Central Administrative Tribunal - Mumbai
R D Deharia vs M/O Railways on 6 March, 2019
COLELLO D 1 . C14 No. 517/203 a as CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAT BENCH, MUMBAT .
ORIGINAL APPLICATION No. 517/2016 Dated this Wednesday the 6 March, 2019 CORAM: RAVINDER KAUR, MEMBER (d7} Shri R.G. Deharie Age 81 years, Occu - Retired &.P.0. (bSW} CLPLOL's Office, Central Railway, CST, Mumbai. Rfat. Flat No.B/305, Third Floor, Narayan Darshan CHS Ltd., Shivajinagar, Ambernath Road, Waldhuni, Kalyan (W)-421 301 .
Dist- Thane (M.S.j. ... Applicant ( By Advocate Shri D.N. Karnade } VERSUS i. Union of India Through the General Manager, Head Quarter's Office, Central Rly., c.8.T. Mumbai - 400 001.
2, The Chief Medical Director Head Quarter's Office, Annex Building, Central Railway, c.8.T., Mumbai - 400 001.
3. The Chief Medical Superintendent Central Railway Hospital, Kalyan (W} - 421 S01, Dist. Thane. aes Respondents ( By Advocate Shri 8.cC. Dhawan } OR DER The present OA has been filed by the applicank under Section 19 of the Acministrative Tribunals Act, 1985 seeking the following réeliefs:-
"8t) To allose the Original Application.
(ii) To direct the Respondent Nos.2 and 3 to reimburse to the applicant a sum of Rs.J.55,5774 disallowed by the Respondents even though the applicant has incurred the Expenditure by paying to the PHONEIX Health Care, APEX Multi-Apeciality Hosptial Parnaka, Kalvan (W), {iii} To grant such other and further mee Sas expedient in the interest of justice.
fiv) The cast of the Application may be awar led in Javour of the applicant.
2, The applicant retired as Senior Personnel Officer (L&W) of Railways on 30.06.1993. He is a Member of Retired Employees Liberalised Health Scheme - 'Ass? (hereinafter referred as RELHS). AS per Railway Board's letter No. S7/H/28/1 dated 23.10.1977 9 {Annexure A-2) relevant para {41} {eligibility of the said letter), he is eligible for the benefits of the scheme. As per para 2.4 Of Ministry of Railways (Rallway Board), the 4 or oj fy eh cy de ew ad oR So gy kL order No. 97 /H/26 fi datec 17.05.1399, che applicant and his wife are eligibie to get the medical faciidities. Since the applicanh retired 3 aL ae on 30.06.1993 and opted For the original scheme . % © "ORAM hth hiinade dren nnp ppp onnnnirneiil dante @ 3 OA Na.S17/2016 of benefits, the pew Rules under reference automatically applied to him. It is stated that under the Scheme reimbursement of the medical treatment necessitated in emergency cases is permissible to retired employees as it is permissible to serving employees. 2.1 The applicant has stated that as per Railway Board's letter dated 95,04,2000 'Annexure A-4), the retired Railway employees who are RELHS card holders are duly empowered to take treatment from a. Non-Railway Private Hospital in case of emergency to save their tf life. The relevant extract of the letter i reproduced as under:-
'Railway Board's letter No.98/6-4/60 dated 05.04.2000 z arhGry: all. mabters connected with reimburse meant of Medical Expenses incurred by Railway Employees were dealt by the Personnel Departmant of the Zonal Rad lways/Pro duction Units. For more speedy isposal of claim for reimbursement, Railway Board has decided that ali the work relating to such claims, should be handled by the Medical Department s af the Zonal Railways/Production Units and by the Health Directorate in the Railway Board's office.
mPEHS card holders, in case of high emergencies can rush te Non~Railway Hospitals for taking emergency treatment to save life, without first going to a Deetor in a Railway Hospital and can thereafter apply and get his Medical Expenses reimbursed.
4 Od No sie 20 l8 and The wife of the applicant was unwell and aa pha © a3] foe 5 on 04.03.2015 she was taken co PBPHORN tr Care, APEX Muiti-Speclality Hospital, Kalyan () het for treatment where the Doctar advised that Since her condition was serious she required the hospitalisation immediately. Consequently She was admitted in the said hospital for cf cMent. She remained admitted there till ay 2 ty 16.03.2015, From where she was shifted ts Railway Hospital, Ralyan. She was kept in reco but since no ventilation facility was available, she Was given ordinary oxygen facility and died on that date itself.
