Bombay High Court
X vs Transport Ministry on 18 October, 2013
Bench: A.S. Oka, R.P. Mohite-Dere
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ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.6291 OF 2012
X
...Petitioner
vs.
Transport Ministry,Government of Maharashtra
and others ...Respondents
Mr.Asim Sarode and Mr.Mahesh Dixit i/b Asim Sarode
and Kulkarni and Associates for the Petitioner
Mr.V.P.Malvankar, AGP `A' Panel for the respondent
Nos.1 and 4
Mr.G.S.Hegde a/w Mr.C.M.Lokesh i/b G.S.Hegde &
Associates for the respondent Nos.2 and 3.
CORAM : A.S.OKA, &
REVATI MOHITE DERE, JJ.
DATE : OCTOBER 18,2013
ORAL JUDGMENT (Per A.S.Oka,J)
1 Considering the nature of the dispute involved,
in the cause title, we are suppressing the name of
the Petitioner. The case made out in the petition is
that the employer of the Petitioner, the Maharashtra
State Road Transport Corporation (for short "MSRTC")
has victimized the Petitioner by depriving him of
his employment on the ground that he has been tested
positive for Human Immunodeficiency Virus(for short
"HIV").
2 Brief reference to few factual aspects will be
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necessary at this stage. The Petitioner was
regularly employed as a Driver with MSRTC. The case
made out by the Petitioner in this petition is that
he was a permanent employee of the MSRTC. There is
no dispute about this factual aspect. The case made
out in this petition is that in the year 2008, the
Petitioner was tested HIV positive. On 8th April
2008, a certificate was issued by ART Center,
Department of Medicine, B.J.Medical College, Sassoon
General Hospitals, Pune stating that the Petitioner
has got registered with ART (Anti Retro-viral)
Centre and is required to come to ART center
regularly for checkup and collecting medicines. It
is not in dispute that ART Centres are established
to treat the patients who are tested HIV positive.
On 18th September 2009, the Depot Manager of the
Depot of Bhor, MSRTC addressed a letter to the
Divisional Controller of MSRTC at Pune. The said
letter records that the Petitioner has been affected
with HIV and therefore, he is remaining absent from
the duty time and again. A request was made to
subject the Petitioner to the medical examination.
Accordingly, Petitioner was subjected to medical
examination. On 4th September 2009, the Medical
Superintendent, the Sassoon General Hospitals, Pune
addressed a letter to the Divisional Controller of
the MSRTC, Pune recording that after the medical
examination, it was found that the Petitioner is fit
to work as a driver. Subsequently, on 8th February
2010, the Medical Superintendent of the same
hospital issued a certificate that the Petitioner
should be given a light duty for which he is fit.
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On 8th February 2012, the Divisional Controller of
MSRTC,Pune addressed a letter to the Petitioner
based on the said certificate dated 8th February 2012
informing him to remain present in Divisional Office
of the said Corporation at Pune. It is recorded
therein that till the Petitioner was medically
examined, in view of the said certificate dated 8 th
February 2012, he will be given a light work. The
letter further records that he will be sent to the
Sassoon General Hospital for medical examination and
on the basis of the medical report, necessary action
will be taken. It appears that on 15 th May 2012, the
Medical Superintendent of the Sassoon Hospital
addressed a letter to the Divisional Controller of
MSRTC which reads thus:
"With reference to the above letter this is
to certify that Mr.Kamble Suresh Sopan, age
41 years, was examined by Lecturer of
Neurology Department of this Hospital and
found that he is suffering from ICS with
Peripheral neuropathy without motor
deficit.
Advised:- He is unfit to work as driver on
heavy vehicle."
3 On the very day, the Divisional Controller
passed the impugned order relying upon the very
certificate dated 15th May 2012. What is stated in
the certificate was quoted therein and it was
observed that the Petitioner was medically unfit to
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drive heavy vehicles and therefore, from 15th May
2012, he has been removed from the employment.
4 The present petition is filed in June 2012.
The substantive prayer in this petition is for
reinstatement of the Petitioner with a direction to
the employer to assign a suitable job to him for
protecting his livelihood. There is also a prayer to
direct the respondents to tender an apology and to
grant suitable compensation. There are other prayers
made seeking reliefs which are general in nature.
