IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 15522 of 1993 Date of Decision : October 28, 2009 Dr. Surjit Singh Sandhoo through his legal representatives ....Petitioner Versus State of Punjab and others .....Respondents CORAM : HON'BLE MR. JUSTICE M.M.KUMAR Present : Mr. H.S.Dhindsa, Advocate Mr. Rajesh Garg, Additional Advocate General, Punjab 1. To be referred to the Report or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. 1. The petitioner retired as Professor of Radiology from Rajindra Government Hospital, Patiala. He suffered from serious heart disease and after detailed investigation, it was found that he was suffering from Aortic valve regurgitation, hypertension and coronary insufficiency. The disease was quite a serious and a complicated heart ailment requiring immediate replacement of Aortic valve and also coronary by-pass surgery. The surgery involved a high risk to his life and sophisticated facility for such a surgery were not then available in this country. Accordingly, the Authorized Medical Officer-cum-Director, Health and Family Welfare being a Chairman of the said medical board for the purpose, advised and referred him on the prescribed form T.R.M.-2 to undergo treatment at Houston, U.S.A. His case was also recommended by Dr.J.S.Gujral, Professor and Head of the CWP No. 15522 of 1993 -2- Department of Cardiovascular and Thoracic Surgery, PGI, Chandigarh, who is considered as an authority in the field of Cardiovascular Medical Science(P- 1). The petitioner thereafter was released foreign exchange for medical treatment to the tune of US $ 49,725/-(P-2). 2. The case of the petitioner was also placed before the Medical Board on 29.5.1991 and it was desired that a reference from the Post Graduate Institute of Medical Science was required. On account of urgency and seriousness of the ailment, however, petitioner proceeded to U.S.A. on 1.6.1991 and was operated upon for heart by-pass surgery and replacement of Aortic valve and Aortic Root on 4.6.1991. He remained hospitalized in the same hospital for his post operative care and was discharged on 4.7.1991. The total expenditure billed to him for his treatment was US $ 74,242.93 and the petitioner at the time of his discharge had paid only US $ 47,000/-. The balance amount was never paid. 3. The petitioner returned to India and submitted his claim for reimbursement for his treatment taken abroad(P-3). The claim made by the petitioner was not sanctioned despite various representation and letters(P-4). On 18.10.1991, respondent No.3 Director, Health and Family Welfare, Punjab, intimated the petitioner that his case for reimbursement of medical treatment was placed before the Special Medial Board, which required him to contact Dr. J.S.Gujral, Professor, who was working in PGI for referral slip to complete the case. However, Dr. J.S.Gujral vide his letter dated 24.10.1991 (P-6) informed the Director, Health and Family Welfare that he did not refer the petitioner for treatment abroad. On receipt of the letter, respondent No.3 CWP No. 15522 of 1993 -3- sought a clarification from Professor J.S.Gujral regarding his signature on T.R.M.-2 form (P-1) recommending the treatment of the petitioner in a country abroad. Accordingly, Professor J.S.Gujral vide his letter dated 4.12.1991 informed the Director, Health and Family Welfare that the petitioner was treated by his department in PGI. He also confirmed that his case was recommended for treatment abroad because this treatment involved a very high risk to life. He further clarified that there were few centres which had the experience and facility like the one at Taxas Heart Institute, Houstan in U.S.A. The Director, Health and Family Welfare was not still satisfied and sent an another intimation to Professor J.S.Gujral seeking information whether the treatment given to the petitioner in U.S.A. was available in India or not(P-9). The proceedings of the Special Medical Board held on 25.2.1992 clearly stipulated that the certificate issued by Professor J.S.Gujral has clarified the situation. Still the remarks of Dr.J.S.Gujral were required to be obtained for confirmation. The Board also observed that the final settlement of the case be made by making payment. 4. The Board again in its meeting on 19.10.1992 decided to refer the matter to Professor J.S.Gujral by holding that he was an authority in the field. In his letter dated 2.11.1992 Dr. J.S.Gujral, who was Professor and Head of Department of Cardiovascular and Thoracic Surgery, PGI, again confirmed that the petitioner was suffering from Anulo Aortic Ectasia Coronary Artery Occlusive disease as also Aortic Valvular insufficiency, which needed a very major surgery. It also required replacement of Aortic Root and replacement of Aortic Valve and Coronary Artery by-pass surgery, which necessitated re- implantation of coronary artery into the graft. Professor J.S.Gujral also CWP No. 15522 of 1993 -4- observed that it was a fairly complicated and high risk procedure and expertise of this kind of surgery with expectable risk is available at some centres in the world. Opining that Dr.Denton A.Cooley may be the best, Professor J.S.Gujral referred the case of the petitioner to the Director, Health and Family Welfare, Punjab for making payment(P-10). Despite the aforesaid, Ministry of Finance-respondent No.2 informed the Director, Research and Medical Education, Punjab, Chandigarh-respondent No.4 that the Government was not able to grant sanction to the case of the petitioner for reimbursement of his medical claim(P-11). There is no lacunae pointed out nor any reason recorded as to why sanction could not be accorded for reimbursement of medical claim of the petitioner. It is under these circumstances that the writ petition was filed in the year 1993 and during the pendency of the petition, the petitioner has expired on 10.4.1999 and his legal representatives have been brought on record, who are his four daughters. 