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Right to health and medical care – Writ petition – some directions are given by Apex court for implementation for CFTPPs workers working in various Thermal power plants in India = Occupational Health and Safety Association … Petitioner Versus Union of India and others … Respondents = 2014 (January part) judis.nic.in/supremecourt/filename=41196

Right to health and medical care – Writ petition – some directions are given by Apex court for implementation   for CFTPPs workers working in various Thermal power plants in India =

whether  CFTPPs

are complying with safety standards and the rules and  regulations  relating

to the health of the employees working  in  various  CFTPPs  throughout  the

country

 This Court in Consumer Education  &  Research  Centre  and  others  v.

Union of India and others (1995) 3 SCC  42,  has  held  that  

the  right  to

health and medical care  to  protect  one’s  health  and  vigour,  while  in

service or post-retirement,  is  a  fundamental  right  of  a  worker  under

Article 21 read with Articles 39(e), 41, 43, 48-A and all related

Articles and fundamental human rights  to  make  the  life  of  the  workman

meaningful and purposeful with dignity of person.  The Court held  that  the

compelling necessity to work in an industry exposed to  health  hazards  due

to indigence to bread-winning for himself and his dependents should  not  be

at the cost of health and vigour of the workman.

 

10.   Right to health i.e. right to live  in  a  clean,  hygienic  and  safe

environment is a right flowing from Article 21.  Clean surroundings lead  to

healthy body and healthy mind.  But, unfortunately, for eking  a  livelihood

and for national interest, many  employees  work  in  dangerous,  risky  and

unhygienic environment.  Right to  live  with  human  dignity  enshrined  in

Article 21 derives its life breath from the Directive  Principles  of  State

Policy, particularly clauses (e) and (f) of Articles 39, 41 and  42.   Those

Articles include protection of health and strength of workers and  just  and

humane conditions of work. Those are minimum requirements which  must  exist

to enable a  person  to  live  with  human  dignity.   Every  State  has  an

obligation and duty to provide  at  least  the  minimum  condition  ensuring

human dignity. But when workers are engaged  in  such  hazardous  and  risky

jobs, then  the  responsibility  and  duty  on  the  State  is  double-fold.

Occupational health and safety issues of CFTPPs are associated with  thermal

discharge, air and coal emission, fire hazards, explosion hazards etc.  Dust

emanates  also  contain  free  silica  associated  with  silicosis,  arsenic

leading to skin and lung cancer, coal dust leading to  black  lung  and  the

potential harmful substances.  Necessity for  constant  supervision  and  to

the drive to mitigate the harmful effects  on  the  workers  is  of  extreme

importance. 

Following  are  the  main

suggestions put forward before this Court :

 

      1.    Comprehensive medical checkup of all workers in all  coal  fired

           thermal power stations by doctors appointed in consultation with

           the trade unions.  First medical check up to be completed within

           six months.  Then to be done on yearly basis.

 

 

      2.    Free and comprehensive medical treatment to be provided  to  all

           workers found to be  suffering  from  an  occupational  disease,

           ailment or accident, until cured or until death.

 

 

      3.    Services of the workmen not to be terminated during illness  and

           to be treated as if on duty.

 

 

      4.     Compensation  to  be  paid  to  workmen  suffering   from   any

           occupational disease, aliment or accident in accordance with the

           provisions of the Workmen’s Compensation Act, 1923.

 

 

      5.    Modern  protective  equipment  to  be  provided  to  workmen  as

           recommended by an expert body in  consultation  with  the  trade

           unions.

 

 

      6.    Strict control  measures  to  be  immediately  adopted  for  the

           control of dust, heat, noise,  vibration  and  radiation  to  be

           recommended by the National  Institute  of  Occupational  Health

           (NIOH) Ahmadabad, Gujarat.

 

 

      7.    All employees to abide by the Code of Practice  on  Occupational

           Safety and Health Audit as developed by  the  Bureau  of  Indian

           Standards.

