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Letter to The Hon’ble Chief Justice

Letter to The Hon’ble Chief Justice seeking intervention for a comprehensive judgment on two Supreme Court orders on Silicosis...

To
The Hon’ble Chief Justice,
Supreme Court of India,
New Delhi.

Sub: Seeking Your Lordships intervention for a comprehensive judgment on two Supreme Court orders on Silicosis and rectification in government policies to secure the rights of labourers at hazardous worksites and justice to victims of occupational diseases. 

Most Respectfully Sheweath:

I seek to draw the attention of the Hon’ble Supreme Court of India towards the continued denial of justice to victims of occupational disease like Silicosis. Owing to lack of clarity in government policies and programmes, and some unintended disjunctions in two preceding Supreme Court orders, grievances of victims of occupational diseases are not being addressed, and many hazardous mines and factories are evading compliance with expected protocols of occupational safety and health at worksites, thereby jeopardizing the safety and social protection of workers and their family members.

As a concerned citizen of the country, I take this opportunity to inform the Hon’ble Court, how the two judgments - vide Writ Petition 3727/1965 and Writ Petition 110/2006, examining broadly similar cases, have placed the liability for relief and compensation in case of death/injury on varying parties. It also explains how, in the course of the proceedings of the second petition, cases of violations of rights of workers common in both organized and unorganized sectors, inadvertently got misrepresented by the petitioners themselves as a problem of unorganised sectors alone, and the sub consequent judgments of the Court merely followed from the boundaries drawn therein. Lastly, it attempts to inform the Hon’ble Court, that in the absence of any policy of Government of India, or of the States governments, that clearly define the “unorganized sector”, specifying the “what-where-how” entitlements and provision for protection and redressal, many victims of occupational diseases are getting any relief and compensation.

It is appealed that the Supreme Court of India should intervene in this matter and direct the government to take necessary steps in protecting the safety and health of workers working in polluting and hazardous units.  

A list of suggestions is also being submitted to the Hon’ble Court, which can be useful in resolving the issue.    
Silicosis is an incurable occupational lung disease, caused by breathing of stone and quartzite dust containing crystalline silica particles. Inhaling silica dust progressively damages lung tissues and reduces its ability to extract oxygen from air. In conditions of obstructed breathing, it inevitably leads to death of affected persons. This is an incurable disease, and according to WHO report in 2007, around 1 crore people are exposed to silicosis in India. With large number of unregulated industrial and mining units all over the country, this number is expected to have increased many folds since then. According to OK International, silicosis kills around 30,000 people every year in India.  

Labourers working in dust generating mines and factories are most susceptible to silicosis and similar occupational diseases. Recognising the incurable and deadly nature of this disease, various Acts have been formulated by Government of India to ensure safety of workers working in hazardous conditions.

The Workmen’s Compensation Act of 1923 under Part C, Schedule III, declares Silicosis as one of the occupational diseases liable for compensation. The Factories Act 1948 makes it mandatory for the Chief Inspector of Factories and/or other appointed functionaries to undertake safety and occupational health inspection and surveys, and appoint certifying surgeons to carry out examination and certification of cases of illness which are believed to have occurred due to conditions prevailing at the worksite. It declares Silicosis as one of the “Notifiable Diseases” under Schedule III wherein if any worker in a factory contracts Silicosis, then it is the responsibility of the factory manager and the certifying medical practitioner to inform the Chief Inspector of the case without delay. Similarly, the Mines Act 1952 states that if a person employed in a mine, contracts Silicosis, as notified in the Gazette of India (dated 21/07/1952), then the onus to immediately inform the relevant government authorities about the occurrence of the disease rests with the owner/manager of that Mine.   The Employee State Insurance Act 1948 states that if a worker who has worked even for a single day under silica dust exposure at any factory, and variations are observed in his X-ray plates, then this will be considered as a case of silicosis. 

Thus, the question of silicosis as a disease, and concerns for occupational safety and health of workers have been duly recongnised in the statute books. The four critical Acts, regulating the operations and functioning of hazardous worksites like factories and mines have put constitutional obligations on the government and employer to ensure safety of workers. When put together, these Acts, play a mutually reinforcing role - on one side they give a proactive regulatory role to the government to inspect/invigilate factories and mines to ensure that all occupational safety protocols are complied with. On the other side, they make it mandatory for the employers and medical practitioners to immediately report cases of Silicosis and other occupational diseases. But despite these mutually reinforcing provisions, large numbers of cases of Silicosis are either not being screened, or not reported. The cardinal rule of justice seems to have been jeopardized and even monetary compensation to families of the deceased/affected patients has not been provided.

