The Comptroller And Auditor ... vs Bipinchandra Mulchand Sheth
2021 Latest Caselaw 2055 Guj

         C/SCA/5855/2020                                             ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/SPECIAL CIVIL APPLICATION NO. 5855 of 2020
==========================================================
       THE COMPTROLLER AND AUDITOR GENERAL OF INDIA
                             Versus
               BIPINCHANDRA MULCHAND SHETH
==========================================================
Appearance:
MR SHUSHIL R SHUKLA(5603) for the Petitioner(s) No. 1,2,3
MR CK DIVAKARAN(3052) for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                               Date : 11/02/2021
                         ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. This is a petition preferred questioning the

order dated 11.09.2019 passed in Original

Application No.356 of 2018 by the Central

Administrative Tribunal ('the CAT' for short),

Ahmedabad Bench allowing medical bills of the

respondent in the following factual background.

1.1 The respondent was superannuated on

30.11.2016 from the post of Senior Audit Officer

from the office of petitioner No.2 and he

continued to stay at Rajkot with his wife. The

wife of the respondent was detected with advance

stage of cancer of anal canal. She was required

to undergo the medical treatment. The respondent

C/SCA/5855/2020 ORDER

being the beneficiary under the Civil Services

(Medical Attendance) Rules, 1944 ('the Rules' for

short) was entitled to the reimbursement of the

medical bills. His wife was referred to Aaruni

Hospital Rajkot by Authorised Medical Attendant

(the 'AMA' for short) for emergency treatment and

for her anal canal cancer, she underwent the

Chemo­Therapy Radiation and during the treatment

she passed away on 09.07.2017 after being in Coma

for nearly 45 days in the hospital itself.

1.2 The case of the respondent before the CAT was

that there was no referral hospital in Rajkot

recognised for beneficiaries of the Rules for

cancer treatment and therefore, he applied for

permission of petitioner No.3 for taking

treatment from private hospital and also for

reimbursement of expenses incurred for Chemo­

Therapy Radiation of his wife at Aaruni hospital.

The application was allowed partly on the ground

that it is a private hospital and therefore, the

initial 10 days of treatment can be reimbursed.

       C/SCA/5855/2020                                              ORDER



Accordingly,             the          amount          reimbursed                 was

Rs.64,280/­        (Rupees           Sixty         Four    Thousand              Two

Hundred Eighty Only) and the balance amount of

Rs.1,46,220/­ (Rupees One Lakh Forty Six Thousand

Two Hundred Twenty Only) remained unpaid.

1.3 There were five medical bills for

treatment taken at Giriraj Multi­specialty

Hospital which were of the sum of Rs.59,077/­

(Rupees Fifty Nine Thousand Seventy Seven Only).

The amount of Rs.52,157/­(Rupees Fifty Two

Thousand One Hundred Fifty Seven Only) had been

paid against these bills. The grievance on the

part of the respondent is that the amount of

Rs.1,53,140/­ (Rupees One Lakh Fifty Three

Thousand One Hundred Forty Only) has remained

unpaid.

1.4 The departmental appeal also was not

entertained and therefore, the respondent moved

CAT, Ahmedabad Bench and sought the intervention

of the Tribunal in seeking directions against the

present petitioners for grant of medical claims

C/SCA/5855/2020 ORDER

and also sought payment of the sum of

Rs.1,53,140/­ (Rupees One Lakh Fifty Three

Thousand One Hundred Forty Only) made by the

respondent with 12% interest from the date of

maturity of claim.

2. The stand on the part of the petitioner

before the Tribunal was that it is incorrect that

there was no cancer hospital at Rajkot as the

Rajkot Cancer Society & Allied Hospital is a

recognised hospital for cancer treatment. His

appeal was considered on humanitarian grounds.

Out of his claim of Rs.59,077/­(Rupees Fifty Nine

Thousand Seventy Seven Only), Rs.52,157/­ (Rupees

Fifty Two Thousand One Hundred Fifty Seven Only)

had been paid. It was again the stand of the

petitioner that cancer treatment was available in

the recognised hospital, the permission for

taking the cancer treatment was not granted to

the respondent. Rule 3 of the Rules permitted

only first four consultations/visit within the

period of 10 days from the commencement of

C/SCA/5855/2020 ORDER

treatment in respect of one single and continuous

spell of illness in respect of a particular

disease and therefore, the amount has been

restricted to Rs.64,380/­ (Rupees Sixty Four

Thousand Three Hundred Eighty Only) for the six

bills. It appears that the stand of the

respondent was that the patient was referred to

the multi specialty hospital by the AMA on

emergency and the treatment of Radiation Therapy

was administered continuously for 28 days on

advice of expert Oncologist. This was reimbursed

under Rule 6(1),(2) & 3 of the Government of

India decisions.