 

 

      8.    Safe methods  be  followed  for  the  handling,  collection  and

           disposal of hazardous waste to be recommended by NIOH.

 

 

      9.    Appointment of a Committee of experts by NIOH including  therein

           Trade Union representatives and Health and Safety NGO’s to  look

           into the  issue  of  Health  and  Safety  of  workers  and  make

           recommendations.

 

 

The NIOH  in  its  Report  in

2011 has already made its recommendations with respect  to  the  suggestions

made by this  Court  in  its  order  dated  30.1.2008.   Since  the  Central

Government has already accepted suggestions no.1 to 7, at the moment we  are

concerned with suggestions no.8 and 9, which we reiterate as follows :-

 

 

      “8.   Safe methods  be  followed  for  the  handling,  collection  and

           disposal of hazardous waste to be recommended by NIOH.

 

 

      9.    Appointment of a Committee of experts by NIOH including  therein

           Trade Union representatives and Health and Safety NGO’s to  look

           into the  issue  of  Health  and  Safety  of  workers  and  make

           recommendations.”

 The Government of  India  later  placed  a  Report  of  the  Committee

prepared by the National Institute  of  Occupational  Health  (NIOH)  titled

Environment, Health and Safety Issues in Coal Fired Thermal Power Plants  of

the year 2011.

 

 Report of National Institute  of  Occupational  Health  (NIOH)  titled

Environment, Health and Safety Issues in Coal Fired Thermal Power Plants  of

the year 2011 may also be made available by the  Secretary  General  of  the

Supreme Court to the Registrar Generals of the High Courts of the  aforesaid

States.   

We make it clear that the Report is not at  all  comprehensive  in

certain aspects and the  respective  High  Courts  can  examine  the  issues

projected in this Judgment  independently  after  calling  for  the  reports

about the CFTPPs functioning in  their  respective  States.   

The  Registrar

Generals of High Courts of the aforesaid States should place  this  Judgment

before the Chief Justices of the respective States so  as  to  initiate  suo

moto proceedings in the larger interest of the workers working in CFTPPs  in

the respective States.

 

20.   The Writ Petition is accordingly disposed of.

2014  (January part) judis.nic.in/supremecourt/filename=41196

 

K.S. RADHAKRISHNAN, A.K. SIKRI

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.79 OF 2005

Occupational Health and
Safety Association … Petitioner
Versus
Union of India and others … Respondents
J U D G M E N T

K.S. Radhakrishnan, J.

1. The Petitioner, a non-profit occupational health and safety
organization, registered under the Societies Registration Act, 1860, has
invoked the extra-ordinary jurisdiction of this Court under Article 32 of
the Constitution of India seeking the following reliefs :-

a. To issue a writ of mandamus or any other appropriate writ,
order, or direction directing the Respondents to frame
guidelines with respect to occupational safety and health
regulations to be maintained by various industries;
b. To issue a writ of mandamus or any other appropriate writ, order
or direction directing respondents to appoint and constitute a
committee for the monitoring of the working of thermal power
plants in India and to keep check on the health and safety norms
for the workers working in their power stations;
c. To issue a writ of mandamus or any other appropriate writ, order
or direction directing the respondents to pay compensation to
the workers who are victims of occupational health disorders and
to frame a scheme of compensation for workers in cases of
occupational health disorders;
d. To issue a writ of mandamus or any other appropriate writ, order
or direction directing the respondents to notify the
recommendations as contained in paragraph 35 of the Petition as
guidelines to be followed by thermal power plant.
2. The Petitioner represents about 130 Coal Fired Thermal Power Plants
(CFTPPs) in India spread over different States in the country, but no
proper occupational health services with adequate facilities for health
delivery system or guidelines with respect to occupational safety are in
place. Factories Act, Boilers Act, Employees’ State Insurance Act,
Compensation Act, the Water (Prevention and Control of Pollution) Act, the
Air (Prevention and Control of Pollution) Act, Environmental Protection
Act, etc. are in place, but the lack of proper health delivery system,
evaluation of occupational health status of workers, their safety and
protection cause serious occupational health hazards.

