Monday, 2 November 2020

Whether the government can refuse to grant medical reimbursement to govt servant if he has failed to obtain referral order before taking medical treatment?

The reply of the Government is short and opposes the prayer

of the petitioner on two grounds. Firstly that there was no referral order allowing the petitioner to take the treatment from outside the State and secondly, there were no extra ordinary urgent grounds for the petitioner to have travelled outside the State for his treatment without presenting himself before the Medical Board.

[5] Both the objections of the Government need to be overruled.

Firstly, as noted the petitioner was struggling with aggressive infection on

his nose which did not get cured despite his treatment at the hands of

ENT specialist and skin specialist. The petitioner therefore desired to

have further investigations and opinion from the experts. He, therefore,

approached the authorities for permission to travel outside State. His

request dated 29th November, 2019 met with no immediate response. He could not wait any longer. He started his travel on 5th December, 2019. It was only thereafter that the Medical Board conveyed to him that unless and until he is present a referral order cannot be issued in his favour. On 7th December, 2019 the hospital at Vellore detected that the petitioner was suffering from cancer. Under such circumstances it was not expected for the petitioner to have waited for the Medical Board to call him for

personal appearance for grant of referral order which would delay his

treatment. As things turned out, having gone to Vellore for investigations,

the petitioner ended up the undergoing entire treatment even without


returning home for which purpose his leave was sanctioned by the

employer.

[6] Under such circumstances to expect the petitioner to wait for

the referral order is unreasonable. It is not even the case of the

respondents that the specialized treatment needed for such cancer is

readily available within the State. In other words going by the stand of the

respondents if the petitioner had presented himself before the Medical

Board and waited for long enough for the Medical Board to respond to

his request for grant of referral order, the same would have been granted.

Only on that ground to deny the benefit of reimbursement of medical

expenditure would be interpreting the policy of the Government too

rigidly. Further, the ground that there was no urgency in the petitioner

departing for treatment, also must be rejected. After having waited for

long enough for the treatment prescribed by the local doctors to have

effect and the treatment having failed to have desired effect, the petitioner

had to have a proper diagnosis and line of treatment. It is not as if the

petitioner departed immediately without informing the employer or even

the Medical Board. The petitioner did approach the Medical Board but

could not give too long a time for Medical Board to respond. The

petitioner had to take a calculated risk of departing without prior referral

order.

HIGH COURT OF TRIPURA

AGARTALA

W.P(C) No. 289/2020

Sri Kali Sankar Baidya, Vs.  The State of Tripura, 


HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI


Dated: 30/09/2020

Petitioner has prayed for medical reimbursement of a sum of

Rs.3,73,031/- spent by him on his own treatment which the Government

has refused to grant on the ground that the petitioner did not obtain prior

referral order from the Medical Board before taking treatment from

outside the State.

[2] The petitioner is a Head Clerk engaged in a district judiciary.

In the year 2019 the petitioner started noticing lesions over the left side of the nose which became progressively aggressive. The petitioner consulted

the local ENT specialist and skin specialist. However his condition

deteriorated despite treatment. He wished to consult the doctor at a

hospital at Vellore for which he also applied to the authority on 30th

November, 2019 seeking a referral order for taking treatment outside the

State. Looking to the fast developments the petitioner had already in the

meantime booked his passage for travel to a far distance. Unfortunately,

till his date of departure on 5th December, 2019 there was no response

from the respondents to his request for reference under letter dated 30th

November, 2019. It was only on 06.12.2019, the Medical Board

conveyed to the petitioner that as per the prevailing norms there is no

provision for referring the patients outside the State without appearing

before the Medical Officer. Since in the meantime time the petitioner had

already started his journey on 5th December, 2019, the petitioner could

not present himself for a referral order.

[3] It was at Vellore that the doctors detected that the petitioner

was suffering from nasal passage cancer. This news must have come as a

rude shock to the petitioner and his family members. The petitioner

therefore stayed back at Vellor, extended his leave and under took the full

treatment for his nasal cancer, total expenditure of which came to

Rs.3,72,031/-. He claims that as per the Government rules the same is to

be reimbursed. Since the Government refused to do so he filed this

petition.


[4] The reply of the Government is short and opposes the prayer

of the petitioner on two grounds. Firstly that there was no referral order

allowing the petitioner to take the treatment from outside the State and

secondly, there were no extra ordinary urgent grounds for the petitioner to

have travelled outside the State for his treatment without presenting

himself before the Medical Board.

[5] Both the objections of the Government need to be overruled.

Firstly, as noted the petitioner was struggling with aggressive infection on

his nose which did not get cured despite his treatment at the hands of

ENT specialist and skin specialist. The petitioner therefore desired to

have further investigations and opinion from the experts. He, therefore,

approached the authorities for permission to travel outside State. His

request dated 29th November, 2019 met with no immediate response. He

could not wait any longer. He started his travel on 5th December, 2019. It

was only thereafter that the Medical Board conveyed to him that unless

and until he is present a referral order cannot be issued in his favour. On

7th December, 2019 the hospital at Vellore detected that the petitioner was

suffering from cancer. Under such circumstances it was not expected for

the petitioner to have waited for the Medical Board to call him for

personal appearance for grant of referral order which would delay his

treatment. As things turned out, having gone to Vellore for investigations,

the petitioner ended up the undergoing entire treatment even without


returning home for which purpose his leave was sanctioned by the

employer.

