MX v. ZY AIR 1997 Bom 406

MX v. ZY AIR 1997 Bom 406, AIR1997Bom406, 1997(3)BomCR354, (1997)2BOMLR504 -- Bombay High Court :

A person living with HIV cannot be terminated or discriminated against in his job only on account of his HIV status, if he is fit to perform his job functions, is otherwise qualified, and does not pose a substantial risk to fellow workers.
In cases where a person can show that s/he would not be able to prosecute his/her if his status is disclosed and in the interests of the administration of justice, the Court will permit the plaintiff or petitioner or party before it to suppress his/her identity and prosecute or defend the proceedings in an assumed name.

After working for sometime as a casual labourer, MX was put on a selection panel of casual labourers for confirmation to a regular post. In 1990, he was required to go for a medical examination as his post was going to be regularised. The examination revealed that MX was asymptomatic HIV positive, but otherwise physically fit. After learning the results of his medical examination, the Respondent deleted MX's name from the selection panel of casual labourers, and terminated the MX's contract.

MX filed a Writ Petition in the Bombay High Court. ZY based their case on the rules framed by them which provided that all employees should undergo mandatory testing for HIV and those testing HIV positive would not be recruited.

MX argued that rules and the actions of ZY violated Articles 14, 16 and 21 of the Indian Constitution. MX sought the following:

• Suppression of his identity in order to avoid further stress and stigma flowing from his HIV positive status;
• A declaration that applicable rules violated Articles 14, 16 and 21;
• Quashing or setting aside of the order to remove his name from the selection panel;
• A direction to the Respondents to provide him with a regular employment position with seniority to be restored.
• Backwages from the date that employment was terminated to date.

The High Court held that:

* In proper cases like where a person can show that s/he would not be able to prosecute his/her if his status is disclosed and in the interests of the administration of justice, the Court will permit the plaintiff or petitioner or party before it to suppress his/her identity and prosecute or defend the proceedings in the assumed name.

* Medical tests must pass the rigour of Articles 14 and 21. The High Court stated that no person could be deprived of his or her livelihood (employment) except by procedure established by law and that the procedure must be just, fair and reasonable. It held that:
(a) If a person is fit to perform his job functions;
(b) is otherwise qualified and
(c) does not pose a substantial risk to fellow workers; A government/ public sector employer cannot deny him employment because he is HIV +ve.
(d) Each determination of whether a person is rendered incapable of performing the job must be made on the facts of the case by conducting an individual enquiry taking into account the state of medical knowledge at the time.

Accordingly, the High Court found that his dismissal was arbitrary, unjust, and unlawful. The High Court quashed the order to delete the petitioner's name from the selection panel, and ordered that the respondent consider appointing the petitioner in a regular post, restore the petitioner's seniority, and pay the petitioner back wages. The Petitioner was asked to go for further tests.

1. It is permissible for the State, under our Constitution, to condemn a person infected with HIV to virtual economic death before he must eventually meet his death due to the ailment is the question before us. The question is of great contemporary significance and importance.

