National Green Tribunal
News Item Published In The Times Of India ... vs Coram: Hon'Ble Mr. Justice Adarsh Kumar ... on 2 December, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 285/2022
(With report dated 03.10.2022)
In re : News item published in The Times of India dated 19.04.2022 titled
"5 labourers from Bengal die in M'lru fish plant"
Date of hearing: 02.12.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Respondent(s): Mr. Mukesh Kumar, Advocate for KSPCB
ORDER
1. Proceedings have been initiated in this matter in the light of captioned media report to the effect that five workers have died due to toxic gases while cleaning the ETP tank of M/s Shri Ulka LLP, a fish processing unit in Mangaluru Special Economic Zone. Cause of death appears to be choking of the breathing system of the victims due to toxic gases due to absence of safety norms. The Commissioner asked the company to provide interim compensation of Rs. 10 lakhs each to the kin of the victims, pending determination of final compensation. West Bengal government has announced ex gratia payment of Rs.2 lac each to the kin of the victims.
Victims have been identified and named in the media report. A criminal case has been separately registered.
12. Vide order dated 26.04.2022, the Tribunal prima facie found that there appeared to be violation of environmental safety norms for disposal of waste water under the consent conditions under the Water (Prevention and Control of Pollution) Act, 1974. Accordingly, the Tribunal constituted a five-member joint Committee of RO MoEF&CC Bengaluru, CPCB, State PCB, District Magistrate and Secretary, Fisheries, Karnataka to undertake visit to the site, ascertain the cause of incident, status of compliance of applicable environmental safety norms and CTO, status of payment of compensation and measures to be adopted for preventing such occurrence in future. The Committee was to give a report and place the same on the website of the State PCB with a copy to the Project Proponent so that Project Proponent could file its response if any, before this Tribunal.
3. In pursuance of above, a report of the joint Committee has been filed on 03.10.2022 after visit to the site on 16.06.2022 and ascertaining the factual position. The Committee also interacted with the concerned Departments and ascertained the action taken by them in the matter.
4. Relevant observations in the report of the Committee are:-
"5. Cause of Incident:
The most probable causes of incident as per Investigation Officer of Department of Factories and Boilers are as follows:
1. In the background of the causes outlined above, with specific reference to the point mentioned below:
***It has been revealed after toxic substance monitoring done on 19th April, 2022 after disturbing the contents of the effluent in the collection tank where the said incident has occurred and readings of above 10 ppm and 15 ppm of toxic hydrogen sulphide gas were obtained which are the time weighted average concentration and short term maximum concentration respectively as mentioned under Rule 131A of the Karnataka Factories Rules, 1969.
These were just sample readings which had been taken with lot of difficulty, if the exercise could have been carried out by going down with SCBA and doing the monitoring certainly higher level of readings could have been obtained. One of the 2 readings has gone upto 73 ppm also, which could not be photographed , which clearly shows the presence of a very high and dangerous concentration of the toxic hydrogen sulphide gas , which must have certainly been much higher on the day of the accident i.e 17th April,2022,when the workers have directly placed their legs inside the effluent resulting in escape of large quantities of the extremely toxic hydrogen sulphide gas, thus exposing all the workers who have gone down into the tank and inhaled this toxic gas resulting in their subsequently being declared dead after falling unconscious in the pit itself.
2. In the background of the causes outlined, the Occupier has failed to provide such information, instruction, training and supervision as are necessary to ensure the health & safety of all workers at work in the factory, thus contravening Section 7A (2[c]) of the Factories Act, 1948.
3. The Occupier has failed to maintain all places of work in the factory in a condition that is safe and without risks to the health and provision and maintenance of such means of access to and egress from such places in a safe manner and without risks, thus contravening Section 7A (2[d]) of the Factories Act, 1948.
4. The Occupier has failed to provide for, maintain and monitor such working environment in the factory for the workers that is safe , without risks to health, thus contravening Section 7A (2[e]) of the Factories Act, 1948.
