Dr. Nilay Kumar Das vs State Of Tripura And Ors.

Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. S.Chakraborty, learned Additional Government Advocate appearing for the respondents.

By means of this petition, the petitioner who is working as the Joint Director in the Animal Resource Development Department, Government of Tripura, has urged this court for directing the respondents to recall the order contained in the communication dated 06.12.2012 and 19.08.2015 (Annexure 5 and 6 respectively to the writ petition) and to reimburse the medical and travelling expenses to the extent of Rs.6,46,866/- which the petitioner has incurred for his treatment in a critical state.

It is apparent from the communication made by the Director, Animal Resource Development Department on 06.12.2012 (Annexure 5 to the writ petition) that the medical reimbursement bills as submitted by the petitioner along with the vouchers were returned as the claim as according to the respondents was faulty and not admissible as per the existing Rules. It further appears that the petitioner had again filed those bills urging the Director, Animal Resource Development Department for reconsidering the matter, but by communication dated 19.08.2015 (Annexure 6 to the writ petition) again those bills were returned. Finally, the petitioner served a notice of demand on 03.08.2015 but nothing positive yielded. Hence, the petitioner has sought interference of this court as according to the petitioner that under the circumstances when his life was threatened he was compelled to go for the hospitalization in a critical state and as such he is entitled to get the reimbursement at the rate of the referral hospital even though the petitioner could not obtain the reference from the standing Medical Board as per the Rules.

The respondents by filing the reply have placed their grounds for rejecting such claim which would be available in paragraph 15 of the reply where they have stated that all the medical reimbursement bills were returned to the petitioner on the assigned reason that medical reimbursement bills were not found admissible as per the existing Rules. They have averred as under:

"As per G.O. No. 8 dated 25.09.2004 and issues relating to various operational difficulties in implementing guidelines contained in G.O. No. 21 dated 20th December, 2002 had been examined by the Health & Family Welfare Department in consultation with concerned Departments. Now, the Governor, Tripura is pleased to lay down following guidelines in regard to admissibility of medical reimbursement facility to State Government officials for treatment outside the State on being referred by the Standing Medical Board.

a. The Standing Medical Board is required from time to time to refer patients outside the State for treatment/investigations of various ailments for which facilities do not exist here and in such situation, the Standing Medical Board shall refer patients only to the Medical Institutions as shown at Annexure to this G.O.".

Obviously, at the relevant point of time, the ILS hospital or the Apollo Gleneagles Hospital, Kolkata were not the referral hospitals of the Government of Tripura the respondents did not dispute the fact that initially the petitioner was admitted in the Tripura Medical College and Dr. BRAM Teaching hospital which according to Mr. Chakraborty, learned Additional Government Advocate is a referral hospital and for that reason the part of the expenses the petitioner incurred in that hospital has been immediately paid, but the later part has not been paid for the reasons that there was no reference by the Standing Medical Board to the ILS hospitals, Agartala or to the Apollo Gleneagles Hospitals, Kolkata. Thus, the Rules as well as the guidelines as issued by the State Government, as quoted above or the Government Order no. 08 (Annexure R-1 to the reply) does not cover the petitioner praying for reimbursement of medical expenses that he had incurred for his treatment.

Mr. Deb, learned counsel has submitted that the petitioner's case is substantially covered by a decision of this court delivered in Swapan Chakraborty vs. State of Tripura & others [the order dated 04.12.2015 delivered in WP(C) 200 of 2015]. Mr. Deb, learned counsel has pointed out that almost in a similar circumstance when the petitioner [of that writ petition] was treated in the hospital, which was not referral hospital, without reference from the Standing Medical Board, the government refused showing the similar grounds. In that context, this court had observed as under:

"This court is called upon to decide whether the claim of the medical reimbursement can be declined by the respondents solely on the basis that the reference was not made by the Standing Medical Board as according to them the State Medical Board is the only medical authority which can make such reference for treatment in the referral hospital outside the state. The said memorandum dated 09.08.2005, Annexure R/1 to the counter affidavit, embodies in the Paragraph 2 ,two distinct provisions for two categories of diseases. For purpose of reference the entire paragraph 2 is extracted hereunder :

"2A(i) When a Group-C / Group-D Government employee himself / herself suffering from disease other than cancer is referred to Medical Institution / Hospital to which he / she is referred to, the cost of treatment in that Institution / Hospital excluding the cost of journey is admissible for reimbursement. This benefit is not admissible in respect of any member of the family of such a Government employee.

2A(ii) When a Group -C / Group - D Government employee himself / herself or any member of his / her family suffers from cancer and is referred to a medical Institution / Hospital outside the State by the Standing Medical Board, the cost of treatment in such Institution / Hospital inclusive of admissible journey expenses only up to referred Institution / hospital (both ways) is admissible for reimbursement. Journey expenses of the escort, if any recommended by the Standing Medical Board, is also admissible for reimbursement."

There exists noticeable distinction between 2A(i) and 2A(ii)

Para 2A(i) applies for the diseases other than the cancer and if the patient who is a government employee or in the Grade-C and Grade-D category is referred to a referral institute, the cost of the treatment would be borne by the government. However, the benefit is restricted to the Government Employee himself not to the family members. Even there is no reference of reimbursement of the cost of the journey.

So far the Para 2A(ii) is concerned, it applies to Cancer only for the similar categories of employees but in that case, the entire benefit would go to the family of the employee and in appropriate cases when the cases as referred by the Standing Medical Board the expenses of journey even for the escort would be borne by the government.

The recommendation of the Standing Medical Board has only appeared in Para 2A(ii), not in Para 2A(i).

However, Mr. Chakraborty, learned additional government advocate has submitted that in both the cases reference is a mandatory one by the Standing Medical Board.

From the reading of the communication dated 16.04.2015, Annexure R/2 to the counter-affidavit, it appears that there is no standing guidelines for making the reference . It is a practice and that is why the said communication dated 16.04.2015 has recorded that it is the opinion of the Chairman, Standing Medical Board that without the reference by the Standing Medical Board, no patient can be referred to any outside referral hospital.

As there is no prescription under Para-2A(i) of getting reference by the Standing Medical Board this court would not take a pedantic view that no reference by the medical board is required.

This court is of the view that in cases where the reference is practicable the reference must be made by the Standing Medical Board only. In that event, the reference by the Medical Officer in the District Court shall be duly considered by the Standing Medical Board. But in case of extreme emergency, such practice has to be waived by the Government. Life is precious than any procedure.

The apex court in Surajit Singh versus State of Punjab & Others reported in (1996) 2 SCC 336 has observed that it is 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. Hence, the procedure may not come in the way, but the reimbursement shall be restricted to the cost that would have incurred in the referral hospital. A series of decisions have followed in terms of that principle, including the judgment and order dated 03.04.2013, delivered in WP(C) No.402/2002 in the matter of Jiban Chandra Das versus of State of Tripura and Others. A copy of that judgment is available with the writ petition.

Having held so, this court is of the considered opinion that by denying the reimbursement of the medical expenses to the petitioner the respondent acted arbitrarily.

As such the respondent No.3 in particular is directed to reimburse the medical expenses of the petitioner as raised by Annexure/2 to this writ petition in accordance with the rules and the memorandum dated 09.08.2005, Annexure R/1 with the counter-affidavit. Such payment shall be made within a period of 2(two) months from the date when the petitioner shall resubmit his medical reimbursement bills to the respondent No.3 with a copy of this judgment."

Mr. Chakraborty, learned Additional Government Advocate has further submitted that not only once but on several times the petitioner has obtained treatment at the hospitals which are not empanelled as the referral hospitals or which are outside the State.

Having perused the averments in the writ petition and the reply submitted by the respondents as well as on appreciating the submission made for the parties, this court is of the view that this case is substantially covered by the decision of Swapan Chakraborty(supra). There is no dispute regarding the factual aspects. The petitioner being critically ill was initially admitted in Tripura Medical College & Dr. BRAM teaching hospital on 25.12.2011 and as his condition turned critical, he was referred to the ILS hospitals, Agartala for better management of his illness. On the same day i.e. on 25.12.2011, the petitioner was shifted to the said ILS hospital and he was diagnosed as CHD followed by coma. From 28.12.2011 he was deteriorating critically as would be evince from the referral certificate issued by one Subrata Sanyal, Clinical Cardiologist of the ILS hospitals. The ILS hospitals authority advised to transfer the petitioner to a competent hospital where management of such illness can be better managed. The said certificate dated 28.12.2011 (Annexure 2 to the writ petition) has stated briefly the entire history of the diagnosis of the petitioner and intervention therefor. It appears that the petitioner was admitted in the Apollo Gleneagles hospitals, Kolkata on 29.12.2011 where the petitioner had to undergo coronary Angiogram on 02.01.2012. From the report of the said Angiogram, it revealed that the petitioner was suffering from single vessel coronary artery disease and as a result, PTCA with stenting to LAD was done in the same silting. The petitioner was discharged from the Apollo Gleneagles hospitals, Kolkata on 10.01.2012. The petitioner has also submitted the discharge summary dated 10.01.2012. The petitioner had thereafter submitted the reimbursement bills following the Rules, but by those communications, the petitioner was refused the reimbursement.

The solitary ground that the respondents have projected is that there was no reference from the Standing Medical Board. But nowhere in the reply, the respondents have projected that the treatment and management of this kind of critical disease is possible or available in the State of Tripura. From the certificate (Annexure-2 to the writ petition) it is clearly evident that even the ILS hospitals could not provide the treatment as required in such state. Now the solitary question that falls for consideration of this court is that whether someone who has availed the treatment in such a critical state in a hospital which were not catalogued as a referral hospital, whether the person who is a government Officer and is otherwise entitled to the reimbursement, according to CS (Medical Attendant) Rules, 1965 can claim or can be allowed to draw such reimbursement on not. The said issue has already been addressed by this court. As such the repetition is avoided and the relevant part of the judgment in Swapan Chakraborty (supra) has already been reproduced for this purpose. In this context, the petitioner is directed to re-submit the medical reimbursement bills within a period of 15 days from the day when he would receive a copy of this order and the respondents shall reimburse the expenses of the petitioner in terms of the cost that would have incurred, had the petitioner been treated in the referral hospital particularly in the SSKM hospital, Kolkata.

Mr. Chakraborty, learned Additional Government Advocate has submitted that so far ILS hospitals is concerned, the said hospital has been declared as the referral hospital and hence so far the treatment in the ILS hospitals is concerned, that shall be assessed by way of the rate that the government has been paying to a government officer when he is referred for treatment in the ILS hospital. It is made clear that so far the treatment in Apollo Gleaneagle hospital, Kolkata is concerned that part of the expenses would be assessed at the rate of the SSKM hospital, Kolkata. The respondents shall examine the records and make the payment within a period of 4(four) months the day when the medical reimbursement would be re- submitted to the respondents No. and 3.

With these observations and direction, this writ petition is allowed to the extent as indicated above. However, there shall be no order as to costs.