OCCUPATIONAL DISEASES: IN-DEPTH

ANALYSIS

By:
ABHISHEK TIWARI
 INDEX

INDEX ....................................................................................................................................... 1

DECLARATION ..................................................................... Error! Bookmark not defined.

ACKNOWLEDGEMENT ....................................................... Error! Bookmark not defined.

INTRODUCTION ..................................................................................................................... 2

WHAT IS OCCUPATIONAL DISEASE? ................................................................................ 2

HISTORICAL BACKGROUND .............................................................................................. 3

COMMON OCCUPATIONAL DISEASES IN INDIA ............................................................ 4

JUDICIAL RESPONSES W.R.T. OCCUPATIONAL DISEASES .......................................... 5

CONCLUSION .......................................................................................................................... 9

BIBLIOGRAPHY .................................................................... Error! Bookmark not defined.

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 INTRODUCTION
Occupational health is the highest degree of physical, mental and social well-being of
workers in all occupations.1The insecure nature of the work pushes more and more workers
into taking hazardous employment opportunities both in the informal economy as well as
informal work in the formal sector.2 For the mentioned workers, employment fails to bring
about a successful escape from poverty, and further contributes to their existing
vulnerabilities. The functioning of workplaces in the past two years (2020-2021) has
intrinsically changed. Globalization and rapid industrial growth in the last few years have
further complicated the occupational health related issues.3

WHAT IS OCCUPATIONAL DISEASE?

Occupational diseases are dealt in Section 52-A of Employees State Insurance Act, 1948. The
expression “occupational disease” has nowhere been defined in the Act, but a list of these
diseases along with the employments peculiar to them are given in the third schedule of the
Act. Any employee who contracts such occupational disease while working in any of these
shall be deemed to have contracted an employment injury. The third schedule is divided into
three parts. For occupational disease mentioned in Part A no period of employment is
necessary; but in case of any disease mentioned in Part B of Schedule III, the insured person
must have served in the employment peculiar to that disease specified in Part C of that
schedule the period employment shall be such as is specified by the corporation in respect of
that employment. The contracting of an occupational disease peculiar to insured person’s
employment shall be deemed to be an employment injury arising out of and in the duration of
employment.

The Central government, state government and the corporation are empowered under sub-
section-(2) to add to the third schedule any occupational disease and the employment relating
thereto. But the corporation before adding any employment or an occupational disease in
relation to such employment in the IIIrd Schedule, shall give notice in the official gazette.
Any disease or employment so added shall form part of IIIrd Schedule and the provisions of
this Act shall apply to them. The exercise of power by the Central and the State Governments

1
Saha, Rajat Kumar. “Occupational Health in India.” Annals of global health vol. 84,3 330-333.
2
https://www.ask-ehs.com/blog/occupational-health-in-india/
3
Habibullah N. Saiyed&Rajnarayan R. Tiwari, “Occupational Health Research in India” Industrial Health
2004, vol 42, 141–148.

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is expressly made subject to the provisions of Section 3(3) of the Workmen’s Compensation
Act.

No disease other than the occupational disease specified in Schedule III is recognized by the
Act as an employment injury. In case of contracting of any other disease no benefit shall be
payable to an employee in respect of any such disease unless the disease is proved to be
directly attributable to a precise injury by mistake arising out of and the course of his
employment. Evidently, it would always be a question of fact and the onus would lie upon the
person claiming any such benefit to prove the casual connection between employment and
disease. The provisions of Section 51-A shall not apply to the case to which Section 52-A
applies.

HISTORICAL BACKGROUND
The subsistence of occupational diseases goes back as early on as when markets started
organising financial actions of individuals. Egyptian papyrus which dates back to the 4th
millennium BCE, mentions the injury of back pain from nonstop work. Hippocrates who
lived throughout the traditional age of Greece, also known as the Age of Pericles, also
mentioned about a grave case of lead colic. A well-known author, Pliny, and who was also a
naturalist also linked some precise diseases with occupations, like poisoning of miners during
the work due to the mercury present in the mines.

