Central Administrative Tribunal - Ernakulam
Balakrishnan K V vs Southern Railway on 24 May, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/00574/2022
Friday, this the 24th day of May, 2024
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Balakrishnan.K.V., Aged 68 years, S/o Velayudhan
(Retired Chief Traveling Ticket Inspector
Southern Railway, Shoranur, Palakkad District)
Residing at: KARUVARIL House, Chuduvalathur
Shoranur, Palakkad 679 121
- Applicant
[By Advocates: Sri.T.C.Govindaswamy, Smt.Kala T.Gopi,
Smt.Renuka M.R., Smt.Nishitha Balachandran]
1. Union of India Represented by the General Manager
Southern Railway, Headquarters Office
Park Town P.O., Chennai-600 003.
2. The Chief Personnel Officer, Southern Railway
Headquarters Office, Park Town P.O., Chennai-600 003.
3. The Chief Medical Director, Southern Railway
Headquarters Office, 4th Floor, Moore Mark Complex
Park Town P.O., Chennai-600 003.
4. The Chief Medical Superintendent, Southern Railway
Palghat - 678 009.
5. The Additional Chief Medical Superintendent
Southern Railway, Palghat- 678 009.
6. The Railway Board, Rail Bhavan, New Delhi 110 001
through its Secretary.
- Respondents
[By Advocate: Smt.Mini R Menon, ACGSC]
O.A.No.574/2022 2
The application having been heard on 12.03.2024 the Tribunal on
24.05.2024 passed the following:
ORDER
Applicant is a retired Chief Travel Ticket Inspector of Palakkad Division of Southern Railway. He retired from service on 30.06.2014 after putting a lengthy service of nearly 39 years, commenced from 06.08.1975. He is subscriber of RELHS, Railway Employees Liberalised Health Scheme, 1997.
2. According to the applicant, in terms of paragraph 612 A of the Indian Railway Medical Manual, he is entitled to get full medical facilities as admissible to serving employees. He was undergoing treatment in Railway Hospital since 2016 for Hepatocellular Carcinoma with Chronic Liver disease and portal hypertension. He was also undergoing treatment in Amrita Institute of Medical Sciences and Research Centre, AIMS, Kochi. Medicines prescribed in AIMS were being issued by the Railway Hospital at Palakkad. While so, it is submitted, due to unexpected internal bleeding noticed during a visit to AIMS on 18.12.2020, he was asked to undergo immediate liver transplantation. As the position was critical, he O.A.No.574/2022 3 had to undergo surgery immediately as a life saving effort. In the precarious situation, his wife was willing to donate liver, which was acceptable. He underwent liver transplantation on 22.12.2020 and continued treatment in AIMS till 04.01.2021. Even thereafter, he is undergoing treatment in AIMS, medicines are being supplied by the Railway Hospital at Palakkad as prescribed in the AIMS.
3. According to the applicant, for the treatment he had to incur an amount of Rs.28 lakhs besides Rs.2 lakhs spent for the treatment of his wife, donor. They are still under treatment. Thereafter, he submitted a claim for medical reimbursement for an amount of Rs.18,89,970/- along with Annexure-A6 representation. But the respondents returned the same stating that liver transplantation being a planned surgery prior permission had to be obtained as per the Railway Board/CGHS guidelines. Again, he gave Annexure-A7 representation to the 4 th respondent, which was also returned on the same lines.
4. Referring to Annexure-A8 guidelines issued for liver transplantation surgery, he submitted that his claim has been rejected or O.A.No.574/2022 4 returned arbitrarily, without application of mind. He was subjected to liver transplantation surgery in an emergency condition. In the situation he could not move for prior sanction that there is a provision for ex-post- facto sanction and to reimburse the treatment expenses. According to the applicant, in such emergency situation, it may not be possible always to get prior permission.
5. Thus Annexures-A1 and A2 are sought to be quashed. He also seeks a declaration that he is entitled to get the amount reimbursed and to give a direction to reimburse Rs.18,89,970/-, as claimed by him.
6. On behalf of the respondents the 4 th respondent filed reply contradicting the contentions of the applicant. The claim that he was suffering from Hepatocellular Carcinoma with chronic Liver disease is not disputed. Similarly, the surgery undergone also is not disputed. But, according to them, reimbursement of the amount could be done only in terms of the guidelines issued by the Railway Board.
