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The judicial response to workplace safety

By Mihir Desai

It was only after the 1920s that the law recognised the responsibility of the employer to provide a safe work environment for his employees. Since then, a number of laws and judicial interpretations that deal with occupational safety and health have been passed. But these provide security only to the organised workforce. They have not been effective in dealing with the unorganised sector

Prior to the 1920s it was believed that by entering into a contract with the employer, an employee accepted the risks involved in the employment and therefore could not hold the employer liable if he suffered from any injury or disease related to his work. Since the 1920s, however, when the Employers Liability Act was enacted, it was recognised that because of the unequal relationship between employer and employee, no such presumption could be made.

Four laws have been enacted that deal with healthcare for workers. The Factories Act 1948 prescribes safety conditions for workers in manufacturing processes; the Workmen's Compensation Act deals with compensation to workers who suffer injuries at the workplace, and who suffer from specified occupational diseases; the Employees State Insurance Act 1948, which apart from dealing with compensation is also concerned with access to free medical care for employees (this includes the setting up of dispensaries, hospitals and a panel of doctors whom employees can approach); and the Maternity Benefit Act which is concerned with providing paid medical leave to pregnant women workers, coupled with certain other benefits. Apart from these general laws, certain specific Acts too have been passed which, to a limited extent, also deal with workers' healthcare. These include the Beedi and Cigar Workers Act, the Mines Act and others.

All these laws recognise that it is the responsibility of the employer to provide a safe work environment for his employees.

Over the years, these laws have been amended to bring in more and more detailed safety provisions for employees, though most, especially the safety laws, are implemented more in the breach.

Many of the enactments are over 50 years old and obviously a lot of litigation has taken place on these issues. The Workmen's Compensation Act and the ESI Act especially have been regularly used by employees who suffer from employment-related injuries and diseases. There is an overwhelming amount of litigation concerning whether a particular injury or disease is employment-related or not.

This article will look at other aspects, mainly those flowing from the Supreme Court's assertion that workers have a fundamental right to work in a healthy environment.

In Consumer Education and Research Centre v Union of India (1), the Supreme Court was concerned with the rights of employees in the asbestos manufacturing industry. This was a public interest litigation on the work conditions and their health effects on workers.

The Supreme Court held that the right to health of a worker is an integral facet of a meaningful right to life, to have not only a meaningful existence but also robust health and vigour without which a worker would lead a life of misery. Lack of health denudes his livelihood. The compelling economic need to work in an industry should not be at the cost of the health and vigour of the worker. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the worker. Provisions for medical tests and treatment improve a worker's health, increasing production and making service more efficient. The court further held that 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 21 read with Article 39 (c), 41 and 43 of the Constitution to make life of the workman meaningful and purposeful with dignity of person.

Right to life includes protection of a worker's health and strength and is a minimum requirement enabling a person to live with dignity. The State (central and 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 of health and happiness.

The Supreme Court went on to observe that the right to human dignity, development of responsibility, social protection, right to rest and leisure are a worker's fundamental human rights, as assured by the Charter of Human Rights, in the Preamble and Articles 38 and 39 of the Constitution. Health enables a worker to enjoy the fruits of his labour, keeping him physically fit and mentally alert, and leading a successful life, economically, socially and culturally. Medical facilities to protect the health of workers are, therefore, the fundamental and human rights of the workman.

The court observed:

The Employees State Insurance Act and Workmen's Compensation Act provide for payment of mandatory compensation for injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessary to protect such persons from the respective dates of cessation of their employment till date. Liquidated damages by way of compensation are accepted principles of compensation.

The court, while allowing the petition, ordered, in respect of the asbestos industry:

All the industries are directed

    1. to maintain and keep maintaining the health record of every worker up to a minimum period of 40 years from the beginning of the employment or 15 years after retirement or cessation of the employment whichever is later;
    2. the membrane filter test to detect asbestos fibre should be adopted by all the factories or establishments on a par with the Metalliferous Mines Regulations, 1961 and Vienna Convention and rules issued thereunder;
    3. all whether covered by Employees State Insurance Act or Workmen's Compensation Act or otherwise are directed to compulsorily ensure health coverage to every worker;
    4. ......
    5. the Union and all the state governments are directed to consider inclusion of such of those small-scale factory or factories or industries to protect health hazards of the workers engaged in the manufacture of asbestos or its ancillary products;
    6. the appropriate inspector of factories in particular of the State of Gujarat, is directed to send all the workers, examined by the ESI hospital concerned, for re-examination by the National Institute of Occupational Health to detect whether all or any of them are suffering from asbestosis. In case of a positive finding, that all or any of them are suffering from occupational health hazards, each such worker shall be entitled to compensation in a sum of Rs 1 lakh payable by the factory or industry or establishment concerned within a period of three months from the date of certification by the National Institute of Occupational Health.

