Punjab-Haryana High Court
Dilbag Rai, Deputy District Attorney vs State Of Haryana And Others on 15 December, 2000
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
ORDER Bakhshish Kaur, J.
1. This judgment will dispose of Civil Writ Petition No. 18333 of 1995 as well.
2. The petitioner prays for quashing of the orders dated 24.2.1999 and 9.3.1999 Annexure P-2 and also for issuance of a direction to the respondents to sanction and reimburse medical bill amounting to Rs. 1,49.470.90 for transplanting kidney and follow-up treatment. He also claimed interest on the payment which has been declined to him.
3. The factual matrix of the case is that the petitioner is working as Deputy District Attorney in the Excise and Taxation Department. In January, 1993, he got kidney transplantation in Bombay. The medical bills were submitted for sanction and reimbursement but the same was not sanctioned. Thus, he filed Civil Writ Petition No. 2637 of 1995, which was disposed of by this Court with a direction to the respondents to dispose of the claim by passing a speaking order. The respondents rejected his claim, therefore, he had filed another Civil Writ Petition No. 18333 of 1995.
4. It is averred that before filing the Civil Writ Petition No. 263 7 of 1995, the respondents had sanctioned and reimbursed partial claim for a period of 26.11.1991 to (sic) 15,500/- as outdoor patient vide or der dated March 23, 1995 and the rest of the claim was rejected. The petitioner states that he has got treatment from the following hospitals at Delhi and Bombay for the period indicated therein.
Batra Hospital, Delhi 26.11.91 to 28.11.91 and
12.11.92 to 28.12.92
Harkrishan Dass Hospital, 1.12.92 to 15.12.92 and
Bombay 18.1 93 to 10.2.93
Kolment Hospital, Delhi 25.12.92 to 28.12.92 and
08.04.93 to 19.04.93
In Harkishan Dass Hospital, Bombay, he incurred Rs. 3,15,188.10 as Indoor Patient. Besides, tor follow up monthly treatment i.e. purchase of life saving medicines etc., the petitioner incurs Rs. 8371.67 per month as the medicine (Sndoze) is imported from Switzerland since its substitute is not available in India as per the information sought by the petitioner vide letter No 3330- ET/17622 dated 26.7.95.
In pursuance of the order, the competent authority had passed order Annexure P-2. After considering the case of the petitioner who had submitted a bill amounting to Rs. 4,41,477.92 including travel by air to Bombay in connection wnh treatment, the case was referred to Health Department for advice and vide letter dated 24.3.1995, it was advised that the expenditure of travelling be reimbursed as per entitlement. According to instructions issued by the Finance Department dated 1.6.1992, the petitioner is not entitled to travel by air. Thus, the petitioner was paid Rs. 35,075/- out of a claim for Rs. 45,075/- in respect of travel ling expenses and Rs. 1,95,870.77 was reimbursed towards indoor treatment out of a claim for Rs. 2,77,973/- and the remaining amount of Rs. 77,103/- was denied because as per instructions, the expenditure incurred on treatment in an approved medical organisation can be reimbursed as per the rates of A1IMS, New Delhi/PGI Chandigarh and 75% of the excess amount can also be reimbursed. As regards outdoor treatment, as per Government instructions dated 19.7.1972, a Government employee who opts for outdoor treatment is subject to the ceiling of Rs. 1200/- per annum in lieu of fixed medical allowances of Rs. 45A p.m. and can also avail the facilities of reimbursement incurred on treatment of chronic disease as outdoor patienl up to Rs. 500/-PM. Therefore, out of outdoor treatment bill of Rs. 2,77,293.69 the petitioner was paid Rs. 15,500/- at the rale of Rs. 500/- P.M.
5. This order Annexure P-2 has been challenged by the petitioner on the ground that instructions dated 17.7.1992 are illegal and against the rules of natural justice. The fixing of Rs. 500/- per month for medical expenses on chronic diseases in a welfare State where it is the duty of the State to provide free medical aid to its citizens is illegal and contrary to natural justice.