7. Respondents dispute the claim of the applicant that he was admitted in AIMS on 18.12.2020 with unexpected internal bleeding. O.A.No.574/2022 5 Such an aspect cannot be inferred from Annexure-A4/R1(a) discharge summary. According to them, he was admitted for liver transplantation on 18.12.2020 for the elective surgery in AIMS. After identifying his wife as the donor, detailed prior evaluation of both donor and the recipient were done, which indicate that it was not an emergency procedure. There was enough time for him to attend Railway Hospital and to get approval from the Competent Medical Authority after Medical Board evaluation. He did not follow the Railway Board guidelines for evaluation by a Medical Board and get approval of the competent authority prior to liver transplantation as instructed in Annexure-A8/R1(b). Annexure-A4 is silent about any internal bleeding or other emergency condition. Moreover, it is clear that both the applicant and his wife were worked up earlier on fitness for surgery and compatibility. It is again stated that it was not an emergency surgery, following internal bleeding. Procedure to be followed in an emergency situation is described in Annexure-R1(c) communication issued by the Railway Board. Here, no such condition prevailed.
O.A.No.574/2022 6
8. According to the respondents, the claim has been made on false and misleading information. He was admitted for an elective liver transplantation surgery with prior work up. Hence the O.A. is sought to be dismissed.
9. I heard Sri.Kailesh T.Gopi, learned counsel for the applicant and Smt.Mini R.Menon, learned Additional Central Government Standing Counsel for the respondents.
10. The vital contentions of the applicant are not in dispute. Applicant is a former Railway employee entitled the coverage under the RELHS. Similarly, it is not disputed that he is a known case of Hepatocellular Carcinoma with Chronic Liver disease. He was undergoing treatment for the same in Railway hospitals, which continued in AIMS, Kochi, which is a reputed superspeciality medical centre. It is also not disputed that medicines prescribed by the AIMS were being supplied from the Railway hospital.
11. However, the claim of the applicant that he was subjected to life saving emergent liver transplantation procedure on 22.12.2020 is O.A.No.574/2022 7 disputed by the respondents. According to them, no such emergency prevailed. It being a planned surgery requiring identification of the donor, preparations were made much in advance; the applicant could not establish any such emergency situation, he had time for attending a Railway hospital and to undergo evaluation by the competent medical board in terms of the guidelines issued by the Railway Board. In the circumstance, they have disowned liability to pay Rs.18,89,970/-, amount claimed towards reimbursement of the treatment expenses.
12. Both sides have produced the discharge summary of the applicant. It is certain from Annexure-A4/R1(a) that the applicant was admitted in the Gastroenterology Department of the AIMS on 18.12.2020, subjected to liver transplantation surgical procedure on 22.12.2020 and discharged on 04.01.2021. It is also clear that he was a known case of recurrent Hepatocellular Carcinoma with Chronic Liver disease with portal hypertension. It is true that the discharge summary is silent about any internal bleeding allegedly suffered by the applicant on 18.12.2020, which prompted the doctors to subject him to emergency O.A.No.574/2022 8 surgical procedure. All the same, the document states that 'in view of his high meld score he was worked up for the liver transplantation by a multi disciplinary team. His wife Mrs. Jayasree, liver donor was also worked up as per donor protocol, who was found fit for surgery'. Thus he was admitted for surgery on 18.12.2020 and the surgery was done on 22/23/12/2020..
13. Annexure-A8/R1(b) is the guidelines and ceiling limit for liver transplantation surgery of beneficiaries of Railway Medical Attendance Rules/RELHS. Clause 6 reads thus:
"6. Reimbursement criteria:- As Liver Transplant Surgery is a planned surgery and, therefore, prior permission has to be obtained before the surgery is undertaken. However, if for some reason it is done in emergency to save the life of the patient, the medical board shall consider the case referred to it for recommending grant of ex-post-facto permission on a case to case basis."
That means, even though prior permission is the rule, in appropriate circumstances, the guidelines postulate grant of ex-post-facto permission. Here, the respondents have virtually rejected the claim of O.A.No.574/2022 9 the applicant without probing into the possibility of granting such an ex- post-facto permission.
14. After evaluation of the rival contentions, I am of the definite view that the claim of the applicant ought not to have been rejected at the threshold without facilitating a decision by the competent authority.
