Himachal Pradesh High Court
Director (Personnel) vs Opposing The Prayer on 30 October, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30TH DAY OF OCTOBER 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
No.6583 of 2020
Between:-
R.S. THAKUR
S/O LATE SHRI ROOP SINGH,
R/O ROOP NIWAS, LOWER CHAKKAR,
SHIMLA-171005, RETD. DEPUTY
DIRECTOR (PERSONNEL),
HPSEBL, SHIMLA
......PETITIONER
(BY SH. M.L. SHARMA AND MS. MEGHNA
KASHAVA, ADVOCATES)
AND
HIMACHAL PRADESH STATE ELECTRICITY
BOARD LTD., VIDYUT BHAWAN, SHIMLA-4,
THROUGH ITS EXECUTIVE DIRECTOR
......RESPONDENT
(BY MS. RUMA KAUSHIK, ADVOCATE)
RESERVED ON : 28.10.2021
ANNOUNCED ON : 30.10.2021
Whether approved for reporting? Yes
This petition coming on for admission this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following:
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-2-
ORDER
The respondent-employer did not approve the medical
reimbursement claim of the petitioner-employee in respect of his
.
knee replacement operation carried out in a private hospital in New
Delhi, which is not empanelled with the State of Himachal Pradesh.
Aggrieved, petitioner has, therefore, filed this writ petition.
2. Facts:-
2(i). As per the pleadings, the respondent-Board has
adopted the medical reimbursement policy issued by the State of
Himachal Pradesh for reimbursement of medical claims. According
to this policy, both outdoor and indoor patient treatment/diagnostic
tests taken in government as well as empanelled private
hospitals/health institutions/diagnostic labs located within and
outside the State of Himachal Pradesh are reimbursable subject to
restrictions stipulated therein. Clause 9.9 of this policy pertains to
situations where medical treatment taken in non-empanelled
institutions in emergency is reimbursable subject to restriction of
rates at par with the rates of Indira Gandhi Medical College &
Hospital (IGMC), Shimla. In case the treatment is not available in
IGMC, Shimla, then the reimbursement is to be at the rates
prescribed in PGIMER Chandigarh/AIIMS Delhi/CGHS or actual,
whichever is less. Clauses 9.9 and 9.10 in this regard read as
under:-
"9.9. In case treatment is taken in a non-empanelled institution
.
in emergency, reimbursement shall be restricted to the
rates of IGMC Shimla/Government Dental College,
Shimla. In case the procedure/treatment is not available
in the IGMC, Shimla/Government Dental College, Shimla
the rates of PGIMER Chandigarh/AIIMS, Delhi/CGHS or
actual whichever is least shall apply. In case there are no
such rates the CGHS rates or actual whichever is less
shall apply.
9.10. In cases where there are no CGHS Rates, the procedure
being adopted under the CGHS will be applicable to the
State of Himachal."
Clause 11 of the policy stipulates that in case treatment
is taken in emergency in an institution that is not empanelled within
and/or outside the State, the question whether there was an
emergency or not, being a question of fact, will be decided by the
administrative department. This clause reads as under:-
"11. Emergency treatment in a non-empanelled institution: In
case treatment is taken in emergency in an institution
that is not empanelled or diagnostic tests are undertaken
in a lab which is not empanelled within and/or outside the
state, the question whether there was an emergency or
not, being a question of fact, will be decided by the A.D.
concerned. There will be no need to seek permission of
the Government or Department of Health and Family
Welfare in such cases. The decision of the A.D. whether
there was an emergency or not shall be final."
Clause 12 of the policy stipulates that treatment for
Cancer, Renal Failure/Kidney Transplant, the patient/dependent will
be allowed to undergo treatment in any super-specialty hospital
whether empanelled or not, subject to the condition that the
reimbursement amount will be restricted to CGHS rate or actual,
.
whichever is less.
2(ii). The petitioner on 11.09.2018, applied to his employer/
respondent for permission to undergo knee transplant operation
from Apollo Hospital, Sarita Vihar, New Delhi. The petitioner stated
in the application that he was suffering from knee pains and was
advised to undergo knee transplant operation or else in future, he
would not be in a position to walk. That medical experts had advised
him to undergo this operation at Apollo Hospital, New Delhi. The
said hospital was not empanelled with H.P. Government/ HPSEBL
(respondent employer). That his family members were settled in
Delhi and could look-after him there during and post his operation.
He further stated in the application that his operation dates,
tentatively had been fixed by Apollo Hospital during second and third
week of October, 2018.
2(iii). The application of the petitioner seeking permission to
undergo operation/replacement of his knees in the above-mentioned
private hospital was rejected by the respondent-employer vide
communication dated 24.09.2018, which was duly communicated to
the petitioner. While rejecting petitioner's application, the respondent
stated that as per the provisions contained in the reimbursement
policy, the medical reimbursement from non-empanelled hospital is
.
permissible only in case of emergency. In petitioner's case, such
contingency was missing. The petitioner had opted to undergo
operation at New Delhi only on the basis of appropriateness of
treatment.
