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Madhya Pradesh High Court · body

2019 DIGILAW 529 (MP)

Lalit Gupta v. State of M. P.

2019-07-22

VISHAL MISHRA

body2019
ORDER 1. The present petition has been filed by the petitioner challenging the order dated 13.3.2009 passed by the respondents, whereby the subsequent bills regarding treatment and test of the petitioner have been illegally rejected. It is alleged by the counsel for the petitioner that during the service on 25.9.2008, he had sudden heart attack and he was admitted in ICU, District Hospital Shivpuri, but the condition of the petitioner was serious and there was no proper facility available at District Hospital Shivpuri therefore, the petition was referred to JA Hospital Gwalior. There were complications in the petitioner's case, therefore, due to insufficiency of space and staff petitioner was referred to Birla Heart Centre (Birla Institute of Medical Research) Gwalior, (hereinafter referred as “Birla Hospital” for short) where he was provided treatment but despite of the treatment given in Birla Hospital, only 35% recovery was made. He was discharged from Birla Hospital on 3.10.2008, but the treatment was continued and the petitioner was directed to undergo some essential/required test. The petitioner went to Bhopal Memorial Hospital & Research Centre on 14.10.2009 for the test of Stress Thallium which was conducted and report was given. While undergoing the treatment, the petitioner has submitted the bills and required details and prescriptions to the tune of Rs. 91,600/- to the respondents alongwith the applications. The formalities regarding filling up the form etc. were completed by the petitioner but owing to the fact that petitioner was not having time to get approval for permission for treatment from the respondents hence bills filed by him for reimbursement from the institute, though forwarded by the respondent No. 3 to the respondent No. 2, same were not allowed owing to the fact that the institute in question was not recognized institute by the State Government. The petitioner has alleged that aforesaid action of the respondents is highly unjustified as the basic requirement under the acute emergencies is that the patient should have been treated on the priority. Thus, the aforesaid aspect was not taken into consideration and without verification of the treatment undergone by the petitioner from Birla Hospital, the claim of the petitioner for reimbursement has been rejected. 2. Thus, the aforesaid aspect was not taken into consideration and without verification of the treatment undergone by the petitioner from Birla Hospital, the claim of the petitioner for reimbursement has been rejected. 2. Per contra, learned Government Advocate by filing reply has contented that the petitioner has taken treatment at Birla Institute of Medical Research, Gwalior which is not a recognized institute by the State Government for the purpose of treatment to State Government employees. On 25.9.2008, the medical bills of treatment were submitted by the petitioner for reimbursement which were sent to Divisional Joint Director of Health Services, Gwalior for grant of ex-post facto sanction for reimbursement by letter dated 21.12.2008. The claim of the petitioner was placed before the Committee which was empowered to grant ex-post facto sanction and the Committee after minor scrutinization of bill of the petitioner has observed that petitioner has obtained treatment in a private hospital which was not authorized by the State Government for grant of treatment to the State Government employees, accordingly, the claim has rightly been rejected on 18.3.2009 which was sent to the petitioner alongwith letter dated 31.3.2010. They have filed the list of private hospitals recognized by the State Government. It is further contended that a letter dated 25.10.2010, the Government has recognized Birla Institute of Medical Research Center, Gwalior for treatment of State Government employees as the said institute was already recognized by the Central Government for treatment of its employees. But the case of the petitioner is prior to date of recognition and was of the year 2008, therefore, the reimbursement of the medical bills of the petitioner was denied, therefore, prayed for dismissal of the writ petition. 3. Heard learned counsel for the parties and perused the record. 4. The petitioner who is holding the post of Sub-Engineer in Public Health and Engineering Department, Section Shivpuri met with heart attack on 25.9.2008 and he was admitted in ICU, District Hospital Shivpuri; as the treatment could not be given to the petitioner due to lack of facilities available at District Hosptial Shivpuri, therefore, he was referred to JA Group of Hospitals, Gwalior. The referral slip and fee deposited by the petitioner was filed alongwith the petition. The referral slip and fee deposited by the petitioner was filed alongwith the petition. But in JA Group of Hospital, the petitioner could not be treated due to insufficiency of space and staff, he was again shift to Birla Hospital where he was given the medical treatment. The petitioner was discharged from Birla Hospital on 3.10.2008, however, treatment was continued and petitioner was directed to undergo some essential test. On 8.10.2009 the petitioner got himself registered at Bhopal Memorial Hospital and Research Centre and on 14.10.2009 test of Stress Thallium