Wednesday, December 23, 2020

Supreme Court vindicates reputation of 3 judges dismissed by State of Bihar

The General Administration Department of Government of Bihar on December 21, 2020 issued a four page long notification dated December 17, 2020 regarding dismissal of three judges of the lower court -- Hari Niwas Gupta, Komal Ram and Jitendra Nath Singh -who were allegedly caught by Nepal Police with women in Metro Hotel in Nepal in 2013. The order was issued pursuant to the letter of Registrar General, Patna High Court dated September 3, 2020 in the light of Supreme Court's verdict dated November 8, 2019 in Hari Niwas Gupta v State of Bihar [Civil Appeal No. 3501 of 2017]. The fact which emerges from the verdict is that there is nothing on record to show that Nepal Police ever corroborated the allegation in question. These three judicial officers were working as Principal Judge, Family Court, Samastipur; Chief Judicial Magistrate, Araria; and ad-hoc Additional District and Sessions Judge, Araria, respectively. It is apparent from the verdict of Supreme Court's 2-Judge Bench that all the three judicial officers have retired during the pendency of the case. The order dated November 8, 2019 categorically states that "We also clarify that we have expressed no opinion on the merits of the allegations made against the three judicial officers. There would be no order as to costs." There is nothing on record to corroborate the veracity of the news item was published in a local Nepali daily (Udghosh) on 29th January 2013 that on 26th January 2013 the Nepal Police had apprehended three judicial officers belonging to the State of Bihar as they were allegedly found in a compromising position with three Nepali women in a guest house at Biratnagar, Nepal. The Supreme Court's verdict dated November 8, 2019 records that another news item published by the same daily on 22nd February 2013, "expressed regret over erroneous reportage."

Subsequent to these allegations Patna High Court had addressed a letter to the Ministry of Home Affairs, Government of India to collect and ascertain information, details and records. By communication dated 20th June 2013, the Deputy Secretary, Ministry of Home Affairs, Government of India, had informed the High Court that the mobile phones of the judicial officers were simultaneously switched off for a long time on 26th and 27th January 2013 and when the phones were active during that period, they were within the range of the tower at Forbesganj town, which indicated that the judicial officers were together in proximity to Nepal, and not at the place of their posting. The Supreme Court's verdict  also records that "the Superintendent of Police, Araria appeared to have held a bias against the judicial officers." 

There is nothing in the Court's verdict to show that finding of the Deputy Secretary in question was placed on record for examination by the Court. Supreme Court's 23 page long order does not authenticate the claim made by a Deputy Secretary of Ministry of Home Affairs about the whereabouts of the judicial officers.

It is recorded that the Standing Committee of the High Court in its meeting held on 5th February, 2014 had resolved that the judicial officers should be placed under suspension and also that they should be dismissed from service without an inquiry in exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution of India, read-with Rules 14 and 20 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. At the Full Court of the judges of the High Court held on 10th February, 2014, the recommendation of the Standing Committee was accepted and Full Court resolution was passed for dismissal of the judicial officers from judicial service in the State  Government of Bihar, dispensing with the disciplinary proceedings by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. The recommendation of the Full Court was accepted by the State Government and vide common order dated 12th February 2014 issued by the Governor of the State of Bihar the judicial officers were dismissed from service.

The judicial officers had challenged the dismissal order by filing separate writ petitions, which were allowed by the Division Bench of the High Court (‘Division Bench’ for short), vide judgment dated 19th May 2015, primarily on the ground that the Full Court had contravened clause (b) of the second proviso to Article 311(2) of the Constitution by not recording reasons for dispensing with the disciplinary inquiry at the time of recommending dismissal of the judicial officers. The note relied upon by the Registry of the High Court as purportedly recording the reasons for dispensing with the inquiry, it was observed, did not contain any date or signatures and lacked authenticity. Thus, the High Court had not been able to place on record any material to show that any reasons were recorded for dispensing with the disciplinary proceedings.

