Bombay High Court declares BMC circular illegal, directs payment of full salaries to disabled employees for absence during pandemic period

Dear Colleagues,

Please refer to my earlier post  'NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown' detailing the public interest litigation filed by the National Association of Blind after the civic body did not pay full salaries to the 268 visually impaired employees.

Accepting the petitioner's contention that the country’s richest civic body had shown “its inhuman an insensitive face, much to the detriment and prejudice of its physically disabled employees” the Division Bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni of the Bombay High Court, in their 63-page judgment passed on 28th October 2020 (Wednesday),  has held that the BMC's circular and its action of withholding pay during the pandemic were illegal and said, "we direct the corporation to ensure that none of the physically disabled employees, who did not report 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”.

On 27 March 2020, the central government through an OM issued by DoPT exempted all government employees with disabilities from reporting for duty during the lockdown saying, "“All ministries and departments are advised to exempt persons with disabilities (PwD) from duties while drawing up roster of employees required to attend to essential services”.

Similar directions were issued by the Maharashtra government on 21 April 2020 exempting disabled employees from attending offices and that the period of absence may be treated as Special Leave without loss of pay. 

On May 2, the BMC announced that its disabled staffers were entitled to a special leave without loss of pay. But, on May 26, it issued a circular  that it was not a special leave, but a permissible leave which requires sanction and involves a pay loss. The circular directed that its disabled employees be given leave which is permitted under the Municipal Services Act. Under this, if these employees have used up sanctioned leaves, they will not get a salary if they don’t report for work. The BMC has nearly 1,150 physically disabled employees, including 278 visually impaired.

The judges noted that while the BMC initially favoured exemption, a “change of mindset resulted in revision of its earlier decision” and it was not backed by tangible evidence of physically disabled employees not facing inconvenience or discomfort while travelling to their workplace or “reference to any incident that could act as a trigger for such decision”. “If the civic body was not inclined to offer financial benefits, like pay physically disabled employees who do not report for duty, it was its duty as a model employer to make special arrangements for public transport or special measures to ensure hassle-free travel for these employees...”

The judges added that the right to free access is a right guaranteed by the Right of Persons with Disabilities Act 2016. Although it casts a duty on the state, nothing prevented the BMC as local authority from taking suitable measures for its physically disabled employees.

The judges said the BMC’s ‘flip-flop’ has intrigued them and there was no explanation for it. “This volte-face deserves to be viewed seriously and disapproved strongly.” 

The court said, “The circular requires judicial intervention. The circular and its action of withholding pay is held illegal.”  The Bench said that the payment must be made in two instalments, the first must be paid before Diwali and the second must be paid within 45 days from the date of the first instalment.

Watch out this space for the PDF Judgement soon...

NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown

Dear Colleagues,

National Association of Blind (NAB) Mumbai has dragged the Brihanmumbai Muncipal Corporation (BMC) to the Mumbai High Court in a public interest litigation (PIL) which seeks payment of full salaries to 278 visually impaired BMC employees for the period when the lockdown was implemented in its strictest form – March 23 to June 30.  

An affidavit opposing the PIL signed by Vishwanath Jadhav, joint chief personnel officer of the establishment section of the BMC’s General Administration Department,  says that paying full salaries to these employees will adversely affect its finances.

It was learnt that the BMC denied full salaries for the strictest lockdown phase to not just its visually-impaired employees, but also to the physically disabled and those above 55 years of age, who were exempted from attendance on health grounds, the affidavit indicates. 

The affidavit, defending BMC’s decision to not pay full salaries to the visually impaired employees, refers to the money “the BMC may have to pay” to the physically disabled as well.

It says, “If these categories of employees are granted special leave without loss of pay, the respondent corporation will be required to pay approximately Rs12.22 crore (Rs 2.75 crore for visually impaired employees and Rs 9.47crore for other disabled employees).”

The next sentence specifies another category of employees which may seek parity from the BMC if the court were to ask it to pay salaries for the same period to the disabled employees.

The affidavit says, “Similarly, the corporation has granted relaxation in attending duties to approximately 283 employees beyond 55 years of age having health issues such as diabetes, high blood pressure and dialysis (for kidney ailments). Similar demand will be raised by these categories of employees, even though they are not eligible, and if they are to be treated according to the same principle, then the corporation will have to pay approximately Rs 422.59 crore, which will adversely affect its financial condition.”

Appearing for the NAB, advocate Uday Warunjikar,  submitted before the court that BMC had nullified its liability to the visually impaired employees with retrospective effect, as its directive issued in March, only exempted these employees from attending offices. However, a directive issued on May 26, 2020 said that the relevant period will be treated as “permissible leave.”

He said that while he had details of only one employee at the time of filing the PIL, the NAB had managed to get details of more than 25 employees to show that it wasn’t just the salary for the relevant period, which was affected, but the situation continues as the BMC was recovering “arrears” of salary deductions from them, forcing them to work on zero or extremely low pay.

The PIL cites the directives of the state government as well as the Centre since March 2020 to show that they had exempted disabled employees from attendance and one such directive said that they be treated on “leave without loss of pay.”

Senior Advocate BV Bukhari, appearing for the BMC, submitted that the BMC was not bound by the resolutions or notifications of the state or the Central government, as it was a local self-government body.

He said that the BMC was not only following the Rights of Persons with Disabilities Act, but, in fact, was doing more than what other governments were doing.

The court, however, questioned the BMC’s assertion that it was not bound to follow the notifications of the state or the Central government, saying it was doing so in certain other aspects related to the pandemic. 

The bench has reserved its judgement on the PIL. 

Update (29 Oct 2020):

....... Read subsequent post on the PIL judgement here:  "Mumbai High Court declares BMC circular illegal, directs payment of full salaries for absence during pandemic period"