News Item Titled Nine Workers Killed in Blast in an Explosives Factory Near Nagpur Appearing in the Hindu Bureau DATED18.12.2023 v. the Deputy Chief Controller of Explosives Dts Gondkhairi Amravati Road Nagpur

NGT19 Nov 2024Original Application No. 28/2024

Case brief

AI extract

What is this about?

The Tribunal calculated Environmental Damage Compensation of Rs.1.10 Crores against Solar Industries India Ltd. for a fatal blast killing nine workers, applying the principle of absolute liability and ordering 5% of the unit's profit to be deposited with the MPCB.

What the court decided

AI extract

News Item Titled Nine Workers Killed in Blast in an… — Environment and Pollution | NGT (2024)

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(Pune Bench)

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BEFORE THE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH, PUNE

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[Through Physical Hearing (with Hybrid Option)]

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ORIGINAL APPLICATION NO. 28 OF 2024 (WZ) [Earlier Original Application No.796 of 2023 (PB)]

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News item titled “Nine workers killed in blast in an explosive factory near Nagpur”, appearing in The Hindu Bureau dated 18.12.2023

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Versus

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Maharashtra Pollution Control Board, Through its Member Secretary, Kalpataru Point, 3^rd and 4^th Floor, Opp. PVR Theatre, Sion (E), Mumbai – 400 022

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District Magistrate, Collector Office, Civil Lines, Nagpur – 440 001

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Solar Industries India Ltd., Chakdoh, Tahsil Katol, District Nagpur, Maharashtra

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The Chief Controller of Explosives, DTS, Gondkhairy, Nagpur – 440 023

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CSIR National Environmental Engineering Research Institute, Nehru Marg, Wardha Road, NEERI Campus, Nagpur – 440 020 (Near Anjing Chowk)

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Visvesvaraya National Institute of Technology, Nagpur, South Ambazari Road, Nagpur, Maharashtra

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Laxminarayan Institute of Technology, Rashtrasant Tukadoji Maharaj Nagpur University, Amravati Road, Opp. Bharat Nagpur, Nagpur .… Respondents

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APPEARANCE :

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Respondents : Ms. Manasi Joshi, Advocate for R-1/MPCB

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Mr. Gopal Sawal, Advocate holding for Mr. Sunil Manohar, Senior Advocate for R-3 Mr. Atul J. Pathak, Advocate with Mr. Pushkar Sapre, AGP For R-4

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O.A. No.28 OF 2024(WZ)

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CORAM : HON’BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER

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================================================================= Reserved on : 07.11.2024 Pronounced on : 19.11.2024

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=================================================================

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JUDGMENT

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In this Original Application, suo motu cognizance has been taken by the Principal Bench of this Tribunal of a news item titled “Nine workers killed in blast in an explosives factory near Nagpur”, appearing in `The Hindu Bureau” dated 18.12.2023. In the said occurrence, nine workers got killed due to the explosion which took place during the sieving operation in the building where boosters for use in coal mines were made.

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By the first order dated 18.01.2024, passed by our predecessor Bench/Principal Bench, this matter was transferred to this Bench. Record reveals that respondent No.1 – MPCB had constituted a Committee by its order dated 03.05.2024 in this matter and report of the said Committee has been submitted, which is annexed at pages 424 to 430 of the paper-book, which was considered by this Tribunal in its order dated 01.07.2024, which reads as follows:

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“1. By our previous order dated 09.04.2024, we had directed impleadment of CSIR-National Environmental Engineering Research Institute (NEERI), Visvesvaraya National Institute of Technology (VNIT), Nagpur and Laxminarayan Institute of Technology (LIT), Nagpur as respondent Nos.5 to 7 respectively in the present Original Application because it was apprised by the learned counsel for respondent No.1MPCB that it had constituted an Expert Committee comprising the abovementioned Institutions to assess the environmental damage but report was not filed till then. In order to ensure that the report is submitted, we had directed their impleadment as respondents in the present Original Application.

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2. We find that above-mentioned report has now been submitted, which is annexed at page nos.424 to 430 of the paper book, wherein environmental damage cost has been calculated to the tune of

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O.A. No.28 OF 2024(WZ)

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Rs.50,66,685/- and several suggestions have also been made in that report.

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3. From the side of respondent No.3-Solar Industries India Ltd., Chakdoh, Nagpur, learned counsel Mr. Gopal Sawal has appeared, who submits before us that he has not received a copy of this report, though the learned counsel for respondent No.1- MPCB submits that the same has already been served upon the respondent No.3 through e-mail. But we direct her that a copy of the same shall be served upon the respondent No.3 again through e-mail today itself, who may file objection against the said report, if any, within two weeks.

