the reason for prosecuting the petitioners is an accident which took place in the premises belonging to TANGEDCO wherein construction work of 1x800 MW North Chennai Thermal Power Project was going on.
3. It is alleged that the deceased one Gurupreet Singh, a worker, on 02.02.2019 along with five others were employed in the above mentioned construction work through a subcontractor by name Bhavani Erector Private Limited (hereinafter referred to as 'BEPL') for doing the work of alignment of steam cooled panels at the height of 67 metres from the ground level; that there was no constant and adequate supervision in the working area and no fixed platforms and safe means of access provided to the workers to reach the work spot; that the said Gurupreet Singh after removing his hook of the safety belt from the lifeline to get down from his workplace slipped and fell down; that since the working area was not completely provided with a platform, he fell from the height of 67 metres through the gap between the working platform and the column no.6 and into the metallic duct; and that he sustained severe injuries and succumbed due to injuries on the spot;
4. It is the case of the respondent that the BTG (Boiler Turbine https://www.mhc.tn.gov.in/judis 6/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 Generator auxiliary works) contract was awarded to BHEL by TANGEDCO; that BHEL entrusted the construction work to subcontractors; that the work of 'Erection, testing, assistance for commissioning and trial operation of boiler and auxiliaries, Air Preheaters, ducts and dampers, boiler integral piping etc.,' was awarded to subcontractor viz., BRCL; that out of this work, a part of the work viz., 'Collection of materials, erection, alignment, welding, testing, painting, commissioning of balance boiler pressure part, non-part etc.,' was entrusted to the subcontractor viz., BEPL; that the said accident took place in the place of work which was entrusted to the said subcontractor BEPL; that inspections were conducted on 05.02.2019 in the construction place and show cause notices were issued to
a)TANGEDCO; b)BHEL; c)BRCL; d)BEPL. It is the case of the respondent that separate prosecutions have been initiated against TANGEDCO, BHEL, BRCL and BEPL. The companies were prosecuted separately, and their Directors were prosecuted by a separate complaint. It is stated that the complaint against TANGEDCO was not taken on file by the learned Magistrate; and that in respect of the complaints against BEPL and its managing director, who were prosecuted in S.T.C. Nos. 194 & 195 of 2019, respectively, they were https://www.mhc.tn.gov.in/judis 7/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 convicted and sentenced to pay fine on their plea of guilt.
5. (a)Mr. Krishna Srinivasan learned Senior Counsel for the petitioners in Crl.O.P. Nos.17778, 16249 & 16251 of 2019, submitted that the impugned complaints are misconceived and are an abuse of process of law. BHEL is a Central Government Undertaking company, and no prosecution would lie against the said company on the complaint of the respondent as they are not the 'appropriate government' for BHEL. The learned Senior Counsel referred to Sections 2(1)(a) of the Act, 40(1)(2) and 42(5) of the Rules in support of his submissions.
(b) The learned Senior Counsel submitted that Section 2(i) of the Act defines 'employer' in relation to an establishment which means the owner and includes a contractor who had carried on construction work by the employment of building workers. The learned Senior Counsel submitted that, admittedly BEPL was the contractor who supplied the building workers. The said company was prosecuted and convicted. There cannot be more than one employer in relation to an establishment. Once BEPL has been identified as an employer and prosecuted, the other contractors and sub contractors cannot be prosecuted as 'Employers'. https://www.mhc.tn.gov.in/judis 8/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019
(c) The learned Senior Counsel further submitted that a strange practice has been adopted where a company was prosecuted by a complaint and the director, who is said to be in charge of the company, by a separate complaint in respect of the same violation. The said practice is unknown and is not recognized by the Criminal Procedure Code.
(d)Even in the complaint filed against the company in S.T.C. No. 193 of 2019 also, the summons was served to the director. Though the director Mr. Manoj Kumar Varma was not shown as accused in the said case, since summons was sent to him, he had to challenge the proceedings in the said case. The prosecution is therefore misconceived in many ways and hence prayed for the quashing of the complaints.
