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2012 DIGILAW 1032 (MAD)

Deputy Director of Health Services v. R. Elango

2012-02-27

G.RAJASURIA

body2012
Judgment :- 1. The defendants in the suit filed this appeal as against the judgment and decree dated 3.10.2007 passed by the learned the Additional District Court, Fast Track Court, Dharmapuri, in O.S.No.25 of 2007, which was filed by the plaintiff/respondent herein for recovery of money. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (a) The plaintiff, being a doctor, filed the suit as against the State Government as well as the Central Government and Government officials for recovering the amount due payable to him for the operations conducted by him under the centrally sponsored 'Reproductive and Child Health Project' with the following prayer: "a) to direct the defendants to pay a sum of Rs.7,24,490/-with subsequent interest at the rate of 12% per annum from the date of suit till the date of realization. b) to direct the defendants to pay costs of the suit." (extracted as such) (b) The appellants/defendants resisted the suit by filing the written statement disputing the averments in the plaint and prayed for dismissal of the suit on various grounds. (c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and Exs.A1 to A44 were marked. On the defendants' side, one Ayyanar examined himself as D.W.1 and Ex.B1 was marked. 4. The gist and kernal, the pith and marrow of the indubitable and indisputable facts or at least the undeniable facts would run thus: The Health and Family Welfare Department, Government of Tamil Nadu, as per Ex.A1-the G.O.(M.S.)No.32 dated 21.2.2003, by referring to the following two other G.Os.: (1) G.O.(3D) No.46, Health, dated 5.9.2000 read with letter No.4466/EAP3/2001-2, dated 13.3.2002. (2) From the Project Director, Reproductive and Child Health Project D.G.Letter No.2/RCHP/P/03 dated 14.1.2003. wouldconvey its intention to engage the plaintiff/Dr.Elango, who is running a private nursing home at Bommedi, Dharmapuri District, for performing tubectomy operations, subject to certain conditions. It is therefore just and necessary to extract hereunder the paragraph Nos.2 and 3 of Ex.A1. "2. (2) From the Project Director, Reproductive and Child Health Project D.G.Letter No.2/RCHP/P/03 dated 14.1.2003. wouldconvey its intention to engage the plaintiff/Dr.Elango, who is running a private nursing home at Bommedi, Dharmapuri District, for performing tubectomy operations, subject to certain conditions. It is therefore just and necessary to extract hereunder the paragraph Nos.2 and 3 of Ex.A1. "2. The Project Director, Reproductive and Child Health Project has informed that at present Government facility is not available for providing tubectomy services in Pappireddypatty Block, Dharmapuri District and he has therefore requested the Government's permission for hiring the private surgeon, Dr.Elango who is running a private Nursing Home at Bommidi at Rs.800/- per sitting for performing 3 tubectomy operations on the condition that the private surgeon should offer the service free of cost to the beneficiaries. The incentive of Rs.200/- given by the Family Welfare Programme will be paid to the beneficiary. He has also stated that payment of Rs.150/- per patient towards laboratory investigation chares and drugs to the private surgeon may be made to the above Clinic after obtaining the approval of Government of India. 3. The above proposal of the Project Director, Reproductive and Child Health Project has been examined in details. As funds are available under Reproductive and Child Health Project and this being an experiment for public – private partnership in underserved remote area for the benefit of the poor, Government have decided to accept the above proposal of the Project Director and issue the following orders: (a) The Project Director, Reproductive and Child Health Project, is permitted to utilise the services of the private surgeon and his operation theatre including in-patient facilities at Bommidi on payment of honorarium of Rs.800/- per sitting for performing not less than 3 tubectomy operations on the condition that the private surgeon should offer the service free of cost to the beneficiaries and that he should not collect any amount from any patients. The incentive of Rs.200/- given under the Family Welfare Programme shall be paid to the beneficiary. (b) The Project Director, Reoproductive and Child Health Project shall make payment of Rs.150/- per patient towards laboratory investigation charges and drugs to the private Clinic, only after obtaining approval of Government of India. The incentive of Rs.200/- given under the Family Welfare Programme shall be paid to the beneficiary. (b) The Project Director, Reoproductive and Child Health Project shall make payment of Rs.150/- per patient towards laboratory investigation charges and drugs to the private Clinic, only after obtaining approval of Government of India. (c) The Medical Officer, Primary Health Centre, Mallapuram, Dharmapuri District, shall maintain proper accounts and vouchers towards disbursement of honorarium and periodically inspect and ensure that patients are not charged for the service rendered by the private nursing home. (d) The Deputy Director of Health Services, Dharmapuri/Medical Officer, Primary Health Centre, Mallapuram, Dharmapuri District, are responsible for supervising the implementation of the above scheme and disbursement of hiring charges. The surgeries performed in this private facility will be accounted for against performance of Deputy Director of Health Services for the purpose of reaching Annual Expected Level of Demand(AELD) (e) The expenditure shall be met from the interated financial envelope head of account, already indicated in the .O.