5. In view of the above, it is clearly evident that the Occupier & Manager of the above factory have failed to ensure that the time weighted average concentration of hydrogen sulphide at any work location in a factory on any day shall not exceed the limit of the permissible time weighted average concentration specified in Table 1 of the schedule under Rule 131A of the Karnataka Factories Rules, 1969. Thus, they have contravened the provisions of sub rule 2 of the Rule 131A of the Karnataka Factories Rules, 1969.
6. Further, it is clearly evident that the Occupier and Manager of the above factory have employed an adolescent worker Shri. Mohammed Samiul Islam, aged below 18 years in the factory, who has also succumbed in the above accident. The Occupier and Manager of the above factory have allowed him to work in the factory without getting a certificate of fitness granted to him under Section 69 of the Act, to be kept in the custody of the Manager of the factory, thus contravening the provisions Section 69 of the Factories Act,1948.
7. The Occupier & Manager of the above factory have failed to display the Notice of Periods of Work for Adult Workers in Form-
10, thus contravening the provisions of Section 61(1) of the Factories Act, 1948 read with Rule 111 of the Karnataka Factories Rules, 1969.
8. The Manager of the above factory has not kept & maintained a register of adult workers and the same was not made available to the undersigned on 18th, 19th or 20th April,2022 during the 3 working hours of the factory which is a contravention of Section 62(1) of the Factories Act, 1948.
9. The Manager of the above factory has not kept & maintained a Register of Leave with Wages and the same was not made available to the undersigned on 18th, 19th or 20th April,2022, on demand, this is a contravention of Rule-119 & 120 of the Karnataka Factories Rules, 1969.
10. The Manager of the above factory has not kept & maintained a Register of Accidents & Dangerous Occurrences; this is a contravention of Rule-138 of the Karnataka Factories Rules, 1969.
11. The management has engaged its workers on overtime work, for a period exceeding the prescribed weekly hours specified under section 51 of the Factories Act, 1948. Thus the Occupier & Manager of the above factory have contravened the provisions of Section-51 of the Factories Act, 1948.
12. The management has engaged its workers on overtime work, for a period exceeding the prescribed daily hours specified under section 54 of the Factories Act, 1948. Thus the Occupier & Manager of the above factory have contravened the provisions of Section-54 of the Factories Act, 1948.
13. As mentioned above, the management have put up the effluent treatment plant and other connected machinery without obtaining prior approval from the Department of Factories, in view of the Occupier & Factory Manager of carrying out the above changes, without obtaining prior approval of plans from the Department of Factories, the Occupier & Manager of the above factory have contravened the provision of Rule-3(1) of the Karnataka Factories Rules, 1969.
The above accident resulting in the death of 5 workers has occurred on 17th April, 2022, but the management of the above factory have failed to send a report of the accident in Form17 to the office of the D.D Factories within stipulated time as per law. They have submitted this report only on 06th May, 2022 after the investigation had been taken up by the D.D Factories.
As per the provisions of Rule130 (3) of the Karnataka Factories Rules, 1969:
"For any fatal accident in the factory , after giving notice about the incident, the same shall be confirmed to the concerned authorities which includes the Inspector under the Factories Act,1948, ,within 12 hours of the accident by sending a written report in Form-17." Thus, by not ensuring the above, the Manager of the above factory, has contravened the provision of Rule130 (3) of the Karnataka Factories Rules, 1969.
14. Further as explained above, the management has failed to submit the information sought for & the same was sought from the management to verify details & for ensuring compliance to the provisions of the Factories Act, 1948. Any such information sought by an Inspector under the Factories Act, 1948 shall be 4 furnished within 7 days from the date of receipt of such directions as per the provisions of Rule-136 of the Karnataka Factories Rules, 1969. Thus the Occupier & Manager of the above factory by not furnishing the said information within the prescribed time have contravened the provisions of Rule-136 of the Karnataka Factories Rules, 1969.
15. The Manager of the above factory has failed to submit the annual returns for the year ending 2021 within the prescribed time and the same is not submitted till date, thus contravening Rule-134(1)(a) of the Karnataka Factories Rules, 1969, copy enclosed as Annexure-25.
