Madhya Pradesh High Court
Bhopal Gas Peedith Mahila Udyog ... vs Mr. Bhanu Pratap Sharma on 9 January, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No.15658/2012, W.P. No.17901/2014 & Conc.832/2015
( Jabalpur, dated 9.01.2018)
Shri Naman Nagrath, Senior Advocate with Shri Rajesh
Chand, Advocate for the petitioners.
Shri Vikram Singh, Advocate for the Union of India.
Shri Sanjay Dwivedi, Deputy Advocate General for the State.
Shri Vijit Sahu, Advocate for the intervener.
Bhopal Gas leak disaster occurred on the intervening night of
2/3rd December, 1984. As per report of the Scientific Commission
for Continuing studies on Effects of Bhopal Gas Leakage on Life
Systems released in the month of July, 1987 the estimated
population exposed to the toxic gases in the Bhopal Gas Tragedy
was around 200000. Latter, in the study carried out by the Indian
Council of Medical Research, the figure of affected population is
said to be around 500000.
2. A writ petition W.P. (C) No.50 of 1998 was filed before
the Hon'ble Supreme Court under Article 32 of the Constitution of
India, wherein directions were issued from time to time including, to
establish Bhopal Memorial Hospital & Research Centre vide order
dated 15th May, 1988 for the purpose of providing proper health care
and medical attention to the affected gas victims. Bhopal Memorial
Hospital Trust was constituted vide deed dated 11-8-1998 to manage
2
the said Hospital. Latter, the Management of the Trust was taken
over by the Govt. of India as the Hospital was placed under the
control of the Ministry of Health & Family Welfare. On 17 th
September, 2004 Monitoring Committee and Advisory Committee
were directed to be constituted in order to monitor suitability,
availability and maintenance of medical equipments, deployment of
adequate and competent medical personnel, more specifically the
treatment offered at the hospitals and the functioning of these
hospitals run by the Government for the Bhopal Gas victims,
purchase and availability of medicines to the affected persons etc.
The following directions were issued by the Supreme Court :
"26. It is commonly conceded before us that the corpus
money stands completely transferred to theMinistry of
Health and Family Welfare, Department of Health
Research (for short DHR) and they have also taken over
the management of BMHRC.
xxx xxxx xxxxx
34. It would still be in the interest of Bhopal Management
Hospital Trust (BMHT) itself, particularly when the
management and the corpus of the BMHT have been
transferred to the Union of India that the Government
agency, besides regularly inspecting the accounts of the
BMHT, also gave their final report for the period ending
July 2010. The Auditor General of the State of Madhya
Pradesh would be the appropriate authority to inspect the
3
accounts of the BMHT regularly even when the
management and corpus thereof is transferred to the Union
of India.
35. Having noticed in detail the factual aspect of this case,
the suggestions made by various applicants,
recommendations of the expert bodies and keeping in mind
the very object for which the present Public Interest
Litigation was instituted, we are of the considered view
that issuance of certain specific directions are inevitably
called for. These orders would be to ensure proper progress
and implementation of the Relief and Rehabilitation
programme for the penurious gas victims as well as to
ensure that the research work is result-oriented and
continued with exactitude. We make it clear that these
directions shall be in aid of the various orders passed by
this Court from time to time in the present petition and not
in derogation thereto. In other words, all orders passed by
this Court with specific reference to the orders mentioned
above, shall be read mutatis mutandis to these directions
and shall remain in force. The orders-cum-directions are :
1) This Public Interest Litigation (Writ Petition (Civil)
No.50 of 1998) shall stand transferred to the jurisdictional
Bench of Madhya Pradesh High Court for better and
effective control in this case. All applications filed
henceforth shall be dealt with and disposed of by the
concerned Bench of the High Court, in line with the
various orders passed by this Court, so as to ensure proper
functioning of the Relief and Rehabilitation Programme,
working of the expert bodies and utmost medical care and
treatment to the gas victims.
2) We request the Chief Justice of the Madhya Pradesh
High Court to ensure that the case is dealt with by a Bench
4
presided over by the Chief Justice himself or a Bench
presided over by the senior most Judge of that Court or any
other appropriate Bench in accordance with the High Court
Rules of that Court or any special legislation governing the
subject in that behalf.
