Education & Research Centre & Ors Vs. Union of India & Ors  INSC 91 (27 January 1995)
K. Ramaswamy, K. Ahmadi A.M. (Cj) Punchhi, M.M.
1995 AIR 922 1995 SCC (3) 42 JT 1995 (1) 636 1995 SCALE (1)354
Occupational accidents and diseases remain the most appalling human tragedy of
modem industry and one of its most serious forms of economic waste.
Occupational health hazards and diseases to the workmen employed in asbestos
industries are of our concern in this writ 640 petition filed 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 disease "
asbestosis", with amended prayers as under-
Directions to all the industries and the official-respondents 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;
direct all the factories to adopt "THE MEMBRANE FILTER TEST";
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;
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
1-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;
direct the appropriate Govenunents to cover the workmen and to extend them
Factories Act or by suitable regulatory provisions contained therein to all
small scale sectors which arc not covered under the Factories Act;
direct re-examination of such of those persons who are found suffering from
Asbestosis by National Institute of Occupational Health but not the E.S.I.
and in particular the Inspector of factories, Gujarat, be directed to have re-
examined all those workmen, examined by ESI by N.G.D.H. and to award
compensation; and (g) To direct the Central Goverment to appoint a committee to
recommend whether dry process can be completely replaced by wet process.
would appear from the record that in Karnataka, Andhra Pradesh and Rajasthan,
there exists about thirty mines and the workmen employed therein are about 106
are about 74 asbestos industries in nine States, namely, Haryana, Delhi, Andhra Pradesh, Karnataka,
Rajasthan, Maharashtra, Kerala, Gujarat and Madhya Pradesh.
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
modal 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 Con- vention,
1986" covered the whole ground.
Convention 162 of the Interna- 641 tional Labour Conference (ILC) held in June,
1986, it had adopted on 24th June, 1986 the Convention called "the Asbes- tos
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 June 16, 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, cummingtonite- grunerite),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 sum and of which the length is at least
three times the diameter; "Workers" coverall 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
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".
9 in Part III prescribes 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 as- bestos or other exposure criteria for
the evaluation of me 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, (empha- sis 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 ex- posure 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
5.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 surveillance of the working environment and workers' health. Article 20
(1) provides that "where it is necessary for the protection of the health
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 ex- aminations 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.
(5) postulates that the competent authority shall develop a system of
notification of occupational diseases caused by asbestos.
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.
Labour Office, Geneva, has provided the Rules regarding
" safety in the use of asbestos". In Rule
(Possible health consequences of exposure to asbestos dust), it is stated that
there are three main health consequences associated with exposure to airborne
fibrosis (thickening and scarring) of the lung tissue;
643 cancer: cancer of the bronchial tubes;
of the pleura or peritoneum. In asbestos workers, other consequences of
asbestos exposure can be the development of diffuse pleural thickening and
circumscribed pleural plaques which may become calcified.
are regarded as no more than evidence of exposure to asbestos dust. Other types
of cancer (e.g. of the gastrointestinal tract) have been attributed to asbestos
exposure though the evidence at present is inconclusive. In Rule 1.3,
definitions of asbestos, asbestos dust, respirable asbestos fibre have been
defined thus :-
is defined as the bibrous form of mineral silicates belonging to the ser- pentine
and amphibole groups of rockforming minerals, including: actinolite, arnosite
(brown asbestos, cumming to nite, grunnerite), anthophyllite, chrysotile (white
asbestos), crocidolite (blue asbestos), tremolite, or any mixture containing
one or more of these;
dust is defined as airborne particles of asbestos or settled particles of
asbestos which may become airborne in the working environment;
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;
Chapter 3, Exposure limits have been defined thus :- 3.1.1. - The
concentrations of airborne asbestos in the working environment should not
exceed the exposure limits ap.proved by the competent authority after
consultation with recognised scientific bodies and with the most representative
organisations of the employers and workers concerned.
- The aim of such exposure limits should be to eliminate or to reduce, as far
as practicable, hazards to the health of workers exposed to airborne asbestos fibres.
- The exposure level of airborne asbestos in the working environment should be
collective agreement or by any other agreements drawn up between employers and
any other channel approved by the competent authority after consultation with
the most representative employers' and workers' organisations.
- it provides periodical review in the fight of technological progress and
advances in technical and medical knowledge concerning the health hazards
associated with exposure to asbestos dust and particularly in the light of
results of workplace monitoring.
Chapter 4, under Monitoring in the workplace, Rule 4.4.4 is relevant for the
purpose of this case which adumbrates that the measures of airborne asbestos fibres
concentrations in fibres per millilitre in the workplace air should be made by
the membrane filter method using phase contrast light microscopy as described
in Appendix B of the Rules. All respirable fibres over 5 um in length should be
counted by this method. Rule 4.4.5 provides that the measurement of airborne
dust concentrations (mg/m3) in the workplace air should be made by gravimetric
method as described in Appendix C to the Rules. The mass of the collected total
dust should be determined and, by analysis, the of asbestos and its mass
4.5 Monitoring Strategy and Rule 4.6-Record keeping, have been adumbrated as
under:- 644 4.6.1. Record should be kept by the employer on aspects of asbestos
dust exposure. Such records should be clearly marked by date, work area and
plant location etc. etc.
General preventive methods, in Chapter V. Rule 5.2. 1.
appropriate and practicable measures of engineering, work practice and
administrative control should be taken to eliminate or to reduce the exposure
of workers to asbestos dust in the working environment to the lowest possible
level. Rule 5.2.2. provides that " engineering controls should include
mechanical handling, ventilation and redesign of the process to eliminate,
contain or collect asbestos dust emissions by such means as (a) process
separation, automation or enclosure; (b) bonding asbestos fibres with other
materials to prevent dust generation; (c) general ventilation of the working
areas with clean air, etc. etc.
Chapter VI deals with personal protection of the respiratory equipment etc.,
the details whereof are not necessary. Chapter VII deals with the cleaning of
the premises of the plant. Detailed instructions as to the manner in which work
premises are maintained in a clean state, free of asbestos waste, have been
provided and it is not necessary to enumerate all the details. Suffice it to
say that every industry shall scrupulously adhere to the instructions contained
in Chapter VII and Ix. Chapter X deals with the supervision of the health of
Part B deals with control of asbestos exposure in specific activities, mining
and milling, asbestos cement, Textiles. In Chapter 15, Encapsulation or removal
of friable thermal and acoustic insulation provides the procedure for repairs
or removal of asbestos insulations.
Rule 15.10, dry stripping and Rule 15.10.1. provides that dry stripping is
associated with very high levels of asbestos dust which should, therefore, be,
used only (a) where wet methods cannot be used; (b) where live electrical
apparatus might be made dangerous by contact with water; (c) where hot metal is
to be stripped and the use of water may be damaging. Rule 15.10.2 provides that
where dry stripping is employed, as effective a standard of separation as
possible should be preserved between the work site and the adjacent areas to prevent
the escape of asbestos dust. Rule 15.10.3 envisages that all workers within the
separated area should be provided with, and should use, suitable respiratory
equipment and protective clothing. All other guidelines are not necessary,
hence omitted. In Rule 15.1 1, wet stripping provides procedure thus:- "
15.1 1. 1. Areas in which wet stripping is being carried out should be
separated from other work areas.
