Central Administrative Tribunal - Delhi
Pramod Kumar vs Union Of India (Uoi) And Ors. on 21 February, 2005
Equivalent citations: 2005(3)SLJ173(CAT)
ORDER Shanker Raju, Member (J)
1. In this second round of listen applicant impugns respondents' order dated 28.10.2003, where on denial of full medial re-imbursement an amount of Rs. 45,472/- has been allowed.
2. Applicant who was on duty on 1.10.2001 at New Delhi had come to know a sudden fall of his wife from the stairs as a result of which she had sustained head injuries and became unconscious, was taken to the nearby nursing home at Aligarh in emergency. When no improvement was foresighted and the condition had deteriorated, Directorate of Medical College had advised applicant to take his wife to Sir Ganga Ram Hospital where she was admitted in ICU on 3.11.2001. On improvement of the condition of the wife of applicant she was shifted to Central Railway Hospital and discharged on 29.11.2001. Thereafter applicant filed a claim of medical re-imbursement to the tune of Rs. 1,13,555/-, which was rejected on 5.8.2002 on the ground of non-referral, resulting of filing of O.A. 2456/2002. By an order dated 26.2.2003 the O.A. was partly allowed with the following directions:
"11. In the result, the O.A. is partly allowed. Impugned order is quashed and set aside. Respondents are directed to reconsider the claim of applicant for medical reimbursement, in the light of decisions of the Apex Court as well as High Court and the observations made above, and pass a detailed and speaking order, within two months from the date of receipt of a copy of this order. No costs."
3. In compliance thereof, instead of allowing full reimbursement, only a sum of Rs. 45,472/- was allowed as per the Central Hospital Rules, i.e. at AIMS rates.
4. Learned Counsel for applicant Mr. Yogesh Sharma contends that in the light of the decision of the Division Bench of Delhi High Court in Milap Singh v. Union of India and Anr., 2004 V AD (Delhi) 529 to contend that full reimbursement is to be accorded. A reliance has been placed on a decision of the Single Bench of the Principal Bench in O.A. 131/02--Sh. Jawed Ahmed v. Union of India and Ors. decided on 22.12.2004 where full reimbursement has been accorded.
5. Learned Counsel states that nothing in the Railway Medical Manual or Indian Railway Establishment Code Volume-1 (IREC-1, for short) provides reimbursement at AIIMS rates. Moreover, the learned Counsel states that the decision of the Apex Court in State of Punjab and Ors. v. Ram Lubhaya Bagga etc. etc. does not lay down a precedent, rather it is decided on the policy of the Government of Punjab.
6. It is further stated that vide letter dated 23.10.2001 issued by Central Government, Ministry of Health and Family Welfare under CGHS, Ganga Ram Hospital has been recognised in so far as reimbursement to the package rates for specialised treatment. In the above backdrop what has been contended before me is that it is the duty of the Government to see that the recognised hospital for the specialised treatment does not charge excess of the package rates. The power to lay down guidelines is on the Government and a Government servant being a citizen is mere spectator. In this backdrop Government is under obligation to pay such charges as the applicant has incurred over package rates and the State can recover it from the hospital concerned. Reliance has been placed on the decision of the High Court of Delhi in C.W. No. 5015/2003 in J.K. Saxena v. Govt. of NCT of Delhi decided on 16.12.2004 to buttress the aforesaid plea.
7. On the other hand, learned Counsel for respondents by referring to the catena of derisions contended that as per Railway Board's letter dated 23.11.2000, re-imbursement of medical expenses incurred on treatment by Railway beneficiaries in private hospitals the reimbursement would be admissible as per charges of Government hospitals as if non-Railway patients or expenditure of Railway recognised hospitals for such non-referral cases. Learned Counsel has relied upon the following decisions to contend that only AIIMS rates are to prevail as package rates and after calculation the amount arrived at is in accordance expenses incurred in AIIMS.
(i) O.A. No. 1023/2003 -- Shri H. C. Bhandari v. Union of India and Ors., decided on 20.7.2004 by the Principal Bench.