Methods of safeguard and airing in gold and silver mines were very primal throughout the
Middle Ages, which led to a lot of accidents and occupational diseases. Because of these
numerous studies were conducted. A well-known Italian physician Ramazzini, was the first to
give a broad explanation of occupational diseases in his book ‘De MorbisArtificumDiatriba’
(Treaty on Workers’ Diseases) during the 17th century. He wrote concerning 54 diseases
connected with various occupations. One of the diseases which was mentioned in his book
was the hazards of mercury on the Venetian mirror makers.

In Great Britain industrial revolution which took place in 1760, brought in an outbreak of
machines in the agrarian and handicraft sectors. Factories developed which led to a boost in
the number of workers in small spaces and unhygienic working conditions. Disclosure to the

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lethal factory substances and mechanics of the new machinery led to a rise in deaths and
accidents of the staff.

Squamous-cell carcinoma of the scrotum between the smokestack sweep boys resulting from
extended exposure to filth embedded into their skin is considered to be the first occupational
disease to be recognised in the modern era, and it was recognized in 1775 by Sir Percival
Pott, a British Surgeon. Ever since then, new diseases have appeared as a conclusion of
advances in machinery or because of changes in work or operational situation. Occupational
deaths took place amongst radiologists as a result of exposures to X-rays and other
radioactive radiations, causing Hemangiosarcoma are very good examples. It has been
reported that within 20 years of innovation of X-ray, about 100 radiologists died from its
contact. Hemangiosarcoma, a rare malevolent tumour of the liver, was discovered in 1974
among employees working in the polymerization of vinyl chloride monomer. The demanding
work surroundings of the modern era is now giving rise to a variety of occupational diseases
that were not even heard earlier, like musculoskeletal diseases, psychosocial troubles, and
work-related psychological health disorders. Lead poisoning and Anthrax have been regarded
as typical occupational diseases, though such incidents have now come down.

COMMON OCCUPATIONAL DISEASES IN INDIA

IIIrd Schedule of the Indian Factories Act, 1948 provides a list of occupational diseases in
India.They include poisoning by metals and compounds (such as lead, tetra-ethyl lead,
phosphorous, mercury, manganese, arsenic) Chrome ulceration, Anthracosis, Silicosis,
Cancer of the skin, Toxic Anaemia, Jaundice, dermatitis due to mineral oils, Byssinosis,
Asbestosis, Contact dermatitis etc.
• Skin Disorders (working for a long period outdoors develop skin disorders including
those are exposed to dangerous and harsh chemicals)
• Respiratory Illnesses (common in occupation those are exposed to toxic chemicals;
Industrial and construction workers are exposed most)
• Hearing Problems (common among workers exposed to loud machinery and
excessive noise throughout the day)
• Load carrying diseases (porters, labourers, construction workers can suffer from
over-exertion)

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 • Modern-day occupational diseases mental health disorders and work-related stress
(inadequate time in the disposal of worker, mismatch of skill, workplace isolation,
lack of appreciation is some of the contributing factors)
*Asthma, COPD, Dermatitis, and Musculoskeletal Disorders are very common.

JUDICIAL RESPONSES W.R.T. OCCUPATIONAL DISEASES

As seen above, the Employees’ State Insurance Act, 1948 under its S. 52A deals with
occupational diseases. The ESI Act is a legislation which aims to bring about social and
economic justice to the poor labour classes in India. Labour welfare, being an elastic term
differs from country to country in accordance with social customs, degree of industrialization
and educational development. The judiciary in India always while interpreting the term
‘Social Security Legislation’ considered it a piece of beneficial legislation, which is for
protecting the interest of the poorer sections of the society. The judiciary interprets it keeping
in mind the broad objectives of social security to be achieved by all the ‘Social Security
Legislations’ combined and in line with principles enshrined in the Constitution of India.4

In Rajangam, Secretary, Dist. Beedi Worker’s Union v. State of Tamil Nadu,5 the Supreme
Court ensured social security was provided to all workers, including children, because of the
health hazards involved in beedi manufacturing process. Children were employed in this area
of work and the working conditions of all of its employees was in question. The Apex court
held that, every employee, including children, must be insured at least Rs. 50,000/- for which
premium is to be paid by the employer only.

