IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 541 of 2017 Dr. Gokaran Singh and two others .... Petitioners Managing Director, Uttarakhand Forest Development & others . Respondents Mr. Amit Kapri, Advocate for the writ petitioners. Ms. Seems Sah, Advocate for the respondents no. 1 to 3. Mr. Yashpal Singh, Advocate holding brief of Mr. Neeraj Garg for the respondent no.4. Dated: August 01, 2018 Honble Rajiv Sharma, J. Honble Sharad Sharma,J. Per: Honble Rajiv Sharma, J. The Management Board of Uttarakhand Forest Development Corporation, in its 49th meeting held on 10th February, 2015, has taken a decision to appoint one Aayush Doctor, one Pharmacist and one Nurse for the welfare of workmen and staff members working in the Garhwal and Kumaon regions. The appointment was to be made through Uttarakhand Purva Sainik Kalyan Nigam Ltd. (UPNAL). The service conditions of contractual medical doctors, pharmacist and nurses were governed as per Annexure-3 dated 26th March, 2015. According to the Service Conditions of the Contract of Medical Doctors, Pharmacist and Nurse, the period of contract was for one year. The payment of the salary of all the medical personnel was to be made by the Divisional Manager (Mining) Haldwani through the service provider under the Staff and Labour Welfare. The administrative control of the Garhwal Medical Team vested with the Divisional Manager (Mining) Dehradun and the administrative control of the Kumaon Medical Team vested with the Divisional Manager (Mining) Haldwani.
2. The Ministry of Environment, Forest and Climate Change, while giving the clearance for mining, on 15th March, 2016, has highlighted that (1) the health and safety of workers should be taken care of, and, (2) The Project Proponent shall appoint an Occupational Health Specialist for regular and periodical medical examination of the workers engaged in the project and records would be maintained.
3. The Board of Management of the respondent- Corporation has also taken a decision, in its meeting held on 29th August, 2016, to extend the medical service facilities of the workers working within the mining limits till the period of permission or till the year 2020, whichever was earlier. The Managing Director was authorized to do the needful.
4. The petitioners were appointed as Aayush Doctors in the year 2016. The petitioners were informed on 31.03.2017 by the Regional Manager, Kumaon Region that it was not possible for the department to extend their contract w.e.f. 1st April, 2017. The Regional Manager (Kumaon Region), Haldwani sent a communication to the Managing Director, Uttarakhand Forest Development Corporation on 5th April, 2017, to engage the petitioners for setting up of Health Camp. The proposal was accepted by the Managing Director on 06.04.2017 for setting up of Health Camp at Gaula, Nadhor, Sharda.
5. The Regional Manager, Tehri area, Dehradun has sent a letter on 21.04.2017 to extend the period of contract till 31.03.2018. The permission was accorded on 26.05.2017 without imposing condition. However, the fact of the matter is that despite letter dated 26.05.2017, the Managing Director cancelled the approval dated 26.05.2017 on 24.08.2017 (Annexure-1).
6. The appointment of the petitioners was as per the approval granted by the Ministry of Environment, Forests and Climate Change dated 15.03.2016 read with Resolution dated 10.02.2015 and Resolution dated 29.08.2016. The permission was accorded by the Managing Director by taking a conscious decision on 26.05.2017 but the same has been cancelled on 24.08.2017 without due application of mind. The case of the respondent-corporation is that the petitioners were engaged through UPNAL. However, the fact of the matter is that as per the service conditions of petitioners, placed on record along with annexure-3 dated 26th March, 2015, the administrative control over the Garhwal Medical Team vested with the Regional Manager, Mining, Dehradun. The administrative control over the Kumaon Medical Team vested with the Regional Manager, Mining, Haldwani. The payment of salary of all the mining personnel was to be made by the Divisional Manager, Haldwani. There is a reference of an agreement entered into between the Staff and the Respondent-corporation. It was necessary for the Forest Corporation to register itself with the Contract Labour (Regulation & Abolition) Act, 1970.
7. The respondent-Corporation is not registered under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 and the UPNAL has also not obtained the license under Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970.
8. The petitioners were under the administrative control of the Corporation and they were also paid by the Corporation. The Managing Director of the respondent- corporation could not nullify the recommendations of the Board of Management made vide resolution dated 29.08.2016 whereby the decision was taken to extend the contract till 2020. The permission, granted on 26th May, 2017, has been nullified without assigning any reasons. It is settled law that every administrative decision must disclose the reason. The appointment of medical staff was made for the welfare of the workers involved in the mining operation. According to the clearance given by the Ministry of Environment, Forests and Climate Change dated 15th March, 2016, read with in conjunction with the decision taken by the Board of Management on 10.02.2015 and 29th August, 2016, the workers employed for mining need medical care and they cannot be denied medical/health care without assigning any cogent reason.
9. Every workman has a fundamental right to medical care, as laid down by their Lordships of the Honble Supreme Court in (1995) 3 SCC 42 in the case of Consumer Education & Research Centre & others v. Union of India & others. Their Lordships have held that the right to health and medical aid of workers during service and thereafter is a fundamental right. Court can give directions in appropriate cases to State or its undertakings/instrumentalities, company or private employer to make the right meaningful and to pay compensation to affected workmen. Their Lordships have further held that the right to life includes the right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. It was further held that the Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life to be meaningful and liveable with human dignity. Their Lordships have held as under: -
19. In a developing society like ours steeped with unbridgeable and ever-widening gaps of inequality in status and of opportunity, law is catalyst, rubicon to the poor etc. to reach the ladder of social justice. Justice K. Subba Rao, the former Chief Justice of this Court, in his Social Justice and Law at page 2, had stated that: Social justice is one of the disciplines of justice and the discipline of justice relates to the society. What is due cannot be ascertained by absolute standard which keeps changing depending upon the time, place and circumstance. The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing and to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice embeds equality to flavour and enliven practical content of life. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.
20. Article 1 of the Universal Declaration of Human Rights asserts human sensitivity and moral responsibility of every State that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The Charter of the United Nations thus reinforces the faith in fundamental human rights and in the dignity and worth of human person envisaged in the Directive Principles of State Policy as part of the Constitution. The jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality.
22. The expression life assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. In Olga Tellis v. Bombay Municipal Corpn.3 this Court held that no person can live without the means of living i.e. means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would make life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In State of H.P. v. Umed Ram Sharma4 this Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the Constitution. Access to road was held to be an access to life itself in that State.
24. The right to health to a worker is an integral facet of meaningful right to life, to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes him of his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning for himself and his dependants, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article
21 read with Articles 39(e), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, public or private, is enjoined to take all such actions which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Article 21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Articles 38 and 39 of the Constitution. Facilities for medical care and health to prevent sickness ensures stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruits of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen.
25. Therefore, we hold that right to health, medical aid to protect the health and vigour of a worker while in service or post-retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48-A and all related articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.
28. It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of the Constitution.
10. Accordingly, the writ petition is allowed. Impugned annexure No.1 dated 24th August, 2017 is quashed and set aside. The respondents are directed to give effect to the resolution dated 29th August, 2016 and the letter dated 26th May, 2017 for engaging the petitioners as Aayush Doctors with immediate effect.
11. All pending applications stand disposed of. (Sharad Sharma,J.) (Rajiv Sharma, J.) 01.08.2018 Kaushal