Central Administrative Tribunal - Ernakulam
Nirmal Goel vs The Secretary Ministry Of Housing And ... on 26 July, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00280/2020
Tuesday, this the 26th day of July 2022
CORAM:
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Nirmal Goel,
Aged 51 years,
Working as Superintending Engineer,
Central Public Works Department, Kochi.
R/o.Flat No.11-B, SFS Silicon Drive,
Kakkanad, Kochi - 682 037. ...Applicant
(By Advocate Mr.K.P.S.Suresh)
versus
1. The Secretary to Government of India,
Ministry of Housing & Urban Affairs
(previously Ministry of Urban Development & Poverty Alleviation),
Nirman Bhawan, New Delhi,
Delhi - 110 011.
2. The Director General,
Central Public Works Department,
Nirman Bhawan, New Delhi - 110 011.
3. The Director General,
Directorate General of Central Government Health Scheme,
Department of Health & Family Welfare,
Nirman Bhawan, New Delhi - 110 011. ...Respondents
(By Advocate Mr.M.K.Padmanabhan Nair, ACGSC)
This application having been heard on 13 th July 2022, the Tribunal on
26th July 2022 delivered the following :
ORDER
This is second round of litigation as earlier the applicant had filed O.A.No.180/479/2019 aggrieved by the objections raised on the final bill submitted to the 2nd respondent therein. This Tribunal vide its -2- order dated 05.07.2019 had directed the 1 st respondent therein to reconsider the representation of the applicant and to issue a speaking order within a period of 60 days from the date of receipt of a copy of the order.
2. The present O.A is filed by the applicant aggrieved by the Annexure A-9 order dated 12.09.2019. The order has revoked the revised Medical Reimbursement Claim (MRC) order dated 23.12.2016 and an ex-post facto sanction order amounting to Rs.557054/- has been made to settle the MRC bill. Further, by Annexure A-11 order dated 28.11.2019, it has been indicated that the applicant's representation has been examined by the competent authority and since the speaking order dated 12.09.2019 at Annexure A-9 has already been issued in compliance of orders of this Tribunal in O.A.No.180/479/2019, no further action was required in the matter. The applicant with this backdrop, has filed the O.A seeking the following reliefs :
"1. The respondents may kindly be directed to reimburse the actual cost of the ICD.
2. The respondents may kindly be directed to give interest at the rate of 12% per annum compounded annually for undue delay for the amount already paid and balance amount due on medical bills yet to be paid after allowing a reasonable processing time of 90 days.
3. The respondents may be directed to reimburse the cost of and incidental to this application.
4. Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
3. The brief facts of the case are as follows :
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The applicant is a Superintending Engineer in Central Public Works Department (CPWD) presently posted at Ernakulam. It is submitted that his daughter was diagnosed with a critical heart condition called Dilated cardio- myopathy with Low Left Ventricle Ejection Fraction (LVEF) 15 - 20%, wherein, the patient is constantly exposed to the risk of life. As her health condition was critical, it is submitted that she needed constant special medical care. It is submitted that any change in the treating hospital would involve risk to her life. Thus, it is submitted that the applicant had taken his daughter under the medical management of the Escort Heart Institute and Research Centre (EHIRC), New Delhi since 04.03.2008. It is submitted that due permission for treatment in EHIRC had always been granted by competent authorities, wherever he was posted from time to time. It is submitted that the doctors at EHIRC advised for an Implantable Cardio- verter Defibrillator (ICD) implant on his daughter to avoid sudden cardiac death. The hospital first gave an estimate of Rs.568063/- as per CGHS rate for the implant procedure. Vide Annexure A-3 a sum of Rs.511000/- was sanctioned, drawn and paid to the EHIRC on 13.06.2014 towards medical advance for the said treatment. Subsequently, his daughter went through major cardiac treatment from 30.06.2014 to 01.07.2014 and again from 03.07.2014 to 06.07.2014.
4. It is submitted by the applicant that on completion of treatment and implant procedure, the hospital (EHIRC) has charged a final bill for Rs.858044/-. The applicant has settled the hospital bill by paying the balance amount of Rs.347044/- over and above the Rs.511000/- sanctioned by the respondents. Later, when the applicant submitted the final MRC -4- dated 08.07.2014, the 2nd respondent first limited the claim to a sum of Rs.67054/-. This resulted in a recovery of Rs.443946/- which was ordered vide F.No.27-S/G(59)/2012-EC-II (Part-Med-3) No.1171 dated 23.12.2016 produced at Annexure A-6. However, the applicant made the Annexure A-7 representation dated 10.02.2017 against this recovery, which was not responded to by the respondents. It appears that, subsequently, vide Annexure A-9 order dated 12.09.2019, the recovery order dated 23.12.2016 was revoked. Further, an ex post facto sanction of an amount of Rs.557054/- was given towards medical reimbursement. Hence, it is contended by the applicant that now a sum of Rs.300990/- has been disallowed by the respondents without any explanation by the Annexure A-9 order. He also submits that the stand taken by the respondents vide Annexure A-11 that no further action was required in the matter is highly unjust. He has thus approached this Tribunal by filing this O.A.
