K.RAMASWAMY - (1.) OCCUPATIONAL accidents and diseases remain the most appaling human tragedy of modern industry and one of its most serious forms of economic waste. OCCUPATIONAL health hazard and diseases to the workmen employed in asbestos industries are of our concern in this writ petition field under Article 32 of the Constitution by way of public interest litigation at the behest of the petitioner, an accredited organisation. At the inception of filing the writ petition in the year 1986, though it highlighted the lacuna in diverse provisions of law applicable to the asbestos industry, due to orders of this court passed from time to time,though wide gaps have been bridged by subordinate legislation, yet lot more need to be done, So the petitioner seeks to fill in the yearning gaps and remedial measures for the protection of the health of the workers engaged in mines and asbestos industries with adequate mechanism for and diagnosis and control of the silent killer diseases 'asbestosis' with amended prayers as under:- (a) Directions to all the industries and the official- respondent to maintain compulsorily and keep preserved health records of each workman for a period of 40 years from the date of beginning of the employment or 10 years after the cessation of the employment whichever is later; (b) To direct all the factories to adopt 'THE MEMBRANE FILTER TEST'; (c) To direct all industries to compulsorily insure the employees working in their respective industries, excluding those already covered by the Employees State Insurance Act and the Workmen Compensation Act so as to entitle the workmen to get adequate compensation for occupational hazards or diseases or death; (d) To direct the authorities to appoint a committee of experts to determine the standard of permissible exposure limit value of 2 fibre/cc and to reduce to i-fibre/cc for Chrystolite type of asbestos, 0-5-fibre/cc for Amosite type of asbestos and for the time being 0-2 fibre/cc for Crocidolite type of asbestos at par with the international standards; (e) To direct the appropriate Governments to cover the workmen and to extend them Factories Act or by suitable regulatory provisions contained therein to all small scale sectors which are not covered under the Factories Act; (f) To direct re-examination of such of those persons who are found suffering from Asbestosis by National Institute of OCCUPATIONAL Health but not the ESI hospitals; and in particular the Inspector of factories, Gujarat, be directed to have re-examined all those workmen, examined by ESI by NGDH and to award compensation; and (g) To direct the Central Government to appoint a committee to recommend whether dry process can be completely replaced by wet process.
(2.) IT would appear from the record that in Karnataka, Andhra Pradesh and Rajasthan, there exists about thirty mines and the workmen employed therein are about 1061. There are about 74 asbestos industries in nine States, namely, Haryana, Delhi, Andhra Pradesh, Karnataka, Rajasthan, Maharashtra, Kerala, Gujarat and Madhya Pradesh. IT would also appear that as on August 1986 there are about 11,000 workmen employed in those industries. Basing on Biswas Committee report, the petitioner filed the writ petition. The Central Govt. accepting the said report,framed model Rule 123A of Factories Act and on its model relevant laws and Rules were amended and are now brought into force. We are not referring to the findings and recommendations of Biswas Committee as the "Asbestos Convention, 1986" covered the whole ground. In Convention 162 of the International Labour Conference (ILC) held in June, 1986, it had adopted on 24/06/1986 the Convention called "the Asbestos Convention, 1986". India is one of the signatories to the Convention and it played a commendable role suggesting suitable amendments in the preparatory conferences. It has come into force from 16/06/1989, after its ratification by the Member-States. Article 2(a) defines "asbestos" to mean the fibrous form of mineral silicates belonging to rock-forming minerals of the serpentine group, i.e. chrysotile (white asbestos), and of the amphibole group, i.e. actinolite, amosite (brown asbestos, cummingtonitegrunerite), anthophyllite, crocidolite (blue asbestos), tremolite, or any mixture containing one or more of these. "Asbestos dust" is defined as "airborne particles of asbestos or settled particles of asbestos" which may become airborne in the working environment. "Respirable asbestos fibre" is defined as a particle of asbestos with a diameter of less than 3 um and of which the length is at least three times the diameter; "Workers" cover all employed persons; "Workplace" covers all places where workers need to be or need to go by reason of their work and which are under the direct or indirect control of the employer. Article 5(2) provides that "National laws or regulations shall provide for the necessary measures, including appropriate penalties, to ensure effective enforcement of and compliance with the provisions of the