- (1.) This application has been made by Shriram Foods and Fertiliser Industries (hereinafter referred to as 'Shriram') for clarification in respect of certain conditions set out in the Order passed by us on 17th February, 1986 in Writ Petn Nos. 12739 of 1985 and 26 of 1986 : (Reported in AIR 1987 SC 965). Though the application has been styled as an application for clarification, it is really and in substance, an application for modification of some of the conditions contained in the Order. We passed the Order permitting Shriram to restart its power plant as also plants for manufacture of caustic chlorine including its by-products like sodium sulphate, hydrochloric acid, stable bleaching powder, superchlor and sodium hypochlorite and vanaspati refined oil including its by products and recovery plants like soap, glycerine and technical hard oil, but we made the permission subject to certain conditions which, we insisted, should be strictly and scrupulously followed by Shriram and we made it clear that if at any time it is found that any one or more of these conditions are violated, the permission would be liable to be withdrawn. There are three out of these conditions in respect of which modification is sought by Shriram on the ground that compliance with these conditions would entail certain operational and practical difficulties.
(2.) The first condition in respect of which modification is sought by Shriram is condition No. 2 which runs as follows : "(2) One operator should be designated as personally responsible for each safety device or measure and the head of the caustic chlorine division should be made individually responsible for the efficient operation of such safety device or measure. If at any time during examination by the Expert Committee or inspection by the Inspectorate it is found that any safety device or measure is inoperative or is not properly functioning, the head of the caustic chlorine plant as well as the operator in charge of such safety device or measure shall be held personally responsible. Their duty shall be not merely to report non-functioning or mal-functioning of any safety device or measure to the higher authority but to see that the operation of the entire plant is immediately shut-down, the safety device is urgently replenished and the plant does not restart functioning until such replenishment is completed." It is urged on behalf of Shriram that there are more than 150 safety devices in the plant and it is not possible to have an individual operator to be made personally responsible for each device and, moreover, considering the magnitude of the responsibility for efficient operation of a safety device, it would not be proper to impose such responsibility on an operator who is merely a workman but that such responsibility should be cast on an officer to be placed in charge of a group of safety devices. Shriram also submitted that the condition that 'if any safety device is found to be non-functioning or mal-functioning, the operation of the entire plant should immediately be shut down' also requires to be modified, firstly, because failure of every kind of safety device need not require the shutting down of the entire plant from the safety point of view; secondly, because the operator in charge of any particular safety device would not have control or knowledge of the entire plant and he would not, therefore, be in a position to take a decision regarding the stoppage of the plant and, thirdly, because frequent stoppage and restart of the plant would by itself be a potent source of hazard. We find considerable force in this contention urged on behalf of Shriram. We agree that every kind of safety device installed in the plant need not require the shutting down of the entire plant in the event of its nonfunctioning or mal-functioning. There are three different categories of safety devices which have to be taken into account. The first category consists of safety devices which are for the entire factory including the caustic chlorine plant such as fire-tender, loud speakers, wind direction recorder, etc., the second category consists of safety devices exclusively for the caustic chlorine plant such as neutralisation system and suction control system and the last category consists of safety devices for different components of the machinery and equipment such as load cell which is a safety device for storage tank in the caustic chlorine plant. Some of these safety devices are critical while some others are not. Where a safety device is not critical it may not be necessary to shut down the plant in case such safety device is found to be non-functioning or mal-functioning, as for example where a safety device is attached to a component which can be easily isolated and repaired or replenished without shutting down the plant. Even where a safety device is critical and it is found to be non-functioning or mal-functioning, it may be possible to take immediate remedial action without going to the extreme of shutting down the plant, as for example, where a safety device has an effective back-up system. We also agree that it would not be practicably feasible to place one operator in charge of each safety device and it would not be desirable to place the responsibility for effective monitoring and functioning of the safety device on an operator who is merely a workman, but instead such responsibility should be cast on an officer who should be placed in charge of a group of safety devices. We would therefore direct the committee of experts appointed by us to scrutinise the safety devices which are installed for the entire factory as also the safety devices installed in the caustic chlorine plant for the purpose of evaluating as to which are critical and which are not critical. The criterion for determining which safety devices are critical or non-critical shall be whether the particular safety device is of such a nature as to imperil the safety of the plant in case it is found to be non-functioning or mal-functioning, so as to require immediate shutting down of the plant until the safety device is repaired or replenished. We would direct that if any safety device designed by the committee of experts to be critical is found not functioning or mal-functioning and a report to that effect is made by the officer responsible for such safety device, the management of