Tripura High Court
Sri Uttam Pal vs The State Of Tripura on 4 May, 2018
Equivalent citations: AIRONLINE 2018 TRI 266
Author: Ajay Rastogi
Bench: Ajay Rastogi
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No. 1479 of 2017
Sri Uttam Pal,
S/o Lt. Rupendra Chandra Pal,
of North Badharghat, near Unayan Sangha, P.S. A.D.
Nagar, Agartala, West Tripura.
----Petitioner(s)
Versus
1. The State of Tripura,
represented by the Secretary, Rural Development
Department, Government of Tripura, New Secretariat
Building, New Capital Complex, Kunjaban, Agartala, West
Tripura - 799006
2. The Chief Engineer,
Rural Development Department, Government of Tripura,
Gurkhabasti, Agartala, West Tripura, Pin- 799006.
3. The District Magistrate & Collector,
West Tripura District, Agartala, Government of Tripura-
799001
----Respondent(s)
For Petitioner(s) : Mr. Mr. D. Bhattacharya, Adv Mr. S. Das, Adv For Respondent(s) : Mr. M. Debbarma, Addl. G.A. HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI Reserved on 20.04.2018 Pronounced on 04.05.2018 JUDGMENT AND ORDER This is a common complaint always made by a serving employee or a pensioner for reimbursement of the medical expenses incurred for the treatment on himself or the family members who are covered for medical assistance and despite there are good numbers of judgments of the Apex Court and also by the High Court, this ongoing complaint is still Page 2 of 14 not being attended by the Government which compelled the employees invoking jurisdiction of this Court u/Art.226 of the Constitution of India.
[2] The petitioner is serving as Executive Engineer took medical treatment outside Tripura from a private hospital, Apollo Speciality Hospital, Vanagaram, Chennai, his medical bills when furnished for reimbursement has been held to be not admissible for the reason that his treatment was carried out at Apollo Hospital, Chennai without being referred by the Standing Medical Board.
[3] The fact is that the Govt. authority has not even looked into the medical bills which the petitioner has furnished for reimbursement and whether in an urgent situation which is beyond control of the employee, if he has taken treatment without being referred by the Standing Medical Board either from the approved hospital or private hospital, (not approved), to what extent medical expenses/charges are reimbursable under the scheme.
[4] The brief facts of the case relevant for consideration are that the petitioner is serving as Executive Engineer and has alleged that he was attacked with stroke (TIA) during his office hour on 15th February, 2017, his office colleagues took him to the Agartala Govt. Medical College and GBP Hospital where he was admitted. Some medical testes & CT Scan were conducted in the hospital and at that stage revealed nothing serious but still he was feeling very uncomfortable and the doctors from Page 3 of 14 the State/private hospital could not diagnose but he was not feeling himself medically fit and since no specialized medical facilities are available in the State, he proceeded for his medical checkup outside the State to Fortis Hospital, Kolkata, where he checked up on 20th February, 2017 and as per advise of the Neuro Surgeon of the Fortis Hospital, all testes were undertaken including MRI Scan of his brain where it was revealed that he had attacked with stroke twice and needs immediate medical care.
[5] As alleged that the doctors of Fortis Hospital, Kolkata were unable to find out the reasons of such disorder in his body and as advised he proceeded towards Apollo Speciality Hospital, Vanagaram, Chennai, Tamilnadu for treatment, where the Neuro and Cardio doctors of the Apollo Speciality Hospital, Vanagaram, Chennai, Tamilnadu, on thorough investigation pointed out that one of his Right Carotid Artery had severe blockage more than 95% and suggested that he has to be operated immediately failing which, he may face major stroke in near future which might result paralysis of his right side of the body. In these peculiar circumstances, no other option was left and this Court can take a judicial notice on this fact that such specialized medical treatments are not available in the State of Tripura. His family members decided to go ahead for surgery for the Right Carotid Enderterectomy. [6] During the course of his own treatment, his wife, who was his medical attendant felt sick and was to be admitted to the Apollo Speciality Hospital, Vanagaram, Chennai, for Page 4 of 14 treatment of her disease (Fibroid Uterus with Mennorhagia Severe Anaemia) and his wife who too entitled for the medical reimbursement being dependent member accordingly, the medical expenses incurred by him on her treatment, furnished the joint medical bills for reimbursement on 28th April, 2017 but he was informed that the medical reimbursement bills were examined by the State Health Department and as the treatment was carried out at Apollo Speciality Hospital, Chennai without being referred by the Standing Medical Board in terms of the circular dt.25th October, 2013, the reimbursement is not admissible and informed vide communication dt. 7th of August, 2017, (Annexure-3), is the subject matter of challenge in this petition.
