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M/s. Express Infrastructure Private Limited, Represented by Assistant Manager (Water Treatments), Chennai v/s State by: The Assistant Commissioner of Police, Chennai & Others

    Crl. O.P. No. 1809 of 2020 & Crl. M.P. No. 1139 of 2020
    Decided On, 01 July 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE G.K. ILANTHIRAIYAN
    For the Petitioner: C. Manishankar, Senior Counsel, P.R. Dhilip Kumar, Advocates. For the Respondents: R1 & R2, A. Gopinath, Government Advocate (Crl.Side), R3, No Appearance.


Judgment Text
(Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records in Crime No.515 of 2019 dated 12.11.2019 on the file of the first respondent, the Assistant Commissioner of Police, D-2, Anna Salai Police Station, Chennai - 600 002 and quash the same.)

1. This petition has been filed to quash the F.I.R. in Crime No.515 of 2019 dated 12.11.2019, on the file of the first respondent, viz., the Assistant Commissioner of Police, D-2, Anna Salai Police Station, Chennai - 600 002 as against the petitioner.

2. Based on the complaint lodged by the third respondent, the second respondent police registered the FIR in Crime No.515 of 2019 for the offence under Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and Section 304 (i) of IPC r/w Section 3(2)(v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015. The FIR has been registered as against one K.Dhandapani, Proprietor of Express Avenue, Manager of Express Avenue and others.

3. The third respondent lodged a complaint alleging that on 11.11.2019, at about 10.30 P.M, the first accused/private contractor had brought four individuals including the de-facto complainant for the purpose of Sewage Treatment Plant (herein after called as STP) tank cleaning in Basement-3 of the Express Avenue Mall, Royapettah, Chennai. The first accused had deployed four individuals to clean the STP tank with safety devices and thereafter they were directed to remove the safety devices and to clean the STP tank. After cleaning the second STP tank, when they were about to clean the third STP tank, the de-facto complainant have got fainted and immediately reported the difficulty in continuing the work. However, he was compelled to clean the STP tank by the first accused and immediately the poisonous gas attacked him, therefore he raised his voice. After hearing the voice of the defacto complainant, his brother immediately went into the STP tank and he fainted due to poisonous gas. Due to which, he died. Thereafter, the de-facto complainant was taken to hospital and had treatment. Hence the complaint.

4. Mr.C.Manishankar, the learned Senior Counsel appearing for the petitioner submitted that the petitioner is arrayed as one of the accused and he is the Assistant Manager of M/s.Express Infrastructure Private Limited. Though, the Mall was called as Express Avenue, the Company's name is M/s.Express Infrastructure Private Limited. He further submitted that on 11.11.2019, the contractor one K.Dhandapani, who is arrayed as first accused, had deployed four individuals with safety gears and they were asked to commence the work of cleaning of STP tank, which is situated in Basement-3 in the Express Avenue Mall.

4.1. The petitioner entered into a contract dated 01.11.2019 with M/S.ENR Enterprises represented by its CEO, K.Dhandapani (contractor/1st accused) through Work Order No.EH/WO0290/19-20 for the purpose of cleaning the STP tank at Basement-3 of the Express Avenue Mall, Chennai. Subsequent to the said contract, on 11.11.2019 at about 10.30 P.M, the 1st accused had brought four individuals, including the third respondent to clean the aforesaid tanks. Therefore, the petitioner is no way responsible for the untoward incident happened in the process of cleaning of STP tank.

4.2. He further pointed out that as per the contract, the contractor is liable for the damages done and he shall be responsible for all the injury to persons, animals or things and for all structural and decorative damage to property, which may arise due to or out of the act of omission or commission of the Contractor or its representatives, including but not limited injury arising due to or out of negligence, accident, or any other other cause whatever in any way connected with carrying out with the work order. Further, according to the contract the contractor shall confirm to the provisions or any Statutes, Rules, Regulations as may be applicable to the works and abide by them.

4.3. Accordingly, the first accused was engaged with the petitioner to do the works in the Express Avenue. Therefore, the petitioner is not at all liable to be punished for any offence as alleged by the prosecution. The petitioner had absolutely no role in engaging the deceased for the purpose of carrying the cleaning process of the STP tank. The contract clearly states that all the precautions and safety devises and responsibility lies with the contractor and the employer will be held liable for any injuries or damages caused during the course of the work. In fact, the petitioner company already paid a sum of Rs.10,00,000/- as compensation to the family of the deceased. He further submitted that no offence under Section 304 of IPC had made out as against the petitioner, since no ground to murder had been made out. The main ingredients of Section 304 are that an intention to kill or an intention to cause bodily harm likely to result in death or performing an act with the knowledge that the said action might result in loss of life.