We must note here that there were various
orders passed by this Court from time to time during
the pendency of this petition. On 10th September
2013, MSRTC issued a letter to the Petitioner
informing him that he has been appointed as a Peon
at Bhor Depot and he was directed to undergo
medical check up. It is not in dispute that the
Petitioner underwent the medical check up and that
he was found medically fit to do the duty as a Peon.
It is an admitted position that with effect from 2nd
October 2013, the Petitioner has been assigned duty
as a Peon on the basis of the letter dated 10 th
September 2013. Thus, the Petitioner has been
reinstated in service from the said date. We must
note here that the MSRTC has granted the benefit of
continuity of service to the Petitioner, but back
wages have been denied to the Petitioner. By order
dated 30th September 2013, this Court directed that
the petition shall be decided finally at the stage
of admission. Accordingly, we have taken up the
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petition for hearing.
6 The first question which arises for
consideration is whether the Petitioner is entitled
to back wages. The second question is whether the
employer should be directed to pay compensation. The
third question is whether the employer should be
directed to submit a written apology. As far as the
last question is concerned, we must note that by
accepting the suggestion given by this Court to the
MSRTC, the Petitioner has been reinstated and
therefore, this is not a fit case to direct the
MSRTC to tender an apology.
7 The submission of the learned counsel for the
MSRTC is that the Officers of the said Corporation
are lay persons. He submitted that the medical
certificate dated 15th May 2012 on the basis of which
the Petitioner was removed from employment does not
record that the Petitioner has been tested HIV
positive. He urged that the Petitioner who was
employed as a Driver to drive heavy vehicles was
found to be unfit and therefore, he was treated on
par with any other employee who is found unfit and
an order of removal from the employment was issued
by the MSRTC. He urged that there was no indication
in medical certificate dated 15th May 2012 that the
Petitioner was suffering from HIV. Therefore, there
is no scope to argue that the Petitioner has been
victimized only because, he is tested HIV positive.
He urged that the MSRTC is responsible for safety
and security of the public and its employees and
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therefore, once the Petitioner is found unfit to
drive, he cannot be continued in the employment and
cannot be permitted to drive buses. He urged that
admittedly from the date of termination till 2nd
October 2013, the Petitioner has not worked. He
pointed out that the last drawn salary of the
Petitioner is protected and he has been granted
benefit of continuity in service. He urged that the
Petitioner, by virtue of grant of benefit of
continuity in service, has been sufficiently
protected and therefore, he is dis-entitled to back
wages. The learned counsel made a grievance of the
fact that at the instance of the Petitioner, some
reports were published in media in which it is
erroneously stated that the learned counsel
representing the MSRTC has conceded before the Court
and that he has accepted the suggestion made by the
Court. His submission is that the publication of
such reports ought not to have been made at the
instance of the Petitioner.
8 The learned counsel for the Petitioner has
relied upon the decision of Division Bench of this
Court in case of MX Vs. ZY1. He submitted that the
Petitioner has been victimized as he has contracted
HIV positive.
9 We have carefully considered the submissions.
The Division Bench by the aforesaid decision in the
case of MX has held that the State and Public
Corporations cannot take ruthless and inhuman stand
1 AIR 1997 Bombay 406
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that they will not employ a person unless they are
satisfied that the person will serve during the
entire span of service from the employment till
superannuation. The Division Bench further held that
the most important thing in respect of persons
infected with HIV is the requirement of community
support, economic support and non-discrimination of
such person. The Division Bench further held that
taking into consideration the widespread and present
threat of this disease in the world in general and
this country in particular, the State cannot be
permitted to condemn the victims of HIV infection,
many of whom may be truly unfortunate, to certain
economic death. It was also held that it is
impermissible to do so under the Constitution. It
was held that the interests of HIV positive persons,
the interests of the employer and the interests of
the society will have to be balanced in such a case.
Even if it means putting certain economic burden on
the State or the Public Corporations, they must
bear the same in the larger public interest. The
said decision which holds the field also takes a
judicial notice of the fact that a person with HIV
infection does not pose a threat to other persons
who may come in his contact at the work place in
normal circumstances and only possible transmission
can be through sexual intercourse or the blood
transfusion. We will have to examine the factual
aspects of the present case in view of the law laid
down by this Court.
