‘State can’t be whimsical’: Calcutta High Court upholds Rs 29 lakh cancer treatment claim for family of retired employee

The bench noted that the right to life includes the right to live a life in a meaningful and purposeful manner with dignity. (Image is enhanced using AI)

“Fixed Medical Allowance is intended to meet routine and minor medical expenses, and therefore, cannot be construed as a waiver of the right to reimbursement..particularly in cases involving life-threatening diseases. To hold otherwise would amount to placing an unreasonable restriction on the right to health of retired employees and pensioners”, the Calcutta High Court observed in its February 27 order.

‘Retired employee, FMA, life-threatening disease’

• The retired employee was appointed as a graduate-trained teacher and superannuated from service on 31st July, 2018.
• In October 2019, it is alleged that the retired employee developed severe pain in his head and was admitted to G.B. Pant Hospital.
• As his condition did not improve, he was referred to Apollo Hospital of Chennai for advanced medical treatment.
• Upon discharge, he was advised to receive further specialised treatment at Apollo Proton Cancer Centre of Chennai. 
• On January 10, 2020, the retired employee underwent surgery for left Temporoparietal Glioblastoma, and was subsequently discharged on March 11, 2020. 

• It is stated that a total sum of Rs 29.06 lakh was incurred towards his medical treatment. 
• On June 8, 2020 and again on June 15, 2020, the retired employee’s wife, who was then serving as a government employee, submitted two separate applications before the authority concerned seeking reimbursement of the medical expenses incurred for the treatment of the retired employee. 
• She was informed through a memo of October 12, 2020, that the reimbursement of the medical claim is not admissible as per the Central Service (Medical Attendance) Rules, 1944 and the Ministry of Health and Family Welfare letter of September 29, 2020. 
• During the pendency of the application, the retired employee succumbed to death.  
• It was claimed that the retired employee’s wife approached various authorities seeking reimbursement of the medical bills, but the same was rejected. 
• Aggrieved by the same, she approached the CAT, which decided the matter in her favour and directed the authority concerned to consider and dispose of the medical bills.
• The tribunal noted that although the retired employee had opted for Fixed Medical Allowance by exercising the option in October 2020, on the ground that he was residing in an area not covered by the central government health scheme (CGHS) facilities, the claim required consideration. 
• The authority concerned, aggrieved by the said order of the tribunal, filed the present plea before the high court.

‘Right to health, medical bills’

• The fundamental human right to life includes the right to live a life in a meaningful and purposeful manner with dignity. 
• In a welfare state, the state is under an obligation to provide free medical assistance to its employees, especially when the hospital is run by the administration.
• After getting such treatment, the authority concerned should not hesitate to reject the prayer for reimbursement on guise of the memo. 

• The office memorandum of 2016 had words “may take their own decision”, but it does not give administration the right to take any arbitrary or whimsical decision, as it must be based on sound, reasonable discretion.
• Most of the courts held that the 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.

Analysis of tribunal’s order 

• The tribunal has recorded a clear finding that the medical treatment was genuine, necessary, and supported by documentary evidence. 
• There is no allegation of fabrication, exaggeration, or lack of nexus between the treatment and the expenditure claimed. 
• The rejection of the claim was founded solely on the applicability of the office memorandum of 2016, and the option exercised for FMA is legally unsustainable in light of the constitutional mandate under Article 21.
• The memo of 2016 has pointed out the responsibility given to all departments/ministries to inform their employees proceeding for retirement regarding the options for medical facilities available to the central government pensioners.
• However, no such information was given to the retired employee in the present case. 
• There is a duty cast upon the authority to inform the employee about the facilities at the time of retirement, and no such obligation is foisted on the retired employee.
• The authority concerned cannot avoid its responsibility cast upon it, and the legal heirs of the retired employee are entitled to reimbursement of the medical bills.

‘Analysis of retired employee’s medical claim’

• It is placed on record that the retired employee, after his retirement, suffered from a serious and life-threatening ailment, namely left temporoparietal glioblastoma, for which he underwent specialised treatment and surgery at Apollo Hospital.
• It is also undisputed that substantial medical expenditure amounting to Rs 29.06 lakh was incurred for such treatment. 
• It was noted that the retired employee had opted for FMA and had not registered himself under CGHS after retirement.
• This was claimed to be disentitling his legal heirs from claiming reimbursement of medical expenses actually incurred for his life-saving treatment. 
• It was placed on record that the claim for reimbursement of medical expenses incurred for treatment of the retired employee was rejected on the ground that, as per the Ministry of Health and Family Welfare’s instruction of 2016.
• The said instruction points out that the Central Services (Medical Attendance) Rules, 1944, do not apply to pensioners who did not opt for the options. 
• The Ministry of Health and Family Welfare, in their instructions issued in 2016, have clearly and explicitly decided that the pensioners should not be deprived of medical facilities from the government in their old age when they require them most. 
• The Centre has no objection to the extension of the Central Services (Medical Attendance) Rules, 1944, to the central government pensioners residing in non-CGHS areas as recommended by the pay commission, subject to certain conditions. 

‘Not opted for facility claimed’ 

• Appearing for the state. advocate Rakesh Kumar argued that there exists no statutory or administrative provision permitting reimbursement of medical expenses incurred by a retired employee who did not opt for medical reimbursement under the office memorandum of 2016.
• The said memorandum specifically clarifies that the Central Services (Medical Attendance) Rules, 1944, do not apply to pensioners. 
• It was submitted that, during his lifetime, the retired employee neither opted for enrollment under CGHS nor availed of the medical facilities available to pensioners residing in non-CGHS areas.
• It was further pointed out by Kumar that the retired employee had concisely opted for fixed medical allowance (FMA) by submitting the prescribed option form on October 1, 2020, as he was residing in an area not covered by CGHS facilities.  
• He relied on the instructions issued by the Ministry of Health and Family Welfare in 2016, which state that pensioners residing in non-CGHS areas may avail CGHS benefits only upon registration in the nearest CGHS city after payment of the prescribed subscription.
• He emphasised that the retired employee never registered himself with CGHS nor availed any such facilities, and therefore, the authority concerned is not entitled to medical reimbursement.

‘Factum of treatment, genuineness of medical expenditure’

• Representing the employee, advocate Gopala Binnu Kumar submitted that it is an undisputed fact that the retired employee was entitled to medical facilities during his service, and such a benefit cannot be denied merely on the ground of retirement. 
• It was argued that denial of reimbursement solely on the ground of non-empanelment or non-registration under CGHS is impermissible. 
• Binnu emphasised that the real test is the factum of treatment and the genuineness of the medical expenditure incurred.  
• He also pointed out that the retired employee was neither informed by the authorities about the implications of the said memorandum of 2016, nor was he furnished with any form explaining the available options for medical facilities post-retirement. 
• It was further submitted that similarly situated pensioners have been granted medical reimbursement by this court and the Supreme Court in several matters, and therefore, the legal heirs of the retired employees cannot be deprived of the same.