Ch. Muhammad Amin Javed, Member. Appellant has filed the instant appeal under Section-4 of The Service Tribunals Act, 1973, against the refusal, dated 2.2.2017, on account of medical charges valuing Rs. 4,12,548.65 incurred on his wife treatment of sleeve gastrectomy for metabolic syndrome. Feeling aggrieved the appellant preferred departmental appeal, dated 6.2.2017, addressed to Respondents No. 2 & 3, which was rejected vide order dated 13.10.2017. He has also challenged the findings of Respondent No. 4, dated 26.1.2017.
2. Brief facts leading to filing of the instant appeal are that the appellant who stood retired on 29.9.2011 in the capacity of Sanitary Inspector applied for medical reimbursement case of his wife who initially admitted in the Railway Cairns Hospital lacking state of the art surgical expertise.
However, the appellant moved the Hon'ble Lahore High Court through W.P. No. 7182/2017 which was disposed of vide Order dated 12.6.2017 with a direction to Respondent No. 3 to decide his pending application, which was rejected vide order dated 13.10.2017. After the approval of Respondent No. 3, Medical Board had denied financial benefits to him. His entitlement cannot be denied by Respondent No. 4 after the assessm ent of diagnosis of Shalamar Hospital, Lahore.
3. While opposing the contents of the appeal respondents have maintained that the appellant preferred treatment of his wife to private hospital as such his claim has been denied by the authority after considering relevant rules. The disease by which the wife of the appellant suffering has not been included in the light of chronic disease meant for reimbursement. His claim has been declined on the recommendation of the Medical Board.
4. The learned counsel for the appellant has argued that medical case of the appellant's wife became deteriorated on 12.3.2016 being Saturday while Railway governed Hospital was not functioning and also FRCS qualified surgeon was not available and he managed to rush to Shalamar Hospital at 11:50 a.m on 12.3.2016 where his wife remained 48 hours in emergency and operated upon in a critical manner. He incurred Rs. 412548.65 and applied for reimbursement to the authority which has been denied in an illegal way. He also maintained that his claim was forwarded by the Divisional Medical Officer to Chief Medical Officer vide order dated 9.5.2016 which was allowed on 24.5.2016. After due process of assessment of the claim the Department approved the claim worth Rs. 332856/- on 8.12.2016. He further asserted that Medical Board constituted by the Department not even a single specialist Doctor was member relating to the patient's disease.
5. The learned counsel for the respondents opposed the arguments of the learned counsel for the appellant and submitted with reference to Notification, dated 19.1.2014, according to which treatment from any private hospital or clinic in emergency the concerned treating doctors/hospital will issue emergency certificate also verify medical claim bills. Further argued that the said bills will be countersigned by the concerned Medical Superintendent of Railways Hospital and Chief Medical and health Specialist of Pakistan Railways authorized by Health/Branch/ Division.
He further added that the treatment of the appellant's wife in a private hospital cannot be given approval without sanction by a Board/Competent Authority.
6. Heard. Record perused minutely and carefully.
7. It is not denial of the fact that the appellant and his family have a, right of medical facility. It is evident from the record that on 12.3.2016 (Saturday) no emergency facility including staff was available in Railways Cairns Hospital, Lahore and thereafter the appellant rushed to Shalamar Hospital to save the life of his wife. Dr. Moaz-ul-Hussain, Assistant Professor, Laparoscopic Surgery issued certificate, dated 15.3,2016 to the effect that Mrs. Rubina Anwar, aged 45 years admitted in the Hospital on 12.3.2016 and operated upon on 14.3.2016, who having uncontrolled diabetics and hypertension with abdominal pain. A reimbursement summary is also available on the record according to details containing expenses incurred on the treatment of his wife which come out Rs.
412548.65. The authenticity of these documents is not disputed/under challenge.
8. The record further depicts that the appellant submitted his request for reimbursement of medical claim along with the documents issued by the Shalamar Hospital, Lahore worth Rs.
