D. Rajarathinam vs The Management of Metro Transport Corporation Ltd.

P. Sathasivam, J.—Aggrieved by the order of the respondent dated 18.10.2001, declining to reimburse the expenses incurred by the

petitioner towards heart surgery done to his wife from the Labour Welfare Fund, the petitioner has filed the above writ petition to quash the same

and consequently direct the respondent to reimburse the medical expenses.

The case of the petitioner is briefly stated hereunder

The petitioner is working as an Assistant Tradesman in the respondent - Metro Transport Corporation, Chennai 2. The conditions of service of the

workmen employed in the State owned Transport Undertakings are governed by periodical settlements entered into between the Central Trade

Unions and all the State Transport Corporations. In the last settlement dated 13.02.1999, entered u/s 12(3) of the Industrial Disputes Act, 1947

(in short ""the Act""), under Item 79 of the Settlement, it was agreed to introduce a ""Special Medical Assistance Scheme"" to the workmen in

addition to the medical benefits in existence. As per Clause 79 (2), the Scheme was to be called as ""Tamil Nadu Transport Corporation

Employees Family Medical Assistance Scheme"" (in short ""the Scheme""). As per Clause 79 (3), the workmen is entitled upto a maximum of Rs.1

lakh for undergoing five special medical treatment provided therein either for himself or for his family members. In addition to the five special

medical treatment / surgeries, the Board is authorised to include any other disease / surgery / treatment. The reimbursement scheme was agreed to

be implemented out of the Labour Welfare Fund, for which the workman has to contribute Rs.5/- per month from his salary and the management

has to pay an equal contribution to the Fund. These contributions are payable as per Clause 79 (4) and (5) respectively. Further, the names of 17

approved and recognised hospitals for taking such treatment / surgery are mentioned in the circular.

It is further stated that when the Special Medical Assistance Scheme was introduced, implemented and when the same was in force, his wife -

Menaka suffered with a serious heart problem and she was taken to Madras Medical Mission Hospital. After examination, he was told that there

was a block in Aortic valve running down from his wife''s heart and informed that his wife was suffering from severe Co-Aorta amounting to

interruption in Bicuspid aortic valve and advised that it has to be removed immediately by surgery. She was admitted to the hospital on

17.12.2001; operated on 18.12.2001 and discharged on 26.12.2001. He applied for medical expenses in advance to carry out heart surgery to

his wife. By the impugned order dated 18.10.2001, the respondent refused to pay him the medical expenses on the ground that the surgery to be

done to his wife was ""closed heart surgery"" and as per the Scheme, the workmen are entitled to reimbursement only in the case of ""open heart

surgery"". Immediately after the surgery and after discharge from the hospital, once again he made a request to the respondent by letter dated

12.01.2002 to reimburse the medical expenses incurred thereon. Their Union also wrote a letter dated 30.01.2002, recommending his claim. He

also met the higher officials several time in person. In the absence of any positive reply and having no other remedy, filed the present writ petition.

Pursuant to the direction, the Assistant Manager (Legal) of the respondent Corporation filed a counter affidavit disputing various averments

made by the petitioner. It is stated that the petitioner''s wife had undergone only ""closed heart surgery"", which disease is not included in the Circular

dated 09.04.1999 of the respondent Corporation, hence the petitioner is not entitled to claim medical reimbursement, since as per the Scheme and

the Circular, the medical reimbursement can be claimed in respect of the diseases mentioned therein and not in respect of all diseases pertaining to

Heart"". The heart operation strictly to mean only ""open heart surgery"" and not ""closed heart surgery"". Therefore, the petitioner''s request for

medical reimbursement was rejected.

In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as for the respondent.

There is no dispute that as per the last settlement dated 13.02.1999 entered u/s 12(3) of the Act, a Scheme called ""Special Medical Assistance

Scheme"" to the workmen, in addition to the medical benefits which are in existence, was formulated. As per Clause 79 (3) of the Settlement, the

workman is entitled upto a maximum of Rs.1 lakh for undergoing the following five special medical treatment either for himself or for his family

members. Clause 79 (3) of the Settlement reads as under.

79 (3).

