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2022 DIGILAW 365 (GUJ)

JUGALI BALDEVJI VAGHELA v. STATE OF GUJARAT

2022-03-08

A.S.SUPEHIA

body2022
JUDGMENT : A.S. SUPEHIA, J. 1. In the present writ petition, the petitioner has prayed for the following relief: “12(b) to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 07.07.2016 (Annexure-A) passed by the Respondent No. 2 herein and to further direct the respondents to reimburse the medical expenditure as prayed for by the petitioner in his original application along with interest. Or in the alternative. To issue appropriate writ, order or direction quashing and setting aside the impugned order dated 07.07.2016 (Annexure-A) passed by the Respondent no. 2 herein and to further direct the respondents to reimburse the medical expenditure as he is entitled to as per the government notification wherein the petitioner should be reimbursed his medical expenditure till the extent of fees as charged by normal empanelled hospitals.” 2. The petitioner is challenging the action of the respondent no. 2 i.e. the Director General of Police in refusing to reimburse the medical expenditure of the petitioner for the reason that the petitioner has not undergone the treatment in the certified or empanelled hospital. Thus, it is the case of the respondent authorities that the petitioner is not entitled for medical reimbursement since he has not taken or undergone treatment from the empanelled hospital. 3. The respondent authorities are not disputing that the petitioner has in fact undergone the medical treatment in two hospitals i.e. Sai Shraddha Hospital at Nadiad and the Zydus Hospital at Anand. 4. Learned advocate Ms. Shweta Lodha appearing for the petitioner has submitted that while attending the marriage function on 29.02.2016 at Taluka Memdavad, the petitioner suddenly suffered a severe cardiac attack and he was immediately rushed to the nearest hospital being Sai Shraddha Hospital at Nadiad and accordingly, he received primary treatment, however, looking to the deteriorating health and critical condition of the petitioner, doctor referred the petitioner to another hospital having requisite technology and expertise and hence, the petitioner was shifted to Zydus Hospital at Anand, which was the closest super specialty hospital from Nadiad. She has submitted that the petitioner was kept in Intensive Care Unit (ICU) and thereafter, was discharged after taking the medical treatment. 5. Learned advocate Ms. She has submitted that the petitioner was kept in Intensive Care Unit (ICU) and thereafter, was discharged after taking the medical treatment. 5. Learned advocate Ms. Lodha has submitted that the petitioner applied for the reimbursement of medical expenditure incurred by him under the provisions of the Gujarat State Services Medical Treatment Rules, 2015 and submitted a detailed application with all hospital medical bills, reports and claimed reimbursement of Rs. 1,91,729/-. She has submitted that by the impugned order, the respondent authorities has refused to give the medical reimbursement only for the reason that the hospital, in which the treatment was taken by the petitioner, was not included or empanelled in the notification dated 24.08.2015. She has submitted that such action of the respondent is contrary to the proposition of law. Further, reliance is placed by her on the judgment of the Supreme Court in the case of Shiva Kant Jha vs. Union of India, (2018) 16 SCC 187 . Thus, she has submitted that the impugned communication may be set aside and the respondents may be directed to reimburse the medical expenditure. 6. In response to the aforesaid submissions, learned AGP Mr. Rohan Shah has submitted that the impugned order does not require any interference since the petitioner admittedly did not take treatment in the empanelled hospitals, which are specified in the notification dated 24.08.2015. He has further submitted that there were also two hospitals like DZ Patel Cardiology Hospital at Nadiad and DDMM Heart Institute at Kheda, however, the petitioner did not undergo the treatment in the said empanelled hospitals and hence, the writ petition may not be entertained. 7. I have heard the learned advocates appearing for the respective parties. 8. The respondent authorities have not disputed that the petitioner suffered a medical emergency while he was attending the marriage function on 29.02.2016 and he was immediately rushed to the nearest hospital by his friends and relatives and admitted in Sai Shraddha Hospital at Nadiad. They have also not disputed that the petitioner was immediately shifted to Zydus Hospital at Anand, looking to his deteriorating health and critical condition. The medical certificate issued by Sai Shraddha Hospital dated 09.03.2016 reflects that the petitioner was admitted in that hospital and he was shifted on 27.02.2016. They have also not disputed that the petitioner was immediately shifted to Zydus Hospital at Anand, looking to his deteriorating health and critical condition. The medical certificate issued by Sai Shraddha Hospital dated 09.03.2016 reflects that the petitioner was admitted in that hospital and he was shifted on 27.02.2016. The Discharge Summery of Zydus Hospital also reflects that he was on the very same date admitted at Zydus Hospital, Anand i.e. on 27.02.2016. Thus, the petitioner was taken to the aforesaid hospitals in a medical emergency situation by his friends and relatives. It was not expected from the friends and relatives that they would be having the list of the empanelled hospitals in their pockets and only after verifying that list, such relatives and friends would have thought it fit to admit the petitioner in the empanelled hospital. The impugned communication dated 07.07.2016 suffers from non-application of mind and the request of the petitioner for claiming medical reimbursement has been rejected without looking to the medical emergency situation of the petitioner. 9. It is not expected from any government employee to keep the list of the empanelled hospitals ready in life and death situation. The Supreme Court has been occasionally reminding that the action taken by the respondent authorities in denying the medical reimbursement, is uncalled for since the reimbursement or claim cannot be denied on such technical grounds in view of the fact that in an emergency situation, the petitioner or the government employee can look for the best treatment they would get from a specialized hospital. 10. The Supreme Court in the case of Shiva Kant Jha (supra), while dealing with in a similar issue, has held thus: “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. 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. 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. 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.” 11. Thus, in light of the observations made by the Supreme Court in the case of Shiva Kant Jha (supra), the impugned communication dated 07.07.2016 is hereby quashed and set aside. The respondents are directed to reimburse the medical expenditure of the petitioner as per the fees or charge of the empanelled hospitals. The reimbursement amount shall be paid within a period of eight weeks from the date of receipt of the writ of this judgment. The aforesaid amount shall be paid with 6% interest. It is clarified that, if the aforesaid amount is not paid within the time stipulated by this Court, the same shall carry an interest of 12%. 12. The present petition is allowed. Rule is made absolute.