O R D E R
1. The two petitioners herein have filed the writ petition seeking to challenge an order of the Union of India vide its statutory notification No.G.S.R.591(E), dated 22.09.2006, wherein and by which, after receiving objections from all concerned, final gazette notification was made. By the said notification, the wage limit for coverage of an employee under the ESI Act was increased from Rs.7,500/- to Rs.10,000/-. The amendment made to Rule 50 of the ESI (Central) Rules, 1950 was under challenge. The amendment came into force with effect from 01.01.2006.
2. Infact even during the pendency of the writ petition, the Central Government by G.S.R.349(E) dated 20.04.2010 had increased the coverage limit from Rs.10,000/- to Rs.15,000/-, that is not under challenge in this writ petition.
3. In the present writ petition, the first petitioner is the Trade Union and the second petitioner is one A.Rajamani, who is said to be a worker employed by the third respondent Management. Aggrieved by the increase of the wage limit for coverage, the present writ petition is filed.
4. In the writ petition, notice of motion was ordered on 10.11.2006. Notice was taken by the learned Standing Counsel for the ESI. Pending the notice, an interim stay was granted which was also continued from time to time. Subsequently, on 01.11.2010, the writ petition was admitted.
5. A list of employees, who were covered by the increased wage limit was also furnished along with the writ petition. On behalf of respondents 1 and 2, a counter affidavit dated 20.11.2006 was filed.
6. The case of the first petitioner Union was that there are 1100 members in their Trade Union who are both employees and staff of the third respondent company. Out of which, 583 workers who are now sought to be covered by the enhancement of the wage limit under the ESI. The third respondent Mill has provided various medical benefits which are far superior than provided under the ESI Act. Because of the impugned notification, if they are covered by the ESI Act, then the third respondent is likely to withdraw the medical benefits which are superior in nature. The State Government also granted exemption from the application of the ESI Act by exercising power under Section 87 r/w Section 91A since the year 1992 to 2001. The various medical benefits given by the third respondent was set out in the affidavit. It is claimed that by the introduction of the proviso to Section 1(4), the Government company employees are not required to approach for exemption but only persons like the petitioner who are working under private management are now covered by the Act. The coverage under the ESI Act takes away the Right to Life and personal liberty granted under Article 21 of the Constitution. The scheme provided by the ESI was mostly unsatisfactory and it does not serve the real purpose for which ESI was created. It is for a citizen to decide to what kind of medical treatment that he may have and no one can thrust it from outside. Therefore, by the statutory coverage, the petitioners were forced to participate in a claim which is unsatisfactory and not conducive to the health of the workers. Besides it was also stated that Management is trying to get exemption and pending such exercise the attempt by the respondents should not be allowed to continue.
7. In the counter affidavit, it was submitted that the third respondent factory was not enjoying any exemption beyond 31.03.2001. Therefore, the said factory is covered by the provisions of the ESI Act. In so far as ESI is concerned, they are having 9 hospitals with 2363 beds spread all over the State and 189 dispensaries for the injured workers. There are as many as 79 branch offices are available. The medical expenditure incurred by the ESI works out to Rs.75 Crores per annum till 31.03.2006 and for infrastructure, it was more than Rs.95 crores. The ESI also has paid cash benefits to the extent of Rs.42 crores per annum, which is apart from the medical expenses incurred towards health care. Under no circumstances, the benefit given by the third respondent is either superior or similar to the benefit given by the ESI. When a writ petition was filed before the Kerala High Court and Karnataka High Court challenging the similar notification, those writ petitions were dismissed by those Courts. Appeal against the same was dismissed by the Supreme Court. If the contention that they are receiving superior benefit is true, then they should seek for appropriate exemption from the Government and not filing a writ petition.
8. The earlier notification increasing the wage limit from Rs.3000/- to Rs.6500/- vide order dated 23.12.1996 came to be challenged by various individuals and Trade Union were dismissed by a Division Bench in T.V.S.Suzuki Employees' Union v. Regional Director, E.S.I.Corporaton andanother reported in (1999) II LLJ 766 Mad. A Division Bench presided by D.Raju,J (as he then was) in paragraphs 6 to 8 held as follows:- "6. The decision of the Division Bench of the Karnataka High Court has exhaustively considered the case-law on the subject including the decision in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, (supra) and upheld the validity of the impugned notification. We have gone through the decision of the Karnataka High Court particularly the various factual materials noticed therein, the consideration undertaken and the conclusions arrived at and we are in respectful agreement with the same and in our view the reason assigned by the Division Bench of the Karnataka High Court in Paragraphs 10.1 to 12.5 of the unreported judgment to sustain the validity of the impugned notification are well merited and have our concurrence too.
