27. Therefore, we hold that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39 (e), 41, 48A and all related to Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.
28. In M.C. Mehta v. Union of India, (1987) 4 SCC 463 : (AIR 1988 SC 1037), when tanneries were discharging effluents into the river Ganges, this Court, in a public interest litigation, while directing to implement Water (Prevention and Control of Pollution) Act or Environment (Protection) Act, prevented the tanneries etc. by appropriate direction from discharging effluents into the river Ganga, directed establishment of primary treatment plants etc. and such of these industries that did not comply with the directions were ordered to be closed. When ecological balance was getting upset by destroying forest due to working the mines, this Court directed closer of the mines. In Pt. Parmanand Katara v. Union of India, (1989) 4 SCC 286 : (AIR 1989 SC 2039), this Court directed even private doctors or hospitals to extend services to protect the life of the patient, be an innocent or a criminal liable for punishment in accordance with law in National Textile Workers Union v. P. R. Ramakrishnan, (1983) 1 SCR 922 : (AIR 1983 SC 759), the Constitution Bench, per majority, held that the role of a company in modern economy and their increasing impact of individuals and groups through the ramifications of their activities began to be increasingly recognised. The socio-economic objectives set out in Part IV of the Constitution guide and shape the new corporation philosophy. "Today social scientists and thinkers regard a company as a living vital and dynamic social organism with firm and deep rooted affiliation with the rest of the community in which it functions. It would be wrong to look upon it as something belonging to the shareholders." It was further held that "it is not only the share-holders who have supplied capital who are interested in the enterprise which is being run by a company but the workers who supply labour are also equally, if not, more, interested because what is produced by the enterprise is the result of labour as well as capital. In fact, the owners of capital bear only limited financial risk and otherwise contribute nothing to production while labour contributes a major share of the product. While the former invest only a part of their moneys, the latter invest their sweat and toil, in fact their life itself. The workers, therefore, have a special place in a socialist pattern of society. They are not mere vendors of toil, they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital may very much more. They supply labour without which capital would be impotent and they, at the least, equal partners with capital in the enterprise. Our Constitution has shown profound concern for the workers and given them a pride of place in the new socio-economic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for millions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all the every endeavour shall be made to promote fraternity ensuring the dignity of the individual." In that case, the question was whether the labour is entitled to be heard before a company is closed and liquidator is appointed. In considering that question vis-a-vis Art. 43-A of the Constitution, this Court, per majority, held that they are entitled to be heard before appointing a liquidator in a winding up proceedings of the company.
29. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., (1992) 3 SCC 336: (1992 AIR SCW 1378), a Bench of three Judges considered the vires of S. 25-N of the Industrial Disputes Act on the anvil of Article 19 (1) (f) of the Constitution. It was held that the right of the Management under Article 19 (1) (f) is subject to the mandates contained in Articles 38, 39-A, 41 and 43. Accordingly, the fundamental right, under Art. 19 (1) (g) was held to be subject to the directive principles and S. 25-N does not suffer from the vice of unconstitutionality.
30. 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 the Constitution.
31. Yet another contention of the petitioners is that the workmen affected by asbestosis are suffering from lung cancer and related ailments and they were not properly diagnosed. They be sent to national institute and such of those found suffering from diseases developed due to asbestos, proper compensation be paid. It is needless to reiterate that they need to be re-examined and cause for the disease and the nature of the disease diagnosed. Thereon each one of them whether entitled to damages? The employer is vicariously liable to pay damages is unquestionable. The award of compensation in proceedings under Article 32 or 226 is a remedy available in public law. In Rudual Sah v. State of Bihar, 1983 (3) SCR 508: (AIR 1983 SC 1086), it was held that this Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was awarded. This view was reiterated in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746: (1993 AIR SCW 2366) and awarded monetary compensation for custodial death lifting the State immunity from the purview of public law. It is, 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 of India issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court form time to time, all the State Government 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 ILO, 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 judgement. In that view, it is not necessary to issue any direction to Union or Sate Governments 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 judgement but all the rules in that behalf in the above ILO rules. The Employees State Insurance Act and the Workmen's Compensation Act provide for payment to 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 necessary to protect such persons from the respective dates of cessation of their employment till date. Liquidated damages by way of compensation are accepted principles 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.
