Judicial Soothing against Occupational Diseases

Abstract:

The Supreme Court of India in a very recent case viz., Occupational Health & Safety Association v. Union of India & others, has exhibited its curative role of occupational diseases of the employees of Coal Fired Thermal Power Plants [CFTPPs]. The Apex Court speaking through Justice K.S. Radhakrishnan [A.K. Sikri J.,] observed that ‘right to health i.e. right to live in a clean, hygienic and safe environment is a right flowing from Article 21. Clean surroundings lead to healthy body and healthy mind. But, unfortunately, for eking a livelihood and for national interest, many employees work in dangerous, risky and unhygienic environment. Right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy, particularly clauses (e) and (f) of Articles 39, 41 and 42 Those Articles include protection of health and strength of workers and just and humane conditions of work. Those are minimum requirements which must exist to enable a person to live with human dignity.’

According the Apex Court, every State has an obligation and duty to provide at least the minimum condition ensuring human dignity. But when workers are engaged in such hazardous and risky jobs, then the responsibility and duty on the State is doublefold. Occupational health and safety issues of CFTPPs are associated with thermal discharge, air and coal emission, fire hazards, explosion hazards etc. Dust emanates also contain free silica associated with silicosis, arsenic leading to skin and lung cancer, coal dust leading to black lung and the potential harmful substances. Necessity for constant supervision and to the drive to mitigate the harmful effects on the workers is of extreme importance.

India is one of the largest coal producing countries in the world. It has established 130 CFTPPs requiring nearly 440 million tons of coal per year. The thermal power plants generate about two-third of the electricity consumed in India. About half of the energy demand is met by coal fired power generation. In India, several labour welfare legislations have been in force. The legislations include labour enactments viz., the Factories Act, 1948, The Indian Boiler Act,1923, The Employees’ State Insurance Act, 1948, The Workmen’s Compensation Act, 1923, and the environmental laws such as the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, Environmental Protection Act, 1986 etc. The Supreme Court lamented that yet, there was no proper health delivery system. There had been no proper evaluation of occupational health status of workers. The Apex Court opined that lack of safety and protection of the workforce cause serious occupational health hazards in the CFTPPs. Consequently, the workers working in thermal plants are suffering from over a period of years.

The Occupational Health and Safety Association is a non-profit occupational health and safety organization, registered under the Societies Registration Act, 1860. The Association representing about 130 CFTPPs in India spread over 18 different States in the country, had moved a petition before the Supreme Court. The Association submitted a Report indicating that half of the workers in the Thermal plants have lung function abnormalities, pulmonary function test abnormalities, senor neuro loss, skin diseases, asthama, and so on.

The following main suggestions were put forth by the Association-

1. Comprehensive and periodical medical checkup and treatment of all workers in all the CFTPPS by doctors who must be appointed in consultation with the trade unions.

2. Free and comprehensive medical treatment to be provided to all workers found to be suffering from an occupational disease, ailment or accident, until cured or until death.

3. Services of the workmen not to be terminated during illness and to be treated as if on duty.

4. Compensation to be paid to workmen suffering from any occupational disease, aliment or accident in accordance with the provisions of the Workmen’s Compensation Act, 1923.

5. Modern protective equipment to be provided to workmen as recommended by an expert body in consultation with the trade unions.

6. Strict control measures to be immediately adopted for the control of dust, heat, noise, vibration and radiation to be recommended by the National Institute of Occupational Health (NIOH) Ahmadabad, Gujarat.

7. All employees to abide by the Code of Practice on Occupational Safety and Health Audit as developed by the Bureau of Indian Standards.

8. Safe methods be followed for the handling, collection and disposal of hazardous waste to be recommended by NIOH.

9. Appointment of a Committee of experts by NIOH including therein Trade Union representatives and Health and Safety NGO’s to look into the issue of Health and Safety of workers and make recommendations.

The Supreme Court took note of the above suggestions made at the Bar to reduce the occupational hazards of the employees working in various thermal power stations in the country. Glaringly, the suggestions do not include health awareness component. Prevention is better than cure. Therefore, the suggestions might include all the preventive and safety measures to be taken by the respective employers have been omitted. However, the suggestion No. 9 takes into consideration about the appointment of a Committee of Experts. The expert committee recommendations might include such measures. The NGOs involvement pertain to the verification of the safety and health of the workers. The NGOs’ involvement might involve the health educational to safeguard their health especially, the occupational health. The right to health of the workers at large has been taken up by an NGO. That itself shows a bi fold issue of lack of education or awareness of their rights and lack of awareness and preventive measures not being taken at the work environment by the respective employers i.e., the State government and the Central government. The Court must have highlighted these issues also.

However, the Apex Court passed a compassionate interim order on 30.1.2008. Interestingly, the suggestions have been accepted by the Central Government. It was acceded that they are broadly covered in various existing enactments and consequently pro-occupational action would be taken for effective implementation of the relevant laws, in particular, areas covered by those suggestions.

