Central Administrative Tribunal - Delhi
Mahi Pal Singh vs Health And Family Welfare on 14 January, 2025
1
O.A. No. 1453/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1453/2024
Reserved on: 24.12.2024
Pronounced on: 14.01.2025
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER (J)
Mahi Pal Singh, Aged 83 years
S/o late Mahendra Singh,
Retired as Additional Secretary,
Ministry of Home Affairs,
R/o P/P-32, Maurya Enclave,
Pitampura, Delhi - 110 034.
...Applicant
Versus
1. The Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan, Maulana Azad Road,
New Delhi - 110 003.
2. The Additional Secretary & Director General,
C.G.H.S., Ministry of Health & Family Welfare,
Room No.157 A, Nirman Bhawan,
Maulana Azad Road, New Delhi-110003.
3. The Director,
C.G.H.S., Ministry of Health & Family Welfare,
CGHS Bhawan, Sector-13,
R.K. Puram, New Delhi- 110 066.
4. The Additional Director, North Zone,
C.G.H.S., North Zone,
C.G.H.S. Wellness Centre Building,
New Rajnder Nagar (Near B.S.E.S. Office),
Delhi - 110 060.
...Respondents
For Applicant: Mr. Manjeet Singh Reen, Advocate.
For Respondents: Mr. Ashok Kumar, Sr. CG Counsel.
ORDER
AS PER AJAY PRATAP SINGH, MEMBER JUDICIAL:
The precise question which arises for determination in the present Original Application is -
"Whether the applicant is entitled for full actual medical reimbursement, treated in emergency in non-empanelled- CGHS hospital?"2 O.A. No. 1453/2024
PRAYER
2. Applicant is retired Additional Secretary, Ministry of Home Affairs, has filed present Original Application invoking the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking direction to respondents to make the balance payment of Rs.2,54,917/- along with 18% interest till realization towards the reimbursement of his medical bills, which was illegal withheld by respondents.
FACTS IN BRIEF
3. Basic facts that would require notice are not in dispute that the applicant retired on 29.11.1999 as Additional Secretary, Ministry of Home Affairs and is a life-member of the Central Government Health Scheme (for brevity hereinafter referred as "CGHS"). Applicant on 24.04.2023 visited Neurology Department of Sri Balaji Action Medial Institute, Paschim Vihar, Delhi, an empanelled hospital under CGHS and the Neurologist advised to get the MRI Brain contrast with M.R. Spectroscopy of Brain test done as an emergency case. The Sri Balaji Action Medical Institute, Paschim Vihar, Delhi also issued emergency certificate dated 24.04.2023 and on 24.04.2023 at Saral Diagnostics, the empanelled lab of CGHS, conducted MRI Brain contrast with MR Spectroscopy of Brain tests and the payment of RS.7200/- was made to the applicant.
4. On 25.04.2023, after examining the report of MRI Brain Spectroscopy by Neurologist Specialist. The applicant was referred to "Oncology" Department of the Action Cancer Hospital, empanelled hospital and further advised to undergo PET/CT Scan whole body. The medical prescription slip dated 25.04.2023 shows - MRI Brain contrast with MR Spectroscopy of Brain with MRS, Neoplastic lesion in left frontal region.
5. On 27.04.2023, applicant's health deteriorated and was admitted to nearest non-CGHS empanelled "Rajiv Gandhi Cancer Institute and Research Centre", Rohini, Delhi - nearest Cancer hospital as an emergency case. On next dy i.e. 28.04.2023, the brain surgery of the applicant as an emergency conducted and discharged on 02.05.2023.
3 O.A. No. 1453/20246. The medical prescriptions dated 24.04.2023, 25.04.2023 issued by Sri Balaji Action Medical Institute, an empanelled hospital under CGHS for MRI, Brain contrast with MR Spectroscopy of Brain
- test advised as emergency case. As evident from emergency certificate dated 24.04.2023 by Neurology, Dr. Sandhya Kocher (Annexure A-2). In emergency, on 27.04.2023 the applicant was admitted to nearest cancer hospital non-empanelled to CGHS namely - Rajiv Gandhi Cancer Institute and Research Centre, Rohini, Delhi. The applicant went under brain surgery as an emergency case on 28.04.2023 at Rajiv Gandhi Cancer Institute and Research Centre, Rohini, Delhi, the nearest hospital issued emergency certificate (Annexure A-4) that the applicant had complaint of severe headache and was diagnosed as Left Frontal Parasagittal Meningioma with mass effect and underwent surgery on 28.04.2023. The applicant was diagnosed as Atypical meningioma, CNS, WHO, Grade-2 Tumor in the brain. The applicant submitted full actual medical claim for Rs.5,53,224/- (Rupees Five lacs fifty three thousand two hundred twenty four only) with emergency certificate and biopsy report for concluding the brain surgery by Rajiv Gandhi Cancer Institute and Research Centre vide Diary MRC No.1712/2023/Del/NZ/D-81/dated 16.08.2023.