7.The challenge made to the notification on the basis of a claim that the amendment introduced impinges upon the fundamental right to health secured to a citizen/employee does not appeal to us for our acceptance. In our view, the observations in the decision in Consumer Education and Research Centre v. Union of India, (supra), are sought to be taken out of their context for reliance to claim a right in a different context altogether. The emphasis made therein that the health and strength of the worker is an integral facet of right to life and the denial thereof denudes the workman the finer facets of life, violating Article 21 of the Constitution declared in the context of securing to them better conditions of service cannot be used for the purpose of challenging a scheme envisaged to extend really and effectively proper medical care and health conditions, extending medical facilities to protect the health of the workers to keep physically fit and mentally alert, for leading a successful life, economically, socially and culturally. The consideration of these aspects by the learned Judges of the Karnataka High Court in paragraphs 7.1 to 7.7 and the conclusion arrived at by them are acceptable to us and we have our respectful agreement with the same.
8. In our view, the Act as also the Scheme framed thereunder has been accepted and upheld by the Courts in our country to be welfare-oriented and in the best interests of the employees to make the life of the workers meaningful and livable with human dignity. Social justice has been held to be not a simple or single idea of society but is an essential part of complex social change to relieve the poor etc., from handicaps, penury to ward off distress and to make their life livable, for greater good of the society at large and in other words, the aim of social justice is said to be to attain substantial degree of social, economic and political equality. In judging the requirements of social justice and the utility of the welfare schemes formulated and enforced by the State, individual likes and dislikes or choice has no place whatsoever and what is required to be considered is the overall needs and calls of the society for whose benefit the scheme is envisaged for being enforced. If these aspects are kept in the background of the consideration, in our view, the charge that the widening of the coverage by enhancing the wage limit is for the collateral purpose of augmenting the resources or revenue of the Corporation cannot be countenanced at all. The formulation as also the perpetuation of a scheme and revising the policy from time to time to keep it abreast with the needs and requirements of the crying trends in the society to make the scheme effectively workable as also economically viable is as much essential as the formulation of the scheme itself. Consequently, merely because one of the objects proclaimed, even if it be to augment the resources of the Corporation, it should not be overlooked, that such augmentation is to make the scheme effectively workable and economically viable and such a move can, by no stretch of imagination, be castigated as being one for collateral purposes or for the benefit of the Corporation. Therefore, we do not see any merit whatsoever in the challenge made to the statutory amendment introduced under the notification under challenge. The writ appeals, therefore, fail and shall stand dismissed. C.M.P.Nos.18999 of 1997, 185 and 186 of 1998 are dismissed." (Emphasis added)
For the very same reasoning, the present writ petition is also liable to be rejected.
9. However, Mr.Sanjay Mohan, learned counsel leading M/s.Sai Raaj Associates wanted to argue elaborately on the touchstone of Article 21 of the Constitution. According to him, the Division Bench did not consider the right of an individual worker to have full protection under Article 21 of the Constitution.
10. Mr.Sanjay Mohan, learned counsel also contended that the petitioner being citizen of India is entitled to decide to what kind of health care that he can seek for and no authority can impose any compulsion to cover by a particular scheme which is bad. Even in such cases of compulsion, the test of fairness should be applied. Even if a law was valid at a particular point of time, by the change of time, the said law may become bad. The right to life conferred by Article 21 of the Constitution is a unique right. Inasmuch as the petitioner can have a choice of his own health care, by the impugned notice compelling to get insured in ESI Scheme is invalid.
11. In this context, the learned counsel relied upon several judgments of the Supreme Court to emphasise the scope of Article 21 and the test of arbitrariness found in any statutory law.
12. The learned counsel placed reliance upon the judgment of the Supreme Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others reported in (1981) 1 SCC 608 to contend that the right of life includes right to live with human dignity. He placed reliance upon the following passages found in paragraph 8, which reads as follows:- "8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights."
