Rabinder Singh v. Union Of India

HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)

1. This Original Application is directed against the order dated 6.2.2012 (A-1) vide which the medical reimbursement claim of Rs.2,40,865/- of the applicant on his own treatment has been rejected on the ground that he is in receipt of Fixed Medical Allowance and to issue direction to the respondents to reimburse the aforesaid claim with interest therein.

2. The facts are not in dispute and as such a brief note would be sufficient for framing of the issue involved in this case. The applicant while working in the office of Garrison Engineer (Air Force) NAL, Bikaner, suffered heart attack on 19.11.2011 and under went Coronary Angiography. He was advised to under to Coronary Artery Bye-Pass surgery. The relevant surgery was carried out at Mukut Hospital & Heart Institute, Chandigarh. He spent a sum of Rs.2,40,865/-. On his request, even an advance for medical treatment was also sanctioned by the respondent authorities. The claim of the applicant was, however, rejected vide order dated 6.2.2012 (Annexure A-1) on the ground that he is in receipt of Fixed Medical Allowance. However, the applicant indulged in correspondence with the respondents who informed that the issue is pending consideration with the authorities.

3. The respondents have filed a reply resisting the claim of the applicant. They submit that as per O.M. dated 14.7.2010 (Annexure R-1), employees who are getting fixed medical allowances, are not entitled for reimbursement of medical claims in respect of treatment obtained under any circumstances. Thus, the applicant, who is in receipted of FMA, is not entitled to the reimbursement of claim preferred by him.

4. The applicant has filed a replication opposing the stand taken by the respondents in their reply.

5. Learned counsel for the parties have been heard at length and material on file has also been perused with the able assistance of learned counsel.

6. It would be useful to notice the concept of medical treatment of employees and their dependents, before touching upon merits of this case. A three Judges Bench of the Honble Supreme Court of India in the case of Consumer Education & Research Centre and Others Vs. Union of India & Others, 1995 (3) SCC 42 has held that right to health and medical aid of workers during service and thereafter is a fundamental right. Following the same view, in Surjit Singh Vs. State of Punjab and Others, 1996 (2) SCC 336, it has been held as under :- 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 recognised it. Attention can usefully be drawn to versus 17 18, 20, and 22 in Chapter 16 of the Garuda Purana

7. Same view was again reiterated in the case of State of Punjab Vs. Mohinder Singh Chawla, JT 1997 (1) SC 416. right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities. 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. Expenditure, thus, incurred requires to be reimbursed by the State to the employee.

8. In the case of Ranbir Singh Kundu vs. Haryana State Agricultural Marketing Board, Panchkula and Others, 2008 (2) SCT 314, it has been held as under :- the provision of the medical reimbursement is beneficial act of the welfare state for its employees and such provision has to be construed liberally in favour of the employees.

9. The issue raised in this case as to whether an employee, who is drawing Fixed Medical Allowance, is entitled to reimbursement of medical expenses incurred on indoor treatment or not stands clinched in a number of cases by this Tribunal as well as other courts of law.