7. On 07.12.2023, the respondents have reimbursed part- payment of an amount of Rs.2,98,307 out of full medical claim Rs.5,53,224 without any justifiable reasons.
8. It is the admitted fact that considering unlisted investigation, Rs.7200/- as full amount was reimbursed towards, MRI Brain contrast with MR Spectroscopy of brain tests. The respondents also admitted the fact that the applicant had approached Rajiv Gandhi Cancer Institute during medical emergency and undergone brain surgery and MRC Rs.5,53,224 submitted. The respondents processed MRC part-payment to tune of Rs.2,54,917 and reimbursed as per CGHS rates and guidelines.
9. Dispute in present case is that respondents have not reimbursed balance amount of Rs.2,54,917. The stand of the respondents that applicant did not approach empanelled hospital during medical emergency and he was charged by non-empanelled 4 O.A. No. 1453/2024 hospital as per their own rates. So also as per CGHS rates out of MRC Rs.5,53,224/- an amount of Rs.2,54,917/- already paid and there is no specific rulings to pay CGHS beneficiary full reimbursement without subjected to CGHS rate ceilings. So also Hon'ble Supreme Court in case of Shiva Kant Jha Vs. Union of India, (2018) 16 SCC 187, directed to frame guidelines for settlement of medical claims and settlement of grievances of medical claims of pensioners.
10. Respondents have stated in the reply (paragraphs 4.14 and para 2 of the counter reply) that representation dated 26.12.2023 (Annexure A-7) for reimbursement of balance amount of Rs.2,54,917 in light of law laid down by Hon'ble Supreme Court in case of Shiva Kant Jha (supra), in case of WP(C) 2823 of 2016, Jasbir Singh Vs. Union of India & Ors. vide judgment dated 03.01.2024 in Union of India & Ors. Vs. Shri Joginder Singh, WP(C) 10684/2022 vide judgment dated 10.05.2023 by Hon'ble High Court of Delhi is still pending.
11. The stand of the respondent is that claim of applicant for full reimbursement was placed before the Standing Technical Committee (for short STC) on 09.05.2024 for consideration and the STC has asked from the applicant detailed radiological images and day to day clinical notes of the patient during the hospital stay and sent email but documents not been received from the applicant and case is still pending before STC for reimbursement of balance amount of Rs.2,54,917.
ARGUMENTS ADVANCED
12. Shri Manjeet Singh Reen, learned counsel for applicant argued that -
(i) It is the admitted fact that applicant case was of medical emergency as evident from emergency certificate dated 24.04.2023 by Neurology Department of CGHS empanelled hospital, Sri Balaji Action Medical Institute. So also emergent medical condition applicant had to undergo emergency surgery on 28.04.2023 at non-
empanelled Rajiv Gandhi Cancer institute and Research Centre and 5 O.A. No. 1453/2024 the said hospital has issued emergency certificate dated 10.05.2023.
(ii) Respondents have already admitted and accepted that case of applicant was of medical emergency and on 28.04.2023 underwent emergency surgery as he was diagnosed as Left Frontal Parasagittal Meningioma with mass effect i.e. Grade-2 tumor in the brain. Respondents have already paid Rs.2,98,307 out of MCR Rs.5,53,224 and balance amount Rs.2,54,917 is still pending for reimbursement before STC but due to technical reasons, MRC for balance amount is kept pending for no justifiable reasons.
(iii) Applicant has already submitted all documents for MCR along with Form-MRC (P) as these requisite documents submitted on 16.08.2023. Detailed discharge summary as provided to applicant has been submitted for 28.04.2023 to 02.05.2023 and clinical notes not supplied to him.
13. Shri Ashok Kumar, Senior Central Government Counsel, learned counsel for respondents contended that -
(i) The representation dated 26.12.2023 for reimbursing the balance of Rs.2,54,917 out of total MRC Rs.5,53,224 is still pending before STC on 09.05.2024 for consideration. The applicant was informed via email to send detailed radiological images and day to day clinical notes of the patient during the hospital stay. The STC has not received any document till date and case is pending for next Neuro Surgery STC for consideration. As soon as detailed radiological images and day to day clinical notes during hospital stay is received, balance MRC shall be processed as per law.
(ii) Applicant submitted MRC Rs.5,53,224 and did not approach CGHS empanelled hospital in an emergency situation and there is no rule of law to reimburse full MRC incurred by non-empanelled hospital, without subjected to CGHS rate ceilings.
(iii) Respondents have already paid Rs.2,98,307 as MRC out of Rs.5,53,224 as per CGHS approved rates. So also paid Rs.7200/- for MRI Brain Contrast with MR Spectroscopy brain test as per actual as there is no CGHS/AIIMS rate for the same.
