We are a wholly owned Indian subsidiary of our foreign counterpart, running our manufacturing unit in India. Recently after the Bhopal Gas Desuster conclusion some questions came to our mind, which are mentioned herein. It will be very helpfull to us, if you kindly help us to find answer to these questions-
1. What are those provisions, which an employer requires to obey so that he will not be prosecuted in case of any accident like Bhopal Gas Desuster or death of any employee due to snake bite inside the plant?
2.In case of such accident, can our Direcotors, Non Executive Direcotors, MD, Chairman and our holding company's/foreign couterpart's Directors, be prosecuted?
3. What are the liabilities of the Indian Executives and also foreign Executives of our parent company?
I request you to kindly help me to sort out these question. It will be very helpful to me.
From Germany
1. What are those provisions, which an employer requires to obey so that he will not be prosecuted in case of any accident like Bhopal Gas Desuster or death of any employee due to snake bite inside the plant?
2.In case of such accident, can our Direcotors, Non Executive Direcotors, MD, Chairman and our holding company's/foreign couterpart's Directors, be prosecuted?
3. What are the liabilities of the Indian Executives and also foreign Executives of our parent company?
I request you to kindly help me to sort out these question. It will be very helpful to me.
From Germany
1. You shall comply with the provisions of Factories act as well as Factory Rules for non prosecution.
2. In case of Prosection Executive in-charge of Operation will only be prosecuted and No Executive Directors will not be prosecuted. Refere Judgement on SMS Pharmaceuticals by supreme court
3 I did not understand the term liabilties. Pls clarify its regarding punishment or compensation.
regards
ravi
From United States
742. In case of Prosection Executive in-charge of Operation will only be prosecuted and No Executive Directors will not be prosecuted. Refere Judgement on SMS Pharmaceuticals by supreme court
3 I did not understand the term liabilties. Pls clarify its regarding punishment or compensation.
regards
ravi
From United States
Dear Abhijit,
paragraph-wise replies to your questions are as below:
1. What are those provisions, which an employer requires to obey so that he will not be prosecuted in case of any accident like Bhopal Gas Desuster or death of any employee due to snake bite inside the plant?
Employer has to conduct the safety audit frequently. Maintain the records of this audit. Conduct the fire, safety and emergency training frequently. Employers or occupiers must take action for any unsafe action by the employee or unsafe conditions. In the post independence era, large number of accidents have happened already. Your management can take lessons from them.
2.In case of such accident, can our Direcotors, Non Executive Direcotors, MD, Chairman and our holding company's/foreign couterpart's Directors, be prosecuted?B
If "criminal negligence amounting to death" or ""negligence amounting to death" is proved then company management is liable for prosecution. If it is proved that employees were trained on unsafe practices still they ignored the instructions from the management, then management is not liable for prosecution.
Bhopal gas tragedy happened because management and other staffs in authority ignored the unsafe conditions existing or inherent in the plant. In fact one journalist (Mr Keshwani) had written series of articles in local newspaper how the Union Carbide plant is not only unsafe for workers but for local population as well. But the management ignored all the warnings.
Management of British Petroleum is no different. One of their engineers had written to their top bosses about the impending disaster on 20 Apr 2010. A week later there was explosion in the oil well.
Carlton fire tragedy at Bangalore was absolutely avoidable. It is the greed of management that killed innocent lives.
What management is required to do is to "listen to their inner conscience or what their employees say rather than perfunctory implementation of any law".
3. What are the liabilities of the Indian Executives and also foreign Executives of our parent company?
Liabilities are under the provisions of Indian Penal Code.
Ok...
Dinesh V Divekar
Limit of your words is limit of your world
From India, Bangalore
paragraph-wise replies to your questions are as below:
1. What are those provisions, which an employer requires to obey so that he will not be prosecuted in case of any accident like Bhopal Gas Desuster or death of any employee due to snake bite inside the plant?
Employer has to conduct the safety audit frequently. Maintain the records of this audit. Conduct the fire, safety and emergency training frequently. Employers or occupiers must take action for any unsafe action by the employee or unsafe conditions. In the post independence era, large number of accidents have happened already. Your management can take lessons from them.
2.In case of such accident, can our Direcotors, Non Executive Direcotors, MD, Chairman and our holding company's/foreign couterpart's Directors, be prosecuted?B
If "criminal negligence amounting to death" or ""negligence amounting to death" is proved then company management is liable for prosecution. If it is proved that employees were trained on unsafe practices still they ignored the instructions from the management, then management is not liable for prosecution.
Bhopal gas tragedy happened because management and other staffs in authority ignored the unsafe conditions existing or inherent in the plant. In fact one journalist (Mr Keshwani) had written series of articles in local newspaper how the Union Carbide plant is not only unsafe for workers but for local population as well. But the management ignored all the warnings.
Management of British Petroleum is no different. One of their engineers had written to their top bosses about the impending disaster on 20 Apr 2010. A week later there was explosion in the oil well.
Carlton fire tragedy at Bangalore was absolutely avoidable. It is the greed of management that killed innocent lives.
What management is required to do is to "listen to their inner conscience or what their employees say rather than perfunctory implementation of any law".
3. What are the liabilities of the Indian Executives and also foreign Executives of our parent company?
Liabilities are under the provisions of Indian Penal Code.
Ok...
Dinesh V Divekar
Limit of your words is limit of your world
From India, Bangalore
Dear all!!! In case of accidents like that of Bhopal Gas tragedy, the penal action can lie under the Factories Act 1948 as well as the Indian Penal Code. Both the actions are independent of each other.
In case of Factories Act, the prosecution will be primarily agaist the Occupier and Manager of the Factory. here it is to be noted that such officials are responsible for the unsafe conditions existing in the factory. From the limited details it is not clear what is your nature of operations but in a general manner it can be said that the provisions are explicit in the Factories Act & Rules. In addition to the Factories Inspector who is to inspect and certify the premises, you can avail the services of known experts in the field of audit under Factories Act. You can try the OHSAS, ISO 18000 experts for this. In this case if your principals abroad are not named as factory Occupier, then they cannot be prosecuted under the Factories Act 1948.
As regards the IPC is concerned, here it is the law of land and all the top officials concerned including your principals abroad could be charged for criminal negligence not amounting murder (Section 304A). The foreign principals could be held responsible vicariously for any default in the design or unsafe working methods. In such cases the liability would be there even in case of fatal accidents.
While there is no sure formula to take out the foreign principals in such cases, besides statutory compliances, a safe working culture and a high level of safety consciousness has to be there.
regards
KK
From India, Bhopal
In case of Factories Act, the prosecution will be primarily agaist the Occupier and Manager of the Factory. here it is to be noted that such officials are responsible for the unsafe conditions existing in the factory. From the limited details it is not clear what is your nature of operations but in a general manner it can be said that the provisions are explicit in the Factories Act & Rules. In addition to the Factories Inspector who is to inspect and certify the premises, you can avail the services of known experts in the field of audit under Factories Act. You can try the OHSAS, ISO 18000 experts for this. In this case if your principals abroad are not named as factory Occupier, then they cannot be prosecuted under the Factories Act 1948.
As regards the IPC is concerned, here it is the law of land and all the top officials concerned including your principals abroad could be charged for criminal negligence not amounting murder (Section 304A). The foreign principals could be held responsible vicariously for any default in the design or unsafe working methods. In such cases the liability would be there even in case of fatal accidents.
While there is no sure formula to take out the foreign principals in such cases, besides statutory compliances, a safe working culture and a high level of safety consciousness has to be there.
regards
KK
From India, Bhopal
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