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2019 DIGILAW 947 (JHR)

Krishna Kumar Sinha v. State Of Jharkhand

2019-04-29

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - The writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the order dated 20.03.2015 (Annexure-3) passed under the signature of Director (Primary Education Directorate) Human Resources Development Department, has been assailed, by which the claim for medical reimbursement, has been rejected on the ground that institution where the wife of the petitioner has been treated under the list of the institution for allowing reimbursement or prior to admission in the aforesaid institution, no permission has been obtained for treatment. 2. It is the case of the petitioner that his wife who was posted as Assistant Teacher in Middle School, Marwari Tola, Chatra, who was patient of Blood Sugar, since 2004 and due to ill health, she was on causal leave from 29.04.2014 to 30.04.2014 and on 30.04.2014, she became seriously ill and as per the advise of local doctor, wife of the petitioner reached to Ranchi for better treatment but on the way, she became unconscious and condition was deteriorating for which, immediately without any delay she was admitted in Orchid Medical Centre, Ranchi, where the doctors have said that her condition is critical but they are trying their level best but she has ultimately been declared dead on 02.06.2014, thereafter the petitioner has made a representation to the District Superintendent of Education, Chatra on 07.07.2014 for claim of the medical expenditure incurred upon the treatment of his wife and the District Superintendent of Education, Chatra has forwarded the representation of the petitioner to the Director, Primary Education, Ranchi who has taken decision by denying the claim for medical reimbursement on the ground that there is no permission from the State Medical Council and the Orchid Hospital, Ranchi, is under the list of institution for reimbursement of the medical expenditure incurred in the treatment. 3. 3. It is the case of the petitioner that even though the institute where the wife of the petitioner has been treated is not recognized by the State Government that cannot be the ground for denying the medical reimbursement keeping this fact into consideration, wherein specific stand has been taken at paragraph-7 that due to emergent situation, since the condition of his wife was deteriorating, therefore, medical treatment was required and hence having no option to apply his mind and at that moment, he has admitted his wife to the Orchid Medical Centre, Ranchi, where ultimately she has died on 02.06.2014 and therefore, the authority has rejected the aforesaid claim, has not acted as like that of a welfare state. Learned counsel for the petitioner has relied upon the order passed by the Hon''ble Division Bench of this Court in Letters Patent Appeal No.439 of 2008 which was disposed of vide order dated 07.10.2009. (Reported in 2010 (2) JCR 64) 4. Mr. Prashant Pallav, learned G.A.-IV appearing for the State of Jharkhand, has submitted that the petitioner has not challenged the decision taken by the State Government as contained under clause No.5 to the letter No.354(10) dated 15.09.2006, whereby and whereunder , the medical reimbursement only be extended, if the treatment would be taken in the institution which is approved by the State Government or the treatment has been sanctioned by the duly constituted State Medical Board. His further submission is that the petitioner, since relying upon the judgment passed by the Hon''ble Division Bench of this Court in Letters Patent Appeal No.439 of 2008, to come out into the purview of the aforesaid judgment on the basis of the factual aspect involved therein, he has not brought on record any medical certificate showing the situation of the wife of the petitioner as that of emergency, warranting him to immediately rushed to the Orchid Hospital, Ranchi, therefore, the aforesaid order passed in the Letters Patent Appeal No.439 of 2008 is not applicable in the facts and circumstances of the instant case. 5. 5. Having heard learned counsel for the parties and after appreciating their rival submissions, it needs to refer herein about the orders dated 08.03.2019 and 10.04.2019, whereby and whereunder, the State-Respondent has been directed to file counter-affidavit for which, four weeks'' time was allowed as would be evident from order dated 08.03.2019, thereafter the matter was listed on 10.04.2019 as directed vide order dated 08.03.2019 but since, no counter-affidavit has been filed, therefore, the matter was adjourned on being prayed by the learned State Counsel, making it clear that no further adjournment shall be granted and the writ petition shall be disposed on the basis of the material available on record on the next date. Thereafter, the matter was posted on 29.04.2019 (today), but no counter-affidavit has been filed, however, learned G.A.-IV, appearing for the State of Jharkhand, has sought for adjournment to file counter-affidavit but this Court has refused the aforesaid prayer, in view of the specific judicial order passed in this regard vide order dated 10.04.2019, whereby and whereunder, it was made clear that no further adjournment shall be granted and the writ petition shall be disposed of on the basis of the material available on record, therefore, the matter has been heard on merit in pursuant to the aforesaid order, in view thereof, both the parties have argued out the case at length. 6. This Court after going across the order dated 20.03.2015 passed by the Director Primary Education, has found that the State Government has come out with a decision/direction as contained in letter No.354(10) dated 15.09.2006, whereby and whereuner it has been decided that the medical reimbursement would be granted, if the treatment would be done in such private hospitals which would be authorized in this regard time-to-time by a decision taken by the competent authority or the treatment has been recommended by the duly constituted Medical Board. 7. 