5. In the preliminary objections of the written statement, it has been asserted that prior permission from the Director, Health and Family Welfare by the petitioner was necessary as per the Government policy dated 25.1.1991. The prior permission having not been obtained or even not applied for treatment at St. Luke's Episcopal Hospital, Houseton, Taxas, U.S.A., therefore, no medical reimbursement could be released. With regard to the endorsement made on P-1 by the Director, Health and Family Welfare, Punjab, it has been pointed out that it was only for the purpose of getting the petitioner foreign exchange. The respondents have placed reliance on the letter written by the petitioner's wife giving an undertaking that the petitioner would not claim medical reimbursement(R-2). The other broad factual CWP No. 15522 of 1993 -5- position has not been denied. It has been highlighted that Professor Gujral in his intimation dated 24.10.1991 (P-6) had pointed out that the petitioner was neither his patient nor he ever remained under his medical care. Therefore, there was no question of his referring him for treatment abroad. It is although admitted that Professor J.S.Gujral simply supported the decision of the petitioner to go to U.S.A. for his by-pass surgery if he could afford it. The clarification sought from Professor J.S.Gujral as to whether the said treatment is available in India or not had remained pending and was never replied. The case of the petitioner is claimed to have been rejected on the ground that prior permission in terms of instructions dated 25.1.1991 have not been obtained. 6. After hearing learned counsel for the parties and perusing the paper book with their assistance, I am of the affirm view that this petition deserve to be accepted. Self-Preservation of one's life is the necessary concomitant of the right to live as defined in Article 21 of the Constitution. Accordingly, the State of Punjab issued a policy/instructions regarding reimbursement of medical expenses on 25.01.1991, which governs this case. It has been duly circulated to all the departments of the Punjab State. Its operative portion insofar as relevant to the controversy in hand is reproduced below:- “Subject: Reimbursement of medical expenses — Policy regarding Sir/Madam, In supersession of Punjab Government Letter No. 7/7/85- 3HBV/13855 dated 27-5-1987, the President of India is placed to lay down the following policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in CWP No. 15522 of 1993 -6- hospitals other than the hospitals of the Government of Punjab (Both outside and in the State of Punjab): (i) All categories of employees whether retired or serving of All India Service/State Government/Judges of Punjab and Haryana High Court/MLAs/ Ex MLAs will be governed by this policy. (ii) The person who is in need of medical treatment outside India or in any hospital other than the Government of Punjab (both outside and in the State of Punjab) as the case may be may make an application for getting treatment in these hospitals directly to the Director, Health and Family Welfare, two months in advance, duly recommended by the CMO/Medical Superintendent indicating that the treatment for the disease mentioned is not available in the hospital of the Government of Punjab. In case of emergency duly authenticated by CMO/Medical Superintendent the application can be made 15 days in advance. (iii) Director, Health and Family Welfare, Punjab will place the application of the employee concerned before the Medical Board within 15 days on the receipt of application. In case of emergency, if immediate meeting of Medical Board cannot be convened, such application may be circulated to all the members of the Medical Board and decision taken thereof. (iv) The Medical Board shall consist of the following officers: (i) Director, Health and Family Welfare, Punjab — Chairman (ii) Director, Research and Medical Education, Punjab —Member (iii) Specialist of the desired line of treatment from PGI, Chandigarh or AIIMS, New Delhi — Member (iv) Seniormost specialist from Medical Colleges, Patiala, Amritsar and Faridkot — Member (v) Deputy Director/Assistant Director, I/c of P.M.H. CWP No. 15522 of 1993 -7- Branches, Office of the Director of Health and Family Welfare — Member Secretary (vi)-(xi) * * * (xii) The Health Department in consultation with Director, Research and Medical Education will prepare a list of diseases for which specialised treatment is not available in Punjab Government hospitals and indicate the institutions/hospitals/ clinics of repute where necessary treatment is available. This list will, however, be subject to variation in future.” 7. The aforesaid policy was further explained with regard to choice of the hospital on 08.10.1991. The relevant portion of the aforesaid policy reads thus:- “Policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than those of the Government of Punjab, both within and outside the State was laid down. However, as per the 12th item of these instructions, a list of those diseases for which specialised treatment was not available in the government hospitals was to be prepared in addition to identifying medical institutions/hospitals/clinics of repute where such specialised treatment was available. The Government has now prepared a list of those diseases for which the specialised treatment is not available in Punjab Government hospitals but is available in certain identified private hospitals, both within and outside the State. It has, therefore, been decided to recognise these hospitals for the treatment of the disease mentioned against them in the enclosed list for Punjab Government employees/pensioners and their dependents. The terms and conditions contained in letter under reference will CWP No. 15522 of 1993 -8- remain applicable. Government can, however, revise the list in future. Therefore it has been decided to recognise those hospitals for the treatment of diseases mentioned against them in the enclosed list issued with the concurrence of the Finance Department dated 11-9-1991 which is as under: Open Heart Surgery: Escorts Heart Institute, New Delhi; Christian Medical College, Ludhiana; Apollo Hospital, Madras.” The purport of the above policy is that the Escorts stands duly recognised by the State for treatment of its employees for open heart surgery, apart from the other two institutions i.e. Christian Medical College, Ludhiana and Apollo Hospital, Madras. The Finance Department’s concurrence signifies its willingness to entertain reimbursement bills in variables depending on where treatment is received.” 