(ii) Secretary, Irrigation and Power, Govt. of Punjab and Ors. v. Surjit Singh, .
(iii) State of Punjab v. Ram Lubhaya Bagga (supra).
(iv) Nirupam Pahwa v. Union of India an Ors., O.A. No. 2516/2002 decided on 14.7.2003 by the Principal Bench.
8. Learned Counsel further slates that a policy decision of the Government cannot be interfered with in a judicial review and has relied upon the decision of the Apex Court in Balco Employees Union (Regd.) v. Union of India and Ors., and also in Karnail Singh and Anr. v. Darshan Singh and Ors., 1995 Supp. (1) SCC 760. Learned Counsel states that for the ailment of the wife of applicant treatment was available at Northern Railway's Central Hospital but the action of applicant to take his wife to Ganga Ram Hospital without referral, AIIMS rates have been reimbursed.
9. In the light of the decision in Ram Lubhaya Bagga (supra) it is stated that even if under Article 21 right to life is protected as a fundamental right, yet the State is bound by the limited financial resources, the policy decision cannot be interfered with and having held in a case where the limit laid down by Punjab Government has been found not to be violative of Article 14 of the Constitution of India, the decisions of the respondents is legally justifiable.
10. I have carefully considered the rival contentions of the parties and perused the material on record.
11. Right to life is a fundamental right enshrined under Article 21 of the Constitution of India. As a Welfare State when the Government is charging from the Government servants medical charges it is the duty of the Government to provide medical facilities. With the advancement of medical techniques and upgradation of the medical facilities which had not been kept at pace by the Government hospitals under CGHS, Ministry of Health and Family Welfare vide its O.M. dated 7.9.2001 recognised certain hospitals for the purposes of treatment of Government servants and also specified package rates, which were revised from lime to time to which a Government servant is entitled to on gelling treatment in private hospitals. Vide Government of India's O.M. No. 11011/16/2003 dated 11.9.2003 for CGHS beneficiaries a decision has been taken for referral to private hospitals which is permissible in case of an emergency. CGHS vide its letter dated 25.10.2001 recognised for the purposes of medical reimbursement of the package rates Sir Ganga Ram Hospital for specialised treatments. The Ministry of Welfare in O.M. No. Section 11011/29/2001-CGHS dated 11.6.2002 recognised certain private hospital under CGHS and as a principle package rates have been defined as under:
"1. The undersigned is directed to say that the issue of fresh recognition of private hospitals and diagnostic centers for treatment of CGHS beneficiaries under CGHS, Patna and fixation of package/ceiling rates has been under consideration of the Government for quite some time. It has now been decided to recognise the hospitals/diagnostic centers for different specialities as per list attached at Annexures-A and B.
2. (a) Package rate is defined as lumpsum cost of in-patient treatment of Diagnostic procedure for which a patient has been referred by Competent Authority or CGHS to Hospital or Diagnostic Centre. This includes all charges pertaining to a particular treatment/procedure including admission charges, accommodation charges. ICU/ICCU charges, monitoring charges, operation charges, anesthesia charges, operation theatre charges, procedural charges/ Surgeon's fee, cost of disposable, surgical charges and cost of medicine used during hospitalisation, related routine investigations, physiotherapy charges etc.
(b) The package rate does not include diet, telephone charges, T.V. charges and cost of cosmetics, toiletry, tonics and medicines advertised in mass media. Cost of these, if offered, on request of patient will be realised from the individual patient and are not to be included in package charges.
(c) The recognised hospital/diagnostic centre will not charge more than the package rate from the beneficiary."
12. If one has regard to the above, the package rate is a lump-sum cost in-patient treatment and the recognised hospitals have been instructed not to charge more than the package rate from the beneficiary. In the aforesaid O.M. in emergency the following decision has been taken:
"11. In case of an emergency, the recognised private hospital shall not refuse admission or demand advance from the beneficiary and shall provide credit facilities to the concerned patient on the production of valid CGHS card. The recognised CGHS Hospital/diagnostic centre shall submit the bill for reimbursement subject to the ceiling of approved rate to the respective Department/Joint Director, CGHS where the payment is made by CGHS Directorate.
