IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.09.2011 Coram THE HONOURABLE Mr.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.P.No.11583 of 2011 C.Ganesh .. Petitioner V. 1.The Central Administrative Tribunal, Chennai Bench represented by its Registrar, City Civil Court Buildings, High Court Compound, Chennai-600 104. 2.Union of India represented by the Chief of Naval Staff (For DCP), Naval Head Quarters, New Delhi-110 011. 3.The Flag Officer, Commanding-in-Chief, (For SO (CIV)), Head Quarters, Eastern Naval Command, Vishakapatnam-530 014. 4.The Commanding Officer, INS Rajali, Arakkonam-631 006. 5.The Area Accounts Officer, CDA (Navy) Fort St. George, Chennai-600 009. 6.The Commandant, Ordnance Depot, Avadi, Chennai-600 055. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the Proceedings of the 1st Respondent/Tribunal in O.A.No.636 of 2007 dated 29.01.2009 and the order passed by the 3rd Respondent in his Proceedings No.CE/9329/28, dated 08.08.2006, quash the same and consequently, direct the Respondents to reimburse a sum of Rs.76,331.45, being the disallowed portion, together with interest at 18% thereon. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.Vijay Shankar For Respondent : Mr.E.Arasu for R2 to R6 R1 – Tribunal ORDER M.VENUGOPAL,J. The Petitioner has filed the instant Writ Petition praying for issuance of Writ of Certiorarified Mandamus, calling for the Proceedings of the 1st Respondent/Tribunal in O.A.No.636 of 2007, dated 29.01.2009 and the order passed by the 3rd Respondent in his Proceedings No.CE/9329/28, dated 08.08.2006 and to quash the same. Resultantly, the Petitioner has sought for issuance of directions to the Respondents to reimburse a sum of Rs.76,331.45, being the disallowed portion, together with interest at 18% thereon. 2.The 1st Respondent/Central Administrative Tribunal, while passing the order on 29.01.2009 in O.A.No.636 of 2007, has among other things observed that 'the Applicant has filed an Appeal dated 11.03.2006 and the Respondents have passed an order No.CE/9329/28, dated 08.08.2006 and that the said order in Appeal is a speaking one etc. Further, the Respondents have already considered the request of the Applicant and settled the Bills as per the admissible rates of Government of India, paying a total sum of Rs.80,840/- and that the Applicant has not produced any new grounds other than what have already been decided and consequently, dismissed the Original Application. 3.Being dissatisfied with the order of dismissal dated 29.01.2009 in O.A.No.636 of 2007 passed by the 1st Respondent/Tribunal, the Writ Petitioner/Applicant has projected this Writ Petition before this Court. 4.BACKGROUND FACTS: (a)The Writ Petitioner in O.A.No.636 of 2007 has averred that while working under the 3rd Respondent/Commanding Officer, INS Rajali, Arakkonam, he met with a road accident on 02.03.2000 culminating in breaking of his right side ribs, collar bone and right leg. Because of the serious injuries suffered by him, he could not be treated at the local General Hospital, Arakonam and he has been referred to the General Hospital, Chennai, on 03.03.2000 by the Local Doctors. Because of the Doctors strike at the Government Hospital and also because of his deteriorating condition, he has been shifted to a small private hospital in Tambaram on 04.03.2000. In the said private hospital, there is no availability of proper treatment. Hence, he has been shifted to Balaji Hospital Private Limited, Guindy, on 04.03.2000 and he has been kept in the intensive care for about 16 days. https://hcservices.ecourts.gov.in/hcservices/ (b)The Petitioner goes on to add that after treatment, he has been discharged and on receiving duties, he submitted a medical reimbursement claim for Rs.1,42,494/- through his representation, dated 28.06.2000 and produced all the receipts, bills and other connected documents. Initially, his request has been rejected based on wrong reason on his Appeal to the 4th Respondent/Area Accounts Officer, CDA (Navy), Chennai, he has been granted the entire medical reimbursement as per communication dated 22.06.2001. Later, his claim has been disallowed and he has been granted only a sum of Rs.37,925/-. (c)Earlier, the Petitioner filed O.A.891 of 2001, claiming full medical reimbursement, as per his claim dated 28.06.2000. However, the Tribunal observed that the sanction of only Rs.37,925/- is incorrect and directed the Department to re-examine the entire issues and allow the reimbursement on a realistic basis. He filed Contempt Application No.19 of 2003 before the 1st