Boss2966
Industrial Relations
Raghavendra.adv
Currently Working As Deputy Manager
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Rajesh Kumar Dubey
Manager - Hr
+2 Others

Thread Started by #raghavendra.adv

Dear Members,
I would like to have your attention and inputs on the subject “Accidents at Workplace”. Assume that due to the negligence of employer an accident occurred in the course of employment and a workman died on the spot (or received severe injuries which may result in death). Police took custody of the Manager, registered FIR and filed charge sheet in the court against him. Simultaneously, labour department issued show cause Notice as Why legal action cannot be issued on the violations of various statutes and awarded compensation to the family members of the deceased / seriously injured workmen.
1. What legal remedies are available to the Employer / Manager in the above case
2. Whether court has power to take cognizance of the case under criminal law, and if so
3. What would be the punishment to the Manager / Employer.
Please share your experiences and suggestions.
Thanks & Regards,
Raghavendra.
2nd May 2015 From India, Hyderabad
Put up clear incident
what was the person doing / his status of employment / time of accident
nature of factory / license got or not
insurance coverage of employees etc
then one can suggest you the remedy
thanks
2nd May 2015 From India
Dear Mr. Raghavendra
I am also echoing the voice of Mr. Raj Dubey.
Once you are confirming the accident while in the course of employment due to negligence of employer, the Manager / Safety Professional / Front line supervisor can be arrested and filed case under 304A.
Further whether the employer have the ESI facility or not, WC Policy (GPA Policy) or not having any coverage under ESI Act / EC Act, the employer must remit the compensation as per his eligibility to the Workmen Compensation Commissioner. The other benefits like PF, Gratuity, Leave Encashment, and other benefits available must be given to him.
The reply given by me is only generic nature and ff you want the correct answer specific to your query, give the complete details regarding the accident. You can hide the identity of your company/factory and its location so that the confidentiality can be maintained.
2nd May 2015 From India, Kumbakonam
Dear Raghavendra ji,

From your log-in it seems to me that you are an advocate. Any case is depends on your submission.

To add further to what our Senior Member Shri. Bhaskar said, I would like to say as under:

I presume the deceased employee was not covered under ESIS and therefore, the employer is liable for Compensation as per the EC Act 1923.

As regards to criminal proceedings, I need not to tell you that If the workplace is covered under FA 1948, the case under section 92 of the FA is maintainable and not under IPC. FA is a special law for prosecuting the factory owner. And therefore, the general law i.e. Indian Penal Code have no application. As per section 300 of Cr.PC, one person cannot be prosecuted twice for the same offence. However, this all depends on the FIR with police and the charge sheet filed. Also its depends on your submission. If the offences mentioned in FA and IPC are distinct and different, then there is no way.

Punishment will depend upon under which sections the case is filed. As rightly said by our Senior Member Shri. Bhaskar that case can be filed under Section 304A of IPC. Police can charge you with many more sections of IPC such as 285,286, 337, 338 etc. and you need to see whether all this sections of IPC are covered under section 92 of FA.

Similar provisions are there in Mines Act, Docks Act, BOCW Act.

Seniors and experts including Bhaskarji are requested to comment on it.
2nd May 2015 From India, Mumbai
Dear Respected BOSS,
With due respect to you Sir, I would like to correct you in above quote by you.
Employer is not liable to remit compensation to EC Commissioner in case the employee concerned is covered by ESIS.
.................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. ....................
2nd May 2015 From India, Mumbai
Dear Sir(s),
I really appreciate your valuable insights. The above is not a real incident but just a case study to enlighten myself (but many of us might came across similar accidents without sufficient knowledge). Although, there is insurance under employee compensation Act and all other license are in force, if employer fails to take safety precautions and due to which if workman dies to what extent the law punishes the employer and his managers who are directly responsible. Because, majority of employers neither giving importance to the safety at workplace nor adhering the laws like Factories Act, BOCW Act, S&E Act.
As rightly said by Sri. S. Bhaskar that in some cases employer may be tried under 304 A IPC and maximum punishment would be 2 years of imprisonment with or without fine. Special thanks to Sri. Keshav Korgaonkar. I request other members also to share / comment on the above as it would be helpful for someone who is in need.
Regards,
Raghavendra.
4th May 2015 From India, Hyderabad
Dear all,

Quote from research.

"In case of accidents resulting into death on the factory floor, prosecution under the Factories Act, 1948 becomes inevitable and the Occupier is prosecuted under Section 92 of the Factories Act, 1948. However, there have been instances of simultaneous prosecution under the Factories Act as well as Section 304-A of the IPC.

Section 304-A of the IPC is attracted when there is a death caused to someone due to rash and negligent Act of a person. Therefore, upon the death of a worker, the local police station will register an FIR and will also file a Charge Sheet u/s 304-A of the IPC .

The question that is always predominant on the mind of the management and needs to be addressed is, whether for the same incident and same set of facts there can be two criminal complaints?

Though the Honble Supreme Court is silent on the point, the question has been answered by various High Courts. There have been instances of some judgments, wherein it has been held that prosecution under Section 304A under the IPC is not maintainable when there is an existing prosecution under Factories Act, 1948. However, the Honble High Courts of Chattisgarh and Jharkhand have held that the prosecution under Factories Act is for contravention of provisions of penal law and both the acts operate in different fields and flow in different channels. Therefore, prosecution is maintainable under both the acts.

