"BMC Has Shown Its Inhuman Face";Bombay High Court Directs To Pay Lockdown Salary Dues To Physically Disabled Employees [Read Judgment]

Division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni held that the BMC's circular dated May 26 does not stand judicial scrutiny. Court said-

"We direct the Corporation to ensure that none of the physically disabled employees, who have not reported for duty during the pandemic are denied pay benefits which they would have been entitled to, but for the pandemic and had they reported for duty. The monetary benefits that each employee is entitled shall be calculated and released in their favour in two equal monthly installments as early as possible, the first of which should reach them before Diwali and the second within 45 days of payment of the first installment."

Case Background

Court was hearing a PIL filed by National Association of Blind filed through Advocate Dr.Uday Warunjikar challenging the circular dated May 26, 2020 issued by the General Administration Department of the Corporation. The petitioner claimed that the effect of the impugned notification is to withdraw a benefit, which was earlier extended to the physically disabled employees of the Corporation, with retrospective effect leaving such employees high and dry.

According to the petitioner, the physically disabled employees of the Corporation have been discriminated against and the arbitrary withdrawal of benefit particularly in the wake of the pandemic evinces lack of sensitivity and compassion and thus, amenable to judicial review of this Court and liable to be struck down.

The Ministry of Personnel, Public Grievance and Pension of the Government of India issued a direction on March 27, 2020 directing all the concerned ministries and the departments that the employees, who are physically disabled, ought to be exempted from attendance while the roster of the staff to attend to essential services is drawn.

Consequently, on April 21, 2020, the State of Maharashtra issued a Government Resolution whereby persons with disability were exempted from attending their offices during the lockdown period. However, the State Government, issued the impugned circular dated May 26, 2020, in modification of its earlier circulars (whereby physically disabled employees were exempted from attending offices) stipulating that the absence of persons with disability be treated as permissible leave in respect of those who find it difficult to attend the office.

The petitioner referred to the case of a visually impaired employee of the Corporation, Zanwar Dilip Govindram who was not paid anything for the month of July having absented himself from work. According to the PIL petition, treating such an employee‟s absence period during the lockdown as leave without pay on the part of the Corporation is unreasonable and arbitrary and being opposed to the provisions of the Rights of Persons With Disabilities Act.

Submissions

BMC's counsel Senior Advocate AV Bukhari firstly raised the issue of maintainability of the petition as it raises a dispute in relation to a service matter and, therefore, no PIL petition would be maintainable in that regard. Secondly, he contended that paying the physically disabled employees will have significant financial implications.

The Corporation employs 1150 persons with disability in all, out of which 278 employees are visually impaired. If such physically disabled employees are granted special leave without loss of pay, the Corporation would be required to pay approximately Rs.12,22,35,300 inclusive of Rs.2,75,22,000 for visually impaired employees. Having regard to the dearth of financial resources, requiring the Corporation to pay Rs.12,22,35,300 would be a burden which the Corporation may not be in a position to shoulder in these difficult times when taking care of health of the citizenry has been its primary concern, Bukhari argued.

Moreover, the Corporation urged that the petitioner in the guise of a public interest litigation has espoused the cause of only one employee, which is Zanwar Dilip Govindram, to ensure that he receives benefits in respect of a service dispute, although the same relief, if at all, could be obtained if such employee had approached the writ court.

On the other hand, Dr. Uday Warunjikar referred to the provisions of the RPWD Act as well as the Statement of Objects and Reasons for its enactment upon repeal of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

He drew the Court's attention to Chapter VIII of the RPWD Act and submitted that a duty is cast on the appropriate Government to provide for access to transport and access to information and communication for persons with disabilities. He contended that the RPWD Act being a social welfare legislation enacted specially for persons with disabilities, no matter what the financial constraints are, focus ought to be on promotion of the interests of the physically disabled as well as to achieve the purposes for which such legislation was brought into existence.

Dr. Warunjikar also submitted that during the lockdown period, the Corporation failed and/or neglected to make suitable arrangements for transporting the physically disabled to their respective workplaces and that such failure and/or neglect severely impeded the physically disabled employees of the Corporation to report for duty.

Moreover, owing to the distancing norms put in place by the Central Government, coming into contact with a fellow citizen was regarded as a risky proposition and even if a visually impaired employee desired to report for duty, he would be deprived of the help and assistance that he would expect under normal circumstances of the pre-pandemic days when fellow citizens voluntarily came forward to help and assist the visually impaired, Dr.Warunjikar argued.

Judgment

After examining the issue, the bench rejected the question of maintainability raised by the Corporation. Court noted-

"We have no hesitation to favour the view that the Central Government as well as the State Government exempted physically disabled employees from reporting at their respective workplaces during the lockdown period bearing in mind the ground situation and the hardships and inconveniences that could be faced by them.

Whatever public conveniences and comforts normal employees without any physical disability might enjoy are obviously not available in equal measure to the physically disabled, which has to be borne in mind by every employer and looked at in a different perspective. The petitioner may not be incorrect in contending that during the pre-pandemic days, people who were otherwise inclined to assist the physically disabled employees by lending a helping hand are not daring to offer help and assistance, lest they themselves get infected by the virus. It is in such a scenario that the Central as well as the State Government thought it fit to grant exemption not only to its physically disabled employees but those working in organizations under them."

Moreover, the bench noted that if, indeed, the Corporation was not inclined to offer financial benefits like pay to the physically disabled employees who do not report for duty, it was the duty of the Corporation as a model employer to make special arrangements for public transport or special measures to ensure hassle-free travel by its physically disabled employees to their respective workplaces. Court observed-

"We had inquired from Mr. Bukhari whether such facilities were made available or not, to which we have received an evasive answer; therefore, no other option is left to us but to ascertain from the pleadings the stand of the Corporation. In none of the two affidavits filed by the Corporation, paragraph 14 of the PIL petition has been dealt with. We, therefore, applying the doctrine of non traverse hold that the Corporation had not made any special arrangements for ensuring that its physically disabled employees do not face any hindrance while reporting for duty."

Court also recorded acceptance of Dr. Warunjikar‟s argument that the Corporation by the impugned action has shown its inhuman and insensitive face, much to the detriment and prejudice of its physically disabled employees.

The bench did not agree with Corporation's stand that paying the physically disbaled would cause financial strain-

"We further hold that the Corporation‟s stand that its revenues would be eroded if physically disabled employees are granted leave without affecting their pay is thoroughly misconceived. Equally without substance is the stand that extending relief of exemption from duty to the physically disabled employees would give rise to a cause of action for employees above 55 years of age to claim similar exemption. The Corporation ought to have avoided creating a situation where the physically disabled employees are not to be worse off in these unimaginably hard times and left without pay, if they had no leave to their credit.

While discharging its statutory obligations, the Corporation has to ensure that its physically disabled employees receive fair opportunity commensurate with their needs as well as facilities/access that the RPWD Act postulates, and also that they do not suffer for any other disability not attributable to them. The economics part has to be taken care of by the Corporation."

Finally, the said PIL was allowed and Court held the action of the Corporation to withhold the monetary benefits to the physically disabled employees with retrospective effect, to be illegal.