'Reasonable Restriction' : Bombay HC Upholds COVID Test Mandate For Employees Refusing Vaccination

The court observed that those avoiding the covid jab are placing themselves at a higher risk of contracting and transmitting the virus.

"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," the bench observed.

A division bench of Justices SJ Kathawalla and Abhay Ahuja dismissed a plea filed by seven employees of Mumbai Port Trust (MPT) challenging a circular issued by it in June 2021 on the ground that it discriminated between vaccinated and unvaccinated employees.

"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 observed that the main opposition by the petitioners was not taking the test but bearing the payment cost for the test. However, the bench said that MPT had offered to do the tests at their hospital on a no-profit basis.

"…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," the bench noted.

The court further said that MPT has not imposed a ban or drastic restriction which would effectively prevent unvaccinated employees from working. It has merely stipulated unvaccinated to take tests.

Vaccinated and Non-Vaccinated Not on Same Footing

The bench noted that 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 untenable to contend that vaccinated and unvaccinated persons stand on the same footing as far as the transmission of the disease is concerned."

The bench noted 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.

"Hence, 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."

Arguments

Advocate Aditi Saxena for the petitioners had argued that vaccinated and unvaccinated persons stand on the same footing in terms of their likelihood to transmit Covid-19. Moreover, an RTI showed that vaccination was voluntary.

Advocate Rajul Jain for MPT stood by the circular and said they were not stopping employees from working but merely protecting its employees. MPT offered free vaccination for its employees, too. He further cited benefits of getting the vaccine shot.

Senior Advocate Shiraz Rustomjee, appointed as amicus curiae submitted that the requirement of producing periodic RT-PCR Reports is reasonable and that MPT's refusal to provide free treatment to unvaccinated employees is also reasonable.

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