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2017 DIGILAW 1241 (GAU)

Vijay Kumar v. Union of India

2017-09-05

NELSON SAILO

body2017
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. J.H. Saikia, the learned counsel for the petitioner and Mr. M. Phukan, the learned CGC appearing for the respondents. The petitioner is aggrieved with the deduction of the medical expenses he incurred for his treatment from his salary amounting to Rs. 94,436/-. 2. The facts of the case may be briefly be narrated. The petitioner was appointed as Storekeeper Technician under the Border Roads Task Force (General Reserve Engineering Force) under Unit HQ 73 RCC of Army on 28.12.87. In the year 2007, while the petitioner was at HQ 101 RCC, he suffered from brain hemorrhage and for which he was admitted to the MI Room 141 DMC. Considering the condition of the petitioner, the authorities shifted the petitioner to Gurunanak Government Hospital where he was admitted in the Intensive Care Unit After conducting necessary investigation, the authorities found that the petitioner should be shifted to a hospital where proper treatment could be given to him. The family members of the petitioner therefore admitted the petitioner in Ajit Hospital in Amritsar after being released from the Gurunanak Government Hospital. Ajit Hospital prepared a draft estimate of Rs. 1,27,725/- for his treatment and the authorities concerned considering the emergent situation, sanctioned an amount of Rs. 1,14,900/- to take care of the emergent requirement for the petitioner's treatment Consequently, the petitioner underwent an operation which has been termed in the Discharge Summary dated 8.2.2007 "Emergency right sided sub-occipital craniotomy and evacuation of right cerebellar hematoma." The Discharge Summary shows that the petitioner was admitted on 25.1.2007 and the operation was performed on the same day and thereafter, he was discharged on 8.2.2007. 3. The petitioner after being his discharged and upon recovery joined his duty and submitted the entire medical bills amounting to Rs. 1,29,186 to the authorities concerned for their approval and payment. However, while the petitioner was expecting reimbursement of the entire amount, the audit authority of 49 TF passed the bill only for an amount of Rs. 29,049/- out of the total amount of Rs. 1,29,186 submitted by the petitioner on the ground that an amount of Rs. 1,14,900 had already been sanctioned and paid as advance Further, the amount of Rs. 29,049/- having been calculated towards the entitlement of the petitioner for medical reimbursement, an amount of Rs. 29,049/- out of the total amount of Rs. 1,29,186 submitted by the petitioner on the ground that an amount of Rs. 1,14,900 had already been sanctioned and paid as advance Further, the amount of Rs. 29,049/- having been calculated towards the entitlement of the petitioner for medical reimbursement, an amount of Rs. 98,676/- was shown as a debit against the account of the petitioner for recovery (Annexure-D). According to the petitioner, the recovery of the aforesaid amount was made from the August, 2009 and the petitioner was only paid monthly salary of Rs. 4000/-. Being aggrieved, the petitioner filed a representation to the authorities on 15.2.10. But however, vide communication dated 23.2.10 (Annexure-E), the petitioner was informed that the amount claimed by the petitioner was not agreed upon by the audit authorities and that the matter was being referred to the higher authority for further instruction. Thereafter, the respondent authorities having not attended to the claim of the petitioner, he again filed a representation before the authorities on 4.3.2010 (Annexure-F). The same having not been considered, the petitioner is before this Court. 4. Mr. J.H. Saikia, the learned counsel for the petitioner submits that the ailment of the petitioner was not foreseen and his suffering from brain hemorrhage could not have been anticipated and it happened all of a sudden requiring immediate emergency treatment in a hospital having the required infrastructure. Although the petitioner was admitted to the Unit MI Room 141 DMC, he had to be immediately shifted to Gurunanak Government Hospital wherein, upon making the necessary investigation including MRI, the petitioner was found to have brain hemorrhage. Since, Gurunanak Government Hospital was not having the infrastructure for his treatment, the petitioner had to be shifted to Ajit Hospital in Amritsar where the petitioner could be attended to appropriately and operation performed. It was therefore because of such emergency that the petitioner undertook the operation at Ajit Hospital. In the given circumstance, the petitioner was not in a position to make a preference of the Hospital where he could be treated. Therefore whatever medical expenses which was incurred by him should be reimbursed by his employer. Mr. J.H. Saikia in this connection relies upon the decision of the Apex Court rendered in the case of Suman Rakheja vs. The State of Haryana, 2004 (13) SCC 562 . Therefore whatever medical expenses which was incurred by him should be reimbursed by his employer. Mr. J.H. Saikia in this connection relies upon the decision of the Apex Court rendered in the case of Suman Rakheja vs. The State of Haryana, 2004 (13) SCC 562 . He submits that considering the urgency in which the patient in that case had to be immediately admitted in an hospital, there was no time for him to be shifted in a Hospital which was a Government approved hospital and upon being treated in a private Hospital, the Apex Court held that the petitioner therein was entitled 100% medical expenses