Gujarat High Court

Secretary vs M.T. Vora Since Deceased Through ... on 8 March, 2022

Bench: Hemant M. Prachchhak

      C/LPA/329/2022                             ORDER DATED: 08/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 329 of 2022
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 12017 of 2004
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                  In
               R/LETTERS PATENT APPEAL NO. 329 of 2022
================================================================
                              SECRETARY
                                 Versus
               M.T. VORA SINCE DECEASED THROUGH HEIRS
================================================================
Appearance:
MR TIRTHRAJ PANDYA AGP for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1,1.4
MR. D. P. KINARIWALA(410) for the Respondent(s) No. 1.1,1.2,1.3,1.5
================================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                            Date : 08/03/2022

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the impugned

judgment and order dated 04.04.2019 passed by the learned

Single Judge in Special Civil Application No.12017 of 2004, the

present appeal is preferred.

2. Following facts emerge from the record of the appeal.

2.1 The original petitioner was working as Deputy Mamlatdar at

C/LPA/329/2022 ORDER DATED: 08/03/2022

Chhotaudepur. The fact reveals that the original petitioner

suffered a massive heart attack on 02.07.2002 and he firstly was

taken to the Government Hospital at Chhota Udepur and,

thereafter, shifted to the SSG Hospital, Vadodara. As averred by

the original petitioner, as sufficient facilities of heart treatment

was not available at SSG Hospital, Vadodara and as the condition

of the petitioner deteriorated, he was required to be shifted to

"Vadodara Heart Institute and Research Centre, Vadodara"

wherein he was required to be operated for coronary

angiography and remained as an indoor patient for ten days. It is

the case of the original petitioner that the treatment expenditure

came to Rs.2,38,547.43 paise. That as per the policy of the

government, the original petitioner as a government servant

could have availed benefit of medical reimbursement, which

came to be partly granted and an amount of Rs.1,71,017.43

paise remains unpaid. The denial of the same is subject matter of

the writ petition being Special Civil Application No.12017 of

2004, wherein it was inter alia prayed as under:-

[A] That by a writ of mandamus and/or by a writ in the nature of mandamus and/or by any other writ, direction or order, the respondents herein be directed to make payment of Rs.1,71,017.43 ps. with interest towards the claim of the petitioner for the expenses

C/LPA/329/2022 ORDER DATED: 08/03/2022

incurred by the petitioner for his medical treatment.

[B] That pending the hearing and final disposal of this petition, the respondents be directed to deposit the amount of Rs.1,71,017.43 ps. before this Hon'ble High Court and the petitioner be allowed to withdraw the same on any condition as may be deemed and proper and prescribed by this Hon'ble Court.

[C] Be pleased to pass such other and further reliefs as the nature and circumstances of the case may require.

[D] That the costs of the petition may be provided for.

3. The petition came to be allowed along with interest at the

rate of 9% and hence, the State has preferred this appeal.

4. Heard Mr.Tirthraj Pandya, learned Assistant Government

Pleader appearing on behalf of the appellants - State Authorities

and Mr.D. P. Kinariwala, learned counsel appearing on behalf of

the heirs of the original petitioner.

5. Mr.Tirthraj Pandya, learned Assistant Government Pleader

appearing on behalf of the appellants has vehemently submitted

that the direction issued by the learned Single Judge is against

the policy of the Government enunciated in the Government

Resolution dated 01.04.2000. According to Mr.Pandya, learned

Assistant Government Pleader, the learned Single Judge has

committed an error in appreciating the ratio laid down by this

C/LPA/329/2022 ORDER DATED: 08/03/2022

Court as well as the Hon'ble Apex Court in the judgments relied

upon by the learned Single Judge for allowing the petition. He

has further submitted that the learned Single Judge has

committed an error in awarding interest at the rate of 9%.

According to him, the government policy clearly prescribes that

only that amount which otherwise would be spent by the

government employee in the Government Hospital or recognized

hospital like U.N. Mehta Hospital is admissible. On the aforesaid

grounds, he has submitted that the appeal be allowed and the

impugned judgment and order passed by the learned Single

Judge be quashed and set aside.

6. Per contra, Mr.D. P. Kinariwala, learned counsel appearing

on behalf of the respondents has opposed the appeal. He has

submitted that the condition of the original petitioner even at the

SSG Hospital, Vadodara was deteriorating and to save the life, he

was required to be shifted to the Vadodara Heart Institute and

Research Centre, Vadodara. He has submitted that the appeal is

devoid of merits and the same deserves to be dismissed.