2. The Petitioner was working as a casual labourer with Respondent No. 1 Corporation, through a contractor in the year 1982. In 1984, the Petitioner was interviewed for a vacancy against a regular post by the Respondent Corporation. However, the Petitioner was not selected. IN the year 1986, the Petitioner was interviewed again by the Corporation and, thereafter, was employed as a casual labourer from 1986 till about 1994. The Petitioner was required to sign a register/muster and was issued a muster card. In the year 1990, the Petitioner was directed to go for a medical examination conducted by the one Dr. V. S. Kulkarni who is a panel Doctor for the Respondent Corporation. Said Dr. Kulkarni referred the Petitioner to various other specialists like Pathologist, Eye Specialist and also for lung test. There was nothing adverse revealed in the pathological report. The Eye Specialist certified that from the opthalmic point of view, the petitioner is fit to do any work. The Doctor who examined the Petitioner for lungs certified that no significant abnormality is detected in the examination of the Petitioner. Although the Petitioner was not appointed in a regular vacancy, he was included in the select list of persons to be appointed on a regular basis. It is the case of the petitioner that during 1991 to 1993, persons above as well as below the petitioner in the selection list were appointed in regular vacancies. On1.9.1993, the Petitioner was asked again to go for a medical test. Dr. Bhide certified after test for Australia Antigen that HRs Ag was absent. Dr. Bhide further certified that test of HIV (1 & 2) antibodies, revealed that HIV (1 & 2) antibodies were present. In respect of other tests like lung function, eyes etc. the petitioner was found to be normal. The Petitioner was also examined in the J. J. Hospital, Mumbai. The report of ELISA test showed HIV (1&2) positive for antibodies. The certificate of Dr. Alka Deshpande of J. J . Hospital states that the patient is fit for duty. However, she advised follow-up once a year. The certificate further mentions that the disease is a prolonged one. The patient after acquiring the infection can remain asymptomatic for a long time extending upto one to twelve years and the patient (petitioner) is presently asymptomatic. The doctor further mentioned that as per the Government’s policy, an employee cannot be discontinued because of his seropositivity. Dr. Gokhale, the panel doctor of the respondent corporation, relying on the report of the J. J. Hospital, stated that the Petitioner was examined at the J. J. Hospital. His HIV-1 and HIV-2 tests are positive for antibodies. As per the remarks of Professor of Medicine, Grant Medical College (Dr. Alka Deshpande), he is physically fit for duty and was advised repetition of blood test every year.

3. It appears that as the petitioner tested positive for HIV (1&2), the Senior Manager (Lube Complex), Trombay Unit of the respondent-corporation, by notice dated 16.2.1994 deleted the name of the petitioner from selection panel of casual labourers with immediate effect. The petitioner wrote letters to the respondent-corporation stating that otherwise he is fit for performance of his job, viz. Loading drums on the truck and that it will take 8 to 10 years before he develops AIDS and he should be continued to be employed at least as a casual labourer. The petitioner submitted in that correspondence that he is the only earning member of the family and if he not offered work, the whole family will find it difficult to survive. The petitioner also wrote to the Addl. Director of Health Services (AIDS), Government of Maharashtra, Mumbai on 7.5.1984.After narrating all the facts, the petitioner stated that he is physically fit to do the duty. The Petitioner submitted that he is the only earning member of the family, he is very poor, having wife and two children to look after. He requested the authority to direct the respondent Corporation to allow the petitioner to continue to work as a casual labourer, if not as a regular employee of the Corporation. The Addl. Director of Health Services (AIDS), Government of Maharashtra, wrote a letter dated 7.3.1994 to the respondent Corporation regarding the case of the Petitioner. In the said letter, the Addl. Director of Health Services pointed out that though the Petitioner is at present HIV positive, he may take 8 to 10 years to develop symptoms of AIDS. The Director mentioned that as a matter of fact, it cannot be emphatically stated as to when he will develop the symptoms, but it is not likely to be earlier than 8 to 10 years. The Director drew the attention of the Respondent Corporation to the fact that HIV/AIDS is not transmitted by casual contact or by working together. It is transmitted only if blood of HIV positive is transfused to other person or if there is sexual intercourse with another person. The letter states that barring these two modes of transmission, the petitioner is not going to pose any risk to any of his colleagues where is he working or where he is likely to work in future. The letter further mentions that the guidelines of the Government of India under the National AIDS Control Programme are not to sack or remove anybody from the services, whether private or public, only because of HIV status. The letter further states that keeping this scientific views in mind and also the need of support to the HIV positive person, the Director requested the Corporation to allow the petitioner to work in his capacity as a drum casual labourer as he was working previously. The Director specifically enclosed a copy of the Health Education material for the perusal of the corporation. The last para records the gratitude of Dr.Salunke, Addl. Director of Health Services (AIDS), Gove rnment of Maharashtra, for the promise given by the Director of the Respondent Corporation that he will issue necessary instructions to take back the petitioner on job to avoid hardship to the petitioner only because of his HIV status.

