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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