(3D) No.46, Health and Family Welfare, dated 5.9.2002." (emphasis supplied) 5. The evidence on record and more specifically the deposition of D.W.1, who was examined on behalf of the defendants would be to the effect that undoubtedly the plaintiff-Dr.Elango performed totally 3,924 family planning operations and that totally a sum of Rs.7,05,800/- was paid. 6. The defendants contention was to the effect that as per Ex.A1, the plaintiff-Dr.Elango, in his nursing home was expected to do family planning operations and he would be entitled to honorarium of Rs.800/-per sitting and the minimum operations should be three. When part amount was already paid, there occurred audit inspection, in that, the objection from the audit side was to the effect that even though the plaintiff-Dr.Elango might have performed more than three operations in a day, he was not entitled to claim more than Rs.800/-per day and the claim made by the Doctor for every three operations at the rate of Rs.800 was untenable. 7. D.W.1 in concinnity with the contentions found in the written statement would also depose that no doubt under Ex.A1, a sum of Rs.150/-was agreed to be paid for each operation towards laboratory charges, subject to sanction being accorded by the Central Government. Accordingly, the defendants prayed for the dismissal of the suit. 7. D.W.1 in concinnity with the contentions found in the written statement would also depose that no doubt under Ex.A1, a sum of Rs.150/-was agreed to be paid for each operation towards laboratory charges, subject to sanction being accorded by the Central Government. Accordingly, the defendants prayed for the dismissal of the suit. In fact, they, as per the audit objection wanted to recover the so called excess payment made by them to the plaintiff. 8. Whereas, the plaintiff-Dr.Elango filed the suit reiterating his contention that in a day he performed more than three operations and he cannot be made to claim only Rs.800/-per day. According to him per sitting means conducting of three operations. Accordingly, he calculated and claimed the amount in the suit. 9. The trial Court accepted the plea of the plaintiff and decreed the suit. 10. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, this appeal has been filed on various grounds. 11. The points for consideration are as follows: (i) Whether the communications, which emerged between the plaintiff-Dr.Elango and the defendants would enure to the benefit of the plaintiff to claim that he was entitled to a sum of Rs.800/- for conducting three tubectomy operations in his nursing home, in addition to claiming a sum of Rs.150/- towards laboratory charges for each patient? (2) Whether the interest awarded at the rate of 6% per annum from the date of suit till the date of realization is tenable? (3) Whether there is any perversity or illegality in the judgment and decree of the trial Court? 12. All these points are taken together for discussion, as they are interwoven and interconnected, entwined and interlinked with one another. The perusal of Exs.A1, A2 and A3, including the other related G.Os, would connote and denote, convey and portray that there was, no doubt, some amount of ambiguity in those dossiers. In clear terms it was not found spelt out in those communications as well as in the G.Os that even though the plaintiff-Dr.Elango might perform more than three operations in a day, he would be getting at the most, a sum of Rs.800/- only. In clear terms it was not found spelt out in those communications as well as in the G.Os that even though the plaintiff-Dr.Elango might perform more than three operations in a day, he would be getting at the most, a sum of Rs.800/- only. Similarly, the plaintiff also cannot precisely point out that three tubectomy operations conducted by him should be treated as one sitting and that accordingly, if he performed more than three operations in a day, he would be entitled to a sum proportionately higher than Rs.800/-. 13. At this juncture, I recollect the following maxims: (i) "Vigilantibuset non dormientibus jura subveniunt' - The laws aid the vigilant, not those who sleep. (ii) Verbageneralia genaraliter sunt intelligenda – General words are to be understood generally. (iii) Qui haeret in litera, haeret in cortice: One who clings to the letter clings to the shell or surface. 14. The cumulative effect of those maxims is to the effect that the parties should be vigilant enough, as otherwise the law will not come to their rescue. The Court, while interpreting any document should not simply be carried away by the mere literary meaning of the word, but the spirit of it should be taken note of, as otherwise, it will be amounting to throwing the baby along with bathe water. 15. My mind is reminiscent and redolent of the legal proposition that whenever a State is entering into contract with a citizen, certainly it should approach the citizen with clarity. No doubt, in fiscal matters there should be strict interpretation; but that should be in favour of the citizens and not against them. 16. Indubitably and indisputably, the plaintiff-Dr.Elango in this case performed 3,924 tubectomy operations in his nursing home at the request of the Government. In fact, as correctly pointed out by the learned counsel for the respondent/plaintiff, initially, accepting the claim of the plaintiff and based on his interpretation, the amounts were released then and there by the Government. Only when audit intervened and raised objection there erupted the said dispute. If the contention of the Government is accepted that even though the Doctor might have performed not three operations but six operations or more than that in a day, still he would be