Madras High Court
V.Jayabalan vs Secretary To Government on 15 September, 2009
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.09.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.14216 of 2006 V.Jayabalan ... Petitioner Vs. 1.Secretary to Government Finance (Treasuries and Accounts I) Department Fort St.George, Chennai 600 009. 2.Commissioner of Treasuries and Accounts Panagal Building, Saidapet, Chennai 600 015. 3.Treasury Officer District Treasury, Thanjavur. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.16 of 2003 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the impugned order passed by the 1st respondent herein in his proceedings Govt.Lr.No.8801/KaKa2/2002-1 dated 05.03.2002 and quash the same and consequently direct the respondents to sanction the Medical reimbursement to the applicant as per the proposal sent by the 2nd respondent in his proceedings Na.Ka. 73040/2000/H.4 dated 28.01.2002. For Petitioner : Mrs.Nirmala Daisy For Respondents : Mr.P.Muthukumar Government Advocate O R D E R
The Original Application in O.A.No.16 of 2003 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The petitioner is a Superintendent in District Treasury, Thanjavur. His son, who was an Engineering student, aged 23 years, was admitted in Apollo Speciality Hospital, Chennai on 05.11.1999 and underwent surgery of "Total Hip Replacement" on 06.11.1999. He was suffering from Rheumatoid Arthritis. He was discharged from the hospital on 12.11.1999. The petitioner made a claim on 14.09.2000 for medical reimbursement of Rs.1,22,959/-.
3.The third respondent, passed an order dated 17.10.2000, rejecting the claim made by the petitioner, on two grounds. The first ground was that the claim was made belatedly. The second ground was that for undergoing surgery for Rheumatoid Arthritis, the petitioner could not make a claim, since the same was not included as the specialised advanced surgery under the Rules.
4.The second respondent sent a revised proposal dated 28.01.2002 to the first respondent, wherein, it is stated that the surgery was not for Rheumatoid Arthritis and on the other hand, it was "Total Hip Replacement". The son of the petitioner, suffered hip movements due to Rheumatoid Arthritis and the suffering was due to the said disease and however, the surgery was "Total Replacement of Hip", which was nothing to do with Rheumatoid Arthritis. In the said revised proposal dated 28.01.2002, the second respondent further stated that since the son of the petitioner was in the hospital, the petitioner was mentally affected due to the family circumstances and there was a delay in submitting the application, claiming medical reimbursement and the delay could be condoned. However, the first respondent, passed an order dated 05.03.2002, confirming its earlier order.
5.Aggrieved by the same, the petitioner filed Original Application in O.A.No.16 of 2003 (W.P.No.14216 of 2006) to quash the order of the first respondent, rejecting the claim made by the petitioner for reimbursement of the expenses spent for the "Total Hip Replacement" surgery for his son.
6.Heard Ms.Nirmala Daisy, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate for the respondents.
7.The Government of Tamil Nadu issued G.O.Ms.No.400, Finance (Salaries) Department, dated 29.08.2000, providing for reimbursement of medical expenses for certain surgeries and treatments. Para 4 of the aforesaid G.O., read with item No.II of Schedule I in Annexure I are relevant for the purpose of this case and the same are extracted here-under:
"4.The Government, after careful examination on the recommendations of the Director of Medical Education / Director of Medical and Rural Health Services, pass the following orders:-
1) the specialised advanced surgery/treatment which were approved earlier are now classified under the broad based groups as indicated in the Annexure I to this order.
2) the private hospitals which were accredited already in the references fifth to eleventh read above have ceased to be in the approved list forthwith.
3) the revised accredited list of hospitals and the specialisation for which the hospitals are approved is indicated in the Annexure II to this order."
......................
Annexure 1 Schedule 1 List of Diseases classified under the broad based specialities:
I............
II. Orthopaedic Surgery
1.Total Hip replacement
2.Total Knee replacement"
Therefore, Item No.II(1) of Schedule 1 in Annexure 1 of the said G.O., makes it clear that the Government employees are entitled to reimbursement of medical expenses for "Total Hip replacement".
