National Green Tribunal
Aditya Roop Singh Chauhan vs Ministry Of Environment And Forest And ... on 29 May, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Original Application No.60/2022(WZ)
I.A. No.23/2023(WZ)
IN THE MATTER OF:
ADITYA ROOP SINGH CHAUHAN
Office:- 25/2, Jayshree Shopping Center GIDC,
Vatva Road, Vatva, Ahmedabad,
State of Gujarat - 382 440.
.....Applicant
Versus
1. The Ministry of Environment, Forest and Climate Change
Indira Paryavaran Bhavan,
Vayu Wing, 3rd Floor, Aliganj,
Jor Bagh Road, New Delhi-110 003.
2. The Chief Secretary, State of Gujarat
Block No.1, New Secretariat Sector-10,
Gandhinagar, Gujarat - 382 010.
3. The Chairman, Central Pollution Control Board
Parivesh Bhawan, East Arjun Nagar,
Delhi-110 032.
4. The Chairman, Gujarat Pollution Control Board
Corporate Office - Paryavaran Bhavan,
Sector - 10A, Gandhinagar,
Gujarat -382 010.
5. The Managing Director,
M/s Bharat Rasayan Limited (Unit-II)
Plot No. 42/4, Amod Road,
District:- Bharuch, Gujarat.
.....Respondent(s)
Counsel for Applicant:
Mr. A.K. Singh, Advocate
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1/MoEF&CC
Mr. Aniruddha S. Kulkarni, Advocate for R-3/CPCB
Mr. Maulik Nanavati, Advocate for R-4/GPCB
Mr. Sanjay Upadhyay, Senior Advocate along-with
Mr. Saumitra Jaiswal, Advocate for R-5/PP
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 1 of 67
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Reserved on : 05.04.2024
Pronounced on : 29.05.2024
JUDGMENT
1. The present Original Application has been moved under Section 18(1) read-with Sections 14, 15, 17 and 20 of the National Green Tribunal Act, 2010 raising a substantial issue relating to environment arising out of an accident, which happened in a factory of M/s Bharat Rasayan Limited (Unit-II) at Plot No.42/4, Amod Road, District:- Bharuch, Gujarat on 17- 05-2022 at 3.10 AM. But as per intimation by the Industry to Assistant Director (Chemical Safety) accident occurred at 15:30 hrs., in which 8 persons died and 29 got injuries. The accident appears to have been caused due to defect in a reactor during the production of Cypermethric Acid Chloride in the company. The blast led to fire in the storage tanks, which released harmful chemicals in the air and fire tenders sprayed water to bring the fire under control, therefore, the water used to extinguish fire containing the harmful and toxic chemical also caused air, land and water pollution in the surrounding areas. This occurrence was reported in a newspaper report, which is annexed as Annexure A-1.
2. The applicant is claiming himself to be a resident of Gujarat State, who has raised concern about the safety and health of workers in the respondent No.5's industry. It is submitted in this application that the respondent No.5 obtained amended EC on 19-10-2020 but it did not follow the health and safety norms and stored huge quantity of hazardous substances in excess of permissible limits. The respondent No.5 changed the scope of the project and had not followed the standard procedure for Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 2 of 67 operation of boiler and also it had not installed the leak detector and repair system.
3. It is further mentioned in this application that this Tribunal heard the matter in Original Application No.43/2022 (Aryavart Foundation V/s M/s Atul Limited & Ors.), in which the same issue occurred, wherein prayer was made that an Expert Committee be constituted to investigate into the circumstances which led to the blast; to determine the causes of the said blast; and to assess the environmental damage compensation like this Tribunal had passed orders in other accident cases. Therefore, it is prayed in the present Original Application that having regard to the damage caused to the public health, property and environment, based on the principles of sustainable development and polluter pays principle, appropriate action be ordered against the Respondents as per the law.
4. This matter was first considered by us on 18.07.2022 when the same was admitted and notices were directed to be issued to the respondents.
5. From the side of respondent No.4- GPCB, reply affidavit dated 12.08.2022 has been filed, wherein it is submitted that pursuant to the accident that happened on 17.05.2022, the Officials from the Fire Department; Directorate of Industrial Safety and Health; Gujarat Pollution Control Board and other statutory authorities rushed to the site of accident. Necessary steps were taken for dousing the fire and controlling the damage caused by the accident. Instructions were given by the officials of the statutory authorities, including the Pollution Control Board, for safe and environment friendly disposal of the water used for dousing the fire. Samples of the contaminated water/waste water generated from fire- fighting activity were collected. Ambient air quality was constantly being Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 3 of 67 monitored by the officials of the Pollution Control Board. The cause of blast and the ensuing fire, as also the extent of damage caused by the incident, could not be ascertained immediately. A direction was issued by the Inspector under the Factories Act, 1948 prohibiting further use of the entire factory. Similarly, a closure direction was issued by the State Pollution Control Board for closure of the entire industrial unit of respondent No.5, a copy of which is annexed as Annexure- R-1.
6. It is further mentioned in this affidavit by the respondent No.4- GPCB that the respondent No.5- M/s Bharat Rasayan Limited got conducted load calculation and structural stability study for the other plants, namely Plant A, B and C (accident happened in the Plant D) of the industry and it was observed that buildings as well as plants and machinery in the area of factory had not sustained critical damage in the accident. The electrical fittings installed in the above-mentioned three plants were also inspected by an approved agency. Hazard and Operability (HAZOP) study for Plant A, B and C was performed by an accredited agency and the report thereof was submitted by the industrial unit. After considering the various reports of expert agencies, as submitted by the industrial unit- respondent No.5, and after conducting an independent examination and evaluation at the site, the Directorate of Industrial Safety and Health issued an order dated 13.06.2022 permitting use and commencement of operation in Plant A, B and C of the factory.
7. It is further mentioned in this affidavit by the respondent No.4- GPCB that looking to the fact that GPCB was not concerned with the safety of the building or part of a building or any part of the ways, machinery or plant in a factory as its jurisdiction was restricted to impact on the environment, including damage that might have been caused to the environment (air, water and soil), it issued instructions to the respondent Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 4 of 67 No.5 for containing the contaminated water/waste water generated from firefighting activity within the premises. A total of 1396 Kilo Litre of waste water was generated during this activity and the same was safely stored within the premises. Out of it, 800 Kilo Litre waste-water was transferred to the Effluent Treatment Plant and the balance of 596 Kilo Litre was transferred to Multi-Effect Evaporator (MEE) for further treatment. The entire quantity of waste-water was disposed of in a safe and environment friendly manner by the factory, which was supervised by the answering respondent. At the time of accident and immediately thereafter, the ambient air quality was monitored by the Pollution Control Board, a marked increase of particles with diameter of 10 microns or less (PM10) was found in surrounding areas where the said accident happened. However, air quality improved after the fire was doused at the said site. No case of any respiratory problem were noticed in the surrounding area.
8. It is further mentioned in this affidavit by the respondent No.4- GPCB that the material collected at the time of accident and thereafter, as per the record available, it was concluded that incident of fire, which took place in the factory of respondent No.5, did not cause damage to the environment. However, the Board was not able to decisively determine the nature and extent of damage caused by the accidental blast and fire, which resulted in release of chemicals and other material in the environment. In the case in hand, in fact, the extent of damage being unascertainable, the State Pollution Control Board, considering the type (Red) and scale (Large) of the industry, determined Rs.1,50,00,000/- as interim environment damage compensation, which the respondent No.5 had deposited with the Board and thereafter, a notice had been issued to the respondent No.5 calling upon it to submit its response prior to passing of the final order assessing the environment damage compensation. An Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 5 of 67 inspection was carried out on 18.06.2022 and in this inspection, all compliances were found to have been done by R-5 for Plants A, B and C of the factory. Considering the order of Director Industrial Safety and Health, Gujarat, permitting use and commencement of operations in Plant A, B and C and observing nothing adverse by the Board, the earlier direction for complete closure of the factory was modified by the Respondent Board to the effect that except unit for the Plant D of the respondent No.5, rest of the units i.e. Plant A, B and C were permitted to be run.
9. From the side of respondent No.1- MoEF&CC, reply affidavit dated 17.08.2022 has been filed, wherein it is submitted that respondent No.1 had notified the Manufacture, Storage and Import of Hazardous Chemicals (MSIHC) Rules, 1989 on 27.11.1989. These rules have been notified to put in place a regulatory mechanism aimed at putting in place an operational safety framework in industries dealing with hazardous chemicals, in order to avoid chemical accidents. Thereafter, the Ministry notified the Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996 on 01.08.1996 to supplement the MSIHC Rules, 1989.
10. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that Rule 2 of the MSIHC Rules, 1989 deals with the 'definition clause' and further defines: "Major accident means- an accident involving loss of life inside or outside the installation, or ten or more injuries inside and/or one or more injuries outside or release of toxic chemicals or explosion or fire or spillage of hazardous chemicals resulting in on-site or off-site emergencies or damage to equipment leading to stoppage of process or adverse effects to the environment." That Rule 5 of the said rules provides for 'Notification of Major Accident' which inter-alia includes the following:-
"ii. The concern authority shall on receipt of the report in accordance with sub-rule 1 of this rule, shall undertake a full analysis of the major Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 6 of 67 accident and send the requisite information within 90 days to the Ministry of Environment and Forests through appropriate channel. iii. An occupier shall notify the concerned authority, steps taken to avoid any repetition of such occurrence on a site. iv. The concerned authority shall compile information regarding major accidents and make available a copy of the same to the Ministry of Environment & Forests through appropriate channel. v. The concerned authority shall in writing inform the occupier, of any lacunae which in its opinion needs to be rectified to avoid major accidents.
vi. Where a major accident occurs on a site or in a pipe line, the occupier shall within 48 hours notify the concerned authority as identified in Schedule 5 of that accident, and furnish thereafter to the concerned authority a report relating to the accidents in instalments, if necessary, in Schedule 6."
11. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that to complement the provisions of MSIHC Rules- 1989, the CAEPPR Rules, 1996 provides statutory backup for setting up a Crisis Management Framework and Associated Organizational Support in the country. The Chemical Accidents (CAEPPR) Rules, 1996 envisage a Four- tier Crisis Management System in the country at the Central, State, District and Local levels. A Central Crisis Group had been constituted in compliance with Rule 3, under the chairmanship of Secretary (EF&CC). A Central Crisis Group Alert System i.e. Red Book had also been brought, in compliance with Rule 4, to facilitate quick information exchange during chemical emergencies. The Red Book contains name, address and contact details of Central and State Nodal authorities, relevant national agencies/ institutes pertaining to chemical (industrial) disaster management. The Red Book was hosted on the website of MoEF&CC and updated annually. The last update was done in March-2022. A virtual crisis control room is also set-up in the MoEF&CC to coordinate with State Authorities during chemical (industrial) accident emergencies.
12. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that to prevent chemical (industrial) accidents in the country, Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 7 of 67 the concerned Central/ State authorities have been delegated responsibilities as per Schedule 5 of the MSIHC Rules, 1989. The key stakeholders to monitor and enforce safety related provisions in the industries dealing with hazardous chemicals are the State Chief Inspector of Factories (CIFs) or the Directorate of Industrial Safety and Health (DISH) constituted under the Factories Act, 1948. Besides the above, the Petroleum and Explosives Safety Organization (PESO) has also been made the nodal agency to approve and notify the sites of pipelines carrying hazardous chemicals including inter-sate pipelines. The PESO has also been mandated to accept On-site Emergency Plans, review the safety reports and safety audit reports submitted by occupiers. PESO is also mandated to enforce directions and procedures under the Explosives Act, 1884 as well as the Petroleum Act, 1934. The above-mentioned three authorities namely the PESO and the CIFs or DISH, while giving approvals to industrial units, transportation pipelines and isolated storage are expected to ensure preparation of on-site emergency plans & safety reports by units, reviewing the details of mock-drills conducted and implementation of Standard Operating Procedures (SOPs) of industrial operation by the unit from the industrial safety point of view.
13. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that in compliance with the directions of this Tribunal in the matter of O.A. No.60/2021 (related to the chemical accident at M/s UPL Limited, Bharuch, Gujarat in Feb-2021), this Ministry and Central Pollution Control Board (CPCB) had prepared guidelines for the safety audit of chemical industries. The compilation was submitted as 'Integrated Guidance Framework for Chemicals Safety in respect of Isolated Storage(s) and Industries covered under MSIHC Rules, 1989' and duly taken on record by the Tribunal. Thereafter, the framework was shared with all the Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 8 of 67 States/ UTs for implementation. A copy of which is attached as Annexure- R-3 at page nos.209 to 312 of the paper book.
14. It would be appropriate to cull out the relevant portion of the said guidelines, in order to analyze as to whether the compliance of these directions were done by the appropriate authorities:-
"Assessing the hazard potential of an installation is the first step in planning for emergencies. Preliminary Hazard Analysis which comprises hazard identification and vulnerability analysis should always be carried out at the conceptual stage for all installations including small and medium installation. However, Major Accident Hazard (MAH) installations, both existing and proposed ones, should carry out a risk analysis.
Hazard Analysis:
Hazard analysis is a critical component in planning for emergencies. To analyse the safety of a major installation as well as its potential hazards, a hazard analysis should be carried out covering the following areas:
i. The toxic, reactive, explosive or flammable substance in the installation that constitute a major hazard.
ii. The failures or errors that may cause abnormal conditions leading to a major accident.
iii. The consequences of a major accident for the workers, people living or working outside the installation and the environment.
iv. Preventive measures for accidents.
v. Mitigation of the consequences of an accident.