10 The AIDS (Acquired Immunodeficiency Syndrome) is
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caused by infection of an individual with HIV (Human
Immunodeficiency Virus), a retrovirus that
penetrates chromosomes of certain human cells which
combat infection throughout the body. Eventually the
virus destroys its host cells, thereby weakening the
victim's immune system who becomes susceptible to
variety of infections which can prove to be fatal.
11 The letter dated 18th August 2009 addressed by
the Depot Manager of Bhor Depot of MSRTC where the
Petitioner was posted, to the Divisional Controller,
Pune specifically records that the Petitioner was
repeatedly remaining absent as he is affected with
HIV infection. Therefore, the Divisional Controller,
Pune was aware in August 2009 that the Petitioner
has been infected with HIV. In fact, on the basis
of the letter dated 28th August 2009 issued by the
Divisional Controller, the Petitioner was subjected
to medical tests in Sassoon General Hospital at
Pune. The Medical Superintendent Sassoon Hospital,
Pune by his letter dated 4th September 2009 addressed
to the Divisional Controller, Pune of MSRTC stated
that the Petitioner was examined and that he was fit
to work as a driver. Thus, notwithstanding the
infection of HIV, as on 4th September 2009, the
Petitioner was found to be fit to discharge his
duties as a driver of heavy vehicles. On 8 th
February 2012, the Medical Superintendent of the
Sassoon General Hospital issued a certificate
stating that the Petitioner may be given light duty
for which is fit. By communication dated 8th May
2012 addressed by the Divisional Controller to the
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Petitioner, the Divisional Controller informed him
that the MSRTC, Pune has agreed to give him a light
work pending his medical examination. Even this
letter shows that the MSRTC was fully aware of the
nature of the ailment from which the Petitioner was
suffering. In fact, the MSRTC agreed to provide
light work to the Petitioner. By his application
dated 10th May 2012, the Petitioner requested the
Medical Superintendent of the Sassoon Hospital to
issue a certificate that he was capable of
performing duty as a Peon.
Then comes the certificate dated 15th May 2012
issued by the Medical Superintendent of Sassoon
General Hospital, Pune on the basis of which the
employment of the Petitioner was terminated. The
contents of the certificate have been already
reproduced in paragraph no. 2 above.
13 Perusal of the impugned order of termination
dated 15th May 2012 shows that the contents of the
certificate have been quoted verbatim therein and
only on the basis of the statement in the
certificate that the Petitioner was incapable of
performing duty as a driver of a heavy vehicle that
he was removed from service.
14 At this stage, it will be necessary to make a
reference to the order dated 1st July 2013 passed by
this Court by which the Medical Superintendent of
Sassoon Hospital was directed to file an affidavit.
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This order is very relevant in the context of the
submission that the medical certificate dated 15 th
May 2012 on the basis of which the Petitioner was
removed from employment does not record that the
Petitioner has been tested HIV positive. Clause 3 of
the said order reads thus:
"3 We direct the fourth respondent to
file an affidavit dealing with the
challenge in the writ petition and
especially the contention of the Petitioner
that the Petitioner has been tested HIV
positive. The respondent shall file reply
within a period of two weeks from today.
In the reply, he shall elaborate on the
diagnosis made by him which is recorded in
the communication dated 15th May 2012."
(emphasis supplied)
15 On the basis of the said directions issued by
this Court on 29th July 2013, Dr.Shrikant Sadashiv
Deshmukh, Assistant Professor Neurology in the
Sassoon General Hospital, filed an affidavit.
Paragraph 4 of the said affidavit reads thus:
"4 I say that the Petitioner Mr.X(name
and address suppressed) has been attending
Sassoon General Hospital, Pune since
27/2/2008. I say that he was tested for
HIV infection at NARI, Pune (National Aids
Research Institute) and found to be HIV
Positive on 30.5.2007. His CD-4 count at
that time was 29. He was put on NACO
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(National Aids Control Organization)
supported HAART (Highly Activated Anti
Retro-viral Treatment) since 27.2.2008. He
was linked out for continuation of
treatment to Bhor Link ART Centre from
30.7.2009. He was examined in Neurology
Clinic as per the request from State
Transport's letter dated 2.12.2011 and
22.12.2011. The Petitioner was found to be
suffering from a disease known as
peripheral neuropathy, which is the
dysfunction of peripheral nerves of the
body. This complication is commonly seen
in HIV Positive patients, which can be due
to the disease of HIV or as a side effect
of the medicines used in the treatment of
the HIV. In this disorder, the Petitioner
has a difficulty in appreciating senses
such as pain, temperature, touch etc
particularly in the legs and the Petitioner
also has altered perception of the sensory
symptoms such as burning, numbness in the
feet. The Petitioner is a driver on a
heavy vehicle which involves the
utilization of the above said senses for
normal operation of the vehicle, which
involves the use of clutch, accelerator,
breaks etc. Therefore, the certificate
dated 8.2.2012 was issued to the Petitioner
for light duty other than driver. Hereto
annexed and marked as Exhibit-1 is the
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copy of the said certificate 8.2.2012."
(emphasis added)
In paragraph 5, he has stated that on 15 th May 2012,
the Petitioner was declared as unfit to work as a
driver on heavy vehicles. He further stated that
"the petitioner was diagnosed to have peripheral
neuropathy without motor deficit." Paragraph 6
records that the Petitioner is on Anti Retro-viral
Therapy and his recent CD-4 count on 24 th September
2012 is 131. Thus, Dr. Deshmukh in so many words has
stated that the medical condition of the Petitioner
reflected from the certificate dated 15th May 2013 is
a direct consequence of testing HIV positive.
16 In the context of this affidavit, it will be
necessary to make a reference to the affidavit of
Sanyukta Ravindra Mahadik, the Divisional Personnel
Officer of MSRTC. In paragraph 3, he has stated
thus:
"3....I say that the Petitioner was not
removed from service on account of he
having contracted HIV, and the allegation
made by the Petitioner in this respect is
denied..."
17 The statement made on oath is that the
Petitioner was not removed from service on the
ground that he is having contracted HIV. For
reasons recorded in detailed order passed by the
earlier Division Bench on 23rd August 2013, this
Court in paragraph 8 held that the aforesaid
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statement made on oath by Shri Mahadik is false. In
paragraph 6 of the said order, this Court recorded
that the medical condition of the Petitioner which
is referred to in the certificate dated 15 th May 2012
is a direct consequence of the Petitioner testing
HIV Positive as it is specifically stated that the
Petitioner is suffering from ICS. Apart from this,
the stand taken is completely false for various
reasons. We have already referred to the
communication dated 18th August 2009(Exhibit-B)
addressed by the Manager of the Bhor Depot to the
Divisional Controller, Pune which shows that the
Divisional Controller, Pune was made aware that the
Petitioner is suffering from HIV. The communication
dated 8th February 2012 addressed by the Manager of
the Bhor Depot to the Divisional Controller, Pune
specifically records that in terms of the
certificate dated 8th February 2012 issued by the
Medical Superintendent, the Petitioner will be given
light work subject to the medical check up. The
Divisional Controller, Pune was therefore aware that
the Petitioner was required to be assigned light
work. The same officer passed an order of removal of
the Petitioner from the employment. Therefore, the
only conclusion which can be drawn is that the stand
taken on oath by the MSRTC that the Petitioner was
not removed from service on account of his having
tested HIV Positive is completely false. Moreover,
if the Divisional Controller had any doubt whether
the medical condition of the Petitioner stated in
the certificate dated 15th May 2012 had anything to
do with HIV positive condition, before hurriedly
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passing a drastic order of removal from the
employment on the very day, he could have sought
clarification from the Medical Superintendent
especially when the record of the Petitioner showed
that prior to the year 2009, the Petitioner was
tested HIV positive. In any event, the certificate
dated 15th May 2012 on the basis of which the order
of removal from service was passed only records that
the Petitioner is unable to discharge his duties as
a driver of the heavy vehicle. The MSRTC itself
agreed on 8th February 2012 to provide light work to
the Petitioner pending the medical examination of
the Petitioner. The medical examination only
suggested that the Petitioner is incapable of doing
the work of driving a heavy vehicle. The MSRTC
which is a public corporation and which is a "State"
within the meaning of Article 12 of the Constitution
of India took extreme step of removing the
Petitioner from the employment only on the ground
that in view of the ailment contracted by him, he
was incapable of discharging duties as a driver of a
heavy vehicle.
18 Thus, the removal from employment is only on
account of the disease contracted by the Petitioner.
