Embarrassing the BMC for its "flip flop" over the issue of providing proper travel facilities for its differently-abled employees, the Bombay High Court on Wednesday said the civic body failed to protect its workers, especially during these hard times. The HC has accordingly ordered the BMC to pay the arrears (withheld salaries) of its employees in two installments.
A bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni was seized with a petition filed by the National Association of Blind (NAB) highlighting the volte-face of the civic body over the issue of exempting its differently-abled workers.
The petition through advocate Uday Warunjikar highlighted the fact that initially the BMC had exempted its differently-abled workers from attending work during the pandemic. However, by a circular issued in May, the civic body made it compulsory for such workers to report to work and warned that those who won't attend work during lockdown would not be paid their salaries.
Per contra, the BMC tried to justify itself by saying that just because the Union and the state government has exempted such workers, it wasn't bound to follow the said decisions. It also pointed out that providing special facilities or paying salaries to such workers despite them not reporting to work would make an impact on the civic body's finances.
Having considered the contentions, the bench noted that not all such workers were in a position to report to work without any special arrangements made by the civic body to facilitate their travelling.
The judges said these persons do not require help in doing their work but only seek assistance for preparing to do their work.
"Whatever public conveniences and comforts normal employees without any physical disability might enjoy are obviously not available in equal measure to the physically disabled, which has to be borne in mind by every employer and looked at in a different perspective," the judges said in their order.
"A change in the mindset (of the BMC) resulting in a revision of its earlier decision, does not appear to be backed by consideration of any tangible evidence of the physically disabled employees not facing any inconvenience or discomfort while travelling to their workplaces," the bench noted.
The judges further said if indeed, the BMC was not inclined to offer financial benefits like pay to the physically disabled employees who do not report to work, "it was the duty of the civic body as a model employer to make special arrangements for public transport or special measures to ensure hassle-free travel by its physically disabled employees to their respective workplaces," the court opined.
The court further noted that initially, the civic body had agreed to exempt such employees but suddenly without "any apparent reason" it withdrew the exemption.
"This volte-face deserves to be viewed seriously and disapproved strongly," CJ Datta remarked in his judgment.
"We hold that the BMC's stand that its revenues would be eroded if physically-disabled employees are granted leave without affecting their pay is thoroughly misconceived. It (BMC) ought to have avoided creating a situation where the physically-disabled employees are not to be worse-off in these unimaginably hard times and left without pay if they had no leave to their credit," the bench said.
The bench further reminded the civic body that it is a creature of the statute with specific obligations to discharge "for the interest of the people and not a private employer working with a mindset of earning profits."
"If relief is to be denied to such workers only on the ground that the BMC's purse would be pinched, we have no doubt in our minds that it would amount to the validation of acts ultra vires the Constitution," the chief justice ruled.