All workers within the separated area should use suitable respiratory
protective equipment and protective clothing.
Electrical equipment in the area should be isolated from the entry of water.
At the end of the work a competent person should ensure that it is safe for the
electrical supply to be restored.
Before removal is started, care should be taken did do: asbestos material is
saturated with water. This may be made easier by the addition of a waterwetting
(1) Where cladding has to be 645 removed, it should first, where practicable,
be punctured and the asbestos containing material within the cladding should be
The cladding should then be removed carefully within the enclosure and all sur-
faces should be vacuumed or sprayed with water.
water-saturated material should be removed in small sections and placed
immediately in labelled containers which should then be sealed.
slurry produced should be contained and not discharged into drains without
adequate filtration. etc. etc.
Rule 15.12 provides stripping by high-pressure water jets the details whereof
are not material but suffice it to emphasise that specialised method should be
carried out only by trained personnel and all precautions relevant to the
operation should be taken. Special safety precautions, including those given in
this section of Code, are required, since they arc very high-pressure spraying
or dangerous, displaying at the proper place in addition to other stripping
warning notices. Other guidelines are not relevant for the purpose of this case
but suffice to state that every industry should adopt, adhere to and strictly
follow the Rules provided for the safety in the use of asbestos.
the "Encyclopaedia of Occupational Health and Safety", Vol-1,
published by International Labour Office, Geneva, the latest 4th Edition, 1991,
provides definition of asbestos as has been found hereinbefore and therefore,
it is not necessary to its reiteration. Its Pathology has been stated at page
188 in Vol-1, which is as follows:- "The retained fibres in the alveolar
region are 3 um or less in diameter but may be up to 200 um long. Animal experi-
ments strongly point to the longer fibres, 5 um and over, as being much more fibrogenic
than shorter fibres. A propor- tion of the longer fibres, especially
amphiboles, become coated with an iron Protein complex producing the drumstick
appearance of asbestos bodies. All types of asbestos cause similar fibrosis.
The fibrosis starts in the respiratory bronchioles with collections of
macrophages containing fibres, and others lying free. These deposits organise,
collagen replacing the initial reticulin web. Initially only a few respiratory
bronchioles are affected, but the fibrosis spreads centrally to the terminal
bronchioles and peripherally to the acinus. The areas increase in size and
coalesce causing diffuse interstitial fibrosis with shrinkage. The process
starts in the bases spreading upwards as the disease progresses; in advanced
disease the whole lung structure is distorted and replaced by dense fibrosis,
cysts, and some areas of emphysema.
pleura, both visceral and parietal surfaces, are affected by the fibrosis and
to a degree which is much greater than in other types of pneumoconiosis. The
visceral surface may be sclerosed up to 1 cm thick. In the parietal pleura
thickening starts as a basket-weave pattern of fibroblasts, the sheets of
fibrosis lying along the line of the ribs especially in the lower thorax and posteriorly.
edges become rolled and crenated and, after many years, calcified.
parietal thickening may be extensive and thick with little or no parenchymal
fibrosis. The reasons for this are not fully understood but indicate the need
to separate, if possible, parietal and visceral pleural thickening in life.
and types :
Table 1 lists the types of fibrosis in the lung caused by asbestos that can be Partially
or well separated clinically.
epidemiological research indicates that asbestosis and pleural plaque may have
differing actiologies, natural histories, and significance in terms of
morbidity and mortality.
1. Types of lung fibrosis caused by asbestos
------------------------------------------------------ Parenchynml Pleural:
Acute Asbestosis Chronic Parietal: Hyaline Calcified Pleuralplaques
The Asbestosis has been signified at page 188 which is as follows:
The signs and symptoms of asbestosis are similar to those caused by other
diffuse interstitial fibroses of the lung. Increased breathlessness on exertion
is usually the first symptom, sometimes associated with aching or transient
sharp pains ;in the chest. A cough is not usually present except in the late
stages when distressing paroxysms occur. Increased sputum is not. present
unless there is bronchitis, the result of smoking. The onset of symptoms
(except following very heavy exposure) is usually slow and the subject may have
forgotten having any contact with asbestos. Persistent dull chest pain and haemoptysis
indicate the need to investigate further the diagnosis of bronchial or mesothelial
most important physical sign is the presence of high- pitched fine crepitations
(crackles) at full inspiration and persisting after coughing. They occur
initially in the lower axillae and extend more widely later. Agreement between
skilled observers on detecting this sign is good but it may vary from day to
day in the early stages. It may also be present as an isolated sign in 2-3% of
otherwise normal individuals. There are now means of recording this sign on
tape. Other sounds wheezes and rhonchi are of no help in diagnosis, but
indicate associated bronchitis.
of the fingers and toes was formerly regarded as an important physical sign.
There is an impression that it is now less frequently seen. Its seventy does
not relate well to other aspects of the diagnosis. There is poor agreement
between observers except when the clubbing is very pronounced. It is possible
that its presence relates to the rapidity of progression of the disease.
chest radiograph remains the most important single piece of evidence, even
though the appearances are similar to other types of interstitial fibrosis.
When the radiography is classified by three or more skilled readers using the
ILO 1971 scheme independently, it is found that virtually all cases of
asbestosis are picked up by one or more of the readers as Category 1/0 or
above. The radiographic appearances are well illustrated in the set of standard
films of the ILO 1980 Classification of the radiographic appearances of the pneumoconioses
(see PHEUMOCONIOSES, INTERNATIONAL CLASSIFICATION OF). The classification
provides a means of recording the continuum from normality to the most advanced
stages on a 12-point scale of severity (profusion) and of extent (zones)
affected. The earliest changes usually occur at the bases with the appearance
of small irregular (linear) opacities superimposed on the normal branching
architecture of the lung. As the disease advances the extent increases and the
profusion of irregular opacities progressively obscures the normal structures.
of the lung occurs, with elevation of the diaphragm. in advanced cases 647
distortion of the lung with cysts (honeycomb lung) and bullae occur. The hilar
glands are not enlarged or calcified unless exposure has been to mixtures of silicious
dusts. This may occur, for example, in making asbestos roofing shingles or
pressure pipes, and in mining. The small opacities may then be rounded rather
pattern of lung function provides the important third component in diagnosis.
