The Bombay High Court has upheld a circular issued by the Mumbai Port Trust (MPT) mandating RT-PCR tests every 10 days for unvaccinated employees on the ground that it is a 'reasonable restriction' on their fundamental rights.
Seven Employees had challenged a Circular issued by MPT in June 2021 on the ground that it discriminated between vaccinated and unvaccinated employees.
The Court observed that choosing not to get vaccinated is one's personal choice but he/ she can't then enjoy similar benefits as a vaccinated person as they are placing themselves at a higher risk of contracting and transmitting the virus.
While dismissing the plea, a division bench comprising of Justice SJ Kathawalla and Justice Abhay Ahuja observed:
"Given that unvaccinated persons pose a greater risk of transmission of Covid-19 than vaccinated persons, it is reasonable for a large organization such as the MPT to require a higher degree of checking and monitoring of the Covid-19 status of unvaccinated persons. The requirement for unvaccinated employees to periodically produce RT-PCR test Reports certifying that they are free from Covid19 is therefore a reasonable restriction on the fundamental rights of the Petitioners to carry out their occupation or trade."
The Court noted that the real objection of the Petitioners appears to relate not to taking the test, but to bearing the cost involved and their contention that they should not have to bear the cost of the RT- PCR Reports is based only on the argument that vaccinated and unvaccinated persons stand on the same footing in terms of their likelihood to transmit Covid-19 and must receive the same treatment in all contexts and the same is untenable.
"In view of the material placed before us, we are convinced that persons taking a conscious decision not to vaccinate themselves are effectively deciding to place themselves at a greater risk of contracting and/or transmitting the disease than a vaccinated person. While the Petitioners' decision not to take the vaccination is well respected, that does not mean that they are ipso facto entitled to the same treatment as that given to vaccinated persons by the MPT. It is reasonable on the part of the MPT to take the position that persons choosing not to vaccinate themselves must themselves bear the recurring cost of providing RT-PCR Reports, more so since MPT is willing to arrange for the test on actual cost basis. We also note that under the Break the Chain orders referred to hereinabove, the costs for providing a RT-PCR Report is required to be borne by the person required to produce it. We therefore see no arbitrariness and/or unreasonableness in the MPT’s stand"
The Court further noted that MPT has not imposed a ban or drastic restriction which would effectively prevent unvaccinated employees from working but has merely stipulated unvaccinated to take tests.
Rejecting the other ontention of the petitioners that MPT should bear the cost of medication in case they get infected, the Court noted that it is them who were being 'unreasonable' and not the respondent.
"It is reasonable to contend that persons choosing to place themselves at a significantly higher risk of contracting Covid-19 should also assume the risk of having to pay for Covid-19 treatment in the event of contracting Covid-19. We see no reason in law as to why MPT should be compelled to bear the cost of such treatment ( free of cost) when it is offering the alternative of vaccination free of charge and is also willing to bear the cost of treating breakthrough infections in such cases free of charge. In fact, it is the Petitioners’ demands that now appear to us to be unreasonable and not the other way around."
The Court also commented:
"The generally accepted medical opinion by International and State Agencies and Governments across the world is that a Covid-19 vaccination not only gives significant protection against contracting the disease, but also significantly reduces the risk of its transmission. It is therefore logical and reasonable to regard unvaccinated persons as posing a significantly greater risk of infection and transmission of Covid-19 than vaccinated persons. On the same basis, it is untenable to contend that vaccinated and unvaccinated persons stand on the same footing as far as the transmission of the disease is concerned."
The Court rejected the reliance on High Court Interim Orders by noting that other HCs passed interim orders on the basis that even vaccinated persons can be infected with Covid and transmit the disease to others. However, the courts appear to have overlooked the fact that the risk of contracting the virus is greatly reduced in vaccinated persons and is significantly higher in unvaccinated persons.
"it is erroneous to hold that because breakthrough infections are possible in vaccinated persons, they stand on the same footing as unvaccinated persons and that a classification into unvaccinated and vaccinated groups of persons is arbitrary or has no nexus with the object sought to be achieved, i.e., the prevention of the transmission of the disease."
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