High Court
Case Details
WP(C) 1400/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) This writ petition has been filed seeking a direction to the res pondents for re-imbursement of medical expenditure in full incurred by the petit ioner in the treatment of his wife. 2. Case of the petitioner is that he is presently working as Inspec tor of Police in the Special Branch Head Quarter of Assam Police, Kahilipara, Gu wahati. In the year 2008, his wife Swapna Chakraborty fell ill. Despite treatmen t at Guwahati, she did not recover. She was then taken to AMRI Hospital at Kolka ta for treatment where her ailment was diagnosed as carcinoma of the cervix. She had to undergo hospitalization in the said hospital on a number of occasions fo r chemotherapy and surgery. After completion of treatment in December, 2008, she returned home at Guwahati. 3. However, in November, 2009, the health of petitioner’s wife sudd enly deteriorated. She had to be taken to AMRI Hospital, Kolkata where she was u nder treatment from 11-11-2009 to 06-12-2009. As she did not show any sign of re covery, she was brought back to Guwahati where she expired on 20-01-2010. 4. According to the petitioner, he being an employee of the Assam G overnment, he is entitled to re-imbursement of the medical expenses incurred in the treatment of his wife. Accordingly, he submitted application dated 29-05-201 0 to the Director General of Police, Assam through proper channel for reimbursem ent of medical expenditure in the treatment of his wife. Petitioner enclosed the essential certificate alongwith the application claiming a total amount of Rs.6 ,90,879/-. 5. Deputy Inspector General of Police (A), Assam wrote to the Direc tor of Health Services, Assam vide letter dated 14-07-2010 enclosing therewith t he proposal of the petitioner. Stating that the patient had undergone treatment at AMRI Hospital, Kolkata without approval of the Director of Health Services, A ssam, the latter was requested to grant ex-post-facto approval and admissibility report for payment of Rs.6,90,879/- being the medical re-imbursement for treatm ent of the petitioner’s wife. It appears that the Director of Health Services, A ssam approved payment of Rs.6,78,750/- as medical reimbursement to the petitione r. After sometime, Government of Assam in the Home (A) Department i 6. ssued intimation to the Accountant General, Assam dated 09-12-2011 conveying fre sh sanction to the payment of Rs.1,69,975/- to the petitioner as medical reimbur sement being the cost incurred in connection with the treatment of his wife Swap na Chakraborty at AMRI Hospital, Kolkata. The said intimation was issued on the basis of admissibility report of the Director of Health Services dated 09-08-201 1. As per the said admissibility report, out of the claim of Rs.6,90,879/-, an a mount of Rs.5,20,904/- was deducted as non-admissible amount. The admissible amo unt was quantified at Rs.1,69,975/-. The previous admissibility report was cance lled. 7. g the relief as indicated above. Aggrieved, petitioner has filed the present writ petition seekin 8. Contention of the petitioner is that his claim is a genuine one. As a matter of fact, the amount claimed by him is much lesser than the actual e xpenditure incurred by him, not to speak of travel and lodging expenses. Petitio ner, being a Government employee, is entitled to medical reimbursement for the e xpenses incurred in the treatment of his wife. Respondents have accepted his cla im by paying a part of it. Therefore, action of the respondents in not paying th e entire amount is without any justification. A formal affidavit has been filed by respondent No.4. It is stat 9. ed that an amount of Rs.1,69,975/- had already been paid to the petitioner as me dical reimbursement by crediting the said amount to his bank account. In his affidavit, respondent No.5 i.e. Director of Health Servic 10. es, Assam has stated that treatment cost claimed by the petitioner is reimbursab le. He, however, stated that Finance Department had directed re-examination of t he claim of the petitioner for medical reimbursement by allowing only re-imburse ment of expenditure incurred in the purchase of medicines as per vouchers submit ted. Accordingly, the Director of Health Services, Assam issued the revised admi ssibility report amounting to Rs.1,69,975/-. 11. Commissioner and Secretary to the Government of Assam, Finance D epartment, who was subsequently impleaded as respondent No.6, has filed an affid avit. Stand taken is that AMRI Hospital, Kolkata is not a referral hospital for treatment of carcinoma as per Assam Medical Attendance Rules, 2008. Originally, the proposal for medical reimbursement to the petitioner was submitted by the Ho me Department without referral Medical Board Certificate for an amount of Rs.6,7 8,759/-. However, the Finance Department on due consideration gave concurrence t o the reimbursement of cost of medicines only. Subsequently, Home Department re- submitted proposal for an amount of Rs. 1,69,975/- as medical imbursement to the petitioner for treatment of his wife at AMRI Hospital, Kolkata covering cost of medicines as per revised admissibility report of the Director of Health Service s, Assam. Finance Department thereafter gave its concurrence. In his reply affidavit to the affidavit filed by respondent No.6 12. , petitioner has stated that AMRI Hospital, Kolkata is a referral hospital as pe r the Assam Medical Attendance Rules, 2008 and all Government officers/employees are entitled to reimbursement of the expenses incurred in the treatment of thei r spouses. Petitioner being an employee of the State Government, is entitled to such reimbursement. As such, petitioner is entitled to the full amount of medica l reimbursement totalling Rs.6,78,759/-. He should therefore be paid the balance amount of Rs.5,20,984/-.
