S.P., Bhojpur directed to produce original records of departmental enquiry for dismissal of a constable: Patna High Court

Pasupati Nath Thakur filed the writ petition (civil) on September 10, 2009. It was registered on that very day. The first order was passed on October 10, 2009 by Justice Navin Sinha. The second order was passed by Justice Shivaji Pandey on January 25, 2018. On February 28, 2018, Justice Pandey made an order. It reads:"It appears that the State has not filed any counter affidavit in the matter. Let the State file counter affidavit in the matter within three weeks from today. In failure to file the counter affidavit, the Court will decide the case on the basis of the materials available on record. Let this case be listed after three weeks under the same heading."

On March 26, 2018, Justice Pandey passed an order. It reads: "This Court on 28.2.2018 has granted time to the State to file counter affidavit but till date no counter affidavit has been filed. Let this case be listed on 20th April, 2018 under the same heading. It the State fails to file counter affidavit, on the next date, the Superintendent of Police, Bhojpur will remain physically present in Court to assist this Court." On July 11, 2018, Justice Mohit Kumar Shah made an order in Pasupati Nath Thakur vs. State of Bihar. It reads: "The respondents are directed to produce file pertaining to the conduct of departmental proceeding against the petitioner herein within a period of four weeks from today. List after four weeks." It is clear from the order that the the Superintendent of Police, Bhojpur is the key respondent. Neither the orders nor the case status on the Court's website provide details about other respondents. 

The writ petition was dismissed and disposed on August 16, 2018. The writ petition was filed for quashing the order of punishment dated 6.12.2003 whereby the petitioner has been dismissed from service as also the order dated 12.6.2009 passed by the Director General of Police whereunder the Appeal memorial, preferred by the petitioner has been dismissed. A disciplinary proceeding was initiated against the petitioner vide Departmental Proceeding No. 08 of 1999 and charges were framed pertaining to the petitioner engaging in gross misconduct and indiscipline, disobeying the orders of the authorities and being absconder from duty. The petitioner was intimated for appearing in the ongoing departmental proceeding vide memo No. 12.5.1999, 29.7.1999, 22.8.1999, 30.8.1999, 5.10.1999, 6.11.1999, 20.11.1999 and 25.12.2000, but the petitioner did not appear in the Reserve office. Thereafter, a registered letter dated 8.6.1999 as also other letters were sent by the Superintendent of Police, Patna to the petitioner for participating in the ongoing departmental proceeding. The enquiry officer had then, on the basis of the materials available on record, found the petitioner to be guilty of the charges levelled against him. The Superintendent of Police, Bhojpur, being in agreement with the opinion of the enquiry officer, issued a second show cause notice to the petitioner on 3.3.2002 and upon request of the petitioner herein, further time was granted to the petitioner to submit his reply, but he did not submit any clarification resulting in the disciplinary authority passing the order of punishment of dismissal from service dated 6.12.2003. Thereafter, the Deputy Inspector General of Police, Sahabad Range, Dehri-on-Sone before whom the petitioner had preferred an appeal, rejected the appeal of the petitioner vide order dated 14.2.2007. Thereafter, the petitioner is said to have filed appeal/ memorial before the Director General of Police, Bihar, Patna, which was rejected by an order dated 12.6.2009.

The petitioner's counsel submitted that on account of bona fide reason, the petitioner could not attend his duties. It is further submitted that the impugned order of punishment is bad inasmuch as no opportunity of hearing was granted to the petitioner and the enquiry has been conducted ex parte.

The order of Justice Shah reads: "I find that there is no lacuna in conduct of the disciplinary proceeding as against the petitioner herein and on this score no fault can be found. Now, coming to the issue raised by the petitioner regarding him not having been granted opportunity of hearing, during the course of the disciplinary proceeding, I find that the petitioner had voluntarily not submitted his clarification and deliberately avoided participating in the disciplinary proceedings, which proves the guilt of the petitioner beyond doubt." 

He observed: "It is also clear from the records that the petitioner is a habitual absconder from duty. It is a trite law that no indiscipline can be tolerated by the employees of an armed force/police force and any misconduct on the part of such delinquents is required to be treated with firm hands inasmuch as tolerating any sort of indiscipline will amount to spreading a wrong message amongst other members of the armed force/police force."

