Central Administrative Tribunal - Ernakulam
Sankaran Nair K P vs The Chief General Manager Bsnl Kerala ... on 10 July, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00702/2018
Wednesday, this the 10th day of July, 2019
CORAM:
Hon'ble Mr. Ashish Kalia, Judicial Member
Sankaran Nair K.P., Aged 74 years, Son of Sri Krishnan Nair,
Krishna, Opposite Panchayat Office, Atholi, Velur Post,
Kozhikode - 673 315, (Retired Senior TOA, Office of the
Principal General Manager, BSNL, Kozhikode SSA, Regn. No.
PGMT/CLT/MRS/RTD/0295). ..... Applicant
(By Advocate : Mr. P.N. Biju)
Versus
1. The Bharat Sanchar Nigam Limited, represented by the Chief
General Manager, Bharat Sanchar Nigam Limited, Kerala
Telecom Circle, Doorsanchar Bhavan, PMG Junction,
Thiruvananthapuram - 695 033.
2. The Assistant General Manager, Bharat Sanchar Nigam Limited,
Office of the General Manager, Telecom, Kozhikode - 673 011.
3. The Accounts Officer, Bharat Sanchar Nigam Limited,
Office of the General Manager, Telecom,
Kozhikode - 673 011. ..... Respondents
(By Advocate : Mr. George Sebastian)
This application having been heard on 10.07.2019 the Tribunal on the
same day delivered the following:
O R D E R (Oral)
Hon'ble Mr. Ashish Kalia, Judicial Member -
The applicant has claimed the following relief:
"(i) To set aside Annexures A8 and A10 as they are illegal, arbitrary, against Annexure A1 Scheme and offending the constitutional guarantees under Articles 14 and 21 of the Constitution of India.
(ii) To issue appropriate order or direction directing the respondents to allow the claim of the applicant in Annexure A6 under Annexure A1 2 Scheme since the applicant fully qualifies the eligibility conditions in Annexure A1 Scheme;
(iii) To declare that the applicant is entitled to get his claim under Annexure A6 for reimbursement of the medical bill allowed.
(iv) To issue such other order or direction as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The brief facts of the case are that the applicant is an employee retired from the service of the 1 st respondent BSNL. The BSNL has the BSNL Employees Medical Reimbursement Scheme and Chapter 4 of the Scheme provides for reimbursement of medical claim of retired employees of BSNL. The applicant suffered acute chest pain and fell to a semi unconscious state in the morning of 11.3.2017. The neighbours of the applicant came to his rescue and he was rushed to the nearby hospital i.e. Kozhikode District Co- operative Hospital. The applicant was not in a position to take a decision as to the choice of the hospital where the treatment is to be taken. The casualty Doctor examined and found the applicant in the starting stage of cardiac arrest. Accordingly, he was referred to the nearby Aster MIMS hospital as the Co-operative hospital has no critical cardiac care unit. At Aster MIMS Hospital the applicant was rushed to the emergency medicine and from there to the intensive cardiac care unit. The Doctor recommended immediate angioplasty and the applicant has undergone angioplasty within one hour of admission to MIMS hospital. Noticing that Aster MIMS hospital is not an empanelled hospital, the applicant submitted an application on 13.3.2017 narrating the circumstances under which he was brought to the hospital. Upon discharge the applicant submitted his claim for reimbursement of the medical bills of Rs. 94,376/-. However, the 3 respondents rejected the claim of the applicant assigning the reason that the distance from the residence of the applicant to Aster MIMS hospital is more as compared to the distance from his residence to the empaneled hospital where the treatment is available. The applicant submitted that the competent authority had not considered the circumstances and the emergency situation under which the applicant was admitted to the hospital and undergone the treatment to save his life. The applicant was not in a position to opt for the hospital. The applicant submitted a review of the decision to the 1 st respondent. However, the application for review was also rejected by the respondents. Aggrieved the applicant has filed the present OA.
3. Notices were issued to the respondents. Shri George Sebastian took notice on behalf of the respondents and filed a reply statement contending that treatment can be taken in non-empanelled hospitals under emergency as per BSNL MRS rule with the approval of CGM. However, the amount will be restricted to CGHS rates. Emergent cases are those involving accidents, serious nature of disease etc, the person/persons on the spot may use their discretion for taking the patient for treatment in a private hospital in case no Government or recognized hospital is available nearer than the private hospital. The controlling authority/department will decide on the merit of the case whether it was a case of real emergency necessitating admission in a private hospital. In the present case the applicant was not taken to the nearest hospital from his residence. The respondents further contend that any person can choose any hospital he likes to get the necessary treatment but reimbursement for treatment in such cases can be approved by the 4 competent authority only if the emergency and distance condition are both satisfied. In the present case both are not satisfied. The claim of the applicant was rejected by the competent authority based on BSNL MRS and CSMA rules on the subject. Respondents pray for dismissing the OA.
4. Heard Mr. P.N. Biju, learned counsel for the applicant and Mr. George Sebastian, learned counsel appearing for the respondents. Perused the record.