5. The grounds that are relied upon by the applicant are that the entire medical procedure carried out at EHIRC was done with the prior approval of the competent authority. It is contended that after completion of the treatment insisting on a second medical advice to limit the claim is totally uncalled for. The applicant also relies on Office Memorandum dated 01.08.2013 issued by Government of India, Ministry of Health & Family Welfare, wherein, in paragraph (b) it is stated that "cost of implants/stents/grafts is reimbursable in addition to package rates as per CGHS ceiling rates for implants/stents/grafts or as per actual, whichever is lower, in case there is no ceiling rate prescribed under CGHS". It is submitted that since the ICD is not figuring in the rate list of CGHS, the -5- actual cost of ICD is to be reimbursed. The action of the respondents to restrict the cost, purportedly as per the AIIMS rate, is against the CGHS rules. It is contended that the AIIMS being a subsidized Central Government Hospital, as such, its rates cannot be applied to treatment taken in other hospitals. The same is without force of law or CGHS rules. It is further submitted that the ICD implant carried out in EHIRC had been systematically planned and was an executed treatment with due permissions from competent authority. At no stage it was contended that implantation was done on any medical emergency. He thus claimed that there is no subversion of procedure. Hence, the medical reimbursement claim should be processed properly and entire sum claimed may be reimbursed.
6. The respondents in their reply statement at the outset raised a preliminary objection with regard to the territorial jurisdiction of this Tribunal to hear this application. According to them since the cause of action arose in New Delhi, and the applicant is working in Kochi, as per the provisions of Section 25 of the CAT Act, 1985 the applicant has to file application before the Principal Bench of the Tribunal which has jurisdiction of the matter. On the merits, the respondents submit that EHIRC was wrongly taken as a hospital recognized by CGHS for treatment of Central Government employees at the time of granting permission. As per CGHS rules in force at the time of grant of permission and undergoing implantation, Heads of Departments were vested with powers as per O.M dated 27.12.2006 produced at Annexure R-1 issued by Ministry of Health and Family Welfare which reads as follows :-6-
" A serving Government servant covered under CGHS
who is taking treatment in some CGHS
dispensary/Government hospital and desires to obtain treatment in a private hospital recognized under CGHS, the Heads of Department may grant him permission for indoor treatment on the basis of medical prescription issued to the CGHS beneficiary.
The Heads of Department (HoDs) may decide the cases of reimbursement of medical claims in respect of treatment obtained in emergency at private hospital/private nursing home/private clinic, subject to item wise ceiling as per rates prescribed for CGHS beneficiaries without financial limit on the total amount to be reimbursed."
7. It is submitted that in the case at hand the treatment has neither been taken in a hospital recognized under CGHS on the basis of medical prescription issued to the CGHS beneficiary nor was it in an emergency. Further, the delay in payment was attributable to the failure on the part of the applicant for availing treatment without checking empanelment status of the private hospital and taking the necessary medical prescription issued to the beneficiary from CGHS as per rules. In essence, the respondents contend that the amount of reimbursement subsequently made was only by relaxing the rules in favour of the applicant. It was made strictly as per CGHS rates by the Head of the Department based on the CGHS Office Memorandum dated 30.12.2014, produced at Annexure R-2. By this Office Memorandum powers have been now delegated to HoD/HOO to decide on such type of cases requiring 'permission/ex-post facto approval for elective treatment/investigation taken in non empanelled hospital/diagnostic centres subject to reimbursement being restricted to CGHS package rates or actual expenditure whichever is less'. Considering that the advance had already been made in this matter and treatment had been availed with that advance, the ex post facto sanction amount of Rs.557054/- was arrived adding -7- Rs.490000/-, which is as per the ceiling rate specified by CGHS in the O.M dated 22.07.2014 produced at Annexure R-3, towards the cost of CRT-D implant at CGHS rate, to the earlier sanctioned amount of Rs.67054/-. The respondents further contend that the applicant was fully aware of this and had himself so specified in the medical reimbursement claim. Thus the major difference in the sanctioned amount and the claim is the restriction of the cost of Rs.7,35,000/- shown for the ICD to Rs.4,90,000/- only as per CGHS rate, which is more or less the same as the rate specified by the hospital in the estimate. Thus, the reimbursement for the cost of implant was done strictly as per the rules and the medical reimbursement claim has been paid in full as per CGHS rules and nothing more remains to be paid to the applicant. Thus the respondents submit that the 'exorbitant' rate of Rs.7,35,000/- billed by the hospital in excess of the estimate and CGHS rate is the only contentious issue.
