Central Administrative Tribunal - Delhi
Jai Narayan Sharma vs Union Of India Through Secretary on 17 April, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.377/2008 Friday, this the 17th day of April 2009 Honble Shri Shanker Raju, Member (J) Jai Narayan Sharma Retired as Technical Assistant S/o late Shri Nathu Lal Sharma R/o 4650, Gali Mohar Singh, Pahari Dheeraj, Delhi-6 Group C aged 69 years ..Applicant (By Advocate: Shri Sourabh Ahuja) Versus 1. Union of India through Secretary Ministry of Agriculture Krishi Bhawan, New Delhi-1 2. Director General CGHS Nirman Bhawan, New Delhi 3. Additional Director (East Zone0 CGHS, Laxmi Nagar, New Delhi 4. Head of Department Directorate of Economics & Statistics Department of Agriculture Shastri Bhawan, New Delhi ..Respondents (By Advocate: Ms. Priyanka Bhardwaj) O R D E R (ORAL)
Heard the learned counsel for the parties.
2. Denial of full medical reimbursement to a government servant on the treatment incurred on his wife by an impugned order dated 14.2.2007 is the gravamen of the charge.
3. Applicant, who retired on superannuation, was member of CGHS. However, in emergency, her wife was admitted to St. Stephens Hospital, New Delhi which is a private hospital and had undergone treatment on the diagnosis of perforated appendix and pelvic peritonitis with ARF. During the procedure, not only dialysis was done trice but exploratory laparotomy was also done. A total expenditure of Rs.2,33,952/- was incurred by the applicant. Out of which, only an amount of Rs.9,999/- was paid by the respondents, which includes the cost of operation and package for exploratory laparotomy equivalent to 10% of the general ward.
4. In the above circumstances, learned counsel for applicant would contend, by relying upon the decision of Apex Court in Suman Rakheja v. State of Haryana & another, (2004) 13 SCC 563, that in case of emergency, which is not disputed in the present case, package rates as per AIIMS rates and over and above > of expenses incurred are to be reimbursed.
5. Learned counsel cited plethora of decisions, including decision of this Tribunal in Dr. Prem Prakash v. Govt. of NCT of Delhi & others (OA-1776/2005) decided on 6.3.2006 as well as decisions of Guwahati High Court in Smt. Gouri Sengupta v. State of Assam, 2000 (1) ATJ 582 and of Punjab and Haryana High Court in P.S. Noor v. Union of India & others, 2008 (3) SCT 815. He also relies upon a decision in Surinder Singh v. Union of India & others (OA-563/2004) decided on 17.8.2004.
6. On the other hand, learned counsel for respondents, by relying upon the OM F.No.Rec.1-2004/JD (Gr)/CGHS/Delhi/ CGHS (P) dated 7.12.2006 issued by the Government of India, Ministry of Health & Family Welfare, state that though the reimbursement as per package rates has been allowed to the applicant treating her case as an emergency one but since the treatment was taken from a private and non-recognized hospital, it is stated that for such a procedure only the admissible amount, as per the package rates, is permissible, which has already been reimbursed to the applicant.
7. Learned counsel relies upon a decision of Apex Court in State of Karnataka & another v. Sri R. Vivekananda Swamy (Appeal (Civil) No.2336/2008) decided on 1.4.2008 to contend that the claim of medical reimbursement shall be allowed only as per package rates.
8. Learned counsel would further contend that as the aforesaid OM dated 7.12.2006 has not been challenged in this OA, amount paid by the respondents in respect of claim of medical reimbursement is in accordance with law.
9. I have carefully considered the rival contentions of the parties and perused the material on record.
10. It is very unfortunate in this welfare state that when an amount incurred on the dependent family members of a retiree, who has no other source of income, except pension, in an emergent condition, only a meager amount, out of total amount claimed, has been paid by the Government in the guise of package rates enumerated in the administrative decision by issuing of OM dated 7.12.2006.
11. Right to live being a citizen of India, what to talk of government servant, is a fundamental right guaranteed under Article 21 of the Constitution of India. This right to live correspondences with an obligation upon the State to maintain as a paramount duty and to secure the health of the citizens, as held by the Apex Court in State of Punjab & others v. Ram Lubhaya Bagga & others, (1998) 4 SCC 117 whereby the State with limited financial resources cannot be compelled to spend the exorbitant rates and the cost of treatment incurred in private hospitals. Accordingly, those hospitals, which on a decision by the Government as to package rates for a particular treatment charged accordingly have been recognized and the expenses incurred are reimbursed to the government servant basically on a reasonable basis and object that whatever package rates have been set out by the Government, these hospitals would not charge over and above it. However, the hospitals have gone harsh and discarding the package rates, despite recognition, are charging more than the amount specified by the Government for a particular treatment. In such an event, the decisions of the Tribunal have clearly indicated on direction that either their recognition be called-off or recovery of over and above the amount as per package rates be effected from the concerned hospital.
