Text of the order by the National Human Rights Commission (NHRC), delivered on December 21, 2017, following the complaint by Jagdish Patel of the People’s Training and Research Centre (PTRC) on fatalities due to silicosis in the Khambhat region of Gujarat:
These proceedings shall be read in continuation of the earlier proceedings of the Commission dated 31.1.2017. On 31.1.2017, The Commission observed and directed thus:
“Let copy of report of action taken report submitted by Additional Director, Health, Gandhinagar, Gujarat and copy of report of Deputy Secretary, Govt. of Gujarat, Labour and Employment Department be sent to complainant Shri Jagdish Patel for submitting his comments which should be received in the Commission within eight weeks. From the perusal of the papers available on record, Shri Jagdish Patel in his complaint pertaining to Khambhat has mentioned that 124 persons have died of Silicosis while working in agate industry. The present report is only in respect of 45 persons and the list attached with the report indicated that ex-gratia relief to the next of kin of only 8 persons (out of 45) have been paid, claims of the 14 persons have been rejected, 13 cases are pending before AGLO and 10 cases are under process before Rural Labour Commissioner. Let a list of 124 persons who have died due to Silicosis be sent to Chief Secretary, Govt. of Gujarat and he be requested to inform the Commission the status of progress of their claim for ex-gratia relief, individually. He should also inform the Commission the ground(s) of rejection of 14 claims of compensation along with the medical report (X-Ray etc) which should be received in the Commission within eight weeks.”
Pursuant to the directions of the Commission, Additional Director (Public Health), Gandhinagar, submitted a report dated 23.3.2017. He has stated that Occupational Diseases Diagnostic Centre/Silicosis Cell had been established at the State Level Committee; Organised State Level Training Workshop (TOT) on diagnosis & management of Silicosis; provision of separate wards in the District Hospital/CHC for Silicosis patients made; the detailed awareness efforts have been made, etc. He has also stated that during 2010 to 2017 (till Feb), 2583 agate workers were examined and 504 X-Rays were taken. 59 cases of Silicosis and 96 cases of silico-tuberculosis were detected by this activity.
Further, house to house survey was conducted once in 2014 and twice in 2015 and 2016, in Khambhat Taluka. All Silicosis suspected patients were given health checkup cards and 1044 cards had been issued till that date. They have also maintained a Silicosis Suspect Register in the Taluka. The report further states that they have appointed Medical Officers, Para Medical Staff who can look after the Silicosis patients. Besides this they have given wide publicity of various means of publicity on the facilities available for diagnosis etc.
Deputy Secretary to Govt. of Gujarat, Labour and Employment Department, Gandhinagar, also submitted a report dated 18.8.2017. The report revealed that relatives/NOK of 14 self-employed who died of Silicosis have not produced the succession certificates and any documents from competent authority to show that he/she was NOK of Silicosis victim. Hence, they have not been paid the financial assistance of Rs. One lakh.
The report further states that the Govt. of Gujarat has formulated Scheme of Financial Assistance to agate workers who are home based self-employed vide Notice No. LWS/142011/715751/M-3 dated 13.8.2015 of Labour and Employment Department, Gandhinagar, is being implemented by Rural Labour Commissioner, Gandhinagar. Financial assistance of Rs One Lakh has been given to the NOK of 61 persons who died of Silicosis (list has been attached with the report). Case for financial assistance of 18 persons was pending before AGLO (Agri) (list has been attached). CDHO has rejected cases of 21 persons (list has been attached). The report also reveals that from the list of 122 persons given by Shri Jagdish Patel, 16 persons had not applied for financial assistance (list has been attached), and 6 persons were not confirmed as Silicosis patients.
The report further states that those units which are registered under the Factories Act, 1948, the employees/workers thereof are eligible for compensation either under Employees Compensation Act or ESIC Act. And there were 20 Agate Factories which were registered under the Factories Act, 1948. Out of which 8 factories were working and they are using the wet process for agate polishing. The report concludes that regular visits were being made by the Labour Department with other department like GPCB, Health Department and Nagarpalika, Khambhat to survey the affected area of Khambhat. The Agate Factories are regularly visited by the Certifying Surgeons and Factory Inspectors.
Shri Jagdish Patel, the complainant has submitted his comments vide a letter dated 8.3.2017. The complainant has stated that the Family Welfare Department, Govt. of Gujarat has identified only 114 cases of Silicosis since 2010 whereas his NGO, PTRC clinic has been able to identify 415 such cases in Khambhat, since 2007 to 2017 (February). Out of 415 identified Silicosis victims, 157 have died (list has been attached).