Vulnerability Analysis:
Considering the maximum loss scenario e.g. catastrophic vessel rupture, the occupier may estimate the vulnerable zone or the zones which will be affected by the release of hazardous chemicals. It should be borne in mind that every effort should be made to confine the vulnerable zone within the factory premises. In order to achieve this, the following could be adopted:
i. Reduce the quantity of hazardous substances stored. ii. Split the hazardous storages into number of smaller ones. iii. Isolate the storages that might lead to cascading effect. iv. Substitute extremely hazardous substances with less hazardous substance.
Risk Analysis:
Risk analysis can provide a relative measure of the likelihood and severity of various possible hazardous events and enable the emergency plan to focus on the greatest potential risks. Risk analysis Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 9 of 67 involves an estimate of the probability or likelihood that an event will occur.
C. Guidelines for the Concerned Authority:
1. The State Pollution Control Boards (SPCBs)/ Pollution Control Committees (PCCs ) shall ensure that while issuing Consent to Establish (CET) or Consent to Operate (CTO) or renewing CET / CTO accorded to a plant, industry or process under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution ) Act, 1981, details on Onsite Emergency Plan, Safety Reports and Safety Audit Reports in accordance with The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended), be compulsorily sought from occupier, industry or installation handling hazardous chemicals in quantity equal to or more than the threshold quantity specified in the said rules.
2. The concerned authorities shall seek report from the occupier of the site in the event of major accident and shall undertake a full analysis of the major accident and send the requisite information within 90 days to the Ministry of Environment, Forests and Climate Change.
3. The concerned authorities in the event of major accident shall seek report from the occupier of the site regarding steps taken to avoid any repetition of such occurrence of accident on the site and The concerned authorities shall in writing inform the occupier, of any lacunae which are needed to be rectified to avoid major accidents.
4. The concerned authorities shall ensure that any person responsible for importing hazardous chemicals in India shall provide before 30 days or as reasonably possible but not later than the date of import to the concerned authorities in accordance with Rule 18 of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended).
5. The concerned authorities shall direct the importer to take appropriate safety measures if the concerned authorities are satisfied that the chemical being imported is likely to cause major accidents.
6. The concerned authorities shall direct stoppage of import of the chemical which it considers not to be imported on safety or on environmental considerations and the concerned authorities shall simultaneously inform the concerned Port Authority to take appropriate steps regarding safe handling and storage of hazardous chemicals while off-loading the consignment within the port premises.
7. The concerned authorities shall ensure that any person importing hazardous chemicals shall maintain the records of the hazardous chemicals imported as specified in Schedule 10 of The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended) and the records so maintained shall be open for inspection by the regulatory authorities.
8. The concerned authorities shall ensure that any industry / isolated storage involved in the manufacturing, storage and Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 10 of 67 import of hazardous chemicals shall comply with the stipulated provisions of The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended).
9. The offsite emergency plans as well as the management of chemical accidents may be integrated with the district level disaster management plan.
10. Local administration / Directorate of Industrial Safety and Health, SPCBs/ PCCs should keep stringent surveillance to avoid accidents at industries / isolated storages and to prevent environment damage.
11. Periodic inspections including surprise inspections should be conducted .by concerned authorities to assess the safety measures and documents maintained by the industry / isolated storage. If found not complying, necessary action shall be initiated against the industry / isolated storage.
12. Maintenance of buffer zone for all industries / isolated storages, stoppage of encroachments and policy of not allocating residential houses near to industries / isolated storages should be strictly followed by the concerned authorities of State / Union Territory / Central Government.
13. Risk assessment mapping of the industrial areas may be done w.r.t. gas leakages, fires, explosion etc.
14. Awareness of the public residing around the isolated storages, industrial areas or industrial accident prone regions to deal with emergency situations shall be done by the industries / isolated storages as well as the district administration.
15. Each industrial pocket shall have a Local Crisis Group which shall act as per the Stipulations of The Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996.
16. The District crisis group, State Crisis Group and the Central Crisis Group should act in accordance with The Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996.
17. Industries / isolated storages shall not be allowed to operate in a non-industrial zone. The District administration shall ensure that there shall not be any unauthorized storage of hazardous chemicals.
18. Land use planning decisions by public authorities should be taken after considering all aspects related to safety viz. possible hazards / anticipated accidents at the hazardous installations, cumulative risk of various hazardous installations situated in vicinity, safe distance for the surrounding localities, buffer zones, applicability of rescue plans in the eventuality of accidents etc.
19. State Government should devise their own system in accordance with the basic provisions provided in The Major Accident Hazard Control Rules (under Factories Act, 1948). As per these rules the safety audit should be conducted by an independent accredited auditor, and every time a fresh audit should be carried out with a periodicity of one year.Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 11 of 67
20. Special courses should be designed for auditing the industries/ Isolated storages to build competence and capabilities in our country which includes hazard identification and risk assessment.
21. Comprehensive safety audit must be carried out by trained professionals and the corrective actions recommended by them should be implemented in a time bound manner. The comprehensive safety audit should include policy, procedure and practices to minimise the risk of exposure of people and environment to potentially hazardous chemicals.
22. The states and districts which are lagging behind in conducting the safety audits of the industries / isolated storages should be prioritised.
23. The gap between two consequent audits can be further minimized by taking the entire procedure online so that the recommendations enumerated during the audit are available for the next audit. In this way, it is a new safety audit become well-versed with the points of previous audits.
24. A robust and updated online mapping system, portraying all the hazards happening in the country can prove to be an aide in conducting the safety audits. A GIS- based system can be developed mapping all the hazards occurring in the industries containing all the information about the incident, which can be harnessed to make proper evaluations. This information can also be shared by the administrative authorities so that a prompt action can be taken to minimize the damage caused by the accident.
D. Guidelines on the Off Site Emergency Plans (for Concerned Authorities):
1. The concerned authority (as identified in Column 2 of Schedule 5 of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended)) shall prepare and keep up-to-date an adequate off-site emergency plan containing particulars specified in Schedule 12 (of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended)) and detailing how emergencies relating to a possible major accident on that site will be dealt with and in preparing that plan the concerned authority shall consult the occupier, and such other persons as it may deem necessary.
2. For the purpose of enabling the concerned authority to prepare the off-site emergency plan the occupier of an industrial activity / isolated storage shall provide the concerned authority with such information relating to the industrial activity under his control as the concerned authority may require, including the nature, extent and likely effects off-site of possible major accidents and the authority shall provide the occupier with any information from the off-site emergency plan which relates to his duties under rule 13 (of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended)).Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 12 of 67
3. In the case of a new industrial activity, before that activity is commenced, the concerned authority shall prepare off site emergency plan.
4. The concerned authority shall ensure that a rehearsal of the off-
site emergency plan is conducted at least once in a calendar year.
5. All districts having major hazard installation should have an off-
site emergency plan.
6. The off-site emergency plan should be updated from time to time, especially when a new process is started or new units are established.
7. An off-site emergency plan should have the following important components :
i. Aims & Objectives of the Plan ii. Planning Team iii. Hazard Analysis and Quantification iv. Assessment of Capabilities v. Information regarding relevant past incidents / anticipated incidents.
vi. Authorities for responding
vii. Names and addresses of the key personnel with contact
numbers for emergency assistance
viii. Response components viz. Control Room, Communication amongst responders, Warning System/Emergency Notification , Public information, Resources Mobilisation and Management, Health and Medical Response, Public protection including evacuation, firefighting and rescue plans, law and order, ongoing incident assessment.
ix. Containment, clean up and disposal,
x. Mechanisms for plan testing and updating, community
awareness, preparedness and training.
E. Guidelines on Safety Audit:
1. The safety audits should be conducted by the competent agency to be accredited by an Accreditation Board to be constituted by the Ministry of Labour and Employment, Government of India in this behalf and in absence of such Accreditation Board by a competent agency approved by Chief inspector of Factories.
2. The qualifications and experience of safety auditor should be as per extant rules.
3. The safety auditor carrying out the safety audit under Rule 10 of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (MSIHC Rules, 1989) shall bring out the status of compliance by the occupier in his safety audit report in addition to the compliance of provisions of the MSIHC Rules, 1989 (as amended from time to time) and the state CIMAH Rules. A copy of the safety audit report to be forwarded by the safety auditor to the concerned authority as identified under schedule 5 of the MSIHC Rules, 1989.Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 13 of 67
4. The audit should be carried out as per IS 14489:2018 - Code of Practice on Occupational Safety & Health Audit (as amended time to time).
5. The broad areas to be covered in the Safety Audit should be:
i. Occupational Health and Safety Management ii. Physical, Mechanical and Electrical Hazards and their Control Measures iii. Chemical Hazards and their Control Measures iv. Fire and Explosion Hazard and their Control Measures v. Industrial Hygiene/Occupational Health vi. Accident/Incident Reporting, Investigation and Analysis.
vii. Emergency Preparedness (On-Site/ Off Site)
viii. Safety Inspection
6. The Objectives of Safety Audit should be :
i. To examine the existing procedures, system and control measures for hazards.
ii. To assess the adequacy of hazard identification. iii. To identify potential hazards not covered by the existing safety systems, procedures and practices.
iv. To identify the adequacy of the control measures put in place by the occupier.
v. To bring out any deviation from the set procedures and statutory noncompliance.
vi. To recommend improvements for better effectiveness of the existing safety system, procedures & practices and also other measures of hazards control.
vii. To recommend system, procedure and control measures for identified hazards.
viii. To study compliance with statutory provisions and relevant codes of practice and recommend actions to be taken, wherever there is noncompliance.
ix. To identify the compliance with the provisions under these guidelines."
15. From the side of respondent No.3- Central Pollution Control Board, reply affidavit dated 17.08.2022 has been filed, wherein we find nothing specific mentioned in this affidavit with respect to the averment made by the applicant in the present Original Application.
16. From the side of respondent No.5- The Managing Director, M/s Bharat Rasayan Limited (Unit-II), Bharuch, Gujarat, reply affidavit dated Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 14 of 67 22.09.2022 has been filed, wherein denying all the allegations, it is submitted that the industrial accident, which occurred in Plant D of the unit of the answering Respondent on 17.05.2022, was due to pressure generated within the reactor No.527, which led to bursting of Rupture disk provided on reactor and simultaneously, the reactor was detached from flange joint of rupture disc, vapor column and utility lines, which led to vapor cloud explosion and fire. This accident occurred despite all precautions having been taken in the unit of the answering Respondent, therefore it is difficult to pinpoint the exact reason of this accident. But taking into consideration the principle of absolute liability, the answering Respondent has owned the responsibility of accident and all remedial measures required under the law or otherwise are being undertaken to remedy and rectify any impact of the accident to life and property.
17. It is further submitted in this affidavit by the respondent No.5-PP that the answering Respondent has already released various compensations, reliefs, environment compensation and gratuity among others and has also taken steps to ensure that such incident does not recur. Therefore, in view of the steps taken by the answering Respondent, the present application has become infructuous.
18. It is further submitted in this affidavit by the respondent No.5-PP that the answering Respondent is engaged in manufacturing of agrochemicals and their intermediates, which are used on crops as weedicides, herbicides, fungicides and insecticides and providing employment to approximately 500 people directly and 600 people indirectly. The answering Respondent had obtained prior Environment Clearance (EC) dated 13.07.2009 under the Environment Impact Assessment Notification 2006 by the name of M/s Siris Crop Science Limited and also obtained its Consent to Establish on 17.07.2010 under Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 15 of 67 the Water (Prevention and Control of Pollution) Act, 1974, which had been subsequently amended on various occasions. The last being in December 16, 2021. In pursuance to a valid EC and CTE, construction of the project was started and the unit stood established on 30.11.2011. Later on, M/s Siris Crop Science Limited was merged and accordingly, the name had been changed to M/s Bharat Rasayan Limited. Accordingly, the MoEF&CC vide letter dated 05.09.2012 transferred the EC dated 13.07.2009 in its name. Subsequently, the answering respondent had been granted a Consolidated Consent and Authorization (CC&A) on 20.06.2013, which was valid till 10.09.2017, which was renewed upto 11.10.2022, a copy of which is annexed as Annexure- R/4.
19. It is further submitted in this affidavit by the respondent No.5-PP that the returns using Form 3 and Form 4, which were required to be submitted to the Gujarat Pollution Control Board under the Hazardous Waste Management Rules- 2016, had also been submitted regularly. In the year 2020, the answering respondent had applied to MoEF&CC- respondent No.1 for expansion of its unit. On 19.10.2020, respondent No.1- MoEF&CC granted EC for expansion of the unit from 12,300 TPA to 29,200 TPA. A copy of the said EC is annexed as Annexure A-4 at Page Nos.112-124 of the paper book. The answering Respondent has also been duly submitting its six-monthly compliance report towards its EC conditions. A copy of the same is available and can be provided by the answering Respondent, as and when it is required. The answering Respondent has also been submitting its yearly Environment Statements under the Environment Protection Rules 1986. The Respondent No.2- GPCB has also regularly undertaken sample testing of the emission and effluents discharged from the unit of the answering Respondent. The answering Respondent itself has also engaged the services of NABL Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 16 of 67 accredited & MoEF&CC approved laboratory for conducting periodic testing of effluent discharged from the unit.
20. It is further submitted in this affidavit by the respondent No.5-PP that the answering Respondent has also complied with all the requirements under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 and has maintained the Material Safety Data Sheet of all the chemicals involved under the unit of the answering Respondent. The requirement of notification of site as per Schedule VII of the Hazardous Chemical Rules 1989 had also been complied with, a copy of which is annexed as Annexure R/7. The safety report as per the requirement of Hazardous Chemical Rules 1989 had also been prepared for the unit in question. The preparation of Safety Audit by a third party was being done regularly in accordance with law. The answering Respondent has prepared the on-site emergency plan, which has been updated multiple times periodically, a copy of which is annexed as Annexure R/8. The mock drills are also being undertaken regularly and the reports towards the same are being submitted to the concerned authority as required under the law. In addition to the abovementioned permissions, the unit of the answering Respondent had also obtained requisite Petroleum and Explosive Safety Organisation (PESO) licenses and licenses from the Chief Controller of Explosives for all the facilities in accordance with law.