12. Reimbursement in respect of serving CGHS beneficiaries and Members of Parliament covered under CGHS will be made by the respective Ministries/ Departments/Organisations.
13. The recognised hospitals/diagnostic centres will provide necessary medicines and all disposable sundries of standard quality and will not get them purchased through CGHS beneficiaries."
13. If one has regard to the above O.M., it is no more res integra that the recognised hospitals cannot charge more than the package rate and in case of an emergency on production of the CGHS card or any other facility the recognised hospital shall straightway submit the bills for reimbursement subject to the ceiling of approved rates to the respective department. This clearly sows that the policy of the Government is consistent to the effect that if a hospital is recognised by the Ministry of Health and Family Welfare and once the package rates have been fixed with an outer limit if a Government servant approaches the recognised hospital, that hospital is precluded from charging more than the package rates.
14. The aforesaid decision has a reasonable nexus with the objects sought to be achieved and is in consonance with the decision of the Apex Court in Ram Lubhaya Bagga (supra), where due to limited financial resources the decision to specify package rates having been found reasonable and justifiable hospitals should not charge as the Government servant who is protected for his life and treatment as an obligation of the Government should get himself treated at the best equipped hospitals within the resources specified by the Government, If the hospitals charge more than the package rates, which is a condition precedent for their recognition, is a matter between the Government and the Institution and on violation of any condition the law shall take its own course or these hospitals can even face de-recognition. A Government servant or his family members who are entitled to the treatment once taken to the hospital, a recognised one, as referral or non-referral, as non-referral is not an impediment for grant of medical expenses if are charged more than the package rates are mute spectators of the apathy shown by the hospitals and to save their lives they are forced to part with money without knowing the obligation on the part of hospital to charge the package rates. In that even the Government may with resources and machinery can redeem back the extra charges but denial of the medical reimbursement in full to a Government servant is not in consonance with the public policy.
15. In the above backdrop I may advert to the provisions of medical reimbursement under Ministry of Railways. The Medical Attendance and Treatment of Railway Servant is provided under IREM-I. As per Rule 603 (2) hospital is defined as a Government hospital, Contonment hospital or a hospital maintained by a local authority and any other hospital with which arrangements have been made by the Government for the treatment of Government servants.
16. Treatment is defined in Rule 603(5) and includes pathological treatment, supply of medicines, accommodation, nursing, special consultation and other medical process.
17. Rules 616 provides for charges for service rendered in connection with the treatment of a member of Railway servant's family at a hospital other than a Railway hospital should he paid by the Railway servant to the hospital authorities. The Railway Administration will reimburse the cost of medical attendance or treatment on the production of hospital bills countersigned by the authorized medical attendant.
18. If one has regard to the above, the Railway Board's circular issued on 10.9.99 provides as under.
"Reimbursement:
A Railway servant obtaining medical attendance for himself or a member of his family or dependent relatives should consult his authorised medical attendance first and proceed in accordance with his advice. In case of his failure to do so, his claim for reimbursement will not be entertained except as provided hereafter.
Consent of the authorised medical attendant is not necessary in the cases of family members and dependent relatives when sent to one of the recognised hospital. In such cases, the counter-signature by the Superintendent or head of hospital on bills will be regarded as sufficient and reimbursement allowed.
Where, in an emergency, a Railway servant has to go for treatment (including confinement) to a Government hospital or a recognised hospital or dispensary, without prior consultation with the authorised medical attendant, the reimbursement of the expenses incurred, to the extent otherwise admissible, will be permitted if, after careful examination of the circumstances of the case, competent medical authority accords an ex-post facto approval.
Where, the authorised medical attendant is of opinion that owing to the absence or remoteness of suitable hospital or to the severity of the illness or other causes considered adequate by the authorised medical attendant, a Railway servant cannot be given treatment, the Railway servant may receive treatment at his residence. In serious cases where it is certified in writing that removal of the patient to a hospital is dangerous or injurious to life, a member of the family shall also be "entitled treatment at residence. The claim for reimbursement of the cost of such treatment including the amount of fees for visit only to Medical Officer, shall be paid.
