TMI Blog2011 (1) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... cation and certification of the workers/victims suffering from asbestosis or other asbestos related diseases or cancer. The petitioner also prayed that the respective Governments should be directed to identify the workers/victims in the respective States and Union Territories and to provide them due treatment as well as to take measures to prevent harmful effects of asbestos in the factories or establishments where such activity is being carried out and also to initiate criminal proceedings against all the responsible persons including the owners of such factories, organizations and associations for infringing the right to life of the asbestos victims. 2. The above writs/directions have been prayed for on the premise that petitioner, Kalyaneshwari, is a non-governmental organization, registered under the Societies Registration Act XXI of 1860. It is a voluntary organization allegedly promoted to serve the general public without distinction of caste or religion and working for the protection of consumers' interest. This Court in the case of Consumer Education and Research Centre v. Union of India [(1995) 3 SCC 42)] accepted the well established adverse effects of asbestos inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of victims in India who are suffering from various effects of asbestos in one form or the other. The petitioner claims to have identified five hundred plus victims from five different States, namely, West Bengal, Rajasthan, Jharkhand, Andhra Pradesh and Tamil Nadu. The petitioner claims that in order to find out the exact health scenario of asbestos workers, it got 14 direct workers of an asbestos unit examined by qualified occupational health doctors and the results were shocking, inasmuch as 13 workers were suffering from asbestosis with five workers being in advanced stage. Though these workers are covered under State ESI Scheme, no proper and adequate treatment is being provided to them. Thousands of poor and ignorant people in Udaipur District in Rajasthan were engaged in asbestos mining before the Ministry of Mines decided in the year 1996 not to issue or renew any asbestos mining licenses in India. Still today, some of them are engaged in illegal mining, which they do at the instance of local asbestos products manufacturers. It is also averred by the petitioner that there is complete failure on the part of the manufacturers in providing safety equipments to workers, regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome significance and we shall proceed to deliberate on the same and record our conclusion at a later stage. First, we would like to deal with the merits of the case and what directions, if at all, can be issued by this Court. 5. Several States, Union Territories as well as Union of India have filed separate affidavits. In the affidavit filed on behalf of the Union of India, it is stated that the organized sector in India uses only imported variety of Chrysotile asbestos which is considered to have least harmful impact on the health of workers engaged in the manufacture of asbestos products and sufficient precautionary measures are being taken by the industry to protect the workers from excessive exposure to the hazardous impact of asbestos fibre. Meeting the contentions raised by the petitioner as aforenoticed, it is submitted on behalf of the concerned respondents that only selective references have been made by the petitioner to unnecessary inflate the impact of asbestos fibre on public health. No recognition has been given by the petitioner to the strict emission norms prescribed for the industries manufacturing asbestos products by Ministry of Environment and Forest and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of this Court in the case of Consumer Education and Research Centre (supra), it is averred that strict instructions were issued to the Inspector of Factories and Boilers to take urgent steps for implementation of the directives of this Court. There is constant watch/review upon the standards of permissible exposure limit. Value of fibre/cc should be in line with the international standards and it would not exceed 0.1 fibre/cc at any time in the last three years. Some states like Himachal Pradesh, Tripura, Mizoram, Sikkim, Arunachal Pradesh and Manipur have stated that there is no asbestos factory within their territory. 8. State of Tamil Nadu in its affidavit has averred that only 13 factories which are handling Asbestos have been brought under the purview of Factories Act, 1948 out of which 3 factories are not working for the past 5 years and in the remaining 10 factories Membrane Filter Test is regularly being conducted and the asbestos fibre is found to be within the permissible limits. The workmen of these factories are covered under the Workmen Compensation Act/Employees State Insurance Scheme/Group Insurance of Insurance Company. Thus, their interests are well pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the country, particularly, in view of the fact that such activity is being carried out at the mining or industrial level in different parts of the country. This Court had the occasion to examine this matter at great length in the case of Consumer Education and Research Centre (supra) wherein it issued certain directions. Once that judgment had been pronounced, there is hardly any occasion for the petitioner to institute this Writ Petition as an independent proceeding. The petitioner has made no effort to collect any information/data from various States as to whether the directions issued by the Court in that matter are being strictly implemented or not at all. On the contrary, it is the stand of the States as well as Union of India that the directions issued by this Court are being strictly adhered to. The parameters and norms have been specified and the industries using such raw materials are being constantly watched, in relation to all the functions of the factory, specially keeping in view the environment and health status of the workers and nearby residents. Even subsequent to the filing of the present petition, the petitioner has not put in any effort to seriously rebut the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment containing directions, we see no reason for filing the present petition. However, since the Petition has been pending for a considerable time before this Court, we will prefer to discuss the merits thereof. As already noticed, there is no law banning the use of asbestos in various manufacturing processes despite its adverse effects on human health. It is not for this Court to legislate and ban an activity under relevant laws. Every factory using or manufacturing asbestos, obtains a licence under the Factories Act as well as permission from the competent authorities including permission under the Environmental Laws. Once all the laws in force have been complied with and directions of this Court as contained in the case of Consumer Education and Research Centre (supra) are carried out in their true spirit, we see no reason as to why this Court, in exercise of its extraordinary jurisdiction under Article 32 of the Constitution, should ban such an activity when admittedly large number of families are dependent upon such processes. What has to be ensured is that proper precautions are taken. The Court had already made ILO guidelines as one of the safety measures to be complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be clear that diseases occurred wherever the exposure to the toxic or carcinogenic agent occurs, regardless of the country, type of industry, job title, job assignment or location of exposure. The diseases will follow the trail of the exposure and extend the chain of the carcinogenic risk beyond the work place. In that judgment, the Court had also directed that a review by the Union and the States shall be made after every ten years and also as and