reimbursement in the rate of AIIMS and whatever excess expenditure that was incurred by the petitioner, he would be entitled to 75 % of the same. 5. Mr. J.H. Saikia therefore submits that the petitioner in the instant case similar to the case of Suman Rakheja (supra) suffered from Brain Hemorrhage and for which he had to be immediately operated upon. That the petitioner in fact on the day of admission itself was operated upon at Ajit Hospital and therefore in such a situation, similar relief should be granted to the petitioner and whatever amount that was spent for his treatment should be reimbursed by the respondent authorities. He thus submits that the amount which has been deducted from the salary i.e. Rs. 98,676/- should be refunded to him. 6. Mr. M. Phukan, the learned CGC appearing for the respondents submits that as the petitioner is an employee of the Border Roads Task Force (General Reserve Engineering Force) his entitlement towards the medical re-imbursement is covered by the Central Government Medical Attendance Rule, 1944. By referring to Appendix-VIII of the said Rules, he submits that the permissible ceiling for taking treatment in a private medical institution has been provided for and accordingly, in the case of the petitioner, considering the emergent situation, a sum of Rs. 1,14,900/- was sanctioned and deposited in the hospital as advance. The petitioner thereafter upon being discharged from the hospital, submitted a bill amounting to Rs. 1,29,186/- which on calculation as per approved rates provided by the Rules, an amount of Rs. 94,436/- was found to be recoverable from the petitioner as it was the excess amount besides what he was entitled to under the Rules. The petitioner thereafter upon being discharged from the hospital, submitted a bill amounting to Rs. 1,29,186/- which on calculation as per approved rates provided by the Rules, an amount of Rs. 94,436/- was found to be recoverable from the petitioner as it was the excess amount besides what he was entitled to under the Rules. He therefore submits that as the recovery of the excess amount from the petitioner is in accordance with the Rules and as per the permissible limit, the petitioner cannot have any claim for the medical reimbursement. 7. Mr. M. Phukan by referring to the Discharge-cum-Follow Up card issued by the Government Medical College Hospital at Amritsar which he has produced submits that the petitioner upon being diagnosed with brain hemorrhage was advised to go for neuro surgery since such facility was not available in the said hospital. The petitioner was referred for such treatment with the choice of PGIMER, Chandigarh or AIIMS Hospital. However, the petitioner on his own decided to take the treatment from Ajit Hospital in Amritsar. Therefore, under such circumstance, the respondent authorities have decided to grant him medical reimbursement in terms of the relevant rules and for which the petitioner cannot have any grievance. 8. I have considered the submissions advanced by the rival parties and I have perused the pleadings as well as the records produced by the learned CGC. 9. The petitioner in his writ petition has made a representation that his ailment of suffering brain hemorrhage was emergency and for which immediate medical attention was required. The undisputed fact is that Unit Hospital was not equipped to attend his ailment. Furthermore, the Gurunanak Government Hospital at Amritsar also does not have the facilities for performing neuro surgery. That is why the petitioner was referred to other hospitals having such facilities. No doubt, the petitioner was given a choice of PGIMER, Chandigarh and AIIMS Hospital for undertaking neuro surgery but nevertheless, to strictly abide by the advice at the relevant time, considering the condition of the petitioner, the choice of the petitioner and his relatives to go for the surgery at Ajit Hospital cannot be faulted with. Court is also not unmindful about the situation that may have prevailed at the relevant moment. Discretion in such emergency ordinarily is best to be left with the patient and his relatives present at that time. Court is also not unmindful about the situation that may have prevailed at the relevant moment. Discretion in such emergency ordinarily is best to be left with the patient and his relatives present at that time. However, considering the fact that the petitioner is an employee of BFTF which is governed by its own Rules, a departure from the Rules would also be not the most appropriate step that can be taken. However, what transpired at the relevant time was that the petitioner was in requirement of immediate neuro surgery and therefore considering the case of Suman Rakheja (supra), I find the same applicable to the case of the instant writ petitioner. Therefore, I am of the considered opinion that he is entitled to similar relief. 10. In that view of the matter, the writ petition is disposed of in line with the case of Suman Rakheja (supra). The petitioner shall be entitled to 100% medical expenses in the rate of AIIMS, New Delhi and also 75% of the expenditure in excess thereto. The petitioner has contended that recovery has been made from his monthly salary from the month of August, 2009 and the respondent authorities probably have recovered the entire amount by now. The amount recovered from the writ petitioner therefore will be refunded to him through his Bank Account after making necessary adjustment in terms of the observation made above. Such exercise shall be carried out within a month from the date of receipt of a certified copy of this order. Writ petition is accordingly disposed of. No cost.