The Court noted that "charges levelled against the petitioner have been conclusively proved beyond doubt, the petitioner has no defence to the same and admittedly he has been an absconder inasmuch as the petitioner was absent from duty in an unauthorized manner without leave." 

It concluded:  "the order of punishment dated 06.12.2003 as also the appellate order dated 14.02.2007 and the Appeal memorial order dated 12.06.2009 do not require any interference, there being no procedural infirmity or impropriety in conduct of the disciplinary proceedings. Having regard to the facts and circumstances of the case and for the reasons stated herein above, there is no merit in the present writ petition, hence, the same is dismissed."

Pashupati Nath Thakur filed Letters Patent Appeal in Civil Writ Jurisdiction Case No.12945 of 2009 on October 16, 2019 against four respondents, namely the State of Bihar, the D.G.-cum-I.G. of Police, Patna, Bihar, the D.I.G. of Police, Shahabad Range, Dehari On-Son and the S.P., Bhojpur. It was registered on that very day. On August 5, 2024, the division bench of Justices P. B. Bajanthri and Alok Kumar Pandey condoned the delay in filing LPA No. 1352 of 2019. The order records: "The appellant has assailed the order of learned Single Judge dated 16.08.2018. In LPA No. 1352 of 2019 on 16.10.2019, there is a delay of about 76 days while taking note of the uploading of learned Single Judge order was on 30.05.2019. For the reasons stated in application and read with the affidavit delay of about 76 days stands condoned."

On August 27, 2024, the bench of Justices Bajanthri and Pandey recorded in their order that "Mr. Saroj Kumar Sharma, the learned counsel for the State could not apprise this Court with reference to the original records in respect of departmental enquiry. One of the issue is relating to communication of charge memo to the appellant and to that extent and what is the material document is available on the record. Further, we are not satisfied with the mentioning of dates in the charge memo whether it is 1998 or 1999. Similarly, if he remains ex-parte in the enquiry, the enquiring officer had issued notice to the appellant for his appearance on various dates and such of those copies of the notices address to which place and other details are not forthcoming. Further, assuming that he remained ex-parte. In all fairness, disciplinary authority and enquiry authority was required to undertake notifying the proposed disciplinary proceedings in the leading newspaper publication where the last residential address furnished by the appellant. Similarly, while issuing second show cause notice and so also passing final order of dismissal on 06.12.2003. In other words, even though, Mr. Saroj Kumar Sharma, the learned counsel for the State is having original records and he is not in a position to apprise the aforementioned information."

The order concluded: "Therefore, the Superintendent of Police, Bhojpur is hereby directed to depute an official who is well conversant with the present file so as to assist in the matter with reference to all dates and events read with documents including relevant regulations/rules governing the constable post for the purpose of initiating and concluding disciplinary proceedings whether was it under Police manual or CCA rules, unamended Rules, 2005, or not?" The case is re-listed for hearing on September 10, 2024.

Prayer for suspension of conviction of Shankar Yadav, Pritam Lakra admitted in Patna High Court

In the matter concerning conviction of Shankar Yadav and Pritam Lakra, Patna High Court's Division Bench of Justices Ashutosh Kumar and A. Abhishek Reddy admitted the Criminal Appeal (DB)No.629 of 2023 in a case arising out of PS. Case No.-1 of 2021 in NCB Thana (Government Official), Bhojpur on February 22, 2024. The case was filed on June 23, 2023 and registered on June 25, 2023. Ravindra Kumar and Dr. Gopal Krishna are counsels for Shankar Yadav and Pritam Lakra respectively.

This appeal is against the judgment of conviction and order of sentence dated May 9, 2023/May 17, 2023, passed in N.D.P.S. Case No. 06 of 2021, arising out of N.C.B. Case No. 01 of 2021 by Virendra Kumar Choubey, the Additional Sessions Judge-VIII, Bhojpur at Ara, whereby the appellants have been convicted for the offence under Sections 20(b)(ii)(C) and 25 of the N.D.P.S. Act, 1985. The Court called for the Trial Court Records. 

