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Judgment
J.B. Pardiwala, J.(Oral)—By this writ application under Article 226 of the Constitution of India, the petitioner (deceased), a former employee of the National Thermal Power Corporation, through his legal heirs, prays for the following reliefs:
"26 (A) By a writ of mandamus and/or a writ in the nature of mandamus and/or by any other writ, direction or order, it be declared that recovery made from the petitioner of Rs.1,89.505/towards the excess paid of the room rent to the hospital is illegal, bad in law and that the petitioner is entitled to the refund of any amount deducted on that count.
(B) By a writ of mandamus and/or a writ in the nature of mandamus and/or by any other writ, direction or order, it be declared that penal interest of 21% charged on the outstanding amount recovered from the petitioner is also illegal and bad in law and interest which is already recovered from the petitioner''s salary be refunded to the petitioner.
(C) By a writ of mandamus and/or by a writ in the nature of mandamus and/or by any other writ, direction or order, it be directed that the petitioner''s salary be revised on the basis that nothing is required to be recovered from the petitioner towards excess payment of room rent of Rs.1,89,505/and by waiving penal interest of 21% from the outstanding of the recovery and the amount already recovered against the aforesaid claim be refunded to the petitioner.
(D) Pending the hearing and final disposal of this writ petition, the respondents be restrained from deducting any amount from the petitioner''s salary towards the claim of Rs.1,89,505 towards excess room rent and also penal interest of 21% which is being charged and the respondents be directed to immediately refund the amount already deducted from the petitioner''s salary since 1996 towards the excess paid on room rent with 21% penal interest.
(E) That any other and further reliefs as the circumstances of the case may require, be granted.
(F) That the costs of the petition may be provided for."
The case of the petitioner may be summarised as under:
2.1 The petitioner joined the services of the National Thermal Power Corporation (for short, ''the Corporation'') as a ''Supervisor Trainee'' at Korba, STRS. He was posted at Zhanor as the Assistant Engineer on 17th October 1994.
2.2 The respondent � Corporation is fully financed by the Government of India. The Government of India has a deep and pervasive control over the Corporation. It is a ''State'' within the meaning of Article 12 of the Constitution of India.
2.3 The conditions of service of the employees of the Corporation are governed by the rules and regulations framed by the Corporation. The Conduct, Discipline and Appeal Rules 1977 governs the disciplinary action to be taken against the officers.
2.4 The petitioner had ailments relating to his heart. He was operated for close mitral valvotomy at the KEM Hospital, Bombay, in 1972. There was a restenosis of mitral valve, and therefore, a open heart surgery had to be performed for the replacement of mitral valve at the Nanavati Hospital, Bombay. The surgery was performed by Dr. Sharad Pande in the year 1991.
2.5 The petitioner, while working as the Assistant Engineer at the Zhanor Power Project, had to be hospitalized in the Nanavati Hospital, Bombay for an open heart surgery for replacement of the aortic valve from 13th February 1995 to 12th April 1995.
2.6 The petitioner had to be again hospitalized in the Nanavati Hospital at Bombay from 6th May 1995 to 10th May 1995. As the incision in his chest was not healing, he had to be once again hospitalized in the Nanavati Hospital, Bombay from 26th May 1995 to 13th July 1995.
2.7 As there was no satisfactory recovery after the open heart surgery, the petitioner requested the management of the Corporation to shift him to the Bombay Hospital, and accordingly, on 13th July 1995, the petitioner was shifted to the Bombay Hospital and he remained there till 2nd September 1995.
2.8 The petitioner was operated at the Nanavati Hospital and Bombay Hospital respectively. The Corporation issued an account payee demand draft and cheques directly to the two hospitals for performing the operation. The receipts issued by the hospitals were handed over to the Corporation at Zhanor.
2.9 When the petitioner had to be hospitalized for the second time in the Nanavati Hospital and Bombay Hospital, the amount incurred on the treatment was paid by the Corporation directly to the concerned hospitals.
2.10 For the drugs prescribed by the doctors towards the preoperational and postoperational treatment, separate invoices were given by the petitioner of /s. Kit Surgical and M/s. Cardiac Medical Products, Bombay. In this regard, in July 1996, a departmental inquiry was initiated by the Vigilance Officer of the Corporation and a memorandum was issued to the petitioner dated 29th June 1996 alleging that the medical reimbursement claimed by the petitioner by separate invoices was found to be bogus and the amount of Rs.1,19,000/- was received by the petitioner on the basis of such bogus invoices. The petitioner gave a detailed reply dated 14th August 1996, pointing out that the petitioner had already undertaken three major open heart surgeries and had to maintain his family including an aged mother. He had not received salary during the long period of seven months when he was hospitalized and operated upon. He pointed out that the renowned Cardio Vascular Surgeons, who operate upon the persons in big hospitals, would demand money by way of undertable transactions and he had to pay accordingly for his operation.
2.11 He had to sell the jewellery of his wife for the purpose of the treatment. Both monetarily and mentally, he was shattered and had no money to pay the Surgeon over and above the amount which was paid by the Corporation to the hospitals.
2.12 He virtually admitted raising such bogus invoices on account of the compelling circumstances.
2.13 By order dated 6th June 1997, a penalty of reduction to the lower post of Supervisor (Civil ) Grade � I (S � 3) in the scale of Rs.3300 � 5625/was imposed. It was further directed that on reduction to the lower post, the pay of the petitioner should be fixed at Rs.5625/- i.e. the maximum of the scale of his reduced post. The petitioner was to be considered as a fresh promotee to the rank of Supervisor (Civil ) Grade � I (S � 3) for the purpose of promotion to the original post of the Assistant Engineer (Civil ).
2.14 The appeal before the Director (Personnel), being the appellate authority, also failed and was dismissed.
2.15 The petitioner was informed by the Corporation that the outstanding of the advance lying in the name of the petitioner was to the tune of Rs.85,898/- against the vigilance order and Rs.1,89,505/- towards the excess of the entitlement of the room rent. He was also informed that the penal interest at the rate of 21% upto 31st March 1998 would be recovered and the penal rent from August 1994 to 1996 of the quarter to the tune of Rs.33,987/would also be recovered as his family had retained the quarter although the petitioner was transferred to Zhanor.
2.16 The excess entitlement of room rent was recovered on the ground that the Corporation had agreed to reimburse the room rent as fixed and the hospital admitted the petitioner in a room which had a higher rent. A person, who undergoes open heart surgery, is kept in the special room as advised by Heart Surgeon considering the condition of the patient.
