Central Administrative Tribunal - Ernakulam
K.P. Prathapachandran Nair vs Union Of India Represented By The on 21 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
T.A. NO. 19/2008
Dated this the 21st day of July, 2010
C O R A M
HON'BLE MR.JUSTICE K. THANKAPPAN, JUDICIAL MEMBER
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
K.P. Prathapachandran Nair
Sr. TOA(P) O/o SDE (Spl. Service)
Central Telephone Exchange
Trivandrum-1 ..Applicant
By Advocate Mr. S. Radhakrishnan
Vs.
1 Union of India represented by the
Secretary Ministry of Health
and Family Welfare (Department of Health)
Government of India
Nirman Bhavan, New Delhi.
2 The Director
CGHS, Nirman Bhavan,
New Delhi.
3 The Joint Director
Central Government Health Scheme
3/45, Kesavadasapuram
Trivandrum
4 The General Manager
BSNL, Telecom District
Trivandrum
5 The Accounts Officer (PC)
BSNL, O/o the GMTD
Trivandrum. Respondents.
By advocate Mr. Sunil Jacob Jose, SCGSC
The Application having been heard on 30.6.2010, the Tribunal
delivered the following:
O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER Writ Petition (c) NO. 14898/2004 filed before the High Court of Kerala which was transferred to the Tribunal, was registered and renumbered as T.A. 19/2008.
2 The applicant is aggrieved by the order of recovery of Rs. 67,422/- against the advance of Rs. 1,48,500/- drawn for the treatment of his wife.
3 The applicant, a Sr. Telecom Office Assistant, working in the Office of the Sub Divisional Engineer, Central Telephone Exchange, Trivandrum and his family are covered under the Central Government Health Scheme The wife of the applicant was suffering from chronic Rheumatoid disease with secondary Osteoarthritis of the left knee from 1991 onwards. The disease developed into the secondary stage and consequently she was being progressively crippled and endured severe pain. She was under the treatment of CGHS Dispensary, Kesavadasapuram Trivandrum. The Medical Officer referred her to the Ortho surgeon, Medical College Hospital Trivandrum (Ext. P-2) who advised her to undergo total knee replacement (Ext. P-3) and she was referred to Apollo Hospital, Chennai. The applicant sought permission from the 4th respondent for treatment at Apollo Hospital which is a recognised hospital for all types of treatment under the CGHS. The 3rd respondent accorded permission, the patient underwent total left knee replacement surgery, The applicant drew an advance of Rs. 1,48,500/- The expenditure incurred was Rs. 1,55,963/-. Accordingly, he submitted bills for settlement of the claim. While so, the applicant received letter dated 9.3.99 stating that Rs. 81,078/- had only been recommended by the CGHS Directorate and therefore he was asked to refund Rs. 67,442/- Aggrieved by the illegal recovery he filed O.A. 1057/2001 before this Tribunal which was admitted on 5.12.2001 and interim stay of recovery was ordered. Subsequently, the O.A was dismissed on the ground that the BSNL being a Company not notified under the AT Act, the Tribunal has no jurisdiction. The applicant moved WP(C) before the High Court which admitted the OP and stayed the recovery, that WP was transferred to this Tribunal which is renumbered as TA 19/08. 4 The applicant is challenging the recovery on the grounds that, less than 50% of the total expenses is allowed., the rates fixed has no rational nexus to the actual expenses and the variation from one city to another city has no connection or parity, the rates fixed in Annexure A- 10 and A-11 are beyond comprehension and liable to be struck down, the ceiling fixed for the implant at Annexure P-10 does not cover the cost of the procedure and other charges, the estimate of the treatment was given at Rs. 1,65,000/- and advance of Rs. 1,48,500/- was sanctioned, which was paid to the hospital directly by the Department, a total bill of Rs. 1,55,126/- was preferred along with the certificate from the hospital, the respondents have not given any reason for rejection of the claim and why they have ordered recovery.. He also relied on the judgments of the Apex Court in State of Punjab and Others V. Mohinder Singh Chawla Surjith Singh V. State of Punjab (AIR 1996 SC 1388)JT 1997 (1)SC 416 and Narendar Pal Singh V. Union of India and Others (1998 Lab I.C. 1861).
5 The respondents 2 & 3 and 4 & 5 filed separate reply statements.
6 The respondents 2 & 3 stated that in the OM No. S-
11011/16/94-CGHS DEK-II/CMO(D) CGHS(P) dated 10.6.97 the treatment cost is limited to Rs. 60,000/- plus 5000 towards cost of bone cement. An undertaking was given by the beneficiary in this regard which was forwarded to the BSNL. In spite of the ceiling, the BSNL sanctioned without limiting the advance to the entitlement. They invited our attention to the judgment of the Apex Court in Punjab and Others Vs. Ram Lubhaya Bagga & Others (1998 4 SCC 117) to the effect that package rates for various treatments are not ultra vires of the Constitution. They further stated that the reimbursement will be restricted to the package rate/actual whichever is less as per CGHS Rule and that CSMA rules cannot be applied. However, they admitted that procedure charge can be given in addition to the ceiling limit of cost of implant.
7 In the counter affidavit filed by the respondents 4 & 5 they submitted that the permission to undergo the treatment at Apollo Hospital, Chennai was granted as per the choice of the applicant and reimbursement will be admissible as per Ext. P-11 and that no TA/DA will be admissible as the same treatment is available in the city. They submitted that an advance of Rs. 1,48,500/- was sanctioned in view of the emergency at the rate of 90% of the estimated cost, following the demand of the employee.