Notably, one of the four accused, Bijendra Kumar Rai, the main accused from Dahiyawa, Chhapra, Saran, Bihar was released by the judgment dated May 9, 2023 authored by the Additional Sessions Judge-VIII, Bhojpur. The remaining three who are residents of Jharkhand have been convicted. They are: Nav Kumar Ojha, the owner of the truck from Pundru thana, Hazaribagh, Shankar Yadav, the driver of the truck from Sarwaha thana, Hazaribagh, and Pritam Lakra, the helper from Kuddu, Lohardagga. It is noteworthy that 909.2 kg of Ganja was seized from Truck No. JH09J4421 and 50 kg Ganja from Sumo 407 on February 2, 2021 besides a Scorpio Car No. JH09M7100 at Koilwar Police Station, Bhojpur.  

Significantly, the written complaint was filed on July 28, 2021 and the F.I.R. was lodged on July 28, 2021. The charge sheet was filed on July 28, 2021. The seizure happened pursuant to inputs from Anil Kumar, the informant, an Intelligence Officer. Out of the six witnesses named in the charge sheet four are members of the raiding team. They are Ramayodhya Kumar, Vinod Kumar, Paramhans Kumar, Anil and Kumar. The other two witnesses are Prince Kumar and Lav Singh who are also named as witnesses in seizure and complaint. Both have signed as witnesses. It is apparent that Anil Kumar, the informant who was a member of the raiding team is also the Investigating Officer in the case. The trial had commenced on February 4, 2022. The evidence was closed on November 21, 2022. Dinesh Ram and Ranjit Kumar were examined as witnesses by the defense. 

It is noteworthy that the judgement of the Additional Sessions Judge-VIII, Bhojpur has not found the three accused, namely, Nav Kumar Ojha, the owner of the truck from Pundru thana, Hazaribagh, Shankar Yadav, the driver of the truck from Sarwaha thana, Hazaribagh, and Pritam Lakra, the helper from Kuddu, Lohardagga to be guilty of offences under Section 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. But they have been found guilty of offences under Section 20 (b) (ii) (C) and Section 25.

Section 20 (b) (ii) (C) of the NDPS Act was substituted by the Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with effect from October 2, 2001. There were over 40 amendments made in the original NDPS Act, supposedly to address certain obligations specially in respect of the concept of ‘controlled delivery’ arising from the UN Convention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances 1988 to which India is one of the 87 signatories out of 192 parties since March 27, 1990. Prior to that India amended the NDPS Act for the first time in 1989. The UN Convention came into force on November 11, 1990, in accordance with Article 29(1) of the Convention. The NDPS Act was amended in 2014 as well. Some 25 amendments were made under the 2014 legislation.

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) B of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 

 

A careful perusal of the judgement of the reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) and (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) and (C) of the NDPS Act.

Section 25 of NDPS Act deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence." This provision too was substituted by the Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with effect from October 2, 2001. 

A bare reading of Section 25 of NDPS Act shows that Pritam Lakra, the helper of the  truck in question is not covered under the ambit of Section 25. It seems that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 25.    

The judgement of Virendra Kumar Choubey, the Additional Sessions Judge-VIII, Bhojpur does not find that he deserved punishment for abetment and criminal conspiracy under Section 29 of the NDPS Act. Section 29 reads: "(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which--(a) would constitute an offence if committed within India; or(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India." 

Admittedly, Pritam Lakra was not involved in any conspiracy. If he was not involved in conspiracy, he has no role in the offence in question and he is not a beneficiary of any sort, how can he be deemed guilty under Section 20 (ii) (b) and (C) and Section 25 of the NDPS Act.  

In this backdrop, the High Court's order of February 22, 2024 assumes huge significance. It  reads: "Since a prayer for suspension of has sentence been made in the memo of appeal, Mr. Sujit Kumar Singh, the learned APP shall put in the written objection by the next date. Re-notify this appeal on receipt of the Trial Court Records on 4th of April, 2024." The order was authored by Justice Ashutosh Kumar. The next listing date for hearing is April 4, 2024.

Patna High Court dismissed PIL seeking protection of Zinda Shah Saheed Baba Mazaar

In the matter of an old and historical Mazaar of Zinda Shah Saheed Baba situated at Kayamnagar, Bhojpur on the four lane of National Highway No. 30 and 84 connecting Koilwar to Bhojpur, Roona, the counsel for Haji Md. Riyazuddin, the petitioner prayed for protection of Zinda Shah Saheed Baba Mazaar. The local public of all communities pay great respect to this old and historic Mazaar Sharif since long time. However, on account of approval and ongoing construction of the aforenoted four lane National Highway 30 and 84, the authorities are bent upon to shift/relocate the Mazaar, in question, despite several representations before the competent authorities with a request to protect it and not to disturb the same. The petitioner had also challenged the notice dated September 16, 2022 issued by the District Magistrate, Bhojpur directing to relocate /shift the Mazaar before the High Court. 