While setting aside the order of dismissal, in the case of the judicial officers, dated 12th February 2014 for failure to record reasons for dispensing with the inquiry, the Division Bench had given the following liberty and discretion to the High Court: “The writ petitions are, accordingly, allowed, and the common order dated 12.02.2014 is set aside. It is made clear that in case, the High Court intends to invoke its power under Sub-clause (b) of the 2nd proviso to Article 311 (2) of the Constitution of India, it shall be under obligation to record reasons, at the appropriate stage and follow the prescribed procedure. It is brought to our notice that two (sic- one) of the officers have attained the age of superannuation, during the pendency of the writ petitions. We direct that as a result of the judgment in these writ petitions, the petitioner, who is already in service, shall be deemed to be under suspension, and the other two would be deemed to be continuing in service for the limited purpose of enabling the departmental proceedings to continue. The High Court shall take a decision in this behalf, within a period of two months from today. If no decision is taken in this regard, the proceedings would lapse and the petitioners would be entitled for all the consequential benefits, as though the proceedings have been set aside in their entirety. If, on the other hand, the proceedings are initiated, the petitioners shall await the outcome thereof. While the one who is in service shall be paid subsistence allowance, the other two shall be paid provisional pension to the extent of 25%, forthwith..."

The judicial officers have challenged this afore-quoted portion and the liberty granted to the High Court to invoke the power under clause (b) of the second proviso to Article 311(2) of the Constitution at an appropriate stage with the requirement to record reasons and follow the prescribed procedure, on the ground that the liberty granted permits the High Court to record reasons post the earlier order of dismissal dated 12th February 2014, which is contrary to law and the Constitution.  

Striking down and setting aside the earlier order dated 12th February, 2014 under clause (b) of the second proviso to Article 311(2) for failure to record reasons for dispensing with the departmental inquiry annuls the earlier order, which ceases to exist and stands obliterated, but does not adjudicate on the merits of the allegations so as to attract the bar of res judicata.

In its dismissal order, Supreme Court observes "Conscious of the seriousness of the allegations and the reason for allowing the writ petition, the Division Bench (of High Court) was justified in not barring the High Court from fresh application of mind and from invoking clause (b) of the second proviso to Article 311(2) if required and justified in accordance with law. The expression ‘at appropriate stage’ used by the Division Bench is not a direction for initiation of a regular departmental inquiry nor does it prohibit recourse to clause (b) to the second proviso of Article 311(2) of the Constitution in accordance with law. We do not see such fetters and restrictions placed on the High Court by the Division Bench."

The Court has recorded the argument of the counsel appearing for Komal Ram and Jitendra Nath Singh  who raised a "contention relating to the power of the High Court to dispense with the inquiry under clause (b) of the second proviso to Article 311 of the Constitution. The contention is that this power exclusively vests with the Governor alone who has to satisfy himself and record in writing the reasons why it is not reasonably practical to hold an inquiry. Reliance was placed on the following observations in the Constitutional Bench judgment of this Court in State of West Bengal v. Nripendra Nath Bagchi," It reads:“...within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by clause (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.” 

Responding to this contention, the Court observed that "it is not to be expected that the High Court would run to the Government or the Governor in every case of indiscipline however small and which may not even require the punishment of dismissal or removal. These Articles go to show that by vesting “control” in the High Court the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution. This construction is also in accord with the Directive Principles in Article 50 of the Constitution which reads: '50. The State shall take steps to separate the judiciary from the executive in the public services of the State'."

Significantly, the Supreme Court has recorded that "During the course of hearing before us, it was pointed out that the Full Court had subsequently again recommended dismissal of the judicial officers dispensing with the departmental inquiry in the exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution vide recommendation dated 13th August 2015 However, the matter is pending with the State Government..." 

Patna High Court had constituted a 5-member panel in this regard on May 22, 2015. Following the report of this panel dated August 3, 2015. a full court of Patna High Court sat and took a reasoned decision on August 7, 2015 which was communicated to the the Registrar General of the Patna High Court on August 13, 2015. It seems two concurrent proceedings were underway in this case. 

Hari Niwas Gupta, one of the three dismissed judges filed an appeal against the decision of the full court of the Patna High Court in the Supreme Court on September 1, 2015 which was registered as Civil Appeal. No. 3105 of 2017 on February 20, 2017. Besides this S.L.P.(C) CC No. 16385 of 2015 was registered on September 2, 2015 and SLP(C) No. 26473 of 2015 was registered on September 11, 2015 too was clubbed together. Subsequently, two other dismissed judges also filed their appeals. The fact remains that the case of Hari Niwas Gupta got admitted in the Supreme Court on January 19, 2016. 

