Of Manholes and Use of Manual Labour: Courts and State Impunity

Today's Hindu has a no-holds barred piece by Agrima Bhasin on the inhuman working conditions for sewage workers where a tragic combination of caste-inequities, prejudices and state complicity has resulted in frequent fatalities.

Agrima reports:

“Two of the men, Ashok and Chhotu, entered the sewer but did not return. The other two, Rajeshwar and Satish, went in to look for their colleagues. Three of the four men, assaulted by the poisonous rush of gases, lost their lives on the spot. Chhotu survived and was pulled out. Ashok, Rajeshwar and Satish became a statistic alongside other sewage workers like Robert and Shekhar who also died of asphyxiation while unblocking a sewage tank in a private hotel in Chennai in April this year.

The resident electrician at IGNCA had roped in housekeeping staff to unblock the sewer on a Sunday afternoon on the cheap. The four men, all Dalits, were not provided with safety gear. They entered the sewer with only a handkerchief for protection. They were hit by the foul-smelling methane gas and delayed in their escape by the thick muck that lines the sewer. That three out of the four were employees of the IGNCA is a fact that officials-in-charge now unashamedly deny.”

This tragedy is particularly gut-wrenching for the brazen indifference of governmental organisations towards strictures of constitutional courts of the country that it reveals.

Gujarat High Court while adjudicating a Public Interest Litigation filed by Kamdar Swasthya Suraksha Mandal had held in 2006 [Praveen Rashtrapal, I.R.S. v. Chief Officer, Kadi Municipality, (2006) 3 GLR 1809]:

“The sewerage workers are the citizens of this country and they are entitled to enjoy fundamental right as provided in the Constitution of India. It is a cardinal principle of the service jurisprudence that the employer has to take adequate care of the safety and well being of his employee. He cannot expose an employee performing duties which are dangerous in nature and likely to adversely affect his health or life. The employer has to provide him with all the safety measures and if he is not able to make such provision, he has to refrain from asking such employee to discharge these dangerous duties. This is not only a moral obligation on the employer, but it is a mandate given to him by labour's safety- oriented Statutes, like the Factories Act. May be the Bombay Provincial Municipal Corporation Act, the Gujarat Municipalities Act etc., are not having specific provisions like the Factories Act, but then Article 21 of the Constitution of India is always there to protect the employees of local civic bodies and also the contractors whose service are hired by the civic bodies.”

In light of this, the Court further directed:

1. Unless it was absolutely necessary to have sewerage cleaning operations done manually, the civic bodies in the state must, as far as possible, buy cleaning equipments to do the job.
2. The civic bodies are directed to discontinue the practice of engaging contractors for this purpose.
3. Whenever, a sewerage worker is required to enter the manhole before his entry into manhole, proper checking to be made to see that he is not likely to be affected by the poisonous gases.
4. Moreover, he shall be provided with all safety equipments such as oxygen mask, helmet, goggles, gumboots, air blower, safety belt, torch etc. The office on the spot should enforce the workers to abide by the safety Rules and Regulations and to see that he can properly utilize the safety equipments that are given to him.
5. It is found that there is possibility of any kind of accident or presence of poisonous gas is noticed, the worker should not be allowed to go inside the manhole. If the higher authority insists upon worker entering the manhole, such order should be given in writing and in case of any accident, the responsibility would lie on the concerned officer as well as civic body, and it will expose them to civil liability as well as criminal prosecution.
6. Before commencement of the cleaning operation, the officers on the spot should compulsorily do the sampling of the water as well as gas and if it is found that either of it is likely to adversely affect the health of the worker, he should not be allowed to enter the manhole.
7. A small pocket book should be provided to the workers containing information relating to manhole work, preventive measures and the contact numbers of the emergency. They may be impressed upon to follow each and every direction contained in such book.
8. The worker should be given training on the issues relating to health and safety. Training sessions should be held regularly.
9. The Government should form Safety Committees at different levels to monitor the safety measures and to supervise the training programmes. The Committee will be responsible for taking care of the safety aspects of the workers and the preventive measures to be taken.
10. Every civic body shall compulsorily have the periodical medical checkup of the manhole workers. If the worker is found to be suffering from adverse effect of the cleaning operation, he should be immediately transferred to some other department.
11. The civic bodies shall maintain separate manhole department so as to have intensive department-wise monitoring. Such department can be of help in solving problems relating to sewerage workers, especially as their work is involving high-degree risk.
12. The civic bodies shall provide basic facilities and amenities including decent and comfortable accommodation for their better living, eduction of their family members and to give them decent and dignified living.
13. The civic bodies shall compulsorily have such worker insured and to pay the premium, the worker should be availed of various schemes from Social Welfare Department, such as coverage of insurance, payment of compensation, in the event of accident happening, and in the case of death, to give compassionate appointment to the dependent of the deceased worker subject to such candidate passing requisite qualifications for the employment.
14. The aforesaid safety measures as well as service benefits should be made available to them over and above the benefits which are legally permissible to them under various Statutes and various Government beneficial Schemes.