5. The main contention of the applicant in the present case is that due to acute chest pain on 11.3.2017 the neighbours of the applicant took him firstly to the nearest Kozhikode District Co-operative Hospital, wherein the casualty Doctor who diagnosed of a cardiac arrest, referred him to the nearby Aster MIMS hospital as no critical cardiac care unit was available at Co-operative Hospital. The applicant was advised by the Doctors at Aster MIMS Hospital for an immediate angioplasty. The applicant immediately knowing that Aster MIMS Hospital being not an empanelled hospital submitted an application to the 2nd respondent permitting him to continue treatment at Aster MIMS hospital. However, when the applicant submitted his claim for reimbursement of the medical bill of Rs. 94,376/- the respondents rejected the same stating that the distance from the residence of the applicant to Aster MIMS hospital, the non-empanelled hospital is more as compared to the distance from his residence to the empaneled hospital where the treatment is available. This Tribunal is not convinced with the ground taken by the respondents to reject the claim of the applicant. It has 5 to be noted in mind that the applicant was admitted to the hospital by his neighbours immediately after the acute chest pain for treatment. At that point of time the respondents cannot take a stand that he should be admitted to the nearest empaneled hospital where treatment was available. The applicant was taken by his neighbours firstly to the nearest Co-operative hospital where the doctors referred him to Aster MIMS hospital for immediate cardiac care. Moreover, the respondents in their reply statement submitted that treatment can be taken in non-empanelled hospital under emergency as per BSNL MRS rules with the approval of CGM but the claim will be restricted to CGHS rates.
6. The Hon'ble Supreme Court in Shiva Kant Jha v. Union of India - Writ Petition (Civil) No. 694 of 2015 dated 13.4.2018 held as under:
"12) With a view to provide the medical facility to the retired/serving CGHS beneficiaries, the government has empanelled a large number of hospitals on CGHS panel, however, the rates charged for such facility shall be only at the CGHS rates and, hence, the same are paid as per the procedure. Though the respondent-State has pleaded that the CGHS has to deal with large number of such retired beneficiaries and if the petitioner is compensated beyond the policy, it would have large scale ramification as none would follow the procedure to approach the empanelled hospitals and would rather choose private hospital as per their own free will. It cannot be ignored that such private hospitals raise exorbitant bills subjecting the patient to various tests, procedures and treatment which may not be necessary at all times.
13) It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. 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 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 which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the 6 Government Order. 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. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court.
14) This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
15) In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only.
16) Further, with regard to the slow and tardy pace of disposal of MRC by the CGHS in case of pensioner beneficiaries and the unnecessary harassment meted out to pensioners who are senior citizens, affecting them mentally, physically and financially, we are of the opinion that all such claims shall be attended by a Secretary level High Powered Committee in the concerned Ministry which shall meet every month for quick disposal of such cases. We, hereby, direct the concerned Ministry to device a Committee for grievance redressal of the retired pensioners consisting of Special Directorate General, Directorate General, 2 (two) Additional Directors and 1 (one) Specialist in the field which shall ensure timely and hassle free disposal of the claims within a period of 7 (seven) days. We further direct the concerned Ministry to take steps to form the Committee as expeditiously as possible. Further, the above exercise would be futile if the delay occasioned at the very initial stage, i.e., after submitting the relevant claim papers to the CMO-I/C, therefore, we are of the opinion that there shall be a time frame for finalization and disbursement of the claim amounts of pensioners. In this view, we are of the opinion that after 7 submitting the relevant papers for claim by a pensioner, the same shall be reimbursed within a period of 1 (one) month.
17) In view of the foregoing discussion, we dispose of the petition filed by the writ petitioner with the above terms."
7. Therefore in the light of the judgment of the apex court in Shiva Kant Jha's case (supra), this Tribunal finds that the treatment of the applicant in a non-empanelled hospital was genuine because there was no option left with him at the relevant time. The applicant was admitted in the said non- empanelled hospital in an emergency condition. The law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. Therefore, this Tribunal feels that the decision in Shiva Kant Jha's case (supra) can be made applicable to the instant case also. Accordingly, this Tribunal holds that the applicant is entitled to reimbursement of full permissible amount claimed by him as per the medical bills. Ordered accordingly. The respondents shall settle the claim of the applicant within a period of one month from the date of receipt of a copy of this order.
8. The Original Application is allowed as above. Parties are directed to suffer their own costs.
(ASHISH KALIA) JUDICIAL MEMBER "SA"
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Original Application No. 180/00702/2018 APPLICANT'S ANNEXURES Annexure A1 - True copy of the scheme of medical claim for retired employees of BSNL.
Annexure A2 - True copy of bill cum receipt.
Annexure A3 - True copy of ambulance service bill dated 11.3.2017.
Annexure A4 - True copy of referral report.
Annexure A5 - Copy of request dated 3.3.2017 of the applicant before
the 2nd respondent.
Annexure A6 - True copy of medical claim in form Annexure D.
Annexure A7 - True copy of bill dated 15.3.2017 of Aster MIMS hospital.
Annexure A8 - True copy of the letter No. EBM 2202/SKP/2016-18/5 dated 19.1.2018 from the third respondent.
Annexure A9 - True copy of the representation dated 5.2.2018 of the applicant before the 1st respondent.
Annexure A10 - True copy of the letter No. EBM 2202/SKP/2017-19/9 dated 10.7.2018 from the third respondent.
RESPONDENTS' ANNEXURES Nil
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