4. Literature of the World Health Organization is annexed to the petition and a compilation thereof is also produced. The resolution passed by the Forty first World Health Assmebly under the auspices of the World Health Organisation Global Programme on AIDS at Geneva on 13th May 1988 shows that inter alia it was strongly convinced that respect of the human rights and dignity of HIV infected people and people with AIDS and of members of population groups, is vital to the success of National AIDS prevention and control programmes and of the global strategy. It urged the Member States, particularly in devising and carrying out National programmes for the prevention and control of HIV infection and AIDS to protect the human rights and dignity of HIV infected people and to avoid discriminatory action against and stigmatization of them in the provision of services, employment and travel.

5. A Consultation of AIDS and the workplace was convened in Geneva by the World Health Organization's Global Programme on AIDS in Association with the World Health Organization's office of Occupational Health and the International Labour Office between 27th and 29th June 1988. Thirty six participants from 18 countries attended, including representatives of Government, union, business, public health, medical, legal and health education. The general statement contained that infection with the Human Immunodeficiency Virus (HIV) and the Acquired Immunodeficiency Syndrome (AIDS) represent an urgent worldwide problem with broad social, cultural, economic, political, ethical and legal dimensions and impact. In introduction. It is stated as under:-

"Epidemiological studies from throughout the world have demonstrated that the human immuno deficiency virus (HIV) is transmitted only 3 ways:
* through sexual intercourse (including semen donation);
* through blood (principally blood transfusions and non-sterile injection equipment; also includes organ or tissue transplant);
* from infected mother to infant (perinatal transmission).

There is no evidence to suggest that HIV transmission involves insects, food, water, sneezing, coughing, toilets, urine, swimming pools, sweat, tears, sharing eating and drinking utensils or other items such as protective clothing or telephones. There is no evidence to suggest that HIV can be transmitted by casual person-to-person contact in any setting.

HIV tested and AIDS (HIV/AIDS) are global problems. At any point in time, the majority of HIV infected persons are healthy; over time, they may develop AIDS or other HIV related conditions or they may remain healthy. It is estimated that approximately 90% of the 5-10 million HIV infected persons worldwide are in the economically productive age-group. Therefore, it is natural that questions are asked about the implications of HIV/AIDS for the workplace.

In the vast majority of occupations and occupational settings, work does not involve a risk of acquiring or transmitting HIV between workers, from worker to client, or from client to worker. This document deals with workers who are employed in these occupations. Another consultations, such as health workers, in which a recognized risk of acquiring or transmitting HIV may occur."

6. The policy principles adopted in the very document states that protection of the human rights, and dignity of HIV infected persons, including persons with AIDS, is essential to the prevention and control of HIV/AIDS. Workers with HIV related illness, including AIDS, should be treated the same as any other worker. Workers with HIV related illness, including AIDS, should be treated the same as any other worker with an illness. Most people with HIV/AIDS want to continue working, which enhances their physical and mental well-being and they should be entitled to do so. They should be enabled to contribute their creativity and productivity in a supportive occupational setting.

7. In respect of persons applying for employment, the police statement in the said documents states that pre-employment HIV/AIDS screening as part of the assessment of fitness to work is unnecessary and should not be required. Screening of this kind refers to direct methods (HIV testing) or indirect methods (assessment of risk behaviours) or to questions about HIV tests already taken. Pre-employment HIV/AIDS screening for insurance or other purposes raises serious concerns about discrimination and merits close and further scrutiny.

8. In the document entitled "AIDS and the Workplace - General Recommendations" regarding fitness for work. It is observed as under:-
* In view of the modes of HIV transmission, a seropositve person's fitness for work cannot be called into question by the purely theoretical risk of virus transmission, and any discrimination is unacceptable.
* In the current state of knowledge, there is no evidence to suggest that neurological or neuropsychiatric disorders occur relatively early in the course of HIV infection. There is, therefore, no reason to exclude asymptomatic HIV seropositive individuals from certain job assignments in accordance with the recommendations formulated by the WHO, ILO expert and the Council of the European Communities.
* It is recommended that health personnel aware of a job applicant's HIV seropositivity base their decision solely on the actual capacity of the individual to satisfy the job requirements. In this context, only the usual aptitude tests and adherence to health and safety measures are of any real value.
* Routine screening for HIV seropositivity in the work context must be prohibited. It is recommended that the WHO/ILO expert's statement and the conclusions of the Council of European Communities act as guidelines."

