W.P.(C)/2790/2014 of NORTH DELHI MUNICIPAL CORPORATION Vs RAJINDER SHARMA

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 31.07.2014Pronounced on: 26.09.2014

+W.P.(C) 2790/2014, C.M. NOS. 5796/2014 & 5797/2014

NORTH DELHI MUNICIPAL CORPORATION…..Petitioner

Through : Ms. Prabhsahay Kaur and Sh.Manav Gupta, Advocates.

VersusRAJINDER SHARMA……RespondentThrough : Sh. T.D. Yadav, Advocate.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT

1.TheNorthDelhiMunicipalCorporation[hereafter“theCorporation”] has approached the Court under Articles 226 of theConstitution, assailing an order of the Central Administrative Tribunal(CAT) dated 16[th]December, 2013. The CAT directed the Corporationto reimburse the medical expenses of the Respondent, its employee [hereafter "the Applicant"], who had undergone surgery in private,non-empanelled hospital.

2.The Corporation provides medical facilities to its employeesunder the C.S. (MA) Rules of 1944 [hereafter “the Rules”]. Under

these Rules, employees can undertake treatment at recognized orempanelledGovernmenthospitals,orprivatehospitalsifrecommended to do so by an authorized medical officer. In cases ofemergency, prior authorization is inessential. In 2006, the Corporationamended the Rules, extending cases in which unauthorized medicaltreatmentatprivatehospitalscouldbeundertaken,to“real”emergencies, accidents and other deserving cases.

3.In March 2010, the Applicant was advised by doctor atGangaram Hospital to undergo cardiac evaluation. Consequently, hewent to Indraprastha Apollo Hospital, and underwent bypasssurgery. In June 2010, his representation for reimbursement of medicalexpenses was rejected by the Expert Committee set up by theCorporation to look into such claims. The Applicant then obtained anEmergency Certificate from the Hospital, and made secondrepresentation. This too was rejected.

4.The Applicant approached the CAT. In August 2011, the CATissued an order directing the Expert Committee to consider theApplicant’s claims, while limiting them to the Central GovernmentHealth Service’s (hereafter “CGHS”) prescribed rates. In December2011, the Committee did so, and rejected the claim once again.

5.In 2013, the Applicant filed another application before the CAT.The CAT decided in his favour, and directed the Corporation toreimburse the medical expenses, as limited by CGHS rates. This orderis questioned in these proceedings.

6.It was pointed out before the CAT that the Corporation’s ExpertCommittee decided the question of reimbursement on the ground that

the Applicant had planned his surgery and that the hospital was milesaway from his residence; if the case was one of real emergency, therewere several hospitals near the vicinity of his house. In its firstrejection of the Applicant’s claim, the Experts Committee's remarksinclude “planned procedure; unrecognized centre; no emergency – notrecommended.” In its third – and final – rejection of the Applicant’srepresentation, the Committee has stated that

“treatment taken from Apollo Hospital in emergencyward does not mean that he was having any emergencysituation… Expert Committee is of the view that afterhaving coronary angiography done from Sir GangaRam Hospital and By-Pass Surgery from ApolloHospital Sh. Rajinder Sharma opted for plannedprocedure from an unrecognized hospital hence his claimcannot be recommended for reimbursement by the expertcommittee."

This claim is repeated on many occasions.

7.The CAT overturned the decision of the Expert Committee. Itsorder, requiring the Corporation to reimburse the Respondent wasbased on two grounds. The CAT found, on fact that the Respondent’ssituation was one of emergency. Independently of that, the CAT alsoheld that:

"7.As can be seen from the observations of theCommittee, the claim of the applicant for reimbursementis not found tenable because the procedure of bypasssurgery from Indraprastha Apollo Hospitals opted by theapplicant was planned procedure and instead ofundergoing such procedure from hospital, which is notrecognized by the MCD, he could have very well gone toAIIMS, J. B. Pant Hospital and Dr. R. M. L. Hospital.

