Delhi High Court
B.R. Mehta vs Union Of India & Ors. on 7 May, 1999
Equivalent citations: 1999IVAD(DELHI)337, 79(1999)DLT388, 1999(50)DRJ270, ILR1999DELHI396
ORDER C.M. Nayar, J.
1. This petition has been filed for issuance of a writ of mandamus to the respondents for immediate release of the medical claim of the petitioner. The petitioner was working as an Inspector Central Excise and Customs at Karnal under Commissioner of Central Excise, I.P.Estate, New Delhi, respondent no.2 herein who is overall Incharge in running the administration of the Department. Respondent no.3 is the incharge of Central Government's Health Scheme and is responsible to look into the health care facilities for Central Government employees. The petitioner retired from the Department while posted at Karnal under Superintendent Central Excise, Karnal and Assistant Commissioner, Ambala on 31st May, 1986 after putting in about 41 years of dedicated service. He fell seriously ill and contacted the doctor on 27th October, 1996 at Civil Hospital, Karnal which was the required procedure and practice for working and retired Central Government Employees. He was referred to Escorts Heart Institute & Research Centre at New Delhi by the competent and authorised Principal Medical Officer of the Civil Hospital Karnal as the Escorts Heart Institute is recognised for coronary by-pass surgery by the Ministry of Health & Family Welfare as the petitioner was entitled to health care facilities as provided by the Central Government. There is no C.G.H.S. Hospital or dispensary at Karnal from where the retired Central Government employees could get their treatment. Therefore, the treatment was being obtained from Civil Hospital in that town as it was also recognised in the case of serving employees of the Central Government. The petitioner always availed of the medical facilities as provided by Civil Hospital, Karnal whenever the need arose.
2. The petitioner was referred to Escorts Heart Institute & Research Centre, New Delhi vide communication dated 1st January, 1997 by the Director General Health Services, Haryana, Chandigarh. This letter is filed as Annexure-'A' to the writ petition and reads as follows:-
"No.20/21-4PM-97/74 Dated: Chandigarh the 1/1/97.
From The Director General Health Services, Haryana, Chandigarh.
To The Principal Medical Officer, General Hospital, Karnal.
Subject: approval for specialised treatment from Karnal to Escort Hospital, New Delhi. Reference your letter No.5766 dated 7/11/96 on the subject noted above.
Approval is hereby accorded for the referring of Sh.B.R.Mehra, Retd. Central Excise, Karnal who is suffering from CAD to the Medical Specialist at the Escort Hospital, New Delhi for consultation and treatment.
Approval is also accorded for undertaking journey in this connection by Sh. B.R. Mehta from Karnal to Escort Hospital, New Delhi and back. The approval should be availed of the patient concerned within the period of one month from the date of communication. The re-imbursement of medical charge will be made in accordance with the instruction issued vide letter No.2/10/90-IHB-III dated 30-11-93.
5. The patient should get complete treatment as far as possible at the referral Institute to avoid repeated journey to his place which results in considerable expenditure to the Govt.
Sd/-
Deputy Director (Nut), for: Director General Health Services, Haryana.
OFFICE OF THE PRINCIPAL MEDICAL OFFICER, GENERAL HOSPITAL, KARNAL No.Steno-95/475 Dated:Karnal,the 16-1-97 Copy forwarded to Sh.B.R.Mehta H.No.530-R Model Town, Karnal for necessary action.
The official concerned may please be informed accordingly.