8. The policy clearly shows that all categories of employees whether retired or serving were covered and governed by the policy. The policy required that a person who needed medical treatment outside India to make an application for availing such a treatment abroad to the Director, Health and Family Welfare two months in advance. The application is required to be recommended by the CMO/Medical Superintendent confirming that the treatment for the disease mentioned was not available in the Government Hospital of Punjab. In case of emergency, such an application duly counter- signed by CMO/Medical Superintendent could be met within 15 days in advance. Any such application is required to be placed by the Director before the Medical Board within 15 days, on the receipt of the application. In case of emergency where no immediate meeting of the Medical Board could be convened, the application could be circulated to all the members of the Board CWP No. 15522 of 1993 -9- and then decision could be taken thereon. The Medical Board consists of eminent people which include Specialists from PGI, Chandigarh or AIIMS in New Delhi. The policy further provides that the Health Department was to prepare a list of diseases for which specialised treatment has not been available in Punjab Government Hospitals and it was to short list the institutions/hospitals/clinics where necessary treatment has been available. The list could be subjected to changes in the future. The policy was further supplemented on 08.10.1991 by including the names of various hospitals. The purport of the policy essentially is that it recognises the necessity of obtaining treatment abroad subject to certain conditions. The Finance Department's concurrence signifies its willingness to entertained reimbursement bills in various, depending on where treatment is received. 9. The aforesaid policy came up for consideration before Hon'ble the Supreme Court in the case of Surjit Singh V. State of Punjab, (1996) 2 SCC 336. Upholding the right of retired employee to preserve his life by placing on reliance verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana. Their Lordships of the Supreme Court observed in Para 12 as under:- “The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim CWP No. 15522 of 1993 -10- cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expenses. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts”. 10. The aforesaid view has been followed and approved by Hon'ble the Supreme Court in the case of State of Karnataka v. R. Vivekananda Swamy (2008) 5 SCC 328 and in the case of State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117. In that regard, reliance may also be placed on a Division Bench of this Court referred in the case of Tara Singh Cheema v. State of Punjab 1995 (7) SLR 666 where a member of Punjab Superior Judicial Service was given reimbursement for availing medical treatment abroad for the decease of Intra-Cellular Tumor. He was not only granted medical reimbursement for expenses incurred on medical treatment, but also for travelling abroad including boarding and lodging. A similar view has also been taken by a Division Bench of this Court in the case of Dr. Prem Nath Garg v. State of Punjab (CWP-16145 of 1992) decided on 02.06.1993. 11. It has come on record that the petitioner had applied to the Director, Health and Family Welfare and after satisfying itself, the Medical Board has lastly referred the matter to Professor J. S. Gujral, who had advised that the best possible treatment available in the world is at St. Luke's CWP No. 15522 of 1993 -11- Episcopal Hospital, Houseton, Taxas, USA where Dr. Denton A. Cooley had been working as expert. There is some controversy whether Dr. Gujaral opined for his medical treatment at the expense of the petitioner or the Government expense. However, the fact remains that the petitioner had gone to St. Luke's Episcopal Hospital, Houston, Taxas, USA where he was operated upon for the disease. It also appears to be correct that such a treatment in the year 1991 was not available in this country and there was high risk involved to the life of such a patient. Accordingly, keeping the self-preservation of his life , the petitioner rushed to St. Luke's Episcopal Hospital, Houston, Taxas, USA. The hospital sent the bill, but he had paid only US Dollar 47000/-. When the aforesaid amount is converted into Indian rupee at the rate of Rs.25/- which was prevailing at that time, the total amount comes to Rs.11,75,000/-. Therefore, I am of the view that the petitioner would lawfully be entitled to the reimbursement of the aforesaid amount. 12. As a sequel to the aforesaid discussion, this petition succeeds. The petitioner is held to be entitled to the payment of Rs.11,75,000/- as medical reimbursement in lieu of the expenses incurred by him at St. Luke's Episcopal Hospital, Houston, Taxas, USA. The respondents are directed to pay the aforesaid amount to the petitioner expeditiously preferably within two months from the date of receipt of a certified copy of this order. ( M. M. KUMAR ) JUDGE October 28, 2009. ajay-1/A.Kaundal