8.It is true that being at Chandni Chowk, the applicantcould have been taken to any of the nearby hospitals, whichwere also recognized by the MCD. However, in theadmission slip, it is clearly indicated that the applicant wasadmitted in emergency. Also in the certificate issued by Dr.Ganesh K. Mani, Senior Consultant, Indraprastha ApolloHospitals dated 23.7.2010, it is indicated that the applicant,a 57 years old male working in Accounts Department,MCD, was admitted in Indraprastha Apollo Hospitals on23.3.2010 in emergency with the presenting complaints ofrecurrent angina. It is admitted by the learned counsel forthe respondents that in number of cases (page 44 of thepaper book), the respondents have recommended thereimbursement of the expenses, the cases being emergent.Merely because there were nearby recognized hospitals andthe applicant was taken to Indraprastha Apollo Hospital, itcannot be concluded that he was not in emergent need ofmedical treatment.

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11.As can be seen from the observations of theCommittee (ibid), it is no where mentioned that theapplicant was not suffering from the serious nature of thedisease. What is observed is that there were certainhospitals, which were recognized and the applicant hadopportunity to take opinion from Sir Ganga Ram Hospital.Another reason indicated is that the procedure opted was aplannedprocedure.Inviewoftheaforementionedjudgments of this Tribunal and the Hon'ble Apex Court, i.e.,right to self-preservation has species in the light of self-defence in criminal law, in order to preserve his life andbody, one could not take the risk to stand in queue in theGovernment hospital of AIIMS and he would be welladvised to avail the treatment wherever it is availablewithout there being any need to stand in the queue, therespondents are not justified in denying reimbursement ofmedical expenses incurred by the applicant on treatment ofserious ailment he was suffering from. Paragraph 12 of thejudgment passed by the Hon'ble Supreme Court in Surjit

Singh's case (supra) reads as under:-

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12. Though learned counsel for respondents has tried todistinguish the aforementioned two decisions taking the pleathat the facts of those cases are different from the one inhand. It is very rare situation that the facts of two cases areexactly identical. When we follow the law of precedent weneed to go by the ratio deci dendi and not by facts of thecase. The ratio of two judgments is that person has notonly the liberty but also duty to preserve his life and needto make all possible efforts for the purpose and that he neednot to stand in queue to avail the treatment in Governmenthospital and he can take the treatment wherever availablewithout there being requirement to stand in the queue. Foreasy reference, paragraphs 7 and 8 of the Order of thisTribunal in Rekha Saxena's case (supra) read as under:-XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

13. I am also not impressed by the submission of learnedcounsel for respondents that if direction is issued to therespondents to reimburse the expenses incurred by theapplicant on medical treatment, the floodgate would beopened. It is not so that in the present case the applicantwas not suffering from serious ailment and he was notadmitted in Indraprastha Apollo Hospitals in emergency.Besides it is quite unnatural that large number ofemployees would be suffering from cardiology risk and gofor aorto coronary artery bypass grafting surgery inemergency. Besides even if the cases are large in number,once an employee is member of health scheme introducedby his employer, the expenses incurred by him on thetreatment need to be reimbursed unless the claim is foundfalse or in excess of the prescribed rates. It is true that insuch cases where the ailment is not serious and thetreatment is not availed as per the conditions mentioned inthe scheme, the reimbursement may be denied. In thepresent case, it is not so that the ailment from which theapplicant was suffering is considered as not serious."

This order of the CAT has been questioned in the presentproceedings under Article 226 of the Constitution of India.

8.Learned Counsel for the Corporation urges that the ExpertCommittee –denied reimbursement on the ground that the Applicant’ssituation was not an emergency, but planned procedure. In thiscontext it is contended that in the amended rules (relied on in theCorporation'sMemorandumofAppeal),clearlyprovidereimbursement for expenditure incurred on treatment in respect ofdeserving cases, where treatment has been taken from Private/non-recognizedNursingHomes/Hospitalsinrealemergencyandunavoidable cases. The Corporation's counsel further argues that theApplicant deliberately and consciously opted for planned procedureby himself and underwent heart surgery from an unrecognizedprivate hospital, being Indraprastha Apollo Hospital, Sarita Vihar andtherebydisentitled himself from any reimbursement in terms of thesaid Rules/Resolution. To support this claim, the Corporation arguesthat number of reputed government and private hospitals are in closeproximity to the Applicant’s place of residence. Consequently, hisdecision to go to Sarita Vihar, which is much further away,undermines his claim that this was an “emergency situation".ThisCourt notices that an identical argument was made before the CAT.