21. It is further submitted in this affidavit by the respondent No.5-PP that the unit of the answering Respondent is registered under the Factories Act 1948 and has also obtained licenses for possession and sale of poisons under the Poison Act 1919. The unit in question also has a valid certificate to use a boiler under the Boiler Act 1923. The certificate of conformity of the unit of the answering Respondent to ISO 45001:2018 Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 17 of 67 (Occupational Health and Safety Management System), ISO 9001:2015 (Quality Management Systems) and ISO 14001:2015 (Environmental Management System) dated 03.09.2020 have also been granted, which are valid up-to 22.06.2023. It is submitted that the above narration would make it clear that the answering Respondent has complied with all the requirements mandated under environmental laws related to safety measures towards accidents and pollution, management of wastes among others.
22. It is further submitted in this affidavit by the respondent No.5-PP that several authorities have initiated independent proceedings in response to the said accident, requiring various measures, compliance, and requirements to be fulfilled before permitting the operations of the unit to start again.
23. It is further submitted in this affidavit by the respondent No.5-PP that with respect to the proceeding before the GPCB, it is submitted that after the accident on 17.05.2022, the GPCB's officials visited the site in question and made certain observations, asking the answering respondent to submit accident report with details of the cause of incident, casualty during the incident period, to lift accumulated waste water generated from the fire extinguishing activity for treatment into the ETP, ensuring that the contaminated water should not go outside the premises, to collect burnt material, contaminated material, hazardous water generated from incident site and dispose of as per Hazardous Waste Rules 2016, to submit details of water consumed/ foam consumed for fire extinguishing purpose with fire tender detail break up. The above-mentioned details were furnished by the answering respondent vide its letter dated 27.05.2022, wherein it was submitted that due to the incident, 37 persons got injured, who were given first aid treatment and were immediately transferred to various hospitals Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 18 of 67 such as Apex Hospital, Healing Touch Hospital etc. In the meantime, the Emergency Response Team of the answering Respondent reached the site for firefighting and rescue by using all PPEs (Personal Protective Equipment). Local Police Station, GPCB, DISH and all local bodies were informed immediately. Other industries were also informed for firefighting, ambulance and other help. During the incident, 1396 KL wastewater was generated from firefighting and the same had been transferred to ETP/MEE plants for treatment.
24. It is further submitted in this affidavit by the respondent No.5-PP that on 31.05.2022, the GPCB issued its closure order, under section 31-A of the Air (Prevention and Control of Pollution) Act- 1981, to the answering Respondent, in view of the accident which occurred on 17.05.2022 with a direction that a sum of Rs.1,50,00,000/- would be deposited as environment damage compensation. Further, direction was passed to take all necessary measures to safely remove all remaining in-process material, ensure collection of residue chemicals/hazardous and other waste generated from accident and disposing them as per provisions of Hazardous Waste Rules 2016, ensuring safety of all reactors, equipment etc. to prevent further mishap, to carry out safety audit/HAZOP (Hazard and Operability) study. A direction was also issued to submit compliance report of instruction issued by DISH, to submit Public Liability Insurance (PLI) and site notification (approved by DISH). A copy of said Closure Order dated 31.05.2022 is annexed as Annexure- R/9 at page 416 of the paper book.
25. It is further submitted in this affidavit by the respondent No.5-PP that on 29.06.2022, the GPCB issued its revocation order, revoking its closure order dated 31.05.2022. But the same order was limited to Plant A, B and C, and Plant D was still directed to remain closed. As per the said Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 19 of 67 order, a bank guarantee of Rs.7,50,000 has been submitted by the answering Respondent, a copy of the said revocation order dated 29.06.2022 is annexed as Annexure-R/12.
26. With respect to the proceedings before the Deputy Directorate of Industrial Safety and Health (DISH), it is submitted that in response to the accident, the answering Respondent on 18.05.2022 submitted Form 21 to the Deputy Director of Industrial Safety and Health as required under Rule 103 of the Gujarat Factories Rules 1963. On 18.05.2022, i.e. on the same day, Officials of the Deputy Director Industrial Safety and Health (DISH) visited the site of accident and subsequently, issued an order noting that on 17.05.2022 at 15:30 hours, in plant D of the unit of the answering Respondent, an explosion occurred, due to which 34 persons injured and 2 persons died in hospital during treatment, while noting the same, a direction was passed prohibiting all manufacturing processes in the factory and it was also directed by the DISH that the compliance was done towards repairing, restructuring and re-strengthening of damaged buildings and structures, getting approval of plant map, obtaining stability certificate, load calculation, removal of electricity cables, fittings damaged and replacement of the same and obtaining certificate for its suitability of use from government recognized agency, conducting re-HAZOP study (retrospective hazard and operability study) of factory process etc.
27. It is further submitted in this affidavit by the respondent No.5-PP that on 20.05.2022, the answering Respondent sent the details of compensation to the office of DISH, provided to two deceased employees, who had passed away due to the accident i.e. an amount of Rs.58,58,444 and Rs.44,19,995 respectively, which includes workmen compensation as per Workmen Compensation Act 1923, Group Personal Accident Policy insurance, additional relief benefits, Employees deposit linked insurance Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 20 of 67 scheme (EDLI) insurance and the Full & Final settlement (leave, bonus, salary, gratuity). This is along-with the assurance of a job for the wife and contribution for child education has been detailed out under the said letter. On 21.05.2022, the answering Respondent sent a letter to the Assistant Director (Chemical Safety) submitting the notification of a major accident required to be made under the Hazardous Chemical Rules 1989, a copy of said letter dated 21.05.2022 is annexed as Annexure- R/13.
28. It is further submitted in this affidavit by the respondent No.5-PP that on 21.05.2022, a letter was also sent to the DISH by the answering Respondent informing that in pursuance to accident in plant D, entire production processes of all plants have been stopped, however batches in plant A, B and C are incomplete and in process, because of which it was very important to process the incomplete batches and get them to safe storage to avoid any unwanted occurrences. In this regard, it was also submitted to the DISH that the compliance report for Boiler has also been submitted to the concerned authority. Accordingly, it was requested to grant permission for the same. In response, on 23.05.2022, the Office of DISH had sent a letter, allowing the answering Respondent to complete the in-process material to be removed safely from the said plant. on 27.05.2022, the answering Respondent also submitted its letter to Office of DISH submitting its revised plan for Plant A, B & C, which was approved by Office of DISH vide their letter dated 01.06.2022. Further, a team of Auditors had visited the site in question and conducted the electrical safety audit of the unit in question and had submitted its report dated 28.05.2022, consisting of observation and recommendations. The compliance status of the said recommendations had also been made and was got approved by the auditor, who had prepared the Electrical Safety Audit Report. On 02.06.2022, two certificates of stability were issued by Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 21 of 67 Mr. Nitesh Kumar K Patel (Certified Competent Engineer) certifying that the works of engineering construction in the premises were structurally sound and their stability would not be endangered by its use as a factory for manufacturing of Agro Chemicals.
29. It is further submitted in this affidavit by the respondent No.5-PP that on 02.06.2022, the answering Respondent sent its letter to the Office of DISH requesting therein to revoke its closure order towards Plant A, B and C. Thereafter, on 04.06.2022, the Office of DISH issued its letter to the answering respondent asking to provide further details on the causes of the major accident, logbook of 5 days prior to the accident, records of DCS (Distributed Control System) back-up data of 15 days prior to the date of accident and DCS study of report of Plant D. On 07.06.2022, the Office of DISH sent another letter towards the application of the answering respondent dated 02.06.2022, mentioned above, asking to provide compliance report of HAZOP study. On 08.06.2022, an undertaking was submitted by the answering Respondent to strictly comply with the instructions/conditions provided under closure order dated 18.05.2022 and to comply with instructions and suggestions issued by the DISH office on 07.06.2022 and for providing compensation and other monetary benefits and best treatment to the injured persons.
30. It is further submitted in this affidavit by the respondent No.5-PP that on 09.06.2022, the answering Respondent submitted its reply to the closure order dated 18.05.2022 and 07.06.2022 issued by the DISH, stating therein that there were four plants in the unit of answering Respondent, which are Plants A, B, C & D and out of the said plants, accident occurred in plant D and that no damage had been suffered by plant A, B and C and other associated boilers, ETP, admin building etc. New plans of plant A, B and C, which had been approved and a stability Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 22 of 67 certificate with load calculation had been provided by the competent persons, which had been submitted on 02.06.2022, mentioned above. Further, with regards to damage of electrical fittings in plants A, B and C, a certificate issued by a recognized expert has been submitted on 02.06.2022. On 10.06.2022, the Office of Director Industrial Safety and Health, Ahmedabad sent a letter to the Deputy Director, Industrial Safety and health, Bharuch for consideration of the compliance of order issued for closure of the Factory and giving permission to revoke its closure order towards plant A, B and C except for plant D. On 11.06.2022, Office of DISH approved the revised plan submitted by the answering Respondent on 27.05.2022, mentioned above. On 16.06.2022, the answering Respondent replied to the letter dated 04.06.2022 of DISH, mentioned above, providing the details asked for regarding third party investigation report on causes of the major accident, logbook, Report of Original Equipment Manufacturer of DCS system, DSC report of Plant D products. On 05.07.2022, the final investigation Report was prepared by the office of DISH where the possible technical cause was described in detail, in which it was directed that the process control system should be audible and visible at accessible control rooms and strategic areas and accordingly, it had been provided suitable and effective signal alarm system and the same was to check this alarm system daily and its functionality once in a month was to be verified. On 07.07.2022, the answering Respondent submitted its reply to the observation provided in the inspection report dated 05.07.2022 of the Office of DISH, submitting that an audio-visual alarm system was already installed on critical reactors and that the same would be provided on other reactors of the plant before restarting process. It is further submitted that the unit of the answering respondent had permission to produce 61 chemicals. Before manufacturing, the HAZOP study was required to be conducted of all permitted 61 chemicals as and Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 23 of 67 when factory plans to manufacture the same. Thereafter, as and when the study is done and the recommendations provided under the study were being complied with, the production of the said chemicals may be started. The HAZOP study for each chemical takes 15-20 days to complete. As on the date, i.e. on the filing of this reply, 21 chemical's HAZOP study has been completed.
31. With respect to the proceedings before the Assistant Director of Boilers, it is submitted by the answering respondent that on 18.05.2022, it had also intimated the Assistant Director of Boilers, Government of Gujarat about the accident. On the same day i.e. on 18.05.2022, a letter was received from the Assistant Director of Boilers providing various instructions to be carried out before restarting the boiler, which included clearance of debris, stability report to be submitted, all alarms, controls, tripping to be checked, electrical wirings were to be checked, instrumentation system were to be checked, Boiler were to be hydro tested among others. All these instructions were complied with and the compliance report dated 20.05.2022 was sent by the answering Respondent along with the stability report.
32. With respect to the proceedings before the Petroleum & Explosives Safety Organization (PESO), it is submitted by the answering respondent that PESO had also suspended their PESO licenses granted for storage of Chlorine (dated 18.07.2020) for storage of Petroleum Class A and Class B (dated 26.10.2017) for storage of DMA (dated 12.10.2018), for storage of Isobutylene (dated 25.11.2019) and for storage of Hydrogen (dated 28.09.2020). In response, the answering Respondent provided its detailed reply towards each of the suspension orders providing information that the PESO licensed premises was not affected by accident and providing requisite details such as stability certificate, safety certificate by competent Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 24 of 67 engineer, field calibration/test certificate of safety valve, Report of ultrasonic pulse velocity test, test and calibration report: Gas Detector, undertaking, photographs of site among others. Having provided these details, the answering respondent requested for revocation of suspension orders. After consideration of the same, the suspension of the said licenses has been revoked by the PESO vide their letter dated 03.08.2022 (for Chlorine License and for Hydrogen License respectively), vide their letter dated 25.07.2022 (for DMA and Isobutylene respectively) and vide their letter dated 18.07.2022 (for Petroleum Class A and B license) respectively, copies of the said revocation letters of PESO dated 03.08.2022, 27.07.2022 and 18.07.2022 are annexed as Annexure R/17(COLLY).
33. Regarding other Steps, which have been taken by the answering Respondent, it is submitted that R-5 had engaged a third party - M/s LKD India to conduct independent investigation on the accident, which took place at its premises and it was found that the entire Plant was covered with a Fire Hydrant System to protect the plant in case of a fire incident. The entire plant was covered with forty seven Fire Hydrants, five Water Monitors, ten Foam Monitors, forty six Riser Hydrant Points, along with AFF (Aqueous Film Foaming) Foam. In Plant D, all the premises are covered with Portable Dry-Chemical Fire Extinguishers, Foam Extinguishers, Foam Trolley, Hose reels and Riser Hydrant Points on each stairway of the building. Extinguishers were kept in the entire plant on each of the ground floor, first floor, second floor and terrace floor.
34. With regard to egress, it is submitted in this affidavit by the respondent No.5-PP that the Plant- D had three open stairways in the building connected with all ground plus two floors and that these were the primary means of egress for all employees of the first and second floors. The ground floor has six ways of egress. It has also been noted under the Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 25 of 67 said report that the Company had an internal fire safety program that provided guidance to their employees and contracted employees. During this program, the fire safety features, such as use of fire extinguishers and fire exits, mock drills were carried out periodically. It is further mentioned that the Fire & Safety Department of the answering Respondent had 15 personnel in the Operations Division and that they were present in the plant of the answering Respondent in three shifts. This department has one Fireman and one Officer, one Male-Nurse and one Ambulance Driver were assigned in each shift. One AGM (Assistant General Manager) Safety, one Assistant Manager and one Executive were assigned in the General Shift. Accordingly, it is submitted that the process as laid down under law in case of an industrial accident has been initiated under the present case and the answering Respondent is taking all corrective steps necessary in the given case and the same is under process. That the answering Respondent has paid environment compensation to GPCB and has paid compensation to workers, monetary benefits to the employees, who have suffered due to the accident and expenses for treatment has also been provided, benefits have been provided to family members of the employees, who have died among others. Corrective measures as directed by the Office of DISH, the GPCB, the Assistant Director of Boilers and PESO, among others have also been undertaken, which are still under progress.