The Apex Court had also directed the Ministry of Labour to take steps to see that those suggestions and relevant provisions of the various Labour Acts are properly implemented to protect the welfare of the employees. Later pursuant to the suggestion  no. 9, a Committee of Experts has been duly constituted by NIOH. The Report of Committee of NIOH viz., ‘Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of the year 2011’ was submitted before the Supreme Court. The Supreme Court stated that the recommendations made are to be welcomed. It has expressed doubts as to how far they are put into practice and what preventive actions are taken to protect the workers from the serious health-hazards associated with the work in CFTPPs calls for serious attention. Many workers employed in various CFTPPs are reported to be suffering from serious diseases. The Court stated ‘ what were the steps taken by CFTPPs and the Union of India and the statutory authorities to protect the workers from serious health hazards and also the medical treatment extended to them, including compensation etc. calls for detailed examination.’

In order to ensure proper implementation of the recommendations that Apex Court has relegated to the various High Courts to examine those issues with the assistance of the State Governments. The Court required the respective High Courts to call for necessary Reports from the CFTPPs situated in their respective States. For the said purpose, the Supreme Court had sent a copy of the Judgment to the Chief Secretaries of the respective States as well as Registrar Generals of the High Courts of the following 18 States:

a) Uttar Pradesh

b) Chhattisgarh

c) Maharashtra

d) Andhra Pradesh

e) West Bengal

f) Madhya Pradesh

g) Bihar

h) Orissa

i) Haryana

j) Rajasthan

k) Punjab

l) Delhi/NCT Delhi

m) Gujarat

n) Karnataka

o) Kerala

p) Tamil Nadu

q) Jharkhand

r) Assam

The Report of National Institute of Occupational Health (NIOH) titled “Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of the year 2011” was directed to be made available by the Secretary General of the Supreme Court to the Registrar Generals of the High Courts of the aforesaid States.

The Apex Court has clarified that the Report was not at all comprehensive in certain aspects. It required the respective High Courts to examine the issues projected in the Judgment independently after calling for the reports about the CFTPPs functioning in their respective States. The Registrar Generals of High Courts of the aforesaid States were directed to place the Judgment before the Chief Justices of the respective States so as to initiate suo moto proceedings in the larger interest of the workers working in CFTPPs in the respective States.

The Court had invoked the harmonious rule of construction appreciating its precedent in Consumer Education & Research Centre and others v. Union of India and others 1 case where it has been held that the right to health and medical care to protect one’s health and vigour, while in service or post-retirement, is a fundamental right of a worker under Article 21 read with Articles 39(e), 41, 43, 48-A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.’ The liberal and harmonious construction of the Constitutional provisions, i.e., reading the non justiciable Directive principles of State policy with fundamental rights in consonance with the Labour Laws shows its bias towards the common worker in the welfare state.

It is an eye opener for the Central and state governments to realize the fact that right to health of the workers at large has been neglected and Court would stand by the poor workers as a protector against the occupational health hazards of the workers in the Public enterprises. The Public entrepreneurs might act ideally to ensure good and hygienic work environment at the work places. It is also educative for the courts below to ensure justice by giving such directions appropriate to the situation. The ‘caring approach’ of the Supreme Court and the anxiety to render justice are laudable in particular with respect to the directions given to ensure the effective implementation of its directions aimed at to ensure the health care of the workers. Many a times the courts have given orders and have left the implementation of the respective authorities and have not been verifying as to how far the orders have been complied with.

But, in the instant case, the Court has shown a compassionate approach and aptly required to place this Judgment before the Chief Justices of the respective States so as to initiate suo moto proceedings in the larger interest of the workers working in CFTPPs in the respective States. It is worried about the fact that despite the welcoming recommendations given by the Committee, the recommendations would not be effectively implemented. Its extensive care and caution is well appreciated in view of its directions to provide care to the retired workers also. The judgment of the Apex Court has soothing effect towards the workers who had been suffering due to lack of medicare at the 130 Coal based Thermal Power Projects if the judgment is effectively implemented. It is desirable to require the effective implementation of preventive measures provided under the labour legislations including the health education of the workers through the involvement of NGOs.

Reference:

• Occupational Health & Safety Association. v Union Of India & Ors. decided on 31 January, 2014, available at http://www.indiankanoon.org/doc/180334598/

• The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 7, for cl. (f) (w.e.f. 3-1-1977): [

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.] Read more: http://www.lawnotes.in/Article_39_of_Constitution_of_India#ixzz2vI78WC va

• The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Read more: http://www.lawnotes.in/Article_41_of_Constitution_of_India#ixzz2vI7ujAar

• 42. Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief

• See also Consumer Education & Research Centre and others v. Union of India and others (1995) 3 SCC 42

• See also Divya Jyoti Jaipuriar ‘SC reaffirms workers Right to Health and Medical care, ’ available at http://www.hrln.org/hrln/peopleshealth-rights/pils-a-cases/1484-screaffirms-workers-right-to-health-andmedical-care.html#ixzz2v6WtpXOi

Note: [Paper for the National Seminar on ‘Human Rights Education and New Challenges’ organized by Osmania University, Hyderabad – 8-9 Mar’2014]

Prof. Dr. Mohan Rao B.

mohan.bolla@christuniversity.in

Professor, School of Law, Christ University, Bangalore