Lily Mazumdar vs The State Of Assam And 3 Ors
2021 Latest Caselaw 820 Gua

                                                                  Page No.# 1/8

GAHC010146452018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/4492/2018

         LILY MAZUMDAR
         WIFE OF LATE PHANIDHAR CHOUDHURY, R/O. HOUSE NO. 31, UJJAL
         NAGAR, NEAR P.H.E. OFFICE, HENGRABARI, P.O. HENGRABARI, P.S.
         DISPUR, DIST. KAMRUP(M), ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TOT HE GOVT. OF ASSAM,
         SECRETARIAT ADMINISTRATION (ESTT.) DEPTT., DISPUR, GUWAHATI-
         781006, KAMRUP METROPOLITAN DIST., ASSAM.

         2:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
          SECRETARIAT ADMINISTRATION (ESTT.) DEPTT.
          DISPUR
          GUWAHATI-781006
          KAMRUP METROPOLITAN DIST.
         ASSAM.

         3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HEALTH DEPTT.
          DISPUR
          GUWAHATI-781006
          KAMRUP METROPOLITAN DIST.
         ASSAM.

         4:THE DIRECTOR OF HEALTH SERVICES
         ASSAM
          HENGRABARI
          GUWAHATI- 781006
          KAMRUP METROPOLITAN DIST.
         ASSAM
                                                                                  Page No.# 2/8


Advocate for the Petitioner   : MR. M CHOUDHURY

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

05.03.2021

Heard Mr. M. Mahanta, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned counsel for the respondent nos.1 and 2 and Mr. D. Upamanyu, learned counsel for the respondent nos.3 and 4.

2. The petitioner's prayer is for a direction to be issued to the respondents to grant ex- post facto approval for the treatment given to the petitioner's husband at Dispur Hospital at Guwahati, which is not a Govt. approved referral/empanelled hospital and for reimbursement of the medical expenses incurred by the petitioner for treatment of her husband who eventually died in the hospital.

3. The petitioner's case in brief is that due to a medical emergency, which necessitated the immediate hospitalization and treatment of the petitioner's husband, the petitioner's husband was admitted to Dispur Hospital on 03.11.2016, as it happened to be the nearest hospital from the residence of the petitioner. The petitioner's husband was put on ventilator and eventually expired in the hospital on 15.11.2016, while undergoing treatment. The petitioner approached the authorities for reimbursement of the medical expenses incurred in the treatment of her husband which amounted to Rs.2,95,500/-. However, the respondent authorities rejected the claim of the petitioner on the ground that no approval had been given for treatment of the petitioner's husband in a non-empanelled hospital and that medical reimbursement could only be considered if the treatment was undertaken in an empanelled Page No.# 3/8

hospital, recognized by the Government of Assam.

4. The petitioner's counsel submits that the petitioner's husband was working as Sr. Accounts Assistant in the Secretariat (Civil) Department, Government of Assam prior to his retirement. He submits that in terms of the Notification dated 15.11.2008 issued by the Family & Health Welfare Department, Government of Assam, pensioners are entitled to medical reimbursement. He also submits that there being an acute medical emergency, there was no time to find out which hospital was empanelled and recognized by the Government of Assam, to which the petitioner's husband could have been admitted. Also, there was no time to seek approval for treating the petitioner's husband in a non-empanelled hospital. As such, the petitioner's husband was admitted to the nearest hospital to save his life. He submits that a direction should be issued to the authorities to reimburse the medical expenses incurred on the petitioner's husband after due verification of the medical bills and by giving expost facto approval for the treatment given to the petitioner's husband in Dispur Hospital.

5. Mr. A. Phukan, learned counsel for the respondent nos.1 and 2 and Mr. D. Upamanyu, learned counsel for the respondent nos.3 and 4 submit that medical reimbursement can be availed of only if the patient is admitted to an empanelled hospital recognized by the Government of Assam. As the petitioner's husband was not admitted to an empanelled hospital and no approval had been given by the Government to have the petitioner's husband admitted to Dispur Hospital, the petitioner's medical bill cannot be reimbursed.