10. A co-ordinate Bench of this Tribunal in O.A.No. 763-CH-1998  Dharam Pal vs. Union of India & Others, decided on 28.6.1999, while thrashing the issue at length, has held as under :- 12. If the Fixed Medical Allowance had been for the entire family, which in our opinion it is not, and had it been in lieu of the entire medical facilities/claims, one could understand the insistence of the respondents in compelling a Govt. servant for choosing either of the medical facilities extended to the family of an employee of the Punjab Govt. and Chandigarh Administration or to the Central Govt. Once we find that neither the Fixed Medical Allowance covers the entire medical facilities and is only in lieu of out-door treatment, nor it is an allowance meant for the entire family, but is only for individual State Govt. employee, we find the action of the respondents in issuing the impugned circular and the order of rejection of claims to be irrational and arbitrary. This is also found to be violative of the rights guaranteed under Central Civil Services (Medical Attendance) Rules, 1944. If any orders have been issued by the Govt. of India to the effect that a Central Govt. servant can be denied the claim for reimbursement for medical attendance/treatment if his/her spouse is in receipt of a Fixed Medical Allowance, we hereby strike down such order/decision on which the circular issued by the office of Respondents 2 & 3 may be based. In our opinion, we are fortified by a reading of Rules 3 and 6 of the C.C.S. (M.A.) Rules. After separately defining medical attendance and medical treatment, these rules provided for entitlement of the Govt. servant to medical attendance/treatment free of charge. It is further provide that if he has paid any amount on account of such medical attendance/treatment, he is entitled to be reimbursed by the Govt. These rules being all-pervasive, the decision taken by Govt. of India, Ministry of Health & Family Welfare in its O.M. dated 20th December, 1988 is found to be arbitrary, illegal and opposed to the C.C.S. (M.A.) Rules, 1944 particularly Rules 3 & 6 thereof. On this aspect, we are of the opinion that the orders issued and the declaration proforma circulated by the Income Tax Department is in consonance with these Medical Attendance Rules whereas the circular issued by Respondents 2 & 3 and the form of declaration sought amounting to denial of medical claims/facilities to the present applicants, are illegal. We also find that the employees of the Central Govt. who are similarly placed like the applicants as under Income Tax Department and some of the other departments who are being extended the benefits of these rules with a condition that Central Govt. employees will not lay claim for medical claims/facilities admissible to their spouses if such spouse(s) is/are in receipt of some Fixed Medical Allowance, this is a reasonable condition/restriction which both the applicants have included in their joint declarations. We, thus, hold that the respondents have wrongly refused to accept the joint declarations which are legal and in accordance with the said rules.

11. Similarly, another Bench of this Tribunal in O.A.No. 937-PB-2010 (Biru Singh Vs. Union of India & Others) decided on 28.07.2011, held as under :- 8. Merely because the applicant was not admitted in the Hospital for life threatening diseases, does not mean that he would not be entitled to reimbursement of the amount of lacs of rupees, on the ground of being in receipt of fixed medical allowance. It is not in dispute that under Medical Attendance Rules, a copy of which has been placed on record by the learned counsel for the applicant, employees and their family members are entitled to reimbursement for medical attendance and treatment for medical facilities mentioned therein and at Sr. No. 14, cost of Hepatitis Vaccine B, C & D is also mentioned which has been under gone by the applicant. Secondly, the applicant is posted 25 kms. away from main town of Bhatinda. The treatment undergone by the applicant is available only in P.G.I and the same could not be taken as outdoor patient at the place of his posting. Therefore, this court is of the view that the respondents have wrongly rejected the case of the applicant in violation of instructions on the subject (supra) while adopting very inhuman approach. Right to life is a constitutional right and it should not be infringed by the authorities or the employer with whom the employee works and renders best years of his life. Thus the respondents cannot ignore to extend the applicant medical facility for a life threatening disease.

12. A perusal of the aforesaid two cases leaves this Bench with no other option but to conclude that the solitary issue raised in this case stands answered in favour of the applicant that a person in receipt of Fixed Medical Allowance, cannot be denied benefit of indoor/emergency treatment cost of which spreads over lacs of rupees and the receipt of FMA cannot be used as a premise to reject the claim of an employee. The Bench has not been informed about any law to the contrary.

13. In view of the above discussion, this Original Application is allowed partly. The impugned order of rejection being opposed to law declared by this Tribunal is quashed and set aside. The respondents are directed to consider the claim of the applicant for medical reimbursement and pass necessary orders by keeping in view the fact and effect of above findings, thereon within a period of two months from the date of receipt of copy of this order. If the applicant is found entitled to the benefits from the point of genuineness and package rates at PGIMER/AIIMS rates, the same be released to him within a further period of on month from such decision.

14. The claim raised by the applicant for grant of interest on delayed payment is rejected in accord with the view obtained by the Honble Apex Court in the case of Om Parkash Gargi (1997(1) SLR 177), to the contrary. No costs. (SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh Dated: May 12,2014 O.A.No.1592-PB-2013