9.Counsel for the Applicant/Respondent urges that the facts of thepresent case do not reveal that interests of justice lie in interfering withthe order of CAT. While it may be fact that the Applicant went to anon-empanelled hospital, that it was in medical emergency cannot bedoubted. Underlining that when the surgery is not and cannot be in

doubt and all that the Applicant seeks is reimbursement in terms of theCGHS rates and no more, it was argued that the CAT relied on theauthority of the Supreme Court's rulings in this case.

10.The narrow question which has to be decided is whether theCAT's determination that there was an emergency which warrantedthe Applicant approaching the Indraprastha Apollo Hospital, suffersfrom infirmity, given the prevailing policy of the Corporation withrespect to reimbursement in the case of emergency medical treatment.The Corporation- and its Expert Committee place emphasis on thecircumstance that the Applicant chose to go to far off hospitalinsteadofapproachinganearbyempanelledinstitution.TheApplicant's argument, however, is that there was an emergency and hewas rushed to Indraprastha Apollo Hospital. Two objective aspectshave to be noted; one is that the Applicant had consulted an MCD(Corporation) doctor on 22-03-2010; he confirmed the coronary arterydisease; however, the applicant did not get admitted to any hospitalthat day. The next day, he was rushed to Apollo. The dischargesummary issued by the Indraprastha Apollo Hospital clearly states thatthe patient was brought in an emergency. Now, there is no material onthe record that indeed the Applicant had approached the IndraprasthaApollo hospital after consulting the doctor at Ganga Ram hospital, andlater, the MCD doctor. The inference by the Expert Committee isbased on its surmise that the Applicant must have consulted withdoctors at Indraprastha Apollo Hospital beforehand and planned thesurgery. While the applicant's conduct, no doubt, does not explain whyhe was not removed to nearby hospital, the fact that he was taken to

the Apollo hospital on the concerned date, in the opinion of this court,cannot result in the conclusion that he had planned the surgery. Thereis no independent evaluation by the Expert Committee, through anymedical or diagnostic test, that the surgery did not take place; in factits view is based on the surgery having been undergone by theApplicant. The clear statement in the document that the patient wasbrought in an emergency, there should not have been disbelievedwithout any objective material.

11.As observed earlier, the Applicant did not explain why theempanelled hospitals near the vicinity of his residence were notapproached because it would have been logical to do so. That,however, can lead to no conclusion because in an emergency, theconcern of the patient's relatives and those most proximate would beto rush him to place which is best equipped to treat him; may bethose who had to take that decision, did so, given that the Applicantwas not in the fittest condition to decide for himself. In sucheventualities, fine balance between the need to follow establishedprotocol (to claim reimbursement in accordance with rules), on the onehand, and the anxiety to alleviate the patient's critical condition at theearliest point in time cannot be weighed in golden scales, in favour ofthe former.

12.This Court notes that the CAT relied on the authority of theSupreme Court's decision in Surjit Singh v. State of Punjab, 1996 (2)SCC 336. In that case, an employee with the Punjab Police force fellill while in London, and had bye-pass surgery, which cost anestimated ` 3 lakhs. On his return to India, he claimed reimbursement.

The government refused. During litigation, however, it was stated thatthe government was willing to pay the expenses for the bye-passsurgery to the extent of the cost of such treatment at AIIMS(`40,000/). The High Court accepted this proposal, and directed thepayment of the money. Aggrieved at this order, the Corporationapproached the Supreme Court.

13.The Court found that according to the State’s own policy, therewas list of diseases for which specialized treatment was unavailablein Punjab government hospitals, but available in certain privatehospitals. Those hospitals were “recognized” by the government forthe purposes of treatment. One listed treatment was open-heartsurgery, for which the relevant private hospital was Escorts, at Delhi.Consequently, the Court held that the Corporation ought to bereimbursed based on the price charged by Escorts, since if – based onthe List – he had undertaken treatment there, he would have receivedreimbursement. The Court invoked Article 21, and then cited, withapproval, Punjab & Haryana High Court opinion, which had stated:

“we cannot loose sight of factual situation in the AIIMSNew Delhi, i.e. with respect to the number of patientsreceived there for heart problems. In such an urgency onecannot sit at home and think in cool and calm atmospherefor getting medical treatment at particular hospital orwait for admission in some Government medical institute. Insuch situation, decision has to be taken forthwith by theperson or his attendants if precious life has to be saved."