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4. From the side of respondent No.3, two reply affidavits have already been filed, 1st affidavit is dated 06.04.2024, wherein, in para no.3, details of the persons, who have died in the occurrence and the payments made till date to the legal heirs of the said deceased, have been given in tabular form along-with their age and total emoluments/salary. The another reply affidavit is dated 20.06.2024, which has been filed in compliance with our previous order dated 09.04.2024, which also contains the preventive measures, which have been adopted by the respondent No.3- Project Proponent in order to ensure that no such occurrence recurs.

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5. Today, from the side of respondent No.4- The Chief Controller of Explosives, learned counsel Mr. Atul J. Pathak has appeared before us, who has filed reply affidavit dated 30.06.2024, wherein, in para no.9, it has been mentioned that the building, where the accident happened, was approved for manufacturing of HMX/RDX Compounded Product. However, as per the CCTV footage on the date of accident, sieving operation of TNT, which was not part of the process approved for the said building, was being carried out. Therefore, it was noticed that unapproved/unsafe sieving operation was undertaken since 13.12.2023, in order to meet the required specification of export orders of TNT. The License of the respondent No.3 was suspended immediately in the interest of safety and the District Magistrate was also requested to conduct a judicial enquiry as per the Explosives Act, 1884.

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6. Orally, it is submitted by the learned counsel for respondent No.4 that the said enquiry report is still awaited. Therefore, we direct the respondent No.2- District Collector to submit an outcome of the said Enquiry Report within a period of four weeks positively.

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7. Vide our previous order dated 09.04.2024, we had also directed the respondent No.1- MPCB to clarify as to what ER 2008 stands for, regarding which a clarification is submitted by the respondent No.1 by

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O.A. No.28 OF 2024(WZ)

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filing an additional affidavit dated 27.06.2024, wherein it is made clear that ER stands for Explosive Rules, 2008. It is also mentioned in this affidavit that Trinitrotoluene contaminated soil from the site of accident was disposed off after decontamination as per the Explosive Rules 2008, at Common Hazardous Waste Safe Treatment and Disposal Facility. It is further mentioned in this affidavit that the respondent No.3, according to the Explosive Rules- 2008, disposed of hazardous waste material having quantity 1240 kg. stored at the incidence site on 26.02.2024 to the Common Hazardous Waste Safe Treatment & Disposal Facility (CHWTSDF), Butibori, MIDC Nagpur, which information has been verified also.

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Put up this matter for further consideration on 10.09.2024.”

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Thereafter, the matter was considered by us on 10.09.2024 on which date, following order was passed:

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“1. By our previous order dated 01.07.2024, the respondent No.3-Solar Industries India Ltd., Chakdoh, Nagpur was directed to file objection against the Joint Committee Report, which has calculated the environmental damage cost to the tune of Rs.50,66,685/- against them. In compliance with the same, the respondent No.3 has filed their objection dated 21.08.2024 before this Tribunal, wherein it is recorded that the imposition of Environmental Damage Compensation to the tune of Rs.37,500/- and valuation towards the Emissions amounting to Rs.29,185/- are not disputed by the respondent No.3 and is ready to pay the same.

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2. It is further mentioned in this objection by the respondent No.3 that the Committee observed that, the potential contamination of ground water requires comprehensive testing and treatment, which cannot be determined and computed now. It has been further observed that, the accident falls under the category of landfill breach and release of hazardous waste into the environment and as such, the penalty of Rs.50,00,000/- has been imposed. The Committee has also observed that, actual data of water contamination, if any pollution load during processing and long-term impacts of such hazardous waste, is not quantifiable. In this regard, the respondent No.3 submits that the accident doesn't fall under the category of landfill breaches and hazardous waste, hence objections against the said report has been mentioned in para no.7 sub-para (i) to (vii).

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O.A. No.28 OF 2024(WZ)

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3. On the basis of above-mentioned objections, the respondent No.3 has prayed before this Tribunal that the penalty amount may be reduced and that the respondent No.3 undertakes to submit bank guarantee of such amount and as per the directions of Maharashtra Pollution Control Board, the company undertakes the work of restoration for the damage caused to the accident site and to the environment, if any, at its own cost and thereafter the bank guarantee may be released.

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4. Thereafter, the learned counsel for respondent No.3 submits before us that this matter needs to be fixed for final hearing as his senior would be arguing in this matter, who is not available today and prays for two weeks’ time to be allowed for the same. We allow the said time.

