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2013 DIGILAW 553 (GAU)

Gautam Chakraborty v. State of Assam and Ors.

2013-08-12

UJJAL BHUYAN

body2013
This writ petition has been filed seeking a direction to the respondents for reimbursement of medical expenditure in full incurred by the petitioner in the treatment of his wife. 2. Case of the petitioner is that he is presently working as Inspector of Police in the Special Branch Head Quarter of Assam Police, Kahilipara, Guwahati. In the year 2008, his wife Swapna Chakraborty fell ill. Despite treatment at Guwahati, she did not recover. She was then taken to AMRI Hospital at Kolkata for treatment where her ailment was diagnosed as carcinoma of the cervix. She had to undergo hospitalization in the said hospital on a number of occasions for chemotherapy and surgery. After completion of treatment in December, 2008, she returned home at Guwahati. 3. However, in November 2009, the health of petitioner's wife suddenly deteriorated. She had to be taken to AMRI Hospital, Kolkata where she was under treatment from 11.11.2009 to 6.12.2009. As she did not show any sign of recovery, she was brought back to Guwahati where she expired on 20.1.2010. 4. According to the petitioner, he being an employee of the Assam Government, he is entitled to re-imbursement of the medical expenses incurred in the treatment of his wife. Accordingly, he submitted application dated 29.5.2010 to the Director General of Police, Assam through proper channel for reimbursement of medical expenditure in the treatment of his wife. Petitioner enclosed the essential certificate along with the application claiming a total amount of Rs.6,90,879. 5. Deputy Inspector General of Police (A), Assam wrote to the Director of Health Services, Assam vide letter dated 14.7.2010 enclosing therewith the proposal of the petitioner. Stating that the patient had undergone treatment at AMRI Hospital, Kolkata without approval of the Director of Health Services, Assam, the latter was-requested to grant ex post facto approval and admissibility report for payment of Rs.6,90,879 being the medical reimbursement for treatment of the petitioner's wife. It appears that the Director of Health Services, Assam approved payment of Rs.6,78,750 as medical re-imbursement to the petitioner. 6. After sometime, Government of Assam in the Home (A) Department issued intimation to the Accountant General, Assam dated 9.12.2011 conveying fresh sanction to the payment of Rs. 1,69,975 to the petitioner as medical re-imbursement being the cost incurred in connection with the treatment of his wife Swapna Chakraborty at AMRI Hospital, Kolkata. 6. After sometime, Government of Assam in the Home (A) Department issued intimation to the Accountant General, Assam dated 9.12.2011 conveying fresh sanction to the payment of Rs. 1,69,975 to the petitioner as medical re-imbursement being the cost incurred in connection with the treatment of his wife Swapna Chakraborty at AMRI Hospital, Kolkata. The said intimation was issued on the basis of admissibility report of the Director of Health Services dated 9.8.2011. As per the said admissibility report, out of the claim of Rs.6,90,879, an amount of Rs.5,20,904 was deducted as non-admissible amount. The admissible amount was quantified at Rs. 1,69,975. The previous admissibility report was cancelled. 7. Aggrieved, petitioner has filed the present writ petition seeking the relief as indicated above. 8. Contention of the petitioner is that his claim is a genuine one. As a matter of fact, the amount claimed by him is much lesser than the actual expenditure incurred by him, not to speak of travel and lodging expenses. Petitioner, being a Government employee, is entitled to medical re-imbursement for the expenses incurred in the treatment of his wife. Respondents have accepted his claim by paying a part of it. Therefore, action of the respondents in not paying the entire amount is without any justification. 9. A formal affidavit has been filed by respondent No.4. It is stated that an amount of Rs. 1,69,975 had already been paid to the petitioner as medical re-imbursement by crediting the said amount to his bank account. 10. In his affidavit, respondent No.5, i.e., Director of Health Services, Assam has ,stated that treatment cost claimed by the petitioner is reimbursable. He, however, stated that Finance Department had directed re-examination of the claim of the petitioner for medical re-imbursement by allowing only re-imbursement of expenditure incurred in the purchase of medicines as per vouchers submitted. Accordingly, the Director of Health Services, Assam issued the revised admissibility report amounting to Rs. 1,69,975. 11. Commissioner and Secretary to the Government of Assam, Finance Department, who was subsequently impleaded as respondent No.6, has filed an affidavit. Stand taken is that AMRI Hospital, Kolkata is not a referral hospital for treatment of carcinoma as per Assam Medical Attendance Rules, 2008. Originally, the proposal for medical reimbursement to the petitioner was submitted by the Home Department without referral Medical Board Certificate for an amount of Rs.6,78,759. Stand taken is that AMRI Hospital, Kolkata is not a referral hospital for treatment of carcinoma as per Assam Medical Attendance Rules, 2008. Originally, the proposal for medical reimbursement to the petitioner was submitted by the Home Department without referral Medical Board Certificate for an amount of Rs.6,78,759. However, the Finance Department on due consideration gave concurrence to the re-imbursement of cost of medicines only. Subsequently, Home Department re-submitted proposal for an amount of Rs. 1,69,975 as medical imbursement to the petitioner for treatment of his wife at AMRI Hospital, Kolkata covering cost of medicines as per revised admissibility report of the Director of Health Services, Assam. Finance Department thereafter gave its concurrence. 