2.17 The amount of Rs.1,89,505/recovered being the excess of the entitlement of the room rent was a very harsh and inhumane decision.
2.18 Hence, this petition.
Ms. Mehta, the learned counsel appearing for the petitioner vehemently submitted that the recovery of Rs.1,89,505/towards the excess entitlement of the room rent with penal interest at the rate of 21% from the salary of her client could be termed as a very arbitrary act on the part of the Corporation. Ms. Mehta submitted that the recovery was illegal, ultravires and erroneous in law.
Ms. Mehta submitted that her client had to undergo three open heart surgeries and had no choice or option as regards the room in which the Surgeon thought fit to keep him.
Ms. Mehta has placed strong reliance on the decision of the Supreme Court in the case of State of Punjab v. Mohinder Singh Chawla 1997 (2) SCC 83. In such circumstances referred to above, the learned counsel prays that there being merit in this writ application, the same be allowed and the Corporation be directed to refund the amount of Rs.1,89,505/recovered from the salary of her client. She further prays that so far as the amount of Rs.1,42,000/- is concerned i.e. the amount sought to be recovered towards penalty at the rate 21% interest, a fixed deposit receipt of the said amount has been in the custody of the Corporation and the Corporation be directed to hand over the fixed deposit receipt matured on 7th December 2006.
On the other hand, this writ application has been vehemently opposed by Mr. Abhishek Mehta, the learned counsel appearing for the Corporation. Mr. Mehta submits that his client sanctioned the amount towards the costs incurred by the petitioner for the open heart surgeries in accordance with the policy of the Corporation. He vehemently submitted that so far as the room rent is concerned, according to the policy of the Corporation, it would be on par with the Holy family hospital situated at Delhi. Keeping in mind the position of the petitioner in the Corporation, the petitioner was entitled for reimbursement of Rs.300/- per day towards the room rent of the hospital. Anything beyond the same, it is for the petitioner to pay from his own pocket. He submits that his client being an instrumentality of a ''State'' has to abide by the rules and regulations governing the Medical Attendance and Treatment. Mr. Mehta has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the Corporation:
"6.3 With reference to para 4, I say and submit that the dates and duration during which the petitioner had undergone treatment for heard ailment at various hospitals in Bombay is not disputed. The petitioner was shifted to Bombay Hospital at his request from 13.7.1995 till 2.9.1995, as admitted by the petitioner. Annexed herewith and marked as AnnexureI is a copy of the letter dated 3.7.1995 addressed to the respondent Corporation by the petitioner.
6.4With reference to para 5, I say and submit that pursuant to the application dated 7.2.1995 of the petitioner requesting for the release of an advance of Rs.2 lakhs to meet medical expenses, the respondent corporation had issued an account payee demand draft for Rs.2 lakhs in favour of M/s. Nanavati Hospital, Mumbai on account of the petitioner. Annexed hereto and marked a Annexure-II is a copy of the aforesaid application dated 7.2.1995. thus, it is not true that the petitioner had not taken any advance for medical treatment. In order to ensure that the amount sanctioned on the ground of heart operation is properly utilized, it is the sound established practise of the respondent Corporation to grant such cheques/drafts in favour of the hospital concerned, to be used specifically for treatment of the concerned employee of the respondent Corporation and it was because of this reason that the demand draft was issued in favour of M/s. Nanavati Hospital. The petitioner has also given an undertaken in his application dated 7.2.1995 that any amount that becomes non-reimbursable to him under Medical Attendance and Treatment Rules may be recovered from him. The respondent had simultaneously informed the petitioner under the respondent''s letter No.JGGPP:P&A:Estt:Med:21003/85/698 dated 7.2.1995 that any amount that does not become reimbursable to him under the said medical rules shall be recovered from him. Annexued hereto and marked as Annexure-III is a copy of the said letter dated 7.2.1995. The petitioner himself requested for availing treatment at M/s. Nanavati Hospital and Bombay Hospital through the surgeons of his choice like Dr. Sharad Pandey and Dr. S. Bhattacharya is evident from the contents of Annexure-II and III that the advance of Rs.2 lakhs was sanctioned to the petitioner on his request which was subject to adjustment as per the aforesaid Medical Rules.
6.5 With reference to para 6, I say and submit that it contains a clear admission vide Annexure-A to the petition on the part of the petitioner that the petitioner had produced bogus bills to the extent of Rs.1,19,743/. According to the petitioner, it was under sheer exasperation that petitioner was tempted to raise bogus bill, in order to pay to the Surgeon who unethically charged extra amounts over and above the regular professional fees. It is, however, pertinent to note that aforesaid admission was as sequel to the enquiry by the Vigilance Department of the respondent Corporation. The petitioner cannot take asylum under such excuses. The respondent, however, has no knowledge as to whether the petitioner in fact sold the jewellery of his wife or made any illegitimate payments to attending surgeon Dr. Sharad Pande. The petitioner may have an appropriate remedy against the doctor if he so chooses. The respondent Corporation is not concerned with the same. I submit that no one is above law and the petitioner cannot be allowed to commit an offence by obtaining bogus bill knowingly and raising false claim upon the respondent Corporation. I submit that the aforesaid amount of Rs.1,19,743/is recoverable from the petitioner.
6.6 I further say and submit that the petitioner was charge sheeted for committing fraud, dishonesty in connection with the business of the Corporation and acting in a manner prejudicial to the interest of the Corporation. A copy of the memorandum No.01/Vig/IC(194JG) 1075 dated 29.7.1996 along with statement of Articles of charge, statement of imputations of misconduct in support of articles of charges, list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained (Annexures I to IV attached thereto) issued to the petitioner by the disciplinary authority is annexed hereto and marked as Annexure-IV. The gravity of default committed by the petitioner calls for his dismissal from service, whereas at the conclusion of the domestic enquiry, purely on sympathetic grounds and as a matter of mercy, the petitioner was allowed to continue in service of the Corporation with reduction in rank viz. To the post of Supervisor (Civil ) Gr.I, S3, in the pay scale of Rs.330012041401355625. The petitioner appealed against the order of punishment to the Director (Personnel) by a letter dated 15.7.1997. While rejecting the said appeal, it was observed in the order No.01/Vig/DIPC(194JC) 371 dated 10.3.1997 as under:
"The charges are grave in nature and malafides is writ larges in the acts of misconduct committed by the appellant and that the disciplinary authority has already taken a lenient view while imposing the penalty of "reduction to a lower post" on the appellant on the ground that any other more stringent punishment, if imposed on the appellant would cost him his employment in NTPC, besides severe consequences due to his ille health."