33. The writ petition is therefore, allowed. All the industries are directed (1) To maintain and keep maintaining the health record of every worker up to a minimum period of 40 years from the beginning of the employment whichever is later; (2) The Membrane Filter test, to detect asbestos fibre should be adopted by all the factories or establishments at par with the Metalliferrous mines Regulations 1961; and Vienna Convention and Rules issued thereunder, (3) All the factories whether covered by the Employees State Insurance Act or Workmen's Compensation Act or otherwise are directed to compulsorily insure health coverage to every worker; (4) The Union and the State Governments are directed to review the standards of permissible exposure limit value of fibre/cc in tune with the international standards reducing the permissible content as prayed in the writ petition referred to at the beginning. The review shall be continued after every 10 years and also as and when the I.L.O gives directions in this behalf consistent with its recommendations or any Conventions; (5) The Union and all the State Governments are directed to consider inclusion of such of those small scale factory or factories industries to protect health hazards of the worker engaged in the manufacture of asbestos or its ancillary products; (6) The appropriate Inspector of Factories in particular of the State of Gujarat, is directed to send all the workers, examined by the concerned ESI hospital, for re-examination by National Institute of Occupational Health to detect whether all or any of them are suffering from asbestosis. In case of the positive finding that all or any of them are suffering from the occupational health hazards, each such worker shall be entitled to compensation in a sum of rupees one lakh payable by the concerned factory or industry or establishment within a period of three months from the date of certification by the National Institute of Occupational Health.
34. The writ petitions are accordingly allowed. No costs.
A.M. Amhadi, C.J. and B.L. Hansaria and S.C. Sen, JJ.
HANSARIA, J. - Nainital, a beautiful butterfly, is said to be turning into an ugly caterpillar. According to the petitioner, this is due to: (1) water pollution; (2) air pollution; (3) noise pollution; and (4) "VIP pollution". This has naturally caused concern to all nature lovers and environmentalists, apart from the enlightened residents of Nainital. The concern has been felt to such an extent that a "Save Nainital Workshop" was organised by none else than the Department of Tourism and Environment of the U.P. Government in September 1989. In this workshop many papers were presented on different aspects highlighting sudden rise in vehicular traffic, illegal construction, encroachment and squatting, clustering, noise pollution, vanishing greenery resulting in landslides on Cheena Peak, maintenance of drains and pollution in the lake which has virtually become a dumping ground for rubble and public sewage. Despite organising of such a workshop, nothing much seems to have been done to preserve the pristine beauty of Nainital. Hence, by this petition Dr. Rawat, who is a member of social action group called "Nainital Bachao Samiti", has approached this Court seeking its assistance to pass such orders and give such directions as would prevent further pollution of already suffocating Nainital.
2. The environmental degradation has taken place, inter alia, because of increase in pollution, overgrazing, lopping and hacking of oak forests, forest fires, landslides, quarrying etc. The pollution in the lake is because of both inorganic and organic causes. The nearby minerals, namely, manganese, lead salts, copper, cobalt and zinc make the lake toxic for life-forms. The discharge of waste water into the lake is another polluting factor. But the most potent source of pollution is, as mentioned in the booklet "One Hundred and Fifty Years of Nainital", whose co-author is none else than the petitioner (the other author being one Deepak Singhal, who at the relevant time was District Magistrate, Nainital) "human faeces from -leaking, sewers" . The throwing of plastic bags and dumping of other materials have added to the throes of the lake.
The growing traffic, with the growth of the town and big turnout of tourists, has contributed much to the environmental pollution. The increased traffic has in its wake brought noise pollution. The petitioner -has said something about "VIP pollution" also.
3. By an order dated 14-7-1994, this Court had felt it fit, after having gone through the petition, to appoint a Commissioner for local inspection and to give report on the following points:
“(i) Whether, construction of building in catchment area of Nainital lake is still going on.
