Accidents at Workplace: Legal Implications and Remedies
I would like to have your attention and inputs on the subject “Accidents at Workplace.” Assume that due to the negligence of the employer, an accident occurred in the course of employment, resulting in a workman's death on the spot (or severe injuries which may result in death). The police took custody of the Manager, registered an FIR, and filed a charge sheet in court against him. Simultaneously, the labor department issued a show cause notice asking why legal action cannot be taken for the violations of various statutes and awarded compensation to the family members of the deceased or seriously injured workmen.
1. What legal remedies are available to the Employer/Manager in the above case?
2. Does the court have the power to take cognizance of the case under criminal law, and if so, what would be the punishment for the Manager/Employer?
Please share your experiences and suggestions.
Thanks & Regards,
Raghavendra.
From India, Hyderabad
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11I would like to have your attention and inputs on the subject “Accidents at Workplace.” Assume that due to the negligence of the employer, an accident occurred in the course of employment, resulting in a workman's death on the spot (or severe injuries which may result in death). The police took custody of the Manager, registered an FIR, and filed a charge sheet in court against him. Simultaneously, the labor department issued a show cause notice asking why legal action cannot be taken for the violations of various statutes and awarded compensation to the family members of the deceased or seriously injured workmen.
1. What legal remedies are available to the Employer/Manager in the above case?
2. Does the court have the power to take cognizance of the case under criminal law, and if so, what would be the punishment for the Manager/Employer?
Please share your experiences and suggestions.
Thanks & Regards,
Raghavendra.
From India, Hyderabad
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Put up clear incident:
What was the person doing, his status of employment, and the time of the accident?
What is the nature of the factory and whether the required licenses were obtained or not?
What is the insurance coverage for employees, etc.?
Once you provide this information, one can suggest a remedy.
Thank you.
From India
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What was the person doing, his status of employment, and the time of the accident?
What is the nature of the factory and whether the required licenses were obtained or not?
What is the insurance coverage for employees, etc.?
Once you provide this information, one can suggest a remedy.
Thank you.
From India
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Dear Mr. Raghavendra, I am also echoing the voice of Mr. Raj Dubey. Once you confirm the accident occurred in the course of employment due to the employer's negligence, the Manager/Safety Professional/Frontline Supervisor can be arrested, and a case filed under 304A. Further, whether the employer has the ESI facility or not, WC Policy (GPA Policy), or does not have any coverage under the 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 available benefits must be given to him. The reply given by me is only of a generic nature, and if you want the correct answer specific to your query, provide complete details regarding the accident. You can hide the identity of your company/factory and its location so that confidentiality can be maintained.
From India, Kumbakonam
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From India, Kumbakonam
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From your log-in, it seems to me that you are an advocate. Any case depends on your submission.
To add further to what our Senior Member Shri. Bhaskar said, I would like to say as follows:
I presume the deceased employee was not covered under ESIS, and therefore, the employer is liable for compensation as per the EC Act 1923.
Criminal Proceedings
Regarding criminal proceedings, I need not 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. Therefore, the general law, i.e., the Indian Penal Code, has no application. As per section 300 of Cr.PC, one person cannot be prosecuted twice for the same offense. However, all this depends on the FIR with the police and the charge sheet filed. It also depends on your submission. If the offenses mentioned in FA and IPC are distinct and different, then there is no way.
The punishment will depend upon which sections the case is filed under. As rightly said by our Senior Member Shri. Bhaskar, the case can be filed under Section 304A of IPC. The police can charge you with many more sections of IPC, such as 285, 286, 337, 338, etc., and you need to see whether all these sections of IPC are covered under section 92 of FA.
Similar provisions are there in the Mines Act, Docks Act, BOCW Act.
Seniors and experts, including Bhaskarji, are requested to comment on it.
From India, Mumbai
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To add further to what our Senior Member Shri. Bhaskar said, I would like to say as follows:
I presume the deceased employee was not covered under ESIS, and therefore, the employer is liable for compensation as per the EC Act 1923.