2.1 After considering at length the rival

contentions, the Tribunal held in favour of the

respondent in following manner:

"11. It is 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 commonsence, 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

C/SCA/5855/2020 ORDER

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 patient only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality 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 supposed by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.

12. As per Para 4 of Government of India, Health and Family Welfare OM No.110011/31/2007-CGHS-DII dated 2nd September, "beneficiaries who are cancer patient may be permitted to take treatment in any multi-specialty general purpose hospital that provides treatment to cancer patients subject to the condition that the reimbursement shall be limited to the prevalent CGHS rates or actual expenditure, whichever may be lower. Learned counsel for applicant has urged that applicant would have no grievance if his Medical Reimbursement Claim is paid as per CGHS applicable rates in respect of the treatment taken at the Aaruni Hospital, Rajkot for Rs.2,10,500/- and I think there is merit in his submissions.

13. Accordingly, it is directed that respondent-department shall look afresh into the claim made vide Bill Annexure A/1 of applicant for reimbursement of expenses stated to be incurred to the tune of Rs.2,10,500/- for treatment of his wife at Aaruni Hospital and pay after deducting amount of Rs.63,380/- (Sixty Four Thousand Three Hundred Eighty Only) from this calculated amount according to CGHS approved rates. The balance of said amount shall be paid to the applicant within eight weeks' from the date of receipt of copy of this order.

C/SCA/5855/2020 ORDER

Applicant shall also be paid interest @ 6% per annum on his balance payable amount from date of this O.A. Which is 05.07.2018, to till the amount is actually paid. No order as to costs."

3. Aggrieved by these findings and directions,

the petitioners are before this Court urging

earnestly that Government of India's decision

No.3 under Rule 6 of the Rules provides that the

claim for reimbursement for medical treatment

taken from the Hospitals/Nursing Homes, private

or maintained by AMAs are not recognised under

the Rules and therefore, it is inadmissible.

4. In the instant case also, it was the

reference of AMA which had led to the respondent

taking the treatment of his wife from the private

hospital as according to the petitioner, AMA

ought to have referred the patient to the

Government hospital recognised under the Rules.

The AMA is Dr.Vipul Patel and the wife of the

respondent had taken treatment at Aaruni Hospital

Pvt.Ltd., Rajkot where Dr.Vipul Patel is the

Director who himself is an Oncologist and on the

panel of the petitioner. Therefore, it is

C/SCA/5855/2020 ORDER

impermissible in light of Rule 6 of the Rules to

allow remaining amount of Rs.1,46,220/­ (Rupees

One Lakh Forty Six Thousand Two Hundred Twenty

Only). It is further the stand of the petitioner

that Rule 6 of the Rules as per the Government

of India's decision No.7, the Civil Services

(Medical Attendance) Rules, beneficiaries who

have subscribed to medical insurance policy in

relation to their availing the facilities under

the Rules, may be allowed to claim the

reimbursement from both the sources subject to

the condition that reimbursement from such

sources should not exceed the total expenditure

incurred by the beneficiary of the treatment.

Firstly, they should be seeking it from the

insurance company and subsequently, the residual

claim can be raised from the department.

Therefore, it is urged by the petitioner that

there is no clarity as to whether there is

overlapping of demand on the part of the

respondent.

C/SCA/5855/2020 ORDER

5. It is further the say of the petitioner that

the reimbursement from the source of the

department would be restricted to the amount

admissible as per the approved package rate

subject to the condition that total amount

reimbursed by the insurance company and the

department shall not exceed the total expenditure

incurred by the beneficiary. The emphasis is also

on the incorrect statement on oath of there being

no Cancer Hospital at Rajkot, accordingly, the

present petition is preferred with the following

prayers:

"8.