The misconduct committed by the petitioner falls in the category of ''major penalty'' as provided in the Conduct, Discipline & Appeal Rules. Thus the petitioner was imposed a major penalty under Rule 23(e) of the said Appeal Rules. The respondent Corporation submits that since the petitioner was put to a lower grade, the petitioner shall be eligible to pay / benefits applicable to the lower grade or post only which are consequential. I say and submit that the contention of the petitioner that the said order of punishment has the effect of imposing four ''minor punishments'' is misconceived and not correct. I say and submit that recovery against raising of bogus bills to the tune of Rs.1,19,743/cannot by any stretch of imagination be called a punishment. Similarly loss of promotion during the duration of punishment is not denial of promotion, but a necessary concomitant of the punishment. Both cannot go hand in hand. As sated herein above taking a sympathetic view, a lighter punishment of reduction in rank was awarded to the petitioner. The petitioner has therefore no reason to make grievance against the recovery of excess amount or for reduction in his emoluments consequent to reduction to a lower post.
6.7 With reference to para 7 of the petition, I say and submit that the house rent was recoverable at penal rates as the petitioner continued to occupy family quarter unauthorisedly beyond the permitted period at Korba after his transfer to Jhanor. I say and submit that in the facts and circumstances of the case, the penal rent of Rs.33,987/as on 1.4.1998 and penal interest thereon have been waived as per the particulars given in Annexure-X to the petition and has been adjusted against the outstanding amount recoverable from the petitioner and therefore, the said grievance does not survive now. I say that Rs.85,898/was recoverable against the payment already made against the bogus bills as per order of the Vigilance Department. Annexed hereto and marked as Annexure-V is a copy of the statement showing the amount recoverable from the petitioner."
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"6.11 With reference to para 10 of the petition, I say and submit that the particulars given in Annexure-I to the petition represent the correct state of affairs as regards the amounts recoverable from the petitioner against the claims received for false medical bills amounting Rs.1,19,743/. However, on checking up of the figure arrears of Hra, it is found that the outstanding amount if Rs.33,987/and not Rs.39,052/as show in intra-office memo (AnnexureI to the petition). Since the recovery against House Rent and penal interest thereon have been waived, it has no bearing on the present case.
6.12 With reference to paras 11 and 12 of the petition, I say and submit that they are statements of facts and self explanatory and need no comments, except that Annexure-L to the petition at page 64 which is purported to be a copy of letter 15.10.1998 is not correctly made, inasmuch as the following important portion of a sentence has been omitted therefrom;
"and would take 8/9 years to recover the advance and as per existing"
from the last sentence of para 1 of the letter. Annexed hereto and marked as Annexure-VII is a copy of letter dated 16.10.1998 from the Deputy Manager (F&A) of the respondent at Jhanor project. I say and submit that the words omitted show the rationale behind the decision to recover penal interest as in the facts and circumstances of the petitioner''s case it was not possible to recover the amount of excess advance availed by the petitioner in one instalment.
6.13 With reference to para 13 of the petition, I say and submit that the earlier vigilance inquiry/domestic inquiry conducted was conducted after following principles of natural justice. During the said domestic inquiry, the petitioner admitted the defaults of grave nature committed by him, the inquiry was conducted, but as an extenuating circumstance the petitioner has been continued in service with a punishment of reduction the petitioner has been continued in service with a punishment of reduction in rank although as aforesaid the offence of cheating, forgery and misapplication the amount of advance for purposes other than medical treatment merited dismissal of the petitioner. Departmental proceedings once concluded cannot be reopened on the basis of an afterthought or on the basis of the documents produced after a period of about 2 years after the date of passing of the order of punishment. Besides,k the bill amounting to Rs.55,295/purported to have been issued by a non-existing firm, viz. M/s. Cardio Medical Products, CGS Colony, Antoop Hill, Bombay 400037 is a bogus one, as brought out in the statement of Article of Charge against the petitioner. I say and submit that in the facts and circumstances of the case the petitioner deserves no sympathy from this Hon''ble Court.
6.14 With reference to para 14, I say and submit that the representations made by the petitioner as per Annexures-O and P to the petition, did not merit any sympathy. As regards penal rent on staff quarter provided at Korba for overstay and interest thereon, as stated herein above, has already been waived. However, the recovery of outstanding advance against room rent beyond entitlement in Hospitals and recovery on account of rejection of bogus bills attracted interests thereon and the same could not be waived. The respondent had to ensure that the recovery of the outstanding amount was completed before the petitioner retired from service and it was in consideration of the remaining span of service of the petitioner, that the amount to be recovered every month was determined. The petitioner obviously failed in his duty by producing bogus bills for reimbursement of medical expenses and thereby committed grave misconduct unbecoming of an officer of the respondent (a public Corporation).
6.15 With reference to para 15, I say and submit that the recovery of the amount of Rs.1,19,743/claimed by the petitioner against bogus bills had to be made independently of punishment given at the end of the domestic inquiry on the basis of charges of grave misconduct. The punishment of reduction in rank imposed on the petitioner as per order dated 6.6.1997 (Annexure-B) to the petition did not have the effect of obliterating the aforesaid recovery. The petitioner has purposely tried to confuse the issue. Production of bogus bills for claiming reimbursement of medical expenses and admission thereof itself amounted to grave misconduct for which punishment was required to be imposed. However, the imposition of penalty for grave misconduct does not mean that the amount drawn against bogus bills were not to be recovered. It was not necessary to make a mention thereof in the order of punishment as the recovery of such amount is not punishment, but a monetary transaction of excess drawn amount required to be settled by recovery.
I further say and submit that reliance placed on the decisions of the Hon''ble Supreme Court rendered in Civil Appeal No.16979/1996 in the case of State of Punjab v. Mohinder Singh Chawla and in Civil Appeal No.12945/1996 in the matter of State of Punjab and others v. V. Waryam Singh is not correct, inasmuch as the said decisions have to be read in context of the facts and circumstances of the case. The said appeals were decided in context of the policy of the State of Punjab in the year 1991, regarding reimbursement of medical expenses and specialised treatment as indoor patient and with reference to medical claim for reimbursement lodged on 21.9.1994 reimbursement of medical expenses. The said policy is not in pari materia with the Medical Attendance and Treatment Rules of the respondent Corporation and therefore, the observation contained in the said decision cannot ipso facto applied to the case of the petitioner.
