Kerala High Court
Union Of India vs V.T.Thomas on 5 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
WA NO. 1635 OF 2024
AGAINST THE JUDGMENT DATED 05.10.2023 IN WP(C) NO.32842 OF
2022 OF HIGH COURT OF KERALA
APPELLANT(S)/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
NEW DELHI, PIN - 110001
2 DIRECTOR GENERAL
CENTRAL GOVERNMENT HEALTH SCHEME,
NIRMAN BHAVAN, NEW DELHI, PIN - 110001
3 ADDITIONAL DIRECTOR
CENTRAL GOVERNMENT HEALTH SCHEME, MOSQUE LANE,
KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN - 695004
BY ADV
SHRI.T.C.KRISHNA, DSGI (IN CHARGE)
RESPONDENT(S)/PETITIONER:
V.T.THOMAS
AGED 69 YEARS
S/O.LATE. THOMAS JOSEPH, ASSISTANT SUB INSPECTOR
(BORDER SECURITY FORCE)(RETD.), VADAKKEKUTTU HOUSE,
KOOTHRAPPALLY, KOTTAYAM DT, PIN - 686540
BY ADV
C.S.GOPALAKRISHNAN NAIR
WA NO. 1635 OF 2024 -2-
2025:KER:13633
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA NO. 1635 OF 2024 -3-
2025:KER:13633
JUDGMENT
K. V. JAYAKUMAR, J.
Impugning the judgment of the learned Single
Judge dated 05.10.2023 in W.P.(C) No.32842 of 2022,
Union of India and its Officers preferred this appeal.
2. The short question involved in this case
is whether an employee or pensioner, who has enrolled
himself in the Central Government Health Scheme and
has been issued the Central Government Health Scheme
card, would reimburse his treatment expenses if he was
treated in a hospital which is not recognized by the State
Government. Learned Single Judge placing reliance on
decision reported in Shiva Kant Jha vs. Union of India
[(2018) 16 SCC 187] , State of Punjab and Others
Vs. Mohinder Singh Chawla (AIR 1987 SC 1260)
Bandhua Mukti Morcha Vs. Union of India [(1984)
3 SCC 161] and Union of India and Another Vs.
Shankar Lal Sharma (CWP No.4621 of 2011 dated
28.12.2015), held that an employee or pensioner is
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entitled to medical reimbursement, eventhough, he was
treated in non-empanelled hospital. In other words, a
medical claim could not be denied merely because the
name of the hospital is not included in the Government
Order. The relevant paragraphs of the judgment of the
learned Single Judge are extracted hereunder:
"10. In the context of the fact situation
presented in this case, the question is whether
the action on the part of the petitioner to seek
treatment in a non-empaneled hospital could be
treated as a reason to deny a claim for medical
reimbursement to an employee if he is
otherwise entitled to the same. A similar
question was considered by the Apex Court in
Shiva Kant Jha v. Union of India. The Apex
Court held that the right to medical claim could
not be denied merely because the name of the
hospital is not included in the Government
Order. Paragraph No. 13 of the judgment reads
as under:
13) It is a 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 common sense, that ultimate
decision as to how a patient should be
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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 the ailment should be treated.
Speciality Hospitals are established for
treatment of specified ailments and
services of Doctors specialized in a
discipline are availed by patients 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 supported by
records duly certified by Doctors/Hospitals
concerned. Once, it is established, the
claim cannot be denied on technical
grounds. Clearly, in the present case, by
taking a very inhuman approach, the
officials of the CGHS have denied the
grant of medical reimbursement in full to
the petitioner forcing him to approach this
Court.
