Gujarat High Court
Suo vs State on 27 June, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
WPPIL/86/2011 23/ 23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 86 of 2011 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SUO MOTU - PETITIONER Versus STATE OF GUJARAT & 3 - RESPONDENT ========================================================= Appearance : SUO MOTU for PETITIONER : 1,MR SHALIN N MEHTA for PETITIONER : 1, MR PK JANI, LD.GOVERNMENT PLEADER for RESPONDENT : 1 - 2. MR PC KAVINA, LD.SENIOR COUNSEL ASSISTED BY MR.RD DAVE for RESPONDENT : 3, NOTICE SERVED for RESPONDENT : 4, ========================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/11/2011 CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This public interest litigation originates from a letter dated 27.06.2011 addressed by Mr. Jagdish Patel, Head of Peoples Training and Research Centre (PTRC), a Non-Governmental Organisation working in the field of occupational health and safety to Hon'ble the Chief Justice, Gujarat High Court with regard to the plight of the workers engaged in a manufacturing unit run by Corel Pharma Chem Ltd. Ltd. in Kadi, Mehsana, who were exposed to fine dust of some polymers and who fell a prey to lung diseases, one of which was pnuemothorax. This letter specifically talks about two workers, viz., Alkaben Thakor, 22, who died of respiratory disease of 14.08.2010 after prolonged illness and hospitalization and Nainaben Gajjar, 27, who became completely bedridden after she was found to be suffering from severe fibrosis alongwith pnuemothorax. The letter also stated that several other workers were found to be suffering from incurable lung fibrosis. It was alleged by the author that Corel Pharma Chem Ltd. Ltd. was also running the unit in total violation of various labour laws like the Minimum Wages Act and the Employees State Insurance Act.
It is now well-settled that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related to Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person. The State, be it Union or State Government or an industry, public or private, is enjoined to take all such action which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness.
This Court on 21st July 2011 issued a notice on respondents and also ordered that the National Institute of Occupational Health, Meghaninagar, through its Director be impleaded as a party respondent No.4. The learned advocate Mr.Shalin Mehta was engaged as an Amicus Curiae to assist the Court and address the Court on the issue in question. This Court also observed in its order dated 21st July 2011 that pendency of the case shall not stand in the way of the respondent-State Authorities to inquire into the matter and take suitable action in accordance with law.
On 09th August 2011, this Court passed further order on receipt of the affidavit filed on behalf of the first respondent-State along with a copy of the report submitted by the National Institute of Occupational Health, Meghaninagar, Ahmedabad. The said order reads as under :
"It is informed that an affidavit is filed on behalf of the 1st respondent-State, enclosing therewith a copy of report submitted by the National Institute of Occupational Health, Meghaninagar, Ahmedabad. Office is directed to trace out same and place it on the record.
Dr. H.G. Sadhu, Senior Scientist, National Institute of Occupational Health, Meghaninagar, Ahmedabad, who is present in the Court addressed the Court on physiological and medical aspects of lung disease of occupational origin, which is the cause for death of one Ms. Alkaben Thakor and health hazard of Ms. Naynaben Gajjar.
Dr. D.C. Chaudhari, Director, Industrial Safety and Health, State of Gujarat also assisted the Court.
An affidavit has been filed by 3rd respondent. Learned counsel appearing on behalf of 3rd respondent referred to different paragraphs to contend that all safety measures have been taken and there is no chance of causing any threat of lung disease of occupational origin; latest machineries have been installed and proper suits with oxygen marks, cap etc. have been provided to those who workers are dealing with the matter so that they do not come in direct contact with the material in question at any stage.
Mr. Shalin Mehta, learned counsel appearing as amicus curiae, produced literature on health hazards due to exposure of ethylene dichloride and the literature on Epidemiology of Occupational Exposures with Special Reference to Mixtures of Chemicals.