6. After the transplant and for its proper working in the body, the medicines namely Sandimnum Cy-closporine manufactured by sandonz Pharma Ltd., Basle, Switzerland, costing Rs. 6250/- of a vial of 50 ml. (100 mg.) is a life saving drug and on the advice of the doctor, the petitioner has been taking it regularly since 1993 and he has spent huge amount on the treatment. The rates claimed by the petitioner for outdoor treatment are lower than the AIIMS, New Delhi and PGI Chandigarh. The respondents never raised an objection that the bills submitted by him are more than the rates of AIIMS or PGI, but arbitrarily paid 75% of the claim whereas there are no such instructions.
Further, due to financial difficulty and lack of medical facilities, the translated kidney stopped working during July/August, 1997 and the petitioner has to rush to All India Institute of Medical Sciences, New Delhi (in short the AIIMS) for treatment and revival of the kidney and remained under treatment for more than four months. Ultimately, the doctors at AIIMS advised for second transplant and meanwhile, put the petitioner on dialysis. The attending doctors at AIIMS disclosed that there is a long queue of patients for kidney transplant and the petitioner will have to wait for 9/10 months. Since the condition of the petitioner was not good to wait for such a long period, thus on the advice of the doctors that he should undergo an operation in some private hospital and that Ganga Ram Hospital at New Delhi is cheaper than other hospitals at Delhi, he got the kidney transplant from Ganga Ram Hospital, New Delhi in May, 1998 and incurred a total expenditure of Rs. 4,45,292.90 including the expenditure incurred on purchase of medicines including life saving medicines, the clinical tests, doctors fee and travelling expenses as per entitlement as per details given below:-
(1) Indoor treatment from 21.01.98 to 20.10.98 Rs. 2,32,598.00 (2) Outdoor treatment from 02.02.98 to 08.01.99 Rs 1,16.872.90 (3) Expenses of Donor (Borne by petitioner) Rs. 58,379.00 (4) Traveling expenses (January 98 to December 98 Rs. 38,425.00 Total Rs. 4.46,292.90 The petitioner has no other source of income except the monthly salary which is not sufficient to meel the expenses of kidney transplant and follow up treatment. He had also raised loan of Rs. five lakhs at the rate of 18 per cent per annum interest for the purpose of transplant operation and follow up treatment.
The petitioner, whose claim was rejected, has given the brief resume of numerous cases in which the medical reimbursement has been sanctioned with interest in some cases as well as Air travel expenses, boarding and lodging with one attendant and in yet another case, limiting the expenses at the rate of AIIMS was held to be unreasonable, unjust and arbitrary. These cases are briefly described in para 8 of the petition.
7. The respondents in their written statement raising preliminary objections, have pleaded that the petition is not maintainable as the petitioner got himself oper-aled for kidney transplant in Ganga Ram Hospital, New Delhi, which is not a recognised/approved hospital as per the policy framed by the Haryana Government, Health Department, vide letter No. 2/10/IHP dated 30.11.1993. As per the said policy, Haryana Government has recognised Navedic Prosthetic Centre, Daulatsinghwala, Zirakpur (Punjab), Batra Hospital, New Delhi and Escort Hospital, New Delhi for medical treatment of Haryana Government offi-cers/officials/pensioners and their family members subject to the condition that in case these officers and pensioners and their family members get special treatment in the above-mentioned hospitals, they will get the medical reimbursement rates equal to AIIMS, New Delhi/PGI Chandigarh and if expenses are higher than that of AIIMS, New Delhi/PGI Chandigarh, the same will be reimbursed up to 75% of the cost. Rest of the 25% expenses will be borne by the claimant himself. No Government officer/official/pensioner is entitled to avail the facility of treatment in private hospital other than recognised by Haryana Government. He is also not entitled to interest on account of delay in payment of medical reimbursement.