This was supplemented by the Order of the Division Bench of Delhi High Court in National Campaign for Dignity and Rights of Sewerage and Allied Workers vs Delhi Jal Board dated 20.8.2008 which directed that:

(a) The medical examination and medical treatment will be given free of charge to sewer workers and the treatment will continue for all such workers found to be suffering from an occupational disease, ailment or accident until the workman is cured or until death.

(b) The services of the sewer workers are not to be terminated, either by the DJB or the contractors engaged by them, during the period of illness and they shall be treated as if on duty and will be paid their wages.

(c) Compensation shall be paid by the DJB and recoverable from the contractors, if permissible in law, to all the workmen suffering from any occupational disease, ailment or accident in accordance with the provisions of the Workmen's Compensation Act, 1923.

(d) The DJB shall pay on the death of any worker, including any contract worker, an immediate ex- gratia solatium of Rs. One lac with liberty to recover the same from contractors, if permissible in law.

(e) The DJB shall pay / ensure payment of all statutory dues such as Provident Fund, Gratuity and Bonus to all the sewer workers, including contract workers, as applicable in law.

(f) The DJB shall provide as soon as possible modern protective equipments to all the sewer workers in consultation with the petitioner organization.

(g) The DJB shall provide soap and oil to all the workmen according to the present quota, but on monthly basis and not at the end of the year.

(h) The DJB shall provide restrooms and canteens, in accordance with the DJB model rules, including therein first-aid facilities, safe drinking water, washing facilities, latrines and urinals, shelters, creches and canteens as set out in the model rules. There are to be provided at what is known as 'stores' which are the places where the workers assemble to give their attendance and from where they depart to their respective work sites.

(i)The DJB shall provide all workman, including contract workmen, with an accident-card-cum- wage-slip as set out in cl. 8 of the C.P.W.D./PWD (DA)/Delhi Jal Board Contractors Labour Regulations (for short "Labour Regulations").

(j) The DJB shall provide all workers, including contract workers, employment cards as set out in cl. 9 of the Labour Regulations and, on termination of services provide the contract workers and others with a service certificate as set out in cl. 10 of the Labour Regulations.

(k) The DJB shall authenticate by signing the payment of wages register for contract workers in terms of cl. 5 of the Labour Regulations.

(l) The DJB is directed to ensure that the ex-gratia payment in case of deaths of sewer workers has been paid to the families of deceased workmen and in case such compensation is not paid, release the same within a period of eight weeks.

(m) NDMC is directed to pay ex gratia payment of Rs. one lac each in respect of the accident of 7th December, 2003 where three persons working under the NDMC contractors died, with liberty to recover the same from the contractor, if permissible in law.

(n) The DJB and NDMC are directed to hold an inquiry into deaths of sewer workers referred to in paragraphs 15 and 16 of the written submission of the petitioner dated 22nd July, 2008 and submit a report to this Court within a period of eight weeks. If it is found that the contract workers in question were working under the contractors employed by NDMC/DJB, ex-gratia compensation of Rs. One lac shall be released forthwith to the families of the victims subject to right of recovery from contractors in accordance with law.

(o) the respondents are directed to place on record the proposals and plans to phase out manual work and replace it with mechanized sewer cleaning, as envisaged by DJB as well as NDMC, which shall be done within three months.”

This was not all. In response to news reports on death of 6 sewage workers in Delhi in the month of March 2009, the Court issued notices to the CEO, DJB and the Vice Chairman, DDA to show cause as why action for contempt should not be initiated against them under the Contempt of Courts Act for violating its earlier and directed DDA and DSIDC to deposit the amount of compensation of Rs.2.5 lacs per worker with the High Court Legal Services Committee (DHCLSC) for being paid to the families of the victims within four weeks.

When these orders were challenged in the Supreme Court, Justice G. Singhvi observed in Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers (2011) 8 SCC 568 :

“It is the duty of the judicial constituent of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity. Given the option, no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others. Unfortunately, for last few decades, a substantial segment of the urban society has become insensitive to the plight of the poor and downtrodden including those, who, on account of sheer economic compulsions, undertake jobs/works which are inherently dangerous to life. People belonging to this segment do not want to understand why a person is made to enter manhole without safety gears and proper equipments. They look the other way when the body of a worker who dies in the manhole is taken out with the help of ropes and cranes. In this scenario, the Courts are not only entitled but are under Constitutional obligation to take cognizance of the issues relating to the lives of the people who are forced to undertake jobs which are hazardous and dangerous to life.”

The Apex Court not only endorsed the orders of the Delhi High Court but also added for good measure that:

“The High Court could have taken note of the fact that this Court had approved the award of compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in the cost of living and done well to award compensation of atleast Rs.5 lacs to the families of those who died due to negligence of the public authority like the appellant who did not take effective measures for ensuring safety of the sewage workers.”

Yet the use of manual labour for cleaning of manholes and sewer pipes continue unabated. Kamdar Swasthya Suraksha Mandal estimates that around 500 sewer workers die every year in the country. Sadly, as the IGNCA tragedy shows, government agencies have been among the worst offenders that have continued to use manual labour and flout Court orders with impunity. As Professor Baxi had argued, the deeper scrutiny of impoverishment in India reveals a case of regression and not just failure of development.

For more on the state of labourers used for cleaning sewers, check this piece from Tehelka.