Although the petitioner was not opposed to construction of National Highway, but is only concerned with the religious sentiments of the people at large and moreover when alternative measures are available like to make Diversion, Golambar or Flyover, the respondents should take steps to protect the sentiments of the followers from all faiths and religion. It is lastly submitted that the Mazaar, in question, is a Waqf property
and without having any permission from the Bihar State Sunni Waqf Board, it cannot be demolished or shifted to any other place. 

The order records that a meeting of all stakeholders, including Roona, the Advocate for the petitioner and local community member was convened by the Collector, Bhojpur on March 6, 2023 to discuss and deliberate on the possibility of arriving at a consensus for the peaceful shifting of the Mazaar situated at Kayamnagar. The proceeding of meeting, as contained in Memo No. 194 dated March 7, 2023 was brought on record.

It emerged that no consensus could be arrived at as the local people and the Advocate for the petitioner were not ready for shifting of the Mazaar. The petitioner submitted his option in order to save the Mazaar being shifted to different place viz. Change in alignment, construction of Golambar, construction of Flyover and slope down the Mazaar. The authorities of the National Highway Authority of India, who were also present in the meeting have not found the option provided by the petitioner feasible, as the existence of the Mazaar, in question, falling in the alignment is causing great inconvenience and hindrance to the movement of traffic on the National Highway, which is High Speed Corridor and due to the structure, in question, it has become accident prone. Hence, the submission has been made on behalf of the respondents that there is no option but to shift the said Mazaar, as has been done in cases of large number of religious structures, which have been shifted earlier in this project.

The Court pointed out that in a matter, dealing with the four lane Koilwar-Bhojpur National Highway NH 30 and 84 in C.W.J.C. No. 8344 of 2021, it has directed the respondent authorities concerned to ensure that all steps are taken expeditiously so that the project may be completed within the stipulated period.

The order reveals that “Bihar unauthorized religious structures, construction, survey and its regularization, relocation and removal Rules, 2013” framed in exercise of powers conferred under Article 136 of the Constitution of India was  cited. The Court observed that "Even as per the aforesaid Rule no religious structure situated at public place could be regularized, which causes hindrance in smooth trafficking in any of the manner." 

The order inadvertently and incorrectly refers to Article 136 of the Constitution of India, which is situated in Chapter IV on Union Judiciary in Part V of the Constitution. Article 136 deals with "special leave to appeal by the Supreme Court". It provides that "(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces." It is evident that Article 136 has no relevance with regard to Bihar unauthorized religious structures, construction, survey and its regularization, relocation and removal Rules, 2013. The preamble of the 2013 Rules makes it quite clear. It reads: "In view of order passed by the Hon’ble Supreme Court in S.L.P. (c) No. 8519 of 2006 Union of India v/s State of Gujarat and others, and in exercise of the powers conferred by the Article 166 of the Constitution of India; the Governor of Bihar." 

Notably, High Court's order cites this very case law in its dismissal order. It emerges that the High Court ought to have referred to Article 166 of the Constitution of India, not Article 136. Article 166  is situated in Part VI of the Constitution of India which deals with the States and under its Chapter II on the Executive. Article 166 deals with "Conduct of business of the Government of a State". It reads: "(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." Notably, Constitution (Forty-second Amendment) Act, 1976 had inserted fourth section of Article 166 in the original Constitution of India with effect from January 1, 1977 which was omitted by the Constitution (Forty-fourth Amendment) Act, 1978 with effect from June 20, 1979.    

As per the orders of the High Court, the Administration attempted to arrive at an amicable solution but the local populous were unrelenting and the options put forth by the petitioner was not found feasible, therefore, construction of the road cannot be further delayed. 

Taking note of the importance and significance of the NH 30 and 84 High Speed Corridor, the Court did not find any substance in the present Public Interest Litigation and dismissed it.

