Joy George K.K v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ## **`WP(C) NO. 38295 OF 2023`** ## **`PETITIONER:`** ``` JOY GEORGE K.K AGED 62 YEARS S/O KURIAN RESIDING AT KOKKATTU HOUSE, THONDIYIL P.O. PERAVOOR, KANNUR DISTRICT, PIN – 670673 ``` ``` BY ADVS. PRAJIT RATNAKARAN ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM KERALA, PIN – 695001`** - **`2 DIRECTOR OF HEALTH SERVICE DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, PIN – 695035`** - **`3 DEPARTMENT OF HEALTH AND FAMILY WELFARE. GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM KERALA., PIN – 695001`** - **`4 THE DIRECTOR OF GENERAL EDUCATION JAGATHI, THIRUVANANTHAPURAM KERALA, PIN – 695014`** - **`5 THE DISTRICT EDUCATIONAL OFFICER PALISSERY, THALASSERY KERALA, PIN – 670104`** ``` ADDL.6THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM ``` ``` IS SUO MOTU IMPLEADED AS THE ADDITIONAL 6TH RESPONDENT AS PER ORDER DATED 18.07.2024 ``` ``` 2 ``` ## **`WP(C) NO. 38295 OF 2023`** ``` BY ADV ADV PREMCHAND R. NAIR – SR.GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 38295 OF 2023 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner is the husband of Smt.Teresa Philip, who died on 09.04.2019 while working as HSA in St.Cornelius HSS Kolayad in Kannur District, which is an aided School. The writ petition was submitted by the petitioner challenging Ext.P4 order passed by the first respondent by which the claim made by the petitioner for reimbursement of the expenses incurred towards the medical treatment availed by his wife was rejected. 2. The facts which led to the filing of the writ petition are as follows: During the month of August, 2017, the wife of the petitioner was diagnosed with Appendicular Mass Ovarian Cancer. Accordingly, she was admitted to Peravoor Taluk Hospital for treatment. As the necessary facilities for treating her disease were not available in the Taluk Hospital and urgent treatments were necessary, the petitioner contacted Malabar Cancer Centre, Thalassery, to inquire about the possibility of immediate surgery. However, it was informed that, as there is a ``` WP(C) NO. 38295 OF 2023 ``` ``` 4 ``` lengthy waiting list for surgery, the wife of the petitioner could be admitted and surgery be performed after more than a month. Therefore, the petitioner’s wife was compelled to avail of the treatment at M.V.R Cancer and Research Institute in Calicut. While undergoing treatment in the said Hospital, the wife of the petitioner died on 09.04.2019. Ext.P1 is the death certificate. 3. Claiming the expenses incurred by the petitioner, the petitioner submitted Exts.P2 and P3. However, the same was rejected as per Ext.P4, on the reason that, the Hospital in which the petitioner's wife availed treatment, was not included in the empanelled list of approved Hospitals and therefore, the claim cannot be considered. It was in those circumstances that this writ petition was filed challenging Ext.P4. 4. A counter affidavit has been submitted by the fourth respondent reiterating the stand taken by the first respondent in Ext.P4 i.e., since the treatment was availed in the hospital, which is not included in the empanelled list, the reimbursement ``` WP(C) NO. 38295 OF 2023 ``` ``` 5 ``` cannot be granted. 5. Heard Sri. Prajit Ratnakaran , learned counsel for the petitioner and Sri.Premchand R. Nair, learned Government Pleader for the State. 6. It is discernible from Ext.P4 that, the only objection is with respect to availing of treatment in a hospital, which is not included in the empanelled list of approved hospitals. The learned Counsel for the petitioner in this regard brought the attention of this Court to the observations made by the Honourable Supreme Court in **Shiva Kant Jha vs. Union of India** [(2018) 16 SCC 187], wherein the said question was specifically considered. After elaborately discussing the purpose of the scheme for medical reimbursement implemented by the Central Government, and the procedure therein, the following observations were made by the Honourable Supreme Court in paragraph 13 and 14, which read as follows: _“13) It is a settled legal position that the_ ``` WP(C) NO. 38295 OF 2023 ``` ``` 6 ``` _Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court._ _14) This is hardly a satisfactory state of affairs. The relevant authorities are required to be more_ ``` WP(C) NO. 38295 OF 2023 ``` ``` 7 ``` _responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.”_ The facts and circumstances of this case are similar and identical to the case considered by the Honourable Supreme Court, wherein detailed observations were made and ultimately ``` WP(C) NO. 38295 OF 2023 ``` ``` 8 ``` found that, it is not justifiable on the part of the Government to reject the claim for medical reimbursement merely because of the reason that, the hospital is not included in the Government Order by which the medical reimbursement was provided. 7. After considering all the relevant aspects, I am of the view that, the stand taken by the additional 6[th] respondent in Ext.P4 cannot be sustained in view of the principles laid down by the Honourble Supreme Court in Ext.P5 judgment. Instead of taking a technical approach that the hospital was not included in the empanelled list, the Government ought to have made a realistic assessment as to the genuineness of the treatment availed and the expenses incurred by the petitioner. Therefore, Ext.P4 is to be interfered with. In such circumstances, this writ petition is disposed of quashing Ext.P4 with a direction to the competent among respondents 1 to 4 and 6 to reconsider Exts.P2 and P3 and to pass appropriate orders thereon. It is clarified that, since this ``` WP(C) NO. 38295 OF 2023 ``` ``` 9 ``` Court has already found that the reason for denying the claim for non-inclusion of the name of the hospital in the empaneled list is not proper, the claim of the petitioner cannot be denied for that reason. Therefore, a proper assessment of the genuineness of the bills and the amount claimed therein have to be made, and the eligible amount shall be disbursed to the petitioner. The necessary orders in this regard shall be passed by the competent among the respondents 1 to 4 and 6, within a period of one month from the date of receipt of a copy of this judgment, after giving the petitioner an opportunity of being heard and to produce necessary materials in support of his claim. Upon sanctioning the same, the amount payable to the petitioner shall be disbursed within a further period of two months from the date of passing the order. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 10 ``` ## **`WP(C) NO. 38295 OF 2023`** ## **`APPENDIX OF WP(C) 38295/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE DEATH CERTIFICATE OF THE PETITIONERS WIFE WHO PASSED AWAY ON APRIL 9 /2019 ``` ``` TRUE COPY OF THE COVERING LETTER DATED 03-07-2019 SUBMITTED BEFORE THE 4TH RESPONDENT BY THE PETETIONER ``` ``` Exhibit P3TRUE COPY OF THE CLAIM REIMBURSEMENT FORM SUBMITTED BEFORE 4TH RESPONDENT BY THE PETITIONER DATED 03-07-2019. ``` ``` Exhibit P4TRUE COPY OF THE LETTER ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT BEARING NO T2/162/2022/G.E.DDATED 17- 01-2023 ``` ``` Exhibit P5TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT. SHIVA KANT JHA VS UNION OF INDIA ( 2018 KHC 6285 ). ```