Hazardous Processes and Dangerous Operations

When it goes wrong, or when the law is silent, act quickly. Section 86 inquiry, section 87 emergency standards, section 88 permissible limits.

What the Code does not supply is the money. Nothing in these sections tells a person injured by an escape what he may recover. That comes from the general law, and the leading authority is dealt with at the end of this chapter.

Some words this chapter uses

Hazardous process, section 2(1)(za), is any process or activity in relation to an industry or plantation specified in the First Schedule where, unless special care is taken, the raw materials, intermediate or finished products, by-products, hazardous substances, wastes or effluents, or the spraying of pesticides, insecticides or chemicals, would (i) cause material impairment to the health of the persons engaged in or connected with it, or (ii) result in the pollution of the general environment.

Hazardous substance, section 2(1)(zb), is any substance, or such quantity of a substance as the appropriate Government prescribes, or a preparation, which by reason of its chemical or physio-chemical properties or handling is liable to cause physical or health hazards to human beings, or may cause harm to other living creatures, plants, micro-organisms, property or the environment.

Dangerous operation is the subject of section 82: a manufacturing process or operation exposing persons employed in it to a serious risk of bodily injury, poisoning or disease.

On-site emergency plan is the plan for dealing with an accident within the factory.

Extraordinary situation is section 86's phrase and is not defined.

Absolute liability is the rule of civil liability laid down in the case at the end of this chapter.

Section 82: dangerous operations

The appropriate Government may by rules make provision, in relation to any factory or class or description of factories in which a manufacturing process or operation is carried on which exposes any of the persons employed in it to a serious risk of bodily injury, poisoning or disease, for:

• (a) specifying the manufacturing process or operation and declaring it to be dangerous;
• (b) prohibiting or restricting the employment of pregnant women in that process or operation;
• (c) the periodical medical examination before, or at any time during, the employment to ascertain the fitness of a worker or employee for the employment, at the cost of the occupier; and
• (d) welfare amenities, sanitary facilities, protective equipment and clothing, and any other requirement necessary for dangerous operations.

Three points. Clause (a) shows the technique: the Code does not name the dangerous operations; the rules declare them. Clause (b) is one of only two places in the Code where a class of persons may still be kept out of work by reason of a physical condition, the other being section 78 for building work, and it is confined to pregnant women in a dangerous operation. Clause (c) puts the cost on the occupier, which matters: a medical examination the worker pays for is a medical examination that does not happen.

Note the difference between section 82 and the hazardous process sections. A dangerous operation is about risk to the persons employed. A hazardous process under section 2(1)(za) is about material impairment of health or pollution of the general environment, and it is tied to the First Schedule.

Section 83: the site appraisal committee

Section 83(1). The appropriate Government may constitute one or more site appraisal committees, consisting of a chairman and other members, for such purpose as may be prescribed, including to consider and give recommendations on an application for grant of permission for the initial location of a factory involving a hazardous process, or for the expansion of such a factory.

Section 83(2). The committee shall make its recommendation within thirty days of the receipt of the application, in the prescribed form.

Two things follow, and the second is a fair criticism.

The subject is location. Bhopal was a plant beside a settlement, and the single most consequential decision about a hazardous factory is where it stands.

The committee only recommends, and the Code does not say the recommendation binds anyone. Section 83 does not require the permission under section 79 to follow it, nor state what happens if the committee reports after thirty days. The composition is left entirely to the appropriate Government beyond the words a chairman and other members.

Section 84: compulsory disclosure by the occupier

This is the longest section in the Part and the one to know. It has seven sub-sections and each imposes a distinct duty.

Section 84(1), disclosure of dangers. The occupier of every factory involving a hazardous process shall disclose, in the manner prescribed by the State Government, all information regarding dangers, including health hazards and the measures to overcome them, arising from the exposure to or handling of the materials or substances in manufacture, transportation, storage and other processes, to:

• the workers employed in the factory;
• the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator;
• the local authority within whose jurisdiction the factory is situated; and
• the general public in the vicinity.