8 We have carefully considered the matter in detail. The applicant's wife was advised to undergo total knee replacement / corrective surgery he decided to get treatment of his wife at Apollo Hospital, Chennai. He was granted permission and advance was released with the condition that the reimbursement will be admissible as per OM No. S.121011/16/94-CGHS desk-II/CMO(D) CGHS(P) dated 10.6.97 without any TA/DA. As per Annexure-I schedule of charges of Hospital /diagnostic centres recognised under Central Government Health Scheme, the rate for total knee joint replacement is Rs. 58,000/- The package deal rates include admission charges accommodation charges, ICU/ICCU charges, monitoring charges, operation theatre charges, cost of drugs used during the procedure and disposable surgical sundries and physiotherapy charges. It is clear from the endorsement to Ext. P-5 letter that the applicant had given an undertaking and that the same was forwarded to the Medical Superintendent, Apollo Hospital, Chennai and the Asstt. General Manager (Admn) Telecom District, Trivandrum-23. The undertaking given by the applicant is not produced before us. However, we are of the view that the applicant was aware that the reimbursement would depend on the OM mentioned therein and that he is bound by the undertaking. Therefore, he cannot now turn around and say that the respondents are bound to reimburse the entire expenses of the treatment.
9 The learned counsel for the applicant relied on the following decisions:
(i) In State of Punjab and Others V. Mohinder Singh Chawla (JT 1997 (1)SC 4160 the Apex Court observed:
"It is now settled law that right to health is integral to right to life. Government has constitutional obligation to provide the health facilities. If the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference where the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee."
(ii) In Surjith Singh Vs. State of Punjab (AIR 1006 SC 1388) it was held that the appellant therein had the right to take steps in self preservation and it is only fair and just that the respondents pay to the appellant the rate admissible as per the Hospital approved by the respondents.
(iii) Following these rulings, the Delhi High Court in Narendar Pal Singh V. Union of India and others (1998 Lab IC 1861) had allowed the full reimbursement of the claimant therein in spite of the fact that he had not taken the prior sanction of the Central Government as required under the Rules. 10 The respondents have relied on the judgment of the Apex Court in State of Punjab and Others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117) and argued that Right to health is the obligation of the State but Government is justified in limiting the facilities to the extent permitted by its financial resources. The Apex Court in the case held that :
Para 29: No State or country can have unlimited resources to spend on any of its 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. The principle of fixation of rate and scale under the new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India."
We have gone through the judgments. In view of the law declared by the Apex Court in State of Punjab and Others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117) as quoted above, we are of the view that the fixation of rate and scale is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
11 We notice that recovery process had already started and that out of Rs. 67,422/- outstanding against the applicant, Rs. 18,647 has already been recovered as on 19.10.2001 (Ext. P-13). The Writ Petition was filed only on 14.5.2004. The High Court ordered stay on recovery proceedings pending disposal of the WP.
12 We find that there is no dispute that reimbursement of the medical claims of the beneficiaries covered under CGHS and CS(MA) is governed by the OM dated 7.3.1995 and 10.6.1997. As per OM dated 7.3.1995 the maximum ceiling for knee implant is Rs. 60,000/- plus Rs.
5000/- as the cost of bone cement. Annexure -I to OM dated 10.6.1997, shows that the rates chargeable for total knee joint replacement is Rs. 58,000/- The respondents in their reply has admitted that Rs. 60,000/- plus Rs. 5000/- towards cost of bone cement is reimbursable. A plain reading of the OM dated 7.3.1995 reveals that the OM only prescribes the cost of the implant alone eligible for reimbursement as Rs. 65,000/- Immediately after that, in OM dated 10.6.1997, schedule of charges is given for treatment procedure/investigation in hospitals diagnostic centres recognised by CGHS Chennai. Under ICU/CCU charges knee replacement finds a mention showing the eligible amount as Rs. 58,000/- It does not stand to logic that it is the package rate for knee replacement, since by 1995 OM the cost of Rs. 65,000/- is permitted for the implant alone. The rate of Intra Ocular Lens(IOL) implantation for cataract surgery is shown as Rs. 5000 plus cost of lens with specification of lens as Indian manufactured. If Rs. 5000/- is permitted as surgery cost for a comparatively simple procedure for cataract surgery, which does not require overnight hospitalisation, naturally surgery cost has to be much higher for knee replacement which involves a major invasive surgery. Therefore, the presumption has to be that Rs. 58,000/- may have to be the eligible amount for surgery. Besides, the applicant is entitled to charges admitted by the Joint Director, CGHS, Trivandrum which are not included in the package deal as shown at Ext. P-9. The applicant has not produced the item-wise bills claimed by him nor the respondents produced the list of items which are disallowed. 13 In the circumstances we hold that the applicant is entitled to Rs. 65,000/- for implant, Rs. 58,000/- for surgery and other charges, admitted by Joint Director, CGHS, Trivandrum. Hence, the claim of the applicant is to be reconsidered by the second respondent in accordance with the rates prevalent at the relevant time keeping in view our observation above. Accordingly, we dispose of the Application with the direction to the to the 4th respondent to consider the matter as per the rules in force at the relevant time and settle the bill within three months from the date of receipt of the same. The T.A is disposed of as above. No costs.
Dated 21st July, 2010. K. NOORJEHAN JUSTICE K. THANKAPPAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER kmn