Respondent/Tribunal for not implementing the direction issued in O.A.No.891 of 2001, dated 15.03.2002. During the course of hearing of the Contempt Application on behalf of the Respondents, it has been informed that the Petitioner is entitled to an enhanced medical reimbursement and that he would be paid around Rs.30,000/- over and above the amount already paid to him. The said Contempt Application has been dismissed by an order dated 22.04.2003. However, he has been granted the liberty to challenge the action of the Respondents, if he has any grievance regarding the quantum of payment. (d)The Petitioner has been paid a sum of Rs.32,915/-. The total amount paid to him thus comes to Rs.80,840/- as against his original claim of Rs.1,42,494/-. He sent his representation on 22.10.2003, furnishing the details of the payments due to him as per his entitlements, because of the reason that the Department has not appreciated his claim as per the relevant rules. His representation has been rejected on 25.05.2004 and he has also been advised to prefer an Appeal to the Competent Authority as per rules, if he is aggrieved against the rejection order. He filed an Appeal on 05.11.2004, which has been incorrectly addressed by him and hence, he has been directed to file another Appeal. Therefore, he submitted an Appeal to the 3rd Respondent (2nd Respondent in Original Application) on 14.12.2004. But, the said Appeal on 08.02.2005 has been rejected and he has been advised to prefer an Appeal to the Government. (e)Again, the Petitioner/Applicant filed another O.A.No.693 of 2005, praying for medical reimbursement of Rs.76,331.45, together with interest. The 1st Respondent/Tribunal, on 27.02.2006, disposed of the Original Application by directing him to submit an Appeal and the same to be disposed of, within a period of two months from the date of receipt of the Appeal. He submitted another detailed Appeal. Since no representation has been received by him, he filed another representation on 30.06.2006. On 08.08.2006, the impugned order has been passed rejecting his claim. 5.COUNTER PLEAS: {a}Before the 1st Respondent/Tribunal, the Respondents 2 to 5 have stated that the Petitioner has been admitted into the Government Hospital, Arakonam, when he met with a road accident on 02.03.2000 at https://hcservices.ecourts.gov.in/hcservices/ about 17.45 hours and he has been treated on the spot at the said Government Hospital. Based on the advise of Government Hospital, Arakonam, he has been admitted into the Government General Hospital, Chennai, at night on 02.03.2000 and treated for two days. He has not produced any documentary evidence in regard to the admission in the Government Hospital, Arakonam and has not produced further advise of Government General Hospital, Arakonam Doctor for his treatment in Government General Hospital, Chennai. On 04.03.2000, at about 13.00 hours, he has been discharged on his own accord from the Government General Hospital, Chennai, after giving an undertaking against the advise of the Government General Hospital, Arakonam and has been admitted on his own in a Private hospital viz., A.G. Hospital, Tambaram, Chennai, with the help of his relatives. Finally, he has been admitted into Balaji Hospital Private Limited, Guindy, Chennai, on 04.03.2000. He submitted his claim for Rs.1,42,494/- along with his representation dated 28.06.2000, after his discharge from the Balaji Hospital Private Limited, Guindy, Chennai. {b}A sympathetic view has been taken on the Petitioner's claim and he has been issued with an Ex-post-facto sanction order, dated 22.06.2001, to reimburse the expenses incurred at the Balaji Hospital Private Limited, Guindy, at Central Government Health Scheme Rates. As a special case, a sum of Rs.47,925/- has been reimbursed to him at Central Government Health Scheme Rates, although he has not sought prior permission from the administration for receiving treatment at Balaji Hospital Private Limited, Guindy, Chennai, against the advise of Government General Hospital, Chennai. Further, he has not furnished a copy of undertaking given to the Government General Hospital, Chennai. {c}The Petitioner filed O.A.No.891 of 2001 before the 1st Respondent/Tribunal for not satisfied with the amount reimbursed to him at Central Government Health Scheme Rates. The Government of India, Ministry of Health Service, has approved the relaxation of CS (MA) Rules to additionally reimburse of Rs.32,915/- against the disallowance in his original claim. Thus, a total sum of Rs.80,840/- has been reimbursed on his original claim with an additional