2012 PLP (C (PLC(CS))

MUNIR AHMED CHAUDHARY, J.

This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to seek direction against the non-petitioners to make payment of medical bills to the petitioner up till now.

2. It was stated in the writ petition that the petitioner was a permanent employee of the Azad Jammu and Kashmir University who served in different capacities and ultimately was retired as Registrar Azad Jammu and Kashmir University Muzaffarabad, after attaining the age of superannuation on 14-7-2000. On 13-6-2009, the petitioner had a severe attack of high blood pressure and he was admitted in Kashmir Institute of Cardiology Mirpur where he was provided preliminary treatment. The left part of the petitioner's body was paralysed. The doctors of Kashmir Institute of Cardiology, Mirpur advised to shift the petitioner to Pakistan Institute of Medical Sciences (PIMS) Islamabad for treatment of Infra Cerebal Bleed (Thalamic). Dr. Aurangzeb Alamgeer referred the petitioner to PIMS Islamabad on 14-6-2009 to avoid further complications and the petitioner was shifted to PIMS immediately. The said doctor wrote a letter to Director General Health Azad Jammu and Kashmir Government for granting permission for treatment of the petitioner outside AJ&K, and wrote a note for PIMS administration referring the petitioner for treatment.

3. It was further stated that the petitioner was shifted to PIMS on Sunday. Due to weekly holiday, no doctor was available in the PIMS Islamabad to treat the petitioner. To avoid any risk by waiting any doctor for a day and having in view, the intensity of the disease, it was decided to shift the petitioner in emergency to Shifa International Hospital, Islamabad for treatment. The petitioner remained under treatment in Shifa International Hospital, Islamabad from 14th to 20th June, 2009. The bills of the treatment at Shifa International Hospital, Islamabad amounting to Rs.1,14,925 were sent to Vice-Chancellor Azad Jammu and Kashmir University, Muzaffarabad on 30-9-2009 for making payment after granting permission of treatment outside of Azad Jammu and Kashmir in a private hospital, keeping in mind the circumstances under which the petitioner was hospitalized and treated in emergency to save his life. The matter remained undecided for a long time despite reminder sent to the University authorities by the petitioner many times. Ultimately, the University authorities refused to make payment of the expenditures incurred on treatment with the observation that the bill was tampered one and cannot be relied upon. This bill was presented before the Medical Committee of the Syndicate who rejected the same. It was prayed to accept the writ petition and to declare the act of non- petitioners against the law and rules governing the treatments and to direct the non-petitioners to make payment of the bill of treatment of the petitioner outside Azad Jammu and Kashmir in Shifa International Hospital, Islamabad and other expenditures incurred up till now in shape of medicines and therapy at the residence of the petitioner.

4. The non-petitioners submitted written statement stating therein that Medical Committee of the Syndicate of Azad Jammu and Kashmir University passed an order of refusal on 13-3-2010 and the instant writ petition filed in June, 2011, which is hit by the doctrine of laches and liable to be dismissed. The petitioner had an alternate forum for redressal of his grievance by filing an appeal before the Syndicate, which was mandatory under the University Statutes. So, the writ petition is not maintainable. Shifa International Hospital is a private hospital and University authorities cannot accept the claim of an employee unless the facilities of treatment are not available in Government hospitals. The petitioner was duty bound to approach the Syndicate against the decision of Medical Committee but he did not approach the Syndicate of Azad Jammu and Kashmir University. The respondents prayed to dismiss the instant writ petition.

5. Arguments were advanced by the learned counsel for the parties. Mr. Muhammad Idrees Mughal, the learned counsel for the petitioner repeated his version as taken in the writ petition and further argued that the Medical Committee is a part and parcel of the Syndicate. So, it was useless to approach the same forum once again. The said Medical Committee did not verify the claimed bills from the concerned hospital and declared the bills doubtful. The writ petition is not hit by the doctrine of laches because the petitioner has explained his efforts by reminding University authorities again and again. The learned counsel for the petitioner requested to accept the writ petition and referred the following precedents in support of his version. (1) 1993 SCR 88; (2) An unreported case decided by the High Court of AJ&K (Writ Petition No.159 of 1999 dated 6-11-2000) titled Raja Fazal Hussain Rabbani v. Vice-Chancellor AJ&K University; (3). An unreported case of the Apex Court of AJ&K (Civil Appeal No.60 of 2004 dated 30-4-2009) titled AJ&K University v. Professor Muhammad Aslam Khan).

6. While controverting the learned counsel for the petitioner, Mr. Farooq Hussain Kashmiri, the learned counsel for the non-petitioners contended that the decision made by the Medical Committee cannot be treated as a decision of Syndicate. The petitioner has mentioned questions of facts in his writ petition. The writ petition is hit by the doctrine of ladles. So, the writ petition is not maintainable. The claim of the petitioner cannot be accepted because the treatment took place in a private hospital while the same treatment was available in Government hospitals. No verification has been appended with the writ petition that doctors were not available at Pakistan Institute of Medical Sciences, Islamabad. The learned counsel for the non-petitioners requested to dismiss the writ petition filed by the petitioner.

7. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record available and the relevant law with utmost care. It is an admitted position between the parties that the petitioner was a permanent employee of Azad Jammu and Kashmir University who served in different capacities and ultimately he was retired as Registrar Azad Jammu and Kashmir University, Muzaffarabad after attaining the age of superannuation. This fact is also admitted that the petitioner being in service and now as a retired officer is entitled to medical facilities. The petitioner has claimed the bills of expenses incurred by him on his treatment at a private hospital and later on for his treatment at his residence by purchasing medicines and having therapy on advice of his doctor.

