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2009 DIGILAW 171 (GAU)

State of Manipur v. Angom Suchila Devi

2009-03-09

ASHOK POTSANGBAM, MAIBAM B.K.SINGH

body2009
JUDGMENT A. Potsangbam, J. 1. Heard Mr. R.S. Reisang, learned Addl. Government Advocate Manipur appearing for the appellants, None appears for the respondent when the matter was called out for hearing despite showing the name of the Counsel for the respondent in the cause list. 2. The challenge in this writ appeal is against the Judgment and order dated 5.4.2007 passed by the learned Single Judge in WP(C) No. 778/2006. 3. The facts of the case, shorn of details, which are necessary for adjudication of this appeal are as follows: The respondent-writ petitioner, who is a State Law Officer presently functioning as Addl. Public Prosecutor-cum-Addl. Government Advocate, (Districts) State of Manipur, was in Bangalore on 27.8.2005 in connection with her son's admission in Dayamanda Sagar of Dental Science, Bangalore and she was on leave for 15 days w.e.f. 27.8.2005 to 10.9.2005. The case of the petitioner is that she suddenly fell ill while she was in Bangalore and thereafter, she was admitted on 2.9.2005 in Kidwai Institute of Oncology, Bangalore, in the department of Pathology. The attending Physician, after examination, advised her for histological evaluation of her case by way of lumpectomy and biopsy and she was referred to Mallya Hospital, Bangalore, due to non availability of bed in the Kidwai Institute of Oncology, Bangalore. It is stated that the respondent-writ petitioner was admitted to Mallya Hospital in Bangalore on 22.9.2005 and thereafter, she was operated on 23.9.2005. Her ailment was diagnosed as Left Lobe Follicular Adenoma with Atypical Papillary Hyperplasia and Fibrocystic disease with Lobular Hypeiplasia right breast (mild Atypia). It is stated that the petitioner was discharged from Mallya Hospital on 28.9,2005 and thereafter, she came home at Imphal. The petitioner submitted an application along with duly filled in Form 97-A and 97-B accompanied by necessary documents including the original medical bills for ex post facto sanction and reimbursement of the expenditures incurred by her in the medial treatment at Mallya Hospital. The total expenditure, claimed for, being the cost of medical treatment, hospital charges, Doctor fees, cost of medicine, dietary, laboratory, bed charges and miscellaneous expenses came to Rs. 52,050.31. The case of the respondent-writ petitioner was referred to the State Medical Board through the Director of Health Services, Manipur. The total expenditure, claimed for, being the cost of medical treatment, hospital charges, Doctor fees, cost of medicine, dietary, laboratory, bed charges and miscellaneous expenses came to Rs. 52,050.31. The case of the respondent-writ petitioner was referred to the State Medical Board through the Director of Health Services, Manipur. However, the State Medical Board in its meeting held on 14.6.2006, after due examination of the relevant papers conveyed that the reimbursement, sought for, could not be considered as per CCS(M.A.) Rules, 1944. It is also stated that the respondent-writ petitioner, without obtaining approval of the State Medical Board for further follow up check-up, again left Imphal on 21.6.2006 by air for Bangalore, on the basis of an advice given by one Associate Professor of Surgery, RIMS to attend Mallya Hospital, Bangalore on the ground that RIMS did not have the details of her surgery/treatment available in Mallya Hospital and another expenditure amount of Rs. 22,890 was submitted for ex post facto sanction, being the expenditure incurred in the second trip. As the amount claimed for ex post facto approval, both for the first and second trip, was not being granted by the State Government in view of the aforesaid decision of the State Medical Board, the petitioner approached this Court by way of a writ petition praying for a writ of mandamus directing the State Government to grant ex post facto sanction of Rs. 74,890.31 (Rs. 52,050.31 + 22,890) and for necessary payment. 4. The prayer of the respondent/writ petitioner was resisted by the State Government on various grounds, some of the grounds are stated below: (i) Mallya Hospital, Bangalore is not recognized for the purpose of medical reimbursement by the State Medical Board under CCS (M.A.), Rules and the existing Rules of the Government of Manipur. (ii) The treating physician from Kidwai Memorial Hospital did not refer the case to Mallya Hospital in accordance with the usual procedure. (iii) The nature of the disease breast lump and MNG is not of emergency nature inasmuch as breast lump and lump in Thyroid have been noticed in 2 months before the date of examination as disclosed by the history of discharge report of the Mallya Hospital, Bangalore. 5. The learned Single Judge relying on the Judgment of the Apex Court reported in Surjit Singh v. State of Punjab and Ors. 5. The learned Single Judge relying on the Judgment of the Apex Court reported in Surjit Singh v. State of Punjab and Ors. 1996 (2) SCC 336 and the judgment of this Court reported in Gouri Sengupta v. State of Assam 1999 (2) GLT 601, directed the State Government to pay the aforesaid amount of Rs. (Rs. 52,050.31 + 22,890) = Rs. 74,940.31 to the petitioner within a period of 2 months from the date of receipt of the Judgment and order and that the ordered amount would carry 14% interest per annum from the date of delivery of Judgment, if the aforesaid amount was not paid within the time stipulated in the Judgment. 