Sachin Gaur vs Inspector

This petition has been filed under Section 482 of Cr.P.C. for quashing the proceedings of criminal case No.2453/2006 (Inspector, under Building and

Other Construction Workers Act, 1996 Vs. S.K. Dudeja & Ors.) presently pending before the court of Chief Judicial Magistrate, Khandwa (M.P.) for

the offence punishable under Sections 47 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act,

1996 (hereinafter referred to as the Act’) for non compliance of the provisions contained in the M.P. Building and other construction Workers

(Regulation of Employment and Conditions of Service) Rules, 2002. (Hereinafter referred to as the said Rules).

Brief facts of the case which are relevant for disposal of this petition are that The Narmada Hydroelectric Development Corporation Ltd. has

undertaken a project in the name of “Omkareshwar Pariyojna†for building a 520 Megawatts Hydro Power Plant. The aforesaid work of building

a 520 Megawatts Hydro Power Plant is being done by Ms. J.V.S. Consortium which includes the following partners:

A. M/s Jaiprakash Associates Ltd. (for Civil works)

B. M/s Voith Siemens (For Electrical and Mechanical works.

Applicant Sachin Gaur was the project director of that project. In the aforesaid construction work M/s Jaiprakash Associates Ltd. used a tower crane

to lift shuttering, cement etc. On 17/01/2006 During work said tower crane was accidented. In that accident, six labourers sustained injuries and one

of the injured namely Piyush was died during treatment. On that, on 19/01/2006 P.P. Pateria, Inspector, Building and Other Construction Workers

(Regulation of Employment and Conditions of Service) Act 1996 carried out an inspection of the project site and during the course of the said

inspection, certain breaches were noticed by the respondent with reference to the rules framed under the said Act under the nomenclature of the

M.P. Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002. Therefore, he sent the report to

Labour Commissioner/ Chief Inspector Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996.

On that, show cause notice was also issued by the Chief Inspector to the employer “NHDC†and the contractor and after considering the reply of

the said notice Chief Inspector gave the sanction for prosecution of applicant and other four co-accused. Upon receiving a sanction, respondent lodged

a complaint against the petitioner and other four accused before Chief Judicial Magistrate Khandwa. On that complaint, criminal case No.2453/2006

was registered and on that complaint learned C.J.M. took cognizance against present applicant and other co-accused. Being aggrieved from that order

applicant filed this petition.

Learned counsel for the applicant submitted that at the time of offence applicant was Director of Jaypee Infratech Ltd. and he has no nexus with the

act. It is further submitted that according to Section 55 the Building and Other Construction Workers (Regulation of Employment and Conditions of

Service) Act, 1996 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 commission of the offence came to the knowledge of the Director-General, the Chief Inspector, while from the

record it is clear that the alleged accident took place on 17/01/2006 and the Inspector under the Act carried out an inspection on 19/01/2006. So

complaint ought to have been filed latest by 18/04/2006. while it is revealed from the record that complaint was filed on 29/05/2008. Although in the

order sheet dated 29/05/2008 of the case, it is mentioned that complaint was filed on 18/04/2006 but there is no evidence on record to show that

complainant/respondent filed said complaint on 18/04/2006. So complaint is time barred. But trial court without considering this fact and without

hearing applicant and other co-accused on the point wrongly registered the complaint by order dated 12/10/2012 for alleged violation of Rule 55(a)(11),

Rule 36 and Rule 210 (1) and (7) of the Madhya Pradesh Building and Other Construction Workers (Regulation of Employment and Conditions of

Service) Rules, 2002.

He further submitted that there cannot be any vicarious liability in criminal matters for offence committed by any company or organization and its

employees can not be prosecuted unless it is specifically pleaded and demonstrated that the concerned employees were responsible for alleged

offence if any. While in the complaint no pleading has been made regarding act of the complainant so as to demonstrate that the petitioner has

committed any offence or was in charge of and was responsible for the conduct of business of the company. Even according to section 53 of the act,

without impleading company as an accused complaint is not sustainable against applicant. In this regard he also place reliance on this Court order

dated 17/04/2017 passed in Criminal Revision No.662/2013 P. Sadanand Reddi and Another Vs. State of Madhya Pradesh.

He further submitted that alleged violation are with respect to employer and not contractor. The required compliance under Rule 55(a)(11), Rule 36

and Rule 210 (1) and (7) are for the ‘employers’ and the contractor has nothing to do with the compliance.

He further submitted that authority without applying his mind gave sanction against the complainant, so sanction given by the authority is not a valid

sanction. In this regard he also placed reliance on this Court’s judgement passed in WP No.5427/2016 ITC limited vs. State of Madhya Pradesh

and others.

On the strength of aforementioned arguments learned senior counsel prayed for quashing of the order dated 12/10/12 passed by C.J.M. against the

applicant in criminal case No.2453/2006 and also proceeding of that criminal case.

Learned counsel for the State opposed the prayer and submitted that complainant/Inspector found some irregularities during inspection and on that

basis he filed complaint against the applicant. Applicant is the Project Director/incharge of said project, so he is liable for the violation of the rules as

found by the inspector during inspection.