6.16 With reference to paras 16, 17 and 18 of the petition, I say and submit that the petitioner has been promoted to his original rank with retrospective effect from 1.1.2001 vide order no.JGGPP/HREBG/ 02 dated 28.5.2002. Annexed hereto and marked as Annexure-VIII is a copy of the said order dated 28.5.2002 and his present takehome salary of the petitioner is Rs. . Therefore, the petitioner''s grievance that he is being paid Rs.3000/- per month does not survive. The petitioner has already been furnished with the details regarding the recoveries to be made under each head and the balance recoverable as on 19.6.2001 (Annexure-X to the petition).
6.17 With reference to para 19, I say and submit that there subsisted no right in the petitioner to claim any amount in excess of the limits laid down in the Medical Rules of the respondent. Therefore, the recovery of excess amount and interest thereon is perfectly legal and intra vires the respondent and is not violative of Articles 14 and 16 of the Constitution of India as alleged or otherwise. The recovery of interest on the amount availed in excess of the entitlement cannot be said to be a double jeopardy inasmuch as it is the interest paid on the excess amount had and used for the benefit of the petitioner and therefore, it is a natural consequence, but cannot be viewed as a punishment because as explained aforesaid punishment for misconduct cannot be confused with interest on outstanding amount. Therefore, recovery of interest, miscalled penal interest is factually not a punishment, but, a pure outcome of a transaction resembling a contract. Besides, the rate of 21% is effectively only 3% over the commercial lending rates of nationalised beanks, which at the relevant time was 18% per annum. However, actually charges interest has been reduced in the subsequent years, i.e. @ 18% from April, 1988 to July 2000 and @ 15% from August 2000 to March 2011 and the same rate continues at present. Therefore, the petitioner''s grievance against the rate of 21% interest is not sustainable."
To the aforesaid reply of the Corporation, the petitioner has also filed a rejoinder inter alia stating as under:
"5 With reference to para � 6.4 of the affidavit-in-reply, I say that the advance released of Rs.2.00 lacs was in favour of Nanavaty Hospital, Bombay by A/c payee demand draft and there is no allegation that I have taken a single rupee from that. I say that if any amount is non-reimbursable under the Medical Attendance and Treatment Rules, it can be recovered from the employee. However, as per the judgment of the Hon''ble Supreme Court relied upon by me in the petition, the question of room rent cannot be decided by the authority, but it is left to the discretion of the doctor who decides in which room or which facility, the patient is required to be kept or given especially in case of open heart surgery. I therefore say that as stated in my petition, the room rent which was directly paid to the hospital by the National Thermal Power Corporation cannot be recovered from me according to the demand draft and it is the discretion of the hospital to decide the in which room and facility the patient is required to be kept and given, after a particular operation. I therefore say that my claim in the petition against the reimbursement for room rent is legal and valid in view of the judgment of the Apex Court.
6 With reference to para � 6.5 of the affidavit-in-reply, I say and repeat that I had agreed that the amount of Rs.1,19,742/which was recovered by me against the bills of medicines may be recovered from my salary. I say that at the time of the first open heart surgery I had paid the doctor by selling jewellery of my wife and at that time, there was no occasion of recovering money paid to the doctor by me. I say that even during the inquiry against me, no effort was made to talk and find from Dr. Sharad Pande. I had disclosed his name in my very first statement and pointed out the exact amount paid to him during my first surgery and during the second surgery. I say that for raising such bills, not only I had admitted the bill, but I had submitted to the penalty imposed on me and already agreed to pay Rs.1,19,742/by way of recovery from my salary. I had only objected to the exorbitant interest being charged by the respondent � Corporation from its employee. I say that the interest leviable at the rate of 21% is not only unjustified but is exorbitant and is illegal being arbitrary and penal interest. I say that once I accepted the penalty, imposed on my and also agreed that the amount recovered by me be recovered from my salary, the second penalty of penal interest of 21% could not have been imposed. The same was contrary to law that the person cannot be penalised twice for the same offence.
7 With reference to para 6.6 of the affidavit in reply, I deny that it was a case of fraud in connection with the business of the Corporation and that I acted pre-judicially to the interest of the Corporation. I say that the circumstances pushed me against the wall and I had no alternative but to pay additional money to the doctor who demanded it at the time of my open heart surgery, I say that once the inquiry is held and penalty is imposed, there is no question of deponent of the affidavit-in-reply raising the question regarding proportionate penalty. I say that he has no right to raise the same as he is Manager, H.R. at the Project who has no right to behave as an appellate authority. I say that I appreciate the sympathetic ground stated in the affidavit, however, the penalty imposed on me is in view of the charges levelled against me and no further penal action can be taken against me. I say that if a major penalty of reduction to lower post is already imposed under Rule 23(e) of the Conduct, Discipline and Appeal Rules, further penalty of charging of exorbitant interest cannot be imposed. I further say that I had already agreed for recovery of Rs.1,19,742/- from my salary which binds me. However, dual penalty cannot imposed on my by charging 21% interest.
8 With reference to para � 6.7 of the affidavit-in-reply, I say that the question of house rent was solved by the order passed by the higher authority and, therefore, I do not deal with the same. I say that there is no misappropriate from the advance paid to the hospital and, therefore, the question whether it amounts to an advance paid to misconceived. I say that here the question is of recovering the amount which was recovered by me directly against the medical bills."
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"12 With reference to para 6.13 of the affidavit-in-reply, I say that once the departmental inquiry is held against me and the disciplinary authority has taken a decision of penalty, no further penal action can be taken against me. I say that regarding medical bills, I am not retracting from my admission and I am relying upon the explanation given by me during the inquiry and subsequently."
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"14 With reference to para � 6.5 of the affidavit-in-reply, I say that I have not complained against the recovery of Rs.1,19,742/which was recovered by instalments from my salary. I say that the question of bogus bill cannot be raised as fullfledged departmental inquiry is over and the order of penalty is already passed. I refer to and rely upon the decision of the Supreme Court rendered in Civil Appeal No.16976 of 1996 for its true and correct interpretation. I say that the judgment clearly lays down the position of law as to whether the authority have a right to decide or rely upon its own rules as far as the room rent of the hospital for employee is concerned. I say that it is for the hospital and the doctor to take a decision regarding accommodation required for a patient looking to the treatment required by such patient."
