IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1636 of 2000 For Approval and Signature:
HONOURABLE MR.JUSTICE N.V. ANJARIA =========================================================
========================================================= HASMUKHBHAI N SHAH Versus COMMISSIONER OF HEALTH & WELFARE DEPTT AND ANOTHER ========================================================= Appearance :
MR VK JOSHI for Petitioner(s) : 1, MR RONAK RAVAL ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE N.V. ANJARIA Date :30/04/2012 CAV JUDGMENT The present petition under Article 226 of the Constitution pertains to petitioner’s claim for reimbursement of medical expenses under the policy of the State Government evinced from the rules and resolutions in that regard. The petitioner submitted the bill for total expenses of Rs.1,32,335.18 for reimbursement in respect of heart surgery undergone by him at Hinduja Hospital, Mumbai. Against that claim, an amount of Rs.58,000/ only was sanctioned by the respondents. The petitioner has prayed for writ of mandamus to set aside the order dated 25.06.1998 of the Additional Director, Medical Services, Gandhinagar rejecting the claim of the petitioner and a further direction against respondents to sanction the remaining amount of Rs.74,335/.
2. Petitioner was a government employee who joined his services on 12.05.1964 and retired on 31.01.1999 from the post of Administrative Officer in the office of Chief Inspector of Factories. It is the case of the petitioner, the facts of which are not in dispute, that in 1990 he suffered heart problem upon which he was required to undergo a bypass surgery at Appolo Hospital, Madras. Again, in December 1994, the heart problem arose, whereupon the cardiologist of Civil Hospital, Ahmedabad advised him to get treatment in a hospital outside the State in view of delicate condition of his heart. The petitioner underwent angioplasty at the same hospital at Madras on 19.12.1994 and the expenses of Rs.80,411/ incurred for that treatment was reimbursed to him by the government under its policy.
2.1 It is the further case that the heart ailment of petitioner recurred and on 01.08.1998 he developed severe chest pain, upon which he telephonically consulted cardiologist Dr.Mathews of Appolo Hospital at Madras, who had performed the previous surgery on the petitioner. As the petitioner was required to be treated immediately, said Dr. Mathews advised him to get admitted at Hinduja Hospital, Mumbai, where he was to visit on 04.08.1998. The petitioner was diagnosed to be suffering from sever angina and was immediately admitted to Hinduja Hospital. There, the angiography and angioplasty were performed on him in two stages on 06.08.1998 and 07.08.1998. In view of his poor heart functioning and 95% blockage in the main blood vein having been found and as there was history of previous bypass surgery, the operation was advised in a staged manner. The visiting cardiologist, Hinduja Hospital issued the certificate.
2.2 By letter dated 09.09.1998, giving complete details of past history of the heart disease and its treatment and the circumstances in which the last surgery was required to be undergone at Hinduja Hospital, Mumbai, the petitioner requested for reimbursement of the medical expenses of Rs.1,32,335.18. In support of his claim, a bill for such expenses certified by the Hinduja hospital was produced. The Chief Supervisor, Factories recommended for reimbursement of expenses to the petitioner by addressing letters dated 16.09.1998 to the Secretary, Health & Medical Department, and the Additional Director, office of Commissioner of Health Services (Medical Department), Gandhinagar. It appears that the Additional Director by his letter dated 31.12.1998 sought for an opinion from U.N.Mehta Institute of Cardiology & Research Centre, Civil Hospital, Ahmedabad, to know the estimated expenses for the operation of the kind underwent by the petitioner. The Director of the Institute in the reply letter stated that it could be approximately Rs.1 lakh and that further expenses of Rs.40,000/ for putting a stent would incur. It was further stated that the treatment could be decided and finalized only after examining the patient’s condition.
2.3 The Deputy Director, Health Services in his letter dated 30.04.1999 to the Chief Factory Supervisor stated that the petitioner had underwent angiography twice for which documentary proof was needed from the hospital. It was then stated that the bill dated 10.08.1998 produced by the petitioner from Hinduja Hospital had shown that the surgery was done only once, however, since according to the petitioner it was done in two stages, a proof for that was required. In response, the Cardiologist of Hinduja Hospital who had performed surgery on the petitioner issued certificate dated 26.11.1998, which was produced by the petitioner before the authorities.
That certificate read as under. “ P. D. HINDUJA NATIONAL HOSPITAL & MEDICAL RESEARCH CENTRE 261198 TO WHOMSOEVER IT MAY CONCERN This is to certify that Mr. H. N. Shah is a case of Ischeamic Heart Disease. He was admitted under my care for angiography and angioplasty. His angioplasty was performed in two stages. First stage was PTCA with stent of RC on 06/08/98 and second stage was Rotablation and PTCA of circumflex on 07/08/98. The procedure was staged and done on separage days as it was considered safe for the patient.
Sd/ DR. K. S. MATHEWS VISITING CARDIOLOGIST”
2.4 The cardiologist also addressed a separate letter dated 03.06.1999 so as to satisfy the query of the authorities, and in that he interalia explained as to why the treatment was required in two stages, by stating “....His angiography was done which showed patent graft to Lad, 95% stenosis in LCx and 95% stenosis in RCA. He was advised angioplasty with stent of both the arteries. Considering the fact that he had prior bypass surgery and poor heart function, it was necessary to open to arteries in two stages basically for better patient safety. His RCA was treated with angioplasty and stent on 6.8.98 and LCx was treated with Rotablator, angioplasty and stent on 7.8.98. Both the procedures were successful.”
2.5 The petitioner thereafter again requested in writing on 07.06.1999 to reimburse the amount spent. By the impugned communication, the claim of the petitioner was refused on the ground, astonishingly, that the petitioner had underwent two angiography and two angioplasty and that the fixed amount cannot be claimed twice and he had not satisfied query Nos.1 and 2 of the letter dated 30.04.1999. Ultimately, by order dated 26.07.1999, amount of Rs.58,000/ was sanctioned as fixed amount as against the total claim of Rs. 1, 32, 335.18 ps on the ground that the petitioner had not taken prior permission under the rules for getting treatment in a hospital outside the State.
3. During the pendency of the petition, by order dated 31.03.2000, this Court directed respondent No.1 to decide on the claim of the petitioner afresh in true spirit considering the fact that the Commissioner of Health had obtained opinion from U. N. Mehta Institute and the documents from P. D. Hinduja Hospital was also submitted by the petitioners as required by the concerned authorities. Pursuant to that direction of this Hon'ble Court, the Commissioner, Health and Medical Services, Gandhinagar, by order dated 26.4.2000 rejected the claim of the petitioner making no change in the earlier decision stating that the angiography and angioplasty on the petitioner was performed in two stages and as the petitioner had fallen ill at Ahmedabad, he was required to get treatment at Civil Hospital, Ahmedabad and since he had taken treatment outside the State without prior permission, medical expenses were not liable to be reimbursed. That decision was produced on record along with affidavitinreply dated 04.05.2000.
3.1 Learned advocate for the petitioner Mr. V. K. Joshi submitted that there was no justification for not sanctioning the full amount towards the medical expenses incurred when the factum of operation was not disputed. He submitted that the bill for medical expenses was certified by the hospital concerned and was also countersigned by the competent personnel. He submitted that for the earlier operation, the medical expenses were reimbursed. It was submitted that the amount was withhold on technical ground and arbitrarily.
3.2 Learned advocate for the petitioner placed reliance on the decisions of this Court in Arvindkumar Dahyabhai Patel Versus Commissioner of Health being Special Civil Application No.504 of 1999 decided on 28.8.2003 [2003 (0) GLHEL – HC200790]), in Jaswantsinh Gohil vs. Commissioner of Medical Services (Health) in Special Civil Application No. 9001 of 2000 decided on 19.12.2011, and in Madhavdas Bhagwandas Khushiramani vs. State of Gujarat and others [2001 (1) GLH 509]. He also produced a decision in Letters Patent Appeal No.1543 of 1999 to submit that in respect of Special Civil Application No.2888 of 1995 which was referred to in the affidavitin reply by the respondents, the Letters Patent Appeal was dismissed.