Closure of Asbestos factory in Bihiya, Bhojpur will be a genuine tribute to the memory of Prof. Ishwari Prasad

 Legacy of Ishwari Prasad, a noted supporter of asbestos free Bihar movement will remain alive

Prof. Ishwari Prasad, noted economist from Jawaharlal Nehru University (JNU) used to argue against the externalization of health costs due to hazardous industries like asbestos industry. He said, “We cannot wait for studies and counting of dead bodies for government to act. The global evidence is incontrovertible” at the Conference on Environmental and Occupational Health in the presence of Chairman, Bihar Legislative Council  on December 24, 2012. He signed the Patna Declaration seeking environmental, occupational health infrastructure and prohibition on all forms of asbestos based products amidst anti-asbestos protest by villagers. He was addressing Collegium Ramazzini Round Table on Environmental and Occupational Diseases as part of the conference.

 

Prof. Ishwari Prasad left his mortal frame on December 28, 2023 at the age of 89 years in Patna. He is survived by Usha Prasad, his daugther and sons.

In an article in Prabhat Khabar, Prof. Ishwari Prasad had warned the government of Singur like unrest in Bihar if the proposed six asbestos plants at Goraul, Vaishali, Giddha, Koilwar, Bhojpur, Kumarbagh Industrial Area, West Champaran, Pandaul, Madhubani and Bihiya, Bhojpur by Utkal Asbestos Ltd, Nibhi company, Hyderabad Industries, A Infrastructure Ltd and Ramco company respectively are not stopped. His intervention, the struggle of villagers of Vaishali’s Chaksultan Rampur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat in Goraul block and the street protest by Patna Asbestos Virodhi Nagrik Manch, Left and socialist parties on January 16, 2012 against asbestos based plants had a positive impact.

(Photo:Prof Ishwari Prasad, former Professor, JNU and Dr. Barry Castleman, former consultant, World Health Organisation, and author of Asbestos: Medical and legal aspects)

Subsequent to the conference, Bihar Chief Minister Nitish Kumar met the leaders of ban asbestos movement led by Khet Bachao Jeevan Bachao Jan Sangharsh Committee (KBJBJC) and the leaders of left and socialist parties at his residence at 1, Anne Marg in Patna in the evening hours of February 13, 2013. Chief Minister promised that he will ‘puncture’ construction of asbestos factories in the State. Bihar Chief Minister expressed outrage at the granting of ‘No Objection Certificate’ by Bihar State Pollution Control Board (BSPCB) to hazardous asbestos based factories in fertile agricultural lands. He phoned Chairman, BSPCB and fixed an appointment for the villagers of Vaishali and expressed his disapproval for asbestos based factories to him. Villagers met the Chairman, BSPCB. BSPCB’s Chairman spoke to District Magistrate, Vaishali and assured the villagers of necessary action for cancelling the approval given to the asbestos company’s plant. 

Following Chief Minister’s intervention Bihar’s State Investment Promotion Board (SIPB) and the State Cabinet disapproved all the asbestos based industrial projects and rescinded these approvals except the one at Bihiya, Bhojpur where two units of Tamil Nadu based Ramco company’s plant was already constructed.

The villagers have been protesting against these units which have been found by BSPCB to be operating in violation of specific environmental laws. It has been violating Supreme Court’s verdict dated 27 January 1995 which paved the way for adoption of occupational health surveillance under the Environmental Impact Assessment (EIA) Guidance Manual-Asbestos Based Industries by the Union government. Besides these laws and the Court’s order, the company is in violation of the three Schedules under Occupational Safety, Health and Working Conditions (OSHWC) Code 2020 which refer to hazardous asbestos mineral fiber and asbestosis, an incurable disease. 

BSPCB has a consistent position against these two units of Ramco company’s hazardous asbestos plants pursuant to which Vivek Kumar Singh, as Chairman, BSPCB cancelled the Non-Objection Certificates (NOCs) given to the hazardous enterprise of Ramco company under Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Rules 3 (1), Schedule 1 of Hazardous Waste (Management, Handling and Transboundary Movement) Rules under Environment (Protection) Act 1986. These Rules deal with hazardous wastes generated during the production of asbestos or asbestos-containing materials including asbestos-containing residues, discarded asbestos and dust/particulates from exhaust gas treatment.  