when the ILO gives directions in this behalf consistent with its recommendations or conventions. Admittedly, 15 years has expired since the issuance of the directions by this Court. The ILO also made certain specific directions vide its resolution of 2006 adopted in the 95th session of the International Labour Conference. It introduced a ban on all mining, manufacture, recycling and use of all forms of asbestos. As already noticed, serious doubts have been raised as to whether `controlled use' can be effectively implemented even with regard to secondary exposure. These are circumstances which fully require the concerned quarters/authorities in the Government of India as well as the State Governments to examine/review the matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring of asbestos activities while ensuring due regard to the aspect of health care of the workmen involved in such activity. It may even constitute a Committee of such experts as it may deem appropriate to effectively prevent and control its hazardous effects on the health of the workmen; d. The concerned authorities under the provisions of Environment (Protection) Act, 1986 should ensure that all the appropriate and protective steps to meet the specified standards are taken by the industry before or at the time of issuance of environmental clearance. 17. However, we find that it is imperative for the Court to issue the above directions in order to strike a balance between the health hazards caused by this activity on the one hand and ground reality that a large number of families, all over the country, are dependent for their livelihood on this activity, on the other. We certainly are not entering into the arena of legislature and are passing above directions in furtherance to the law laid down by this Court which, in terms of Article 141 of the Constitution, is binding on all concerned and to ensure effective and timely implementation of the provisions of the Environment (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e office-bearers and members of the Board of Trustees with the personnel of Electro Steel Castings Limited is difficult to be overlooked. It, therefore, leads us to believe that the first petition is a sponsored petition. In ASHOK KUMAR PANDEY v. STATE OF WEST BENGAL and Ors. (supra), the Hon'ble Supreme Court, in no uncertain terms, has observed that when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Since there is business rivalry between the said ESCL and the Respondent No. 5 and since the said ESCL is in the habit of sponsoring such petitions, we do not concur with the view of the present petitioners that there is a real and genuine public interest involved in the litigation. It is difficult to believe that they have approached this court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration, as observed by the Hon'ble Supreme Court in that case. The above observation of the High Court indicates the relationshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that B.K. Sharma was neither working as Advisor/Consultant of ESCL between November- December 2003 to March-April 2004 nor was he looking after the marketing activity of ESCL in Madhya Pradesh. It is stated that during this period he was working in Rajasthan on an important project. First, it is nowhere denied that B.K. Sharma had no connection of any kind with ESCL at any point of time; second, even in the affidavit, necessary particulars have not been given of the company or the project for which he was working in Rajasthan. Still attempt has been made to put the blame on the Gujarat High Court by stating that the Court had not appreciated the facts correctly. Other NGOs had also filed some writ petitions and as such the petition by the petitioner was bona fide. It is also averred, `it is pertinent to mention that neither the Court nor the respondent felt the need for substantiating the allegations with evidence, which is contrary to the settled proposition of law that a person making an allegation needs to prove it'. 20. Three writ petitions had been filed in the Gujarat High Court, including one by B.K. Sharma acting on behalf of the petitioner NGO, which was pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y granted liberty, while dismissing the writ petitions as withdrawn, to approach the Central Government. The Central Government had again declined to accept the representations made by the petitioners resulting in filing of writ petitions for the second time which culminated in the final judgment by the Gujarat High Court in the case of B.K. Sharma (supra). Above was the conduct of the petitioner before the Gujarat High Court and we hardly find any improvement in its behaviour before this Court in the present litigation. Even before this Court, a judgment which has attained finality on all factual matrix and even otherwise, is attempted to be brushed aside by making irresponsible statements, inter alia, that the Gujarat High Court had failed to apply its mind. The judgment of the Gujarat High Court dismissing all the three writ petitions was challenged before this Court by way of filing Special Leave Petitions which came to be dismissed vide order dated 28th January, 2005. Thus, the judgment of the Gujarat High Court for all intent and purposes attained finality and we do not think that legality or correctness of the judgment can now be questioned in these proceedings. It is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the garb of PIL would be nothing but abuse of the process of law. 24. Presumably, and as contended, the direct impact of banning of activities of mining/manufacturing relating to asbestos shall result in increase in demand of cast iron/ductile iron production as they are some of the suitable substitutes for asbestos. It is not in dispute that ESCL is one of the largest manufacturer of iron and allied products in India and there was a professional and/or other connections between ESCL and B.K. Sharma on the one hand and B.K. Sharma and Shanti Swarup on the other who, admittedly at present, is involved with the activities of NGO for a considerable time. Thus, it would be a reasonable conclusion to draw that the Writ Petition has been hardly filed in public interest but is a private interest litigation to give rise to business opportunities in a particular field. 25. In Ashok Kumar Pandey v. State of West Bengal [(2004) 3 SCC 349], this Court took a cautious approach while entertaining public interest litigations and held that public interest litigation is a weapon, which has to be used with great care and circumspection. The judiciary has to be extremely careful to see that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions of a few workmen in India and contains the names of a few doctors and workers. This document is neither signed by anybody nor does it give address of any workman or the industry/factory where such workman is working. It is expected of the petitioner to have made proper efforts in collection of such material before it moved this Court to treat this problem at the national level and had spent its judicial time. All the States in the country have been issued notices of this petition and they have denied the allegations. It was incumbent upon the petitioner thus to at least substantiate the averments in the petition by some cogent and documentary evidence actually related to the working conditions of the workmen in various factories in different States. In our view, the petitioner has miserably failed to discharge this onus. 27. The conduct of the petitioner before the Gujarat High Court appears to be contemptuous and certainly is an abuse of the process of the court in terms of the finding recorded by that Court which has attained finality. That petition was instituted at the behest of ESCL, while the present petition also does not demonstrate that intention of the pet ..... 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