KRISHNA MOHAN SHUKLA Vs. UNION OF INDIA

JUDGEMENT

(1.) By virtue of Section 9 of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (hereinafter called "the Act") a scheme came to be framed called "The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985", (hereinafter called "the Scheme"). As per the Scheme, certain Deputy Commissioners came to be appointed under Section 6 of the Act for registration of claims arising within the area of their respective jurisdictions. Para 4(1) of the Scheme provides that an application for claim shall be made to the Deputy Commissioner concerned in the appropriate form within a period of sixty days from the date notified by the Commissioner inviting applications for claims. We were told by the learned Additional Solicitor General that no date has been notified by the Commissioner under this provision. Para 4-A(1) provides that notwithstanding anything contained in para 4, all applications received for claims, whether before or after the commencement of the Scheme, shall stand transferred along with the relevant records to the Office of the Deputy Commissioner concerned and as if such application has been made under para 4. The Deputy Commissioner is then expected to process the application in accordance with the provisions of the Scheme. Para 5(1) next provides that on receipt of a claim under para 4 of the Scheme (the application under para 4-A is also to be treated as an application under para 4). The Deputy Commissioner shall, subject to the provisions of sub-paras (3) and (4), place the claim in the appropriate category under sub-para (2) and thereafter register the claim. Sub-para (2) of para 5 enumerates the categories from (a) to (o) in which the claim has to be placed before registration of the claim. After the claims are so categorised, sub-para (3) of para 5 states that on the consideration of a claim, if the Deputy Commissioner is of the opinion that the claim falls in a category different from the category mentioned by the claimant, he may decide the appropriate category after giving an opportunity to the claimant to be heard and also after taking into consideration any facts made available to him in this behalf by the Government. It would appear from this sub-paragraph of the Scheme that if the Deputy Commissioner is of the opinion that the claim falls in a different category from the category mentioned by the claimant, he may decide the appropriate category after giving the claimant an opportunity of being heard. This would prima facie indicate that the prima facie view of the Deputy Commissioner would be that the claimant is placed in a higher category because it is only then that there is a requirement of hearing the claimant before passing appropriate orders. We will deal with this aspect a little later. However, since these are cases processed under para 4-A, they were not cases in which the claimant had an opportunity of indicating the category to which he or she belonged. Therefore, these were cases in which the category was determined at the registration stage administratively, under sub-paras (1) and (2) of para 5 of the Scheme. Cases of claimants who raised a grievance in regard to the correctness of the categorisation in relation to their claims had also to be processed and finalised either under the inherent power of the Deputy Commissioner or in exercise of power under para 5(3) of the Scheme. We enquired of the learned Additional Solicitor General as to how such grievances or disputes were determined and after consulting the officers concerned, he mentioned that they too were determined under para 5(3) read with the inherent powers of the Deputy Commissioner. Up to this stage, there is no difficulty. But the difficulty has arisen because of certain administrative orders issued by the Welfare Commissioner. These orders are dated 17.6.1994, 25.3.1995, 19.7.1995 and 16.12.1995. The purport of these orders issued from time to time was that the Deputy Commissioner shall not alter the categorisation unless the Welfare Commissioner has approved of the same. The decision which the Deputy Commissioner is expected to take under para 5(3) where the categorisation is sought to be lowered and under the same provision read with the inherent power where the categorisation is sought to be enhanced, is a quasi-judicial decision and not an administrative decision, pure and simple. By the issuance of these directions, the Welfare Commissioner has clearly impinged on the quasi-judicial decision-making power of the Deputy Commissioner. The effect of this is that if the Deputy Commissioners were to decide the question of categorisation on their own, unaided and unhampered by the Welfare Commissioner, the claimant had a right of appeal, if he was dissatisfied with the decision of the Deputy Commissioner, before the Additional Commissioner under para 5(5) of the Scheme. This right of appeal is virtually lost because if the ultimate decision is that of the Welfare Commissioner, taken administratively after the Deputy Commissioner has examined the claim in regard to the categorisation, it would virtually be an appeal from Caesar to Caesar and, therefore, the claimant is virtually denuded of his right to appeal. Viewed differently, if the Deputy Commissioners were to enhance the categorisation in favour of the claimant after hearing him under para 5(3), the Welfare Commissioner, if not satisfied, could call for the papers and suo motu decide to revise the order of the Deputy Commissioner. In that case, the claimant would have a right to be heard before the Welfare Commissioner exercises his suo motu powers. But, by these administrative directions and guidelines, since the decision is virtually that of the Welfare Commissioner, the question of his exercising suo motu powers does not arise and the right of the claimant to be heard before he exercises powers will be virtually lost. Therefore, we have no doubt in our minds that by the administrative orders and directions issued by the Welfare Commissioner to the Deputy Commissioner in regard to exercise of quasi-judicial powers, there is a fetter placed on the Deputy Commissioners which neither the Act nor the Scheme justifies and we think we cannot countenance the same.

(2.) What then is the proper direction to be issued We think that all the cases where the Welfare Commissioner disagreed with the upward categorisation conceded by the Deputy Commissioner as per the claim made by the claimant, would have to be reopened for the purpose of proper categorisation. Even in cases where the categorisation though upward, but not to the level claimed by the claimant, has been conceded to by the Welfare Commissioner as per the view of the Deputy Commissioner, notwithstanding the intervention of the Welfare Commissioner, the claimants would have a right of appeal and they would be entitled to exercise the same within the period allowed by the Scheme as if the period runs against them from today. Such cases will have to be reopened, treating the order of the Deputy Commissioner as final and then the right to appeal may be exercised, if so advised. However, in cases where the Deputy Commissioner has conceded the claim of the claimant and the Welfare Commissioner has endorsed it, there is no question of any violation of the rule of natural justice and, therefore, those cases would be allowed to rest. The Registrar of the Office of the Welfare Commissioner, Bhopal, is directed to take immediate steps in accordance with this order and place on the Notice Board of the Office, the cases falling in the aforesaid two categories, so that the claimants may be made aware of them and they can take such action as is permissible under this order.

(3.) The Registrar should complete this exercise within three weeks.