, The High Court quashed the private complaint under the BOCW Act. The Court held the complaint was not maintainable for prosecuting the Chairman without joining the company under Section 53, and barred by limitation under Section 55.
Criminal Original Petition allowed; Case C.C.No.21 of 2015 quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.02.2019
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.24508 of 2015 and M.P.Nos.1 & 2 of 2015
M.S.Srinivasan ... Petitioner/Accused
Vs. The Deputy Director (BOCW), Kanchipuram, Industrial Safety and Health, A-28, Thiru-vi-ka Industrial Estate, Guindy, Chennai 600 032 ...Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying to call for the records pending in C.C.No.21 of 2015 on the file of Chief Judicial Magistrate, Cuddalore and quash the same.
For Petitioner :Mr.C.Manishankhar, Senior Counsel for Mr.K.Krishnamoorthy For Respondent : Mr.M.Mohamed Riyaz, Additional Public Prosecutor ORDER
This Criminal Original Petition has been filed by the Chairman of M/s.IL & FS 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.21 of 2015 on the file of the learned Chief Judicial Magistrate, Cuddalore, who has taken cognizance for the offence under Section Sec.40 (1) (2) (e) – Power of appropriate Government to makes rules for the safety and health of building workers, Rule 223 (a) (ii) (iii) & 223 (C ) - Certificate of Medical Examination & sec. 62(1) (2) (zc), ii.Sec.40(1) (2) (u), Rule 229 (a) (b) (c ) (d) (e) – Occupational Health service & sec. 62(1) (2) (zc) and iii. Sec. 40 (1) (2) (u), Rule 226 (a) (b) (c ) (d) (e) – Occupational Health service & sec. 62 (1) (2) (zc) – Power to make rules.
(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.IL & FS 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.Larsen & Toubro Ltd. as its contractor to execute and render such services as the employer may require and for this purpose, they entered into agreement dated 06.02.2012. As per the agreement M/s.Larsen & Toubro Limited is the contractor and owner is M/s.IL & FS 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.
complaint, the company is not added as accused. The learned Senior Counsel further submitted that the period of limitation for filing the complaint has been specified and according to the provision under Section 55 of the said Act, no court shall take cognizance of an offence punishable under the Act unless the complaint thereof is made within three months from the date of alleged commission of offence. He submitted that in the case on hand, the alleged occurrence took place on 26.07.2014, but the complaint was filed only on 20.10.2014 and the petitioner has been made as an accused by permitting the correction to the claim of the accused mentioned in the complaint only by order dated 09.07.2015 by which time, the limitation is expired. Therefore, he submitted that the learned Chief Judicial Magistrate have no jurisdiction to take cognizance of the offence, since it is barred by limitation.
The learned Senior Counsel has relied upon the following judgments in respect of offences allegedly committed by the company:
(i) In the case of Aneeta Hada Vs. Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661
(ii) In the case of Anil Gupta Vs. Star India Private Limited and another reported in (2014) 10 SCC 373
(iii) In the case of Ajit Balse Vs. Capt. Ranga Karkere reported in III (2015) BC 1 (SC)
In respect of amendment in Criminal Complaint, he has relied upon the following judgments:
(i) In the case of K.K.Saravana Kumar Vs. Saravanan reported in 2009 (2) LW (Crl.) 1105.
(ii) In the case of K.Velmurugan Vs. N.Ganesan reported in 2010 (3) MWN (Cr.) DCC 23
and the following judgment has been relied upon in respect of Power of Court to Recall / Process:
(i) In the case of Adalat Prasad Vs. Rooplal Jindal & Other reported in (2004) 7 SCC 338.
“55.Limitation of Prosecution:- No court shall take cognizance of an offence punishable under this Act
unless the complaint thereof is made within three months from the date on which the alleged commissions of the offence came to the knowledge of the Director-General, the Chief Inspector, an office-bearer of a voluntary organisation or, as the case may be, an office-bearer of any concerned trade union.”
As per those provisions, the complaint ought to have been filed within a period of three months from the date of commission of offence. In the case on hand, the alleged occurrence took place on 26.07.2014 and though the complaint was filed on 20.10.2014, the name of the petitioner was inserted only on 09.07.2015. As such the complaint is barred by limitation.
“2.Definitions: (1) in this Act, unless the context otherwise requires, (i) “employer” in relation to an establishment, means the owner thereof, and includes,(i) ....
(ii)....
