M.S.SRINIVASAN Vs. THE DEPUTY DIRECTOR (BOCW)

JUDGEMENT

(1.) This Criminal Original Petition has been filed by the Chairman of M/s.ILFS Tamil Nadu Power Company Limited having their registered office at B4, Navin Presidium, Nelson Manickam Road, Aminjaikarai Road, Chennai 600 029 to quash the complaint in C.C.No.20 of 2015 on the file of the learned Chief Judicial Magistrate, Cuddalore, who has taken cognizance for the offence under Sec. 40 (1) (2) (r ) -Power of appropriate Government to make rules for the safety and health of building workers, rule 39(1) (2) (3) (4) - health and safety policysection 62 (1) (2) (zc), (ii). Sec. 40 (1) (2) (n) - - Power of appropriate Government to makes rules for the safe safety and health of building workers, rule 47 - Electrical hazardssection 62 (1) (2) (zc) and (iii). Sec. 40 (1) (2) (u) - Power of appropriate Government to makes rules for safety and health of building workers, Rule 46 - Head protectionothers protective apparelsection 62(1) (2) (zc) - Power to make rules.

(2.) The crux of the complaint is that violations pertaining to the Buildings and Other Constructions Workers (Regulation of Employment and Conditions of Services) Act 1996 hereinafter referred as as BOCW Act and the TN BOCW Rules made there under. The petitioner is the Chairman of M/s.ILFS Tamil Nadu Power Company Ltd., entered into an agreement to put up construction at the project site in Cuddalore District with one M/s.Shandong Tiejun Electric Power Engineering Limited, in turn they entered into an agreement in its capacity as an employer with M/s.LarsenToubro Ltd. as its contractor to execute and render such services as the employer may require and for this purpose, they entered into agreement dated 06.0201 As per the agreement M/s.LarsenToubro Limited is the contractor and owner is M/s.ILFS Tamil Nadu Power Company Ltd. The said agreement also contemplates the employer namely M/s.Shandong Tiejun Electric Power Engineering Limited to engage the services of any other Sub contractor also. As per the agreement, the contractor is the person who is solely responsible for the adequacy, suitability and safety of its operation on the site and shall also maintain such health and safety records and reports at the site. They are also liable for and shall indemnify, protect, defend and hold harmless the employer / owner. They are also liable for accidents or injuries caused to the workmen and the contractor shall all the time indemnify the employer against all claims. On 26.07.2014, an accident occurred at the project site in which three contract employers suffered serious injuries and succumbed to the injuries died on 30.07.2014. That apart three other contract labourers suffered minor injuries and they were taken to hospital and treated as out patients. On 06.08.2014, the respondent issued notice and conducted inspection on 28.07.2014. Thereafter a show cause notice was issued by the respondent to the petitioner on 18.08.2014 in respect of violation of provisions of the BOCW Act and the BOCW rules. The petitioner submitted his explanation to the show cause notice dated 18.08.2014 to the respondent on 17.09.2014. After receipt of the reply submitted by the petitioner, the respondent initiated proceedings by way of complaint before the learned Chief Judicial Magistrate, Cuddalore for the above said offences.

(3.) Mr.C.Manishankhar, the learned Senior Counsel appearing on behalf of Mr.K.Krishnamoorthy, the learned counsel for the petitioner submitted that no offence is made out as against the petitioner who is neither employer nor a contractor as per the said Act and Rules. Even as per the case of the complainant, the offence was committed by the company M/s.ILFS Tamil Nadu Power Company Ltd.,. (As per Sec. 53 of the Act provides for offence by company). According to the said provision 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 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. In the complaint, the company is not added as accused. The learned