reimbursement of Rs.32,915/-. If the Petitioner has received treatment at the Government General Hospital, Chennai, the total reimbursement amount should not have exceeded more than Rs.40,000/- as per the Tamil Nadu Health Service Department letter, dated 16.09.2002. {d}The petitioner's post accidental implant removal operation claim for Rs.19,661/- has been restricted to Central Government Health Scheme rates vide Sl.No.31.49 and Rs.4,830/- has been paid to him as per CGHS rate applicability. Similar employees have been admitted in the recognised hospital for the emergency treatment in the event of accident/serious disease are allowed for reimbursement only at Central Government Health Scheme rates and not based on the full expenses incurred in the private hospital and not based on the Ex- post-facto sanction accorded by the appropriate authority. {e}The petitioner again filed O.A.693 of 2005 and the Tribunal by its order dated 27.02.2006 found that he has not filed any appeal https://hcservices.ecourts.gov.in/hcservices/ against the order of the 2nd Respondent (1st Respondent) dated 08.02.2005, but he has been permitted to file an appeal regarding his grievance on the order dated 08.02.2005, within a period of two weeks from 27.06.2006 and directed the Respondents to dispose of the same in accordance with law, within a period of two months from the date of receipt of the appeal from him. The Appeal filed by the Petitioner dated 11.03.2006 has been considered carefully by the Appellate Authority, who found that his claim is not tenable and consequently, rejected the same. Again, the Petitioner has filed O.A.No.636 of 2007, which is not maintainable in law. {f}As seen from the Government General Hospital, Chennai, admission/discharge certificate, dated 26.12.2000, the petitioner has been admitted in the Private Hospital viz., A.G. Hospital, Tambaram on his own accord as per CS(MA) Rules. The petitioner ought to have been treated at the nearest Central Government Health Scheme Hospital which he failed to do so. He has not informed about the Doctors of the Government General Hospital have been on strike on 03.03.2000 and that he has been shifted to a small hospital in Tambaram on 04.03.2000 and later, shifted to the Balaji Hospital Private Limited, Guindy, Chennai, on 4th March 2000, till he submitted his medical reimbursement claim on 28.06.2000. There is no evidence in support of his contention of the Government General Hospital, Chennai, Doctors have been on strike on 03.03.2000. He submitted a photocopy of the Newspaper report dated 29.02.2000, whereas he met with a road accident on 02.03.2000 at 17.45 hours and shifted from the Government Hospital, Arakonam and admitted in the Government General Hospital, Chennai, during night time of 02.03.2000. Also, the photocopy of the Newspaper report aforesaid shows that the strike has been done mainly by the Tamil Nadu Medical Students and CRRLs Senior House Surgeon, Dental and Post Graduate Doctors Association which affected three Medical College Hospitals of the City and not the Government General Hospital, Chennai. Therefore, the statement of the Petitioner is that due to the Doctors strike, he has not received treatment at Government General Hospital on 03.03.2000, is untenable and incorrect. {g}The Petitioner's bill along with the relevant documents have been submitted by the Audit Authority for audit and payment. The 5th respondent (4th Respondent) admitted the claim as per the Petitioner's entitlement at Central Government Health Scheme rates and passed for payment of Rs.47,925/- including advance of Rs.10,000/- paid to him during treatment period. But, Balaji Hospital Private Limited, Guindy, Chennai, has not been listed in the GOI letter dated 10.06.1997 and therefore, the petitioner cannot rely on the instructions contained. As a special case by relaxing CS (MA) Rules, a sum of Rs.47,925/- has been reimbursed to the Petitioner within the power of Respondents 2 to 5. {h}Being dissatisfied with the amount paid to the petitioner, he filed O.A.No.891 of 2001 and the 1st Respondent/ Tribunal on 15.03.2002 has directed to re-examine the medical reimbursement claim and to allow on a realistic basis. The 4th respondent (3rd Respondent) informed the petitioner that the claim has been referred by the Naval Headquarters to the Government and the Ministry of Health and Family Welfare carefully considered and felt that the https://hcservices.ecourts.gov.in/hcservices/ reimbursement, as admissible under the rules has already been allowed and paid to him. The petitioner has