In Occupational Health and Safety Association v. Union of India,6 the petitioner

recommended a few suggestions for the upliftment of workers, which the Supreme Court
urged the Ministry of Labour to enforce. The following where the suggestions:
1. Comprehensive medical checkup of all workers by doctors appointed in consultation
with the trade unions. First medical check up to be completed within six months and
to be done on yearly basis.
2. Free and comprehensive medical treatment to be provided to all workers found to be
suffering from an occupational disease, ailment or accident, until cured or until death.

4
https://jcil.lsyndicate.com/wp-content/uploads/2017/11/Parmila.pdf
5
,1992 SCC (1) 221
6
2014 STPL (web) 68 SC

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 3. Services of the workmen not to be terminated during illness and to be treated as if on
duty. 4. Compensation to be paid to workmen suffering from any occupational
disease, aliment or accident in accordance with the provisions of the laws.
4. Modern protective equipment to be provided to workmen as recommended by an
expert body in consultation with the trade unions.
5. Strict control measures to be immediately adopted for the control of dust, heat, noise,
vibration and radiation as recommended by the National Institute of Occupational
Health (NIOH) Ahmadabad, Gujarat.
6. All employees to abide by the Code of Practice on Occupational Safety and Health
Audit as developed by the Bureau of Indian Standards.
7. Safe methods be followed for the handling, collection and disposal of hazardous
waste to be recommended by NIOH.
8. Appointment of a Committee of experts by NIOH including therein Trade Union
representatives and Health and Safety NGO’s to look into the issue of Health and
Safety of Workers and make recommendations

In Calcutta Electricity Supply Corporation v. Subhas Chandra Bose,7 Justice K.

Ramaswamy, while interpreting the scope of provisions in the Constitution, opined that
Health is a basic Human Right protected by the Universal Declaration of Human Rights
under its Articles 22 to 28 and the International Covenant on Economic Social and Cultural
Rights. Further, it is a Fundamental Right of Workmen. He observed that preserving of health
is a constitutional goal andobserved: “(Health is not) absence of disease or infirmity but a
state of complete physical, mental and social wellbeing.”

In Consumer Education & Research Centre v. Union of India,8 the Supreme court was
deciding a public interest litigation relating to the rights of employees in the manufacturing
industry of asbestos with respect to their working conditions and health. The Hon’ble court
reiterated that health is an essential facet of Right to Life (Article 21). The Right to Life
includes to have a meaningful existence along with robust health without which a workman
would lead a life of misery and denudes his livelihood. The economic need to work in an
industry should not be against the health of the worker. Treatments and tests for improving of
health of workers will make their service more efficient. The moral, legal and constitutional

7
(1992) 1 SCC 441
8
1995 SCC (3) 42

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concomitant duty to make these treatments continuous during service or after retirement is on
part of both employee and the State. The Supreme Court observed that, the right to human
dignity, development of responsibility, social protection, right to rest and leisure are a
worker’s fundamental human rights, as assured by the Charter of Human Rights, Articles 38
and 39 and the Preamble of the Constitution. The ESI and WCAprovide for compensation
during the term of employment for the injury or death caused, it doesn’t contain provision for
payment after the cessation of the employment. The Court observed that it is necessary to
protect employees from irrespective dates of cessation of their employment. While allowing
the petition, the court held that, in case of a positive finding, that all or any of the workmen
are suffering from occupational health hazards, each such worker shall be entitled to
compensation in a sum of Rs 1 lakh payable by the factory or industry or establishment
concerned within a period of three months from the date of certification by the National
Institute of Occupational Health.