11. The Apex Court has observed in the
State of Punjab and Others v. Mohinder
Singh Chawla that the right to health is
integral to the right to life, and the Government
has a constitutional obligation to provide health
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facilities to its servants. If a Government
servant suffers an ailment that requires
treatment at a specialized approved hospital
and the Government servant undergoes
treatment therein, it is the duty of the State to
bear the expenditure incurred by the
Government servant. It would be pertinent to
extract the relevant observations:
10. It is contended for the State that
though the Government had granted ex
post facto sanction through the Medical
Board and permitted the patient to
undergo treatment outside the State with
the policy, for reimbursement of medical
expenses incurred and the medical
treatment taken in the hospital to the
government servant/pensioners or
dependants, as per rules, the Government
has imposed a condition to pay room rent
at the rates charged by the AIIMS for stay
in the hospital. The reimbursement will be
given at those rates. The Government,
therefore, is not obliged to pay the actual
expenses incurred by the patient while
taking the treatment as in-patient in the
hospital, for rent.
11. We are unable to agree with the
stand taken by the Government. It is seen
that the Government had decided in the
proceedings dated 8-10-1991 to reimburse
the medical expenditure incurred by the
Punjab Government employees/pensioners
and dependants on treatment taken
abroad in a private hospital. It is stated in
paragraphs 2 and 3 that the Government
has prepared a list of those diseases for
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which the specialised treatment is not
available in the Punjab Government
hospitals but it is available in certain
identified private hospitals, both within
and outside the State. It was, therefore,
decided to recognise these hospitals for
treatment of the diseases mentioned
against their names in the enclosed list for
the Punjab Government employees/
pensioners and their dependants. The
terms and conditions contained in the
letter under reference would remain
applicable. The Government can, however,
revise the list in future. The name of the
disease for which the treatment is not
available in the Punjab Government
hospitals is shown as Open Heart Surgery
and the name of the private hospital is
shown as Escorts Heart Institute, New
Delhi as one of the approved
hospitals/institutions. Thus, for open heart
surgery or heart disease the Escorts Heart
Institute is an authorised and recognised
institution by the Government of Punjab.
Consequently, when the patient was
admitted and had taken the treatment in
the hospital and had incurred the
expenditure towards room charges,
inevitably the consequential rent paid for
the room during his stay is an integral
part of his expenditure incurred for the
treatment. Consequently, the Government
is required to reimburse the expenditure
incurred for the period during which the
patient stayed in the approved hospital for
treatment. It is incongruous that while the
patient is admitted to undergo treatment,
he is refused the reimbursement of the
actual expenditure incurred towards room
rent and is given the expenditure of the
room rent chargeable in another institute
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whereat he had not actually undergone
treatment. Under these circumstances, the
contention of the State Government is
obviously untenable and incongruous. We
hold that the High Court was right in
giving the direction for reimbursement of
a sum of Rs 20,000 incurred by the
respondent towards the room rent for his
stay while undergoing treatment in
Escorts Heart Institute, New Delhi.
12. In Bandhua Mukti Morcha v. Union
of India, it was observed by the Hon'ble
Supreme Court that Articles 21, 39(e), (f), 41,
and 42 are meant to ensure a life with human
dignity. The right to live with human dignity
enshrined under Article 21 derives its life
breath from the Directive Principles of State
Policy and particularly clauses (e) and (f) of
Article 39 and Articles 41 and 42, and at the
least, therefore, it must include protection of
the health and strength of workers, men, and
women, and of the tender age of children
against abuse, opportunities and facilities for
children to develop in a healthy manner and in
conditions of freedom and dignity, educational
facilities, just and humane conditions of work
and maternity relief. These are the minimum
requirements that must exist in order to enable
a person to live with human dignity, and no
State--neither the Central Government nor any
State Government--has the right to take any
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action which will deprive a person of the
enjoyment of these basic essentials.
