Madras High Court
Sylvanus King Peter vs The State Of Tamil Nadu on 29 August, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.17580 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.17580 of 2021
and Crl.M.P.Nos.9654 & 9655 of 2021
Sylvanus King Peter ...Petitioner
-Vs-
The State of Tamil Nadu,
Represented by its Deputy Director,
Directorate of Industrial Safety & Health (BOCW),
47/1, Thiru. Vi.Ka.Industrial Estate,
Guindy, Chennai – 600 032. ... Respondent
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the records pertaining to the complaint
filed in C.C.No.4353 of 2021, pending on the file of the learned Chief
Metropolitan Magistrate, Egmore, Chennai and quash the same.
For Petitioner : Mr.P.Soloman Francis
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
ORDER
This petition has been filed to quash the proceedings in C.C.No.4353 of 2021 on the file of the learned Chief Metropolitan https://www.mhc.tn.gov.in/judis Page 1 of 8 Crl.O.P.No.17580 of 2021 Magistrate, Egmore, Chennai, thereby taken cognizances for the offences under Sections 30(1) of Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (herein after referred to as “the BOCW Act”) r/w Rule 241(1)(a)(9) of Tamil Nadu Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2006 (herein after referred to as “the TNBOW Rules”), as against the petitioner.
2. The respondent filed complaint under Section 47(1) of the BOCW Act as against the petitioner for the offences punishable under Section 30(1) of BOCW Act r/w Rule 241(1)(a)(9) of the TNBOCW Rules. The crux of the allegation is that the petitioner is the Managing Director and the Chief Executive Officer of M/s. Ocean Life Spaces India Private Limited. While the respondent had inspected the construction site of the petitioner situated at A19, A20, Thiru.Vi.Ka. Industrial Estate, Guindy, Chennai, he found some contravention of the provisions of the BOCW Act and the TNBOCW Rules.
3. Therefore, the respondent issued show cause notice to the petitioner on 04.03.2021. The show cause notice contended that when the https://www.mhc.tn.gov.in/judis Page 2 of 8 Crl.O.P.No.17580 of 2021 respondent inspected the construction site, the main staircase and emergency staircase constructed in the building were not provided with temporary handrails to prevent the workers from falling through the unbarricaded opening and also the lift bit were not barricaded property and further contended that the petitioner had not maintained the muster roll in Form-XVI and Register of wages in Form-XVII and Schedule XIII for the workers employed therein. On receipt of the complaint, the learned Chief Judicial Magistrate, Egmore, Chennai had taken cognizance in C.C.No.4353 of 2021.
4. The learned counsel appearing for the petitioner submitted that the respondent filed complaint only as against the petitioner in his personal capacity. An individual cannot be arrayed as accused when the alleged offence was committed by the company. The Hon'ble Supreme Court of India and this Court repeatedly held that while dealing with the case prosecuted under the Negotiable Instruments Act (herein after referred to as “the NI Act”), which is in parametria of Section 53 of the BOCW Act that the words “as well as the company” appearing in Section make it clear as to when the company can be prosecuted and it is only then the persons mentioned in other categories could be vicariously https://www.mhc.tn.gov.in/judis Page 3 of 8 Crl.O.P.No.17580 of 2021 liable for the offences subject to the averments in the petition. He further submitted that there is no specific overtact as action the petitioner who is sought to be prosecuted, who is the person-in-charge of and responsible for the conduct of the business of the day-to-day affairs of the company. The petitioner could not be able to send a reply within a specified period due to Covid-19 pandamic situation and sent reply to the show cause notice on 30.06.2021. Therefore, he prayed for quashment of the present proceedings.
5. The learned Government Advocate (Crl. Side) appearing for the respondent submitted that on the inspection conducted by the respondent, it was found that certain provisions of the BOCW Act and Rules were not followed by the petitioner in his construction work. Therefore, considering the safety of the workers, the respondent passed order dated 03.03.2021 and restrained the petitioner to carry out any work in the building. Thereafter, on the complaint lodged by the respondent, the learned Chief Metropolitan Magistrate, Egmore, Chennai has taken cognizance in C.C.No.4353 of 2021 as against the petitioner. Therefore the interference of this Court does not warrant in this case and prayed for dismissal of this petition.
https://www.mhc.tn.gov.in/judis Page 4 of 8 Crl.O.P.No.17580 of 2021
6. Heard Mr.P.Soloman Fracis, learned counsel appearing for the petitioner and Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the respondent.
7. On perusal of the complaint revealed that the petitioner is the sole accused and he shown as employee of M/s. Ocean Life Spaces India Private Limited. Admittedly, the construction work was carried out by the company called M/s. Ocean Life Spaces India Pvt. Ltd. When the respondent inspected the said construction work, he found some contravention of the BOCW Act. However, the respondent failed to issue show cause notice to the company and the show cause notice was issued to the petitioner herein in his personal capacity.
8. In the similar matter, this Court held in the judgment reported in 2019 SCC OnLine Mad 8997 in the case of M.S.Srinivasan Vs. Deputy Director that, while dealing with the case prosecuted under the NI Act, the offence committed by the company has to be filed under Section 141 of the NI Act. The same principal is applied to the present case, where the company committed offence and the company shall be shown as accused.
https://www.mhc.tn.gov.in/judis Page 5 of 8 Crl.O.P.No.17580 of 2021
9. The above judgment is squarely applicable to the present case. As stated supra, admittedly the respondent failed to include the company as accused. The complaint has been filed only as against the petitioner by showing him as employer. Therefore, the very complaint filed by the respondent against the petitioner under the BOCW Act is not maintainable. The same is clear from a reading of Section 2(1)(i)(iii) of BOCW Act, which is extracted here under:-
“2. Definitions :- (1) In this Act, unless the context otherwise requires-
(a) ...........................
(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 on behalf of a local authority or other establishment, directly without any contractor, the chief executive officer of that authority or establishment;
(ii) 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;
(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; ” https://www.mhc.tn.gov.in/judis Page 6 of 8 Crl.O.P.No.17580 of 2021 Therefore, the present impugned complaint cannot be sustained as against the petitioner and it is liable to be quashed.
10. In view of the above discussion, this Criminal Original Petition is allowed and the proceedings in C.C.No.4353 of 2021 on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, is hereby quashed. Consequently, connected miscellaneous petitions are closed.
29.08.2022 Internet: Yes Index : Yes/No Speaking/Non Speaking order rts https://www.mhc.tn.gov.in/judis Page 7 of 8 Crl.O.P.No.17580 of 2021 G.K.ILANTHIRAIYAN. J, rts To
1. The Chief Metropolitan Magistrate, Egmore, Chennai
2.The Deputy Director, Directorate of Industrial Safety & Health (BOCW), 47/1, Thiru. Vi.Ka.Industrial Estate, Guindy, Chennai – 600 032.
3.The Public Prosecutor, High Court, Madras.
Crl.O.P.No.17580 of 2021 and Crl.M.P.Nos.9654 & 9655 of 2021 29.08.2022 https://www.mhc.tn.gov.in/judis Page 8 of 8