Termination Of Employee Solely For Being HIV-Positive Is Arbitrary & Unlawful: Delhi HC

A Division Bench of the Delhi High Court comprising Justice C. Hari Shankar and Justice Om Prakash Shukla held that termination of an HIV-positive employee without compliance with safeguards under the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 is unlawful. Background Facts The petitioner was appointed as a Constable (General Duty) in the Border Security Force in April 2017. He was diagnosed as HIV-positive and underwent treatment until 2018. A Medical Board declared him permanently unfit for service. Therefore, the BSF issued a show cause notice to him which proposed to retire the employee from service. Hence, he was discharged from service on the ground that he was physically unfit by order dated 9 April 2019. His appeal against the dismissal was also rejected. Aggrieved by the same, the employee approached the High Court by filing a writ petition. It was argued by the employee that respondents failed to comply with the HIV Act. It required them to furnish a written assessment from an independent healthcare provider proving that the employee posed a significant risk of transmission or was unfit for duty. Further the respondents also have to provide a statement detailing the administrative or financial hardship for not providing him reasonable accommodation. On the other hand, the Border Security Force contended that the employee was discharged from service in accordance with the applicable provisions, as he was found medically unfit to continue with the BSF. Findings of the Court It was observed by the Court that Section 3 of the HIV Act imposes prohibition against discrimination, including termination from employment. It requires two mandatory conditions, first, to furnish a written assessment from a qualified, independent healthcare provider stating that the employee poses a significant risk of transmission or is unfit for the job. Second, to provide a written statement from the employer detailing the administrative or financial hardship in offering reasonable accommodation. However, the respondents had not even made an attempt to comply with the mandatory requirements. Since respondent did not comply with this requirement, it was presumed as per HIV Act that the employee did not pose any significant risk if he was permitted to continue to discharge his duties. It was observed that an HIV-positive individual suffering from a long-term physical impairment, falls within the definition of a person with disability under the RPWD Act. The Act does not permit any government establishment to discriminate against any person with disability in any matter relating to employment. The RPWD Act further prohibits the government establishment from dispensing with the services of an employee who acquires a disability during service. It provides for reasonable accommodation. Thus, it was held by the Court that the employee could not have been deemed unfit to discharge his duties in the BSF solely on the ground that he was HIV positive. Therefore, the orders of discharge and dismissal of appeal were set aside. Further, the employee was directed to be reinstated with continuity of service and all attendant benefits. It was further directed by the Division Bench that if the employee was found unsuitable for his original post due to his medical condition, then the respondents should provide reasonable accommodation by offering him an alternative appointment in any other equivalent post. With the aforesaid observations, the writ petition filed by the employee was allowed by the Division Bench. Case Name : Mr. Abc Vs. Border Security Force & Ors. Case No. : W.P.(C) 3616/2021 Counsel for the Petitioner : Anuj Aggarwal, Divya Aggarwal, Pradeep Kumar, Anjali Bansal, Lovekesh Chauhan, Kritika Matta, Shreya Gupta, Manas Verma, Nikhil Pawar, Shubham Bahl and Bhumica, Advs. Counsel for the Respondents : Virender Pratap Singh Charak, Shubhra Parashar and Pushpender Pratap Singh, AdvsClick Here To Read/Download Order

Termination Of Employee Solely For Being HIV-Positive Is Arbitrary & Unlawful: Delhi HC

Namdev Singh

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