3. The Petitioner herein filed I.A. No.1 of 2005 and 2 of 2007 and
highlighted the serious diseases, the workers working in thermal plants are
suffering from over a period of years. The Report produced by the
Petitioner would indicate that half of the workers have lung function
abnormalities, pulmonary function test abnormalities, senor neuro loss,
skin diseases, asthama, and so on. This Court noticing the same, passed an
interim order on 30.1.2008, after taking note of the various suggestions
made at the Bar to reduce the occupational hazards of the employees working
in various thermal power stations in the country. Following are the main
suggestions put forward before this Court :

1. Comprehensive medical checkup of all workers in all coal fired
thermal power stations by doctors appointed in consultation with
the trade unions. First medical check up to be completed within
six months. Then to be done on yearly basis.
2. Free and comprehensive medical treatment to be provided to all
workers found to be suffering from an occupational disease,
ailment or accident, until cured or until death.
3. Services of the workmen not to be terminated during illness and
to be treated as if on duty.
4. Compensation to be paid to workmen suffering from any
occupational disease, aliment or accident in accordance with the
provisions of the Workmen’s Compensation Act, 1923.
5. Modern protective equipment to be provided to workmen as
recommended by an expert body in consultation with the trade
unions.
6. Strict control measures to be immediately adopted for the
control of dust, heat, noise, vibration and radiation to be
recommended by the National Institute of Occupational Health
(NIOH) Ahmadabad, Gujarat.
7. All employees to abide by the Code of Practice on Occupational
Safety and Health Audit as developed by the Bureau of Indian
Standards.
8. Safe methods be followed for the handling, collection and
disposal of hazardous waste to be recommended by NIOH.
9. Appointment of a Committee of experts by NIOH including therein
Trade Union representatives and Health and Safety NGO’s to look
into the issue of Health and Safety of workers and make
recommendations.

4. Mr. P.P. Malhotra, learned Additional Solicitor General, submitted
that the suggestions no.1 to 7 have been accepted by the Central Government
stating that they are broadly covered in various existing enactments and
consequently pro-occupational action would be taken for effective
implementation of the relevant laws, in particular, areas covered by those
suggestions. After recording the above submissions, this Court had also
directed the Ministry of Labour to take steps to see that those suggestions
and relevant provisions of the various Labour Acts are properly implemented
to protect the welfare of the employees. Learned ASG also submitted before
the Court that the Central Government would examine whether the remaining
two suggestions i.e. suggestion nos.8 and 9 could be implemented and, if
so, to what extent.

5. The Writ Petition again came up for hearing before this Court on
6.9.2010 and this Court passed the following order:
“Vide order dated January 30, 2008, Respondent No.1 had agreed to
Guideline Nos.1 to 7.
However, time was taken to consider Guidelines Nos.8 and 9, which
primarily dealt with the appointment of Committee of Experts by NIOH.
The constitution of that Committee is also spelt out in Guideline
No.9. Today, when the matter came up for hearing before this Court,
learned Solicitor General stated that the Committee of Experts has
been duly constituted by NIOH and it will submit its status report on
the next occasion.
The writ petition shall stand over for eight weeks.”

6. The Government of India later placed a Report of the Committee
prepared by the National Institute of Occupational Health (NIOH) titled
Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of
the year 2011.

7. Shri Colin Gonsalves, learned senior counsel, referring to the above-
mentioned Report, submitted that the Union of India as also the Committee
have misunderstood the scope of the suggestion nos.8 and 9. Learned senior
counsel submitted that not much importance was given to the serious health
problems being faced by the workers who are working in the thermal power
plants and the treatment they require as well as the payment of wages and
compensation to those workers who are suffering from serious illness.
Learned senior counsel pointed out that some urgent steps should be taken
to ensure the health and safety of the workers, through comprehensive and
timely medical examinations, follow-up treatment as well as to provide
compensation for the serious occupational diseases they are suffering from.
Even these vital aspects, according to the learned senior counsel, have
been completely overlooked by the Committee.