The question arises what are the hindrance in an effective implementation of the programme.

The Supreme Court of India while hearing a petition in M.C Mehta Vs Union of India and Others (vide writ petition 3727/1965) in 1996 concluded that the death of 16 workers and disease of 12 surviving workers was a result of the hazardous working conditions, and lack of occupational safety measures at a quartz grinding (ramming mass) unit named Ms. Surenda Khanij (Pvt) Ltd. Holding the factory owner responsible for the death and illness of the workers, the Court ordered Ms. Surenda Khanij (Pvt) Ltd to pay monetary compensation to the relatives of the deceased victims and the then surviving patients.

Around thirteen years later, in an another case in the Supreme Court concerning contraction of Silicosis disease by workers at hazardous factory sites (vide Writ Petition 110/2006) in 2009 in People’s Rights and Social Resource Centre (PRASAR) and Others Vs Union of India, the Hon’ble Court recognized that Silicosis disease is prevalent in several states in the country, and entrusted National Human Rights Commission (NHRC), an intervener in the said petition, to take up confirmed cases of Silicosis deaths and illnesses, and ensure that due compensation and medical relief is provided to the relatives of deceased and suffering patients, as applicable.

However, the two judgments of the Supreme Court, while intending to provide protection to life and health of vulnerable workers, have differed from each other in such significant ways that they have varying implications upon all the stake holders. The non-alignment in the two judgments, leading towards two diametrically opposite directions for interventions thereof, has led to a condition of deadlock and stagnancy over any follow up on the Court orders by the executive branches of the government. The most unfortunate consequence of the prevailing state of confusion is that incongruities in the appeals/submissions made in the court by the contending parties during the course of the hearing, and the disjuncture in two orders of the Hon’ble Court, have been uncritically imported into mainstream government policies. Silicosis disease meanwhile, continues to play havoc in the lives of increasing number of industrial workers without any corrective steps being taken by the government.

Firstly, the difference between the two Supreme Court orders pertains to the onus and liability for paying monetary compensation to the aggrieved. The first judgment of 1996 opined that the victims had contracted the occupational disease of silicosis while working at the factory, and because of the pollution created by the factory. Therefore, it made the private company liable to pay compensation to the victims. But the judgment of the Supreme Court in 2009, assigned NHRC, the responsibility to ensure that compensation to victims is paid to the aggrieved through “concerned authorities”. Thus, though in both cases, silicosis disease was contracted at factory units, the first order holds the employer responsible for paying compensation and medical relief, while the second order puts the same onus on the government’s shoulders.

Secondly, the judgment of 1996 provided compensation to workers who had contracted Silicosis and were still alive, as well as to the nearest relatives of those workers who died because of Silicosis, as per Workmen Compensation Act 1923. However, the interim order of 2009, provided compensation only to those workers who had died due to silicosis, and not to those who had contracted the disease but were still alive. It provided only medical relief to those living patients.    

Thirdly, in the first Supreme Court order on 1996, the culpability of the employer was held on grounds of violation of Factories Act of 1948[1]. But in the second case, the petitioners (NHRC) themselves moved the Supreme Court seeking redressal on grounds of violation of Human Rights Act of 1993 only, thus putting the entire debate outside the purview of the Factories Act of 1948 and Workman’s compensation Act 1923 which are primarily meant for such cases.

Fourthly, and ironically at the most basic level, the foundational premises on which the petitioner (NHRC), though however unintended, conceptualized and framed the case, itself narrowed the scope of grievance redressal and justice to the victims. The appeals/submissions made by the petitioner have gone a long way in defining the problem in the manner in which it was presented to the Court. Quite contrary to the petitioner’s positing the case as a problem of unorganized sector, most of the hazardous occupational worksites which carry possibilities of ingestion of silica dust particles by workers occur at large number of unregulated, unsafe mining and industrial units of Organised sector which are not complying with prescribed safety protocols at workplace. A large number of such unmonitored production units, many legal as well as illegal, have sprung up all over mining and industrial belts in the countryside, as is the case in Jharkhand. Very often, state governments do not even have the complete data on total number of such operating units. To minimize costs of production, and to maximize profits beyond ethical ratio, these companies/factories/mines and because of production oriented mindset compromise on maintaining occupational safety protocols at workplace and thus putting the lives of helpless workers at risk.