35. With respect to the compensation/expenses incurred on the accident, it is submitted in this affidavit by the respondent No.5-PP that it has paid the entire salary to the employees for the period the plant remained closed. Further, a total of Rs.2,81,46,791 has already been disbursed, out of Rs.3,49,53,493 (Rs.1,59,91,791 paid directly to family of deceased employees + Rs. 1,21,55,000 has been deposited in labour court on account of workman compensation and the rest of the amount will be Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 26 of 67 paid within a short duration). Further, an interim relief of Rs.12,50,000 has been provided to 34 employees. Further, an amount of Rs.2,62,750 has been spent on employee training on stress management, fear and anxiety, conflict management, ownership responsibility commitment, on managing the challenging situations, team building and trust building among others. Further, an amount of Rs.96,52,233 has been spent on the expenses towards treatment of employees injured and employees who died. In addition to the same, Rs.10,87,749 has also been spent for making various arrangements like ambulances, boarding & lodging arrangements for families of injured employees during hospitalization etc. Further, an amount of Rs.56,74,121 has already been spent as on 31.07.2022 towards the safety compliance of the plant, details of which are already mentioned by us above. Further, an amount of Rs.83,25,798 has already been spent as on 31.07.2022 towards firefighting wastewater treatment, hazardous waste disposal and hazardous waste transportation. Further, Rs. 2,06,26,491 has been spent towards implementation of HAZOP study suggestions, repairing of surrounding damages, drawing, testing and stability of the plant. Further, an amount of Rs.32,81,614 has been spent towards the electricity safety audit, DISH suggestions of electrical systems and HAZOP implementation on electrical systems. Further, a sum of Rs.19,23,253 has been spent towards HAZOP recommendation compliances and PESO suggestions related to instruments of the plant, which has already been spent as on 31.07.2022. Accordingly, in view of the above-mentioned submission, it is prayed that the present Original Application may be dismissed as infructuous in view of the fact that various steps, as mandated under law towards the accident, have already been taken and that the answering Respondent is willing to take the measures, if any, towards the damage to the environment. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 27 of 67
36. The applicant has filed rejoinder affidavit dated 16.01.2023 to the reply affidavit of respondent No.4- GPCB, wherein it is submitted that the basis as to why the blast occurred first and led to fire and vice-versa has not been given by the respondent No.4, though as per the Times of India News dated 18.05.2022 regarding the accident (accessed on the internet) categorically stated that the fire led to the blast. It has also not been specified by the respondent No.4 as to what kind of injuries suffered by the 29 workers nor has their age profile given; the numbers of workers, who suffered permanent physical disability, if any. The said information would have assisted the Tribunal to pass an appropriate order with respect to the compensation to be awarded to them. No documents have been produced in support of the averments and that the personnel from Fire Department, Directorate of Industrial Safety and Health, Pollution Control Board etc. visited the accident site and what report they submitted has been concealed by them.
37. It is further submitted in this rejoinder affidavit by the applicant that test report of the samples of water collected from the premises of respondent No.5- Project Proponent immediately after the said accident and the air quality measured at that point of time, have not been placed on record, which is nothing but a concealment at their end. Till date, neither the cause of fire nor has the extent of damage caused been assessed by the Respondent No.4 or any other statutory authority nor is there any enquiry at all underway to access the same. It is further alleged that there is no date given in the Closure Order dated 31.05.2022 passed by the respondent No.4- GPCB (but we find that this is an erroneous averment because we find the date of Closure Order i.e. 31.05.2022 to be there in the said order). Therefore, allegations based on this fact, which is mentioned in para no.8 of the rejoinder affidavit, do not have any force. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 28 of 67
38. It is further submitted in this rejoinder affidavit by the applicant that at the instance of industry/Project Proponent, it is stated by the respondent No.4 that the building and plant A, B & C had not sustained critical damage because Respondents have not made any independent assessment, rather have ratified the report received from the Project Proponent in respect of these facts. Looking to the magnitude of the accident, it is difficult to fathom that only 1396 kiloliters of waste water would have generated in firefighting. It is contradictory averment to the extent that on the one hand, deterioration of air quality was found at the time of accident but on the other hand, it is being alleged that no respiratory problems were reported from the area without specifying the basis of such averment. The accident indeed caused damage to the environment but the nature and extent of the same could not be assessed by them. The compensation of Rs.1.5 Crore, which was levied from the respondent No.5-Project Proponent, is meagre and inadequate amount, in view of 8 people have died and 29 injured, it is a fit case, wherein a Committee should be constituted to ascertain the environmental compensation to be levied from the Project Proponent and to lay guidelines for safety so that in future, no such accidence happen in chemical factories.
39. Another rejoinder affidavit dated 20.03.2023 has been filed by the applicant against the reply affidavit of respondent No.5- Project Proponent, wherein it is submitted that the cause of accident has been shown to be mischievously false, which is evident from the perusal of investigation report of the Directorate of Industrial Safety and Health (DISH), which is annexed at page nos.637 to 638 of the paper book and the relevant part of which is extracted herein below by the applicant:-
".....On 17/05/2022 at around 13;42 hrs in the first shift, the temperature controller of the energy recovery system for plant D failed Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 29 of 67 at 109 degree centigrade temperature and as a result the valve of three way flow control valve system was fully opened and from the return line of the plant A and B circulation of oil with a temperature of about 215 to 220 degree centigrade started to accumulate in the cell side of the heat exchanger of the energy recovery system so that the temperature of the oil going to plant D would also be around 215 to 220 decree centigrade. Thus, as the temperature of circulating oil in plant D increased, the temperature of reactor no. 527 increased and the mother liquor of Batch No. 53 and 54 held in it after atmospheric distillation, which still contained about 30% Hexane, also started heating up. According to Hexane's Material Safety Data Sheet (MSDS), it has a boiling point of 68 to 70 degree centigrade and an auto ignition temperature of 225 degree centigrade. At around 15:30 hrs, reactor no. 527 experienced a sudden explosion when the temperature reached around 225 degree centigrade, due to which reactor no. 527 and Reactor no. 516 adjacent to reactor no. 527 in which the atmospheric distillation of Hexane was in process, (At first Floor) collapsed down. R 563 also collapsed from the floor as the batch was running. Due to this a fire broke out in plant D. At this point there was no alarm system on the first floor of plant D. In this incident, (1.) Mr. Sudhanshu Shekhra Baman Sadhangi ( Senior Manager, Production) aged about 41 years, dated 17.05.2022, (2) Mr. Kundan Kumar Jha (Senior Supervisor, Production) aged about 41 years, Dated 18.05.2022 (3) Mr. Arun Kumar Gautam (Operator) aged about 22 Years dated 20.05.2022, (4) Mr. Dodiya Darshik Bhasinhbhai ( Operator) aged about 25 years dated 24.05.2022 (5) Mr. Krishna Kumar Yadav ( Operator) aged about 21 years dated 25.05.2022 (6) Mr. Dragpal (operator) aged 27 years dated 25.05.2022 (7) Mr. Kirtan Kumar Bharat Bhai Talaviya (apprentice) aged about 21 years dated 1.06.2022 (8) Mr. Amit Kailash Rao Bijwe (Senior Executive) aged about 37 years dated 7.06.2022 succumbed to their injuries."
40. It is further submitted in this rejoinder affidavit dated 20.03.2023 by the applicant that the DISH held the Respondent No.5 to have committed breach of para no.12 of Schedule 19 of Rule- 102 of Gujarat Factories Rules, 1963, which is as under:-
"On the day of the incident, the temperature of Reactor No. 527 was likely to rise above the set temperature as the temperature of the oil circulating in the plant rose. Due to lack of proper audio and visual alarm systems, it could not be heard and seen in the plant. This temperature rise could have been prevented earlier had the alarm system been provided and this incident would not have happened. Thus, on the day of the incident, the temperature of the circulating oil in Plant D increased and the temperature of Reactor No. 527 was likely to rise above the prescribed temperature, due to which there was a possibility of fire and explosion. The occupying Manager has violated para 12 of Schedule 19 of Rule 102 of Gujrat Factories Rules, 1963..."Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 30 of 67
41. Further, as per para 12 of Schedule- 19 of Rule- 102 of Gujarat Factories Rules, 1963, following is provided:-
"Alarm System', Whenever the operational parameters go above the prescribed safe level or create a condition liable to cause fire or explosion, arrangement of process control rooms and strategies should be available. 1) A suitable and effective audible and visible signal alarm system should be provided over the area (location). This alarm system should be checked daily and its functionality should be tested once every month."
42. It is further submitted in this rejoinder affidavit dated 20.03.2023 by the applicant that the Respondent No.5 was called upon by the DISH to explain regarding aforesaid violation of Law, in which it is admitted to the findings of DISH by the respondent no.5 that the audio-visual alarm system was not installed on the reactors, which means that the Respondent No.5 has violated specific condition (x) of the Environmental Clearance dated 19.10.2020 and therefore, the EC is liable to be cancelled. The said Condition 14A (x) of EC dated 19.10.2020 is reproduced herein below:-
"The unit shall make the arrangement for protection of possible fire hazard during manufacturing process in material handling. The fire- fighting system shall be as per norms."
43. Besides the above violation, the condition nos.14.1(vii) and 14.1(viii) of above-mentioned EC have also been violated by the Respondent No.5. Under 14.1(vii) of the said EC, the Respondent No. 5 was under obligation to furnish the six monthly compliance status report of the EC on its website to MoEF&CC, CPCB & GPCB but the same was not complied with. Under 14.1(viii) of the said EC, the Respondent No.5 was under obligation to furnish the Annual Environmental Statement on its website and GPCB, which has not been complied with.
44. It is further submitted in this rejoinder affidavit dated 20.03.2023 by the applicant that in exercise of powers conferred under section 6, 8 and Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 31 of 67 25 of the Environment Protection Act- 1986, the Central Government has notified the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 for the purpose of regulating the concerned industries. Had the Respondent No.5 adhered to the said Regulation, the accident in question would not have occurred. The Respondent No.5 had not taken the mandatory approval under Rule 7 of MSIHCR, 1989 before commencing production of new chemicals or additional chemicals under EC dated 20.10.2022 or CTE dated 14.02.2018. The Respondent No.5 had neither prepared nor had filed safety report, safety audit etc. (Schedule 8) as per Rule 10 of MSIHCR, 1989 before commencing production of additional/new chemicals under EC dated 20.10.2022. Respondent No. 5 has also neither filed the report of mock drill conducted of the onsite emergency plan nor had prepared the onsite emergency plan on commencing production of additional/new chemicals as per Rule 14(4) of MSIHCR, 1989 under EC dated 20.10.2022.
45. It is further submitted in this rejoinder affidavit dated 20.03.2023 by the applicant that besides the above, in Consent and Authorization dated 14.02.2018 (at page no.376), following conditions were laid:-
"7.1. The authorized person shall comply with the provisions of the Environment (Protection) Act, 1986, and the rules made there under. 7.5. The person authorized shall implement Emergency Response Procedure (ERP) for which this authorization is being granted considering all site specific possible scenarios such as spillages, leakages, fire etc. and their possible impacts and also carry out mock drill in this regard at regular interval of time. 7.13. Any other conditions for compliance as per the Guidelines issued by the Ministry of Environment, Forest and Climate Change or Central Pollution Control Board from time to time.
8.3. The applicant shall not carry out any activities for which the required clearance are not obtained."
46. The above-mentioned conditions were violated by the respondent No.5- Project Proponent. Therefore, the respondent No.5 had been Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 32 of 67 operating its plant, in violation of the terms and conditions, which has resulted in the present occurrence.
47. It is further submitted in this rejoinder affidavit dated 20.03.2023 by the applicant that the industry of respondent No.5 is a big industry with annual turnover of more than 130 Crores, which has no respect for this Tribunal and for Law of the country and because of that only, an adverse inference should be drawn against it for not placing the documents on record, which are enumerated in para no.4 of this affidavit from sub- clause (i) to (xxvi).
48. It is further submitted in this rejoinder affidavit dated 20.03.2023 by the applicant that the fire and explosions continued for more than 12 hours before it could be doused, which has caused huge damage to the environment.
49. Sur-rejoinder affidavit dated 15.04.2023 has been filed by the respondent No.5, wherein it is submitted that new allegations/contentions have brought forth by the Applicant in the rejoinder affidavit dated 20.03.2023, which have been summarized by the respondent No.5 in para no.4 from sub-para (a) to (y). The said new facts, which have been brought by the applicant through his rejoinder affidavit, are a roving and fishing attempt by the Applicant, who has stepped way beyond the scope of the Original Application, which has resulted in violation of Rule 14 of the National Green Tribunal (Practices and Procedure) Rules- 2011, which categorically prohibits plural remedies and provides that an Application or an Appeal shall be based upon a single cause of action. To seek multiple reliefs, the Applicant is bound to prove that the reliefs, which are sought, are consequential to one another.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 33 of 67
50. It is further mentioned in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that the new grounds, which have been alleged in the rejoinder affidavit, are covered under different laws falling within and outside the jurisdiction of this Tribunal, which are not connected with the cause of action of the accident that occurred in the premises of the answering Respondent. The allegations relate to violation of EC conditions, breach of conditions of CCA granted under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974, non-compliance of Hazardous Waste Rules 2016 and Public Liability Insurance Act. Further, it also relates to non- compliance with Petroleum Act 1934, Explosive Act 1884, Gujarat Factory Rules 1963 and Boilers Act 1923 which are outside the purview of this Tribunal. Therefore, it is prayed that this Tribunal may discard these averments in the rejoinder affidavit made by the applicant and dismiss the present Original Application on this very ground.
