Sh. Balram Sharma vs Union Of India & Anr.
2008 Latest Caselaw 941 Del

                 IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +WP(C) No.13740/2005

                                            Date of Decision: 04.07.2008


#Sh. Balram Sharma                  ....Petitioner
!                                   Through: Mr. J.P. Sengh,
                                    Senior Advocate with Ms. Iram Majid


                    Versus


$Union of India & Anr.              .....Respondents
^                                   Through Ms. Divya Chaturvedi

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.R. MIDHA

      1.Whether Reporters of Local papers may be allowed to
        see the Judgment?
      2.To be referred to the Reporter or not?
      3.Whether the judgment should be reported in the Digest?


A.K. SIKRI, J.

:

1. The petitioner seeks full reimbursement of the medical expenses

incurred by him while undertaking the treatment at Escorts Heart

Institute and Research Centre, New Delhi (hereinafter referred to as

the 'Escorts Heart Institute') from his employer Department of Tele-

communication, Government of India. He had sought this relief by

filing OA before the Central Administrative Tribunal, which has been

dismissed by the Tribunal vide its judgment dated 23.12.2004. Not

satisfied with the said judgment and maintaining hope to recover the

expenses incurred by him from his pocket, from the Government, he

has challenged the order of the Tribunal and wants that his prayer

made in the OA before allowed. This is the second round of litigation

which has come to this Court by means of the present writ petition.

His OA No.2175/2002 was earlier dismissed vide judgment dated

8.5.2003. He had filed writ petition challenging that judgment. The

said writ petition was dismissed of vide order dated 14.7.2004.

2. The circumstances in which the petitioner was to undergo the said

operation at Escorts Heart Institute, on the basis of which he claims

that he is entitled to full reimbursement of the expenses and not the

partial contribution from the employer, may first be recapitulated.

3. The facts unfolded in the petition are that the petitioner suffered a

heart attack in January 2000 while he was on official tour to Bhopal.

He was admitted to Ayushman Hospital in Bhopal for some time.

Thereafter, he came to Delhi and was examined by the doctors at the

All-India Institute of Medical Sciences (AIIMS) on 25.2.2000. After the

preliminary tests, AIIMS decided to take TMT test of the petitioner. It

took about one month when this test was conducted on 23.3.2000 on

the basis of which he was advised to undergo cardiology assessment of

his heart ailment. After receiving this advise, the petitioner wrote a

letter to his Department/respondent No.2 on 17.4.2000 explaining that

at AIIMS even the TMT test took one month due to heavy rush of

patients and his health was such that it was not possible for him to

wait for a long time. In these circumstances, he took permission to

take treatment from Escorts Heart Institute. By communication dated

28.4.2000 the respondent No.2 gave permission for treatment at the

Escorts Heart Institute. He may point out at this stage that the Escorts

Heart Institute is one of the recognized private hospitals as per

Memorandum dated 18.9.1996..

4. The petitioner, in these circumstances, got himself examined at the

Escorts Heart Institute where he was diagnosed a case of Triple Vessel

Disease with mild left ventricular disfunction. On this diagnosis, he was

advised to undergo open heart surgery and also the Carotid surgery,

which is a high risk surgery. The petitioner underwent the said surgery

and treatment at Escorts Heart Institute for which purpose the

respondent No.2 paid a sum of Rs.89,000/- to the said hospital as

advance on 4.6.2000. The surgery took place on 12.6.2000 and the

total medical expenses incurred by the petitioner on the said

treatment, as per the bills given by Escorts Heart Institute and other

medical bills for medicines etc. came to Rs.2,30,306/-. The petitioner

submitted all these bills along with the requisite certificates to the

respondent No.2 for reimbursement of the balance sum incurred by

him on his treatment. He was given another sum of Rs.41,612/-. Thus,

a total amount of Rs.1,30,612/- was reimbursed to the petitioner as

against Rs.2,30,306/-. As per the respondents, that was the only

amount which could be reimbursed as per the rules and therefore, the

respondents refused to make further payments. This led the petitioner

enter into protected communicated, which, however, did not yield any

results. Failing to get relief administratively, the petitioner approached

the Tribunal and filed the aforesaid OA, which has met the result

already indicated above.

