Central Administrative Tribunal - Delhi
Sarojini Raman vs Union Of India on 9 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1632 of 2011 New Delhi this the 9th day of November, 2011 Honble Dr. Dharam Paul Sharma, Member (J) Sarojini Raman w/o Shri A.K. Raman, R/o E-21/B, MIG Flats, DDA, Mayapuri, New Delhi. .... Applicant ( By Advocate Shri Maya Ram ) VERSUS 1. Union of India Through Secretary, Ministry of Tourism, Transport Bhavan, New Delhi-110001. 2. Chairman-cum-Managing Director, M/s India Tourism Development Corporation Ltd. Scope Complex, Core 8, 6th Floor, 7, Lodhi Road, New Delhi-110003. 3. General Manager, Ashok Hotel (A Unit of India Tourism Development Corporation ) Diplomatic Enclave, 50-B, Chanakaya Puri, New Delhi-110021. .. Respondents ( By Advocate Ms. Shipra Shukla) O R D E R
This Application filed under Section 19 of the Administrative Tribunals Act, 1985, is directed against the order dated 8.9.2010 passed by respondent no.2, as at Annexure-A, on the applicants claim for reimbursement of the cost of CPAP Machine amounting to Rs.42,400/- which was recommended to the applicant by the AIIMS, New Delhi. The impugned order has been passed in compliance of the orders of this Tribunal dated 3.3.2010 in OA No.696/2010 earlier filed by the applicant herein for the same relief as is being claimed in these proceedings. The said OA was disposed of with the directions to the respondents to reconsider the matter by treating the said OA as an additional representation of the applicant and pass a reasoned and speaking order thereon within two months from the date of receipt of a certified copy of that order. In the said Application, the applicant has, inter alia, complained of hostile discrimination in view of the fact that respondents have reimbursed the cost of CPAP machine amounting to Rs.46,980/- to one Shri S.C. Ghai, who was also suffering from a similar sleep disorder as has been the case with the applicant herein under the category of Special Disease while the same has been denied to the applicant. As stated earlier, the impugned order has been passed by the respondents in compliance with the directions issued earlier by this Tribunal in OA No.696/2010 referred to above. The respondents have distinguished the case of Shri S.C. Ghai with whom parity was sought by the applicant as follows :-
After studying the entire case in detail and perusing the comments of the Chief Medical & Health Officer (CM&HO), ITDC, it is seen that Shri S.C. Ghai suffered from massive M.I. (heart attack) thereby reducing efficiency of his heart and needing this device for proper supply of oxygen and thereby reducing chances of further complications. M.I./C.A.D are covered under Special Disease as per ITDC Medical Attendance Rules and Shri S.C. Ghai was reimbursed the expenses for purchase of CPAP Device under the category of Special Disease.
In the case of Mrs. Sarojini Ram the Medical Officer has opined that she was found to be grossly overweight/obese and her other vital parameters were with normal limits, over weight/ obesity is not covered under Special disease and Mrs. Raman only needed weight reduction regimen / lifestyle management and was explained the same. Hence, it will not be right to compare the two cases medically as both are different as far as there severity and complications are concerned.
2. The applicant has challenged the correctness and validity of the respondents action as aforesaid in these proceedings.
3. The impugned order has been assailed as patently suffering from hostile discrimination and is thus violative of the principle of equality as enshrined in Article 14 of the Constitution of India. Both the applicant as well as Shri S.C. Ghai have been suffering from obstructive sleep apnoea due to which oxygen level fall dangerously to low level while sleeping which can lead to heart attack, paralysis and sudden death during sleep. The only life saving treatment recommended in both the cases by the competent medical authorities is the use of CPAP (Continuous Positive Airways Pressure) machine every night life long. The recommended machine is thus a life saving equipment. There are concurrent recommendations in the case of the applicant from Indraprastha Apollo Hospital, New Delhi and specialized doctors from AIIMS, New Delhi. The respondents have arbitrarily chosen to extend the concession of medical reimbursement to Shri S.C. Ghai but denied the same to the applicant for the reason which is not germane to the issue under consideration and does not provide any rational nexus with the object sought to be achieved thereby by classifying the applicant on the one hand and Shri S.C. Ghai on other category and different class. This smacks of discrimination. The respondents have failed to act fairly and in a just manner. The respondents ought to have acted in the framework of medical Rules uniformly applicable to the all employees.
