Case: Consumer Education &amp; Research Centre&amp;Ors Vs. Union Of India

Occupational accidents and diseases remain the most appalling human tragedy of modern industry and one of its most serious forms of economic waste. Occupational health hazards and diseases to the workmen employed in asbestos industries are of our concern in this writ petition filed under Article 32 of the Constitution by way of public interest litigation at the behest of the petitioner, an accredited organisation. At the inception of filing the writ petition in the year 1986, though it highlighted the lacuna in diverse provisions of law applicable to the asbestos industry, due to orders of this Court passed from time to time, though wide gaps have been bridged by subordinate legislation, yet lot more need to be done. So the petitioner seeks to fill in the yanning gaps and remedial measures for the protection of the health of workers engaged in mines and asbestos industries with adequate mechanism for and diagnosis and control of the silent killer disease "asbestosis" with amended prayers asDirections to all industries and the official respondents to maintain compulsorily and keep preserved health records of each workman for a period of 40 years from the date of beginning of the employment or 10 years after the cessation of the employment, whichever is later;(b) To direct all the factories to adopt "The Membrane Filter Test."(c) To direct all industries to compulsorily insure the employees working in their respective industries, excluding those already covered by the Employees State Insurance Act and the Workmen Compensation Act so as to entitle the workmen to get adequate compensation for occupational hazards or diseases or death;(d) To direct the authorities to appoint a committee of experts to determine the standard of permissible exposure limit value of 2 fibre/cc and to reduce to 1 fibre/cc for Chrystolite type of asbestos, 0-5 - fibre/cc for Amosite type of asbestos and for the time being 0-2-fibre/cc for Crocidolite type of asbestos at par with the international standards;(e) To direct the appropriate Governments to cover the workmen and to extend them Factories Act or by suitable regulatory provisions contained therein to all small scale sectors which are not covered under the Factories Act;(f) To direct re-examination of such of those persons who are found suffering from Asbestosis by National Institute of Occupational Health but not the E.S.I. hospitals; and in particular the Inspector of Factories, Gujarat, be directed to have re-examined all those workmen, examined by ESI by N.G.D.H. and to award compensation; and(g) To direct the Central Government to appoint a committee to recommend whether dry process can be completely replaced by wet process.It would appear from the record that in Karnataka, Andhra Pradesh and Rajasthan, there exist about thirty mines and the workmen employed therein are about 1061. There are about 74 asbestos industries in nine States, namely. Haryana, Delhi, Andhra Pradesh, Karnataka, Rajasthan, Maharashtra, Kerala, Gujarat and Madhya Pradesh. It would also appear that as on August 1986 there are about 11,000 workmen employed in those industries. Basing on Biswas Committee report, the petitioner filed the writ petition. The Central Govt. accepting the said report, framed model Rule 123A of Factories Act and on its model relevant laws and Rules were amended and are now brought into force. We are not referring to the findings and recommendations of Biswas Committee as the "Asbestos Convention, 1986" covered the whole ground.

Reasoning:
19. It would thus be clear that disease occurs wherever the exposure to the toxic or carcinogenic agent occurs, regardless of the country, the type of industry, job title, job assignment, or location of exposure. The disease will follow the trail of the exposure, and extend the chain of carcinogenic risk beyond the workplace. it is the exposure and the nature of that exposure to asbestos that determines the risk and disease which subsequently result. The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life. The exposure to asbestos and the resultant long tragic chain of adverse medical, legal and societal consequences remind the legal and social responsibility of the employer or the producer not to endanger the workmen or the community of the society. He or it is not absolved of the inherent responsibility to the exposed workmen or the society at large. They have the responsibility, legal, moral and social to provide protective measures to the workmen and to the public or all those who are exposed to the harmful consequences of their products. Mere adoption of regulations for the enforcement has no real meaning and efficacy without the professional, industrial and governmental resources and legal and moral determination to implement such regulations.The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workmen meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, pubic or private, is enjoined to take all such actions which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentiate to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art. 21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts. 38 and 39 of the Constitution. Facilities for medical care and health against sickness ensure stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen.27. Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of theis, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.32. The Government issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court from time to time, all the State Governments have by now amended their respective rules and adopted the same as part of it but still there are yawning gaps in their effective implementation in that behalf. It is, therefore, necessary to issue appropriate directions. In the light of the rules "All Safety in the Use of Asbestos" issued by the I.L.O. the same shall be binding on all the industries. As a fact, the 13th respondent-Ferdo Ltd. admitted in its written submissions that all the major industries in India have formed an association called the "Asbestos Information Centre" (AIC) affiliated to the Asbestos International Association (AIA), London. The AIA has been publishing a code of conduct for its members in accordance with the international practice and all the members of AIC have been following the same. In view of that admission, they are bound by the directions issued by the ILO referred to in the body of the judgment. In that view, it is not necessary to issue any direction to Union or State Government to constitute a committee to convert the dry process of manufacturing into wet process but they are bound by the rules not only specifically referred to in the judgment but all the rules in that behalf in the above I.L.O. rules. The Employees State Insurance Act and the Workmens Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessarily to protect such persons from the respective dates of cessation their employment till date Liquidated damages by way of compensational are accepted principal of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which is the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen.