Dr. K.K. Prasad vs Govt. Of NCT Of Delhi & Ors.

O R D E R

(a). Quash and set aside the order dated 2.8.2018 alongwith comments of DGHS ( mentioned in Para 1 of the OA) and

(b). Direct the Respondents to reimburse the full amount of Rs.1,60,288/- (One Lakh Sixty Thousand Eighty Eight) to the applicant which he incurred on the treatment of her daughter in Emergency at Holy Family Hospital, Okhla, Delhi. And.

( c) Award cost in favour of the applicant and against the respondents. And / or

(d)

Pass any further order, which this Hon’ ble Tribunal may deemed fit, just equitable in the facts and circumstances of the case.

“13)

It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be 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.”

“15.

This Court is of the view that the petitioner would be entitled to complete reimbursement of the expenses incurred and the same cannot be limited to CGHS rates alone. The petitioner enjoyed complete cover and the fact that he had to rush in an emergency to the nearest hospital cannot curtail his right to reimbursement of medical expenses. This question had also fallen for the consideration of a Coordinate Bench of this Court in Gurcharan Singh v. Union of India and Ors.: 166 (2010) DLT 610, wherein this Court after considering the facts and circumstances of the case, directed the respondents to reimburse the balance payment towards the medical claim of the petitioner therein for the treatment of his wife. The Court rejected the respondents' contention that the reimbursement ha to be restricted to specified rates only. In Shiva Kant Jha v. Union of India: (2018) 16 SCC 187, the Supreme Court after expressing its dissatisfaction as to the state of affairs and had observed that the relevant authorities are required to be more responsive and cannot act in a mechanical manner to deprive the employees of their legitimate reimbursement. The Court had observed that the treatment of the petitioner therein in a non-empanelled hospital was genuine and there was no option left with him at the relevant time. In that case, the Court had directed the respondents to reimburse the medical expenses to the petitioner to the full extent.”

“10.

Concededly, the petitioner would be entitled for reimbursement of medical expenses notwithstanding that the petitioner had not approached an ESIC empanelled hospital, provided that the petitioner had been admitted in an emergency situation. Ms Anand, learned counsel appearing for the respondents has referred to the ESIC Operational Manual, 2015, which expressly provides that ESIC beneficiaries may be provided super specialty treatment (SST) services on reimbursement basis in case it is found that it was "a dire life-threatening emergency and the condition of patient would have severely deteriorated if he had gone to ESI Hospital for reference."

“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 CGHS/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 by further forcing him to resort to Court of law.

"17.

It is a settled legal position that the Government employee Signature Not Verified Digitally Signed By:DINESH CHANDRA Signing Date:10.05.2023 16:07:19 Neutral Citation Number: 2023:DHC:3138-DB 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 Signature Not Verified Digitally Signed By:DINESH CHANDRA Signing Date:10.05.2023 16:07:19 Neutral Citation Number: 2023:DHC:3138-DB 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 Ministry concerned, 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-State 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."

“all cases involving requests for relaxation of rules for reimbursement of full expenditure will henceforth be referred to the Technical Standing Committee, to be chaired by the DGHS/Spl. DGHS and Specialists of concerned subject as members. Addl., DDG(MG-Section), Dte. GHS shall be member secretary for organizing the meetings of Technical Standing Committee. If Technical Standing Committee recommends the relaxation of rules for permitting full reimbursement of expenditure incurred by the beneficiary, the full reimbursement may be allowed by the Secretary ( Health & Family Welfare ) in consultation with IFD. A check list for consideration of request for reimbursement in excess of the approved rates may include.”

“(1). May kindly see para 28 , page 25 /N vide which file was sent to HOD (Gynae) DHAS, to seek expert opinion to ascertain if the surgical intervention undertaken was emergent in nature or not. Now the file has been received from DHAS with the opinion at Page 26 /N where it has been opined that the patient appears to be a case of chronic pain abdomen ( due to endometric ) and the procedure done was elective in nature.)

(2). Therefore, in view of above, as the treatment taken was elective in nature, therefore, as per DGEHS Om dated 25.10.2007, the claim may not be considered for reimbursement.

(3)

submitted for further directions. CMO (DGEHS)”

“3(a) The treatment was obtained in a private hospital not empanelled under CS(MA) / CGHS under emergency and the patient was admitted by others when the beneficiary was unconscious or severely incapacited and was hospitalized for a prolonged period.”