51. It is further mentioned in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that it has also placed on record relevant documents and materials in support of the submissions made by the applicant. However, the Applicant, after getting access to such materials, has now started nit-picking from the information made available. It is further mentioned that the cause of accident mentioned in Para No.4 of the Reply dated 22.09.2022 is based on the finding provided by a Third-Party M/s LKD India under its report prepared after conducting its independent investigation of the accident, which took place in the Plant D of the unit of answering Respondent. Further, the findings provided under the said report and the findings provided in the report of DISH are similar and therefore the contention of the Applicant is wrong and false. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 34 of 67
52. It is further mentioned in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that it is apparent from the report dated 05.07.2022 of DISH that the explosion occurred due to pressure built in reactor 527 in Plant- D and it is the same report, which has been taken from the third part of Report dated June 2022 also.
53. With respect to the observation that DISH had breached of Schedule 19 Para 12 of the Gujarat Factories Rule- 1963, it is submitted in this Sur- rejoinder affidavit dated 15.04.2023 by the respondent No.5 that it is important to point out that the Alarm System was installed only in critical reactors and was not installed in all reactors of the unit. The said fact was communicated by the answering Respondent to DISH vide letter dated 07.07.2022 submitting that the same will be installed in all reactors. In this regard, it is submitted that all installations of alarm systems have now been put in place in Plant A, B and C. It appears that since the Plant D has got destroyed hence in that, no such installation of alarm system has been done.
54. It is further mentioned in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that manual fire system has been installed at all floors. Emergency drills are carried out by actuating these alarms among other details. Further, it is mentioned that the unit has followed all measures towards safety from fire incident and has complied with the said conditions of EC and has been regularly submitting its six- monthly compliance report. As per the last report for the period of June 2022 to November 2022, with regard to fire safety conditions, the details of fire hydrant systems, details of Environment, Health and Safety (EHS) equipment list and details of total foam solution in the Plant were also submitted. Further, it is mentioned that the third-party investigation Report of M/s LKD India also highlights the systems being adopted and Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 35 of 67 followed by the answering Respondent towards potential fire hazards. The safety measures provided in the unit towards any fire hazard were also submitted by the answering Respondent under its Schedule VII of the Hazardous Chemical Rules- 1989 submitting that all solvent pipelines and equipment have been provided with earthing facilities, portable fire extinguisher have been provided, use of flame proof equipment have been provided, control of hazardous static charges through measures such as copper jumpers, crocodile claps among others have been provided, provision of flame arrestors on storage tanks have been provided. Further, the On-site emergency Plan has been updated on April 2022 and the said Emergency Plan has been further updated in November 2022. Further, the Safety Report and the Safety Audit Report have been got prepared, which take into account the measures to be taken in case of fire occurrence.
55. It is further mentioned in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that it has already submitted its written report as per Rule 7 of the Hazardous Chemical Rule- 1989 for notification of site. The quantity of hazardous chemicals involved in the processes of the industrial unit has not changed and neither its maximum quantity involved has increased. Further, there are no other changes made in the unit that would affect the particulars specified in the said Rule/Schedule 7 of the Report submitted. Therefore, the provisions of Rule 8 of the Hazardous Chemical Rules 1989 are not applicable to the answering Respondent. The said notification of site was lastly submitted by the answering Respondent to DISH for the approval of drawings of the unit under its letter dated 27.05.2022 and the same was approved vide letter dated 01.06.2022, which again shows that the said notification was accepted by DISH. Further, with regard to the contention that the Schedule 7 of the report ought to have been updated by the answering Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 36 of 67 Respondent before commencing production of new chemicals or additional chemicals under EC dated 20.10.2022, it is submitted that firstly, the 2nd EC obtained by the answering Respondent is dated 19.10.2020 and not 20.10.2022. Secondly, it is pertinent to point out that the 1st EC dated 13.07.2009 granted to the unit of the answering Respondent was for a maximum production capacity of 12,300 MTPA. That subsequently, the answering Respondent applied for a fresh EC for expansion of the unit from 12300 MTPA production capacity to 29200 MTPA, for which the EC dated 19.10.2020 had been granted. However, the answering Respondent has not given effect to the said expansion and no operation of such expanded unit has commenced till date. It is clarified that the unit is still operating within production capacity granted under 1st EC dated 13.07.2009 of 12300 MTPA. Therefore, the contention of the Applicant, that the Schedule 7 of the Report ought to have been updated, is false and without any merit.
56. With regards to the CCA dated 14.02.2018 relied upon by the Applicant, it is submitted in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that the increase of number of products being produced does not require updation in Schedule 7 of the Report. The same is required only if the changes are made in the unit in a way, which affects the particulars provided under the said Schedule 7 of the Report, which has already been submitted. It provided that there was no change made in the unit, which has caused any change in the particulars provided under the same. It is provided that, even though the number of products being produced has changed over the years, however, the total production capacity has remained the same i.e. 12300 MTPA and hence the particulars provided under the Schedule 7 of the said Report submitted by the answering Respondent has remained unchanged till date. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 37 of 67
57. With regards to the allegation of the Applicant that no report of mock drill conducted by the answering respondent has been filed and no onsite emergency plan has been prepared for new/additional chemical as per Rule 14(4) of the Hazardous Chemical Rules 1989, it is submitted in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that the answering has been regularly conducting its mock drills and has been regularly preparing and submitting its mock drill reports. As per the rule, mock drill shall be conducted after every six months. However, the answering Respondent decided to conduct it quarterly to strengthen the safety standards. In this regard, the mock drill report dated 21.12.2022 submitted to DISH is annexed as Annexure A/5 at page nos.579-590 of the paper book to the I.A. No.23/2023. The last mock drill was undertaken on 29.03.2023 and the report of the same had been submitted to DISH vide letter dated 03.04.2023.
58. With regards to the onsite emergency plan, the relevant pages of the same has also been submitted as Annexure R/8 at page nos.403-415 of the paper book, under reply of answering Respondent dated 22.09.2022 which was updated in April 2022, it is submitted in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that the said On-site emergency plan was further updated in October 2022 and the same was sent to DISH on 21.11.2022 (received on 25.11.2022). A copy of the said letter is annexed as Annexure- R/3 (COLLY).
59. With regards to the contention raised related to safety report and safety audit report not having been prepared, it is submitted in this Sur- rejoinder affidavit dated 15.04.2023 by the respondent No.5 that the latest safety audit report dated May 2022 has already been brought on record under I.A. No.23/2023 dated 20.01.2023, which is annexed at Page 512- 578 of the paper book to the said I.A. Further, the safety report of 2014 Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 38 of 67 has also been brought on record under the said I.A. Further, it is apparent that the answering respondent has been preparing such safety reports. Another example is the safety Report dated 09.03.2016 under the Hazardous Chemicals Rules 1989 and the same was submitted to DISH vide letter dated 10.03.2016, a copy of which is annexed as Annexure- R/4(Colly). Therefore, in this regard, the answering Respondent has already made compliances as per the norms.
60. The allegation of concealment with respect to reporting the number of deaths has been denied by the respondent No.5 and it is stated that due to the accident, the number of deaths occurred 8 and that the answering respondent has already disbursed an amount of Rs.2,81,46,791/- out of Rs.3,49,53,493 towards compensation paid to the family of the deceased under the workman compensation. The said amount represents the compensations paid to the family of the eight deceased.
61. It is further mentioned in this Sur-rejoinder affidavit dated 15.04.2023 by the respondent No.5 that the submission of six-monthly compliance report towards the EC conditions, being a statutory requirement, was not appended as these are public documents and neither do they have any bearing on the present dispute. However, the latest six- monthly compliance report for the period of June 2022 - November 2022 along-with the letter dated 23.12.2022 has been sent by the answering Respondent to DISH, which is annexed as Annexure- R/7. It is further mentioned that the Material Safety Data Sheets (MSDS) of few chemicals have already been annexed as Annexure- A/2 (COLLY) to the I.A. The MSDS of all the chemicals/raw materials/products have not been annexed, as the same are in total more than 200 in numbers and that the MSDS of each are of numerous pages which would not only be unnecessary but would also be a waste of time of this Tribunal. The Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 39 of 67 relevant extracts of a few have been annexed to illustrate the compliance on behalf of the answering Respondent towards the said requirement. It is further mentioned that the Poison License has no relevance to the issue raised in question. However, the Poison License from 2017 - 2022 and its renewal from 2022 - 2027 have been annexed as Annexure- R/10. Further, it is mentioned that License under the Boilers Act, 1923 has already been brought on record, which is annexed as Annexure- A/7 at page nos.603-604 to the said I.A. 23/2023. It is further mentioned that the then valid PESO Licenses were also brought on record, which are annexed as Annexure- R/17 (COLLY.) at page nos.434-438 of the reply filed by the answering Respondent dated 22.09.2022. It is further mentioned that there is no mandate to undertake HAZOP study under any law in force. However, on being directed by the GPCB and the DISH under their respective letters to conduct the HAZOP/RE-HAZOP studies, the same has been executed and the recommendations provided under the same are being implemented. The said study is a systematic, time- consuming lengthy process, hence out of 61 chemicals being produced, the HAZOP Studies of 22 of them has been undertaken, out of which reports for three were submitted by the answering Respondent vide letter dated 02.06.2022 and the compliance report of the same were submitted vide letter dated 09.06.2022. The reports for the rest of 19 products have been submitted vide letter dated 03.04.2023, a copy of the said letter dated 03.04.2023 is attached as Annexure- R/33. Further, the compliance of recommendations of 6 more products are almost complete, which will be submitted to DISH very soon. The work of preparation of HAZOP study for the rest of the products is under progress but these matters did not concern with the dispute involved herein.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 40 of 67
62. With respect to the payment made, the position is made clear in para no.83 of this Sur-rejoinder affidavit dated 15.04.2023 filed by the respondent No.5 that it has paid a total amount of Rs.3,89,32,662 (Rs. 1,21,55,000 deposited in labour Court and Rs.2,67,77,662 directly paid to affected families) to the family of eight employees, who died in the accident. The chart showing the details of the expenses incurred towards eight deceased as on 01.04.2023 are annexed as Annexure R/34.
63. We have heard the arguments of learned counsel for applicant as well as that of learned counsel for other parties and perused the record.
64. On the basis of above-mentioned pleadings, we are of the view that there is no denial to the fact that an unfortunate accident has happened in the premises of respondent No.5 on 17-05-2022 at 3.10 PM, in which 8 persons died and as many as 29 got injuries. Therefore, one aspect, which has to be looked into, is as to whether the compensation amount, which has been disbursed to the dependents of the deceased as well as to the injured persons, is adequate and in accordance with the law laid down by the Hon'ble Supreme Court in the matter of Sarla Verma and Ors. Vs. Delhi Transport Corporation and Ors.[MANU/SC/0606/2009] and subsequent Judgments of Hon'ble Supreme Court. In this regard, we are of the view that in case higher amount is paid than what is required to be paid, as per the principle laid down by the Hon'ble Supreme Court in the above- mentioned cases, the same would be ignored by us and the amount already paid would be treated to be sufficient. But if any of the amount of compensation paid to any of the legal heirs/dependents of the deceased is found to be lesser than what it ought to have been paid as per the principle laid down by the Hon'ble Supreme Court in the above-mentioned cases, the same would need to be enhanced.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 41 of 67
65. After having gone through the above-mentioned pleadings, we have framed following issues to be determined in the present case:-
(i). Whether adequate measures were taken by the respondent No.5 for prevention of accident before and after the occurrence?
(ii). Whether the respondent No.5 has/had complied with the Environmental Clearance and CC&A conditions?
(iii). What can be the long term measures to be taken by the GPCB to prevent industrial accidents in the unit of respondent No.5 in future, which are covered under Manufacture, Storage and Import of Hazardous Chemicals (MSIHC) Rules, 1989?
(iv). Whether victims of the accidents were paid adequate compensation, keeping in view the rulings of Hon'ble Apex Court in similar other matters?
(v). Whether GPCB had worked out on EDC correctly and whether any additional EDC is required to be levied from the Project Proponent?
66. In this matter, on 20.07.2023 initially, argument was heard by us of mainly the learned counsel for applicant and all the arguments made therein on that date by the said learned counsel have been incorporated in the order sheet of the said date i.e. on 20.07.2023, hence the said order shall be treated to be a part of this Judgment.
67. Thereafter, the remaining arguments were heard by us on 05.04.2024 when the learned counsel for applicant as well as the learned counsel for respondent No.5 completed their arguments. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 42 of 67
68. The learned counsel for applicant began his argument by drawing our attention to the order dated 20.07.2023 passed by us in para no.9, wherein it was mentioned that the Project Proponent had permission to produce 61 chemicals. Before manufacturing, the HAZOP study was required to be conducted of all permitted 61 chemicals as and when factory planned to manufacture the same. Thereafter, as and when the study was done and recommendations provided under the study were complied with, the production of the said chemical could be started. The HAZOP study for each chemical takes 15-20 days to be completed and that till the date of filing of the reply by the respondent No.5, the said study of only 21 chemicals had been completed. But they were producing 61 chemicals without any HAZOP study having been conducted, which is a violation and this would also treated to be one of the reasons of occurrence having happened.
