"BMC Has Shown Its Inhuman Face";Bombay High Court Directs To Pay Lockdown Salary Dues To Physically Disabled Employees [Read Judgment]

The Bombay High Court on Wednesday repudiated the Brihanmumbai Municipal Corporation for issuing a circular withdrawing earlier exemption granted to physically disabled employees of the Corporation from attending office during lockdown, resulting in these employees not being paid any salary during the lockdown as their absence from work was treated as permissible leave.Division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni held that the BMC's circular dated May 26 does not stand judicial scrutiny. Court said-"We direct the Corporation to ensure that none of the physically disabled employees, who have not reported for duty during the pandemic are denied pay benefits which they would have been entitled to, but for the pandemic and had they reported for duty. The monetary benefits that each employee is entitled shall be calculated and released in their favour in two equal monthly installments as early as possible, the first of which should reach them before Diwali and the second within 45 days of payment of the first installment."Case BackgroundCourt was hearing a PIL filed by National Association of Blind filed through Advocate Dr.Uday Warunjikar challenging the circular dated May 26, 2020 issued by the General Administration Department of the Corporation. The petitioner claimed that the effect of the impugned notification is to withdraw a benefit, which was earlier extended to the physically disabled employees of the Corporation, with retrospective effect leaving such employees high and dry. According to the petitioner, the physically disabled employees of the Corporation have been discriminated against and the arbitrary withdrawal of benefit particularly in the wake of the pandemic evinces lack of sensitivity and compassion and thus, amenable to judicial review of this Court and liable to be struck down.The Ministry of Personnel, Public Grievance and Pension of the Government of India issued a direction on March 27, 2020 directing all the concerned ministries and the departments that the employees, who are physically disabled, ought to be exempted from attendance while the roster of the staff to attend to essential services is drawn. Consequently, on April 21, 2020, the State of Maharashtra issued a Government Resolution whereby persons with disability were exempted from attending their offices during the lockdown period. However, the State Government, issued the impugned circular dated May 26, 2020, in modification of its earlier circulars (whereby physically disabled employees were exempted from attending offices) stipulating that the absence of persons with disability be treated as permissible leave in respect of those who find it difficult to attend the office. The petitioner referred to the case of a visually impaired employee of the Corporation, Zanwar Dilip Govindram who was not paid anything for the month of July having absented himself from work. According to the PIL petition, treating such an employee‟s absence period during the lockdown as leave without pay on the part of the Corporation is unreasonable and arbitrary and being opposed to the provisions of the Rights of Persons With Disabilities Act. SubmissionsBMC's counsel Senior Advocate AV Bukhari firstly raised the issue of maintainability of the petition as it raises a dispute in relation to a service matter and, therefore, no PIL petition would be maintainable in that regard. Secondly, he contended that paying the physically disabled employees will have significant financial implications. The Corporation employs 1150 persons with disability in all, out of which 278 employees are visually impaired. If such physically disabled employees are granted special leave without loss of pay, the Corporation would be required to pay approximately Rs.12,22,35,300 inclusive of Rs.2,75,22,000 for visually impaired employees. Having regard to the dearth of financial resources, requiring the Corporation to pay Rs.12,22,35,300 would be a burden which the Corporation may not be in a position to shoulder in these difficult times when taking care of health of the citizenry has been its primary concern, Bukhari argued.Moreover, the Corporation urged that the petitioner in the guise of a public interest litigation has espoused the cause of only one employee, which is Zanwar Dilip Govindram, to ensure that he receives benefits in respect of a service dispute, although the same relief, if at all, could be obtained if such employee had approached the writ court. On the other hand, Dr. Uday Warunjikar referred to the provisions of the RPWD Act as well as the Statement of Objects and Reasons for its enactment upon repeal of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He drew the Court's attention to Chapter VIII of the RPWD Act and submitted that a duty is cast on the appropriate Government to provide for access to transport and access to information and communication for persons with...

"BMC Has Shown Its Inhuman Face";Bombay High Court Directs To Pay Lockdown Salary Dues To Physically Disabled Employees [Read Judgment]

Nitish Kashyap

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