5. Perusal of the judgment of the Tribunal would show that as per the

petitioner when he was permitted to get treatment at Escorts Heart

Institute by his employer, the employer is supposed to pay the entire

amount of the treatment. The petitioner had referred to the judgment

of a Division Bench of this Court in Sqn. Commander Randeep Kumar

Rana v. Union of India, CWP No.2464/2003 decided on 29.4.2004 as

well as the judgment of the Supreme Court in the case of State of

Punjab and Others v. Mohinder Singh Chawla, JT 1997 (1) SC 416 in

support of his submission.

6. On the other hand, the respondent had contended that the

reimbursement of medical expenses would be as per the CGHS Rules

which prescribes the approved rates fixed by the Ministry of Health

and Family Welfare (respondent No.1 herein) and not on the basis of

actual expenditure incurred. The respondents had placed reliance on

the judgment of the Supreme Court in State of Punjab and Ors. v. Ram

Lubhaya Bagga and Others, (1998) 4 SCC 117. The Tribunal, as is

obvious from the conclusion, accepted the plea of the respondents

herein. It distinguished the judgment in the case of Commandar

Randeep Kumar Rana (supra) on the ground that that was a case where

the child of the said petitioner had initially been treated at the NSG

Hospital and Safdarjung Hospital whereafter he was referred for

treatment at Escorts Heart Institute. On the other hand, the Tribunal

opined that in the instant case the treatment availed by the petitioner

at Escorts Heart Institute was entirely on his own volition and on his

giving undertaking that he would be bearing the difference of charges

of the hospital. The Tribunal also observed that AIIMS was competent

and right place for the petitioner to be treated, including carrying out

Open Heart Surgery where cases of this category come from different

parts of the country. Therefore, seeking reference from AIIMS to

Escorts Heart Institute was quite an unusual exception keeping in view

the expertise of AIIMS. Therefore, it was entirely on the personal

endeavour of the petitioner that he was allowed to go to Escorts Heart

Institute. The Tribunal further held that in view of the judgment of the

Supreme Court in State of Punjab & Others v. Mohan Pal, 2002 SCC

(L&S) 189, the beneficiary is entitled to reimbursement only at AIIMS

Hospital rates. Likewise, in State of Punjab v. Ram Lubhaya Bagga

(supra), the Supreme Court had held that State has right to fix the

package deal, which was not violative of Fundamental Rights and

Directive Principles and that every individual right has to give way to

right of the public at large. These are the reasons for dismissing the OA

of the petitioner by the Tribunal. Before us, arguments remain the

same which were advanced by the learned Tribunal.

7. Mr. J.P. Sengh, learned senior counsel appearing for the petitioner,

submitted that the Tribunal wrongly observed that going to Escorts

was the petitioner's own doing and it was unusual on the part of AIIMS

to refer the matter to the Escorts Heart Institute. His argument was

that the Tribunal did not consider the seriousness of the petitioner's

illness. When the AIIMS had advised that the petitioner is to undergo

cardiology assessment of his heart ailment after his TMT test, the

petitioner could not have waited for long. Getting such cardiology

assessment conducted at AIIMS would have delayed in view of heavy

rush of the patients. The AIIMS acknowledged this fact and that is the

reason it referred the petitioner to Escorts Heart Institute. Even the

respondent No.2 realised the seriousness of the petitioner's ailment

and therefore, it gave permission to the petitioner to get treatment at

Escorts Heart Institute. In view of these considerations, the judgment

of this Court in Commander Randeep Kumar Rana (supra) squarely

apply, was the submission of the learned counsel. He also referred to

number of cases whereby full reimbursement was given in such cases.

8. Learned counsel for the respondents, on the other hand, referred to

same judgments on which reliance was placed before the Tribunal in

rejecting the claim of the petitioner. Her submission was that the

petitioner could not ask for more than what he is entitled to, under the

rules more so when the petitioner had himself given an undertaking

that any extra expenditure incurred would be met by the petitioner

himself. It was only on this basis that he was given permission to get

treatment from Escorts Heart Institute. Therefore, he could not resile

from the said undertaking.