(ii) Whether Ballia Ravine through which the outflow of the Nainital lake water passes during the rains is in a dilapidated condition and on a fragile base.
(iii) Whether hill cutting and destruction of forest is going on in catchment area of lake and in Naini Hill especially due to construction of buildings.
(iv) Whether water of lake is being polluted by human waste, horse dung and other wastes.
(v) Whether heavy vehicles ply on the Mall Road, bridle paths on the hill sides and other vehicles ply on Bara Bazar and Talli Tal Bazar. "
4. The District Judge, Nainital, was directed to appoint an advocate of that court as a Commissioner. He appointed Shri P.C. Pande, who submitted his report on 2-9-1994. A perusal of that report shows that on local inspection it was found that the lake has turned dark green with an oily surface and is now full of dirt, human faeces, horse dung, paper-polythene bags and all sorts of other waste. Most of the sewer lines which leak ultimately disgorge the faecal matter into the lake through the drains which open into it. The Commissioner also found that wherever the drains open at the shores of the lake, big heaps of rubble used in construction of the buildings are collected and these materials ultimately settle down on the shores of the lake thereby reducing the length, depth and width of the lake, besides polluting the water to a great extent. It has been mentioned in the report that ecologists feel that if nothing was done to prevent this siltation then the lake will dry up.
5. On the five questions required to be examined by the Commissioner, which has been noted above, his findings are as below:
(i) Construction of buildings is going on unathorisedly and in a big way. The Commissioner has mentioned above illegal construction of office even by Kumaon Mandal Vikas Nigam of the State Government and Lake Development Authority, which constructed several triple-storied fiats which have been declared as dangerous.
(ii) The Ballia Ravine was found to be in a very dilapidated condition. The importance of the Ravine from ecological point of view is that the overflow of the water from the lake passes through it. But the revetment walls of the Nala have either given way or cracked at several places because of which the water seeps in the rocky wall endangering its existence. The point where Ballia Nala enters Ballia Ravine was found to be in shambles, as large cracks had developed owing to landslides and continuous soil erosion. In the year 1989 there was a big landslide causing death of 28 persons. The main cause of the landslides has been attributed to the blasting and felling of trees which was-done to construct a motorable road. Plying of heavy vehicles is said to be endangering the fragile hill slopes.
(iii) Hill-cutting and destruction of forests have been confirmed. The collusion of Forest Department officers has been mentioned as one of the causes of the illegal felling of trees. It has been stated that the forest offence is compoundable and the maximum compounding penalty is Rs. 5000, whereas the approximate value of the illegally cut trees varies between Rs. 10,000 and Rs. 25,000, of the tree after payment of the penalty, this has increased tree felling.
(iv) The lake water was found of human waste and horse dung and other wastes, as already noted. The horse-stand having been allowed to be erected near the lake and trotting around the lake being permissible, the report states horse dung in abundance enters and reaches the lake. The tourists who enjoy boating in the lake throw left over edibles and polythene-bags in the lake.
(v) The report states about plying of heavy vehicles like buses on the Mall Road and the bridge paths. They also enter Malli Tal and Talli Tal Bazars.
6. The Commissioner has made certain recommendations, of which the following deserve to be noted:
(i) Group housing and commercial complexes should be banned absolutely with immediate effect. Only small houses in flat areas, where there is no hill-cutting or felling of trees, should be allowed for residential purposes.
(ii) Heavy vehicles must be banned on the Mall Road and bridle paths.
(iii) Immediate steps must be taken on a war footing to stabilise the Ballia Ravine and Ballia Nala.
(iv) The lake must be cleaned and prevented from further pollution, for which purposes drains entering the lake must be maintained and the horses must not be permitted to go around the lake.
(v) Felling of trees should be made a cognisable offence.
(vi) Vehicular traffic on the mall has to be reduced. Heavy vehicles may not be permitted to ply on the mall.
7. We have duly considered the findings of the Commissioner and his recommendations. According to us, there cannot be two opinions about some preventive and remedial measures to be taken on war footing, as any delay would cause further degradation and complicate the matters. In our considered view, the following steps deserve to be taken urgently:
(i) Sewage water has to be prevented at any cost from entering the lake.
