Heard the learned counsel appearing for the petitioner and the learned
counsel for the respondent.
2. This writ petition is filed for a declaration that denying the
petitioner's benefits payable under the Special Medical Assistance Scheme for
the open heart surgery undergone by the petitioner's father on 13.12.2005 is
illegal and also directed the respondent to extend the benefit under the scheme
to the petitioner and reimburse the medical expenditure incurred by the
petitioner by paying Rs.90,537/- with 12% interest per annum from the Labour
Welfare Fund.
3. The case of the petitioner is that he has joined in the services of the
respondent as Assistant Tradesman on 15.11.1999 and working at the Sivakasi
Branch of the respondent Corporation as Junior Tradesman as on date. As per
the settlement entered into between the trade unions of the employees and the
management of the respondent under Section 12(3) of the Industrial Disputes Act
on 13.02.1999, a special medical assistance scheme to the benefit of the workmen
was introduced. It is called the Tamil Nadu Transport Corporation Employees
Family Medical Assistance Scheme under which an employee is entitled for the
maximum upto Rs.1,00,000/- for undergoing five types of medical treatments
either by himself or by his family members. Accordingly, the petitioner and
other workmen have been paying Rs.5/- per month from the monthly wages to the
scheme as a subscription under clause 79(3) of the settlement. The medical
assistance given in respect of (i) Heart surgery (ii) Kidney Transplantation
(iii) Ballooning heart operation (iv) Cancer surgery (v)Brain Tumor surgery.
The petitioner's father has suffered a chest pain and he underwent an open heart
surgery on 13.12.2005 in the Meenakshi Mission Hospital, Madurai. In respect of
the said surgery of his father, the petitioner had to spent more than
Rs.1,00,000/- and he has paid Rs.96,537/- to the hospital alone. Since, the
scheme is made applicable, the petitioner is entitled for the said amount, he
has made representation on 29.12.2005 to the respondent along with the necessary
certificates and the same has not been considered.
4. In the circumstances, the petitioner has filed this writ petition
containing inter alia that the denial of the right is violative of Article 14
and the the refusal to implement the settlement constitutes an offence under
Section 29 of the Industrial Disputes Act and also the petitioner relied upon a
judgment of this Court in W.P.No.6302 of 2003 dated 04.08.2005 under which this
Court has extended the benefit of the scheme to the father of the petitioner
therein who has undergone a special medical treatment.
5. The respondent has filed counter affidavit while admitting that the
Employees Medical Assistance Scheme was introduced under Section 12(3) of the
Industrial Disputes Act and the employees are entitled to get upto Rs.1,00,000/-
for the employee's family which was as per the settlement dated 28.09.1995,
subsequently, by another settlement dated 13.02.1999, it was agreed to extend
the scheme by applying the Tamil Nadu Government Employees Health Fund Scheme to
the employees of the State Transport Corporations. As per the G.O.194 dated
16.03.1993 by which the Government has already amended the Rule 2 of the Tamil
Nadu Government Employees Health Fund Scheme wherein while defining the 'family'
it is stated to include wife and children of the Government servant and in the
case of unmarried Government servant it would include the dependant parents.
According to the petitioner, he is a married man and therefore, as per the
definition of the 'family' the petitioner is not entitled for the amount spent
for his father's treatment as per the scheme.
6. Mr.Hariparathanman, learned counsel appearing for the petitioner would
submit that this Court while interpreting the definition of the 'family' as per
the G.O.Ms.No.194 dated 16.03.1993 in the order of this Court dated 04.08.2005
passed in writ petition W.P.No.6302 of 2003 has held that as per the clause 2 of
the scheme eventhough the word 'family' was used for the purpose of giving
medical reimbursement the said word admittedly not defined and it was in those
circumstances, this Court has held that the term 'family' has to be understood
with the attended circumstances and benefits granted to the employees. This
Court has relied upon a Medical Assistance Card given by the respondent to its
employees in which S.No.5 contemplates the name of the father for the purpose of
medical assistance. Further, this Court considering the fact that certain other
benefits like free pass for travelling purpose in the Transport Corporation bus
have been given to the father of the petitioner and in such circumstances, this
Court has rejected the similar contentions raised by the respondent that the
father of the petitioner cannot be included to the benefit under the scheme. It
was in those circumstances, and also for other reasons stated therein, this
Court has allowed the writ petition directing the respondents to reimburse the
medical expenditure incurred by the petitioner therein in respect of his
father's treatment.
7. Relying upon the said judgment, the learned counsel for the petitioner
would submit that the exact point which has been raised presently was already
dealt with by this Court and therefore, the contentions of the respondent that
the word 'family' does not include the father is no more available to the
respondent.
8. On the other hand, Mr.R.Sivamanogaran, learned counsel appearing for
the State Transport Corporation would submit that the matter involves the
interpretation of the settlement entered into under Section 12(3) of the
Industrial Disputes Act and there is an alternative remedy available under the
Industrial Disputes Act itself. In the presence of such alternative remedy
available under the Industrial Disputes Act this Writ petition cannot be
entertained.
9. The learned counsel in support of the said contention has placed
reliance on the judgment of the Supreme Court rendered in Hindustan Steel Works
Construction, Limited and another Vs.Hindustan Steel Works Construction Ltd.,
Employees Union reported in 2005(4) L.L.N.15 where the Apex Court, while dealing
with Section 9A of the Industrial Disputes Act in respect of the allowance to
the employees working at the projects, has held that the matter involves
essentially a question of fact and therefore, the proper remedy is to approach
the Tribunal.
