Madras High Court
M/S.Va Tech Wabag Limited vs The State on 27 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.Nos.1202 and 1204 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.Nos.1202 & 1204 of 2022
and
Crl.M.P.Nos.457 & 458 of 2022
M/s.VA Tech Wabag Limited,
Lead Partner in Wabag-IDE Consortium,
Contractor/Employer,
Represented by Mr.Rajiv Mittal,
Managing Director. .... Petitioner in
both Crl.OPs
Vs
The State
Represented by its Deputy Director BOCW,
Kancheepuram,
Director of Industrial Safety and Health,
Chennai – 32. .... Respondent in
both Crl.OPs
Common Prayer : Criminal Original Petition is filed under Section 482
of Criminal Procedure Code, to call for the records pertaining to the
complaint filed in C.C.Nos. 201 & 202 of 2020, pending on the file of the
Chief Judicial Magistrate, Chengalpattu and quash the same.
For Petitioner : Ms.H.Kalpana
(in both Crl.OPs)
For Respondent : Mr.A.Gopinath
(in both Crl.OPs) Government Advocate (Crl.Side)
https://www.mhc.tn.gov.in/judis
1/18
Crl.O.P.Nos.1202 and 1204 of 2022
COMMON ORDER
These petitions have been filed to quash the complaints filed
by the respondent in C.C.Nos.201 & 202 of 2020 respectively, pending
on the file of the learned Chief Judicial Magistrate, Chengalpattu, thereby
taken cognizance for the offences under Section 40(1)(2)(q) Rule 125(a)
and Section 44 Rule 5(5), Section 40(1)(2)(u) Rule 49, Section
40(1)(2)(t) Rule 223(a)(ii)&(c) of the Building and Other Construction
Workers (Regulation of Employment and Conditions of Service) Act,
1996 (hereinafter referred to as “the BOCW Act”) and Rules 2006,
respectively.
2. Though separate complaints lodged by the respondent, the
occurrence was one and the same and filed two complaints as against the
petitioner for two violations. The respondent lodged complaint alleging
that the petitioner is the Managing Director of M/s.VA Tech Wabag Ltd.,
and the said company had entered into a consortium agreement with IDE
Technologies Ltd., for the performance of the contract undertaken from
Chennai Metropolitan Water Supply and Sewerage Board. The said
contract had been entered between the parties to design and built a 45
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
MLD capacity tertiary treatment reverse osmosis plant at Koyambedu
and to operate the same for 15 years including supply, laying and
maintenance of MS transmission main for conveying product water to
various industries.
3. While being so, on 18.08.2019, when earthmover was
deployed to lay underground pipelines to transmit treated sewerage water
from Koyambedu to various industries, at the site of Kundrathur Porur
main road, Kundrathur, there was four feet height wall situated near the
excavation. When the operator of the earthmover while filling the trench
after pipes were laid, the wall situated near the pipeline collapsed and fell
down over the temporary shelter raised in the pavement. Due to which, a
girl child was stuck under collapsed debris and succumbed to death. On
the complaint, FIR has been registered in Crime No.1030 of 2019 for the
offence under Section 304(a) of IPC as against the operator of the
earthmover and two others by the Inspector of Police, Kundrathur Police
Station. In the said FIR alleged that, there was a complete violation of
safety rules prescribed under the BOCW Act and its Rules.
4. The learned counsel appearing for the petitioner submitted
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
that after registration of FIR, show cause notice was issued to the
petitioner, in pursuant to the inspection conducted by the respondent on
20.08.2019. A detailed reply was given thereby denying the allegations
raised by the respondent in the show cause notice. The operator of the
earthmover was not a direct employee of the petitioner and he was
employed through a sub-contractor. That apart, the deceased family was
compensated for a sum of Rs.2,00,000/- by the settlement dated
19.08.2019.
4.1. He further submitted that the petitioner is being the
Managing Director of the company, he is not responsible for the day to
day supervision of the activities at the site. The company is not arrayed as
accused in both the complainants. The safety policy and standard adopted
or practiced by the petitioner's company in the different countries and it
was awarded several awards for the safety measurement followed by the
petitioner.
4.2. He also submitted that the complaints itself barred by
limitation. As per Section 55 of the BOCW Act, the complaint should be
filed within a period of three months from the date of knowledge of the
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
occurrence. Even according to the respondent, the accident was known to
him very next day viz., on 19.08.2019. However, the complaints were
lodged on 19.11.2019 after the period of three months. In support of his
contention, he relied upon the following orders passed by this Court :-
(i) Crl.O.P.No.24510 of 2015 dated 06.02.2019 in the case of
M.S.Srinivasan Vs. The Deputy Director (BOCW)
(ii) Crl.O.P.No.17580 of 2021 dated 29.08.2022 in the case
of Sylvanus King Peter Vs. The State.