The complainant has further stated that, “death due to TB among exposed Agate workers” was documented in Special report on Agate Craft as part of Census Report published in 1961; later, Industrial Toxicology Research Centre, Lucknow, carried out study of Agate workers in 1980 which reported 38% incidence of Silicosis; soon, NIOH carried out study and reconfirmed these results in 1983; and again in 2002 NIOH carried out study and expressed its concern. Two PILs in Gujarat High Court in the meanwhile also directed the Government to take action. However, the Health and Family Welfare Department of Govt. of Gujarat remained inactive.
The complainant has stated that there is no explanation why they did not have any data of Silicosis victims for this area, before the year 2010. He further alleged that had they carried out house to house survey why could they had not been able to identify as many patients as done by PTRC (the NGO). PTRC has not carried out any house to house survey but workers were motivated to visit the clinic voluntarily for screening. The complainant has further argued that the Department of Health and Family Welfare, Govt. of Gujarat, has given action taken report pertaining to Khambhat area of District Anand.
Whereas the Agate work is also carried out in the villages of Jambusar Taluka in Bharuch district and they have also been suffering from Silicosis. He has already filed a case registered as 499/6/5/2010 before the Commission pertaining to confirmed death cases due to Silicosis in that area. He has also stated that the private medical practitioners in Jambusar, Bharuch, Surat and Vadodara have also been receiving patient from this area. They too have diagnosed them to be suffering from silica related diseases. However, the Health Department has not taken any steps in this area. He has also stated that the workers from Jambusar were also migrated to Agate Industry in Jaipur and Khambhat. They have given certain illustrations also.
The complainant has stated that Gujarat Government had been providing financial assistance of Rs One Lakh to the NOK of the persons who died of Silicosis and were working in Agate Industry. Further, the limitation for submitting the application is 3 months. There is no provision to condone delay. And in many communities especially, Muslim community, the widow does not come out of the house for three months. The Government has rejected 5 claim applications on this ground, only. He has requested that there should be a provision for condonation of delay to give justice to the victims. Further, many of the claims have been rejected for want of probate certificates and getting probate issued by the Court is a costly affair for poor families. He has suggested that there should be a mechanism that the Government should make simple provision for getting probate or issuing probate in such cases.
The complainant has further stated in his comments that the Labour and Employment Department has claimed that there are only 8 Agate units with 39 workers employed therein, whereas they have paid compensation to the hundreds of workers who have died of Silicosis, therefore, these workers must have been working either in unregistered units or home based units. He has pointed out that the NHRC team has found that there were 300 agate companies in Khambhat, most of which are running without permission. He has asked whether the Labour Department was responsible for only 39 agate workers in Khambhat? Therefore, he has prayed for sensitization of the public servants.
The complainant has also stated that the Government has not given any information on the 27 complaints pending before them and 25 complaints disposed of by them. The complainant has prayed that the Government of Gujarat be directed to adopt and pay relief as recommended by the NHRC as being paid by Govt. of Rajasthan and Jharkhand to the Silicosis victims. Further he has prayed that the Government of Gujarat should come out with a rehabilitation scheme for the NOK of deceased Agate workers and the surviving Silicosis patients. He has alleged that the Government of Gujarat has not taken any concrete steps on the directions of Hon’ble High Court of Gujarat.
The Commission perused the record and observed that Government of Gujarat has accepted that there has been epidemic menace of Silicosis in the Khambhat region and they have paid financial assistance of Rs. One Lakh to NOK’s of 61 persons who died of Silicosis so far and the complainant has given lists of 415 persons, who were either suffering from Silicosis or died of Silicosis. 157 out of 415 persons have died of Silicosis. The menace of Silicosis had been traced in 1961 or so and it has been confirmed by the specialised organisation such as NIOH etc. in the year 1980, 2002 and 2010.
Further, the complainant has contended that the menace of Silicosis is frequent in Jambusar Taluka of Bharuch district of Gujarat. But the State Government has neither conducted any survey nor came out with any action taken report on the menace, in the area.
Further, State Government has not made any Rehabilitation Scheme for the persons who are suffering from Silicosis and NOK of the persons who died of Silicosis. The financial relief paid by the State Government is also very meagre. The State Government has also failed to register registerable units under the Factories Act and has not taken any steps as per recommendation of the NHRC team to formulate a comprehensive policy to regulate functioning of Agate units; addressing problem of Agate workers in general and in the light of the Supreme Court Judgement in the matter of P.M. Patel & Sons Vs Union of India and Ors [1986-(001)-LLJ-0088-Supreme Court and 1986-(001)-SCC-0032-SC]. The State Government instead of implementing the directions of Hon’ble Supreme Court of India in the above stated matters have argued that they do not want to implement/introduce PF in Agate Industries.