[7] Counsel for the petitioner submits that in terms of the guidelines laid down by the State Govt., for admissibility of medical expenses to the State Govt. officials for treatment outside the State although has to be referred by the Standing Medical Board to the prescribed medical institutions as indicated in para-A ordinarily has to seek permission for taking treatment to be referred by the Standing Medical Board but is not always possible in the course of urgency like that in the case of the petitioner, he had a stroke during office hours on 15th February, 2017, initially went to take medical assistance in the Agartala Govt. Medical College & GBP Hospital but nothing revealed and as he was still feeling uncomfortable, proceeded to Fortis Hospital, Kolkata on 20th February, 2017 and consulted all Neuro Surgeons and there he found that he had Page 5 of 14 been attacked with stroke twice but unable to find out any reason of his disorder in his body.
[8] In these peculiar circumstances, it was not possible for the petitioner to come back and take reference from the Standing Medical Board before proceeding to take a medical treatment and if there would be any delay in taking medical assistance, there was full possibility that he might have been suffered with paralysis and for urgent need his well-wishers took him to the Apollo Speciality Hospital, Chennai, Tamilnadu where he was operated his Right Carotid Enderterectomy and his wife being an attendant, she also took admission for treatment at Apollo Specility Hospital, Chennai of her disease. [9] In the given circumstances, although the permission from the Standing Medical Board has not been obtained by the petitioner for which the peculiar circumstances has been narrated and its noncompliance may not non-suit as a matter of rule and this Court can take a judicial notice of this fact that such specialized medical treatments are not available in the State of Tripura and that is the reason for which the Govt. has approved good numbers of medical hospitals indicated in the notification dt. 25th October, 2013.
[10] The petitioner indisputably has taken treatment from the Private Hospital which is not an approved hospital, but still he is entitled for reimbursement of the actual medical expenses incurred or the rates of approved private hospital in terms of notification dt. 25.10.2013 whichever is lower. Page 6 of 14 [11] Counsel for the petitioner further submits that although the petitioner being an Executive Engineer and Group- B officer, but the State Govt. under Tripura Health Assurance Scheme for Poor (THASP in short) which has been notified on 19th October 2015 published a list of approved hospitals for Govt. employees and Apollo Speciality Hospital, Chennai is one of the hospital in the approved list of hospitals for the poor employees under the scheme notified by the Govt. dt. 19th October 2015.
[12] The respondents have filed their counter affidavit and the only justification tendered is that since the medical treatment has been carried out from a private hospital without being referred by the Standing Medical Board, is inadmissible in view of the notification dt. 19th October 2013. [13] I have heard the counsel appearing for the parties and with their assistance examined the material available on records.
[14] Courts have time and again emphasized to the Government and other authorities for focusing and giving priority to the health of its citizen which not only makes one's life meaningful, improves one's efficiency, but in turn gives optimum output and to secure protection of one's life is one of the foremost obligation of the State, it is not merely a right enshrined u/Art.21 of the Constitution of India but an obligation cast on the State to provide adequate medical service to the people u/Art.47 of the Constitution of India. Page 7 of 14 [15] It is not the case of the respondents that the medical expenses incurred by the petitioner of a private hospital are not reimbursable but the impediment is that the employee has failed to take approval from the Standing Medical Board as per notification dt. 25th October 2013, it is no doubt true that financial resources are needed for providing medical facilities. But at the same time, it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical facilities/services to the people including employees. [16] It is also equally true that no State can have unlimited resources to spend on any of its project and that is why the only approves its projects to the extent it is feasible and same holds good for providing medical facilities to its citizen including its employees and expenses of medical assistance cannot be unlimited. It has to be to the extent finance permit. This has been extensively examined by the Apex Court in the case of the medical reimbursement taking note of the precedents as to what extent medical expenses are reimbursable keeping in view the circular/guidelines/rules of the State Govt. for reimbursement of the medical expenses. The Apex Court in State Of Karnataka and Another v. Sri R. Vivekananda Swamy, reported (2008) 5 SCC 328 has observed that if an employee obtains treatment from a hospital of his choice can be made limited and his entitlement will remain within the parameters of the medical scheme introduced by the Govt. for reimbursement of the medical expenses.
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"24. In view of the aforementioned settled principles of law there cannot be any doubt that the Rules regarding reimbursement of medical claim of an employee when he obtains treatment from a hospital of his choice can be made limited. Such a rule furthermore having been framed under the proviso to Article 309 of the Constitution of India constitutes conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognized government hospitals and on the other he, at his option, may get himself treated from other recognized hospitals/institutions subject of course to the conditions that the reimbursement by the State therefore would be limited."
