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2024 DIGILAW 93 (ALL)

Ram Prasad Dwivedi v. State of U. P.

2024-01-09

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. Heard Mr. Girish Chandra Yadav, learned Counsel for the petitioner, Mr. Vimlesh Kumar Rai, learned Counsel appearing on behalf of respondent Nos. 2, 3 and 4 and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing for respondent No. 1. 2. The petitioner, Ram Prasad Dwivedi is a retired Assistant Engineer. He was employed with the Uttar Pradesh Jal Nigam, and after its division, is regarded a part of the Uttar Pradesh Jal Nigam (Urban). He retired from service on 30.09.2008, when the Nigam was still a unified entity. The petitioner is now a 70 year old man, and as he says, lost vision in both his eyes to Glaucoma. The petitioner consulted an E.N.T. Doctor for a problem with his throat, who, after a clinical evaluation and consideration of pathological reports, referred him to the Mahamana Pandit Madan Mohan Malaviya Cancer Centre, Varanasi (for short ‘the MPMMCC’) on 07.11.2021. The petitioner went to the MPMMCC, where after a thorough check-up from 13.11.2021 to 11.01.2022, he was diagnosed with Lymphoepithelial Carcinoma, a cancer. He underwent surgery followed by radio and chemotherapy, that was necessary to treat the deadly disease. The petitioner says that his treatment is still continuing. It is averred in Paragraph No. 11 of the writ petition that the petitioner informed the Personal assistant/ Executive Engineer in the office of the Chief Engineer, U.P. Jal Nigam (Urban), Prayagraj Zone, Prayagraj through an application dated 13.01.2022 that he was undergoing treatment for his cancer at the MPMMCC and Homi Bhabha Cancer Hospital, Varanasi. The petitioner then submitted his treatment plan and record of admission for the purpose of surgery at the MPMMCC to the Personal Assistant to the Chief Engineer aforesaid, whereupon the Personal Assistant is said to have written a letter to the petitioner on 31.01.2022 that the MPMMCC is not a government hospital. A copy of this letter is not on record. 3. Nevertheless, it is the petitioner’s case that he posted the office of the Chief Engineer with details of his treatment, that includes his treatment file, card etc. on 22.02.2022, that were duly received by the office of the Chief Engineer, U.P. Jal Nigam (Urban), Prayagraj on 23.02.2022. The petitioner indicated that the MPMMCC is a government hospital, being a grant-in-aid institute of the Department of Atomic Energy, Government of India. on 22.02.2022, that were duly received by the office of the Chief Engineer, U.P. Jal Nigam (Urban), Prayagraj on 23.02.2022. The petitioner indicated that the MPMMCC is a government hospital, being a grant-in-aid institute of the Department of Atomic Energy, Government of India. Upon receipt of the said letter dated 23.02.2022, the Personal Assistant to the Chief Engineer, U.P. Jal Nigam (Urban), Prayagraj Zone, Prayagraj responded vide memo dated 24.02.2022, bearing No. 550@fpfdRlk ÁfriwfrZ@18 declining the petitioner’s claim on the ground that the MPMMCC is a private hospital and a Branch of the Tata Memorial Centre, Mumbai. It was indicated that the petitioner’s claim for medical reimbursement cannot be paid in accordance with the office Memo No. 966@,lh&ys[kk lkekU;@fpŒ ÁfrŒ@309@20 fnukad 13-07-2020 issued by the Managing Director, U.P. Jal Nigam, Lucknow, which prohibits reimbursement of medical claims for treatment availed in private hospitals. The material part of the office memo aforesaid reads: 4. It is the petitioner’s case that his claim has been rejected solely on the ground that he took treatment to cure his cancer at the MPMMCC, which the respondents regard as a private hospital. It is also the petitioner’s ground to assail the denial of his claim that the view that for treatment taken at a private hospital, no medical reimbursement can be claimed, is based on a mere memo issued by the Managing Director of the U.P. Jal Nigam, whereas the right to claim medical reimbursement flows from The Uttar Pradesh Government Servants (Medical Attendance) Rules, 2011 (for short, ‘the Rules of 2011’). The petitioner has prayed for a mandamus ordering the respondents to reimburse his medical expenses to the tune of Rs.3,64,303/-spent on his treatment within a stipulated period of time. 5. When this petition came up for admission on 07.07.2023, this Court passed a detailed order, requiring the Chief Engineer to file his personal affidavit, which would be read as a counter affidavit. The Chief Engineer (Prayagraj Zone), U.P. Jal Nigam (Urban), Prayagraj filed a counter affidavit dated 12.07.2023, where the stand taken, that would shortly be noticed, seem to be very obstructive, rather than fair and facilitative in a matter like the one in hand. This Court, therefore, passed a further order dated 12.07.2023, requiring the Principal Secretary, Ministry of Urban Development, Government of U.P., Lucknow to file his personal affidavit. This Court, therefore, passed a further order dated 12.07.2023, requiring the Principal