Sd/-
16/1/97 Principal Medical Officer, General Hospital, Karnal"
3. The petitioner underwent by-pass surgery on 11th November, 1996 after preliminary tests were conducted and he remained in Escorts Heart Institute & Research Centre as an indoor patient during the period of his treatment. He incurred the medical expenses to the tune of Rs.1,78,850/- which he is claiming in the present writ petition. The bill was submitted to Assistant Commissioner, Central Excise, Sonepat duly forwarded by Superintendent Central Excise, Karnal who forwarded the same on 4th February, 1997. The bill, however, was sent back with a direction to send the same to Assistant Commissioner, Central Excise, Ambala. There was inaction on the part of the Assistant Commissioner, Central Excise, Ambala and the bill remained pending in his office for about two months and the petitioner addressed a communication dated 2nd May, 1997 reminding the Assistant Commissioner, Ambala for reimbursing the medical claim immediately. There was no response and the petitioner sent further communications on 1st June, 1997 and 26th June, 1997 to Chief Accounts Officer, Central Excise Commissionrate, I.P. Estate, New Delhi. A representation was next sent on 4th July, 1997 to the Commissioner, Central Excise, Central Revenue Buildings, New Delhi asking for the reimbursement of the amount incurred for coronary bypass surgery. The Office of the Commissioner of Central Excise replied on 9th July, 1997 in the following manner:-
"Please refer to your letter dated 26.6.97 and 4.7.97.
You are requested to contact Administrative Officer, Central Excise Division, Ambala City, as your medical bill has been returned to Admn. Officer, Central Excise, Ambala vide this office letter C.No.II-22(93) Med/Miss/ 95/Pen. Cell dated 27.5.97."
4. It may be relevant to refer to the communication dated 29th July, 1997 which was sent from the Administrative Officer Central Excise, Ambala to the Chief Accounts Officer (Exp), Central Excise Commissionrate, Central Revenue Building, I.P.Estate, New Delhi which reads as follows:-
29/7/97 "To The Chief Accounts Officer (Exp), Central Excise Commissionrate, Central Revenue Building, I.P.Estate, New Delhi.
Sir Sub.:- Re-imbursement of Medical Claim amounting to Rs.1,87,850/- of B.R.Mehta, Pensioner, Inspector, Central Excise, P.P.No.403.
Attention is drawn to your letter C.No.II-22(93) Med/Miss/95/Pen.Cell/4942 dated 27.5.97 wherein you have mentioned Rule 19 of CGHS Rules.
In this instant case, the Rule 10 is applicable, thus the copy of the same is enclosed for ready reference. The bill of Shri B.R.Mehta (Retd.) may be forwarded to Director, CGHS, Ministry of Health & Family Welfare for post facto approval.
Yours faithfully, Sd/-
Administrative Officer Central Excise, Ambala"
5. The Commissioner of Central Excise, New Delhi reminded the Director C.G.H.S. Ministry of Health and Family Welfare on 30th July, 1997 to sanction the amount as claimed by the petitioner for favourable consideration and necessary action. Again, there was no response and the petitioner continued to represent as will be evident from communications dated 15th August, 1997 and 27th August, 1997 (Annexure-H and I respectively to the petition). In the final analysis the claim of the petitioner was denied by communication dated 19th August 1997 on the ground that "photocopy of C.G.H.S. token card not attached." The petitioner replied to this communication on 2nd September, 1997 stating that he had earlier mentioned that there was no C.G.H.S. Hospital/ dispensary where Central Government pensioner could get their treatment at Karnal and, therefore, the Central Government is liable to reimburse the petitioner for the expenses of his treatment. The respondents have filed counter affidavit. The relevant paragraphs 2,3,4 and 5 which will spell out the stand of the Government read as follows:-
"2. According to the instructions contained in letter No.S.11011/1/95-CGHS (P) dated 13.2.1995 of Ministry of Health and Family Welfare, "the reimbursement claims of Central Government pensioners including those of Ex-Members of Parliament retired judges of Supreme Court and High Courts and freedom fighters covered under CGHS for the treatment taken in recognised hospitals/Government referral hospitals with prior permission of CGHS i.e. CMO incharge of the dispensary concerned can be settled by the Additional Directors/Deputy Directors of CGHS without referring them to Director, CGHS/Ministry of Health & Family Welfare.
3. The claims relating to treatment taken in recognised hospitals Government referral hospital without prior permission under emergency circumstances or otherwise may be referred to Director, CGHS for ex-post-facto permission/Relaxation of rules before reimbursement. The claims relating to treatment taken in emergency in unrecognised private hospitals/nursing homes/clinics without permission have also to be sent to the Director CGHS/Ministry for consideration and decision.
