Union Of India Through The ... vs Mr. Sebastian S. Dias
2017 Latest Caselaw 2804 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                 WRIT PETITION NO.9101 OF 2016

1 Union of India
Through The Secretary,
Government of India, Ministry of Home
Affairs, North Block, Central Secretariat,
New Delhi 110 001

2 The Registrar General, India
Kotah House Annex, 2/A, Mansingh
Road, New Delhi 110 011

3 The Assistant Director of Census
Operation Directorate of Census
Operations,
Exchange Building, 2nd Floor,
Ballard Estate, Sir Shivsagar Ramgulam
Marg, Mumbai 400 001,
Maharashtra                                       ......Petitioners

V/s.

1 Mr. Sebastian S. Dias
Retired as Statistical Investigator
Director of Census Operation
Exchange Building, 2nd Floor,
Ballard Estate, Sir Shivsagar
Ramgulam Marg, Mumbai 400 001
And also having address at
Gloria, Dhobi Talao-Kolapur Road,
Ahashi, via Virar (W) Pin 401 301             .......Respondent


Mr. R.M.Harida , Advocate for Petitioners.
Ms. Swapna V. Gokhale , Advocate for Respondent.




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                          CORAM : SMT. V.K. TAHILRAMANI, &
                                  SANDEEP K. SHINDE, JJ.

DATE : 6th June, 2017.

ORAL JUDGMENT (Per Shri Sandeep K.Shinde, J.) :

Rule. With consent of the learned counsel for

the Parties, Rule is made returnable forthwith and heard.

The writ jurisdiction of this Court is invoked against the

judgment and order dated 18.3.2016 passed by the learned

Member (A) of the Central Administrative Tribunal, Mumbai

Branch Mumbai in Original Application NO.718 of 2014.

2 The facts giving rise to the filing of the above

writ petition can in brief be stated thus:

The Respondent joined the duty as Assistant

Compiler in April, 1968 in the office of the Superintendent

of Census Operation Maharashtra, Bombay. During the

service tenure, he had undergone major heart surgery in

the Government panel hospital in Mumbai. The treating

hospital had recommended life time drugs. The Respondent

voluntarily retired on 1.3.2007. It may be stated that in

1954, the Central Government had introduced the Central

Government Health Scheme ('CGHS' for short) with the

objective of providing comprehensive medical care facilities

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to Central Government employees, pensioners and their

Dependants residing in CGHS covered cities. Under this

scheme, pensioners residing in non-CGHS areas also may

obtain CGHS card from nearest CGHS covered city. It may

be stated that the employees who do not reside in the

jurisdiction of the CGHS Scheme covered areas, the Central

Government had appointed Authorised Medical Attendants

('AMA' in short) under the Central Services (Medical

Attendance) Rules, 1944 (' Said Rules' in short). The

Respondent stays at Virar which does not come under the

CGHS Scheme and hence, the Respondent was availing

medical facilities under the said Rules. It may be stated

that the said Rules are not applicable to the retired

employees and, therefore, in order to avail medical

facilities after retirement, a retired pensioner has to enroll

under the CGHS Scheme. On 29.1.2007 well before the

date of retirement , the Respondent had applied to the

Director of Census Operation, Mumbai, Maharashtra (' DCO'

In short) requesting to issue certain documents, which

were otherwise required to enroll under the CGHS Scheme.

After retirement, the Respondent wanted to enroll himself

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and his wife under the CGHS Scheme for medical

reimbursement. The office of the DCO did not respond to

his application dated 29.1.2007 and as such, the

Respondent sent reminder on 29.6.2007 requesting the

DCO to issue necessary documents which would enable

him to enroll under the CGHS Scheme. It appears that the

office of the DCO asked the Respondent to surrender AMA

Card in order to take further action. The Respondent

immediately returned his AMA Card in original on 8.9.2007.