entitled only to a sum of Rs.800/-, in my considered opinion, it would fall foul of the principles of natural justice. If the contention of the Government is accepted that even though the Doctor might have performed not three operations but six operations or more than that in a day, still he would be entitled only to a sum of Rs.800/-, in my considered opinion, it would fall foul of the principles of natural justice. The defendants, for health or any other hygienic reasons, did not impose any embargo on the plaintiff doctor that he should not perform more than three operations in a day. The excerpts extracted supra from Ex.A1, would unambiguously and unequivocally indicate that the minimum honorarium is found exemplified. The defendants never put any ceiling and by that they impliedly expressed their intention that the doctor can do more operations also. There is no clarity that he would be paid only Rs.800/- and nothing more in a day. By way of disambiguating the ambiguity, there was no clarity at the earliest point of time. 17. No doubt, the plaintiff has been raising his accusative finger as against the Government for the lack of clarity in their communication to the Doctor however, I am at a loss to understand as to what prevented the plaintiff to get all those aspects clarified before commencing the work. 18. Be that as it may, in fact, the doctor performed in a day more than three operations and a medical professional, in my considered opinion, should not be left high and dry. In the absence of any specific embargo in the communication that the doctor is not entitled to claim more than Rs.800/-, I am of the view that the interpretation resorted to by the lower Court requires no interference. 19. Precisely the term 'sitting' is not found exemplified in any one of the documents filed on either side. In such a case, the Government was not justified in calling upon the Court to read something a new into the communication and deprive a professional, namely, the plaintiff-Dr.Elango to lose his remuneration/fees. 20. In the course of trial, it appears, effort was taken to put forth before the Court that in a day, huge number of operations should not be performed, because medical science contemplates that after every operation there should be cleaning of the theatre etc. In fact, the deposition of D.W.1 would be to that effect. 20. In the course of trial, it appears, effort was taken to put forth before the Court that in a day, huge number of operations should not be performed, because medical science contemplates that after every operation there should be cleaning of the theatre etc. In fact, the deposition of D.W.1 would be to that effect. However, the learned counsel for the respondent/plaintiff would draw the attention of this Court to the following excerpts in the deposition of D.W.1: “TAMIL” During cross-examination, he would state thus: “TAMIL” 21. It is therefore clear that even as per D.W.1, in Government hospitals, 15 – 20 family planning operations are being conducted in a day. However, he would contend that as per medical science that should not be done and there should be cleaning of the theatre after every operation. All that was put forth by D.W.1 are not found spelt out in Ex.A1 or in any other communications to the plaintiff-Dr.Elango. In such a case, it is too late in the day on the part of the Government to veer round and take a plea quite antithetical to what they committed themselves in black and white, of course, with ambiguity. 22. I recollect the following maxim: "Ambiguis contra stipulatorem est' – A dubious expression is construed against the party using it. 23. A person who uttered out ambiguous statement cannot take advantage of it and suggest variation to it to the detriment of the other party. Accordingly if viewed, I could see no perversity or illegality in the view taken by the trial Court. 24. In respect of the claim of Rs.150/-towards laboratory charges for each patient, there could be no objection at all from the defendants' side. It is only between the Central Government and the State Government, things should get transpired. In paragraph 3(b) of Ex.A1, extracted supra, itself it is found spelt out that Rs.150/-would be given to the plaintiff towards laboratory charges per patient, of course, subject to getting sanction or approval from the Central Government. 25. Here the State and Central Government both are parties. After availing the services of a Doctor, the defendants cannot now contend that there is some technical snag for paying the laboratory charges. Without conducting laboratory tests, no meaningful medical operation can be performed. 25. Here the State and Central Government both are parties. After availing the services of a Doctor, the defendants cannot now contend that there is some technical snag for paying the laboratory charges. Without conducting laboratory tests, no meaningful medical operation can be performed. When such is the position, I am at a loss to understand as to what prompted the Health Department of the State Government to make such a condition there in Ex.A1. 26. As such, the trial Court once again is right in construing the factual as well as the legal position and accordingly au faith with law and au courante with facts decided the lis, warranting no interference in appeal. 27. Even though interest was claimed at 12% per annum, the Court awarded only 6% interest from the date of suit till payment, which, in the facts and circumstances of the case cannot be found fault with. Accordingly the aforesaid points are decided in favour of the plaintiff and as against the defendants. On balance, I could see no substance in this appeal and the same is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.