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Occupational Health Laws in India-How operational are they?

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Seetha Sriraman, 3rd BSL LLB, ILS Law College, Pune

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What is Occupational health?
Working conditions and the nature of employment tend to have major repercussions on the health of a workman. The concept of ‘Occupational health’ has evolved from work-related ailments. Occupational health broadly means any injury, impairment or disease affecting a worker or employee during his course of employment.
Further, it not only deals with work-related disorders but also encompasses all factors that affect community health within it. The inadequate surveillance of employees is the most important reason for increased prevalence of work related and other non-communicable life style diseases at work place1.

Since seventy-five percent of the global workforce lives in the third world countries, more than 125 million workers are victims of occupational accidents and diseases every year2. With the changing job patterns, working relationships, the rise in self-employment, outsourcing of work, etc. there has been a problem in the management of occupational safety and health risks. Nevertheless particular attention needs to be paid to the health and safety of workers in ‘hazardous occupations’ and especially the migrant workers and other vulnerable persons. Work related hazards and occupational diseases in small-scale industries and agriculture are likely to increase as the occupational safety and health services are out of reach in these occupations. However, with increasing Public Interest Litigations (PILs), Proactive legislations and continual struggle by environmental activists, the awareness with respect to occupational health concerns are gaining more ground.

The Constitutional aspects of Employees’ right to health:
Article 21 of the Indian Constitution guarantees the protection of life and personal liberty of a person. Various Supreme Court judgments have, under this "right to life" upheld the right to employees’ health. For instance, in the case of Consumer Education Research Center Vs. Union Of India3 the Supreme Court has held that, "Occupational accidents and diseases remain the most appalling human tragedy of modern industry and one of its most serious forms of economic waste." Further the judgment says, "Therefore, we hold that right to health, medical aid to protect the health and vigor to a worker while in service or post retirement is a fundamental right under Article21, 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."

The Indian Constitution has shown notable concern to workmen in factories and industries as envisaged in its Preamble and the Directive Principles of State Policy. The Directive Principles of State Policy provide:
a) For securing the health and strength of workers, men and women,
b) That the tender age of children is not abused,
c) That citizens are not forced by economic necessity to enter avocations unsuited to their age or strength,
d) Just and humane conditions of work and maternity relief are provided and,
e) That the Government shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry.

Hence, the Government, Central or State, while drafting policies for the safety and health of workers must keep in mind the Directive Principles in accordance with the nature of employment and must be in consultation with workers' welfare organisations, environmental activists, etc.

Occupational health Laws:
The Factories Act, 1948, the Mines Act, 1952,The Dock Workers (Safety, Health & Welfare) Act, 1986 are some of the laws, which contain provisions regulating the health of workers in an establishment. Whereas the Employees State Insurance Act, 1948 and the Workmen’s Compensation Act, 1923 are compensatory in nature.

Health Provisions under the Factories Act, 1948:
The Factories Act, 1948 was enacted with the object of protecting workers from subjecting to unduly long hours of bodily strain or manual labour. It lays down that employees should work in healthy and sanitary conditions so far as the manufacturing will allow and that precautions should be taken for their safety and for the prevention of accidents.

The Act defines a ‘worker’ as any person employed directly or through any agency (including a contractor), whether for remuneration or not in any manufacturing process or in any work incidental to or connected with the manufacturing process. It is required that work performed should be connected with the product which is produced in the manufacturing process.

Section 10 of the Act lays down that a State Government may appoint qualified medical practitioners as ‘certifying surgeons’ to discharge the following duties:
a) Examination and certification of young persons and examination of persons engaged in ‘hazardous occupation’.
b) Exercising medical supervision where the substances used or new manufacturing processes adopted may result in a likelihood of injury to the workers.
c) Exercising medical supervision in case of young persons to be employed in work likely to cause injury.

Chapter IX of the Act lays down in detail the provisions relating to the health, safety and welfare measures, namely, cleanliness, level of ventilation, diversion of dust and fumes, provision of artificial humidification, sanitation, fencing of machinery, among others. There are also provisions that prohibit women n\and children from working in certain occupations.
27 processes and operations have been identified as dangerous in The Maharashtra Factories Rules, 1963. These Rules lay down detailed instructions regarding preventive measures, protective devices, cautionary notices as well as medical examination of workers. The State Governments have adopted these rules depending on their local needs. The Act lists 29 occupational diseases and obliges the manager of a factory and medical practitioners to notify the Chief Inspector of Factories if any worker contracts any of the diseases. The Rules are very comprehensive in laying down special provisions with respect to health, safety and welfare of workers including medical examinations, setting up of Occupational Health Centers, etc. The only lapse has been its ineffective implementation since most of the discretionary powers lie in the hands of the Inspectors and occupiers. Although very few cases of occupational diseases are reported in factories, the working conditions in most of the factories handling hazardous chemicals have higher risk potential.

