[COVID-19] Higher degree of monitoring of unvaccinated persons reasonable: Bombay High Court

The Bombay High Court on Tuesday dismissed a petition filed by employees of the Mumbai Port Trust (MPT) raising grievance against an allegedly discriminatory circular issued by the Trust distinguishing between vaccinated and non-vaccinated employees [Deepak Kumar Radheshyam Khurana & 6 ors v. Mumbai Port Trust & Anr]..The circular issued by the MPT stated that employees who were not vaccinated for whatever reasons would not be permitted to attend office without production of negative RT-PCR tests. These tests would have to be submitted every ten days. It further provided that in the event any non-vaccinated employee contracts COVID-19 and requires hospitalisation, they would not be entitled to free treatment at Port Hospital..A Bench of Justices SJ Kathawalla and Abhay Ahuja observed, “given that unvaccinated persons pose a greater risk of transmission of COVID-19 than vaccinated persons,” it seemed 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 Court observed that requiring non-vaccinated employees to periodically produce negative RT-PCR tests is a “reasonable restriction on the fundamental rights of the petitioners to carry out their occupation or trade.”The Bench held it a reasonable contention that persons choosing to place themselves at a significantly higher risk of contracting COVID-19 should also assume the risk of having to pay for treatment in the event of contracting the virus..The plea filed through Aditi Saxena had contended that the MPT’s circular discriminated between vaccinated and non-vaccinated employees. It was submitted that vaccination is a voluntary act and employees could not be compelled to vaccinate themselves..On the contrary, the MPT argued that in light of the established medical position that vaccination provides a strong measure of protection against COVID-19, it was certainly preferable that all their employees be vaccinated. It also stated that it was taking efforts to provide free vaccination to their employees, most of whom, recognising the importance of being vaccinated, got themselves vaccinated..Senior Advocate Shiraz Rustomjee, who served as Amicus Curiae in the matter, submitted that the requirement of producing periodic RT-PCR reports as well as the refusal to provide free treatment to non-vaccinated employees was reasonable..From the material submitted before it, the Bench deemed it fit “to regard unvaccinated persons as posing a significantly greater risk of infection and transmission of Covid-19 than vaccinated persons.”.The Bench noted that the employees were willing to have themselves tested, but the only opposition they had was bearing the cost of the testing. While that was well-respected by MPT, it did not mean that the employees were ipso facto entitled to the same treatment as that given to vaccinated persons by the MPT, the Court said.“It is reasonable on the part of 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 order stated..The Court found no reason in law to compel MPT to bear the cost of such treatment when it was offering the alternative of free vaccination and was willing to bear the cost of treating breakthrough infections in such cases, free of charge.“MPT’s stance can neither be said to be unreasonable nor arbitrary. The stance adopted by MPT is legitimate. In fact, it is the Petitioners’ demands that now appear to us to be unreasonable and not the other way around,” the Bench said before dismissing the petition..MPT was represented by advocates Rahul Jain and Aasiya Khan instructed by HSA Advocates..[Read order]