-1- Civil Writ Petition No.18620 of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 25, 2008. Arvind Kumar Garg ... Petitioner VERSUS State Bank of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. K.S. Dadwal Advocate, for the petitioner. Mr.I.P.S. Doabia, Advocate, for the respondents. -.- MOHINDER PAL, J. Claim in the present writ petition is for quashing the orders dated December 20, 2005 (Annexure P-5), May 18, 2006 (Annexure P-7) and August 11, 2006 (Annexure P-9) vide which request of petitioner Arvind Kumar Garg for sanction of 100 -2- Civil Writ Petition No.18620 of 2006. per cent medical reimbursement and advance payment as the cost of Nucleas Cochlear Implant of his son, namely, Aabhas Garg, who is profoundly hearing impaired (deaf and mute) to the extent of 110 dbs (100 per cent) hearing loss and is dependant upon the petitioner, was rejected and for issuing a direction to the respondents to approve and reimburse the cost of surgery for this implantation and further allow him to get his son operated from any recognized Hospital within the limit of Rs.9,78,000/-. The petitioner is working as a Deputy Manager, State Bank of India, Chandigarh (hereinafter referred to as the `respondent-Bank'). Aabhas Garg, son of the petitioner is suffering from profound, bilateral sensoneurary hearing loss of 110 dbs. (100 per cent). Aabhas Garg is holder of Bachelor of Engineering Degree in Electronics and Electrical Communication from the Punjab Engineering College. He subsequently passed various software/hardware related Certificate Courses in `A' Grade. Despite the fact that Aabhas Garg has acquired the higher qualifications, but the biggest hurdle in his employment is lack of oral communication and hearing handicap due to which prominent Government Departments, Public Sector and Private Sector Organizations are reluctant in providing him suitable job. Dr. Naresh K. Panda, E.N.T. Department, Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as `the P.G.I), after -3- Civil Writ Petition No.18620 of 2006. conducting all preliminary tests like Audiometry, C.T. Scan and M.R.I, recommended him to be a fit case for the Cochlear Implant Surgery vide Certificate dated November 18, 2005 (Annexure P-3). The implanted Electronic Cochlear replaces the dead Cochlear and transmits sound to the brain and gradually the patient can recognize/hear all the sounds and adapt it for speech development and the recipient can lead a normal life. Dr. Naresh K. Panda also recommended the most advance and suitable implant i.e Nucleus, for Aabhas Garg. Nucleus is an Australian Company which has its representative M/s. Medilife Technology at New Delhi. Nucleus freedom is the latest and World's best implant invented and developed till date. The price of the implant is Rs.9.78 lacs including the surgery and hospitalization/operation charges of Rs.30,000/- as mentioned by Dr.Naresh Panda in Certificate dated November 18, 2005 (Annexure P-3). The petitioner has relied upon Circular dated November 14, 2000 (Annexure P-1), which is issued by the respondent-Bank. In this Circular, it is mentioned as to with regard to which medicine the amount is reimbursable and in the said schedule at Serial No.10 it is mentioned that charges incurred for the replacement of certain original parts of the body such as limbs and valves etc. will be paid when these form a part of the treatment. In this Circular, `Cochelar Implant Surgery' has also been included in the list of admissible treatment. -4- Civil Writ Petition No.18620 of 2006. In para No.8 of the writ petition, the petitioner has mentioned about two instances where the respondent-Bank had sanctioned the amount for similar treatment. Various other instances of the other Banks and Government Departments have been given where reimbursement has been made of similar claims to the employees. It has been pleaded that the impugned orders (Annexures P-5, P-7 and P-9) smack mala fide on account of the fact that the persons who are favourites of the respondent-Bank have been enlarged the benefit of reimbursement whereas similar benefit is being denied to the petitioner only on hypothetical grounds. In the written statement filed by the respondents, it has been pleaded that as per the rules of the respondent- Bank, the cost of nucleus cochlear is not reimbursable. It has been further pleaded that as per the opinion of the Chief Medical Officer at the Corporate Centre of State Bank of India, “cochlear implant may be treated as implant of `Specialized' hearing aid. It is not absolutely necessary for life saving.” As regards the two cases where the respondent-Bank had accorded approval for reimbursement of the cost of cochlear implant, it is stated that it was by sheer mistake of the concerned authorities and the relevant service rules were ignored. The respondent-Bank is examining the accountability of the erring officials of the Hyderabad Circle of respondent- Bank to that effect. It has been further pleaded that a similar case -5- Civil Writ Petition No.18620 of 2006. of one of the officers in the Mumbai Circle for request of a cochlear implant for her son was declined for the reasons that the cost of `hearing aid' is not reimbursable in terms of the State Bank of India Officers Service Rules, 1992. Moreover, a cochlear implant is an improved device/substitute of a conventional hearing aid and, as such, its cost is not reimbursable. Regarding the Circular dated November 14, 2000 (Annexure P-1), relied upon by the petitioner, it has been stated that it is merely in the nature of guidelines issued by the Chandigarh Circle for the sanctioning authority to examine the claims of medical reimbursement submitted by the officers. The service rules of the respondent-Bank, as applicable to the petitioner, do not allow for such medical reimbursement. It is pleaded that the orders (Annexures P-5, P-7 and P-9) have been correctly passed. In the replication filed by the petitioner, besides reiterating the averments made in the writ petition, it has been averred that hearing and speech are the most important sensory organs of the body at par with sense of sight. The respondents are reimbursing claims for excimer laser surgery for the removal of glasses, for orthodontic treatment, hip and joint