Four audiences, and the last two are the point of the section. The people most likely to be killed by a chemical factory are the people living next to it, and until they are told what is inside it they cannot protect themselves, object to the siting or evacuate sensibly.

Section 84(2), the safety policy. At the time of registering the factory the occupier shall lay down a detailed policy with respect to the health and safety of the workers, intimate it to the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator and the local authority, and thereafter, at prescribed intervals, inform them of any change in it.

Section 84(3), wastes. The information under sub-section (1) shall include accurate information as to the quantity, specifications and other characteristics of wastes and the manner of their disposal.

Section 84(4), the on-site emergency plan. Every occupier shall, with the approval of the Chief Inspector-cum-Facilitator, draw up an on-site emergency plan and detailed disaster control measures, and make known to the workers and to the general public living in the vicinity the safety measures required to be taken in the event of an accident.

Section 84(5), thirty days' notice before a hazardous process. Where a factory proposes to engage in a hazardous process at any time after the commencement of the Code, the occupier shall, within a period of thirty days before the commencement of the process, inform the Chief Inspector-cum-Facilitator of the nature and details of the process, in the prescribed form and manner.

Section 84(6), the sanction, and it is a strong one. Where an occupier contravenes sub-section (5), the licence issued under section 79 shall be liable for cancellation, notwithstanding any penalty to which the occupier is subject under the Code.

Section 84(7), handling and disposal. The occupier shall, with the previous approval of the Chief Inspector-cum-Facilitator, lay down measures for the handling, usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside it, and publicise them among the workers and the general public living in the vicinity in the prescribed manner.

Read sub-sections (4) and (7) together. Both require the Chief Inspector-cum-Facilitator's approval, and both require the result to be made known to the public outside the gate. The Code treats the neighbourhood of a hazardous factory as a party with a right to know.

Section 85: the occupier's specific responsibilities

Every occupier of a factory involving any hazardous process shall:

• (a) maintain accurate and up to date health records or medical records of the workers exposed to any chemical, toxic or other harmful substances manufactured, stored, handled or transported, and such records shall be accessible to the workers, subject to conditions prescribed by the State Government;
• (b) appoint persons possessing prescribed qualifications and experience in handling hazardous substances, competent to supervise such handling within the factory, and provide at the working place all the necessary facilities for protecting the workers in the manner prescribed by the State Government. Proviso: where any question arises as to the qualifications and experience of a person so appointed, the decision of the Chief Inspector-cum-Facilitator shall be final;
• (c) provide for medical examination of every worker (i) before he is assigned to a job involving the handling of, or working with, a hazardous substance, and (ii) while continuing in such job, and after he has ceased to work in such job, at intervals not exceeding twelve months, in the manner prescribed by the State Government.

Clause (a)'s last words are the important ones. The records shall be accessible to the workers. A health record the worker cannot see is a record kept for the employer's defence rather than for the worker's health, and occupational disease is precisely the field in which the evidence lies in the employer's filing cabinet.

Clause (c) has three moments and students usually give two. Before assignment, during the job, and after he has ceased to work in that job, at intervals not exceeding twelve months. The third is there because the characteristic harms of hazardous work appear years later.

Sections 86 to 88: inquiry, emergency standards, exposure limits

Section 86, inquiry by the National Board. In the event of an extraordinary situation involving a factory engaged in a hazardous process, the Central Government may direct the National Board to inquire into the standards of health and safety observed in the factory, with a view to finding the causes of any failure or neglect in the adoption of measures or standards prescribed by the State Government for the health and safety of the workers employed in the factory or the general public affected or likely to be affected, and for the prevention of recurrence of such situations in that factory or elsewhere. Sub-section (2): the recommendations of the National Board shall be advisory in nature.

That last line is the criticism of the section written into the section. An inquiry after a disaster that ends in advice is not an enforcement mechanism.

Section 87, emergency standards. Where the Central Government is satisfied that no standards of safety have been prescribed in respect of a hazardous process or class of hazardous processes, or that the standards so prescribed are inadequate, it may direct the Directorate General Occupational Safety and Health, formerly the Directorate General of Factory Advice Service and Labour Institutes, or any institution authorised in matters relating to standards of safety in hazardous processes, to lay down emergency standards. Sub-section (2): those standards shall, until incorporated in the rules, be enforceable and have the same effect as if they had been incorporated in the rules.