6 O.A. No. 1453/2024(iv) The representation dated 26.12.2023 is pending due to non- furnishing documents by applicant to STC for final decision.
ANALYSIS
14. Tribunal has bestowed anxious considerations on the rival contentions of the learned counsel appearing for the parties and perused the material placed on record as well as considered carefully the precedents relied.
THE ISSUE
15. From the above submissions of the learned counsel for the parties and the material placed on record. The issue for deter- mination is -
"Whether the applicant is entitled for full actual medical reimbursement, treated in medical emergency in non- empanelled-CGHS hospital in more than applicable rules as laid down by Hon'ble Supreme Court in case of Shiva Kant Jha Vs. Union of India (2018) 16 SCC 187)?"
CASE LAW
16. To appreciate the issue arising in the present O.A., Hon'ble Supreme Court, Hon'ble High Court judgments and Orders of the Coordinate Bench of this Tribunal, whose implications was debated, binding and reproduced for ready reference as under:-
(A) Hon'ble Supreme Court in case of Shiva Kant Jha (supra), Their Lordships were seisin with issue related to old-aged retired government servants - Full reimbursement of medical claims under CTGHS on factum of emergency medical treatment in non-
empanelled hospitals? The relevant paragraphs 17 to 20 reads as under:-
"17. 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 7 O.A. No. 1453/2024 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 officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court.
18) This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
19. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only.
20. Further, with regard to the slow and tardy pace of disposal of MRC by the CGHS in case of pensioner beneficiaries and the unnecessary harassment meted out to pensioners who are senior citizens, affecting them mentally, physically and financially, we are of the opinion that all such claims shall be attended by a Secretary level High Powered Committee in the concerned Ministry which shall meet every month for quick disposal of such cases. We, hereby, direct the concerned Ministry to device a Committee for grievance redressal of the retired pensioners consisting of Special Directorate General, Directorate General, 2 (two) Additional Directors and 1 (one) Specialist in the field which shall ensure timely and hassle free disposal of the claims within a period of 7 8 O.A. No. 1453/2024 (seven) days. We further direct the concerned Ministry to take steps to form the Committee as expeditiously as possible. Further, the above exercise would be futile if the delay occasioned at the very initial stage, i.e., after submitting the relevant claim papers to the CMO-I/C, therefore, we are of the opinion that there shall be a timeframe for finalization and disbursement of the claim amounts of pensioners. In this view, we are of the opinion that after submitting the relevant papers for claim by a pensioner, the same shall be reimbursed within a period of 1 (one) month."
[Emphasis supplied] (B) In the case of Surjit Singh Vs. State of Punjab & Ors. (1996) 2 SCC 336, Their Lordships held that right to life is enshrined under Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. For ready reference, paragraphs 11 of the judgment is quoted as under:-
"11. It is otherwise important to bear in mind that self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self- preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it. Attention can usefully be drawn to Verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine:
17 Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.
18 Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.
20 Sharirarakshanopaayaah kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.
*** 22 Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself."
(C) The Article 21 of the Constitution of India imposes an obligation on the State to safeguard the right to save life of every citizen. The aforesaid aspect of the matter has been taken into consideration by the Hon‟ble Apex Court in the judgment rendered in Association of Medical Superspeciality Aspirants & Residents & Ors Vs. Union of India & Ors [(2019) 8 SCC 607], wherein, the 9 O.A. No. 1453/2024 Hon‟ble Apex Court has been pleased to hold that it is the duty of the State to secure health of its citizen as its primary duty. Right to health is integral to right to life and the Government has a constitutional obligation to provide health facilities. For ready reference, paragraph 22, 25 and 26 are quoted as under:-
"22. Article 21 of the Constitution of India imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the Medical Officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right guaranteed under Article 21 of the Constitution. [Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37, paras 9 & 16] Therefore, in a welfare State it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. [Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165 : 1987 SCC (Cri) 329]
25. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities to employ best of talents and tone up its administration to give effective contribution, which is also the duty of the Government.
26. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities [State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 : 1997 SCC (L&S) 294] . The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and the restriction would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212] ."
