Home  /  OSH Code, 2020  /  Section 104

Section 104: Exemption of occupier or manager from liability

The Occupational Safety, Health and Working Conditions Code, 2020 (Act No. 37 of 2020) • Official Statutory Text & Plain English Practice Guide

Statutory Mandate
Chapter XI: Offences and Penalties
Competent Labour Forum
Act No. 37 of 2020
Section 103 All 143 Sections of OSH Code, 2020 Section 105

Legal Commentary & Landmark Judgments: Section 104

Section 104 of the Code provides an affirmative defense of exemption of occupier or manager from liability, allowing an accused occupier or manager to bring the actual offender before the court and prove that the offense was committed without their knowledge, consent, or connivance.

  • Procedure for Arraigning Actual Offender: Empowers the accused occupier or manager to file a formal complaint bringing the actual employee, supervisor, or contractor before the court during the trial.
  • Dual Statutory Burden on Occupier: Requires the occupier to prove: (a) that they exercised all due diligence to enforce the Code, and (b) that the actual offender committed the offense without their knowledge, consent, or willful default.
  • Transfer of Criminal Culpability & Costs: Provides that upon successfully proving the defense, the actual offender shall be convicted and the occupier discharged, with discretionary court costs awarded against the actual culprit.
Key Landmark Precedents:
  • J.K. Industries Ltd. v. Chief Inspector of Factories (1996) 6 SCC 665: Supreme Court held that Section 104 provides a narrow statutory escape valve for occupiers, requiring strict proof of comprehensive systemic due diligence before liability can be shifted.
  • State of Gujarat v. Jayantilal Amratlal AIR 1965 SC 1477: Affirmed that an occupier cannot be exonerated merely by claiming that a subordinate failed to execute instructions; active systemic enforcement must be proved.
  • Chintaman Rao v. State of M.P. AIR 1958 SC 388: Supreme Court confirmed that the procedure under this section requires a formal cross-complaint and trial of the actual offender.
Courtroom Practice & Strategic Litigation Guidance:

To utilize the Section 104 defense successfully, company directors must produce documented standard operating procedures, signed training logs of the rogue employee, disciplinary warning notices, and unannounced safety audit reports demonstrating an unbroken corporate compliance culture.

Section 103 All 143 Sections of OSH Code, 2020 Section 105