69. Thereafter, the learned counsel for applicant has drawn our attention to page no.225 of the paper book, whereon The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 is annexed, in which our attention is drawn to the definition of Hazardous Chemicals as well as Industrial Activity and Major Accident, which are laid down in the definition clauses 2(e), 2(h) and 2(j) respectively. Having drawn our attention to these definitions, it is vehemently argued by him that having regard to the fact that 8 deaths occurred, this would be treated to be a major accident and the chemicals, which are being manufactured in the industrial unit of the respondent No.5, were nothing but hazardous chemicals as per the above-mentioned definition. It is further hammered by him that Rule-15 of the above-mentioned Rules would be applicable here in the case in hand because of the major accident having happened in the unit of respondent No.5. Rule-7 of the above-mentioned Rules provides Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 43 of 67 for Approval and Notification of Sites; Rule 8 relates to Updating of the Site Notification following Changes in the Threshold Quantity; Rule- 9 deals with Transitional Provisions; Rules- 10 deals with Safety Reports (Safety Audit Reports); Rule- 11 provides for Updating of Reports under Rule- 10; Rule- 12 relates to Requirement for Further Information to be sent to the Authority; Rule- 13 relates to Preparation to On-site Emergency Plan by the Occupier; Rule- 14 relates to Preparation of Off-Site Emergency Plan by the Authority; and Rule- 15 relates to Information to be Given to Persons Liable to be Affected by a Major Accident.
70. Having drawn our attention to the above-mentioned Rules, it is vehemently argued by the learned counsel for applicant that none of these rules had been complied with by the respondent No.5 in the present case and therefore, he proposes for an environmental compensation of deterrent effect should be imposed upon the respondent No.5 to the extent of Rs.50 Crores. But when we enquired from him as to what would be the basis of the same, he could not clarify about the same.
71. Thereafter, the learned counsel for applicant has drawn our attention to page no.925 of the paper book, which is an Environmental Statement (Form- V) of the period from April 2021 to 31st March, 2022 submitted by the respondent No.5-PP to the respondent No.4- GPCB, wherein at Part- B at page nos.925-926 of the paper book, there is a chart showing the name of the products of the chemicals and in front of them is given the Water consumption per unit of Product output. Having drawn our attention to it, it is urged by him that in the financial year 2020-21, the respondent No.5 was manufacturing 21 chemicals, which was enhanced to 23 in the next Financial Year i.e. 2021-22. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 44 of 67
72. Thereafter, the learned counsel for applicant has drawn our attention to page nos.112 to 124 of the paper book, which is an expansion of EC dated 19.10.2020 issued by the respondent No.1- MoEF&CC to the respondent No.5, wherein it is pointed out that in this expansion Environmental Clearance for 98+2 products were approved for manufacture by the respondent No.5. Out of the above 98+2, we find that 6 chemicals have been discontinued, hence remaining would be only 92+2 = 94 chemicals.
73. Besides above, the main thrust of argument of the learned counsel for applicant is that the documents, which have been shown during the argument by the respondent No.5, were all of post-accident period. Therefore, it cannot be said that they were conforming to the necessary norms before accident and because of that only, the accident happened and accordingly, respondent No.5 should be imposed heavy penalty.
74. From the side of respondent No.5, it is vehemently argued by the learned counsel that all the compliances have been done on its part. Page by page, all the documents were shown to us in Open Court and it is alleged that even prior to the occurrence, the compliances have been regularly made but no documentary evidences have been annexed to the file to prove the same, although he offers to provide the same, to which the learned counsel for applicant opposed by saying that in case any further documents are to be brought on record, then a copy of the same should be directed to be provided to the applicant, who would have right to rebut the same. Thereafter, we stopped directing the respondent No.5 to file any further documents on record. The learned counsel for respondent No.5 gave the reasoning for not filing the same earlier because there was no averment/allegation made in the application that no such compliances were made. Had any such averment been there in the Original Application, Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 45 of 67 he would have annexed all those documents. He also emphasized before us that a new case is being set up by the learned counsel for applicant by stating additional facts in the rejoinder affidavit, which may not be permitted. Moreover, the new grounds, which have been added and facts, which are brought on record, are nothing but fishing and roving enquiry into the matter. Basically, this application has arisen out of the unfortunate accident, which happened in the premises of the respondent No.5, which the applicant wanted to address and sought relief against the respondent No.5. But later on, he has tried to expand the scope of the same by bringing facts in the rejoinder affidavit, which may not be permitted. The same is also barred by multiple causes of action. It is also vehemently argued that various violations, which are being alleged, are not covered under the Schedule- I of the National Green Tribunal Act, 2010, hence this Tribunal would not have jurisdiction.
75. We have made it clear to the learned counsel for parties that if any issue pertaining to environment arises, in that situation, if the matter, which may be covered under any other Act, can also be looked into by this Tribunal, having over-riding power under the National Green Tribunal Act, 2010. Besides, this Tribunal has also power to act in any environmental matter suo moto as per the Judgment of Hon'ble Supreme Court. FINDINGS
76. Issue No.(i): As per this issue, we have to decide as to whether the respondent No.5 had taken adequate measures for prevention of accident before and after the occurrence. In this regard, we are of the view that most of the measures, which appear to have been taken by the respondent No.5, are all of the period post-occurrence when the relevant authority i.e. SPCB, PESO and DISH visited the site and enquired about various Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 46 of 67 measures. The main emphasis laid by the learned counsel for applicant was that the respondent No.5 was supposed to adhere to the MSIHC Rules- 1989, wherein, in Rule 4(2), it was provided that "(2) an occupier, who has control of an industrial activity in terms of sub-rule (1), shall provide evidence to show that he has,- (a) identified the major accident hazards; and (b) taken adequate steps to - (i) prevent such major accidents and to limit their consequences to persons and the environment;....".
77. In our considered opinion, above-mentioned Rule can be interpreted to mean that HAZOP study would be required for each and every chemical, which is proposed to be manufactured in an industry and thereafter only, the production of the said chemicals would be undertaken. The learned counsel for respondent No.5- Project Proponent submits that the HAZOP study is a time-consuming lengthy process, hence out of 61 chemicals being produced by it, the HAZOP Studies of only 22 chemicals were completed till April 2023 and that HAZOP Study for 6 more products was on the verge of almost completion. HAZOP study for the rest of the products was also recorded to be under progress. We find that as per the EC dated 19.10.2020, the respondent No.5 had obtained permission for production of as many as 92 chemicals. This simply means that only for 30% of chemicals, HAZOP study had been completed or was on the verge of completion. This would suggest that there was potential risk of accident in the approach adopted by the respondent No.5, if they proceeded to manufacture these chemicals without prior consent and without conducting prior HAZOP study.
78. Rule 7 of the above-mentioned Rules stipulates procedure for approval of sites. As per the Sur-rejoinder submitted by respondent No.5, (at page no.808 of the paper book), the quantity of hazardous chemicals involved in the processes of industrial unit has neither changed nor has its Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 47 of 67 maximum quantity involved increase. Further, there were no other changes, which have been made in the unit of respondent No.5, which would affect the particulars specified in the said Rule-7. The Rule 8 of the above-mentioned Rules provides for updating of the site Notification following changes in the threshold quantity.
79. It is urged by the learned counsel for respondent No.5 that Rule-8 of the above-mentioned Rules would not be applicable here because there was no change in quantity in the case in hand. In the case in hand, after the accident, which happened in the premises of respondent No.5, the notification of site was submitted by the respondent No.5 to the DISH for approval of drawings of the unit through its letter dated 27.05.2022, which was approved on 01.06.2022. This would reflect from the above that there does not appear to have been committed any violation of Rule 7 of the Rules of 1989, which pertains to the approval of site.
80. The Rule 10(6) of the MSIHC Rules, 1989 stipulates that "The occupier shall update the safety audit report once a year by conducting a fresh safety audit and forward a copy of it with his comments thereon within 30 days to the concerned Authority." In this regard, respondent No.5 has submitted its safety audit report dated May 2022 in I.A. No.23/2023 dated 20.01.2023, which is annexed at page nos.512-578 of the paper book. Further, the Safety Report of 2014 has also been submitted in the same I.A. at page nos.500-511 of the paper book. The learned counsel for respondent No.5 urges that another example is the safety Report dated 09.03.2016, which was submitted to the DISH vide its letter dated 10.03.2016 under the Hazardous Chemicals Rules 1989 but the same has not been found annexed. Therefore, even going by the submissions made by the respondent No.5, the Safety Audit appears to have not been conducted between the periods 2016 to 2022. It is only Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 48 of 67 conducted after the present accident, that too, at the directions of the DISH that respondent No.5 had got Safety Audit Reports prepared to get the permission for making Plants A, B, and C operational. We also find that in the Safety Audit Report, which was prepared in March 2022, the Auditors had observed that there were 102 non-compliance/areas of improvement. But the respondent No.5 could submit compliance report in that regard only in August 2022.
81. We also find that the learned counsel for respondent No.5 has admitted by giving all the details of expenses incurred by it for Safety Report and Compliance to the following effect:-
"75. An amount of Rs. 56,74,121 has already been spent as on 31.07.2022 towards the safety compliance of the plant which includes, expenses for fire tender, firefighting, third party accident investigation, HAZOP studies, DISH suggestions implementation, PESO suggestions implementation among others.
76. Further, an amount of Rs. 83,25,798 has already been spent as on 31.07.2022 towards firefighting wastewater treatment, hazardous waste disposal and hazardous waste transportation.
77. Further, Rs. 2,06,26,491 has been spent towards HAZOP suggestions implementation, repairing of surrounding damages, drawing, testing and stability of the plant.
78. Further, an amount of Rs. 32,81,614 has been spent towards the electricity safety audit, DISH suggestions of electrical systems and HAZOP implementation on electrical systems.
79. Further, a sum of Rs 19,23,253 towards HAZOP recommendation compliances and PESO suggestions related to instruments of the plant has already been spent as on 31.07.2022."
82. From the above, we find that lot of compliances were required to be complied with at the end of respondent No.5, which were made good after spending such a huge amount as shown above with all these expenditures, which appear to have incurred for making compliances post the accident. We have no evidence on record extended from the side of respondent No.5 to show that such kind of safety report was prepared and compliances made earlier to the accident at Plant- 'D', where the occurrence took place. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 49 of 67
83. With respect to the mock drills, the learned counsel for respondent No.5 submits that the respondent No.5 regularly conducted mock drills and had been preparing its report. But no report has been submitted by it for the period prior to the date of accident. A report of mock drill was submitted, which was conducted on 21.12.2022 post the accident. This shows that respondent No.5 had been negligent in taking care of key aspects/requirements till the time accident happened.
84. We also find that the said Safety Report has identified following areas as a major opportunity avenue for Safety & Fire performance:-
Cyclic HAZOP process to be established and to be implemented for all products.
Safety Booklet prepared as per Rule 68-K to be updated.
Safety Cultural development drive to be initiated for better EHS performance.
Ventilation study to be carried out.
Specialised Safety Training i.e., for static Electricity and its Control, Hazard Communication, Scaffolding, Confined space handling, Safe handling of hazardous Chemicals to be arranged on regular basis.
Safety Report to be updated.
85. In view of above, we are of the view that respondent No.5 had failed in carrying out its activities in responsible manner, till the time occurrence happened. Therefore, the activities of respondent No.5 need to be closely monitored regularly by the concerned authorities to ensure that the requirements provided under MSIHC Rules are complied with both in letters and spirit. In view of this, we decide this issue in favour of the applicant against the respondent No.5 and hold that the respondent No.5 had not taken adequate measures to prevent the accident before the accident happened.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 50 of 67
86. Issue No.(ii):- As per this issue, we have to decide as to whether the respondent No.5 has/had complied with the Environmental Clearance and CC&A conditions. In this regard, we find that as per EC dated 13.07.2009, which was granted to the respondent No.5, which is submitted by the learned counsel for respondent No.5 with their Sur-rejoinder affidavit, annexed at page no.809 of the paper book, that a maximum production capacity was of 12,300 MTPA. Subsequently, respondent No.5 applied for a fresh EC for expansion of the unit from 12,300 MTPA production capacity to 29200 MTPA, for which the EC dated 19.10.2020 was granted. Although the respondent No.5 has not given effect to the said expansion as no operation of such expanded unit has been commenced till date.
87. In the EC dated 19.10.2020, the MoEF&CC has recorded as follows:-
"9. The Ministry had issued EC earlier vide letter No. J- 11011/961/2008-IA-II(I); dated 13th July, 2009 for manufacturing of agrochemicals manufacturing unit in favour of M/s Siris Crop Science Limited, the said EC further transferred to the name of M/s. Bharat Rasayan Limited (Unit-II) on 5th September, 2012 and amendment in EC granted for product mix change on 5th September, 2012. Further, the corrigendum granted on 10th January, 2013. The Certified compliance report dated 2nd July, 2019 on the compliance status of the EC conditions has been forwarded by the Ministry's Regional Office at Bhopal. Further, the Regional office of the Ministry has forwarded the Action taken report on partial complied points vide email dated 15th April, 2020. The Committee deliberated the compliance report and found in order."
88. As per the grant of expansion EC dated 19.10.2020, we presume that all the conditions, which were laid down in the earlier EC dated 13.07.2009, may have been fulfilled by the respondent No.5-PP then only the expansion EC would have been granted. As per the Sur-Rejoinder affidavit of respondent No.5, six monthly compliance report for the period of June 2022 to November 2022 was submitted to MoEF&CC. A copy of Environment Statement dated 03.09.2022 has also been submitted by the respondent No.5 to GPCB.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 51 of 67
89. Respondent No.5 had obtained its Consent to Establish on 17.07.2010 under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, which has been subsequently amended on various occasions. The last being in December 16, 2021. Respondent No.5 was granted a Consolidated Consent and Authorization (CC&A) on 20.06.2013, which was valid till 10.09.2017 and the same was renewed from time to time, the latest being dated 14.02.2018 valid till 11.10.2022.
