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2015 DIGILAW 1522 (JHR)

Baleshwar Rana v. State of Jharkhand

2015-12-07

RONGON MUKHOPADHYAY

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ORDER : Rongon Mukhopadhyay, J. In this writ application, the petitioner has prayed for quashing of Memo No. 1158 dated 13.05.2004 issued by the respondent No. 2 whereby the claim for reimbursement of the medical expenses incurred on the treatment of the deceased-employee has been rejected. A further prayer has been made for seeking a direction upon the respondents to reimburse the medical expenses incurred on account of the Kidney transplantation of the deceased-employee at Christian Medical College and Hospital, Vellore. 2. The writ application was originally filed by Smt. Chintamani Chittra but on account of her death her legal heirs were substituted vide order dated 04.12.2012 who are pursuing the present writ application. 3. The facts which have been stated in the writ application is that Smt. Chintamani Chittra (hereinafter referred to as the 'deceased-employee') was issued an appointment letter vide Memo No. 4 dated 24.08.1973 by the District Superintendent of Education, Hazaribagh pursuant to which she joined as Assistant Teacher, Primary School, Prathdih, Giridih on 01.09.1973. The deceased-employee since she was not keeping good health was taken for treatment and ultimately it was detected that her right Kidney was not functioning and it was necessary to take immediate steps for transplantation of the Kidney. Since immediate steps were required to be taken, she was brought to Christian Medical College and Hospital, Vellore where she was admitted on 09.04.2002 and her right Kidney which was donated by her son was transplanted on 18.07.2002. The deceased-employee because of her precarious condition did not have the time to take prior approval of the medical board but information was duly given on 16.08.2002 and 10.11.2002. The expenses incurred by the deceased-employee in getting her Kidney transplanted was to the tune of Rs. 3,50,350/-. 4. On being relieved from Christian Medical College and Hospital, Vellore an extraordinary leave application was submitted on 04.01.2003 for the period w.e.f. 05.04.2002 to 01.01.2003 which was sanctioned by the authorities vide Memo dated 15.03.2003. On 14.01.2003 the deceased-employee had submitted a representation before the Deputy Commissioner, Giridih for reimbursement of the medical expenses but since in spite of reminders no steps were being taken, the petitioner was constrained to file a writ application being W.P. (S) No. 5434 of 2003 which was disposed of on 13.11.2003 directing the respondent No. 2 to take final decision in the matter. On account of non-compliance of the order passed in W.P.(S) No. 5434 of 2003 a contempt application was preferred but during pendency of contempt proceeding the impugned order as contained in Memo No. 1158 dated 13.05.2004 was passed rejecting the claim of the petitioner. Being aggrieved by the decision of the Respondent No. 2, the petitioner has preferred the present writ application. 5. Heard Mr. Prakash Chandra, learned counsel appearing for the petitioner and Mr. D.K. Dubey, learned Sr. S.C.-I. 6. It has been submitted by the learned counsel for the petitioner that the respondents-authorities have never doubted about the Kidney transplantation of the deceased-employee. The claim for medical reimbursement has been rejected solely on technical grounds. Submission has been advanced to the effect that there was no occasion for giving prior intimation about the impending Kidney transplantation as the condition of the deceased-employee was so precarious that the formalities required for getting treatment outside had to be waived. It has also been submitted that intimation was duly made to the authorities from Vellore itself after the operation was conducted. It has also been submitted that the deceased-employee has been discriminated against, inasmuch as, while invoking rule 26 of the Rule for grant of free medical attendance and supply of medicines to Government servant of the province in other emergent situations persons have been extended the benefits. In this context, the learned counsel for the petitioner has referred to the supplementary affidavit and has stated that in similar cases of teachers namely Krishna Prasad Mishra and Akthar Samim, the medical expenses for treatment were allowed in support of the treatment availed at AIIMS, New Delhi and APPOLO Hospital, Irba, Ranchi. This fact has not been controverted by the respondents-authorities by filing any affidavit in opposition. 7. Mr. D.K. Dubey, learned S.C.-I., while supporting the impugned order dated 13.05.2004 issued by the respondent No. 2 has submitted that in fact from the very inception of the treatment of the deceased-employee neither the deceased-employee nor her husband who is also a Government teacher or any of the family members informed the respondents by submitting an application. This according to the learned S.C.-I was dehors the provisions of the rules and guidelines as in such cases prior leave has to be obtained from the medical board. This according to the learned S.C.