The most undesirable, but unfortunately the most inevitable consequence of posting this case as a violation of Human Rights in the unorganized sector (overlooking Factories Act 1948, and Workman Compensation Act 1923) was that the provision of ‘relief and compensation’ – as a means not only to provide justice to victims, but also to build a sort of pressure on private industrial and mining firms to engage is just, ethical, socially responsible and environmentally sensitive business practices, were lost into oblivion. For one, while putting the responsibility to compensate for loss solely on the government, it totally absolved the private factories, mines and other hazardous industrial units from their accountability and responsibility towards workers. In the light of the fact that silicosis is a disease that can’t be cured but can only be prevented, it is difficult to imagine how the lop-sided fixing of responsibility will result in complete control and prevention of the disease. 

Similarly, with the dislocation of this issue from one plank to another, from being a problem of Labour Rights violation (which is also violation of human rights) in organized sector to a problem of Human Rights violation in unogranised sector, even the possibility of accruing relief and compensation from Government becomes untenable since in the prevailing policy frameworks in the country, the government protection and responsibility to unorganized sector is very minimal and unclear. There is an absence of guidelines as to how the compensation and relief in cases of loss, injury or harm in unorganized sector would be established, calculated and compensated.

The Report of the Working Group on Occupational Safety and Health, constituted by Planning Commission for preparation of the 12th Five Year Plan itself has stated that that “most industries belonging to the unorganized sector do not fall under the purview of the statutory tools such as the Factories Act aimed to protect the health and safety of the working population”.  

Therefore, the follow up of the second order of the Supreme Court and the successive interventions by NHRC to provide relief and compensation to Silicosis worker have not met with due success in the absence of a well-defined provisions in unorganized sector. For instance, even after receiving summons from NHRC, the Government of Gujrat has categorically refused to pay the compensation to proven victims of silicosis stating that it should be paid by Employees State Insurance Corporation.[2]

Thus, the complexity of the silicosis case in Supreme Court and the subsequent incoherent appeals and resultant judgments – from shifting onus for compensation from private companies to government, from being an issue of labour rights to human rights, and flawed conceptual imposition of ‘unorganised’ over organised sector workers has created myriad confusion. The resultant incompatibilities in understanding around silicosis are also entering into government policies through uncritical usage of terminologies. For instance, the Report of the Working Group constituted by the Planning Commission of India for the 12th Five Year Plan (2012-17) on Occupational Safety and Health refers to workers in “stone quarries, quartzite grinding and agate industries” as those belonging to unorganized sector. At the same time, the Chief Inspector of Factories in Jharkhand, in a written reply to an RTI application in 2013 seeking details of registered workers under Factories Act 1948, provided the needed information categorized as that of those working in store quarries and quartz grinding units. Thus, drawing from the preceding articulations of the petitioners (NHRC and other NGOs) in the PRASAR Vs Union of India case, the Planning Commission document has uncritically imported the terminology of ‘unorganised sector’ for mining and industrial units that are already currently falling under Factories Act 1948 and Employees Compensation Act 1923.        

Appeal and recommendations:

1. Request the Supreme Court to direct the government to clearly define the term “Unorganized Sector”, and how the distinction between organized and unorganized sector is/will be maintained. The present definition of unorganized sector as per “Unorganized Sectors and Social Security Act” is ambiguous and unclear.

2. The provisions concerning occupational health and safety and social protection of workers in unorganised sector should be clearly defined and extension of Factories Act 1948, ESI Act 1948 and the Workmen Compensation Act 1923.

3. Request the Supreme Court to intervene for an comprehensive order on the two preceding orders emanating from the Supreme Court, vide writ petition 3727/1965 (putting liability for compensation on private factory employer) and writ petition 110/2006 (putting liability for compensation on Government), and clearly assign the liabilities for relief and compensation.   