90. We find that till the date occurrence happened, the respondent No.5 had valid CC&A. On 31.05.2022, the GPCB issued its closure order under Section 31-A of the Air (Prevention & Control of Pollution) Act, 1981 to the respondent No.5 in view of the accident, which occurred on 17.05.2022. On 29.06.2022, the GPCB issued its revocation order, revoking on its closure order dated 31.05.2022, however the same has been limited to Plant A, B and C only, although the Plant D is still directed to remain closed.
91. We also find that the statements on Form 3 and Form 4 are required to be submitted by the respondent No.5 to the Gujarat Pollution Control Board under the Hazardous Waste Management Rules, 2016, which have also been submitted regularly by it. Copies of these forms have been submitted by it vide its letter dated 31.05.2022. The respondent No.5 had obtained the Certificate of Conformity to ISO 45001:2018 (Occupational Health and Safety management Standards), ISO 9001:2015 (Quality Management Systems) and ISO 14001:2015 (effective environmental management system) dated 03.09.2020, which had also been granted, which are valid upto 22.06.2023.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 52 of 67
92. In view of above analysis, we find that the respondent No.5- PP has been complying with respect to the terms and conditions of EC, CTE and CTO. Therefore, this issue is decided in favour of respondent No.5 against the applicant.
93. Issue No.(iii): As per this issue, we have to decide as to what can be the long term measures to be taken by the GPCB to prevent industrial accidents in the units which are covered under Manufacture, Storage and Import of Hazardous Chemicals (MSIHC) Rules, 1989. In this regard, we are of the view that this is a major issue, looking in to the fact that large number of accidents are being reported from the industries, which are producing various hazardous chemicals. First of all, we would like to mention here the relevant provision of Manufacture, Storage and Import of Hazardous Chemicals (MSIHC) Rules, 1989 (herein after in short to be referred as MSIHC Rules, 1989), Rule 7 of which provides as follows:-
"7. APPROVAL AND NOTIFICATION OF SITES -
(1) An occupier shall not undertake any industrial activity unless he has been granted an approval for undertaking such an activity and has submitted a written report to the concerned authority containing the particulars specified in Schedule 7 at least 3 months before commencing that activity or before such shorter time as the concerned authority may agree and for the purpose of this paragraph, an activity in which subsequently there is or is liable to be a threshold quantity or more of an additional hazardous chemical shall be deemed to be a different activity and shall be notified accordingly. (2) The concerned Authority within 60 days from the date of receipt of the report shall approve the report submitted and on consideration of the report if it is of the opinion that contravention of the provisions of the Act or the rules made there under has taken place, it shall issue notice under rule 19]."
94. Having gone through the above-mentioned provision, we find that the information, which is solicited in Schedule -7, is material and that after furnishing correct information thereabout and an assessment having been made of the same, the approval for grant of site for a particular industry to be set up is given. This is an important criteria because the Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 53 of 67 information, which are required to be furnished under Schedule -C, are meticulous and would certainly assist in minimizing the impact of the accident.
95. We also find that Section 25 of the Water (Prevention & Control of Pollution) Act, 1977 provides as under:-
"RESTRICTIONS ON NEW OUTLETS AND NEW DISCHARGES:- [(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,-
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); ......"
96. The above-mentioned Section would make it clear that for establishing any new industry, the State PCB is required to give Consent to Establish. Therefore, we are of the view that in order to avert the industrial accidents and their impact on surrounding population, it would be mandatory for the State PCB first to ensure that the prospective industry/PP has obtained site approval from the Chief Inspector of Factories as per Rule-7 of the MSIHC Rules, 1989 and thereafter only, the officials of the State Pollution Control Board should consider whether to grant Consent to Establish or not.
97. Next, we would like to refer Rule- 10 of Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, which provides as follows:-
"10. SAFETY REPORTS AND SAFETY AUDIT REPORT:-
(1) Subjects to the following paragraphs of this rule, an occupier shall not undertake any industrial activity to which this rule applies, unless he has prepared a safety report on that industrial activity containing the information specified in Schedule 8 and has sent a copy of that report to the concerned authority at least ninety days before commencing that activity.
................................................................................................ ................................................................................................ Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 54 of 67 (6) The occupier shall update the safety audit report once a year by conducting a fresh safety audit and forward a copy of it with his comments thereon within 30 days to the concerned Authority............."
98. From the above-mentioned Rule, it would make it clear that every industry, before it is made operational, which is dealing with manufacturing of hazardous chemicals, would require to prepare a safety report as mentioned in above rule and it needs to be updated as per the provision in Rule- 11 and even additional information may be solicited by DISH as provided under Rule- 12. This is a very important provision for averting the industrial accidents. We are of the view that before granting the Consent to Operate and/ or its renewal, the State PCB must ensure that the industrial unit has submitted Safety report to the DISH and has obtained approval of the same from that authority.
99. We may also mention here that this Tribunal in O.A. No.60/2021 (related to the chemical accident at M/s. UPL Limited, Bharuch, Gujarat in Feb-2021) had issued direction, in pursuance of which the Ministry and Central Pollution Control Board prepared guidelines on the safety audit of chemical industries as 'Integrated Guidance Framework for Chemicals Safety in respect of Isolated Storage(s) and Industries covered under MSIHC Rules, 1989', which was communicated by the Secretary, MoEF&CC vide letter dated 18th January, 2022 to the Chief Secretaries of all States/ UTs for implementation. These guidelines specifically cast duties on the State PCBs, as is clear from the following stipulation made therein:-
"C. Guidelines for the Concerned Authorities:
1. The State Pollution Control Boards (SPCBs)/ Pollution Control Committees (PCCs) shall ensure that while issuing Consent to Establish (CTE) or Consent to Operate (CTO) or renewing CTE/ CTO accorded to a plant, industry or process under the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution ) Act, 1981, details on Onsite Emergency Plan, Safety Reports and Safety Audit Reports in accordance with The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended), be compulsorily Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 55 of 67 sought from occupier, industry or installation handling hazardous chemicals in quantity equal to or more than the threshold quantity specified in the said rules..........................................................."
100. It is apparent from a perusal of this communication that they appear to be more of advisory nature and not directions issued under Section 5 of the Environment (Protection) Act, 1986 and therefore, it appears that no effective steps have so far been taken for their implementation by the States. Therefore, we decide this issue accordingly and make it clear that in the concluding para of the Judgment, we would consider issuing appropriate directions. We decide this issue accordingly.
101. Issue No.(iv): As per this issue, we have to decide as to whether victims of the accidents were paid adequate compensation, keeping in view the rulings of Hon'ble Apex Court in similar other matters. In this regard, we have to submit that a perusal of the pleadings, particularly, that of the respondent No.5- PP in this regard would indicate that it has made payment of following amount to the dependents of the deceased, names of whom are mentioned in Column -C in the table below:-
COMPENSATION PAID AS PER SUBMISSIONS OF R-5 S Emp Name Company Wc Relief F&F Additi Gratuity Final Final Total Compens N Cod Compensa Amount Amoun onal Addition Compensation ation e tion Paid In t At Relief al Paid, Rs. Amount Labour Hospit Fund Compens After Court al For ation K=D+E+F+G+H Deducting Childre Paid +I+J F&F and n Gratuity Amount, Rs.
L=K-G-I
A B C D E F G H I J K L
SUDHANSUSEKHAR
931 A BAMAN 14,00,00 3,21,2 1,19,44 20,59,29
1 2 SADHANGI 25,00,000 0 64 4 2 64,00,000 59,59,292
953 KUNDAN KUMAR 13,00,00 69,87 2,00,0 2,03,40
2 7 JHA 25,00,000 0 0 00 9 4,00,000 46,73,279 44,00,000
970 ARUN KU MAR 16,70,00 47,34 2,04,92
3 9 GAUTAM 25,00,000 0 5 3 44,22,268 41,70,000
998 DODIYA DARSHIK 16,50,00 25,98 1,90,38
4 1 BHAVSINHBHAI 25,00,000 0 50,000 7 5 44,16,372 42,00,000
KRISHNA
984 K\ADAUMAR 17,00,00 39,80 2,10,46
5 4 YADAV 25,00,000 0 50,000 7 2 45,00,269 42,50,000
983 16,25,00 37,51 1,77,23
6 9 DRAGPAL 25,00,000 0 50,000 8 1 43,89,749 41,75,000
CN TALAVIYA 25,00,000 13,60,00 50,000 24,00 0 21,16,00 60,50,000
012 KIRTANKUMAR 0 0 0
218 BHARATBHAI
7 481 60,26,000
990 AMIT KAILASRAO 14,50,00 87,32 3,43,39 14,50,00
8 4 BIJAWE 25,00,000 0 50,000 7 8 0 58,80,725 54,50,000
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 56 of 67
2,00,00,00 1,21,55, 2,50,0 6,53,1 2,00,0 14,49,2 60,25,29 3,86,30,2
TOTAL 0 000 00 18 00 52 2 4,07,32,662 92
102. The final amount of compensation paid by R-5 as shown in column K, is sum of the figures mentioned in Columns- D, E, F, G, H, I & J. But we are of the view that from the total amount of compensation mentioned in Column- K, the amount which is mentioned under the head full and final (F & F) payment as well as under the head Gratuity, needs to be deducted because for that amount, the deceased would have been entitled irrespective of his death in the accident. Therefore, in Column L of the same table, we have mentioned the amount, which will be treated to have been paid by R-5 by way of compensation to the legal heirs of the 8 deceased persons.
103. Now, whether these amounts are sufficient or not, have to be evaluated by us as per the law laid down by the Hon'ble Supreme Court in the case of Shiv Raman vs. P. Satish Kumar [(2020) 4 SCC 534], wherein, in para no.25, following was observed by the Hon'ble Supreme Court:-
"25. The 1923 Act is a social beneficial legislation and its provisions and amendments thereto must be interpreted in a manner so as to not deprive the employees of the benefit of the legislation. The object of enacting the Act was to ameliorate the hardship of economically poor employees who were exposed to risks in work, or occupational hazards by providing a cheaper and quicker machinery for compensating them with pecuniary benefits. The amendments to the 1923 Act have been enacted to further this salient purpose by either streamlining the compensation process or enhancing the amount of compensation payable to the employee."
104. We may also take into consideration the provision made under the Employee's (Workmen) Compensation Act, 1923 [as amended through EC (Employees Compensation) (Amendment) Act, 2017], which lays down as below:-
"4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-- (a) where death results an from the injury : an amount equal to fifty per cent of the monthly wages of the deceased *[employee] multiplied by the Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 57 of 67 relevant factor; or an amount of *[one lakh and twenty thousand rupees], whichever is more;"
105. Factors, as defined in Schedule IV (Section 4) of the Employee's (Workmen) Compensation Act, 1923 for Working out Lump Sum Equivalent of Compensation Amount in case of Permanent Disablement and Death, are given from max 228.54 to min 99.37. However, even today, "wages" for the purpose of calculation of compensation as per the Government of India vide Notification dated 03.01.2020 stands enhanced under the Employees Compensation Act from Rs.8,000/- to Rs. 15,000/- per month with effect from 03rd January, 2020. As a result, the maximum compensation payable as per the said Act to a person whose age at the time of death was recorded 40 years would get Rs.7,500 (50% of the basic wages) x 184.17 (relevant factor to be applied) = Rs.13,81,275/-. Evidently, while working out the said amount of compensation neither it takes into consideration the earning capacity of a person at the time of death nor would it take into consideration any future prospects of earning of the deceased. Therefore, in our considered view, compensations paid to the employees of industrial unit after death as per the Workmen Compensation Act, 1923 would be too meagre to ensure reasonable quality of life for the family members of the deceased. Therefore, this Tribunal is of the view that in such accidental cases where death has occurred, the principle of law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another [(2009) 6 SCC 121] and in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors. [(2007) 16 SCC 6806], should be applicable, as the same has also applied by the Hon'ble Supreme Court in Civil Appeal No.3482 of 2024 in which Judgment is delivered on 06.03.2024, wherein compensation was determined on the following basis:-
S. Head Amount in
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 58 of 67
No. Rs.
A Monthly Dependency 35,000/- ₹ 35,000
Future Prospects (10 % of Monthly
B Dependency) ₹ 3,500
C ¼ deduction towards personal expenses ₹ 9,625
D Total Dependency (A+B-C) ₹ 28,875
E Age Multiplier 11 ₹ 11
F Compensation (D x 12 x 11) ₹ 38,11,500
106. In Sarla Verma's case (supra), the Hon'ble Apex Court has laid down the following Age Multiplier Factors to be used in the calculation of compensation:-
Age Factor Age Factor Upto 15 yrs 15 41 to 45 14 15 to 20 18 46 to 50 13 21 to 25 18 51 to 55 11 26 to 30 17 56 to 60 9 31 to 35 16 61 to 65 7 36 to 40 15 Above 65 5
107. We would also like to take into consideration the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors. [MANU/SC/1366/2017], wherein on 31.10.2017, the Hon'ble Apex Court ordered as follows:-
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the ages of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax."