was conducted, certain medicines were given to him. It is a case of the petitioner that while undergoing the treatment he has incurred as expenses of Rs. 91,600/- for which the bills and required details and prescriptions were duly submitted but as it was a case of emergency, the petitioner could not take approval for treating himself from outside hospital other than Government approved. It is a case of the petitioner that the bills were duly forwarded by the respondent No. 3 to the respondent No. 2 through letter dated 21.12.2008 and 21.2.2010 but they were kept pending for a considerable period, subsequently the claim of the petitioner was rejected vide order dated 13.3.2009. The averment of the petitioner is that reason which has been assigned for not making the payment towards the medical reimbursement is that petitioner has taken treatment from private hospital which was not recognized for taking treatment of State Government employees. 5. The Hon'ble Supreme Court in the case of State of Punjab & Others v. Ram Lubhaya Bagga and others, reported in (1998) 4 SCC 117 , has considered the aspect of right of healthy life and discussed about the same taking into consideration of Articles 21, 41 and 47 of the Constitution of India and reads as under: "27.Coming back to test the claim of respondents, the State can neither urge nor say that it has no obligation to provide medical facility. If that were so, it would be ex facie violative of Article 21. Under the new policy, medical facility continues to be given and now an employee is given free choice to get treatment in any private hospital in India but the amount of payment towards reimbursement is regulated. Without fixing any specific rate, the new policy refers to the obligation of paying at the rate fixed by the Director. Under the new policy, medical facility continues to be given and now an employee is given free choice to get treatment in any private hospital in India but the amount of payment towards reimbursement is regulated. Without fixing any specific rate, the new policy refers to the obligation of paying at the rate fixed by the Director. The words are: '.... to the level of expenditure as per the rate fixed by the Director, Health and Family Welfare, Punjab for a similar treatment package or actual expenditure, which ever is less.' 28.The new policy does not leave this fixation to the sweet will of the Director but it is to be done by a Committee of technical experts: 'The rate for a particular treatment would be included in the advice issued by the District/State Medical Board. A Committee of technical experts shall be constituted by the Director, Health and Family Welfare, Punjab to finalize the roles of various treatment packages.' 29. No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permits. If no scale or rate is fixed then, in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence, we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India." 6. The Hon'ble Supreme Court in the case of State of Punjab and others v. Mohan Lal Jindal, reported in (2001) 9 SCC 217 , has held as under: "It is not in dispute between the parties that the respondent suffered a heart attack on 20.7.1995 and underwent bypass surgery on 29.7.1995. According to learned counsel for the respondent, as there was a long queue of patients at AIIMS Hospital for bypass surgery and his case was of emergency, he had to go to other hospital. It may be so. According to learned counsel for the respondent, as there was a long queue of patients at AIIMS Hospital for bypass surgery and his case was of emergency, he had to go to other hospital. It may be so. However, in light of reported decision, the medical reimbursement available to the respondent will be at the AIIMS rates, which has already been paid to him" 7. Hon'ble High Court in the case of Kirti Saxena (Dr.) v. State of M.P. and ors. W.P. No. 1868 of 2009 (s) decided on 24.10.2013 taking into consideration the law laid dowy by Hon'ble Supreme Court in the case of Ram Lubhaya Bagga (supra) has directed for making payment towards the cost of pacemakers which is equivalent to the amount which is mentioned in the policy of the Government, accordingly, the petitioner was found entitlement for reimbursement of the amount of implantation of 'pacemakers' to the extent of Rs. 60,000/- for pacemaker's cost. 8. Hon'ble Supreme Court in the case of Shiva Kant Jha v. Union of India, reported in (2018) 16 SCC 187 , has considered the aspect of treatment availed in emergency circumstances and held as under: "It is a settled legal position that the Government employee during his lifetime or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by doctors/hospitals concerned. Once it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court." 9. Thus, considering the aforesaid law laid down by Hon'ble Supreme Court, the State authorities are duty bound to reimburse the amount of the expenses incurred by the petitioner as per sanctioned rate in the Government Hospital. It is seen from the record that subsequently in the year 2010 the Birla Hospital has been granted recognition for treatment to the State Government employees also. The State authorities cannot shut down its liability and responsibility towards employee of the State Government and in case of emergency, even prior sanction for taking treatment in non recognized institute or Hospital is not required as has been