On merits, it is admitted that the claim for reimbursement was officially allowed vide order dated 29.3.1995. The impugned order rejecting the claim for medical reimbursement over and above 75% limit of the expenses incurred in indoor treatment and travelling expenses over and above his entitlement was as per the policy framed by the State Government. Further, the order rejecting the claim for medical reimbursement incurred in a private hospital not recognised by the State Government is in accordance with the terms of the policy issued by the State Government. The matter regarding treatment from private hospital was referred to the Health Department for sanctioning of medical reimbursement in case of the petitioner after giving relaxation in rules and instructions, but the same was rejected as he got treatment in a private hospital (Ganga Ram Hospital, New Delhi) which is not recognised by the Haryana Government. It is the petitioner who has flouted the instructions by getting treatment in an unrecognised hospital.
8. I have heard Shri K.S. Dhaliwal, learned counsel for the petitioner and Ms. Geeta Mathuria, learned Assistant Advocate-General for the State of Haryana.
9. Annexure P-5 is the certificate issued by Dr. Ra-mesh Kumar, to the effect that the petitioner is a case of Renal Transplant with unstable angina, therefore, he requires prescribed treatment without a break. Another certificate issued by Dr. Ramesh Kumar, Senior Neph-rologist, Head of the Department of Nephrology, Batra Hospital and Medical Research Centre, New Delhi is Annexure P-6 wherein he had certified that the petitioner, who underwent kidney transplantation on 20.1.1993 in Bombay, on his advice, is required to take Sandimmun (Cyclosporin) for indefinite period w.e.f. the date of transplantation. This drug is life saving and essential for him and at this stage, he should continue it until at least January, 1995, subject to reassessment.
10. This is not in dispute that the petitioner got the kidney transplantation from a private hospital i.e. Ganga Ram Hospital, New Delhi. He was not referred to that hospital by the doctors of AIIMS or PGI. Thus, the point under consideration is whether the petitioner will be entitled to reimbursement of the total amount spent by him on his treatment incurred in an unrecognised hospital. The petitioner has been reimbursed partially as per Annexure P-2 and the order that the remaining amount of 25% will have to be borne by the claimant himself is challenged on the ground that it is against the policy of the State Government and it violates the fundamental rights of the petitioner. It is also alleged that the petitioner has been discriminated visa-vis others who have been allowed full reimbursement of the expenses incurred by them. Those instances have been given by the petitioner in para 8 of the petition. In Surjit Singh Khera v. State, CWP No. 13271 of 1992 decided on October 6, 1993 by a Division Bench of this Court, it was observed that the rules framed for the benefit of the Government employees have to be interpreted liberally in order to ensure that they serve the purpose or object for which they have been framed. In Surjit Singh Khera's case (supra) it was held as under :-
"Providing medical aid to public servants is one of the steps for ensuring efficient public administration. The interest of the State is obviously having an efficient public service. Denial of medical aid particularly on hyper- technicalities would lower the morale of the public servants, disrupt the work force and undermine the mission of office. The order impugned is inhumane. The respondents cannot be permitted to treat their employees inhumanly and without compassion. Even if there is any technical violation, it cannot be permitted to be stretched to such an extent, that may result in draconian rule or denial of just claim of an employee. Law is to be addressed to a reasonable and responsible man. Denying an employee the benefit solely on the ground that prior permission for treatment was not taken and the treatment was taken from a private hospital not recognised by the State Government though recognised by the Central Government would render the operation of statutory Rule 7 illusory."
It was a case of bypass surgery. Facilities for bypass surgery were not available in any hospital in the State of Punjab. Thus, it was observed that when the facilities of bypass surgery were not available in the State of Punjab, under the circumstances, the denial of reimbursement on that ground is arbitrary, unreasonable and implausible. The denial of reimbursement in these circumstances would permit the draconian rule to prevail in producing unjust results.
11. Now, adverting to Annexure P-4 also relied upon by the petitioner, which relates to the instructions issued in respect of the reimbursement for the treatment taken from certain recognised hospitals and unrecog-nised/unapproved hospitals, it is abduntanly clear that those who get treatment from approved hospitals/institutes will be given reimbursement at the rates of AI-IMS New Delhi/PGl Chandigarh. The expenditure incurred on treatment in excess of AIIMS/PGI will be reimbursed upto 75% and the remaining 25% will have to be borne by the claimant himself. Defending the policy and the Instructions issued by the respondents, the learned State Counsel has relied upon State of Punjab and others and Ram Lubhaya Bagga etc., 1998(1) SCT 716 (SC) : AIR 1998 SC 1703, it has been held that the policy based on financial constraints is not violative of Article 21 or 47 of the Constitution of India.