14.The Court further noted:

“the appellant therefore had the right to take steps in selfpreservation, He did not have to stand in queue before the

Medical Board the manning and assembling of which, bare-facedly, makes its meetings difficult to happen. Theappellant also did not have to stand in queue in thegovernment hospital of AIIMS and could go elsewhere to analternate hospital as per policy. When the State itself hasbrought the Escorts on the recognised list, it is futile for it tocontend that the appellant could in no event have gone tothe Escorts and his claim cannot on that basis be allowed,on suppositions. We think to the contrary. In the facts andcircumstances, had the appellant remained in India, hecould have gone to the Escorts like many others did, to savehis life. But instead he has done that in London incurringconsiderable expense. The doctors causing his operationthere are presumed to have done so as one essential andtimely. On that hypothesis, it is fair and just that therespondents pay to the appellant the rates admissible as per”Escorts.

15.It is important to note that the Court expressly remainedagnostic on the question of whether or not this was case ofemergency. The Court held that “since… [the Appellant] has nowbrought down his claim to the rates prevalent in the Escorts in placeof that of AIIMS, further reference to emergency treatment etc. wouldnot be necessary. It would hypothetically have to be assumed that theappellant was in India, had not subjected himself to Medical Boardexamination, and had gone on his own to the Escorts and got himselfoperated upon for Bye-Pass Surgery.”

16.The logic of the Surjit Singh (supra) decision seems to be that aGovernment policy which provides procedure for treatment andreimbursement in cases of certain ailments, creates thresholdentitlement for its employees (flowing from Article 21). If the

applicant runs up bill higher than that contemplated by the Policy,because he goes to hospital not on the official list – then while theGovernment is not obligated to reimburse him the full cost of histreatment, it is nevertheless obligated to provide him the amount ofreimbursement contemplated in the policy, for that particular ailment.In Surjit Singh (supra), the applicant underwent treatment that wasspecifically referred to in the Policy, but not at listed hospital. TheCourt’s answer was not to deprive him of reimbursement altogether,but to allow reimbursement to the extent that the Policy contemplated.

17.The situation in Surjit Singh (supra) is analogous to thesituation in the present case. As in Surjit Singh (supra), in this case aswell, the applicant has undergone treatment at non-recognisedhospital, while the government policy recognise public as well as otherprivate hospitals. Furthermore, the fact that in its submissions, theCorporation argues that the same kind of treatment is available inprivate, empanelled hospitals, implies that the Corporation would nothave been averse to paying for the same treatment, had it beenundertaken in an empanelled hospital.

18.It might be argued that in Surjit Singh (supra), the applicant hadno realistic way of undertaking treatment at recognised hospital(such as Escorts), since he was in London when the disease struck.Here – as the Corporation has argued – the Respondent could haveundergone treatment at any number of public or private hospitals inthe near vicinity, instead of going all the way to Sarita Vihar.

However, this distinction would have been relevant if, in Surjit Singh(supra), the Court had decided the case on the ground that there wasan emergency. As we have seen above, the Court saw fit not to rule onthe matter. Therefore, the presence or absence of viable (recognised)alternatives makes no difference to whether an applicant should beallowed to claim the threshold level of reimbursement contemplatedby the Policy. In the instant case, that threshold level is the CGHSrates, which is what the Tribunal ordered.

19.The Respondent has also relied on the Supreme Court’sjudgments in State of Punjab vs Mohinder Singh Chawla, 1997 (2)SCC 83, and State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC1703. Neither of those cases are of particular relevance to this matter.In Mohinder Singh Chawla (supra), the same Punjab Policy was atissue. The State agreed to pay the cost of the open heart surgery atEscorts, but paid the room-rent at the rate charged by AIIMS. TheCourt held that:

“it is incongruous that while the patient is admitted toundergo treatment and he is refused the reimbursement ofthe actual expenditure incurred towards room rent and isgiven the expenditure of the room rent chargeable inanother institute whereat he had not actually undergonetreatment.”

Accordingly, the government was directed to pay room rent aswell.