108. In view of the above-mentioned case laws, which have been cited by us above, we have worked out on the compensation amount, which are to be paid to the legal heirs of the deceased as per the table below:-
COMPENSATION TO BE PAID AS PER APEX COURT ORDERS IN ACCIDENTAL DEATHS Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 59 of 67 S Emp Name Ag Salary Future Future Deducti Total Age Actual Compensat Additional N Code e Prosp Prospec on Depende Multip Compensation ion Already Compensati ects ts Towards ncy lier To Be Paid Paid, Rs. on to be Multip Personal K=I*12*J Paid Rs.
lier % Expense M=K-L
F=E*F s 25% I=E+G-H
A B C D E F G H I J K L M
1 9312 SUDHANSUSEK 40 1,38,023 30 41,407 44,857 1,34,572 15 2,42,23,037 59,59,292 1,82,63,745
HARA BAMAN
SADHANGI
2 9537 KUNDAN 45 47,009 30 14,103 15,278 45,834 14 77,00,074 44,00,000 33,00,074
KUMAR JHA
3 9709 ARUN KU MAR 22 14,727 50 7,364 5,523 16,568 18 35,78,661 41,70,000 0
GAUTAM
4 9981 DODIYA 25 16,789 50 8,395 6,296 18,888 18 40,79,727 42,00,000 0
DARSHIK
BHAVSINHBHAI
5 9844 KRISHNA 21 15,824 50 7,912 5,934 17,802 18 38,45,232 42,50,000 0
K\ADAUMAR
YADAV
6 9839 DRAGPAL 27 15,657 50 7,829 5,871 17,614 17 35,93,282 41,75,000 0
7 CN TALAVIYA 21 12,000 50 6,000 4,500 13,500 18 29,16,000 60,26,000 0
012218481 KIRTANKUMAR
BHARATBHAI
8 9904 AMIT 37 56,687 50 28,344 21,258 63,773 15 1,14,79,118 54,50,000 60,29,118
KAILASRAO
BIJAWE
Total 2,75,92,936
109. The above table is self-speaking as to under which facts, the amounts are calculated and how. But even then for the sake of easy reference, it is being made clear that for the deceased at serial no.1 in the above table, the age of the deceased was found to be 40 at the time of death and his salary was found to be Rs.1,38,023, therefore, his annual income would stand at Rs.16,56,276/-. Under the head future prospects, 30% of the salary i.e. Rs.41,407 per month x 12 would stand at Rs.4,96,884 as an annual amount. Therefore, if the gross salary of annual salary of Rs.16,56,276 and the amount of future prospects i.e. Rs.4,96,884 are added, then the total sum would stand at Rs.21,53,160. Out of this amount towards personal expenditure, one-fourth of the said amount may be deducted, then Rs.5,38290 is required to be deducted out of Rs.21,53,160 then the amount would stand at Rs.16,14,870. In this amount, the multiplier is applicable as per the age of the deceased, therefore, the gross amount of compensation would be Rs.2,42,03,037.
Out of the above amount, the amount of Rs.59,59,292 requires to be deducted, which has already been paid by the Project Proponent to the legal heirs of the deceased. Therefore, the remaining amount would stand Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 60 of 67 at Rs. 1,82,63,745, which needs to be additionally paid to the legal heirs of the deceased. On the same basis, we made calculations of the other deceased and find that in the case of deceased at serial no.2, Rs.33,00,074 is additionally required to be paid to the legal heirs of the deceased and at serial no.8 also, the amount of Rs.60,29,118 is additionally required to be paid to the legal heirs, while rest of the legal heirs of the deceased have already been paid more than adequate amount as per our calculation.
110. Now, we come to the payment of compensation already made to the injured persons, we find that the respondent No.5 has already paid an amount of compensation of Rs.35 thousands to each 23 persons, who are discharged within two days, whereas others were paid only Rs.50,000. In all, there were 29 injured persons, out of which 23 persons remained admitted for only two days; 4 were discharged after about 3 weeks of their admission and two were discharged after about six weeks of admission, while one was discharged after about 5 months of admission.
111. Therefore, we are of the view that an amount of Rs.5,000 per day of hospitalization should be paid to each person and have accordingly worked out additional compensation to be paid to injured persons as below:-
SR. NAME PLANT/ AGE COMPANY/ ADMIT DATE DISCHARGE AMOUNT DAYS OF COMPENSATION ADDL NO. DEPARTMENT CONTR ACT DATE/ DATE PAID HOSPITALIZATION COMPENSATION OF DEATH TO BE PAID, Rs.
SATISH 1 MANUBHAI PLANT A 46 COMPANY 17-05-2022 18-05-2022 25,000 1 5,000 PATEL JAGDEEP 2 KUMAR PLANT D 31 COMPANY 17-05-2022 17-05-2022 25,000 0 0 MISHRA BRAJVEER 3 PLANT D 23 COMPANY 17-05-2022 18-05-2022 25,000 1 5,000 SINGH 4 RINKU KUMAR PLANT D 25 COMPANY 17-05-2022 24-06-2022 50,000 38 1,90,000 1,40,000 HARIOM 5 PRASAD PLANT D 44 COMPANY 17-05-2022 09-06-2022 50,000 23 1,15,000 65,000 MALAKAR 6 PARVEZ KHAN PLANT D 23 COMPANY 17-05-2022 07-11-2022 50,000 174 8,70,000 8,20,000 7 VIKAS SINGH PLANT D 26 COMPANY 17-05-2022 18-05-2022 25,000 1 5,000 SHAHRUKH 8 PLANT D 23 COMPANY 17-05-2022 17-05-2022 25,000 0 0 KHAN SHREYASH 9 PLANT D 23 COMPANY 17-05-2022 21-06-2022 50,000 35 1,75,000 1,25,000 CHAUDHARY GOPINATH 10 PLANT D 24 COMPANY 17-05-2022 18-05-2022 25,000 1 5,000 BHUTIA PATEL 11 SAGARKUMAR PLANT D 22 COMPANY 17-05-2022 10-06-2022 50,000 24 1,20,000 70,000 DINESHBHAI MOHIT KUMAR 12 PLANT D 26 COMPANY 17-05-2022 18-05-2022 25,000 1 5,000 MAURYA 13 PAPPU KUMAR PLANT D 28 COMPANY 17-05-2022 17-05-2022 25,000 0 0 MAYUR 14 SHIVAJI PLANT D 22 COMPANY 17-05-2022 01-06-2022 50,000 15 75,000 25,000 GIRASE VANZA SAGAR TECHNICAL 15 24 COMPANY 17-05-2022 20-05-2022 25,000 3 15,000 DIPAKBHAI SERVICES 16 SHANI KUMAR KARUNA 19 CONTRACT 17-05-2022 17-05-2022 25,000 0 0 Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 61 of 67 GANESH SK 17 43 CONTRACT 17-05-2022 17-05-2022 25,000 0 0 BISHWAS ENGINEERING 18 VISHAL YADAV SK ENGINEERS 18 CONTRACT 17-05-2022 17-05-2022 25,000 0 0 TOTAL 19 KRISHNA RAM 30 CONTRACT 17-05-2022 07-06-2022 50,000 21 1,05,000 55,000 SOLUTION AKASH TOTAL 20 20 CONTRACT 17-05-2022 07-06-2022 50,000 21 1,05,000 55,000 CHUAHAN SOLUTION TOTAL 21 MD SONU 21 CONTRACT 17-05-2022 18-05-2022 25,000 1 5,000 SOLUTION DHARMENDRA 22 OM AGENCY 22 CONTRACT 17-05-2022 08-06-2022 50,000 22 1,10,000 60,000 KUMAR 23 SUJOY MURA NATRAJ 24 CONTRACT 17-05-2022 18-05-2022 25,000 1 5,000 24 RAJIB SARDAR NATRAJ 19 CONTRACT 17-05-2022 18-05-2022 25,000 1 5,000 25 NARAN SARDAR NATRAJ 52 CONTRACT 17-05-2022 18-05-2022 25,000 1 5,000 NIMAICHAND 26 NATRAJ 28 CONTRACT 17-05-2022 18-05-2022 25,000 1 5,000 SARDAR 27 ROHIT KARUNA 19 CONTRACT 17-05-2022 04-07-2022 50,000 48 2,40,000 1,90,000 SARFARAJ 28 KARUNA 19 CONTRACT 17-05-2022 27-06-2022 50000 41 2,05,000 1,55,000 AHAMAD MANISH SK 37 20 CONTRACT 17-05-2022 18-05-2022 25000 1 5,000 KUSHWAHA ENGINEERING 17,60,000 TOTAL
112. We may make it clear that no such medical papers/reports are placed before us related to the injured persons to assess whether they suffered any permanent disability due to the accident. Therefore, due to lack of evidence in that aspect, we are passing above kind of order. The practical view of the situation that a person, who gets admitted in a hospital, has to spend huge amount, therefore, the above amount may, to some extent, compensate the family members, which might have been incurred by the family members in attending the injured. This issue is decided accordingly.
113. Issue No.(v): As per this issue, we have to decide as to whether, the GPCB had worked out on the EDC correctly and whether any additional EDC is required to be levied from the Project Proponent. In this regard, we find from the reply affidavit of MPCB that they have taken a defense that there is no way in which they could have assessed the environmental compensation because of the loss caused to the environment. Hence only a sum of Rs.1.5 crore has been levied by them from the Project Proponent under this head. During argument, nothing came out from the counsel of the GPCB, as to whether they would be making any calculation of final amount of EDC. Therefore, we are of the view that this aspect should be considered by us looking to the fact that the occurrence has had huge impact on the environment as approximately 8 people died and 29 got Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 62 of 67 injured in this occurrence. The huge quantity of water, which has been mentioned, was also used in extinguishing the fire.
114. We would like to rely upon the law laid down by the Hon'ble Supreme Court in the case of MC Mehta v Union of India (AIR 1987 SC 1086), wherein the Hon'ble Supreme Court awarded the compensation to the victims of Oleum gas leak, wherein principle of absolute liability has been laid down as below:-
"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non- delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standard of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part...If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not.......... We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Ryland v Fletcher. ...We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise."Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 63 of 67
115. Apart from the above ruling, we would also like to rely on the Judgment of Hon'ble Supreme Court delivered in Civil Appeal No.10854 of 2016 (M/S. Goel Ganga Developers India Pvt. vs Union of India through Secretary), wherein, in para no.7, the Hon'ble Supreme Court has laid down as below:-
"57. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone upto 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc.. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs.100 crores or 10% of the project cost whichever is more....."
116. Having relied upon the above-mentioned Judgments of Hon'ble Supreme Court, it is absolutely clear that in the case in hand, the respondent No.5- Project Proponent shall be held to be absolute liable for the accident and for environmental damage, which has resulted because of the said accident. The respondent No.5 has not submitted any measures taken by it in terms of ensuring plant safety prior to the date of occurrence. All compliances, which have been placed by the respondent No.5, are of the period post- accident, except with Safety Report prepared in the year 2014. We also have recorded in our findings above irresponsible way of operation of the industrial unit in terms of the compliance required under MSIHC Rules 1989.
117. We find from the record i.e. as per Annual Report submitted by the respondent No.5 for the Year 2022-2023 that it had earned profit of Rs. Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 64 of 67 266.58 crores as on 31.03.2022 in the financial year prior to the accident. Based on that figure and on the basis of law laid down by the Hon'ble Supreme Court cited by us above, we deem it appropriate to impose 5% of EBITDA of the profit, which comes to Rs.13.3 crores. We deem it appropriate to impose this amount upon the respondent No.5- Project Proponent by way of deterrent effect so that in future not only respondent No.5 but other industries also would be cautious in adopting all the necessary precautions as mandated under law.
118. With the above analysis made by us, we dispose of this application with the following directions:-
(i). The concerned authority shall regularly monitor that the respondent No.5 ensures all the compliances required under the MSIHC Rules, 1989 in letter and spirit in future;
(ii). The amount of additional compensation as given by us in tabular form in para nos.108 & 109 in respect of deceased at serial no.1- SUDHANSUSEKHARA BAMAN SADHANGI; serial no.2- KUNDAN KUMAR JHA; and serial no.8- AMIT KAILASRAO BIJAWE, their legal heirs shall be paid the said amounts, which are shown in the above-mentioned Column-M on proper identification by the concerned authorities, within a period of one month from the date of uploading of this Judgment;
(iii). The additional amount of compensation as directed by us in para no.111 above in respect of the injured persons shall be computed and the same shall also be paid to them within a period of one month from the date of uploading of this Judgment;Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 65 of 67
(iv). The total amount of EDC of Rs.13.3 Crores shall be paid to the GPCB after adjusting the amount of Rs. 1.5 cr, which has already been paid by the respondent No.5 within a period of one month from the date of uploading of this Judgment and the said amount shall be utilized for the environmental improvement in the area within 10 kms. of the unit of respondent No.5 within 6 months of deposition. Report of expenditure incurred along with environmental improvement achieved shall be submitted to this Tribunal within 2 months thereafter; and
(v). As suggested by CPCB in the 'Integrated Guidance Framework for Chemicals Safety in respect of Isolated Storage(s) and Industries covered under MSIHC Rules, 1989", GPCB shall ensure that while issuing Consent to Establish (CTE) or Consent to Operate (CTO) or renewing CTE/ CTO accorded to a plant, industry or process under the Water (Prevention & Control Of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution ) Act, 1981, details on approval of Onsite Emergency Plan, Safety Reports and Safety Audit Reports in accordance with The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (as amended) by concerned Authority/ies, be compulsorily sought from occupier, industry or installation handling hazardous chemicals in quantity equal to or more than the threshold quantity specified in the MSIHC 1989 rules. Within 1 month of uploading of this order GPCB shall bring out necessary Orders and delineate procedure for ensuring compliance in the cases of units in future.Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 66 of 67
(vi). GPCB shall give wide publicity to the above order through newspapers, GPCB website and inform the concerned units by email/letter/SMS within 1 month of uploading of this order and specify maximum 3 months' time for submission of necessary approvals. If any Unit fails to submit satisfactory documents, GPCB shall issue closure order.
119. Before we part, we wish to put on record our appreciation of efforts of Advocate A.K. Singh who has put in substantial hard work in understanding and explaining complex regulatory framework.
120. All pending applications, if any, also stand disposed of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 29, 2024 Original Application No.60/2022(WZ) I.A. No.23/2023(WZ) P.Kr.
Original Application No. 60/2022(WZ) [I.A. No.23/2023(WZ)] Page 67 of 67