Labour Rights Vs Human Rights

Plight of Silicosis Victims

Samit Kumar Carr

[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 jeopardising the safety and social protection of workers and their family members. The author being the Secretary General of Occupational Safety and Health Association of Jharkhand (OSHAI) drafted a letter in the form of PLI to be addressed to the Hon'ble Chief Justice, Supreme Court of India, New Delhi, in respect of Silicosis and other occupational hazards. Excerpts :]

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 incurable and similar occupational diseases. Recognising the 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 the Mine. The Employees 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 recognised in the statute books. The four critical Acts, regulating the occupations and functioning of hazardous worksites like factories and mines have put constitutional obligations on the government and employer to ensure safety of workers. 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 be have been jeoparised and even monetary compensation to families of the deceased/affected patients has not been provided.

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 Surendra Khanij (Pvt) Ltd. Holding the factory owner responsible for the death and illness of the workers, the Court ordered Surendra 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 recognised 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 judgements 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 judgements, 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 governance 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 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 judgement 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 in 1996, the culpability of the employer was held on grounds of violation of Factories Act of 1948. 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 unitended, conceptualised and 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 unorganised 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 minimise costs of production, and to maximise 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 Report of the Working Group on Occupational Safety and Health, constituted by the Planning Commssion for preparation of the 12th Five Year Plan itself has stated that ‘‘most industries belonging to the unorganised 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 successive interventions by NHRC to provide relief and compensation to silicosis workers have not met with due success in the absence of well-defined provisions in unorganised sector. For instance, even after receiving summons from NHRC, the Government of Gujarat has categorically refused to pay the compensation to proven victims of silicosis stating that it should be paid by Employees State Insurance Corporation.

Thus, the complexity of the silicosis case in Supreme Court and the subsequent incoherent appeals and resultant judgements—from shifting onus for compensation from private companies to government, from being a issue of labour rights to human rights, and flawed conceptual imposition of ‘unorganised’ over organised sector workers has created myriad confusions.

The peculian terminology of ‘‘specific and confirmed cases’’ is being used 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 recognised 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’s Compensation Act 1923. Rather, they put the onus for ensuring registration and identification of workers, notification of disease occurences etc on employers and government regulatory agencies. The judgement 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, Government 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 vicitm 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.

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 themsevles.

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

Vol. 50, No.38, Mar 25 - 31, 2018