13. The learned counsel placed reliance upon the judgment of the Supreme Court in State of Punjab and others v. Mohinder Singh Chawala, etc. reported in (1997) 2 SCC 83 for contending that the Government has constitutional obligation to provide health facilities and they should pay the cost even for the treatment taken in private hospitals. He placed reliance upon the following passages found in paragraphs 4 and 11, which reads as follows:
"4. ....It is now settled law that right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities.
11.Consequently, when the patient was admitted and had taken the treatment in the hospital and had incurred the expenditure towards room charges, inevitably the consequential rent paid for the room during his stay is an integral part of his expenditure incurred for the treatment. Consequently the Government is required to reimburse the expenditure incurred for the period during which the patient stayed in the approved hospital for treatment. It is incongruous that while the patient is admitted to undergo treatment, he is refused the reimbursement of the actual expenditure incurred towards room rent and is given the expenditure of the room rent chargeable in another institute whereat he had not actually undergone treatment."
14. The learned counsel placed reliance upon the the judgment of the Supreme Court in Municipal Corporation of the City of Ahmedabad and ors v. Jan Mohammed Usmanbhai and another reported in (1986) 3 SCC 20 to contend that when a law provides uncontrolled power and discretion, then that law will infringe Article 19(1)(g) of the Constitution. Reliance was placed upon the following passage in paragraph 15, which is as follows:- "15. ...Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion the law ex facie infringes the fundamental right under Article 19(1)(g). Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition. But when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the interest of general public lies heavily upon the State."
15. Further, the learned counsel placed reliance upon the the judgment of the Supreme Court inState of Punjab v. Ram Lubhaya Bagga reported in (1998) 4 SCC 117 to contend that even while limiting the scope of judicial review it was observed that the Government must give due priority to health budget. Reliance was placed upon the following passages found in paragraphs 25 and 35, which are as follows:- "25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints.
35. We having considered the submission of both the parties, on the aforesaid facts and circumstances, hold that the appellants decision to exclude the designated hospital cannot be said be such as to be violative of Article 21 of the Constitution. No right could be absolute in a welfare State. A man is a social animal. He cannot live without the cooperation of a large number of persons. Every article one uses is the contribution of many. Hence every individual right has to give way to the right of the public at large. No Fundamental Right under Part III of the Constitution is absolute and it is to be within permissible reasonable restriction. This principle equally applies when there is any constraint on the health budget on account of financial stringencies. But we do hope that Government will give due consideration and priority to the health budget in future and render what is best possible."
16. The learned counsel also placed reliance upon the the judgment of the Supreme Court inMadhav Hayawadanrao Hoskot v. State of Maharashtra reported in (1978) 3 SCC 544 to contend that the personal liberty of a citizen cannot be curtailed without a fair procedure. Reliance was placed upon the following passages found in paragraphs 24 and 25, which are as follows:- "24. We may follow up the import of Maneka Gandhi and crystallise the conclusion. Maneka Gandhi case has laid down that personal liberty cannot be cut out or cut down without fair legal procedure. Enough has been set out to establish that a prisoner, deprived of his freedom by court sentence but entitled to appeal against such verdict, can claim, as part of his protection under Article 21 and as implied in his statutory right to appeal, the necessary concomitant of right to counsel to prepare and argue his appeal.
25. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Article 142, read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution. The inference is inevitable that this is a States duty and not Governments charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, especially when they are on behalf of the State must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court."
17. In support of his further contention, the learned counsel placed reliance upon the the judgment of the Supreme Court in Bishambhar Dayal Chandra Mohan v. State of U.P reported in (1982) 1 SCC 39 to contend that there is a duty on the State to harmonize the exercise of competing rights. Reliance was placed upon the following passages found in paragraph 32, which reads as follows:-
"32. The real question at issue is whether or not the seizure of wheat was with the authority of law. The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter-State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before the court, it is its duty to harmonise the exercise of the competing rights. The court must balance the individuals rights of freedom of trade under Article 19(1)(g) and the freedom of inter-State trade and commerce under Article 301 as against the national interest. Such a limitation is inherent in the exercise of those rights."