3) Since the space already provided appears to be
insufficient, the State of Madhya Pradesh is hereby
directed to ensure provision of proper and adequate office
space for the Monitoring Committee and the Advisory
Committee, to perform their functions effectively. The
space so provided should be accessible to public so that the
gas victims can conveniently approach the Monitoring
Committee for redressal of their grievances and
difficulties.
4) We also direct the State Government to provide proper
infrastructure to the Committees in the independent office
space provided to it. The members would also be entitled
to receive Rs.1,000/- honorarium for each effective
meeting. However, no honorarium shall be payable on a
day when the meeting is adjourned or no effective business
is performed in the meeting of the Committee.
5) The Monitoring Committee has already been authorised
and it is hereby clarified that it would hear the complaints
and, if necessary, can even call for the records from the
concerned hospital or department, record the statements of
Government servants or employees of the hospital and
make its recommendations to the Government for taking
appropriate steps. If no action is taken by the State
Government even upon a reminder thereof, the Committee
would be well within its jurisdiction to approach the High
Court for appropriate directions. We make it clear that the
Empowered Monitoring Committee shall have no penal
5
jurisdiction. It shall discharge its functions strictly within
the framework of the powers vested and functions awarded
to it under the orders of this Court. Such suggestions of the
Monitoring Committee shall be primarily recommendatory
and reformative in their nature and content.
6) The Empowered Monitoring Committee shall have
complete jurisdiction to oversee the proper functioning of
the hospital, i.e., Bhopal Management Hospital & Research
Centre (BMHRC) as well as other Government hospitals
dealing with the gas victims. This jurisdiction shall be
limited to the problems relateable to the gas victims and/or
the problems arising directly from the incident or even the
problems allied thereto. We make it clear that the
Empowered Monitoring Committee shall have no
jurisdiction over the private hospitals, nursing homes and
clinics in Bhopal. However, it does not absolve the State of
Madhya Pradesh and the Medical Council of India from
discharging its responsibilities towards the gas victims who
are being treated in private hospitals, nursing homes or
clinics. We do expect these authorities to hear the
grievances of the complainants as well as to ensure
maintenance of due standards of treatment in these
hospitals, nursing homes or clinics.
7) We direct the ICMR as well as NIREH to ensure that the
research work is carried on with exactitude and
expeditiousness and further to ensure disbursement of its
complete benefit to the gas victims. We do not permit the
research work to be carried out by any private/non-
governmental institution, except the ICMR and NIREH.
8) The Government of India has already resolved to
establish the NIREH and carry on the research work, for
which it has been provided due infrastructure. Thus, we see
6
no reason why the research work should not progress at the
requisite pace in all fields while providing benefits for
proper care and treatment of patients in the various
hospitals in Bhopal. We further issue a clear direction to
theUnion of India and the State of Madhya Pradesh to
render all assistance, financial or otherwise, to ensure that
there is no impediment in the carrying on of the research
work by the specialized institutions.
9) The Monitoring Committee must operationalize medical
surveillance, computerization of medical information,
publication of health booklets etc. The Monitoring
Committee shall also ensure that the health booklets and
smart cards are provided to each gas victim irrespective of
where such victim is being treated. This direction shall
apply to all the hospitals run by the Government or
otherwise, in Bhopal. We direct the State Government to
provide assistance in all respects to the Empowered
Monitoring Committee and take appropriate action against
the erring officer/officials in the event of default. We also
direct complete computerization of the medical
information in the Government as well as non-government
hospital/clinics, which should be completed within a period
of three months from today.
10) We are informed that there are large number of
vacancies of doctors and supporting staff in the hospitals
and allied departments. In the BGTRRD, 80 per cent posts
of specialists and 30 per cent of doctors are lying vacant.
Some posts are also lying vacant in the Fourth Grade staff.
Thus, we direct the concerned authorities to take
appropriate steps in all respects not only to fill up these
vacancies but also to provide such infrastructure and
facilities that the doctors are not compelled to or prefer to
7
resign from BMHRC employment and its various
departments, due to inadequate facilities.
11) The Union of India, the State Government and the
ICMR should even consider the proposal for providing
autonomy to BMHRC and even make it a teaching
institution so as to provide attractive terms, studies and job
satisfaction therein. This will not only help in providing
better opportunities of employment but would better serve
the purpose of providing care and treatment of high quality
to the gas victims.