9. We have given our thoughtful consideration to the respective

submissions and have also gone through the various judgments cited

by the learned counsel for the parties. We may state at the outset that

we are at one with the learned counsel for the petitioner in so far as

necessity of treatment at Escorts Heart Institute is concerned. The

Tribunal did not perceive the illness with the sensitivity which it

deserved and very casually observed that he could have been treated

at AIIMS as well, which is a state-of-the-art hospital. Nobody disputes

the credentials of AIIMS. However, what is glossed over by the

Tribunal is that the petitioner had suffered the heart attack in January

2000 while in Bhopal and was admitted in the hospital at Bhopal where

he remained for some days. No doubt, in February he was examined

by the doctors at AIIMS. However, indubitably, AIIMS took almost one

month in conducting the TMT test itself. It was the basic test required

for a person suffering from heart ailment, that too when he had

suffered heart attack also in immediate past. On perusing the TMT test

report, the doctors at AIIMS themselves suggested that the petitioner

should undergo cardiology assessment. When the doctors suggested

cardiology assessment on the basis of TMT test was it proper for the

petitioner to delay such an assessment by waiting in queue at AIIMS or

was it necessary to have the said assessment done immediately?

Answer is obvious. No prudent person would like to wait. Nor the

doctor would suggest this. The doctors at AIIMS knew the harsh

reality, namely, it may take unduly long for the petitioner to have the

cardiology assessment at AIIMS. It is for this reason that they referred

him to Escorts Heart Institute. It is for same reason that the

petitioner's employer also gave permission to get treatment at AIIMS.

The test conducted at Escorts Heart Institute proved the worst fears of

the petitioner. On hindsight, one can say that delay in getting the

cardiology assessment might have proved fatal inasmuch as, after the

investigation the petitioner was diagnosed as a case of triple vessel

disease with mild left ventricular disfunction. The treatment suggested

by the doctors at Escorts Heart Institute further strengthens the plea of

the petitioner that immediate treatment was needed inasmuch as, he

was advised to undergo not only Open Heart Surgery but the Carotid

surgery as well, which is, concededly, treated as high risk surgery.

Advice of the doctors to undergo such a high risk surgery imminently

was a sufficient indicator of the seriousness of the ailment with which

the petitioner was suffering and immediate treatment which was

needed. After the petitioner has undergone the said surgery, which

was successful and he may be living normal life now, would not mean

that at the relevant time emergent steps were not required. What

would have happened had the petitioner not undergone cardiology

assessment immediately could be anybody's guess! We are,

therefore, of the opinion that it was an emergent situation in which the

petitioner needed diagnostic test and thereafter remedial surgeries

without any delay. Referral of the petitioner by the AIIMS to Escorts

Heart Institute for this purpose and permission of the respondent No.2

as well is to be understood in the aforesaid perspective. Once we

examine the matter in this hue, we find that this case is on parallel with

the case of Commander Randeep Kumar Rana (supra). Directing the

respondents to reimburse the full amount of medical expenditure

incurred by the petitioner in that case in the open heart surgery of his

son this Court had observed as under:-

"We have given our careful consideration to the arguments advanced by learned counsel for both the parties. It is not denied that the treatment taken at Escorts Hospital was pursuant to the recommendation made by the Safdarjung Hospital,

which is a Government Hospital. Naturally, when a small child is to be treated for Ventricle Septal Defect involving open-heart surgery, a specialized hospital and its services are required. Therefore, once the respondents themselves have recommended the treatment to be taken by the Escorts Hospital, they cannot deny the full reimbursement on the basis that the charges incurred by the petitioner over and above the package rate, which the respondents has agreed with the said hospital, cannot be reimbursed. At page 12 of the paper-book there is a letter conveying permission by the respondent to the petitioner to undertake specialized treatment from recognized private diagnostic centre. There is another letter of the respondent at page 22-23 of the paper-book in which it has been admitted that Escorts Heart Institute and Research Centre was also one of the hospitals which the petitioner was entitled for treatment. Now we come to the plea, which has been taken by the respondent in the counter affidavit. It has been contended in para 11 of the counter affidavit that it is the duty of the citizens to see and ensure that such recognized hospital do not charge excess of the package rates. How a citizen can ensure that a hospital does not charge over and above the package rate? The power to law down guidelines is with the respondent. A citizen is a mere spectator to what State authority do and decide. If the hospital has charged over and above the package rate, the respondent is under an obligation to pay such charge as the petitioner has incurred over package rates at the first instance and if in law State can recover from the hospital concerned, they may do so but they cannot deny their liability to pay to the Government employee who is entitled for medical reimbursement.