(D) Hon'ble High Court of Delhi in WP(C) No.10708/2019, Seema Mehta Vs. GNCT of Delhi & Ors., vide judgment dated 26.11.2024, Their Lordships was seisin with similar issue whether petitioner can be denied medical reimbursement on ground that she did not take treatment from any of the hospitals empanelled under the 10 O.A. No. 1453/2024 CGHS Scheme. Relevant paragraphs 8 to 10 reproduced for ready reference as Their Lordships observed as -
"8. The law on this issue, as rightly urged by counsel for the Petitioner is no longer res integra. In Shiva Kant Jha v. Union of India, (2018) 16 SCC 187, the Supreme Court was dealing with an identical contention by the Respondent that the Petitioner did not approach the empanelled hospital during medical emergency and therefore, rules do not permit reimbursement of medical claim. Negating this contention, the Supreme Court observed that the Government employee during his lifetime or after retirement is entitled to get benefit of 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 and very little scope is left to the patient or his relatives to decide the manner in which ailment is to be treated. Right to medical claim cannot be denied merely because name of the hospital is not included in the Government Order as the real test is factum of treatment. Before any medical claim is honoured, authorities are bound to ensure as to whether the claimant had actually taken treatment and the treatment is supported by records duly certified by doctors/hospitals concerned. When an employee is admitted to a hospital in emergency condition, law does not require prior permission where survival of the person is the prime consideration. It is also observed that though it is the claim of the State that the rates in the hospital in question were exorbitant and that the rates charged for such facility and reimbursement can only be at CGHS rates and that too after following the laid down procedure, it also cannot be denied that the Petitioner was taken to hospital under emergency condition for survival of his life, which requirement was above the sanctions and treatment in empanelled hospitals.
9. In this context, I may also allude to a recent judgment of the Division Bench of this Court in Union of India and Another v. Joginder Singh, 2023 SCC OnLine Del 2707, where challenge was laid by the Government to an order passed by Central Administrative Tribunal directing the Government to reimburse the balance amount towards claim for medical reimbursement in regard to treatments taken by the Respondent at a private hospital. Dismissing the writ petition and upholding the order of the learned Tribunal, the Division Bench observed that patient has little scope to decide nature of treatment and merely looks forward to an expert guidance/ treatment for relieving him from immense pain and suffering. A patient in distress is not in a position to go against the specialist medical advice for surgery in emergency. Significantly, the Division Bench noting that the Respondent had taken treatment in an emergency in the said case held that medical claim for treatment undertaken in emergency should not be denied for reimbursement merely because the hospital is not empanelled and the test remains whether claimant had undertaken the treatment in emergency as advised and the same is supported with record, as preservation of human life is of paramount importance and State is under an obligation to ensure timely medical treatment to a person in need thereof. Relevant paragraphs from the judgment are as follows:-
"10. Respondent is a retired pensioner, who was merely employed as a Senior Carpenter with the Central Government. On November 03, 2017, he was initially taken to Mata Chanan Devi Hospital, Janak Puri, Delhi since he fell unconscious and was duly examined. Further, as advised at Mata Chanan Devi Hospital, respondent was taken by his wife for treatment to Rancan Gamma Knife Centre-VIMHANS Hospital, Nehru Nagar, Delhi which 11 O.A. No. 1453/2024 specializes in Neurosurgery and underwent surgery on November 04, 2017.
11. It may be noticed that "Trigeminal Neuralgia" is a chronic pain condition affecting the trigeminal nerve in the face which carries the sensation from the face to the brain. The symptoms of the disease range from mild to severe facial pain often triggered by chewing, speaking or brushing of teeth. The treatment available to alleviate the debilitating pain may be with combination of medication, surgery and complementary therapies. Generally, if a patient does not respond to the medication or condition worsens over a period of time, surgical option may have to be preferred, which includes stereotactic radiation surgery using gamma knife and cyber knife.
12. It is pertinent to note that prescription dated November 03, 2017 issued by Dr. Jayant Misra, MS M Ch. Consultant Neurosurgeon, Rancan Gamma Knife Centre reflects that 'the respondent was advised Gamma Knife Radiosurgery as emergency treatment' apart from other treatment as advised therein. Merely because the respondent was conscious, awake and oriented at time of admission at VIMHANS cannot lead to an inference that his claim of being admitted in emergency, is false. It may further be noticed that an emergency treatment certificate was again issued on October 18, 2018 by Dr. Jayant Misra certifying that the respondent was admitted on November 04, 2017 after OPD consultation on November 03, 2017 on emergency basis for his severe 'Right Sided V1V2 Region Trigeminal Neuralgia.' The certificate also reflects that the respondent was unable to eat/drink/sleep/wipe his face/speak at the time of admission on November 04, 2017. In the facts and circumstances, there existed continued emergent condition for undertaking the treatment by respondent at VIMHANS, as advised at Mata Chanan Devi Hospital. Merely because the respondent was suffering from the 'Right Sided V1V2 Region Trigeminal Neuralgic' for past four months, does not lead to an inference that the medical condition did not require emergent treatment, which was undertaken as a last resort by the respondent as advised.