Legal Reasoning
Heard Mr. Y.S. Mannan, learned Counsel for the petitioner and Mr 13. . J. Handique, learned Government advocate appearing for the respondent Nos. 1 t o 4. Also heard Ms. A. Verma, learned Standing Counsel, Health and Finance Depar tment for respondent Nos. 5 and 6. She has also produced the relevant record. Learned Counsel for the petitioner submits that the stand taken 14. by the respondents, more particularly respondent No.6, is most unreasonable. Pet itioner is a Government employee and, therefore, he is entitled to reimbursement of medical expenditure incurred in the treatment of his wife. Because of the em ergent medical condition of his wife, she had to be taken to the hospital where she had undergone treatment earlier. Question of seeking prior approval of the M edical Board in such a situation does not arise. When the respondents have reimb ursed a part of the medical expenditure, the decision to reject the claim for th e remaining amount on the ground that AMRI Hospital is not a referral hospital, does not stand to reason, he submits. In support of his submissions, learned Cou nsel for the petitioner has placed reliance on the following decisions:- (1) (Surjit Singh -Vs- State of Punjab and others) AIR 1996 SC 1388 (2) (State of Punjab and others -Vs- Mohinder Singh Chawla) AIR 1997 SC 1225 (3) (State of Punjab and others -Vs- Ram Lubhaya Bagga) AIR 1998 SC 1703 (4) (Gouri Sengupta -Vs- State of Assam and others) 1999 (3) GLT 601 (5) (Modan Mohan Bhowmik -Vs- State of Tripura and others) 2011 (1) GLT 793 (6) (Dr. Sujay Das -Vs- State of Tripura and others) 2012 (5) GLT 464 15. Opposing the submissions made by the learned Counsel for the pet itioner, Ms. A. Verma , learned Standing Counsel, Health and Family Welfare Depa rtments submits that AMRI Hospital, Salt Lake, Kolkata is a referral hospital fo r other ailments but is not a referral hospital for treatment of cancer. Referri ng to the provisions of Assam Medical Attendance Rules, 2008, she submits that n either the Health Department nor the Finance Department can go beyond the Rules. 16. partmental Counsel has also been perused. Submissions made have been considered. Record produced by the de Before proceeding further, a brief reference to the relevant pro 17. visions of the Rules may be made. A set of administrative Rules called the Assam Medical Attendance Rules, 1976 was framed providing for reimbursement of medica l expenditure to all the Government employees, including Government pensioners a nd Government family pensioners. For this purpose, certain hospitals were declar ed as referral hospitals. At the commencement of the Rules, a list of 13 referra l medical institutions alongwith the nature of ailment/treatment for which those institutions were approved, was provided. The above Rules were amended from tim e to time expanding the list of referral hospitals. This continued till the year 2008. 18. Thereafter, in exercise of powers conferred by the proviso to Ar ticle 309 of the Constitution of India and in super-session of all previous Rule s as indicated above, Assam Medical Attendance Rules, 2008 (Rules) has been fram ed governing medical treatment of Government servants, pensioners and their elig ible family members. As per Rule 4(b) of the Rules, (cid:28)authorized medical attendan t (cid:29) has been defined to mean doctor-in-charge of the Government hospital in which a person seeks medical treatment. Family includes wife amongst others. Patient has been defined to mean a Government servant or a member of his family amongst others who requires medical treatment. Treatment has been defined to mean use of all medical and surgical facilities. As per Rule 4(h), Referral Medical Board m eans the board constituted by the State Government for streamlining the procedur e of referring a patient for treatment outside the State. A detailed procedure i s laid down therein. To avail reimbursement of the expenses incurred in treating the patient outside the State, the Referral Medical Board shall make the referr al and on the basis of such referral, the patient can proceed to the referral in stitution and obtain treatment. If an emergent life threatening situation arises , the patient or his attendant can approach the Professor and Head of the Depart ment/Senior most Medical Officer, who shall apply his mind and if the situation so warrant, make a referral. However, such referral shall be placed before the R eferral Medical Board for ratification. As per Rule 11, if a patient suffers fro m cancer and such other diseases as