2(iv). Regardless of rejection of his prayer, the petitioner
underwent his knee transplant/replacement operation from Apollo
Hospital, New Delhi in the month of October, 2018 and submitted his
medical bills amounting to Rs.5,12,512/- for reimbursement to the
respondent. The medical reimbursement claim of the petitioner was
rejected by the respondent on 09.01.2019 with the remarks that the
treatment was taken from a non-empanelled hospital and that the
permission sought by the petitioner to undergo operation from the
above-mentioned private hospital had already been declined on
24.09.2018.
2(v). Against the above backdrop, the petitioner has filed the
instant petition, praying for quashing of communication dated
09.01.2019, whereby his medical reimbursement claim was turned
down by the respondent. Petitioner has prayed for direction to the
respondent to reimburse the medical expenses incurred by him in
knee replacement operation as per the medical bills submitted by
him alongwith interest @ 12% per annum.
.
3. We have heard learned counsel for the parties and
gone through the record available on the case file.
Learned counsel for the petitioner submitted that the
petitioner had to undertake knee transplant operation in a non-
empanelled private hospital in case of emergency, therefore, he is
entitled for medical reimbursement of the expenses incurred by him
on his treatment at par with the rates of IGMC, Shimla. In support of
such contention, learned counsel relied upon the judgment rendered
by the Hon'ble Supreme Court in Shiva Kant Jha Versus Union of
India, (2018) 16 SCC 187.
Opposing the prayer, learned counsel for the
respondent-employer submitted that there was no medical
emergency in the case of the petitioner. The petitioner had sufficient
time to take treatment of knee replacement/operation in an
empanelled hospital. Despite having knowledge that the aforesaid
private hospital was not empanelled with the Government of
Himachal Pradesh and despite rejection of his application seeking
permission to undergo knee replacement operation in that non-
empanelled private hospital, the petitioner had still taken treatment
from non-empanelled private hospital. The petitioner, therefore, is
estopped by his own act and conduct and is not entitled for medical
.
reimbursement.
4. Having heard learned counsel for the parties, we are of
the considered view that this petition deserves to be dismissed for
the following reasons:-
4(i). The applicable medical reimbursement policy is not
under challenge. As per this policy, in case the treatment is taken in
a non-empanelled institution in emergency, the reimbursement is
permissible restricted to the rates specified therein.
The petitioner had not undertaken the operation in an
emergent situation. In his application dated 11.09.2018 itself, the
petitioner had mentioned that he was suffering from knee pains.
That his family members were residing in Delhi and, therefore, it was
easier for him to take medical treatment at Delhi. That Apollo
hospital was the best hospital for knee replacement operation. That
the medical experts had statedly advised him to undertake knee
replacement operation in the best hospital at Delhi and, therefore,
he wanted to undergo knee replacement operation in Apollo
Hospital, New Delhi. This all goes to show that no medical
emergency existed. Petitioner had opted to undergo the operation in
the non-empanelled private hospital because of appropriateness of
the medical treatment there, which suited him and not because of
.
any medical emergency.
4(ii). The petitioner was aware that the aforementioned
private hospital is not empanelled with the State of Himachal
Pradesh. He had applied to his employer/respondent for permission
to undergo the knee replacement operation at Apollo Hospital, New
Delhi. His application was rejected by the respondent-employer. The
decision was communicated to the petitioner well in time. Despite all
this, the petitioner underwent operation from the aforementioned
private non-empanelled hospital.
4(iii). The judgment relied upon by the petitioner in Shiva
Kant Jha's case, supra, is on the basis of facts of that case. The
petitioner therein had taken medical treatment at Fortis Escorts
Heart Hospital, wherein he was admitted in emergency condition for
survival of his life. It was in that background that the Hon'ble Apex
Court had allowed the writ petition observing that the 'treatment of
the petitioner (therein) in non-empanelled hospital was genuine
because there was no option left with him at the relevant time'.
Hon'ble Apex Court also observed in the judgment that the 'decision
is confined to that case only'. The facts of instant case as noticed
above are different. There was no emergent situation in petitioner's
case, wherein he underwent knee replacement surgery in a non-
.
empanelled private hospital.
In view of the aforesaid discussion, we hold that the
petitioner in the instant case had not taken the treatment from
non-empanelled private hospital in emergency. Petitioner's case
was not covered for medical reimbursement under the applicable
policy. We do not find any fault in respondent's rejecting petitioner's
claim for medical reimbursement of the bills in question. Accordingly,
there is no merit in the instant petition and the same is dismissed, so
also the pending miscellaneous application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
Judge
October 30, 2021
Mukesh