412548.65 to the Chief Medical and Health Officer, Pakistan Railways, Lahore who in turn referred the' matter to the Divisional Medical Superintendent, Pakistan Railways Lahore requesting to the Chief Medical and Health Officer Pakistan Railways for sanction of post facto permission for the claim being private/non referral case. This letter is reproduced herein below for ease of reference:- "No. 12-Med/M/RI/Lho-409 (15-16)
Wife of Malik M. Anwar Rtd. Sanitary Inspector PR. Lhr DMO/Lhr has submitted a case (in Original) for post facto permission of medical expenses amounting to Rs. 4,12,548.65/- spent on the treatment of surgery Laparoscopic Sleeve Gastrectomy at Shalamar Hospital Lahore (Private Hospital) in favour of wife of M. Anwar Malik Rtd Sanitary Inspector P.R. Lahore May pass on the case of GM/w&si for post facto approval at equal to Govt. Hospital rates in favor of above named employee.
Sd/- 14/5/16 UDC/MEDICAL OS/MedSd/- 16/5/16 Dy.CMOSd/- 17/5/16 CM&HOPlease put up with reimbursemable amount equal to govt. rates. Sd/- 24/5/16 DMO/Lhr This recommendation was further forwarded for its sanction by the Divisional Medical Officer addressed to the Chief Medical and Health Officer, vide letter dated 1.9.2016, which is reproduced herein below for ready reference: "PAKISTAN RAILWAYS Office of the Divisional Medical Officer, Lahore No. 12-Med/M/26 Dated 01/9/2016 The Chief Medical and Health Officer, Pakistan Railways, Headquarters Office, Lahore.
Sub: Re-imbursement of Medical Charges The re-imbursement case along with all the relevant documents of W/o Malik Muhammad Anwar, Rtd. SI/P-R, Lhr for Rs. 3,32,856/- is sent herewith for further necessary action.
Funds are available and also verified by the Account Department.
DA/Case.
Sd/- 1(9/16 Divisional Medical Officer P.R. LHR On tour 03/9/16 SW- Mr. Hamood 2/9/16 Mrs. Sadia Mr. Hamood Is this surgical procedure is allowed for re-imbursement??. Laparoscopic sleeve Gastrectomy Procedure is used for weight loss solution in abesity, it is made by simple reduction in Stomach volume and at least 75% of stomach is removed leaving narragestric tube, whereas no intestine is removed. Please get permission from CM&HO.
Sd/- 8/9/16 Dy.CMO
9. As a next step the matter was referred for getting clarification from Shalamar Hospital, vide order dated 26.10.2016 by the DMO, to the effect that the operative procedure carried out on the patient was for Cosmetic reason or Therapeutic reason which replied that this was not a cosmetic one and the patient underwent therapeutic procedure. This was a metabolic surgery to control diabetics and blood pressure, all over the world it is not a cosmetic procedure. Subsequently the case was again submitted to the Competent Authority for reimbursement of Rs. 332856/-. The DMO endorsed the clarification of Shalamar Hospital and forwarded and recommended to CMO along with relevant documents for necessary approval/sanction. As such practically the claim was approved by the Railway authorities after getting clarification from the Shalamar Hospital regarding treatment and the disease and its treatment but on account of unfair attitude intention the matter was illegally referred to the Medical Board, but it is relevant to point out that in the report of Medical Board no specialist doctor was made. Member of the Board regarding diagnosing the disease and the doctors given the opinion was absolutely contrary to the record to the specialist opinion of Railways doctors as well as of Shalamar Hospital which has no sanctity in law.
10. It is established from the record that the patient was taken to the Shalamar Hospital in an emergency. We have also observed that the life of the patient should have not been put in a danger solely at the cost that she was not referred to the Hospital recognized by the Railways. The Medical Board mollified the surgical philosophy of concerned dealing Surgeon. Reliance is placed on Shiva Kant Jha v. Union of India (AIR 2018 S.C. 1975). There is clear misreading of evidence by the Department. While refusing the lawful claim of appellant, the Department relied upon Notification dated 29.1.2014, which says that in case of treatment from any private hospital/clinic, in emergency, the concerned treating doctor/hospital will issue emergency certificate and also verify medical claim/bill. The same will be countersigned by concerned medical superintendent of railway hospital/chief medical and health officer, Pakistan Railways/ Authorized Officers by Health/Finance Division. The reimbursement bill fulfilled the conditions of the Notification. The respondents while abusing their authority had denied his lawful right. Reliance has been placed on PLD 2010 S.C. 857 and PLD 2013 S.C. 195 that government departments should promote good governance while dealing with the terms and conditions of their employees. After due process of approval the respondents cannot retract their own steps. The Hon'ble Peshawar High Court in its ruling reported as Abdul Baseer Khan v. Government of Khyber Pakhtunkhwa through Secretary Finance Department, Peshawar and others [2016 PLC (C.S.) 1147] has observed as under: "Needless to say that Rules 3 and 6 of West Pakistan Government Servants (Medical Attendance)
Rules, 1959, clearly laid down that Government Servants would be entitled to free of charge medical treatment by Authorized Medical Attendant or otherwise any amount paid by them on account of such treatment shall be reimbursed to them."