9. "Conditions of Work Digest" Vol. 12.2/1993 on page 53 states as under:-

"In 1990, an international meeting on the subject of AIDS and the workplace, which was co-sponsored by UNESCO, WHO, ILO, the Council of Europe and the European Communities, among others, adopted recommendations against mandatory testing in the workplace. These recommendations note that "the recognised modes of HIV transmission make it clear that no risk of infection from seropositive persons exists in the vast majority of occupational settings. HIV seropositivity does not affect an individual's fitness to work; there is no reason to refuse work to seropositive employees who remain able to perform their job duties and any discrimination is unacceptable". With respect to testing, the recommendations state that "HIV screening in the workplace or for purposes of employment should not be undertaken. HIV screening should not be required for employees, candidates for employment or others to enter or reside in another country".

10. In an article "HIV/AIDS and discrimination in workplace: The ILO perspective" by Louis Ndaba, Equality and Human Right Co-ordination Branch, ILO Geneva, the Len WHO/ILO principles inter alia include the following:-

"Pre-employment: HIV/AIDS screening as part of an assessment of fitness to work is unnecessary and should not be required.

Screening recruits for AIDS is undesirable. Why? Because screening is futile, socially irresponsible, irrational and unfair. At the same time it is time consuming and expensive. Pre-employment testing is futile because it cannot achieve what it sets out to do. It cannot guarantee a sanitized AIDS free workplace. The test is not conclusive: there is a "window" period in which the presence of virus in the bloodstream is not revealed by the test. More significantly, an applicant who tests negative may contract the disease after being hired for the job and his or her condition will be hidden from the employer.

Testing for AIDS is socially irresponsible. If all employers screened out HIV positive people, a "leper colony" of unemployed and unemployable people would be created: the social consequences of this (alienation, deprivation, discrimination) are undesirable.

HIV positive job applicants may have years of constructive, healthy service ahead of them. To exclude them lacks a rational foundation and is unfair. They can be hired without compunction. When the symptoms eventually emerge and the sufferer becomes incapacitated, the usual employment laws amply protect the employer. No employer can be forced to retain someone who is unfit for the job, and this applies equally to AIDS sufferers.

Extracting and testing blood is both time-consuming and expensive. But the cost does not stop there: standard guidelines indicate that before the test is administered, employees should counselled on its implications and, if it proves positive, they should be intensively counselled about the consequences of the disease. Are employers ready to pay for this counselling? Or are they to cast the rejected applicant out on the street, jobless and without processional guidance and assistance? Discriminatory testing is wasteful. The money spent on it could be better used on education and information on AIDS."

The article also refers to the provisions of reasonable arrangement. It is stated that HIV infection by itself is not associated with any limitation in fitness to work. If fitness to work is impaired by HIV related illness, reasonable alternative working arrangements should be made. In conclusion, it is observed that the rights of HIV positive persons or persons with AIDS, especially in the labour and employment field, must be protected. This is not only a moral imperative, but a public health principle: discrimination and stigmatization drive infected people away from the support, care and information they need, thus encouraging the spread of infection. It also prevents them from taking part in programmes to promote behavioural change among their peers. The only responsible answers to the AIDS epidemic lie in prevention, education and non-discrimination. It has been said that "the most significant obstacle to progress" against the AIDS epidemic is the thr eat of discrimination. Non-discrimination is not only the humane and compassionate response, it is also the most sensible. Irrational and unfair treatment of AIDS sufferers and HIV positive persons is not only inhumane; it also threatens the proper limitation of the epidemic. To discriminate and to drive infected people away from support, care and information programmes to promote bahavioural changes encourages the spread of infection. Employers particularly large companies, the State and the big institutional enterprises - bear a special responsibility to refrain from irrational conduct and to fulfil their public obligations to combat the crisis.
11. Similar thinking is also reflected in the Southern African Code on HIV/AIDS and employment

12. The National AIDS Control Organisation has published in 1995 a National HIV testing Policy under the auspicies of the Government of India. Ministry of Health and Family Welfare, National AIDS Control Organization. It is observed therein that:
1. HIV infection is believed to invaribly fatal irrespective of best possible treatment.
2. HIV infection and AIDS are still associated with high degree of discrimination and stigmatization. The implications of a positive test go well beyond those related to physical and mental health and may involve the loss of employment, medical and social benefits, insurance, friends, family and freedom of movement.