On the very first day of hearing, on September 11, 2015, a 3-judge Bench of Chief Justice and Justices C. Nagappan and Amitava Roy had issued an order saying, "In the meantime, the operation of the impugned judgment and order shall remain stayed." 

The order of 2-judge Bench of Justices Mohan M. Shantanagoudar and Sanjiv Khanna dated  November 8, 2019 dismissing the civil appeal of Hari Niwas Gupta along with the civil appeal Nos. 3106-3017 of Komal Ram and Jitendra Nath Singh records that "we were informed that no final order has been passed in view of the stay order dated 11th September 2015 passed by this Court." 

Pursuant to the Court's order, according to the notification of the Department of General Administration dated December 17, 2020, Government of Bihar, the dismissal of these judicial officers will be effective from February 12, 2014. 

The concluding paragraph of the Supreme Court's verdict dated  November 8, 2019 states that "the appeals are dismissed and the stay order is vacated" but it does not record the fact that High Court's order was stayed by a Chief Justice headed 3-Judge Bench. Can a 2-Judge Bench vacate the stay order of 3-Judge Bench?

The fact remains the penultimate paragraph of the verdict observes: "It was also initially urged and argued that the order of dismissal under clause (b) of the second proviso to Article 311(2) of the Constitution cannot be passed against the officer who has retired. We were informed that the other two officers had also retired during the pendency of the present appeals. Therefore, at best the pensionary and retirement benefits can be forfeited and denied, but an order of dismissal from service by invoking powers under clause(b) of the second proviso to Article 311(2) cannot be passed against the appellants - judicial officers. Subsequently, the counsel for the appellants - judicial officers did not press this contention as the matter is still pending before the State authorities, and the final order is yet to be passed. A challenge cannot be made in anticipation. Further, this challenge was also not the subject matter of the writ petitions in which the impugned order was passed and would constitute an entirely new cause of action. Counsels for the appellants - judicial officers have, accordingly, reserved their right to challenge the order if, and as and when it is passed. In view of the aforesaid position, we would not go into the merits of the said contention and leave the issue open. It is equally open to the respondents, that is, the State of Bihar and the High Court to examine this contention." It gave an opportunity to the State of Bihar and the High Court to review and reverse their orders which seems to have been based on unverifiable allegations. 

It also implies that Supreme Court has granted liberty to the three judicial officers to challenge the notification of General Administration Depart of Government of Bihar. All the documents and proceedings on record make it crystal clear that the dismissal was approved "without any inquiry" into the questionable allegations. It appears to be a classic case of State making an allegation and concluding that its allegations true without any inquiry. Can public institutions safeguard their legitimacy by concluding the veracity of their own allegations admittedly without any credible inquiry?  

Gopal Krishna

Supreme Court to hear Aurangabad District Judge Assault case on 15 January

On December 16, 2020, Supreme Court's three-judge bench headed by Justice AM Khanwilkar comprising of Justices B R Gavai and Krishna Murari sought the response of the Bihar government on a plea demanding judicial inquiry into physical attack on Dr. Dinesh Kumar Pradhan, a Bihar District judge by a police sub-inspector. The court has issued notice to the State of Bihar and posted the case for further hearing after 4 weeks in Vishal Tiwari vs. Union of India. The case was filed on November 2, 2020. It was registered on November 4, 2020 with Writ Petition.(Criminal) No.345/ 2020. It was verified on November, 2020. Union of India, State of Bihar, Director General of Police, Bihar and Superintendent of Police, Aurangabad are the respondents. The Sub-Inspector in question too has been impleaded as a respondent after Court had ordered petitioner, advocate Vishal Tiwari to do so. Upon  hearing the petitioner the Court passed an order which reads: "Application for impleadment is allowed. Cause-title be amended accordingly. Issue notice to the respondents, including the newly added respondents, returnable in four weeks." 

Earlier, on November 26, the Bench of Justices Khanwilkar and Ajay Rastogi had ordered: "Permission to appear and argue in person is granted. As prayed, petitioner is permitted to amend the petition to implead the concerned party as party-respondent(s) and also to file additional documents."

The Office Report of the Supreme Court dated November 26, 2020 states that " It is submitted that the instant matter pertains to petitioner-in-person, who is an Advocate and member of Supreme Court Bar Association.  It was telephonically communicated to petitioner-in-person regarding the date of hearing of matter."