He could have been removed from employment only on
the ground that he is "medically unfit" provided he
was found by the Medical Officer to be unfit to
perform even the duties attached to any light job
which could have been offered to the Petitioner.
Thus, the Petitioner has been discriminated against
and victimized on the ground that he has contracted
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HIV. The MSRTC was in a position to offer a light
job to the Petitioner as is clear from the letter
dated 8th May 2012 issued by the Divisional
Controller. But, within seven days, the Petitioner
was removed from employment only on the ground that
due to HIV positive, he was incapable of discharging
duty as a driver. The Petitioner posed no health
hazard to any other person at the place of work.
Thus, the impugned action is not only hit by Article
14 of the constitution of India, but it infringes
the right to life guaranteed to the Petitioner
under Article 21. Thus, the Petitioner is not only
entitled to reinstatement to a light job, but is
entitled to back wages as the impugned action
violates the fundamental rights of the Petitioner.
It is true that from 15th May 2012 to 2nd October
2013, the Petitioner was not on duty. The
Petitioner was prevented from performing his duty
only due to illegal and arbitrary action of the
MSRTC of removal from the employment. It is not the
case of the MSRTC that during this period, the
Petitioner has earned any income.
19 We are shocked to note that the public body
like MSRTC has taken a stand before this Court that
the certificate dated 15th May 2012 does not show
that the Petitioner had contracted HIV Positive.
This stand was persisted with even after the
affidavit of Dr.Deshmukh was filed on 29 th July
2013. Not only that a false statement was made in
the affidavit in reply of the MSRTC, while
reinstating the Petitioner, he was wrongfully denied
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the benefit of back wages. For the reasons recorded
in earlier paragraphs, we are of the view that the
Petitioner is entitled to back wages and all
consequential benefits.
20 The specific stand taken on oath by the MSRTC
in its affidavit-in-reply Mr. Sanyukta Mahadik is
"I say that the Petitioner was not removed from
service on account of he having contracted HIV, and
the allegation made by the Petitioner in this
respect is denied...". There was absolutely no
justification for removal the Petitioner from the
employment. The stand taken by the public
corporation is contrary to the law laid down in the
the decision of Division Bench of this Court in case
of MX vs. ZY. Hence, this is a fit case where the
MSRTC will have to be saddled with cost quantified
at Rs.50,000/-.
21 The learned counsel for the MSRTC has made a
serious grievance about the reports published in
newspapers on the basis of what transpired in the
Court on various dates fixed in this Petition. In a
writ petition, we cannot record a finding on the
disputed question whether the news items were
published at the instance of the Petitioner. But we
wish to record our views. During the course of
hearing, the Judges make several observations which
are prima facie and tentative observations. Such
observations are not findings on merits. The Judges
say many things with a view to give an opportunity
to the erring parties to make amends. Unless the
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Judges express there prima facie views, the members
of the Bar cannot do their best. The Judges by
expressing their tentative views ensure that the
members of the bar properly address and assist the
Court on the legal and factual issues involved in
the case. In many cases the tentative view
expressed by the Court earlier undergoes a change
after complete hearing while giving the final
verdict. We strongly feel that prima facie
observations made by the Judges during the course of
hearing should not be published as if the same
constitute final verdict. The same should be
published as tentative observations of the Court.
This matter before the Court is of a very sensitive
nature. Only observation which we can make is that
all concerned should show restraint when it comes
to publishing news items in the media about the
proceedings of the pending cases.
22 Hence, we pass the following order:
(I) We direct the Maharashtra State Road
Transport Corporation to pay back wages to
the Petitioner from 15th May 2012 to 1st
October 2013 within a period of three months
from today;
(II) Needless to say that the Petitioner will
be entitled to reinstatement to the post of
peon without affecting his earlier salary
with all back wages, benefit of continuity in
service and all consequential benefits in
accordance with law;
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(III) We direct the Maharashtra State Road
Transport Corporation to pay costs quantified
at Rs.50,000/- (fifty thousand only) to the
Petitioner within a period of twelve weeks
from today. The Corporation shall transfer
the said amount directly to the bank account
of the Petitioner;
(IV) Petition is disposed of on above terms.
(REVATI MOHITE DERE,J.) (A.S.OKA,J.)
