IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TEUSDAY, THE TWENTY FIFTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.5696 of 2006 Between: Dr.Prabhakaram V., B.No.18-02-K070, s/o late Suryanarayana, R/o Gandhigram, Visakhapatnam. ..... PETITIONER AND 1 Deputy General Manager, (P & A), M/s.Hindustan Shipyard Ltd., Visakhapatnam. 2 Chief Welfare Officer, M/s.Hindustan Shipyard Ltd., Visakhapatnam. 3 Section Officer, Medical Reimbursement Section, M/s.Hindustan Shipyard Ltd., Visakhapatnam. 4 Manager, Medical Department, M/s.Hindustan Shipyard Ltd., Visakhapatnam. ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, or order or direction more particularly in the nature of writ of mandamus declaring the action of the respondents in not paying Rs.5,50,818/- towards the operation hospital expenditure and expenditure for life saving drugs for post operative care for kidney transplant as unconstitutional and consequently direct the respondents to pay Rs.5,50,818/- with penal interest at 24 upon delayed payments while continuing to reimburse the expenditure on life saving drugs monthly and pass such order or other orders this Hon'ble Court may deem fit and proper. Counsel for the Petitioner: Mr.K.S.MURTHY Counsel for the Respondents: Mr.S.V.BHATT The Court made the following : O R D E R: This Writ Petition is filed seeking a Mandamus declaring the action of respondents in not paying Rs.5,50,818/- towards operation and hospital expenditure and also for life saving drugs for post- operative care for kidney transplantation as arbitrary, illegal and unconstitutional and consequently to direct the respondents to pay an amount of Rs.5,50,818/- with penal interest at 24% per annum while continuing to reimburse the expenditure on life saving drugs, every month. Petitioner is a Doctor by profession and was employed in Hindustan Shipyard Limited, Visakhapatnam. He held the post of Medical Officer in the basic pay of Rs.11,500/-. Since April,1993 there was kidney malfunctioning, he underwent dialysis as per the instructions of the qualified Doctors. The dialysis was done in Apollo Hospital and the petitioner paid an amount of Rs.960/- for each dialysis from 1-6-2003 to 17-7-2004 (weekly twice). In the month of February,2004 he underwent bypass surgery and during the post operative care, it was revealed that the Kidneys have stopped functioning in spite of dialysis. In December,2003, experts advised kidney transplantation, which was a major surgery and it cannot be done everywhere and anywhere. The operation took place at Chennai in July,2004. The kidney transplant operation is of delicate nature and highly risky. Petitioner took quotations and investigated the track record. Three employees of the Ship Yard died when they underwent operation at Apollo and Global Hospitals. In that view of the matter, he chose the Chennai Hospital. Prior to going to operation, he informed the authorities vide letter dated 19-7-2004 that the operation was done on 31-7-2004 at Chennai and discharged from hospital on 18-8-2004. For one week, he was outpatient and the post- operative observation was completed by 24-8-2004. He returned to Visakhapatnam and reported to duty on 25-10-2004. After the kidney operation, drugs/medicines for his life saving were to be taken. This was done under the supervision of Professor and Head of the Department of Nephrology, K.G.Hospital, Visakhapatnam. While joining duty, petitioner submitted a comprehensive medical claim on 25-10-2004 for an amount of Rs.2,99,663.52 and another claim for Rs.18,916/- for pre- operative procedure etc. Respondents did not pay the full amount he spent towards dialysis between May,2003 and July,2004. He paid Rs.960/- for each dialysis, whereas the authorities paid Rs.500/- for each dialysis. As the authorities had not given proper response, he submitted several reminders. However, he was paid a paltry sum of Rs.42,655/-. Again, he made representations on 7-1-2006, 18-1-2006 and 3-2-2006 expressing anguish about the delay in reimbursement of his claim. Finally an amount of Rs.42,655/- was paid on 5-1-2006. Respondent No.1 issued a letter dated 8-2-2006 taking evasive stands for payment of the entire amount stating that kidney transplantation was not done at Government hospital or H.S. empanelled hospital; therefore, the money could not be paid. Further, it was stated that the monies cannot be paid as the operation was done in a private