Gujarat High Court
The Comptroller And Auditor General Of ... vs Bipinchandra Mulchand Sheth on 11 February, 2021
Equivalent citations: AIRONLINE 2021 GUJ 809
Author: Sonia Gokani
Bench: Sonia Gokani, Sangeeta K. Vishen
C/SCA/5855/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5855 of 2020
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THE COMPTROLLER AND AUDITOR GENERAL OF INDIA
Versus
BIPINCHANDRA MULCHAND SHETH
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Appearance:
MR SHUSHIL R SHUKLA(5603) for the Petitioner(s) No. 1,2,3
MR CK DIVAKARAN(3052) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 11/02/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a petition preferred questioning the order dated 11.09.2019 passed in Original Application No.356 of 2018 by the Central Administrative Tribunal ('the CAT' for short), Ahmedabad Bench allowing medical bills of the respondent in the following factual background. 1.1 The respondent was superannuated on 30.11.2016 from the post of Senior Audit Officer from the office of petitioner No.2 and he continued to stay at Rajkot with his wife. The wife of the respondent was detected with advance stage of cancer of anal canal. She was required to undergo the medical treatment. The respondent Page 1 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER being the beneficiary under the Civil Services (Medical Attendance) Rules, 1944 ('the Rules' for short) was entitled to the reimbursement of the medical bills. His wife was referred to Aaruni Hospital Rajkot by Authorised Medical Attendant (the 'AMA' for short) for emergency treatment and for her anal canal cancer, she underwent the ChemoTherapy Radiation and during the treatment she passed away on 09.07.2017 after being in Coma for nearly 45 days in the hospital itself. 1.2 The case of the respondent before the CAT was that there was no referral hospital in Rajkot recognised for beneficiaries of the Rules for cancer treatment and therefore, he applied for permission of petitioner No.3 for taking treatment from private hospital and also for reimbursement of expenses incurred for Chemo Therapy Radiation of his wife at Aaruni hospital. The application was allowed partly on the ground that it is a private hospital and therefore, the initial 10 days of treatment can be reimbursed. Page 2 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER Accordingly, the amount reimbursed was Rs.64,280/ (Rupees Sixty Four Thousand Two Hundred Eighty Only) and the balance amount of Rs.1,46,220/ (Rupees One Lakh Forty Six Thousand Two Hundred Twenty Only) remained unpaid. 1.3 There were five medical bills for treatment taken at Giriraj Multispecialty Hospital which were of the sum of Rs.59,077/ (Rupees Fifty Nine Thousand Seventy Seven Only). The amount of Rs.52,157/(Rupees Fifty Two Thousand One Hundred Fifty Seven Only) had been paid against these bills. The grievance on the part of the respondent is that the amount of Rs.1,53,140/ (Rupees One Lakh Fifty Three Thousand One Hundred Forty Only) has remained unpaid.
1.4 The departmental appeal also was not entertained and therefore, the respondent moved CAT, Ahmedabad Bench and sought the intervention of the Tribunal in seeking directions against the present petitioners for grant of medical claims Page 3 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER and also sought payment of the sum of Rs.1,53,140/ (Rupees One Lakh Fifty Three Thousand One Hundred Forty Only) made by the respondent with 12% interest from the date of maturity of claim.
2. The stand on the part of the petitioner before the Tribunal was that it is incorrect that there was no cancer hospital at Rajkot as the Rajkot Cancer Society & Allied Hospital is a recognised hospital for cancer treatment. His appeal was considered on humanitarian grounds. Out of his claim of Rs.59,077/(Rupees Fifty Nine Thousand Seventy Seven Only), Rs.52,157/ (Rupees Fifty Two Thousand One Hundred Fifty Seven Only) had been paid. It was again the stand of the petitioner that cancer treatment was available in the recognised hospital, the permission for taking the cancer treatment was not granted to the respondent. Rule 3 of the Rules permitted only first four consultations/visit within the period of 10 days from the commencement of Page 4 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER treatment in respect of one single and continuous spell of illness in respect of a particular disease and therefore, the amount has been restricted to Rs.64,380/ (Rupees Sixty Four Thousand Three Hundred Eighty Only) for the six bills. It appears that the stand of the respondent was that the patient was referred to the multi specialty hospital by the AMA on emergency and the treatment of Radiation Therapy was administered continuously for 28 days on advice of expert Oncologist. This was reimbursed under Rule 6(1),(2) & 3 of the Government of India decisions.