12) It is indisputable that huge toxic materials/waste is still
lying in and around the factory of Union Carbide Corp. (I)
Ltd. in Bhopal. Its very existence is hazardous to health. It
needs to be disposed of at the earliest and in a scientific
manner. Thus, we direct the Union of India and the State of
Madhya Pradesh to take immediate steps for disposal of
this toxic waste lying in and around the Union Carbide
factory, Bhopal, on the recommendations of the
Empowered Monitoring Committee, Advisory Committee
and the NIREH within six months from today. The disposal
should be strictly in a scientific manner which may cause
no further damage to human health and environment in
Bhopal. We direct a collective meeting of these
organizations to be held along with the Secretary to the
Government of India and the Chief Secretary of the State
of Madhya Pradesh within one month from today to
finalize the entire scheme of disposal of the toxic wastes.
The above direction is without prejudice to the appropriate
orders or directions being issued by the court of competent
jurisdiction.
13) The Advisory Committee, the Monitoring and the
NIREH shall continue to file their respective quarterly
8
reports before the High Court of Madhya Pradesh. These
reports shall be dealt with and appropriate directions be
passed by the High Court in accordance with law.
14) We have already noticed that the management of
BMHT has already been vested in the Ministry of Health
and Family Welfare, Government of India and the working
of BMHT has come to an end. We, thus, direct that the
Union of India and the State of Madhya Pradesh shall take
appropriate steps to ensure the dissolution of the Trust in
accordance with law. The BMHT was initially formed for a
period of eight years and then was constituted for an
indefinite period under the orders of this Court. In the facts
and circumstances of the case and the subsequent events,
we direct that BMHT shall stand dissolved. All concerned
to take steps in accordance with law, under which it was
created and/or registered.
15) The corpus of BMHT has already been ordered to be
transferred to the Government of India and would remain
under the control of the Ministry of Health and Family
Welfare. If any other steps are required to be taken, they
shall immediately be taken by the concerned Ministry. We
further issue a clear direction that all the Fixed Deposit
Receipts, RBI Bonds, Short Term Deposits and the bank
balance of the BMHT, Bhopal, shall stand transferred and
be under the control of the said Ministry. If any steps even
in this regard are required to be taken, we direct all
concerned to take appropriate steps.
16) Accounts of BMHRC and the allied departments, as far
as they are subject matter of the present writ petition, shall
be audited by the Principal Accountant General (Audit),
Madhya Pradesh. It shall also examine the accounts and the
9
audit report dated 15th July, 2011 submitted by M/s. V.K.
Verma and Company within three months from today.
17) We also direct the State Government and the
Monitoring Committee to evolve a methodology of
common referral system amongst the various medical units
under the erstwhile BMHRC and BGTRRD to ensure that
the gas victims are referred to appropriate centres for
proper diagnosis and treatment in terms of the nature and
degree of injury suffered by each one of them.
18) We also direct that the Monitoring Committee, with the
aid of the Advisory Committee, NIREH and the specialized
doctors of BMHRC, issues a standardised protocol for
treating each category of ailment that the gas victims may
be suffering from. This shall be done expeditiously. It will
be highly appreciated if the Committee also prescribes
scientific categorization of patients and injuries.
19) Lastly, we direct all concerned in the Union of India,
State of Madhya Pradesh, Empowered Monitoring
Committee, Advisory Committee, ICMR, NIREH,
BMHRC and all other Government or non-government
departments/ agencies involved in the implementation of
Relief and Rehabilitation Programme and research activity,
to carry out the above directions expeditiously and without
demur and default. We grant liberty to the applicants and/or
the petitioners or any other affected person to move the
High Court of Madhya Pradesh, Bench at Jabalpur, in the
event of violation, non-compliance or default of any of the
above directions or any other orders passed by this Court.
36. Before we part with this matter, we consider it our duty
to place on record our appreciation for the able assistance
rendered by the learned counsel appearing for the
10
respective parties and the functions performed by the
various Chairpersons and Committees constituted under
the orders of the Court, including the Bhopal Memorial
Hospital Trust.
37. This writ petition is transferred to the High Court of
Madhya Pradesh in the above terms. All applications are
disposed of accordingly."
The above order was passed on 12-8-2012 when corpus of
Rs.436.47 crore was available with the Trust. But even after a span
more than 5 years, the victims of the Bhopal Gas Leakage Disaster
are still deprived of proper medical care and attention.