12. In the above backdrop, the decision of the Apex Court in R. Vivekananda Swamys case (supra) by discerning its ratio clearly laid down that the State of Karnataka in exercise of its power conferred upon it by the proviso to Article 309 of the Constitution of India framed the Karnataka Government Servants (Medical Attendance) Rules, 1963 and non-challenge to it has resulted in curtailment of the medical reimbursement as per the package rates. Here, in the present case, the situation is different. There are no statutory rules but administrative instructions operate grant of package rates. The facts, which are distinguishable, would not be attracted in the present case.
13. Another decision cited by the learned counsel for respondents is Union of India & others v. Naunihal Singh (CA 319/2001) decided on 20.3.2007 wherein the amount over and above the package rates has not been granted due to limited financial resources and as per the policy of the Government dated 13.2.1995. However, the decision in Suman Rakhejas case (supra) even acknowledged grant of medical reimbursement to a government servant even if the treatment is taken in a non-recognized and private hospital but with an exception that it should be undertaken in a state of emergency. In such an event, not only allowing the package rates but also the amount over and above > has to be reimbursed.
14. Package rate set out by the Government has a logic and sanctity. The basic object is the financial constraints on the State in their endeavor to discharge the obligation of securing the health of a citizen, which includes the government servant. However, if the hospitals are approached in an emergency and in mitigating circumstances where taking a patient to hospital recognized by CGHS would entail serious threat to the life. A retiree or even a serving government servant is in a difficult position to undergo the procedure of referral and then take the patient, as suggested and recognized by the CGHS. This period would be fatal to the life, which is paramount and guaranteed fundamental right under Article 21 of the Constitution of India. Accordingly, if a patient is taken to a private hospital and the treatment is incurred, what is allowed is the minimum of the expenses incurred as per the package rates and also over and above > of it, when it is established that the treatment was taken in emergency.
15. Coming to the facts of the present case, applicants wife was admitted to the hospital in a situation when she complained of severe stomach ache, which would have caused danger to her life. She was also suffering from perforated appendix and pelvic peritonitis with ARF and was to be administered dialysis thrice, as her kidneys were not functioning normal.
16. In package rates, there is a head of dialysis, for which the expenditure has to be reimbursed. However, the respondents have allowed, in the present case, only the charges for exploratory laparotomy whereas, according to their own OM, package rates, include dialystic procedure, admission charges, accommodation charges, injection charges, dressing charges, surgery fee, cost of medicines, etc. Applicant had incurred operation theater charges, including the medicines charges to the tune of Rs.97,719/- and artificial devises to the extent of Rs.29,780/-. Even permissible amount of medical reimbursement has not been accorded to the applicant, as I do not find from the details supplied to me that the package rates have been allowed to the applicant, as defined in the OM.
17. Leave apart, the AIIMS rates for all these procedures would have included as per the package rates the cost of medicines charges, admission charges, accommodation, etc. while granting medical reimbursement to the applicant. Even AIIMS rates have not been considered as per the admissibility under the ambit and definition of the package rates.
18. In Dr. Prem Prakashs case (supra) while relying upon the decisions of High Court of Delhi in J.K. Saxena v. Govt. of NCT of Delhi (CW No.5015/2003) decided on 16.12.2004 and also Milap Singh v. Union of India & others, 2004 V AD (Delhi) 529, the Tribunal allowed full medical reimbursement. There, the Tribunal has observed that there is no need for a retiree or a government servant to approach any private hospital and even recognized hospital had there been well equipped with all facilities hospital run by the Government. However, the situation is not only pathetic but the Government hospitals in this country, barring few, like AIIMS, have lost their reputation. If one goes for the treatment to these hospitals, he has no confident to come alive from the hospital after a treatment incurred by the government hospitals. Such a poor treatment has constrained the Government to recognize all the well-equipped private hospitals for emergency treatment, like heart, renal failure, transplantation, etc. In such a situation to approach the government hospital would be sacrificing ones own life and would amount to mercy killing of a person. These observations are not quoted to deprecate but to bring to the highlight the situation prevailing in this country regarding government hospitals. This feeling in the mind of a common citizen of India, which includes the working as well as retired government servant, constrains him to approach other private hospitals.
19. To approach a nearest hospital in case of real emergency, which threatens life, is a normal human tendency. One cannot wait for all the methodology and formal procedures to complete before the treatment is administered. What is paramount is that by immediate treatment ones life is saved. The above view was taken by the applicant for his wife and she was admitted to St. Stephens Hospital, New Delhi which was very close to his residence.
20. The way the respondents have dealt with the case of the applicant for medical reimbursement is not only far from reasonableness, sympathy but also cruel to the applicant, as the respondents have not considered the package rates and the entitlement thereof to the applicant in its true perspective and as per their own OM.
21. Resultantly, the OA is allowed. Impugned order is set aside. Respondents are directed to reimburse to the applicant the expenditure incurred by him on the medical treatment of his wife. This shall be done within a period of two months from the date of receipt of a copy of this order. However, they may deduct the amount already paid to the applicant. No costs.
( Shanker Raju ) Member (J) /sunil/