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CHAIRMAN CUM M.D.,U.P.POWER CORPORATION LTD. & 3 ORS. versus RADHEY SHYAM GUPTA & ANR.

High Court of Judicature at Allahabad

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Chairman Cum M.D.,U.P.Power Corporation Ltd. & 3 Ors. v. Radhey Shyam Gupta & Anr. - SERVICE BENCH No. - 1485 of 2007 [2007] RD-AH 18487 (30 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

The U.P. Power Corporation Limited has filed the petition challenging the order passed by the State Public Services Tribunal dated 29.8.2007, allowing the claim of the answering respondent for reimbursement of the amount of medical expenses incurred on the treatment of his son in Christian Medical College and Hospital, Vellore.

In brief, the facts are that the son of answering respondent (Radhey Shyam Gupta), namely, Anoop Kumar Gupta, a student of 3rd Year M.B.B.S. of King George's Medical College [hereinafter referred to as 'KGMC' for the sake of brevity] fell ill in the first week of February, 1999, when the respondent was working as Account Officer in U.P.S.E.B. presently U.P. Power Corporation Limited and was posted at Bareilly. On diagnosis, it was found that his son was suffering from acute Myeloid Leokamia (M4) (cancer), for which no treatment was available in the State of U.P. including KGMC. The respondent was, therefore, advised to move his son to Christian Medical College and Hospital, Vellore, immediately. On 17.2.1999, a reference was made by Dr. A.K. Tripathi, Professor of Medicine, KGMC, Lucknow, for treatment of his son at Christian Medical College and Hospital, Vellore, Tamil Nadu and a certificate of non-availability of the facility for the treatment of the aforesaid ailment within the State of U.P. was also issued. The respondent's elder son was sent along with his sick son to Christian Medical College and Hospital, Vellore on the same day, where he was admitted on 18.2.1999, but unfortunately, despite the treatment, life of his son could not be saved and he was declared dead on 1.3.1999. The respondent paid an amount of Rs.4,43,504.00 to the College/Hospital authorities towards expenditure on the treatment of his son, which was duly certified by the College/Hospital authorities by issuing cash receipt, copy of bill including necessary documents. The respondent enclosing the necessary documents and cash receipts etc. submitted an application dated 28.12.1999 to the Chairman and Managing Director of the U.P. Power Corporation Limited for reimbursement of medical expenses incurred by him on the treatment of his son. However, the U.P. Power Corporation Limited rejected the said prayer of the respondent on 28.4.2000, against which, he preferred an appeal on 5.5.2000 but the same was also rejected on 7.11.2001. This compelled the respondent to approach the Tribunal.

The written statement filed by the U.P. Power Corporation Limited before the Tribunal raised many a defence, saying that though the name of the referring doctor and/or details of such reference are given but the same are lacking in the case summary of the son of the respondent, which tends to show that the case might not have been referred by the doctor at Lucknow.

We fail to appreciate and express our concern that U.P. Power Corporation Limited, in fact, fully knew that respondent's son has been referred by the doctor of KGMC to Christian Medical College and Hospital, Vellore, for which, all necessary documents were placed before the Corporation and after denying the reimbursement for such a long time, even after losing before the State Public Services Tribunal, advised their counsel to file the present petition, further delaying the payment, for no valid reason.

There was no reason for the U.P. Power Corporation Limited to disbelieve the reference made by Dr. A.K. Tripathi, Professor of Medicine, KGMC, Lucknow or the certificate given by him of non-availability of treatment in the State of U.P. Even otherwise, if there was no proper reference, the Corporation was required to see that whether the son of the respondent was actually taken for treatment to Christian Medical College and Hospital, Vellore or not in a situation, when the required medical treatment was not available in the State of U.P.; no mention of the referral letter, in the case summary, would not have allowed the Corporation to refuse the reimbursement on this ground.

