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Tripura High Court · body

2016 DIGILAW 262 (TRI)

Rajkumar Singh Thakur v. State of Tripura

2016-09-16

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned G.A. appearing for the respondents. 2. By means of this writ petition, the petitioner who is serving as a the Rifleman (GD), Group-C in the 8th Battalion TSR (IRiii) has challenged the decision of the respondents reflected in the communication dated 18.04.2015, Annexure-H to the writ petition, whereby the Director General of Police, Tripura, it has ordered that the reimbursement of the medical expenses, as defrayed by the petitioner for purpose of treatment of his father, who was admittedly suffering from cancer, cannot be made as the case is not covered by the office memorandum dated 18.09.2013. There is no dispute that the petitioner has been appointed in terms of the Rule 8(2) of the TSR (Recruitment) Rules, 1984. The said rule provides that ‘25% of direct recruitment in all ranks in TSR Battalions are made from the State & Union Territories outside Tripura’. However, subsequently the quota has been reduced to 15%. As a result, there is nothing wrong that the petitioner’s family resided somewhere outside the State. 3. The petitioner’s father namely, Jaleswar Singh, now deceased, was suffering from cancer and he was a native of Gulmohar City, Derabashi, Chandigarh. In the first part of 2011, the petitioner’s father had expired suffering from cancer in brain. The petitioner arranged for treatment of his father in a private hospital namely, Silver Oaks Hospital, SAS Nagar, Mohali, Chandigarh and PGINER, Chandigarh. The petitioner submitted the bills for reimbursement of the said medical expenses which he had incurred for treatment of his father from the period from 25.07.2011 to 21.08.2011. The bill for Rs.2,46,454/- (Rupees Two lacs Forty Six thousand Four hundred Fifty Four) was submitted to the Commandant, 8th Battalion TSR, the respondent No.4 herein. It appears that by the communication dated 27.02.2012, Annexure-A to the writ petition, the said Commandant sent a communication raising a query to the Asst. Inspector General of Police and to expedite the said reimbursement process. By the said communication, what has been emphatically made is that at the relevant point of time, the issue of medical reimbursement of the persons whose families are staying outside the State was still pending with the Government. There was no specific order or direction. Inspector General of Police and to expedite the said reimbursement process. By the said communication, what has been emphatically made is that at the relevant point of time, the issue of medical reimbursement of the persons whose families are staying outside the State was still pending with the Government. There was no specific order or direction. There is no dispute further that the memorandum under No.F.5(10)Fin(G)/75I dated 09.08.2015, Annexure R/1 to the counter affidavit filed by the respondents, that the Group-C & Group-D employees are entitled to the medical reimbursement if any member of the family suffers from cancer and the Government employee has defrayed the expenses of medical treatment. For purpose of better elucidation, the relevant clause being Para 2 A(i) is extracted hereunder: “A.(i) When a Group-C/Group-D Government employee himself/herself suffering from disease other than cancer is referred to Medical Institution/Hospital to which he/she is referred to the cost of treatment in that Institution/Hospital excluding the cost of journey is admissible for reimbursement. This benefit is not admissible in respect of any member of the family of such a Government employee.” In the prelude of the said memorandum dated 09.08.2015, it has been provided that the cases are to be referred by the State Medical Board for getting treatment outside the State. Admittedly, whether these categories of the Group-C employees, such as who are appointed in the Tripura State Rifles from outside the State in terms of the Rule 8 (2) of the TSR (Recruitment) Rules, are required to conform to the reference as stated for their family members who are residing outside the State was not stated therein. Raising this issue emphatically, the Asst. Inspector General of Police (Ops) through the Director General of Police made a communication to the Home Department, Government of Tripura by his letter dated 06.06.2012, Annexure-C to the writ petition. For purpose of reference, the entire text of the said communication is extracted hereunder: “No.24944/F.8(70)PHQ/TSR/2012 Government of Tripura Office of the Director General of Police West Tripura, Agartala Dated, Agartala, the 6th June, 2012 The Deputy Secretary, Home Department, Government of Tripura Agartala Subject : Regarding Medical reimbursement of the cost of treatment of cancer to the dependant family members of the TSR personnel living outside the State. Sir, As per Rule 8(2) of TSR (Recruitment) Rules, 1984, 25% of direct recruitment in all ranks in TSR Bns. Sir, As per Rule 8(2) of TSR (Recruitment) Rules, 1984, 25% of direct recruitment in all ranks in TSR Bns. are made from the State & Union Territories outside Tripura (this quota has been currently reduced to 15%). This principle has been laid down to give TSR Bns. (both IR & non-IR) a composite pan Indian character to help in performing law & order duty both within & outside the State. 