The Respondent reminded the office of the DCO on

15.4.2008 and again on 6.2.2009 but there was no

response from that end. During this period, the Respondent

could not stop his medical treatment but he had to

continue costly medication and undergo the pathology test

for himself and his wife during the period between

1.3.2007 till 9.4.2010. Since there was no response from

the office of the DCO, the Respondent sought

particulars/information by making applications under RTI

Act. The record further indicates that the DCO vide letter

dated 30.11.2009 threatened the Respondent not to

correspond department repeatedly and for the first time

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informed him that the AMA Card which was surrendered by

him was not genuine. Finally on 10.3.2010, the CGHS

authorities enrolled the Respondent under CGHS

(Pensioners' Scheme) on the basis of letter dated

30.11.2009 of the Deputy Director of Census Operation,

Mumbai.

That after securing enrollment under the CGHS

Scheme on 10.3.2010, the Respondent/Original Applicant

corresponded to the department regarding medical

reimbursement for a period between 1.3.2007 to 9.4.2010.

On 1.7.2010 the Joint Director of Census Operations asked

the Respondent to submit all his previous medical claims to

CGHS Authorities for settlement. The said authority vide

letter letter 18.7.2011 clearly informed the Respondent

that since he became CGHS Card holder with effect from

10.3.2010, his claim for medical re-imbursement prior

thereto could not be processed and granted.

It appears the Respondent and his wife being

cardiac patients could not cope up with the increasing rates

of medicines and, therefore, applied for granting fixed

medical allowance which was finally sanctioned by the Pay

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and Accounts Department Census in April, 2014. It further

appears that the Respondent finally informed the Registrar

General, India vide letter dated 31.4.2014 regarding entire

situation of his medical claim; whereupon office of the

Registrar General informed to the DCO, Maharashtra about

the Respondent's case for medical reimbursement. The

Assistant Director of Census Operations, Maharashtra

instead of making reimbursement good, informed the

Respondent on 6.8.2014 that since he had retired in

February, 2017, Department cannot re-imburse his medical

claim for the period between 1.3.2007 to 9.4.2010.

3 The aforesaid facts clearly indicate that at the

first instance, the Original Respondents Authorities delayed

the enrollment of the Original Applicant under the CGHS

Scheme for no fault on his part. That pending his

enrollment under the CGHS Scheme, he had incurred the

medical expenses in a sum of Rs.58,313.73 Paise. The

CGHS Authorities denied to re-imburse the claim pertaining

to the period prior to his registration. More so, office of the

Original Respondent No.3 denied to process and pay claim

of the Original Applicant since reimbursement pertains to

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period his post retirement. That under this circumstance,

he was left with no remedy but to approach the Central

Administrative Tribunal, Mumbai Branch, Mumbai vide

Original Application No.718 of 2014 under Section 19 of the

Administrative Tribunals Act, 1985 wherein he prayed thus:

"(i) That Hon'ble Tribunal be direct Respondent to reimburse total medical expenses amounting to Rs.58,313.73 incurred during the period between 1.3.2007 to 31.3.2010."

4 The Original Application was contested by the

Petitioners herein on various grounds including that of

delay, on the part of the Respondent herein in approaching

the Tribunal. The issue of delay has been deliberated by the

learned Member of the Central Administrative Tribunal and

rejected the contention of the Original Respondent

Authorities by recording the reasons. The learned Member,

Central Administrative Tribunal after perusing the file

records and the pleadings of the parties recorded a finding

that the Original Respondent Nos.1 to 3 were duty bound to

ensure that the medical reimbursement on the claims

made by the Respondent herein be paid along with interest

and accordingly, the Original Application was allowed by

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the judgment and order dated 18.3.2016. The learned

Member imposed a cost of Rs.5,000/- on the Original

Respondent No.3, i.e., the Assistant Director of Census

Operations, Directorate of Census Operations, Maharashtra

and further directed to deposit the cost with the State

Legal Services Authority within a period of 15 days from

the date of receipt of the certified copy of the order.

5 Aggrieved by the order as aforesaid passed by

the learned Member of the CAT, the Union of India (Original

Respondent No.1) before the CAT preferred this Writ

Petition under Articles 226 and 227 of the Constitution of

India seeking relief to quash and set aside the judgment

and order dated 18.3.2016 passed by the Member (A) of

the CAT Mumbai Bench, Mumbai in Original Application

No.718 of 2014.