The requirements of having referral order or essentiality certificate or the certificate from the doctor, who has given the treatment, are primarily for the purpose to ascertain that no false medical bill is submitted by a government servant or the public servant so that misuse of facility can be checked and reimbursement is made of the amount actually incurred towards medical expenses as per the entitlement. The requirements of these documents or like documents, namely, prescription etc. will form the basis for determination of the fact as to whether the reimbursement would be allowed on the verification of the truthfulness of the claim.

There is no bar or legal impediment that in case the competent authority of the Government or the Corporation feels satisfied on the strength of facts and circumstances placed before him that medical treatment was given to the public servant, in allowing reimbursement because there was technically some shortcoming in the documents. Of course, care and caution has to be taken so that there may not be any misuse by government servant or public servant. Where there is no doubt about the medical treatment being given, there would not be any reason for refusing the medical claim on the ground that the referral order was not mentioned in the case summary or any like reason. There can be other means available to the Corporation or the Government for being satisfied even in the absence of referral letter.

Sri Anil Kumar, learned counsel for the petitioner, very candidly submitted that the only defence which is available with the Corporation is that in view of the Board's order dated 2.2.1998, 11.6.1998 and 20.4.2001, it was not possible to the Board to make any reimbursement towards medical treatment of the respondent's son as he was not treated in any of the approved medical hospital outside the State of U.P.

We have gone through the aforesaid Board's Order, and we find that total denial on the part of the Corporation in not making any reimbursement, smacks of its irresponsible attitude and reflects that it had not even cared to look into the said Board's Order while refusing the claim.

In Board's Order dated 2.2.1998, it has been provided that for treatment/operation of heart and cancer disease, Apollo Hospital, New Delhi and Madras has been recognized. Board's order dated 11.06.1998 says that superseding the earlier Board's order issued till date, if anyone voluntarily takes treatment outside the State of U.P. for operation in the matter of heart and brain disease from any recognized/approved hospital, he would be entitled for reimbursement of 75% of the total expenditure incurred, whereas the Board's order dated 20.4.2001 says that if anyone goes on its own free-will in a non-approved/non-recognized hospital for treatment/operation, then 70% of the amount would be disbursed.

That being the position, even if the argument of the Corporation is accepted that answering respondent had taken his son, voluntarily to a non-recognized/non-approved medical hospital outside the State of U.P., there was no authority with them, not to allow reimbursement of 70% of the total amount claimed by the respondent.

We find that the claim was lodged by answering respondent on 20.12.1999 but U.P. Power Corporation Limited did not pay even a single penny despite the aforesaid Board's order, which compelled the answering respondent to seek remedy before the Court of law.

On a consideration of the aforesaid Board's Order, we find that none of the Board's Order viz. dated 11.6.1998 or 20.4.2001 take into account the cases where a person has to go outside the State of U.P. for medical treatment not on its own free-will or voluntarily, but under compulsion, as the treatment for a particular disease is not available in the State of U.P. and where a reference has been made by the expert in the field.

The aforesaid two Government Orders only speak about the voluntarily treatment to be taken by the Government servant outside the State of U.P. from the approved/unapproved hospital.

The Board's Order dated 24th May, 1978, however, specifically provides for full medical reimbursement, in case the treatment is not available in the State of U.P. and the case is referred by the Officer/Doctor concerned. It lays down as under :-

"................................................................................

(3) The medical expenses incurred by the employees on themselves and their family members in the Hospital/Medical Institute outside the State will also be reimbursable, provided a reference for specialised treatment in such Hospital/Institute is made by an officer not below the rank of Chief Medical Officer of the State Government or Professor of Medical College/Institute in the State certifying that the treatment facility is not available in the State. Such reference will not be necessary in case of hospitalisation of an employee while on official duty outside the State.

..................................................................................................."