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5. From the side of respondent No.4- The Chief Controller of Explosives, learned counsel Mr. Atul J. Pathak has appeared before us, who has filed reply affidavit dated 30.06.2024, wherein it is submitted that occurrence took place on 17/12/2023 at around 9:00 AM when an explosion occurred in the HMX / RDX Compounded Product Pellet Casting House-2 (Process Building No: HR-CPCH-2 which was marked as CBH-2 on site of accident) situated in the premises of respondent No.3 during the process of TNT to obtain the desired size of TNT and packing of the same in bags. The said building was completely razed to ground in the explosion, resulting in the death of 9(Nine) workers. Details of the same are given in para no.7 along-with the age and their gender.

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6. It is further mentioned in this reply affidavit by the respondent No.4 that as per the CCTV footages on the date of accident, sieving operation of TNT, which was not a part of the process approved in the building, was being carried out. This was undertaken since 13/12/2023 in order to meet the required specification of export orders of TNT. It is further mentioned that the license of the respondent No.3 was suspended immediately in the interest of safety and the District Magistrate was also requested to conduct judicial enquiry as per the Explosives Act, 1884. The investigation report dated 28/02/2024 carried out by answering respondent is annexed as Annexure -R4-A.

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7. From the side of respondent No.2- District Magistrate, Nagpur, reply affidavit dated 13.08.2024 has been filed, wherein we find that the same facts have been reiterated in this affidavit with respect to the occurrence, which we have already mentioned in the affidavit of other

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parties. Besides, it is also mentioned in this affidavit that Rs.5 lakh per deceased was released by the State Government to the kin of diseased; Rs.20 lakh per deceased person was released from the company management; and assurance of one employment to the dependents of the deceased was given from the company.

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8. It is further mentioned in this affidavit by the respondent No.2 that the answering respondent taking the cognizance of the above facts, in exercise of the powers conferred upon the District Magistrate, Nagpur under section 9(1) of the Explosives Act, 1884, issued an order on 19.12.2023 for a Magisterial enquiry into the said accident, directing that the said Magisterial inquiry shall be conducted by the SubDivisional Magistrate Katol, in the manner prescribed U/s 9(2) of the said Act. The said Inquiry Report is annexed at page nos.488 to 512 of the paper book, wherein it is mentioned that explosion might have been caused due to generation of static charge, though workers working in HR-CPCH-2 unit were trained regarding safety measures as conveyed by officials of solar industries. There was no proper authority from the safety dept. to ensure that all safety precautions were strictly followed. Sieving operation of TNT was not in the process of the building and the same was found to be illegal without any authorized permission from the PESO. It was also revealed that no permission for change in use of process in HR-CPCH-2 building was sought from the officials of Solar Industries India Limited. No safety SOP was designed for this sieving operations and last visit of safety official to HR-CPCH-2 plant was on 30.10.2023 but the actual sieving process was started in HR-CPCH-2 building on 13.12.2023. This was also revealed from the reports of Dy. Director Industrial Safety & Health that the occupier has not furnished, till the day of explosion i.e. 17.12.2023 to the inspector, an updated on site emergency plan prepared by the factory, containing the particulars specified in Schedule 6 of the Maharashtra Factories (Control of Industrial Major Accident Hazard) Rules, 2003.

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9. In view of the request made by the learned counsel for respondent No.3-PP, we direct the Registry to list this matter for final hearing on 16.10.2024.”

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Lastly, the matter was considered by us on 16.10.2024 and following

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order was passed:

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O.A. No.28 OF 2024(WZ)

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“1. From the side of respondent No.1- MPCB, learned counsel Ms. Manasi Joshi has appeared before us.

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2. From the side of respondent No.3- Solar Industries India Ltd., Chakdoh, Nagpur, learned counsel Mr. Gopal Sawal has appeared, who submits before us that he has already filed reply affidavit in this matter. We direct the respondent No.3 to file profit and loss statement within a period of one week. He has also stated that he may give calculation with respect to the payment of compensation amount to the family of deceased persons on the basis of Sarla Verma’s case. We would like the calculation to be submitted from its side in this regard within two weeks. He further submits before us that respondent No.3 has agreed to pay the penalty amount, which has been calculated by the MPCB.

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3. From the side of respondent No.4- The Chief Controller of Explosives, learned counsel Mr. Atul J. Pathak has appeared before us. 4. We find that the respondent No.5- CSIR- National Environmental Engineering Research Institute, Nagpur; respondent No.6- Visvesvaraya National Institute of Technology, Nagpur; respondent No.7- Laxminarayan Institute of Technology, Nagpur, which are said to be members of the Joint Committee, have not filed any separate replies in this matter.