(a) YOUR LORDHIPS may be pleased to admit and allow the present petition;

(b) YOUR LORDHIPS may be pleased to quash and set aside the Order dated 11.09.2019, in Original Application No.356 of 2018, passed by the Hon'ble Central Administrative Tribunal, Ahmedabad Bench, At Ahmedabad;

(c) YOUR LORDHIPS may be pleased to stay the execution, operation and implementation of the Order dated 11.09.2019, passed in Original Application No.356 of 2018, passed by the Hon'ble Central Administrative Tribunal, Ahmedabad Bench, At Ahmedabad;

C/SCA/5855/2020 ORDER

(d) YOUR LORDHIPS may be pleased to grant ex-parte ad-interim relief in terms of Prayer 8(C);

(E) Any other and further relief as the nature and the circumstances of the case that may be required in the interest of justice."

6. Affidavit­in­reply is filed for and on behalf

of the respondent wherein he has contended

fervently that there is no compliance of the

directions of the Tribunal although the order is

passed on 11.09.2019 and repeated requests had

been made by the respondent for all these months.

A Contempt Petition is preferred being No.5 of

2020 before the CAT, Ahmedabad Bench, where the

Court has issued the notice on 28.02.2020 and

made it returnable on 08.04.2020. He has also

emphasised on payment of Rs.64,380/­ (Rupees

Sixty Four Thousand Three Hundred Eighty Only)

for the treatment taken by the respondent from

the Aaruni Hospital, Rajkot at C.G.H.S. rates.

6.1 According to the respondent, the Departmental

Appeal dated 21.06.2017 had been decided after

seven months on 21.12.2017 where his claim has

not been entertained.

C/SCA/5855/2020 ORDER

6.2 He has also further emphasised as to how in

case of his wife, a total 30 days of treatment

was taken in OPD emergency referred by the AMA to

Oncologist specialist to save the life of

respondent's wife. He has also further contended

that the OM dated 02.09.2008 mentions that after

careful examination of the representation, it has

been decided that the approval of the competent

authority that CGHS/CS(MA) Rules, 1944

beneficiaries, who are cancer patients (both old

and new) may be permitted to take treatment in

any multi specialty General Hospital which

provides for treatment to cancer patients,

subject to the condition that reimbursement will

be limited to actual expenditure or the rates

notified in 2000, whichever is lower.

6.3 It was AMA on emergency basis had referred

the patient to a private multi specialty General

Hospital which is admissible for reimbursement of

expenditure incurred on treatment of cancer. He

relied on the decision of the Apex Court rendered

C/SCA/5855/2020 ORDER

in case of Shivakant Jha v/s. Union of India,

reported in (2018) 16 SCC 187 urging that the

real test is the factum of treatment. The

authorities are bound to ensure that whether in

fact, the claimant had undergone the treatment

and the claim is substantiated by the medical

case papers. He has also relied on the decision

of the Apex Court rendered in case of Devender

Singh Shergil v/s. State of Punjab & Ors,

reported in (1998) 8 SCC 552 where the emergency

treatment is required to be taken abroad and that

was needed to be reimbursed to the extent of the

expenditure which may have been involved for his

treatment if carried out in any of the recognised

institutions/hospitals in India.

7. It is emphasised by the respondent that since

the patient was in Coma for 45 days in the

hospital itself and the reference was by the AMA

on emergency basis because of the advancement of

cancer, the permission of HOD which was sought

for taking treatment at private hospital, was not

C/SCA/5855/2020 ORDER

responded in such a critical situation. It is

further his contention that the AMA­Dr.Vipul

Patel refused the patient to Aaruni Hospital,

Rajkot from 28.09.2016 and treatment for advance

cancer was taken from the doctor's letter dated

29.09.2016. She has taken chemotherapy treatment

at Giriraj Hospital and was advised for local

Radiotherapy which was given at Aaruni multi

specialty hospital and she was then kept

simultaneously as indoor patient. It is

incidental that Dr.Vipul Patel is the Director of

Aaruni Hospital.

8. It is urged that the medical reimbursement

from the insurance company is already done and

patient had mediclaim of Rs.1,00,000/­(Rupees One

Lakh Only) which has been reimbursed by the

United India Assurance Company to a ceiling

limit of Rs.1,00,000/­(Rupees One Lakh Only).

This was done for the treatment taken before

28.09.2016 and amount is also reflected in the

pass­book of the account of the present

C/SCA/5855/2020 ORDER

petitioner. Therefore, there is no question of

any concealment.

9. Affidavit­in­rejoinder for and on behalf of

the petitioner has also been filed by the Deputy

Accountant General by reiterating what had been

stated earlier.