This is a genuinely useful power. It fills a gap immediately and with the force of rules, without waiting for rule making.

Section 88, permissible limits. The maximum permissible limits of exposure of chemical and toxic substances in a manufacturing process in any factory shall be of the value as may be prescribed by the State Government.

One line, and it delegates the most technical and most important numbers in the whole subject. Note also that it is the State Government that prescribes them, so the permissible concentration of a substance may differ from State to State.

The civil liability that follows: absolute liability

None of these sections says what an injured person may recover. That is the general law, and the leading authority arose from an escape of gas in Delhi a year after Bhopal.

Facts. M.C. Mehta v. Union of India, (1987) 1 SCC 395, was decided on 20 December 1986 by a Bench of five judges. Oleum gas escaped from the Shriram Foods and Fertiliser Industries plant at Delhi in December 1985, injuring people in the neighbourhood. Proceedings under article 32 of the Constitution raised the question of the liability of an enterprise carrying on a hazardous or inherently dangerous activity in a populated area.

Held. The Court laid down the rule of absolute liability. An enterprise engaged in a hazardous or inherently dangerous industry must be absolutely liable to compensate for such harm, and it is no answer for the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Such an enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and that liability is not subject to any of the exceptions which operate in relation to the tortious principle of strict liability under the rule in Rylands v. Fletcher.

How to use it, and how not to. It is a tort and article 32 decision, not a construction of any labour statute, and an answer should say so. It does not create a duty under the Code and it does not decide who the occupier is. What it does is supply the consequence that these sections are trying to prevent: an enterprise which chooses to carry on a hazardous activity carries the whole cost of the harm it causes, whether or not it was careful. Sections 82 to 88 are the regulatory half of the same idea, requiring the enterprise to disclose, to plan, to supervise and to examine; absolute liability is what remains when all of that has failed.

A worked example

Vidarbha Organics runs a factory that manufactures an intermediate listed in the First Schedule, on a plot two hundred metres from a residential colony. It proposes to add a new process using a chlorinated solvent.

Is this a factory involving a hazardous process? It is if the process or activity relates to an industry specified in the First Schedule and, unless special care is taken, the materials, products, by-products, wastes or effluents would cause material impairment to the health of the persons engaged in or connected with it or result in pollution of the general environment: section 2(1)(za).

Before the plant was located there, what should have happened? Under section 83 the appropriate Government may constitute a site appraisal committee to consider and recommend on an application for permission for the initial location of a factory involving a hazardous process, or for its expansion, and the committee must recommend within thirty days of receiving the application.

What must it tell the colony? Under section 84(1), all information regarding dangers, including health hazards and the measures to overcome them, arising from exposure to or handling of the materials in manufacture, transportation, storage and other processes, to the workers, the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator, the local authority and the general public in the vicinity. That information must include, under sub-section (3), accurate information as to the quantity, specifications and characteristics of wastes and the manner of their disposal.

And in case of an accident? Under section 84(4) the occupier must, with the approval of the Chief Inspector-cum-Facilitator, draw up an on-site emergency plan and detailed disaster control measures, and make known to the workers and to the general public living in the vicinity the safety measures to be taken in the event of an accident.

When may it start the new process? Not before informing the Chief Inspector-cum-Facilitator of the nature and details of the process, in the prescribed form, within a period of thirty days before the process commences: section 84(5).

It starts without informing him. Then, notwithstanding any penalty, the licence issued under section 79 is liable for cancellation: section 84(6).

A worker asks to see what his blood tests have shown over six years. Under section 85(a) the occupier must maintain accurate and up to date health or medical records of workers exposed to chemical, toxic or other harmful substances, and those records shall be accessible to the workers, subject to conditions prescribed by the State Government.

The company puts a graduate trainee in charge of the solvent store. Section 85(b) requires the appointment of persons possessing the prescribed qualifications and experience in handling hazardous substances and competent to supervise such handling. If a question arises about his qualifications and experience, the decision of the Chief Inspector-cum-Facilitator is final.