The Honble Karnataka High Court has taken a contrary view on his issue holding a number of times that if an act or omission constitutes an offence under two or more enactments, then the offender shall be liable for prosecution and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. However, the Honble Division Bench of the Allahabad High Court in Mehrotra Y.P. V/s State of UP [1993 III LLJ 581 (All DB)] has held that;

A combined reading of the provisions of Sections 92, 105 and 106 of the Act (Factories Act, 1948) clearly demonstrates that the inquiry contemplated in Section 88 read with Rule 110 is confined to the purposes of the Act and to the offences committed under the Act. They have no bearing whatsoever upon the inquiry into any contravention of any provision of the penal law of the land, the prosecution therefore and the punishment for its contravention

Further, the Court viewed that;

An offence under Section 304-A of the Indian Penal Code and an offence under the Act (Factories Act) and the Rules operate in different fields. They flow in different channels. This position is clarified by Section 4 of the Code which enjoins that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code

Parallels may be drawn from the judgment of the Honble Punjab & Haryana High Court under The Provident Fund Act in Lakshmi Narayan Engineering Works Ltd V/s Union of India, 1984 wherein the Honble Court has observed that proceedings under the Indian Penal Code being a General Act and prosecution under the Provident Fund Act, being a special legislation are maintainable independently and the principal of double jeopardy herein is not attracted. A similar view has been adopted by the Honble Madhya Pradesh Court and Honble Calcutta High Court.

As long as another Division Bench or the Supreme Court overrules the judgment of the Allahabad High Court, the same shall be binding on all single judge Benches in the High Courts.

Unqote :

For more clarity, please refer to attached case laws.

In nutshell, still SC is silent on this particular point since I have not come across any such judgement interpreting the distiction & prosecution overiding effect of special & General Law in perticular to FA & IPC.

With regards,

GWarwade
5th May 2015 From India, Gurgaon

Attached Files
Membership is required for download. Create An Account First
File Type: pdf Binod_Kumar_Das_And_Anr[1]._vs_State_Of_Jharkhand_And_Anr._on_27_November,_2007.pdf (88.2 KB, 178 views)
File Type: pdf Rabindra_Agarwal_vs_State_Of_Jharkhand_And_Another_on_24_February,_2010[1].pdf (86.5 KB, 100 views)
File Type: pdf Y[1].P._Mehrotra_And_Ors._vs_State_Of_U.P._And_Anr._on_13_November,_1987.pdf (91.1 KB, 77 views)
File Type: pdf Karshanbhai_vs_State_on_21_September,_2010.PDF (85.4 KB, 103 views)

Dear All concerned,

I appreciate the citation Mr. G Wanwade has come out with. As regards the query posed by Mr. Raghvendra had been very vague and in generic terms. There have been separate Acts which are enacted to deal with specific cases falling within the purview of it.

The Workmens' Compensation Act, 1923 / ESIC Act, 1948, The Employers' Liability Act 1938, The Employer's Liability (Compulsory Insurance) Act 1969, The Factories Act, 1948, etc.. However, it becomes ultimate responsibility of the Employer for appropriate compensensation to the injured person on the following premises:
Employer' s liability for compensation.-

(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of the WC Act, 1923, Provided that the employer shall not be so liable--

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding 3 three] days;
(b) in respect of any 4 injury, not resulting in death, caused by] an accident which is directly attributable to--

(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of
securing the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been
provided for the purpose of securing the safety of workmen. 5 5
In order to be eligible for compensation, a person needs to be qualified as 'workman' or 'employee' under the respective Act, as the case may be. We should not speak of compensation in the first place, unless we arrive at the status of the victim under the applicable laws.
In so far as the prosecution under the provisions of either IPC or Factories Act , ESI Act or WC Act, 1923 is concerned is determined on the basis of questions of Law and facts as well.
I hope the above clarifies the matter. Thank you all.

Praful M Lale
Labour Law Consultant
(M) 9820445140
7th May 2015 From India, Mumbai
Some might have felt my query as very vague and in generic terms, I would like to inform that NEGLIGENCE on part of employer and ACCIDENT IN THE COURSE OF EMPLOYMENT is sufficient to assume that there is no intentional indulgence of the workman in the fatal accident. When fatal accident takes place, Compensation Commissioner is under obligation to pass award within 3 months of the accident and employer is asked to deposit the awarded amount within one month. If employer fails to deposit the same, Commissioner may impose 50% penalty and simple interest in addition to the compensation.

Apart from the above Occupier / Manager will be held responsible for their negligence and they have to face the court of law. The punishment would be 2 years of imprisonment and / or fine. As competent authorities under labour laws does not have the power to imprison, case will be referred to criminal courts. I would like to thank Sri. GWarwade who has given suitable information rather reproducing the provisions.

Regards,

Raghavendra.

Regards,

Raghavendra.
8th May 2015 From India, Hyderabad
Reply (Add What You Know) Start New Discussion

Cite.Co - is a repository of information created by your industry peers and experienced seniors. Register Here and help by adding your inputs to this topic/query page.
Prime Sponsor: TALENTEDGE - Certification Courses for career growth from top institutes like IIM / XLRI direct to device (online digital learning)





About Us Advertise Contact Us
Privacy Policy Disclaimer Terms Of Service



All rights reserved @ 2019 Cite.Co