In Rajangam, Secretary, Dist Beedi Worker's Union v State of Tamil Nadu (2), the issue concerned the work conditions of employees in beedi manufacturing and allied industries. A large number of children are employed in this occupation.

The Supreme Court passed directions:

In view of the health hazard involved in the manufacturing process, every worker including children, if employed, should be insured for a minimum amount of Rs 50,000 and the premium should be paid by the employer and the incidence should not be passed on to the workman.

Bandhua Mukti Morcha v Union of India (3) concerned the issue of release of bonded labourers especially from stone quarries in Haryana. The Supreme Court appointed a committee to look into work conditions in stone quarries. The committee's report stated that due to a large number of stone-crushing machines operating at the site, the air was laden with dust making it difficult to breathe. Workers were forced to work and were not allowed to leave the quarries. They did not even have clean water to drink and were living in jhuggies with stones piled one on top of the other as walls, and straw covering the top, which did not afford them any protection against the sun and the rain and which were so low that a person could hardly stand inside them. A few workers were suffering from tuberculosis. Workers were not paid compensation for injuries caused in accidents arising in the course of employment. There were no facilities for medical treatment or schooling for children.

The court held:

It is the fundamental right of everyone under Article 21 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life and breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include protection of the health and strength of workers, men and women, and children of tender age, against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and neither the central nor the state government has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in Clause (e) and (f) of Articles 39, 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provisions by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the persons, particularly belonging to weaker sections of the community and thus investing their right to live with basic human dignity, the State can certainly be obligated to ensure observance of such legislation, for inaction on the part of the State in securing implementation of such legislation would amount to denial of protection under Article 21, more so in the context of Article 256 which provides that the executive power of every state shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws which apply in that state.

In the Asiad Construction Workers case (4), another bench of the Supreme Court had expressed that the State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The central government is therefore bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy. The State of Haryana must therefore ensure that mine leasees or contractors, to whom it is giving its mines for stone quarrying operations, observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the central government and the State of Haryana by a writ petition under Article 32 (5).

The Supreme Court also issued various directions to the state and central governments; some of the important directions concerning health are:

  • The central government and the government of Haryana will immediately ensure that mine leasees and stone-crusher owners start supplying clean drinking water to workers on a scale of at least two litres for every worker, by keeping suitable vessels in a shaded place at conveniently accessible points. Such vessels shall be kept in a clean and hygienic condition and shall be emptied, cleaned and refilled every day. The appropriate authorities of the central government and the government of Haryana will strictly supervise the enforcement of this direction and initiate necessary action if there are any defaults.
  • The central government and state government will ensure that conservancy facilities in the form of latrines and urinals, in accordance with the provisions contained in Section 20 of the Mines Act, 1950 and Rules 33 to 36 of the Mines Rules, 1955 are provided.
  • The central government and state government will take steps to immediately ensure that appropriate and adequate medical and first-aid facilities, as required by Section 21 of the Mines Act, 1952 and Rules 40 to 45-A of the Mines Rules, 1955 are provided to workers.
  • The central government and government of Haryana will ensure that every worker who is required to carry out blasting with explosives is not only trained under the Mines Vocational Training Rules, 1966 but also holds first-aid qualification and carries a first-aid outfit whilst on duty, as required by Rule 45 of the Mines Rules, 1955.
  • The central government and the state government will immediately take steps to ensure that proper and adequate medical treatment is provided by the mine leasees and owners of the stone-crushers to workers employed by them as also to members of their families, free of cost, and such medical assistance shall be made available to them without any cost of transportation or otherwise, and the doctor's fees as also the cost of medicines prescribed by the doctors, including hospitalisation charges, if any, shall also be reimbursed to them.
  • The central government and state government will ensure that the provisions of the Maternity Benefit Act, 1961, the Maternity Benefit (Mines and Circus) Rules, 1963 and the Mines Creche Rules, 1966, where applicable in any particular stone quarry or stone-crusher unit, are given effect to by the mine leasees and stone-crusher owners.
  • As soon as a worker employed in a stone quarry or stone-crusher unit receives an injury or contracts a disease in the course of his employment, the concerned mine leasee or stone-crusher unit owner shall immediately report this fact to the chief inspector or inspecting officers of the central government and/or the state government, and such inspecting officers shall immediately provide legal assistance to the worker with a view to enabling him to file a claim for compensation before the appropriate court or authority. They shall also ensure that such claims are pursued vigorously and the amount of compensation awarded to the worker is secured by him.
  • Inspecting officers of the central government, as also of the state government, will visit every stone quarry and stone-crusher unit at least once a fortnight and ascertain whether any worker has been injured or is suffering from a disease or illness. If so, they will immediately take all necessary steps to provide medical and legal assistance.
  • If the central government and government of Haryana fail to meet any of the obligations set out in Clauses 11, 13, 14 and 15 by the mine leasees and stone-crusher owners within the period specified in those respective clauses, such obligation or obligations to the extent to which they are not performed shall be carried out by the central government and the government of Haryana.

