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2017 DIGILAW 1425 (ORI)

Ganeswar Rout v. State of Orissa

2017-12-08

B.R.SARANGI

body2017
JUDGMENT : B.R. SARANGI, J. The petitioners, being the children of one Lakshmi Narayan Rout, who was serving as Senior Grade Typist in the office of the Revenue Divisional Commissioner, Southern Division, Berhampur, have filed this writ application claiming compensation of Rs.10,00,000/- (rupees ten lakhs) on account of death of their mother, who suffered from chronic renal failure and was in need of kidney transplantation, due to alleged inaction of the authorities concerned in timely sanction of the amount of Rs.90,000/- (rupees ninety thousand) for treatment of their mother, 2. The factual matrix of the case is that the mother of the petitioners was suffering from chronic renal failure and was admitted into M.K.C.G. Medical College and Hospital, Berhampur for treatment in the year 1991. As adequate facilities were not available, either in the said hospital, or in any other hospitals of the State, for investigation and treatment of kidney transplantation, the Professor and Head of the Department of Nephrology, vide certificate dated 18.06.1992 in Annexure-1, advised for treatment of mother of the petitioners at Apollo Hospital, Hyderabad and estimated the cost of operation to be Rs.90,000/- (rupees ninety thousand), which was countersigned by the Superintendent of the said College and Hospital on 23.06.1992. He also recommended her case to the Director, Medical Education and Training, Orissa, who, vide letter dated 03.07.1992, accorded permission. Then, Under Secretary to the Government in Revenue and Excise Department, vide letter dated 26.09.1992, requested the Secretary, Board of Revenue, Orissa to send recommendation along with a specific re-appropriation proposal for augmentation of funds for the treatment of the mother of the petitioners. But after a long lapse of time, Under Secretary to Government in Revenue and Excise Department, for sanction of the medical advance in favour of mother of the petitioners, sought for certain documents/clarification from the A.F.A.-cum-Under Secretary to Revenue Divisional Commissioner (Southern Division), Berhampur, vide letter dated 22.03.1993, and subsequently, vide letter dated 22.06.1993, he also made a query as to whether the mother of the petitioners, i.e., the wife of Lakshmi Narayan Rout was an employee under State/Central Government or any public sector undertaking and, if so, a joint declaration would be obtained from them. Even though same was complied with, sanction of medical advance was not made in favour of the father of the petitioners for treatment of their mother. Even though same was complied with, sanction of medical advance was not made in favour of the father of the petitioners for treatment of their mother. Consequentially, the father of the petitioners again approached the authority concerned, in pursuance of which the opposite party no.3 sent a wireless message on 09.03.1994 to opposite party no.2 to sanction Rs.90,000/- (rupees ninety thousand) towards medical advance which was pending in the office of opposite party no.2, since the condition of mother of the petitioners was deteriorating day by day. Despite that, as no action was taken by opposite party no.2, the Revenue Divisional Commissioner wrote a D.O. letter on 02.04.1994 requesting opposite party no.2 to move the Government for sanction of such medical advance in favour of father of the petitioners, as the matter requires special and immediate attention. Thereafter, the Financial Adviser in the office of opposite party no.2 wrote a letter on 19.05.1994 asking the office of opposite party no.3 to submit a fresh proposal along with copies of all necessary documents for recommending the proposal to the Government in Revenue and Excise Department for sanction of medical advance of Rs.90,000/- (rupees ninety thousand) in favour of the father of the petitioners. Though the amount for treatment of the mother of the petitioners was sanctioned in the year 1992, the same was not disbursed till 1994, whereas in the case of one L.C. Das, Sr. Assistant, who is a co-employee of the petitioners’ father, the amount was sanctioned immediately and disbursed to him. Due to inaction of the authorities concerned in releasing the medical advance amount in favour of the father of the petitioners, their mother died due to improper medical treatment. Consequentially, not only the petitioners but also their father suffered a lot and faced with many disadvantageous position causing mental agony and also physical pain. Therefore, the petitioners claim for payment of compensation due to inaction of the authorities concerned. 