4.4. Insofar as, the offence under Section 3(2)(v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 is concerned, the learned counsel submits that it is merely added to harass the petitioner with malafide intention, since no offence is made out as against the petitioner under Section 3(2) (v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015. Except the word found in the F.I.R., and that the deceased belongs to SC and ST community, no other allegations to attract any of the offence under SC and ST Act is made out. To attract these offences, the offender must have knowledge that the victim belongs to SC and ST community and act in the manner to harm for the sole reason that the victim belongs to SC and ST community. In this case, the petitioner had no knowledge that the victim belongs to SC/ST community.

4.5. Insofar as, the offence under Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 is concerned, the petitioner never violated any of the provision under the Act, since the entire work was already engaged to the Contractor / first accused. Even assuming that the petitioner had engaged four persons to clean the STP tank, the Section 2(g) defines "manual scavenger", Section 2(d) defines "hazardous cleaning". Section 7 of the Act deals the Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks. Accordingly no person, local authority any agency shall, from such date as the State Government may notify which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank. Section 36 provides to make rules by the Government.

4.6. Accordingly, the Government made the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 in Rule 2(b) defined about the cleaning devices. Rule provides obligations of employer towards employees engaged in the cleaning of sewer or septic tank. Accordingly, no person shall be allowed to clean the sewer manually with the protective gear and safety device except certain works. Rule 4 envisages that any person engaged to clean a sewer or Septic Tank shall be provided by his employer, protective gear and safety device including but not limit to the certain areas. Therefore, any person engaged to clean a Sewage or Septic tank shall be provided protective gears and safety devices.

4.7. In the case on hand, though the petitioner provided all protective gear and safety devices to the persons who were engaged for cleaning the STP tank, the Contractor directed the employees to remove the safety devices and continue to work. Therefore the petitioner cannot be held liable for the offence committed by the Contractor.

5. Per contra, the learned Government Advocate (Crl. Side) appearing for the respondent Police submitted that the Act itself prohibits from engaging manual labour to clean the STP tanks. Section 7 is very clear that no person is engaged for hazardous cleaning of Sewage or Septic tanks. He also pointed out Rule 3 (e) that any circumstances, when it is absolutely necessary to have manual sewage cleaning, after the CEO of the local authority has permitted to do so after recording in writing the specific valid reasons for allowing such cleaning.

5.1. In the case on hand, admittedly, the petitioner never obtained any permission from the local authority to clean the Septic tank by manual sewage cleaning. Admittedly, the deceased belongs to SC and ST community and after knowing their community, they were engaged to cleaning the STP tank. Therefore, the offence under Section 3(2) (v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 is clearly made out.

5.2. In support of his contention, he relied upon the judgment of Hon'ble Supreme Court reported in SCC (201) 11 in the case of Safai Karamchari Andolan and others Vs Union of India and others in which the Hon'ble Supreme Court of India held that, if the practice of manual scavenging has to be brought to a close and also to prevent future generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers will need to include:

(a) Sewer deaths - Entering sewer lines without safety gear should be made a crime even in emergency situations. For each such death, compensation of Rs.10 lakhs should be given to the family of the deceased.

Further, it directed all the State Governments and the Union Territories to fully implement the directions and take appropriate action for non implementation as well as violation of provisions contained in the Act of 2013.

6. Heard Mr.C.Manishankar, the learned Senior Counsel for the petitioner and Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for the respondents 1 and 2 and perused the materials available on record.

7. There are three named accused and others in this case, in which, the petitioner is arrayed as third accused. The FIR has been registered in the name of proprietor of the M/s.Express Infrastructures Private limited and represented by its Assistant Manager, who is arrayed as A2 and A3. On 11.11.2019, the first accused has deployed four individuals with safety gears and they were asked to commence the work of cleaning the STP tank. After completions of two tanks, the third respondent was got down into the third tank to complete the cleaning work and in a short while, he felt suffocation and immediately his brother rushed to the tank and had taken out the third respondent from the sewage tank. However, his brother got stuck in the septic tank and lost consciousness. Immediately he was taken to hospital, where the doctors declared that the deceased as ''brought dead''.