The argument of learned counsel for the Corporation that order dated 24th May, 1978 stands superseded by the Board's order dated 11th June, 1998 lacks merit as already observed that Board's Order dated 11th June, 1998 and 20th April, 2001, both deal with those cases where the employee goes for treatment outside the State of U.P. on his own free-will but they do not cover the case where a reference has been made in the manner as provided in the Board's order dated 24th May, 1978 nor cover the case where the medical facility is not available in the State of U.P. It, therefore, cannot be said that Board's Order dated 24th May, 1978 stands superseded by Board's order dated 11th June, 1998, simply because it says that it supersedes the earlier Board's Order, whereas the respondent was to be reimbursed in pursuant to the Board's Order dated 24th May, 1978.

In view of the aforesaid factual and legal position, the answering respondent was fully entitled for medical reimbursement and the denial on the part of the Corporation was highly unreasonable.

Learned counsel for the respondent has also placed reliance upon the case of Supreme Court in the case of 'Surjit Singh Versus State of Punjab and others' reported in (1996) 2 Supreme Court Cases 336, a reference was also made by the Tribunal, wherein the Supreme Court in a case of refusal of reimbursement of money, observed as under :-

"It is otherwise important to bear in mind that self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognized it. Attention can usefully be drawn to Verses 17,18, 20 and 22 in Chapter 16 of the Garuda Purana ( A dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine :

17 Vinaa dehena kasyaapi canpurushaartho na vidyate

Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet

without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.

18 Rakshayetsarvadaatmaanamaatmaaa sarvasya bhaajanam

Rakshane yatnamaatishthejje vanbhaadraani pashyati

One should protect his body which is responsible for

everything. He who protects himself by all efforts, will

see many auspicious occasions in life.

20 Sharirarakshanopaayaah kriyante sarvadaa budhaih

Necchanti cha punastyaagamapi kushthaadiroginah

The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.

* * *

22 Aatmaiva yadi naatmaanamahitebhyo nivaarayet

Konsyo hitakarastasmaadaatmaanam taarayishyati

If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself.

12. The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset is answered in the affirmative. Of course the sum of Rs.40,000 already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."

For the reasons stated above, we are of the considered opinion that the refusal on the part of the Corporation in not making payment of medical expenses incurred towards the treatment of his son, by the answering respondent was not supported by any Board's Order and cannot be legally supported even otherwise.

We are pained to note that despite the fact that Corporation fully knew and were in the knowledge of the fact that the son of the respondent was suffering from deadly disease and there was no treatment in the State of U.P. for which he was compelled to take treatment outside the State of U.P. in Christian Medical College and Hospital, Vellore, a well recognised and reputed hospital, where his son could not save himself, they still refused to make the payment by taking uncalled for and frivolous pleas and even did not hesitate in filing the writ petition challenging the order passed by the Tribunal. The answering respondent could get the relief from the Tribunal after about eight years from the date he lodged his claim. It was for the superior officers of the Board, to consider as to whether in such cases, any further challenge is required to be made in the Court of law or not.

An employer is supposed to take care of his employees and his family members and technicalities should not come in their way when it comes to minimise their agony in such matters.

Looking to the agony of the respondent, the highly arbitrary and unreasonable attitude of the Corporation, which could not be supported by any Board's Order, we deem it appropriate that he should be compensated for the same, by awarding him appropriate damages, which we assess to Rupees one lakh.

We, therefore, direct the Corporation to pay an additional amount of Rupees one lakh to the respondent, besides the amount of medical reimbursement.

We had awarded the compensation not only for the agony suffered by the respondent in getting justice but also because even as per the own case of the Corporation, he was entitled for 70% of the reimbursement in terms of the Board's order dated 20.4.2001 but even that amount was not paid and answering respondent was dragged into litigation for such a long time.

The payment aforesaid viz. the amount of reimbursement as directed by the Tribunal and the amount of Rupees one lakh towards damages, shall be paid to the respondent no.1, within a maximum period of one month from the date of receipt of a certified copy of this order.

Subject to the aforesaid directions, the writ petition is dismissed.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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