3. Ms. S. Biswal appearing on behalf of Mr. S.D. Das, learned Senior Counsel for the petitioners strenuously urged that had the amount of Rs.90,000/- (rupees ninety thousand), which was sanctioned on the basis of the recommendation made by the medical authority, been paid to father of the petitioners well within time, the mother of the petitioners could not have succumbed to death due to paucity of funds and also inaction of the authorities. It is contended that the amount towards medical advance, the process for which was initiated in the year 1992, was sanctioned in the year 1994, but the manner of ailment the mother of the petitioners suffered was required an immediate medical advance, which is tell tale from the medical document provided to petitioner no.1 and subsequently submitted to the authority concerned. In view of inaction of the authority in releasing the medical advance for better treatment of the mother of the petitioners, there was complete dislocation in the family life of the petitioners, as a result of which they suffered severe mental agony and untold miseries. Therefore, the petitioners are entitled to get compensation for the negligence of the authorities concerned. 4. Mr. A.K. Nayak-1, learned Addl. Standing Counsel appearing for the State opposite parties argued with vehemence on the maintainability of the writ petition. It is contended that since the father of the petitioners was a Government Employee and the dispute is with regard to delay in disbursal of advance for medical treatment, he should have approached the Orissa State Administrative Tribunal for compensation, and this Court has no jurisdiction to entertain this writ petition. Apart from the same, it is also contended, by referring to the counter affidavits filed by the opposite parties, that the claim of the petitioners is not supported by legal heir certificate and that the death of the mother of the petitioners was not caused due to inaction of the opposite parties. It is further contended that petitioners had never raised any grievance that the death of their mother was due to negligence of the opposite parties. As such, in view of the Finance Department notification circulated vide Memo No. CS-IV-16-93-17950(255) dated 14.04.1993, the father of the petitioners had to furnish the journey schedule, whereby the patient had to undergo for treatment and in absence of such journey schedule forwarded to the Government or Board of Revenue, the claim for sanction of medical advance cannot sustain in the eye of law. It is further contended that Revenue Divisional Commissioner, Southern Division, Orissa was instructed to make necessary provisions for minimum amount required towards the medical advance and as such, it was not possible to meet the claim of Rs.90,000/- (rupees ninety thousand) towards the said medical advance of the government employee. It is further contended that Revenue Divisional Commissioner, Southern Division, Orissa was instructed to make necessary provisions for minimum amount required towards the medical advance and as such, it was not possible to meet the claim of Rs.90,000/- (rupees ninety thousand) towards the said medical advance of the government employee. As the father of the petitioners did not take any step to save the life of his wife, no negligence could be attributed to the opposite parties for delay in sanction and release of the medical advance. If the mother of the petitioners was suffering, it was incumbent upon the father of the petitioners to shift her to Apollo Hospital by arranging money from any other source which could have been recouped after availing reimbursement cost of medicine bills subsequently under Odisha Medical Attendant Rules, 1947. In view of that, it is contended that the opposite parties/State authorities are not liable to pay any compensation for the said purpose. 5. Having heard Miss S. Biswal, learned counsel for the petitioners and Mr. A.K. Nayak-1, learned Additional Standing Counsel for the State opposite parties and perusing the records, since pleadings have been exchanged between the parties, with the consent of learned counsel for the parties the matter is being disposed of finally at the stage of admission. 6. As a matter of fact, it is an old case of the year 1995. The counter affidavit on behalf of opposite party no.1 has been filed only on 08.05.2017 and counter affidavit on behalf of opposite party no.3 was filed on 10.07.2003 and on behalf of opposite party no.2 was filed on 23.05.2001. But no rejoinder affidavit to the counter affidavits has been filed by the petitioners to refute the contentions raised therein. 