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E.V.Kumar vs The Union Of India on 28 July, 2003

Madras High Court
E.V.Kumar vs The Union Of India on 28 July, 2003
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28/07/2003

CORAM

THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM

Writ Petition No.10392 of 1996
and
WMP.No.13753 of 1996
                        
E.V.Kumar              .....                       Petitioner

-Vs-

1. The Union of India,
rep. by the Ministry of Health and Family
Welfare (Department of Health)
Nirman Bhavan, New Delhi

2. The Union of India, rep. by therein
Lt. Governor, Pondicherry and
rep. by the Chief Secretary to
Government, Pondicherry

3. The Secretary to Government
Law Department, Government of Pondicherry
Pondicherry

4. The Director of Health and Family
Welfare Services, Pondicherry.          .....             Respondents

L.......T.......T.......T.......T.......T.......T.......T.......T.......T....J

Prayer:  Petition filed under  Article  226  of  the  Constitution  of  India,
praying to issue a writ of Certiorarified mandamus, as stated therein.

For Petitioner  :    Mr.R.Gandhi
                Senior  Counsel
                for  R.G.Narendhiran

For Respondents :  Mr.T.Murugesan Government Pleader (Pondicherry)


:ORDER

The petitioner, the former Additional District and Sessions Judge of Karaikal,
Pondicherry has sought for a writ of certiorarified mandamus to call for the
records relating to the order of the second respondent in G.O.Rt.No.573/95-LD
dated 13.12.1995, to quash the same and to direct the respondents to reimburse
to the petitioner, the actual amount of expenditure incurred by the petitioner
for taking treatment of undergoing Coronary by-pass surgery in the Apollo
Hospitals, Madras as certified by the Chief Cardio Thoracic Surgeon of the
said hospital, after deducting the medical advance granted by the second
respondent under G.O.Rt.No.288/95-LD dated 05.06.1995.

2. In view of the undisputed facts, it is not necessary to deal with the
factual contentions raised by the petitioner. Admittedly, the petitioner
underwent coronary by-pass surgery in Apollo Hospitals, Madras and the
Hospital is also duly authorised by the Pondicherry Government as one of the
private hospitals recognised for coronary by- pass surgery, namely Annexure-I
of the Office Memorandum dated 20.07.1994 .

3. It is also not disputed before me that the provision of Central services
(Medical Attendance) Rules are applicable to the case of the petitioner
herein.

Rule 6, of the Medical Attendance Rules is as follows: “6.(1) A Government
servant shall be entitled, free of charge, to treatment —

(a) in such Government hospital at or near the place where he falls ill as can
in the opinion of the authorised medical attendance provide the necessary and
suitable treatment; or

(b) if there is no such hospital as is referred to in sub-clause (a) in such
hospital other than a Government hospital at or near the place as can in the
opinion of the authorised medical attendant, provide the necessary and
suitable treatment.

(2) Where a Government servant is entitled under sub-rule(1), free of charge,
to treatment in hospital, any amount paid by him on account of such treatment
shall, on production of a certificate in writing by the authorised medical
attendant in this behalf, be reimbursed to him by the Central Government:
Provided that the controlling officer shall reject any claim if he is not
satisfied with its genuineness on facts and circumstances of each case, after
giving an opportunity to the claimant of being heard in the matter. While
doing so, the controlling officer shall communicate to the claimant the
reasons, in brief, for rejecting the claim and the claimant may submit an
appeal to the Central Government within a period of forty-five days of the
date of receipt of the order rejecting the claim.”

4. Perusal of the above mentioned Rule says that it is open to the Government
servant who is entitled to be treated in a hospital other than Government
Hospital, if such hospital as referred to in SubClause(a) is not available, he
can get treatment in a hospital other than Government Hospital at or near the
place as can in the opinion of the authorised medical attendant, provide the
necessary and suitable treatment. Therefore, there is no dispute over the
fact that the petitioner was entitled to be treated at Apollo Hospitals,
Madras and there is no dispute over the said fact.

5. The dispute in the present case is that as against the total claim of
Rs.1,44,019/-, the Government has sanctioned a total sum of Rs.9 9,500/-.
According to the Government, the package rate/deal arrangement with the
private hospitals and the rate of coronary by- pass surgery for all private
hospitals in respect of private ward was Rs.89,000 /- and Rs.10,500/- which
was charged for Angiography test was reasonable. It was also certified that
the rate of Rs.89,000/- charged by the Apollo Hospitals, Madras was also
reasonable. Therefore, a total sum of Rs.99,500/- was paid and reimbursed to
the petitioner.

6. It is further stated that the Government of India already recognised the
package deal arrangement with the Private Hospitals and the rate for CAG/CABG
and other investigations would be regulated on package deal basis. The
package for coronary Angiography includes room rent from the date of admission
to the date of discharge, services charges, nursing/ medical care, Surgeons
and Anesthetists fee, operation theatre charges etc., but does not include
diet, cosmetics, toiletary, telephone charges etc., which have to be borne by
the beneficiaries themselves.

7. On a reading of Rule-6 as extracted above, there is no enabling provision
for the Government to fix any ceiling/package deal. The actual amount paid by
the patient to the hospital would be repayable except for the categories
mentioned in the counter namely, diet, cosmetics, toiletary, telephone charges
etc.,

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. The above mentioned conclusion of mine also receives approval by the
Supreme Court in S.Jagannath Vs. Union of India and Others reported in
((1997) 2 SCC 87), wherein the Supreme Court has held that ” 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.”

11. The learned senior counsel appearing for the petitioner also claims
interest on the amount of balance to be paid to the petitioner, on the ground
that the petitioner has paid the amount due to the hospital on his discharge.

12. The learned counsel also relies on a Judgment of Justice
Bakthavatsalam,J., in Ramayee V. Vs. The Commissioner of Pudukottai
Municipality reported in (1882 WLR 330), where the learned Judge had ordered
18% interest.

13. Further reference is also made to the judgment of the Supreme Court in
Hema Devi and Another Vs.State of Bihar and others reported in (2002(6)
Supreme 417).

14. Considering the overall circumstances, I am inclined to order that the
respondents shall pay the balance amount with interest at the rate of 12% per
annum from the date when payment became due.

15. The writ petition is ordered accordingly. Consequently, WMP.No.13753 of
1996 is closed. No costs.

Index:Yes
Internet:Yes

ksr

To

1. The Union of India, rep. by the Ministry of Health and Family Welfare
(Department of Health) Nirman Bhavan, New Delhi

2. The Union of India, rep. by therein Lt. Governor, Pondicherry and rep.
by the Chief Secretary to Government, Pondicherry

3. The Secretary to Government Law Department, Government of Pondicherry
Pondicherry

4. The Director of Health and Family Welfare Services, Pondicherry.

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