(e)The learned Senior Counsel further submitted that apart from the violations alleged against all the companies that safety measures were not followed, BHEL and its director were prosecuted for not registering with the authorities under the Act. Registration is required only if the company engages building workers. Admittedly, in the instant case, https://www.mhc.tn.gov.in/judis 9/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 there is no such allegation against BHEL that it had engaged building workers. Hence, the complainant's case that the BHEL has violated the Act by not registering themselves under the Act cannot be sustained.
6. Mr. Sai Srujan Tayi, learned counsel for the petitioners in Crl.O.P. Nos. 22336 & 22343 of 2019 reiterated the submissions made by the learned Senior Counsel and submitted that once BEPL was prosecuted as an employer, the other companies who had engaged BEPL as a subcontractor, cannot be prosecuted independently as an employer. The learned Counsel relied upon the Judgment of this Court in P.Marimuthu Raja Vs. The State of Tamil Nadu in Crl.O.P.(MD) No. 19696 of 2021 dated 10.01.2022 and in S.Sridhar Vs. State, Rep. By Ms.S.Suriya, Deputy Director (BOCW) – II in Crl.O.P. No. 20373 and 20374 of 2017 dated 12.11.2021.
7. The learned Additional Public Prosecutor appearing for the respondent would submit that there are allegations in the impugned final report that the companies had violated the provisions of the Act and the Rules framed thereunder. Since the points raised by the petitioners have https://www.mhc.tn.gov.in/judis 10/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 to be adjudicated only before the trial Court, he prayed for the dismissal of the quash petitions.
8. This Court finds that the basis for the impugned complaints is the accident that took place on 02.02.2019, causing the unfortunate death of a worker. The details of the accident have been narrated above. It is the admitted case of all the parties that TANGEDCO is the owner of the premises. A contract was given to BHEL for doing certain work. BHEL had in turn, had subcontracted part of the work to BRCL. BRCL had subcontracted a part of work to BEPL. The accident took place in the workplace allotted to BEPL. It is also admitted that the workers, including the deceased, were supplied by BEPL for construction purposes. It is also admitted that separate prosecutions were initiated against BEPL and its Managing Director, showing them as employers. The company and its Managing Director admitted their guilt and were convicted and sentenced to pay a fine in S.T.C. Nos. 194 and 195 of 2019 on the file of the Chief Judicial Magistrate, Tiruvallur. In respect of the same violation, BHEL and BRCL have been independently prosecuted, showing them as employer. This Court is of the view that there cannot be more than one employer in relation to an establishment. https://www.mhc.tn.gov.in/judis 11/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 Once BEPL has been identified as an employer and prosecuted for the violations under Section 44 of the Act, the other companies cannot be called as 'Employers'.