2.1 After considering at length the rival contentions, the Tribunal held in favour of the respondent in following manner:
"11. It is 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 commonsence, 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 Page 5 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER the ailment should be treated. Specialty Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patient 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 supposed by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.
12. As per Para 4 of Government of India, Health and Family Welfare OM No.110011/31/2007-CGHS-DII dated 2nd September, "beneficiaries who are cancer patient may be permitted to take treatment in any multi-specialty general purpose hospital that provides treatment to cancer patients subject to the condition that the reimbursement shall be limited to the prevalent CGHS rates or actual expenditure, whichever may be lower. Learned counsel for applicant has urged that applicant would have no grievance if his Medical Reimbursement Claim is paid as per CGHS applicable rates in respect of the treatment taken at the Aaruni Hospital, Rajkot for Rs.2,10,500/- and I think there is merit in his submissions.
13. Accordingly, it is directed that respondent-department shall look afresh into the claim made vide Bill Annexure A/1 of applicant for reimbursement of expenses stated to be incurred to the tune of Rs.2,10,500/- for treatment of his wife at Aaruni Hospital and pay after deducting amount of Rs.63,380/- (Sixty Four Thousand Three Hundred Eighty Only) from this calculated amount according to CGHS approved rates. The balance of said amount shall be paid to the applicant within eight weeks' from the date of receipt of copy of this order.Page 6 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER
Applicant shall also be paid interest @ 6% per annum on his balance payable amount from date of this O.A. Which is 05.07.2018, to till the amount is actually paid. No order as to costs."
3. Aggrieved by these findings and directions, the petitioners are before this Court urging earnestly that Government of India's decision No.3 under Rule 6 of the Rules provides that the claim for reimbursement for medical treatment taken from the Hospitals/Nursing Homes, private or maintained by AMAs are not recognised under the Rules and therefore, it is inadmissible.
4. In the instant case also, it was the reference of AMA which had led to the respondent taking the treatment of his wife from the private hospital as according to the petitioner, AMA ought to have referred the patient to the Government hospital recognised under the Rules. The AMA is Dr.Vipul Patel and the wife of the respondent had taken treatment at Aaruni Hospital Pvt.Ltd., Rajkot where Dr.Vipul Patel is the Director who himself is an Oncologist and on the panel of the petitioner. Therefore, it is Page 7 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER impermissible in light of Rule 6 of the Rules to allow remaining amount of Rs.1,46,220/ (Rupees One Lakh Forty Six Thousand Two Hundred Twenty Only). It is further the stand of the petitioner that Rule 6 of the Rules as per the Government of India's decision No.7, the Civil Services (Medical Attendance) Rules, beneficiaries who have subscribed to medical insurance policy in relation to their availing the facilities under the Rules, may be allowed to claim the reimbursement from both the sources subject to the condition that reimbursement from such sources should not exceed the total expenditure incurred by the beneficiary of the treatment. Firstly, they should be seeking it from the insurance company and subsequently, the residual claim can be raised from the department. Therefore, it is urged by the petitioner that there is no clarity as to whether there is overlapping of demand on the part of the respondent.
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5. It is further the say of the petitioner that the reimbursement from the source of the department would be restricted to the amount admissible as per the approved package rate subject to the condition that total amount reimbursed by the insurance company and the department shall not exceed the total expenditure incurred by the beneficiary. The emphasis is also on the incorrect statement on oath of there being no Cancer Hospital at Rajkot, accordingly, the present petition is preferred with the following prayers:
"8.