"No State or any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permits. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be viola-live of Article 21 or Article 47 of the Constitution of India."
Their Lordships of the Supreme Court have gone a step further by observing that the employees are admitted in private hospital due to long strike in AIIMS, would be held entitled to be paid at rates prevalent in the private hospitals. However, this is not the case here.
12. The petitioner has claimed reimbursement of the full amount of expenses incurred towards indoor treatment amounting to Rs. 3,95,792.69 and outdoor treatment besides the expenses incurred towards follow up treatment from 26.11.1993 to 11,3.1995 amounting to Rs. 2,42,078.59. Besides, the petitioner claims arrears of expenses towards follow up treatment from 11.3.1995 onwards at the rate of Rs. 8,318/- per month. The petitioner has been allowed Rs. 2,72,973/- as reimbursement of indoor treatment and Rs. 500/- per month towards follow up treatment,
13. It is submitted on behalf of the petitioner that he cannot be denied the right of reimbursement of full medical expenses simply on the ground that he was operated upon in a private hospital, namely Sir Ganga Ram Hospital, New Delhi, which is not recognised by the Haryana Government. The explanation for the same is that the doctors at the AIIMS had advised him that since there was a long queue of patients for kidney transplantation and his number would come after 8-9 months in July/August 1997, therefore, on account of emergency due to renal failure, he had to rush to AIIMS for treatment and revival of kidney. He would not wait for such a long time. On account of the inability expressed by the doctors at AIIMS, he had no other alternative but to shift to Sir Ganga Ram Hospital for kidney transplant.
14. Shri Dhaliwal, learned counsel for the petitioner placing reliance on a Division Bench judgment of this Court in Som Nath Kapoor v. State of Haryana etc., 1999(4) SCT 902 (SC) : 1996(4) RSJ 646, urged that this case is squarely covered by this decision. It was a case where wife of the retired Section Officer of Government of Haryana suffered heart disease. She was examined by Physician and Heart Specialist. Faridabad, who referred her to All India Institute of Medical Sciences, New Delhi for further treatment. Since there was no bed available at AIIMS, she was referred to Safdarjung Hospital, New Delhi. Again, in Safdarjune Hospital, there was no provision for treating heart disease and there being risk to the life of petitioner's wife, she was got admitted in National Heart Institute run by All India Heart Foundation, Angiogra-phy was done. She was advised bye-pass surgery, which was conducted. When the claim for reimbursement of medical expenses was put forth, the same was rejected on the ground that the petitioner got his wife admitted in the National Heart Institute, which is not recognised by the Government Haryana, Rejection of claim was held to be unreasonable, unjust and arbitrary. The petitioner in the given case in hand, is also claiming full reimbursement of expenses incurred in a private hospital.
15. The petitioner is also claiming reimbursement of expenses incurred towards follow up treatment as an outdoor patient because the treatment like dialysis and purchase of cosily medicines including a costly medicine namely Sandimnum Cyclosporine which is manufactured by a foreign company namely Sandoz Pharma Ltd. costing Rs. 6250/- per vial of 50 ml. (100 mg.). Kidney transplantation having been included in the list of chronic diseases required regular follow up treatment. In a similar case Ravi Kant v. State of Hary-ana, 1998(4) SCT 206 (P&H) (DB) : 1998(1) SCT Vol. 30 (P&H) (DB) 614, the petitioner was allowed the medical expenses which he may have incurred as an outdoor patient for his treatment if it is certified by his authorised medical attendant thatthe said treatment is absolutely necessary for keeping him alive and there is no other substitute for the medicines he is going in for his treatment. In the given case in hand also, the petitioner has averred that the follow up treatment is absolutely necessary for keeping him alive and there is no other substitute for the medicines he is going in for his treatment, as per the opinion of the medical attendant from whom he is getting treatment.