4. Since CGHS facilities are not available in Karnal, the petitioner's case was referred to the Additional Director (CGHS), Central Government Health Scheme, Reimbursement and Hospitalisation Section Room No.8'D' 510 Nirman Bhawan, New Delhi-110001, who returned the claims stating that "CGHS settle only-CGHS Card Holder M.R.Claim". The petitioner is not a card holder since there is no CGHS facility.
5. Hence, it is submitted that, in as much as there is no provision under CCS (MA) Rules, 1944 for the reimbursement of the Medical charges for the "PENSIONER" and he is not governed under CGHS Rules, he is not eligible for reimbursement of medical charges, as requested for by the petitioner."
6. The learned counsel for the respondents on the above basis has contended that the petitioner was not a C.G.H.S. card-holder and, therefore, he was not entitled to any reimbursement. This argument is totally fallacious as the etitioner retired from the services of the Central Government from the Department of Central Excise where he had served for 41 years and was in any case entitled to the reimbursement as permissible under the rules. The petitioner after retirement settled in Karnal where Central Government does not operate its health scheme (C.G.H.S.). Therefore, the petitioner was left with no option but to get himself examined at Civil Hospital, Karnal which is operated by the State. A specific permission was obtained as will be indicated from the communication of the Director General Health Services, Haryana dated 1st January, 1997 to Principal Medical Officer, General Hospital, Karnal according approval to the petitioner to undertake journey from Karnal to Escorts Heart Institute & Research Centre, New Delhi for medical treatment. The bill of the petitioner for medical treatment was accordingly forwarded to Director, C.G.H.S. Ministry of Health and Family Welfare for post facto approval. In this background it may not be understood how the claim of the petitioner can be denied in the facts and circumstances of the present case. The petitioner was entitled to take steps for self preservation and was advised to undergo surgery at Escorts Heart Institute & Research Centre, New Delhi. This right is recognised in law as will be indicated from the judgment as reported in Surjit Singh Vs. State of Punjab and others . Paragraph 11 of the judgment reads as follows:-
"11. The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, bare-facedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternate hospital as per policy. When the State itself has brought the Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to the Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset is answered in the affirmative. Of course the sum of Rs.40,000/- already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."
7. Similarly the Supreme Court clearly accepted the right of the citizen to be treated at a specialised hospital in a case of sudden coronary ailment in the case reported as State of Punjab & Ors. Vs. Mohinder Singh Chawla etc. . The stand of the State is spelled in paragraphs 9 and 10 and the ultimate findings are recorded in paragraph 11 which read as follows:-
"9. While the respondent was a Government servant, he had developed sudden coronary ailment. After required angiography and other reports of tripple vessels disease was diagnosed in CMC Hospital, Ludhiana and he was recommended by the said hospital to go over to Escorts Hearts Institute, New Delhi for urgent treatment. On its basis, the respondent had the treatment. The Medical Board granted by its proceedings dated January 12, 1969, ex-post facto sanction for treatment with one attendant. The appellant had granted reimbursement of a sum of Rs.1,03,267/- less the rent paid for the room in the hospital for the period of stay. It is the Government's stand that the reimbursement could be allowed as per rates charged by All India Institute of Medical Sciences. Accordingly, a sum of Rs.20,000/- paid as rent was deducted. When the respondent filed the writ petition, the High Court by judgment dated April 12, 1996 in CWP No.16570/95, the Division bench allowed the writ petition. Thus, this appeal by special leave.
10. It is contended for the State that though the Government had granted ex-post facto sanction through the Medical Board and permitted the patient to undergo treatment outside the State with the policy, for reimbursement of medical expenses incurred and the medical treatment taken in the Hospital to the Government servant/pensioners or dependents, as per rules, the Government has imposed a condition to pay room rent at the rates charged by the AIIMS for stay in the hospital. The reimbursement will be given at those rates. The Government, therefore, is not obliged to pay the actual expenses incurred by the patient while taking the treatment as inpatient in the hospital, for rent.