The writ was filed in the aftermath of attack on District Judge in Bihar's Aurangabad seeking appropriate directions against the errant police officials who were allegedly involved in assaulting the District Judge, Dr. Dinesh Kumar Pradhan.

"Strict action must be taken against those involved in such kind of acts. This is an attack not against a judge, but on the judiciary," Vishal Tiwari has sought direction from the Supreme Court to set up a two-member inquiry commission in the matter for collecting the facts and evidence and for recording the evidence. He has prayed inclusion of sitting High Court judges in the inquiry commission who shall submit the report within a month and to initiate criminal contempt proceedings and punishment under The Contempt of Courts Act, 1971, against the erring police officials. He is seeking appropriate directions for punishing the higher police officials (Director General of Police, Bihar, Superintendent of Police, Aurangabad) for their alleged inaction. The prime accused is a Sub Inspector named Pranav of the Town police station, Aurangabad who allegedly abused, threatened, assaulted and attacked Pradhan, when he was on his evening walk on October 21. The Sub Inspector accompanied by paramilitary personnel was a flag march that time. It has been found that Pranav had a grudge against the judicial officer, Pradhan, as he had taken action against him and a few other police officers for dereliction of duty a few months back when he was the Aurangabad chief judicial magistrate.

The unprecedented, unwarranted assault and intimidation took place on October 21, 2020. Bihar Judicial Services Association and Association for Judges, Gujarat has condemned the incident. The Bihar Judicial Services Association wrote a letter to Bihar DGP on October 24, 2020  seeking action against erring officers. .The case is likely to be heard again in the Supreme Court on January 15, 2021. 

Tuesday, December 22, 2020

बिहार विधान परिषद् का पर्यावरण एवं प्रदूषण नियंत्रण समिति

बिहार विधान परिषद् के अंतर्गत पर्यावरण एवं प्रदूषण नियंत्रण समिति का गठन किया गया है जिसमें 3 पदेन सदस्‍य सदस्‍य रखे गए- 

(1 सुनील कुमार सिंह-अध्यक्ष
(2सोनेलाल मेहता-सदस्य
(3 प्रेम चन्द्र मिश्रा-सदस्य

समिति के विचारणीय विषय बिन्दु निम्नवत है-

  1. बक्सर से फरक्का तक गंगा के कटाव स्थलों एवं इस कटाव से प्रभावित क्षेत्रों को बचाने हेतु सभी संभव उपाय करना तथा तत्संबंधी कार्रवाई का निरीक्षण करना।
  2. गंगा के कटाव से बचाने के लिए केन्द्र सरकार, राज्य सरकार एवं अन्य निकाय तथा व्यक्तियों से संपर्क स्थापित करना।
  3. बिहार सीमांतर्गत गंगा के जल प्रदूषण को रोकने के लिए सभी संभव उपाय एवं कार्रवाई करना।
  4. जल प्रदूषण के लिए नीतियों एवं योजनाओं का निर्धारण करना, उनके कार्यान्वयन का निरीक्षण करना तथा आवश्यक अनुदेश देना।
  5. कारखानों एवं उद्योंगों का प्रदूषण जो गंगा में प्रवाहित होता है उसकी रोकथाम के उपाय करना।
  6. नगरपालिकाओं एवं नगर निगम द्वारा प्रदूषित जल या गंदगी जो गंगा में गिरती है, उसके निवारण का हर संभव उपाय करना।
  7. गंगा अपरक्षण एवं जल प्रदूषण के संबंध में समय-समय पर भारत सरकार से विचार-विमर्श करना तथा उचित सुझाव देना एवं कार्यान्वयन कराना।
  8. गंगा में प्रदूषित जल के स्रोंतों की जानकारी प्राप्त करना, उसके निवारण के लिए आवश्यक कार्रवाई करना।
  9. अन्य कोई विषय, जिस पर समिति जाँच और सिफारिश करना उचित समझे।

Yet another death in Ramco's asbestos factory in Bhojpur

Note: On December 22, 2020 Chief Minister communicated that he has forwarded the letter regarding death of a worker in the asbestos based unit of Chennai based Ramco Industries Limited in Bihiya, Bhojpur to Principal Secretary, Labour, Government of Bihar. Mihir Kumar Singh is the Principal Secretary of the Department of Labour. 



