Gujarat High Court

Union Of India vs Simon Makwana S/O Premabhai ... on 5 August, 2021

Bench: A. P. Thaker

     C/SCA/8962/2020                             JUDGMENT DATED: 05/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8962 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI Sd/-

and
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-

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1    Whether Reporters of Local Papers may be allowed                 No
     to see the judgment ?

2    To be referred to the Reporter or not ?                          No

3    Whether their Lordships wish to see the fair copy                No
     of the judgment ?

4    Whether this case involves a substantial question                No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                           UNION OF INDIA
                                Versus
                SIMON MAKWANA S/O PREMABHAI MACKWANA
================================================================
Appearance:
for the Petitioner(s) No. 4
MS ARCHANA U AMIN(2462) for the Petitioner(s) No. 1,2,3
SUNITA S CHATURVEDI(2572) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 05/08/2021

                            ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE A. P. THAKER)

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

1. RULE. Ms.Sunita Chaturvedi, learned counsel waives

service of notice of rule on behalf of the respondent. With the

consent of learned counsel for both the sides, the rule is fixed

forthwith.

2. This petition has been filed by the petitioners under Articles

226 and 227 of the Constitution of India for the following

prayers:-

a] a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the impugned order dated 3/3/2020 (Annexure I);

b] pending admission and final hearing of this petition kindly stay the operation and implementation and execution of the impugned order dated 3/3/2020 (Annexure I);

c] grant such other and further relief as may deem fit and proper in the interest of justice;

3. Short facts of the present case is that respondent herein

has filed Original Application No.516 of 2018 on the ground that

due to critical condition of his wife, she was admitted in the

private hospital and he made claim of reimbursement of medical

expenses vide letter dated 15.06.2018 before petitioner no.4

which came to be rejected by the competent authority. The

present petitioners have contested the same by filing written

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

statement therein and contended that as per the policy of the

railway, there is no provisions for referring the case of the

respondent to the other hospital. It is also contended that as the

patient has refused to take treatment from the Railway Hospital

and the respondent herein has taken his wife to the private

hospital, he is not entitled to get any reimbursement. It is also

contended that the respondent's wife was examined by the

Railway Hospital's Doctor and advised for admission. However,

the respondent took away his wife to the private hospital at his

own responsibility. It is also contended by the petitioners that the

Railway Hospital has ICU with all latest facilities and able to

handle such critical cases and, therefore, the claim of the

respondent came to be rejected by the competent authority as it

was not the case of the emergency. It is also contended that

there is procedure and guidelines of the Railway Board. On all

these grounds, the petitioners have prayed to reject the Original

Application.

4. After considering the rival contentions, the learned Central

Administrative Tribunal has, vide its order dated 03.03.2020,

passed the following order:

"In view of the factual and legal scenario, discussed

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

above it deems just and proper to direct the respondent to examine the entire claim of the applicant in accordance with the CGHS rates and after adjusting Rs.2,85,755/- (Rs.two lac eighty five thousand seven hundred & fifty five) which has been paid by the Insurance Company, to pay, without interest, the remaining amount to the applicant within a period of 30 days from the date of receipt of a copy of this order. Ordered accordingly. It is also directed that in case, the amount so calculated is not reimbursed to the applicant within said stipulated period of 30 days, respondents shall also be liable to pay interest to the applic ant @ 10% per annum for the period of delay."

5. Heard Ms.Archana Amin, learned counsel for the petitioners

and Ms.Sunita Chaturvedi, learned counsel for the respondent.

6. Ms.Archana Amin, learned counsel for the petitioners would

submit that the learned Tribunal has committed serious error of

facts and law in issuing such direction as there are special rules

framed by the Railway Board for granting reimbursement of the

medical claim. According to her submissions, the CGHS Rules are

not applicable to the Railway employees. She would submit that

the competent authority has rejected the claim of the respondent

herein on the basis of it's policy wherein it is specifically provided

that only in the case of "Emergency", railway beneficiary may

take treatment in the private hospital. She has invited our

attention to the instructions dated 31.01.2017 issued by the

Railway Board regarding reimbursement of the medical expenses

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

procedure. She would also submit that in the present case, the

wife of the respondent was having some gynecology problem

and, therefore, it is not covered under the "Emergency" clause as

enumerated in communication dated 31.01.2007. She would

submit that in the present case, at the time bringing wife of the

respondent in the Railway Hospital, she was diagnosed with

Pyometra with Septic Shock with Respiratory failure.