10. We have heard extensively the learned

advocate, Mr.Sushil Shukla appearing for the

petitioners who along the line of the petition

has argued this matter. He has also urged that

the main impediment is the AMA himself has been

referred the patient to private hospital where he

is the Director. He does not dispute that nothing

has been done against AMA till date. He on a

query raised by the Court has taken the

instructions that the AMA continues to be in the

panel, the petitioner does not dispute the super

specialisation of AMA in the Branch of Oncology.

Because of non clearity of overlapping of the

claim, we had on 04.02.2021 passed the following

order:

C/SCA/5855/2020 ORDER

"1. We notice, from the submissions made by both the sides, that the amount, which remains to be paid, is of Rs.1.46/- lakh, I.e. for the treatment taken at Aaruni Hospital Pvt. Ltd, Rajkot, from 28.09.2016 to 19.10.2016. It also appears that a sum of Rs.1/- (One) lakh was assured by the United India Insurance Company Ltd. in the year 2016 and also separately in the year 2017.

2. According to the learned Advocate, Mr. Shukla, the bills, since, have not been presented before the Appellate Authority, they had difficulty in finalizing the claim, as there should be no overlapping of the claim.

3. According to the learned Advocate, Mr. Divakaran, for the respondent, there is no overlapping of the claim. He also submitted that

the amount of Rs.64,320/- has already been received and he CAN STATE this aspect on affidavit so also that there is no overlapping of the claim.

4. He, therefore, in no unclear terms, SHALL STATE on affidavit that at no stage, while seeking reimbursement, any authority has awarded any amount of the bills of Aaruni Hospital Pvt. Ltd., Rajkot, to the respondent.

4.1 Let learned Advocate, Mr. Divkaran, file such an affidavit of the

respondent within ONE WEEK, with a copy to the other side, at least, 24 hours in ADVANCE.

5. S.O. To 11TH FEBRUARY, 2021."

11. Additional affidavit has been filed by the

respondent pursuant to our direction, stating

therein that he had claimed medical bills for

Rs.2,10,500/­ (Rupees Two Lakh Ten Thousand Five

C/SCA/5855/2020 ORDER

Hundred Only) for cancer treatment of his late

wife at Aaruni Hospital Pvt.Ltd., Rajkot for the

period from 28.09.2016 to 19.10.2016. He has been

paid Rs.64,380/­ (Rupees Sixty Four Thousand

Three Hundred Eighty Only) and the balance amount

of Rs.1,46,120/­(Rupees One Lakh Forty Six

Thousand One Hundred Twenty Only) is still

payable. He also clarifies that he has claimed

the medical bills and received payments from

United Insurance Company Limited, Rajkot for

treatment of his wife against the Mediclaim

Policy of sum assured Rs.1,00,000/­(Rupees One

Lakh Only) and he has not claimed or received any

amount in respect of the said claim of Aaruni

Hospital Private Limited at any stage while

seeking reimbursement and no authority has

awarded any amount towards the bills that he had

claimed.

12. Learned advocate, Mr.C.K.Divakaran has also

extensively argued this matter reiterating what

has been incorporated by the CAT in its order and

C/SCA/5855/2020 ORDER

has given in affidavit­in­reply.

13. On hearing both the sides extensively, at the

outset, we need to refer to the decision of the

Apex Court rendered in case of Surya Dev Rai vs.

Ram Chander Rai & Ors., reported in (2003) 6 SCC

675, where the Court has examined elaborately as

to when exercise of the powers under Articles 226

and 227 of the Constitution of India are needed.

The Apex Court concluded that powers under

Article 226 of the Constitution of India are to

be exercised to correct gross errors in

jurisdiction & the supervisory jurisdiction under

Article 227 is exercised for keeping the

subordinate courts within the bounds of their

jurisdiction.

14. In this petition, challenge is made to the

order of the CAT, which has made a progressive

interpretation of the Rules which are meant for

the benefits of the employees, ex­employees and

their family members and it has also sensitively

taken into consideration the critical illness of

C/SCA/5855/2020 ORDER

the wife of the respondent who suffered from the

cancer of anal canal and unfortunately died after

being in Coma for more then 45 days in the

hospital. We need to note that at no stage any

doubt is raised with regard to the treatment

having been given to the wife of the respondent,

on the part of the petitioner. It is also to be

noted that the only doubt, which had been raised

is of the overlapping of bill and that also has

been cleared by way of the affidavit of the

respondent filed on 08.02.2021 before this Court.