-I was dehors the provisions of the rules and guidelines as in such cases prior leave has to be obtained from the medical board. Reference has also been made to Memo No. 354(10) dated 15.09.2006 wherein medical reimbursement process has been centralized and the powers are vested with administrative department. It has also been submitted that as per the said circular except in cases of serious heart disease, accident and advance stage of cancer the medical board is not entitled to grant sanction after the treatment. 8. Learned Sr. S.C. - I thus submits that the norms, procedures and circulars pertaining to sanction of medical reimbursement having not been followed the impugned order dated 13.05.2004 was passed in accordance with law which requires no interference. 9. The supplementary affidavit filed by the petitioner suggests that due information about the Kidney transplant of the deceased-employee was sent to the concerned authorities. The joining of the deceased-employee after her treatment was duly accepted by the department after considering the medical prescriptions appended thereto. The deceased-employee in order to get her Kidney transplanted had rushed to Christian Medical College and Hospital, Vellore as such disease if not treated promptly becomes fatal. The deceased-employee considering her condition had all the more reasons to get her treatment immediately and at one of the medical institutions approved by the State in Memo dated 354(10). It is the case of the respondents that prior sanction of the medical board was not taken before the treatment of the deceased-employee was made at Christian Medical College and Hospital, Vellore. When one is considering the necessity of immediate response to a disease which is life threatening subjecting oneself to the cumbersome processes generally associated with a state action could have led to loss of life. In a major disease of Kidney failure time is the essence. As has been submitted by the learned counsel for the petitioner that since the son of the deceased-employee was the donor and when the mother and son both are facing treatment the mental condition of the family can be easily fathomed. The only aim in such circumstance is to get speedy and effective treatment to prevent further deterioration. Such cases cannot be kept within the strait jacket formula of getting prior leave, getting the sanction of the medical board and other red-tapism. 10. The only aim in such circumstance is to get speedy and effective treatment to prevent further deterioration. Such cases cannot be kept within the strait jacket formula of getting prior leave, getting the sanction of the medical board and other red-tapism. 10. Rule 26 of the Rules for grant of free medical attendance gives leverage to the State Government to extend such benefits of treatment to those persons who are not covered within the scheme. Learned counsel for the petitioner has referred to the supplementary affidavit filed by him wherein under similar circumstances other employees were given the relaxation of Rule 26 of the Rules for grant of free medical attendance. In spite of repeated adjournments, no affidavit in opposition to the supplementary affidavit has been filed by the State which would mean that the contention of the petitioner with respect to similarly situated persons as that of the petitioner having been given the benefits which have been claimed by the petitioner is not disputed. 11. In the case of State of Jharkhand & Ors v. Jacob Samuel & Anr. reported in [2010 (2) J.C.R. 64 (Jhr)] while considering a similar issue as the present one held as follows:- "9. After going through the judgment and order of the learned single Judge, as well as the contentions raised on behalf of the parties, we do not find any fault in the findings recorded by the learned single Judge. The learned single Judge was justified in holding that in such an emergent situation where there was no time to get prior approval of the Medical Board to get the patient treated in a non-listed Hospital, the claim of the petitioner cannot be rejected on the technical ground that prior approval has not been obtained for the same. It is needless to mention that in such cases, the Government instead of rejecting the entire bills for medical expenses, the Government should have allowed the employee or his ward the reimbursement at the Government rates prescribed in the Hospitals listed for the same purpose. In view of the above, we hold that the petitioner is entitled to get the bills reimbursed from the Government at the Government rates prescribed for the same. For the reasons aforesaid, this appeal fails and is hereby dismissed." 12. In view of the above, we hold that the petitioner is entitled to get the bills reimbursed from the Government at the Government rates prescribed for the same. For the reasons aforesaid, this appeal fails and is hereby dismissed." 12. Considering the totality of the facts and circumstances enumerated above, it is held that the claim of the deceased-employee for medical reimbursement has not been properly considered in the given facts and circumstances of the case. Accordingly, the order as contained in Memo No. 1158 dated 13.05.2004 issued by the respondent No. 2 is, hereby, quashed and set aside. 13. Respondent No. 2 is directed to make payment of medical reimbursement expended on the treatment of the deceased-employee as per the Bills submitted within a period of eight weeks from the date of receipt/production of a copy of this order. 14. This application is allowed in terms aforesaid.