The Union Of India And ORS. v. Shri S.R.Ghosal

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/30/2022 The Union of India and others Vs.

Shri S.R. Ghosal Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the petitioners Mr. N. A. Khan ... for the respondents July 26, 2023 [SR] Item No.1 The present writ petition has been preferred challenging an order dated 1st January, 2021 passed by the learned Tribunal in an original application, being OA No.351/191/2018. Shorn of unnecessary details, the facts are that the applicant/respondent herein is working as Senior Technician -3 in Regional Medical Research Centre (hereinafter referred to as RMRC) under Indian Council of Medical Research (hereinafter referred to as ICMR). In the year 2013, he was suffering from Malignant Growth Buccal Cavity (Cancer) and was being treated at G.B.Pant Hospital, Port Blair. The said hospital did not have the facilities for treatment of such ailment.

A certificate to that effect was issued by on 21st October, 2013 by the Medical Superintendent, G.B.Pant Hospital and by a letter dated 22nd October, 2013, he referred the respondent to any mainland hospital. Such proposal was approved by the Director, RMRC. Pursuant thereto, the respondent underwent treatment at Apollo Hospital, Chennai for the period from 28th October, 2013 till 22nd March, 2014. On 29.04.2014, he submitted his medical claim of Rs.8,03,479.53 out of which an amount of Rs.7,20,000.00 was sanctioned and disbursed in favour of the respondent. Subsequent thereto, RCMR by a memorandum dated 08.12.2015 sanctioned Rs.4,43,870/- and sought for refund of the excess amount already disbursed.

Aggrieved thereby, representations were submitted but as the authorities ultimately denied to approve the total amount claimed, the respondent preferred the original application.

placing the reliance upon the judgment delivered on 19th December, 2013 in WPCT/169/2013. Aggrieved by the said order, the present writ petition has been preferred. Mr. Chakraborty, learned advocate appearing for the petitioners herein submits that the facts involved in the writ petition being WPCT/169/2013 are not identical to the facts and circumstances of the present case. The said judgment was delivered in the case of an employee of the Administration. ICMR was also not a party and as such the said judgment is not binding upon ICMR.

He argues that the claim for reimbursement of the entire medical expenditure is not absolute and the petitioners can plead financial constraint. The impugned order has been passed by the learned Tribunal without taking into consideration the proposition of law as laid down by the Hon'ble Supreme Court in the case of State of Punjab and others vs. Ram Lubhaya Bagga and others, reported in (1998) 4 SCC 117.

Mr. Khan, learned advocate appearing for the respondent contends that Port Blair is not covered under CGHS Scheme. The respondent was suffering from the dreaded disease of cancer and as proper medical facilities were not available in the G.B.Pant Hospital, he was recommended for treatment in Apollo Hospital, as would explicit from the memoranda dated on 21st October, and 22nd October, issued by the Medical Superintendent. The petitioners thus cannot avoid their obligation to bear the expenditure.

Heard the learned advocates appearing for the respective parties and considered the materials on record. In the earlier writ petition, the Court disposed of the matter laying down the guideline that so long there is no tie-up with any hospital and if the patient is referred to the said hospital for treatment, costs to be incurred on actual basis shall be reimbursed by the government upon usual verification. It was also observed that 'the State is admittedly under an obligation to provide free medical issuance to its employees'. If the government hospital is not equipped to conduct investigation or to give appropriate treatment and if the government hospital also thinks it proper to refer the patient for treatment elsewhere, the

authorities cannot avoid their obligation to bear the expenditure. ICMR being a State functionary cannot wriggle out of its obligations on a purported plea that it was not a party in WPCT/169/2013.

It is well known that a decision is an authority for what it decides and not what can be logically deduced therefrom. Even a slight difference in fact may make a lot of difference in decision making process. The judgment delivered in the case of State of Punjab and others (supra) is distinguishable on facts. In the said case the Court was considering the validity of a new policy adopted by the State as regards fixation of rate and scale of reimbursement. In the present case, the CGHS scheme is not applicable at Port Blair and the respondent was referred to Apollo Hospital on the recommendation of RCMR. For non-compliance of the order challenged in the present petition, a contempt application was preferred.

From a letter dated 1st March, 2021 issued by RMRC as annexed at page 155 of the writ petition, it appears that the respondents themselves filed a miscellaneous application before the learned Tribunal seeking further two months' time beyond six weeks for implementation of the order impugned in the present writ petition. Thereafter, the present writ petition has been filed in the month of November, 2022.

In the said conspectus, no interference is called for in the present writ petition and the same is, accordingly, dismissed. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

( Tapabrata Chakraborty, J. ) ( Raja Basu Chowdhury, J.)