hospital. Thereafter, he made a detailed representation on 10-2-2006 for which a reply was sent on 15-3-2006 wherein it was stated that the petitioner was paid at the rates of AIIMS, New Delhi for the dialysis, which he underwent in 2003-04. According to the petitioner, the rates of AIIMS, New Delhi and NIMS, Hyderabad clearly show that the rate for each dialysis was fixed at Rs.1500/- to Rs.2000/-, but his claim was only for Rs.960/- for each dialysis. Further, the Central Services (Medical Attendance) Rules clearly state about the reimbursement of medical expenses. By following these rules, the respondents have ordered for reimbursement of cost of special tests and medicines in the case of wife of Chief Vigilance Officer at a private hospital at Bangalore. The hospital where the petitioner underwent kidney transplantation is a recognized hospital under the CGH Scheme. Since the respondent- organization is a Central Government Undertaking, the rules applicable to Central Government employees are applicable to the case of the petitioner also. The Proceedings issued by the respondents show that the reimbursement scheme is in line with Central Services (Medical Attendance) Rules. The special tests that are conducted in private hospitals under the advice of an authorized medical attendant would be considered as per the AIIMS rates. It was stated that treatment outside Visakhapatnam for the diseases like Cancer and kidney transplantation with the recommendation of authorized medical doctor will be considered for reimbursement. This should be considered on merits and reimbursement will have to be given as per AIIMS and CS (MA) Rules. Therefore, the action of respondents in not paying monies as per Central Services (Medical Attendance) Rules when the petitioner underwent kidney transplantation in a recognized hospital is arbitrary, illegal and violative of Articles 14 and 21 of the Constitution of India. According to the petitioner, he is spending Rs.15,000/- per month on emergency life saving drugs. It is the case of the petitioner that he is entitled for reimbursement of hospital expenses of Rs.2,75,923/-, the cost of life saving drugs of Rs.2,28,895/- and the balance for dialysis of Rs.46,000/-, thus, the total comes to Rs.5,50,818/-. Hence, this Writ Petition. On behalf of the respondents, a detailed counter has been filed denying the allegations made by the petitioner. It is asserted that the Officers, who intend to undergo inpatient treatment/surgery outside the headquarter, the reimbursement will be made subject to the following conditions:- a. Such Hospital is recognized either by HSL or CSMA Rules; b. Certification to the effect from the empanelled specialist/corporate hospital that necessary and suitable facilities/treatment are not available locally or in that hospital or in the empanelled hospital. c. Specific referral of the specialist to such particular Hospital; and d. Obtain prior intimation to avail/undergo such inpatient treatment. With regard to outpatient treatment, the medical expenses are restricted to the extent of Basic + D.A. per annum. In the instant case, petitioner has not informed in advance to the competent authority about his surgery/treatment and underwent surgery in a Hospital, which is not in the empanelled list of HSL. Similarly, other conditions referred to above have not been adhered to by the petitioner. Hence, petitioner’s claim for reimbursement of surgery charges etc., is not considered and paid as per Rules. However, on humanitarian grounds, the cost of eligible medicines was reimbursed by the organization. With regard to outpatient treatment, since the petitioner’s claim exceeded the Basic + D.A., his bills cannot be reimbursed. As per the procedure followed by the organization for in-patient treatment outside the Headquarter, reimbursement will be made subject to the conditions as noticed above. The other assertion of the petitioner to justify the operation at Dr.Mehta’s Hospital do not merit consideration for the following reasons: a. Dr. Mehta’s Superspeciality Hospital, Chennai is not empanelled by HSL for outpatient treatment for the employees of HSL/their dependents. b. The above Hospital is also not recognized under CS (MA) Rules. c. No specialist has specifically referred/advised the petitioner to go to this particular Hospital for KTS; d. The petitioner has not obtained prior permission from the respondent-organization though sufficient time was