Shri Nitish Kumar 
Hon'ble Chief Minister
Government of Bihar

Date: 21/12/2020

Subject- Yet another death of a worker and violation of environmental laws by the two asbestos based units of Chennai based Ramco Industries Limited in Bihiya, Bhojpur


This is to draw your immediate attention towards the cruel death of yet another worker late Shri Shivji Yadav, s/o late Shri Dhurkhel Yadav in the asbestos based factory units of Chennai based Ramco Industries Limited in Bihiya, Bhojpur on the night of 19 December, 2020. The worker is a resident of Khadra village, Dawa Panchayat under Jagdishpur police station. The deceased worker is survived by his wife, 6 daughters and 2 sons. Earlier, one worker named Shri Barak Yadav too died while working in this factory. Bihar Human Rights Commission was seized with the latter case. The news report regarding the former is attached. 

I submit that First Schedule of Occupational Safety, Health & Working Conditions Code, 2020 refers to Industries involving hazardous processes including manufacture, handling & processing of Asbestos and ts products. Its Third Schedule lists incurable Asbestosis as a Notifiable Disease. Besides the villagers in the vicinity of Ramco's factories, all the workers face the threat of such health hazards and accidents. This Code has to be read along with the verdict of Hon'ble Supreme Court dated 27 January, 1995 in Consumer Education Research Centre v Union of India for effective implementation. 

I appreciate the legal action taken by the Bihar State Pollution Control Board (BSPCB) against the two units of asbestos based factories of Ramco Industries Limited located at Bihiya, Bhojpur pursuant to your instructions to the Board in response to villagers' petition to you against such hazardous factories. 

As a follow up of your previous action in this regard, I wish to draw your urgent attention towards the public health crisis as a consequence of ongoing unscientific and illegal disposal of hazardous and carcinogenic asbestos (dust & fibers) and broken asbestos based roofs by Chennai based Ramco Industries Limited in Bihiya, Bhojpuri, Bihar. It has endangered the human life and environmental health of Bihiya and the villages in the area besides the workers employed there. The picture is attached. 

I am aware that the Board's legal action could not become effective because of the order of a single judge bench of Hon'ble Patna High Court on the limited ground of violation of natural justice. The order of Justice Jyoti Sharan dated 30 March, 2017 had directed the Chief Secretary, State of Bihar to rectify the error of Chairman of the BSPCB and thev Appellate Authority happened to be Shri Vivek Kumar Singh. Source:

The fact remains this order too did not dispute the finding of the Board with regard to violation of the environmental laws. It did not dispute that as asbestos and asbestos based industries are heavily polluting and have been categorised as R24 in the Red Category (

Subsequently, a division bench of the Hon'ble High Court comprising Justices Ajay Kumar Tripathi and Niku Agrawal passed another order modifying the previous order in The Bihar State Pollution Control Board & others Vs M/S Ramco Industries Ltd. on 30 April, 2018 (Letters Patent Appeal No.873 of 2017 In Civil Writ Jurisdiction Case No. 421 of 2017. The order authored by Justice Tripathi reads: "Since Mr. Vivek Kumar Singh no longer happens to be the Chairman of the Bihar State Pollution Control Board, therefore, one of the reasons provided by the learned Single Judge for interfering with the order no longer holds good. It is left open to the new Chairman of Bihar State Pollution Control Board to pass a fresh order in accordance with law after hearing the parties." Source: 

In such a backdrop, I wish to draw your attention again towards the violation of all the general and specific conditions laid down in the NOC given by the Bihar State Pollution Control Board and the environmental clearance given by the Experts Appraisal Committee of the Union Ministry of Environment, Forests & Climate Change by the company's factories in question. 

I wish to draw your attention towards a news broadcast by a news channel titled - 

Ramco Company: सरकार के साथ साथ दे रही जनता को धोखा|
An official video of Ramco Industries Limited which authenticates the claims made in the news report is available with us which can be shared when required. It is not being shared right away because of it is a heavy file. 

In such a context, I submit that I have learnt the following methods in disposing of asbestos waste (dust and fibers) by the company in question:

1. Using excavators the broken sheets are crushed and buried deep inside factory premises. The broken pieces pose a grave threat to the ground water shared by fertile agriculture land and villagers who use it for drinking purpose. 

2. Since there is no space to bury the asbestos waste and broken asbestos products are sold to fictitious or  known dealers on ex- factory basis to discard company's responsibility for disposal. Normally, the destination of duch disposal will be in remote locations and buried on fertile lands or used for land filling and covered by sand permanently. It seems to be a corporate crime but logical from company's perspective as no one will pay 4 times the cost for transportation for a zero value material. 