8. A rejoinder has been filed by the applicant where he has reiterated the contentions raised in the O.A. He submits that he had no role in processing the application for permission or for sanction of advance for treatment of his daughter. It was the sole duty and responsibility of the respondents to process his applications, as per applicable rules and to intimate deficiency, if any, and get the same complied with before granting the permission/advance. He had never misrepresented that the EHIRC hospital was an empanelled hospital. It is also submitted that the said hospital was later infact empanelled by Government. The hospital is among the most reputed heart hospitals of India. Further, the respondents have not furnished any CGHS circular specifying ceiling rates of implant devices applicable at -8- the time of treatment, ie. from 30.06.2014 to 06.07.2014. In fact there is no Circular/OM on the date of treatment (30.06.2014). Till then, the cost of implants used to be reimbursed to various Government employees on actual basis as per O.M dated 01.08.2013. According to the applicant, the ceiling rates for CRT-D implant have been first prescribed under CGHS only on 22.07.2014 (Annexure R-3), which is clearly after the treatment dates. The respondents are applying it retrospectively without any force of law. As regards the restriction of cost of CRT-D to AIIMS rates, the applicant through an RTI Application has found out that the actual cost of device is payable even as per the AIIMS circular also. A copy of the AIIMS reply to his application has been produced at Annexure A-16.
9. Further, the applicant has relied on the judgment of the Hon'ble Supreme Court in Shiva Kant Jha vs. Union of India 2018 (2) SCC 529 wherein it has been laid down that the right to reimbursement cannot be denied merely because of non inclusion of concerned hospital in Government order. He pleads that the life of a child having a critical heart condition cannot be left to the mercy of the respondents and no parent ever would wish to have any surgical procedures done on his child, unless it is so warranted.
10. I have heard learned counsel for both the parties in detail and have gone through the pleadings and documents placed on record. With regard to territorial jurisdiction of the matter, Rule 6 of the CAT (Procedure) Rules, 1987 reads as follows :
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"6. An Application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction -
(i) the applicant is posted for the time being, or
(ii) the cause of action, wholly or in part, has arisen Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under Section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.
Notwithstanding anything contained in sub -rule (1), a person who has ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application."
Since the applicant is currently posted as Superintending Engineer with CPWD, Kochi, sub-rule (i) of the Rule 6 applies in this case. Hence the contention of the respondents with regard to territorial jurisdiction is rejected.
11. Coming to the merits of the case, it is seen from the records that the applicant had taken prior permissions for treatment. The respondents had also specifically permitted Baby Sneha Goel, daughter of the applicant, to undergo the treatment at EHIRC, New Delhi from time to time. Further, it is seen from records at Annexure A-7/82, Annexure A-7/83, Annexure A-7/84 that before the commencement of the treatment, the applicant had taken a second opinion from three doctors of a Private Super Speciality Hospital who had all given advice for early ICD implantation. In this context I find that the judgment of the Hon'ble Supreme Court in Shiva Kant Jha (supra) is instructive. The Hon'ble Supreme Court while disposing of the petition observed that the right to medical claim cannot be -10- denied merely because the name of the hospital is not included in the Government Order and that the real test must be the factum of treatment. The relevant paragraph of the judgement reads as follows :
"13. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officialsof the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court."
(emphasis added)
12. In this matter it is fully acknowledged by the applicant that the treatment was neither taken in a hospital recognized at the relevant point of time under the CGHS on the basis of medical prescription issued to the CGHS beneficiary, nor was it in an emergency. However, it is quite equally clear that the respondents had allowed the said treatment to take place at the concerned hospital and that the applicant had never misrepresented that the concerned hospital was an empanelled one. In fact, -11- he had been taking treatment for his daughter from the same hospital on a regular basis for many years before, since she was first diagnosed by the disease. He had submitted his application for advance with all required prescriptions etc. In fact, even after this it appears that the respondents have given him the permission for treatment at the very same hospital by relaxing the empanelment condition by treating it a special case on many occasions. It is indeed because of this reason that they sanctioned the amount of Rs.557054/- to him, inspite of the fact that it was not in the so-called empanelled hospital as per the CGHS. In addition to this the restriction of the claim to the CGHS rate also does not seems justified. As has been brought out by the applicant, no circular specifying ceiling rates of implants existed at the specific time of treatment on 06.07.2014. The ceiling rate of CRT-D implant were first prescribed under CGHS only on 22.07.2014. Further, it also appears that the All India Institute of Medical Sciences (AIIMS) has also got a provision for payment of the actual cost of the device, as furnished at Annexure A-16 produced by the applicant along with the rejoinder. It is common knowledge that the hospital where the treatment was undertaken is a very well known heart hospital and there was thus full justification for the applicant to have undergone the treatment for his daughter there, especially as there was a past history of treatment in the very same hospital with permission granted by the authorities itself.