8.The Apollo Speciality Hospital, Chennai, gave a discharge summary dated 12.11.1999. As per the discharge summary, on 06.11.1999, the son of the petitioner underwent surgery for "Total Hip replacement". The relevant portion of the discharge summary under the head "Operation Notes" is extracted here-under:
"Operation Notes: On 06.11.99 under GA he underwent left uncemented total hip replacement."
In the discharge summary, though it is stated that the patient was suffering due to Rheumatoid Arthritis, the surgery performed was "Total Hip replacement". Due to the Rheumatoid Arthritis, the patient developed pain and swelling in multiple joints involving both knees, left hip and small joints of hand and foot. The following is stated in the discharge summary under the head "History of Present Illness":-
"Patient developed pain and swelling in multiple joints involving both knees, left hip and small joints of hand and foot. He was diagnosed to have Rheumatoid Arthritis with DMART at USA followed by treatment in India. His other joints were improved well and his left hip too has become less painful but no further improvement is obvious. He has pain with left hip on bearing weight on left left lower.
No history of diabetes mellitus, pulmonary tuberculosis, hypertension or bronchial asthma."
9.Therefore, the second respondent while resubmitting the claim of the petitioner in his letter dated 28.01.2002, clearly stated that the son of the petitioner underwent "Total Hip replacement" surgery, which is covered under the Tamil Nadu Government Employees Health Fund Scheme. The letter of the second respondent dated 28.01.2002, resubmitting the claim of the petitioner makes it very clear that Rheumatoid Arthritis caused restricted left hip movement, necessitating "Total Hip replacement" by way of surgery.
10.The aforesaid statement of the second respondent in the letter dated 28.01.2002, is supported by the discharge summary dated 12.11.1999, issued by the Apollo Speciality Hospital, Chennai, which performed "Total Hip replacement" on the son of the petitioner.
11.Hence, the reasons stated for rejecting the claim of the petitioner are not valid reasons. The attitude of the Government authorities in dealing with matters relating to reimbursement of medical claim and rejecting the same on technical grounds was disapproved by this Court and by the Honourable Supreme Court by a catena of decisions. The very purpose of the provision of medical reimbursement is pursuant to Article 21 of the Constitution. Therefore, this Court has repeatedly held that the reimbursement claim could not be rejected on technicalities. The real test is whether actually the patient was treated and underwent surgery. If it is so, the authorities could not reject the claim on technical grounds, such as, the disease was not a listed one and the hospital is not a listed hospital and the claim is made belatedly, etc.
12.In this regard, the learned counsel for the petitioner has relied on a judgment of this Court in V.PALANIAMMAL VS. SECRETARY TO GOVERNMENT reported in 2008 (2) MLJ 852. Para 6 of the judgment is extracted here-under:
"6.Such a detailed reference to different kinds of treatment falling under open heart surgery only shows that while all the above treatments falling under Clause a to g came within the common category of open heart surgery which was the treatment already provided for in the earlier Government Orders including G.O.Ms.No.400 dated 29.8.2000, the present expanded classification of the said open heart surgery cannot be construed as an inclusion of new treatment in order to state that for such a treatment the eligibility would arise only after the issuance of the present G.O.Ms.No.378 dated 13.10.2005. Similarly, such a view has been expressed by Justice D.Murugesan in the decision in E.Ramalingam v. Director of Collegiate Education, College Road, Chennai-6 and Another, (2006) 3 MLJ 641 : 2007 Writ L.R. 1073 paragraph 7 and 8 are relevant which reads as under at p.643 of MLJ:
"7.In matters like this, the Government Orders should not be strictly construed as on the date when the Government Order was issued, the treatment viz., PTCA Stent could not have been invented or introduced. In recent days, the concept of treating ailments, has advanced so much, thanks not only to the Speciality Hospitals, Doctors specialised in the modern/advance treatments, but also the advanced techniques in method of treatment with use of sophisticated equipments. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expertised both on academic qualifications and experience gained. Very little scope is left to the patient or his relative to decide as to manner in which the ailment should be treated.
8. .... The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds as found in the impugned order. Having regard to the above lacunae in the earlier Government Order and issuance of subsequent Government Order including not only the treatment but also the hospital, I am of the view that the petitioner is entitled to claim reimbursement."