4. In their counter reply, the respondents have opposed the applicants claim, as aforesaid. It has been strongly urged that the respondents have passed a reasoned and speaking order, which is a sufficient compliance with the directions given earlier by this Tribunal. The applicants case has been examined by Chairman-cum-Managing Director of the respondents Corporation after reviewing in detail all the facts on record and action taken was with the concurred views of the Chief Medical & Health Officer of the respondents Corporation. It has been submitted by the respondents that the applicants request for reimbursement of the amount has been for purchase of machine, which was not reimbursed to her as the same was for the treatment of sleeping disorder reimbursement of which is not covered as per the ITDC Medical Rules. The respondents have denied that another employee of ITDC Shri SC Ghai, MD (HR) was also suffering from similar disease and that he was accorded approval for purchase of C.P.A.P. machine vide letter dated 10.07.202. The fact of the matter is that in the case of the applicant CM&HO, ITDC, commented that the applicant was suffering from sleep Apnea, which is in fact a physiological disorder due to gross overweight, obesity, snoring arterial hypertension, which requires more of Life style management and moreover, the same is not covered under Special Diseases category. Accordingly the cost of C.P.A.P. Machine was not reimbursed to her. In the case of Shri S.C. Ghai, Ex. GM (HR), CM&HO, ITDC, clearly commented that no discrimination has been made to anybody on the reimbursement of medical expenses, Shri S.C. Ghai suffered from massive M.I. Heart Attack thereby reducing efficiency of his heart and since M.I./CAD are covered under Special Diseases the cost of C.P.A.P. device was reimbursed to Shri S.C. Ghai with the approval of the then C&MD, ITDC. It has further been submitted by the respondents that the disease from which the applicant has been suffering does not fall in the category of special diseases prescribed in the respondents Corporation medical rules. It has been very strongly urged by the respondents counsel that reimbursement of amount exceeding to Rs.10,000/- under the rules cannot be claimed as a matter of right. The respondents have power to allow special sanction for reimbursement of amount exceeding to Rs.10,000/- in their discretion. Strong emphasis has been laid by the respondents on the provisions of medical rules providing that in case of any doubt and dispute about the applicability of interpretation of these rules, decision of C&MD shall be final. The respondents counsel has drawn my specific attention to the impugned order wherein this aspect has been specifically brought out that the decision of C&MD shall be final and binding.
5. I have given my careful consideration to the respective submissions made by both the parties. I have also carefully perused the records of the case.
6. The main grievance of the applicant herein is that she has been denied parity with Shri S.C. Ghai when both are similarly placed and circumstanced, and consequently she has been subjected to hostile discrimination, which is not permissible in law. The respondents on the other hand seek to distinguish the case of the applicant from that of Shri S.C. Ghai. For better appreciation of the question in issue, it would be expedient to refer to the medical prescriptions in both the cases of the applicant as well as Shri S.C. Ghai. Insofar as the applicant is concerned, the discharge summary of Indraprastha Apollo Hospital reads as follows:-
DISCHARGE SUMMARY APOLLO HOSPITALS SLEEP LUNG HEART DISORDER INSTITUTE AND NATIONAL TELE NETWORK PATIENT NAME : Mrs. Sarojini Raman ID No.99059057 IP No.9920704 Age: 52 yrs Sex: Female D.O.A. 10/12/99 D.O.D.11/12/99 Address : E-21/13, MIG Flats, Mayapuri, New Delhi-64 Ph: 5142710 Study conducted, validated and reported by :Dr. Sanjay Sobti
---------------------------------------------------------------------------- PRE-CPAP PHASE Complete Overnight Polsomnography was performed on Mrs. Sarojini Raman. She had snoring with repetitive apnoeas and hypopnoeas associated with multiple arousals and desaturations mainly in REM sleep. Her Respiratory Disturbance index was 56/hour of sleep in REM sleep. Her oxygen saturation varied from 56-90% in REM sleep and 87-93% in non-REM sleep. There were no associated tachybradyarrhythmias. There was no Noctumal Myoclonus or Periodic Leg Movement Disorder.
CPAP CPAP was applied and titrated to pressure of 9 cm which abolished her apnoeas, hypopnoeas, desaturations, arousals and snoring.