11. We are unable to agree with the stand taken by the Government. It is seen that the Government had decided in the proceedings dated October 8, 1991 to reimburse the medical expenditure incurred by the Punjab Government employees/pensioners and dependents on treatment taken abroad in private hospital. It is stated in paragraphs 2 and 3 that the Government has prepared a list of those diseases for which the specialised treatment is not available in Punjab Government Hospitals but it is available in certain identified private hospitals, both within and outside the States. It was, therefore decided to recognise these hospitals for treatment of the diseases mentioned against their names in the enclosed list for the Punjab Government employees/pensioners and their dependents. The terms and conditions contained in the letter under reference would remain applicable. The Government can, however, revise the list in future. The name of the disease for which the treatment is not available in Punjab Government hospitals is shown as Open Heart Surgery and the name of the private hospital is shown as Escorts Heart Institute, New Delhi as one of the approved hospital/institution. Thus, for open heart surgery or heart disease the Escort Heart Institute is authorised and recognised institution by the Government of Punjab. Consequently, when the patient was admitted and had taken the treatment in the hospital and had incurred the expenditure towards room charges, inevitably the consequential rent paid for the room during his stay is integral part of his expenditure incurred for the treatment. Consequently the Government is required to reimburse the expenditure incurred for the period during which the patient stayed in the approved hospital for treatment. It is incongruous that while the patient is admitted to undergo treatment and he is refused the reimbursement of the actual expenditure incurred towards room rent and is given the expenditure of the room rent chargeable in another institute whereat he had not actually undergone treatment. Under these circumstances, the contention of the State Government is obviously untenable and incongruous. We hold that the High Court was right in giving the direction for reimbursement of a sum of Rs.20,000/- incurred by the respondent towards the room rent for his stay while undergoing treatment in Escorts Heart Institute, New Delhi."
8. The right to health is an integral part to life and it was the constitutional obligation of the State to provide the health facilities and the Government Servant is entitled to reimbursement of all expenses incurred by him on specialised treatment after his case was referred to a specialised hospital as was the case of the petitioner in the present case.
9. In the present case the petitioner has been granted sanction for being treated in Escorts Heart Institute and Research Centre, New Delhi and in this background it is not possible to appreciate the stand of the Government that since the petitioner was not covered by C.G.H.S. scheme he was not entitled to any reimbursement when the Government itself had not framed any regulations and laid any criteria to decide the case of pensioners staying in non-C.G.H.S. areas. The basic contentions of the respondent that the petitioner was not eligible for reimbursement of his medical claim under Central Services (Medical Attendance) Rules nor he was eligible for C.G.H.S. facilities since he had not enrolled himself as a C. G. H. S. beneficiary though such facilities were not available in Karnal is clearly misconceived. The petitioner does not cease to be a pensioner as having retired from Central Government service and, therefore, it cannot be said that he will be entitled to no reimbursement on the above grounds. The Government itself is not clear with regard to the applicability of rules. This will be indicated from reading of the following material which has been placed on record:-
"FACILITIES AVAILABLE FOR RETIRED GOVERNMENT OFFICIALS.
1. Even though C.G.H.S. facilities are at present available only at specified places and it may not be possible for the Pensioners/Family Pensioners living away from these places to avail of the facilities on day-to-day basis, it may be in the interest of Pensioners/Family Pensioner to enroll themselves as beneficiaries of the C.G.H.S. so that at least in the case of Major ailment/Major Surgery, they will be able to come to the C.G.H.S. station to avail of these facilities if and when such a need should arise.
(Authority:- Para 1.4 of O.M.No.22/1/90-P & P.W(K) dated 17-12-90 of Department of Pension and Pensioners' Welfare, communicated in Ministry of Finance (Department of Revenue) F.No.12/165/90-Coord (Circular No.15/91) dated 21-1-1991)
2. With effect from 1-12-1997 fixed Medical allowance of Rs.100/- P.M. granted to Central Government Pensioners/ Family Pensioners residing in areas not covered by C.G.H.S. for meeting expenditure on day-to-day medical expenses that do not require hospitalisation.
(Authority:- O.M.No.45/57/97-P& PW(K) dated 19-12-97 of Government of India, Department of Pension and Pension Welfare, New Delhi)
3. Consequent on the recommendations of the Vth Pay Commission, Ministry of Health and Family Welfare, New Delhi had stated that there is no objection to the extension of the "Central Services (Medical Attendance) Rules" to the Central Government.