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the legal heirs of the deceased petitioner are entitled to the reliefs prayed for in this writ application.
On 15th February 2002, the following order was passed:
"Learned Advocate Ms. Sangita Vishen appearing for the respondents prays for time. S.O. to 6.5.2002.
Looking to the facts of the case, ad-interim relief to the effect that a sum of Rs. 1,89,505/paid towards room rent and penal interest at the rate of 21% shall not be recovered from the petitioner during the pendency of the petition."
Thereafter, on 31st August 2004, the following order was passed:
"Heard the learned advocates.
RULE expedited. Learned advocate Mr.Barot waives service of rule.
The present petition is confined to the recovery of the amount of the room rent paid to the Bombay Hospital during the period of petitioner''s stay at the said hospital for treatment and the recovery of interest @ 21% per annum.
It is undisputed that the petitioner had recovered a sum of Rs.1,19,743=00 by producing medical bills which were found to be false. The respondent Corporation shall be at liberty to recover the said sum of Rs.1,19,743=00 or any part of it, if it is outstanding, with interest @ 9% per annum.
As to the recovery of the room rent and the penal interest @ 21% per annum, there shall be stay pending this petition."
The last in point of time i.e. on 7th March 2013, the following order was passed:
"1. The petitioner was treated at Nanavati Hospital and the controversy in this petition is with regard to Rs.1,89,505/- which according to petitioner was paid by him as per the package of the Hospital, which was approved by the respondent authorities and therefore, no amount was liable to be deducted from him.
On the other hand, it is indicated by the respondents that, it is not that entire amount of room charges is not approved, but whatever was admissible, was already paid to the petitioner. Reference in this regard is made to the calculation given at page no.151 of the paper book. It is further indicated by the respondents that, according to them, an amount of Rs.1,89,505/-, was inadmissible, which is already recovered from the petitioner. This is where the controversy of the principal amount of Rs.1,89,505/- stands.
Over and above, the above referred principal amount, the authorities have also claimed interest on the said amount. The amount of interest so claimed is indicated to be Rs.1,42,000/- . For the said amount of interest, an arrangement was worked out by the parties interse, and accordingly that amount of Rs.1,42,000/- is deposited in a Nationalized Bank in the term deposit, in the name of the petitioner but the said FDR is retained by the Management. This is where the controversy of the interest amount of Rs.1,42,000/- stands.
Learned advocate for the petitioner contended that, without prejudice to the rights and contention of the petitioner that the petitioner was not liable to pay even the principal amount, in any case, no interest could have been permitted to be claimed by the respondent Management.
Thus now, it is not in dispute that Rs.1,89,505/towards principal amount is already recovered by the Management and Rs.1,42,000/- towards interest, is retained by it in the form of term deposit, as referred above.
List for further hearing on 11.03.2013 , within first twenty matters on the final hearing board of that day."
Before adverting to the rival submissions canvassed on either sides, I should look into the Medical Attendance and Treatment Rules framed by the Corporation:
"1.0 Scope:
The NTPC Medical Attendance rules apply to:
1.1 All regular employees, Trainees and apprentices (other than Act apprentices) and their families, CISF personnel and also employees of schools financially assisted by the company. Deputationists from Government Department and other organisations are entitled to such additional medical attendance and treatment as is provided in their parent departments and is specified in the terms and conditions of their deputation. Act Apprentices and casual employees (not their families) are entitled only to emergency treatment for injuries sustained during and in the course of their duty or training, as the case may be.
1.2 Temporary/Work charged/dailyrated employees with over one year of service, will be given free Indoor and outdoor treatment in the company''s Hospitals for themselves and their families."
"4.0 The treatment at places where fullfledged company dispensaries/hospitals do not exist.
4.1 Out Patient Treatment.
4.1.1 Employees may receive medical attendance and treatment from private registered Medical Practitioners of their choice and actual fees charged by the Doctors will be reimbursed subject to the following limits:
Type of Doctor
Consultation charges
For the Clinics
For Domiciliary Visits
MBBS
Rs.200/- (Each consultation) subject to a maximum of 4 consultations for the same ailment.
Rs. 300/- (each visit/consultation) subject to a maximum of 4 visits / consultations for the same ailment
Specialists (M.S./M.D.)
Rs. 400/- (each consultation) subject to a maximum of 4 consultations for the same ailment
Rs. 600/- (each visit / consultation) subject to a maximum of 4 visits / consultations for the same ailment
Note : (a) For visits between 10.00 PM and 6.00 AM, the charges will be 1.5 times the normal charges.
(b) A certificate will also be required to be effect that the domiciliary visit was essential in the interest of the health of the patient.
(c) For outpatient treatment obtained in notified hospitals, the consultation charges as charges by notified hospital concerned shall be reimbursed.
4.1.2 Any employee can directly consult the specialist, if required.
4.2 Indoor Treatment
4.2.1 For Delhi based employees:
4.2.1.1 In cases requiring hospitalization, the patient can be admitted to the following hospitals on the advice of the authorised medical Attendant:
I. Any Government Hospital
II. Railway Hospital
III. Public Sector Undertaking Hospital
IV. Local Authority Hospital
V. A.I.I.M.S.
VI. Any notified hospital by company. The list of notified hospitals is enclosed at AnnexureI.
4.2.1.2 Actual charges in respect of medicines / laboratory tests and investigations / operation charges etc will be reimbursed. Charges for the diet/personal expenses will, however, be borne by the employee. Diet charges are admissible in case of General Ward only.
4.2.1.3 Treatment can be obtained from any other private hospital nursing home also, provided the company''s AMO is immediately informed about each such case by the employee and the same is approved in writing. In case where treatment is obtained from any other private hospital / nursing home, the entitlement for accommodation, major operation and diagnostic tests etc. will be limited to those of Holy Family Hospital. Sir Ganga Ram Hospital or All India Institute of Medical Sciences (AIIMS), whichever is higher subject to actual.
4.2.1.4 Accommodation charges in notified hospital and others will be regulated as per the scales laid down (Annexure-II).
4.2.1.5 If treatment is taken in a non-notified hospital, reimbursement of actual accommodation charges may be made limited to following rates:
Grade
Rate/day (Rs.)