The functional changes are the result of a shrunken and non-homogeneous lung,
without obstruction of the larger airways (restrictive syndrome).
total lung volume is reduced and especially the forced vital capacity (FVC),
but the ventilatory capacity (FEV1.0) is only reduced in proportion to the FVC,
so the ratio FEV 1.0/ FVC is normal or even raised. The transfer factor for
carbon monoxide is reduced in later stages, but in the early stage an increase
of ventilation on a standard exercise test may be the only alteration
indicating impairment of gas exchange. Although the restrictive syndrome is the
com- monest pattern (about 40%) in about 10% of cases airway obstruction is the
main feature and in the remainder a mixed pattern is seen. This is though to be
largely due to the confounding effects of cigarette smoking.
pleurisy: chronic and acute This occurs in two forms chronic and acute. The
former is the commoner and is a usual accompaniment of parenchymal disease, but
its severity does not run parallel with the parenchymal disease.
diagnosis is radiographic. In some cases one or both of the costophrenic angles
are filled in but the more specific feature is the appearance of well defined
shadow running parallel to the line of the lateral chest wall and separated
from it by a narrow (1-2 nun) clear zone. This is due to the thickened pleura
seen "edge on". It is illustrated in the ILO 1980 standard set of
films. The thickening is best seen in the middle and lower third of the lateral
chest wall, the apices are usually spared. It is common in those only lightly
exposed to find this pleural thickening as the only radiographic feature. It is
readily missed when present only over a short length of the wall and if the
radiographic technique does not give a clear picture of the periphery of the
lung. When the visceral pleura is greatly thickened it causes veiling of the
lung field, obscuring both the normal structure and parenchymal changes. This
probably the basis of the "shaggy heart" and the "ground
glass" appearance described in the carly accounts of asbestosis. The wide
recognition that small areas of pleural thickening may be the only sign of past
exposure to asbestos is recent, and it seems to be a feature of the effects of
low exposure to the dust. It is likely to remain an important observation for
monitoring exposure to improved conditions in the future.
pleurisy affecting the bases, and costophrenic angles, with effusions,
sometimes blood-stained, is now a recognised sequel to asbestos dust exposure.
It is associated with pain, fever, leucocytosis and a raised blood
sedimentation rate. It settles in a few weeks but leaves the costophrenic
angles obscured. No precipitating factors have been identi- fied. Its
recognition is important. Firstly, the cause may be missed unless and adequate
occupational history is taken;
not all effusions in asbestos workers signify the onset of an asbestos-related
cancer. A few weeks of observation may be necessary to confirm the aetiology.
of diagnosis The diagnosis of asbestosis therefore depends upon
history of significant exposure to asbestos dust rarely starting less than 10
years before examination: 648
features consistent with basel fibrosis (Category 1/0 and over,
function changes consistent with at least some features of the restrictive
all the criteria need to be met in all cases but
be given greater weight than
(d); however, occasionally (c) may be sole sign, Other investigations are not
of much help. Asbestos bodies in the sputum indicate past exposure to asbestos
but are not di- agnostic of asbestosis. Their absence when there is much sputum
and marked radiological changes of fibrosis suggest an alternative cause for
tests may be positive but do not help in consistent separation of asbestosis
from other types of fibrosis. Lung function results must be assessed in
relation to appropriate standards allowing for ethnic, sex and age differences
and for cigarette smoking.
corns on the fingers area of thickening skin surrounding implanted fibres are
now much less common be- cause much of the asbestos fibre is packed
mechanically and gloves are worn. Corns do not lead to skin tumors and
disappear on removal of the fibres.
plaques and sources of exposure to asbestos have been stated at page 189-191,
thus :- Pleural plaques Parietal pleural plaques alone rarely cause symptoms.
They may occur alone or with asbestosis. The diagnosis in life is radiological
and the appearance are more specific than in the case of parenchymal fibrosis.
PA films will detect most cases, but because they are frequently thickest posteriorly
their full extent is best seen using oblique views. The ILO 1980 standard film
show their appearance and the scheme provides, for the first time, a separation
of parietal (circumscribed) and visceral (diffuse) pleural thickening. The
plaques lie along the line of the ribs, and when thick cast a well defined
shadow over the lung field extending in from the lateral chest wall, where they
may also be seen "edge on".
from visceral thickening depends largely on a defined edge to the shadow. Both
types may occur together.
mostly on the length of time since first exposure, and age, patchy
Calcification occurs in the edges. This produces a bizarre pattern of dense
shadows likened to "gluttering candle wax" or a "holly
leaf". The onset of calcification reveals many small plaques not
previously visible. When calcification occurs in a crater-shaped plaque on the
dome of the diaphragm a diagnosis of past exposure to asbestos or related
minerals can be made with confidence.
of exposure to asbestos Formerly it was though easy to establish past exposure
to asbestos by inquiry about work in manufacturing plants, or the application
of the fibre for insulation. Now it is realised that only the most detailed
history of all jobs, residences and occupations of the family will reveal
possible exposures to asbestos. The reasons for this change are (a) the much
wider use of asbestos in thousands of products especially since the Second
World War (see ASBESTOS):
recognition that significant exposure to asbestos occurred around mines and
manufacturing plants in the past;
discovery of family exposure to the dust brought home on clothing, and 649 also
that those working in an area where lagging is in progress may be affected,
even though they are engaged in lagging;
finding that calcified pleural plaques, indistinguishable from those
occupationally exposed, also occur in the general population in localised areas
in several countries (Finland, Czechoslovakia, Bulgaria, Turkey and others).
the discovery of such diversity of sources of possible exposure, but virtually
no quantitative information about its severity, and few long term follow up
studies of those exposed, it is not surprised that there is controversy about
the health hazards. However, some conclusions emerge which must be subject to
revision in the future.
is primarily occupational in origin, the result of mining , milling,
manufacturing, applying, removing or transporting asbestos fibre. Exposure is
much less when the fibre is bound in the product (asbestos cement and asbestos
plastic and paper product). Also exposure in the past was much greater than it
is today with the use of the best working practices.
may have been caused by home exposure from dusty clothing at a time when there
was no dust or hygiene control in the factories.
does not result from the very limited exposure to which the general public is
or has been subject, even though asbestos fibers are detectable in the lungs of
a high proportion of adults in industrialized areas. The median numbers of fibres
so detectable are two to three order of magnitude less than that found in those
occupationally ex- posed.
There are and have been important differences between countries in the use of asbestos,so
that exposure for the same occupation varies widely. For example, dry wall
fillers (sparkling) contain asbestos in the United States but not the United
Kingdom; thus sanding of internal walls during construction and maintenance is
a source of exposure in the former but not in the latter. On the other hand,spraying
of crocidolite was much more widespread in the 1940s in the United Kingdom that
Pleural plaques can arise at levels of exposure probably much lower that
required to produce asbestosis. In addition it is probable that other minerals
can cause plaques. For example, among chryosotile miners in Quebec calcified
plaques are limited to those who have worked in two out of the eight mines.The
minerals causing the plaques in general population have not been fully
an amphibole often present in deposits of asbestos, may be important.
Whether chrysotile and the amphiboles differ in fibrogenicity in man is
uncertain, but some evidence indicates that the amphiboles may be more fibrogenic.