Before adverting to the fact further, we also

need to make a note of the fact that the sole

objection is of reference by the AMA to the

hospital where he is the one of the Director. The

AMA as authorised by the petitioner is possessing

the super specialisation being an Oncologist

which based at Rajkot. Of course, there is one

hospital Rajkot Cancer Society and Allied

Hospital, the Health and Family Welfare,

Government of Gujarat vide order dated 24.08.2015

has come out with its circular where it

C/SCA/5855/2020 ORDER

recognised across Gujarat certain hospitals in

Rajkot for different procedures. The office of

Accountant General (A & E), Gujarat, Rajkot vide

its circular dated 07.06.2016 has quoted this and

recognised those hospitals for medical

reimbursement as well as for commuted leaves, if

the treatments are availed from any of these

Government recognised hospitals.

15. We could notice that the entire emphasis on

the part of the petitioner is for non­

reimbursement of the amount of Rs.1,46,120/­

(Rupees One Lakh Forty Six Thousand One Hundred

Twenty Only) essentially on the objection that

the claim for reimbursement for treatment at

consulting room taken from the AMA is

admissible;however, the claim for reimbursement

for medical treatment taken from the

Hospitals/Nursing Homes, private or maintained by

AMAs could not be recognised by the Rules. The

patient visited the hospital on 29.06.2016 and

another objection is that the certificate in the

C/SCA/5855/2020 ORDER

form of the referral is issued on 29.09.2016.

Dr.Vipul Patel is the Director of the Aaruni

Hospital Pvt.Ltd. and himself is the AMA and

Oncologist. Since the prolonged treatment of the

cancer which the wife of the respondent has

undergone, calculating the ten days of the

treatment from the total bill of Rs.2,10,500/­

(Rupees Two Lakh Ten Thousand Five Hundred Only)

of the Aaruni Hospital Pvt.Ltd., Rajkot, has been

given Rs.64,380/­ (Rupees Sixt Four Thousand

Three Hundred Eighty Only), interpreting para 4

of the Government of India, Health and Family OM

No.11011/31/2007­CGHS­D II dated 02nd September

has been taken into consideration by the Tribunal

which states that beneficiaries who are cancer

patients may be permitted to take treatment in

any multi­specialty general purpose hospital that

provides the treatment to cancer patients subject

to the condition that the reimbursement shall be

limited to the prevalent CGHS rates or actual

expenditure, whichever may be lower. The

respondent also had not objected to this

C/SCA/5855/2020 ORDER

reimbursement claimed being paid as per the CGHS

applicable rates. Nothing is on record to

indicate that the medical reimbursement claim

made by the respondent of the treatment taken at

Aaruni Hospital Pvt.Ltd., Rajkot, is not in

consonance with the CGHS applicable rates.

16. We acknowledge the fact that approach adopted

& interpretation made by the Tribunal is quite

pragmatic and also reflects requisite sensitivity

on the part of the presiding officers of the

Tribunal particularly bearing in mind the long

drawn medical treatment which the wife of the

respondent had undergone. The respondent as an

ex­employee, he and his wife were the only family

members and therefore, in such critical condition

the doctor would be the only Messiah and the AMA

being a super specialist himself, his advice

would be naturally followed by the patient

totally. In a time like that, the person would

not be in a mental frame of mind to also know the

knitty gritty of the Rules more particularly, the

C/SCA/5855/2020 ORDER

reference having come from the AMA himself.

17. We could notice from the submissions of both

the sides that the only other option available

for the treatment which had been accorded of the

wife of the respondent was the Rajkot Cancer

Society & Allied Hospital. The total number of

the patient because of the availability of

comparatively free treatment and the number of

cancer patients if are taken into consideration

the decision of the AMA to direct the reference

to the Aaruni Hospital Pvt.Ltd., Rajkot for the

cancer treatment also has been rightly not

questioned by the Tribunal. Having not raised any

doubts with regard to the prolong and protracted

treatment of the cancer as also with regard to

the amount claim being in consonance with the

CGHS rates, we see no reason to interfere with

the judgment and order.

18. Resultantly,               this         petitions               fails            and

dismissed.          The       order     passed           by      the        CAT        is

confirmed.             Let       the         balance              amount               of





             C/SCA/5855/2020                                   ORDER

Rs.1,46,220/­ (Rupees One Lakh Forty Six Thousand

Two Hundred Twenty Only) of medical reimbursement

be given to the respondent. The said exercise to

be completed within the period of six weeks from

the date of receipt of a copy of this order.

Sd/-

(MS SONIA GOKANI, J)

Sd/-

(MS SANGEETA K. VISHEN,J) M.M.MIRZA