Mx of Bombay Indian Inhabitant v. M/S. Zy and Anr

AIR 1997 Bom 406; 1997 (3) BomCR 354; (1997) 2 BOMLR 504
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The Petitioner, MX, was a casual labourer working for the Respondent, M/s ZY, a State owned corporation. Before his employment could be regularized, the Respondent required the Petitioner to undergo medical tests, including tests for HIV antibodies. The Petitioner passed all fitness requirements presented in the examination except those for HIV antibodies. The Respondent, upon this news, immediately terminated the Petitioner’s employment on the ground that he was no longer “medically fit” for the post.

The Petitioner filed this petition in the Bombay High Court under Article 226 of the Constitution (original writ jurisdiction of the High Court). The Petitioner contended that his dismissal from work violated his fundamental rights under Article 21 (right to life) and Article 14 (right to equality) of the Constitution. The Respondent contended that though a worker could not be retrenched on grounds of “continued ill health” under Section 2 (oo) of the Industrial Disputes Act, 1948, pre-employment tests were not included in the purview of this provision. The Respondent claimed that it could require, under a statutory rule, medical tests for entry-level recruitment to determine medical fitness of the candidate. The Court was to decide whether a rule denying employment only on the ground of a person’s HIV status was unconstitutional.

The Court first addressed whether to allow the Petitioner to conceal his name in Court. The Court held that a person “infected with HIV” could be subject to great public embarrassment and undue publicity and thus a party could suppress his identity if he could show that it was in the interest of justice and that revealing his name would not allow him to participate in legal proceedings.

As to what would constitute medical fitness, the Court placed reliance on two judgments from the United States Florida v. Gene H. Arline, (1987) 94 L.Ed.2nd 307, and Vincent L. Chalk v. United States District Court Central District California, 840 F 2nd 701. The Court held that in the context of employment, medical fitness must be related to the requirements of the job. The Court further held that an “individualized inquiry” should be undertaken based on “reasonable medical judgments given the state of medical knowledge.” The Court held that the inquiry should consider:

“(a) the nature of the risk (e.g., how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties), and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.”

Relying on Anand Bihari v. Rajasthan S.R.T.C., 1991 AIR 1003, the Court held that “continued ill health” as used in s. 2 (oo) of the Act, “must have a bearing on the normal discharge of duties.” The Court further held that ill health would be relevant only if it interfered with the usual functions that were attached with the post.

The Court next considered whether a rule denying employment to people only on the ground that they tested positive for HIV violated Article 14 of the Constitution (right to equality). The Court held that such a practice was arbitrary, unfair and unreasonable and in violation of Article 14 of the Constitution. The Court relied on the policies and guidelines of the World Health Organization, the International Labour Office and the National AIDS Control Organization (NACO) in making this determination. The Court noted that persons living with HIV could perform “normal job functions” while living with the disease and that the probability of transmission of the virus was low at the work place.

The Court further held that the right to livelihood was included within Article 21 of the Constitution (right to life). It held that the right to life for a workman includes the right to be in employment that is not at the mercy of the employee. The Court relied on the right to socio-economic justice as envisaged in the Directive Principles of the Constitution to conclude that the right to work was necessary to the enjoyment of fundamental rights. The Court further held that a rule arbitrarily denying the right to livelihood was therefore in violation of the right to life.

The Court reinstated the Petitioner and directed him to take the pre-employment medical test on the basis of medical opinion. It directed the Respondent to compensate the Petitioner for loss of income for the period he was unemployed.

“If the person who is HIV positive and on that count is disabled to perform the normal job requirements, or if such a person poses a risk to other persons working with him or to persons coming into his contact at the work place, he could be justifiably and lawfully denied employment on the ground that he is medically unfit. However, the overwhelming medical opinion and the opinion of persons qualified in the field show that, firstly, that except through sexual intercourse and blood transfusion, there is no risk of transmission of HIV. Secondly, during asymptomatic period, the person may continue to be healthy and capable of performing the job requirements for a number of years which may range upto 18 years.” Para. 50.

“[T]he impugned rule which denies employment to the HIV infected person merely on the ground of his HIV status irrespective of his ability to perform the job requirements and irrespective of the fact that he does not pose any threat to others at the workplace is clearly arbitrary and unreasonable and infringes the whole some requirement of Art. 14 as well as Art. 21 of the Constitution of India.” Para. 54.

“[T]he State cannot be permitted to condemn the victims of HIV infection, many of whom may be truly unfortunate, to certain economic death. It is not in the general public interest and is impermissible under the Constitution. The interests of the HIV positive persons, the interests of the employer and the interests of the society will have to be balanced in such a case. If it means putting certain economic burden on the State or the public Corporations or the society, they must bear the same in the larger public interest.”

“[T]he most important thing in respect of persons infected with HIV is the requirement of community support, economic support and non-discrimination of such person. This is also necessary for prevention and control of this terrible disease.”

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