In animals there is little difference but the amphiboles remain in the lung
much longer than the chrysotile.
relation of asbestosis to dose of dust In only a few instances are there
records of past dust sampling to relate to the prevalence or incidence of
asbestosis. But the information has been exhaustively analysed for miners and
millers in Quebec, a group of asbestos cement workers in the United States and
asbestos textile workers in the United Kingdom, because of its relevance to
setting hygiene stan- dards. In North America the dust was measured in millions
of particles/ft3, in the United Kingdom in fibres/cm3 the measurement now
All the data show a clear relation between estimated dose of dust
(concentration x time of exposure) and the incidence or severity of disease,
but are insufficiently precise to determine whether there is a threshold level
below which asbestosis will not occur. A cautious conclusion from the North
American studies is that at about 100 million particles/ft3/yr there might be a
threshold or that the risk of developing asbestosis would be as low as 1% of
men after 40 years' exposure could be as WWI as 1.1 fibres/cm3 or may have to
be as low as 0.3 fibres/cm3". More precise information will only become
available when the dust sampling introduced widely after the mid-1960s is
related to the incidence of disease in the future.
relation of asbestosis to lung cancer - The important questions here are:
firstly, is there an excess risk of bronchial cancer only in those who also
have some degree of asbestosis? Secondly, if the dust exposures are low enough
to eliminate asbestosis, will the excess lung cancer risk also be reduced to an
acceptably low level? Neither question can be answered at present, and so
disagreement is likely. It is known that there is a close association between
asbestosis and lung cancer, about 50% of those dying from or with asbestosis
have a lung cancer at post mortem.
those knowledgeable about details of the dose-response data there would
probably be agreement that dust exposures low enough to eliminate asbestosis
will also reduce the ex- cess bronchial cancer risk to a very low value. This
does not extend to the risk to a very low value. This nearly so closely related
to that of asbestosis (see ASBESTOS (MESOTHELIMO AND LUNG CANCER).
- This depends on
successful control of dust exposure and medical surveillance to protect the
individual, as far as is possible, and for the detection of health trends in be
control - Replacement of asbestos by other material believed to be safer has
been widespread since the mid1970s. Man-made mineral fibres and other
insulating materials are rapidly replacing asbestos for heat insulation. But
for other uses, for example, asbestos ce- ment, friction material and some
felts and gaskets, substitution is not at present practicable.
control has been gradually improved by partial or complete enclosure of plants
and the wide use of well de- signed local exhaust ventilation. In the textile
section a completely new wet process of forming the thread has greatly reduced
dust level, previously difficult to control. During maintenance work on old
insulation much stricter control of exposures is possible by isolation of the
working areas, and by training in the use of good working practices to reduce
the dust, for example damping of the insulation before removal and the use of
vacuum cleaning in place of sweeping.
removal of old insulation is likely to remain for many years a major potential
source of high exposure (see also DUST CONTROL INDUSTRIAL.
surveillance The insidious onset of asbestosis and the lack of highly specific
features indicate the need for well recorded and systematic, initial, and
periodic examinations of asbestos workers. This ensures the best chance of
detecting the earliest signs. Physical examination of the chest, full-sized,
high technical quality chest radiographs and test of FVC and FEV1-0 are the
minimum required. The interval will vary from annually up to four times yearly,
with more frequent visits when there are clinical reasons. There is increasing
evidence that the radiological 651 features of asbestosis are in part
cigarette-smoking dependent which requires the recording of smoking histories.
and the multiplicative effects of asbestos dust and cigarette smoking on the
risk of bronchial cancer provide the strongest possible grounds for stopping
cigarette smok- ing in those potentially exposed to asbestos. Personal advice
on the special dangers of smoking and limiting opportunities for smoking at
work are essential steps in prevention. Full personal protective equipment will
be required where dust levels cannot be lowered to the hygiene standard. The
system of periodic examinations also provides, if properly analysed, essential
information about the effectiveness or failure of the engineering control of
the dust. Tabulation, by age and years of exposure, of the results of
classifying the chest films on the ILO 1980 scheme preferably by independent
readers gives early evidence of trends in the prevalence of asbestosis. This
valuable information will be missed if the group findings are not examined in
There is no specific treatment for asbestosis. Where the rate of progression
appears unusually rapid further special investigations, including lung biopsy,
may be justified if it is likely to assist in the differential diagnosis, and
influence treatment for example the use of steroids, but these are not of
proved value. The severity of past exposure is the only factor known to
influence progression rate. Thus, those with some evidence of asbestosis, if
young or middle-aged should be removed from further exposure. In cases where
exposure has not been heavy and asbestosis is only detected late in life,,
progression may be very slow and the grounds for removal from work with as- bestos,
under good conditions, are less compelling.The widespread and often misleading
publicity given to the hazards of exposure to asbestos may cause much anxiety
to those with asbestosis, both for their own health and for that of their
family. Reassurance, and the putting of the likely prognosis in true
perspective, are an important Part of good treatment. The special risks of
continuing cigarette smoking need emphasis. Mesotheliomas are a rare
complication in those exposed only to chrysotile.
- The conventions on the awarding of compensation for asbestosis vary in
different countries. Unusual breathlessness on exertion, as a cause of
disability, may be required, even though it is not essential for a confident
diagnosis of asbestosis. Compensation May be limited to those with evidence of parenchymal
disease; pleural fibrosis parietal or visceral alone may not be accepted. Lung
(bron- chial) cancer is usually accepted as part of the disease provided there
is at least some evidence of parenchymal fibrosis, but may be rejected if there
is no radiological evidence of pleural or parenchymal fibrosis. There is plenty
of opportunity for disagreement, especially when a factor for uncertainty of
prognosis is included. It is now established did asbestos dust alone may cause
lung cancer although the absolute risk is very small comPared with that from
the combined effects of cigarette smoking and asbestos dust. It has not been
established that pleural plaques alone result in an increased risk of bronchial
or mesothelial tumours, above that for similar exposures to asbestos dust
without these pleural changes. The con- siderable uncertainty about the likely
rate of Progression of the fibrosis makes assessment on first diagnosis
especially difficult. Lung biopsy is not justifiable solely for compensation
ASBESTOS (mesothelioma and lung cancer) While pulmonary fibrosis due to
exposure to asbestos (asbestosis) has been known for decades, the first reports
of individual cases of asbestosis combined with pulmonary cancer which appeared
from time to time in various countries were accepted more as a curiosity. They
Id not attract much attention untill in 1947 a British Chief Inspector of
Factories, E.R.A. Merewether, reported that lung cancer was found to be the
cause of death in 13.2% of persons known to have asbestosis who had died and
been autopsied between 1923 and 1946. A similar high proportion of cancer
deaths in asbestosis was found by other pathologists and the probability of a
role of asbestos in pulmonary carcinogenesis was definitely established by an
epidemiological study by Doll in 1955, and confirmed by further studies.
afterwards a new surprising discovery was made in South Africa. An accumulation of cases of an
otherwise very rare tumour of the pleura and peritoneum, the malignant mesothelioma,
was reported by Wagner in 1959 and related to exposure to the locally mined
type of asbestos, crocidolite.
afterwards cases were identified in non-mining occu- pational exposures to
asbestos in England, in the United States and elsewhere. In contrast with
asbestosis, and in contrast with asbestos-related pulmonary cancer, mesothelioma
was found also in persons whose exposure was not necessarily occupational.
carcinoma related to asbestos: - Bronchogenic carcinoma of the lung.There is a
disease very in the general population. While in many countries the total
mortality from cancer slowely declines, the incidence and mortality from lung
cancer increases and stands as the most frequent cause of death from cancer,
particularly in cigarette smokers. It begins with transformation of the mucous
membrane lining the inside of the bronchus at various level and such foci of
transformation may remain at their initial spot for some time shedding at times
atypical or metaplastic cells into the sputum without causing other symptoms.