Under the constitutional dispensation of Islamic welfare state government is bound to protect the interest of its servants. Reliance is placed on Dr. Asif Mehmood Hamraz v. Government of Punjab through Chief Secretary and another [2016 PLC (C.S.) 418] while observing as under: "In cases of urgent nature or emergency, where the question of life is involved or a disease may disable the patient, it is not possible for the Government servant to wait for prior approval from the Government department before proceeding with his treatment as the procedural delay in getting such approval may nullify the very object of such relief to be granted by the Government to the Government servant. Sanction can always be granted post facto, keeping in view the emergency involved in the case in hand. Therefore, the rejection of the claim of the petitioner by the respondents without examining it on merits is illegal and unjustified and the petitioner is entitled to reimbursement of charges incurred by him on his medical treatment. In this regard, I agree with the opinion expressed by the learned Service Tribunal Sindh in the case of Nazir Ahmed Siddiqui v.
Government of Sindh and 2 others (1981 PLC (C.S.) 467) that even if not prior sanction is obtained, such claim has to be examined on merits. The relevant portion of said judgment reads as under:- "The only question therefore left to be decided is whether the claim of the appellant could be rejected merely on the ground that prior sanction of the Finance Department for incurring the expenditure was not obtained. The cases requiring medical treatment abroad are usually of urgent nature and in an emergency when the question of life of the patient is involved. It is not possible for the patient to apply for sanction and wait for the concurrence of the Finance Department before proceeding abroad. It is usual for the department in such cases to ask or clarifications and refer the case back with number of queries before sanctioning the expenditure; and this procedure if adopted may nullify the very object of granting the relief. In any case the question is of "reimbursement" which is subsequent to the incurring of expenditure for medical treatment and not of "prior sanction." A patient would not know even the approximate amount required to be spent before going abroad. The question of prior sanction would, therefore, be meaningless. In any case there could be no bar to the examination of the case of the appellant for deciding the question of reimbursement of medical charges. Sanction can also be granted post facto looking to the emergency. There is nothing in the circular above referred to, requiring prior concurrence of the Government, specially when all the conditions laid down in the circular are fulfilled. The rejection of the claim of the appellant summarily without examining the claim on merits was, therefore, unjustified. We are accordingly of the view that on the facts of this case, and the policy laid down by the Government, the case of the appellant for reimbursement is one that ought to be allowed."
In juxtaposition reliance can also be placed on Muhammad Rustam v. Government of Khyber Pakhtunkhwa and others [2017 PLC (C.S.) Note 90], as under: "6. Apart from the fact that N.O.C. was duly accorded by the Director General, Health Services, Khyber Pakhtunkhwa, Peshawar, vide office order dated 18.08.2015, for medical attendance and further treatment of daughter of the petitioner in Shifa International, Hospital, Islamabad, as referred by ATH, Abbottabad, in a recent judgment dated 12.01.2016 in Writ Petition No. 3720-P of 2015 by an Hon'ble Division Bench at the Principal seat of this Court, both the issues of treatment in the Shifa International Hospital, Islamabad, and competency of the Director General, Health Services, to accord Ex post Facto Sanction under the West Pakistan Government Servants (Medical Attendance) Rules, 1959, were elaborately dealt with and resolved in favour of petitioner in the writ petition, with direction to the respondents to reimburse the medical charges incurred by the petitioner on the treatment of his daughter."
11. The upshot of the above discussion is that after going through the pros and cons of the record as well as after hearing the stances of both the parties we are of the firm view that the reimbursement has illegally been refused by the respondents, as such, impugned orders, dated 2,2.2017, 13.10.2017 - as also the findings dated 26.1.2017 are set aside being unwarranted and untenable in law.
Consequently the appeal is accepted. The respondents are directed to release payment as claimed by the appellant within a period of two months without fail.
12. No order as to costs. Parties be informed accordingly.