3. The broken ast based sheets are cut inside factory into unmarketable sizes like 1 meter length and gifted as CSR activities. The cutting process emits lot of asbestos dust and fibers harmful for the workers and villagers. 

4. Broken asbestos sheets and wastes during transit handling or from customer end are brought to depot at various locations to harden top soil or land filling which again poses a threat to ground water. Cutting broken bigger asbestos sheets also pose danger as asbestos  fibers become air borne. 

5. Wherever cement is handled in bags inside factory it creates occupational hazard for workers due to asbestos dust particles. This is a threat to villagers as well because the air quality in the area gets polluted. 

6. Ramco Industries Limited has been donating asbestos based roofs to the nearby Mahthin Mai temple and to the parking space of the District Magistrate's office as an exercise in ethical positioning of it's bran and as a public relations exercise. Villagers, temple devotees and the district administration has been taken for a ride. They have acted in complete ignorance of Board's action against Ramco's factories.

In view of the above, I wish to request you to probe the health status of the communities linked to the factory and who reside in proximity of the two units of asbestos factories in Bihiya, Bhojpur run by Ramco Industries Limited besides the workers. Your prompt action will  safeguard the environmental health of present and future residents of Bhojpur in particular and all the residents of Bihar in general by imposing immediate ban on use of asbestos based products of all kinds in State. 

I appreciate for stance declaring in the State Assembly that Bihar Government will not allow construction of carcinogenic asbestos factories in the state on 1st July, 2019. This announcement is a vindication of the anti-asbestos struggle by villagers of Muzaffarpur, Vaishali and Bhojpur. 

I submit that the death toll of children in Muzaffarpur has revealed that asbestos cement sheets are quite unhealthy building materials which lead to morbidity and mortality by contributing to the deterioration of their health.

I submit that Board's action with regard to carcinogenic white chrysotile asbestos mineral fiber has been consistent with what is published on National Health Portal (NHP) , Centre for Health Informatics (CHI), National Institute of Health and Family Welfare (NIHFW), Ministry of Health and Family Welfare (MoHFW), Government of India. The National Health Portal states that “All forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite and anthophyllite) are in use because of their extraordinary tensile strength, poor heat conduction, and relative resistance to chemical attack. Chemically,s asbestos minerals are silicate compounds, meaning they contain atoms of silicon and oxygen in their molecular structure. All forms of asbestos are carcinogenic to humans. Exposure to asbestos (including chrysotile) causes cancer of the lung, larynx, and ovaries, and also mesothelioma (a cancer of the pleural and peritoneal linings).

Asbestos exposure is also responsible for other diseases such as asbestosis (fibrosis of the lungs), and plaques, thickening and effusion in the pleura.”  It observes that “Exposure to asbestos occurs through inhalation of fibers in air in the working environment, ambient air in the vicinity of point sources such as factories handling asbestos, or indoor air in housing and buildings containing friable asbestos materials.”

I wish to draw your urgent attention towards the order of Kerala Human Rights Commission (KHRC) that has ruled that exposing Indians to asbestos is a human rights violation. This paves the way for the eventual complete ban on asbestos and its products. On January 31, 2009, the KHRC ruled that the government should take steps to phase out asbestos roofing from all schools in the state. Bihar State Pollution Control Board can act of this recommendation as well.

I submit that so far Hon'ble Supreme Court’s order of 27 January, 1995 in Writ Petition (Civil) No. 206 of 1986 cannot be ignored without endangering residents of Bihar. Hon'ble Court observed: “The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life. The exposure to asbestos and the resultant long tragic chain of adverse medical, legal and societal consequences, remains the legal and social responsibility of the employer or the producer not to endanger the workmen or the community of the society. He is not absolved of the inherent responsibility to the exposed workmen or the society at large.”

I submit the state government was supposed to incorporate specific directions of the Court with regard to fresh ILO Resolution of June 14, 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos besides WHO‟s resolution of 2005 seeking elimination of future use of asbestos but it has been ignored so far.

