Rati Ranjan Bhowmik vs State Of Tripura And Ors

The petitioner has challenged the communication dated 01.04.2019 issued by the Medical Superintendent, Regional Cancer Centre, Agartala by which the petitioner's claim for medical reimbursement of a sum of Rs.4,41,387/- has been rejected. The petitioner has prayed for a direction to the respondents to pay the said amount with interest.

The petition arises in following background. The petitioner is serving under State of Tripura as a Youth Organiser. By virtue of his employment he is entitled to medical reimbursement as per the rules and Government policy for himself and his family members. The petitioner's wife developed a tumor in the breast. With such complaint she had attended the Govt. hospital at Agartala where after biopsy it was detected that she was suffering from breast cancer which would require a surgery. Such sudden developments left the family into distress. Under advice they, therefore, rushed to CMC hospital at Vellore for further investigation and treatment in the month of August, 2018. The investigations revealed that the wife of the petitioner was suffering from "Carcinoma Right Breast CT C & I MO (IDC Grade III)". A surgery was performed on 28.08.2018, removing tumor from right breast of the petitioner's wife. Intermittently for about seven months the petitioner's wife was treated for post operative care at Vellore. The petitioner submitted the bill of Rs.4,41,387/- for medical treatment as well as other charges. This was supported by bills and vouchers. The bill was, however, rejected by the impugned communication dated 01.04.2019 on the ground that the wife of the petitioner had taken treatment from outside the State without obtaining referral certificate from the Standing Medical Board, AGMC & GBP hospital, Agartala.

Counsel for the petitioner submitted that it was on account of the dreaded disease which was detected that the wife of the petitioner was rushed to the hospital at Vellore for further investigation and correct line of treatment. The petitioner did not have time to apply for prior approval from the medical board. On subsequent occasions the petitioner had applied for referral orders and which were also granted by the medical board, which itself shows the genuineness of the petitioner's claim.

On the other hand, learned Government Advocate opposed the petition contending that the Government policy requires prior referral order from the medical board for reimbursement of medical expenditure for treatment obtained outside the State. In the present case the petitioner had not obtained any such referral order.

In my opinion the approach of the respondents is rather rigid and technical. Requirement for prior referral order before taking treatment from outside State, is understandably a legitimate requirement in order to avoid unnecessary medical expenditure to the State. However, such requirement cannot be applied with rigidity. In case of the petitioner, his wife was detected with breast cancer and for which it is not even disputed by the respondents that better treatment would be available only outside the State. It was for this reason that on subsequent occasions the petitioner's request for referral was granted by the medical board. If that be so, the ground raised by the Government for rejecting the medical reimbursement bill of the petitioner cannot be accepted.

In a recent order dated 05.12.2019, in case of Sri Samar Bhusan Chakraborty vs. The State of Tripura and others, W.P. (C) No.830 of 2019 following observations were made:

"It can thus be seen that initial symptoms of the disease were that the petitioner suffered rapid weight loss coupled with drastic depletion of level of Hemoglobin in his blood. The petitioner lost close to 20 kgs of weight in a short span. With these complaints when the petitioner approached the GBP Hospital, the medical opinion was that the petitioner was suffering from iron deficiency anemia. The petitioner thereafter noticed that he was passing blood in the stool upon which he once again approached the GBP Hospital on 11.11.2014 when he was advised colonoscopy which was performed on 19.11.2014. The colonoscopy revealed that the petitioner had possible colon cancer. Under the advice of friends and well-wishers, therefore, he immediately rushed to the TATA Memorial Hospital at Mumbai for availing best treatment of cancer. He was operated on 09.12.2014 and 12 cycles of chemotherapy were administered between 28.01.2015 to 21.07.2015.

The respondents do not dispute the medical expenditure. They only argue that because prior referral order from the Medical Board was not obtained, such bills cannot be passed. In my opinion, in facts of the present case, such objection is totally invalid. As noted, initially the petitioner suffered from weight loss and low hemoglobin in his blood. The fact that he was suffering from cancer was not detected at that stage. When he went back to the doctors with a complaint of passing blood in his stool, colonoscopy was advised which when performed revealed that he was suffering from colon cancer. Considerable time thus was already lost between the petitioner reporting early symptoms of a possible serious ailment and actual detection of the fact that he was suffering from cancer. He, therefore, had every reason to rush for best medical advice and treatment for such life threatening and dreaded disease. At such stage to expect him to apply, await and appear before the Medical Board and obtain a referral order before proceeding for the treatment is an unreasonable expectation. The respondents do not even dispute that had he appeared before the Medical Board, such reference would have been made. They only argue that the petitioner did not obtain a prior order of reference. The fact that on each subsequent occasion when the petitioner had the opportunity he applied to the Medical Board and referral orders were duly passed itself is an evidence of the justification of the petitioner obtaining medical treatment from outside State hospital.

The Supreme Court in case of Surjit Singh vs. State of Punjab and others reported in (1996) 2 SCC 336 had in somewhat similar circumstances made following observations:

"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 self-preservation 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:

17 Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakar maani 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.

18 Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.

20 Sharirarakshanopaayaah Kriyante sarvadaa budhaih 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.

22 Aatmaiva yadi naatmaanama hitebhyo nivaarayet Konsyo hitakarastasmaa- daatmaanam 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.

The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset is answered in the affirmative. Of course the sum of Rs.40,000 already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."

Similar view is expressed by this Court on number of occasions granting relief to the Government servants. Reference in this respect can be made to the following decisions:

Judgment dated 18.08.2016 in case of Sri Kallol Roy vrs. The State of Tripura & others in WP(C) No.277 of 2016, judgment dated 04.05.2018 in case of Sri Uttam Pal vrs. The State of Tripura & others in WP(C) No.1479 of 2017 and judgment dated 27.03.2019 in case of Sri Subal Das vrs. The State of Tripura & others in WP(C) No.895 of 2018.

In the result, the impugned order dated 07.12.2018 is set aside. The respondents are directed to pay the petitioner's medical bills in question as permissible. Such payment shall carry simple interest @ 7.5% from the date of completion of 3(three) months of presentation of bills till actual payment. Entire payment be made within a period of 2(two) months from today.

Petition is disposed of accordingly."

In the result, the impugned communication dated 01.04.2019 is set aside. The respondents shall process the medical and TA reimbursement claim of the petitioner without insisting on prior referral order from the medical board and pay the same to the extent permissible under the Rules which shall be done within a period of two months from today.

Petition is disposed of accordingly.