This is the period in which we sometimes may succeed in discovering these
pre-cancerous, or the earliest cancerous, changes by sputum cytology sooner than
by other diagnostic methods. Some of such early alterations of cells is
reversible and may spontaneously heal when the cause disappears, e.g. when the
person stops smoking. When the original focus develops definite cancer cells,
the focus begins to grow, to bleed and slowly to obstruct the way, a growing
malignant tumour becomes visible on the radiogram and unless it can be
surgically removed as soon as confirmed, it tends to spread through growth and
through dissemination by blood and by lymph and to lead eventually to death.
Supporting treatment by chemotherapy and radiation successfully prolongs life
and radical surgery can provide complete healing.
various components of the bronchial lining may undergo malignant transformation
and consequently the carcinoma may be composed of various cells and have
various histological appearances such as adenocar-cinoma or squamous, or
are no histological or other characterstics winch would specify the individual
lung cancer as cancer caused by asbestos.
many cases of asbestos-linked pulmonary cancers the lungs also show pulmonary
fibrosis-asbestosis 653 microscopically, and often macroscopically, and on
Some scientists believe that so-called "asbestos lung cancer" can
only develop on a pathologically changed terrain of asbestotic fibrosis. There
is evidence of such a possibility in human pathology: the scar-carci- noma.
Others believe that exposure to. asbestos alone, particularly in a smoker, may
provoke cancerous growth without also causing asbestosis. The decision between
the two opinions is difficult to reach because in individual clinical cases of bronchogenic
carcinoma we cannot dis- tinguish what is an "asbestos cancer", a
"ciprette cancer" or lung cancer from yet another cause. Thus, in
most coun- tries bronchogenic carcinoma is considered an occupational disease
due to asbestos, e.g. for workmen's compensation, only in the presence of
coexisting asbestosis. If pulmonary fibrosis were a prerequisite for development
of asbestos- linked lung cancer, it would follow that lowering exposures to
asbestos to levels which effectively prevent asbestosis would automatically
eliminate "asbestos lung cancer".
data In man the link of lung cancer with asbestos has been mainly
epidemiological. while asbestosis cannot occur without ex- posure to asbestos
mad consequenty every case of asbbestoses must be linked with such exposure,
with pulmonary cancer the situation is quite different. It is a rather common
disease in the general population. The link with exposure to asbestos is based
on finding whether in those exposed to asbestos is based on finding whether in
those exposed to asbestos bang cancer occurs more frequently than in those
unexposed, i.e. whether in those exposed there is an excess incidence of lung
Doll's study a number of other epidemilogical studies, of various levels of
excellence, have been carried out which confirm that indeed there is an excess
of bronchogenic carcinoma in persons exposed to asbestos, under certain
circumstances, and thus that asbestos must be considered one of a number of
are the circumstances of a manifest risk of cancer in asbestos exposure? It has
been established that smoking cigarettes greatly increases this risk. In fact
the large majority of lung cancers attributed to asbestos exposure have
occurred in smokers. A lung cancer in an asbestos- exposed non-smoker has been
a rarity. Table 1 shows the effect of both exposures together while each of the
two exposures also carries a risk by itself. A particular exposure to asbestos
in the reported group of workers increased the basis risk of pulmonary cancer
since the risk in nonsmokers was very small, its further increase still meant
only very few cases, if any at all. On the other hand, when the basic risk of
exposure to asbestos was combined with the 11. 8 time higher risk of a smoker,
this combination necessarily produced a serious risk leading to an excess of
incidence of pulmonary cancer. This experience has an important practical
implication: most "asbestos cancers of the lungs" could be prevented
if the workers did not smoke. In fact it was found that the risk for the
asbestos workers who had stopped smoking declined after 10 years to the low
level existing for non-smokers.
carcinoma has a long latent period, usually 20 years or more. Consequently,
what excesses of incidence of pulmonary carcinoma linked with asbestos have
been found to date must be linked with exposures 20 years or more development
of the tumour. It is known that exposures in those days 654 were generally very
high. But we usually do not have any precise measurements. Thus in most
existing epidemiological studies it has not been easy, and in some not
possible, to establish a relation between the incidence of cancer and a certain
quantitative level of exposure, other than that the exposure had been high.
1 ----------------------------------------------------------- Asbestos exposure
Little Moderate Heavy Non-smokers 1.0 2.0 6.9 Moderate smokers 6.3 7.5 12.9
Heavy smokers 11.8 13.3 25.0 From : McDonald,J.C. "Asbestos-related
diseases: an epidemiological review" (587-601). Biological effects of
mineral fibres. Wagner, J.C. (ed). IARC scientific publications No.30 (Lyons,
International Agency for Research on Cancer, 1980) Vol.2.
One quantitative measure commonly used is the duration of exposure in years. In
other studies the period since first exposure and the duration of exposure.
Only a few investigations love had the additional benefit of actually measured
data on past levels of exposure. An example of the latter is the series of
epidemiological studies of workers of the chrysotile mines of quebec carried out by J.C.
and his collaborators. This and some other studies showed a dose-response
relationship, i.e. the higher was the dose, in terms of level of exposure, or
of periods of exposure, or of both of them combined, the higher was the excess
incidence of bronchogenic cancer. In fact the excess incidence of lung cancer
and statistically significantly increased relative risk was usually found only
in groups of persons most severely exposed (see Table 2) Table 2. Relative
risks of lung cancer in relation to accumulated dust or fibre exposure, before
and after correction of work histories with controls matched for smoking
----------------------------------------------------------- Accumulated dust exposure
(millions of particles per cubic foot x years)
------------------------------------ <30 30 300>1000 All <300 <1000
----------------------------------------------------------- Before correction
Cases 89 73 56 27 245 Controls 108 87 42 8 245 655 Relative risk 1 1.02 1.62
4.10 - After correction Cases 85 73 59 27 244 Controls 101 89 44 10 244
Relative risk 1 0.97 1.59 3.21 - Accumulated fibre exposure (fibres per ml x
years) --------------------------------------- <100 100 1000> 3000 All
<1000 <3000 --------------------------------------- After correction
Cases 86 76 56 26 244 Control 110 87 35 12 244 Relative risk 1 1.12 2.05 2.77 -
From: McDonald J.C.: Gibbs, G.W., Liddell, F.D.K.
fibre concentration and lung cancer mortality: a preliminary report"
(811-817). Biological effects of mineral fibres. Wagner, J.C. (ed). LARC
scientific publication No.30 (Lyons, International Agency for Research on
Cancer, 1980), Vol.2.