4. Request the Supreme Court to direct government of India that OSH should be viewed as fundamental rights of the workers at workplace and to form independent Occupational Safety & Health Commission that will work jointly with National Human Rights Commission. That formation could be possible comprising representatives’ of civil society groups and doctors from different parts of India who have contributed immensely on OSH and has better understanding occupational diseases and relevant rules and regulations and knowledge and experience of  diagnosis  who would have executive power to direct state governments and will extend support to the state governments to implement OSH related rules and regulations and will also help to diagnose the cases. The recommendations of the commission shall be implemented by the state governments. The salary and other parks of the members will be borne by the respective state governments. Four names of experts are suggested by the applicant for the proposed OSH commission like Dr. T. K. Joshi, New Delhi as Chairperson of OSH commission and Dr. Kunal Kumar Datta, Dr. Tarun Kumar Mohanty and Samit Kumar Carr from eastern part of India. Others members from different regions / states should be included.

5. Request the Supreme Court to direct the Planning Commission /Ministry of Labour Employment and Training Govt. of India to rectify the omissions in its “Report of August 2011 of the Working Group on Occupational Safety and Health at Workplace” which has described stone quarries, stone cutting and quartz grinding as unorganized sector worksites. Quartz grinding is actually a work of ramming mass units involving use of heavy machineries, electricity and necessarily employs much more than 10 workers. Contrary to the understanding of the Planning Commission Report, records of quartz grinding units and workers is already being maintained by Chief Inspector of factories (see annexure)

6. The state governments should be directed to take into consideration, the nature of operations and conditions of labour employment while describing any factory/unit as organized or unorganized. For instance, it is incorrect to perceive Stone Cutting/grinding entirely as a micro-level activity of few individuals working in informal conditions where employer and employee relationship is not established that happens because of not registering the workers by the employer/s and non functioning of government regulatory agencies to register the names as factory or mine workers. Stone blasting/cutting/grinding/crushing units are set up with millions of investment, involving machinery, employing large number of workers and huge turnovers. Such stone cutting units have mushroomed all over the mining belts in Jharkhand and other states. Similarly any one can referee and compare hand-broken stone quarrying/grinding with using of power drill and dynamite for quarrying and electrically operated crushing and grinding unit where more than 10 employees are employed. In fact, the Stone blasting/ cutting/ grinding/ crushing units present a case of organized profits for employers and unsafe working conditions for labourers. Schematically, what has been kept/maintained as ‘informal and unorganized’ is the wages and working conditions of workers while at the same time, what remains organized is a highly systematic forms of profit generation with substantive capital investment under government enforcement agencies.

Therefore, it is appealed to the Supreme Court to direct the Government of India to set in place a detailed classification of production and manufacturing units into organized and unorganized sectors.

It is also requested to the Supreme court to direct Government of India to amend the of the Factories Act 1948, Mining Act 1952 , ESI act 1952 and Workmen Compensation Act 1923 for its amendment for extending its applicability to the dust (silica, asbestos, iron, coal, strontium, beryllium that causes Pneumoconiosis which is generic names of incurable occupational lung diseases) generating units are in operation and less than 10 workers are shown (actual or concocted data source and to consider manufacturing processes as hazardous operations.  

7. Based on the detailed classification of production and manufacturing units, all the state governments should be instructed to include all dust generating units in the list of hazardous operations at worksite developing state rule according to Factories Act 1948.

8. The Supreme Court judgment of 2009 may revisit to extend compensations to those workers who are still alive and suffering from occupational diseases like silicosis. Since it is a scientific fact that silicosis is an irreversible, incurable disease that would inevitably lead to the death of the affected worker, it is appealed that compensation should be provided to living patient workers as well.

9. The interim order of the Supreme Court of 2009 assigned NHRC to take up “specific and confirmed” cases of silicosis to recommend for providing of relief and compensation to the aggrieved workers. But the usage of the terms “specific and confirmed cases” has created two distinct problems.