2.3 The applicant preferred his claim for medical reimbursement for a Sum o£ RS.¢, 64,834.30 incurred for the treatment of his wife in the PHOENIX Health Care, Apex Multi- Speciality Hospital, Ralyan vide Annexure A-5 However, the respondent No.3 | vide letter No. 4/M/KYN/Med . /Reim/Sanc/47/18 dated 24,09.2015 advised for the sanction of Re.1,09,257/~ only against the actual medical claim on the ground that the reimbursement can oniv be made at the rate LTixed by the Government under CGHS Rules or , done » Te the expenditure incurred whichever is le OA No STMZOTG 4 3 bed ct Sanetion order is Annexure A-&. is this ordex which has been challenged by the applicant on the grounds that the denial of payment of reimbursement of Rs.i,558,577/- towards expenses > for the treatment of. his wife is tiliegal, arbitrary and violative of the respective rules of the Ministry of Railways, particularly, para 2.4 of the Railway Board's Jletter dated 17.05.3999 {Annexure A-3) which is reproduced as "2.4 Benefits under the RELHS -97 Scheme : RELHS beneficiaries will be previded full medical facilities as admissible to serving employees in respect of medical treatment, special investigations, diet and reimbursement of claims for freaiment in government or recognised non railway haspitals. They will also be eligible, inter alia, for fa0 ambulance services (b) medical passes (c) home visits (d} treatment for first two pregnancies of married daughters at concessional ratex and (e) treatment of private servant, as applicable to serving railway employees."
2.4 The applicant has relied upon the case of State of Punjab and Ors. Vs. Mohinder Singh Chawla ete. reported in SCSLI 1997 (1) 204, wherein the Hon'ble Apex Court has held as underi-
"a. Government has eonstitutional obligation fe provide the health facilities. If the Government Servant fas suffered an ailment which requires treatment at a specialized approved hospital and on reference where at the Government Servant had undergone such treatment therein, it is but the duty of Siate to bear the expenditure incurred by the Government Servant, Expenditure, thus & G4 Noo)? Ok 016 incurred, requires fo be reimbursed by the State ta the employee.
3 Having had the constitutional obligation to bear the expenses for the Government Servant while in service ar afler refrement from service, as per policy of the Government, the Government is required to fulfill the constitional obligation, Necessarily, the state has to bear the expenses incurred in that behalf." 2,8 The apwiicant has further relied upon the judgments of this Tribunal in the following () N.B. Rao through LR's Vs. UO? through GM. Western Railway Bombay reported in ATL, 1995 (2) 342 (Annexure A-8) {ii} Shri Jawed Ahmed Vs. UOT reporied in ATS 2005 (2) 108 fdnnexure A-9),
(iii) Fenkrat Srinivasan Raghavan Vs. Union of India and Others reported in ATJ 2006 (3) 414 (Annexure A-10) .
3. The respondents in their repiy have admitted all the facts of this case and have Stated that though the applicant has claimed medical reimbursement for a sur of Rs.2,64,894/~, however only a sum of Rs.1,09,257/- Ras bean sanctioned as per Rule of fixed by the Government CMS, Kalyan vide [ss CGH letter dated 29.99.2015. The respondents have relied upon Exhibit R-1l i.e. Advance correction bea slip to para 648 of IRMM 2000 which defines the ferm 'Emergency' that uniess the case of the applicant fulfills the parameters as contained in said para 648, he is not entitled to any © © 7 | O4 No SEV2016 O kb ¢ reimbursement. Further, that the wite o = YF Sot a Aten toe eS + yee hey ye 4 -- Ve ay 3 applicant was admitted for breathlessness in bad aed:
private hospital on his own on O4.903.2015. On O6.03.2015 she was intubated and was put on. ventilator. On 13.03.2015 CRAP and Extubated i.e. ventilator was removed and patient was breathing on her own. She was transferred to Railway Hospital Kalyan and even at that time she was breathing on her own and was not on ventilator. There she was admitted in Tccu and was given necessary treatment. As per the respondents, the applicant's claim dated 30.03.2015 was rightly rejected by respondent No.3 vide letter dated 24.08.2015. It 1s submitted that as per. Railway Board's letter No. 2005/H/6-4/Policy-II dated 31.01.2007 (Exhibit R-IT), the treatment taken in rec sognised private hospital, reimbursement should be made at CGES rate of that city or the nearest city.
4. tT have heard the arguments addressed by Shri O.N. Karande, bd. counsel for the applicant and Shri §.C. Dhawen, Ld. counsel for the respondents and perused the material available on record.
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2. The short question to be decided in the present case iS as to whether there was any emergency that the applicant had to admit his wife at BHOENTX Health Care, APEX Muliti- Speciality Hospital, Kalyan W} Ca ron Ey ct mipanelled hespital} for treatment and if whether he is entitled to reimbursement of the entire expenditure incurred on the treatment of his wife at the said hospital. &. The relevant portion of Exhibit R-2 i.e. the Railway Board letter No.f0045/H/6~4/Policy-I1 dated 31.01.2007 its reproduced as follows:-
"ds per extant rules, a railway beneficiary must report to Ratlway Medical Officer for histher and dependents medical treatment. The Authorized Medical Officer will make necessary arrangements jor medical treatment through Railway Hospital/Govt. Hospital/Pvt. Recognised Hospital in serious situations, CMDs of Zonal Railways can obtain special permission from the Board for treatment in any Private Hospital on case to case basis. Hence, there is Ha scope available for any Railway beneficiary ta go to any private hospital himselffherself or their dependents on their own bolition expect in case of real emergency STLuATION.
