2006 Supreme(Bom) 1085

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KSHITIJ R. VYAS, C.J. & Dr. D. Y. CHANDRACHUD, J.
Mangesh G. Salodkar - Petitioner
Versus

Monsanto Chemicals of India Ltd. & Ors. - Respondent
Writ Petition No.2820 of 2003
Decided on 13th July, 2006.
Advocates appeared
Mr. TANU MEHTA - TIWARI, Amicus Curiae. Mr. MIHIR DESAI, for the Petitioner.
Mr. JANAK DWARKADAS, Senior Advocate with Mr. V. DHOND i/b. AZB Partners, for Respondent No.1.
Mr. C. R. SONA WANE, AGP for the State.

Headnote:Factories Act, 1948 - Chapter IV - Constitution of India, 1950, Article 22 - Right of living - Livelihood deprived - Resulting in destruction of family unit of wage earner - Loss of livelihood on termination of service - All dependents badly affected - Appropriate Government to provide sufficient cushion. - The Constitution guarantees the right of life under Article 21 of the Constitution. Health is an integral facet of life. Absent good health, life is deprived of the rationale for existence. Deprive a worker of her health and she loses her means of livelihood. Deprivation of livelihood constitutes the social destruction of the family unit of the wage earner. The aspirations of a whole generation depend upon the ability of the wage earner to provide support for the family. The loss of livelihood upon termination of service on grounds of continued ill health relegates the industrial worker and all those who depend on the workman to the margins of existence. Support for the preservation and enjoyment of good health is hence an important obligation of the State and the employer. There can be no contracting out of such obligations. No fine print of exceptions can be countenanced. The mandate to support life is inalienable.

       These salutary provisions which are contained in Chapter IV of the Factories Act, 1948 must be enforced by the regulatory authorities. Unless the man-power involved in implementing the provisions of the Factories Act, 1948 is effectively trained, the provisions of the Act which are conceived in the public interest will not be enforced. The appropriate Governments must provide a pool of trained man power to enforce, supervise and regulate the implementation of these statutory provisions.

       Factories Act, 1948 - Sections 91-A and 40-B - Welfare and safety measurements - Socio-economic aspects of workers - Safety ignorance of rights compounded by economic necessity of sustaining livelihood - Workers entitled to be fully kept informed on issues concerning health - rectificatory measures to be taken. - 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 mandatory standards. Workers drawn from near and far to a place of employment disperse, often without a trace into far flung villages after employment ceases. In the absence of any social security that will tide over their physical and mental affections erstwhile industrial workers are lost to the unorganised sector. Once dispersed, the workers are difficult to access. New workers are available to fill in the breach in a labour surplus economy. Unless employers are rigidly held down to a regime of strict compliance, a relaxed regime of enforcement and the minimal penalties for a defaulting employer furnish no disincentive to non-compliance or, worse still, to evasion. As this case itself shows, the Factory Inspectorates are woefully understaffed. The available staff does not possess requisite training necessary for dealing with complex industrial processes and hazards which they are liable to pose to the health of workers. Record keeping is in a primitive stage. It is only when a litigation confronts an employer that some remedial measures are taken to alter the existing state of affairs. Court therefore, impressed upon the Central and the State Governments the need to take immediate steps to rectify the situation and to be alive to the dangers to which industrial workers are being increasingly exposed in hazardous employments.

       Without lying down a comprehensive life of measures which should be taken, with the assistance of counsel identified areas of concern which must be attended to by the Central and State Governments. Some of these areas require further deliberation so that regularity measures can be fine-tuned to deal with the practical problems, therefore enlisting, with the assistance of counsel, recommended areas, where action must be considered by the Central and the State Governments and rectificatory steps can be taken :

       (i)

       The State and the Central Governments should consider taking immediate steps for filling up the sanctioned strength of Factory Inspectors and of Certifying Surgeons;

       (ii)

       The staff of the Factory Inspectorates should be adequately and regularly trained to deal with their functions and where specialised staff is required, such staff should be specially recruited for this work to the extent to which it is feasible;

       (iii)

       In the case of factories involved in hazardous processes, the Government concerned shall consider issuing directions to the Factory Inspectors to visit every factory within their jurisdiction at least once in a period of three months for the purposes of taking samples in accordance with the provisions of Section 91 of the Factories Act, 1948. Records of these visits must be maintained;

       (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 the electronic form by factories engaged in hazardous processes;

       (vi)

       In respect of factories involved in harardous process, safety and occupational health surveys as required by Section 91A should invariably be carried out at the time of renewal of licences, apart from other times;

       (vii)

       The State Government shall consider issuance of directions for the appointment of Safety Officers in the case of factories involved in harardous processes under Section 40-B(1)(ii) irrespective of the size of the factory and the number of workers employed therein;

       (viii)

       The operations of the Factories’ Inspectorates must be computerised. Modern methods of preserving data in the electron ic form including digitisation of records must be adopted.