Sri Basanta Kumar Panda vs Comptroller & Auditor General Of India & Ors.

“8.1

That the order dated 16.08.2021 (A/3), 09.12.2021 (A/7) & 17.02.2022 (A/9) be quashed.

8.2

That the Respondents be directed to grant/release balance amount of Rs.83,522/- towards medical reimbursement claim of the applicant.

8.3

And further be pleased to pass any other order/order as it would deem fit and proper to complete relief to the applicant.”

“6.

As seen from the record, the applicant is beneficiary of medical facilities under the Bharat Sanchar Nigam Ltd. Medical Reimbursement Scheme (BSMRS) Scheme, formulated by the respondents organization, she is entitled for full reimbursement of the medical expenditure incurred for her treatment. As per Clause-3(vi) of the aforesaid Scheme provides that a retired employee or his/her dependant may take indoor treatment from non-empanelled hospitals only in case of emergency. Clause-3(vii) also provides that emergent cases are those which involve accident, serious nature of disease etc. It also provides that in such cases the person on spot may use his/her discretion for taking the patient for treatment in a private hospital in case no government or an empanelled hospital is available nearer than the private hospital. The Administrative Office will decide on merit of the case whether it was a case of real emergency necessitating admission in a private hospital. Hence, the respondents cannot deny full reimbursement of the medical claim of the applicant. There is no dispute about the emergency condition of the applicant when she was admitted in hospital referred to above and there is also no dispute about the treatment available by her in the said hospital.

7.

In the context of reimbursement of medical bills, the Hon'ble Supreme Court in Shiva Kant Jha Vs Union of India (2018) 16 SCC 187 cited by the applicant, observed and directed as under:

"16)

With a view to provide the medical facility to the retired/serving CGHS beneficiaries, the government has empanelled a large number of hospitals on CGHS panel, however, the rates charged for such facility shall be only at the CGHS rates and, hence, the same are paid as per the procedure. Though the respondent-State has pleaded that the CGHS has to deal with large number of such retired beneficiaries and if the petitioner is compensated beyond the policy, it would have large scale ramification as none would follow the procedure to approach the empanelled hospitals and would rather choose private hospital as per their own free will. It cannot be ignored that such private hospitals raise exorbitant bills subjecting the patient to various tests, procedures and treatment which may not be necessary at all times.

17.

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 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.

18)

This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.

19)

In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-Stat to pay the balance amount of Rs.4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only.

20)

Further, with regard to the slow and tardy pace of disposal of MRC by the CGHS in case of pensioner beneficiaries and the unnecessary harassment meted out to pensioners who are senior citizens, affecting them mentally, physically and financially, we are of the opinion that all such claims shall be attended by a Secretary level High Powered Committee in the concerned Ministry which shall meet every month for quick disposal of such cases. We, hereby, direct the concerned Ministry to device a Committee for grievance redressal of the retired pensioners consisting of Special Directorate General, Directorate General, 2 (two) Additional Directors and 1 (one) Specialist in the field which shall ensure timely and hassle free disposal of the claims within a period of 7 (seven) days. We further direct the concerned Ministry to take steps to form the Committee as expeditiously as possible. Further, the above exercise would be futile if the delay occasioned at the very initial stage, ie, after submitting the relevant claim papers to the CMO-I/C. therefore, we are of the opinion that there shall be a timeframe for finalization and disbursement of the claim amounts of pensioners. In this view, we are of the opinion that after submitting the relevant papers for claim by a pensioner, the same shall be reimbursed within a period of 1 (one) month.”

8.

In Shiva Kant Jha, the Apex Court held that the right to medical claim cannot be denied merely because the beneficiary availed treatment in a non-empanelled hospital and the real test must be the factum of treatment. It is further held that 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 and once the same is established, the claim cannot be denied on technical grounds. The Apex Court further directed that, there shall be a Secretary level High Powered Committee constituted in the concerned Ministry, which shall meet every month for quick disposal of cases of medical reimbursement. The Apex Court also directed as to how the said Committee to be constituted and also the time lines for disposal of the medical claim cases.

9.

Recently, placing reliance on the Shiv Kant Jha (Supra), Hon'ble Delhi High Court vide its judgment dt. 10.05.2023 in WP (C) No. 10684/2022 & CM APPL. 31035/2022 (2023:DHC:3138-DB), observed as under:

"12 The medical claim for treatment undertaken in emergency should not be denied for reimbursement merely because the hospital is not empanelled. The test remains whether the claimant had actually undertaken the treatment in emergent condition as advised and if the same is supported by record. Preservation of human life is of paramount importance. The State is under an obligation to ensure timely medical treatment to a person in need of such treatment and a negation of the same would be a violation of Article 21 of the Constitution of India. Administrative action should be just on test of fair play and reasonableness. Accordingly, keeping into consideration the constitutional values, the executive instructions need to be applied than rejecting the claim on technical ground of undertaking treatment in a non-empanelled hospital, since the GHS/State is responsible to ensure proper medical treatment in an emergent condition and further cannot escape the liability, if the treatment undertaken is genuine. Any denial of claim by the authorities in such cases only adds to the misery of the Government servant in further forcing him to resort to Court of law.