13.The other ground for rejecting the claim is that the claim was made belatedly. In the reply affidavit, it is stated in para 5 that the claim was not preferred within 60 days from the date of discharge from the hospital as per the rules governing Tamil Nadu Government Employees Health Fund Scheme and that the claim was preferred after 306 days from the date of discharge from the hospital.
14.Neither the impugned order dated 17.01.2001 nor the order dated 05.03.2002 give the concerned Rule, which prescribes time limit for making claim for medical reimbursement. On the other hand, G.O.Ms.No.400, Finance (Salaries) Department, dated 29.08.2000, the very scheme providing for medical reimbursement, nowhere stipulates any time limit. Even assuming that a time limit is prescribed, the same cannot be quoted to deny the very claim itself. The purpose of prescribing time limit was only for reimbursement of the medical expenses at an early date. The purpose was not to deny the claim. In fact, the issue came for consideration by a Division Bench of this Court in W.P.No.27368 of 2008 dated 15.12.2008. The relevant paras from the said judgment are extracted here-under:
"15.In similar case of E.Ramalingam vs. The Director of Collegiate Education (2006(4) CTC 832), taking into consideration the fact that rejection of the claim for medical reimbursement which was submitted after delay of 23 days excluding 60 days from the date of discharge was illegal, this Court held that the time limit prescribed cannot be strictly construed as Government order is beneficial Executive Order in order to claim medical reimbursement. This Court further held that real test must be factum of treatment before medical claim is honoured.
16.In the present case, the respondents have not disputed the factum of treatment. It is also not in dispute that the treatment for ailment both as indoor patient and outdoor patient after operation at post operative stage, by way of physiotherapy, as stated by the petitioner. In such a situation, nobody can take the date of release from the hospital as the cut off date to count some sort of period of limitation to reject the application. Further, we find that the scheme for medical reimbursement under the Tamil Nadu Government Employees Health Fund Rules, 1991 is a beneficial legislation, wherein no time limit is fixed by the Government under the Rules. In such a situation, giving reference to the Commissioner of Treasuries letter dated 26th July, 1999 for quick disposal of claims, the Special Secretary of the Government has no jurisdiction to frame a time limit of 60 days from the date of discharge from the hospital to file a claim for medical reimbursement.
17.In the case of State of Punjab and others Vs. Mohinder Singh Chawla and others (1997(2) SCC 83), taking into consideration that the claim for medical reimbursement cannot be denied on the ground that it is contrary to the Government resolution dated 25th January, 1991 of the said case, the Supreme Court observed, as right to health is integral to the right to life and the Government is under a constitutional obligation to provide health facilities.
18.In this background we hold that paragraph (a) of letter No.57995/Salaries/99-1 dated 10th October 1999, whereby the Special Secretary to Government prescribed time limit of 60 days from the date of discharge from the hospital for claiming medical reimbursement is arbitrary and illegal. The said paragraph (a) of letter No.57995/Salaries/99-1 dated 10th October 1999 is accordingly set aside. The impugned order dated 16th February 2008 passed by the Registrar, City Civil Court, Chennai, being passed on the basis of clause (a) of the aforesaid illegal letter dated 10th October 1999 is also set aside. The case is remitted to the respondents to issue order for medical reimbursement to the extent to which the petitioner is entitled under law, on the basis of the documents submitted by him without making technical dispute that it has not been submitted in the prescribed format. If so, require the petitioner be providing with form and signature be obtained from him. The actual reimbursement be made within two months from the date of receipt or production of a copy of this order, failing which the respondents will be liable to pay interest at the rate of 8% on such dues from the date on which the petitioner filed the application for reimbursement."
15.In view of the aforesaid judgment of the Division Bench of this Court, the first respondent is not correct in rejecting the claim of the petitioner on the ground of delay. Accordingly, the impugned orders are quashed and the first respondent is directed to reimburse the eligible amount towards the "Total Hip replacement" surgery underwent by the son of the petitioner, within a period of four weeks from the date of receipt of a copy of this order.
16.With the above direction, the writ petition is disposed of. No costs.
TK To
1.Secretary to Government Finance (Treasuries and Accounts I) Department Fort St.George, Chennai 600 009.
2.Commissioner of Treasuries and Accounts Panagal Building, Saidapet, Chennai 600 015.
3.Treasury Officer District Treasury Thanjavur