13. The medical claim for treatment undertaken in emergency should not be denied for reimbursement merely because the hospital is not empanelled. The test remains whether the claimant had actually undertaken the treatment in emergent condition as advised and if the same is supported by record. Preservation of human life is of paramount importance. The State is under an obligation to ensure timely medical treatment to a person in need of such treatment and a negation of the same would be a violation of Article 21 of the Constitution of India. Administrative action should be just on test of fair play and reasonableness. Accordingly, keeping into consideration the constitutional values, the executive instructions need to be applied than rejecting the claim on technical ground of undertaking treatment in a nonempanelled hospital, since the CGHS/State is responsible to ensure proper medical treatment in an emergent condition and further cannot escape the liability, if the treatment undertaken is genuine. Any denial of claim by the authorities in such cases only adds to the misery of the Government servant by further forcing him to resort to Court of law.12 O.A. No. 1453/2024
14. Observations of the Hon'ble Apex Court in Shiva Kant Jha (supra), as reflected in paras 17, 18 & 19 may also be beneficially reproduced:--
"17. 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 officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court.
18. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the Ministry concerned, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of 13 O.A. No. 1453/2024 his life which requirement was above the sanctions and treatment in empanelled hospitals.
19. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non- empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only."
15. It needs to be kept in perspective that patient has a little scope to decide the nature of treatment and merely looks forward to an expert guidance/treatment for relieving him from immense pain and suffering. The patient in distress is not in a position to go against the specialist medical advice for surgery in emergency.
16. Even assuming that in emergency, gamma knife surgery may not render an immediate relief as contended by learned counsel for the petitioners, but it is an established alternative medical treatment for trigeminal neuralgia as per literature. There may be a difference of opinion on the line of treatment to be adopted by the experts but only the treating physician/surgeon appears to be the best placed to adopt the right course of treatment in an emergent situation.
17. Keeping in view the emergency certificate and the treatment papers filed by the respondent, it cannot be said that the treatment was not taken in an emergent condition or the respondent should have deferred the immediate surgery by gamma knife, as advised by the Specialist.
18. For the foregoing reasons, we agree with the reasons and findings of the Tribunal. The writ petition is accordingly dismissed. No order as to costs. Pending application, if any, also stands disposed of."
10. In my view, case of the Petitioner squarely falls in the aforesaid judgments as the medical certificate issued by SGRH clearly evidences that Petitioner was admitted in emergency on account of a road accident after suffering a serious head injury and underwent brain surgery. Therefore, she cannot be denied reimbursement of her claim merely on the ground that she had not undertaken treatment as per the CGHS Scheme and in a hospital not covered/empanelled under the Scheme. This stand of the Respondents to deny the medical reimbursement claim is therefore wholly misconceived and cannot be accepted. Merely because the certificate was issued by the hospital belatedly can also not be a ground to deny the claim of the Petitioner in the absence of any challenge to the genuineness or authenticity of the said document. In fact, it is not even disputed by the Respondents that Petitioner was admitted in emergency in SGRH and/or that she underwent the surgery and follow-up treatment. In view of the aforesaid, this writ petition is allowed with a direction to the Respondents to disburse a sum of Rs.5,85,523/- to the Petitioner within a period of six weeks from the date of receipt of this order. Petitioner is also entitled to interest @ 6% per annum from 14.12.2017 when the claim was rejected by the School till the date of actual payment."
[Emphasis supplied] 14 O.A. No. 1453/2024 II In similar case of Union of India & Anr. Vs. Shri Joginder Singh, WP(C) 10684 of 2022 (DB) vide judgment dated 10.05.2023 [Arising out of Order dated 03.09.2021 in OA No.4664/2018 Joginder Singh vs. UOI & Ors.], directed to reimburse the balance amount, upheld by Hon'ble high Court of Delhi in WP(C) 10684/2022], Their Lordships held as under-
"12. The medical claim for treatment undertaken in emergency should not be denied for reimbursement merely because the hospital is not empanelled. The test remains whether the claimant had actually undertaken the treatment in emergent condition as advised and if the same is supported by record. Preservation of human life is of paramount importance. The State is under an obligation to ensure timely medical treatment to a person in need of such treatment and a negation of the same would be a violation of Article 21 of the Constitution of India. Administrative action should be just on test of fair play and reasonableness. Accordingly, keeping into consideration the constitutional values, the executive instructions need to be applied than rejecting the claim on technical ground of undertaking treatment in a non- empanelled hospital, since the CGHS/State is responsible to ensure proper medical treatment in an emergent condition and further cannot escape the liability, if the treatment undertaken is genuine. Any denial of claim by the authorities in such cases only adds to the misery of the Government servant by further forcing him to resort to Court of law.
Observations of the Hon‟ble Apex Court in Shiva Kant Jha (supra), as reflected in paras 17, 18 & 19 may also be beneficially reproduced:-
"17. It is a settled legal position that the Government employee Neutral Citation Number: 2023:DHC:3138-DB 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 officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court.15 O.A. No. 1453/2024
18. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior Neutral Citation Number:
2023:DHC:3138-DB permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the Ministry concerned, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
19. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only."
