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TMI Blog1995 (1) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... mines and asbestos industries with adequate mechanism for and diagnosis and control of the silent killer disease "asbestosis", with amended prayers as under :- (a) 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; (b) To direct all the factories to adopt THE MEMBRANE FILTER TEST" (c) To direct all industries to compulsorily insure the employees working in their respective industries, excluding those already covered by the Employees State Insurance Act and the Workmen Compensation Act so as to entitle the workmen to get adequate compensation for occupational hazards or diseases or death; (d) To direct the authorities to appoint a committee of experts to determine the standard of permissible exposure limit value of 2 fibre/cc and to reduce to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particles of asbestos or settled particles of asbestos" which may become airborne in the working environment "reparable asbestos fibre" is defined as a particle of asbestos with a diameter of less than 3 um and of which the length is at least three times the diameter; "Workers" cover all employed persons; "Workplace" covers all places where workers need to be or need to go by reason of their work and which are under the direct or indirect control of the employer; 4. Article 5(2) provides that "National laws or regulations shall provide for the necessary measures, including appropriate penalties, to ensure effective enforcement of and compliance with the provisions of the Convention.". Article 8 provides that "employers and workers or their representatives shall co-operate as closely as possible at all levels in the undertaking in the application of the measures prescribed pursuant to this Convention". Article 9 in Part III 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 measur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lth 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"; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny mixture containing one or more of these; (b) asbestos dust is defined as airborne particles of asbestos or settled particles of asbestos which may become airborne in the working environment; (c) reparable 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; 8. In 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 approved by the competent authority after consultation with recognised scientific bodies and with the most representative organisations of the employers and workers concerned. 3.1.2. - 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. 3.1.3. - The exposure level of airborne asbestos in the working environment should be established by: (a) by legislation : or (b) by collective agreement or by any other agreements drawn up between employers and workers; or (c) by any other channel approved by the competent authority after consultation with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 workers. 13. Part B deals with control of asbestos exposure in specific activities, mining and milling, asbestos cement, Textiles. In Chapter 15, Encapsulation or removal of triable thermal and acoustic insulation provides the procedure for repairs or removal of asbestos insulations. In 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the alveolar region are 3 um or less in diameter but may be up to 200 um long. Animal experiments strongly point to the longer fibres, 5 um and over, as being much more fibrogenic than shorter fibres. A proportion 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. The pleura, both visceral and parietal surfaces, are affected by the fibrosis and to a degree which is much greater than in other types of pneum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign. There is an impression that it is now less frequently seen. Its severity 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. The 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/O 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 pneumoconiosis (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) opacit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed 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 early 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. Acute 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, leucocytes and a raised blood sedimentation rate. It settles in a few weeks but leaves the costophrenic angles obscured. No precipitating factors have been identified. Its recognition is important. Firstly, the cause may be missed unless and adequate occupational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also be seen "edge on". Separation from visceral thickening depends largely on a defined edge to the shadow. Both types may occur together. Dependent 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 "glittering 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. Sources 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) : (b) the recognition that significant exposure to asbesto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 established. Tremolite, an amphibole often present in deposits of asbestos, may be important. (6) 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. The 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 standards . In North America the dust was measured in millions of particles/ft3, in the United Kingdom in fibres/cm3 - the measurement now internationally used. All the data show a clear relation between estimated dose of dust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. But removal of old insulation is likely to remain for many years a major potential sources of high exposure (see also DUST CONTROL INDUSTRIAL). Medical 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 those radiographs and test of FVC and FEV 1/0 are the minimum required. The interval will very from annually up to four times yearly, with more frequent visits when there are clinical reasons. There is increasing evidence that the radiological features of asbestosis are in part cigarette-smoking dependent which requires t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (bronchial) 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 that 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 considerable 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 assessment. ASBESTOS (mesothelioma and lung cancer) :- While pulmonary fibrosi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cells, the focus begins to grow, to bleed and slowly to obstruct the way, a growing malignant tumor 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. The 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 oat-cell carcinoma. There are no histological or other characteristics which would specify the individual lung cancer as cancer caused by asbestos. In many cases of asbestos-linked pulmonary cancers the lungs also show pulmonary fibrosis-asbestosis microscopically, and often macroscopically, and on X-ray examination. Some scientists believe that so-called "asbestos lung cancer" can only develop on a pathologically changed terrain of asbestosis fibrosis. There is evidence of such a possibility in human patholo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, since the risk in non-smokers 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 times 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. The bronchogenic 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 before development of the tumour. It is known that exposures in those days 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a casual association between asbestosis and both bronchial cancer and malignant rnesothelioma. At p.9, he stated that in 1969, Wagner and Berry reported that 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 asbestos exposure. At p. 15 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 pathol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which subsequently result. The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous 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 or 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 the professional, industrial and governmental resources and legal and moral determination to implement such regulations. 20. The preamble and Article 38 of the Constitution of India - the supreme law, envisions social justice as its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cannot be ascertained by absolute standard which keeps changing depending upon the time, place and circumstance. The 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. are 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 imbeds 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. 22. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in work place and leisure. In Olga Tellis v. Bombay Municipal Corporation AIR1986SC180 , 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. Such 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 livable. The 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 Shanna [1986]1SCR251 , 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, 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 and is a minimum requirement to enable a person to live with human dignity. The State, be 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 Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 share-holders 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 enterprise. Our Constitution has shown profound concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disease and the nature of the disease diagnosed, thereon deciding 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, 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: 1993CriLJ2899 and awarded monetary compensation 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 or fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practicable and inexpensive mode of redress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azards 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. 33. The writ petition is, therefore, allowed. All the industries are directed (1) To 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; (2) the Membrane Filter test, to detect asbestos fiber should be adopted by all the factories or establishments at par with the Metalliferous Mines Regulations, 1961; and Vienna Convention and Rules issued thereunder; (3) 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; (4) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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