I wish to also draw your attention towards what Government of India’s National Health Portal states: “The burden of asbestos-related diseases is still rising, even in countries that banned the use of asbestos in the early 1990s. Because of the long latency periods attached to the asbestos related diseases, stopping the use of asbestos now will result in a decrease in the number of asbestos-related deaths only after a number of decades. There is no safe use of asbestos and no safe limits set by WHO, ILO (International labour organization)” . It discloses that “The prevalence of asbestosis in four cement factories (Ahmadabad, Hyderabad, Coimbatore and Mumbai) varied from 3% to 5%” and “In asbestos textile industry prevalence of asbestosis was 9% in workers having less than 10 years exposure, in contrast to the reported average duration of over 20 years”  (National Health Portal, Government of India).

I submit that in a reply to the Parliament, Union Minister of Health and Family welfare stated that “The Ministry of Mines has informed that the Grant of fresh mining leases and renewal of existing mining leases for Asbestos are presently banned in the country on Health Grounds”  (Union Ministry of Health and Family welfare, 2014). He also shared the findings of the Indian Council of Medical Research (ICMR), Union Ministry of Health and Family welfare which has “informed that major health hazards of asbestos include cancer of lung, mesothelioma of pleura and peritoneum and specific fibrous disease of lung known as asbestosis. All types of asbestos fibers are responsible for human mortality and morbidity….” This has been shared by the Union Minister for Health and Family Welfare in a written reply to the Parliament and released by Press Information Bureau, Government of India. This reply corroborates your observation in the State Assembly.

I was saddened when Ramco company' factories in Bhojpur’s Bihiya managed to get relief from Hon’ble Patna High Court on a grossly procedural
ground of violation of natural justice. This procedural error ought to be rectified and the operation of the two units of an asbestos company must be stopped. Its operation is a case of environmental health lawlessness. It has dumped hazardous asbestos waste in the agricultural fields and has been spewing toxic asbestos dust at night.

It has violated every specific and general condition which has been stipulated in the environmental clearance and the No Objection Certificate. It may also be noted that when a worker died in this factory, his family was given a compensation of Rs 5, 000. The factory seemed to have the patronage of Bhojpur administration by donating asbestos roofs to it for its parking. This situation creates a compelling logic for medical investigation of the environmental health status of the village and temple communities living in the vicinity of these units and the workers of these two factories owned by the same company. The probe can reveal the extent of asbestos related diseases in this area because of environmental exposure. 

Let me take the opportunity to mention the  the fact that all asbestos based products have a life-span, it is natural that all asbestos based products are potential asbestos wastes. This state of sad affairs is crying for attention. At present Indian railways is removing asbestos cement roofs from all the railway stations and platforms in Bihar like elsewhere but it is not being disposed of in a scientific and safe manner. 

In view of the above, I submit that the Board must be asked to reiterate its order on immediate closure of Ramco's hazardous factories, to create a Master Plan for decontaminating all asbestos laden government buildings including legislative and judicial buildings and discontinue public procurement of asbestos based products including asbestos cement pipes for water supply in Bihar. It s necessary to initiate preventive action in order to protect present and future generations of Bihar from the silent killer mineral fibers of asbestos which  are akin to a ticking time bomb.

I will be glad to share more relevant information in this regard.

Thanking you in anticipation.

Yours Sincerely

Gopal Krishna, LL.M

Friday, December 18, 2020

आसान शिकार : मंगलेश डबराल (16 May 1948- 9 Dec 2020)