13. It needs to be kept in perspective that patient has a little scope to decide the nature of treatment and merely looks forward to an expert guidance/treatment for relieving him from immense pain and suffering. The patient in distress is not in a position to go against the specialist medical advice for surgery in emergency.
Even assuming that in emergency, gamma knife surgery may not render an immediate relief as contended by learned counsel for the petitioners, but it is an established alternative medical treatment for trigeminal neuralgia as per literature. There may be a difference of opinion Neutral Citation Number: 2023:DHC:3138-DB on the line of treatment to be adopted by the experts but only the treating physician/surgeon appears to be the best placed to adopt the right course of treatment in an emergent situation.
Keeping in view the emergency certificate and the treatment papers filed by the respondent, it cannot be said that the treatment was not taken in an emergent condition or the respondent should have deferred the immediate surgery by gamma knife, as advised by the Specialist.
For the foregoing reasons, we agree with the reasons and findings of the Tribunal. The writ petition is accordingly dismissed. No order as to costs. Pending application, if any, also stands disposed of."
[Emphasis supplied] 16 O.A. No. 1453/2024 (E) The coordinate Bench of this Tribunal, seisin with identical issue, whether the applicant is entitled for full medical reimbursement as he was treated in emergency in non-panel hospital passed following orders -
(i) In M.S. Vishwanathan Vs. Union of India [OA No.021/0569/2023 (Hyderabad Bench, Hyderabad) vide Order dated 05.04.2024 disposed of the matter. Relevant paragraph 11 & 12 reads as -
"11. This Tribunal, relying the judgment of the Hon'ble Apex Court in Shiva Kant Jha V. Union of India (supra), has allowed the OA No.38/2024, vide its order dated 23.02.2024, directing the respondents therein to process and settle the full claim of the applicant for reimbursement within a stipulated period of time.
12. Therefore, due to the reasons stated in Paras 7 and 8 above and the law laid down by the Hon'ble Apex Court, the rejection letter dated 12.01.2022, issued by the 3rd respondents, is quashed and set aside. The respondents are directed to reimburse the full medial claim to the applicant within four (04) weeks from the date of receipt of a copy of this order. The OA is allowed accordingly, No order as to costs."
[Emphasis supplied]
(ii) In Chander Mohan Vs. Government of NCT of Delhi - OA no.414/2023 (PB New Delhi) vide Order dated 22.12.2023 has decided the similar issue, relevant paragraphs 14 and 15 for ready reference reads as -
"14. In the facts and circumstances of the case, I am of the considered view that there is no ambiguity that the applicant got admitted to the private/non-empanelled hospital in an emergency condition, as has been certified by the registered Medical Practitioner of the concerned hospital. The sole reason for rejection of the applicant's claim is that the CGHS rates falls short of the actual amount spent on his treatment, which cannot be a matter of constraint for full reimbursement, as has already been established from the abovementioned judgments as well as the citations mentioned by the learned counsel for the applicant.
15. I, therefore, allow this OA and set aside the impugned order dated 21.10.2022. The respondents are directed to reimburse the balance amount of Rs.1,68,940/- incurred by the applicant on his treatment within two months from the ate of receipt of a certified copy of this order. I am, however, not inclined to grant any interest on the same. No costs."
[Emphasis supplied] 17 O.A. No. 1453/2024
(iii) In case of B. Prasada Rao Vs. the Additional Director, CGHS & Anr., [OA No.21/153/2019 (CAT Hyderabad) vide Order dated 25.06.2016 also dealt with the similar issue. Relevant paragraph 7 (I to IV) for ready reference reads as -
"7 (I) It is not in dispute that the spouse of the applicant has been admitted in Care Hospital on emergency basis. It is also a fact that she has been treated and the total amount billed by the Hospital is Rs.3,04,867/-, out of which, the CGHS authorities have disallowed an amount of Rs.1,38,267/-. The applicant claims that as per the Hon'ble Supreme Court judgment referred and the relief granted in OA NO. 1104/2012 and 796/2015, he is entitled for full medical reimbursement.
(II) Self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution. It needs no reiteration. Nevertheless, being on the subject of medical reimbursement, remarks made by the Hon'ble Supreme Court are profound and thought provoking which is reproduced hereunder, for us all to ponder as to the approach one has to adopt on an issue where the life of an individual is at stake. In State of Karnataka v. R. Vivekananda Swamy, (2008) 5 SCC 328, the Apex Court has held as under:-
"20. Law operating in this field, as is propounded by courts from time to time and relevant for our purpose, may now be taken note of.
