Smt. Kamlesh Sharma vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 1804 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner is the widow of Shri Dharam Singh, who was working as Senior Malaria Inspector with respondent/MCD. She has filed this writ petition, aggrieved by the non-reimbursement of the medical expenses incurred for treatment of her deceased husband. Late Mr. Dharam Singh, husband of the petitioner, had gone to Rohtak, Haryana in the month of August, 2001, where he took ill. He was admitted to Post Graduate Medical Institute of Sciences, Rohtak. As there was slight improvement in his condition, he was brought to Delhi and admitted at Bara Hindu Rao Hospital, Delhi. Both at PGMIS Hospital, Rohtak and Bara Hindu Rao Hospital, Delhi, certain medicines were prescribed by the Doctors, which were not available and had to be purchased from the market by the petitioner and members of her family. On 3.9.2001, the condition of Shri Dharam Singh Kaushik deteriorated and he was referred to AIIMS, New Delhi, where he died on 7.9.2001.

2. Petitioner sought reimbursement of the cost of medicines as incurred. Petitioner submitted the bills in the prescribed proforma duly supported with the prescriptions. The Medical Officers of the hospitals issued essentiality certificates wherein it is certified that the medicines prescribed were essential for the recovery and prevention of serious deterioration in the condition of the patient. Further that the medicines were not stocked and were not available. The purchase of medicines and the treatment given has been duly certified by the three hospitals with essentiality certificates.

3. It may also be noted that the petitioner vide order dated 2.8.2001, was permitted to file an additional affidavit with regard to its contention that the medicines were neither available in the stock of hospitals nor the hospital could make them available by purchasing it and as such there was no option for the petitioner's family but to purchase the medicines from the market and submit the bills for the same for reimbursement.

4. It may also be noted that the hospitals are not private hospitals and happen to be either the Government hospitals or those recognised and approved by the Government and MCD as referral hospitals.

5. The respondent has denied the reimbursement relying on a term of the office order which is as under:-

"However, in no case reimbursement of expenditure incurred by a pensioner on treatment will be made."

This brings into fore the question of validity of the above provision. MCD on 3.10.1994 had issued an office order setting out the policy for medical treatment of its employees and retired employees, including retiring and retired employees. The office order is a short one and is reproduced in extenso:-

Dated 3.10.1994

No: F.15(138)/CED(SU)/94/23702-73

OFFICE ORDER

The Special Officer exercising powers of the Corporation has vide decision No. 4128/GW/Corp. dated 27.9.1994 approved for providing medical facilities to the pensioners of Municipal Corporation of Delhi by the Corporation to the following extent:-

i) All the medicines etc. including diagnostics facilities as is required for the treatment of the patient (Pensioners and their families) will be provided to them free of charge at the Hospitals/Dispensaries.

ii) The pensioners and their families when referred from the dispensaries to the hospitals for specialised treatment will be attended to on priority basis. Such medicines etc. which are considered essential for the treatment, if not available, will be purchased by the hospital authorities and provided to the patients within a reasonable time.

iii) In order to identify the pensioners for providing medical facilities, they will be issued Identity Cards by the Department from which one has retired or will be retiring.

2. However, in no case reimbursement of expenditure incurred by a pensioner on treatment will be made."

6. Mr. Neeraj Kaul, Senior Advocate, who had been appointed amices curiae in this case, assailed Clause 2 of the Policy as being arbitrary, irrational and violative of Articles 14 and 21 of the Constitution of India. He submitted that under the policy of the respondent/MCD had a clear obligation, firstly to provide free medical aid and free medicines from the dispensary/hospitals to its employees including retired employees. Secondly, if the medicines were not available, the hospitals were obliged to purchase them within a reasonable time. In the instant case, it is not disputed that the medicines required for treatment were neither available nor they were procured within a reasonable time. In these circumstances, Clause 2 of the Policy, which provides that there shall be no reimbursement of expenditure incurred by the petitioner on purchase of medicines of treatment was wholly arbitrary. It runs counter to the policy and objective of the MCD to provide medical aid to its employees. It seeks to negate the obligations of the MCD and is contrary to the terms of the office order. It was urged that Clause 2, imposing a blanket ban on reimbursement of cost of medicines, would contravene the right to self preservation and life.

Learned counsel for the petitioner placed reliance on Surjit Singh v. State of Punjab and Ors. to urge 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. It was fundamental in nature, sacred, precious and inviolable. The Supreme Court had also approved the observations of the Punjab High Court in Surjit Singh v. State of Punjab and Ors., to which I shall advert later.

Mr. Neeraj Kaul also placed reliance on State of Punjab and Ors. v. Mohinder Singh Chawla and Ors. , to urge that the right to live is integral to the right to life and the state has a constitutional obligation to provide health services. To similar effect of the observations by the Supreme Court in State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors., where the court while upholding the right of the government to formulate a medical policy and alter it depending on changed circumstances emphasized on the right of a citizen to live under Article 21 of the Constitution of India the obligation of the state, in this regard being further reinforced by the primary duty under Article 47 to secure health to its citizens.

