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2014 DIGILAW 124 (TRI)

Amalesh Chandra Deb v. State of Tripura

2014-03-14

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- The petitioner has/had been working in the post of Head Clerk under the respondent No. 2, The Tripura Housing and Construction Board (for short, the Board) a creation of the Tripura Housing Board Act, 1978. While in service he fell ill in the month of September 2009, with severe chest pain and was admitted in Agartala Govt. Medical College and Govind Ballav Panth Hospital (for short, AGMC and GBP Hospital). It was diagnosed that he was suffering from severe heart disease and as such the medical board of AGMC and GBP Hospital referred him to Rabindranath Tagore International Institute of Cardiac Science (for short, RNTIICS), Kolkata for treatment. Respondent No. 2, the Board, sanctioned advance of Rs. 30,000/- for the treatment. The petitioner availed the treatment. On his return, he submitted medical bill amounting to Rs.1,51,526/- and the Board sanctioned the amount. In the second week of October, 2010, the petitioner again fell seriously ill and was admitted in AGMC and GBP Hospital on 08.02.2010 and it was diagnosed that he was suffering from 'drug induces complete heart block' in a case of 'post ITC and hyper thyrotain'. The State medical Board of AGMC and GBP Hospital again referred the petitioner to AMRI hospital, Kolkata for treatment. He was again favoured with a medical advance of Rs. 30,000/-. The referral certificate dated 18.10.2010 has been annexed as Annexure-3 to the writ petition. The petitioner accordingly availed the treatment at AMRI hospital and he was discharged on 20.11.2010. The treatment report and operation note annexed as Annexure-5 to the writ petition. On his return he submitted a medical bill of Rs. 1,55,798 in total with supporting necessary documents to the Chief Executive Officer of the Board on 15.12.2010 and the Chief Executive Officer ordered the Accounts Officer and Administrative Officer to process the bill (Annexure-6 to the writ petition). Thereafter the petitioner approached the Chief Executive Officer of the Board (Respondent No. 3) again and again demanding payment of the bill but the bill has not been paid. It is contended by the petitioner that vide Memo dated 08.12.1999 (Annexure 7 to the writ petition), issued by the Principal Secretary, Finance Department, Govt. of Tripura, medical re-imbursement was available to Group 'C' employees and in view of that memorandum the petitioner was entitled to get the medical reimbursement for treatment etc. outside the State. It is contended by the petitioner that vide Memo dated 08.12.1999 (Annexure 7 to the writ petition), issued by the Principal Secretary, Finance Department, Govt. of Tripura, medical re-imbursement was available to Group 'C' employees and in view of that memorandum the petitioner was entitled to get the medical reimbursement for treatment etc. outside the State. After the writ petition was filed by the petitioner, Joint Secretary of the Finance Department, Govt. of Tripura by issuing a corrigendum dated 14.11.2011 (Annexure P/7(A) to the writ petition), interfered in Memo dated 08.12.1999 and thereby deleted the prescription of entitlement of the medical reimbursement to Group 'C' employees. The claim of the petitioner of his medical reimbursement bill was referred to the 75th Board meeting of the Tripura Housing and Construction Board. The agenda of the Board meeting has been annexed as Annexure 9 and the minutes of the Board meeting dated 24.05.2011 has been annexed as Annexure-10 to the writ petition. The petitioner's claim was placed in agenda Point No. 9(b) and the Board decided that the second time medical reimbursement of the petitioner cannot be paid. The petitioner challenged the corrigendum dated 14th November, 2011 (Annexure P/7(A) to the writ petition) and also challenged the decision of the 75th Board meeting held on 24.05.2011 in respect of his claim and further prayed for directing the respondents to make payment of reimbursement bill with T.A. Bill amounting to Rs. 1,75,793/-. Respondent No. 1 filed counter affidavit contending that the petitioner being a Group 'C' employee was not entitled to medical reimbursement as claimed by him in view of the corrigendum dated 14.11.2011 (Annexure P/7(A) of the writ petition). A copy of which is also annexed as Annexure R/1 to the counter affidavit. It is contented that as per rules the petitioner is allowed medical allowance of Rs. 250/- per month and hence, the petitioner cannot claim medical reimbursement as a matter of right. Annexure 3 and 4 referred by the respondent Nos. 2 and 3 in their counter affidavit were not applicable to the employees of the Board and that those were applicable only to the employees of the State Govt. It is contended that the petitioner is not entitled to medical reimbursement as claimed. 