13. In Union of India and another v.
Shankar Lal Sharma (CWP No.4621 of 2011
dated 28.12.2015), a Division Bench of the
Himachal Pradesh High Court had occasion to
hold as follows:
52. It is the prime responsibility of the
State Government to protect the health
and vigour of retired Government officials,
this being their fundamental right under
Article 21, read with Articles 39(3), 41, 43,
48A of the Constitution of India. The steps
should be taken by the State to protect the
health, strength, and vigour of the
workmen. No providing of postretirement
medical care to retired Government
official in a city not covered by CGHS at
par with in-service employee would result
in a violation of Article 21 of the
Constitution of India. Moreover,
employees need medical care most after
their retirement. The State cannot call its
own actions as wrong. We have clarified
and explained O.M. dated 20.08.2004, and
it is made clear that all the Central
Government pensioners residing in non-
CGHS areas would be covered either
under the CS(MS) Rules, 1944 or CGHS as
per their option to be sought for by the
Central Government. In order to avoid
litigation, this judgment shall apply to all
the retired Government officials residing
in non-CGHS areas. There should be
equality of health benefits to retirees as
well in their evenings of life. There cannot
be any discrimination while extending the
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social benefits to in-service and retirees. It
is the prime responsibility of the State to
protect the health of its workers. In view
of the phraseology employed in O.M.
dated 05.06.1998, Note 2 appended to
Rule 1 is read down to extend the benefit
of CS(MA) Rules, 1944 to retired
Government officials residing in non-
CGHS areas to save it from
unconstitutionality and to make it
workable. The higher Courts have to
evolve new interpretive tools in changing
times. The neo capitalism may concentrate
wealth in the hands of a few persons,
which would be contrary to the philosophy
of the Constitution of India. Right to
health is a human right. The action of the
petitioner-Union of India, not to reimburse
the medical bills to the respondent and
also not giving option to him and similarly
situate persons residing in a city not
covered under CGHS as per O.M. dated
5.6.1998 to either opt for CGHS Scheme
or CS(MA) Rules, 1944, is illegal,
arbitrary, capricious, discriminatory, thus,
violative of Articles 14, 16 and 21 of the
Constitution of India. The decision in
matters pertaining to the health of the
employee should be taken with utmost
humane approach.
14. In Surjit Singh v. State of Punjab, it
was held by the Hon'ble Supreme Court in
paragraph 11 of the judgment that self-
preservation of one's life is the necessary
concomitant of the right to life enshrined in
Article 21 of the Constitution of India,
fundamental in nature, sacred, precious and
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inviolable. The importance and validity of the
duty and right to self-preservation have a
species in the right of self-defense in criminal
law. The above observation was made in the
context of medical treatment and
reimbursement, more particularly in respect of
a Government servant.
15. In the instant case, the petitioner had
undergone treatment for Acute Calculus
Cholecystitis. The petitioner is a
septuagenarian, and one of the essential
characteristics of the ailment is acute
abdominal pain. The respondents also do not
have a case in which they have issued
directions/orders/circulars/information to their
servants informing them that if they require
urgent intervention due to a life-threatening
disease for which treatment cannot be
prolonged, they can seek treatment at a
specified/named hospital in the District. A
person experiencing a serious ailment that
requires prompt assistance cannot choose
between hospitals. The medical records plainly
show that the petitioner was suffering from
serious pain, and he could not have travelled to
either a wellness center or an empanelled
hospital situated hundreds of kilometers away.
The situation would have been different if the
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medical intervention could have been postponed
to a later date. The legal position is clear that
government employees, whether during their
service or after retirement, have the right to
medical facilities. The decision on how a patient
should be treated rests with the treating doctor.
The focus should be on the actual treatment
received, supported by certified records.
Denying reimbursement on technical grounds is
unjust. It is trite that the right to health is
inextricably linked to the right to life protected
by Article 21 of the Indian Constitution. The
directions issued by the respondents do not
make any distinction between elective and
emergency interventions and hence cannot be
utilized to deny the petitioner the medical
reimbursement to which he is legally entitled. In
view of the principles laid down and
observations made above, I hold that there is no
justification in reimbursing the petitioner, the
amounts that he had actually incurred for the
treatment, less the deductible expenses."
The learned Single Bench has pondered the various
legal and factual issues in extenso and arrived at a
proper conclusion. We do not find any illegality,
perversity in the findings of the Single Judge. We are in
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agreement with the reasoning of the learned Single
Judge. No gound for interference is made out. Writ
appeal fails and thus, dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
vv