This court has gone through the record and arguments put forth by the learned counsel of the parties. As far as the validity of sanction is concerned,

the facts of the case ITC limited vs. State of Madhya Pradesh (Supra) relied by the learned counsel of the applicant and the facts of the cases

(Mansukhlal Vithaldas Chauhan Vs. State of Gujarat AIR 1997 SC 3400, Jaswant Singh Vs. State of Punjab AIR 1958 SC 124, P.L. Tatwal Vs.

State of M.P AIR 2014 SC 2369 and CBI Vs. Ashok Kumar Aggarwal AIR 2014 SC 827) relied by the coordinate bench of this court in that

judgement do not match with the present case.

In the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (Supra) Apex court at the time of judgement after evaluating all evidence produced

by the prosecution regarding sanction found sanction invalid because it was given by the authority on the direction of the high court in a writ petition.

In the case of Jaswant Singh Vs. State of Punjab (Supra) Apex court did not hold that sanction given by the authority was not valid sanction. In the

case of P.L. Tatwal Vs. State of M.P.(Supra) Apex court considering the peculiar facts and circumstances of that case remanded the case to trial

court with the direction that “trial court should conduct a proper inquiry as to whether all the relevant materials were placed before the competent

authority and whether the competent authority has referred to the same so as to form an opinion as to whether the same constituted an offence

requiring sanction for prosecution and did not quash the proceeding on the ground that sanction is not valid.â€​

In this case apex court also held that “Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say

that the validity should be examined during the stage of inquiry or at pretrial stage.†In the case of CBI Vs. Ashok Kumar Aggarwal (Supra) also

Apex court relying on its earlier judgments passed in Dinesh Kumar Vs.Chairman Airport Authority of India & Anr. AIR 2012 SC 858 and Parkash

Singh Badal & Anr. Vs State of Punjab & others AIR 2007 SC 1274 again held that in a case where validity of the sanction order is sought to be

challenged such challenge can only be made in the course of trial.

So from the above pronouncement of apex court, it is clear that the validity of sanction can not be examined at pre trial stage. Applicant is free to

challenged the validity of sanction during trial of the case at appropriate stage if occasion so arises.

As far as the objection of complaint being time barred as raised by the applicant is concerned, section 55 of the Act prescribes limitation for filing of

complaint to be three months from the date on which the alleged commission of the offence came to the knowledge of the Director General, the Chief

Inspector. Section 55 of the Act reads as thus:-

“Section 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 of

on which the alleged commission of the offence came to the knowledge of the Direction General, the Chief Inspector or an Office bearer of a

voluntary organization or, as the case may be, an offence bearer of the concerned trade union.â€​

While it appears from the record that the alleged accident took place on 17/01/2006 and the Inspector under the Act carried out an inspection on

19/01/2006, so complaint ought to have been filed latest by 18/04/2006 while the complaint was placed before trial judge for the first time on

29/05/2008 and learned trial judge passed the order regarding taking cognizance on 12/10/12. Although in the order sheet of the case dated 29/05/2008,

it is mentioned that complaint was filed on 18/04/2006 but there is no evidence on record to show that on 18/04/2006 that complaint was placed before

concerned judge.

Although it appears from the order dated 29/05/2008 passed by the learned C.J.M. that he after inquiring the matter observed that complaint was filed

by the Inspector on 18/04/2006. But that order was passed by him on 29/05/2008 while order of taking cognizance against applicant and other co-

accused from the complaint was passed by him on 12/10/12. So it was incumbent on the court to have heard the applicant and other co-accused

before passing that order. Because this order was going to have an adverse effect on the applicant and other co-accused and from that order they

were debarred from taking objection that the complaint was time barred. So order dated 12/10/06 and also order dated 29/05/08 is hereby quashed and

it is directed that learned trial court again pass the order in this regard after giving notice to other co-accused and hearing both the parties who

appeared before the trial court after notice.

Apex Court in the case of Bhushan Kumar v. State (NCT of Delhi) AIR 2012 SC 1747, observed that “It is inherent in Section 251 of the Code

that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the

bounden duty of the trial Court to carefully go through the allegations made in the charge- sheet or complaint and consider the evidence to come to a

conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of

the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section

239 of the Code.â€​

As regard to other objections of the applicant in view of pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra), applicant is

free to urge the pleas taken herein before the trial court at the hearing on the point of limitation and if it is so done, then trial court shall deal with the

pleas raised herein by passing a speaking and reasoned order.

Purely as an interim measure, till the arguments on the point of whether complaint is time barred or not and other issues are concluded, personal

appearance of applicant be not insisted upon by the trial court upon applicant’s filing an application under Section 205 of Cr.P.C. alongwith his

affidavit with the following undertaking: -

a. that the proceedings of the case shall be regularly conducted by counsel (whose name shall be disclosed in application), who shall appear on behalf

of petitioner(s) on every hearing and will not seek adjournment;

c. that the applicant shall appear in person as and when directed in future to do so; and

It is made clear that if applicant delays the proceedings before the trial court, then he shall not have the benefit of exemption from personal

appearance extended by this Court.

Applicant is directed to appear before the trial court through his counsel on 28/09/2018. If applicant does not appear before trial court on fixed date,

trial court is free to pass an order after notice to remaining accused regarding whether complaint is time barred or not. If remaining accused also do

not appear before trial court even after service of notice, trial court is free to pass order in their absence.

Accordingly, the petition is disposed of.