3.3 Learned Assistant Government Pleader, Mr. Ronak Raval, appearing for the respondent, relied on the affidavitinreply. It was contended that when the petitioner had taken treatment in the hospital outside the State of Gujarat, it was necessary for him to obtain prior permission in terms of Rule 8 of Gujarat State Services (Medical Treatment) Rules, 1988. It was further submitted that as provided in the Government Resolution dated 26.03.1999, as no such prior permission was taken, the reimbursement was sanctioned upto the maximum payable amount.
4. The rules called ‘Gujarat State Services (Medical Treatment) Rules, 1988 framed by the State Government relate the policy regarding reimbursement of medical expenses to the government employees who take treatment for chronic disease. Resolution dated 26.3.1999 of the Health and Family Welfare Department is issued to clarify on the aspects of reimbursement of the expenses for the treatment of heart disease. Rule 8(i)(c) of the Rules provides, inter alia, that in exceptional cases if an authorized doctor is of the opinion that treatment required is available only in a hospital outside the State but within the country , in those cases, a patient may be sent to such hospital by obtaining approval of the Director Health and Medical Services. It is stated further that such permission/approval shall be obtained in advance except where the delay would endanger patient’s health. It is also provided that when treatment is taken outside the State, 75% amount of medical expenses would be paid in advance, if the bill for estimated expenses from the authorized doctor is put up. Resolution dated 26.03.1999 provides that full expenses will be reimbursed for the heart treatment taken in the hospital within the State or outside the State, as the case may be, after prior permission in terms of Rule 8(i)(c). It also provides that in cases where requirements of Rule 8(i) (c) is not satisfied, fixed amount, as per the ceiling mentioned, would be reimbursed.
4.1 At the outset, it may be noted that the ground on which the claim of petitioner for reimbursement was rejected vide impugned order dated 25.6.1999 (at AnnexureH) if juxtaposed with the stand taken in the affidavitinreply dated 19.5.2000 filed by Deputy Director, Medical Services, the both stand in contrast. The impugned order proceeded on the footing that the claim was not reimbursable as it was for treatment of two angiography and two angioplasty and fixed amount could not be given twice. On the other hand, the principal contention in the affidavit inreply was that the fixed amount only was payable because the petitioner had not taken prior permission in terms of Rule8 of the Rules. Furthermore the following averments in para5 of the affidavit in reply are quite opposite to what was stated in the impugned order. They are reproduced herein.
“I say and submit that the petitioner had undergone the surgery of heart in the year 1994 and it was not possible to carry out the surgery of both coronary artery at one stage and surgery has been completed and, therefore, it can never be considered as two separate operations but amounts to completion of surgery as stage wise that is by adopting two stage.”
4.2 Therefore, on the face of it there was total nonapplication of mind on part of the respondents. From the contents of the correspondence showing the process of consideration of petitioner’s application for reimbursement looked as if they were busy only in finding chaffs out of grains.
5. The policy of medical reimbursement is a welfare measure adopted by the State, whereby the State Government endeavors to fulfill its responsibility towards its employees by mitigating their hardships by repaying the expenses for medical treatment they may have to take for serious ailments such as heart disease. The right to be reimbursed for such legitimate medical expenses is a right recognized by the courts as part of right to life. It is a right to selfpreservation emanating from Article 21 of the Constitution.
5.1 In Surjitsingh vs. State of Punjab (AIR 1996 SC 1388), in the facts of that case, the Supreme Court observed as under:
“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.”
5.2 In Surjitsingh (supra), the employee had taken treatment outside the country and his claim for reimbursement at the rates admissible as per the Escorts Hospital in India was denied. The Supreme Court quoted from the verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) saying that centuries ago thinkers of this Great Land conceived right of the kind and nature of self preservation and recognized it. Holding that the appellant had the right to take steps in self preservation, it was observed further that “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 alternate hospital as per policy. ..... In the facts and circumstances, had the appellant remained in India, he could have gone to the 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.”