5. The respondent filed counter and the learned Government
Advocate (Crl. Side) appearing for the respondent submitted that after the
occurrence, the respondent made inspection on 20.08.2019 and thereafter
issued show cause notice to the petitioner. On perusal of the explanation
submitted by the petitioner, the respondent lodged complaint on
19.11.2019. Therefore, the complaints were filed very much within the
time viz., within three monts.
5.1. On inspection, it was also found that six years old girl i.e.,
the deceased who lived along with her parents in one of the make shift
huts on the pavement of Porur-Kundrathur main road, near Parimalam
cinema theater. There were around 15 other families living in the
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
temporary shelters. On 18.08.2019, when the deceased girl was sleeping
in the temporary shelter, the earthmover which was filling the trench after
the pipes were laid, had hit the adjacent wall situated near the temporary
shelter accidentally. Therefore, the wall collapsed and fell down over the
temporary shelter due to which, the victim girl died.
5.2. He further submitted that the definition of “employer”
includes owner, contractor and sub-contractor etc. The petitioner failed to
provide safety arrangements like under-pinning, sheet piling, shoring,
bracing or other similar means to support the wall adjoining the work
place. As per Section 53(1) of the BOCW Act, where an offence under is
Act has been committed by a company, every person who at the time of
offence was committed, was in charge of, and was responsible to, shall be
liable to be proceeded against and punished accordingly. Therefore, the
petitioner held liability for the offence under the Act.
6. Heard the learned counsel appearing on either side and
perused the material placed before this Court.
7. The petitioner is the Managing Director of M/s.VA Tech
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
Wabag Limited. The said company had entered into a consortium
agreement with IDE Technologies Limited for the performance of the
contract undertaken from Chennai Metropolitan Water Supply and
Sewerage Board. Accordingly, the petitioner's company engaged sub-
contractors to lay underground pipe line to transmit treated sewerage
water from Koyambedu to various industries at the site of Kundrathur
Porur main road.
8. On 18.08.2019, the petitioner's company's sub-contractors
engaged earthmover and its operator. After laying pipeline, while filling
the trench, the earthmover viz., JCB touched the wall which was located
adjacent to the pipeline and as such it was collapsed and fell down over
the temporary shelter raised in the pavement. Inside the temporary
shelter, a minor girl was sleeping and she succumbed to injuries. In
pursuant to the death of the deceased, FIR in Crime No.1030 of 2019 was
registered for the offence under Section 304(A) of IPC, as against the
operator of the earthmover and two others.
9. In this case, on the submission of the learned counsel
appearing for the petitioner, the following points have arisen for
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
determination :-
(i) Whether the complaints can be sustained without adding the
company as an accused?
(ii) Whether the complaints can be sustained when it were filed
beyond the period of three months?
10. Admittedly, the petitioner is the Managing Director of the
Company called M/s.VA Tech Wabag Ltd. The company only entered into
consortium agreement with IDE Technologies Ltd., for the performance of
the contract undertaken from Chennai Metropolitan Water Supply and
sewerage board. After the occurrence, show cause notice was issued only
to the Managing Director of the company and no show cause notice
issued to the company. Section 53 of the BOCW Act, which provides
where an offence committed by a company, the company shall be deemed
to be guilty of the offence. Even assuming that the offence committed by
the petitioner, the complaint was not filed as against the company, and it
has been filed only as against the petitioner viz., Managing Director of the
said company.
11. In this regard, it is relevant to extract the provision under
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
Section 53 (1) of the BOCW Act, 1996, which reads as follows:
“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.”
12. 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 in the case of Babu Bhardagond Vs. The State 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
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
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,-
(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; 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
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
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,
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
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.
6. Similar provision contained in Section 141
of the Negotiable Instruments Act (in short 'the NI Act')
came up for consideration before the larger Bench of
Apex Court in the case of ANEETA HADA Vs.
GODFATHER TRAVELS AND TOURS PRIVATE
LIMITED reported in 2012(5) SCC 661. The Apex Court
has held that to prosecute the functionaries of the
Company for the offence committed by the Company,
there should be specific averments in the complaint to
the effect that such person/s was/is incharge of and
being responsible for conduct of business of the
Company and in the absence of such specific averment,
the functionaries of the Company cannot be prosecuted.