8. On a perusal of records, it revealed that the petitioner had entered into a contract with the first accused on 01.11.2019, to carry out all the works as per the specifications and strictly in accordance with the drawings, details and instructions and in conformity Instructions, Specifications, General Terms and Special Terms (''Additional Conditions'') as attached with the contract. It also revealed that, to employ suitable skilled person to carry out the works, regularly supervise and monitor the progress of the work who are responsible for all security, watch and ward arrangements at site till handing over the works to the workers.

9. Admittedly, the first accused, engaged four persons to clean the STP tanks, who is a contractor of the petitioner herein. Therefore the petitioner had no role in engaging the deceased for the purpose of carrying out the cleaning process of the STP tanks. Admittedly the petitioner have entered into the contract with M/s.ENR enterprises represented by its CEO one K.Dhandapani who is A1 herein and the contract merely stated that all the precautions, safety devises and responsibility lying with the contractor and the employer will not be held liable for any injuries or damages caused during the course of the work. The contractor will be held responsible if found to be any contravention or violating any law and the petitioner will not take any responsibility for the same. Therefore there is no direct nexus between the petitioner and the occurrence. The petitioner has been added as an accused merely due to the fact that they are part of the reputed establishment, which runs the Mall.

10. In fact, as per the contract, the petitioner directed the first accused to follow all regulations and obligations that all an employer to his employee engaged in cleaning of sewage or STP tank has enumerated under Section 3 to 8 of the Act. Therefore, no offence is made out under Section 304(i) of IPC as against the petitioner herein, to bring the charge for the offence under Section 304(ii) of IPC, to whom the following ingredients are necessary

........(i) an intention to kill (ii) an intention to cause bodily harm likely result in death or (iii) performing the act with the knowledge that the said action might result in loss of life......

11. Insofar as, the offence under Section 3(2) (v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 is concerned, a perusal of FIR except the word stating that the deceased belongs to SC and ST community, there is no other allegations to attract the offence under Section 3(2) (v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015. To attract the offence under Section 3(2) (v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015, the offender must have knowledge that the victim belongs to SC and ST community and act in a manner to harm for the sole reason that the victim belongs to SC and ST community.

12. Admittedly, the petitioner never engaged the deceased or the defacto complainant to clean the STP tanks. When this basic ingredient is missing, the question of invoking under Section 3(2) (v) of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015, does not arise against the petitioner. As far as the offence under Sections 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 is concerned, the learned Government Advocate relied upon the Government order vide G.O.M.S.No.40, Municipal Administration and Water Supply, dated 05.03.2015, prohibited the employment of manual scavengers as per Section 7 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, no person, local authority or any agency shall engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank.

13. It is relevant to extract the definitions contemplated under Section 2(a) "agency", (d) "hazardous cleaning", (g) "manual scavenger", Section 7 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, the provision under Section 36 empowers the appropriate Government to make rules.

The relevant portions of Section 2 (a), (d) and (g), is extracted hereunder;-

''......(a) “agency” means any agency, other than a local authority, which may undertake sanitation facilities in an area and includes a contractor or a firm or a company which engages in development and maintenance of real estate;

(d) “hazardous cleaning” by an employee, in relation to a sewer or septic tank, means its manual cleaning by such employee without the employer fulfilling his obligations to provide protective gear and other cleaning devices and ensuring observance of safety precautions, as may be prescribed or provided in any other law, for the time being in force or rules made thereunder;

(g) “manual scavenger” means a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression “manual scavenging” shall be construed accordingly.

Explanation.—For the purpose of this clause,—

(a) “engaged or employed” means being engaged or employed on a regular or contract basis;

(b) a person engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be a „manual scavenger";....''

14. Accordingly, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 has been framed and the Rule 2(b) defines "cleaning device" includes but not limited to the equipments referred to in rule 5, whether manually or mechanically propelled which can be used to;

(i) clean or enable the transport or flow of sewage in sewers or septage from septic tanks, and (ii) avoid direct manual contract with such sewage or material.

15. Rule 3(1) says that No person shall be allowed to clean a sewer manually, with the protective gear and safety devices under these rules except 3 (a) to (e);

.......''(a) for the removal of concrete or FRP (Fibre Reinforced Plastic) or damaged manhole door where mechanical equipments cannot be put into opertion.

