IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Writ Petition No.16542 of 2009 (O&M) HC Kashmir Singh and others … Petitioners Versus State of Punjab and others … Respondents 2. Civil Writ Petition No.1384 of 2010 (O&M) HC Darshan Singh and others … Petitioners Versus State of Punjab and others … Respondents 3. Civil Writ Petition No.4508 of 2011 Ram Lubhaya … Petitioner Versus State of Punjab and others … Respondents Date of decision: 14th November, 2011 CORAM: HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. P.K. Ganga, Advocate for the applicant-petitioners in CWP No.16542 of 2009. Mr. Randeep Singh Rana, Advocate for the applicant-petitioners in CWP Nos.1384 of 2010 and 4508 of 2011. Mr. Rupinder Khosla and Ms. Madhu Dayal, Additional Advocate Generals, Punjab Ms. Rita Kohli, Advocate for respondent No.6 in CWP Nos. 16542 of 2009 and 1384 of 2010. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 KANWALJIT SINGH AHLUWALIA, J. Employees of the Police Department of the State, twenty one in number, who are posted as Head Constables and Constables in the three districts (Bathinda, Patiala and Hoshiarpur) have invoked writ jurisdiction of this Court by filing three writ petitions. CWP No.16542 of 2009 titled as ‘HC Kashmir Singh and others v. State of Punjab’ has been preferred by 9 Head Constables and 1 Constable deployed by the Police Department in District Bathinda; CWP No.1384 of 2010 titled as ‘HC Darshan Singh and others v. State of Punjab and others’ has been preferred by 10 Head Constables posted in District Patiala and CWP No.4508 of 2011 has been instituted by Constable Ram Lubhaya discharging his duties at District Hoshiarpur. All these 21 police officials are suffering from Hepatitis C and B, HIV etc. They were diagnosed as critical patients. They were to be administered Pegylated Interferon alfa-2b injections for a duration of six months or one year, as the Doctor may prescribe. Depending upon the condition of the patient, number of injections to be administered was to vary from 24 to 48. The cost of each injection being exorbitant, a poor employee not in a position to spend the amount of treatment from his resources, made a prayer that the Court should order hundred percent advance reimbursement of the cost of injection. Initially these writ petitions were filed challenging the Government instructions, whereby disbursement in advance of total cost of treatment was limited up to seventy five percent and the remaining expenditure of twenty five percent was to be reimbursed after the employee had spent the same, on the ground that an employee cannot be allowed to die for want of funds, and therefore, a prayer was made that 100 percent cost of injections to be purchased by the employee be paid in advance. The interim order dated 29th October, 2009 passed in CWP No.16542 of 2009 titled as ‘HC Kashmir Singh and others v. State of Punjab’ has already taken care of this grievance of the petitioners to that writ petition. In other two writ petitions, no such interim orders were 2 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 passed. However, for the injections to be administered in future we have to determine as to whether an employee is entitled to 100 percent advance payment towards the cost of injections or not. In the reply filed to the present petitions, another objection has been raised by the Accounts Wing of the Police Department regarding the cost of injection. A specific plea has been raised that the employees have been charged by the Chemists at the rate of Rs.10,900/- per injection, whereas these injections are available at the Medical Colleges and Hospitals of the State at Amritsar, Patiala and Faridkot at the rate of Rs.6,300/- per injection, and thus, the bills submitted by the petitioners can be settled only at the rate of Rs.6,300/- per injection. These being the broad features of these cases, we have been called upon to answer the following two questions: (1) Whether the petitioner-employees are entitled to 100 percent advance payment of total cost of medical treatment as out door patients for critical/dreaded illness suffered by them? (2) On the facts of these cases, at what rate the payment of injections is to be made to the petitioners? At the first instance, we propose to gather facts from CWP No.16542 of 2009 titled as ‘HC Kashmir Singh and others v. State of Punjab and others’. It is pleaded in this writ petition that a routine health check-up was undertaken by the Government agencies to ascertain general health condition of the police personnel. 150 police personnel were diagnosed to be suffering from Hepatitis B and C. Out of these employees, the condition of 49 was found to be critical and the Police Department took active steps to get them medically treated. The treatment of each patient involved an expense of Rs.3,30,000/-. On 24th August, 2009 vide letter (Annexure P-2), Senior Superintendent of Police, Bathinda wrote to the Director General of Police, Punjab, Chandigarh requesting that an amount of Rs.96,13,800/- be sanctioned for the 3 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 treatment of 49 patients of Hepatitis C and B, out of which 18 injections have been given to each of the 44 patients. It was further stated that the employees are showing their inability to incur the cost of further 6 injections at their own expense, therefore, permission be granted at the earliest that 25 percent of the cost which an employee has to incur be disbursed by the Department. Again, on 27th August, 2009, Senior Superintendent of Police, Bathinda addressed a communication (Annexure P-1) to the Deputy Inspector General of Police, Faridkot Range, Bathinda that there is a requirement of Rs.54,93,600/- for providing full treatment to the victim employees. Again, Senior Superintendent of Police, Bathinda sent a note (Annexure P-4) to the Director General of Police, Punjab, Chandigarh stating that to a few employees the injections are to be administered for a duration of one year instead of six months, and therefore, further funds be provided. To similar effect is the communication (Annexure P-5) addressed by the Controller (Finance and Accounts) from the office of Director General of Police, Punjab, Chandigarh to the Principal Secretary, Government of Punjab, Home Affairs and Justice Department that for continuation of the treatment of patients funds be provided. Since funds were not being released, the writ petitioners have challenged the instructions issued by the Health and Family Welfare Department, Punjab vide Annexure P-7, wherein it is stated that the Government has taken a decision to disburse 75 percent of advance of the approximate amount required for the treatment of patients suffering from complicated chronic diseases, from Medical Colleges of the State of Punjab, PGIMER Chandigarh and AIIMS New Delhi, as out-door patients. Since the petitioners have shown helplessness to contribute 25 percent of the amount, a Division Bench of this Court on the first day of hearing of CWP No.16542 of 2009 titled as ‘HC Kashmir Singh and others v. State of Punjab and others’, while issuing notice, ordered that PGIMER Chandigarh shall continue to administer injections to the petitioners without insisting for 4 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 prior payment. The Senior Superintendent of Police, Bathinda filed a reply on behalf of the Police Department and made following averments: “3. That now again an amount of Rs.1,96,000/- has been sanctioned to each petitioner vide order No.18377- 79/Acctt.-4 dated 30.10.2009 (Annexure R-1) by the Respondent No.2 SSP Bathinda (Respondent No.4) has been directed to deposit above amount in P.G.I. through Cheque or Draft. But as per Letter No.Hep.2009/324 dated 02.05.2009 PGI Chandigarh directed Senior Superintendent of Police, Bathinda to arrange the injections at his own level. (Annexure R-2) Consequently, Quotations of Kumar Brothers (Chemists) Pvt. Ltd. S.C.O. No.7-8, Sector 11-D, Chandigarh & Krishna & Sons Jalandhar were invited for these injections. Quotations of Kumar Brothers (Chemists) Pvt. Ltd. S.C.O. No.7-8, Sector 11-D, Chandigarh was found less than Krishna Brothers Jalandhar. So quotation of Kumar Brother has been approved by the committee. An amount of Rs.4,90,500/- has already been drawn from exchequer following the sanction of funds by respondent No.2. (Annexure R-3) Medicine shall be procured from the approved vendor and shall be administered to the petitioners as per guidelines and schedule provided by PGI Chandigarh.” From a perusal of the above, it is evident that the official respondents not only approved the PGIMER Chandigarh as a hospital for treatment, where injections were to be administered to the petitioner- employees but also approved the source from which injections were to be procured by inviting quotations. The rate of injections was also fixed by the employer. Along with the reply, a communication dated 25th February, 2009 addressed by Head of the Department of Hepatology to the Medical Superintendent, PGIMER, Chandigarh has been annexed as Annexure R-2. For the controversy raised in the present petitions, it is necessary to reproduce the entire letter, which reads as under: “Dear Sir, 5 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 With reference to the letter No.630/A dated 9/02/09 by the Senior Superintendent of Police, Bhatinda, I wish to inform that Hepatitis C treatment involves injections of Pegylated Interferon to be taken every week for 6/12 months depending on the Genotype. In addition Capsule Ribavirin has to be taken daily for this period of time. The treatment has to be very regular. There are only two companies which manufacture these injections (Schering Plough and Roche). A single injection costs between Rs.10,000/- to 14,000/-. The Senior Superintendent of Police, Bathinda may be asked to arrange injections from the said Companies (Pegylated interferon α2b 1.5 µg/kg body weight (Schering Plough) or Pegasys α2a 180 µg (Roche). The estimate could thus be made on an individual basis as approximately Rs.2-3 lacs for a patient with Genotype 2 and 3 (6 months course) and Rs.5-6 lacs for Genotype 1 and 4 – depending on the patient.” Furthermore, from a perusal of Annexure R-3 it is evident that the payment towards cost of injection amounting to Rs.4,90,500/- has been directly made by the office of Senior Superintendent of Police to the approved Chemist i.e. M/s Kumar Brothers Chemists Pvt. Ltd., Chandigarh by way of a demand draft (copy at Annexure R-3). Again, another affidavit dated 10th November, 2009 was filed by the Senior Superintendent of Police, Bathinda, wherein it was stated that “Medicine shall be procured from the approved vendor and shall be administered to the petitioners as per guidelines and schedule provided by PGI Chandigarh. Thus, the present petition is liable to be dismissed.” To quote stand of the department in exact words “all the effected police officials are need to spend 25% expenditure from their own level and in this regard all the petitioners have also submitted their written consents.” On 16th November, 2009, Deputy Controller (Finance & Accounts) CPO, DGP, Punjab filed his affidavit and stated that the remaining 25 percent of the estimated cost of treatment will be paid to the petitioners on 6 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 submission of medical bills after they undertake the treatment. In this affidavit, a specific objection was taken that tender for purchase of Injections and Capsules for Hepatitis B and C were issued and the contract has been finalized and now the price of Injection has been fixed at Rs.6300/- in place of Rs.10,900/-, whereas the petitioners have submitted their bills at the old rates. A short reply has also been filed on behalf of the Director, PGIMER, Chandigarh, wherein it is stated that some of the patients were diagnosed with Hepatitis B Genotype 2 and 3 and in their cases six months’ therapy was recommended and those patients who were having Hepatitis C Genotype 1 and 4, they have to take the injections for one year. From the pleadings, it has surfaced that 24 injections are to be administered within six months and those patients who required treatment for one year they are to be administered 48 injections. One injection was to be given every week. The facts in CWP No.1384 of 2010 titled as ‘HC Darshan Singh and others v. State of Punjab and others’ are almost identical, however, vide a separate CM application it has been brought to our notice that the petitioners in this writ petition have incurred expenses from their own pocket and the payment ranging from Rs.1,10,000/- to Rs.2,90,000/- is due to them from the Government due to dispute regarding the cost of injection. In the reply filed to this writ petition, the Senior Superintendent of Police, Patiala has stated as under: “… … … It is brought to the notice of this Hon’ble Court that same injection at the P.G.I. costs Rs.10,900/- whereas at Rajindra Hospital, Patiala it costs only Rs.6300/-.” Therefore, the bills of petitioner-employees are yet to be settled. Though the initial prayer made was that instead of 75 percent, entire 100 percent advance payment be made; now the added grievance is that medical bills are not being settled as the employees have been paid at the rate of Rs.6,300/- instead of Rs.10,900/-, i.e. the actual cost incurred by them towards purchase of each injection. 7 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 In CWP No.4508 of 2011 titled as ‘Ram Lubhaya v. State of Punjab and others’, the petitioner has also been diagnosed to be suffering from chronic Hepatitis C Genotype-3. As per the certificate dated 24th April, 2009 (Annexure P-2) issued by the Department of Hepatology, PGIMER, Chandigarh, he is to be given one injection every week for a period of six months. The petitioner has also prayed that the entire amount be paid in advance. We have heard counsel for the parties. From the facts detailed out above, there is no dispute that all the petitioners are Government employees and are entitled to medical reimbursement as per the policy of the State. During the course of employment, the department had undertaken a routine check up and the petitioners have been diagnosed to be suffering from Hepatitis B and C. At the initiative of the employer, they were referred to PGIMER, Chandigarh. The concerned Senior Superintendent of Police of the District has further taken effective steps to facilitate treatment to the employees, who were critically ill and were suffering from the dreaded diseases. Quotations were sought and the Chemist was approved, from whom the employees had to purchase injections. After comparison of the quotations, rates were also fixed by the department. At the behest of the department, the petitioner-employees started undertaking treatment from PGIMER Chandigarh, which is an institute of repute. As per Annexure R-2 to the affidavit dated 25th February, 2009, Department of Hepatology, PGIMER, Chandigarh has stated that injections manufactured by two companies, viz. Schering Plough and Roche, were to be administered to the employees. It is later-on that the Government had flouted a tender and had approved another source from which injections were to be purchased and made available at the hospitals run by three Medical Colleges of the State at Patiala, Amritsar and Faridkot. No communication was served upon the employees directing them to discontinue their treatment from PGIMER, Chandigarh and shift to the hospitals of Medical Colleges of the State. We cannot 8 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 become oblivious of the fact that the relationship of a patient and a doctor is of trust and faith. A patient, who is continuing to take treatment, will be hesitant to change the doctor and hospital midway. The petitioner- employees were referred to the PGIMER, Chandigarh by the employer. Not only the Chemist was chosen but the rate of injections was also settled by the employer. Therefore, after the employees have been administered injections, now the objection raised by the Accounts Wing of Police Department that the injections at the lesser rate are available in State of Punjab cannot be held to be a justifiable ground to deny reimbursement of the amount to the employees at the cost at which they had purchased the injections. No fault on the part of the petitioner-employees is discernible. The fault, if any, is in the mechanism which the employer had evolved for giving treatment to the petitioner-employees. It is not the case where any deception, fraud or misrepresentation is imputed to the employees. They have not taken any pecuniary advantage, rather payment regarding one consignment has been paid to the Chemist directly by Senior Superintendent of Police, Bathinda. Therefore, employees can not be made to suffer and payment of bill cannot be reduced to a lesser rate i.e. Rs.6,300/-. Furthermore, tender floated by Punjab Government is for bulk purchase. Rate of retail sale is bound to be on higher side. To justify our above conclusion and the direction which we propose to issue, it will be pertinent to make a reference to the purchase order (Annexure R-4) dated 28th May, 2009 issued by the Directorate of Research and Medical Education, Punjab, Chandigarh. In this purchase order, the supplier was asked to supply 894 injections to Sri Guru Teg Bahadur Hospital, Amritsar for treatment of Hepatitis C Police Department patients. The purchase order further stated that on all the injections, including the cartons containing the injections, it should be boldly printed ‘Punjab Government Supply Not For Sale’. Thus, it is evident that bulk purchase of injections has been made by the State Government for various medical colleges run 9 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 by it and those injections are to be administered there or supplied to the patients. Therefore, taking totality of the peculiar facts and circumstances of the case that bulk purchase order has been placed by flouting tender by the State Government, we are of the view that there is no need to answer the question formulated by us. During pendency of the writ petitions, much water has flown, substantial part of treatment has already been taken, injections have been purchased and administered. Thus, in these circumstances, we dispose of all the three writ petitions by issuing following specific directions, as the same will advance interest of justice and equity: (a) The petitioner-employees will be entitled to reimbursement of the actual cost of injections at the rates at which they had already purchased till today; (b) Henceforth, the Police Department will coordinate with the hospitals of Medical Colleges of the State, which are procuring the injections at the rate of Rs.6,300/- per injection and will provide injections to its employees, subject to approval by the PGIMER Chandigarh; (c) Each of the employees, to whom an injection is provided, will furnish a certificate of the concerned doctor that the injection indeed has been administered upon him; (d) Since in the peculiar facts of the case, we have ordered that injections shall be provided by the Police Department, the grievance that 100 percent payment towards the cost of injection be made in advance no longer survives; (e) The payment of balance amount due to the petitioner- employees towards the medical reimbursement for purchase of injections till today shall be made by the Police Department within two months from the date of receipt of a certified copy of this order. 10 Civil Writ Petitions No.16542 of 2009; 1384 of 2010 and 4508 of 2011 In view of the directions given above, all the Civil Misc. applications filed in these writ petitions require no separate orders and stand disposed of. [RANJAN GOGOI] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE November 14, 2011 rps 11