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The Bombay High Court division bench of Justice SJ Kathawala and Justice Abhay Ahuja on Tuesday upheld Mumbai Port Trust’s direction that unvaccinated employees have to produce negative test results every 10 days at their own cost. The Court observed that people taking a conscious decision to not vaccinate against Covid-19 are not entitled to the same treatment given to inoculated persons.

The Court was hearing a plea by a group of employees who allege that MPT’s imposition of a vaccine against Covid-19 is discriminatory between vaccinated and non-vaccinated employees.
That vaccination is a voluntary act and that they cannot be compelled to vaccinate themselves. The Petitioners further contend that no meaningful distinction can be made between vaccinated and unvaccinated persons and that both stand on the same footing in terms of their likelihood to transmit Covid-19.

Per contra, MPT has contended that the established medical position is that vaccination provides a strong measure of protection against infection by, and transmission of Covid-19, it is certainly preferable that all of MPT’s employees be vaccinated. MPT submitted that it is accepts the position that vaccination is voluntary and therefore is not compelling the Petitioners or any other employees to vaccinate themselves. As an alternative to vaccination, MPT has only stipulated that employees who are not vaccinated must periodically produce test certificates certifying that the employee is free of Covid-19.

.The Division Bench rejected the employees contentions and observed that vaccinated and unvaccinated people are not on the same footing since Covid-19 vaccination not only gives significant protection against contracting the disease, but also significantly reduces the risk of its transmission. “It is therefore logical and reasonable to regard unvaccinated persons as posing a significantly greater risk of infection and transmission of Covid-19 than vaccinated persons.”

The Court further observed that MPT’s decision is one of many taken by the government in “Break the chain” initiative. The requirement is therefore a reasonable restriction on the fundamental rights of the Petitioners to carry out their occupation or trade. It also cannot be said to be arbitrary or to have no rational nexus with the object sought to be achieved by the measure. In fact, it appears that the Petitioners are willing to have themselves tested in this manner the only opposition is to having to bear the cost of the test themselves.

The Court thus rejected the employee’s contention and ordered them to get RT-PCR test done off their own pockets and also they will have to bear the cost of treatment if they fall ill, and not MPT.

Deepak Kumar Radheshyam Khurana And 6 Ors. Vs Mumbai Port Trust Through Chairman And Anr.