6. In accordance with CCS (M.A.) Rules, 1948 and also by way of austerity measure, the State Government issued an Office Memorandum on 14.3.2001 laying down and stipulating conditions for medical reimbursement in respect of medical treatment of State Government employees. The relevant Government Office Memorandum dated 14.3.2001 is reproduced hereinbelow: No. 6/15/99-PIC(pt-1)(B): As a part of Austerity Measure taken up by the State Government, the undersigned is directed to state that entitlement for medical reimbursement of State Government employees will henceforth be as follows: (i) Full reimbursement of eligible claims within a ceiling of Rs. 20,000 per annum for each employee. (ii) In respect of eligible claims beyond the ceiling of Rs. 20,000 the medial reimbursement will be 100% in respect of the claim up to Rs. 20,000 and 50% of the claim over and above the ceiling of Rs. 20,000. 2. The above entitlement will have immediate effect. 3. The relevant provision of CCS (MA) Rules, 1948, adopted by the State Government shall be deemed to have been amended to that extent. 7. Another Office Memorandum dated 5.8.2006 was issued by the Government in respect of medical reimbursement but the same is not re-produced as it is not relevant for our consideration. According to paragraph-2 of the Office Memorandum dated 14.3.2001, as extracted hereinabove, medical reimbursement will be 100% in respect of claim up to Rs. 20,000 and 50% of the claim over and above the ceiling of Rs. 20,000. Of course, this amount has been increased by the subsequent Office Memorandum dated 5.8.2006 the first trip of treatment of the petitioner shall be governed by the Office Memorandum dated 14.3.2001 and not by the subsequent one dated 5.8.2006. 20,000 and 50% of the claim over and above the ceiling of Rs. 20,000. Of course, this amount has been increased by the subsequent Office Memorandum dated 5.8.2006 the first trip of treatment of the petitioner shall be governed by the Office Memorandum dated 14.3.2001 and not by the subsequent one dated 5.8.2006. The appellants Government have also annexed documents showing various hospitals at different places as recognized and referral hospitals of the Government of Manipur. The Mallya Hospital is not one recognized by the Government nor it is included in the list of referral hospitals, maintained by the State Government. 8. In Surjit Singh (supra), the petitioner therein, a Police Officer, in Punjab Government, while visiting his son in England was suddenly taken ill due to heart problem, as an emergency case, he was admitted in Dudley Road Hospital Birmingham. After diagnosis he got himself admitted and operated upon in Humana Hospital, Wellington, London for a bypass surgery and he claimed to have been hospitalized from 25.7.1988 to 4.8.1988 and a sum of Rs. 3 lakh, which was alleged to have been incurred in the treatment, was claimed for reimbursement after return from England. The Apex Court recognizing that self preservation of one's life is the necessary concomitant of the right to life, enshrined in Article 21 of the Constitution, fundamental in nature, scared, precious and inviolable held that in the nature of the case, the petitioner therein, has a right to take steps for his self preservation and did not have to wait in que before the Medical Board as well as before the Government Hospital of AIIMS. The contention of the respondents in the aforesaid case, i.e., to pay the reimbursement at the rate payable for similar treatment at AIIMS was rejected inasmuch as the rate payable for similar treatment at Escorts was entitled to the petitioner in view of the fact that at the relevant time, the Escorts Hospital was already designated as one of the referral hospitals for treatment of Punjab Government employees. In this view of the matter and on consideration of the matter in its entirety, the Apex Court held that the petitioner was entitled to reimbursement only at the rate payable at Escorts Hospital, not the entire amount claimed as expenditure incurred in the course of operation in London Hospital. In this view of the matter and on consideration of the matter in its entirety, the Apex Court held that the petitioner was entitled to reimbursement only at the rate payable at Escorts Hospital, not the entire amount claimed as expenditure incurred in the course of operation in London Hospital. Thus, the case of Surjit Singh (supra) stands in a different footing, which was an emergency case and a bypass surgery had to be performed and the cost of expenditure was also paid at the rate approved and payable for similar treatment at Escorts Hospital. Secondly, the case of Gouri Sengupta v. State of Assam 1999 (3) GLT 601, is a confirmed case of malignancy (cancer). It is submitted by the learned Government Advocate that in the case of treatment for heart ailment and cancer, State Government employees concerned is entitled to full reimbursement of the expenditure incurred for such treatment as per the existing State Policy, but in case of others, reimbursement has to be made on the basis of and in terms of the policy referred to above. In other words, the expenditure for treatment between 4.3.2001 to 5.8.2006, will have to be determined only in-accordance with the policy dated 14.3.2001 and those cases occurred after 5.8.2006, will have to be dealt with in-accordance with the terms of the subsequent policy dated 5.8.2006. From the discussions made above, there is no dispute that the case of the petitioner relating to first phase of treatment will have to be decided in terms of Office Memorandum, dated 14.3.2001 and her case is not one of those emergent nature of cases such as malignancy and heart ailment, as discussed above. 