15. Firstly, normally, one would not prefer to undergo a major surgical procedure especially like a liver transplantation surgery. Liver transplantation is a risky, adventurous surgery and would be done only in extreme medical emergencies. It postulates two major surgeries, for the donor as well as for the recipient patient. It requires treatment by expert super specialists. It cannot be assumed that they would venture a liver transplantation surgery in a light hearted manner.
16. As held by the Hon'ble Supreme Court in Shiv Kanth Jha v. Union of India, {(2018) 16 SCC 187] ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in O.A.No.574/2022 10 which the ailment should be treated. It is further stated that the real test must be the factum of treatment, whether the claimant had actually taken treatment and such treatment is supported by records duly certified by the doctors concerned. According to the Apex Court, once it is established, the claim cannot be denied on technical grounds.
17. Here the factum of treatment is beyond dispute. The applicant had undergone surgical procedure when he had approached the hospital for treatment and in view of his high meld score he was worked up for liver transplantation by a multi disciplinary team.
18. Secondly, as adverted to earlier, he is a known case of recurrent Hepatocellular Carcinoma with Chronic Liver disease with portal hypertension. He was taking treatment in Railway hospitals, which continued in the AIMS. Indisputably, medicines prescribed from AIMS were being given through the Railway hospitals, perhaps in terms of RELHS Rules. The contention of the applicant that even after undergoing treatment, medicines prescribed from AIMS are supplied by Railway hospital at Palakkad is not disputed.
O.A.No.574/2022 11
19. Thirdly, even though liver transplantation is a planned surgery, the Railway Board accepts exceptional situations, which provides for grant of ex-post-facto permission in appropriate cases.
20. It is true that the discharge summary does not show that he was taken to hospital with internal bleeding requiring emergency surgery. All the same, the medical condition of the applicant coupled with prolonged treatment suggest that he was subjected to an emergency surgery on 23.12.2020.
21. Having regard to the rival contentions, I am convinced that the respondents should not have rejected the claim at the inception. The claim of the applicant should have been considered by the Medical Board in terms of clause 7 of Annexure-R1(b).
22. It seems, having regard to the circumstances, the applicant should have been given an empathetic consideration by the respondents. Even if it is assumed that preparations for the surgery was made much ahead, given the physical condition, it might not have been possible for the applicant to undertake a tedious journey to a Railway hospital O.A.No.574/2022 12 situated far away and seek advise from the Medical Board. Moreover, in appropriate cases the rider in the guidelines itself enables to consider grant of post surgery sanction. That benefit should not have been denied to the applicant. Annexures-A1 and A2 have been issued in an arbitrary manner without proper application of mind. Both the communications are quashed. The respondents are directed to consider the claim afresh in an empathetic manner. If necessary, it is open to them to verify the medical records of the AIMS after taking the Director/Medical Officer of the hospital at appropriate level, into confidence. After reconsidering the claim an order shall be passed within a period of four months from the date of receipt of a copy of this order.
Original Application is allowed to the above extent. No costs.
(Dated this the 24th May, 2024) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A.No.574/2022 13 List of Annexures Annexure A1: A true attested copy of the Letter No.J/MD.105/IV dated 20.12.2021, issued by the 5th respondent.
Annexure-A2: A true attested copy of the Letter No.J/MD.105/IV dated 07.07.2022, issued by the 4th respondent.
Annexure-A3: A true attested copy of the Essentiality Certificate and Certificate of Emergency issued by the AIMS, Kochi Annexure-A3(a): A true attested typed legible copy of Annexure-A3. Annexure-A4: A true attested copy of the Discharge Summary, issued by the AIMS, Kochi Annexure-A5: A true attested copy of the medical claim, dated 11.01.2021 less attachments Annexure-A6: A true attested copy of the representation along with medical claim dated nil, addressed to the 4th respondent.
Annexure-A7: A true attested copy of the representation dated 28.04.2022 addressed to the 4th respondent.
Annexure-A8: A true attested copy of the Railway Board order bearing No.2010/H/6-1/POLICY (Liver Transplant) dated 28.06.2013 Annexure R1 (a): Copy of the discharge summary issued by AIMS, Kochi. Annexure R1 (b): Copy of the Railway Board order No.2010/H/61/Policy (Liver Transplant) dt.28.06.2013.
O.A.No.574/2022 14Annexure R1 (c): Copy of the Railway Boards letter dtd 31/01/2007