Executives
Non-Executives
�
W1W4
300
�
w5w6
550
E1
W7 & above, all Supervisors
950
E2-E4
NA
1500
E5-E7A
NA
1800
E8 & above
NA
2000
4.2.2 For employees posted at places other than Delhi:
4.2.2.1 Hospital will be notified by the Executive Director of concerned Region at various places viz. Places where Regional Hqs/Offices, etc. are located based on requirements. On such notification, reimbursement of expenditure shall be regulated as under:-
(I) For places where hospitals are notified If treatment taken in a notified hospital: Reimbursement of actual accommodation charges limited to the entitlement (linked to pay scales) of employees as notified.
(ii) For places where hospitals are notified Reimbursement of actual accommodation charges limited to specified percentage of rates admissible for Delhi based employees in non notified hospitals i.e. as at Sl. No. 4.2.1.5 above, as follows:
CLASSIFICATION OF CITIES
PERCENTAGE
X
''100%
Y
''80%
Z
''60%
Classification of cities will be the same as followed for payment of HRA
4.2.2.2 Reimbursement of claims for non-notified hospitals preferred by the employees for undergoing diagnostic tests/investigation which are not specified in the Scheduled of charges of Holy Family Hospital will be regulated in accordance with the rates specified by Sir Ganga Ram Hospital, All India Institute of Medical Sciences (AIIMS). The reimbursement of charges in these cases shall be limited to the specified percentages, as stipulated at para 4.2.2.1 above, depending upon the category of places where the tests/investigation are performed. If the diagnostic test/investigation are not covered in the Schedule of charges of Holy Family or Sir Ganga Ram Hospital or the AIIMS rate list, reimbursement for the same may be regulated in accordance with the advice / recommendations of the AM.
4.2.2.3 Ordinarily, an employee should receive treatment for self/his dependents at the place where he is posted for the time being and accordingly, the reimbursement of medical claims is to be regulated with reference to the ceiling rates applicable to his place of posting. However, If an employee/his dependents are compelled to receive treatment at a place of medical claims of posting in certain exceptional circumstances, the reimbursement of medical claims of the employees is to be regulated with reference to the ceiling rates applicable to the actual place of treatment and not with reference to the ceiling rates applicable to the place of posting."
The chart below would indicate the correct position of the amount which was recovered by the Corporation on the ground of non-entitlement of the room rent beyond Rs.300/- per day:
Excess paid by NTPC for non-entitlement (Mr. Tamhankar Case)
(I)
Nanavati Hospital (13.02.95 � 12.04.95)
Room Rent : 53 x 900
Rs. 47700.00
05 x 1100
Rs. 5500.00
Rs. 53200.00
S.C. 15%
Rs. 7980.00
Total
Rs. 61180.00
Less : Entitled 58 x 300
Rs. 17400.00
Rs. 43,780.00
(II)
Nanavati Hospital, Mumbai (26.05.95 � 13.07.95)
Room Rent : 01 x 650
Rs. 650.00
48 x 900
Rs. 43200.00
Rs. 43850.00
S.C. 15%
Rs. 6578.00
Rs. 50428.00
Less : Entitled 49 x 300
Rs. 14700.00
Rs. 35,728.00
(III)
Bombay Hospital (13.07.95 � 02.09.95)
Room Rent : 20 X 1500
Rs. 30000.00
32 x 1875
Rs. 60000.00
Rs. 90000.00
S.C. 20%
Rs. 18000.00
Rs. 108000.00
Less : Entitled 52 x 300
Rs. 15600.00
Rs. 92400.00
(b)Dr.''s Visit � Rs.8760.00 Rs. 7360.00 (entitled)
Rs. 1400.00
(c) Xray & other lab. Charges �
Rs. 16197.00
Rs. 21558.00 � 5361.00 (Entitled)
Total
Rs. 189505.00
The other charts are as under:
"Statement as on 18.04.2001 Room Rent
Sr. No.
Period
Prevailing Interest rate (in%)
Penal Rate of NTPC @ +3%
Principal Amount (in Rs.)
Interest calculated (in Rs.) (but not recovered)
1.
01.04.1995 to 31.03.1998
18
21
1,89,505
89756
2.
01.04.1998 to 31.03.1999
15
18
1,89,505
34111
3.
01.04.1999 to 31.03.2000
15
18
1,89,505
34111
4.
01.04.2000 to 31.07.2000
01.08.2000 to 31.03.2001
15
12
18
15
1,08,368 (81,137
recovered during the year
15647
5.
01.04.2001 to 18.04.2001
12
15
1,08,368 (recovered through pay revision arrears)
802
TOTAL
1,74,427
Total interest calculated (but not recovered) = Rs.1,74,427 (Less) Deducted prior to Hon''ble Court order dated 31.08.2004 = Rs.8,344 Remaining balance = Rs.1,66,083."
INTEREST CALCULATION
Sr. No.
Particulars
Principal Amount (in Rs.)
Interest Amount (in Rs.)
1.
Room Rent
1,89,505/-
1,74,427/(1,66,083 not recovered)
2.
Vigilance
1,19,743/(but 85,898/as on 31.3.1998 � letter dated 05.06.1998
20,537/(@ 9% as per the Court order dated 31.08.2004)
3.
LTC Advance
12,494/-
5,426/-
4.
Medical
19,402/-
4,428/-
Table showing the interest calculation of Vigilance
Interest calculated @ 18%/21% from the period September 1996 to March 2000
Rs. 45,562/-
(-)Interest calculated @ 9% as per the Court order dated 31.08.2004
Rs. 20,537/-
Difference of interest amount after the said court order
Rs. 25,025/-
Let me now look into the decision of the Supreme Court in the case of Mohinder Singh Chawla (supra), on which strong reliance has been placed by the learned counsel appearing for the petitioner. In that case, Mohinder Singh Chawla, an employee of the State Government of Punjab had a heart ailment. Since otherwise the treatment for that ailment was not available in the hospital maintained by the State Government, he was given permission by the Director and approved by the Medical Board to have treatment outside the State. His case was referred to the A.I.I.M.S. at New Delhi. The question was whether while reimbursing his medical expenses, the room rent paid to the hospital by him was to be included therein.