[17] Based on the principles laid down by the Apex Court of which reference has been made one of the coordinate Bench in WP(C) No. 228 of 2013 [Sri Ajit Kumar Paul v. The State of Tripura & Others, dt. 01.07.2016] has observed that if the cardiac facilities are not available in the Govt. Hospitals nor in Govt. Medical College in the State, obviously the patient has to proceed for specialized treatments to avail medical facilities from the approved/private hospitals outside the State and in such exigencies if the patient has to wait and to first take the recommendation from the Standing Medical Board is impracticable and to the extent the employee take treatment from a approved/private hospital outside the State of Tripura, it is indeed reimbursable.
"15. Admittedly, neither in the Govt. hospital nor in Govt. medical college, treatment of cardiac problems is available though at present there is a private hospital where the cardiac treatment is available and for that also, a patient has to wait when a specialist comes from outside. Reference Page 9 of 14 by the standing Medical Board to a referral hospital itself cannot be a ground for not granting medical reimbursement to him, rather the Govt. should see whether the employee (patient) took treatment outside the State which is not available in the State of Tripura. In WP(C) 228 of 2013 Page 9 of 9 such a situation, the Govt. should not deny the medical reimbursement of its employees merely on the technical ground. This Court is of the further opinion that the claim of the petitioner is a genuine one as he is entitled to medical reimbursement and admittedly RTIICS, Kolkata is a referral hospital of the Government of Tripura."
[18] In the instant case also the State Govt. under its notification dt. 25th October 2013 indeed has approved certain private medical hospitals where the patients can take medical assistance for various ailments and if the petitioner would have taken his medical treatment from the approved private medical hospitals as indicated in para-A of the notification dt. 25th October 2013 not the medical expenses but the travel expenses as per existing pattern is also reimbursable to him and at the same time under Para-C in such a case where the officials has not undertake treatment/investigations from the referred institutions and receives treatment from the institution of his own choice, the medical expenses incurred by him is reimbursable to the extent rate fixed of the private hospital to which referral was made or the actual treatment/investigation expenses along with travelling expenses as per existing pattern whichever is lower. For purpose of reference the text of the notification dt. 25th October 2013 has been reproduced hereunder:
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"GOVERNMENT OF TRIPURA AGARTALA Enlistment of referral centers for treatment/investigation of Tripura patients duly referred by the Standing Medical Board, Agartala. Order issued.
HEALTH & FAMILY WELFARE DEPARTMENT G.O. No. 236/RT/2013 Dated, Agartala, the 25/10/2013 [File No. 2(10-43A)-DHS/Estt/MR/2013] Read : GO No. 8, dated 25th September, 2004.
[File No. 2(10-23A)-Ms/Estt/MR/2002-(P-III)] NOTIFICATION Issues relating to various operational difficulties in implementing guidelines contained in G.O. 08, dated 25-09- 2004, had been brought to our attention and then were examined by the Health & Family Welfare Department in consultation with concerned Departments. Now the Governor, Tripura is pleased to lay down following guidelines with regard to admissibility of medical reimbursement expenses to State Government Officials for treatment outside the State on being referred by the Standing Medical Board.
a) The Standing Medical Board is required from time to time to refer patients outside the State for treatment/investigation(s) of various ailments for which facilities do not exist here and in such situations, the Standing Medical Board shall refer patients only to the following Medical Institutions.
1. SSKM Hospital, Kolkata.
2. Institute of Post Graduate Medical Education & Research, Kolkata.
3. School of Tropical Medicine, Kolkata.
4. Cancer Centre and Welfare Home, Thakurpukur, Kolkata
5. Silchar Medical College & Hospital.
6. Sankar Deva Netralaya, Guwahati.
7. CMC Hospital, Vellor.
8. Care Hospital, Hyderbad.
9. National Institute of Mental Health & Neuroscience, Bangalore.
10. AIIMS, New Delhi.
b) Group-A and Group-B Officials when referred by the Standing Medical Board to the listed Institutions shall be eligible to get medical reimbursement for treatment/investigation(s) undertaken at rates of the referred institutions. They will also be entitled to get reimbursement of traveling expenses as per existing pattern.
c) In case where the above category of officials do not undertake treatment/investigations at the referred institutions and instead receives treatment/undergoes investigations for which referral was made, at an health institution of their own choice at any place, treatment/investigation(s) expenses shall be reimbursed at the rate fixed by the hospital to which referral was made or the actual treatment/investigation expenses whichever is lower. They will be entitled to get travelling expenses also Page 11 of 14 as per existing pattern but up to the referred institute only, whichever is lower.