On the other hand since during the prolonged asymptomatic carrier stage of HIV infection, one remains fully active physically and mentally, this demands an appropriate intervention which maintains the life style, dignity and rights of the patient and at the same time reduces or eliminates transmission."

In the ultimate recommendations, some of the relevant recommendations are as under:-

("(ii) Any testing procedure without explicit consent of the patient/mandatory testing must be discouraged when it tends to identify an individual except in exceptional situations.

v. "Any kind of mandatory linked testing (unless otherwise required by the court) excepting blood unit (not necessarily the donor) should be discouraged which includes testing of international traveller, refugees, reproductive age group women, hospital inpatients or those seeking admission, injecting drug users, sex workers, prison inmates, sportsmen, pre or in-service employment screening or insurance procedure."

By amendment, the petitioner has annexed a circular dated 31st October 1991 and another circular dated 8th April 1993 issued by the respondent Corporation. The circular dated 31.10.1991 declares that the management has decided to include the following medical tests in addition to the existing tests for fresh recruits in order to ensure that they do not have any serious communicable diseases:
1. HIV test for AIDS;
2. ...
3. ...
4. ...

In para 2 of the circular dated 8th April, 1993, it is stated as under:-

"It has now been decided that HIV test for AIDS (ELISA) is mandatory for pre-confirmation."

Para 4 of the aforesaid circular states as under:-

"Please ensure that pre-confirmation test of HIV (ELISA) for AIDS is carried out at least a month in advance so that the test result is obtained before the due date of confirmation. However, till the HIV test result is obtained, the concerned employees should not be confirmed in the service of the Corporation. If the employee is found to be HIV positive by ELISA test, his services will be terminated."

14. In the aforesaid circumstances, the Petitioner has prayed for quashing or setting aside the order dated 16.2.1994, removing his name from the select list of casual labourers, for direction to the respondent Corporation to absorb the Petitioner in regular vacancy in the post of class IV employee with effect from 1993 and give him seniority from that date in the said cadre with all back wages and benefits to which he would be entitled to as if he were in service from that date. It is also prayed that the circulars dated 31.10.1991 and 8.4.1993 be quashed.

15. Affidavit-in-reply has been filed on behalf of the respondent Corporation. It is admitted that the petitioner started reporting as a casual labourer at the Trombay terminal of the respondent Corporation from 1986. The petitioner was engaged as a casual labourer as and when work was available and there was no continuity of service. It is denied that the petitioner was ever interviewed to fill up any regular vacancy as alleged. It is stated that it is the policy of respondent No. 1 Corporation that casual labourers whose names are included in the panel are required to undergo medical examination. Accordingly, in the year 1990, all the empanelled casual labourers, including the petitioner, were required to undergo a medical examination. It is asserted that the said medical examination was not a pre-employment medical check-up. It is stated that respondent No. 1 Corporation by circular dated 31.10.1991 while reiterating the requirement of a pre-employment medical ex amination, stipulated that the medical tests to be performed shall specifically include an HIV test for AIDS, X-ray test for Tuberculosis, VDRL for sexually transmitted disease and Australian Antigen blood test for Hepatitis B. By circular dated April 8, 1993, the Respondent Corporation reiterated that in order to ensure that fresh recruits do not have any serious disease, the aforesaid four tests be included as additional test as part of the pre-employment medical examination. The circular contemplated that an employee testing HIV positive should not be continued. It is stated that during the year 1993, as a result of a few vacancies, the petitioner and some other persons were asked to undergo the pre-employment medical check-up. As the ELISA test revealed that the petitioner is HIV positive, as per the terms and conditions prescribed by the Corporation, the petitioner being HIV positive, was not found fit for employment. Under the policy of respondent No. 1 Corporation, the Petition er does not fulfil the requirement of medical fitness and, therefore, is not eligible for appointment. It is asserted that the Petitioner has no constitutional or legal right of absorption. The claim must be tested in terms and conditions prescribed under the instant policy. The Corporation is entitled to stipulate that amongst other norms of eligibility, the candidate fulfils medical requirements. Such requirement is not merely in the interest of the proper conduct of the affairs of the Corporation, but also in the interest of the wide body of its employees and the public interest. The Corporation, it is asserted can and has legitimate ground to provide that an applicant who after a competent medical examination is found to be suffering from a serious disease should not be recruited, absorbed or regularised. Apart from above, taking such a person into the service of the Corporation will impose upon it financial and administrative consequences which it ought not o bear. The classifica tion of persons found not to satisfy the medical requirements is intelligible and rational. The public body cannot be saddled with responsibility and liability of extending medical facility and treatment to a candidate who is confirmed to have been inflicted with a disease which is most likely to assume serious proportions in due course. The prescription of particular medical requirements is a matter of managerial function of how best the affairs of the Corporation should be organised. In effect, the petitioner is seeking re-framing of personnel policy which is not permissible. Regarding the claim of back wages, it is stated that since the petitioner has not been engaged, there is no question of any payment and principle of "no work no pay" would apply to the facts and circumstances of the case. It is, therefore prayed that the petition be dismissed.

