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2018 DIGILAW 73 (GAU)

Ramani Kanta Sarma v. Union of India

2018-01-16

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Michael Zothankhuma, J. Heard Mr. Sheeladitya, learned counsel for the petitioner. Also heard Mr. S.N. Sarma, learned senior counsel for the respondent Nos. 2 to 4. None appears for the respondent No. 1. 2. The petitioner's case in brief is that the petitioner was an employee of the Oil India Limited, who superannuated from service in the year 2014. The petitioner while in service was diagnosed with liver cirrhosis and was advised liver transplantation. The petitioner asked the Oil India Company Limited to accord sanction for his treatment and liver transplant vide letter dated 31.08.2012. The Oil India Company informed the petitioner that 50% of the medical expenses for the liver transplant and treatment would be borne by the Oil India Company and the rest would have to be paid by the petitioner himself. The petitioner accepted the said proposal and accordingly went for the treatment and liver transplant. 3. After the liver transplant and treatment was over, the petitioner took the stand that the petitioner was forced to accept the proposal made by the Oil India Company for payment of 50% of the treatment as the life of the petitioner was at stake. 4. The petitioner's counsel submits that the cost of the Liver transplant conducted at Medanta, the Medacity Hospital at Gurgaon was at a cost of Rs. 20,25,000/-, out of which 50% was borne by the Company and 50% by the petitioner. The petitioner's counsel submits that as per the reply submitted by the Company on 23.10.2015, to the RTI application submitted by the petitioner, the Oil medical attendance Rules (printed in 2001) is silent on the question of bearing half of the actual cost of the liver transplant. Also the reply dated 23.10.2015 stated that a clause was going to be incorporated in subsequent prints of the Oil Medical Attendance Rules, which would be to the effect that in a case a 'cyyptogenic liver patient wants to go for 'liver transplant' in an OIL empanelled hospital subject to approval of OIL's Medical Board, he/she has to bear half the actual cost of transplantation. Other incidental expenses (of both the recipient and donor) are borne entirely by the Company. Other incidental expenses (of both the recipient and donor) are borne entirely by the Company. The petitioner's counsel submits that the reply dated 23.10.2015 to the petitioner's RTI application goes to show that there is no provision or requirement of the petitioner to pay 50% of the cost of the Liver Transplant. Accordingly, the 50% cost of the liver transplant, that has been deducted from the retirement dues of the petitioner, amounting to Rs. 10,12,500/-, should be returned to the petitioner. 5. Mr. S.N. Sarma, learned senior counsel for the respondent Nos. 2 to 4 submits that Oil India Limited has its own rules for extension of medical facilities to its employees and their family members. He submits that Rule 7.2.3 of the Oil India Limited Employees' Medical Attendance Rule, 2001 (hereinafter referred to as the 2001 Rules) provides for referral of persons to outside designated hospitals, where specialised treatment is required. However, the same is subject to the recommendation of the attending Doctor and approval of the competent authority. He submits that where there is no provision in the 2001 Rules for giving treatment and medical benefits, the provisions contained under the Central Government Medical Attendance Rules (hereinafter referred to as the Rules) would apply, with the approval of the competent authority, which is the Director (HR & BD of the Company). 6. The counsel for the respondent Nos. 2 to 4 submits that the 2001 Rules and the Rules did provide for treatment of the specific disease of the writ petition. As the Rules did contain the guidelines and ceiling rates for liver transplant surgery earlier, the same was incorporated into the Rules for the first time vide memorandum dated 16.01.2013, wherein a ceiling rate for reimbursement is fixed at Rs. 11,50,000 + Rs. 2,50,000=Rs. 14 lakhs. This was done after the petitioner had his liver transplant operation. 7. The counsel for the respondent Nos. 2 to 4 also submits that besides paying 50% of the liver transplant surgery cost, the Oil India Company had agreed to pay all other expenses for the medical treatment required. He also submits that in three similar cases involving one Chandana Talukdar (daughter of an employee), one Bipul Sarma (employee) and one other person, 50% of the cost of the liver transplant had been borne by the Company. He also submits that in three similar cases involving one Chandana Talukdar (daughter of an employee), one Bipul Sarma (employee) and one other person, 50% of the cost of the liver transplant had been borne by the Company. He submits that since the Company had no rules for reimbursement for liver transplant surgery, the Competent Authority had approved 50% of the cost of the surgery, in line with the other cases. He also submits that the petitioner had proposed two alternative modes of recovery of the 50% of the total cost of surgery vide his letter dated 05.10.2012, addressed to the Company. There was no submission made by the petitioner in his letter dated 05.10.2012 with regard to his present claim that the entire cost of surgery should be borne by the Company. The respondent's counsel submits that the Company has till date paid more than 65 lakhs for the treatment and liver transplant surgery of the petitioner and thus prays for dismissal of the writ petition. 8. I have heard the learned counsels for the parties. 9. Rule 7.2.3 of the 2001 Rules relates to referral treatment in duty site hospital and Rule 10.4 states as follows:- "10.4 Interpretation: (i) Where there is no provision in this scheme regarding certain issues for medical benefits, the provisions contained under the Central Government Medical Attendance Rules will be applicable with the approval of the Competent Authority. (ii) Director (HR & BD) will be the Competent Authority to issue clarification or interpretation of these Rules". 