,j;jpl;lj;jpd;go nghf;Ftuj;Jf;fHf gzpahsh; kw;Wk; mth; FLk;gj;jpdUf;F fPH;f; Fwpg;gpl;l rpwg;g[ kUj;Jt rpfpr;irf;fhf cah;e;jgl;rk; U:gha; xU yl;rk; tiu

kUj;Jt cjtpj; bjhif tH'';fg;gLk;/

1/ ,Uja mWit rpfpr;ir ( Heart Operation )

2/ rpWePuf mWit rpfpr;ir (Kidney Transplantation)

3/ gY}dp''; ( Ballooning - Heart operation)

4/ nfd;rh; mWit rpfpr;ir (Cancer Surgery)

5/ K:isf;fl;o mWit rpfpr;ir ( Brain Tumor Surgery)

Fwpg;g[ ,jpy; nkYk; ve;j mWit rpfpr;iria nrh;g;gJ vd;gJ Fwpj;J FG Kot[ bra;a[k;/

In addition to the above five surgery / treatment, the Board was authorised to include any other treatment / surgery. The reimbursement scheme

was agreed to be implemented from and out of the Labour Welfare Fund, for which every workman has to contribute Rs.5/- per month from his

salary and an equal amount of contribution to the fund will be borne by the Management. Pursuant to Clause 79 of the Settlement dated

13.02.1979, the Metro Transport Corporation, Chennai 2 issued a Circular dated 09.04.1999, extending the reimbursement of medical expenses

on par with the Government employees upto a maximum of Rs.1 lakh. The circular contains 17 approved / recognised hospitals for taking such

treatment / surgery.

It is the case of the petitioner that his wife Menaka was admitted in Madras Medical Mission Hospital to remove the block in Aortic valve by

operation of surgery. She was admitted to the hospital on 17.12.2001, operated on 18.12.2001 and discharged on 26.12.2001. When the

petitioner claimed reimbursement of medical expenses, the same was rejected on the ground that it is not a open heart surgery. I have already

referred to the five categories of medical treatment, to which the workman and his family members are eligible. It is not disputed that the petitioner

has furnished all the necessary particulars regarding the treatment given to his wife, such as relevant records, medical and cash bills issued by the

Institute of Cordio-Vascular Diseases and a letter dated 30.01.2002 from the Union to reimburse the medical expenses incurred by him. He also

made a representation on 12.01.2002 for early settlement.

In the light of the objection raised, I have carefully perused the Scheme in the settlement and the circular dated 09.04.1999, in and by which an

employee is entitled to reimbursement if heart surgery is made either for himself or to any of his family members. Therefore, as rightly contended by

the learned counsel for the petitioner, the denial or refusal to pay the medical expenses is contrary to the Settlement and Circular. A careful reading

of Clause 79 (3) of the Settlement (cited supra) discloses that a workman can claim reimbursement of medical expenses to be incurred either for

himself or for his family members in respect of disease ""Heart Operation"", it does not specifically restricted only to ""open heart surgery"", as claimed

by the learned counsel for the respondent. Moreover, the said Clause does not mention what kind of diseases would come under the caption

heart operation"", for which workman can claim. In the common parlance, there are three kinds of heart surgeries; (i) closed heart surgery; (ii)

open heart surgery; and (iii) bye-pass heart surgery. All the three come under the definition of ""heart surgery"". When the benefit is not restricted to

open heart surgery alone, denying the same is arbitrary and without jurisdiction. When closed heart surgery is also a heart operation, the

respondent cannot deny the benefits and the rejection is nothing but non application of mind on the part of respondent. Even otherwise, inasmuch

as the Scheme and Circular of the respondent are intended to help their workmen and their family members in order to mitigate their medical

expenses and even if there is any possibility for more than one interpretation, I am of the view that the interpretation, which achieves the real

intention of the formulation of the Scheme shall have to be preferred and acted upon, particularly when the beneficiary belongs to a weaker section

of the Society. Further, the interpretation and the denial of benefit on grounds of ""not open heart surgery"", by restricting it only to ""open heart

surgery"" is arbitrary, discriminatory and it has no nexus to the object sought to be achieved through the Settlement and Circular.

As rightly argued on the side of the petitioner, based on the nature of the disease and condition of the patient, it is for the Doctors to decide and

suggest, which kind of surgery is suitable. The patient being a lay man cannot choose the mode of surgery. Therefore denying the benefit on the

ground that petitioner''s wife was performed closed heart surgery is contrary to the medical jurisprudence, medical Scheme and Circular. In the

modern time when closed heart surgery is considered as an advanced mode, which does not warrant for opening the heart, involving less

expenditure than that of open heart or bye-pass surgery, there was nothing wrong in selecting a particular mode of surgery.

Looking at any angle, the action of the Transport Corporation in denying the benefits on the ground that the petitioner''s wife had undergone

only closed heart surgery is illegal and arbitrary, particularly the reimbursement Scheme was agreed to be implemented from out of the Labour

Welfare Fund, to which the workman contributes every month from his salary.

Under these circumstances, the impugned order of the respondent dated 18.10.2001, declining to reimburse the expenses incurred by the

petitioner to the heart surgery done to his wife from out of Labour Welfare Fund is quashed and direction is issued to the Management of Metro

Transport Corporation to reimburse the medical expenses incurred by the petitioner within a period of two weeks from the date of receipt of a

copy of this order. The writ petition is allowed. No costs. Consequently, connected WPMP., is closed.