6. I have heard the counsels for the parties.

7. The admitted facts of the case is that the petitioner's husband was admitted to Dispur Hospital on 03.11.2016 and he expired in the hospital on 15.11.2016, while undergoing treatment. The fact that the petitioner's husband was having a medical emergency is apparent, as he died while undergoing medical treatment.

Page No.# 4/8

8. In the case of Uttam Das vs. State of Assam and Others, reported in 2015 (2) GLT 197, this Court was seized of a similar case, wherein the petitioner who was in a very critical condition was admitted to the nearest hospital which was not an empanelled hospital recognized by the Government of Assam. This Court held that in a case of acute medical emergency, necessitating immediate hospitalisation of patient, the Medical Referral Board may not have the occasion to examine the claim of the patient for referral to private/Government hospital. To deal with the situation involving extreme emergency, Rule 6(c) of the Assam Medical Attendance Rules 2008 visualises consideration of a claim for medical reimbursement after he obtains treatment without referral.

9. This Court in the case of Uttam Das Vs. State of Assam & Ors. (Supra) further held that Rule 19 (ii) of Assam Medical Attendance Rules 2008 provides that nothing in the Rules shall be deemed to prevent the Government from granting to a Government servant any relief relating to treatment, attendance and journey for the purpose of treatment, which is not specifically authorised under the Rules. Thus, the Government has the power to grant medical reimbursement even in a case where hospitalization and treatment was done in a hospital, which was not a referral hospital. It accordingly directed the State respondents to make payment of the medical bills of the petitioner as there was no dispute to the fact that there was a medical emergency, which necessitated hospitalization and implantation of a pacemaker on the petitioner therein, besides they not having doubted the genuineness of the claim made by the petitioner.

10. In the case of Shiva Kant Jha vs. Union of India, reported in (2018) 16 SCC 187, the Apex Court has held that 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 and once it is established that the treatment had actually taken place and is supported by records duly certified by the doctors of the hospital concerned, the claim cannot be denied on technical grounds. It also held that though the claim of the respondent State that the rates were exorbitant in the non-empanelled hospitals, as compared to facilities Page No.# 5/8

at the CGHS, it could not be denied that the petitioner was taken into hospital under emergency conditions for survival of his life, which requirement was above sanction and treatment in empanelled hospitals. The Apex Court thus held that the treatment of the petitioner therein in a non-empanelled hospital was genuine because there was no option left at the relevant time due to emergency situation. The respondent State was then directed to pay the balance amount of the medical reimbursement to the petitioner in the above case.

11. Paragraph 17, 18 and 19 of the judgment of the Apex Court in Shiva Kant Jha (supra) is re-produced below :

"17. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to 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 scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Specialty Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Specialty Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in 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 Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court.

18. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it 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 doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates Page No.# 6/8

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 concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.

19. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only."

12. In the case of Durgeswar Saikia vs. Union of India and Others, reported in (2013) 5 GLR 380, this Court was seized of a matter wherein the petitioner's wife, who was suffering from a serious decease was treated in a hospital, which was not empanelled by the Government. The authorities refused to reimburse the expenses incurred for treatment of the petitioner's wife. This Court directed the respondents to reimburse the petitioner and held at paragraph 12 as follows:

"12. In the present case in hand, there was no approval obtained from the CMD but considering the case of the petitioner, whose wife was suffering from a serious disease, i.e. "Myathemia Grasis-II), probably there was not time for the petitioner to obtain the required approval from the CMD since the petitioner's first and foremost duty was to save his wife's life. To save one's life is concomitant of the right to life enshrined in Article 21 of the Constitution of India. There is no reason as to why the NHPC authority under whom the petitioner was serving at the relevant time would not bear the expenses incurred for the treatment of his wife, who eventually died on 24.10.2002, more so, the authority could have granted ex post facto approval for treatment of the petitioner's wife considering the seriousness of the disease. Though it is a fact that the petitioner's wife was not treated at an empanelled hospital run by the Government, Railway, public Sector Undertaking or local Government authorities as per policy decisions of the NHPC for the purpose, but the principle of self preservance as enumerated by the Supreme Court in the case of Sujit Singh (supra) would override this policy and it would be in just on the part of the authority to refuse to reimburse the expenses incurred by the petitioner for the treatment of his wife, at least to the extent as is permissible under the extant Rules/policies."