[6] Under such circumstances to expect the petitioner to wait for

the referral order is unreasonable. It is not even the case of the

respondents that the specialized treatment needed for such cancer is

readily available within the State. In other words going by the stand of the

respondents if the petitioner had presented himself before the Medical

Board and waited for long enough for the Medical Board to respond to

his request for grant of referral order, the same would have been granted.

Only on that ground to deny the benefit of reimbursement of medical

expenditure would be interpreting the policy of the Government too

rigidly. Further, the ground that there was no urgency in the petitioner

departing for treatment, also must be rejected. After having waited for

long enough for the treatment prescribed by the local doctors to have

effect and the treatment having failed to have desired effect, the petitioner

had to have a proper diagnosis and line of treatment. It is not as if the

petitioner departed immediately without informing the employer or even

the Medical Board. The petitioner did approach the Medical Board but

could not give too long a time for Medical Board to respond. The

petitioner had to take a calculated risk of departing without prior referral

order.


[7] In a judgment dated 05.12.2019 in W.P(c) No.830/2019 in

case of Sri Samar Bhusan Chakraborty Vrs. The State of Tripura &

others, this Court in similar circumstances had made following

observations:

”It can thus be seen that initial symptoms of the

disease were that the petitioner suffered rapid

weight loss coupled with drastic depletion of

level of Hemoglobin in his blood. The petitioner

lost close to 20 kgs of weight in a short span.

With these complaints when the petitioner

approached the GBP Hospital, the medical

opinion was that the petitioner was suffering

from iron deficiency anemia. The petitioner

thereafter noticed that he was passing blood in

the stool upon which he once again approached

the GBP Hospital on 11.11.2014 when he was

advised colonoscopy which was performed on

19.11.2014. The colonoscopy revealed that the

petitioner had possible colon cancer. Under the

advice of friends and well-wishers, therefore, he

immediately rushed to the TATA Memorial

Hospital at Mumbai for availing best treatment of

cancer. He was operated on 09.12.2014 and 12

cycles of chemotherapy were administered

between 28.01.2015 to 21.07.2015.

The respondents do not dispute the

medical expenditure. They only argue that

because prior referral order from the Medical

Board was not obtained, such bills cannot be

passed. In my opinion, in facts of the present

case, such objection is totally invalid. As noted,

initially the petitioner suffered from weight loss

and low hemoglobin in his blood. The fact that he

was suffering from cancer was not detected at

that stage. When he went back to the doctors

with a complaint of passing blood in his stool,

colonoscopy was advised which when performed

revealed that he was suffering from colon cancer.

Considerable time thus was already lost between

the petitioner reporting early symptoms of a

possible serious ailment and actual detection of

the fact that he was suffering from cancer. He,

therefore, had every reason to rush for best

medical advice and treatment for such life

threatening and dreaded disease. At such stage

to expect him to apply, await and appear before

the Medical Board and obtain a referral order

before proceeding for the treatment is an

unreasonable expectation. The respondents do

not even dispute that had he appeared before the

Medical Board, such reference would have been

made. They only argue that the petitioner did not

obtain a prior order of reference. The fact that on

each subsequent occasion when the petitioner

had the opportunity he applied to the Medical

Board and referral orders were duly passed itself

is an evidence of the justification of the

petitioner obtaining medical treatment from

outside State hospital.

The Supreme Court in case of Surjit Singh

vs. State of Punjab and others reported in (1996)

2 SCC 336 had in somewhat similar

circumstances made following observations:

“11. 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 recognised 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 rakshetpunyakar maani 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 Rakshayetsarvadaatmaanamaatmaa

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 naatmaanama hitebhyo

nivaarayet Konsyo hitakarastasmaadaatmaanam

taarayishyati

If one does not prevent what is unpleasent

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.”

Similar view is expressed by this Court on

number of occasions granting relief to the

Government servants. Reference in this respect

can be made to the following decisions:

Judgment dated 18.08.2016 in case of Sri

Kallol Roy vrs. The State of Tripura & others in

WP(C) No.277 of 2016, judgment dated

04.05.2018 in case of Sri Uttam Pal vrs. The State

of Tripura & others in WP(C) No.1479 of 2017

and judgment dated 27.03.2019 in case of Sri

Subal Das vrs. The State of Tripura & others in

WP(C) No.895 of 2018.

In the result, the impugned order dated

07.12.2018 is set aside. The respondents are

directed to pay the petitioner’s medical bills in

question as permissible. Such payment shall

carry simple interest @ 7.5% from the date of

completion of 3(three) months of presentation of

bills till actual payment. Entire payment be made

within a period of 2(two) months from today.

Petition is disposed of accordingly.”

[8] Under the circumstances, the respondents are directed to

process the medical reimbursement bills of the petitioner and release the

same to the extent as per the Government policy the same are payable.

The entire exercise shall be completed within a period of eight weeks

from today.

[9] Petition is disposed of accordingly. Pending application(s), if

any, also stands disposed of.

(AKIL KURESHI),CJ.


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