available for the petitioner before he has undergone KTS. This is evident from the statement of the petitioner that the experts advised KTS during December,2003 and he has collected quotations/data and track record relating to KTS. The petitioner has also not given information to the HSL management about the action plan for KTS. The HSL management came to know about KT Surgery of the petitioner only on resumption of duty/submission of his claim during October,2004 i.e., after two months of the KTS. The provisions of Central Government Health Scheme (CGHS) are not applicable to the employees of Hindusthan Shipyard Limited and both the CGHS Rules and Central Services (Medical Attendance) Rules are different. The respondent-organization being Government of India Undertaking has formulated its own rules and regulations and the rules applicable to the Central Government employees ipso facto are not applicable to the employees of HSL. HSL has formulated its own Medical Reimbursement Scheme/Rules for its employees for both outpatient and inpatient treatment. The claims of the petitioner are settled and reimbursed as per the rules applicable for the Officers of HSL. Petitioner does not have any discretion under the Rules to choose a Hospital of his choice and demand payment under the rules in vogue. The bills submitted by the petitioner were settled within the framework of the existing medical reimbursement scheme applicable for HSL Officers. The petitioner being HSL Officer cannot claim different rates of reimbursement other than the MRS applicable to all the Officers of HSL. The MRS formulated and followed in case of outpatient treatment for Officers is as under: “Para-17 : Relating to Medical Reimbursement vide instructional Order CMD/10/003/92, dt.22-10-1992 regarding Officers’ Pay Revision: The existing Medical Reimbursement Scheme will continued to be operated, subject to the following norms:- i. Domiciliary Treatment:- The expenses incurred by employees on the treatment secured by him or by his spouse, dependent members of the family, could be reimbursed in full on production of vouchers, subject to an overall ceiling of one month’s basic pay plus DA per annum. ii. Hospitalization:- Expenses incurred on hospitalization by him or by his/her spouse, dependent members of the family could be reimbursed in full on production of the relevant vouchers, provided the treatment has been in a Government/Government aided Hospital or at the rates prescribed by the All India Institute of Medical Sciences. The domiciliary treatment is restricted to one-month basic pay and DA per annum; therefore, the petitioner is entitled to reimbursement of one- month basic pay and DA for his outpatient treatment. Except this, the petitioner is not entitled for any other amounts. There are no merits in the Writ Petition and as such, it is liable to be dismissed. Learned counsel for the petitioner contends that though Dr.Mehta’s Hospital at Chennai is not a referral hospital under the Rules of the respondent-company, it is recognized by CGHS. Apart from that the expenditure met for transplantation of kidney by the petitioner at Dr.Mehta’s Hospital is far far less compared to the rates of AIIMS, Apollo and Global Hospitals. Therefore, there could not have been any hurdle in the way of the respondent-management in passing the bills for reimbursement of the expenditure incurred for transplantation of the kidney. Further, the general rules meant for reimbursement of medical expenses for outpatients cannot be applied to a case of this nature. Kidney and Cancer are very serious diseases and transplantation and post-transplantation requires life saving and costly drugs to be utilized by the patients. If that is not given, the petitioner cannot purchase them from his own funds. Probably, the petitioner has to face serious consequences, if the amounts are not reimbursed. This is nothing but inhuman and a pedantic approach, contrary to the provisions of Articles 14 and 21 of the Constitution of India. Whereas, learned counsel for the respondents reiterated the same stand as was taken in the counter; of course, did not deny the fact that the expenditure incurred by the petitioner for undergoing kidney transplantation at Dr.Mehta’s Hospital, Chennai was far far less than that of AIIMS, New Delhi, Apollo and Global Hospital in the State of Andhra Pradesh. He has also indicated that the respondents may not have much objection for reimbursing expenditure met by the petitioner at Dr.Mehta’s Hospital, Chennai for transplantation of the kidney. But, the learned counsel stated that it is difficult for the organization to go beyond the rules and clear all the bills as submitted by the petitioner. If different rates of reimbursement are applied to the petitioner, the respondent-company will have to face serious consequences. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. Petitioner has placed before the Court the medical reimbursement particulars of certain employees of respondent- organization, who took treatment for diseases like Cancer and Kidney, outside the Headquarters. The particulars are as under: 1. B. Satyanarayana, Badge No.39-05-A853, who suffered from Cancer had outpatient treatment under a specialist during the period 2002 to 2004 and died on 28-8-2004. He was paid by HSL Management nearly Rs.8.00 lakhs towards medical reimbursement during the above period i.e. 2002-04. 2. Presently Mr. K.J.Ganapathi Rao, Badge No.18-04-F598, Lab.Technician, Medical Department in HSL has been suffering from kidney disease since January,2006. He is under treatment of a Private Nephrologist as our painter. He has been paid by HSL Management under medical reimbursement as follows towards the cost of Medicines used as outpatient: April,2006 Rs.14,778.00 May,2006 Rs.14,342.00 June,2006 Rs.13,284.00 July,2006 Rs.14,624.00 August,2006 Rs.13,573.00 September,2006 Rs.15,035.00 October,2006 Rs.13,771.00 November,2006 Rs.15,592.00 December,2006 Rs.15,332.00 January,2007 Rs. 8,338.00 February,2007 Rs. 8,385.00 March,2007 Rs. 8,381.00 April,2007 Rs. 9,341.00 May,2007 Rs. 8,672.00 June,2007 Rs.10,482.00 July,2007 Rs. 9,074.00 August,2007 Rs. 8,826.00 September,2007 Rs.10,071.00 October,2007 Rs. 8,584.00 November,2007 Rs. 4,756.00 December,2007 Rs.10,457.00 3. G. Sarojini Devi, B.No.18-5-5360, Colony Dispensary (Medical Dept.) – Khalasi Mate. Underwent Surgery for Cancer Breast during 2006 March at Adayar Hospital, Chennai, HSL Management paid to her for post operative follow up treatment as follows: Sl.No. Claim Date Amount claimed 1 24th June,2006 Rs.20,758.00 2 12th July,2006 Rs.17,770.00 3 30th July,2006 Rs.19,533.00 4 29th August,2006 Rs.19,533.00 5 20th Sept.2006 Rs.19,533.00 6 16th October, 2006 Rs.19,533.00 4. D. Josphin, Jr.Officer, HSL, B.No.18-2-1979 She underwent surgery for Carcinoma (Cancer) Oesophagus at a Private Hospital, Hyderabad during May,2007 for which HSL Management paid an amount of Rs.78,529.00 on 11-1-2008 to her. Cheque No.366327. HSL is ready to pay to her for follow up post-operative Chemo Therapy treatment under processing. There is no serious dispute as to the said aspect. When the expenditure incurred by the petitioner is far far less than what is supposed to be charged by the referral hospitals, there cannot be any difficulty for the respondents in reimbursing the amounts spent by the petitioner at Dr.Mehta’s Hospital, Chennai. Except taking a stand that the petitioner has not taken permission from the competent authority before undergoing the kidney transplantation, there is no other plausible reason forthcoming. In fact, the petitioner informed the authorities in advance on 19-7-2004 that he was going to be operated on 31-7-2004 at Chennai. The fact that petitioner had undergone kidney transplantation is not disputed. In a case of this nature, the pedantic approach made by the respondents is liable to be deprecated. Therefore, the respondents are directed to consider and pass appropriate orders for reimbursing the expenditure incurred by the petitioner at Dr.Mehta’s Hospital as was done in the case of the others as noted above. Coming to the recurring expenditure for the life saving drugs, it is always desirable that the company considers each case on its own merits. The respondent-organization is directed to refer the matter to any of its referral hospitals and find out as to what exactly are the life saving drugs that require for the post-operative treatment of the petitioner and as recommended by the referral hospital, shall reimburse the same to the petitioner from the date of operation till date and continue to pay till such time as is advised by the referral hospital. The said exercise shall be completed within a period of four weeks from the date of receipt of a copy of this Order. With the above directions, the Writ Petition is disposed of. No order as to costs. 25-03-2008 prk