d) When Cancer patients referred by the State Medical Board for treatment/investigation to the Cancer Centre and Welfare Home, Thakurpukur, Kolkata receive treatment/investigation at any other Cancer treatment institution of their own choice, treatment/investigation expenses shall be reimbursed at the rate fixed by CC&WH, Thakurpukur, Kolkata or the actual treatment/investigation expenses, whichever is lower. They will be entitled to get reimbursement of traveling expenses also as per existing pattern but up to the referred institute only.
e) In case of Government employee who is entitled to medical reimbursement facility, while being outside normal duty station in connection with official works, requires medical treatment, he would be eligible to obtain it at the nearest health institution where he fell ill and will be eligible to get reimbursement of treatment expenses at the rate fixed by SSKM Hospital, Kolkata or the actual treatment expenses, whichever is lower.
f) This order shall taken immediate effect and is issued in supersession of G.O. No. 08, dated 25.09.2004 [File No. 2(10-23A)-MS/Estt/MR/2002(P-III)] as also in suitable modification of instructions issued by the Health & Family Welfare Department, Government of Tripura in this regard from time to time.
By order of the Governor SD/-
Additional Chief Secretary Government of Tripura"
[19] Although, the hospital from where the petitioner has taken treatment i.e. Aplollo Speciality Hospital, Chennai is an approved hospital by the Govt. but that facility is available to Tripura Health Assurance Scheme for Poor as revealed from the notification dt. 19th October 2015 (Annexure-4) and such facilities are not extended to Group-B officers of the State of Tripura for which he has to seek permission from the Standing Medical Board and that can be ex-post-facto permission to regularize the medical treatment & expenses incurred for reimbursement.Page 12 of 14
[20] It is true that if a reference would have been obtained by Standing Medical Board constituted by the Govt. seeking permission ordinarily was advisable for the employee to attempt but the medical treatments which are not available in the State of Tripura and sometime the procedure laid down to first take permission from the State Medical Board and only thereafter to proceed for taking treatment from approved hospital or the hospital of his own choice, may not be possible and appears to be onerous and not workable specially in the emergency cases and in such exigencies, if condition of taking first referral from the Standing Medical Board for taking treatment from the approved hospital/private hospital under the notification dt. 25th October 2013 where time is an essence and not possible for the patient even to wait for an hour or for a day, still in the procedure as prescribed by the Govt. under its notification dt. 25th October 2013 has to be mandatorily followed there is full possibility that the family may lose the patient and it goes without saying that prompt and better medical treatment is of utmost priority not only for a citizen but of the State and his authorities.
[21] In my considered view, the precondition of seeking referral from the Standing Medical Board before to proceed in availing medical treatment from the approved hospital/private hospital outside the State if any, under the notification dt. 25th October 2013 is directory in character subject to fulfillment of the conditions prescribed in availing reimbursement of medical expenses under the Govt. notification dt. 25th October 2013, Page 13 of 14 where a patient has taken treatment from an approved hospital or the hospital of his choice (Other than the approved hospital) is entitled for reimbursement of medical expenses incurred to the extent of such medical expenses if incurred in taking treatment from the approved hospital or from a private hospital where he has taken treatment whichever is lower taking note of the restrictions imposed by the Govt. under its notification dt. 25th October 2013 extending financial assistance to its employees for availing medical facilities, which is a social obligation of the State.
[22] In the instant case, looking to the kind of ailment which the petitioner and his wife were suffering this Court can take a judicial notice that such medical facilities are not available in the State of Tripura and there was no option left except to take treatment either from the hospital which is approved by the Govt. under its notification dt. 25th October 2013 or from a private medical hospital of own choice, but he would be entitled for reimbursement of the medical expenses incurred which is admissible under the approved medical hospital or from a private hospital from where he has taken treatment whichever is lower under notification dt. 25th October 2013 and in the given circumstances, the decision of the Govt. holding that the medical expenses incurred by the petitioner is not admissible for reimbursement because of not being referred by the Standing Medical Board under its communication dt. 17th August, 2017 (Annexure-3) is not sustainable in law and needs to be set aside.Page 14 of 14
[23] Consequently, the petition stands allowed and the communication made to the petitioner dt.17th August 2013 is hereby quashed and set aside and the respondents are directed to examine the medical bills submitted by the petitioner for its reimbursement keeping in view the guidelines as prescribed under the notification dt. 25th October 2013. The respondents shall comply the order within two months failing which, he will be entitled for interest @9% until its actual payment. No cost.
CHIEF JUSTICE Certificate: All corrections made in the judgment/order have been incorporated in the judgment/order. A. Ghosh