We do not see any merit in the submission of the respondent. We direct the respondent to reimburse

the full amount of Rs.2,09,501/- after taking into consideration the amount of Rs.1,42,736/- which has already been paid to the petitioner. The balance amount be reimbursed within a period of four weeks. Petition stands allowed. Rule is made absolute."

10.We do not dispute that the Supreme Court in the case of State of

Punjab & Others v. Mohan Pal (supra) as well as State of Punjab and

Ors. v. Ram Lubhaya Bagga (supra) has held that keeping in view the

aspect of limitations in regard to the capacity of the Government to

pay at the rates which are charged by the hospital and also the position

in regard to laying down guidelines on what should be the charges of

such hospitals so that they maintain a rational relationship with the

rates of AIIMS, it would be difficult to take a view that in cases where

treatment is availed at a hospital other than AIIMS, reimbursement

should be made at the rates charged by such private hospital without

causing strain on the ability of the respondents to pay. However, the

distinguishing feature in the present case is that Escorts Heart Institute

is on the panel of CGHS and is one of the recognized private hospitals

in view of Office Memorandum dated 18.9.1996. Again, it is not that

the petitioner wanted treatment at that hospital only and therefore,

went there at his own volition. Rather, he had initially gone to AIIMS.

He had to go to Escorts under emergent and compelling circumstances,

as narrated above. No doubt, before giving its consent to the

petitioner to get treatment from Escorts Heart Institute, the

respondent No.2 had taken from the petitioner in writing that over and

above the admissible expenses to be borne by the Government,

balance amount would be paid by the petitioner from his own pocket.

However, under the circumstances, we are inclined to agree with the

submission of the petitioner that he had to give such a statement

under compelling circumstances and against his wishes, as otherwise

the respondent No.2 was not giving its consent. When a person is

faced with life and death situation, it is not difficult to contemplate

that he would have given letter to this effect involuntarily and under

compulsion. In our opinion, he should not be made to suffer because

of this reason when he is otherwise found entitled to full

reimbursement.

11.It is not in dispute that keeping in view the limited financial resources,

it is legitimate for the Government to fix the limits of reimbursement.

But at the same time it is to be borne in mind that when the

Government takes a particular hospital on its panel and approves the

same for the purposes of treatment of its employees, it is the duty of

the Government to ensure that such hospitals do not charge over and

above what Government wants to pay. Reason is simple. In so far as

the employee is concerned, he is entitled to full reimbursement of

expenditure incurred by him on his treatment in a CGHS recognized

private hospital. Health insurance for its employees is the guarantee of

the Government and the Government has to adhere to the same. It is

for this reason that the Government should ensure that private

hospitals on their panel charge the same amount which the

Government reimburses.

12.While dealing with this problem and dilemma, a learned Single Bench

of this Court in the case of Sh. V.K. Gupta v. Union of India and Anr.,

2002 III AD (Delhi) 1054 observed as under:-

"7. The cost of medical treatment has been rising over a period of time and respondents cannot deny the actual reimbursement from a Hospital recognized by them for treatment on the basis of applying the rates as per the previous Memorandum which were intended for a period of two years and were subject to revision. Reference is also invited to a decision of a Coordinate Bench of this Court in Civil Writ No.5317/1999 titled M.G. Mahindru vs. Union of India and another decided on 18.12.2000 wherein the learned Single Bench relying on the decisionis of Narender Pal Singh Vs. Union of India and others 79(1999) DLT 358 as well as State of

Punjab & others Vs. Mohinder Singh Chawla etc. JT 1997(1) SC 416 directed reimbursement of the full expenses incurred. In the instant case, it is not in dispute that the said facility or treatment was not available at CGHS or RML Hospital and the petitioner was referred after due permission to a speciality hospital duly recognized by the respondents. The respondents cannot, therefore, deny full reimbursement of the petitioner by placing reliance on an earlier memorandum of 1996 wherein the rates given were applicable and intended for a period of two years on the ground that the said rates have not been revised.