7. The Factual aspect involved in this case is that the wife of the petitioner who was working as Assistant Teacher and posted at Chatra was on casual leave from 29.04.2014 to 30.04.2014 but all of a sudden on 30.04.2014 she became seriously ill and as per the advise of the local doctor, she has rushed to Ranchi along with her husband but on the way, she became unconscious and the condition was deteriorating and therefore, while reaching to Ranchi, she has admitted in Orchid Medical Centre, Ranchi, where her condition is critical, thereafter, she has died on 02.06.2014. The petitioner after death of his wife, has made a due representation before the competent authority of the State Government for medical reimbursement but the same has been negated by the impugned order (impugned). 8. The question which has been raised by the petitioner that in case of emergent situation, in such a situation, considering the gravity of the disease or its suffering, the patient is not in a position to wait for such hospital which is recommended by the State authority for its treatment, what course would be taken and if the treatment would be done, contrary to the list decided by the State authority in this regard whether the medical reimbursement would be denied to such situation? 9. It is not in dispute that if any decision has been taken by the State Government, the authority is supposed to exercise the jurisdiction on the basis of the said decision but herein the situation, since pertains to the medical reimbursement and as such the treatment depends upon the nature of the disease and the situation which was being faced by the ailing person during the relevant time. 10. It cannot be disputed that suffering of ailing person cannot be assessed by other rather suffering is to be felt by the sufferer who is suffering from ailment either with the disease like diabetes or any type of the disease, since the suffering cannot be defined and assessed by the others who are not sufferee. The gravity of the said suffering is also to be assessed in a situation which was there at the relevant time. The gravity of the said suffering is also to be assessed in a situation which was there at the relevant time. This fact is being mentioned herein in order to respond to the argument advanced by the learned G.A.-IV appearing for the State of Jharkhand, that the quantum of suffering has not been stipulated by the petitioner, since no medical certificate has been produced. The question is that the medical certificate would only come after the patient will be discharged from the hospital, it might be that on the day, when the person was hospitalized, the condition was so serious warranting for admission to a hospital which was easily approachable but suppose the suffering has rectified by the proper medical treatment, adverse decision cannot be taken by taking the plea that the situation was not emergent on the day when there was a hospitalization of the sufferer. Therefore, suffering is to be assessed on the very day, when the person was suffering from ailment. 11. This Court after going across the specific stand taken by writ petitioner at paragraph-7 that his husband (sic) wife was suffering from diabetes and due to that her condition was became very serious which lead the petitioner to come to Ranchi from Chatra, the condition was so deteriorating, the petitioner having no option to take decision by going across the list which was decided by the State authority for its medical reimbursement and that cannot be the situation because if the attendant would scrutinize the list for treatment there might be likelihood that in the meanwhile the casualty like that of death occur, therefore, in that situation there cannot be a choice to opt to go for an institute which was recognized by the State Government and considering the said predicament as also taking into consideration, the specific stand taken by the petitioner at paragraph-7 which has not been responded by the State Respondent as indicated above, therefore, the statement made at paragraph-7 of the writ petition, is treated to be an admission on the part of the State authority and taking into consideration that aspect of the matter the petitioner has admitted at Orchid Medical Centre, Ranchi, therefore, it cannot be said that he will be deprived from the benefit of the medical reimbursement. The same view has been taken by this Court in Letters Patent Appeal No.439 of 2008. The same view has been taken by this Court in Letters Patent Appeal No.439 of 2008. Reference also needs to be made of a judgment rendered by the Hon''ble Apex Court in the case of Shiva Kant Jha v. Union of India, (2018) AIR SC 1975 , wherein the Hon''ble Apex Court while dealing with the denial of the claim of the appellant therein under the Central Government Health Scheme has been pleased to deprecate the stand of the authority by observing therein at paragraph Nos.13,14 and 15 which reads as hereunder:- "13. It is a settled legal position that the Government employee during his life time 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. 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. 14. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. 14. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the Central Government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time-to-time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals. 15. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the Central Government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only." 12. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only." 12. In view of the factual aspect involved in the matter and after going across the order passed by the Hon''ble Division Bench of this Court in Letters Patent Appeal No.439 of 2008, wherefrom, it has transpired that the Division Bench has taken care of the fact regarding the nature of suffering and the emergent situation occurring on the date of hospitalization and hence, applying the said ratio rendered by the Hon''ble Apex Court in the case of Shiva Kant Jha v. Union of India (supra), the writ petition also deserves to be allowed, accordingly, the impugned order dated 20.03.2015 (Annexure-3), is quashed. 13. In view thereof, the Respondents are directed to pay the amount as claimed by the petitioner within a period of three months'' from the date of receipt of copy of this order. 14. It is made clear that this order will confine to this case only. 15. Accordingly, the writ petition stands disposed of.