Supreme Court in Consumer Education and Research Centre and ors.
v/s. Union of India and ors., AIR 1995 SC 922. In the above case on
consideration of Article 21 read with Articles 39(e), 41, 43 and 48A
of the Constitution the Apex Court held that the workman has a right
to health. The Court held that continued medical treatment, while in
service and after retirement is a moral, legal and constitutional
concomitant duty of the employer and the State. The Apex Court has
accordingly held that right to health, medical aid to protect the
health and vigour of a worker while in service or post retirement is a
fundamental right under Article 21 of the Constitution. We hope and
trust that respondents will keep this constitutional mandate in mind
while considering the claims of the employees for reimbursement of
the medical expenses, particularly when employees are merely
claiming reimbursement for costs of medicines purchased by them as
per prescription of the doctor.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11434 OF 2012
Rajendra B. Kasare
v/s.
Union of India & Anr.
CORAM: MOHIT S. SHAH, C.J. &
M.S.SANKLECHA, J.
DATE : 25 March 2014
Citation; 2015(3) ALLMR222
Learned counsel for respondents prayed for
adjournment on the ground that learned Addl.Solicitor General
has been instructed to appear in this matter. Having regard to the
facts and circumstances of the case and the nature of defence
adopted by respondents, we do not consider it necessary that
learned Addl.Solicitor General shall be troubled for a small matter
like this.
Rule. Returnable forthwith.
2. This is an unfortunate case where the petitioner, working
under Assistant Garrison Engineer, Naval Work, Uran, District:
Raigad as a Refrigerator Mechanic, suffered a paralytic stroke in the
year 2006. The aforesaid stroke rendered him permanently disabled
by 50% and to add to his woes the respondents are failing to
reimburse his medical bills for small amounts between Rs.2000/and
Rs.5000/.
Thus, leading him to knock the doors of this Court
for relief.
3. The petitioner was employed in the office of respondent
No.6 on 13 December 1982. On 11 July 2006, when the petitioner
was leaving for duty, he suffered from a paralytic stroke. In view of
his serious condition the local Authorized Medical Attendant (AMA)
viz. Dr.B.V. Devanikar for the Central Government Employees
referred the petitioner to a Neurosurgeon at the Bombay Hospital in
Ambulance. Accordingly from 11 July 2006 to 10 August 2006 the
petitioner was under the medical care of Dr.Suneel Shah, MCH
(Neurosurgeon) attached to the Bombay Hospital which is an
authorized hospital. The petitioner has been under care and medical
treatment of the said Dr.Suneel Shah from 11 July 2006 onwards.
The Petitioner submitted bills for reimbursement for costs of
medicines, which were prescribed by Dr.Suneel Shah and which the
petitioner has been taking for the relevant period. Though some of
the bills have been cleared by respondents and the petitioner has
been paid, including reimbursement for angioplasty dated 12 July
2012, in the amount of Rs.1,54,590, respondents have not cleared
all the bills for reimbursement of the costs of medicines.
4. It is contended in the affidavitinreply
that an
Authorized Medical Attendant (AMA) is authorized to give OPD
treatment for not more than 10 days as per per Appendix of
Central Services (Medical Attendance) Rules 1944, and
accordingly AMA is supposed to refer the patient to recognized
Government Hospital for further medical treatment and thereafter
the petitioner is required to take treatment/medicines for his
illness from the Government recognized hospital and submit the
bills duly signed by the Government hospital only. The aforesaid
procedure, it is alleged, is not being followed by the petitioner. It
is further stated that the petitioner has submitted the certificate
dated 31 March 2010 issued by Dr.Suneel Shah, Neurosurgeon,
Bombay Hospital advising the petitioner to continue medical
treatment for one year from 31 March 2010 and therefore
respondents are justified in calling for certificate from Bombay
Hospital for the period beyond 31 March 2011.
5. Learned counsel for the petitioner relies upon the
certificate dated 10 December 2012 of the Bombay Hospital
prescribing various medicines annexed to his affidavit in rejoinder.
The petitioner has also relied upon the certificate dated 4 June
2010 of the Associate Professor in Neurology of Sir J.J.Group of
Hospitals inter alia pointing out that if the prescribed medicines
for controlling High Blood Pressure, diabetes and lipids are not
taken regularly, it can lead to brain infarct, Ischenic heart disease
and brain stroke.
6. As against the above, the counsel for the respondents
submits that in view of Appendix IX & XI of the Central Service
(Medical Attendance) Rules 1994 no fault can be found with the
action of the respondents.
7. We have considered the rival submissions. In view of
the stand taken by respondents, it is necessary to refer to
following Rules which are contained in the Central Servide
(Medical Attendance) Rules, viz. AppendixIX
& XI thereof. The
relliance is placed upon para 1 of AppendixIX
“MedicinesInstructions
Regarding Prescription and Purchase”, which reads as
under:“
1. The Authorized Medical Attendant should
prescribe such quantities of medicines as are necessary
and sufficient for treatment of the disease within a period
of ten days from the commencement of treatment.