Shriram will immediately shut down the operation of the plant and ensure that the plant does not restart functioning until such safety device is repaired or replenished. Even where a safety device is designated by the committee of experts to be non-critical in the sense that its functioning or mal-functioning need not necessarily require shutting down of the plant, the committee of experts will determine as to what remedial action should immediately be taken in case it is found that such safety device is non-functioning or mal-functioning and on the officer responsible for such safety device drawing the attention of the management to non-functioning or mal-functioning of such safety device, the management will immediately take the remedial action prescribed by the committee of experts. The committee of experts will also determine how and in what manner the different safety devices can be grouped together so that one officer can be made responsible for each group of safety devices. The committee of experts will carry out this assignment within 7 days from the starting of the caustic chlorine plant and submit a report to this Court with copies to the petitioner and to the Delhi Administration, the Chief Inspector of Factories, the management of Shriram, Lokhit Congress Union and Karamchari Ekta Union. The Officer who is placed in charge of each group of safety devices will be responsible for the nonfunctioning or mal-functioning of any safety devices under his charge. Besides the officer who is designated as personally responsible for each safety device or measure, the head of the caustic chlorine division would be individually responsible for the efficient operation of such safety device or measure and if at any time during examination by the committee of experts or inspection by the Inspectorate, it is found that any safety device or measure is inoperative or is not properly functioning the head of the caustic chlorine plant as well as the officer in charge of such safety device shall be held personally answerable and it will be the responsibility of the head of the caustic chlorine division and the management to immediately take proper remedial action in that behalf.
(3.) The next contention in respect of which modification is sought by Shriram. is Condition No. 5 which runs as follows : "(5) The management of Shriram. will obtain an undertaking from the Chairman and Managing Director of the Delhi Cloth Mills Ltd. which is the owner of the various units of Shriram as also from the officer or officers who are in actual management of the caustic chlorine plant that in case there is any escape of chlorine gas resulting in death or injury to the workmen or to the people living in the vicinity, they will be personally responsible for payment of compensation for such death or injury and such undertaking shall be filed in Court within 1 week from today." The contention of Shriram is that it is not clear as to who can be described as officer in actual management of the caustic chlorine plant and that this particular direction requires clarification so that the management can obtain the necessary undertaking from such officer. So far as this difficulty pointed out on behalf of Shriram is concerned, we would like to clarify that the officer whose undertaking is required to be taken under the directions given in our Order dt. 17th February, 1986, is the officer who is the 'occupier' under the Factories Act, 1948 because he is the person who has actual control over the affairs of the factory and/or the officer who is in charge of the actual operation of the caustic chlorine plant and who is responsible to the management for the operation of the plant. But it was urged on behalf of Shriram that if we insist upon an undertaking to be given by any such officer or officers it would be impossible to secure the services of any competent officers because they would not be willing to accept employment in a situation where they are made responsible not only for their own acts or omissions but also for the acts or omissions of others over whom they have no control. It was therefore seriously contended on behalf of Shriram that the condition requiring undertaking to be given by such officer or officers should be deleted. We are unable to persuade ourselves to accept this contention of Shriram. If the contention of Shriram is and that is the contention which has seriously been pressed on behalf of Shriram in support of their plea that the caustic chlorine plant should be allowed to be reopened that there is no risk or hazard to the community in the operation of the caustic chlorine plant, there is no reason why the officer or officers who have ultimate control over the affairs of the caustic chlorine plant and/or who are responsible to the management for the efficient operation of the caustic chlorine plant should hesitate to give an undertaking to the Court that in case of death or injury arising on account of escape of chlorine gas, they would be personally responsible. But while making this comment we are not unmindful of the fact that if absolute unlimited liability were to be imposed on any officer or officers in the employ of Shriram for death or injury arising on account of possible escape of chlorine gas, many competent persons would shy away from accepting employment in Shriram and that would make it difficult for Shriram to have really competent and professionally qualified. persons to manage and operate the caustic chlorine plant. We would therefore modify the condition prescribed by us by providing that undertaking shall be obtained from the officer who is 'occupier' of the caustic chlorine plant under the Factories Act, 1948, and/or the officer who is responsible to the management for the actual operation of the caustic chlorine plant as its head and such undertaking shall stipulate that in case there is any escape of chlorine gas resulting in death or injury to the workmen or to the people living in the vicinity the officer concerned will be personally responsible, to the extent of his annual salary with allowances, for payment of compensation for such death or injury but if he shows that such escape of gas took place as a result of act of God or vis major or sabotage or that he had exercised all due diligence to prevent such escape of gas, he shall be entitled to be indemnified by Shriram.;