(a) YOUR LORDHIPS may be pleased to admit and allow the present petition;
(b) YOUR LORDHIPS may be pleased to quash and set aside the Order dated 11.09.2019, in Original Application No.356 of 2018, passed by the Hon'ble Central Administrative Tribunal, Ahmedabad Bench, At Ahmedabad;
(c) YOUR LORDHIPS may be pleased to stay the execution, operation and implementation of the Order dated 11.09.2019, passed in Original Application No.356 of 2018, passed by the Hon'ble Central Administrative Tribunal, Ahmedabad Bench, At Ahmedabad;Page 9 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER
(d) YOUR LORDHIPS may be pleased to grant ex-parte ad-interim relief in terms of Prayer 8(C);
(E) Any other and further relief as the nature and the circumstances of the case that may be required in the interest of justice."
6. Affidavitinreply is filed for and on behalf of the respondent wherein he has contended fervently that there is no compliance of the directions of the Tribunal although the order is passed on 11.09.2019 and repeated requests had been made by the respondent for all these months. A Contempt Petition is preferred being No.5 of 2020 before the CAT, Ahmedabad Bench, where the Court has issued the notice on 28.02.2020 and made it returnable on 08.04.2020. He has also emphasised on payment of Rs.64,380/ (Rupees Sixty Four Thousand Three Hundred Eighty Only) for the treatment taken by the respondent from the Aaruni Hospital, Rajkot at C.G.H.S. rates. 6.1 According to the respondent, the Departmental Appeal dated 21.06.2017 had been decided after seven months on 21.12.2017 where his claim has not been entertained.
Page 10 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER 6.2 He has also further emphasised as to how in case of his wife, a total 30 days of treatment was taken in OPD emergency referred by the AMA to Oncologist specialist to save the life of respondent's wife. He has also further contended that the OM dated 02.09.2008 mentions that after careful examination of the representation, it has been decided that the approval of the competent authority that CGHS/CS(MA) Rules, 1944 beneficiaries, who are cancer patients (both old and new) may be permitted to take treatment in any multi specialty General Hospital which provides for treatment to cancer patients, subject to the condition that reimbursement will be limited to actual expenditure or the rates notified in 2000, whichever is lower. 6.3 It was AMA on emergency basis had referred the patient to a private multi specialty General Hospital which is admissible for reimbursement of expenditure incurred on treatment of cancer. He relied on the decision of the Apex Court rendered Page 11 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER in case of Shivakant Jha v/s. Union of India, reported in (2018) 16 SCC 187 urging that the real test is the factum of treatment. The authorities are bound to ensure that whether in fact, the claimant had undergone the treatment and the claim is substantiated by the medical case papers. He has also relied on the decision of the Apex Court rendered in case of Devender Singh Shergil v/s. State of Punjab & Ors, reported in (1998) 8 SCC 552 where the emergency treatment is required to be taken abroad and that was needed to be reimbursed to the extent of the expenditure which may have been involved for his treatment if carried out in any of the recognised institutions/hospitals in India.
7. It is emphasised by the respondent that since the patient was in Coma for 45 days in the hospital itself and the reference was by the AMA on emergency basis because of the advancement of cancer, the permission of HOD which was sought for taking treatment at private hospital, was not Page 12 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER responded in such a critical situation. It is further his contention that the AMADr.Vipul Patel refused the patient to Aaruni Hospital, Rajkot from 28.09.2016 and treatment for advance cancer was taken from the doctor's letter dated 29.09.2016. She has taken chemotherapy treatment at Giriraj Hospital and was advised for local Radiotherapy which was given at Aaruni multi specialty hospital and she was then kept simultaneously as indoor patient. It is incidental that Dr.Vipul Patel is the Director of Aaruni Hospital.
8. It is urged that the medical reimbursement from the insurance company is already done and patient had mediclaim of Rs.1,00,000/(Rupees One Lakh Only) which has been reimbursed by the United India Assurance Company to a ceiling limit of Rs.1,00,000/(Rupees One Lakh Only). This was done for the treatment taken before 28.09.2016 and amount is also reflected in the passbook of the account of the present Page 13 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER petitioner. Therefore, there is no question of any concealment.
9. Affidavitinrejoinder for and on behalf of the petitioner has also been filed by the Deputy Accountant General by reiterating what had been stated earlier.