Reimbursement of medical expenses for treatment taken in emergency without proper reference made by AMA in Government/recognised hospitals or dispensaries run by Philonthropic organisations shall be made by GM/AGM upto Rs. 50,000 in each case. These powers should not be delegated to lower authorities.
However, power for re-imbursement of medical expenses taken in emergency without proper reference by AMA in Govt. Hospitals has been enhanced from Rs. 30,000 to full without limit.
[R.B.'s No. 91/H/6-4/26 of 20.11.97; and R.B's No., 91/H/6-4/26 of 10.9.1999]"
19. If one has regard to the above, the medical expenses incurred in emergency without proper reference from AMA in Government recognised hospitals the maximum amount which the General Manager can sanction as medical reimbursement is Rs. 50,000/-. However, in emergency medical expenses even without referral in a Government hospital have been enhanced from Rs. 30,000/- to full without limit. The above Railway Board's decision offends Article 14 of the Constitution of India, according to which a State cannot make distinction between the two persons of one class or in other words equals cannot be treated unequally. If the re-imbursement is allowed in full of medical expenses incurred without referral in Government hospitals then the treatment taken in those hospitals which are recognised by the Government the same criteria would be followed. More particularly in view of the matter that hospital under the Rules ibid in Railways has been defined including the hospital with which arrangements have been made by the Government to treat the Government servants. A Constitution Bench of the Apex Court in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145=1983(1) SLJ 131 (SC), laid down the following test for principles of equality:
"16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of Slate affirmative action. In the absence of doctrine of classification such legislation is likely to founder on the bed rock of equality enshrined in Article 14. The Court realistically appraising the social satisfaction and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part-IV of the Constitution evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfied the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlated to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India when at page 1034 (SCC p. 506), the Court observed that a discriminatory action of the Government is liable to be struck down unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
20. Keeping in light the aforesaid ratio the distinction between the person who has taken the treatment in Government hospitals and those who had taken treatment in Government recognised hospitals no intelligible differentia is found and I do not see any reasonable nexus with the objects sought to be achieved. As such the above decision violates the principles of equality enshrined under Article 14 of the Constitution of India.
21. It is not disputed that Sir Ganga Ram Hospital has been recognised for the purposes of specialist treatment by the Ministry of Health and Family Welfare. Being a recognised hospital for the purpose of reimbursement no distinction can be made between a Government hospital or a hospital recognised by Government. With the modernisation of technique the Government hospitals have not kept pace with the private hospitals with the result the specialised treatment equipments and expectancy of life and survival rate has gone multifold in recognised hospitals and the conditions of Government hospitals have become pathetic. A citizen of India who is also a Government servant has a right to life under Article 21 of the Constitution of India and the State has to protect it. If a person in emergency when such a specialised treatment is not available in Railway hospital goes himself or takes the family member to such hospital, denial of medical expenses on the ground that it is not a Government hospital cannot be countenanced. The Apex Court in K.P. Singh v. Union of India and Ors., 2002 SCC (L and S) 761 observed as under:
"6. The last grievance, and it is of some note, is that a beneficiary of the Scheme will receive reimbursement only at the rate approved by the CGHS, regardless of the fact that in his particular town or city there are only private hospitals and no Government hospital, there is, therefore, no option for him but to enter a private hospital for such treatment. It is also submitted that the approved rates are not updated by the CGHS from time to time so that what the beneficiary receives by way of reimbursement can be substantially less than the cost that has actually been incurred upon his hospitalisation. While there is, we think, merit in the submission, it is not for us to dictate what should be done. We direct that the Union of India shall immediately consider this aspect and give appropriate directions thereon. It would clearly be appropriate for it to update its approved rates on an annual or, at least, biennial basis."
22. If one has regard to the above, the ratio decidendi mutatis mutandis applies to the Railways and taking a person to the private Government recognised hospital would not be an impediment for grant of medical expenses.
23. The above discussion now brings me to Railway Board's letter dated 23.11.2000, where the following decision has been taken:
"Sub: Reimbursement of medical expenses incurred on treatment taken by Railway beneficiaries in private Hospitals.