7. Before adjudicating on the entitlement of the relief sought in the instant case, it is necessary to decide at the outset whether the writ application is maintainable before this Court or not. The contention of Mr. A.K. Nayak-1, learned Additional Standing Counsel is that since the matter relates to grant of medical advance to an employee of the State Government, this Court has no jurisdiction to entertain this application rather it is the Orissa State Administrative Tribunal which has got jurisdiction to entertain the same. The contention of Mr. A.K. Nayak-1, learned Additional Standing Counsel is that since the matter relates to grant of medical advance to an employee of the State Government, this Court has no jurisdiction to entertain this application rather it is the Orissa State Administrative Tribunal which has got jurisdiction to entertain the same. No doubt, had the father of the petitioners approached this Court claiming medical advance, this Court would have no jurisdiction to entertain the writ application. But the petitioners, by means of this writ application, have sought for compensation due to death of their mother on account of inaction on the part of the State authorities in releasing medical advance as claimed by their father, who was a government employee. This fact is clearly borne out from the relief sought in the writ petition where the petitioners have claimed for grant of compensation of Rs.10,00,000/- (rupees ten lakhs) due to death of their mother on account of delay in releasing the medical advance. In such view of the matter, this Court has jurisdiction to entertain the writ petition. Accordingly, the objection raised by learned Addl. Standing Counsel in that regard is overruled. 8. The specific case of the opposite parties, as is evident from the counter affidavit filed by opposite party no.1, is that considering the serious condition of the patient (mother of the petitioners), the father of the petitioners could have shifted her to Apollo Hospital, Hyderabad by arranging money from any other sources which could have been recouped after availing reimbursement cost of medicine bills subsequently under Odisha Services (Medical Attendance) Rules, 1947. As such, due to non-release of advance as claimed, it cannot be said that there was negligence on the part of the State authorities. In this context, it is pertinent to mention that in exercise of powers conferred by clause (b) of sub-section (2) of Section 241 of the Government of India Act, 1935, the Governor of Orissa, in super-session of all existing rules on the subject, has been pleased to make the rules called “The Odisha Services (Medical Attendance) Rules, 1947”. In this context, it is pertinent to mention that in exercise of powers conferred by clause (b) of sub-section (2) of Section 241 of the Government of India Act, 1935, the Governor of Orissa, in super-session of all existing rules on the subject, has been pleased to make the rules called “The Odisha Services (Medical Attendance) Rules, 1947”. Rule 7 of the Odisha Services (Medical Attendance) Rules, 1947 reads as follows: “7(1) A Government servant or a member of his family shall be entitled free of charges- (i) to treatment in such hospital at or near the place where he falls ill as can, in the opinion of the authorised medical attendant, provide the necessary and suitable treatment; (ii) to anti-rabic treatment at the nearest Government hospital in the province providing treatment. (2) Where a Government servant or a member of his family is entitled under Sub-rule (1) free of charge, to treatment or anti-rabic treatment in a hospital any amount paid by him on account of such treatment shall, on production of a certificate in writing by the authorised medical attendant in this behalf, be reimbursed to him by the Provincial Government- (i) the sales tax paid on account of the purchase of the medicines by the Government servants shall on production of a certificate in writing by the authorised medical attendant in this behalf, be reimbursed to him by the State Government; (G.O. No. 2672 (19)-H., dated 18.2.1961) (ii) reimbursement of expenses on medical treatment incurred outside the State on production of a certificate in writing from the authorised medical attendant on this behalf and necessary vouchers; Note-Reimbursement of the actual expenses includes the entire cost of medical treatment such as consultation fees of the doctor, charges for pathological, ‘X’ Ray examination, etc. Hospital charges if admitted, ambulance charges, special nursing charges etc. (G.O. No. 20504-H, dated 1.12.1962) (G.O. No. 10280 (19)-H., dated 13.06.1961) (iii) blood transfusion charges paid to a Government institution or any other local organisation recognised by Government for the supply of blood to patients and the cost thereof is reimbursable to Government servants. Hospital charges if admitted, ambulance charges, special nursing charges etc. (G.O. No. 20504-H, dated 1.12.1962) (G.O. No. 10280 (19)-H., dated 13.06.1961) (iii) blood transfusion charges paid to a Government institution or any other local organisation recognised by Government for the supply of blood to patients and the cost thereof is reimbursable to Government servants. Where such institutions or organisation do not exist or blood of the type required for a Government servant is not available with them, there should be no objection to the purchase