 

Following the cancellation of NOCs, the company approached the Appellate Authority to appeal against the cancellation. At the time of their appeal the Appellate Authority happened to be Vivek Kumar Singh himself who as Chairman, Bihar State Pollution Control Board (BSPCB) had cancelled their NOCs. The company used this apparent violation of the principle of natural justice as a ground to seek relief from the Patna High Court. It got the relief. Instead of confirming its order asking the State government to rectify the error by appointing a person as Appellate Authority in compliance with the principle of natural justice and unmindful of the fact that the fact of violation of environmental laws has not been disputed, the High Court allowed the company to operate its plant. But now that the Appellate Authority has been changed as per Court's directions and the error has been rectified and now the High Court has asked the Chairman, BSPCB to act after examining the complaint against it, the matter is before you. 

 

BSPCB's legal action could not become effective because of the order of a single judge bench of 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 the Appellate Authority being the same person.

(Source: https://indiankanoon.org/doc/64804529/

 

It is a fact that the Court’s order 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. (Source: http://bspcb.bih.nic.in/Categorization_10.10.18_new.pdf) 

 

Subsequently, a Division Bench of the High Court comprising Justices Ajay Kumar Tripathi and Niku Agrawal passed another order modifying the previous order in the Bihar State Pollution Control Board v. 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: https://indiankanoon.org/doc/85967218/ 

 

The legal action taken by the BSPCB against the asbestos based factories of Ramco Industries Limited is praiseworthy. As a follow up of BSPCB’s previous action in this regard, there is a need to address the public health crisis as a consequence of ongoing unscientific and illegal disposal of hazardous and carcinogenic asbestos waste. The violation of all the general and specific conditions laid down in the NOC given by the BSPCB 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 is crying for attention. 

 The following news broadcasts have captures the situation in Bihiya, Bhojpur-

1.  Ramco Company: सरकार के साथ साथ दे रही जनता को धोखा, 2. रामको कंपनी ने बिहिया को बनाया डस्टबिन, 3.Asbestos के Sale व Use को Bihar में अब रोक दीजिए Nitish जी, नहीं तो बच्चे ऐसे ही सो जाते रहेंगे, and 

4. Buying Asbestos is buying Cancer: Chairman, Bihar Legislative Council 

The following methods in disposing of asbestos waste (dust and fibers) by the company in question has been noticed at the site of both the units of Ramco company:

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 agricultural land and villagers who use it for drinking purposes. 

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 the company's responsibility for disposal. Normally, the destination of such 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 the 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 the factory into unmarketable sizes like 1 meter length and gifted as CSR activities. The cutting process emits a 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 groundwater. Cutting broken bigger asbestos sheets also pose danger as asbestos  fibers become airborne. 

5. Wherever cement is handled in bags inside the 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 Mahtin Mai temple and to the parking space of the District Magistrate's office as an exercise in ethical positioning of its brand and as a public relations exercise. The villagers, temple devotees and the district administration have been taken for a ride. They have acted in complete ignorance of the Board's action against Ramco's factories.

The stance of Chief Minister Nitish Kumar who has declared in the State Assembly that Bihar Government will not allow construction of carcinogenic asbestos factories in the state on 1st July, 2019 is worthy of appreciation.  This announcement and the verdict by the Italian Court vindicates  the anti-asbestos struggle by villagers of Bhojpur. 
BSPCB'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, 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).” The 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.”

In such a backdrop, it is quite distressing that Ramco company's factories in Bihiya managed to get relief from Patna High Court on a procedural ground of violation of natural justice. Now that the procedural error has been rectified, the operation of the two units of Ramco asbestos company must be stopped. Its operation is a case of environmental health lawlessness. It has violated every specific and general condition which has been stipulated in the environmental clearance and the No Objection Certificate.

It is necessary to initiate preventive action in the face of tycoons, officials and ministers facing criminal charges and imprisonment for their act of knowingly subjecting unsuspecting people to killer fibers of asbestos in Europe. The future will be no different for the culprits in India. It is quite clear from the Court’s order that Chairman, BSPCB has to re-issue the “fresh order in accordance with the law after hearing the parties”  and reiterate its earlier order against the both the asbestos based units in Bihiya, Bihar. 

(Photo: Prof. Ishwari Prasad with Awadhesh Narayan Singh, Chairman, Bihar Legislative Council, Dr. Barry Castleman, Justice Rekha Kumari and Advocate Dr Gopal Krishna addressing conference environmental and occupational health in Patna)  

The closure of both the units will be a genuine tribute to the memory of Prof. Ishwari Prasad who wished Bihar to be a asbestos free and asbestos related disease free state, worthy of emulation by other states.