Secretary, Ministry of Urban Development, Government of U.P., Lucknow to file his personal affidavit. The material part of this Court’s order dated 12.07.2023 reads: “A counter affidavit has been filed on behalf of respondent nos. 2, 3 and 4, where the stand maintained is strikingly bureaucratic. The respondents insist that be it cancer and howsoever a killer disease it might be, the scheme for reimbursement of medical expenses would require the petitioner to be treated at a Government Hospital. The respondents have refused to acknowledge the Mahamana Pandit Madan Mohan Malaviya Cancer Centre, Varanasi as a Government Hospital, though an establishment of TATA Memorial Centre, which is a grant-in-aid institute of the Department of Atomic Energy, Government of India. Before proceeding to hear the matter, this Court considers it appropriate to know the stand of the Government. In this regard, let the Principal Secretary, Ministry of Urban Development, Government of U.P., Lucknow file his personal affidavit by Monday i.e. 17.07.2023, answering all that is said by this Court in the order dated 07.07.2023 extracted above.” 6. In compliance, the Principal Secretary, Ministry of Urban Development, Government of U.P., Lucknow has filed his affidavit dated 16.07.2023, where a seemingly reasonable stand has been taken. Before proceeding further, this Court must remark that the Chief Engineer’s stand in the counter affidavit filed on behalf of respondent Nos.2, 3 and 4 is far from one that can be commended. He has raised an objection that the petitioner has not challenged the order dated 24.02.2022 and has merely sought a mandamus. A writ petition under Article 226 of the Constitution is essentially an equitable remedy and if a case is made out, it does not much matter which particular writ has been sought by the petitioner, unless, of course, the remedy sought is misconceived. A writ of mandamus is a general writ of the widest scope, which may be issued to remedy injustice wherever found. The objection taken by the respondents, under the circumstances, is one stated to be rejected. It is then averred in the counter affidavit that the Rules of 2011 do not automatically apply to the Nigam. A writ of mandamus is a general writ of the widest scope, which may be issued to remedy injustice wherever found. The objection taken by the respondents, under the circumstances, is one stated to be rejected. It is then averred in the counter affidavit that the Rules of 2011 do not automatically apply to the Nigam. These have been adopted by the Board of Directors of the U.P. Jal Nigam in its 164th Meeting, and, with permission of the Chairman of the U.P. Jal Nigam, an office memorandum dated 28.06.2016 was issued by the Managing Director, U.P. Jal Nigam in order to give effect to the Rules of 2011. A copy of the office memorandum dated 28.06.2016 has been referred to. 7. We have perused the office memorandum dated 28.06.2016 issued by the Managing Director, U.P. Jal Nigam. It would be profitable to refer to the aforesaid memo (relevant parts), which read: 8. This Court is of opinion that it would also be of relevance to refer to Paragraph Nos.1.11 and 1.12 of the Scheme for reimbursement framed vide memo dated 28.06.2016. These read: 9. What we find from a reading of the Scheme framed by the Managing Director vide memo dated 28.06.2016 is that the Rules of 2011 have indeed been adopted by the Board of Directors of the U.P. Jal Nigam. The earlier restrictions that were imposed regarding non-provision of medical reimbursement for treatment availed at private hospitals have also been relaxed and expenses incurred in treatment availed at private hospitals, can also be reimbursed. A perusal of Paragraph No. 3.13 and its sub-paragraphs shows that for the treatment of complicated and serious diseases, where treatment is not available with government hospitals or the referring institutions, an employee or a retired employee or other beneficiary under the Scheme, may be referred by the specified functionaries of a government hospital or the referring institution to such such private hospital for treatment, which the State or the Central Government has recognized. This is provided specifically in sub-Paragraph No. 3.3.1 of the Scheme carried in the memo dated 28.06.2016. Sub-Paragraph No. 3.3.2 provides the rate of reimbursement, which shall be limited to the rate at which costs would be incurred at the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow, if the treatment is taken in a private hospital within the State of Uttar Pradesh. Sub-Paragraph No. 3.3.2 provides the rate of reimbursement, which shall be limited to the rate at which costs would be incurred at the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow, if the treatment is taken in a private hospital within the State of Uttar Pradesh. The rate, according to which reimbursement would be made, if the treatment is taken in a private hospital outside the State, is one that would be in accord with the rates, the treatment would cost if availed at the All India Institute of Medical Sciences, New Delhi. Sub-Paragraph No. 3.3.3 of the Scheme provides that if the treatment necessary is not available with the SGPGI or the AIIMS, the expenses incurred in the treatment would be reimbursable to the extent actually incurred at the private hospital. Sub-Paragraph No. 3.3.4 stipulates that for the purpose of the Scheme in order to avail treatment (which really means reimbursement) at a private hospital, prior permission of the Chairman of the Nigam would be necessary. 