8.The Supreme Court had duly noted in State of Punjab and others Vs. Mohinder Singh Chawla etc. (supra) that "the right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities. 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 to the employee."

9. Reference may also be usefully invited to the last Office Memorandum bearing F.No. Rec- 24/2001/JD(M)/CGHS/DELHI/CGHS(P),Government of India, Ministry of Health & Family Welfare dated 7.9.2001. The said circular reconsidered the question of recognition of private hospitals, diagnostic centres under CGHS scheme for specialized treatment as well as fixing of package ceiling rates. The salient terms as per the Memorandum is that the recognized hospital is obliged not to charge more than the package rates

from the beneficiary.

10. The only submission by learned counsel for respondent Ms.Pinky Anand was that the respondents had reimbursed the rates as per the circular of 1996 and in all other cases reimbursement had only been done when ordered by the Court. This is hardly a satisfactory state of affair. Respondents are required to be more responsive and cannot in a mechanical manner deprive an employee of this legitimate reimbursement, especially on account of their own failure in not revising the rates. In view of the foregoing discussion and the judicial pronouncements as noted above, the petitioner is entitled to full reimbursement of the expenses incurred at the Escorts Heart Institute & Research Centre, New Delhi where he was duly referred for specialized treatment by the respondents after according permission. Escorts Heart Institute & Research Centre being a recognized hospital for this purpose, the petitioner is entitled to be reimbursed the actual expenses, as incurred. A writ of mandamus shall issue to the respondents who shall pay Rs.70,155.85 to the petitioner within four weeks from today, together with costs assessed at Rs.1,500/-."

13.It is clear from the above that this Court did not accept the plea of the

respondents that it could deprive an employee of his legitimate

reimbursement specially on account of its own failure in not revising

the rates. We may also note that the Court has taken consistent view

in this behalf in various judgments, some of which are as under:-

i. V.K. Abbi Vs. CGHS, WP(C) No.6658/2002 decided on 4.4.2003.

ii. Prithvi Nath Chopra Vs. UOI, WP(C) No.770/2003 decided on 15.4.2004.

iii. Squ. Cdr. Randeep Kumar Rana Vs. UOI, CWP No.2464/2003 decided on 29.4.2004.

iv. S.K. Gaur Vs. UOI, WP(C) No.3146/2003 decided on 18.1.2005.

v. T.S. Oberoi Vs. UOI reported as DCLR 2002 (II) Delhi

vi. Union of India Vs. R.K. Bhatia, WP(C) No.8846/2005 decided on 23.5.2005

vii. S.K. Taneja Vs. UOI, WP(C) No.13417/2004 decided on 9.1.2006.

14.We are, therefore, of the view that in balancing the interest of the

Government, on the one hand, which is limited to financial resources

and its paying capacity and on the other hand, it has duty towards its

employees to reimburse the medical expenses, a balance can be struck

by directing the respondent/Government to reimburse medical

expenditure in full when the following conditions are met:-

a) The private hospital where the treatment is taken by a Government

employee is on the approved list of the Government.

b) The illness for which the treatment is required is of emergent

nature which needs immediate attention and either the

Government hospitals have no facilities for such treatment or it is

not possible to get treatment at Government hospital and it may

take unduly long for the patient to get treatment at Government

hospital.

c) The concerned employee/patient takes permission to get treatment

from the Government hospital, which is granted and/or referred by

the Government hospital to such a private hospital for treatment.

15.Since all these conditions are met in the present case, we allow this

writ petition, set aside the judgment of the Tribunal and direct the

respondents to pay balance amount of Rs.99,694/- to the petitioner

within four weeks. In the circumstances of this case, we also grant cost

of Rs.10,000/- to the petitioner.

                                                         (A.K. SIKRI)
                                                           JUDGE




July 04, 2008                                           (J.R. MIDHA)
HP.                                                         JUDGE