To decide the question as to whether death or health hazards took place due to inaction on the part of the industry, or the persons were suffering from ailment prior to that; whether manufacture of the material may cause some health hazard to the existing employees and; whether any rectificational measure is required to be taken by the industry, we intend to go through the affidavit filed by the 1st respondent, report submitted by the National Institute of Occupational Health, Ahmedabad, literature on the subject and the affidavit filed by 3rd respondent.
Parties may address the Court on the next date on the issue. It would be desirable that Dr. Sadhu also assist the Court on the next date.
Post the matter on 16th August, 2011 within five cases."
Before we proceed to consider the present Public Interest Litigation, we find it expedient to look into exactly the nature of the disease and the cause of Pnuemothorax, etc. Nature of the disease :
Pneumothorax is a disease in which the air collected in the space around the lungs builds up and puts pressure on the lungs. It ultimately blocks the lungs ability to expand and makes it difficult to breathe. Pnuemothorax is irreversible and non-curable. India could possibly be the second country in the world to report, after China, on the incidence of pnuemothorax disease. It is also a very fast disease which begins within 10-12 months of the victim's exposure to whatever is causing it. In other words, it is much faster than silicosis which is caused by exposure to asbestos.
Cause of Pnuemothorax :
Pnuemothorax is caused by exposure to polyacrylate dust or powder. Corel Pharma Chem Ltd. Ltd. uses this powder to make gels which are then used to manufacture products such as cosmetics, oral care products and the like. The whistleblower Jagdish Patel, PTRC's head visited Naina Gajjar's home on 03.06.2011 and found that she was bedridden, frail and breathless. When asked, Gajjar said that she worked as a daily wager labourer in Corel Pharma Chem Ltd. and handled the factory's grinder machine where she was charged with filling and stacking the bag of power she could not identify. She and her colleagues are exposed to this powder for 10-12 hours daily although they are provided with masks.
How do workers come in contact with polyacrylic powder :
The manufacturing process of polyacrylic powder undertaken by Corel Pharma Chem Ltd. is explained in brief as under:
• Acrylic acid monomer is heated in presence of Ethylene Dichloride (EDC) (liquid) in the stainless steel reaction vessel, where it is heated in the jacket of the vessel.
• Tri Methyl Propanol Tetra Acrylate (TMPTA) is added in the vessel.
• AIBN is used as catalyst in the mixture of Acrylic acid and EDC and stirring is done for 8 to 10 hours at 80 degree to 85 degree temperature.
• After reaction is over, the material in the vessel is cooled by circulating cooling water in the jacket of the reaction vessel.
• EDC is recovered by filtering from the above material and then Acrypol product dried in the drier.
• Dried material Acrypol is pulverized and screened through 60 mess screener.
• Acrypol powder is then packed in the required packing.
As explained by Corel Pharma Chem Ltd. in its affidavit-in-reply dated 08th August 2011, the workers come in physical contact with polyacrylic powder at the following three stages :
• When powder is collected from the outlet of Rotary Vacuum Dryer (RVD).
• When powder is fed in the pulverizer.
• When powder is collected from the pulverizer for packing.
First report of National Institute of Occupational Health, pursuant to this Court's order dated 21st July 2011 :
A team of officers from NIOH alongwith some officers from the office of the Directorate of Industrial Safety and Health visited the unit of Corel Pharma Chem Ltd. on 03.08.2011. Their inspection yielded the following observations :
• No records of previous medical examinations like pre-employment medical examination and periodical medical examinations for the period from inception of the industry to year 2010 are available. All the five alleged cases of occupational respiratory diseases were employed for a period varying from 3 to 9 months and had already left the said industry by June/July 2010. Particularly, no medical examination of these cases of occupational respiratory diseases was ever done by industry physician. Therefore it is difficult to ascertain about the pre-employment health status of any of these cases.