A worker is moved off the solvent line. Is he finished with examinations? No. Section 85(c)(ii) requires medical examination while continuing in the job and after he has ceased to work in it, at intervals not exceeding twelve months.

There is no prescribed safety standard for the new solvent. Under section 87 the Central Government, satisfied that no standards have been prescribed or that those prescribed are inadequate, may direct the Directorate General Occupational Safety and Health, or another authorised institution, to lay down emergency standards, which are enforceable as if incorporated in the rules until they are so incorporated.

What is the permitted concentration in the workroom air? The maximum permissible limits of exposure are of the value prescribed by the State Government: section 88.

The solvent escapes and injures forty people in the colony. Two different questions arise. Under the Code, the Central Government may direct the National Board to inquire into the standards observed, the causes of any failure or neglect, and the prevention of recurrence, though its recommendations are advisory: section 86. And in a civil claim, on M.C. Mehta v. Union of India, (1987) 1 SCC 395, an enterprise engaged in a hazardous or inherently dangerous activity is absolutely liable to compensate those affected, and it is no answer that it took all reasonable care.

What this does NOT mean

Section 82 does not itself declare any operation dangerous. It empowers rules to specify and declare.

A dangerous operation is not the same as a hazardous process. The first turns on serious risk of bodily injury, poisoning or disease to persons employed; the second is tied to the First Schedule and to material impairment of health or pollution of the general environment.

The site appraisal committee does not grant permission. It considers and recommends, within thirty days.

Section 84 is not a duty owed only to workers. Disclosure runs also to the inspectorate, the local authority and the general public in the vicinity.

The thirty days in section 84(5) is not a period after starting. It is information given within thirty days before the hazardous process commences.

Health records are not the occupier's private file. They shall be accessible to the workers.

Medical examination does not stop when the worker leaves the job. It continues after he has ceased to work in it, at intervals not exceeding twelve months.

The National Board's inquiry does not produce enforceable directions. Its recommendations are advisory.

Emergency standards are not merely advisory. They are enforceable and have the same effect as if incorporated in the rules.

Absolute liability is not a rule of this Code. It is a rule of civil liability laid down under article 32 and the law of torts.

Limits and criticism

The First Schedule decides what is hazardous, and the Schedule is a list of industries. A process outside the listed industries is not a hazardous process however dangerous it is, and the protection then depends on section 82 rules for dangerous operations.

The site appraisal committee is the weakest link in a chapter about siting. Its composition is unspecified beyond a chairman and members, its recommendation is not stated to bind the licensing authority, and nothing is said about what happens if it does not report within thirty days.

Section 86 ends in advice. The one provision addressed to a disaster produces recommendations that are advisory in nature, with no duty on anybody to act on them and no publication requirement.

Section 88 delegates the numbers that matter most, and delegates them to the States. The maximum permissible limit of exposure to a toxic substance is the single figure on which occupational disease depends, and it may vary between States for no reason connected with the chemistry.

Disclosure to the public has no machinery behind it. Section 84 requires information to be given to the general public in the vicinity in the manner prescribed by the State Government, and provides no register, no website, no local repository and no right in any member of the public to demand it.

The worker's own remedy is not in these sections. They create duties enforceable by the inspectorate and the penalties in Chapter XII. The compensation of a worker or a neighbour still depends on the Code on Social Security 2020 and on the general law.