13. In the above facts and circumstances and following the ratio as given in the paragraph 13 of the Shiva Kant Jha (supra) that taking treatment in Speciality Hospital by itself should not deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in -12- the Government Order, I feel that the applicant's MRC deserves proper consideration. There appears no justification in the restriction of the MRC to the amount of Rs.557054/- and not allowing the balance sum of Rs.300990/- to the applicant. The applicant have produced all necessary documents which clearly show that the expenditure has been made by him to the concerned hospital. Thus, I find that in the facts and circumstances as brought out above along with the ratio of the judgment of the Hon'ble Supreme Court in Shiva Kant Jha (supra), the claim for medical reimbursement made by the applicant cannot be restricted and, in fact, there is a compelling case for the respondents to meet the medical expenses claimed by the applicant in full.
14. The respondents are, therefore, directed to consider the MRC of the applicant once again and pass necessary orders in the light of the above within a period of two months from the date of receipt of a copy of this order. The O.A is disposed of accordingly. There shall be no order as to costs.
(Dated this the 26th day of July 2022) K.V.EAPEN ADMINISTRATIVE MEMBER asp -13- List of Annexures in O.A.No.180/00280/2020
1. Annexure A-1 - A copy of the EHIRC Estimate for treatment dated 06.01.2014.
2. Annexure A-2 - A copy of the permissions for treatment 04.07.2013, 09.01.2014, 23.04.2014 and 07.07.2014 in file even No.27(S)/G(59)/2012- EC-II.
3. Annexure A-3 - A copy of the Advance Payment Cheque Vide No.840941 to EHIRC dated 13.06.2014.
4. Annexure A-4 - A copy of the O.M.F.No.2- 1/2012/CGHS/VC/CGHS(P) dated 01.08.2013.
5. Annexure A-5 - A copy of the Medical Reimbursement Claim dated 08.07.2014.
6. Annexure A-6 - A copy of the Letter F.No.27-S/G(59)2012-EC-II (Part-Med-3) No.1171 dated 23.12.2016.
7. Annexure A-7 - A copy of the application dated 10.02.2017.
8. Annexure A-8 - A copy of the order of Hon'ble CAT, Ernakulam in O.A.No.180/00479/2019 dated 05.07.2019.
9. Annexure A-9 - A copy of the Order of CPWD in F.No.27- S/G(59)/2012-EC-II(A) 500 dated 12.09.2019.
10. Annexure A-10 - A copy of the application No.810/SE- Cochin/2019/70 dated 18.09.2019.
11. Annexure A-11 - A copy of the Order F.No.27-S/G(59)/2012-EC- II(A)/643 dated 28.11.2019.
12. Annexure A-12 - A copy of the File No.27-S/G-59/2015-EC-II(A) dated 27.06.2017.
13. Annexure A-13 - A copy of the File No.27-S/G-59/2012-EC-II (A) dated 16.07.2014 along with clear typed true copy.
14. Annexure A-14 - A copy of the Expert Opinion dated 25.05.2016 issued by Dr.Anil Saxena, Director, Cardiac Pacing & Electrophysiology, EHIRC.
15. Annexure A-15 - A copy of the F.No.27-S/G(59)/2012-EC-II(A)/448 dated 16.08.2019.
16. Annexure A-16 - A copy of the AIIMS reply vide letter No.F.30- 25/2020/RTI-Estt.(CNC) dated 05.05.2020 enclosing AIIMS Notification vide No.F.28-1/2013-Estt.(CNC) dated 04.07.2014. -14-
17. Annexure A-17 - A copy of the representation dated 18.09.2019.
18. Annexure R-1 - A copy of the Office Memorandum No.S.12020/4/97-CGHS[P] dated 27th December, 2006.
19. Annexure R-2 - A copy of the Office Memorandum No.1967/2013/DEL/CGHS/SZ/D52/CGHS[P] dated 30 th December, 2014.
20. Annexure R-3 - A copy of the Office Memorandum No.12034/02/2014/Misc./CGHS D.iii dated 22 nd July, 2014.
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