convention." Article 8 provides that "employers and workers or their representatives shall co-operate as closely as possible at all levels in the undertaking in the application of the measures prescribed pursuant to this Convention." Article 9 in Part III prescribe Protective and Preventive Measures, regulating that the national laws or regulations shall provide that exposure to asbestos shall be prevented or controlled by one or more of the following measures- (a) making work in which exposure to asbestos may occur subject to regulations prescribing adequate engineering controls and work practices, including workplace hygiene; (b) prescribing special rules and procedures including authorisation, for the use of asbestos or of certain types of asbestos or products containing asbestos or for certain work processes." Article 15 postulates that (1) "the competent authority shall prescribe limits for the exposure of workers to asbestos or other exposure criteria for the evolution of the working environment, (2) the exposure limits or other exposure criteria shall be fixed and periodically reviewed and updated in the light of technological progress and advances in technological and scientific knowledge (emphasis supplied), (3) in all workplaces where workers are exposed to asbestos, the employer shall take all appropriate measures to prevent or control the release of asbestos dust into the air, to ensure that the exposure limits or other exposure criteria are complied with and also to reduce exposure to as low a level as is reasonably practicable." Clause (4) provides that on its failure to carry out the above direction to the industry to maintain and replace, as necessary, at no cost to the workers, adequate respiratory protective equipment and special protective clothing as appropriate. Respiratory protective equipment should comply with standards set by the competent authority and be used only as a supplementary, temporary, emergency or exceptional measure and not as an alternative to technical control.
(3.) ARTICLE 16 mandates, that each employer shall be made responsible for the establishment and implementation of practical measures for the prevention and control of the exposure of the workers he employs to asbestos and for their protection against the hazards due to asbestos". (emphasis supplied). ARTICLE 17 provides demolition of plants or structures containing friable asbestos insulation etc., the details whereof are not necessary. ARTICLE 18 obligates the employer to provide clothing to the workers, maintenance, handling and cleaning thereof etc.etc. ARTICLE 19 deals with the disposal of the waste containing asbestos. Part IV consisting of ARTICLEs 20 and 21, deals with the surveillance of the working environment and workers' health ARTICLE 20(1) provides that "where it is necessary for the protection of the heath of workers, the employer shall measure the concentrations of airborne asbestos dust in workplaces, and shall monitor the exposure of workers to asbestos at intervals and using methods specified by the competent authority." Sub-ARTICLE (2) of ARTICLE 20 envisages maintenance of the records:- "the records of the monitoring of the working environment and of the exposure of workers to asbestos shall be kept for a period prescribed by the competent authority" (emphasis supplied). Clause (3) - "the workers concerned, their representatives and the inspection services shall have access to these records." Clause (4) - "the workers or their representatives shall have the right to request the monitoring of the working environment and to appeal to the competent authority concerning the results of the monitoring." ARTICLE 21(1) envisages that "workers who are or have been exposed to asbestos shall be provided, in accordance with national law and practice, with such medical examinations as are necessary to supervise their health in relation to the occupational hazard, and to diagnose occupational diseases caused by exposure to asbestos." Clause (2) adumbrates that such monitoring shall be free of the charge of the workers and shall take place as far as possible during the working hours. Clause (3) accords to the workers of the right to information, in that behalf, of the results of their medical examination (emphasis supplied) "shall be informed in an adequate and appropriate manner of the results of their medical examinations and receive individual advice concerning their health in relation to their work. Clause (4) is not material for the purpose of this case, hence omitted. Clause(5) postulates that the competent authority shall develop a system of notification of occupational diseases caused by asbestos. Article 22, in Part V, relating to information and education is not relevant for the purpose of this case, hence omitted. In Part VI- Final Provisions, Article 24 is relevant for the purpose of this case and Clause(1) thereof states that "this Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General." The other Articles 23,25 to 30 are not relevant.;