also been advised that if he desires to any specific relaxation, he may specify the extent and nature of relaxation on specific item and not in general. He submitted his representation on 14.10.2002 along with the statement showing 39 Serials based on his own perception, placed reliance upon the GOI letter dated 10.06.1997 as his entitlement which is not correct. {i}The settlement of the claim cannot be reagitated and is barred by Res Judicata. The Petitioner submitted a medical reimbursement claim towards his post accident for implant removal operation amounting to Rs.19,661/- which he has undergone in the same private hospital and Rs.4,830/- has been reimbursed to him based on item wise as per the Central Government Health Scheme rates published by GOI. In the permission letter given to him for follow-up treatment in the same private hospital, it would clearly mention that the reimbursement would be as per the Central Government Health Scheme rates. The Central Government Health Scheme Package rates for 'Removal of Nails, Wires and Screws' appearing in Item 31.49 for Chennai, is Rs.4760/- only. As against the Central Government Health rate, the applicant has been reimbursed of Rs.4830/- which is on the higher side of the CGHS rates. Likewise, a sum of Rs.80,840/- against the applicant's original claim of Rs.1,42,494/- has been reimbursed at higher rates at CGHS rates by relaxation CS(MA) Rules and the approval of MOH Services. In short, the further reimbursement of expenses of the Petitioner is not feasible, since he has already been paid more than CGHS Package rates. {j}The Petitioner submitted an Appeal on being dissatisfied with the amount so far reimbursed to him through representation dated 05.11.2004 and he has been preferred an Appeal to the appropriate Appellate Authority as per order dated 13.12.2004. On 14.12.2004, he submitted his representation and the same has been forwarded to the 3rd Respondent (2nd Respondent) for necessary directive. His representation dated 14.02.2004 has been examined and the status of his reimbursed amount has been communicated with an advise that if he files any appeal, the same will be forwarded to the Headquarters along with comments of Audit Authorities for examination and onward transmission to the 2nd Respondent (1st Respondent). 6.PETITIONER'S CONTENTIONS: (1)The Learned Counsel for the Petitioner (Applicant) submits that the action of the Respondents 2 to 6 in denying the medical reimbursement in full, is an improper one and as a matter of fact, the Tribunal has wrongly held that the order passed in Appeal, dated 08.08.2006, is a speaking one and that they have taken full care to consider all the admissible claims. (2)According to the Learned Counsel for the Petitioner, the prime contention of the Respondents 2 to 6 before the 1st Respondent/Tribunal is that the Petitioner has taken treatment in a Private Hospital, which does not come within the category of approved Hospitals. https://hcservices.ecourts.gov.in/hcservices/ (3)The Learned Counsel for the Petitioner submits that the Respondents 2 to 6 have not denied the factum of accident and the treatment undergone by the Petitioner. It is the case of the Petitioner that because of the Government Doctors strike, he has been moved to a private Hospital, though he has been directed to be admitted in the General Hospital due to emergency. Also, the Petitioner has been forced to move to Balaji Hospital Private Limited, Guindy, Chennai, on the advise of persons at Chennai and he has been admitted in Intensive Care Unit for nearly 16 days. (4)The Learned Counsel for the Petitioner projects an argument that even today, the Petitioner is forced to spend portion of his Salary for attending to after the effect of surgery that has been performed earlier and the releasing of disallowed sum would be of great help to him to drive over the financial crisis. (5)The Learned Counsel for the Petitioner contends that as per the Official Memorandum, dated 10.06.1997, the Petitioner is entitled to full reimbursement and after giving credit to the amount already paid, he is entitled to the balance amount of Rs.76,331.45. Moreover, the plea of the Petitioner is that he has submitted the original bills, receipt vouchers and other concerned documents, which have not been properly adverted to by the Respondents, because of non application of mind. CONTENTIONS OF RESPONDENTS 2 TO 6: 7.Per contra, it is the contention of the Learned Central Government Standing Counsel for the Respondents 2 to 6 that the Writ Petitioner's bills, as per admissible