INTERPRETATION Overlap Syndrome Obstructive Sleep Apnoea with hypoventilation with marked desaturations in REM sleep RECOMMENDATION :
1. Weight loss
2. Use of CPAP machine at a pressure of 9 cm every night.
Sd/-
Dr. Sanjay Sobti MD (Med.), D.N.B. (Chest), M.N.A.M.S., Fellow (Sleep Disorder Mechine) U.S.A. Consultant Respiratory Medicine, Critical Care & Sleep Medicine. While recommending the use of CPAP machine as aforesaid, the Indraprastha Apollo Hospitals issued the following certificate:-
This is to certify that Mrs. Sarojini Raman 52 years ID : 99059057 has undergone sleep study here at Apollo. She has obstructive sleep apnoea due to which her oxygen levels fall to dangerously low levels in sleep. This can lead to heart attack, paralysis and sudden death during sleep. Treatment recommended for this is the use of CPAP (Continuous Positve Airways Pressure) machine every night life long. This is life saving for her and the CPAP machine costs around Rs.50,000/- (Rupees Fifty Thousand only).
7. The above medical recommendations have been concurred in by AIIMS hospital, copies of which are at pages 19-20 of the paper book.
8. As against the above, the medical prescription in case of Shri S.C. Ghai by Sir Ganga Ram Hospital is as follows:-
SLEEP DISORDERS CENTRE SIR GANGA RAM HOSPITAL NEW DELHI PATIENT: MR. S.C. GHAI UR : 658 STUDY DATE : 7 JUN 2002 WEIGHT (kg) : 74 height (cm) : 166 BMI (kg/m2) : 26.9 Sex : M BIRTH DATE : 28.05.19 46 REASON FOR STUDY CPAP TITRATION VARIABLES MONITORED CONTINUOUSLY ECG EMG EOG(L) EOG(R) EEG EEG (sec) LEG(L) LEG(R) AIRFLOW THOR RES ABDO RES SOUND POSITION Sa02 TcC02 LIGHT CPAP RECORDING COMMENTS Patient is a diagnosed case of severe degree of obstructive sleep apnea. Nasal CPAP titration was performed. Patient tolerated CPAP well. There was significant improvement in all sleep and respiratory parameters. He had a Sleep latency of 4.3 minutes with Sleep efficiency of nearly 90%. There was marked reduction in arousal index from 34.3 events/hr. to 10 events/hr. There was increase in REM sleep. There were no significant apneas and hypopneas.
Sa02 was maintained around 97% for most of the time.
Pressure required through nasal CPAP is 13.6cmH20.
ADVICE: 1. To use nasal CPAP at the pressure of 13.6cmH20 during sleep.
2. Reduction in weight.
3. Review after 3 months. SLEEP DISORDERS CENTRE SIR GANGA RAM HOSPITAL NEW DELHI-110060 PATIENT: MR. S.C. GHAI UR : 653 STUDY DATE : 3 JUN 2002 WEIGHT (kg) : 71 height (cm) : 166 BMI (kg/m2) : 25.0 Sex : M BIRTH DATE : 28.05.19 46 REASON FOR STUDY VARIABLES MONITORED CONTINUOUSLY ECG EMG EMG-D EOG(L) EOG(R) EEG EEG(sec) LEG(R) AIRFLOW THOR RES ABDO RES SOUND POSITION Sa02 LIGHT RECORDING COMMENTS Sleep study was performed to evaluate the patient for obstructive sleep apnea.
Patient had a Sleep latency of 1 minute with Sleep efficiency of 80%. However he had a markedly fragmented sleep architecture with numerous arousals and Arousal Index of 34.3 events/hr..
These events were associated wit restless movements of the legs.
These were numerous respiratory events in form of apneas and hypopneas which were associated with full in Sa02.
*Respiratory Disturbance Index : 58 events/hr.
*Longest Apnea : 88 seconds.
* Longest Hypopnea : 117.5 seconds.
* Minimum Sa02 recorded L 75% IMPRESSION : Severe degree of :Obstructive Sleep Apnea-Hypopnea Syndrom:.
ADVICE: 1. Nasal CPAP titration.