3. This Court has been passing orders from time to time,
considering the quarterly reports submitted by the Monitoring
Committee, Bhopal Gas Tragedy Relief & Rehabilitation, chaired by
Shri Justice V.K. Agrawal (Retd.). A detailed order was passed on
15-02-2017in respect of framing of rules for appointment under the proviso of Article 309 of the Constitution of India. The Govt. of India sought a year's time to frame rules. The Court granted a month's time. But even after almost a year, the rules have yet not been finalised. Today, it is argued on behalf of the Government of India that the Department of Personnel and Training and the Union Public Service Commission should be impleaded as party, as rules cannot be finalised without their consultation. 11
4. It may be stated, that on 20-9-2017 hearing was deferred with an observation, that if the recruitment rules for appointment of teaching faculty and non-teaching staff of Bhopal Memorial Hospital & Research Centre are not framed, then this Court will be constrained to seek personal presence of the Secretary, Ministry of Health and Family Welfare, Govt. of India.
5. On 6-11-2017 when the matter was again called upon for hearing, learned counsel for the Government of India filed response to the 11th Quarterly Report of the Monitoring Committee. It was pointed out that 9 Consultants (Medical), 23 Senior Residents and 13 Junior Residents have joined the Bhopal Memorial Hospital & Research Centre. It was further pointed out that once the Recruitment Rules for Group A are finalised, sanctioned posts of Specialist Doctors will be advertised and recruited through the Union Public Service Commission. It was noticed that the progress of recruitment of doctors is not satisfactory as some appointments were made on contract basis, but much still requires to be done. Therefore, while deferring the hearing, it was ordered that if the Recruitment Rules are not finalized or a decision is not taken that Recruitment Rules as applicable to All India Institute of Medical Sciences, Bhopal would be applicable for the purposes of 12 recruitment of Group A post in the Bhopal Memorial Hospital & Research Centre, the Secretary, Ministry of Health and Family Welfare shall remain present in the Court.
6. Today, it is pointed out by the learned counsel appearing for the Union of India that the In-charge Secretary, Ministry of Health and Family Welfare is attending a meeting at Goa and that the Joint Secretary, Ministry of Health and Family Welfare is present in Court.
7. The question is not the presence of the Secretary and Joint Secretary of the Ministry of Health and Family Welfare but treatment of the victims of the Bhopal Gas Leak Disaster. Even after more than 33 years, the victims of the tragedy are still not getting proper medical care and attention. More than 400 Crores Rupees were the Corpus with the Government of India in the year 2012 out of which more than half was fixed in the FDRs. Instead of taking expeditious steps for utilisation of the money and recruitment of doctors/specialists to provide long term solution for the treatment of the Bhopal Gas victims, the bureaucracy is not moving and if moving, it is at a snails' pace.
13
8. The arguments advanced on behalf of the Union of India that the Department of Personnel & Training and the Union Public Service Commission should be impleaded as party is only an argument to further delay the proceedings in order to provide proper medical health and care to the victims of the Bhopal Gas Disaster. The Ministry of Health and Family Welfare is an administrative Ministry for medical care to the victims of the Bhopal Gas Leak disaster. Therefore, it is for the said Ministry to frame rules in consultation with the all stakeholders rather than seeking deferment of hearing for impleadment of Department of Personnel and Training and the Union Public Service Commission. Therefore, the request of Shri Vikram Singh, standing counsel for the Union of India is declined.
9. Shri Vikram Singh, seeks some more time to enable the Government of India to frame rules. We find that framing of the recruitment rules is the first step. The appointment of doctors/specialists in order to provide adequate medical facilities and care to the Bhopal Gas victims will start later. Thus, the actual relief to the victims may be still years away. Therefore, We decline the request of the learned standing counsel for the Union of India to adjourn hearing for three months.
14
10. We post the matter for hearing to 14-02-2018 with the hope and trust that the Ministry of Health and Family Welfare would be able to finalise the Recruitment Rules, so that specialists/doctors as are required can be appointed to provide proper medical care and attention to the Bhopal Gas Disaster victims promptly and expeditiously.
11. We hereby direct that the Secretary, Ministry of Health of Family Welfare, shall remain present in Court, if the Rules are not notified. We hope that the Recruitment Rules would be notified on or before the next date of hearing, i.e., 14-02-2018, failing which appropriate orders will be passed.
List on the date fixed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY
KUMAR CHATURVEDI
Date: 2018.01.10 19:06:07
+05'30'