8. Learned ASG submitted that the Report of the NIOH is comprehensive
and all relevant aspects have been taken care of and that there are several
laws to protect the health and safety of the workers who are working in the
various thermal power stations in the country. Learned ASG also submitted
that the Committee has recommended the need of occupational health services
with adequate facilities for health delivery system and that all power
generating authorities must have well defined sector-specific occupational
health safety and environmental management framework. Learned ASG also
submitted that the Report would be implemented in its true letter and
spirit.

9. This Court in Consumer Education & Research Centre and others v.
Union of India and others (1995) 3 SCC 42, has held that the right to
health and medical care to protect one’s health and vigour, while in
service or post-retirement, is a fundamental right of a worker under
Article 21 read with Articles 39(e), 41, 43, 48-A and all related
Articles and fundamental human rights to make the life of the workman
meaningful and purposeful with dignity of person. The Court held that the
compelling necessity to work in an industry exposed to health hazards due
to indigence to bread-winning for himself and his dependents should not be
at the cost of health and vigour of the workman.

10. Right to health i.e. right to live in a clean, hygienic and safe
environment is a right flowing from Article 21. Clean surroundings lead to
healthy body and healthy mind. But, unfortunately, for eking a livelihood
and for national interest, many employees work in dangerous, risky and
unhygienic environment. Right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive Principles of State
Policy, particularly clauses (e) and (f) of Articles 39, 41 and 42. Those
Articles include protection of health and strength of workers and just and
humane conditions of work. Those are minimum requirements which must exist
to enable a person to live with human dignity. Every State has an
obligation and duty to provide at least the minimum condition ensuring
human dignity. But when workers are engaged in such hazardous and risky
jobs, then the responsibility and duty on the State is double-fold.
Occupational health and safety issues of CFTPPs are associated with thermal
discharge, air and coal emission, fire hazards, explosion hazards etc. Dust
emanates also contain free silica associated with silicosis, arsenic
leading to skin and lung cancer, coal dust leading to black lung and the
potential harmful substances. Necessity for constant supervision and to
the drive to mitigate the harmful effects on the workers is of extreme
importance.