20.In Ram Lubhaya Bagga (supra), the policy itself had beenchanged, and was now limited to “rates… fixed by the Director,Health and Family Welfare, Punjab, for similar package treatment

or actual expenditure whichever is less.” Specifically, for an open-heart surgery, AIIMS rates were reimbursed. The policy waschallenged. The Court declined to enter into the realm of policyformulation, holding that it was based on number of factors that itwas not competent to evaluate. The basic scheme of the Policy wasfound to be reasonable and constitutional. Ram Lubhaya Bagga(supra) neither helps nor hinders the Respondent’s case, because nochallenge is being made to the existing policy; rather, it is theinterpretation of the terms of the existing Policy that are at issue.

21.It is important to note that in none of the three cases discussedabove, was reimbursement denied entirely. Rather, it was limited toamounts in accordance with whatever Policy was in force.Guidelines

22.Notwithstanding the merits of this individual case, it is clearthat the term “other deserving cases” is vague. The fact that it ispreceded by “real emergencies” and “accidents” does not help in itsinterpretation. Of course, on plain reading of the rule, cases that are“deserving” must share certain characteristics with “real emergencies”and “accidents”. However, there are many characteristics that couldpotentially be common to emergencies and accidents: severity,urgency, taking away the patient’s ability to make reasoned choice,and so on. Without any further qualification, the term “other deservingcases” vests too much discretionary power with the implementingauthority (in this case, the Expert Committee).

23.Following the American Supreme Court case of Grayned vs

Rockford, the Indian Supreme Court in Kartar Singh vs State ofPunjab 1994 (3) SCC 569 described the impact of vague statutes ofpolicies upon the rule of law:

“It is the basic principle of legal jurisprudence that anenactment is void for vagueness if its prohibitions are notclearly defined. Vague laws offend several important values.It is insisted or emphasised that laws should give the personof ordinary intelligence reasonable opportunity to knowwhat is prohibited, so that he may act accordingly. Vaguelaws may trap the innocent by not providing fair warning.Such law impermissibly delegates basic policy matters topolicemen and also judges for resolution on an ad hoc andsubjective basis, with the attendant dangers of arbitrary anddiscriminatory application.”

24.The same problems apply in the present case, because it isimpossible for an applicant to know beforehand whether or not hiscase will – subsequently – be ratified by the Expert Committee to be a“deserving case”, without any further indication of what that might be.25.In Anil Sabbarwal v. State of Haryana, ILR 1997 (2) P&H, thePunjab and Haryana High Court held that Policy which required theallotment of plots to “distinguished and needy persons”, as determinedby the Chief Minister, was unconscionably vague in the absence ofany guidelines for the exercise of administrative discretion. In mannerand import, “deserving cases” is strikingly similar to “distinguishedand needy persons”.

26.In cases where there is gap, or lacuna, in set of rules,which raises possible constitutional problems, the Court is empoweredto direct the statutory authority to frame appropriate guidelines to dealwith the matter. This proposition was affirmed by the Supreme Court

as recently as 2013. In State of Punjab vs Salil Sabhlok, 2013 (5) SCC1, the Court held that:

“the administrative and constitutional imperative can bemet only if the Government frames guidelines or parametersfor the appointment of the Chairperson and members of thePunjab Public Service Commission. That it has failed to doso does not preclude this Court or any superior Court fromgiving direction to the State Government to conduct thenecessary exercise within specified period.Only becauseit is left to the State Legislature to consider the desirabilityor otherwise of specifying the qualifications or experiencefor the appointment of person to the position ofChairperson or member of the Punjab Public ServiceCommission, does not imply that this Court cannot directthe Executive to frame guidelines and set the parameters.This Court can certainly issue appropriate directions in thisregard.”

27.Consequently, the Corporation is required to frame guidelinesfor deciding the import of the term “other deserving cases”.Conclusion

28.Following the decision in Surjit Singh (supra), and the othercases discussed above, the existing precedent provides at least anarguable defence of the CAT’s decision to award reimbursement atCGHS rates. On the other hand, the Corporation has not demonstratedsufficient reasons as to why that decision should be set aside.Therefore, the Petition has to fail.

29.TheCorporationisalsodirectedtoframeappropriateguidelines for the exercise of the Expert Committee’s discretion indeciding what cases qualify as “other deserving cases”, and meritreimbursement. The writ petition is, therefore, dismissed along with

the pending applications without order on costs.

S. RAVINDRA BHAT(JUDGE)

VIPIN SANGHI(JUDGE)

SEPTEMBER 26, 2014