5.3 The policy of medical reimbursement has to operate having due regard to its purpose of catering to a right of a government employee which has a higher context of Article 21 as observed by the Apex Court. Interpretation of Rule 8 of the Rules and the requirement of prior permission contemplated thereunder have to be construed in light of the object for which the Rules are framed.
5.4 The requirement of taking prior permission in Rule 8(i) (c) of the Rules as they pertain to medical treatment of ailing employee and his health concerns cannot be applied as a cast iron rule. It has to permit sufficient elasticity in its applicability. By very nature, it relates to something which would not permit brooking of delay in a given set of urgent circumstances. It could not be insisted in every situation that a prior permission or approval of the Director in advance is a must before the employee goes to a hospital outside the State for his treatment. In an urgent and emergent situation where delay in treatment would endanger the health, life and safety, it was to be a natural conduct of any person to rush to a hospital for being treated immediately.
5.5 A pedantic and wooden approach would negate the very purpose of the welfare measure. An interpretation that in all circumstances prior permission as required in Rule 8(i)(c) of the Rules is indispensable would be self defeating. In fact, it would be contradictory in a given set of facts, such as obtained in the present, in asmuch as if rule is read properly, it takes care by excepting such permission where delay would jeopardize the health and life of the patient. Having regard to the undisputed facts of the present case, it could be seen that the petitioner had to rush to be admitted in Hinduja Hospital at Mumbai and had to underwent surgery after having been diognized for 95% blockage in the heart artery. The petitioner could not have been expected to wait and seek a prior permission by staking and endangering his life. The facts amply demonstrated that it was a situation where claim of the petitioner for reimbursement could not have been refused on the ground of non taking of prior permission.
6. In Madhavdas (supra), this Court deprecated the technical approach adopted by the officers who are the officers of a Welfare State observing that where a government servant puts up a bona fide claim for reimbursement of his medical bill, the approach in such matters should be justice oriented and it would be most unreasonable, unjustified and arbitrary if a bona fide claim is rejected mechanically. In Jaswantsinh Gohil (supra), this Court allowed full medical expenses claimed by that petitioner when the Court found that the genuineness of bill was not flouted by the respondent which was rejected by the authorities on the ground that the petitioner had not produced any certificate from the authorized medical officer, which was held not to be a good ground to reject the claim. In Arvindkumar (supra), this Court did not accept the contention that prior permission was not taken under Rule 8 before going to Jaslok Hospital, Bombay, or that no recommendation by the authorized medical practitioner was obtained for treatment at the Hospital out of State.
7. In light of the above principles of law relating to policy for reimbursement of medical claim as applied to the facts of the case, the contention of the respondent State that the petitioner’s claim was not reimbursable in full on the ground of his not taking prior permission under Rule 8 of the Rules and without such permission having treated himself at the hospital outside the State, cannot be countenanced. As seen above, it was clear from the facts of the case that the petitioner had to negotiate an emergent situation, in which he rushed to a hospital outside the State. The conduct of the petitioner in getting expert treatment outside the State was a permissible exercise of his right of self preservation. It was neither legitimate nor legal for the authority concerned to disallow the medical expenses claimed by the petitioner. Prior permission could not have been insisted and could not be raised as ground for not reimbursing the actual expenses in full. Expostfacto sanction to the expenses could have been a good compliance of Rule 8 of the Rules, and that ought to have been done.
8. In light of forgoing reasons and discussion, impugned order dated 25.06.1999 (AnnexureH to the petition) of Additional Director, Medical Services, Gandhinagar rejecting the claim of the petitioner for reimbursement of medical expenses is quashed and set aside. The petitioner is entitled to reimbursement of full amount of expenses spent by him on treatment. The respondents are directed to pay Rs.74,335/ being unpaid part of the claim, to the petitioner within six weeks from the date of receipt of certified copy of this judgment and order. The petition accordingly succeeds, and allowed with cost of Rs.1500/ to be deposited before the Legal Services Authority within three months.
9. Rule is made absolute.
10. As requested by learned advocate for petitioner, direct service of this judgment and order is permitted.
Amit [N. V. ANJARIA, J.]