rates of Government of India, have been settled to a sum of Rs.80,840/- and the admissible claims have been considered, after obtaining necessary relaxation from the Government in making payments and as such, the order of the 1st Respondent/Tribunal in dismissing the O.A.No.636 of 2007, dated 29.01.2009, does not suffer from any serious material irregularity or patent illegality in the eye of law. 8.The Learned Counsel for the Petitioner (Applicant) cites the decision in State of Punjab and Others v. Mohinder Singh Chawla and others, {(1997) 2 Supreme Court Cases 83}, at Page 84, whereby and whereunder, the Honourable Supreme Court has observed thus: “It is now settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee.” 9.He also relies on the decision of this Court in E.V.Kumar v. The Union of India, rep. by the Ministry of Health and Family Welfare (Department of Health), Nirman Bhavan, New Delhi and others, {2003 (4) CTC 29}, at Page 31, wherein in Paragraphs 8 and 9, it is held https://hcservices.ecourts.gov.in/hcservices/ hereunder: “8.A perusal of the bill submitted by the petitioner shows that he has not made any claim towards any of the aforementioned prohibited items. The bill only deals with the surgery, room rent, professional charges, Doctors consultation charges, miscellaneous charges for the use of special dye(Maxima) in view of the condition of the patient and the total amount is shown as Rs.1,44,019/-. Therefore, the bill does not include items which are disapproved by the respondents. As stated earlier, there is no limitation or ceiling in the Rules. It is not possible for the Central Government to issue an Office Memorandum overriding the rule which is statutory in character. 9. With the result, I am inclined to hold that the petitioner is entitled to the full amount as claimed by him, namely Rs.1,44,019/-.” 10.He seeks in aid of the decision of this Court in E.Ramalingam v. The Director of Collegiate Education College Road, Chennai-6 and another, {2007 Writ L.R. 1073}, at Page 1074, wherein it is held as follows: “In matters like this, the Government Orders should not be strictly construed as on the date when the Government Order was issued, the treatment viz., PTCA Stent could not have been invented or introduced. In recent days, the concept of treating ailments, has advanced so much, thanks not only to the Speciality Hospitals, Doctors specialized in the modern/advance treatments, but also the advanced techniques in method of treatment with use of sophisticated equipments. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expertised both on academic qualifications and experience gained. Very little scope is left to the patient or his relative to decide as to manner in which the ailment should be treated. Court cannot brush aside the advancement in modern medical treatment. Speciality Hospitals are established for treatment for specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive the beneficial order of the Government, solely on the ground that the said Hospital is not included in the Government Order. It cannot be so, as the Government Order should be read keeping the purpose for which the same was issued. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals https://hcservices.ecourts.gov.in/hcservices/ concerned. Once, it is established, the claim cannot be denied on technical grounds as found in the impugned order. Writ Petition allowed.” 11.However, the Learned Central Government Standing Counsel for Respondents 2 to 5 cites the decision of the Honourable Supreme Court in State of Punjab and others v. Ram Lubhaya Bagga and others, {(1998) 4 Supreme Court Cases 117}, at Page 118 and 119 in Paragraphs 25 and 26, it is held as follows: “The right of the State to change its policy from time to time, under the changing circumstances is neither challenged nor could it be. It is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belong to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 When it restricts reimbursement on account of its financial constraints. Right of one person correlates to a duty upon another, individual, employer, Government or authority. The right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizens as its primary duty. No doubt Government is rendering this obligation by opening Government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its upkeep, maintenance and cleanliness has to be beyond aspersion. To employ the best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at the entry point but also during the whole tenure of their service. Since it is