2. Respondent Nos. Annexure 3 and 4 referred by the respondent Nos. 2 and 3 in their counter affidavit were not applicable to the employees of the Board and that those were applicable only to the employees of the State Govt. It is contended that the petitioner is not entitled to medical reimbursement as claimed. 2. Respondent Nos. 2 and 3 by filing a joint counter affidavit contended that as per the provisions of the Tripura Housing Board Act, 1978, the decision of the Finance Department is binding on the Board and the Finance Department has decided that the medical reimbursement cannot be granted on the basis of the resolution of the Board and the Board in its 75th meeting, following the memorandum issued by the Finance Department, time to time has decided that the petitioner is not entitled to second time medical reimbursement as claimed by him. 3. It is an undisputed fact that the petitioner is a Group 'C' employee under the Board and he first fallen ill in 2009 with severe chest pain and was admitted in AGMC & GBP Hospital wherefrom Medical Board referred him to RNTIICS, Kolkata and the petitioner availed the treatment and thereafter submitted the medical bill praying for reimbursement and the reimbursement was allowed. It is also an undisputed fact that in the month of October, 2010, the petitioner again seriously fallen ill and the medical Board referred him to AMRI hospital, Kolkata and he was paid an advance of Rs. 30,000/- to avail the treatment. On return he submitted a medical bill of Rs. 1,55,798 seeking reimbursement but the bill has not been paid. It is also an undisputed fact that as per memo dated 8th December, 1999 (Annexure 7 to the writ petition and Annexure-1 to the counter affidavit of respondent Nos. 2 and 3) a Group 'C' employee of the Board was also entitled to get medical reimbursement. The Finance Department of the Govt. of Tripura issued a corrigendum dated 14th November, 2011 (Annexure P/7(A) to the writ petition and Annexure R/1 to the counter affidavit of respondent No. 1) and thereby the entitlement of medical reimbursement of Group 'C' employees was curtailed and the said Corrigendum dated 14.11.2011 was issued after the writ petition was filed by the petitioner. 4. of Tripura issued a corrigendum dated 14th November, 2011 (Annexure P/7(A) to the writ petition and Annexure R/1 to the counter affidavit of respondent No. 1) and thereby the entitlement of medical reimbursement of Group 'C' employees was curtailed and the said Corrigendum dated 14.11.2011 was issued after the writ petition was filed by the petitioner. 4. The following points emerged for determinations:- (i) Whether right of medical reimbursement which already accrued pursuant to Memo dated 08.12.1999 can be taken away by a subsequent Corrigendum dated 14.11.2011 with retrospective effect? (ii) Whether the petitioner is entitled to get the medical reimbursement as claimed by him? 5. Heard learned counsel Mr. P. Roy Barman for the petitioner, learned G.A. Mrs. A.S. Lodh for the respondent No. 1 and learned counsel Mr. P. Datta for the respondent Nos. 2 and 3. 6. It is submitted by learned counsel Mr. Roy Barman that there is no dispute that the petitioner was suffering from severe heart ailment and the treatment required for the recovery from the ailment is/was not available in the Sate. It is the constitutional obligation of the State, submits learned counsel Mr. Roy Barman, to ensure adequate medical facilities to all its citizens. Right of proper treatment facilities is a part of right to life which is guaranteed under Article 21 of the Constitution of India and the petitioner is entitled to get the medical reimbursement while the medical board referred him for treatment outside the State. It is strenuously argued by Mr. Roy Barman that as per Memo dated 08.12.1999 (Annexure-7 to the writ petition) the petitioner being a Group 'C' employee was entitled to get medical reimbursement which is not disputed but the Finance Department of the Govt. of Tripura i.e. respondent No. 1 issued a Corrigendum dated 14.11.2011 giving retrospective effect from 08.12.1999 and thereby taken away the right of medical reimbursement claim of Group 'C' employees which is totally unconstitutional and cannot sustain. The Corrigendum cannot stand in the way of claim of medical reimbursement by the petitioner. 7. Learned Addl. G.A. Mrs. of Tripura i.e. respondent No. 1 issued a Corrigendum dated 14.11.2011 giving retrospective effect from 08.12.1999 and thereby taken away the right of medical reimbursement claim of Group 'C' employees which is totally unconstitutional and cannot sustain. The Corrigendum cannot stand in the way of claim of medical reimbursement by the petitioner. 7. Learned Addl. G.A. Mrs. A.S. Lodh has submitted that there was a mistake in Memo dated 08.12.1999 wherein Group 'C' employees were also included in respect of medical reimbursement and that has been corrected by issuing corrigendum dated 04.11.2011 giving retrospective effect and in view of that corrigendum, the Memo dated 08.12.1999 has been corrected and therefore, the petitioner cannot claim medical reimbursement pursuant to that Memo dated 08.12.1999. The petitioner is getting medical allowances as a Group 'C' employee and cannot claim medical reimbursement as of right. 8. Mr. Datta, learned counsel has submitted that taking into account the decision of the Finance Department which is binding on the Board, in its 75th meeting dated 24.05.2011, the Board has taken the decision that second time medical reimbursement is not admissible to the petitioner. The petitioner has nothing to show that he is entitled to get second time reimbursement and hence, the writ petition is liable to be dismissed. 9. DECISION ON POINT NO. I 9.1 It is an undisputed fact that Memo dated 08.12.1999, which prescribed medical reimbursement of Group 'C' employees of Board and other such bodies was in force, as when the petitioner fell ill and submitted his medical reimbursement bill. The petitioner claimed reimbursement on the strength of the said Memo but payment was not made by the Board. The petitioner filed writ petition on 15.06.2011. After the writ petition was filed the Finance Department of the Govt. of Tripura (respondent No. 1) issued corrigendum dated 14.11.201 giving retrospective effect from 08.12.1999. By that corrigendum the right of Group 'C' employee, in claiming medical reimbursement was taken away. It is the case of the petitioner that by issuing a corrigendum with retrospective effect the right of the petitioner could not have been taken away especially when the writ petition was pending. Respondent No. 1 filed the counter affidavit on 03.02.2012 while the writ petition was filed on 15.06.2011 and only plea of respondent No. 1 is that in view of the corrigendum dated 14.11.2011 the petitioner is not entitled to claim reimbursement. Respondent No. 1 filed the counter affidavit on 03.02.2012 while the writ petition was filed on 15.06.2011 and only plea of respondent No. 1 is that in view of the corrigendum dated 14.11.2011 the petitioner is not entitled to claim reimbursement. 9.2 A right already accrued in view of an Act or Rules or a memorandum issued by the competent authority, cannot be so taken away as has been done in the present case. While by issuing Memo dated 08.12.1999, the Finance Department of the Govt. of Tripura allowed certain benefits to certain class of employees, said benefits could not have been taken away simply by issuing a corrigendum because a corrigendum means some correction of errors and it cannot be said that inclusion of Group 'C' employees in Memo dated 08.12.1999, which was in force for about 12 years, was a simple error and that could be corrected by a corrigendum only. No doubt the competent authority can take a fresh decision in respect of entitlement, but by issuing a corrigendum, right already accrued, cannot be taken away as has been done in the present case. 9.3 The Supreme Court in the case of the Government of Andhra Pradesh & Ors. v. Ch. Gandhi reported in AIR 2013 SC 2113 had the occasion to consider a issue similar to that of the present case and in paragraphs 23 and 24 of the judgment the Court has held thus:- 23. Presently, we shall deal with the contention of the learned counsel for the State who has laid emphasis on the fact that the said Rule has been substituted by the amendment dated 16.12.2003 and, therefore, it has to be treated to have retrospective effect. At this juncture, we may fruitfully refer to a passage from Maxwell on the Interpretation of Statute, 12th edition, wherein it has been stated thus:- Perhaps no rule of construction is more firmly established than thus -- 'that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only'. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only'. The rule has, in fact, two aspects, for it, 'involves another and subordinate rule, to the effect that a statute is not to be construed so as to have greater retrospective operation than its language renders necessary'. 24. In Francis Bennion's Statutory Interpretation, 2nd Edn., while emphasizing on the concept of retrospective legislation and rights, the learned author has stated thus: - The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law'. 9.4 In the case of Himachal Pradesh State Electricity Regulatory Commission & Anr. v. Himachal Pradesh State Electricity Board reported in AIR 2014 SC 101 , the Apex Court in Para. 25 of the judgment considered the retrospectivity of a provision and has held thus:- 25. At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the provision 23 Page 24 retrospective. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the provision 23 Page 24 retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the said right is taken away by the Legislature by an express provision in the Statute by necessary intention. 9.5 In my considered opinion the corrigendum dated 14.11.2011 cannot have a retrospective effect curtailing thereby the right of the citizens already accrued pursuant to Memo dated 08.12.1999. The petitioner's claim of reimbursement of the medical bill cannot be declined or refused because of the corrigendum dated 14.11.2011 and to that extent, the enforceability of the corrigendum is interfered. It is held that the effect of the corrigendum cannot have any bearing on the claim of the medical bill of the petitioner. POINT NO. II 10. In the case at hand the petitioner was referred by the State Medical Board on both the occasions when he fell ill because of his severe heart ailment. In the first case his medical bill was reimbursed by the Board, but in the second case the Board declined to make payment of the medical reimbursement bill. Annexure-9 to the writ petition shows that by Memo dated 16.05.2011, 75th Board meeting was convened on 24.05.2011 and the issue of medical reimbursement bill of the petitioner was on agenda Item No. 9(b) to the said memorandum. The respondent Nos. 2 and 3 annexed a brief note on agenda Item No. 9(b) which reads as follows:- (b) Reimbursement of medical claim in favour of Sri Amalesh Ch. Deb, Head Clerk of THCB for Heart operation. Sri Amalesh Ch. Deb, Head Clerk, THCB is suffering from heart disease and he was under treatment of Agartala Medical College and G.B. Hospital, Agartala. According to the situation Medical Board of Tripura has referred him to AMRI hospital, Kolkata for treatment. As per Memorandum of Finance Department, Government of Tripura vide No. F. 30(1)-FIN(G)/2009 dt. 16-05-2009 (enclosed vide Annexure-G) Rs. 30,000/- was sanctioned in favour of Sri. Amalesh Ch. Deb, head clerk, as an advance vide our office order No. 185 dt. 19-10-2010. After returned back from his treatment Sri Deb, Head Clerk submitted a bill amounting to Rs. As per Memorandum of Finance Department, Government of Tripura vide No. F. 30(1)-FIN(G)/2009 dt. 16-05-2009 (enclosed vide Annexure-G) Rs. 30,000/- was sanctioned in favour of Sri. Amalesh Ch. Deb, head clerk, as an advance vide our office order No. 185 dt. 19-10-2010. After returned back from his treatment Sri Deb, Head Clerk submitted a bill amounting to Rs. 1,75,793/- including medical and TA bill for reimbursement. It is necessary to mention here that Sri Deb was referred previously once again by State Medical Board on 23.09.2009 for treatment at R.N.T.I.I.C., Kolkata. Accordingly, after returned back he has submitted a medical bill amounting to Rs. 1,51,526/- which was reimbursed by this organization. As there is not clear indication in the rule of medical allowances/reimbursement for the payment/reimbursement of the 2nd time in the case of refer, the bill was referred to the Chairman, THCB. Office of the Chairman has referred the same to the Finance Department for views the Finance Department has informed as follows:- 1) Medical reimbursement cannot be granted merely on the basis of resolution of the Board. 2) The service rules can be adopted/framed with the approval of the Government only for these matters in respect of which there are no financial implications, like leave rules etc. Now, the case of Sri Amalesh Ch. Deb, Head Clerk, THCB is placed to the Board for consideration his case for payment as proposed by the concerned on humanitarian ground. 