Xxx

13 It needs to be kept in perspective that patient has a little scope to decide the nature of treatment and merely looks forward to an expert guidance/treatment for relieving him from immense pain and suffering The patient in distress is not in a position to go against the specialist medical advice for surgery in emergency."

10.

It is not clear from the records and the submissions as to whether any High Powered Committee, as directed by the Hon'ble Supreme Court in Shiva Kant Jha (supra) has been constituted in the respondents' organization. As seen from the above, out of the total claim made by the applicant is Rs.3,29,810/-, a paltry amount of Rs 1,58,225/-, has been paid, which is too merger to say. As submitted by the applicant, huge amount of about Rs 3.3 lakhs was paid from out of his life savings or from outside borrowing. The applicant is aged more than 65 years, when she was admitted in hospital in 2020. In these circumstances, the claim of the applicant deserves to be considered expeditiously and sympathetically on humanitarian grounds. The present case is squarely covered by the judgments of the Hon'ble Apex Court and Hon'ble Delhi High Court referred to above.

11.

Thus, this Tribunal is of the view that ends of justice would be met if a direction is issued to the respondents to place the matter before the appropriate Committee constituted in the respondents' organization as per the directions of the Hon'ble Supreme Court (Supra), which shall look into the same and settle the claim of the applicant for full reimbursement keeping in view the law laid down by the Hon'ble Courts referred to above and the whole process including reimbursement, based on the recommendations of the said Committee, shall be completed, as expeditiously as possible, preferably within a period of 6 weeks from the date of receipt of this order.

12.

In the result, the OA is disposed of, with the above directions. There shall be no order as to costs."

"37.

From the plain reading of the aforesaid Office Memorandum, it is clear that a provision is made for relaxation in reimbursement of the medical expenses incurred in special cases, in peculiar circumstances, as also in cases of emergency and other special circumstances. From the contents of the aforesaid Office Memorandum and even otherwise, we fail to understand as to how a requirement of heart transplant cannot be considered to be an extraordinary and not an emergent and inevitable surgery, as a heart transplant is required only when the heart is failing, the consequences of which are just to be imagined. As to what is the plight of the patient in such situation, would not require any elaboration. It is in these circumstances, the case of the petitioner ought to have been considered by the High Power Committee.

38.

From the impugned decision, it appears to us that a narrow, pedantic and/or a too technical view has been taken by the HPC in rejecting the full medical reimbursement to the petitioner. We would not find that the petitioner's application for full medical reimbursement could not have been rejected on the ground that it was a planned surgery and/or merely because the rates being notified, the petitioner ought not to be granted any reimbursement.

39.

Even assuming that the aforesaid Office Memorandum providing for relaxation of the conditions was not to be issued, it cannot be said that the respondents were powerless or would lack authority to consider special cases of reimbursements of medical expenses when the treatment received is of such serious nature, in considering applications of reimbursement in such category. These are all executive powers as conferred on the Central Government under the provisions of Article 73 of the Constitution, which are coterminous with the power to legislate. In the absence of any specific legislation, exercise of such power and more particularly for preservation of fundamental rights necessarily has a legitimate constitutional recognition.

40.

It also cannot be that the rules governing reimbursement are sacrosanct and nothing outside the rules in exceptional/special cases and especially deserving cases, can be considered for reimbursement by the Central Government. It would not require elaboration that in such matters it is an accepted position that there is a free play in the joints and such category of cases are required to be considered on their merits. A case to case legitimate decision protecting the fundamental rights is expected to be taken by the concerned officers. Such powers are conferred only to be utilized and more particularly when there is a need to exercise such powers not only to protect the fundamental rights but right to life and right to livelihood. Thus, apart from the Office Memorandum dated 15 July 2014 providing for relaxation, the High Power Committee even otherwise could exercise such powers of relaxation and in such deserving case, exercise its discretion to award full medical reimbursement.

41.

The present case undisputedly is a case of heart transplant which by all standards is a serious ailment. Certainly, the surgery is one of urgency and critical importance, and could not have been postponed. It is a special circumstance. It is imperative that such surgeries are expedited in the interest of human life without an embargo of an expenditure which is secondary to human life.

42.

The respondents have not come with a case that immediate transplant facility was available or the organ was available for transplant, in any of its empanelled or CGS hospitals. If that be the case, certainly it cannot be said that the petitioner undergoing a heart transplant at a private hospital, where the organ was available and which could be immediately transplanted without any waste of time, was not an emergent and / or wrong decision on the part of the petitioner, and/or nonetheless despite such availability, he ought to have awaited for the heart transplant in the hospital which the CGHS authorities would intend. This would have brought about a situation of the petitioner requiring to unwarrantedly suffer an ordeal of a fruitless wait. The petitioner rightly preferred not to wait in such uncertainty and availed of the heart transplant at the private hospital.