In fact, the directions of Hon’ble Supreme Court of India in this matter is that “In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which, as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with equal facility and it does not require a high order of skill. In the circumstances, the right of rejection can constitute in itself an effective degree of supervision and control.”
The Hon’ble Court further held that: “In our opinion, the home workers are ‘employees’ within the definition contained in Cl.(f) of S.2 of the Employees’ Provident Funds Act.”
Further, the Hon’ble Supreme Court in the matter of Shining Tailors vs. Industrial Tribunal Li, UP (AIR 1984 SC 23) held that: “The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore, raised on behalf of the appellant-employer was untenable and ought to have been overruled and we hereby overrule it.”
Hence these Agate workers are similarly placed as stated above referred cases decided by the Hon’ble Supreme Court of India, and they are workers of the ‘Suppliers’ and their establishments are notional extension of the establishment of the Suppliers hence these units are factories under the notification of State Government dated 29.11.2008 extending coverage to Agate Units under factories Act under Section 85 of Factories Act. Therefore, the Agate workers are employee of the suppliers and their establishment (factory) is factory due to notional extension of the premises of the suppliers and therefore all the applicable Labour Law shall apply to them.
Applicability of the Factories Act, Minimum Wages Act, Payment of Wages Act, Equal Remuneration Act, Bonus Act, ESI Act etc. shall make the Agate workers entitled for Minimum Rate Wages; the regulation of hours of remuneration, health and safety measures as provided in the Factories Act; the benefits available under the Employees State Insurance Act; payment of wages equal to the male workers; Gratuity under the Payment of Gratuity Act; Bonus under the Payment of Bonus Act. They shall be entitled to take recourse to the labour legislation mechanism for redressal of their grievance and ultimately they will not die in harness unattended due to deceases such as Silicosis.
The Commission is of the opinion that the provisions in Factories Act shall take care of health and safety measures for these poor labourers. Further, the Commission is of the view that Chief Secretary, Govt. of Gujarat, be asked to take necessary action to implement the following points:
- Stop work of Agate cutting and polishing etc, in residential areas completely, in the line of Slate Industry in Mandsaur, Madhya Pradesh.
- Set up a Welfare Board for welfare of Agate workers and levying cess on production, sale and export of Agate on the line of Madhya Pradesh State Government has done for Slate Industries in Mandsaur.
- Prohibition of electricity connection in residential areas for commercial purposes, especially for Agate policing etc.
- Any agate cutting unit established in industrial area or otherwise, it should get environmental clearance before starting work. All such units must be monitored on a continuous basis by State Pollution Control Board, after they commence manufacturing.
- Fixation of piece rates by the State for Agate workers which at present are decided arbitrarily by the traders, under Minimum Wages Act and after conducting time/motion study.
The Commission, therefore, directs the Chief Secretary, Govt. of Gujarat to take up necessary steps on the above stated issues also and submit action taken report within six weeks. The Commission recommends u/s 18(a)(i) of the Protection of Human Rights Act, 1993, an additional sum of Rs. 3,00,000/- (Rupees Three Lakhs only) to NOK of each of the 61 confirmed death cases of Silicosis (list attached) who have been paid financial assistance of Rs. 1,00,000/- by the State Government. Rs. 1,00,000/- out of Rs. 3,00,000/- shall be paid in cash and Rs. 2,00,000/- shall be deposited in the Fixed Deposit account in the name of NOK of the deceased person so that the interest can help them to live the life of dignity.
He be also asked to make provisions for condonation of delay in present scheme for the Silicosis victim. The State should revise its schemes for monetary relief to Agate workers of unorganised sector making it more human rights sensitive and complaint. It may use the scheme modelled by the Haryana State Government (copy enclosed). Duly revised scheme be sent to the Commission for perusal. The revised scheme shall be given wide publicity so that the victim could avail benefits of the scheme. The State Government should create a fund for welfare of Agate workers in the line of the welfare fund created by the Govt. of MP for slate workers in Mandsaur, MP.
The State Government should make one time contribution towards that scheme and a cess may be levied in the line of a cess levied under the Building and other Construction Workers Act, 1996. The amount from that fund may be used for the prevention, diagnosis, payment of compensation and rehabilitation of the Silicosis patients in the Agate industry. Chief Secretary, Govt. of Gujarat, be asked to send detailed action taken report on the various directions given above within eight weeks. He be also asked to submit compliance report alongwith proof of payment of monetary compensation to the deceased victims of Silicosis within eight weeks.