21. In Surjit Singh v. State of Punjab, this Court in a case where the appellant therein while in England fell ill and being an emergency case was admitted in Dudley Road Hospital, Birmingham. After proper medical diagnosis he was suggested treatment at a named alternate place. He was admitted and undergone bypass surgery in Humana Hospital, Wellington, London. He claimed reimbursement for the amount spent by him. In the peculiar facts of that case it was held:
"11. It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self- preservation has a species in the right of self- defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it. Attention can usefully be drawn to Verses 17, 18, 20 and 22 in Chapter 16 of Garuda Purana (a dialogue suggested between the Divine and Garuda, the bird): in the words of the Divine:
17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.
* * *
18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who 18 O.A. No. 1453/2024 protects himself by all efforts, will see many auspicious occasions in life.
* * *
20. Sharirarakshanopaayaah kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.
* * *
22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself."
* * * The Hon'ble Supreme Court in the State of Punjab & Ors. v. Mohinder Singh Chawla and Ors., (1997) 2 SCC 83, has observed that right to health is an integral part of the right to life and therefore, if a Government employee has undergone specialized treatment, the same must be reimbursed by the State. In a judgment in Govt. of NCT of Delhi & Anr. v. Prem Prakash (Dr.) & Ors., 153 (2008) DLT 1 (DB), the Hon'ble Delhi High Court, has observed as under:
"13. After reviewing several judgments of this Court on the subject and the Supreme Court and as noticed in para 13 of the judgment, it was held that while balancing the interest of the Government which does not have unlimited funds on the one hand and, therefore, has to limit his financial resources and paying capacity as also its duty towards its employee to reimburse medical expenses, a balance could be struck by directing the respondent-Government to reimburse medical expenditure in full when the following conditions are met:
(a) The private hospital where the treatment is taken by a Government employee is on the approved list of the Government.
(b) The illness for which the treatment is required is of emergent nature which needs immediate attention and either the Government hospitals have no facilities for such treatment or it is not possible to get treatment at Government hospital and it may take unduly long for the patient to get treatment at Government hospital.
(c) The concerned employee/patient takes permission to get treatment from the Government hospital, which is granted and/or referred by the Government hospital to such a private hospital for treatment.
14. Following the aforesaid judgment of the Coordinate Division Bench, we are of the view that in the cases before us, the aforesaid three conditions are duly met. These were serious and emergent cases of cardiac ailment. The treatment was with the permission of the competent authorities and at the empanelled hospitals. Therefore, the respondents would be entitled to full reimbursement. We may mention that it would be open for the respondents to delete from the bills, 19 O.A. No. 1453/2024 charges for items like telephone, TV, cost of toiletries, etc., which do not form part of the package rates and if the same have been billed."
Further, as recently as on 28.04.2010, Hon'ble Delhi High Court provided relief in an identical case, based on the aforesaid judgment in WP (C) No.9229/2009, decided on April 28, 2010. In the present case, there has been a clause in the agreement itself that when patients are admitted on emergency basis in empanelled hospital, the later should inform the CGHS authorities. Hence, by implication, the condition of permission/ intimation is satisfied.
In view of the above observations made by the Hon'ble Supreme Court, Hon'ble Delhi High court, the applicant is entitled for total medical reimbursement.
(III) Medical facility is a welfare measure provided by the respondents. The intention of the respondents is to ensure that the health of the employees and the pensioners are taken care of. In the present 7 OA 021/153/2019 case, treatment was given and the claim made by the applicant is genuine one. Any excess amount charged by the empanelled hospital over and above the CGHS rates is unfair. The respondents, as per the Agreement, can de-recognize the hospital for such unethical practices. In fact, they can serve a notice and order refund of the excess amount collected from the CGHS beneficiary. As per the terms of the agreement, the hospital authorities are supposed to inform the respondents about the admission of the spouse of the applicant. As seen from the record, there is no such intimation. Therefore, the entire fault lies with the hospital against whom, the respondents can proceed claiming for the amount billed more than what is supposed to be. Besides, as per the observations made by the Hon'ble Supreme Court, the case deserves consideration.
(IV) For the aforesaid reasons, the OA is allowed. The respondents are directed to release the balance amount to the applicant, within a period of three months from the date of receipt of this order. There shall be no order as to costs."
[Emphasis supplied]
17. Now coming to the facts of the present case in hand that the applicant an octogenarian, retired Central government servant, was suffering from immense pain due to severe headache from 11.04.2023 onwards. As evident from the medical prescription papers dated 24.04.2023 (Annexure A-2). The applicant visited on 24.04.2023 CGHS empanelled hospital namely Sri Balaji Action Medical Institute (for short SBAMI), Paschim Vihar, Delhi. The Neurology Department of SBAMI, issued emergency certificate dated 24.04.2023 and advised MRI Brain contrast with MR Spectroscopy of Brain test immediately.