11. India is one of the largest coal producing countries in the world and
it has numerous CFTPPs requiring nearly 440 million tons of coal per year.
We have about 130 CFTPPs in India. The thermal power plants generate about
two-third of the electricity consumed in India, while 54.3% of the energy
demand is met by coal fired power generation. The NIOH in its Report in
2011 has already made its recommendations with respect to the suggestions
made by this Court in its order dated 30.1.2008. Since the Central
Government has already accepted suggestions no.1 to 7, at the moment we are
concerned with suggestions no.8 and 9, which we reiterate as follows :-
“8. Safe methods be followed for the handling, collection and
disposal of hazardous waste to be recommended by NIOH.
9. Appointment of a Committee of experts by NIOH including therein
Trade Union representatives and Health and Safety NGO’s to look
into the issue of Health and Safety of workers and make
recommendations.”
12. The Report in para 4.1.2 has referred to various health hazards and
the same is reproduced hereinbelow :-
“4.1.2 General
. Use of Hazardous Material for Insulation: Certain materials
such as asbestos, glass wool etc. are used for insulation. These
materials are highly dangerous to human health, if inhaled or if
contacted with the eye/skin surface. While handling such
materials, the PPE should be provided to the workers as well as
proper disposal of waste asbestos and glass wool should be
ensured. Nowadays, safer substitutes, such as p-aramid,
polyvinyl alcohol (PVA), cellulose, polyacrylonitrile, glass
fibres, graphite are available, the use of which may be
explored.
. Compliance with the provisions of the Environment (Protection)
Act and its amendments from time to time applicable for the
power plants with respect to emission and discharge, ash
utilization and hazardous waste management should be ensured to
protect the ambient environment as well as maintain safe and
healthy working conditions for the workers.
. The generated fly ash need to be utilized as per the CPCB annual
implementation report on fly ash utilization (2009-10) that 100%
utilization to be achieved by the power plants, within 5 years
from the date of notification (refer to Table 17, page 48).
For new CFTPPs, the fly ash utilization needs to be regulated as
per the schedule given in Table 17.
. It is desirable that the coal handling facilities are mechanized
and automated to the extent possible.
. Occupational health services should be provided for wide range
benefit to the workers. Broadly, it should contain the
facilities for occupational health delivery system with trained
manpower and infrastructure including investigational
facilities, environmental assessment, evaluation of occupational
health status and first aid training of the workers on regular
basis. These services should be independent and separate from
hospital services (curative service) but should function in
liaison with the curative service.
. Periodic awareness programmes regarding the health and safety
with active involvement of the workers should be organized,
covering each individual with the minimum annual average
duration of 8 hours per worker. Regular community level
awareness programmes may be organized in the vicinity of the
plant for the family members of the workers.
. Periodic medical examination (PME), as required under the
Factories Act should be undertaken. However, the investigations
performed under the PME should be relevant to the job exposures.
Since coal/ash handling workers are prone to dust exposure
related diseases, due attention is required to those workers.
In case of need, the frequency of PME may be scheduled, based on
observation of the health check-up information. Providing PPE
and re-locating of job for those workers may also be considered.
. As per recommendations of the Factories Act, the workers need to
be examined radiologically (chest X-ray) on yearly basis.
However, in order to avoid unnecessary exposure of the human
body to the radiation, the regular yearly chest X-ray is not
recommended, unless urgent and essential. Considering the
latency period of development of pneumoconiosis, it is
recommended to undergo chest X-ray every two years for initial
10 years and based on the progression, re-scheduling may be
adopted. After 10 years it should be done on yearly basis or
earlier depending on the development and/or progression of the
disease.
. Health records should be maintained in easily retrievable
manner, preferably in electronic form. The provision should be
made to recall the worker, as and when his or her check up is
due. Pre-placement medical examination and proper documentation
of records should be mandatory.
. A comprehensive document on environment, health and safety
specific to coal based thermal power projects should be framed.
It should cover the legal provisions, management system, best
practices, safe operating procedures, etc. for various areas of
thermal power plants. This will serve as a reference document
for effective implementation of the provisions.
. All CFTPPs should have environmental and occupational health and
safety management systems in place, which are auditable by third
party, approved by the Govt of India (Ministry of Power).
Participatory management regarding health and safety at plant
level may be ensured.
. The occupier of the CFTPP shall be responsible for the
compliance of provisions of the Factories’ Act for
casual/contractual labour on health and safety issues. In case
of women workers, the provisions of the Factories’ Act, as
applicable, shall be given attention.

13. Para 3.1.2 of the Report specifically refers to the occupational
health and safety issues of workers in CFTPPs. The Report also refers to
the hazards associated with (a) dust, (b) heat, (c) noise, (d) vibration,
(e) radiation, and (f) disposal of waste. After dealing with those health
hazards, the Committee has stated that the hazards associated with
inhalation of coal dust might result in development of dust related
morbidity in the form of pneumoconiosis (coal workers pneumoconiosis,
silicosis) and non-pneumoconiotic persistent respiratory morbidities, such
as chronic bronchitis, emphysema, asthma, etc. Further, it also pointed
out that whenever asbestos fibres are used for insulation and other
purposes, the possibility of asbestosis among workers due to inhalation of
asbestos fibres cannot be ruled out. The Report also says that other
morbidities because of exposure to fly ash, including metallic constituents
such as lead, arsenic, and mercury might also be present. Due to exposure
to other chemicals used in different operations of CFTPP, the Report says,
may also be responsible to adversely affect human health.