मनुष्य की मेरी देह ताकत

के लिए एक आसान शिकार है

ताकत के सामने वह इतनी दुर्बल है

और लाचार है

कि कभी भी कुचली जा सकती है

ताकत के सामने कमजोर और

भयभीत हैं मेरे बाल और नाखून

जो मेरे शरीर के दरवाजे पर ही

दिखाई दे जाते हैं

मेरी त्वचा भी इस कदर पतली

और सिमटी हुई है

कि उसे पीटना बहुत आसान है

और सबसे अधिक नाजुक और

जद में आया हुआ है मेरा हृदय

जो इतना आहिस्ता धड़कता है

कि उसकी आवाज भी शरीर से

बाहर नहीं सुनाई देती

ताकत का शरीर इतना

बड़ा इतना स्थूल है

कि उसके सामने मेरा अस्तित्व

सिर्फ एक सांस की तरह है

मिट्टी हवा पानी जरा सी आग

थोड़े से आकाश से बनी है मेरी


उसे फिर से मिट्टी हवा पानी और

आकाश में मिलाना है आसान

पूरी तरह भंगुर है मेरा वजूद

उसे बिना मेहनत के मिटाया जा

सकता है

उसके लिए किसी अतिरिक्त

हरबे-हथियार की जरूरत नहीं


यह तय है कि किसी ताकतवर

की एक फूंक ही

मुझे उड़ाने के लिए काफी होगी

मैं उड़ जाऊंगा सूखे हुए पत्ते नुचे

हुए पंख टूटे हुए तिनके की तरह

कभी-कभी कोई ताकतवर थोड़ी

देर के लिए सही

अपने मातहतों को सौंप देता है

अपने अधिकार

उनसे भी डरती है मेरी मनुष्य देह

जानता हूं वे उड़ा देंगे मुझे अपनी

उधार की फूंक से.

Tuesday, December 15, 2020

Legislations galore during pandemic in Bihar

During the lockdown period between August 2020-November 2020, some 12 ordinances have been promulgated in Bihar. 

The Contract Labour (Regulation and Abolition)( BiharAmendment) Act, 2020 has repealed of The Contract Labour (Regulation and Abolition) (Bihar Amendment) Ordinance, 2020. (Bihar Ordinance No-06- 2020 pursuant to the satisfaction of Governor and the the instruction from the President of India on 20 October, 2020. This was necessitated by the Covid-19 pandemic which has deteriorated the industrial and economic activities in the State of Bihar. It is aimed at providing impetus to the industrial and economic activities in the State. It has been deemed important to provide new opportunities for industrial investment in the State. By this act, sub-section 4 of section 1 of the the Contract Labour (Regulation and Abolition) Act, 1970 has been amended. 

The Factories (Bihar Amendment) Act, 2020 has repealed the Factories (Bihar Amendment) Ordinance, 2020. (Bihar Ordinance No-08- 2020). It has amended section 2, section 5 and section 85 of the the Factories Act, 1948. As per the amendment, a new section 5 A has been inserted after Section by of the Factories act, 1948. Section 5-A provides "Power to exempt new factories in public interest". It states that where the State Government is satisfied in the public interest that it is necessary to create more economic activities and employment opportunities, it may, by notification in the official Gazette, exempt, subject to such conditions as it may think fit, any new factory or class or description of news factories which are established and whose commercial production start, from all or any of the provisions of this Act for a period of one thousand days from the date on which such commercial production start." It explains that for the purpose of this section the expression "New Factory or class or description of new factories" means such factory or class or description of factories which are established and whose commercial production start within a period of one thousand days after the commencement of the Factories (Bihar Amendment) Act, 2020.

The Industrial Disputes (Bihar Amendment) Act, 2020 has repealed The Industrial Disputes (Bihar Amendment) Ordinance, 2020. (Bihar Ordinance No-07- 2020. It amends section 25 K of Industrial Disputes Act, 1947. As per the amendment, a new section 36-C has been added after the sub section 36 (B) of the Industrial Disputes Act, 1947. Section 36-C provided power to exempt new industries in public interest. It states that here the State Government in satisfied in relation to any new industrial establishment or new undertaking or class of new industrial establishments or new undertaking that it is necessary in the public interest to do so, it may, by notification in the official Gazette, exempt, conditionally or unconditionally, any such new establishment or new undertaking or class of new establishments or new undertaking from all or any of the provisions of this Act for a period of one thousand days from the date of the establishment of such new industrial establishment or new undertaking or class of new establishments or new undertakings, as the case may be". It too explains that for the purposes of this section, the expression "new industrial establishment or new undertaking or class of new industrial establishment or new undertakings" means such industrial establishment or undertaking or class of industrial establishments or undertakings which are established within a period of one thousand days after the commencement of the Industrial Disputes (Bihar Amendment) Act, 2020.

Prior to this Bihar Settlement of Taxation Disputes Ordinance, 2020 was promulgated by the Governor on 21st September 2020. The Bihar Settlement of Taxation Disputes Bill, 2020 has been placed on the table of the Vidhan Sabha. 

Besides the above mentioned laws, numerous subordinate legislations have been framed by the state and central governments. Legislators, judges, lawyers, jurists, scholars, students and informed citizens have a duty to undertake rigorous scrutiny of these legislations and subordinate legislations to prevent emergence of unlimited governments, which pay no heed to limitations imposed by the Constitution of India.