10. He has also relied upon another judgment of the Division Bench of this
Court in A.Annamalai Vs. General Manager, Tamil Nadu State Transport
Corporation, Salem Division II Ltd., Dharmapuri reported in 2005 (1) L.L.N.878
for the same proposition that when an alternative remedy is available, remedy
under Article 226 cannot be a matter of course. He has also relied upon another
judgment of the Division Bench of this Court reported in 2001 (98) FJR 269 to
show that the settlement entered into between the parties under Section 12(3) of
the Industrial Disputes Act, does not create a public duty and no writ will lie.
According to him, the matter involves a question of fact and therefore, the writ
petition should be dismissed.
11. I have heard the learned counsel for the petitioner as well as the
learned counsel for the respondents and perused the entire records.
12. The main contention raised on behalf of the respondent while admitting
that the Medical Assistance Scheme was introduced and implemented as per the
Government order by referring to a G.O.Ms.No.194 dated 16.03.1993 and the
G.O.Ms.No.100 dated 19.05.1998, is that the term 'family' as per the Rule 2 is
stated to include the wife and children of the Government servant and in the
case of unmarried Government servant it would include the dependent parents
alone. In this case, inasmuch as the petitioner is married, father cannot be
treated as a dependent parent and therefore, it will not be covered within the
word 'family'.
13. A reference to the Rule 2 would show as it is seen in G.O.No.194 dated
16.03.1993 in the following terms:
The benefit under the scheme be extended to the family members of
Government employees specified in rule 2 of the Tamil Nadu Government Employees
Health Fund Rules 1991.
14. The Tamil Nadu Government Employees Health Fund Rules 1991 has amended
the existing Rule 2 states as follows:
These rules shall extent to the whole of the State of Tamil Nadu. These
rules shall apply to all categories of full time regular (Time-Scale) Government
Employees of the Government of Tamil Nadu and their family members and to All
India Service Officers serving in the State and to their family members.
15. Therefore, a reading of the rule would show that the benefit is
applicable to the employees of the family members. However, while enumerating
the term 'family' the said rule further states as follows:
"Family" for the purpose of this scheme will include, 'wife and children'
of the Government servant. In case of female Government servant 'Husband and
Children' and in the case of unmarried Government servant the dependent
parents".
16. A reference to the said paragraph shows that the term 'family' is not
actually defined as pointed out by this Court earlier in the Writ Petition in
W.P.No.6302 of 2003 and the term is stated as only inclusive. Therefore, the
term 'family' for the purpose of extension of benefits of the scheme has to be
considered based on the conduct of the respondent Corporation. However, in the
said judgment relied upon by the petitioner which is in J.Annamalai Vs.
Management of Metro Transport Corporation Limited, rep. by its Managing
Director, Pallavan House, Anna Salai, Chennai-2. The petitioner has relied upon
the medical assistance card and other benefits like free pass for travelling
purpose for the family members and on the said fact this Court has come to the
conclusion that such benefits have been conferred to the father of the
petitioner therein. It was in those circumstances, this Court having considered
that when other benefits have been extended to the father of a married employee
of the State Transport Corporation, there was no reason to deny such benefit in
respect of the medical reimbursement scheme also. However, in the present case,
there is absolutely nothing on record or even in the affidavit filed by the
petitioner stating that any other benefits has been conferred to the father of
the petitioner.
17. Therefore, I am of the considered view that the judgment relied upon
by the petitioner in the said writ petition is not applicable to the facts and
circumstances of the case. As I stated earlier in that case relied upon by the
petitioner, on fact certain other benefits have been conferred to the father,
and therefore, the Court has come to a conclusion that denying the same for the
medical reimbursement scheme will be discriminatory.
18. I am unable to come to such a conclusion since there is absolutely no
record to show that such benefits have been conferred on the father of the
petitioner from the respondent Corporation. Moreover, the respondent Corporation
in the present circumstance, is different from the Transport Corporation in that
case.
19. In view of such circumstances, I am of the considered view that as
correctly pointed out by the learned counsel for the respondents that the matter
involves a question of fact as to whether the term 'family' has to be
interpreted in the manner which is stated to the Tamil Nadu Government
Employees Health Fund Scheme Rules 1991 or as interpreted by this Court in
W.P.No.6302 of 2003 based on other available materials.
20. There is one other circumstance namely that the petitioner is
certainly entitled to have an alternative remedy available under the Industrial
Disputes Act, since, the matter relates to a question of fact for the purpose of
deciding the term 'family' either by statue or arrived at under Section 12(3) of
the Industrial Disputes Act or as per the Government order in G.O.Ms.No.194
(Finance Department)) dated 16.03.1993.
21. Eventhough, the beneficial scheme has to be interpreted in a more
liberal manner this Court is unable to come to such a conclusion in the present
case for want of actual particulars and also for a decision on factual issues
which involves the evidence and interpretation of various words under the
settlement as also the Government order.
22. In view of the same, giving liberty to the petitioner to approach the
appropriate forum under law, this Writ petition stands dismissed. There is no
order as to costs.
sms
To
The Management of
Tamil Nadu State Transport Corporation
(Madurai)Ltd.,
Rep.by its Managing Director,
Bye-pass Road,
Madurai.