18. The learned counsel placed reliance upon the the judgment of the Supreme Court in District Registrar and Collector v. Canara Bank reported in (2005) 1 SCC 496 to contend that Article 21 guaranteeing 'personal liberty' is of the widest amplitude and covers variety of rights. Reliance was placed upon the following passage found in paragraph 56, which reads as follows:-
"56. In Maneka Gandhi v. Union of India a seven-Judge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21."
19. The learned counsel placed reliance upon the the judgment of the Supreme Court in Ramsharan Autyanuprasi v. Union of India reported in 1989 Supp (1) SCC 251 to contend that the term "life" in its expanded horizon today includes all that give meaning to a man's life. Reliance was placed upon the following passage found in paragraph 13, which is as follows:-
"13. It appears to us, further, that it would be highly improper to consider this litigation to be a public interest litigation as it is litigation between the members of the erstwhile Raj family to settle heir own scores. It is not pro bono publico, for the benefit of the public, but for the benefit of a particular section of people for their personal rights. Hence, the assertion that this dispute is a public interest dispute, is wrong. The petitioner has asserted that there is violation of Article 21 of the Constitution, which enshrines protection of life and personal liberty and states that no person shall be deprived of his life or personal liberty save according to the procedure established by law. It is true that life in its expanded horizons today includes all that give meaning to a mans life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the compass of an expanded concept of Article 21 of the Constitution. Yet, when one seeks relief for breach of Article 21, one must confine oneself to some direct, overt and tangible act which threatens the fullness of his life or the lives of others in the community."
20. The learned counsel placed reliance upon the the judgment of the Kerala High Court inP.A.Jacob v. The Superintendent of Police, Kottayam and another reported in AIR 1993 Kerala 1 to contend that the right under Article 21 also includes a right to be left alone. Reliance was placed upon the following passages found in paragraphs 21 and 23 which reads as follows:-
"21.That apart, freedom guaranteed is freedom of expression of ideas; not freedom of modes of expression. Freedom of press means not so much the freedom to put ink on newsprint, as it is the freedom to circulate ideas or thoughts. Where it otherwise, even a tax on newsprint may be constitutionally impermissible. It is not so, as held in Indian Express case (AIR 1986 SC 515). Likewise, freedom to express one's views to an audience, is not freedom to stand where one likes, or in the middle of a road or to use a loud speaker. There may be matter incidental to the exercise of a right. But, they are not rights, in themselves. Not all matters peripheral to the exercise of a fundamental right, are part of that right. In Smt.Maneka Gandhi's case AIR 1978 SC 597, the Court held that going abroad is not part of the right under Article 19. In the words of Rajagopala Iyengar (J) in All India Bank Employees' case, AIR 1962 SC 171, recognition of a series of ever expanding concentric circles in the shape of rights, concomitant to concomitant rights and so on, will lead to a grotesque situation. 23.Apart from the right to be let alone, freedom from aural aggression - Article 21 guarantees freedom from tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from noise. Exposure to high noise, is a known risk and it is proved to cause bio-chemical changes in man, elevating levels of blood catecholamine, cholesterol, white cell counts and lymphocytes. Laboratory studies made by monitoring electroencephalographic (EEG) responses and changes in neurovegetative reactions during sleep, show that disturbance of sleep becomes increasingly apparent as ambient noise levels exceed about 35 db(A) Leq.Noise produces different reactions along the hypothalamohypophyseal-adrenal axis, including an inrease in adenocorti-cotropic hormone (ACTH), affecting sympathetic division of the autonomic nervous system. Eye dilation, bradycardia, and increased skin conductance are proportional to the intensity of noise above 70 dB. SPL. Incidence of peptic ulcer is high among noise exposed groups. Noise causes contraction of the flexor muscles of the limbs and the spine, and is reckoned as an environmental stress that could lead to non-specific health disorders. Exposure to high-noise in eery daylife may contribute to eventual loss of hearing (socio-acusis) and this in turn can affect speech communication. Vasoconstriction or vasodilation of blood vessels also is induced by high levels of noise during acute exposures (Rosecrans et al (1966). Complaints of nystagmus (rapid involuntary side to side movements), Vertigo (dizziness) and balance problems have also been reported due to noise exposure. 'WHO' cirteria 12 and Indian standars 1 S-4954 indicate tolerance levels. J.E.Park and K.Park 'Text Book of Preventive and Social Medicine', 7th Edn. Page 201, also specifies tolerance limits of noise."
