Jammu & Kashmir High Court
Union Of India vs Subash Chander Sharma on 19 February, 2025
Sr. No. 7
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case: LPA No. 122/2020
01. Union of India ...Petitioner(s)/Appellant(s)
Through Secretary Ministry of Information
and Broadcasting, Shastri Bhawan, New
Delhi.
02. Station Director, Radio Kashmir,
Jammu.
Through: Mr. Harshwardhan Gupta, CGSC.
V/s
Subash Chander Sharma .... Respondent(s)
S/o Late Sh. Diwakar Sharma
R/o 641, Sarwal Colony, Jammu, 180001.
Through: Mr. H.C Jalmeria, Advocate
CORAM: HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
(ORAL)
19.02.2025
(Atul Sreedharan-J)
1. The present appeal has been filed by the appellant- the Union of India,
through Secretary, Ministry of Information and Broadcasting, Shastri
Bhawan, New Delhi and Station Director, Radio Kashmir, Jammu. They are
aggrieved by the judgment and order passed by the learned Single Judge
dated 10.07.2018, whereby, the medical reimbursement claim of the
respondent herein was allowed by the learned Single Judge.
The brief facts of the case will be summarized as follows:
2. The respondent-herein was serving as Programmer Executive in the Prasar
Bharti (Broadcasting Corporation of India) and superannuated on
28.02.2011. The undisputed fact is that on 03.10.2006, he was on active
duty and was recording an interview of one Prof. K.L Bhatia when he
suffered a brain haemorrhage in the studio of Radio Kashmir, Jammu. He
was immediately shifted to the Government Medical College Hospital,
Jammu and looking to his critical condition and lack of proper medical
facilities to treat the patients of brain haemorrhage, the doctors in the
Government Medical College Hospital, Jammu referred the petitioner for
specialised treatment in the Postgraduate Institute of Medical Education and
Research (PGI), Chandigarh, where the petitioner remained under treatment
from 04.10.2006 to 18.10.2006. Upon discharge he returned to Jammu but
developed some post operational complications. The doctors at PGI,
Chandigarh advised immediate surgery of the petitioner in Jammu through
renowned neurosurgeon, Dr. Haroon Salaria, and got himself admitted in a
private Nursing Home (Langer Nursing Home) at Trikuta Nagar, Jammu,
where he was operated for "shunt operation for post operational
hydrocephalus". After being cured, the petitioner lodged a reimbursement
claim for medical expenses. As regards the expenses incurred by him at PGI
Chandigarh to the extent of ₹65,326/-, the same has been reimbursed, while
his travel allowance claim of ₹11,400/- which was claimed by the
respondent in his medical claim was not sanctioned and was kept pending
for approval of the competent authority.
3. The main issue relates to the expenses incurred by the petitioner-respondent
herein on the private nursing home where he was already operated by Dr.
Haroon Salaria, which were not reimbursed. The amount that was directed to
be reimbursed by the learned Single Bench was ₹46,945.32/- which was
incurred by the respondent on account of surgery conducted at private
nursing home (Langer Nursing Home). The learned Single Bench also held
that he was entitled to ₹8790/- being the balance of the travelling allowance
and that the same should have been paid within a period of four weeks from
the date a certified copy of the order. It is the amount of ₹ 46,945.32/- which
is being challenged in this LPA.
4. Learned counsel for the appellant submits that the order suffers from
perversity as the standards/parameters applied by the learned Single Bench
while allowing the petition filed by the respondent was incorrect. He has
referred to the judgment of the Supreme Court relied upon by the learned
Single Bench in Shiva Kant Jha v. Union of India" AIR 2018 SC 1975
whereby the similar case, where the patient had got himself treated at a
Private Nursing Home and was denied the reimbursement, the Supreme
Court held in Paragraph No. 13, which may be summarized as follows that
where a government employee during his life time or after superannuation is
entitled to certain medical facilities/benefits, no limits can be set on that
right.
5. The Supreme Court also observed that it is acceptable to common sense that
how a patient should be treated vests only with the doctor and that little
scope is left with the patient or his relative to decide the manner in which the
ailment should be treated.
6. It is necessary to mention here that in that case, the State was aggrieved by
the fact that the treatment sought by the patient was in a hospital which was
not enlisted with the CGHS. The Supreme Court negating the contention of
the State posed a question to itself whether a treatment in a speciality
hospital by itself would deprive the patient to claim reimbursement on the
ground that the hospital was not included in the Government Order. It went
on to hold that such a right of the patient/government servant cannot be
denied only on account of non-empanelment of the hospital and that the real
test that must be applied is whether the factum of treatment was actually
administered to the patient and whether the same is supported by the records
duly certified by the doctors of the hospital where the surgery was carried
out. In the present case before us, it is not disputed that the respondent
underwent the surgery in a private hospital. The Supreme Court further held
that once it is established that the patient/government servant has undergone
treatment, reimbursement cannot be denied on technical grounds and doing
so, the Supreme Court held, would be a very inhuman approach.