16. In Renu Saigal v. State of Haryana, 1998(4) SCT 565 (P&H) : 1998(1) SCT Vol. 30 (P&H) (DB) 565, the instructions issued by the Haryana Government dated 11.8.1992 restricting the amount to be reimbursed for outdoor treatment in Government hospitals to only Rs. 500/- per month were held to be unjustified on the touchstone of Articles 14 and 21 of the Constitution of India, insofar as these deny the benefit of full medical reimbursement to outdoor patients. Thus, the instructions Annexure P-9 were quashed and the Government was directed to make full reimbursement of the medical expenses incurred by the petitioner both as an indoor and an outdoor patient. It was a case where the petitioner was suffering from illness known as "Hairy Cell Leukemia". She was admitted in PGI Chandigarh in July/August, 1996. The doctors in the PGI accordingly issued a certificate certifying that Interfron-A, a very expensive medicine, which had to be administered to her periodically was not available in the stock of the PGI and had to be purchased from outside. A certificate was earlier issued that petitioner's treatment was going to be a prolonged one. The cost of medication was likely to be in the range of Rs. 20,000/- to Rs. 30,000/- per month. When the petitioner submitted the bill for medical reimbursement, it was denied on the ground that she being an outdoor patient was entitled to reimbursement only upto Rs. 6000/- per annum. It has been observed by my learned brother Judge H.S. Bedi, while quashing the Government instructions, after quoting paragraph 3 of the Instructions, as under :-
Paragraph 3 of Annexure P-9 "Persons claiming reimbursement on chronic diseases will not be entitled to any other medical allowance either at fixed rate or at the rate of Rs. 100/- p.m. as outdoor patient. No employee claiming reimbursement on account of outdoor treatment on chronic diseases will be entitled to reimbursement of more that Rs. 500/- per month. The instructions issued vide Govt. Letter No. 2/59/99-1HB/III dated 17.7.1992 for reimbursement of expenses incurred on the treatment of chronic diseases as outdoor patient may be treated as amended to this extent."
xxx xxx xxx A cumulative reading of the word "treatment" along with the other observations mentioned above clearly makes out that a Government servant shall be entitled to free of charge treatment in a hospital and the exceptions, if any, be with regard to Board etc. have been specifically carved out in the rules themselves. It will also be seen that no distinction whatsoever has been made in the rules with regard to reimbursement of medical expenses between indoor and outdoor patients and this has been drawn under paragraph 3 (ibid). It is, therefore, apparent that the said instructions so far as they deny full reimbursement of medical expenses incurred on chronic diseases to an outdoor patient cannot be justified as they are contrary to the Rules. The word "Chronic" has been defined in Buttesworth Medical Dictionary (Second Edition) as a disease long continued. It is common knowledge that a chronic disease and more particularly, a malignant one, destroys not only the financial but even the emotional health of the family and takes a very heavy on all (those) who come into contact with the patient. To my mind, therefore, paragraph 3 of the Government Instructions Annexure P-9, insofar as they deny the benefit of full reimbursement of medical expenses incurred on account of treatment as an outdoor patient cannot be justified on the touchstone of Articles 14 and 21 of the Constitution as well. Ram Lubhaya Bagga etc. (supra), therefore, cannot come to the aid of the respondents."
17. The given case in hand is more or less similar to the case cited above. The petitioner is also getting follow up treatment on account of kidney transplantation. He has to visit the hospital as an outdoor patient. He has given the details of the expenses incurred by him on medicines for follow up treatment which appear to be quite expensive. Therefore, I am of the opinion that this petition deserves to succeed to this extent. However, the order allowing reimbursement to the extent of 75% as indoor patient cannot be termed as illegal and arbitrary.
18. This petition is, therefore, partly allowed. The respondents are directed to release full amount of reimbursement of medical expenses incurred by him on follow up treatment as an outdoor patient within a period of three months from the date of receipt of a copy of this order. As regard the reimbursement of medical expenses for follow up treatment is concerned, the petitioner will be entitled for reimbursement of the same in case he produces certificate from the authorised medical attendant to the effect that the said treatment is absolutely necessary for keeping the petitioner alive and that there is no other substitute for the medicines he has to purchase for his treatment.
19. Petition partly allowed.