21. The learned counsel placed reliance upon the the judgment of the Supreme High Court inForum, Prevention of Envn. And Sound Pollution v. Union of India (UOI) and another reported in (2005) 5 SCC 733 in which the earlier Full Bench judgment of the Kerala High Court was quoted with approval.
22. The learned counsel placed reliance upon the the judgment of the Supreme High Court in Malpe Vishwanath Acharya v. State of Maharashtra reported in (1998) 2 SCC 1 to contend that what was held to be good several years before may not be good now. Reliance was placed upon the following passages found in paragraph 15 which reads as follows:-
"15. The aforesaid decisions clearly recognise and establish that a statute which when enacted was justified may, with the passage of time, become arbitrary and unreasonable. It is, therefore, to be seen whether the aforesaid principle is applicable in the instant case. Can it be said that even though the provisions relating to the fixation of standard rent were valid when the Bombay Rent Act was passed in 1947 the said provision, as amended, can still be regarded as valid now?" Therefore, he submitted that the earlier Division Bench order upholding the enhancement of wage limit under the ESI Act had lost much of its efficacy now. In the light of these precedents, the learned counsel sought for setting aside the impugned notification.
23. But this Court is not inclined to accept the said contention as already the Division Bench of this Court has upheld the validity of the similar notification by giving reasons and the same reasons will also apply to the case on hand. Even in cases of individual citizens, there is no absolute right or a choice. When once the petitioner become an employee in any industry, it is subject to the restrictions imposed even on such employment and also the Government can make laws relating to conditions of service. In fact Articles 41 to 43 of the Directive Principles State Policy clearly mandates the State to bring laws. Articles 41 to 43 reads as follows:-
"41. Right to work, to education and to public assistance in certain cases.
The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want."
42. Provision for just and humane conditions of work and maternity relief.
The State shall make provision for securing just and humane conditions of work and for maternity relief.
43. Living wage, etc., for workers.
The State shall endeavour to secure, by suitasble legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.
24. The health care of a worker by the State Government is a paramount importance. It is only with the view to provide benefits to the employees in cases of sickness, maternity, employment injury and other connected matters, the ESI Act was enacted. It is too late in the day to seek to challenge the said law. For the purpose of taking the health care of the workers, the law also imposes obligation on the employer to contribute amounts. Likewise contribution has also to be made by the employees. The wage limit for coverage is increased from time to time after taking note of the cost of living, index and revision of wages, which the workman would have had with the employer. It is not as if the petitioner is bound to take treatment or benefit only in terms of the Act. The contribution made by any employee or by the employer is of cumulative nature for achieving a common benefit and common good and it is not relatable to one single individual.
25. Reliance placed upon Article 21 to defeat the law is misconceived. Neither the petitioners Right to Liberty nor his Right to Livelihood is under threat. The contribution requires from his salary is a miniscule portion of his salary. After making the said payment even if the petitioner do not want to avail the benefits under the ESI Act, the amount goes for a common good. If the petitioner or his co-workers or if their employer thinks that they are getting a similar or superior benefits, the Act under Chapter VIII provides for an exemption by the Central Government. Unless and until they satisfy the Government after due notice to the ESI, no exemption can be granted. In the absence of an exemption, the Act applies squarely to all employees covered by the wage limit prescribed from time to time.
26. The judgment quoted in Bishambhar Dayal Chandra Mohan's case (cited supra), the Supreme Court in Paragraph 32 (quoted elsewhere), it was held that there is no absolute or unrestricted right to anyone.
27. Even on the Right to Health and getting treated in the hospital of their choice, the Supreme Court qualified the right declared in Mohinder Singh Chawala, etc. (cited supra) in the subsequent judgment in Ram Lubhaya Bagga's case (cited supra) In that case, the Supreme Court declared that the Right to Health guaranteed by the State is not absolute and in Paragraph 25, it was observed as follows:-
"25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints."
28. In the light of the above, there is no case made out to invalidate the impugned notification. Hence, the writ petition stands dismissed. Considering the fact that the petitioner is a worker, this Court is not inclined to order costs though the circumstances warrant for doing so. Connected MP stands closed.