After a 14-year legal battle, an HIV positive man, who was discharged as an invalid on being diagnosed with HIV and tuberculosis, has been ordered to be reinstated immediately by the Bombay High Court. The order was passed by a bench comprising Justice BR Gavai and Justice NJ Jamadar.
The petitioner joined the Indian Coast Guard in 1995, and had worked as a sweeper, office boy, sentry and even served four years at sea. In 2003, he tested positive for HIV and TB, and was discharged on the grounds of "invalidation with 100% disability''. He had therefore petitioned the court, demanding reinstatement.
A bench comprising Justice AA Sayed and Justice MS Karnik had then, in July 2017, directed the commanding officer, INHS Asvini to constitute a medical board at INS Asvini Hospital. The medical board had found him fit for re-joining, noting that he had no features of opportunistic infection. This report had further noted that there was a possibility of further improvement in the petitioner's medical condition due to availability of newer antiretroviral drugs (ART). The report had also been approved by the director general of Indian Coast Guard.
The respondent authorities, however, demanded that the petitioner be re-examined, instead of reinstating him after the first medical board found him fit. This did not go down well with the court, which observed, "We fail to understand the propriety of the request to constitute a medical board again to examine as to whether the petitioner is fit or not. The medical board itself after thorough examination has given opinion on 16th September, 2017 that the petitioner is medically fit to discharge his duties." The court further noted that the petitioner was personally present in the court and that he was physically fit to discharge his duties, taking into consideration the fact that he had to work as unskilled labour and discharge the duties of sweeping etc. The petition was, therefore, allowed.
The petitioner was directed to deposit the amount of service gratuity and any other monetary benefits he had received on the date of his discharge within four weeks. The court added that any pensionary benefit received by him during the intervening period shall not be disturbed. The court, however, clarified that it was passing the order in the peculiar facts and circumstances of the case and that this shall not be treated as a precedent.
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