10. We have heard extensively the learned advocate, Mr.Sushil Shukla appearing for the petitioners who along the line of the petition has argued this matter. He has also urged that the main impediment is the AMA himself has been referred the patient to private hospital where he is the Director. He does not dispute that nothing has been done against AMA till date. He on a query raised by the Court has taken the instructions that the AMA continues to be in the panel, the petitioner does not dispute the super specialisation of AMA in the Branch of Oncology. Because of non clearity of overlapping of the claim, we had on 04.02.2021 passed the following order:
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"1. We notice, from the submissions made by both the sides, that the amount, which remains to be paid, is of Rs.1.46/- lakh, I.e. for the treatment taken at Aaruni Hospital Pvt. Ltd, Rajkot, from 28.09.2016 to 19.10.2016. It also appears that a sum of Rs.1/- (One) lakh was assured by the United India Insurance Company Ltd. in the year 2016 and also separately in the year 2017.
2. According to the learned Advocate, Mr. Shukla, the bills, since, have not been presented before the Appellate Authority, they had difficulty in finalizing the claim, as there should be no overlapping of the claim.
3. According to the learned Advocate, Mr. Divakaran, for the respondent, there is no overlapping of the claim. He also submitted that the amount of Rs.64,320/- has already been received and he CAN STATE this aspect on affidavit so also that there is no overlapping of the claim.
4. He, therefore, in no unclear terms, SHALL STATE on affidavit that at no stage, while seeking reimbursement, any authority has awarded any amount of the bills of Aaruni Hospital Pvt. Ltd., Rajkot, to the respondent.
4.1 Let learned Advocate, Mr. Divkaran, file such an affidavit of the respondent within ONE WEEK, with a copy to the other side, at least, 24 hours in ADVANCE.
5. S.O. To 11TH FEBRUARY, 2021."
11. Additional affidavit has been filed by the respondent pursuant to our direction, stating therein that he had claimed medical bills for Rs.2,10,500/ (Rupees Two Lakh Ten Thousand Five Page 15 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER Hundred Only) for cancer treatment of his late wife at Aaruni Hospital Pvt.Ltd., Rajkot for the period from 28.09.2016 to 19.10.2016. He has been paid Rs.64,380/ (Rupees Sixty Four Thousand Three Hundred Eighty Only) and the balance amount of Rs.1,46,120/(Rupees One Lakh Forty Six Thousand One Hundred Twenty Only) is still payable. He also clarifies that he has claimed the medical bills and received payments from United Insurance Company Limited, Rajkot for treatment of his wife against the Mediclaim Policy of sum assured Rs.1,00,000/(Rupees One Lakh Only) and he has not claimed or received any amount in respect of the said claim of Aaruni Hospital Private Limited at any stage while seeking reimbursement and no authority has awarded any amount towards the bills that he had claimed.
12. Learned advocate, Mr.C.K.Divakaran has also extensively argued this matter reiterating what has been incorporated by the CAT in its order and Page 16 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER has given in affidavitinreply.
13. On hearing both the sides extensively, at the outset, we need to refer to the decision of the Apex Court rendered in case of Surya Dev Rai vs. Ram Chander Rai & Ors., reported in (2003) 6 SCC 675, where the Court has examined elaborately as to when exercise of the powers under Articles 226 and 227 of the Constitution of India are needed. The Apex Court concluded that powers under Article 226 of the Constitution of India are to be exercised to correct gross errors in jurisdiction & the supervisory jurisdiction under Article 227 is exercised for keeping the subordinate courts within the bounds of their jurisdiction.
14. In this petition, challenge is made to the order of the CAT, which has made a progressive interpretation of the Rules which are meant for the benefits of the employees, exemployees and their family members and it has also sensitively taken into consideration the critical illness of Page 17 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER the wife of the respondent who suffered from the cancer of anal canal and unfortunately died after being in Coma for more then 45 days in the hospital. We need to note that at no stage any doubt is raised with regard to the treatment having been given to the wife of the respondent, on the part of the petitioner. It is also to be noted that the only doubt, which had been raised is of the overlapping of bill and that also has been cleared by way of the affidavit of the respondent filed on 08.02.2021 before this Court. Before adverting to the fact further, we also need to make a note of the fact that the sole objection is of reference by the AMA to the hospital where he is the one of the Director. The AMA as authorised by the petitioner is possessing the super specialisation being an Oncologist which based at Rajkot. Of course, there is one hospital Rajkot Cancer Society and Allied Hospital, the Health and Family Welfare, Government of Gujarat vide order dated 24.08.2015 has come out with its circular where it Page 18 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER recognised across Gujarat certain hospitals in Rajkot for different procedures. The office of Accountant General (A & E), Gujarat, Rajkot vide its circular dated 07.06.2016 has quoted this and recognised those hospitals for medical reimbursement as well as for commuted leaves, if the treatments are availed from any of these Government recognised hospitals.