6. Status of Payment of Compensation:
As per the details provided by the Department of Labour, office of the Labour Officer, Dakshina Kannada District, Division-1, the calculation under Workmen Compensation Act,1923 for the deceased employees based on Minimum Wages Act 2021-22 Schedule 34 Employment in Fish Catching , Fish Processing, Fish Peeling, Prawns/Crab processing and exporting of Frog legs Notification No. KAE 81 LWA 2015 dated:04.08.2016 has been calculated and submitted on 18.04.2022 and the Industry Authorities' have released the interim compensation of Rs.15,00,000/-(Fifteen Lakhs only) to each legal heirs of deceased under the provision of the Employment Compensation Act, 2017. Copy of details submitted by Labour Department enclosed as Annexure-26.
7. Environmental Safety Violation at the time of Accident:
There is collection tank before being pre-treated in DAF and sent to CETP for further treatment. At the time of incident, collection of effluent was of small quantity, where the workers have gone to attend minor maintenance work of removal of blocks in the pipe line. The effluent has not come out of the tank or spilled to any other water bodies or land. It is not clear how many days they have stored the effluent in this tank.
The industry authority has not appointed any Environmental Engineer to oversee the operations & the environmental aspects within the industry whole operation of cleaning the tanks have been carried out on a Sunday evening without the presence of any trained senior shift supervisor. The workers were not trained, not provided proper personal protective equipments (PPE's) for entry such tanks. There are no Ambulance or trained First aid personal available during shift.
8. Measures suggested for preventing such occurrence in future:
1. As per the CFO conditions issued by KSPCB, Industry authorities should send the effluents directly to CETP after Pre- treatment. They should not allow it in the tank for longer period.
2. The cleaning/maintenance work have to be undertaken, under the supervision of trained technical manpower.
3. Personal Protective Equipment's (PPEs) to be provided to all the workers, they must be trained to use them and must be invariably insisted on when they are at work.
4. All workers to be trained for environment health and safety aspects.5
5. Factory authorities shall follow all the provisions outlined in Factories Act, 1948.
6. Ambulance and First Aid provision have to be maintained.
7. CCTV and flow meters are to be provided at crucial points including effluent collection tank and discharge points to CETP.
8. Qualified Environmental Engineers have to be appointed to look after the Environmental aspects in the premises.
9. The risk involved in operation and maintenance of ETP shall be assessed and risk assessment report shall be prepared by the industry. Workers should not be allowed to commence maintenance of the necessary safety precautions as recommended in the risk assessment report have been carried out.
10. Concentrations of hazardous gases present in the ETP/sludge tanks should be monitored using multiple sensor gas monitors and air monitoring instruments through trained and experienced manpower.
11. Appropriate measures shall be implemented for suction and venting of gases in the components of ETP prior to commencing maintenance work.
12. The cleaning activity in the factory and treatment units shall be mechanised.
13. The industry authority must obtain NOC from Fire and Emergency Service, Government of Karnataka and sign an MOU with nearby industries so that they can get help in case of emergency.
9. Conclusion:
1. Industry has violated the safety norms as per Factories Act, 1948.
2. From, the reports of KSPCB, it is evident that the industry at times has discharged industrial effluents into neighbouring storm water drains.
3. From the detailed report above, it is clear that the industry is violating the safety norms and contravened the provisions of Factories Act, 1948 and Water (Prevention and Control of Pollution) Act, 1974."
5. From the above, it is clear that there are violations of safety norms by the PP in conducting its operation which has resulted in the incident in question. The Labour Department of the State has assessed compensation as per Employees Compensation Act, 1923 which has been paid by the unit. The Committee has suggested measures to prevent such occurrences.
We accept the report and direct that the suggestions of the Committee be duly addressed by the concerned statutory authorities. Karnataka PCB 6 may permit the operation of unit only after ensuring compliance to the conditions of consent and of the measures suggested by the Committee.
6. We place on record our appreciation for the comprehensive work undertaken by the Committee which may be conveyed to the Member of the Committee by the CPCB.
The application is disposed of.
A copy of this order be forwarded to MoEF&CC, CPCB, Chief Secretary, Karnataka, Karnataka State PCB by e-mail for compliance. A copy of this order be also forwarded to the Project Proponent for information and compliance.
A copy of this order be also forwarded to Karnataka Legal Services Authority by e-mail.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM December 02, 2022 Original Application No. 285/2022 SN 7