Bombay HC maintains Mumbai Port Trust’s mandatory RT-PCR test for unvaccinated employees
A division bench of Judges SJ Kathawalla and Abhay Ahuja rejected a petition filed by a few Mumbai Port Trust (MPT) employees challenging an office circular that required them to take Covid-19 vaccines or produce a negative RT- Report from PCR test every 10 days.
The June 15 circular read: âEmployees who have not signed up for vaccination / registered but have not taken any vaccine doses so far, will not be allowed to come to the office without the production of the vaccine. an RT-PCR test performed by a recognized hospital at their own expense and the RT-PCR test report will only be valid for ten days and thereafter employees will be required to resubmit a new RT-PCR report every 10 days, in order to take care of them. “
The circular also indicates that these facts will also be taken into consideration for the payment of compensation of Rs 50 lakh for the victims of Covid-19 announced by the ministry.
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The seven applicants who had applied to the court had chosen not to be vaccinated for personal reasons. Employees through their lawyer Aditi Saxena said MPT’s imposition of the Covid-19 vaccine discriminates between vaccinated and unvaccinated employees. The petitioners claimed that the circular violated their fundamental rights. The plea further added that vaccination is a voluntary act and that they cannot be forced to vaccinate themselves.
The Mumbai Trust Port, on the other hand, has argued that in light of the established medical position that vaccination offers a strong measure of protection against infection and transmission of Covid-19, it is certainly preferable that all their employees be vaccinated. .
MPT, through their lawyers Rajul Jain and Aasiya Khan, argued that they had therefore done everything possible to provide free vaccinations to its employees, and the vast majority of employees, recognizing the importance of getting be vaccinated, have been vaccinated. However, MPT has also accepted the position that vaccination is voluntary and therefore does not require any of its employees to be vaccinated.
As an alternative to vaccination, the MPT has only stipulated that employees who are not vaccinated must periodically produce test certificates proving that they are not infected with the coronavirus.
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MPT also added that since employees refusing to get vaccinated do insist on putting themselves at a much higher risk of contracting Covid-19, the organization has therefore stipulated that it will not bear the cost of treating these people. . MPT has insisted that these stipulations are reasonable under the current circumstances and are intended to protect its employees and prevent the spread of Covid-19.
The bench had appointed lawyer Shiraz Rustomjee as amicus curiae who produced various judgments from various high jurisdictions and comments from eminent doctors and the opinion of the World Health Organization on vaccination. Going through them, the court said that vaccination can prevent serious illness and death, adding that “analysis of data from various parts of the world (show) that vaccination reduces the severity of the disease.”
The court added: âThe medical opinion generally accepted by international and state agencies and governments around the world is that vaccination against Covid-19 not only offers significant protection against disease, but also significantly reduces the risk of its transmission. It is therefore logical and reasonable to consider unvaccinated people as presenting a significantly higher risk of infection and transmission of Covid-19 than vaccinated people. “
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The judiciary expressed the following opinion: “It is wrong to argue that because breakthrough infections are possible in vaccinated people, they are on the same footing as unvaccinated people and that they are classified into groups of people. unvaccinated and vaccinated is arbitrary or has no connection with the intended purpose, that is, the prevention of disease transmission.
The court observed that âMPT did not impose a drastic ban or restriction that would effectively prevent unvaccinated employees from working. In our carefully considered opinion, the above-mentioned decisions cannot support the applicants’ case. “
The court concluded that the real problem for MPT employees who came to court was not getting the RT-PCR test, but bearing the costs.
However, the court said that was not fair and said: âWe are convinced that people who make a conscious decision not to be vaccinated do indeed decide to place themselves at a greater risk of contracting and / or transmit the disease than a vaccinated person. If the applicants’ decision not to be vaccinated is well respected, this does not mean that they are ipso facto entitled to the same treatment as that granted to people vaccinated with MPT. It is reasonable for MPT to take the position that people choosing not to be vaccinated should themselves bear the recurring cost of providing RT-PCR reports, especially since MPT is willing to organize the test. based on actual cost.
The bench ended the 20-page order by stating: “We see no reason in law why MPT should be obliged to bear the cost of such (free) treatment when it offers the alternative of free vaccination and is also willing to bear the cost of treating breakthrough infections free of charge in such cases. In fact, it is the petitioners’ requests that now seem unreasonable to us and not the other way around. “
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