18.In Asbestos Medical and Legal Aspects by Barry 1.
at p. 10 had stated that Dr. Merewether following the diagnosis by Homburter in
his co-incidence of Primary Carcinoma at EC Lungs and Pulmonary Asbestos 1943
stated that fibrosis of the lungs as it occurs among asbestos workers as the
slow growth of fibrous tissue (scar tissue) between the air cells of the lungs
wherever the inhaled dust comes to rest. While new fibrous tissue is being laid
down like a spider's web, that deposited earlier gradually contracts. This
fibrous tissue is not only useless as a substitute for the air cells, but with
continued inhalation of the causative dust, by its invasion of new territory
and consolidation of that already occupied it gradually, and literally
strangles the essential tissues of the lungs. In Malignant Mesothelioma in Norway by Gunnar Mowe, 1986 Ed., he stated
at p.8 on Aetiology of malignant mesothelioma that in 1943, Dr. Wedler reviewed
malignancies in 30 asbestosis cases in Germany, and suggested a casual association between asbestosis and both
bronchial and malignant mesothelioma. At p.9, he stated that in 1969, Wagner
and Berry reported that 656 all the main
types of asbestos fibres were capable of producing mesotheliomas in rats after intrapleural
or intraperitoneal installation. In the same page in para 2.2, he stated that
the importance of asbestos fibre size in explaining the biological effects of
asbestos was first emphasized by Timbrell in 1965. At p. 14 in para 3.2,
caption lung fibre burden, he stated that lung fibre burden, which is defined
as the total content of mineral fibres in the lungs, depends on external
5 in Table 5, Biological effects of natural mineral fibres (asbestos related
diseases), he stated that long latency time from first exposure until onset of
disease is a typical feature of all the asbestos related diseases. At p. 16 in para
3.4, he stated that among 948 patients with malignant mesothelioma, 65% were
pleural, 24% peritoneal and 11% pericardial. At p.21, lung fibre analysis under
the caption material and methods, para 3, he stated that the lung tissue
samples- for fibre analysis were obtained from twelve, pathology departments
the analysis samples from 85 men and 13 women disclosed the malignant mesothelioma.
At p.25, summary of his results in Paper V, he stated that the median latency
time from the first year of exposure until death was 35 years (range-18-53),
and the median time inter- val from last year of exposure until death was 14
years (range: upto 40 years). At p.32, he stated that the estimated proportion
of-men with at least possible occupa- tional asbestos exposure were 82%. At
p.40, he stated that strict regulations and effective control of such work are
vital in order to prevent asbestos related cancers in the future. At p. 41 in para
4, he stated that high amphibole concentration in lung tissue increases the
risk of malignant mesothelioma considerably. Asbestos exposure corresponding to
only one million fibres per g. of dried lung tissue is also associated with
increased risk. In Blannie S. Wilson v. Johns Manville Sales Corpn Ltd., 684
Federal 2nd III (1982), the United States Court of Appeal, District of Columbia
Circuit, Ginsburg, J., as a Judge in the Court of Appeal deciding the question
of limitation of 3 years from the date of diagnosis of mild asbestos held that
the period of 3 years should be computed from the date of discovery and that
asbestos, which is not a cancerous process, has a latent period of 10 to 25
years between initial exposure and apparent effect. Even longer periods of time
may pass before mesotheliorna manifests itself In William T. Urie v. Guy A.
Thompson, 93 L. Ed. = 337 US 163, the Supreme Court of the United States of
America laid that the limitation of three years prescribed by the statute of
limitation starts from the time when the employee discoveres the disease and
the cause of action accrues only when diagnosis of the disease is accomplished,
and not when the employee unwittingly, contracts it nor is each inhalation of
silica dust a separate torn giving rise to a fresh cause of action.
would thus be clew that disease occurs wherever the exposure to the toxic or
carcinogenic agent occurs, regardless of the country the type of industry, job
title, job assignment, or location of exposure. The disease will follow the
trail of the exposure, and extend the chain of carcinogenic risk beyond the
workplace. It is the exposure and the nature of that exposure to asbestos that
determines the risk and the diseases which subsequently result. The development
of the carcinogenic risk due to asbestos or any other carcinogenic agent, does
not require a continu- 657 ous exposure. The cancer risk does not cease when
the exposure to the carcinogenic agent ceases, but rather the individual carries
the increased risk for the remaining years of life. The exposure to asbestos
and the resultant long tragic chain of adverse medical, legal and societal
consequences, reminds the legal and social responsibility of the employer or
the producer not to endanger the workmen or the community of the society. He or
it is not absolved of the inherent responsibility to the exposed workmen or the
society at large. They have the responsibility legal, moral and social to
provide protective measures to the workmen and to the public or all those who
are exposed to the harmful consequences of their products. Mere adoption of
regulations for the enforcement has no real meaning and efficacy without die
professional, industrial and governmen- tal resources and legal and moral
determination to implement such regulations.
The preamble and Article 38 of the Constitution of India the supreme law,
envisions social justice as its arch to ensure life to be meaningful and liveable
with human dignity. Jurisprudence is the eye of law giving an insight into the
environment of which it is the expression. It re- lates the law to the spirit
of the time and makes it richer.
the ultimate aim of every civilised society as a key system in a given era, to
meet the needs and demands of its time. Justice, according to law, comprehends
social urge and commitment. The Constitution commands justice, liberty,
equality and fraternity as supreme values to usher in the egalitarian social,
economic and political democracy.
justice, equality and dignity of person are corner stones of social democracy.
The concept 'social justice' which the Constitution of India engrafted,
consists of diverse principles essential for the orderly growth and development
of personality of every citizen. "Social justice" is thus an integral
part of "justice" in generic sense. Justice is the genus, of which
social justice is one of its species. Social justice is a dynamic device to
mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections
of the society and to elevate them to the level of equality to live a life with
dignity of person.
justice is not a simple or single idea of a society but is an essential part of
complex of social change to relieve the poor etc. from handicaps, penury to
ward off distress, and to make their life liveable, for greater good of the
society at large. In other words, the aim of social justice is to attain
substantial degree of social, economic and political equality, which is the
legitimate expectations. Social security, just and humane conditions of work
and leisure to workman are part of his meaningful right to life and to achieve
self-expression of his personality and to enjoy the life with dignity, the
State should provide facilities and opportunities to them to reach at least
minimum standard of health, economic security and civilised living while
sharing according to the capacity, social and cultural heritage.
a developing society like. ours steeped with unbridgeable and ever widening gaps
of inequality in status and of opportunity, law is calalist. rubican to the
poor etc. to reach the ladder of social justice, Justice K. Subba Rao, the
former Chief Justice of this Court, in his "Social Justice and Law' at
page 2, had stated that "Social Justice is one of the disciplines of
justice and the discipline of justice relates to the society." What is due
658 cannot be ascertained by absolute standard which keeps changing depending
upon the time, place and circumstance.
constitutional concern of social justice as an elastic continuous process is to
accord justice to all sections of the society by providing facilities and
opportunities to remove handicaps and disabilities with which the poor etc.
languishing to secure dignity of their person. The Constitution, therefore, Mandates
the State to accord justice to all members of the society in all facets of
human activity. The concept of social justice embeds equality to flavour and
enliven practical content of 'life'. Social justice and equality are
complementary to each other so that both should maintain their vitality. Rule
of law, therefore, is a potent instrument of social justice to bring about
equality in results.