Firstly, it has induced an additional ‘evidence-generation-proof submission’ responsibility over the victims themselves. The terms “specific and confirmed cases” is being used employed by state governments and concerned departments to arbitrarily impose production of post-mortem reports by the relatives of the victims as mandatory. Genuine cases of silicosis are not being recognized by concerned authorities on grounds of non-production of post-mortem reports. However, it is important to note that there are no such mandatory clauses under the Factories Act 1948, ESI Act 1948D or Workmen Compensation Act 1923. Rather they put the onus for ensuring registration and identification of workers, notification of disease occurrences etc on employers and government regulatory agencies. The judgment of 2009 however, overlooking these Acts, and solely guided as a Human Rights issue of an already inadequately defined category of ‘unorganised sector’ has made the settlement of cases more open-ended. The subsequent interpretation by concerned departments has only made the settlement of cases more bureaucratic, cumbersome, and inconvenient for poor helpless workers.  For instance, after a show-cause notice by NHRC, the Government of Jharkhand conducted an enquiry to investigate reported cases of silicosis deaths. In its response letter to NHRC (vide letter no. 4847, dated October 20, 2012) the Deputy Secretary, Home Department, Govt. of Jharkhand stated that since the relatives of the alleged victims failed to produce the X-ray plates, pathological and post-mortem reports of the deceased victim before the enquiry committee, it could not be ascertained that the worker had died due to silicosis. It categorically concluded that since it could not be proved that the workers had died due to silicosis, the state government had decided not to pay any compensation to the relatives of the deceased.

Secondly, in cases of dead silicosis patients who can’t be directly physically examined and only their lasting radiological evidences can be interpreted like, as per established clinical protocols of pathological and radiological interpretations, the medical reports are never written in words of absolute certainty. Such radiological reports are indicative in nature, often hinting towards possibility of disease occurrence. However, the Supreme Court usage of the term “confirmed cases” is being employed by government to specifically look for the term “confirmed” in diagnostic reports to admit cases of silicosis.

Thus, the usage of the terms “specific and confirmed cases” has reversed the directions of systemic accountability, shifting the onus to produce evidences from employer and government to the poor workers themselves.  Therefore, it is appealed that the terms “specific and confirm cases” be withdrawn.

While the Supreme Court, dealing with the entire case solely as a matter of unorganized sector workers, had ordered the criteria of confirmation of cases, it did so without describing who would be certifying authority for undertaking such confirmations. Ironically, such certifying authorities for the whole of unorganized sector in neither defined, nor designated.  In contrast, the Factories Act of 1948, section 89 (2) (3), has well defined provisions and assigned authorizations for undertaking such confirmation of cases. Thus in totality, the protection of aggrieved workers in organized sector under Factories Act 1948 was never invoked, and the means and mechanisms for providing protection to unorganized sector workers was left in suspended animation. 

Another important type of violation of constitutional norms concerning occupational safety and health at hazardous worksites is exemplified in the RTI reply of Government of Jharkhand in February 2013 which stated that no Certifying Surgeon has been appointed in the state till date.

10. The government of Jharkhand may directed to remove postmortem clause from the State Action Plan for Prevention and Mitigation of Silicosis as the clause is not legally binding and that goes against the Factories Act 1948, ESI Act 1948 and the Workmen Compensation Act 1923.

11. The state government may directed for interim monitory relief to the silicosis victims and their families till the final judgment comes out.  

Sir, this is my humble request to you to accept this letter as PIL for the social security of millions of workers of India and their families especially for the children and widows/widowers whose earning parents husbands/wives are dead at their premature age or have become disabled because of silicosis and other occupational lung diseases that compel them to live in mal nourishment, stop school going and to become child labour.

Sir, I firmly believe that you will accept my application as a Pubic Interest Litigation to provide justice to the millions of silicosis affected workers and their kin who are children and widows/widowers. And for this I shall be ever obliged to you.

Thanking you
Yours faithfully

Samit Kumar Carr
Secretary General
Occupational Safety and Health Association of Jharkhand (OSHAJ)
1011, Satluj, Vijaya’s Shatabdee Sonari Jamshedpur
East Singhbhum, Jharkhand pin. 831011


Notes:
1. The Supreme Court had found that the said factory was not registered under Directorate of Factories as  reported by Labour Commissioner of West Bengal, and the workers working in the factory was not also registered,  this was in violation of the Factories Act 1948. The Court awarded compensation even to those workers who did not have ID cards. It placed the onus of proving the identity of workers on the District Collector; on whose identification (based on workers’ statement) the victim labourers were awarded compensation. Thus in the Supreme Court order, the government and regulatory agencies have also been assigned the substantive responsibility of monitoring compliance to occupational safety and health by factories.   

2. Spewing Silicosis: Gujrat’s Factries of Doom, The Hindu, May 5, 2011

Feb 18, 2018