IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE G. NARENDAR CRIMINAL PETITION NO.7013 OF 2019 BETWEEN:
Mr. PRAVEEN N.K. EXECUTIVE VICE-PRESIDENT C/O. M/S. SOBHA LTD. ‘SOBHA’ DEVARABEESANAHALLI VILLAGE SARJAPURA, MARTHAHALLI OUTER RING ROAD, BELLANDUR POST BANGALORE-560103.
… PETITIONER (BY SRI. K. KASTURI, SR. COUNSEL FOR SRI. SRIBHOOMI YESASWINI K, ADV.) AND:
THE STATE OF KARNATAKA THROUGH THE INSPECTOR UNDER THE BUILDING AND CONSTRUCTION WORKERS (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, REP. BY THE ASSISTANT DIRECTOR OF FACTORIES MR. K.N. SAFEER AHMED DIV. 12, II FLOOR, KARMIKA BHAVAN BANNERGHATTA ROAD, BANGALORE-560029.
… RESPONDENT (BY SMT. NAMITHA MAHESH B.G. HCGP FOR R1) - - -
This Criminal Petition is filed under Section 482 of Cr.P.C., praying to (a) set aside the order dated 6.3.2019 in C.C.No.4522/2019 on the file of the 3rd Additional Chief Metropolitan Magistrate at Bengaluru at Annexure-A. (b) Quash the complaint dated 19.2.2019 in C.C.No.4522/2019 on the file of the 3rd Additional Chief Metropolitan Magistrate at Bengaluru at Annexure-‘B’.
This Petition coming on for Admission this day, the Court made the following:-
ORDER Heard the learned Senior counsel Sri.K.Kasturi along with learned counsel for the petitioner Sri.Sribhoomi Yesaswini K.
2. The petitioner is the Vice President of Company known as M/s. Sobha Limited and the development of the project namely Sobha Global Mall. The respondent No.2 is a contractor engaged by the said Company for executing certain civil works in the project. The learned Senior counsel would contend that the Trial Court has erred in taking cognizance under the Factories Act, 1948, when the complaint has been lodged by the Officer under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and that the same reflects the non-application of mind on the part of the Trial Court and on that short ground alone, the petition requires to be ordered in favour of the petitioner. It is further contended that the complaint is bad on account of the failure of the complainant to array the Company as a party to the proceedings. That in the light of Section 53 of the Factories Act, the liability could have been cast upon the petitioner only, on the Company being accused of having committed the offence and that in the absence of any accusation against a Company, the complaint against the petitioner alone is not maintainable.
3. The learned Senior counsel would further invite the attention of the Court to the definition of an ‘employer’. Section 2(1)(i)(iii) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act defines an employer as under:
“in relation to a building or other construction work carried on by or though a contractor, or by the employment of building workers supplied by a contractor, the contractor”
4. The learned Senior counsel would contend that in the light of the said definition, no liability could have been fastened on the Company as even as per the complaint, the admitted case of the complainant is that the injured workman is employed by M/s.Rateesh K.S.
5. Per contra, the learned HCGP would fairly admit the error has arisen on account of the omission to array the Company as a party to the proceedings. The learned HCGP would also fairly concede the complaint averment that the injured workman is an employee of the contractor one Rateesh K.S., i.e., the accused No.2. If that be the stated case of the Department, then the complaint must necessarily fail as it falls foul of the provisions of Section 53 of the Factories Act. The omission to array the Company goes to the root of the matter.
6. The petitioner is not being primarily responsible and the provisions of the Act making it mandatory to array the Company as a party. The omission vitiates the proceedings. Furthermore, as noted above, the injured workman is an employee of the contractor. The workman is also present before the Court and he would submit that presently he has established a shop and running the same in his native village.
7. In view of the above discussion, this Court is of the considered opinion that this petition deserves to be allowed and accordingly, allowed.
The proceedings registered as C.C.No.4522/2019 on the file of the 3rd ACMM, Bengaluru stands quashed insofar as the petitioner is concerned.
8. The learned Senior counsel would submit that the Company would voluntarily pay an amount of `2,50,000/- and that the said statement is made on instructions of the petitioner.
The submission is placed on record.
The gesture of the Company to alleviate the living conditions of the workman is appreciated.
It is submitted that the payment should be made within two weeks.
In the event, the workman desires or initiates proceedings for any compensation and in the event any compensation being awarded, it is clarified that the Company would be entitled to deduct the amount paid by it today out of the compensation that may be awarded.
Sd/- JUDGE RV