In the High Court of Judicature at Madras Date : 11..03..2010 Coram : The Hon'ble Mr. Justice V. Dhanapalan Writ Petition No: 3391 of 2009 K. Pankajakshan No: 2/675, Vivekananda Street No: 5, S.R. Nagar South, Aandipalayam Post, Mangalam Salai, Tiruppur, Coimbatore District. ... Petitioner -vs- 1. The Secretary to Govt. Finance (Pension) Dept. State of Tamil Nadu, Fort St. George, Chennai – 600 009. 2. The Principal Secretary, Municipal Administration, and Water Supply Dept. Fort St. George, Chennai – 600 009. 3. The Director, Local Funds Audit, IV floor, Kuralaam, Chennai – 600 108. ... Respondents .. .. .. Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records relating to the order passed by the 3rd respondent in K:/K:/e/X/t./(4)-19317-2008 24.7.2008 which has been signed by them on 12.08.2008 quash the same thereby directing the respondents to sanction the Medical reimbursement eligible to the petitioner as per the Government Order for the surgery conducted on the petitioner as per law. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr. A.R. Nixon For respondents : Mrs. Sneha Government Advocate .. .. .. O R D E R The prayer in this writ petition is filed for issuance of a writ of certiorarified mandamus calling for the records relating to the order passed by the 3rd respondent in K:/K:/e/X/t./(4)- 19317-2008 which has been signed by them on 12.08.2008 quash the same thereby directing the respondents to sanction the Medical reimbursement eligible to the petitioner as per the Government Order for the surgery conducted on the petitioner as per law. 2. The brief facts which are necessary for the disposal of this writ petition are as under : " Petitioner is a retired pensioner having retired as Electrician of Tirupur Muncipality on 31.05.2002 on reaching the age of superannuation. It transpires that petitioner was admitted in PSG Hospital, Coimbatore, for Coronary Artery disease on 28.02.2005 and underwent a surgery for Coronary Artery disease – single vessel diabetics mellitus and systemic hypertension and underwent bypass grafting. He was discharged from the hospital on 12.03.2005. It is stated that petitioner had incurred a sum of Rs.92,338/- towards medical expenses. As he was entitled for medical reimbursement, he had sent an application to the 3rd respondent herein along with all the necessary documents to sanction medical reimbursement. However, the 3rd respondent by the impugned order rejected the claim of the petitioner on the ground that during the period on which the petitioner was operated that hospital was not included in the accredited list of hospitals and hence, petitioner is not entitled for reimbursement. Challenging the said order, petitioner is before this Court in this writ petition." 3. Heard the learned counsel appearing for the petitioner and the learned Government Advocate. Learned counsel for the petitioner would vehemently contend that at the first instance, the respondents have not given an opportunity to the petitioner to explain as to under what circumstances he was compelled to take treatment at the particular hospital and the denial of the medical reimbursement due to the employee would defeat the very object of the scheme. According to the petitioner as the life saving operation was performed on the petitioner on an emergent situation, the respondents cannot deny the reimbursement on flimsy grounds. Learned counsel for the petitioner would also place reliance on a decision rendered by a learned Single Judge of this https://hcservices.ecourts.gov.in/hcservices/ Court on 19.11.2008 in W.P. No: 37092 of 2007 in support of his contention. 4. On the other hand, the learned Government Advocate would submit that the petitioner took treatment in the particular hospital from 28.02.2005 to 12.03.2005 and claimed medical reimbursement. But, the hospital has been included in the accredited list on and from 01.04.2005 only and as the period during which the petitioner took treatment is prior to the date on which the hospital was included in the list, petitioner is not entitled to the medical reimbursement as sought for by him. She would also vehemently contend that from the discharge summary it is seen that the petitioner's condition was stable but still he has chosen to get himself admitted in a hospital which is not in the approved list of hospital and hence, petitioner's claim for reimbursement cannot be entertained. 