15. We could notice that the entire emphasis on the part of the petitioner is for non reimbursement of the amount of Rs.1,46,120/ (Rupees One Lakh Forty Six Thousand One Hundred Twenty Only) essentially on the objection that the claim for reimbursement for treatment at consulting room taken from the AMA is admissible;however, the claim for reimbursement for medical treatment taken from the Hospitals/Nursing Homes, private or maintained by AMAs could not be recognised by the Rules. The patient visited the hospital on 29.06.2016 and another objection is that the certificate in the Page 19 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER form of the referral is issued on 29.09.2016. Dr.Vipul Patel is the Director of the Aaruni Hospital Pvt.Ltd. and himself is the AMA and Oncologist. Since the prolonged treatment of the cancer which the wife of the respondent has undergone, calculating the ten days of the treatment from the total bill of Rs.2,10,500/ (Rupees Two Lakh Ten Thousand Five Hundred Only) of the Aaruni Hospital Pvt.Ltd., Rajkot, has been given Rs.64,380/ (Rupees Sixt Four Thousand Three Hundred Eighty Only), interpreting para 4 of the Government of India, Health and Family OM No.11011/31/2007CGHSD II dated 02nd September has been taken into consideration by the Tribunal which states that beneficiaries who are cancer patients may be permitted to take treatment in any multispecialty general purpose hospital that provides the treatment to cancer patients subject to the condition that the reimbursement shall be limited to the prevalent CGHS rates or actual expenditure, whichever may be lower. The respondent also had not objected to this Page 20 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER reimbursement claimed being paid as per the CGHS applicable rates. Nothing is on record to indicate that the medical reimbursement claim made by the respondent of the treatment taken at Aaruni Hospital Pvt.Ltd., Rajkot, is not in consonance with the CGHS applicable rates.
16. We acknowledge the fact that approach adopted & interpretation made by the Tribunal is quite pragmatic and also reflects requisite sensitivity on the part of the presiding officers of the Tribunal particularly bearing in mind the long drawn medical treatment which the wife of the respondent had undergone. The respondent as an exemployee, he and his wife were the only family members and therefore, in such critical condition the doctor would be the only Messiah and the AMA being a super specialist himself, his advice would be naturally followed by the patient totally. In a time like that, the person would not be in a mental frame of mind to also know the knitty gritty of the Rules more particularly, the Page 21 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER reference having come from the AMA himself.
17. We could notice from the submissions of both the sides that the only other option available for the treatment which had been accorded of the wife of the respondent was the Rajkot Cancer Society & Allied Hospital. The total number of the patient because of the availability of comparatively free treatment and the number of cancer patients if are taken into consideration the decision of the AMA to direct the reference to the Aaruni Hospital Pvt.Ltd., Rajkot for the cancer treatment also has been rightly not questioned by the Tribunal. Having not raised any doubts with regard to the prolong and protracted treatment of the cancer as also with regard to the amount claim being in consonance with the CGHS rates, we see no reason to interfere with the judgment and order.
18. Resultantly, this petitions fails and dismissed. The order passed by the CAT is confirmed. Let the balance amount of Page 22 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021 C/SCA/5855/2020 ORDER Rs.1,46,220/ (Rupees One Lakh Forty Six Thousand Two Hundred Twenty Only) of medical reimbursement be given to the respondent. The said exercise to be completed within the period of six weeks from the date of receipt of a copy of this order.
Sd/-
(MS SONIA GOKANI, J) Sd/-
(MS SANGEETA K. VISHEN,J) M.M.MIRZA Page 23 of 23 Downloaded on : Wed Sep 01 14:44:13 IST 2021