Ordinarily medicines should be prescribed in the first
instance, for a short period so as to watch the effect and
avoid excess purchase of medicines. The medicines thus
prescribed must be purchased by the Government servant
on or before the date of completion of treatment as shown
in the Essentiality Certificate, viz., the 10th day from the
commencement of treatment. If, on the last day of the
treatment, viz., the 10th day, the patient needs further
medication, he/she should be forthwith referred to the
outpatient
department of a Government/Recognized
hospital/ dispensary by the Authorized Medical Attendant
for further treatment.
While the relevant instructions in AppendixXI
being relied upon
read as under:Instructions
for Doctors
1.(6) Medicines should not be prescribed for all the 10
days at a stretch. The daily dosage should be indicated in
the prescriptions.
1.(7) Prescription of phials towards the end of the 10
days' period should be avoided, if possible.
2.(4) If hospitalization is not considered necessary but
the treatment is expected to be prolonged requiring many
consultations and serveral injections spread over a period
of more than 10 days, the patient should be referred to
the outpatient
department of a Government/recognized
hospital at the earliest.
8. On bare perusal of the above instructions, it is obvious
that the reference is to medicines, which the Government
employee may have been prescribed for temporary illness and the
treatment is expected to continue for a few days or a few weeks.
In case of patient suffering from illness and/or disease of a longer
duration, the same seems to have been provided for in 2(4) of
Appendix XI and the same appears to have been satisfied by the
petitioner.
9. Undisputed facts in the present case are that the
petitioner suffered a paralytic stroke in the year 2006 after having
put in 24 years of service with the respondents. The Medical
Board of Sir J.J.Group of Hospitals issued the certificate dated 25
February 2009 to the effect that the petitioner is having left
hemiparesis and that his percentage of permanent disability is
50%. The petitioner has, therefore, been taking treatment of
Dr.Suneel Shah MCH (Neurosurgeon) attached to the Bombay
Hospital since 11 July 2006. The controversy which is the subject
matter of the present petition does not pertain to reimbursement
of bills for consultation fees, but only bills for costs of medicines,
which the petitioner has to purchase for the treatment. It is
obvious from the nature of the petitioner's illness that the
petitioner has to take treatment lifelong and the treatment cannot
be stopped after 10 days. In fact the petitioner has been suffering
from this illness for the last eight years and the petitioner will
have to continue to take treatment life long. The respondents
cannot, therefore, withhold sanctioning the petitioner's claims for
reimbursement of the costs of medicines purchased by the
petitioner as per the prescription of Dr.Suneel Shah
(Neurosurgeon) attached to the Bombay Hospital on the basis that
the petitioner requires lifelong treatment. As indicated in the
certificate dated 4 June 2010, Associate Professor of Neurology,
Sir J.J.Group of Hospitals, if medicines are not taken regularly it
can lead to serious consequences in the nature of brain infarct,
Ischenic heart disease, brain stroke and the resultant
complications.
10. We may also refer to the observations made by the
Supreme Court in Consumer Education and Research Centre and ors.
v/s. Union of India and ors., AIR 1995 SC 922. In the above case on
consideration of Article 21 read with Articles 39(e), 41, 43 and 48A
of the Constitution the Apex Court held that the workman has a right
to health. The Court held that continued medical treatment, while in
service and after retirement is a moral, legal and constitutional
concomitant duty of the employer and the State. The Apex Court has
accordingly held that right to health, medical aid to protect the
health and vigour of a worker while in service or post retirement is a
fundamental right under Article 21 of the Constitution. We hope and
trust that respondents will keep this constitutional mandate in mind
while considering the claims of the employees for reimbursement of
the medical expenses, particularly when employees are merely
claiming reimbursement for costs of medicines purchased by them as
per prescription of the doctor.
11. Accordingly, writ petition is allowed. Respondents are
directed to consider the petitioner's claims for reimbursement of the
expenses for purchase of medicines, including the bills which are
still pending with the respondents and which may be submitted
hereafter on the basis of the observations contained hereinabove.
The petitioner's claim as per the pending bills for reimbursement of
costs of medicines shall be considered within four weeks from today
and in future also whenever the petitioner submits his bill for
reimbursement of medicines expenses, such bills shall be cleared
within four weeks from the date of their submission.
12. Learned counsel for the petitioner states that apart
from the issue of reimbursement of costs of medicines, the
petitioner also has other grievance regarding nonconsideration
of
his claim for promotion. Since the petition does not contain any
prayer to that effect, we did not permit the learned counsel to
raise such contention. However, it will be open to the petitioner to
make a representation to the concerned authority in respect of his
claim for promotion. As and when such representation is made,
the same shall be considered as expeditiously as possible and
preferably within two months from the date of receipt of the
representation.
13. We would have considered the question of saddling
the respondents with costs of this litigation, but having regard to
the fact that respondents have already paid the petitioner
substantial amount such as for angioplasty expenses, we leave the
matter as it is. However, we make it clear that in case the
petitioner is required to come to this Court in future, this Court
will consider issuing appropriate direction for payment of costs by
the respondents.
CHIEF JUSTICE
(M.S.SANKLECHA, J.)
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