Civil Writ Petition No.7104 of 2000 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7104 of 2000 Date of decision : May 14 , 2008 Er. K.C. Verma .....Petitioner Versus The Punjab State Electricity Board, The Mall Patiala through its Secretary ...Respondent **** CORAM: HON'BLE MR. JUSTICE S. D. ANAND Present: Petitioner in person. Mr. Kapil Kakkar, Advocate for the respondent. S. D. ANAND, J. The case before this Court not only typifies callous and chronic indifference of the respondent Punjab State Electricity Board (hereinafter referred to as “the Board”) towards an employee who gave the best years of his life to the Board, it is also indicative of an indefensible resistance offered by the Board to the plea made by the petitioner for reimbursement of the medical expenditure incurred by him and also his wife on their out door treatment which was preceded by hospitalization. This Court, as sentinel of the rights of citizens, public servants or the non, cannot afford to slumber when the facts evident are revelatory of a sinful attitude on the part of the quarters concerned. It is beyond the pale of controversy that the petitioner, a 1958 pass out from I.I.T., Kharagpur with degree of B.Tech. (Hons.) in Civil Civil Writ Petition No.7104 of 2000 -2- **** Engineering, joined as Assistant Engineer (Civil) on 1.8.1959 and moved out, on superannuation, as Chief Engineer on 31.1.1993. After having undergone a bypass surgery at the All India Institute of Medical Sciences, New Delhi (hereinafter referred to as “AIIMS”) in June, 1995, wife of the petitioner was discharged on 11.7.1995. Thereafter, she had been under continuous treatment at the AIIMS and also the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as “the PGI”). At the latter institution, she was referred to as out door patient ticket No. 640-8612 CVC86126, 68862 CC 62862-3599994 etc. Over there, she has been getting treatment on the basis of the discharge slip issued by the AIIMS. The petitioner, a chronic patient of Diabetes, had been under treatment at the PGI ever since 3.8.1998. On 29.12.1999, petitioner had gone to the Government Medical College and Hospital, Sector 32, Chandigarh to visit a relation hospitalized over there. While being at the premises, petitioner had an attack of right side paralysis and also lost speech. He had to be hospitalized on 29.12.1999 itself. Though he was discharged, as an indoor patient, on 12.1.2000, “he was advised treatment as outdoor patient and physiotherapy treatment”. It was Diabetes which led to the attack afore-mentioned. Apart there from, he also “had the attack of prostrate and also he became psychic.” The above quoted averments made by the petitioner are contained in paras 13 to 15 of the amended writ petition. In the corresponding paras of the written statement, the following response has been offered:- Civil Writ Petition No.7104 of 2000 -3- **** 13. In reply to para 13 it is submitted that the action of the respondent not entertaining the claim of the petitioner is perfectly legal and just and as per the instruction issued by the board and Govt. from time to time. 14 & 15. Contents of para 14 and 15 are denied for want of knowledge.” A conjunctive perusal of the pleadings of the parties reveals that there is no controversy about the following facts:- The Board adopted the Punjab Service (Medical Attendance) Rules, 1940 (hereinafter referred to as “1940 Rules”) for application to its employees and also pensioners and their dependents. The plea is that, as per decision taken by the Board, those 1940 Rules are “made applicable to the employees/pensioners and their dependents which were not only existing at the time of adoption but had been declared to be applicable to the employees/pensioners as well as the wives and husbands, whenever they are changed, altered and added by the State of Punjab ipso facto, at any subsequent time.” Vide its circular dated 9.3.1978 (Annexure P-1), the Punjab Government made the following provisions for its employees/pensioners :- “i) Free medical aid will be allowed to the widow/widowers and minor children, if any, of all the Punjab Govt. employees/pensioners in receipt of superannuation/ retiring pension after their death on the same pattern as are applicable to the families of the Govt. employees who died in harness; and Civil Writ Petition No.7104 of 2000 -4- **** ii) That Punjab Govt. pensioners be allowed full medical reimbursement”. Thereafter, the Punjab Government issued further instructions No. 11341 dated 11.5.1992 (Annexure P-2) which (instructions) were duly adopted by the Board vide No. 99457/110089 dated 11.5.1992 (Circular No. 15 of 1992) “vide which the treatment to the only chronic ailments of employees/pensioners and their wives and husbands of the employees were held entitled to actual/full medical reimbursement of these ailments. The Chronic ailments stood mentioned in the said circular under various categories, in which the case of the petitioner as well as his wife also falls.” (underlined for emphasis in the context of the relief sought by the petitioner). The above averments are contained in paras 4 to 6 of the writ petition. As evident from a perusal of the corresponding paras of the written statement, thereby the contents thereof were admitted. In short, the point for adjudication is whether the petitioner is entitled to the reimbursement of expenditure incurred by him (for self and also his wife), as an out door patient, though that expenditure is a part of the treatment undergone by him ( on account of paralytic stroke and Diabetes) and the bypass surgery undergone by his wife. It requires particular notice, at the very outset, that the adoption of 1940 Rules (framed by the Punjab Govt.) and also adoption of instruction dated 11.5.1992 (issued by the Punjab Govt.) by the respondent-Board has not been contested in the pleadings offered by the Board. Before undertaking adjudicatory exercise any further, it also requires notice that the following precise averments were made by the petitioner in paras 8 (D & E) Civil Writ Petition No.7104 of 2000 -5- **** of the amended writ petition:- “8-D It is further stated that the Punjab Government (Medical Attendance) Rule, 1940 were promulgated by the then Govt. of Punjab in view of the powers conferred in clause (b) of (2) of Section 241 of the Govt. of India Act, 1935 which authorized the Governor of Punjab to make rules in the case of pensioners/serving personnel in connection with the affairs of the state entitling the serving employee or pensioners for reimbursement of medical charges. Thus statutory rules cannot be circumvented through executive instructions restricting the reimbursement of medical charges. It has been held in case of Renu Sehgal 1998 (4) RSJ 577 at 559). The Punjab State has no power to change the existing law by way of executive instructions. Supreme Court of India has decided that executive instructions cannot override or amend the statutory Rules Sant Ram Vs. State of Rajasthan 1967 AIR page 1910 at 1914 reproduced as under:- “it is stated that Government cannot amend or supersede the statutory Rules by administrative instructions.” 8-E In the written statement of the respondent Board dated 28.7.2000 it is admitted in para 1 that similar claim as has been raised by the petitioner was also made by Er. Civil Writ Petition No.7104 of 2000 -6- **** P.C. Gupta through CWP No. 982/1999 in the Punjab and Haryana High Court which was allowed vide order dated 28.4.1999. This decision of the Division Bench stands reported vide 1994 (4) Vol. 38 RSJ page 233. The respondent Board also lost their case in the LPA in this Hon’ble Court. Further more answering respondent had preferred Special Leave Petition in the Supreme court of India against the above judgment. The Hon’ble Supreme court vide order dated 30.8.1999 originally granted interim stay but SLP No. 4883 dated 30.8.99 filed by the respondent Board stood finally dismissed by the Hon’ble Supreme Court vide their order dated 27.11.2001. In para 17 of the said written statement of respondent Board it has been stated that in case of Jagsir Singh Sandhu Vs. PSEB, CWP No. 15938 of 1998 claiming the medical reimbursement on actual expenses basis the Board lost in the Punjab and Haryana High Court and also lost in LPA. Furthermore against this decision of the High Court Board filed an SLKP in Supreme Court which has also been dismissed by the Hon’ble Supreme Court vide order dated 27.11.2001 along with the case of P.C. Gupta referred to above, thus confirming the decision of this Hon’ble High Court. In the case of D.C. Katoch, Staff Officer Administration, Officer of Director General of Police (Home Guards, Civil) Vs. Secretary of Civil Writ Petition No.7104 of 2000 -7- **** Government of Punjab, Department of Home Affairs and Justice, Chandigarh and others CWP No. 7596 of 1999 was decided in the favour of the petitioner for reimbursement of his claim of outdoor treatment of his wife by Hon’ble Justice V.K. Bali vide order dated 15.11.1999 against which Punjab Government went in an appeal through SLP No. 11943 of 2001 to the Hon’ble Supreme Court of India which was also dismissed.” The Board has not filed any counter to those paras. On point of fact, it may be stated that the Board did file a counter to the initially filed writ petition. However, it did not file amended counter even after the filing of the amended writ petition dated 1.12.2004 by the petitioner. The law on the point would appear to have been authoritatively laid down by a Division Bench of this Court in P.C. Gupta Vs. Punjab State Electricity Board, Patiala and others 1999 (4) Recent Services Judgments 233. In that case, petitioner had undergone surgery for transplantation of his kidney. His claim for reimbursement for the expenditure incurred on his out door treatment was resisted by the Punjab State Electricity Board. The Board did concede his hospitalization at the PGI and also the kidney transplant undergone by him but denied his entitlement for reimbursement of the expenditure incurred by him as out door patient. Relying upon the observations made by a Division Bench this Court in Civil Writ Petition No. 15938 of 1998 (Jagsir Singh Sandhu Vs. Punjab State Electricity Board, Patiala and others ) decided on 1.2.1999, a Division Bench of this Court in P.C. Gupta’s case (Supra) observed as Civil Writ Petition No.7104 of 2000 -8- **** under:- “……Apart from that, we are of the view that the aforesaid Circular dated 30.4.1998, apart from being prospective in nature, cannot apply to a patient who might have had in-door treatment which is to be followed by out-door treatment after being discharged as follow up check-ups and medicines. As in the present case, the petitioner underwent a kidney transplantation as in in-door patient. After being discharged as an in-door patient, follow up medical treatment/check-up has necessarily to follow as an out-door patient. Would it mean that such a patient is not entitled to medical reimbursement towards his treatment as an out-door patient? According to us, the answer has to be in the negative. As discussed above, an in-door patient after being discharged normally has to get treatment as an out-door patient as a follow up action of his in- door treatment. The department has to reimburse an employee regarding expenses on his treatment which started as in in-door patient.” (Underlining for emphasis) For facility of the reference, I would like to quote hereunder the observations made by a Division Bench of this Court in Jagsir Singh Sandhu’s case (Supra) which were quoted and relied upon in P.C. Gupta's case (supra) :- “Once the disease is the same and the treatment is also the same, the mere fact that the petitioner is not getting treatment as an out-door patient would not make any difference. The Civil Writ Petition No.7104 of 2000 -9- **** matter herein is also covered by a judgment of this court in Civil Writ Petition No.1910 of 1998 Ravi Kant Vs. State of Haryana and others, decided by us on July 8, 1998 vide judgment, Annexure P-5. During the course of arguments, learned counsel for the respondents had to concede that the petitioner is entitled to medical reimbursement.”(Underlining for emphasis). As would be evident from a perusal of the observations made by a Division Bench of this Court in Jagsir Singh Sandhu’s case and also P.C. Gupta’s case (Supra), an employee entitled to medical reimbursement as an in-door patient cannot be denied the reimbursement of the charges incurred by him as an out-door patient if the out door treatment is a compulsive follow up of the in-door treatment. It is common ground that the judgments rendered by this Court in Jagsir Singh Sandhu's case and P.C. Gupta’s cases are concerned, those were challenged by the Board in Civil Appeal Nos. 4302 and 4883 of 1999. The Apex Court dismissed both the appeals. It obviously follows therefrom that the judgments rendered by two Division Benches of this Court in the above quoted cases attained finality. As would be evident from a perusal of those judgments (particularly the quoted part thereof and also the underlined portion therein), this Court held that an employee after being discharged as an in-door patient, is entitled to the reimbursement of the expenditure incurred by him as an out-door patient as a follow up action of his in-door treatment. It was particularly noticed in those judgments that treatment undergone by an Civil Writ Petition No.7104 of 2000 -10- **** employee as an in-door patient and also the follow up treatment thereafter as an out-door patient by the department cannot be differentiated by the department for the purpose of reimbursement. In the light of the averment appearing in Annexure P-11:- “If however, Punjab Govt. relaxes any such condition, the PSEB will also consider it as the PSEB generally follows the Punjab Govt. on this aspect.” The Chairman/Secretary of the respondent-Board was directed to file an affidavit in respect of the following points:- i) Whether any relaxation in the context of the Policy (Annexure P-3) has been made till date? If response is in affirmative, the particulars of such cases would be furnished in the affidavit itself. ii) Whether the Punjab State Electricity Board has been invariably following the Punjab Government Policy in the matter of reimbursement of medical expenditure ( in- door as also out-door)? In response thereto, the Secretary of the respondent-Board filed an affidavit conceding that “however, till date, only in one case, keeping in view the peculiar facts and circumstances of the case on compassionate grounds with regard to kidney transplantation, a relaxation was given to Sh. Sudesh Kumar, Sr. Asstt. O/O Chief Engineer/Civil Design, Patiala by the Board in its meeting held on 27.6.2002 vide memorandum No. 123/BD/EB- 16/Vol-14/L-29 dated 17.5.02.” As would be apparent from a perusal of the affidavit filed by Civil Writ Petition No.7104 of 2000 -11- **** the Secretary, Punjab State Electricity Board, relaxation clause was invoked to in the above indicated case. The respondent-Board was afforded an opportunity to “consider the feasibility of considering one time settlement in the context of medical re-imbursement bill submitted by the petitioner for his own treatment and that of his wife.” The respondent-Board offered the response in the negative. If relaxation had been granted in one case, the competent authority is under obligation to indicate the differentiation between the case of the petitioner and case in which relaxation clause was invoked. There might well be facts which were peculiar to other case and which may not be available in the case of the petitioner. It is for the competent authority to notice and indicate those facts to the Court. Those loring over establishments, to which category respondent-Board belongs, must exercise their functions in a manner which is transparent to the Court. In the normal course of things, if a particular case warranted invoking of relaxation clause and if those facts are indicated, the Court would be reluctant to interfere in the exercise of administrative discretion by the competent authority. However, the non noticing of special reasons warranting invocation of relaxation clause and the non offering of distinguishing features as between that case and another case would impel the Court to quash the refrain on the part of the competent authority in the latter case. In view, thus, of the fact that judgments rendered by a Division Bench in Jagsir Singh Sandhu's case (supra) and P.C. Gupta's case (supra) have attained finality and also in view of the facts noticed in the preceding paras of this judgment, the resistance offered by the Board to the Civil Writ Petition No.7104 of 2000 -12- **** reimbursement plea preferred by the petitioner cannot be said to be valid. In the light of the fore-going discussions, the writ petition shall stand allowed. A writ of Mandamus is issued directing the respondent- Board to reimburse the actual expenditure against medical bills passed by the Medical Superintendent of the PGI and GCMH, Sector 32, Chandigarh. In the peculiar circumstances of the case, the writ petition is allowed with special costs of Rs. 10,000/- which shall be payable by the Board. May 14, 2008 (S. D. ANAND) Pka JUDGE