BIRESH CHANDRA CHATTERJI Vs. SATE OF BIHAR

JUDGEMENT

(1.) THE petitioner is a Government employee and was employed as Bill Clerk in the Home (Jail) Department, Government of Bihar. He was suffering from chronic renal failure. He was being treated at the Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna and was on haemo dialysis. He was rcommended for immediate renal transplant. These facts are not in dispute. He was rushed to Chennai where he underwent renal transplant from a live donor. The transplant was successful. He returned to Bihar and joined his duty. He presented the medical bills for reimbursement. The same appears to have been rejected by Annexures -8 and 9 respectively on the ground that the petitioner had chosen to undergo treatment outside the State of Bihar without prior approval of the Government and without following the procedure in this regard, as such, his claim for medical reimbursement could not be entertained notwithstanding the facts abovementioned being fully admitted. In other words, what the State wants to submit is that however critical the illness may be, however emergent the treatment may be, a person must take a bureaucratic approach and wait for bureaucratic approval in the hope that death may delay itself pending approval. If they do otherwise, they shall suffer the consequences of not being favoured with medical reimbursement. I am amazed at this bureaucratic approach of the welfare Government.

(2.) IN the present case, it is the specialists at the Indira Gandhi Institute of Medical Sciences where the petitioner was undergoing haemo dialysis who recom - mended immediate transplant. It does not require a person to be a doctor or a super specialist to understand the meaning and consequences of such a recommendation. In my view, the answer lies not in equity but in Rule 26 of the Bihar Medical Attendance Rules wherein probably contemplating of such emergent situations, power has been granted on the Government to relax the rules and grant concessions relating to medical expenses even in cases which are not authorised by the rules. In other words, where rules provide that prior permission is required and no prior permission is taken because of some emergent reasons, the claim would ordinarily be unauthorised by the rules and it is those specific situations where the power under Rule 26 has to be exercised in appropriate cases so that because of bureaucratic procedures and delays an employee does not lose his life. Apparently the authorities seem to be oblivious of such provisions because apparently they or their near ones have never been visited by such a calamity they are unable to understand or be sensitive to the need of others not close to them. I may only refer to the judgment of the Apex Court in the case of Hirday Narain V/s. Income Tax Officer, 1971 SC 33 wherein the Apex Court has held that even if a provisions is prima facie discretionary, if conditions are satisfied for the exercise of jurisdiction, Courts would infer a duty and failure to perform the duty would be enforceable by an appropriate writ.

(3.) IN such a view, I have no option but to set aside the impugned orders holding that this is an appropriate case in which Government had the power, the jurisdiction and the duty to relax rules and sanction payments. It not having done so was a failure to exercise jurisdiction and abdication of duty conferred on it by statute. Let a writ of mandamus be issued to respondents No. 2, 3 and 4 to make payment of the medical bills of the petitioner in so far as they are related to the treatment under question. Such payment should be made within a period of one month from production of the copy of this order before respondent No. 2. In case payment is not made within the period specified aforesaid then payment would be made thereafter alongwith an interest at the rate of 6% per year from the day when payment was originally due.