Quick revision

• Section 82: rules for factories where a process exposes persons employed to a serious risk of bodily injury, poisoning or disease, to (a) specify and declare the operation dangerous; (b) prohibit or restrict the employment of pregnant women; (c) periodical medical examination at the occupier's cost; (d) welfare amenities, sanitary facilities, protective equipment and clothing.
• Section 83: site appraisal committees, a chairman and other members, to recommend on the initial location or expansion of a factory involving a hazardous process, within thirty days of the application.
• Section 84: (1) disclose all dangers and health hazards to workers, the inspectorate, the local authority and the general public in the vicinity; (2) a safety policy at registration, intimated and updated; (3) accurate information on wastes and their disposal; (4) an on-site emergency plan approved by the Chief Inspector-cum-Facilitator, made known to workers and the public; (5) inform the Chief Inspector-cum-Facilitator within thirty days before commencing a hazardous process; (6) breach of (5) makes the section 79 licence liable to cancellation, besides any penalty; (7) measures for handling, usage, transportation, storage and disposal of hazardous substances, with previous approval and publicised.
• Section 85: (a) health records accessible to the workers; (b) qualified and competent supervisors, the Chief Inspector-cum-Facilitator's decision final on qualifications; (c) medical examination before assignment, during the job, and after ceasing it, at intervals not exceeding twelve months.
• Section 86: on an extraordinary situation, the Central Government may direct the National Board to inquire; recommendations are advisory.
• Section 87: where no standards are prescribed or they are inadequate, the Central Government may direct the Directorate General Occupational Safety and Health to lay down emergency standards, enforceable as if in the rules.
• Section 88: maximum permissible limits of exposure to chemical and toxic substances are prescribed by the State Government.
• M.C. Mehta: an enterprise in a hazardous or inherently dangerous activity is absolutely liable to compensate those affected; reasonable care is no answer; and the exceptions to the rule in Rylands v. Fletcher do not apply.

Test yourself

1. Define a hazardous process. Any process or activity in relation to an industry or plantation specified in the First Schedule where, unless special care is taken, the raw materials, intermediate or finished products, by-products, hazardous substances, wastes or effluents, or the spraying of pesticides, insecticides or chemicals, would cause material impairment to the health of the persons engaged in or connected with it, or result in the pollution of the general environment: section 2(1)(za).

2. To whom must the occupier of such a factory disclose the dangers, and what must the disclosure include? To the workers employed in the factory, the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator, the local authority within whose jurisdiction the factory is situated, and the general public in the vicinity. It must cover all information regarding dangers including health hazards and the measures to overcome them, arising from exposure to or handling of the materials in manufacture, transportation, storage and other processes, and must include accurate information as to the quantity, specifications and characteristics of wastes and the manner of their disposal.

3. What must be done before a factory begins a hazardous process, and what follows from failure? The occupier must inform the Chief Inspector-cum-Facilitator of the nature and details of the process, in the prescribed form and manner, within a period of thirty days before the process commences: section 84(5). On contravention, the licence issued under section 79 is liable for cancellation, notwithstanding any penalty to which the occupier is subject: section 84(6).

4. State the three specific responsibilities in section 85. To maintain accurate and up to date health or medical records of exposed workers, accessible to the workers; to appoint persons with prescribed qualifications and experience in handling hazardous substances who are competent to supervise, and to provide the necessary protective facilities at the working place, the Chief Inspector-cum-Facilitator's decision on qualifications being final; and to provide medical examination before assignment, while continuing in the job, and after ceasing it, at intervals not exceeding twelve months.

5. What is the effect of an emergency standard under section 87? Until incorporated in the rules made under the Code, it is enforceable and has the same effect as if it had been incorporated in those rules.

6. What can the Central Government do after a disaster at a hazardous factory, and what is the weakness of that power? It may direct the National Board to inquire into the standards of health and safety observed, the causes of any failure or neglect in adopting prescribed measures for the health and safety of the workers or of the general public affected or likely to be affected, and the prevention of recurrence: section 86(1). The weakness is section 86(2): the Board's recommendations are advisory in nature.

7. State the rule in M.C. Mehta and explain its relation to these sections. An enterprise engaged in a hazardous or inherently dangerous industry is absolutely liable to compensate all those affected by an accident; it is no answer that it took all reasonable care and that the harm occurred without negligence; and the liability is not subject to the exceptions to the rule in Rylands v. Fletcher: M.C. Mehta v. Union of India, (1987) 1 SCC 395. It is a decision in tort under article 32, not a construction of this Code. Sections 82 to 88 are the regulatory half of the same problem, requiring disclosure, planning, supervision and examination; absolute liability is the civil consequence when those have failed.