Instances have come to Board's notice where Railway beneficiaries (both serving and retired) had taken treatment in Private Hospitals, without being referred by AMA, in the Hospitals of their own choice. It is observed that Zonal Railways in almost all cases recommend the same amount for approval by Board which is charged by the Private Hospitals and claimed by the beneficiaries. This kind of recommendations of the Zonal Railways lead to Court cases when such recommended amounts are not agreed to by Board. In such cases, it is presumed by the claimants that such amounts, as are recommended by the Zonal Railways, where actually reimbursable to them. As a matter of fact, such claims are to be scrutinized by the Zonal Railways with a view to their admissibility and should recommend only the amount that would have been charged by Government Hospitals/Railway. Hospitals from non-Railway patients or the expenditure of Railway recognised Hospital in such non-referred cases depending on merits of clinical compulsion. However, the clinical features compelling the patients/such beneficiaries should invariably be indicated in the detail report of the CMDs so that there is no scope for the beneficiary to have wrong notions about the admissibility of the amount spent by them and presume the same to be reimbursable. Thus, it requires to be verified and scrutinized as per extant rules before forwarding such non-refereed cases for consideration by Board. It is desired that the rates of Government Hospital/non-Railway hospital for treatment in Railway Hospital/Railway recognised hospital should be accompanied for early disposal of the case. Breakup of expenditure should also be clearly indicated. This will help better appreciations of the claims and avoid further litigation.
Please acknowledge the receipt."
24. The above Railway Board's decision only lays down that the scrutinization of claims of persons where Railway servants have taken treatment in private recognized hospital the criteria would be the reimbursement of the amount which could have been incurred on treatment at Government hospital or what could have been charged by the Railway Hospital from non-Railway patients. The aforesaid decision, though a policy decision, has not over-ridden the decision dated 10.9.99, which is in vogue and in that event if the treatment is taken in a Government recognized hospital full reimbursement is to be accorded.
25. In Ram Lubhaya Bagga (supra) though a decision by a three-Judges Bench of the Apex Court has dealt with as a ratio decidendi the policy of Punjab Government promulgated on 13.2.95, where the decision was to reimburse as per the AIIMS rates, while adverting to the financial resources the following observations have been made:
"29. No State of any country can have unlimited resources on spend on any of is projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India."
26. A ratio decidendi of a decision is to be derived not only from reading the head notes or concluding part but also from the cumulative reading of the facts and circumstances, issue in question, adjudication and conclusion thereon. I am fortified in my conclusion by a decision of the Apex Court in Islamic Academy of Education v. State of Karnataka, . In Ram Lubhaya Bagga (supra) with a particular reference to the policy of Government of Punjab restricting the treatment to AIIMS rates what has been held is that Government has to limit the facilities to citizens and if no scale or rate is fixed in private clinics or hospitals they would be charging exorbitant scales and the State would be bound to reimburse the same. As such the decision has not laid down any proposition of law keeping in view the Railway Board's letter dated 10.9.1999, which has not been considered, the decision cannot be treated as a general proposition of law on admissibility of full expenses in the case of Railway servant, as the Apex Court had no occasion to go into the vires of the policy laid down by the Railways. As such the decision is distinguishable and would not apply to the facts and circumstances of the case.
27. The decision in Surjit Singh (supra) also meets the same fate.
28. In so far as the contention raised by respondents as to the policy decision of the Government is concerned, in Balco's case (supra) as well as in P.U. Joshi v. Accountant General, 2003(1) SLJ 237 (SC) in a judicial review a policy decision of the Government would be amenable for interference if it is mala fide or is an infraction of principles of equality enshrined under Article 14 of the Constitution of India. In the above backdrop when there is no laid down guidelines to reimburse a Railway servant of his medical expenses as per AIIMS rates the same cannot be thrust on Railway servant and rather Rule 616 of IREC-1 which has been shaped as a statutory rule allows full reimbursement without any reference to AIIMS rates cannot be overridden by a Railway Board's circular of 2000. The circular issued is a policy decision in 1999 ibid supplements the aforesaid rules and has to prevail.