It is further held in the said decision that commission of
offence by the company is an express condition
precedent to attract the vicarious liability of others. It is
further held that the words "as well as the company"
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
appearing in Section make it clear that when the
Company can be prosecuted, then only persons
mentioned in the other categories could be vicariously
liable for offence subject to the averments in the petition
and proof thereof.
7. Section 141 of the N.I. Act, is in analogous
to Section 53 of the Act. Therefore, the principles of law
laid down in Aneeta Hada's case squarely applies to the
facts of the case. Admittedly, in the case on hand the
Company which is the principal offender has not been
prosecuted. The petitioner in the present case is an
Executive Director of the company and he is being
prosecuted in that capacity.
8. Therefore, in the light of the law laid down
in the aforesaid decision, the prosecution launched
against these petitioners as functionaries of the
company, is not maintainable since the company is not
being prosecuted. In this view of the matter, the
prosecution launched against these petitioners are liable
to be quashed.
9. Accordingly, the petition is allowed. The
prosecution launched against these petitioners in C.C.
No. 191/2013 on the file of the Metropolitan Magistrate
Traffic Court - I, Mayo Hall, Bangalore City, is hereby
quashed.”
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
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.”
Thus it is clear that without adding the company as an accused, the other
Directors including the Managing Director alone cannot be prosecuted.
Hence, the impugned complaint cannot be sustained.
13. Insofar as the limitation is concerned, the occurrence was
taken place on 18.08.2019. It was published in the Daily Thanthi
newspaper on 19.08.2019. Therefore, the respondent had knowledge
about the accident on 19.08.2019 itself. However, the respondent made
inspection only on 20.08.2019. On the basis of the inspection, the
respondent issued show cause notice on 09.09.2021 to the petitioner.
Therefore, the limitation to launch prosecution starts from 20.08.2019.
14. As per Section 55 of the BOCW Act, the limitation for
launching prosecution is three months from the date on which the alleged
commission of offence came to the knowledge. It is relevant to extract the
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
provision under Section 55 of the BOCW Act as follows :-
“55. Limitation of prosecutions.- No court shall
take congizance of an offence punishable under this Act
unless the complaint thereof is made within three months
from the date on which the alleged commission 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.”
15. The Section 12 of the Limitation Act, 1963 says about the
exclusion of time in legal proceedings. In sub-Section (1) there on
provides that in computing the period of limitation for any suit, appeal or
application, the day from which such period is to be reckoned, shall be
excluded. The applicability of this provision to the petitions under the
BOCW Act is not excluded by the provisions of the Act.
16. Section 9 of the General Clauses Act, 1897 provides that in
any Central Act, when the word “from” is used to refer to commencement
of time, the first of the days in the period of time shall be excluded.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
Therefore, the date on which the respondent came to knowledge about the
occurrence shall be excluded. Hence, the limitation commenced from
20.08.2019. A month does not refer to a period of thirty days, but it refers
to the actual period of a calender month. Therefore, when the period
prescribed is three months from a specified date, the said period would
expire in the third month on the date corresponding to the date upon
which the period starts. As a result, depending upon the months, it may
mean 90 days or 91 days or 92 days or 89 days.
17. In the case of hand, the limitation starts from 20.08.2019
and the three months time would expire on 18.11.2019. Therefore, the
respondent ought to have filed complaint on or before 18.11.2019.
Whereas the impugned complaints were lodged on 19.11.2019.
Therefore, the complaints itself are barred by limitation.
18. In view of the above discussions, both the complaints
lodged by the respondent cannot be sustained and liable to be quashed.
Accordingly, the complaints filed in C.C.Nos.201 & 202 of 2020,
pending on the file of the learned Chief Judicial Magistrate, Chengalpattu,
are hereby quashed and both the Criminal Original Petitions stand
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
allowed. Consequently, connected miscellaneous petitions are closed.
27.11.2023
Lpp
Index:Yes/No
Internet:Yes/No
To
1.The Chief Judicial Magistrate,
Chengalpattu.
2.The Deputy Director BOCW,
Kancheepuram,
Director of Industrial Safety and Health,
Chennai – 32.
G.K.ILANTHIRAIYAN,J.
Lpp
Crl.O.P.Nos.1202 & 1204 of 2022
and
Crl.M.P.Nos.457 & 458 of 2022
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.1202 and 1204 of 2022
27.11.2023
https://www.mhc.tn.gov.in/judis