"Emergency" shall mean any condition or symptom resulting from any cause arising suddenly and if not treated at the early convenience, be detrimental to the health of the patient or will jeopardize the life of the patient. Some examples are Road accident, other types of accidents acute heart attack efc. under such conelition when the railway beneficiaries feels that there is na scape of reporting to his/her authorised Railway Medical Officer and avails treatment in the nearest and suitable private Hospital, the retmobursement claims are to be pr cessed for sanction, after the condition of the emergency is conft rmed by the authorized Railway Medical Officer ex-postfacto. "
yy 9 Q4 Ne SIFG016 ?, AS per the above Ruie, im normal circumstances, the Railway beneficiary has to first approach the Railway Mecical Officer for medical treatment for self or dependents. It is the Authorised Medical Officer who will make necessary arrangements for his/dependent LE eatmant either at Railiway Hospital Or Oo F Ch sovernament Hospital or private recogn Hospital in serious situations. The CMDs of Zonal Railways can obtain special permission from the Board for treatment in any private Hospital on case to case basis. This clearly shows that the Railway beneficiaries have no choice to go to. .any private Hospital for himself/herself ax their dependents on their own except in case of real emergency situation. In Case of emergency when there is a threat to the life of the patient, the Railway beneficiary can avail treatment in the nearest and suitable private hospital.
&. In the present case, the respondents have not denied the fact that the wife of the applicant was admitted in PHOENIX Health Care, APEX Multi Speciality Hospital, Kalyan in emergency. Even her relevant medical record 10 | | GS No Si 2G shows that she was admitted at the said Hospital in emergency and was pub on ven remained cH ventilator tall L3.03 2015. Emergency certificate issued by Hospital eleariy finds mention that the wife of the applicant wes 3 a aamitted in the said hospital in mergency oon 04.03.2015. On 06.03.2018 since she - was desaturating, hence intubated' c440 Endnatracheal tube and put on ventilator. She was extubated © only on 13.03.2015 She was transferred to Central Railway Hospital, Kalyan on 16. 03.2015. Tt is admitted fact that after discharge from PHOENIX Health Care, Apex Multi Speciality Hospital, Kalyan, she was admitted to Central Railway. Hospital, Kalyan. As per the discharge ee cum death certificate issued from the Sard Hospital, the wife of the applicant was admitted in the said hospital at 1.15 pm on 86.03.2015 and on the same date, she died at 4.10 pm due to cardio respiratory arrest with general debieity with encephalopathy. All these facts are nok disputed by ths espondents. The contention of learned counsel a Yor the respondents that after ths applicant was extubated on 13.03.2015, she was breathing on An da nan an nena anaes aa gee seeeeeerene eens aa nt cae OA No. 51 7/2016 her own and even ah the time when she WAS transferred to Central Railway Hospital, Kalyan she was breathing on her own and was not put on ventilator anda therefore there was mo such o emergency eondition of the wife of the applicant which necessitated her eariier treatment at orivate Hospital. The said contention of the respondents seems toa be insensitive in nature and is not acceptable. boty 3, The Hon'ble Apex Court ain the case o Shiva Kant Jha Vs. Union OF India. Writ Petition (Civil) No.694/2014 decided on 13.04.2018 bas interpreted the CGHS Scheme vis-a-vis CS (MA} Rules, 1944, it was specifically ruled as under:-
13) His a settled legal position that the Government employee during his life time or afier his retirement is entitled to get the benefit of the medical facilities and no fetters ean be placed on his rights. It is acceptable te 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 scape 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 anly te 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 im 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 Doetors'Hospitals comeerned. Once, if is established, the 'claim cannat be denied on technical grounds. Cleariy, in the present case, by taking a very inkiuman approach, the officials of the CGHS have denied the grant af medical relmbuosement in full ta the petitioner forcing him jo appraach this Court.
id) This is hardly a satisfactary state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee af his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpese of providing health facility scheme to the central government employees so that they are nat left without medical eare after retirement. 2 was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme wax brought in force. in the facts af the present case, if 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 .
doetors did his operation and had implanted C/RT-D device and have done so as one essential and timely. Though it is the elaim af 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 cancerned Ministry, if alsa cannot be denied that the petitioner was taken to hospital under emergency conditions far survival of his life which requirement was above the sanctions and treatment in empanelled hospitals. ZO. The aforessid judgment of the Hon'ble oO othe facts and ct Apex Court is fully applicable circumstances of the present case. The applicant has claimed medical reimbursement for a@ Sum of 3 gt : ty euea wees " wr ox fa hoe ye Ln ay Rs.2,64,834/-. HOWEVEX, vids letter dated 29.09.5015 he was sanctioned only a sum of Rs.i,09,257/- as per CGHS rate. The respondents O Nos.2@ & 3 are directed to pay the actual medical expenses incurred by the applicant on the treatment of Al tp wits after adjusting the amount already reimbursed, within a period of one month x from the date of receiot of copy of this order. id. Wath these Girections, the Original Application stands allowed. No order as to { Ravinder Kawx) Member (7)