In Bandhua Mukti Morcha v. Union of India,9the Supreme court decided on the release of
bonded labourers from stone quarries in Haryana. The court appointed a committee to look
into the work conditions. The report produced by the committee stated, the air was
overloaded with dust, making it hard to breathe,due to a huge number of stone-crushing
machines. Workers were forced to work and not allowed to leave the stone-quarries. They did
not even have access to clean water to drink. The workers were living in jhuggis with stones
piled one on top of the other as walls, and straw acting as the roof, which clearly did not
provide them any protection against the sun or the rain. In fact, a few workers were suffering
from diseases like tuberculosis. No compensation was paid for injuries or accidentswhich
occurred in the course of their employment. The court heldthe fundamental right to live with
dignity is provided under Article 21 and also enshrined in the Directive Principles of State
Policy under Articles 39, 40 and 42 and therefore, the health and strength of workers, men
and women, and children of tender age, against abuse, opportunities and facilities for children
to develop in a healthy manner and in conditions of freedom and dignity, educational
facilities, just and humane conditions of work and maternity relief are the minimum
requirements which must exist.The State is obligated to ensure enforcement and inaction of
legislation made by it for improving the work conditions which amount to violation under
Article 21, and also the Article 256 which provides that the executive power of every state

9
1984 AIR 802.

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shall be so exercised as to ensure compliance with laws made by Parliament and any existing
laws which apply in that state.

In thePeople’s Union for Democratic Rights v. Union of India,10 the Supreme Court had
again reiterated that the State is under an obligation to ensure that there is no violation of the
fundamental right of any person, particularly the weaker sections of the community who is
not capable to wage a legal battle against a strong and powerful opponent.

In Mangesh Salodkar v. Monsanto Chemicals of India Ltd.,11 the company manufactured

pesticides and it was alleged that a particular worker had suffered a brain haemorrhage as a
result of the work conditions. Though, he survived and was paid Rs. 3 Lakhs as
compensation, he suffered from major side-affects.Therefore, he filed a petition in the High
court. The court appointed a commission. During the pendency the dispute, the employer
agreed to pay an additional Rs. 17.80 Lakhs to the mentioned employee and Rs. 7.40 Lakhs
to other employees who had been affected. The commission filed the report. Since the dispute
had been resolved, the court was not called upon to determine that aspect. However, the court
held that the workers had a fundamental right to health in the workplace. It further observed
that this case demonstrates, how the absence of updated medical records results in a denial of
access to justice. In the absence of such information, workers cannot practically attempt to
redress the systemic failure on the part of the management to maintain working standards.
The court also observed how there is difficulty with the implementation of the legislations.
For example, if an employer has not deposited his ESI contribution, the employee cannot
avail the benefits. Likewise, many occupational diseases are not covered by the Act and
occasionally it is difficult to prove in court that a disease has occurred because of
employment at a particular workplace.

In Jyothi Adema v. Plant Engineer,12 a worker died of a heart attack in the workplace. The
Supreme Court, by relying on the company doctor’s certificate, held that since the deceased’s
job did not involve any stress and therefore, was not entitled to compensation.

10
(1982) 2 SCC 235
11
2007 (2) BomCR 883.
12
2006 5 SCC 513

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In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali,13 a worker died of a heart
attack in the workplace. The Apex Court held that the responsibility was on the worker’s heir
to prove that the heart attack had been caused by the work.

CONCLUSION
The burden on the heir to prove that the heart attack was caused by work is not practically not
possible in many cases. Therefore, it can be said that even the supreme court along with
passing some excellent judgements to protect the rights of workers has also limited this scope
of legislations while dealing with individual cases.Today, the need for a Human Rights-based
approach to social security is greater than ever.Unless a Human Rights framework is applied
to the design, implementation, monitoring and evaluation of social security programmes, the
impact and outcomes of social security will not be equitable or sustainable, and the poorest
and most vulnerable will be left behind.Additionally, factors like increasing literacy /
education are also ensuring worker awareness and more and more “Right to Know” demands
from workers. Nongovernmental organizations (NGO), media and employee pressure groups
are also playing a positive role in this matter.

13
2007 11 SCC 668.