The State Government pleaded against the inclusion on the ground of being contrary to para (vii) of its resolution contained in the letter dated 25th January 1991. Rejecting that plea and allowing the employee''s appeal, the Supreme Court held as under:
"4. It is contended for the appellants State that the Government have taken decision, as a policy in the Resolution dated January 25, 1991 made in Letter No.7/7/85/5HBV/2498, that the reimbursement of expenses on account of diet, stay of attendant and stay of patient in hotel/hospital will not be allowed. Permission given was subject to the above resolution and, therefore, the High Court was not right in directing the Government to bear the expenses for the stay in the hotel/hospital contrary to para (vii) of the Resolution of the Government. We find no force in the contention. It is an admitted position that when specialised treatment was not available in the Hospitals maintained by the State of Punjab. Permission and approval having been given by the Medical Board to the respondent to have the treatment in the approved hospitals and having referred him to the AIIMS for specialised treatment where he was admitted, necessarily, the expenses incurred towards room rent for stay in the hospital as an inpatient are an integral part of the expenses incurred for the said treatment. Take, for instance, a case where an inpatient facility is not available in a specialised hospital and the patient has to stay in a hotel while undergoing the treatment, during the required period, as certified by the doctor, necessarily, the expenses incurred would be integral part of the expenditure incurred towards treatment. It is now settled law that right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee. The High Court was, therefore, right in giving direction t reimburse the expenses incurred towards room rent by the respondent during his stay in the hospital as an inpatient.
5 The learned counsel then contends that the State would be saddled with needless heavy burden, while other general patients would not be able to get the similar treatment. We appreciate the stand taken that greater allocation requires to be made to the general patients but unfortunately due attention for proper maintenance and treatment in Government Hospitals is not being given and mismanagement is not being prevented. Having had the constitutional obligation to bear the expenses for the Government servant while in service or after retirement from service, as per the policy of the Government, the Government is required to fulfil the constitutional obligation. Necessarily, the State has to bear the expenses incurred in that behalf."
In State of Punjab v. Waryam Singh [S.L.P. (C) No.12945 of 1996] i.e. the connected matter with the matter of Mohinder Singh Chawla, the Supreme Court held as under:
10 It is contended for the State that though the Government had granted expost 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 dependents, 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 inpatient 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 October 8, 1991 to reimburse the medical expenditure incurred by the Punjab Government employees/pensioners and dependents on treatment taken abroad in private hospital. It is stated in paragraphs 2 and 3 that the Government has prepared a list of those diseases for which the specialised treatment is not available in Punjab Government Hospitals but it is available in certain identified private hospitals, both within the outside the States. 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 dependents, 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 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 hospital/institution. Thus, for open heart surgery or heart disease the Escort Heart Institute is 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 in 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 and 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 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."
From the tale of woes narrated by the petitioners, it appears that the deceased and his family members were in a very helpless situation. The ailment, which led to almost three open heart surgeries at Bombay, destroyed not only the life of the petitioner, but also his family members. As observed by me, the deceased petitioner had to even sell his wife''s jewellery for the purpose of generating the necessary funds for the treatment.
The petitioner in his petition has stated something very very sad, more particularly, so far as the medical fraternity is concerned that in big and known hospitals, over and above the official bills, the patient has also to agree to the undertable transactions with the Doctor who is to perform the surgery. This fact if true is very disturbing one.
The petitioner virtually admitted why he had raised bogus invoices. He has explained that he had no funds and the amount which was paid by the Corporation was not sufficient for the purpose of treatment. Whatever amount the petitioner received from the Corporation by raising those bogus invoices was actually paid to the Doctors at Bombay for the treatment. I cannot find fault with the Corporation for initiating a departmental action in that regard, but at the same time, I am of the view that the stance of the Corporation as regards room rent appears to be quite unreasonable and also not tenable in law. What is more disturbing is the imposition of penalty at the rate of 21% interest which comes to about Rs.1,42,000/- .
Thus, Rs.1,89,505/was recovered from the salary of the late petitioner towards the excess amount paid by the Corporation so far as the room rent is concerned and on the same, Rs.1,42,000/- is sought to be recovered by way of penalty. It appears from the materials on record that the petitioner was hospitalized between 13th February 1995 and 12th April 1995 at the Nanavati Hospital i.e. for a period of 58 days. Thereafter, once again, he was hospitalized between 26th May 1995 and 13th July 1995 at the Nanavati Hospital i.e. for a period of 48 days. Thereafter, he was hospitalized at the Bombay Hospital between 13th July 1995 and 2nd September 1995 i.e. for a period of 51 days.
It appears that during the pendency of this writ application, the petitioner passed away and the legal heirs are on record.
I am of the view that linking the limits of reimbursement with the status of the employees / officers is violative of Article 14 of the Constitution. Any classification must have a reasonable nexus with the object sought to be achieved. The object in the instant case being to bear, or reimburse, the expenses already incurred by the employees / officers, it would be unfair to reimburse the expenses of inferior employees / officers on a lesser scale than their counterparts in the higher grades. While there is undoubted clear justification for payment of higher salary and allowances to the employees and officers on the basis of their qualification, nature of job, etc, the consequence of illness are equally to all irrespective of status or category. It cannot be said that a person suffering from the same illness requires lesser treatment or facilities and should be reimbursed at lesser rates because his status as an employee / officer is lesser than others.
In any view of the matter, fixing the limits of reimbursement on account of room charges cannot be said to be in accordance with law in view of the decision of the Supreme Court in the case of Mahinder Singh Chawla (supra).
In the case of Surjit Singh v. State of Punjab [AIR 1996 SC 1388], the Supreme Court in a case where the appellant therein while in England fell ill and being a case of emergency was admitted in the Dudley Road Hospital, Birmingham. After proper medical diagnosis he was suggested treatment at a named alternate place. He was admitted and underwent a bypass surgery in the Humana Hospital, Wellington, London. He claimed reimbursement for the amount spent by him. In the peculiar facts of that case it was held :
"11. It is otherwise important to bear in mind 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 inviolable. The importance and validity of the duty and right to selfpreservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine :
Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet
Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.
Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati
One should protect his body which is responsible for every thing. He who protects himself by all efforts, will see many auspicious occasions in life.
Sharirarakshanopaayaah kriyante sarvadaa budhalh Necchanti cha punastyaagamapi kushthaadiroginah
The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.
Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati
If one does not prevent what is unpleasent to himself, who else will do it? Therefore one should do what is good to himself."
It is true that in the above noted decision of the Supreme Court, the rules framed under the proviso to Article 309 of the Constitution of India, were not in force. What were in force were the policies regarding reimbursement of medical expenses framed by the State of Punjab on 25th January 1991 and 8th October 1991.
So far as the case in hand is concerned, it is difficult to say that the Medical Attendance and Treatment Rules in the form of Human Resources Policy Manual were framed under an enactment so as to term those rules as one framed under the proviso to Article 309 of the Constitution.