Criminal Proceedings
Regarding criminal proceedings, I need not 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. Therefore, the general law, i.e., the Indian Penal Code, has no application. As per section 300 of Cr.PC, one person cannot be prosecuted twice for the same offense. However, all this depends on the FIR with the police and the charge sheet filed. It also depends on your submission. If the offenses mentioned in FA and IPC are distinct and different, then there is no way.
The punishment will depend upon which sections the case is filed under. As rightly said by our Senior Member Shri. Bhaskar, the case can be filed under Section 304A of IPC. The police can charge you with many more sections of IPC, such as 285, 286, 337, 338, etc., and you need to see whether all these sections of IPC are covered under section 92 of FA.
Similar provisions are there in the Mines Act, Docks Act, BOCW Act.
Seniors and experts, including Bhaskarji, are requested to comment on it.
From India, Mumbai
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Dear Respected Boss,
With all due respect, Sir, I would like to correct the statement above. The employer is not obliged to remit compensation to the EC Commissioner if the employee in question is covered by ESIS.
From India, Mumbai
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With all due respect, Sir, I would like to correct the statement above. The employer is not obliged to remit compensation to the EC Commissioner if the employee in question is covered by ESIS.
From India, Mumbai
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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 have come across similar accidents without sufficient knowledge). Although there is insurance under the Employee Compensation Act and all other licenses are in force, if an employer fails to take safety precautions and due to which a workman dies, to what extent does the law punish the employer and his managers who are directly responsible? Because the majority of employers neither give importance to safety at the workplace nor adhere to laws like the Factories Act, BOCW Act, S&E Act.
As rightly said by Sri. S. Bhaskar, in some cases, the employer may be tried under 304A IPC, and the maximum punishment would be 2 years of imprisonment with or without a 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 in need.
Regards,
Raghavendra.
From India, Hyderabad
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As rightly said by Sri. S. Bhaskar, in some cases, the employer may be tried under 304A IPC, and the maximum punishment would be 2 years of imprisonment with or without a 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 in need.
Regards,
Raghavendra.
From India, Hyderabad
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Quote from Research
"In case of accidents resulting in 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 the 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 under Section 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 the same set of facts, there can be two criminal complaints?
Though the Hon'ble 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 304-A of the IPC is not maintainable when there is an existing prosecution under the Factories Act, 1948. However, the Hon'ble High Courts of Chhattisgarh and Jharkhand have held that the prosecution under the 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 acts.
The Hon'ble Karnataka High Court has taken a contrary view on this 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 Hon'ble Division Bench of the Allahabad High Court in Mehrotra Y.P. vs. 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 Hon'ble Punjab & Haryana High Court under The Provident Fund Act in Lakshmi Narayan Engineering Works Ltd vs. Union of India, 1984, wherein the Hon'ble 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 principle of double jeopardy herein is not attracted. A similar view has been adopted by the Hon'ble Madhya Pradesh Court and Hon'ble 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.
For more clarity, please refer to the attached case laws.
In a nutshell, the Supreme Court is still silent on this particular point since I have not come across any such judgment interpreting the distinction and prosecution overriding effect of special and General Law in particular to the Factories Act and IPC.
Regards,
GWarwade
From India, Gurgaon
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"In case of accidents resulting in 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 the 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 under Section 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 the same set of facts, there can be two criminal complaints?
Though the Hon'ble 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 304-A of the IPC is not maintainable when there is an existing prosecution under the Factories Act, 1948. However, the Hon'ble High Courts of Chhattisgarh and Jharkhand have held that the prosecution under the 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 acts.
The Hon'ble Karnataka High Court has taken a contrary view on this 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 Hon'ble Division Bench of the Allahabad High Court in Mehrotra Y.P. vs. 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 Hon'ble Punjab & Haryana High Court under The Provident Fund Act in Lakshmi Narayan Engineering Works Ltd vs. Union of India, 1984, wherein the Hon'ble 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 principle of double jeopardy herein is not attracted. A similar view has been adopted by the Hon'ble Madhya Pradesh Court and Hon'ble 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.
For more clarity, please refer to the attached case laws.
In a nutshell, the Supreme Court is still silent on this particular point since I have not come across any such judgment interpreting the distinction and prosecution overriding effect of special and General Law in particular to the Factories Act and IPC.