9. In the instant cases, a strange practice which is unknown to the Criminal Procedure Code has been adopted. Four different complaints have been filed for violation under Section 44 of the Act, showing four companies as 'Employers'. If it is the prosecution case that all of them are 'Employers', they have to be prosecuted in a single complaint, in which case, the exact role played by each of the Companies in the alleged violations would be revealed. However, filing independent complaints showing each of them as an 'Employer' alleging the very same violation is highly inappropriate, to say the least. Admittedly, BEPL has paid a fine and hence, the prosecution against the petitioners for the very same violation is an abuse of process of law. This Court in P.Marimuthu Raja Vs. The State of Tamil Nadu in Crl.O.P.(MD) No. 19696 of 2021 dated 10.01.2022, held as follows;
“6.The petitioner can be prosecuted only if he will fall within the definition of the term employer. Section https://www.mhc.tn.gov.in/judis 12/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 2(i) of the Building and Other Construction Workers- (Regulation of Employment and Conditions of Service) Act, 1996, defines employer. It is as follows:~
(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 through a contractor, or by the employment of building workers supplied by a contractor, the contractor;
7.The petitioner by no stretch of imagination can be called as owner of the establishment in question. Sub Clause 1 of Section 2(i) will be attracted against the petitioner if the works in question had been carried out https://www.mhc.tn.gov.in/judis 13/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 without any contractor. In this case, since a contractor was involved Section 2(i)(i) of the Act cannot be invoked against the petitioner. For the very same reason, Section 2(i)(ii) of the Act also cannot be invoked. The case on hand falls within Section 2(i)(iii) of the Act. In such a event, it is only the contractor, who can be prosecuted. Therefore, prosecuting the petitioner is without any basis. Continuance of the prosecution will amount to an abuse of legal process. The impugned proceedings stand quashed and the criminal original petition is allowed. Consequently, connected miscellaneous petitions are closed.” Similarly in S.Sridhar Vs. State, Rep. By Ms.S.Suriya, Deputy Director (BOCW) – II in Crl.O.P. No. 20373 and 20374 of 2017 dated 12.11.2021, has held as follows;
“11. It is also stated that similar violation, the contractor has already prosecuted and he has already admitted and paid fine. Therefore, for the same violation, there cannot be a prosecution once again. On that ground also the proceeings are liable to be quashed. Accordingly the Proceedings in S.T.C.Nos.1998 and 1999 of 2017 on the file of Learned Judicial Magistrate, Ambattur as against the petitioner are quashed.” https://www.mhc.tn.gov.in/judis 14/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 The above observations squarely apply to the facts of the instant case.
10. That apart, this Court finds that there is yet another procedural irregularity in prosecuting the company and the director of the said company by two separate complaints in respect of the same violation. This procedure again is in violation of Section 223(a) of the Criminal Procedure Code, which reads as follows;
“223. What persons may be charged jointly. The following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course same transaction;...“ If the company is the offender, the director of the company who is in charge of and responsible to the company for the conduct of its business is vicariously liable. They are persons accused of the same offence committed in the course of the same transaction. There cannot be two separate complaints as done in the instant cases. The reason for joint trial is not far to seek. It would avoid multiplicity of trials, besides conflict of decisions against different accused in respect of the same offence. The respondent may well be advised that in future, they may not file complaints violating the procedure prescribed under the Criminal https://www.mhc.tn.gov.in/judis 15/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 Procedure Code. The above tabular column shows that the company and its director were prosecuted for the same violation independently.
11. As regards the violation of not registering with the authorities under the Act, it is seen that, admittedly BHEL did not employ building workers. Therefore, there is no necessity to register with the authorities concerned. Rule 26 of the Rules makes it clear that registration is required only if a building worker is directly employed by the employer. Since admittedly BHEL has not employed any building worker, registration is not required. It is also seen that BEPL has been prosecuted for the same violation and convicted. For all the above reasons, the impugned complaints are liable to be quashed.
12. Accordingly, these Criminal Original Petitions are allowed by quashing the proceedings in S.T.C. Nos. 192, 193, 196 & 197 of 2019 on the file of the Chief Judicial Magistrate, Tiruvallur. Consequently, all the connected Miscellaneous Petitions are closed.
26.04.2023 ay https://www.mhc.tn.gov.in/judis 16/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No To
1. The Joint Director and Industrial Safety and Health, 47/1, Thiru-Vi-Ka Industrial Estate, Guindy, Chennai – 600 032.
2. The Chief Judicial Magistrate, Tiruvallur.
3. The Additional Public Prosecutor, High Court of Madras, Chennai.
https://www.mhc.tn.gov.in/judis 17/18 Crl OP Nos. 22336, 22343, 17778, 16249 & 16251 / 2019 SUNDER MOHAN, J ay Crl.O.P. Nos. 22336, 22343, 17778, 16249 & 16251 of 2019 and Crl.M.P. Nos. 11594, 11601, 8118, 8119, 8121, 8123 & 8969 of 2019 Dated:26.04.2023 https://www.mhc.tn.gov.in/judis 18/18