29. Another aspect of the matter is the decision in Nirupam Pahwa (supra). It is trite law that if a decision of the coordinate Bench does not take into consideration the statutory provisions or is decided in ignorance of it, same has no precedent value and would be a decision per incuriam. I am fortified in my view by the decision of the Apex Court in Furest Day Lawson Ltd. v. Zindal Export, . The decision in Nirupam Pahwa (supra) by a coordinate Bench has neither taken note of guidelines of 1999, as such the same would not be a binding precedent. Moreover, it is trite law that in the event a decision of the higher Court is available the same impliedly overrules the decision of the coordinate Bench and in that event there would be no violation of the doctrine of precedent by following the decision of, the higher coram.
30. In Milap Singh (supra) High Court of Delhi after meticulously going into all the points raised allowed full re-imbursement to the concerned.
31. Recently the High Court of Delhi in J.K. Saxena (supra) while referring to the decision of Division Bench observed as under:
"4. Reference may be invited to the decision of this Bench in V.K. Gupta v. Union of India reported at and a decision of the Division Bench in Sqn Commander Randeep Kumar Rana v. Union of India, WP(C) No. 2464/2003. The Division Bench in the above cited case had, while dealing with the amount charged in excess than the package rate, held as under:
'Now we come to the plea which has been taken by the respondent in the counter affidavit. It has been contended in Para 11 of counter affidavit that it is the duty of the citizens to see and ensure that such recognised hospital do not charge excess of the package rates. How a citizen can ensure that a hospital does not charge over and above the package rate? The power to lay down guidelines is with the respondent, A citizen is a mere spectator to what State authority do and decide. If the hospital has charged over and above the package rate, the respondent is under an obligation to pay such charges as the petitioner has incurred over package rates at the first instance and if in law State can recover from the hospital concerned, they may do so but they cannot deny their liability to pay the Government employee, who is entitled for medical reimbursement.' In view of the foregoing dictum, as laid down by the Division Bench, petitioner is entitled to reimbursement of the full amount. A writ of mandamus shall issue to the respondent to pay the balance amount of Rs. 36,000/- to the petitioner within six weeks from today. In case, payment is not made, petitioner would also be entitled to interest @ 9% per annum on the aforesaid amount in future."
32. If one has regard to the above the Division Bench decision of the High Court of Delhi is binding on me and as per it if the hospital has charged more than the package rate it is for the State to recover it from the hospital but does not deny the right of the Government servant to get the actual expenses reimbursed.
33. Recently the Principle Bench of this Tribunal in O.A. 131/2002 (supra) decided on 22.12.2004 made the following observations:
"20. Counsel for respondents has also relied upon M.L. Kamra v. Lt. Governor and Ors., 2003(3) SLJ 304 where reimbursement claim of a State Government employee, for taking treatment at Apollo hospital, was declined by the Court. However, it is not the case of the applicant because it was the case of the employee who has gone to the hospital of his own choice and Hon'ble Supreme Court had allowed the reimbursement of the claim made by the employee. Counsel of the respondents also cited Nirupam Pahwa v. Union of India and Ors. in O.A. 2516/2002 decided on 14.7.2003 where the Railways had restricted the reimbursement of the medical claim to the Railway employee to the rates prescribed at the Government hospital for such treatment. The O.A. was dismissed by the Tribunal. It was held that the applicant had chosen the private hospital for treatment of his wife since he wanted her to be treated by certain doctors who are working for the private hospital chosen by the applicant. It is not a case of emergency treatment. In Northern Railway Section Officer/Assistant Audit Officers Association v. Union of India and Ors., O.A. 3309/2001 decided by the Principal Bench on 31.03.2004 wherein the facility of Class-A Pass availed by them as Gazetted Officers had been withdrawn since the grade in which the applicant was working was a non-Gazetted grade in the Railway and in view of the judgment of the Hon'ble Supreme Court dated 20.4.1993. It was observed that the issuing passes/PTO was within the prerogative of Ministry of Railway/Railway Board and he facilities provided to the Railway employees would be subject to the policy guidelines laid down by the department. The judgment does not throw light on the question which requires determination in the present case. Counsel for respondent next cited H.C. Bhandari v. Union of India, O.A. 1023/2003 decided on 20.7.2004. It was a case where the respondents were directed to consider the case of the reimbursement of medical expenses of Railway employee taken at Escorts Hospital at the rate prescribed at AIIMS in light of the judgment of the Hon'ble Supreme Court referred to. The judgment also come to the rescue of the respondent in this case because of its own distinguishing features. Firstly, in the present case reference has already been made to the AIIMS for treatment of the patient, secondly, the treatment was taken at a recognized hospital, thirdly, the treatment was taken at an emergency. Counsel for respondents had himself suggested that the reimbursement of the claim may be restricted to the rates prescribed at AIIMS. The Apollo Hospital was a recognised hospital and expenses for treatment undertaken there could have been reimbursed as per rule had the patient been referred to that hospital. The Central Railway Hospital had, in fact, referred the patient to the AIIMS where on account of non-availability of bed she could not be given emergency treatment. To save her life the patient was admitted in the Apollo Hospital which was nearest to the place where the need of emergency treatment arose. It was also a recognised hospital.
