Plea to treat absence of disabled workers as leave with pay: Bombay HC reserves verdict, asks BMC why they did not follow State Resolutions

The Bombay High Court on Saturday reserved judgment on Public Interest Litigation filed by the National Association of Blind seeking directions for the BMC “to treat the absence of persons with disability, more particularly blind and low vision persons, as leave without affecting pay.”.The Bench comprising Chief Justice Dipankar Dutta and Justice GS Kulkarni heard Advocate Uday Warunjikar for the Association and Senior Advocate AV Bukhari for the BMC before reserving its judgment on the petition..Warunjikar submitted that several Ministries in the Central Government came up with circulars allowing disabled people to remain absent from work without pay-cut. Although initially it was counted under sick leave, it was later considered as regular leave, but no pay was deducted..In fact, certain Ministries specifically asked for granting exemption for disabled persons from being engaged in essential service work during the pandemic period..Similarly, the Maharashtra Government also issued a resolution to exempt disabled persons from work during the lockdown period. Municipal Corporations around BMC applied those circulars for their respective employees..However, Warunjikar stated that the BMC refused to implement the directions of the Centre and the State..The BMC was also not following the provisions of the Rights of the Persons with Disabilities Act, 2016, whereby they have to utilise 5% of their funds for persons with disability, it was further submitted. .While Warunjikar was pointing out evidence from his pleadings, the Bench noted that there were discrepancies in the Marathi circulars and their English translation..“... these translations are misleading, if (it were) not for my fellow brother Justice Kulkarni.”Chief Justice Dipankar Dutta.The Bench then turned to Bukhari to know why the BMC thought they could “ignore the Central and State regulations”.“It was difficult in the pandemic for people like us who can see, do you have any idea how difficult it must have been for people who can’t see?”the Court queried..Bukhari, at the outset, said that the petition filed cannot be termed as PIL because no public interest lies in service matters which are essentially between the employer and the employee..The Court responded,.“When someone comes under Public Interest Litigation do you want them to bring letters of authority from every affected person to prove there is no private interest?”Bombay High Court.The Bench directed Bukhari to proceed arguing assuming they have admitted the PIL..He pointed out another circular of BMC which mandated the attendance of the disabled employees since June 2020..When the Bench demanded how the BMC has been implementing the PWD Act for its employees, Bukhari replied that disabled employees of BMC get double the allowances of a regular employee and that their pension benefits are higher..The Court then demanded to know if not PWD, "why are the other circulars of Centre and State not applicable to BMC?".Bukhari submitted that the Circular issued by Maharashtra Government which the Association was relying upon “was not ipso facto applicable to BMC.”.Bukhari further asked the Court to note that those circulars were not issued under PWD Act, and, hence, they would not include the principles underlying that Act..When the Bench wanted to know what provisions were made for their disabled employees' transportation, Bukhari pointed out that buses were arranged for them to reach the place of work..Warunjikar ended his arguments by pointing out that due to social distancing norms, disabled people, especially blind people did not “get help to climb buses, to cross roads, to climb stairs.".He commented that it was more difficult for them to travel with social distancing rules when no one can hold their hand to guide them..Bukhari submitted that BMC had incurred tremendous expenses for managing the medical health infrastructure, facilities and sanitation during this pandemic. This payment of salaries would add financial burden upon them..Warunjikar retorted that under the PWD Act, the BMC is supposed to reserve some funds for their disabled employees..However, Bukhari rejoined, submitting that if the Court allows this PIL then BMC will start getting several requests from other employees who were granted exemption from duty during lockdown period, and that this would add to the burden of the Corporation..After substantially hearing all arguments of the parties and going through the evidence on record, the Court finally reserved the matter for judgment.