7. Learned counsel for the appellant submits that the law was wrongly applied
before the Supreme Court, as it was the CGHS Rules which were under
consideration whereas, in the present appeal, the respondent was governed
by the Central Services (Medical Attendance) Rules, 1944. The Learned
Single Bench has also dealt with the same and has referred to the said Rule
and has held that the said Rule is in two parts, with the first providing the
government servant a free of charge treatment in a Government Hospital at
or near the place where he falls ill provided in the opinion of the authorised
medical attendant such government hospital has the necessary infrastructure
to provide suitable treatment. Thereafter, the learned Single Bench also held
that the second part of the Rule provides a situation where such government
hospital is not available, the treatment can be had in such hospital other than
the government hospital near the place where the employee falls ill, which in
the opinion of the authorised medical attendant is equipped to provide
necessary and suitable treatment.
8. Learned counsel for the appellant submits that the government hospital at
Jammu itself was well-equipped to administer treatment on the second
occasion for post operational complications that was suffered by the
respondent herein and there was no need for him to go to the nursing home.
He further submits that it was the same doctor (Dr. Haroon Salaria), who is
an expert in neurosurgery and associated with the Government Hospital at
Jammu, who performed the surgery in the private hospital, and therefore, the
order passed by the learned Single Judge is incorrect.
9. Per contra, learned counsel for the respondent on the other hand submits
that it is the undisputed case even of the appellant, that in the first instance
when the brain haemorrhage was suffered, the Government Medical College
Hospital, Jammu did not have the expertise to treat the deceased and he was
referred to Postgraduate Institute of Medical Education and Research (PGI),
Chandigarh by the Government Hospital at Jammu itself.
10. He further submits that the post operational complications that had occurred
was in relation to the primary cause which was the brain haemorrhage, and
therefore, there was reasonable apprehension in the mind of the respondent
that he was suffering from a life threatening situation, and therefore, wanted
to get treated in a hospital which had the best possible facilities which would
inspire his confidence.
11. He further submits that there was an element of urgency because he was
advised by the doctors of PGI, Chandigarh to get himself operated forthwith
by Dr. Haroon Salaria. Under the circumstances, where the Government
Medical College Hospital, Jammu did not have the facility to treat the
principal disease itself, the apprehension in the mind of the respondent
whose life was in risk that they may not be able to handle the post operative
complications arising from the brain haemorrhage effectively, is not
unjustified. The same is reasonable as there is saying that it is only the
wearer who knows where the shoe pinches. In this kind of a situation, it is
only a patient whose life is at risk and whose anxiety is not measurable or
quantifiable in financial terms, which is relevant as the Supreme Court has
stated in Shiva Kant Jha v. Union of India (supra) that technical and petty
considerations must not weigh with the State while deciding a claim for
medical reimbursement.
12. Learned counsel for the appellant has also voiced an apprehension that if this
order was not set aside, every government servant would have the
tendency/propensity to get himself treated for every disease directly in a
private hospital and thereafter, claim a reimbursement. As far as that
apprehension is concerned, we lay the same to rest. It is not in every case
that government servant who without any reference from a government
hospital gets treated in a private hospital can claim reimbursement. In this
particular case, the facts govern the relief. As already said hereinabove, the
Government Medical College Hospital, Jammu did not have the expertise to
treat the initial disease and therefore a complication that arose subsequently,
from initial disease, if treated in a private hospital on the apprehension that
the government hospital may not have the expertise to treat that
subsequently, cannot be unjustified as already said hereinabove. Therefore,
the facts of this particular case distinguish it from the general
proposition/apprehension voiced by the learned counsel for the appellant.
13.
14. Under the circumstances, in view of what has been argued before and
considered by this Court, the appeal stands dismissed. However, as an
amount of ₹46,945.32/- which was reimbursable to the respondent has been
kept pending since the year 2018 and almost five years have passed since,
the cost of ₹ 60,000/- @ 10,000/- per year for the period this appeal was
pending before this court, be paid in addition to the amount directed to be
paid by the learned Single Bench.
15. The appeal stands disposed of.
(RAJESH SEKHRI) (ATUL SREEDHARAN)
JUDGE JUDGE
Jammu
19.02.2025
AKHILESH Whether the Order is speaking? Yes/No
Whether the Order is reportable? Yes/No