replacements, plastic surgeries and polio treatment etc., which are also not essentially life saving. It has also been stated in the replication that son of the petitioner has already been got operated on January 29, 2007, for Cochlear Implant at Apollo Hospital through proper channel and the petitioner has -6- Civil Writ Petition No.18620 of 2006. incurred an expenditure of Rs.9.48 lacs (being total cost of implant) plus Rs.25,000/- as cost of re-Chargeable Battery and Rs.31,000/- as Hospital expenses till date. The operation has been got conducted by arranging the funds from own sources and by obtaining loan from relatives and friends. The speech therapy of the son of the petitioner is continuing and the post-operative therapy will cost around Rs.50,000/-. A photo-copy of the certificate issued by the Operating Surgeon, Apollo Hospital, New Delhi, indicating cost of Cochelar implant has been attached with the replication as Annexure P-10. On January 31, 2008, the following order was passed by this Court after hearing the learned counsel for the parties:- “ The petitioner seeks medical reimbursement in respect of Cochlear Implant Surgery to augment hearing of his son. The said reimbursement has been declined by the respondents on the ground that it is hearing aid for which medical reimbursement is not payable. It is evident from the Certificate (Annexure P-3) issued by P.G.I, Chandigarh that despite use of hearing aids and speech therapy training, the patient is unable to -7- Civil Writ Petition No.18620 of 2006. hear and converse and therefore, implantation of Nucleus Cochlear Implant was suggested. From document on page 105 and 106, it is apparent that Cochlear Implant is not hearing aid. Hearing aids make sound louder and they are simply miniature amplifiers, whereas Cochlear Implant is an electronic device which restores partial hearing of the totally deaf. In view of the said document, we are of the opinion that action of the respondent-Bank in refusing the medical reimbursement may not be justified. The petitioner has taken such treatment in furtherance of recommendation of P.G.I. Counsel for the petitioner has also pointed out that medical reimbursement on account of such implantation has been given in Hyderabad Circle of the Bank. Mr. I.P.S. Doabia, counsel for the respondents seeks some time to get the matter re-examined. Adjourned to 25.2.2008. Copy of the order be given dasti.” -8- Civil Writ Petition No.18620 of 2006. Thereafter, affidavit of Mr. K.P. Ananth Krishna, Deputy General Manager, State Bank of India, Specialized Commercial Branch, Chandigarh, was filed along with Civil Miscellaneous No.3879 of 2008 wherein it has been stated that the matter was got re-examined by the respondent-Bank in pursuance to the order of this Court dated January 31,2008, but on re- examination the respondent-Bank is not in a position to reimburse the medical expenses. Further, it has been stated thus: “ a) It is not correct that hearing aids are simply miniature amplifiers and they make sound louder. b) anything which facilitates hearing is a hearing aid. c) Cochlear Implant facilitates hearing by by-passing defective cochlea, thereby improving sound transmission.” It is admitted by the respondents that as per Circular (Annexure P-1), issued by the respondent-Bank, expenditure incurred on `Cochlear Implant Surgery' is reimbursable. However, strangely enough, in the written statement it has been mentioned that the said Circular is merely in the nature of guide-lines issued by the Chandigarh Circle for the -9- Civil Writ Petition No.18620 of 2006. sanctioning authority to examine the claims of medical reimbursement submitted by the officers. It appears that the Hyderabad Circle of the respondent-Bank positively interpreted the Circular (Annexure P-1) and made reimbursement of Cochlear Implant to its employees. We do not appreciate the stand of the respondents that the approval for reimbursement of the cost of Cochlear Implant was accorded by the Hyderabad Circle of the respondent-Bank by sheer mistake. The respondents' plea is not only unsustainable but is totally bereft of any plausible reason. The rules/ instructions need to be construed liberally in favour of the employees, for granting them the relief. The technicalities should be avoided while dealing with human problems as there can be no mathematical precision while dealing with the same. The petitioner had been repeatedly making requests to the authorities for granting him permission to take treatment for his son, but the authorities continuously opposed it to the hilt, which is not at all acceptable. The respondents appear to have been using excuses in granting sanction to the petitioner for treatment of his son. There was no choice for the petitioner except to improve the life of his son by all efforts. Ultimately, the petitioner got his son operated for Cochlear Implant from Apollo Hospital by arranging the funds from own sources and by obtaining loan from relatives and friends. He had to incur an expenditure of Rs.9.48 lacs i.e total cost of implant, Rs.25,000/- as cost of re- -10- Civil Writ Petition No.18620 of 2006. Chargeable Battery, Rs.31,000/- as Hospital expenses, and Rs.50,000/- on post-surgery speech therapy, totalling Rs.10, 54, 000/- as is evident from the certificate issued by Dr.Ameet Kishore, E.N.T and Cochelar Implant Surgeon, Apollo Hospital (Annexure P-10). The petitioner did what was good for his son. It is fair and just that the respondents reimburse the petitioner the amount incurred by him on the Nucleus Cochlear Implant of his son For the aforesaid reasons, we hold that refusal of claim of the petitioner is unreasonable, unjust and arbitrary. The impugned orders are violative of Article 14 of the Constitution of India. We, accordingly, allow this writ petition and set aside the impugned orders declining sanction to the petitioner for medical reimbursement for Nucleus Cochlear Implant of his son. The respondents are directed to reimburse to the petitioner the amount incurred by him on the Nucleus Cochlear Implant of his son. The reimbursement be made to the petitioner within two months from the date of receipt of a copy of this order. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 25, 2008. ak