10. This Court must remark that the contention on behalf of the respondents founded on their stand in the counter affidavit filed on behalf of respondent Nos.2, 3 and 4 that no reimbursement claim can be entertained unless the Head of Office/ Drawing and Disbursing Officer is informed of the treatment being taken within 30 days of its commencement as required by sub-Paragraph No. 3.1.2, is not at all tenable. The reason is that Paragraph No. 3.1 of the Scheme, of which sub-Paragraph Nos.3.1.2 is a part and envisages a limitation of 30 days regarding intimation to be given to the Head of Office from the date of commencement of the beneficiary’s treatment, is one which deals with treatment during emergencies. It has no application to the case of special treatment, that is the subject matter of Paragraph No. 3.3 of the Scheme. Special treatment relates to complicated and serious ailments, as already noticed. In Paragraph No. 3.3 of the Scheme and all its sub-Paragraphs, there is no rule of limitation envisaged, upon which learned Counsel for the respondents has much harped to discredit the petitioner’s claim. 11. This Court does notice that there are certain matters, which indeed have not been observed in compliance by the petitioner to claim reimbursement. In Paragraph No. 3.3 of the Scheme and all its sub-Paragraphs, there is no rule of limitation envisaged, upon which learned Counsel for the respondents has much harped to discredit the petitioner’s claim. 11. This Court does notice that there are certain matters, which indeed have not been observed in compliance by the petitioner to claim reimbursement. There is no recommendation by a government hospital or a referring institution envisaged under the Scheme, recommending the petitioner’s case for care in a private hospital. The other is, that there is no prior permission of the Chairman of the Jal Nigam obtained by the petitioner. This issue about non-referral by a competent doctor representing the referring institution or a government hospital was also a point much canvassed on behalf of the respondents. This submission is not altogether without force. At the same time, we think that though in many a case, strict adherence to Paragraph No. 3.3 may be necessary, but the rules there are not inflexible. After all, the respondents do not dispute the fact that the Board of the Jal Nigam have adopted the Rules of 2011 conferring the benefit of medical reimbursement upon their employees, the retired employees and their families. The regulation of that right through the Scheme that has been framed vide memo 28.06.2016 by the Managing Director with the Chairman’s permission, cannot be construed in a manner that palpably genuine claims are defeated for the non-observance of a technicality. Many a time, a genuine claimant may not be aware of the requirements of this Scheme tucked away in an office memo issued by the Managing Director of the Jal Nigam. After all, it is not a statute or a notification of the Government, of which constructive knowledge may be attributed to one and all. Even if it were, the Rules of 2011 being adopted by the Jal Nigam and the Scheme being one to regulate and effectuate the rights of an employee or ex-employee to claim medical reimbursement, the terms of the Scheme must receive a liberal construction that advances its purpose. It cannot and ought not to be construed strictly against the employee denying him/ her the benefit of its coverage. The true test is if the employee’s or the ex-employee’s claim by evidence and upon verification is a genuine case, where the facility of medical reimbursement ought to be extended. 12. It cannot and ought not to be construed strictly against the employee denying him/ her the benefit of its coverage. The true test is if the employee’s or the ex-employee’s claim by evidence and upon verification is a genuine case, where the facility of medical reimbursement ought to be extended. 12. The present case is one where the petitioner is a 70 year old retired Assistant Engineer and if the papers of his treatment that he has annexed at Pages 15 to 49 of the paper-book, are to be believed, he appears to be a cancer patient, who has been extensively treated at the MPMMCC, a unit of Tata Memorial Centre, Mumbai. There are documents of the expenses incurred in the treatment as well. These are always open to verification by the respondents, which they could and must do before they accept the petitioner’s claim for reimbursement. In a situation like the present case, if the petitioner is indeed a cancer patient, who in his old age, has incurred substantial expense for treating cancer, this Court does not think that the few technical lapses in adhering to the requirements of Paragraph No. 3.3 of the Scheme, carried in the memo dated 28.06.2016, should result in the rejection of his claim. 