13. On a perusal of the pleadings of the writ petitioner and the State respondents, this Court finds that there is no dispute with regard to the fact that the petitioner's husband was admitted into Dispur Hospital and had expired 12 days later in the Hospital. There is also no dispute with regard to the Page No.# 7/8

genuineness of the medical claim made by the petitioner. The only ground for rejection of the petitioner's claim by the respondents is that Dispur Hospital was not an approved referral/empanelled hospital as per the Assam Medical Attendance Rules, 2008 (herein referred to as a 2008 Rules). Further, as per Rule 6 (c) of the 2008 Rules, where a patient is treated without a referral and makes a claim to the department, the concerned department has to refer the matter with a specific recommendation to the Health & Family Welfare Department within a period not exceeding 45 days.

14. In the present case, no claim had been made by the petitioner's husband to the concerned Administrative Department and the Administrative Department in turn did not make any claim to the Health & Family Welfare Department within the 45 days period provided in Rule 6 (c) of the 2008 Rules for obvious reasons. The facts of the case show that the petitioner's husband died within 12 days of his admission into Dispur Hospital. As such, the pensioner's husband who expired, could not have made a claim to the Administrative Department and in turn, the Administrative Department did not make a claim to the Health & Family Welfare Department. On considering the above, the delay in making the claim for medical reimbursement by the petitioner, who was the wife of the retired Govt. servant could not be denied only due to a technicality.

15. The stand taken by the State respondents that a Government servant, retired or otherwise would be entitled to medical reimbursement only if he is treated in an approved referral/empanelled hospital or if the person has taken approval for treatment in a non referral/empanelled hospital by the Government cannot be faulted. This would keep a check on false claims and ensure that the Government is not cheated due to a myriad of reasons. On the other hand, due to emergency situations, where there is no time to apply for an approval to be treated to a non referral/empanelled hospital, in emergency situations, the sick or injured person have to be treated in the nearest hospital available to preserve one's life. For example, if a person becomes unconscious due to a motor vehicle accident and he is taken to a non referral/empanelled hospital, which treats him till he regains his consciousness and health, would it be fair and reasonable to deny the said person his claim for medical reimbursement on the ground that he should have first taken the approval of the Government for treatment in a non referral/empanelled hospital. Similarly, when a person is having a heart attack or some other severe medical emergency, which requires immediate hospitalization to save one's life at any hour of the day or night, would it be reasonable to expect that the person should first apply for and obtain approval from the Government to be treated in a non referral/empanelled hospital Page No.# 8/8

approved by the Government, so that his medical expenditure can be reimbursed. As such, though in normal circumstances, medical reimbursement can be denied to Government servant who do not take treatment in approved referral/empanelled hospitals, exceptions would have to be carved out, depending upon the facts and circumstances of each case. The present case, in the opinion of the Court would also have to be considered as an exception to the Rule that prior approval for treatment to a non referral/empanelled hospital should be obtained from the Government. Further, this Court is of the view that the stipulation of 45 days required in Rule 6 (c) of the 2008 Rules cannot be a bar in this case, to deny medical reimbursement to the petitioner. Rule 19 (ii) can be applied for medical reimbursement on the expenses incurred on treating the petitioner's husband.

16. On considering the fact that the petitioner's husband had been admitted to Dispur Hospital due to acute medical emergency, due to which he succumbed 12 days later, this Court is of the view that as there was no time to apply for approval from the authority to have the petitioner's husband admitted to a non referral/empanelled hospital. Keeping in view the facts and circumstances of the case and the law laid down by this Court and the Apex Court, this Court is of the view that the medical expenses incurred for treating the petitioner's husband cannot be denied by the respondents. Accordingly the respondents are directed to re-consider the case of the petitioner, by granting ex-post facto approval for the treatment given to the petitioner's husband at Dispur Hospital and thereafter pay/give medical reimbursement to the petitioner on due verification. The entire exercise should be concluded within a period of 3 (three) months from the date of receipt of a copy of this order.

17. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant