ORDER
A.V. Haridasan, Vice Chairman
1. The applicant’s husband Sri B. Jaganathan who was a Postal employee was retired on medical invalidation with effect from 15.6.1993. He was suffering from coronary heart ailment. The applicant was appointed on compassionate grounds in the Postal Department and is working as a Postal Assistant in the Head Post Office, Kollam. In September, 1996, Sri Jaganathan suffered a severe heart attack. His Authorised Medical Attendant advised him coronary angiography and bypass surgery. The Head of the Department, Department of Cardiology, Medical College and Hospital, Thiruvananthapuram has on 6.9.1996 issued Annexure A1 certificate to the effect that Sri Jaganathan, husband of the applicant was suffering from severe Ischemic Heart Disease, that his stress test showed that he urgently needed coronary angiography and bypass surgery if indicated and that as facilities for such procedure were not available in any medical college hospitals in Kerala State, he was referred to Institute of Cardio Vascular Diseases, Madras. The Institute of Cardio Vascular Diseases, Madras, is the nearest private hospital recognised by the 4th respondent for coronary bypass surgery. The Director of Health Services, Kerala issued vide the orderdatcd 10.9.96 giving sanction to the applicant for treatment of her husband Jaganathan at the Institute of Cardio Vascular Diseases, Madras in terms of Rule 7A of Kerala Government Servants Medical Attendance Rules, 1960 (Annexure A2). The applicant’s husband was thereafter taken to the Institute of Cardio Vascular Diseases, Madras, where he was admitted on 17.9.1996. He underwent coronary angiography on 18.9.1996 and bypass surgery was performed on 20.9.1996. While he was discharged on 30.9.1996, the applicant paid the bill for treatment amounting to Rs. 1,44,727. However a sum of Rs. 72,730/- alone was reimbursed by the respondents. Therefore the applicant submitted Annexure A3 representation to the second and third respondents seeking sympathetic consideration and reimbursement of the entire amount incurred by her for specialised treatment of her husband. As the representation was not considered and disposed of, the applicant filed O.A. 813/97. The respondents contended that as the applicant had to incur additional expenses over and above the package as she did not adopt the procedure for availing the facility under the package scheme, she was not entitled to full reimbursement. However as the Counsel of the respondents stated that unless the rules are relaxed, it would not be possible to grant full reimbursement to the applicant and that the application may be disposed of with appropriate directions to respondents 3 and 4 for consideration and disposal of the representation submitted by the applicant claiming relaxation. The application was therefore disposed of with directions to the applicant to make a representation in detail to the third respondent within 15 days and to respondents 3 and 4 namely the Director General, Postal Department, New Delhi and the Union of India represented by the Secretary, Health and Family Welfare, New Delhi to consider the representation with due sympathy and consider reimbursement of medical claim if necessary relaxing the normal rules. The applicant submitted representation Annexure A6 seeking reimbursement of the entire expenses incurred by her for the treatment of her husband, granting relaxation of the normal rules. However, the third respondent by Annexure A7 order rejected the claim upholding the decision taken earlier by the second respondent. Aggrieved by that the applicant filed O.A. 605/1999 seeking to set aside the order Annexure A7 and for direction to the Union of India represented by its Secretary, Health and Family Welfare, New Delhi to consider the claim of the applicant in relaxation of the normal reimbursement rules for reimbursement of the medical expenses in connection with the treatment of her husband in the Institute of Cardio Vascular Diseases, Madras and for direction to the respondents to consider the claim of reimbursement in full. The Tribunal allowed the application, set aside the Annexure A7 order noting that the 4th respondent has not applied its mind and not considered the need for relaxation and directed the respondents 3 and 4 to comply with the directions contained in the judgment in O.A. 813/97 strictly and pass a considered order. In purported compliance of the directions contained in the judgment of the Tribunal in O.A. 605/1999 the third respondent has issued the impugned order Annexure A10 expressing regret as the request of the applicant for reimbursement in full of medical expenses incurred on the treatment of her husband could not be acceded to. Aggrieved by that the applicant has filed this application seeking to set aside Annexure A10 order, declaring that the order at Annexure A10 is not in compliance of the direction in Annexures A5 and A9 orders and for direction to the 4th respondent to relax the normal reimbursement rules for reimbursement of the medical charges incurred by the applicant for the treatment of her husband in the Institute of Cardio Vascular Diseases, Madras and for direction to the 4th respondent to disburse the balance amount of Rs. 69,997 of the medical charges incurred by the applicant.
2. The respondents in their reply statement seek to justify the impugned order on the ground that the decision to avail of the treatment from a private hospital at Madras was not taken in a short span of time, that the applicant has failed to obtain the permission of the second respondent for treatment of her husband in the Institute of Cardio Vascular Diseases, Madras which is not the nearest approved hospital and that therefore the applicant was not entitled to the relaxation. It is also contended that Sri Chitra Thirunal Institute of Medical Sciences, Thiruvananthapuram has the facility for bypass surgery and the applicant has not availed of this facility. Since whatever is reimbursable as per rules have been reimbursed, the respondents contend that the application is devoid of any merit.
3. I have gone through the entire material placed on record meticulously and have heard the argument of Mr. C. Unnikrishnan, the learned Counsel of the applicant and Mr. K.R. Rajkumar, the Additional Central Govt. Standing Counsel appearing for the respondents.
4. The learned Counsel of the applicant with considerable vehemence argued that the impugned order Annexure A10 has been issued without application of mind and without considering the directions contained in the order of the Tribunal in O. A. 813/97 and the specific direction in the order of the Tribunal in O.A. 605/99 in which the respondents 3 and 4 were directed to comply with the directions contained in the order in O.A. 813/97 strictly and to pass a considered order. The learned Counsel of the respondents on the other hand argued that as the reason for rejection of the claim of the applicant has been stated in Annexure A10, there is no merit in the contention that Annexure A10 is not a speaking order and that the application is devoid of merit. That the applicant had to incur an expense of Rs. 1,44,727/- for treatment of her husband at the Institute of Cardio Vascular Diseases, Madras and that the Institute of Cardio Vascular Diseases, Madras is an approved institution by the CGHS are not in dispute. Reimbursement of Rs. 72,730/- alone was granted on the ground that that is the amount which the Government will have had to pay had the applicant taken prior approval of the third respondent for treatment and that because the applicant did not take the prior approval, the applicant had to pay Rs. 1,44,727/- for which the Government is not responsible. That the applicant’s husband was taken under emergent situation to the Institute of Cardio Vascular Diseases, Madras on 17.9.96 and that the coronary angiography and bypass surgery were performed on 18.9.96 and 20.9.96 are facts borne out from record. It is seen from Annexure A1 certificate issued by the Professor and Head of Cardiology, Medical College Hospital, Thiruvananthapuram that urgent coronary angiography and bypass surgery if indicated was found necessary in the case of the applicant’s husband and that facilities for these being not available in any Medical College Hospitals in Kerala State, the patient was referred to Institute of Cardio Vascular Diseases, Madras on 6.9.98. From Annexure A2 order issued by the Director of Health Services, Kerala, it is seen that in view of the Annexure A1 certificate of Professor and Head of Department of Cardiology, sanction was accorded to the applicant for treatment of her husband Sri Jaganathan at the Institute of Cardio Vascular Diseases, Madras. If the facility for angiography and bypass surgery was available in any recognised institutions in Kcrala, the Professor and Head of the Department of Cardiology, would not have certified that such facility was not available and would not have referred the applicant’s husband for treatment to Institute of Cardio Vascular Diseases, Madras and the Director of Health Services also would not have accorded sanction. The contention of the respondents that such facility was available in Sri Chitra Thirunal Institute of Medical Sciences, Thiruvananthapuram on the relevant date is not borne out from Annexure R1 because Annexure R1 is dated 18.10.1996 whereas the applicant’s husband was taken to the Institute of Cardio Vascular Diseases, Madras on 17.9.96, Further it is evident from the facts and circumstances of the case that the condition of the applicant’s husband was such that he could not have waited for his turn for treatment even if such facility was available in Sri Chifra Thirunal Institute of Medical Sciences, Thiruvananthapuram. The argument of the learned Counsel for the respondents that between 6.9.96 and 17.9.96, the applicant could have applied to the third respondent and obtained sanction for treatment of her husband in the Institute of Cardio Vascular Diseases, Madras also does not appear to be sound and convincing as within such a short period it could not have been practically possible for the applicant to get such sanction. The applicant was naturally worried about the health and survival of her husband and she would not be faulted for taking steps for transporting her husband to Institute of Cardio Vascular Diseases, Madras as immediate angiography and bypass surgery was felt necessary as recommended and referred to by the Professor and Head of Cardiology, Medical College Hospital, Thiruvananthapuram. The argument that the applicant has chosen the Institute of Cardio Vascular Diseases, Madras, for treatment of her husband at her own pleasure not being driven by any urgency does not even appeal to common sense. That was the reason why this Bench in O.A. 813/97 observed–
“We are also of the considered view that this is a fit case where the respondent ought to consider granting the request of the applicant for reimbursement of the entire expenses incurred by her in connection with the treatment of her husband.”
Further the learned Counsel appearing for the respondents in O.A. 813/97 stated that unless rules were relaxed, it would not be possible to allow the full claim and submitted that the application may be disposed of with appropriate directions to respondents 3 and 4 for consideration and disposal of the representation to be submitted by the applicant. Under these circumstances that the Bench directed the applicant to make a representation in detail to the third respondent and directing respondents 3 and 4 to consider the representation with due sympathy and consider reimbursement of the medical claim if necessary relaxing the normal rules. In the order passed (Annexure A7) pursuant to the judgment of the Tribunal in O.A. 813/97 it was noted that the 4th respondent has not considered the grant of full reimbursement in relaxation of the rules. That was why the Tribunal in O.A. 605/99 directed the respondents 3 and 4 to comply with the directions contained in the order in O.A. 813/97. It is unfortunate that this direction of the Tribunal has not been complied with by the respondents 3 and 4 as is evident from the impugned order Annexure A10. The impugned order reads as follows:–
“No. 31-107/97-PAP
Government of India
Department of Posts
Dak Bhavan, New Delhi
Dated the 20 June, 2000
ORDER
Smt. C. Sasikumari, PA, HPO, Kollam, had filed a contempt petition before the CAT, Ernakulam Bench for reimbursement of full medical expenditure incurred by her on the treatment of her husband. The Hon’ble CAT had ordered that Respondent Nos. 3 and 4, i.e. the Director General, Postal Department, New Delhi and the Union of India represented by its Secretary, Health and Family Welfare, New Delhi, are directed to comply with the directions contained in O.A. No. 813/97 strictly and pass a considered order with due application of mind within a period of two months from the date of receipt of a copy of this Order.
Accordingly the case of Smt. C. Sasikumari was referred to the Ministry of Health for reconsideration, keeping in view the above said order of the Hon’ble CAT, Ernakulam Bench. The Ministry of Health have again examined the case and have informed that the Hon’ble Supreme Court of India have made the following observations in the case of Ram Lubhaya Bagga v. Government of Punjab.
“While Government forms its policy, it is based on number of circumstances on facts, 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 the realm which belongs to the executive. Further, no State or any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances permit.”
As such the executive is within its powers to frame rules independently and decide cases accordingly.
In view of the above stated position, it is regretted that the request of Smt. Sasikumari for reimbursement of full medical expenditure incurred on the treatment of her husband cannot be accecded to.
Sd/-
Director (Estt.)
Smt. C. Sasikumari,
Postal Assistant, Head Post Office,
Kollam (Kerala).”
The direction in the judgment of the Tribunal in O.A. 813/97 to the respondents 3 and 4 was to consider the representation with due sympathy and consider reimbursement of the medical claim if necessary relaxing the normal rules. Since the reimbursement by relaxing the normal rules were not considered when Annexure A7 order was passed, the Tribunal in its order in O.A. 605/99 observed as follows :
“10. When there is a direction by this Tribunal, the respondents have no escape, but to comply with it. It cannot be a case of the respondents acting as they feel like. They should have necessarily acted in strict compliance of the directions. It appears to be a case that the 4th respondent has probably felt it infradig to consider the representation of the applicant in compliance with the directions of this Bench of the Tribunal. This attitude of the 4th respondent is only to be deprecated.”
Even inspite of the above observations it is seen that the 4th respondent has not considered the need of relaxation of the rules for granting the full reimbursement. On the other hand as is seen from Annexure A10 instead of considering the grant of reimbursement of the full medical claim in relaxation of the normal rules, what was done by the 4th respondent was informing the third respondent of the observations of the Apex Court in the case of Ram Lubhaya Bagga v. Government of Punjab. When an authority is bound by a direction made by the Tribunal in its order, two options available to the authority are either to comply with the direction or to challenge the directions contained in the order before an appellate forum. In this case, the 4th respondent should have in terms of the judgment in O.A. 813/97 considered reimbursement of the medical claim made by the applicant in full if necessary by relaxing the normal rules. Instead of doing that and without challenging the order before an appellate forum, the 4th respondent has deemed it fit only to quote from the ruling of the Apex Court, thereby probably intending to remind the Tribunal that it was entering into realms which belong to the executive. The 4th respondent in our constitutional set up as also under the statute is bound to give effect to the orders of this Tribunal passed in exercise of jurisdiction conferred by the Administrative Tribunals Act and is not expected to ignore the directions deciding by itself that the directions was outside the realm of the judiciary and fell in the realm of the executive. The attitude of the 4th respondent reflected in Annexure A10 order exhibits scant regard for the directions contained in the Tribunal’s order. The respondents 3 and 4 are found to have not complied with the directions contained in the Tribunal’s order.
5. Since more than once the respondents were directed to consider full reimbursement of the applicant’s claim for medical expenses incurred by her in connection with the treatment of her husband in an approved private hospital under emergent circumstances in its order in O.A. 813/97 as also O.A. 605/99, I am of the considered view that no useful purpose would be served by remitting the matter back to the respondents 3 and 4. Since the power to relax the normal rules is available with the 4th respondent and the circumstances of the case warranted exercise of that power, I am of the considered view that interest of justice would be met only if the respondents 3 and 4 are directed to relax the normal rules and grant full reimbursement of the medical expenses incurred by the applicant for treatment of her husband in the Institute of Cardio Vascular Diseases, Madras.
6. In the result, in the light of what is stated above, the impugned order Annexure A10 is set aside. I direct the respondents 3 and 4 to reimburse the balance amount of Rs. 69,997/ of the medical expenses incurred by the applicant for treatment of her husband in the Institute of Cardio Vascular Diseases, Madras by relaxing the requirement of the rules and to make payment of the said sum of Rs. 69,997/- within a period of two months from the date of receipt of a copy of this order. There is no order as to costs.