11. The minutes of the 75th meeting of the Board dated 24.05.2011 (Annexure 10 to the writ petition) in respect of Agenda Item No. 9(b), the decision of the Board recorded as follows:- (b) Reimbursement of medical claim in favour of Sri Amalesh Ch. Deb, Head Clerk of THCB for Heart operation. The 2nd time reimbursement of Medical claim in favour of Sri Amalesh Ch. Deb, Head Clerk, THCB has not been considered in the meeting. 12. The Board meeting was held on 24.05.2011 and at that time Memo dated 08.12.1999 was in force. The corrigendum to Memo dated 08.12.1999 came into existence on 14.11.2011. The Board held that 2nd time medical reimbursement cannot be considered though Memo dated 08.12.1999 was in force at the relevant point of time. Respondent Nos. 2 and 3 have failed to justify their stand that 2nd time medical reimbursement is not admissible to an employee. The corrigendum to Memo dated 08.12.1999 came into existence on 14.11.2011. The Board held that 2nd time medical reimbursement cannot be considered though Memo dated 08.12.1999 was in force at the relevant point of time. Respondent Nos. 2 and 3 have failed to justify their stand that 2nd time medical reimbursement is not admissible to an employee. So, the decision of the Board as against the Agenda Item No. 9(b) had no rationale and hence liable to be interfered and set aside. 13. The Medical Board of the State of Tripura referred the petitioner for treatment outside the State. A State being a welfare State has a constitutional obligation to ensure healthcare of every citizen and while the required medical facility is not available in the State and the Board referred the petitioner outside the State for medical reimbursement and while the Government took a conscious decision about the medical reimbursement by dint of Memo dated 08.12.1999, the Board which has been following the rules and directions of the State Government was bound to reimburse the medical bill. 14. The Supreme Court in the case of Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal & Anr. reported in (1996) 4 SCC 37 has held - "The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of one life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21." 15. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21." 15. The Court has further held that it is the constitutional obligation of the State to provide adequate medical services to the people to preserve human life. Whatever is necessary for this purpose has to be done. The State cannot avoid its constitutional obligation in that regard on account of financial constraints. In the matter of allocation of funds for medical services, the said constitutional obligation of the State has to be kept in view. 16. In the case of Surjit Singh v. State of Punjab & Ors., reported in (1996) 2 SCC 336 the Supreme Court in Paragraph 11 of the judgment has held thus:- 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. The importance and validity of the duty and right to self-preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to verses 17, 18, 20, and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine: 17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit. 18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life. 20. Sharirarakshanopaayaah Kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. * * * 22. He who protects himself by all efforts, will see many auspicious occasions in life. 20. Sharirarakshanopaayaah Kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. * * * 22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself. 17. In the case of State of Punjab & Ors. v. Mahinder Singh Chawla & Ors., reported in (1997) 2 SCC 83 , the Supreme Court has held - "It is now settled law that right to health is integral to right to life. Government has a constitutional obligation to provide health facilities. If the Government servant has suffered an ailment which requires treatment at a specialized approved hospital and on reference whereat the government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee." 18. In view of the discussions made above, the writ petition is allowed. The petitioner is entitled to get a medical reimbursement for his second time treatment in AMRI hospital, Kolkata. 19. The respondents are directed to make payment of the medical reimbursement bill after proper scrutiny as per rules within 45 days from today. 20. With the above direction, the writ petition stands disposed of. Parties to bear their own costs.