8. The record reveals that the petitioner had an attack of high blood pressure and he was taken to Kashmir Institute of Cardiology, organized under the administration of District Headquarter Hospital Mirpur. A medical specialist doctor Mr. Aurangzeb Alamgeer attended the petitioner who later on referred him to Pakistan Institute of Medical Sciences (PIMS), Islamabad. The petitioner was taken to PIMS Islamabad on Sunday, the 14th of June, 2009. The petitioner's left part of the body was paralysed. Due to weekly holiday, no doctor was available at PIMS, Islamabad and due to seriousness of disease and urgency, the petitioner was shifted to the nearest private hospital known as Shifa International Hospital Islamabad. The record reveals that the petitioner was not in a position to wait for the doctors till the next day at PIMS Islamabad. The first priority before him was to save his life and to have emergency medical treatment. He remained admitted at Shifa International Hospital, Islamabad from 14-6-2009 to 20-6-2009. Then the petitioner was discharged from the said hospital and he was shifted to his residence at Mirpur where he is under treatment till now. It means that the petitioner availed medical facilities from a private hospital because on Sunday, there were no chances of availability of doctors in any other Government hospitals as well. The main point to be resolved is whether expenses incurred on treatment in a private hospital in emergency have to be paid to the petitioner or not?

9. The petitioner submitted his bills regarding expenditures incurred on his treatment before University authorities. The matter was referred to Syndicate Medical Committee of the University. Medical Committee did not recommend for payment of the bill and conveyed it to the petitioner through a letter, appended as annexure "PE" dated 13-3-2010. This document shows that the bill was not recommended for the payment due to overwriting on the bills. This letter indicates that the bill was refused only due to overwriting on the concerned bills/documents and no objection was made regarding treatment availed in a private hospital. The petitioner was firstly taken to a Government hospital at Mirpur and then he was referred to Pakistan Institute of Medical Sciences Islamabad, a Government hospital as well. But when the petitioner was not attended by any doctor at PIMS and there were no chances of availability of any doctor in any other Government hospital due to weekly holiday, there was no option left for the family members of the petitioner and they shifted him to a nearest private hospital for emergency treatment. It has been admitted through a document appended with the written statement as annexure "RA" that Director Academics Education Planning and Research Kh. Muhammad Farooq's daughter was suffering from cancer and her treatment was conducted in a private hospital. The bill of expenditures incurred on her treatment was paid to the said officer because no Government hospital had a facility of cancer treatment. This version indicates that in emergency, one can avail treatment, in a private hospital as well. It has been laid down by this court in a case titled as Raja Fazal Hussain Rabbani v. Vice-Chancellor Azad Jammu and Kashmir University in Writ Petition No.159 of 1999 dated 6-11-2000 that a Government servant may receive treatment at his residence also. To receive treatment at residence is, of course, a private treatment and may be conducted by any private doctor. Rule 6 of University of AJ&K Medical Attendance Rules, 1982, the Vice-Chancellor may allow an University employee to have a treatment in a hospital/clinic out side of AJ&K territory. It is also provided in rule 9 that where these rules don't contain the provision relating to any matter effecting medical attendance and treatment, the rules of AJ&K Government or Federal Government of Pakistan, if any, shall be deemed to be affective for the purpose. As there is no specific provision in the aforesaid rules, which may deal with the aforesaid situation, therefore, AJ&K Government Civil Servants (Medical Attendance) Rules 1987 will apply. According to these rules, a Government servant may receive treatment at his residence on advice of a doctor. If a Government servant can receive treatment at his residence, he is eligible to receive a treatment at any private hospital in an urgent situation. Of course, the petitioner availed his treatment at a private hospital having a very serious, critical and an urgent situation.

10. The learned counsel for the non-petitioners asserted that questions of facts are involved in the present matter, which cannot be resolved in the writ petition. The matters though raising questions of facts but are clear and don't require detailed investigation of facts, can be resolved in the writ petition. Similarly, keeping in view the claim of the petitioner, it cannot be said that an inordinate delay was caused in brining the matter before this court. The petitioner has regularly been receiving the treatment under the advice of the doctor while purchasing of medicines and other tests necessary for the purpose. The petitioner carried on reminding the concerned authorities of the University to reconsider his claim. So no delay can be attributed when it has been explained affectively. So, the assertion made by the learned counsel for the non-petitioners regarding laches has no substance.

11. Moreover, the petitioner remained under treatment at DHQ Hospital Mirpur, so a right was accrued to the petitioner to have treatment being a retired employee of University of AJ&K. This right cannot be abolished on this point that the petitioner, later on, availed his treatment in a private hospital in emergency. As it has already been mentioned that the non - petitioners refused to make payment to the petitioner on the sole objection that the bills were tempered. The concerned Medical Committee/Syndicate was bound to verify the said bills or to have fresh bills from the concerned private hospital. They acted in violation of the rules governing the present matter.

12. The petitioner has submitted an affidavit in support of his version with his writ petition. The non- petitioners did not submit an affidavit in support of their version. So, the affidavit submitted by the petitioner is considered as sufficient proof because it has not been rebutted by cogent evidence, so the said affidavit becomes a conclusive proof. This principle has been laid down in a case titled Muhammad Sharif Khan v. Mirza Fazal Hussain and others (1993 SCR 88).

13. In the light of what has been discussed above, this writ petition is accepted. The petitioner is declared entitled to the medical facilities as a retired officer. The non-petitioners are directed to pay the bills of expenditures incurred on the treatment of the petitioner out side AJ&K in Shifa International Hospital Islamabad including the expenditures incurred up till now for purchasing of medicines and therapy at the residence of the petitioner. The non-petitioners shall make payment of all the bills submitted by the petitioner in this regard and to make payment of all such like bills to be submitted in future. No order as to costs. H.B.T./11/H.C.(AJ&K) Petition accepted.