13. This Court must also remark that apart from the other technicalities envisaged under Paragraph No. 3.3, there is also a stand taken on behalf of the respondents that the petitioner has not demonstrated the non-availability of treatment for his disease in any government hospital or referring institution. This Court thinks that faced with a disease, as dreadful as cancer, where there are no second chances that can be taken, trusting oneself to the care of the MPMMCC, which is a unit of the Tata Memorial Centre, Mumbai is an unexceptionable course. The formality of proving that the treatment is not available in a government hospital, must also be considered liberally and dispensed with, where facts warrant. Once the respondents accept the liability for medical reimbursement, and there is a reasonable safe treatment available with a reputed specialized institution, treating cancer, which is a unit of the Tata Memorial Centre, Mumbai, to say that there is no certification about treatment for the disease not being available with a government hospital, is a stand that can hardly be accepted. 14. 14. This Court is also mindful of the fact that ex facie the petitioner has not come up with a claim for his treatment, that is extravagant or inflated. It seems to be a reasonable expense for treatment of the deadly disease. This Court would not have hesitated to issue a mandamus straight away, ordering the respondents to reimburse the medical expenses, but happily in the personal affidavit filed by the Principal Secretary, Urban Development Department, Government of U.P., Lucknow, there is a very candid stand taken, which we do appreciate. In Paragraph Nos.9 and 10 of the personal affidavit, it is averred: “9. That it has also been assured in the attached report of the Managing Director, U.P. Jal Nigam (Urban) that if the claim of medical reimbursement is submitted again by the petitioner on the prescribed proforma, its examination will be done as per the provisions of office 28.06.2016 dated 28.06.2016 thereafter, further memorandum dated proceeding will be initiated. 10. That after proper consideration of the documents of the case, answering respondent no. 1 is of the opinion that while the office memorandum dated 28.06.2016 regarding the permissibility of reimbursement of medical expenses with the approval of the Board of Directors of U.P. Jal Nigam is effective, then the entire reimbursement claims should be examined under the provisions of the said office memorandum and not under another office memorandum dated 13.07.2020 issued by the Managing Director without making any reference of the said office memorandum dated 28.06.2016. As assured in the report of U.P. Jal Nigam (Urban), examination of the petitioner’s claim will be done under the provisions of the office memorandum dated 28.08.2016, if submitted again, necessary instructions have also been given to the Managing Director, Uttar Pradesh Jal Nigam (Urban) by the Government on 14.07.2023 itself. Copy of the instruction issued by the Government is being filed herewith and marked as Annexure No. PA-2 to this affidavit.” 15. There is also on record memo No. 246/9-3-2023 issued by the Special Secretary, Government of U.P. and addressed to the Managing Director, U.P. Jal Nigam (Urban), Lucknow. This memo has been issued specifically with reference to the petitioner’s case and in deference to the directions issued by this Court in the present writ petition at interlocutory stages. The relevant part of the memo dated 14th July, 2023 reads: 16. This memo has been issued specifically with reference to the petitioner’s case and in deference to the directions issued by this Court in the present writ petition at interlocutory stages. The relevant part of the memo dated 14th July, 2023 reads: 16. Looking to the stand of the Principal Secretary and the Government in the matter, this Court is of opinion that ends of justice would be met by requiring the petitioner to submit his claim afresh in the prescribed proforma, annexed as Schedule ^^[k** to office Memo No. 2126@,lhŒ ys[kkŒ ¼lkŒ½@fpŒ ÁfriwfrZ@309 fnukad 28-06-2016 issued by the Managing Director, U.P. Jal Nigam, Lucknow within a month of the date of receipt of a certified copy this judgment to the Chief Engineer (Prayagraj Zone), U.P. Jal Nigam (Urban), Prayagraj. The same shall be transmitted forthwith to the competent Authority, who will take appropriate steps to consider sanctioning medical reimbursement to the petitioner, bearing in mind the guidance in this judgment and the stand taken in Paragraph Nos.9 and 10 of the Principal Secretary’s affidavit dated 16.07.2023. The petitioner’s claim shall be disposed of within a period of one month of the date that it is submitted by the petitioner to the Chief Engineer, as directed hereinabove. 17. This writ petition is allowed in part in terms of the above orders. 18. There shall be no order as to costs.