CWP No. 19636 of 2001 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 19636 of 2001 (O&M) Date of Decision : 16.09.2010 Smt. Sudarshan Katyal .......... Petitioner Versus State of Haryana & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ravi Kant Sharma, Advocate for the petitioner. Mr. R.K. Takkar, Addl. A.G., Haryana for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the writ jurisdiction of this Court under Article 226/227 of the Constitution of India with a prayer for issuance of writ in the nature of certiorari for quashing the orders Annexure P-3, P-4 and P-4A, vide which the medical reimbursement claims of the petitioner were rejected. The petitioner has also prayed for a writ in the nature of mandamus directing the respondents to reimburse the claim of Rs. 3,23,988.93/- (Rupees three lac twenty three thousand nine hundred eighty eight and paise ninety three only) spent by the petitioner on the treatment of her late husband. The brief facts leading to filing of the present writ petition are; that the husband of the petitioner was admitted under CWP No. 19636 of 2001 -2- ***** emergency in the Apollo Hospital on 7.2.1997 and was discharged on 15.2.1997. During this period the petitioner incurred expenses of Rs. 33,385/- (Rupees thirty three thousand three hundred and eighty five only). The medical reimbursement claim raised by the petitioner was rejected by the Haryana Government. However, this Court set aside the order passed by the competent authority and directed the respondents to reimburse to the petitioner 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto, in accordance with the policy adopted by the State of Haryana. The husband of the petitioner thereafter on the advice of the Doctors of the Apollo Hospital continued the medical check up and follow up. The husband of the petitioner was again admitted in emergent conditions on 15.12.1999 for treatment, and was discharged on 18.12.1999. The case of the petitioner is, that the medical investigation carried out during the period when the husband of the petitioner was admitted as an indoor patient, revealed that he was suffering from small cell carcinoma lung (cancer) for which repeated visits and long treatment was required. The discharge summary has been placed on record by the petitioner as Annexure P-2. The fact, that the husband of the petitioner was admitted in the emergent conditions was not disputed in the written statement. The case of the petitioner was, that the ailment of her husband was serious and required treatment from the expert medical Doctors. Therefore, the petitioner had no option but to get the medical treatment from the Apollo Hospital. The bills were submitted CWP No. 19636 of 2001 -3- ***** by the husband of the petitioner during his life time, but those were rejected, on the ground, that the Apollo Hospital was not on the list of approved hospitals of the Haryana Government. The letter rejecting the claim of the petitioner was received by the petitioner after the death of her husband. The case of the petitioner further is, that the Haryana Government has issued instructions dated 30.11.1993 laying down, that the medical expenses incurred in hospital other than the Government Hospital i.e. Novadic Prosthetic Centre, Daulat Singh Wala, Zirakpur (Punjab), Batra Hospital New Delhi and Escorts Hospital, New Delhi will be permissve at the rates prescribed at All India Institute of Medical Sciences (AIIMS) New Delhi, P.G.I, Chandigarh. Only 75% the expenditure incurred in excess of the rates prescribed by these hospitals will be accounted for reimbursement and the remaining 25% will be borne by the claimant. The husband of the petitioner died on 23.12.2000 in the Apollo Hospital as indoor patient. The death was on account of cancer as detected earlier. The petitioner claimed, that the impugned orders rejecting the medical reimbursement were contrary to the instructions issued by the Haryana Government as well as the judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Ram Lubhaya Bagga AIR 1998 SC 1703, wherein the Hon'ble Supreme Court has been pleased to lay down, that right to life includes right to health under Article 21 of the Constitution of India. The petitioner has also placed reliance on the judgment of this Court in the case CWP No. 8610 of 2000 decided on 1.8.2001 titled Smt. Suman Dhingra Vs. CWP No. 19636 of 2001 -4- ***** State of Haryana & others. The writ petition is opposed by the State of Haryana, firstly on the ground, that the Apollo Hospital though, brought on the approved list on 6.5.2005 but was not on the approved list when the husband of the petitioner got treatment from the said hospital. The contention of the learned counsel for the State therefore was that as the Apollo Hospital was not on the approved list on the date of treatment, the petitioner was not entitled to reimbursement of the medical expenses incurred on her late husband, as the instructions of 2005 could not operative retrospectively. The second contention raised by the learned Addl. A.G., Haryana is, that reading of the impugned orders shows, that it is only in the case of emergency that a Government employee is entitled to take treatment from the approved private hospital and not in normal circumstances, as in that event the patient is required to take treatment from the Government Hospital or the approved private hospital. On consideration, I find force in the contention raised by the learned counsel for the petitioner. The contention of the learned State Counsel, that the reimbursement could not be made to the petitioner as Apollo Hospital was not approved hospital, on the date of treatment of her husband, deserves to be rejected in view of the decision of this Court in CWP No. 8610 of 2000 decided on 1.8.2001 titled Smt. Suman Dhingra Vs. State of Haryana and others, wherein this Court rejected the similar plea by recording as under :- CWP No. 19636 of 2001 -5- ***** “In the case relied upon by Shri Dhingra, it has been held that benefit of medical reimbursement cannot be denied only on the ground that the patient had taken treatment in an unrecognized hospital, but, at the same time, the courts have held that the employee cannot get full reimbursement in lieu of the treatment taken by him/her or family members in an unapproved/unrecognized hospital and he/she is entitled to reimbursement at the rates prescribed by All India Institute of Medical Sciences, New Delhi (AIIMS).” The second contention raised by the learned Addl. A.G., Haryana also deserves to be noticed to be rejected, for the simple reason, that in para 2 of the writ petition a specific averment has been made, that it was due to emergent situation that the husband of the petitioner had to be shifted to Apollo Hospital for treatment, the averment made in para 2 made in the writ petition reads as under :- “That husband of the petitioner retired from Haryana Government service as Assistant Excise and Taxation Officer and settled at Gurgaon. The husband of the petitioner suddenly fell unconscious and was taken to Apollo Hospital Delhi under critical and emergent conditions. Since he has had already been under treatment in Apollo Hospital, he was admitted on 15-12-1999 and discharged on 18-12-1999. Medical investigations in Apollo Hospital revealed small cell carcinoma lung (cancer) for which long repeated treatment were required. The CWP No. 19636 of 2001 -6- ***** patient was discharged and advised to visit the hospital for review along with all the medical reports or even in the case of SOS. A true copy of the discharge summary dated 18-12-1999 is attached herewith as annexure P-2.” Para 2 of the writ petition is disputed, as the reply submitted is, that it is matter of record, therefore, it is a clear admission of fact, that the husband of the petitioner had to go to Apollo Hospital under emergent conditions. The contention of the learned Addl. A.G., Haryana, that after discharge the husband of the petitoner was required to go to Government Hospital, also can not be sustained, as it being a serious case while getting treatment from Apollo hospital, the patient could not be asked to shift to different hospital as systematic and prolonged treatment was required for treatment of cancer. For the reasons stated above, the writ petition is allowed, the impugned orders rejecting the claim for medical reimbursement are set aside and a writ of mandamus is issued directing the respondents to accept the claim of the petitioner for medical reimbursement at the rates, prescribed by AIIMS and 75% of the expenditure in excess thereto in accordance with the policy adopted by the State of Haryana. The amount be released within two months from the date of receipt of certified copy of this order. No costs. 16.09.2010 (VINOD K. SHARMA) 'sp' JUDGE