12. In his reply affidavit to the affidavit filed by respondent No.6, petitioner has stated that AMRI Hospital, Kolkata is a referral hospital as per the Assam Medical Attendance Rules, 2008 and all Government officers/employees are entitled to re-imbursement of the expenses incurred in the treatment of their spouses. Petitioner being an employee of the State Government, is entitled to such re-imbursement. As such, petitioner is entitled to the full amount of medical re-imbursement totalling Rs.6,78,759. He should, therefore, be paid the balance amount of Rs.5,20,984. 13. Heard Mr. Y.S. Mannan, learned counsel for the petitioner and Mr. J. Handique, learned Government advocate appearing for the respondent Nos. 1 to 4. Also heard Ms. A. Verma, learned Standing, Counsel, Health and Finance Department for respondent Nos. 5 and 6. She has also produced the relevant record. 14. Learned Counsel for the petitioner submits that the stand taken by the respondents, more particularly respondent No.6, is most unreasonable. Petitioner is a Government employee and, therefore, he" is entitled to re-imbursement of medical expenditure incurred in the treatment of his wife. Because of the emergent medical condition of his wife, she had to be taken to the hospital where she had undergone treatment earlier. Question of seeking prior approval of the Medical Board in such a situation does not arise. When the respondents have reimbursed a part of the medical expenditure, the decision to reject the claim for the remaining amount on the ground that AMRI Hospital is not a referral hospital, does not stand to reason, he submits. Question of seeking prior approval of the Medical Board in such a situation does not arise. When the respondents have reimbursed a part of the medical expenditure, the decision to reject the claim for the remaining amount on the ground that AMRI Hospital is not a referral hospital, does not stand to reason, he submits. In support of his submissions, learned counsel for the petitioner has placed reliance on the following decisions : (1) Surjit Singh v. State of Punjab and Others, AIR 1996 SC 1388 . (2) State of Punjab and Others v. Mohinder Singh Chawla, AIR 1997 SC 1225 . (3) State of Punjab and Others v. Ram Lubhaya Bagga, AIR 1998 SC 1703 . (4) Gouri Sengupta v. State of Assam and Others, 1999 (3) GLT 601 (2000) 1 GLR 608. (5) Modan Mohan Bhowmik v. State of Tripura and Others, 2011 (1) GLT 793 (2012) 3 GLR 685; (6) Dr.SujayDas v. State of Tripura and Others, 2012 (5) GLT 464. 15. Opposing the submissions made by the learned counsel for the petitioner, Ms. A. Verma, learned Standing Counsel, Health and Family Welfare Departments submits that AMRI Hospital, Salt Lake, Kolkata is a referral hospital for other ailments but is not a referral hospital for treatment of cancer. Referring to the provisions of Assam Medical Attendance Rules, 2008, she submits that neither the Health Department nor the Finance Department can go beyond the Rules. 16. Submissions made have been considered. Record produced by the departmental counsel has also been perused. 17. Before proceeding further, a brief reference to the relevant provisions of the Rules may be made. A set of administrative Rules called the Assam Medical Attendance Rules, 1976 was framed providing for reimbursement of medical expenditure to all the Government employees, including Government pensioners and Government family pensioners. For this purpose, certain hospitals were declared as referral hospitals. At the commencement of the Rules, a list of 13 referral medical institutions along with the nature of ailment/treatment for which those institutions were approved, was provided. The above Rules were amended from time to time expanding the list of referral hospitals. This continued till the year 2008. 18. For this purpose, certain hospitals were declared as referral hospitals. At the commencement of the Rules, a list of 13 referral medical institutions along with the nature of ailment/treatment for which those institutions were approved, was provided. The above Rules were amended from time to time expanding the list of referral hospitals. This continued till the year 2008. 18. Thereafter, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of all previous Rules as indicated above, Assam Medical Attendance Rules, 2008 (Rules) has been framed governing medical treatment of Government servants, pensioners and their eligible family members. As per rule 4(b) of the Rules, "authorized medical attendant" has been defined to mean doctor-in-charge of the Government hospital in which a person seeks medical treatment. Family includes wife amongst others. Patient has been defined to mean a Government servant or a member of his family amongst others who requires medical treatment. Treatment has been defined to mean use of all medical and surgical facilities. As per rule 4(h), Referral Medical Board means the board constituted by the State Government for streamlining the procedure of referring a patient for treatment outside the State. A detailed procedure is laid down therein. To avail re-imbursement of the expenses incurred in treating the patient outside the State, the Referral Medical Board shall make the referral