Pensioners residing in Non-C.G.H.S. areas. The Department of Pension and Pensioners Welfare had been directed to work out the modalities for the implementation of Rules in consultation with the inistries/Departments prior to the measure being introduced to avoid any hardships to the pensioners. So far no orders have been issued.
(Authority: O.M.No.S14025/4/96. MS dated 5-6-98 of Government of India, Ministry of Health and Family Welfare, New Delhi).
Sd/-
A.B.Kamalesh Kumar) Chief Accounts Officer Custom & Central Excise New Delhi."
10. The Government has, therefore, on the above basis does not seem to have worked out any criteria for reimbursement in such cases but are still examining the question of granting medical facilities to the beneficiaries who are settled in non-C.G.H.S. areas.
11. In view of the above background it will be wrong and inequitable to deprive the petitioner of the medical reimbursement of the amount which he has already spent.
12. The case which is pleaded in the writ petition is that there is no CGHS Hospital or Dispensary at Karnal from where the working or retired Central Government servants could get their treatment and they are supposed to attend the "Authorised Medical Attendant" which is District Civil Hospital. The recognised Hospitals which have been declared by the Central Government or the Heads of the Department are as under:
"i) All State Government Hospitals including those maintained by Municipal Committee and Boards.
ii) All hospitals, primary health centres and dispensaries recognised by the State Government for the indoor treatment including Cantonment Hospitals in Cantonment Areas and Railway Hospitals."
13. Admittedly, the Chief Medical Officer of District Civil Hospital at Karnal where the petitioner is settled is an Authorised Medical Attendant where the Government servants or the retired servants have to report for treatment which the petitioner has done in view of the emergent situation. After consulting the Medical Attendant, medical treatment is aken and claim is preferred on an Essentiality Form for reimbursement. It is, therefore, clear that the petitioner went to his Authorised Medical Attendant who referred the matter to Escorts Heart Institute & Research Centre for by-pass surgery at New Delhi. Reference was also made to the Directorate General Health Services, Haryana, Chandigarh who accorded the approval for specialised treatment in Escorts Hospital and reimbursement of the medical charges were directed to be made to the petitioner. In this view of the matter it cannot be understood as to how the petitioner who is a retired Central Government employee could be deprived of the reimbursement of the medical charges incurred for heart by-pass surgery. It is true that the petitioner did not hold a CGHS card as he presumed that it was not necessary as he was staying in Karnal where no CGHS scheme was operating. The Government, however, felt that if he had registered with CGHS scheme he could atleast, in the case of major ailments/major surgery, come to CGHS station to avail of these facilities if and when such a need arose. However, in serious cases of ailment and accidents the Rule seems to have been often relaxed as it is imperative for the patient to be taken to nearest private Hospital or authorised Medical Centre for emergent treatment. Next it is quite clear that the Government has already recognised certain Hospitals, such as, Escorts Heart Institute & Research Centre, All India Institute of Medical Sciences, Batra Hospital & Medical Research Centre, Indraprastha Apollo Hospital etc. as specialised Hospitals for treatment of its employees vide Memorandum dated September 18, 1996. Copy of the same has already been placed on record. Therefore, a retired Government servant is entitled to be treated in Escorts Heart Institute & Research Centre for heart ailment or for undergoing by-pass including Coronary By-pass surgery and the expenditure incurred has to be reimbursed. The office memorandum dated September 18, 1996 has clearly recognised certain private Hospitals/diagnostic Centres under CGHS for specialised and general purpose treatment and certain ceiling of rates are prescribed therein. The relevant portions of this Memorandum may be reproduced as under:
"No. S-11011/16-94-CGHS Desk-II/CMO(D) /CGHS(P) Government of India Ministry of Health and Family Welfare (Department of Health) Nirman Bhavan, New Delhi Dated the 18th Sept. 1996 OFFICE MEMORANDUM Subject: Recognition of private hospitals/diagnostic centres under CGHS, Delhi for specialised and general purpose treatment and diagnostic procedures and fixation of ceiling rates-Regarding.