of blood plasma from a chemist or to obtaining blood from a private donor and the cost thereof, will also be reimbursed to Government servants on production of a certificate from the authorised medical attendant to the effect that the supply of blood required was not available from a local Government institution or a recognised organisation and that the price paid for the blood was reasonable.” As would be seen from the above quoted provisions, in Rule 7 of the Odisha Services (Medical Attendance) Rules, 1947 (hereinafter referred to as “1947 Rules”) it has been clearly provided that a Government servant or a member of his family shall be entitled free of charges to the treatment in such hospital at or near the place where he falls ill as can, in the opinion of the authorised medical attendant, provide the necessary and suitable treatment. Thereby, the Government owes a responsibility to give free treatment to its employees and members of his family. If the extant rules prescribes that the family members are entitled to get treatment on free of charges, the same should have been adhered to in the letter and spirit specifically in this case in respect of mother of the petitioners. Therefore, the contention to the contrary raised on behalf of the opposite parties cannot sustain in the eye of law. 9. Apart from the above, Article 21 of the Constitution of India envisages that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life as enshrined under Article 21 of the Constitution of India includes right to health. 10. 9. Apart from the above, Article 21 of the Constitution of India envisages that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life as enshrined under Article 21 of the Constitution of India includes right to health. 10. In State of Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1225 , the apex Court even held that the employee is entitled to reimbursement of actual room rent charges paid by him and the Government was not entitled to take a stand that the reimbursement could be allowed as per rates charged by All India Institute of Medical Sciences. When the patient was admitted and had taken the treatment in the hospital and had incurred the expenditure towards room charges, inevitably the consequential rent paid for the room during his stay is integral part of his expenditure incurred for the treatment. It is further held that the patient having referred to AIIMS for specialized treatment where he was admitted, necessarily, the expenses incurred towards room rent for stay in the hospital as an inpatient are an integral part of the expenses incurred for the said treatment. It is settled law that right to health is an integral part of right to life. Government has constitutional obligation to provide the 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. Having had the constitutional obligation to bear the expenses for the Government servant, while in service or after retirement from service, as per the policy of the Government, the Government is required to fulfil the constitutional obligation. Necessarily the State has to bear the expenses incurred in that behalf. No doubt failure on the part of the Government to provide timely medical treatment to a patient amounts to violation of right to life. Necessarily the State has to bear the expenses incurred in that behalf. No doubt failure on the part of the Government to provide timely medical treatment to a patient amounts to violation of right to life. Since the mother of the petitioners was suffering from chronic renal failure and she was under treatment of the Professor of Nephrology, MKCG Medical College and Hospital, Berhampur, who recommended her case for better treatment and for that purpose also requested for sanction of the amount and because of the bureaucratic movement of file inaction has been caused by the State authorities in releasing the amount in favour of the father of the petitioner, as a consequence of which the mother of the petitioners succumbed to death, which caused great dislocation in the family set up and the minor children suffered untold miseries. 11. In Surjit Singh v. State of Punjab, (1996) 2 SCC 336 , the apex Court held 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. Because of non-sanction of medical advance, as due and admissible in view of the provisions of the 1947 Rules, in favour of the father of the petitioners who was a government employee, if death of the mother of the petitioners has been caused, that certainly amounts to inaction/negligence on the part of the State authorities. 12. In Shankerlal v. State of Rajasthan, 2000 (3) WLC 585 a Division Bench of Rajasthan High Court held that denial of reimbursement of expenses incurred on medical attendance and treatment bona-fide and genuinely by the public servant for availing treatment for himself or any member of his family at recognized hospital/institution in the circumstances like the present case on such technical grounds shall be clearly arbitrary, unreasonable and unjust. 