21. For the reasons stated above, the rejection of the claim of the applicant for treatment by the order impugned in this case is not sustainable. It is, accordingly, set aside. It is directed that the respondents shall give reimbursement to all the expenditure incurred by the applicant on the emergency treatment of his mother Smt. Bilquis Fatima taken at Apollo Hospital at the same rate at which it would have reimbursed the medical claim had the treatment been taken by the patient on referral to the said Apollo Hospital by the Central Hospital of the Railways. In the circumstance, the parties are left to bear their own costs."
34. The Courts are not precluded from taking a pragmatic view of the situation being a Welfare State the Medical Attendance Rules and reimbursement of medical expenses is a beneficial legislation to protect the life of a Government servant and it is the duty of the Government to provide necessary infrastructure. It is very unfortunate that except AIIMS no other hospital of the Government is well equipped to meet the exigencies and to facilitate the object of Article 21 in protecting the life of the Government servants and their families. It is high time for the Government to think over it and to provide such an infrastructure to these hospitals by upgrading them to bring at par with other private specialized hospitals. The basic object for recognition of private hospitals was the same. The Government servant or his family members when taken seriously ill with all logic and rational and as a normal human tendency seeks the best of the treatment which is available at private hospitals recognized by the Government. On approaching these Institutions it is expected by the Government servant that the medical treatment tendered and expenses incurred would be reimbursable within the package rate as specified by the Government. If the hospital charges more there is no attribution to it by the concerned Government servant who is helpless and constrained in order to save himself and the members of his family from the verge of death. Bargain arrived at by the private recognized hospitals is not only in human but also victimisation of Government servant as the very condition of their recognition in case a Government servant approaches them for treatment is to charge from the Government directly the medical expenses at the package rate. Exceeding the aforesaid amount is neither justifiable nor reasonable. With the limited sources and monthly contribution to the medical scheme even if the state limit finances to the project of health, yet it does not absolve them from strict adherence to the package rates and directives from time to time to the concerned hospitals. I earnestly hope that the Ministry of Health and Family Welfare would ponder over this and take appropriate measures. Without any fault of the Government servant on equitable principles and legitimate expectation he cannot be deprived of the actual reimbursement of the amount incurred on the treatment in an emergency, though charged in excess by the hospital. There are ways and means and resources with the Government to recover the aforesaid amount or to take appropriate measures against the erring Institutions. In that event, law shall take its own course.
35. I am satisfied that rejection of request for full reimbursement of medical expenses to applicant is neither legal nor justifiable.
36. In the result, for the foregoing reasons, O.A. is allowed impugned orders are set aside. Respondents are directed to reimburse the balance amount of Rs. 69,155/- along with a simple interest of 9% per annum to applicant within a period of one month from the date of receipt of a copy of this order. No costs.
37. Let a copy of this order be also sent to the Secretary, Ministry of Railways, Rail Bhawan, New Delhi as well as Secretary Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi for information and necessary action.