Article 1 of the Universal Declaration of Human Rights asserts human
sensitivity and moral responsibility of every State that "all human beings
are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood."
The Charter of the United Nations thus reinforces the faith in fundamental
human rights and in the dignity and worth of the human person envisaged in the
directive principles of State policy as part of the constitution. The
jurisprudence of personhood or philosopy of the right to life envisaged under
Article 21, enlarges its sweep to encompass human personality in its full
blossom with invigorated health which is a wealth to the workman to can his
livelihood to sustain the dignity of person and to live a life with dignity and
Article 38(1) lays down the foundation for human rights and enjoins the State
to promote the welfare of the people by securing and protecting, as effectively
as it may, a social order in which justice, social, economic and political,
shall inform all the institutions of the national life. Art.46 directs the
State to protect the poor from social injustice and all forms of exploitation. Article
39(e) charges that the policy of the State shall be to secure "the health
and strength of the workers". Article 42 mandates that the States shall
make provision, statutory or executive "to secure just and humane
conditions of work".
43 directs that the State shall "endeavour to secure to all workers, by
suitable legislation or economic organisation or any other way to ensure decent
standard of life and full enjoyment of leisure and social and cultural
opportunities to the workers". Article 48-A enjoins the State to protect
and improve the environment. As human resources are valuable national assets for
peace, industrial or material production, national wealth, progress, social
stability, descent standard of life of worker is an input.
25(2) of the universal declaration of human rights ensures right to standard of
adequate living for health and well-being of the individual including medical
care, sickness and disability, Article 2(b) of the International Convention on
Political, Social and Cultural Rights protects the right of worker to enjoy
just and favourable conditions of work ensuring safe and healthy working
The expression 'life' assured in Art.21 of the Constitution does not connote
mere animal existence or continued drudgery through life. It has a much wider
meaning which includes right to livelihood, better standard of life, hygienic
conditions 659 in work place and leisure. In Olga Tellis v. Bombay Municipal
Corporation, 1985(3) SCC 545, this Court held that no person can live without
the means of living i.e. means of livelihood. If the right to livelihood is not
treated as a part of the constitutional right to life, the easiest way of
depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation.
deprivation would not only denude the life of its effective content of
meaningfulness but it would make life impossible to live, leave aside what
makes life liveable.
right to life with human dignity encompasses within its fold, some of the finer
facets of human civilisation which makes life worth living. The expanded
connotation of life would mean the tradition and cultural heritage of the
persons concerned. In State of H.P. v. Umed Ram Sharma, (1986)2 SCC 68, this
Court held that the right to life includes the quality of life as understood in
its richness and fullness by the ambit of the constitution. Access to road was
held to be an access to life itself in that state.
Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, considering the effect
of solitary confinement of a prisoner sentenced to death and the meaning of the
word 'life' enshrined under Article 21, the Constitution Bench held that the
quality of-life covered by Article 21 is something more than the dynamic
meaning attached to life and liberty. The same view was reiterated in Board of
Trustees of the port of Bombay v. D.R. Nadkarni, (1983) 1 SCC 124, Vikrant Deo
Singh Tomar v. State of Bihar, (1988) Suppl.SCC 734, R. Autyanuprasi v. Union of India, (1989)1
Suppl. SCC 251. In Charles Sobraj v. Supdt. Central Jail, Tihar, AIR 1978 SC
1514, this Court held that the right to life includes right to human dignity.
The right against torture, cruel or unusual punishment or degraded treatment
was held to violate the right to life. In Bandhua Mukti Morcha v. Union of In- dia,
(1984) 3 SCC 161 at 183-84, this Court held that the right to live with human
dignity, enshrined in Article 21, derives its life-breath from the directive
principles of the State policy and particularly Clauses (e) and (f) of Article
39 and Articles 41 and 42. In C.E.S.C. Ltd. & Ors. v.
Chandra Bose, 1992(1) SCC 441, considered the gamut of operational efficacy of
Human Rights and the constitutional rights, the right to medical aid and health
and held that the right to social justice are fundamental rights. Right to free
legal aid to the poor and indigent worker was held to be a fundamental right in
Khatri (11) v. State of Bihar, (1981)1 SCC 627. Right to
education was held to be a fundmental right vide Maharashtra State B.O.S. &
H.S. Education v. K.S. Gandhi, 1991(2) SCC 716. and Unni Krishnan v. State of A.P., (1993)1 SCC 645.
The right to health to a worker is an integral facet of meaningful right to
life to have not only a meaningful existence but also robust health and vigour
without which worker would lead life of misery. Lack of health denudes his
livelihood. Compelling economic necessity to work in an industry exposed to
health hazards due to indigence to bread-winning to himself and his dependents,
should not be at the cost of the health and vigour of the workman.
and opportunities, as enjoined in Article 38, should be provided to protect the
health of the workman.
for medical test and treatment invigorates the health of the worker for 660
higher production or efficient service. 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 Article 21 read with Articles 39(c),
41 and 43 of the Constitution and make the life of the workman meaningful and
purposeful with dignity of person. Right to life includes protection of the
health and strength of the worker is a minimum requirement to enable a person
to live with human dignity.
State, be it Union or 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 with health and
happiness. The health and strength of the worker is an integral facet of right
to life. Denial thereof denudes the workman the finer facets of life violating
Art.21. The right to human dignity, development of personality, social
protection, right to rest and leisure are fundamental human rights to a workman
assured by the Charter of Human Rights, in the Preamble and Arts.38 and 39 of
the Constitution. Facilities for medical care and health against sickness
ensures stable manpower for economic development and would generate devotion to
duty and dedication to give the workers' best physically as well as mentally in
production of goods or services. Health of the worker enables him to enjoy the
fruit of his labour, keeping him physically fit and mentally alert for leading
a successful life, economically, socially and culturally.
facilities to protect the health of the workers are, therefore, the fundamental
and human rights to the workmen.
we hold that right to health, medical aid to protect the health and vigour to a
worker while in service or post retirement is a fundamental right under Article
21, read with Articles 39(e), 41, 43, 48A and all related Articles and
fundamental human rights to make the life of the workman meaningful and
purposeful with dignity of person.
M. C. Mehta v. Union of India, (1987) 4 SCC 463, when tanneries were
discharging effluents into the river Ganges, this Court, in a public interest
litigation, while directing to implement Water (Prevention and Control of
Pollution) Act or Environment (Protection) Act, prevented the tanneries etc. by
appropriate directions from discharging effluents into the river Ganga,
directed establishment of primary treatment plants etc. and such of these
industries that did not comply with the directions were ordered to be closed. when
ecological balance was getting upset by destroying forest due to working the
mines, this Court directed closer of the mines. In Pt Parmanand Katara v. Union
of India, (1989)4 SCC 286, Ohs court directed even private doctors or hospitals
to extend ser- vices to protect the life of the patient, be an innocent or a
criminal liable for punishment in accordance with law.