mentioned, he shall be entitled to receive f ull reimbursement of the cost of medicines purchased by him outside Government H ospital on the prescription of the authorized medical attendant. In respect of c ancer, authorized medical attendant would be the Head of the Department of Medic ine in the Medical College Hospitals or the Director of Dr. B.Baruah Cancer Inst itute, Guwahati. Government issued notifications thereafter declaring certain he alth institutions, both outside and within the State of Assam, as referral hospi tals. The list of referral hospitals both inside and outside the State has been increased by issuance of subsequent notifications. As per the notification dated 03-06-2009, AMRI Hospital, Salt Lake, Kolkata has been declared as a referral h ospital outside the State for treatment of cardiology and knee and hip replaceme nt surgery. 19. Thus, from a reading of the aforesaid Rules, it becomes evident that in case of a patient suffering from cancer, he is entitled to receive full reimbursement of the cost of medicines purchased by him outside Government hospi tal on the prescription of the authorized medical attendant. It is also seen tha t AMRI Hospital, Salt Lake, Kolkata is a referral hospital for the treatment of cardiology and knee and hip replacement surgery. 20. A perusal of the treatment summary or the essential certificates submitted by the petitioner would show that there are two AMRI Hospitals at Kol kata, one at Salt Lake and the other at Gariahat Road. Those, however, do not in dicate whether the petitioner’s wife had undergone treatment at AMRI Hospital, S altlake or at AMRI Hospital, Gariahat Road. AMRI Hospital, Gariahat Road, Kolkat a is not a referral hospital at all under the Rules. On the other hand, AMRI Hos pital, Salt Lake, Kolkata is a referral hospital for the treatment of cardiology and knee and hip replacement surgery only. Therefore, it is quite clear that no ne of the two AMRI Hospitals is a referral hospital for treatment of cancer. The refore, the view taken by the Finance Department that the petitioner would not b e entitled to medical reimbursement for his wife’s treatment of cancer at AMRI H ospital, Salt Lake, Kolkata cannot be said to be erroneous or unreasonable. In so far reimbursement of cost of medicines is concerned, it ap 21. pears that the same has been granted to the petitioner under Rule 11 of the Rule s. I have considered the decisions relied upon by the learned Couns 22. el for the petitioner and I am of the view that the said decisions are not appli cable to the factual matrix of the present case. In Surjit Singh (supra), the ap pellants had chosen Escorts Hospital, a private hospital, amongst the three reco gnized hospitals for open heart surgery available in North India. In the case of Mohinder Singh Chawla (supra), the respondent had undergone treatment for heart ailment at AIIMS, New Delhi which was a recognized hospital. While reimbursemen t of actual expenses incurred was granted, the Government had rejected the claim for room rent paid to the hospital as inadmissible. Again, in the case of Ram L ubhaya Bagga (supra), the issue was the scale at which medical reimbursement of the employees and pensioners of Punjab Government incurred in a non-Government h ospital should be paid. The respondents were paid at the admissible rate in AIIM S but claimed the difference between what was paid and what was the admissible r ate at Escorts Hospital. In the facts of that case, the respondents were directe d to be paid the differential amount but it was made clear that such reimburseme nt should not be treated as a precedent. The other three judgments relied upon by the petitioner are clearly distinguishable as in the present case, there is a Rule framed under the proviso to Article 309 of the Constitution of India, whic h will govern the case of the petitioner. 23. Since the claim of the petitioner is beyond the Rules, the decis ion of the respondents to deny full reimbursement to the petitioner of the medic al expenditures incurred in the treatment of his wife cannot be said to be 0arbi trary, unreasonable or illegal. When there are Rules in force, grant of medical reimbursement will have to be governed by the provisions of the Rules. Sympathy and humanitarian considerations cannot be the guiding factors to consider such c laim as it pertains to disbursement of money from the public exchequer. 24. cannot be granted. Writ petition is without merit and is accordingly dismissed. For the aforesaid reasons, the relief claimed by the petitioner