(b) for inter-linking the newly laid sewer main with the existing sewer main, in case of sewer of size of more than 300 mm diameter.

(c) for removal of submersible pump sets fixed at the bottom of the suction wells.

(d) for the reconstruction of the manhole or rectification of the sewer main.

(e) Any circumstance, when it is absolutely necessary to have manual sewage cleaning, after the CEO of the local authority has permitted to do so after recording in writing the specific valid reasons for allowing such cleaning''.......

16. Rule 4 says that any person engaged to clean a sewer or a septic tank shall be provided by his employer protective gear and safety devices including, but not limited to the following-

''(i) Air Compressor for blower

(ii) Air line Breathing apparatus

(iii) Air line respirator with manually operated air blower

(iv) Air Purifier GAs mask/chin cortege

(v) Artificial respiration / Reticulate

(vi) Barrier caution tape

(vii) Barrier cream

(viii) Barrier cone

(ix) Blower

(x) Breath mask

(xi) Breathing Apparatus

(xii) Caution board

(xiii) Chlorine mask

(xiv) Emergency medical oxygen resuscitator Kit

(xv) First Aid Box

(xvi) Face Mask

(xvii) Gas Monitor (4 gases)

(xviii) Guide Pipe Set

(xix) Full body water suit

(xx) Fishing wader suit attached with boots

(xxi) Hand gloves

(xxii) Head Lamp

(xxiii) Helmet

(xxiv) Helmet demolishing

(xxv) Lead acetate paper

(xxvi) Life guard pad

(xxvii) Modular Airlines Supply Trolley System

(xxviii) Normal face mask

(xxix) Nylon rope ladder 5 metres

(xxx) Nylon safety belt

(xxxi) Pocket book

(xxxii) Port oxy

(xxxiii) Raincoat

(xxxiv) Reflecting Jacket

(xxxv) Safety belt

(xxxvi) Safety body clothing

(xxxvii) Safety body harness

(xxxviii) Safety goggles

(xxxix) Safety Gumboots

(xl) Safety helmet

(xli) Safety showers

(xlii) Safety torch

(xliii) Safety Tripod Set

(xliv) Search light ''

17. Rule 5 says that the local authority shall ensure that the following cleaning devices are used by persons engaged in cleaning sewer or septic tank

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including but not limited to the following- ''(i) Sewer Line Cleaning Bucketing Machine (ii) Jetting Machine (ii) Suction Machine (Gulley Emptier) (iv) Combined Machine (Jetting cum Suction) (v) Deep Suction combined Machine (Jetting cum Suction Machine) (vi) Manual Hand Operated Grab Bucket (vii) Hydraulic Operated Trolley Mounted Grab Bucket (viii) Truck Mounted Motor & Winch Operated Grab Bucket Machine (ix) Fixed Structure Mounted Motor & Winch Operated Grab Bucket Machine (x) Rickshaw Mounted Winch & Motor Operated Desilting Machine for Wet Well (xi) Rickshaw Mounted Winch & Auxilliary Engine Operated Desilting Machine for Manhole (xii) Escort Hydra Crane Mounted Hydraulic Winch Operated Grab Bucket Desilting Machine (xiii) Manual rods, shovels, spades, drainage cleaning machines and steel scrapers with handles (xiv) Hoses and washing instruments''. 18. Rule 6(1) says, All protective gears and safety devices under these rules shall be checked every six months and necessary repair or replacements shall be made by the employer who engages a person for cleaning a sewer or a septic tank. 19. Admittedly, the petitioner never engaged any employees to clean the sewer or STP tanks and the contractor namely the first accused engaged four persons to clean the STP tanks. Therefore no offence is made out as against the petitioner and no offence is made out under Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 as against the petitioner. In view of the above discussion, the impugned F.I.R. in Crime No. 515 of 2019 cannot be sustained as against the petitioner and it is liable to be quashed. 20. Accordingly, this Criminal Original Petition stands allowed and the FIR in Crime No.515 of 2019 on the file of the first respondent as against the petitioner is hereby quashed, and the first respondent is directed to complete the investigation and file a final report within a period of twelve weeks as against the first accused and other accused if any. Consequently connected miscellaneous petition is closed.
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