(iii) 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;”
As such as per the agreement and the show cause notice issued by the respondent / complainant the complaint itself is not maintainable as against the petitioner under BOCW Act and the BOCW rules. Therefore, the learned Chief Judicial Magistrate, Cuddalore ought not to have taken cognizance of the matter as against the petitioner.
“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.”
“58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic
person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted.
The Hon'ble Supreme Court of India has held 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 NI Act. The same principle is applied to the present case, where the company committed offence and the company shall be shown as accused. Further it is also seen that in similar matters, the Madurai Bench of this Court in Crl.O.P.(MD).No.2938 of 2017 reported in (2018) 4 MLJ (Crl) 225 has held as follows:
“9.Admittedly in this case, the complaint has been filed against the petitioner directly by showing him as the Principal Employer. An inspection was carried out by the respondent in the construction site, where the construction was carried out by engaging the contractor. Under such circumstances, the Principal Employer insofar as the workers engaged in the construction site by the contractor, will be only the contractor namely M/s.GK.Shetty Builders Private Limited and not the petitioner. The same is clear from a reading of Section 2(1)(i)(iii) of BOCW Act, which is extracted herein under:
“2.Definitions:(1) in this Act, unless the context otherwise requires,
(i)”employer” in relation to an establishment, means the owner thereof, and includes,-
(iii) 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;
Therefore, the very complaint filed by the respondent against the petitioner under the BOCW Act is not maintainable.
10.Even if M/s HCL Technologies Private Limited is considered to be the employer, the respondent cannot prosecute the complaint without adding M/s.HCL Technologies Private Limited as an accused. For this purpose, it is relevant to extract the judgment of the Hon'ble Supreme Court in Aneeta Hada Vs. Godfather Travels and Tours Private Limited reported in AIR 2012 SC 2795, which is as follows:
''42. ... ... ... Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words ?as well as the company? appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted.?
11.In the above said judgment, the Supreme Court was dealing with Section 141 of The Negotiable Instruments Act, which in pari materia with Section 53 of the BOCW Act. Therefore, the same principal will apply for the offence committed by the companies in this case also.
12.The Karnataka High Court had an occasion to deal with the very same issue with regard to the scope of Section 53 of the BOCW Act and the Karnataka High Court in Sri Jitendra Virwani Vs. The State of Karnataka reported in 2013 SCC Online 6547 has held as follows: ? 5. Thus, from reading of the aforesaid Section, it is clear that if the offence alleged is committed by the Company, then the Company as well as all other persons, who at the time of commission of offence were incharge and responsible to the Company for the conduct of the business of the company, are deemed to be guilty of such offence and they are liable to be proceeded and punished accordingly.
13.The judgment of the Karnataka High Court cited supra will squarely apply to the facts of this case. In this case admittedly M/s.HCL Technologies limited has not been made as an accused and the petitioner has been directly prosecuted by showing him as the Principal Employer. The complaint filed by the respondent is not maintainable even on this ground.”
M/s.IL & FS Tamil Nadu Power Company Limited has not been included as an accused. That apart, the show cause notice was also not issued to the petitioner / accused and without any cause of action, the present complaint has been instituted as against the petitioner that too in the capacity of employer of M/s.IL & FS Tamil Nadu Power Company Limited.
-s/d-
Assistant Registrar(CS-I)
True Copy
Sub-Assistant Registrar
lok
To
1. The Deputy Director (BOCW), Kanchipuram,
Industrial Safety and Health,
A-28, Thiru-vi-ka Industrial Estate,
Guindy,
Chennai 600 032
2. The Chief Judicial Magistrate
Cuddalore.
3. The Additional Public Prosecutor,
High Court of Madras
Crl.O.P.No.24508 of 2015 and M.P.Nos.1 & 2 of 2015 SSD(CO) SP(08/03/2019)
2 issues framed by the court
Whether the prosecution of the Chairman of a company under the BOCW Act is maintainable when the company itself is not made an accused.
Whether the private complaint is barred by limitation as it was filed against the petitioner long after the limitation period.
Colour shows how this judgement treated each authority
Aneeta Hada Vs. Godfather Travels and Tours Private LimitedApplied¶44
(2012) 5 SCC 661 · Who else cites this
Anil Gupta Vs. Star India Private LimitedReferred¶19
(2014) 10 SCC 373 · Who else cites this
Aneeta Hada Vs. Godfather Travels and Tours Private LimitedApplied¶57
(2012) 5 SCC 661 · Who else cites this
3 provisions across 2 enactments
M.S.Srinivasan
Deputy Director (BOCW), Kanchipuram
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
