IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 7709/2008 Decided on:5.5.2009 Minakshi Chandel. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Adarsh Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 to 3. Mr. K.B. Khajuria, Advocate for respondent No.4. Rajiv Sharma, J. The petitioner is working as Trained Graduate Teacher (Medical) with the respondent-department. She fell ill in the year 1998. She got herself admitted in Shri Mool Chand Kharaiti Ram Hospital and Ayurvedic Research Institute, New Delhi on 13.7.1998. She obtained ex-post facto sanction from the respondents for her treatment from the said hospital (Annexure P-1). She submitted her medical bills to the respondents. The same were duly sanctioned by the respondents and she received all the charges/dues from the respondents. However, vide letter dated 2.1.2001, 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 respondent No.4 directed to effect recovery of Rs. 14,214/- from the petitioner. Mr. Adarsh Sharma, Advocate has strenuously argued that her client was admitted in the hospital and ex-post facto sanction was accorded to her. She submitted medical bills and consequently the amount was paid to her. He has contended that the petitioner has not been heard before the issuance of Annexure A-3 dated 2.1.2001. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that Auditors have objected to the release of amount to the petitioner and consequently Annexure A-3 was issued. I have heard the learned counsel for the parties and perused the record carefully. It is not in dispute that the petitioner was admitted to the hospital. She has submitted the bills. It has also been admitted by respondents No.1 and 2 in the reply that the ex-post facto sanction was accorded by the Director of Health Services. She was released an amount of Rs. 14,214/-. It is only on the basis of the objection raised by the office of the Accountant General Annexure A-3 dated 2.1.2001 has been issued. It is not disputed by the learned Senior Additional Advocate General that the petitioner was not afforded any opportunity of hearing before the issuance of Annexure A-3. However, the fact of the matter is that once the ex-post facto sanction has been accorded in favour of the petitioner and the money was released to her, the respondents are estopped from recovering the same. Every citizen/person has fundamental right to life, which includes better health services. It would be harsh and oppressive at this stage to permit the respondents to recover a sum of Rs. 14,214/-. She has spent this amount on her treatment. She has neither misled nor misrepresented the authorities at the time of granting ex-post facto 3 sanction in her favour. In fact, the respondents have also not attributed any fraud and misrepresentation to the petitioner. She is working as a Trained Graduate Teacher. She is lowly paid employee. The petitioner has been visited with civil and evil consequences after the issuance of Annexure A-3. She was required to be heard before the issuance of Annexure A-3. Their Lordships of the Hon’ble Supreme Court have held in Rajesh Kumar and others versus Dy. CIT and others, 2007 (2) SCC 181 that when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. Their Lordships have held as under: “26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. (1967 (2) SCR 625). It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance of principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.” Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the 4 appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 56. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22- C has wrongly been made as it was not in existence. Pay fixation on the basis of a non- existent rule is a bona fide mistake." 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 5 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors.,vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that 6 majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” In a recent pronouncement, their Lordships of the Hon’ble Supreme Court in Paras Nath Singh versus State of Bihar and others, 2009 (6) Scale 157 have not permitted the State to recover a sum of Rs.1,01,529.50 being not excessive amount. Their Lordships have held as under: “6. Having considered the fact that the appellant was only a Class IV employee in the State of Bihar and almost an illiterate person and did not know the implications of giving such undertaking and in the absence of any fraud and misrepresentation attributed to the appellant and the amount being not so excessive, in particular Rs.1,01,529.50, out of which certain amount has already been recovered from the salary of the appellant by the State Authorities, we are of the view that a lenient view should be taken and the amount already paid by the State Authorities to the appellant shall not be recovered.” 7 Life saving drugs/medicines are very expensive and the same are beyond the reach of a common man. The welfare State has to ensure that all the patients suffering from serious ailment are provided with life saving drugs free of cost. The State in its wisdom is providing subsidies on insecticides/pesticides/weedicides/fungicides, fertilizers, agriculture and horticulture equipments. However, In case the State due to its financial health is not in a position to provide the drugs/medicines free of cost in the Government run hospitals, it can always frame a scheme to subsidize the same to alleviate the sufferings of the persons afflicted with dreaded disease like cancer, heart ailment etc. The healthy citizens make strong nation. Accordingly, the petition is allowed. Annexure A-3 is quashed and set aside. In normal circumstances this Court ought to have given an opportunity to the State to hear the petitioner and then to pass appropriate order, however, taking into consideration the amount of Rs. 14,214/- being not excessive, the respondents are restrained from recovering the same. The matter stands closed. However, in view of the observations made hereinabove, it is desirable that the State Government may frame a scheme for providing life saving drugs/medicines to its citizens free of cost or to subsidize the same on the following parameters/guidelines: (i) The life saving drugs may be provided by the State Government free of cost to the patients belonging to the lower strata of society i.e. patients living below poverty line/Scheduled Caste/Scheduled Tribe and other weaker sections of society; (ii) In case the State Government due to paucity of funds is not in a position to provide life saving drugs free of cost to patients, it can always subsidize the same; 8 (iii) The cases for providing subsidized life saving medicines/drugs must be processed by the Chief Medical Officers after going through the prescription and thereafter to submit the same to the Principals of the Indira Gandhi Medical College, Shimla and Dr. Rajindra Prasad Medical College, Tanda, District Kangra; (iv) The medicines/drugs are to be subsidized only on the basis of the recommendations made by the Committee comprising of Principals of the Indira Gandhi Medical College, Shimla and Dr. Rajindra Prasad Medical College, Tanda, District Kangra; (v) In case any difficulty is faced while allowing the claim for providing subsidy on the medicines/drugs, it will be open to the Committee comprising of the Principals of the Indira Gandhi Medical College, Shimla and Dr. Rajindra Prasad Medical College, Tanda, District Kangra to refer the matter to the Principal Secretary (Health), who shall immediately take the decision on case to case basis within a reasonable period and his decision shall be final; (vi) In case any patient is found claiming subsidy on life saving drugs fraudulently, he can always be dealt with in accordance with law even by registering an FIR against him. (vii) It is clarified, as noticed above, that the patient, who belongs to categories as mentioned in clause (i) may at least be held entitled to 50% subsidy and other patients may be held entitled to 30% subsidy subject to restrictions of creamy layer in both the categories; (viii) It will be open to the Principals of the Indira Gandhi Medical College, Shimla and Dr. Rajindra Prasad Medical College, Tanda, District Kangra to nominate Heads of Departments or Senior-most Professors of each College to ensure transparency and effective implementation of the reimbursement process by way of subsidy; 9 (ix) The Principal Secretary (Health) to the Government of Himachal Pradesh in consultation with the Principals of the Indira Gandhi Medical College, Shimla and Dr. Rajindra Prasad Medical College, Tanda, District Kangra shall deliberate to define life saving drugs and to include them in a Schedule. It will always be open to the State to add or delete the life saving drugs from time to time after taking into consideration the advancement in the field of medicines. The Principal Secretary (Health) is required to look into the observations made hereinabove and to file a supplementary affidavit within a period of two months from today whether the scheme as visualized/ conceived hereinabove can be framed in the larger public interest. 5.5. 2009 (Rajiv Sharma ), J. *awasthi*