and on the basis of such referral, the patient can proceed to the referral institution and obtain treatment. If an emergent life threatening situation arises, the patient or his attendant can approach the Professor and Head of the Department/Senior most Medical Officer, who shall apply his mind and if the situation so warrant, make a referral. However, such referral shall be placed before the Referral Medical Board for ratification. As per rule 11, if a patient suffers from cancer and such other diseases as mentioned, he shall be entitled to receive full reimbursement of the cost of medicines purchased by him outside Government Hospital on the prescription of the authorized medical attendant. In respect of cancer, authorized medical attendant would be the Head of the Department of Medicine in the Medical College Hospitals.or the Director of Dr. B. Baruah Cancer Institute, Guwahati. Government issued notifications thereafter declaring certain health institutions, both outside and within the State of Assam, as referral hospitals. In respect of cancer, authorized medical attendant would be the Head of the Department of Medicine in the Medical College Hospitals.or the Director of Dr. B. Baruah Cancer Institute, Guwahati. Government issued notifications thereafter declaring certain health institutions, both outside and within the State of Assam, as referral hospitals. The list of referral hospitals both inside and outside the State has been increased by issuance of subsequent notifications. As per the notification dated 3.6.2009, AMRI Hospital, Salt Lake, Kolkata has been declared as a referral hospital outside the State for treatment of cardiology and knee and hip replacement surgery. 19. Thus, from a reading of the aforesaid Rules, it becomes evident that in case of a patient suffering from cancer, he is entitled to receive full re-imbursement of the cost of medicines purchased by him outside Government hospital on the prescription of the authorized medical attendant. It is also seen that AMRI Hospital, Salt Lake, Kolkata is a referral hospital for the treatment of cardiology and knee and hip replacement surgery. 20. A perusal of the treatment summary or the essential certificates submitted by the petitioner would show that there are two AMRI Hospitals at Kolkata, one at Salt Lake and the other at Gariahat Road. Those, however, do not indicate whether the petitioner's wife had undergone treatment at AMRI Hospital, Saltlake or at AMRI Hospital, Gariahat Road. AMRI Hospital, Gariahat Road, Kolkata is not a referral hospital at all under the Rules. On the other hand, AMRI Hospital, Salt Lake, Kolkata is a referral hospital for the treatment of cardiology and knee and hip re-placement surgery only. Therefore, it is quite clear that none of the two AMRI Hospitals is a referral hospital for treatment of cancer. Therefore, the view taken by the Finance Department that the petitioner would not be entitled to medical re-imbursement for his wife's treatment of cancer at AMRI Hospital, Salt Lake, Kolkata cannot be said to be erroneous or unreasonable. 21. Insofar re-imbursement of cost of medicines is concerned, it appears that the same has been granted to the petitioner under rule 11 of the Rules. 22. I have considered the decisions relied upon by the learned counsel for the petitioner and I am of the view that the said decisions are not applicable to the factual matrix of the present case. 22. I have considered the decisions relied upon by the learned counsel for the petitioner and I am of the view that the said decisions are not applicable to the factual matrix of the present case. In Surjit Singh (supra), the appellants had chosen Escorts Hospital, a private hospital, amongst the three recognized hospitals for open heart surgery available in North India. In the case of Mohinder Singh Chawla (supra), the respondent had undergone treatment for heart ailment at AIIMS, New Delhi which was a recognized hospital. While re-imbursement of actual expenses incurred was granted, the Government had rejected the claim for room rent paid to the hospital as inadmissible Again, in the case of Ram Lubhaya Bagga (supra), the issue was the scale at which medical re-imbursement of the employees and pensioners of Punjab Government incurred in a non-Government Hospital should be paid. The respondents were paid at the admissible rate in AIIMS but claimed the difference between what was paid and what was the admissible rate at Escorts Hospital. In the facts of that case, the respondents were directed to be paid the differential amount but it was made clear that such re-imbursement should not be treated as a precedent. The other three judgments relied upon by the petitioner are clearly distinguishable as in the present case, there is a rule framed under the proviso to article 309 of the Constitution of India, which will govern the case of the petitioner. 23. Since the claim of the petitioner is beyond the Rules, the decision of the respondents to deny full re-imbursement to the petitioner of the medical expenditures incurred in the treatment of his wife cannot be said to be arbitrary, unreasonable or illegal. When there are Rules in force, grant of medical re-imbursement will have to be governed by the provisions of the Rules. Sympathy and humanitarian considerations cannot be the guiding factors to consider such claim as it pertains to disbursement of money from the public exchequer. 24. For the aforesaid reasons, the relief claimed by the petitioner cannot be granted. Writ petition is without-merit and is accordingly dismissed.