6.1 Further, Ms.Archana Amin, learned counsel for the

petitioners would submit that the wife of the respondent was

given treatment in the said hospital for two days. She would also

submit that earlier the respondent's wife was admitted in the

hospital on 27.11.2017 and she was discharged on 29.11.2017 on

account of transfer to other hospital. She would submit that at

the time of discharge from the Railway Hospital, she was

conscious. She would submit that at the time of admission on

29.11.2017 at 5.30 p.m. in Railway Hospital, she was advised to

admit in the hospital, but the respondent himself took away his

wife to some other private hospital on his own responsibility.

While inviting attention of the Court to the medical papers of the

private hospital i.e. Sunshine Global Hospital, she would submit

that at the time of admission, the status of the patient was stable

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

and conscious and on physical examination was normal. She

would submit that patient was operated on 06.12.2017 and she

was kept in ICU and subsequently, she was shifted to the ward for

further management. She would further submit that since this

was not a case of "Emergency" and it was not fallen within the

criteria of the scheme of the Railway Administration, the claim of

reimbursement of the medical expenses was rightly rejected by

the competent authority. She would submit that the learned

Tribunal has not considered all these aspects of the matter and,

hence, erroneously passed the impugned order. She would

submit that the impugned order of the learned Tribunal is

perverse one and not sustainable in the eyes of law. She prayed

to allow the present petition by quashing and setting aside the

impugned award.

7. Per contra, Ms.Sunita Chaturvedi, learned counsel for the

respondent would submit that the wife of the respondent was

suffering from Pyometra with Septic Shock with respiratory failure

and due to that, she was taken to the private hospital. She would

submit that there was no proper treatment for gynecology

problem of the wife of the respondent and, therefore, he has

shifted his wife to the private hospital. She would submit that

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

considering medical papers, it appears that it is the case of

"Emergency" which also falls within the definition of "Emergency"

as reflected in the alleged scheme of the Railway Administration.

She would submit that the learned Tribunal has considered each

and every aspects of the case and has rightly passed the

impugned order which is sustainable in the eyes of law. She

prayed to dismiss the present petition.

8. Having considered the contentions of the learned counsel

for respective parties and affidavit-in-reply filed by the

respondent and the affidavit-in-rejoinder filed by the petitioner

and also the impugned order of the learned Tribunal as well as

materials placed on record, it is an admitted facts that at the

relevant time, initially, the respondent brought her wife for

treatment before the Railway Hospital and, thereafter, at his own

responsibility, he has shifted his wife to the private hospital at

Sunshine Global Hospital where she has succumbed to her illness.

It is also an admitted facts that the respondent has placed his

claim of reimbursement of the medical expenses which came to

be rejected by the competent authority on the ground that the

claim is not admissible as per the Railway Guidelines as there

was not a case of emergency.

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

9. At this juncture, it is worthwhile to refer to the guidelines of

the Railway which reads as under:-

No.20051H16-4/Policy-II New Delhi, dated : 31.01.2007

The General Managers, All Indian Railway / Production Units.

Director General, R.D.S.O., Lucknow.

Sub: Reimbursement of medical expenses- procedure of disposal.

*******

The issue of bringing in objectivity, consistency and trans- parency in disposal of reimbursement cases, where the treatment has been taken in emergency without consulta- tion with the Authorized Medical Officer, has been under consideration of the Board.

The Railway Board after thorough review of the whole sub- ject of reimbursement has taken the following decisions which are to be implemented with immediate effect.

Any instructions on this subject as available in IRMM 2000 or any office order issued prior to this office order and will stand modified. Accordingly.

I. The cases to be considered for sanction of reim- bursement claim

To provide proper medical treatment, the Indian Railway Health Care Delivery system has 121 number of Railway ,Hospitals and 586 No. of Railway Health Units es- tablished all over India. In addition to this, all Govt. Hospi- tals and more than 115 private hospitals all over the coun- try have been recognized to provide necessary medical treatment to Railway beneficiaries.