20 O.A. No. 1453/202418. The Neurologist at SBAMI, Paschim Vihar, Delhi after examining the report of MRI Brain contrast with MR Spectroscopy of Brain, on same day i.e. 24.04.2023, referred the applicant to Oncology Department of Action Cancer Hospital, New Delhi - another CGHS empanelled hospital. Dr. J.B. Sharma - Medical Oncologist on 25.04.2023, advised applicant to undergo PET/CT Scan whole body. The medical prescription dated 25.04.2023 (Annexure A-3) reported - neoplastic lesion in left frontal region.
19. Applicant was suffering from severe headache and taken treatment from 24.04.2023 in two CGHS empanelled hospitals. Applicant was suffering from unbearable severe headache and his health deteriorated. In medical emergency he was admitted on 27.04.2023 in Rajiv Gandhi Cancer Institute and Research Centre, Rohini, Delhi, nearest Cancer Hospital. The applicant was operated for left frontal parasagittal meningioma. Applicant has filed emergency certificate stating that he presented with complaint of severe headache and underwent emergency surgery on 28.04.2023. So also annexed discharge summary dated 27.04.2023 to 02.05.2023.
20. Applicant submitted full actual medical reimbursement claim of Rs.5,53,224 along with emergency certificate, biopsy report for brain surgery with diary MRC dated 16.08.2023. The respondents on 07.12.2023 reimbursed part-payment amounting to Rs.2,98,307 out of MCR Rs.5,53,224, without any opportunity and justifiable reason given.
21. The medical prescription dated 24.04.2023, and emergency certificate dated 24.04.2023 by CGHS empanelled SBAMI, Paschim Vihar, New Delhi and on 25.04.2023 referred to Action Cancer Hospital, New Delhi another CGHS empanelled hospital. The medical prescriptions show that applicant was suffering from severe headache due to meningiomas, fast growing brain tumors on left frontal parasagittal meningioma with mass effect causing serious health problems. The applicant underwent emergency brain surgery on 28.04.20223 in non-empanelled hospital.
21 O.A. No. 1453/202422. Respondents have already paid part payment and balance amount Rs.2,54,917/- is still pending for consideration before STC since 09.05.2024 and it is the admitted fact, not denied by the respondents that applicant was admitted in medial emergency due to severe headache and underwent brain surgery for brain tumors on 28.04.2023. The respondents are contesting the claim at the same time as non-empanelled hospital charged as per their own rates not as per CGHS/AIIMS rates. So also at the same time respondents taken stand that medical reimbursement claim is under consideration before S.T.C. since 09.05.2024 as applicant not submitted radiological images and day to day clinical notes of patient, whereas with rejoinder applicant categorically stated that as per Form MRC (P) all required documents have been submitted on 16.08.2023. Respondents cannot approbate and reprobate.
23. Emergency Certificates, operation notes, discharge summary of Rajiv Gandhi Cancer Institute and Research Centre are clear as noon day that applicant underwent brain surgery for brain tumor, medical emergency. Respondents cannot approbate and reprobate at the same time and based on technicalities, the respondents not released balance amount of Rs.2,54,917/-. In view of the law laid down by Hon'ble Supreme Court in case of Shiva Kant Jha (supra), Hon'ble High Court of Delhi in similar case of Union of India & Anr. Vs. Shri Joginer Singh (supra), Seema Mehta Vs. GNCTD (supra). So also Coordinate Bench in case of M.S. Vishwanathan & Ors. Vs. UOI (supra), Chander Mohan Vs. GNCTD (supra) and B. Prasada Rao Vs. Additional Director, CGHS & Anr. (supra). The issue involved in present case is no more res integra and supported by aforesaid pronouncements. The respondents are under an obligation to ensure timely treatment to person in need of such treatment and non-payment of full reimbursement is a violation of Article 21 of the Constitution of India. Respondents have admitted and not denied that treatment taken was in medical emergency and STC is seized with the matter at the same time contesting and not paid balance amount as applicant taken medical treatment in emergency from non-empanelled hospital. The respondents are responsible to ensure proper medical treatment in emergency, in genuine cases.
22 O.A. No. 1453/2024CONCLUSION
24. What comes out loud and clear that the applicant taken treatment for Left Frontal Parasagittal Meningioma mass effect- tumor in the brain and underwent emergency surgery on 28.04.2023 for relieving him from immense pain and suffering. This Tribunal is of the view that CGHS is responsible for taking care of health care needs and liable to pay balance amount to the applicant.
25. This Tribunal has analyzed in detail the issue in light of aforesaid analysis. The issue is decided in favour of the applicant and against the respondents.
26. The respondents are directed to verify and release the balance amount of Rs.2,54,917/- to the applicant, within a period of four months from the production/receipt of certified copy of this order.
27. Resultantly, Original Application is allowed and accordingly disposed off.
28. There shall be no orders as to costs.
29. As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stands disposed off.
(Ajay Pratap Singh) Member (J) /na/