Regards,
GWarwade
From India, Gurgaon
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Employer's Liability for Compensation
I appreciate the citation Mr. G Wanwade has provided. Regarding the query posed by Mr. Raghvendra, it was quite vague and in general terms. There are separate Acts enacted to address specific cases within their purview.
The Workmen's Compensation Act, 1923, the ESIC Act, 1948, the Employers' Liability Act, 1938, the Employer's Liability (Compulsory Insurance) Act, 1969, the Factories Act, 1948, etc. However, it becomes the ultimate responsibility of the employer to provide appropriate compensation to the injured person based on the following premises:
Employer's Liability for Compensation
1. If personal injury is caused to a workman by an accident arising out of and in the course of his employment, the employer shall be liable to pay compensation in accordance with the provisions of the WC Act, 1923. Provided that the employer shall not be liable:
- In respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
- In respect of any injury, not resulting in death, caused by an accident directly attributable to:
- The workman being under the influence of drink or drugs at the time;
- The willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for securing the safety of workmen;
- The willful removal or disregard by the workman of any safety guard or other device provided for securing the safety of workmen.
To be eligible for compensation, a person needs to be qualified as a 'workman' or 'employee' under the respective Act. We should not discuss compensation until we determine the status of the victim under the applicable laws.
As far as prosecution under the provisions of either the IPC, Factories Act, ESI Act, or WC Act, 1923, is concerned, it is determined based on questions of law and facts as well.
I hope the above clarifies the matter. Thank you all.
Regards,
Praful M Lale Labour Law Consultant
[Phone Number Removed For Privacy Reasons]
From India, Mumbai
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I appreciate the citation Mr. G Wanwade has provided. Regarding the query posed by Mr. Raghvendra, it was quite vague and in general terms. There are separate Acts enacted to address specific cases within their purview.
The Workmen's Compensation Act, 1923, the ESIC Act, 1948, the Employers' Liability Act, 1938, the Employer's Liability (Compulsory Insurance) Act, 1969, the Factories Act, 1948, etc. However, it becomes the ultimate responsibility of the employer to provide appropriate compensation to the injured person based on the following premises:
Employer's Liability for Compensation
1. If personal injury is caused to a workman by an accident arising out of and in the course of his employment, the employer shall be liable to pay compensation in accordance with the provisions of the WC Act, 1923. Provided that the employer shall not be liable:
- In respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
- In respect of any injury, not resulting in death, caused by an accident directly attributable to:
- The workman being under the influence of drink or drugs at the time;
- The willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for securing the safety of workmen;
- The willful removal or disregard by the workman of any safety guard or other device provided for securing the safety of workmen.
To be eligible for compensation, a person needs to be qualified as a 'workman' or 'employee' under the respective Act. We should not discuss compensation until we determine the status of the victim under the applicable laws.
As far as prosecution under the provisions of either the IPC, Factories Act, ESI Act, or WC Act, 1923, is concerned, it is determined based on questions of law and facts as well.
I hope the above clarifies the matter. Thank you all.
Regards,
Praful M Lale Labour Law Consultant
[Phone Number Removed For Privacy Reasons]
From India, Mumbai
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Some might have felt my query was very vague and in generic terms. I would like to inform you that NEGLIGENCE on the part of the 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 a fatal accident takes place, the Compensation Commissioner is obligated to pass an award within 3 months of the accident, and the employer is asked to deposit the awarded amount within one month. If the employer fails to deposit the same, the Commissioner may impose a 50% penalty and simple interest in addition to the compensation.
Apart from the above, the 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 a fine. As competent authorities under labor laws do not have the power to imprison, the case will be referred to criminal courts. I would like to thank Sri. GWarwade, who has provided suitable information rather than merely reproducing the provisions.
Regards,
Raghavendra.
From India, Hyderabad
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Apart from the above, the 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 a fine. As competent authorities under labor laws do not have the power to imprison, the case will be referred to criminal courts. I would like to thank Sri. GWarwade, who has provided suitable information rather than merely reproducing the provisions.
Regards,
Raghavendra.
From India, Hyderabad
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Legal Clarification on Employers Liability for Occupational Health & Safety.pdf