National Textile Workers' Union v. P.R. Ramakrishnan, 1983(1) SCR 922, the
Constitution Bench, per majority, held that the role of a company in modem
economy and their increasing impact of individuals and groups through the
ramifications of their activities, began to be increasingly recognised. The
socio-economic objectives set out in Part IV of the constitution guide and
shape the new corporate phi- 661 losophy. "Today social scientists and
thinkers regard a company as a living vital and dynamic social organism with
firm and deep rooted affiliations with the rest of the community in which it
functions. It would be wrong to look upon it as something belonging to the
shareholders." It was further held that "it is not only the
shareholders who have supplied capital who are interested in the enterprise
which is being run by a company but the workers who supply labour are also
equally, if not, more interested because what is produced by the enterprise is
the result of labour as well as capital. In fact, the owners of capital bear
only limited financial risk and otherwise contribute nothing to production
while labour contributes a major share of the product. While the former invest
only a part of their moneys, the latter invest their sweat and toil, in fact
their life itself. The workers, therefore, have a special place in a socialist
pattern of society. They are not mere vendors of toil, they are not a
marketable commodity to be purchased by the owners of capital. They are
producers of wealth as much as capital nay very much more. They supply labour
without which capital would be impotent and they, at the least, equal partners
with capital in the enterprise.
constitution has shown profound concern for the workers and given them a pride
of place in the new socioeconomic order envisaged in the Preamble and the
Directive Principles of State Policy. The Preamble contains the profound
declaration pregnant with meaning and hope for millions of peasants and workers
that India shall be a socialist demo- cratic republic where social and economic
justice will inform all the institutions of national life and there will be
equality of status and opportunity for all and every endeavour shall be made to
promote fraternity ensuring the dignity of the individual. " In that case,
the question was whether the labour is entitled to be heard before a company is
closed and liquidator is appointed. In considering that question vis-a-vis
Article 43-A of the constitution, this Court, per majority, held that they are
entitled to be heard before appointing a liquidator in a winding up proceedings
of the company.
Workmen of Meenakshi Mills Lid v. Meenakshi Mills Ltd. (1992) 3 SC(: 3 36, a
Bench of three Judges considered the vires of Section 25-N of the Industrial
Disputes Act on the anvil of Article 19(1)(f) of the Constituion. It was held
that the right of the Management under Article 19(1)(f) is subject to the
mandates contained in Articles 38, 39-A, 41 and 43. Accordingly, the
fundamental right, under Article 19(1)(g) was held to be subject to the directive
principles and s.25-N does not suffer from the vice of unconstitutionality.
would thus be clear that in an appropriate case, the Court would give
appropriate directions to the employer, be it the State or its undertaking
or-private employer to make the right to life meaningful; to prevent pollution
of work place; protection of the environment; protection of the health of the
workman or to preserve free and unpolluted water for the safety and health of
the people. The authorities or even private persons or industry are bound by
the directions issued by this Court under Article 32 and Article 142 of the
Yet another contentions of the petitioners is that the workman affected by
asbestosis are suffering from lung cancer 662 and related ailments and they
were not properly diagnosed.
sent to national institute and such of those found suffering from diseases
developed due to asbestos, proper compensation paid. It is needless to
reiterate that they need to be re-examined and cause for the disease and the
nature of the disease diagnosed. Thereon each one of them whether entitled to
damages? The employer is vicariously liable to pay damages is unquestionable.
The award of compensation in proceedings under Article 32 or 226 is a remedy
available in public law. In Rudul Sah v. State of Bihar, 1983(3) SCR 508, it
was held that this Court under Article 32 can grant compensation for the
deprivation of personal liberty, though ordinary process of court, may be
available to enforce the right and money claim could be granted by this Court.
Accordingly compensation was awarded. This view was reiterated in Nilabati Behera
v. State of Orissa, (1993) 2 SCC 746 and awarded
monetary com- pensation for custodial death lifting the State immunity from the
purview of public law. It is, therefore, settled law that in public law claim
for compensation is a remedy available under Article 32 or 226 for the
enforcement and protection of fundamental and human rights. The defence of
sovereign immunity is inapplicable and alien to the concept of guarantee of
fundamental rights. Them is no question of de fence being available for
constitutional remedy. It is a practical and inexpensive mode of redress
available for the contravention made by the State, its servants, it
instrumentalities, a company or a person in the purported exercise of their
powers and enforcement of the rights claimed either under the statutes or licence
issued under the statute or for the enforcement of any right or duty under the
constitution or the law.
The Government of India issued model Rule 123-A under the Factories Act for
adoption. Under the directions issued by this Court from time to time, all the
State governments have by now amended their respective rules and adopted the same
as part of it but still there are yearning gaps in their effective
implementation in that behalf. It is, therefore, necessary to issue appropriate
directions. In the light of the rules "All Safety in the Use of
Asbestos" issued by the I.L.O., the same shall be binding on all the
industries. As a fact, the 13th respondent-Ferodo Ltd admitted in its written
submissions that all the major industries in India have formed an association
called the "Asbestos Information Centre" (AIC) affiliated to the As- bestos
International Association(AIA), London. The AIA has been publishing a code of
conduct for its members in accor- dance with the international practice and all
the members of AIC have been following the same. In view of that admission,
they are bound by the directions issued by the ILO referred to in the body of
the judgment. In that view, it is not necessary to issue any direction to Union
or State Governments to constitute a committee to convert the dry process of
manufacturing into wet process but they are bound by the rules not only
specifically referred to in the judg- ment but all the rules in that behalf in
the above I.L.O.
The Employees State Insurance Act and the Workmen's Compensation Act provide
for payment of mandatory compensation for the 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
damages by way of compensation are accepted principles of 663 compensation. In
the light of the law above laid down and also on the doctrine of tortuous
liability, the respective factories or companies shall be bound to compensate
the workmen for the health hazards which is the cause for the disease with
which the workmen are suffering from or had suffered pending the writ
petitions. Therefore, the factory or establishment shall be responsible to pay
liquidated damages to the concerned workmen.
The writ petition is, therefore, allowed. All the industries are directed
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;
The Membrane Filter test, to detect asbestos fibre should be adopted by all the
factories or establish- ments at par with the Metalliferrous Mines Regulations,
1961; and Vienna Convention and Rules issued there under;
All the factories whether covered by the Employees State Insurance Act or
Workmen's Compensation Act or otherwise are directed to compulsorily insure
health coverage to every worker;
The Union and the State Governments are
directed to review the standards of permissible exposure limit value of fibre/cc
in tune with the international standards reducing the permissible content as
prayed in the writ petition referred to at the beginning. The review shall be
continued after every 10 yews and also as an when the I.L.O. gives directions
in this behalf consistent with its recommendations or any Conventions;
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 worker engaged in the manufacture of asbestos or its ancillary
The appropriate Inspector of Factories in particular of the State of Gujarat, is directed to send all the
workers, examined by the concerned ESI hospital, for re-examination by the
National Institute of Occupational Health to detect whether all or any of them are suffering
case of the positive Ending that all or any of them ant suffering from the
occupational health hazards, each such worker shall be entitled to compensation
in a sum of rupees one lakh payable by the concerned factory or industry or
establishment within a period of three months from the date of certification by
the National Institute of Occupational Health.
The writ petitions are accordingly allowed. No costs.