Gujarat High Court
G H Jani vs State Of Gujarat on 11 July, 2018
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/11010/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11010 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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G H JANI
Versus
STATE OF GUJARAT
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Appearance:
MR VAIBHAV A VYAS(2896) for the PETITIONER(s) No. 1
MR SHIRISH GOHIL AGP (1) for the RESPONDENT(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 11/07/2018
ORAL JUDGMENT
1. By way of this petition, the petitioner has challenged the order of the Government dated 20.4.2010 by which the petitioner is directed to refund Rs.8,02,686/- earlier released to him as medical reimbursement for the treatment of his daughter.
Page 1 of 6C/SCA/11010/2010 JUDGMENT 2. Petitioner has joined the service in Labour and
Employment Department, Government of Gujarat on 12.3.1993 as Government Labour Officer and thereafter, promoted to the post of Assistant Labour Commissioner in October, 2009. In the year 2003-04, daughter of the petitioner required medical treatment and further surgery of right ear which in medical terminology was known as "Cochlear Implant Surgery". Prior to the surgery, daughter of the petitioner was suffering from total deafness. Petitioner was advised by the Civil Hospital that apart from Ahmedabad, the Cochlear Implant Surgery was available at three places viz.USA, Australia, Austria. After some investigations, Cochlear Implant Surgery was performed upon daughter of the petitioner on 17.01.2005 at Civil Hospital, Ahmedabad. Thereafter, petitioner applied for medical reimbursement of Rs.8,02,686/- which were spent from his pocket. This amount was sanctioned and same was reimbursed to the petitioner by the Government vide order dated 29.3.2005. It appears that in the year 2010, Finance Department wrote a communication to the Health Department to recover aforementioned amount of medical reimbursement from the petitioner as the treatment was not mentioned in the Gujarat State Services (Medical Treatment) Rules, 1988. As recovery of medical reimbursement was sought from the petitioner, he has approached this Court by way of this petition.
3. After notice, respondents have contested this petition by filing reply wherein, it has been stated that after receipt of communication, Health Department has sent a proposal to the Finance Department to write off Page 2 of 6 C/SCA/11010/2010 JUDGMENT the amount of medical reimbursement. In view of such circumstances of the case, the proposal of Health Department was rejected by the Finance Department on 4.2.2010 with the following remarks:
1. There is no provision for Cochlear Implant Surgery under the Gujarat State Services (Medical Treatment) Rules, 1988.
2. It is wrongly sanctioned by the Health and Family Welfare Department.
3. The approval of the Finance Department has not been taken.
4. The sanctioned amount is Rs.8,02,686/-
which is huge amount.
5. Mr.D.M.Kathiya, employee of Gujarat Tourism Corporation Ltd. has taken this case as a Precident case and filed a Special Civil Application No.2923/2010 in the Hon'ble High Court as his case is as similar as this case.
6. The Health and Family Welfare Department has filed an affidavit dated 11.03.2010 and they have indicated that the benefit sanctioned to the petitioner was wrongly granted and the Government has decided to recover the amount granted.
While relying upon the above, the respondents have prayed for dismissal of this petition.
4. Learned counsel for the petitioner has submitted that before treatment, daughter of the petitioner was totally deaf. The treatment of Cochlear Implant Surgery was not available in the private hospitals and this treatment was available in the developed countries like USA, Australia and Austria. The treatment has been taken from the Government Hospital and daughter of the Page 3 of 6 C/SCA/11010/2010 JUDGMENT petitioner was dependent while the petitioner was a Government employee at the time of treatment. It has been argued that case of the petitioner was totally covered under the Gujarat State Services (Medical Treatment) Rules, 1988 and under these circumstances, the impugned notice for recovery of the treatment amount was liable to be quashed and set aside.
5. On the other hand, learned AGP has relied upon the written statement placed on record and has submitted that proposal sent by the Health Department has been considered by the Finance Department. However, same has been rejected in view of the fact that this case was being set as precedent by the other employees working with the State Government and there was no provision in the medical reimbursement rules to grant such a hefty amount on account of medical reimbursement to the employees specially, under the circumstances, when this type of treatment was not there in the medical attendant rules.
6. This Court has considered the submissions of both the sides. The fact that petitioner is a Government employee is not in dispute. It is also not in dispute that daughter of the petitioner was suffering from hearing impairment and required treatment of the Cochlear Implant Surgery. It is further not in dispute that this treatment was not available in India and was available in the countries like USA, Australia and Austria.
Page 4 of 6C/SCA/11010/2010 JUDGMENT
7. The reasoning given by the respondents that there was no provision for Cochlear Implant Surgery under the Gujarat State Services (Medical Treatment) Rules, 1988 cannot be accepted in view of the fact that State Medical Rules are not final for all the times to come. New research and innovations in this medical field is continuing process and more effective treatments are available every day.
8. Another reasoning given by the respondents that an employee of Gujarat Tourism Corporation has taken the case of the petitioner as precedent also cannot be made the basis to seek recovery from the petitioner. These rules are made for welfare of the Society and are required to be used liberally for their benefit in a welfare State. Authorities are not expected to stick to technicalities and adopt a wooden attitude while dealing with human beings. The treatment taken by daughter of the petitioner is from the Government Hospital and this treatment has been given by the Doctors who are working with the Health Department. Once, these Doctors have reached to a decision that a patient requires Cochlear Implant Surgery, such decision cannot be overruled by the Finance Department or the officers sitting in the Secretariat. It is always Doctors who are the best judge for treatment of their patients. This is particularly so, when this treatment was not available privately and petitioner was not in a position to take his daughter abroad.
Page 5 of 6C/SCA/11010/2010 JUDGMENT
9. Admittedly, medical reimbursement has been released to the petitioner in the year 2005 which is sought to be recovered in the year 2010 after directions from the Finance Department. This Court is of the considered opinion that once a benefit by way of medical reimbursement has been granted to an employee, the same cannot be taken back in view of the directions of the Finance Department simply for the reason that it may become a precedent for future cases.
10. In view of the afore-going discussion, this petition is allowed. The impugned notice issued by the respondents seeking recovery of Rs.8,02,686/- is quashed and set aside. Rule is made absolute. This Court wishes good luck to the daughter of the petitioner.
(MOHINDER PAL, J) (ashish ) Page 6 of 6