7. Mr. Navin Chawla in opposition to writ petition submitted that it was not open for the petitioner to claim a benefit under one part of the office order and not accept the restriction or the bar contained in the remaining part. He submitted that the office order/policy had to be read as a whole. The petitioner cannot rely on certain parts of the policy to seek benefit and then seek to be absolved from the provision, which contains a bar on reimbursement. He submitted that policy offered certain benefits and Clause 2 restricts those benefits. He submits that there is a rationale for making such a provision. The respondent in its wisdom and as a matter policy have undertaken the obligation to provide medical aid and facilities as available in the hospitals and dispensary. However, for economic and administrative reasons, it was decided to put a ban on reimbursement of expenses incurred by employees on purchasing medicines from outside. He relied on the judgment of the Supreme Court in Ram Lubhaya's case (Supra) to urge that such a restriction was justified considering the economic constraints and it was a valid exercise of policy making. Further that this court would not entertain a challenge to the said policy. He submits that even in Ram Lubhaya's case right to revise the policy of reimbursement of medical expenses and confining them to the rates of AIIMS hospital, has been upheld.

8. Having noted the submissions on the part of the petitioner and the amices curiae as also of the respondent, the legal position which emerges based on the judgments of the apex court may be noted:-

(I)(a) The right of a citizen to live under Article 21 casts a corresponding duty and obligation on the State, reinforced under Article 47, to secure health to its citizen 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 for which an employee looks for at another hospital.

(b) The state can neither urge nor say that it has no obligation to provide medical facility. If that were so, it would be ex-facie violative of Article 21.

(c) The right of the State to change its policy from time to time under changing circumstances is neither challenged nor could it be. It is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. No state or country can have unlimited resources to spend on any of its projects that is why it only approves the projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. (State of Punjab and Ors. Ram Lubhaya Bagga and Ors.-Supra).

(II) Right to live is integral to the right to life and state has a constitutional obligation to provide health facilities. In State of Punjab and Ors. v. Mohinder Singh Chawla and Ors. the Supreme Court observed as under:

"If the government servant has suffered an ailment which requires treatment at a specialized approved hospital and on reference whereat the government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State of the employee."

(III) Self preservation of ones life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, which was fundamental in nature, sacred, precious and inviolable. (Surjit Singh v. State of Punjab and Ors. Supra).

The Supreme Court also approved the observations of the Punjab High Court in Sadhu R. Pall v. State of Punjab reported at 1994(1) SLR 283, where the court observed as under:-

"The respondents appear to have patently used excusals in refusing full reimbursement, when the factum of treatment and the urgency for the same has been accepted by the respondents by reimbursing the petitioner the expenses incurred by him, which he would have incurred in the AIIMS, New Delhi. We cannot lose sight to factual situation in the AIIMS, New Delhi, i.e., with respect to the number of patients received there with heart problems. In such an urgency, one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some government medical institute. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved."

9. It would be seen from the foregoing that the right of a citizen to live, casts an obligation on the State to provide health care, which is reinforced under Article 47 of the Constitution of India. The right of the State of formulate a policy for provision of medical facilities and make changes therein depending upon the circumstances and economic constraints is recognised. The right of a citizen for self preservation and to take appropriate and timely decisions for provision of treatment and medicines as required in emergency is recognised.

10. Let me now analyze and consider the present case in the light of the foregoing judicial pronouncements and principles as enumerated. The petitioner being a retired employee was entitled to avail of medicines and diagnostic facilities, free of charge at the hospitals and dispensaries. The office order also provided for specialised treatment on priority basis from hospitals. It is not in dispute that in the instant case the treatment was obtained from the prescribed and recognised hospitals and dispensaries. This is apparent from the essentiality certificates issued by the Hindurao Hospital and the Post Graduate Medical Institute of Sciences, Rohtak, and the AIIMS. The question with which we are faced is of reimbursement of the cost of medicines prescribed by the Doctors of recognised hospitals, where the petitioner's deceased husband was receiving treatment. The medicines were not available in stock and were considered essential and required for treatment. The hospital and medical authorities had the obligation to purchase/provide the medicines within a reasonable time as per office order. Reasonable time would depend upon the exigency of requirement. In case it is an emergency, then the patient is certainly not expected to wait for a reasonable time as per the usual procedure. In such situations, the attendants of the patients or family members are not expected to follow the procurement procedure and are left with no option but to purchase the same. Reference is invited to the observations of the Supreme Court in Surjit Singh v. State of Punjab noted earlier. In the instant case, the hospital authorities have certified that the said medicines were not available and had recommended the bills for reimbursement. The respondents have not paid the same on account of Clause 2, I am of the view that Clause 2, which puts an absolute ban on reimbursement of expenditure incurred by a pensioner on treatment is arbitrary, irrational and liable to be struck down, as violative of Article 14 and 21 of the Constitution of India. The said clause is wholly inconsistent with other provisions and seeks to negate the obligation on the part of the MCD as provided for in the office order, namely to provide treatment and medicines free of charge and especially the obligation to purchase medicines, if not available in the hospital stock within a reasonable time. Once the obligation to purchase the medicines, not available in the stock and to provide them to the patient within a reasonable time is there, the said right cannot be taken away by providing a ban on reimbursement. The said clause is wholly arbitrary and irrational. Accordingly Clause 2 of the office order is struck down, in so far as it imposes a complete ban on reimbursement of medical expenditure. By striking down Clause 2 of the aforesaid office order, it should not be understood as whittling down the right of the respondents to frame or formulate a policy including one providing a restriction or ceiling on reimbursement of expenses as long as the said policy is not violative of Article 14 and 21 of the Constitution of India.

11. In view of the foregoing discussion, the writ petition is allowed. A writ of mandamus shall issue to the respondents to pay forthwith to the petitioner the sanctioned amount of Rs. 26,606/-. In case payment is not made within one month from today, the petitioner shall be entitled to interest @ 12% p.a. on the said amount.

Writ petition stands allowed in above terms.