Vikash Gupta vs Union Of India & Ors.

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are that the applicant is presently working as Upper Division Clerk under the respondent No.2. Due to operation of both hips, applicant taken advice from the CGHS Kanpur on 19.8.2015 and CGHS doctor referred to any other empanelled hospital for treatment. He contacted to GSVM Medical College and Associated Hospitals, Kanpur (a Government hospital) but said hospital referred to Globus Hospital, Kanpur where applicant has admitted for replacement of his both hips. As per estimate given by the Hospital, respondents vide letter dated 18.9.2015 sanctioned an amount of Rs. 313600/- for treatment of applicant, which was paid directly to the hospital concerned. After two years of treatment, respondent No.2 had issued notice dated 24.07.2017 for recovery of Rs.105620/- from the salary of the applicant. Against which the applicant submitted his reply dated 22.9.2017 followed by reminder. Respondent No.2 has issued impugned order dated 15.3.2021 for the recovery of Rs.105620/-from the pay of the applicant.

In the counter reply filed on behalf of respondents, it has been submitted that as per estimated expenditure given by the hospital, an amount of Rs. 313600/- has been sanctioned through cheque dated 18.9.2015 payable to the Hospital. Later, PCDA (CC) audited the medical claim and passed it for Rs. 2,07,980/-. This rate was verified by Additional Director, CGHS Kanpur vide their communication dated 07.04.2016. Thus a recovery of Rs.1,05,620/- arose against the applicant, hence recovery of excess amount of Rs.1,05,620/- has been passed.

Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.

Heard Shri Rajesh Kumar Singh, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents and perused the record.

The submission of the learned counsel for the applicant is that in response to the reference given by GSVM Medical College & Associated Hospitals, Kanpur, the applicant has taken treatment from Globus Hospital, Kanpur. It is an admitted fact that in case of the applicant no liability can be thrown for payment of medical advance given to Globus Hospital, Kanpur. It is admitted fact that applicant had taken treatment in the Hospital where a government hospital had given a permission for treatment and an amount was directly paid to the hospital by the department, now seeking recovery from the applicant is not tenable in the eyes of law. Learned counsel for the applicant submitted that the right to life and health is a fundamental right enshrined under Article 21 of the Constitution of India, therefore, the applicant had a right to avail of the best medical facilities which were available in the city for saving of his life. In support of his claim, learned counsel for the applicant placed reliance upon the judgment of this Tribunal in the case Ashok Kumar Vs. Union of India in OA No. 330/1213/2017 passed on 29.11.2022 in which this Tribunal has referred following case laws:-

Submission of the learned counsel for the respondents is that beneficiary has a choice to obtain the treatment either in Government hospital or any CGHS empanelled hospital of his choice with due permission from HOD of his office. Learned counsel further submitted that an advance of Rs. 3,13,600/- was paid to the applicant through cheque in favour of Globus Hospital, Kanpur and on the audit report of PCDA (CC), an excess amount of Rs. 1,05,620/- has been paid, for which a recovery order has been paid. It is further submitted that applicant’s wife has given a consent form on 06.09.2015 agreeing to pay the extra amount for the treatment if not sanctioned/passed by the department.

I have gone through the judgment referred by the learned counsel for the applicant.

Hon’ble Delhi High Court, relying upon the judgment of Sqn. Commander Randeep Kumar Rana Vs. Union of India, 111 (2004) DLT 473, has held that "If the hospital has charged over and above the package rate, the respondent is under an obligation to pay to such charges as the petitioner has incurred over package rates at the first instance and if in law state can recover from the hospital concerned, they may do so but they cannot deny their liability to pay to the Government employee who is entitled for medical reimbursement, directed the respondents to reimburse the full medical expenses to the applicant. Same view has also been taken by Hon’ble Delhi High Court in J.K. Saxena (supra) and M.A Haque (supra).

Considering the entire facts and circumstances of the present case and comparing the same with the ratio laid down in J.K. Saxena (supra) and M.A Haque (supra), I am of the opinion that applicant is also entitled for medical reimbursement as incurred by him during the treatment. Since the respondents have paid the amount directly to the hospital, recovery of the excess amount from the applicant is not in accordance with law. At the most same can be recovered from the Hospital concerned.

In view of the above, impugned notice dated 15.3.2021 is liable to the quashed. Accordingly, the same is quashed and the OA is allowed. Respondents are directed not to proceed from making any recovery from the applicant. If any amount has already been recovered in lieu of recovery order, the same be refunded to the applicant forthwith. No costs.