9. Mr. R.S. Reisang, Learned Counsel for the appellants has drawn the attention of the court to a case decided by the Apex Court (three Judges bench) reported in State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors. 1998 (4) SCC 117 . In this case, a new policy was introduced by the State Government of Punjab which was a little deviation from the judgment rendered by the Apex Court in Surjit Singh (supra). v. Ram Lubhaya Bagga and Ors. 1998 (4) SCC 117 . In this case, a new policy was introduced by the State Government of Punjab which was a little deviation from the judgment rendered by the Apex Court in Surjit Singh (supra). In the aforesaid case, the Apex Court held that the State has a right to change its policy from time to time under changing circumstances and such a right of the State to change its policy is neither challenged nor could it be and, therefore, the rate fixed in the Government policy for reimbursement of the medical expenditure of Government employees was held constitutionally valid. In the 1998 case (supra), the Apex Court has considered the case of Surjit Singh (supra) which was heavily relied upon by the learned Single Judge, and distinguished the same by holding that the new policy dated 13.2.1995, which was the subject matter before the Apex Court, was not violative of the Article 21 of the Constitution of India inasmuch as the financial constraints and other factors taken into consideration by the Government while framing the new policy dated 13.2.1995 could not be ignored and all action of the State involving finance shall have to be inconsonance with the mandate of the Article 41 of the Constitution of India which provides that the State shall within the limit of its economic capacity.... The ratio laid down in the case is of 1998 (supra) is that it is for the Government to frame appropriate policy for reimbursement of the expenditure incurred by its employees for medical treatment and unless such policy is held arbitrary and ultra virus, the same have to be strictly adhered to. 10. Any of the two cases cited in the impugned Judgment is not applicable to the cases of the respondent-petitioner. However, considering the fact that there was, in fact, an investigation followed by treatment and operation of the petitioner at Mallya Hospital and she had to incur an expenditure of Rs. 52,050.31, we are of the opinion that the ends of justice will be met if we direct the Government to reimburse the expenditure incurred in the first trip in terms of Office Memorandum dated 14.3.2001. In the peculiar facts and circumstances, we approve the expenditure for the first trip despite having noticed that the discharge report did not disclose any case of emergency. In the peculiar facts and circumstances, we approve the expenditure for the first trip despite having noticed that the discharge report did not disclose any case of emergency. According to the learned Government Advocate, the calculations made on the basis of the Office Memorandum dated 14.3.2001 in respect of the first phase of the treatment, shall be only Rs. 36,025.15 [Rs. 20,000 + (50% of Rs. 32,050.31) Rs. 16,025.15]. 11. Secondly, in respect of the second phase of treatment for which the petitioner left for Bangalore on 21.6.2006 without the recommendation of the State Medical Board, leave alone, any effort to get the approval of the State Medical Board for the follow up medical check up, the respondent-writ petitioner is not entitled to any reimbursement for the following reasons: (i) The respondent/writ petitioner being a senior law Officer of the State is expected to understand the procedure prescribed by the State Government for treatment in a referral or private hospital and in all cases, approval of the State Medical Board is required for pre or post treatment. (ii) Despite having ample time at her disposal after the first phase of treatment, i.e., after her discharge from Mallya Hospital on 28.9.2005, the respondent/writ petitioner could have conveniently applied for approval of the State Medical Board for the proposed follow up medical check up at Mallya Hospital, Bangalore. Instead of doing that, the respondent proceeded to Bangalore for the second phase of treatment on the basis of an advice given by an Associate Professor of RIMS, who cannot substitute the decision of the State Medical Board. (iii) Regularizing the second phase of treatment of the respondent-writ petitioner at Mallya hospital and the expenditure incurred therein, as discussed above, with the seal of approval of the court would amount to legalizing an illegality. 12. We, therefore, have no hesitation to hold that the respondent-writ petitioner is not entitled to any amount for reimbursement for her second phase of treatment and accordingly her claim for Rs. 22,890 being the expenditure incurred for the second phase of follow up treatment, is rejected 13. Mr. Reisang, learned Government Advocate, appearing for the appellants has placed before the court an order dated 21.7.2007 under No. 7/23/95-GA/L and submits that a sum of Rs. 22,890 being the expenditure incurred for the second phase of follow up treatment, is rejected 13. Mr. Reisang, learned Government Advocate, appearing for the appellants has placed before the court an order dated 21.7.2007 under No. 7/23/95-GA/L and submits that a sum of Rs. 74,940.31 has been sanctioned and paid to the respondent-writ petitioner on pain of contempt and, of course, the payment is subject to the outcome of this writ appeal. 14. For the reasons discussed above, the impugned Judgment and Order dated 5.4.2007 passed by the learned Single Judge in WP(C) No. 778/2006 is hereby set aside and interfered with and the relief of the writ petitioner shall be confined to the extent indicated in Paragraph-10 of this Judgment and any excess amount drawn and paid to the petitioner may be recovered by the appellants in accordance with law. The writ appeal shall stand allowed to the extent indicated above. No order as to costs. Send a copy of the Judgment to the Chief Secretary for doing the needful. Appeal allowed.