14. Report further says that occupational exposure to high heat in
different thermal power plants may also cause heat related disorders, like
heat exhaustion. Noise and vibration exposures in higher doses than the
permissible limits may result in noise-induced hearing loss, raised blood
pressure, regional vascular disorders, musculo-skeletal disorders, human
error, productivity loss, accidents and injuries. Radiation hazards
particularly from the generated fly ash and its used products have also
been indicated of possible health risks. Different chemicals that are
often being used in CFTPPs, such as chlorine, ammonia, fuel oil, and
released in the working and community environment may be responsible for
wide range of acute as well as chronic health impairments. Since large
quantities of coal, other fuels and chemicals are stored and used in
CFTPPs, the risks of fire and explosion are high, unless special care is
taken in handling the materials. It may cause fire and explosion.
Further, it may also be pointed out that in various work operations for
manual materials handling, the workers are subjected to high degree of
physical stress, with potential risks of musculo-skeletal disorders and
injuries.

15. In para 3.1.5 the Report suggests certain protective measures for
health and safety and also steps to be taken for emergency preparedness on
spot/off-spot emergency plans and also the measures to be adopted for
social welfare.

16. We may notice, the recommendations made are to be welcomed, but how
far they are put into practice and what preventive actions are taken to
protect the workers from the serious health-hazards associated with the
work in CFTPPs calls for serious attention. Many workers employed in
various CFTPPs are reported to be suffering from serious diseases referred
to earlier. What are the steps taken by CFTPPs and the Union of India and
the statutory authorities to protect them from serious health hazards and
also the medical treatment extended to them, including compensation etc.
calls for detailed examination.

17. We notice that CFTPPs are spread over various States in the country
like Uttar Pradesh, Chhattisgarh, Maharashtra, Andhra Pradesh, and so on,
and it would not be practicable for this Court to examine whether CFTPPs
are complying with safety standards and the rules and regulations relating
to the health of the employees working in various CFTPPs throughout the
country. We feel that these aspects could be better examined by the
respective High Courts in whose jurisdiction these power plants are
situated. The High Court should examine whether there is adequate and
effective health delivery system in place and whether there is any
evaluation of occupational health status of the workers. The High Court
should also examine whether any effective medical treatment is meted out to
them.

18. We, therefore, feel that it is appropriate to relegate it to the
various High Courts to examine these issues with the assistance of the
State Governments after calling for necessary Reports from the CFTPPs
situated in their respective States. For the said purpose, we are sending
a copy of this Judgment to the Chief Secretaries of the respective States
as well as Registrar Generals of the High Courts of the following States :

a) Uttar Pradesh
b) Chhattisgarh
c) Maharashtra
d) Andhra Pradesh
e) West Bengal
f) Madhya Pradesh
g) Bihar
h) Orissa
i) Haryana
j) Rajasthan
k) Punjab
l) Delhi/NCT Delhi
m) Gujarat
n) Karnataka
o) Kerala
p) Tamil Nadu
q) Jharkhand
r) Assam

19. Report of National Institute of Occupational Health (NIOH) titled
Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of
the year 2011 may also be made available by the Secretary General of the
Supreme Court to the Registrar Generals of the High Courts of the aforesaid
States. We make it clear that the Report is not at all comprehensive in
certain aspects and the respective High Courts can examine the issues
projected in this Judgment independently after calling for the reports
about the CFTPPs functioning in their respective States. The Registrar
Generals of High Courts of the aforesaid States should place this Judgment
before the Chief Justices of the respective States so as to initiate suo
moto proceedings in the larger interest of the workers working in CFTPPs in
the respective States.

20. The Writ Petition is accordingly disposed of.
…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)
New Delhi,
January 31, 2014.

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