As per extant rules, a railway beneficiary must report to Railway Medical Officer for his/her and dependents' medi- cal treatment. The Authorized Medical Officer will make necessary arrangements for medical treatment through Railway Hospital / Govt. Hospital / Pvt. Recognized Hospital. In exceptional situations, CMDs of Zonal Railways can ob- tain special permission from Railway Board for treatment in

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

any Private Hospital on case to case basis. Hence, there is no scope available for any railway beneficiary to go to any private hospital himself/herself or their dependents on their own volition, except in case of real emergency situation.

"Emergency" shall mean any condition or symptom result- ing 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 ex- amples are- Road accidents, other types of accidents, acute heart attack etc. Under such conditions, when the Railway beneficiary feels that'there is no scope of reporting to his/her authorized Railway Medical Officer and avails treatment in the nearest and suitable private Hospital, the reimbursement claims are to be processed for sanction, af- ter the condition of the emergency is confirmed by the au- thorized Railway Medical officer ex-post facto.

10. Thus, any condition or symptom resulting from any cause

which may arise suddenly and if not treated at the early

convenience, the same may be detrimental to the health of the

patient or may jeopardize the life of the patient will be an

emergency. The example provided in the aforesaid provisions is

only some of the causes. But it is not exhaustive as the word

"etc" is used. This suggests that the instances provided therein is

only an example. Therefore, there may be another occasions

which may be an emergency within the meaning thereof.

11. Considering the medical papers, it clearly transpires that

the wife of the respondent was brought in the Railway Hospital on

29.11.2017 at 5.30 p.m. with an endorsement that it was a case

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

of Pyometra with Septic Shock with Respiratory failure. Further, in

the column of Diagnosis, the following facts has been shown

"Septicemia with Septic Shock with Multi Organ Dysfunction with SBP with Pyometra"

11.1 It appears from the record that the wife of the respondent

has, ultimately, died on 01.01.2018 in the hospital.

11.2 Thus, considering this medical history, it clearly transpires

that it falls within the term "Emergency" as provided in the

guidelines of the Railway Board as referred to hereinabove.

13. In view of the aforesaid facts, the case of the respondent

clearly falls under the guidelines issued by the Railway Board.

However, the competent authority of Railway Board has not

considered this fact of "Emergency" of the treatment of the

respondent's wife in its proper perspective.

14. It appears from the communication dated 27.06.2018 that

the claim for reimbursement of the medical expenses incurred by

the respondent for the treatment of his wife was declined on the

ground that the emergency of the treatment was not established.

Thus, the basis of rejection of the claim of reimbursement of the

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

medical expenses incurred by the respondent is only on the

ground of non-existence of the emergency for treatment.

However, on perusal of the medial papers, it clearly transpires

that at the relevant time, the wife of the respondent was in

critical condition.

15. Regarding submissions of Ms.Archana Amin, learned

counsel of the applicant that CGHS is not applicant is concerned,

it appears from the scheme of the reimbursement of the medical

expenses as referred to hereinabove, that there is reference as to

CGHS rate list. The para iv of the Guidelines provides as under:-

"IV. In Medical Science, no list can be fully exhaustive. Hence, it is likely that these will be few occasions when a claim has been submitted which is not appearing exactly in the CGHS rate list. On these cases, the MD/CMS/MS in charge of Divisions will apply their mind and will come to a logical conclusion. Then, they will pass a speaking order to certify the rate/s being recommended in consultation with Associate Finance."

16. Thus, even the Railway Authority is taking recourse to CGHS

rate list for deciding the claim of reimbursement of the medical

expenses.

17. Now, on perusal of the impugned order of the learned

Tribunal, it clearly transpires that the learned Tribunal has

C/SCA/8962/2020 JUDGMENT DATED: 05/08/2021

considered the facts and circumstances of the case and has

passed the impugned order which has been referred to

hereinabove. We are of the considered opinion that the directions

issued by the learned Tribunal vide order dated 03.03.2020 in

Original Application No.516 of 2018 is just and proper and

sustainable in the eyes of law.