• In the absence of past medical records, we interviewed one alleged case Mr.Vipul Darji, male of age 20 years. He informed that he had worked in ceramic industry in the past for one year before joining Coral Pharma Chem Ltd. He also informed that he served in packing department of Coral Pharma Chem Ltd. where his principal job responsibility was to seal the boxes, in which plastic bags, containing polyacrylate were kept. In this industry he served approximately for 7 to 8 months with intervening period of absence. (This may be due to ill health or family problem.) His available medical records and reports of investigations namely HRCT dated 16.12.2010 and X-Ray chest dated 26.01.2011 showed that he had suffered from pnuemothorax with interstitial pneumonitis (due to H. influenza) during December-February 2011 for which he was treated at private hospital. Prior to this period he had received antituberculousis treatment also (exact duration of treatment not known). Therefore, it is difficult to comment on his health status during this period, retrospectively.
• The reports of Pulmonary Function Test of 81 workers done in January 2011 and July 2011 have shown some lung function impairments consisting of obstructive as well as restrictive types in 17 workers.
• Based on the available scientific literature, it can be concluded that respiratory diseases like pleural effusion and lung fibrosis can be attributed to exposure to polyacrylate fine dust. But there is no scientific support to the claim that spontaneous pnuemothorax can occur because of polyacrylate dust exposure. No such respiratory morbidity pattern was also found on clinical examination (performed by factory medical officer in the year 2011) of any of the workers presently employed in the said industry.
Excerpts from the literature submitted by the amicus :
Article on Pnuemothrorax En.wikipedia.org/wiki/Terminal_illness Article on Pulmonary Fibrosis http://www.ncbi.nlm.nih.gov/pmc/articles/ pmc1038012/pdf/brjindmed00201-0025.pdf Chronic Toxity Summary of Ethylene Dichloride http://www.ochha.ca.gov/air/chronic_rels/pdf/107062.pdf.
Article on Epidemiology of Occupational Exposures with Special Reference of Mixtures of Chemicals http://dge.standford.edu/SCOPE/SCOPE_30/ SCOPE_3-_2/31_schiling-677-689pdf Article on Pulmonary Fibrosis in Canada http://www.medicinenet.com/pulmonary_fibrosis/article.htm Article on pleural effusion http://en.wikipedia.org/wiki/pleural_effusion Directions issued by this Court in its oral order dated 20th September 2011 :
"It is indicated that the clinical test of the workmen, working in the respondent-factory indicated presence of certain disorders. Before some directions can be given, it would be appropriate if the workers of the respondent factory are examined by medical experts. In this regard, Dr.H.G. Sadhu of the National Institute of Occupational Health, Meghaninagar, Ahmedabad is present before us and he states through learned Government Pleader that this exercise can be undertaken by the Institute with the help of Civil Hospital.
Learned senior counsel Mr.Kavina states that the respondent-factory owner is ready and prepared to send the workmen for such test at the cost of the factory. It is also indicated that the factory does not work on Thursdays and the Institute can examine about thirty patients in a day for l is purpose.
In this given situation, respondent factory owner will send 10 workmen everyday from 26th September 2011 to the National Institute of Occupational Health. Meghaninagar, Ahmedabad for their medical examination, which would include all required investigations. The factory will send 30 workmen on 29th September 2011, 10 workmen on 30th September 2011 and remaining workmen on 3rd October 2 11 to the National Institute of Occupational Health, Meghaninagar, Ahmedabad for the purpose of their medical examination. The Institute will prepare a report on the status of the health of the workmen. Disorder, if any found in any of them, the cause therefor, the remedy therefor, and the prolific action necessary to be taken will be reported.
The respondent factory owner shall make arrangement for transport of the workmen to the Institute and necessary movement for investigation and shall bear the expenditure for such medical examination and investigation that may be suggested by experts of the Institute.
In the meantime, the State Authorities will state on oath before us the measures that they propose to take to ensure that such factories are checked periodically on the question of health and other safety of the workmen, so also periodical medical checkups of the workmen. They shall also state if they propose to take any step to have a machinery which would examine if a factory propose to be established has to undertake a process or to use a raw-material to manufacture a product which may be hazardous to health. The establishment shall undertake to prevent such health hazards. We would also expect the State Authorities to indicate in their affidavit as to what machineries exist and what steps and measures are taken for ensuring proper implementation of Section 41A of the Factories Act, 1948, especially Section 41A(e).
The factory owner shall also state on next occasion on oath the steps that are taken by the factory to prevent health hazard to the workmen and the steps that are proposed to be taken in future. All these exercise by the Institute, the State Authorities and the factory owner would be concluded by next adjournment i.e. on or before 10th October 2011. For the purpose of sending the workmen for medical examination, the time etc. and the money required to be deposited would be coordinated by learned advocates. S.O. to 10th October 2011."
After going through NIOH's first report, which observed that the reports of pulmonary function test of 81 workers of Corel Pharma Chem Ltd. done in January 2011 and July 2011 have shown some functional impairment consisting of obstructive as well as restrictive types in 17 workers, this Court directed a complete medical checkup of all 84 workers of Corel Pharma Chem Ltd. by issuing certain directions vide order dated 20.09.2011. NIOH was to carry out medical examination of all such workmen and prepare a report on the health status of these workmen by the next date, i.e., 10.10.2011. NIOH was also directed to suggest remedies for taking corrective action if it was found that the workmen were suffering the effects of the hazardous work.
NIOH's second report prepared pursuant to the High Court's oral order dated 20th September 2011 :
1) Results :
The 9 workers (7 men 2 women) were found to have abnormal TFT and restrictive type impairment. All were non-smokers. 5 of them were employed in production, 2 in packing, 1 in R & D and one in plant supervision.12
workers were found to have fibrotic activity on chest X-ray and/or HRCT.
17workers reported with higher than normal serum alkaline phosphatase values. Out of these, 12 worked in production department, 2 in maintenance department and one each in quality control, sweeping and office work.
2) Summary and conclusions :
"Removal of the workers from further exposure at the work place till above abnormalities are managed/cured has been recommended. In addition, medical as well as engineering control measures, environmental monitoring, use of personal protective devices and training and education of workers as regular ongoing activities are further suggested for prevention of occupational health problems in the workers of the industry.
3) Recommendations :
• Removal of the worker from work place to avoid further exposure.
1.
The workers whose liver function test (LFT) values are higher than the normal range/value.
2. The workers whose pulmonary function test (PFT) has shown restrictive type of impairment.
3. The workers whose x-ray and/or HRCT have shown fibrotic activity in the lungs.
These workers are advised removal from further exposure till-
The LFT or PFT results come back to normalcy.
Active pulmonary tuberculosis is ruled out or cured if present These recommendations are mentioned in the column-"Recommendation:
Removal from further exposure-"
• Periodic Medical examination:
Presently all the workers must be subjected to a follow up examination after 6 months, which should include clinical examination, chest radiography, blood microscopy and biochemistry for liver function tests, spirometry and HRCT thorax. On the basis of the results of follow up future showing abnormal parameters should be removed from further exposure and return to job only after normalization of parameters.
• Engineering Control:
This should include automatization of the plant and process as far as possible. Further local exhaust ventilation should be installed at all source of dust generation.
• Environmental monitoring :
Regular environmental monitoring for pollutants in the workplace air should be carried out.
• Training of the workers :
All the workers should be given regular training on safe handling of the material, good manufacturing process and use of personal protective devices.
• Use of PPE :
Personal protective devices particularly respirators should be encouraged to further minimize the chances of inhalation of dust.
We have heard learned Amicus Curiae Mr.Shalin Mehta appearing for the High Court of Gujarat, learned Senior Counsel Mr.P.C. Kavina appearing with learned advocate Mr.R.D. Dave for respondent No.3-Factory Owner, learned Government Pleader Mr.P.K. Jani for respondent Nos.1 and 2. The learned Amicus Curiae suggested that this Court may issue appropriate directions in the interest of the workers who are affected and who are likely to be affected in future if appropriate steps are not taken by the respondent No.3. He suggested that this Court may issue directions directing the respondent No.3 to abide by the averments made in paragraph 8 of the further affidavit filed by the respondent No.3, where the respondent No.3 has averred as under :
"8. As stated in Para-13 of my earlier affidavit that Corel is negotiating with internationally renowned companies of Germany and India on technical aspect to install fully automation at three stages. This entire automation of three stages is to be completed by two different companies. Stage one and two are powder collection from outlet of Rotary Vacuum Dryer (RVD) and feeding of powder in pulverizer respectively. Corel has planned to install closed pneumatic powder transfer system manufactured by Techflow Enterprises Pvt. Ltd, at Ahmedabad. For this purpose, trials have been taken on different equipments in last 3 months and have finalized appropriate tailor-made system. They are very well experienced and renowned company in powder transfer system. Stage three is powder collection from outlet of pulverizer for packing. Corel is planning to install closed automatic weighting, filling, sealing machine called packing station. For this purpose negotiation is being made to make customized equipments as per requirements with German base company viz. Bector Hecht Containment Technology Pvt. Ltd. For this purpose, continuous email and telephonic discussions are going on since last 8 months. HERR, Steven Multer and his team from Germany had visited our facility on 3/3/2011 to suggest appropriate customized solution. The negotiation is in last stage of finalization by examining various possibilities. They are very well experienced and renowned in automatic packing system. For ready reference relevant materials with their details about automatic powder filling systems received from German Company and letter of Ahmedabad Company are annexed hereto and marked as ANNEXURE-R/5 (Colly.)."
The learned Amicus Curiae also submitted that adequate compensation be awarded to the deceased Alkaben Thakor, who was working in the factory premises of the respondent No.3 and died on account of Pnuemothorax and other complications as well as compensation in favour of Naynaben Gajjar, who has survived, but is also crippled and unable to perform or follow her normal pursuits.
The learned counsel for respondent No.3 submitted that they are ready and willing to abide by any condition which this Court may deem fit to impose in the interest of the workers who are working in the factory premises and the learned counsel very fairly submitted that they would not treat present Public Interest Litigation as an adversarial litigation as the respondent No.3 is also very much concerned about the health of its workers working in the unit. The learned counsel brought to our notice that they are actively negotiating with internationally renowned company of Germany and India on technical aspects to install fully automation at three stages. The learned counsel has assured the Court that by the end of December, 2011 the necessary equipments will be installed at the unit, which will take care of the problem so far as the workers coming directly in contact with the final product which is being manufactured.
The learned Government Pleader appearing for the respondent Nos.1 and 2 submitted that the respondent-State will see to it that all necessary measures and safeguards are provided by the respondent No.3 in the interest of the workers.
Having heard the learned counsel for the parties and having perused the materials on record, more particularly, the affidavits filed by the respondent No.3-Corel Pharma Chem and two reports of NIOH, the following directions are issued in the interest of justice :
(a) As suggested by NIOH, the impacted workers be removed from work place till they achieve the normal levels of their body function. This is to say that such workmen would continue to be in the employment of respondent No.3 but shall not resume work till they are certified by NIOH to be fit to resume work. Till then, respondent No.3 shall continue to pay wages to such workmen who are required to be taken out of service for no fault on their part.
(b) As suggested by NIOH, all workmen of respondent no.3 shall be subjected to a follow-up examination after 6 months which would include clinical examination, chest radiography, blood microscopy and biochemistry for liver function tests, spirometry and HRCT thorax.
Those showing abnormal parameters should be removed from further exposure and be made to return to job only after normalization of parameters.
(c) All the workers should be given regular training on safe handling of the material, good manufacturing process and use of personal protective devices.