3. As per existing norms for medical reimbursement facility issued vide Govt. of Tripura, Finance Dept. Memorandum No.F.5(10)FIN(G)/75I dated 09.08.2005 (copy enclosed), when a Group C & D Govt. employee or any other member of his/her family is found to be suffering from cancer and is referred to a Medical Institution/Hospital outside the State by the Standing Medical Board, cost of treatment in such Institution/Hospital with journey expenses upto the referred Institution/Hospital is admissible for reimbursement. 4. However, when the family members of the Group-C & Group-D employees of TSR Bns. especially those recruited from outside are residing outside Tripura at their native places and when they take treatment either at their home towns or at other places outside Tripura, they are not extended the benefit of medical reimbursement on the ground that the cases of such family members of TSR personnel have not been referred to by the Standing Medical Board of the State of Tripura. 5. It appears that while framing the rules or norms to allow medical reimbursement facility to the family members of the State Govt. employees, it has been overlooked the induction of 25% of the direct recruitment in TSR Bns. is made from States & Union Territories outside Tripura. It would be highly undesirable if the family members of such outsiders, suffering from serious diseases like cancer, are asked to come to Tripura simply to obtain referral certificate from the Standing Medical Board of Tripura for undertaking treatment outside the State of Tripura. 6. Since the documentation of treatment shall be submitted by the employees for claiming medical reimbursement, and the illness would be confirmed by the documentation itself, the requirement of referral certificate by the State Medical Board for treatment of cancer etc. should be done away with. This would be a great welfare gesture for the troops and would boost their morale for efficiency and effective discharge of operational duty. 7. should be done away with. This would be a great welfare gesture for the troops and would boost their morale for efficiency and effective discharge of operational duty. 7. In fact, it has resulted in a sense of disappointment amongst the TSR personnel recruited from outside when they find that family members of their compatriots recruited from inside the State are all allowed the facility while they are not kindly convey appropriate decision of the Govt. on priority. Enclo : As Above Yours faithfully Sd/- Illegible (S. Kanungoe) Asst. Inspr. Genl. of Police (Ops) For Director General of Police, Tripura” From the Para4 of the said communication, it would clearly emanate that by the said memorandum dated 09.08.2015 it is provided that unless there is a reference from the State Medical Board such reimbursement cannot be available to the person who defrayed the expenses for himself or for his family members. This impasse has been taken care of by the State by issuing the office memorandum under No.F.5(10) Fin(G)/751 dated 18.09.2013, Annexure-I to the writ petition, whereby it has been provided in the Para2 as under: “2. A point has been raised from Home Department since past few years to the effect that concerned family members of TSR personnel (recruited from outside State) who are residing at home town/native village/places of their respective native State or otherwise and suffering from cancer diseases are not in a position to get medical reimbursement facility for undertaking medical treatment on such diseases because of not getting referral by State Medical Board to any Institution/Hospital outside the State. Although they having been residing outside this State have no scope to obtain referral of State Medical Board.” 4. Finally, it has been decided by the State by dint of the said memorandum dated 18.09.2013 as under: “3. Although they having been residing outside this State have no scope to obtain referral of State Medical Board.” 4. Finally, it has been decided by the State by dint of the said memorandum dated 18.09.2013 as under: “3. Now, after taking of all aspects into consideration, it has been decided by the Government in both eh Finance and Health Services Department to facilitate availing of medical reimbursement facility in respect of concerned family members of TSR Personnel under reference under the existing guidelines in this regard subject to following supplementary conditions: (a) Medical reimbursement shall be allowed in such medical bills subject to obtaining of counter certificate thereto of the Medical Superintendent/Medical Officer of the Government Hospitals in their respective State wherein the concerned family members undertook treatment Hospital recognized by the State Government for cancer diseases. (b) If undertaken medical treatment by family members of TSR personnel in other State Government Health Institution/Hospital due to non availability of such facilities in their own respective State Government Hospital/Institutions, such cases may also be allowed to reimburse subject to observance of the above formalities along with TA of an escort, if any, on entitled mode of journey. (c) If they undertake treatment in a Private Hospital for cancer disease only medical reimbursement shall be allowed as per rate of Cancer Centre Welfare Home and Research Institute, Thakurpukur, Kolkata or the actual cost of treatment whichever is lower.” Thus, the member of the family of the TSR personnel or similarly circumstanced person will be entitled to the reimbursement if they do conform to the procedure as laid down in the said memorandum, contents of which has been reproduced. 5. Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that the mischief that is located for not visualizing such circumstance earlier has been taken care of by the State Government by the said office memorandum dated 18.09.2013, Annexure-I to the writ petition, and as such, that provision as introduced will get retrospective operation by way of interpretation in the manner as observed in Heydon’s Rule [76 ER 637], which has been adopted by the apex court in catena of cases. Mr. Deb, learned counsel has relied on a decision in one of such cases being Ameer Trading Corpn. Ltd. Vs. Mr. Deb, learned counsel has relied on a decision in one of such cases being Ameer Trading Corpn. Ltd. Vs. Shapoorji Data Processing Ltd., reported in (2004) 1 SCC 702 , where the apex court has observed as under: “Heydon’s rule is now well acknowledged legal principle for purpose of suppressing the mischief and advance the remedy.” 6. From the other side, Mr. T.D. Majumder, learned G.A. appearing for the respondents has submitted that it is not the suppression of the mischief but a new policy of the Sate. But he has fairly submitted that a new policy has come into operation because there was some confusions and difficulties as regards the referral from the State Medical Board for the family members of those employees who are appointed in the Tripura State Rifles in terms of Rule 8(2) of the TSR (Recruitment) Rules, 1985. Mr. Majumder, learned G.A. has stated that the said office memorandum dated 18.09.2013 will have the prospective operation only and as such, there is no infirmity in the decision reflected in the letter dated 08.06.2015, addressed to the petitioner by the Asst. Commandant and DDO, 8th Battalion TSR, IRiii. 7. On appreciating the records so produced, it appears that by the said communication dated 08.06.2015, Annexure-J to the writ petition, the respondents communicated that the reimbursement bill as raised against the medical expenses for treatment of the father of the petitioner amounting to Rs.2,46,454/- cannot be acceded to. Expenses were made in the year 2011 and as such, the Finance Department’s memorandum dated 18.09.2013 cannot saddle with any obligation for defraying any expense that was incurred in the year 2011. Thus, the medical reimbursement bill was returned to the petitioner. 8. There is no disagreement at the Bar that to obviate the unattended area, the said office memorandum dated 18.09.2013 has been issued. Now, the sole question that falls for consideration is that whether the said memorandum can be given retrospective operation and consequentially, whether the petitioner can get the reimbursement of the medical bills as raised by him on account of treatment of his father who was suffering from cancer. Now, the sole question that falls for consideration is that whether the said memorandum can be given retrospective operation and consequentially, whether the petitioner can get the reimbursement of the medical bills as raised by him on account of treatment of his father who was suffering from cancer. There is no dispute that any family member of the State Government employee belonging to Group-C and Group-D on referral from the State Medical Board is entitled to get the reimbursement, if they are referred to the state approved medical institution and such reimbursement shall be limited to the actual expenses of the treatment in such referral institutions. It is apparent from the office memorandum dated 18.09.2013 that only referral hospital for the treatment of cancer as approved by the State Government is the Cancer Center Welfare Home and Research Institute, Thakurpukur, Kolkata. However, it is further provided in the said office memorandum dated 18.09.2013 that if anyone takes treatment in a private hospital for cancer, the medical reimbursement shall be allowed as per the rate of Cancer Centre Welfare Home and Research Institute, Thakurpukur, Kolkata or the actual cost of treatment and whichever is lower. 9. This Court is in total agreement with what Mr. Deb, learned counsel appearing for the petitioner has submitted that the State by not attending this area earlier has become instrumental to a mischief and that mischief has been suppressed by the office memorandum dated 18.09.2013. Thus, in view of such suppression, the court may apply the office memorandum dated 18.09.2013 retrospectively in the case of the petitioner to remedy and advance the ends of justice. Thus, the respondents are directed to reimburse the medical expenses of the petitioner which he had incurred for treatment of his father in terms of the office memorandum dated 18.09.2013 within a period of 3(three) months from the date of receipt of the copy of this judgment and order. The petitioner is also directed to resubmit the reimbursement bills within 15 days from the date when the petitioner would get the copy of this judgment and order, so that the matter can be processed by the respondents in terms of this order. With this observation and directions, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs. A copy of this order be furnished to Mr. With this observation and directions, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs. A copy of this order be furnished to Mr. Majumder, learned G.A. for doing his needful.