6 The learned counsel for the Petitioner-Union of

India has taken us through the Original Application and the

pleadings of the contesting Respondent and such other

documents. The learned counsel contended that the claim

of the Respondent was barred by the law of limitation and,

therefore, the learned Member ought not to have granted

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the application.

The learned Member of the CAT in its order and

in particular paragraph 30 has re-produced entire

correspondence exchanged between the Respondent and

his employers. It would clearly establish a fact that the

Respondent/Original Applicant had applied to his employers

with request to supply him necessary documents for

enrolling himself and his wife to receive the benefits under

the CGHS Scheme. In paragraph 30, the learned Member

has taken pains to re-produce the correspondence right

from 2007 in 2009 and further proceedings under the RTI

from June, 2009 till December, 2010. Therefore, a finding

recorded by the Member that the Original Applicant cannot

be held responsible for the delay in making the claim which

cannot be faulted with.

7 The issue in the Original Application was

whether the Respondent was eligible for reimbursement of

medical expenses between the period from the years 2007

to 2010, i.e., following his retirement with effect from

1.3.2007 till the time he was issued CGHS Card on

10.3.2010 and if at all he was entitled eligible, then who

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should reimburse the medical expenses the CGHS or RGI.

8 After hearing the learned counsel for the

Petitioners and the Respondent and after perusing the

pleadings and the relevant documents, it cannot be

disputed that as per Rules, the Original

Applicant/Respondent had right to be covered by some

health schemes after retirement. In fact, in his first

representation 29.1.2007, he made it clear that he was not

covered by CGHS and, therefore, was getting medical

benefits from the AMA. It is an admitted fact that the

Respondent/Original Applicant was getting medical

facilities from AMA and, therefore, the Respondent No.3

ought to have proceeded to enroll the Respondent under

the CGHS Scheme, obtaining his AMA Card immediately.

The Original Respondent Authorities neither enrolled the

Original Applicant under the CGHS Scheme immediately

nor entertained reimbursement claim, pending his

enrollment. It cannot be disputed that the

Respondent/Original Applicant is/was entitled to

reimbursement of medical expenses from the Original

Respondents Authorities. He cannot be denied his

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legitimate claims for no fault on his part. In the

circumstances, the Tribunal has correctly held and directed

the Original Respondent No.3 to reimburse medical claim of

the Original Applicant/Respondent in a sum of Rs.58,313.73

Paise. The Respondent was receiving medical

reimbursement in the past on the basis of AMA card and,

therefore, the Tribunal correctly held and directed Original

Respondent No.3 to reimburse medical claim of the

Respondent in a sum of Rs.58,313.73 Paise.

Taking into consideration facts of the case and

the manner in which claim of the Original

Applicant/Respondent has been dealt with, we are of the

opinion that judgment and order passed by the learned

Member, CAT requires no interference and the Petition is,

accordingly, dismissed.

At this point of time, the learned counsel

appearing for the Petitioners submitted that there was no

intention on the part of the Respondent No.3 to misdirect

the Original Applicant/Respondent in getting him enrolled

under the CGHS Scheme and there were some

complications in his case for granting reimbursement claim

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post retirement particularly when he was not enrolled

during said period under CGHS Scheme. He further

submitted that the office of the Respondent No.3 could not

have taken the decision independently without first

consulting the higher authorities. He, therefore, urged that

the order imposing cost of Rs.5,000/- as against the

Original Respondent No.3 may kindly be set aside.

It is true that reimbursement claim pertains to

the period post retirement of the Original Applicant and

before securing enrollment under the scheme. It appears

the Original Respondent No.3 could not have taken the

decision independently and, therefore, the delay on the

part of Respondent No.3 in processing the claim of the

Original Applicant/Respondent was not intentional and,

therefore, the order imposing the cost of Rs.5,000/- against

the Original Respondent No.3 is hereby set aside.

9 That considering facts and circumstances of the

case, the order passed by the CAT is confirmed and further

Original Respondents are directed to satisfy/reimburse the

claim of the Original Applicant/Respondent herein within a

period of 30 days from the date of receipt of the copy of

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this order. With this direction, the Writ Petition is dismissed

with no order as to costs.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)

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