In the case of Mangesh Salodkar vs Monsanto Chemicals of India Ltd (Writ Petition No 2820 of 2003, decided by the Bombay High Court on July 13, 2006), the issue concerned conditions of work at plants run by Monsanto Ltd. The company manufactures pesticides and it was alleged that a particular worker had suffered a brain haemorrhage because of the work environment. He survived but suffered major after-effects. He was paid Rs 3 lakh by the company towards medical expenses, but he filed a petition in the high court. The court initially appointed a commission headed by a retired judge of the high court. The commission, in turn, summoned documents from the factory inspectorate and asked certain experts to go into the conditions of work at the factory. A medical examination was also carried out on some of the other workers. During the pendency of the matter, the dispute between the workers and the employer was resolved as the employer agreed to pay an additional Rs 17.80 lakh to the concerned employee and Rs 7.40 lakh to other employees who had been affected. The commission accordingly filed a report with the high court. Since the dispute between employer and employees had been resolved, the court was not called upon to determine that aspect. However, it did go into other aspects concerning the right of employees to a safe workplace, etc.

The court held that the workers had a fundamental right to health in the workplace. In addition, it observed:

As this case demonstrates, the absence of updated medical records results in a virtual denial of access to justice. In the absence of information, factory workers and all those who espouse the cause of workers cannot realistically attempt to redress the systemic failure on the part of the regulated industry to maintain regulatory standards.

The court issued various directions, including the following:

(iv) The medical examination of workers which is to be conducted under Section 41 E of the Factories Act, 1948 should be such as would enable an identification of diseases and illnesses which are a likely outcome of the process and material used in the factory;

(v) Copies of medical records of workmen must be handed over to them as and when medical examinations are conducted and the appropriate government will consider the issuance of suitable directions mandating the permanent preservation of medical records in electronic form by factories engaged in hazardous processes;

(vi) In respect of factories involved in hazardous processes, safety and occupational health surveys as required by Section 91 A should invariably be carried out at the time of renewal of licences, apart from other times.

The right to a safe working environment has been recognised for nearly 80 years, although over the years it has expanded to include newer areas. In the beginning it was only recognition in principle. This was followed by the recognition that if a worker suffers an injury in the workplace, the employer is liable for compensation. Subsequently, this was expanded to occupational diseases too.

Over time, the modalities and procedures required to fulfil this right have been recognised, including regular medical examinations, handing over medical reports to workers, frequent inspections of work premises. Apart from health, certain healthcare aspects too have been recognised. These include provisions under the ESI Act for free medical treatment to registered employees, and, under the Factories Act, for regular check-ups, first-aid kits and, in certain circumstances, ambulance rooms and vans.

On paper these laws appear very effective. Even otherwise, to a limited extent and for the organised workforce, they do provide a certain security: government employees have a number of schemes and provisions relating to medical benefits and healthcare. But by and large they have not been effective in dealing with the unorganised sector. To begin with, these laws do not apply to small-scale industries. Also, their implementation in many establishments to which they apply is difficult. For instance, if an employer has not deducted or deposited his ESI contribution, the employee is not entitled to avail of the benefits. Similarly, many occupational diseases are not covered by the Act and sometimes it is difficult to prove in court that a disease has occurred because of employment at a particular workplace.

The court's role, especially in recent times, has also not been very commendable. For instance, in 2006, the Supreme Court held, in Central Mine Planning and Design Institute Ltd (2006 1 SCC 377), that a casual worker was not entitled to benefits under the Workmen's Compensation Act.

In the case of Jyothi Adema (2006 5 SCC 513), a worker had a heart attack in the workplace and died. The Supreme Court, relying on the company doctor's certificate, held that since the job did not involve any stress or strain the worker was not entitled to compensation.

In the case of Shakuntala Shreshti (2007 11 SCC 668) too a worker died of a heart attack in the workplace. The Supreme Court held that the onus was on the worker's heir to prove that the heart attack had been caused by the work. In many cases this would be extremely difficult!

Therefore it can be said that whilst doing an excellent job passing broad directions (which most often are not implementable), the Supreme Court has been restricting the scope of various legislations when it deals with individual cases.

(Mihir Desai is a Mumbai-based lawyer practising in the Bombay High Court and Supreme Court. He appears regularly on behalf of labour, and is co-founder of the Indian People's Tribunal on Environment and Human Rights)


1 AIR 1995 SC 922

2 SC dated 19/11/1991

3 AIR 1984 SC 802: (1984) 3 SCC 161

4 People's Union v Union of India (1982) 2 SCC 235

5 p 183, para 10

InfoChange News & Features, April 2009