Elamaran Perumal (Law Officer) 07 September 2011

Prosecution under the bocw act-1996

Dear Legal Luminaries,

We are a 50%- 50% joint venture commany formed between a CPSU and SPSU to put up a big power project. This entity has been registered as a Pvt. Ltd company under the Companies Act-1956.

The building and construction activities for this Project had started in 2007 through various contractors/agencies and they are continuing till date

All along, for the last 4 1/2 years ,we have been getting contruction action activities done through contractors only. Now, all of a sudden, the Inspector of Factories has recently lodged a private complait before the Judicial Magistrate Court in a near by town.

15 days ago , we were slapped with four summons in STC Cases for prosecuting a former C.E.O of our Company. The summons have been issued in name of the individual officer but neither in the name of the company nor in the name of Designation of the Officer concerned. He had resigned 4 months back and joined some other Company in a neigbhoring sate.

Ironically, both BOCW ACT-1996 and BOCW CESS ACT-1996 have so far not been notified and implemented in Tamil Nadu. This being the ground reality, how can the I.O.F lodge a private complaint before the J.M.Court which in turn has now started prosecuting our former C.E.O for the simple reason that he was in charge of the Plant when some alledged contraventions of Safety norms took place.

The individual officer had not done any thing wrong except being the C.E.O of this Company at that time. kindy enlighten me on the ponit - Whether the Inspector of Factories, who is supposed to be Inspector of Inspection of Building & Construction can lodge a Pvt complaint to the J.M Court ? We feel that the summons have been served on the individual wrongly. Moreover, we as a company always respect and appreciate the contributions made by our former employees. We do not want to shut our eyes simply because the officer concerned had already left the company.

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Elamaran Perumal (Law Officer) 07 September 2011

Of course, to the best of our ability, we have been taking every possible legal steps to get him out of this malicious prosecution. When both the BOCW Act and BOCW Cess have not been notified or implemented, how can a prosecution of this nature take place ? The officer conerned had taken the best possible safety measures in the construction site when he was C.E.O As a law officer, I feel summons should have mentioned the Company as the first Accused.

How can the I.O.F drag the name of the individual officer, instead of the name of the company. Now, the former Officer of our company is in trouble for not being at fault.

We engage only contractors for carrying out all project related construction activities. We as a company are no where in the picture during the construction stage. Even if we go by the definition of the word "Employer" ,we cannot be brought under that bracket. Clause - iii of Section-2 of the BOCW Act-1996 speak only about Contractor as Employer especially during the construction stage of a big infrastructure project. Because, the owner Company is nowhere in the picture at that stage. For all practical and substantial purposes, the legal compliance under these two Acts is to be done by the Contractors only.

Jacob Pratap (service) 24 December 2011

Dear Elamaran,

The BOCW Act and Cess Act has been on statute book since 1996. They are published in Govt of India's Gazette and any gazetted item is treated to be legally known to the general public.

As far as the definition of 'employer' in the BOCW Act is concerned, it starts with the opening words:- employer in relation to an establishment means the owner thereof and includes...... the contractor. You may notice that by including contractor as employer, the owner of a building and other construction work is not excluded.

Question does not arise that the govt of TN failed to notify that the BOCW Act and the Cess Act have not become enforcable in the State. You must look for the date of the implementation.

The Inspecator of Factories must have also been declared 'Inspector' by the State of TN under the BOCW Act, 1996 and that is why he has launched prosecution against the CEO of your company. He must have inspected the premises and also must have given notice before prosecution.

There is a provision for imprisonment of defaulters under the BOCW Act. If only the Company is prosecuted, to who the magistrate would sent to jail. Obviousely, some responsible person who was incharge at that time must be made accountable for any lapses occured during his tenure.

According to you only the contractor is involved and is responsible for construction. Is work done by him not supervised by the personnel of the company. If your company is doing so, it has also deployed building workers.

Find out answer regarding above observations.

Best wishes,

Jacob Pratap