7. No other and further submissions, contentions, grounds

C/LPA/329/2022 ORDER DATED: 08/03/2022

have been raised by the learned counsel appearing on behalf of

the respective parties.

8. Upon hearing the learned counsel appearing on behalf of

the respective parties and on perusal of the impugned judgment

and order, we find that the learned Single Judge has taken into

consideration the special circumstances and more particularly,

the state of health of the petitioner on 02.07.2002 which under

compelling circumstances required treatment at Vadodara Heart

Institute and Research Centre, Vadodara for coronary

angiography to save his life. The life is precious and all attempts

to save life is first to be done. It is not the case of the State that

the condition of the original petitioner was such that he could

have been treated at SSG Hospital and under such

circumstances, the pre-domenient object of all and one has to be

to save the life. The learned Single Judge has observed in

paragraphs no.5 to 8 thus:

5. This Court, in the judgment in the case of Madhavdas Bhagwandas Khushiramani Vs. State of Gujarat & Ors., 2000(1) GLH 509 has depricated the approach of the officers in raising the grievance on the medical reimbursement, wherein the employee has undergone the necessary medical expenses in private hospitals. This court has allowed the entire medical reimbursement for the expenses undergone by the employee in the private hospitals.

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6. Thereafter, in the case of Legal Heirs of Purushottam Gajadhar Upadhyay Vs. Police commissioner & Ors., 2001(3) GLH 755, this Court has observed thus:

"The facts of the case themselves make it clear that there was no time left for the patient, i.e. deceased employee, to take prior approval from the employer for the purpose of taking such treatment in non-government hospital. When it is found spent for the said medical treatment, it was absolutely unjust on the part of the respondents to decline the reimbursement that the amount was genuinely of the amount spent by the deceased for such treatment. If this is not a special case for giving reimbursement of medical expenditure, there can be no better case wherein such type of reimbursement can be sanctioned by the State Government would not like to sacrifice life by entering into correspondence for getting prior approval for the purpose of securing reimbursement of the amount spent for medical treatment. In all such cases, normally, attempt is made by the patient first to secure go treatment and at that time, nobody will be in a proper frame of mind to find out the Rules and Regulations and try to locate the Government hospital. In such cases, an humane approach is required to be taken by the Department before becoming pragmatic rigid and technical in the matter of deciding the claim of reimbursement of the Government servant, who had undergone such medical treatment the effect that prior approval is not taken before taking treatment in the hospital is too rigid and cannot be upheld looking to the facts of the case. Looking to the facts and circumstances of the. The stand taken by the Department to case, therefore, the petitioners are entitled to get reimbursement of the amount which they have spent for the treatment of the deceased employee for the purpose of taking Coronary Angiography and Coronary Angioplasty. The said amount comes to Rs. 58,000/-."

7. The Apex Court in the case of Surjit Singh Vs.State of Punjab & Ors., AIR 1996 SC 1388, wherein the employee has taken the treatment in private hospital has observed thus:

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"11. The appellant therefore had the right to take steps in self preservation, He did not have to stand in queue before the Medical Board the manning and assembling of which, bare-facedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternate hospital as per policy. When the State itself has brought the Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to the Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset 15 answered in the affirmative. Of course the sum of Rs.40,000/- already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."

8. In the present case, it is not in dispute that the petitioner was admitted in the hospital in emergency and accordingly, has undergone the surgery as he suffered massive heart attack on 02.07.2002. The petitioner was rushed to the Government hospital at Chhotaudepur and thereafter, he was referred to for further treatment to the S.S.G. Hospital, Vadodara and since the facilities in the said hospitals were also not sufficient and the petitioner's condition was deteriorating, he was immediately shifted to the Vadodara Heart Coronary Angiography. Thus, in view of the law enunciated by this Court and the Apex Court, the petitioner cannot be denied the medical reimbursement of

C/LPA/329/2022 ORDER DATED: 08/03/2022

his expenses to the tune of Rs.171017.43/-.

9. We are in complete agreement with the observations made

by the learned Single Judge and in facts of this case, the original

petitioner was left with no other alternative but to admit himself

at Vadodara Heart Institute and Research Centre, Vadodara for

his immediate treatment to save his life and under such

circumstances, the medical reimbursement is required to be

made even considering it as a special case that too in absence of

any material contradiction. However, we find that the award of

9% interest is required to be quashed and set aside as the

authority has legitimate right to examine the case of the original