The Employees’ State Insurance (ESI) Act, 1948:
It is a social security legislation enacted with the object of ameliorating various risks and contingencies sustained by workers while serving in a factory or establishment.

It is designed to provide cash benefit in the case of sickness, maternity and employment injury, payment in the form of pension to the dependents of workers who died of employment injury and medical benefit to workers. It recognizes the contributory principle against such contingencies, provides protection against sickness, replaces lumpsum payments by pension in the case of dependents benefit and places the liability for claims on a statutory organization4.

The Act does not cover ‘seasonal employments’. It defines ‘employment injury’ as personal injury to employees, caused by accident or occupational diseases, in an insurable employment.

The Act lays down provisions to set up an ESI Corporation, to promote measures to improve health and welfare of insured persons and a Medical Benefit Council to advise the Corporation on medical benefits, certification, etc. The Medical Boards have to ascertain the percentage of disability of injured workers before submitting their report to the Corporation in order to grant compensation to the workers. An injured worker has to wait for months before the Medical Board calls him for a check-up5.
The main source of revenue for the ESI Fund is the Contribution paid by the employers and the employees. The purposes for which the Fund is to be used are numerous. It includes payment of benefits, provision of medical treatment to insured families, meet charges in connection with medical treatment, maintenance of hospitals, dispensaries, etc. In existing conditions there is gross misuse of these funds.

The discretionary powers with respect to using the Fund amount lie solely with the Corporation along with the State Governments. According to the Occupational Health and Safety Center, Mumbai, the Corporation has only 4 occupational disease centers for workers.

Section 39 of the Act makes the employer primarily liable for the payment of contribution on behalf of himself and his employees towards the ESI Fund. In case of misuse of the contribution by employer, the employee can sue the employer in the Employees’ State Insurance Court set up by the respective State Government.

Where an employee makes a claim on the grounds of sickness, disablement or maternity, it has to be made against the ESI Corporation and not against the employer. The process involved to obtain the compensation, is tedious. Such a lapse renders the very object of the Act to provide for quick claims as unreal.

Under the Workmen’s Compensation Act, 1923, there exists a legal obligation on the employer to pay compensation to workmen involved in accidents arising during the course of their employment. The prerequisites for payment of compensation to such workmen are as follows:
* Personal injury must be caused.
* There must be temporary, total or partial disablement due to an accident, which also includes occupational diseases.
The State Government is to appoint a Commissioner to decide the liability of an employer to pay compensation, the amount and duration of compensation, among other issues. An appeal may lie to the High Court in case the applicant is grieved with the Commissioner’s orders.

Compensation is decided on the nature of injury caused. Where the injury from an accident results in the death of the workman, the minimum compensation payable is around Rs.50, 000 and the maximum may extend to Rs. 3 lacs. In case of permanent total disablement and permanent partial disablement, compensation may extend to Rs.60, 000, depending on its nature. Further the amount of compensation is calculated on the wage-group to which the workman belongs and the time-period for which he has worked.

There is no comprehensive law on occupational health, though the Central Government has in its various policies stressed the need to effectively implement the existing laws.

Conclusion:
A broad insight into the existing occupational health laws in India explicably brings out the verity of non-implementation of such laws, considering the present scenario with respect to the workmen’s health conditions. The workmen in dangerous employments are exposed to substances like asbestos, chromium and silica dust and are vulnerable to respiratory diseases and cancer. There is need to preserve the good health of workmen by ensuring safe and healthy working conditions and provide prompt compensation on account of injury or occupational disease.

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References:
1. Kulkarni GK. "Occupational health service - Need for competency development". Indian J Occup. Environ Med 2005; 9:5-6.
2. Kanhere, Vijay; "Occupational Health, Safety and Laws"; Combat Law, Nov.-Dec. 2005, Pgs. 84-87.
3. Consumer Education Research Center Vs. Union of India, AIR 1995 SC 922.
4. Pillai, KM; "Labour and Industrial Law".
5. Kanhere, Vijay; "ESIS- A fraud on Workers"; From the Lawyers Collective, May 1992, Pgs.24-25.

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The  author can be reached at :
seetha@legalserviceindia.com

 

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