When disease does strike and a person becomes critically ill, the first and foremost thought of the stricken patient is to consult a good Doctor for treatment. In case of many diseases there may be no emergency involved, but in the case of a sudden heart attack or a stroke or even a roadside accident, the sick or the injured man may not have the time to consider whether a particular hospital is recognised by the Government or not. He requires immediate attention therefore, he would go to the nearest hospital of his choice. Naturally the treatment is expensive and money is spent on diagnostic tests, Xrays, surgery and nursing etc. Money is also spent on medicines and other items required for the purposes of treatment. Therefore, the medical bill could consist of many heads and its reimbursement would require close examination before payment is made but to deny payment on the ground that the hospitalisation was in a room, the rent of which is not approved or admissible for reimbursement is grossly unjust and unfair. Is it in the hands of the patient like the late petitioner of the case in hand to decide in which room he should be put after a major bypass surgery is performed. Having regard to the nature of the surgery and the requirement, if the Doctor is of the view that the patient should be put in a particular room where the room charges are more than Rs.300/- per day, then should the reimbursement be denied on the ground that the policy does not provide for more than Rs.300/- per day for a particular class of employee.
The Supreme Court also considered the validity of a rule in regard to reimbursement of the medical expenses visavis the fundamental right of a citizen in terms of a new policy evolved by the State of Punjab limiting the claim for reimbursement in State of Punjab and others v. Ram Lubhaya Bagga and others 1998 (4) SCC 117, opining:
"23. When we speak about a right, it correlates to a duty upon another, individual, employer, Government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt Government is rendering this obligation by opening Government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, or reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its upkeep; maintenance and cleanliness has to be beyond aspersion. To employ best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medicoethical and service oriented training, not only at the entry point but also during the whole tenure of their service. Since it is one of the most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are in inherent requirement. Harnessing such resources needs top priority."
However, having regard to the fact that the medical facilities continued to be given and an employee was given free choice to get treatment from any private hospital in India but the amount of payment for reimbursement was regulated, it was opined:
"29. No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India."
The said principle was reiterated in State of Punjab and others v. Mohan Lal Jindal (2001) 9 SCC 217.
The question came up for consideration before the Supreme Court in Confederation of Ex Servicemen Association and others v. Union of India and others (2006) 8 SCC 399 wherein a Constitution Bench of the Supreme Court had the occasion to notice Ram Lubhaya Bagga (supra). Agreeing therewith it was opined :"
In our considered opinion though the right to medical aid is a fundamental right of all citizens including exservicemen guaranteed by Article 21 of the Constitution, framing of scheme for exservicemen and asking them to pay "one time contribution" neither violates Part III nor is it inconsistent with Part IV of the Constitution. Exservicemen who are getting pension have been asked to become members of ECHS by making "one time contribution" of reasonable amount (ranging from Rs. 1800 to Rs. 18,000/- . To us, this cannot be held illegal, unlawful, arbitrary or otherwise unreasonable."
In State of Karnataka and another v. R. Vivekananda Swamy AIR 2008 SC 2080, the Supreme Court observed, after taking note of the decision referred to above, as under:
"18. In view of the aforementioned settled principles of law there cannot be any doubt that the Rules regarding reimbursement of medical claim of an employee when he obtains treatment from a hospital of his choice can be made limited. Such a rule furthermore having been framed under the proviso to Article 309 of the Constitution of India constitutes conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognised Government hospitals and on the other he, at his option, may get himself treated from other recognised hospitals/institutions subject of course to the conditions that the reimbursement by the State therefor would be limited."
The late petitioner''s predicament is not an uncommon one. Even medical scientists, psychologists and philosophers have been grappling with the question of why disease strikes a particular person. No clear answer is in sight. The disease or ailment would not spare even a King or Queen. After all, they are human beings. The value of life should not be measured with the stature of a person. Life is after all life and it is precious for one and all whether that person is big or small in stature. To some extent, the genetics provides a scientific explanation why certain people are more likely to suffer from certain diseases. If all diseases were predictable and completely curable, then we would all be living Utopia. There would be no need for hospitalisation, no medical reimbursement bills to be examined and every one would be healthy. We know that there is no way to predict when and in what manner a particular disease would strike a particular person. And because there is such unpredictability and suddenness about some diseases, it is not always possible to get treatment from recognised hospitals.
In the case in hand, what is baffling me is that when the Corporation was gracious enough to sanction the necessary amount for the purpose of the open heart surgeries, then a little more grace should have been shown towards the late petitioners so far as the room rent issue is concerned. I am saying so keeping in mind and at the cost of repetition that it was not in the hands of the late petitioner to decide about the room.
I am sad to notice that the Corporation has in its policy provided the entitlement so far as the rates of the hospital room per day is concerned on the basis of the grades of the employees i.e. Executive and Non-executives.
The horizon of the fundamental right under Articles 14 and 21 have been even expanding and it is too late for the Government or instrumentalities which are State / as a employer to refuse to reimburse the medical claim of the employees, subject, of course, to any inquiry as to its genuineness and essentiality of the treatment. To this extent, Rule 4.0 of the Medical Attendance and Treatment Rules as framed by the Corporate Human Resources Division as HR Policy Manual fixing the so-called reasonable limits on the reimbursement of the expenses on account of stay in the hospital in course of treatment does not appear to be in accordance with Article 21 of the Constitution, and making it dependable on the status of the officer, does not appear to be in accordance with Article 14 of the Constitution. The Corporation would do well to amend the relevant part of the Rules and guidelines so as to be in conformity with the constitutional provisions.
The provisions regarding reimbursement of medical bills is a beneficial provisions and it is well settled that the beneficial provisions ought to be liberally construed. I am also disturbed by the fact that the Corporation thought fit to levy penalty on the amount of Rs.1,89,505/, and that too with interest at the rate of 21% per annum. To secure this amount, it went to the extent of asking the petitioner to deposit the Fixed Deposit Receipt of the requisite amount with them.
In the result, this writ petition is allowed. The respondent � Corporation is directed to refund the amount of Rs.1,89,505/to the widow of the deceased petitioner, who is on record, by a demand draft or an account payee cheque, after proper identification, within a period of four weeks from the date of receipt of this order. The respondent � Corporation is also directed to hand over the original Term Deposit Advice i.e. the Fixed Deposit Receipt of the principal amount of Rs.1,42,000/- of the State Bank of India, which is in its custody to the widow within a period of four weeks from the date of receipt of this order.