5. As rightly pointed out by the learned counsel for the petitioner earlier this Court had an occasion to deal with a similar issue in W.P. No: 37092 of 2007. In that writ petition, this Court held that, " 6. It is not disputed that the petitioner is regularly contributing to the Tamil Nadu Government Employees Health Fund Scheme. Similarly, the treatment taken by the petitioner is also not disputed. 7. Similar issue, with regard to the treatment taken in the unlisted hospitals, mode of treatment not included in the Government Orders and belated applications submitted and whether the same are to be considered or not, came up for consideration before this Court in the following Judgements passed by me as well as by other Learned Judges:- (a) K.Subramanian K. V. Special Commissioner and Commissioner of Treasuries and Accounts reported in 2006 (2) MLJ 267; (b) C.Nagamuthu V. State of Tamil Nadu reported in 2006(2) MLJ 747; (c) G.Elavazhagan v. Commissioner of Treasuries and Accounts, reported in (2006) 4 MLJ 627; (d) E.Ramalingam V. Director of Collegiate Education reported in 2006 (3) MLJ 641 [D.Murugesan, J]; (e) K.Balaswami V. Director of Pension reported in 2007 (3) MLJ 385 [P.Jothimani, J]; (f) K.Mani V Secy to Govt, Health & Family Welfare Dept. reported in 2007(3) MLJ 34 [P.Jothimani, J]; (g) K.Sundararaj V. Mgmt. of T.N.S.T.Corporation (Madurai) Ltd, reported in 2006 4 MLJ 1183 [P.Jothimani,J]; and https://hcservices.ecourts.gov.in/hcservices/ (h) Division Bench Judgment of this Court in W.A.No.280 of 2005, dated 04.07.2005. (i)Division Bench Judgment of Madurai Bench of Madras High Court in W.P(MD)No.981 of 2008 dated 7.2.2008. In all the above cases, the claim made by the petitioners were sustained and all those orders are implemented. 8. The Supreme Court has recognized the right to health as Fundamental Right under Article 21 of the Constitution of India in the decision in State of Punjab and others v. Mohinder Singh Chawla and others reported in AIR 1997 SC 1225 and again in the case of Paschin Banga Khet Mazdoor Samity and others v. State of W.B and another reported in AIR 1996 SC 2426. 9. In yet another decision of the Supreme Court reported in (2004) 13 SCC 562 (Suman Rakheja v. State of Haryana), the husband of the petitioner who had developed paralytic stroke on the left side of the body due to blood clotting on the right side of the brain, was admitted in an emergent condition in a private hospital. The Supreme Court, taking note of the emergent nature of the treatment, granted medical reimbursement to the petitioner therein." 6. Considering the facts and circumstances of the present case and in the light of the above referred to decisions of the Supreme Court as well as the judgment of this Court cited supra, I am of the considered opinion that the impugned order passed by the 1st respondent is unsustainable and, therefore, the same is set aside. The writ petition is allowed with a consequential direction to the respondents to sanction the permissible amount, in accordance with the Rules, as claimed by the petitioner. The same shall be made available to the petitioner within a period of four weeks from the date of receipt of a copy of this order. There shall be no orders as to the costs. Sd/ Asst Registrar /True Copy/ Sub Asst Registrar https://hcservices.ecourts.gov.in/hcservices/ gp To 1. The Secretary to Govt. Finance (Pension) Dept. State of Tamil Nadu, Fort St. George, Chennai – 600 009. 2. The Principal Secretary, Municipal Administration, and Water Supply Dept. Fort St. George, Chennai – 600 009. 3. The Director, Local Funds Audit, IV floor, Kuralaam, Chennai – 600 108. +1 CC to Government Pleader Sr.No.16983 +1 CC to Mr. A.R. Nixon Advocate Sr.No.16441 W.P. No: 3391 of 2009 ( CO-AKR) DRL : 01.04.2010 https://hcservices.ecourts.gov.in/hcservices/