(d) Videography of the said training given to the workmen be done and soft copy of the same be supplied to the factory inspector.
(e) The respondent No.3 is directed to ensure as averred by it in its affidavit-in-reply dated 07th October 2011 that necessary equipments to make the entire plant automatic be installed by 31st December 2011. Once such equipments are installed and are made functional, we direct that National Institute of Occupational Health, Meghaninagar, Ahmedabad, shall inspect the same so as to satisfy itself as regards the proper functioning of the equipments to make the entire plant fully automatic. Under no circumstances should the workmen be exposed in any manner to polyacrylic powder at any stage. Further, local exhaust ventilation should be installed by respondent no.3 at all source of dust generation.
Compensation amount to Alkaben Thakor (dead) and Nainaben Gajjar (crippled):
The concept of compensation in public law, for injuries caused due to negligence, inaction or indifference of public functionaries or for the violation of rights is well known. The Supreme Court of India has followed the principles of strict liability in case of damage resulting from inherently dangerous and/or hazardous activity. The basis of the doctrine of strict liability is twofold:
(i) The people who engage in particular hazardous activities should bear the burden of the risk of damage that their activities generate, and
(ii) It operates as a loss distribution mechanism, the person who does such hazardous activity being in the best position to spread the loss, viz., insurance and higher price for its products.
In the present case, exposure to polyacrylic powder is no doubt dangerous. The toxicity of polyacrylic powder is too well known to require elaboration.
The learned Amicus Curiae submitted and urged before us that the family of late Alkaben Thakor be paid some amount towards compensation. He submitted that it is not in dispute that Alkaben Thakor died of pnuemothorax after being exposed to polyacrylic powder manufactured in the factory of the respondent No.3. It is not in dispute that late Alkaben Thakor was working in the factory of respondent No.3 and she died on account of fibrosis in the lungs as revealed from a newspaper report which is on record of the case. However, we cannot ignore the fact that as regards the exact cause of death, we are unable to reach to a definite conclusion and it is difficult to solely rely on a newspaper reporting as regards the cause of death of late Alkaben Thakor. Therefore, in these set of facts and circumstances, we are unable to accede to the request made by the learned Amicus Curiae to direct the respondent No.3 to pay an adequate amount of compensation to the family members of late Alkaben Thakor. However, we reserve liberty for the legal heirs of deceased Alkaben Thakor to initiate appropriate proceedings before appropriate Civil Court for adequate amount of compensation, if so advised and thought fit.
The learned Amicus Curiae also submitted that one anther lady employee Nainaben Gajjar was also exposed to the polyacrylic powder while serving in the factory of the respondent No.3 and is at present suffering the effects thereof and the respondent No.3 be directed to pay an adequate compensation to Nainaben Gajjar.
For the present, we are not passing any orders as regards compensation in favour of Smt.Nainaben Gajjar. However, we direct the respondent No.3 to immediately ascertain the whereabouts of Smt.Nainaben Gajjar and see to it that necessary and adequate medical treatment is being given to her. We direct the respondent No.3 to see that Smt.Nainaben Gajjar is subjected to all medical tests and examination and provided treatment as that would be prescribed by the medical experts. If Smt.Nainaben Gajjar needs to be hospitalized for better treatment, then that shall also be undertaken by the respondent No.3.
Having regard to the nature of Public Interest involves in this particular matter, we would also like to state that Article 47 of the Constitution of India obligates the State to regard, as among its primary duties, the raising of the level of nutrition and the standard of living of its people and the improvement of public health. The Supreme Court has brought occupational health hazards to workers within the coverage of Article 21 of the Constitution of India by reading Articles 21, 39(e), 41, 43, 48-A. Accordingly, right to health and medical care to protect the health and vigour of a worker while in service or post-retirement has been held to be a Fundamental Right.
The Supreme Court in Consumer Education and Research Centre and others v. Union of India and others, reported in AIR 1995 SC 922, while dealing with occupational health hazards and diseases to the workmen employed in asbestos industries held as under:
"23.