2. Reduction in weight.
9. On a perusal of the aforesaid medical prescriptions, it is seen that both the applicant and Shri S.C. Ghai have been suffering from Obstructive Sleep Apnea having common characteristic and effects. Both have been recommended use of Nasal CPAP titration. Both have been advised reduction in weight. The nature of disease as well as the medical remedy therefor are common in both the cases. The function performed by the machine recommended by the doctors in the two cases IS also the same. It is relevant to note in this regard that there is no reference to heart attack that Shri S.C. Ghai suffered in the medical prescriptions referred to above. Nor it has been stated therein that the disease of Obstructive Sleep Apnea from which Shri S.C. Ghai has been suffering has been caused or in any way aggravated by the heart attack which Shri S.C. Ghai suffered. Yet the respondents have brought in these facts more with a view to distinguish the case of the applicant with that of Shri S.C. Ghai. Nevertheless, the fact remains that the disease for which recommended machine was advised to be used remain the same in both the cases. The remedial effect on the nature of function also remains common in both the cases and use of this machine is in respect of the level of oxygen going down during sleep in both the cases. As a matter of fact the respondents Corporation should have dealt with the matter on the basis of medical prescriptions which are common in both the cases. The respondents seem to have erred while emphasizing the factum of heart attack having been undergone by Shri S.C. Ghai as a condition precedent for grant of medical reimbursement. CPAP machine as recommended Obstructive Sleep Apnoea, which may or may not be on account of any heart attack. Admittedly, CPAP is a life saving machine and is intended to prevent heart attack, paralysis and sudden death during sleep. It is strange to expect that the applicant should suffer heart attack first in order to claim reimbursement of cost of CPAP machine, the use of which may avoid such a heart attack.
10. It is relevant to note that medical prescriptions in both the cases of the applicant as well as Shri S.C. Ghai recommended weight loss/reduction in weight. The respondents have erred in ignoring this fact in the case of Shri S.C. Ghai while emphasizing on the same in the case of the applicant for holding the view that the disease suffered by the applicant relates to life style which may be remedied by suitable changes in life style management.
11. It is true that medical reimbursement under the medical rules is confined to Rs.10,000/- in general and reimbursement about that limit may be allowed with special sanction. Thus, the respondents vested with the discretion in such cases, which is to be exercised having regard to the critical nature of the case. Certain diseases are indeed categorized as Special Diseases for the purposes of medical reimbursement. However, these are not exhaustive as can be gathered from the provisions in the medical Rules, the relevant part of which reads as follows:-
It is also clarified that the maximum limit for claiming reimbursement under the category of the Special Disease is Rs.10,000/- per year. Director (Finance) is the Competent Authority to allow special sanction for reimbursement of amount exceeding Rs.10,000/- in critical cases such as (emphasis supplied) Fatal Accident/Cancer/By pass Surgery/AngioPlasty /Dialysis/Kidney Transplantation etc. on the recommendation of Chief Medical & Health Officer and VP (HR).
12. The expression critical cases such as tend to indicate the nature of such a disease as aforesaid. The aforesaid expression is more by way of illustration and not intended to be exhaustive. The guiding principle in all such cases is the critical nature of the case on the one hand and that of Shri S.C. Ghai on the other hand based on the factum of disease of Obstructive Sleep Apnoea suffered by Shri S.C. Ghai and the applicant being common and thereby deserving the same treatment at the hands of the respondents. The respondents cannot in law act arbitrarily while exercising discretion conferred upon them under the rules in this regard. They ought to act fairly and in a just manner, extending the benefits under the rules uniformly to all its employees, who are similarly placed. Ordinarily, the cases of erroneous exercise of administrative discretion are remitted back to the authority concerned for reconsideration. However, where the authority concerned failed to mend such an error in spite of having been given an opportunity for that purpose, it may have to be dealt with in a different manner.
13. Having bestowed my careful consideration, I am of the considered view that the impugned order dated 8.9.2010, as at Annexure-A, is not sustainable for the reason of it being arbitrary and discriminatory and the same is accordingly quashed and set aside.
14. In the facts and circumstances of the case and for the reasons stated above, the applicant is entitled to parity with Shri S.C. Ghai in the matter of reimbursement of cost of CPAP machine recommended by way of medical treatment for Obstructive Sleep Apnea disease, as has been sanctioned in the case of Shri S.C. Ghai. The respondents are, therefore, directed to reimburse the cost of CPAP device to the applicant within one month from the date of receipt of a certified copy of this order.
15. The Original Application is accordingly allowed in above terms with cost quantified at Rs.5,000/- (Rupees Five Thousand only).
(Dr. Dharam Paul Sharma) Member (J) /ravi/