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Put up this matter for further consideration on 07.11.2024.”

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In compliance with the said order dated 16.10.2024, respondent No.3 – Solar Industries India Ltd. had submitted its Profit and Loss Statement of the company as well as the calculation of the compensation to be paid to the legal heirs of the deceased persons in accordance with the principle laid down by the Hon’ble Supreme Court in the case of Sarla Varma . These details have been filed by respondent No.3 through their affidavit dated 31.10.2024 (pages 521 to 539 of the paper-book). We have gone through this affidavit and find that the calculation, which has been made of the amount due to be paid to the legal heirs of nine deceased persons at page 536 of the paper-book, is as follows:

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O.A. No.28 OF 2024(WZ)

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The above calculations are in accordance with the principle laid down in the case of Sarla Varma , as per which in the last column of above table, balance amount is indicated, which is yet to be paid to the legal heirs of the deceased persons.

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Since we have found that the said amount is calculated as per the principle laid down in the case of Sarla Varma , we approve of this amount to be paid to the legal heirs of nine deceased persons, who are indicated in the above table/chart. This amount shall be disbursed to the legal heirs of nine deceased persons after their proper identification by the concerned District Magistrate and the amount to be paid to them shall be deposited by respondent No.3 – Project Proponent within a period of one month from the date of uploading of this order.

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With regard to the amount of Environmental Damage Compensation (EDC), the calculation thereof is given by the Joint Committee in its report dated 27.06.2024 @ Rs.37,500/- per day and additional liability cost of Rs.50 lakhs for landfill breaches and hazardous waste release has also been added and an amount of Rs.29,185/- is calculated for the emissions of CO2 and CO and thus, total amount comes to above Rs.50,66,685/-. But we are

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of the view that this amount has been assessed on the lower side, as, in our view, we should go by the judgment of the Hon’ble Supreme Court in the case of MC Mehta v. Union of India; AIR 1987 SC 1086 , wherein following principle of `absolute liability’ has been laid down and it should be followed in the present matter too. Relevant portion of the said judgment is quoted hereinbelow:

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“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standard of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part…If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not………. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Ryland v Fletcher. …We would also like to point out that the measure of compensation in the kind of cases referred to in the

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preceding paragraph must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.”

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Apart from above, we would like to rely on the judgment delivered by the Hon’ble Supreme Court in Civil Appeal No.10854 of 2016 ( M/s Goel Ganga Developers India Pvt.Vs. Union of India through Secretary ), wherein in paragraph No.57, following is held:

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“57. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone upto 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc.. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs.100 crores or 10% of the project cost whichever is more…..”

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Based on above rulings, we are of the view that in the case in hand, in which nine persons have died, the principle of `absolute liability’ would be invocable and accordingly, the amount of EDC is being calculated @ 5% of the profit earned by respondent No.3 – Project Proponent in the year ending on 31.03.2024. Respondent No.3 has provided this information to us, which is at page 526 of the paper-book, which shows that their total profit was

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Rs.596.30 Crores for the above mentioned period for its 27 units. Since the occurrence took place at one of the locations of respondent No.3 i.e. at Nagpur, we are not having any specific amount of profit for that unit at Nagpur. Therefore, we deem it appropriate to calculate the profit of Nagpur unit of respondent No.3 to the tune of Rs.22.08 Crores (i.e. Rs.596.30 Crores divided by 27) and 5% of that amount of Rs.22.08 Crores comes at Rs.1.10 Crore. So, in our estimation, this amount of Rs.1.10 Crore is appropriate, which needs to be realized from respondent No.3 – Project Proponent towards the amount of EDC and this amount shall be deposited by respondent No.3 with Maharashtra Pollution Control Board within one month from the date of uploading of this order, which shall be utilized for improvement of the environment in the locality concerned.

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With above directions, we dispose of this Original Application.

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No order as to costs.

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Dinesh Kumar Singh, JM

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Dr. Vijay Kulkarni, EM

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November 19, 2024 O.A. No.28 OF 2024(WZ) npj

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O.A. No.28 OF 2024(WZ)

News Item Titled Nine Workers Killed in Blast in an Explosives Factory Near Nagpur Appearing in the Hindu Bureau DATED18.12.2023 v. the Deputy Chief Controller of Explosives Dts Gondkhairi Amravati Road Nagpur

Case brief

What is this about?

What the court decided

News Item Titled Nine Workers Killed in Blast in an Explosives Factory Near Nagpur Appearing in the Hindu Bureau DATED18.12.2023 v. the Deputy Chief Controller of Explosives Dts Gondkhairi Amravati Road Nagpur

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