10. The petitioner's letter dated 05.10.2012 states as follows:- "Subject: Mode of recovery for the Medical Treatment-Liver Transplantation Sir, With due respect I would like to state that on receipt of your letter PL/CMA/2/3-4/527 (dated 4th October 2012) regarding the issuing of the credit letter for my treatment, I would like to request the following mode of recovery for 50% of the total cost (Liver Transplantation) amounting to Rs. 10,12,500.00: Mode A: Deduction of the above mentioned amount from the final settlement after superannuation (preferably) or from any amount due to me from Oil India Limited. Mode B: Deduction of a certain amount from my monthly salary every month and then deposition of the residual amount/deduction of the residual amount from final settlement after superannuation. I request you to kindly accept the Mode A preferably for the recovery of the above mentioned amount. Mode B: Deduction of a certain amount from my monthly salary every month and then deposition of the residual amount/deduction of the residual amount from final settlement after superannuation. I request you to kindly accept the Mode A preferably for the recovery of the above mentioned amount. Also regarding the submission of the documents the soft copies of the same has been mailed along with this mail and the hard copies will be sent at the earliest. (As per the Medical Hospital requirement there is no need for NOC if the Donor is Son/Daughter). I hope you would kindly accept my application and do the needful with due urgency". 11. The respondent Company's reply dated 23.10.2015 to question No. 2 of the petitioner's RTI application is reproduced below:- "It is prevalent practice in Oil India Limited that in a case a 'cyyptogenic liver patient wants to go for 'liver transplant' in an OIL empanelled hospital subject to approval of OIL's Medical Board, he/she has to bear half the actual cost of transplantation. Other incidental expenses (of both the recipient and donor) are borne entirely by the Company. Likewise Mr. Ramani Kanta Sarma, a few work persons/dependents also underwent 'liver transplants' and borne half the actual cost. It is a fact that OIL Medical Attendance Rules (Printed in 2001) is silent on bearing the half of the actual cost of liver-transplantation. As confirmed by Competent Authority, this clause is going to be incorporated in subsequent prints of OIL Medical Attendance Rules. Needless to say, all the cases of 'Liver-transplants of OIL' were done well after 2001". 12. The question that has to be decided is whether the respondent Company is to pay for the entire cost of the liver transplant surgery or whether the respondent Company was within its right to pay only 50% of the cost of the surgery, regard being had to the 2001 Rules and the Rules. 13. The fact that the 2001 Rules did not provide for treatment of liver transplant at the time the petitioner undertook the operation is an admitted fact. Rule 10.4 of the 2001 Rules provides that where there is no provision in the scheme regarding certain issues for medical benefits, the provisions contained under the Central Medical Attendance Rules would be applicable with the approval of the competent authority. Rule 10.4 of the 2001 Rules provides that where there is no provision in the scheme regarding certain issues for medical benefits, the provisions contained under the Central Medical Attendance Rules would be applicable with the approval of the competent authority. At the relevant point of time, the Central Government Medical Attendance Rules did not cover liver transplant surgery. In fact, the Ministry of Health & Family Welfare, Department of Health & Family Welfare, Govt. of India, issued an O.M dated 16.1.2013, whereby guidelines were issued and ceiling rates given for re-imbursement for liver transplant surgery for the first time, in respect of Central Government Employees and Pensioners. As per the O.M dated 16.01.2013, the ceiling rate for re-imbursement for liver transplant surgery was fixed at Rs. 11,50,000 + Rs. 2,50,000, totalling Rs. 14 lakhs. However, during the time the petitioner underwent the liver transplant surgery, medical re-imbursement for liver transplant surgery was not covered by the Central Government Medical Attendance Rules, i.e, the CGHS/CS (MA) Rules, 1944. Accordingly, there was no provision for payment of medical reimbursement to the petitioner by the respondents, at the time the petitioner underwent the liver transplant surgery. The respondents have however not only paid for 50% of the cost of the liver transplant surgery, but have also allegedly paid an approximate amount of Rs. 52,11,822/- for treatment of the petitioner due to the liver transplant surgery. As the petitioner has not been able to show that he had a right to be fully reimbursed for the liver transplant surgery, this Court is not inclined to exercise its discretion in this case. Further, the petitioner, vide this letter dated 05.10.2012 had accepted the fact that he would bear 50% of the cost of the liver transplant surgery and had in fact requested the respondents to deduct 50% of the total cost of the liver transplant, either from his monthly salary or from the retirement dues of the petitioner. The respondent's authorities had accordingly acted as per the request of the petitioner by recovering 50% of the cost of the liver transplant surgery from the petitioner's retirement dues. The petitioner, after having accepted the terms of payment of the liver transplant surgery and having acted upon it, cannot be allowed to turn around and take a different stand. He cannot be allowed to blow hot and cold over the said issue. 14. The petitioner, after having accepted the terms of payment of the liver transplant surgery and having acted upon it, cannot be allowed to turn around and take a different stand. He cannot be allowed to blow hot and cold over the said issue. 14. In view of the reasons stated above, this Court does not find any merit in the petition. The same is accordingly dismissed.