Article 38(1) lays down the foundation for human rights and enjoins the State to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Art.46 directs the State to protect the poor from social injustice and all forms of exploitation. Article 39(e) charges that the policy of the State shall be to secure "the health and strength of the workers".
Article 42 mandates that the States shall make provision, statutory or executive "to secure just and humane conditions of work". Article 43 directs that the State shall "endeavour to secure to all workers, by suitable legislation or economic organisation or any other way to ensure decent standard of life and full enjoyment of leisure and social and cultural opportunities to the workers". Article 48-A enjoins the State to protect and improve the environment. As human resources are valuable national assets for peace, industrial or material production, national wealth, progress, social stability, descent standard of life of worker is an input. Art. 25(2) of the universal declaration of human rights ensures right to standard of adequate living for health and well-being of the individual including medical care, sickness and disability, Article 2(b) of the International Convention on Political, Social and Cultural Rights protects the right of worker to enjoy just and favourable conditions of work ensuring safe and healthy working conditions.
24. The expression 'life' assured in Art.21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditions in work place and leisure. In Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, this Court held that no person can live without the means of living i.e. means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would make life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In State of H.P. v. Umed Ram Sharma, (1986)2 SCC 68, this Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the constitution. Access to road was held to be an access to life itself in that state.
xxx xxx xxx
26. The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State government or an industry, public or private, is enjoined to take all such action which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art.21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts.38 and 39 of the Constitution. Facilities for medical care and health against sickness ensures stable manpower for economic development and would generate devotion to duty and dedication to give the workers' best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen."
The Supreme Court in Vincent Panikur Iangara v. Union of India, AIR 1987 SC 990, has read Articles 47 and 21 together and has culled out therefrom the obligation on the state to provide better health services to the poor. The Supreme Court has observed in the case of Vincent (surpa) :
"..
.. maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority- perhaps the one of the top."
The Supreme Court has observed in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37 : ".. .. it is the constitutional obligation of the state to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done."
At another place in the same case the Court has observed :
"In a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities."
In this view of the matter, it was expected of the State Authorities to promptly take appropriate action in this regard, more particularly, when it was reported that a lady has lost her life due to the disease known as "Pnuemothorax" resulting on account of fibrosis in the lungs while working in the factory of respondent No.3. In this regard, we may only say that the State Authorities have filed an affidavit-in-reply trying to explain as to what steps have been taken so far as the factory of the respondent No.3 is concerned. Without going further into this issue, we direct the concerned authorities of the State Government to make a survey all over the State of such factories engaged in manufacturing of hazardous products endangering the life of workers on account of direct exposure. We expect the State Authorities to immediately undertake appropriate survey and take adequate measures to safeguard the health of all such workers working in such units. We direct the State- respondent to place before us a detailed report in this regard after a period of two months. The report should contain the details about the survey of such factories all-over the State engaged in manufacturing of hazardous products endangering the life of workers on account of direct exposure and the status of health of workers working at such factories. The report should also contain as to whether such factory-owners have taken adequate measures to safeguard the health of such workers working in such units.
We are sure that the aforesaid directions which we have issued will take care of the problem ensuring protection of health of the workers working in the unit of respondent No.3. Thus, we close the present Public Interest Litigation. In case of any difficulty or non-compliance of any of our directions, it shall be open for either of the parties to apply before us by an appropriate application.
Let this matter be notified once again after a period of two months to report compliance of our directions. When the matter comes up once again before us for reporting compliance, at that point of time the respondent No.3 shall place on record the medical reports of Smt.Nainaben Gajjar and shall also report about the status of installation of instruments and equipments for making the entire factory automatic so far as the manufacturing process is concerned.
Registry is directed to notify present matter before us after a period of two months.
(Bhaskar Bhattacharya, Acting C.J.) (J.B. Pardiwala, J.) Aakar L>