The undersigned is directed to say that the issue of recognition of private hospitals for treatment of CGHS beneficiaries under CGHS, Delhi and fixation of ceiling rates has been under consideration of the government for quite some time. It has now been decided to recognise the under mentioned hospitals/diagnostic centres for different specialities (treatment/diagnostic procedures) mentioned against their names:
1. ..... .....
2-22. ..... ...... ...
23. Escorts Heart Institute & Research Centre:
Cardiology, Cardiothoracic and Vascula surgery.
24..... ...........
2. It has further been decided that the CGHS beneficiaries taking treatment in the above mentioned hospitals with the prior permission of the CGHS/offices appointed by the Government will be entitled for reimbursement as per the package deal rates given in the Annexures I and II. The rates for indoor treatment mentioned in Annexures I and II are for Semi Private Category. For Private Ward there will be an increase of 15% and for General Ward there will be a decrease of 10% ."
..... ..... ......."
14. The reading of the above will indicate that the Government has recognised certain private Hospitals for treatment and the beneficiaries will be entitled for reimbursement as per the package deal rates given in Annexures I and II attached to the office Memorandum.
15. The respondents in the present case has worked out the reimbursement charges in respect of the petitioner in the following manner:
"RE-IMBURSEMENT OF MEDICAL CHARGES IN RESPECT OF SH.B.R. MEHTA, INSPECTOR (RETD.) AMBALA DIVISION.
(Applicable to serving employees) S.No. S.No. Name of Amount Amount Amount of the the Test claimed Admi- not claim ssible Eligible (1) (2) (3) (4)Rs. (5)Rs. (6)Rs.
1. (4) Add.Stay 7600/- 3000/- 4600/-
2. (5) Medicine & 4000/- 4000/- -
Inj.
3. (6) Cost of Swan 4000/- 2000/- 2000/-
ganz catheter
4. (8) Imaging test 2200/- 1000/- 1200/-
X-Ray Echo-
Doppler
5. (10) Angiography 14000/- 12000/- 2000/-
6. (14) Surgery 140000/- 99000/- 41000/-
7. (15) Cost of Valve 6500/- 6000/- 500/-
8. (23) Outside 300/- 30/- 270/-
TOTAL 178600/- 127030/- 51570/-"
The petitioner is quite content to be reimbursed for the rates on the basis of the circular as referred to above. However, the Government has to take up the matter with these Hospitals and determine the package deal rates so that the reimbursement for the entire amount can be made as it has been settled by the Courts such as in the judgment reported as Surjit Singh Vs.State of Punjab & others (supra) where it is reiterated that the appellant therein had the right to take steps in self preservation and the Government was directed to pay to the appellant rates admissible as per Escorts. The question of payment of room rent came up for consideration in the State of Punjab & others Vs. Mohinder Singh Chawla etc. (supra) wherein the Court held "it is incongruous that while the patient is admitted to undergo treatment and he is refused the reimbursement of the actual expenditure incurred towards room rent and is given the expenditure of the room rent chargeable in another institute whereat he had not actually undergone treatment."
16. In view of the above, it cannot be understood as to how the Government will decline to pay the actual expenditure incurred for treatment and only will limit the same on the basis of the Annexures I and II to Memorandum dated 18th September, 1996 as referred to above. At best it is expected that the recognised private Hospitals/diagnostic Centres will charge as per the rates finalised by the Ministry which in all fairness should not exceed the rates as prescribed by the Government. The Government shall, therefore, take up the matter with the private Hospitals who have been recognised for specialised and general purpose treatment. This question as to whether the petitioner is entitled to the full amount as expended for his treatment or is only entitled to the amount as admissible on the basis of Memorandum dated 18th September, 1996 is, therefore, left open as the learned counsel for the petitioner has not impugned the Memorandum nor has asked for the amount more than the admissible amount as determined by the respondents.
17. The writ petition, as a consequence, is allowed. Rule is made absolute. The respondents shall disburse the amount on the basis of the Office Memorandum dated 18th September, 1996 to the petitioner within four weeks from the date of this judgment. The petitioner is also entitled to costs which are quantified at Rs.10,000/-.