(ii) So far as the drains which ultimately fall in the lake are concerned, it has to be seen that building materials are not allowed to be heaped on the drains to prevent siltation of the lake.
(iii) Care has been taken to see that horse dung does not reach the lake. It for this purpose the horse-stand has to be shifted somewhere, the same would be done. The authorities would examine whether trotting of horses the lake is also required to be prevented.
(iv) Multi-storeyed group housing and commercial complexes have to be banned in the town area of Nainital. Building of small residential houses on flat areas could, however, be permitted.
(v) The offence of illegal felling of trees is required to be made cognisable.
(vii) The fragile nature of Ballia Ravine has to be taken care of. The cracks in the revetment of Ballia Nala have to be repaired urgently.
8. We do hope that all concerned would take concerted steps. For this purpose, a monitoring -committee, with one highly placed official of each of the authorities/department concerned, may be constituted. Two or three leading men of the public having interest in the matter, like the petitioner, may be co-opted in the Committee. The Committee may hold its meeting, to start with every month, and then every two months.
9. The petition is disposed of with the aforesaid directions and observations.
10. We pat with the hope that the butterfly would regain its beauty and would attract tourists not only in present but in future as well, which would happen if the beauty-would remain unsoiled. Given the will, it is not a difficult task to be achieved; the way would lay itself out. Let all concerned try and try hard. Today is the time to act; tomorrow may be late.
M/s. Narula Dyeing & Printing Works v. Union of India
AIR 1995 Gujarat 185
Special Civil Applications Nos. 12136, 12357 and 12165 of 1994, D/-10-1-1995
R. K. Abichandani, J.
(A) Water (Prevention and Control of Pollution) Act (1974), S. 25 - Establishment of industry - Industry likely to discharge trade effluent into stream - Conditional consent granted by State Board - Non compliance of condition - Consent would lapse.
A mere consent order issued by the State Board under S. 25(2) does not entitle the applicant to comply with the conditions mentioned in the consent order, as also to put up the effluent treatment plants within the time prescribed in the consent order. Failure to comply with the requirement of putting up effluent treatment plant results in lapse of the consent.
(B) Constitution of India, Arts. 226 and 227 - Jurisdiction under – Scope -Water Pollution by industry - Industry effluent exceeding tolerance limit - Opinion formed by water pollution Board - Based on analysis report - cannot be interfered with.
Water (Prevention and Control of Pollution) Act (1974), S. 25.
(C) Environment (Protection) Act, (1986), S. 5 - Powers of Central Govt. under - Exercise of - Guidelines for - It has to be drawn from nature of power conferred and nature of function of Central Govt.
(D) Environment Protection Act (1986), S.5 - Environment Protection Rules (1986), R.4 (5) - Direction to close industry - Dispensation of opportunity of hearing – Validity - Industry discharging effluent into irrigation canal causing damage to crops and fertile land - Direction not vitiated.
Constitution of India, Art. 14.
If the State Government become aware of its duties and take action for preventing further damage to the crops and the agriculture lands, because of the discharge of effluent into irrigation canal by an industry, it cannot be said that there is no justification for the State Govt. to direct closure of the industry because such action was not taken earlier. The gravity of the situation in the present case was in the extent of damage which was resulting due to discharge of such effluent. The Government is fully empowered to dispense with the opportunity being given for filing objections against the proposed directions in such cases of grave injury to the environment. The provisions of R. 4(5) are intended to safeguard the environment from any grave injury to it.
ORDER:- In this group of matters, the petitioners- Industrial units have challenged the action of the State Government taken under S.5 of the Environment (Protection) Act, 1986 (hereinafter referred to as “the said Act”), giving directions to them to stop production activities and take necessary steps to make the waste water being discharged by the units to conform to the standards specified by the Gujarat Pollution Control Board and not to restart the production activities without the permission of the State Government and Forest and Environment Department. The directions were issued by the Forest and Environment Department of the Government to these three industrial units under the impugned orders dt. 19th October, 1994.