13. In view of the factual matrix of the case in hand as well as the law decided by the apex Court, as discussed above, there is no iota of doubt that the mother of the petitioners has been deprived of better treatment due to non-sanction and non-release of medical advance as recommended and suggested by the professor who was treating her. Though the compliance has been made from the side of the petitioners, as well as by the office of the Revenue Divisional Commissioner from time to time, the reason best known to the authority such medical advance was not released in time for treatment of the mother of the petitioners. In view of premature death of their mother, though the petitioners have approached this Court well within time and in the meantime time 22 years have passed, it appears that the State has filed counter affidavit only in the year 2017, which clearly indicates that it has not changed its attitude with the passage of time and with the advent of technology. In the said affidavit, by taking some plea or other, it has tried to circumvent the claim of the petitioners, which they are otherwise entitled to, and a plea has been taken that had the father of the petitioners given proper treatment to his wife by arranging money from other sources, the same could have been reimbursed to him. Such a stand taken on behalf of the State authorities manifests that they were quite oblivious of the mental condition of the father of the petitioners having three minor children and an ailing wife, being bedridden was crying for treatment, and due to lack of funds he was undone and moving from pillar to post for grant of medical advance, which has virtually been denied to him causing death of his wife. Penury of this nature of a person cannot be compensated in terms of money. It is trite that no person should be deprived of treatment for deliberate laches on the part of the authority and the Constitution of India has also clearly mandated that minimum facilities, which required under law, should be provided to save the life of a citizen. Therefore, the State owes an obligation to provide adequate medical facilities to its citizens. If the State is unable to provide such facilities, then it is liable to reimburse the cost incurred for the purpose to its citizens to live with dignity. If this minimum infrastructure and benefit has not been extended, it amounts to violation of Article 21 of the Constitution of India. If the State is unable to provide such facilities, then it is liable to reimburse the cost incurred for the purpose to its citizens to live with dignity. If this minimum infrastructure and benefit has not been extended, it amounts to violation of Article 21 of the Constitution of India. Thus, due to non-release of medical advance in time for better treatment, the case in hand clearly falls within the fold of violation of right to live with dignity, as a consequence of which the petitioners are entitled to get compensation. 14. In State of Gujarat v. Shantilal Mangal Das, AIR 1969 SC 634 , the apex Court held that compensation means anything given to make things equivalent, a thing given to or to make amends for loss, recompense, remuneration or pay. Similar view has also been taken in KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197 . 15. It is true that in the present case the loss, which has been caused to the petitioners due to death of their mother, cannot be compensated in terms of money. The loss of life of the mother of the petitioners is a loss for all times to come that cannot be compensated in shape of money. Similarly, the mental agony, which the father of the petitioners has suffered and through which the minor children have passed, cannot be weighed or measured in terms of money. But, however, due to inaction/negligence on the part of any authority of the State if such sufferings are found to have been occurred, then the person sustaining the loss has to be compensated by the State, which may ultimately recover the amount from the person responsible for such miseries. 16. In view of such position, this Court is of the considered view that in the facts and circumstances of the case it would be just and proper to grant a sum of Rs.2,00,000/- (rupees two lakhs) as compensation to the petitioners, which shall be paid to them by opposite party no.1 within a period of three months from the date of communication of this order. Needless to say that with regard to delay in sanction and release of the medical advance to the father of the petitioners, the State Government may cause an enquiry and, if any authority is found responsible for the same, the compensation amount as has been directed to be paid to the petitioners, shall be recovered from him/her/them in accordance with law. 17. The writ petition is accordingly allowed. No order as to cost.