16. We must also mention that initially, the petition was filed disclosing the name of the petitioner as well as the name of the Respondent Corporation. Thereafter, upon specific motion, the Division Bench passed an order permitting the Petitioner to prosecute the petition by suppressing his identity and, therefore, as "Mr. MX" and also the Respondent Corporation as "ZY". The Learned counsel for the petitioner and the learned counsel for the respondent corporation have addressed us on the aspect of requirement of non-disclosure of the identity of the petitioner in such matters and before we deal with the main petition, it may be convenient to deal with the aspect of requirement of suppression of the identity of the persons infected with HIV or AIDS in the proceedings before the Court. Mr. Grover submitted that in view of the stigma which is attached to HIV infection, the persons infected with HIV may be reluctant to approach the Court of Law wit h the fear that the disclosure of his HIV status may expose him to social ostracisation and also discrimination is every walk of life and, therefore, such person should be permitted in the proceedings before the Court to suppress his identity. The decision dated 4.2.1994 of the Supreme court of New South Wales, Common Law Division, rendered by Cole, J. In DM v. TD was cited before us. IN the aforesaid matter, the plaintiff an eighty five year old lady, alleged that she became infected with HIV as a result of the medical treatment administered by medical practitioner whom she sued for negligence. The plaintiff wished to commence the proceedings without her name and address being disclosed and an application for leave was made by Notice of Motion. It was contended on behalf of the plaintiff that if her name is disclosed, it would attract wide media coverage and the plaintiff and her children and grandchildren would be harassed by media which will result in stress for the plaintiff. It was further mentioned that there is a stigma attaching to persons with HIV infection and persons associated with such person. This stigma is said to arise from an absence of understanding in the community generally as to the possible methods of transfer of HIV. Thus the family of the plaintiff, and the plaintiff herself, may be obstracised in consequence of public ignorance and misinformation disseminated by the media. It was further contended that proper administration of justice does not require the publication of the name and address of the plaintiff. If the Plaintiff's name and address is to be made public, the plaintiff may consider whether she wishes to proceed with the action. The publication of her name and address thus may result in the plaintiff being denied access to justice because she may decide that any stress or stigma flowing from her identification and that of her family are such that she would prefer not to proceed with her claim in negligence against the medical practitioner.

17. The learned judge referred to several decisions in support of his observations that there is a significant body of prior decisions in which the plaintiff in medically acquired HIV or AIDS cases have been relieved from disclosing their name and address in writs. The learned judge found that the evidence before him regarding the likely effect of publicity upon the health of the prospective plaintiff; and likely ostracism, discrimination in social situations which might be inflicted upon the plaintiff's family in particular, appears similar to that before Malcolm CJ wherein Malcolm C. J. ordered permitting issue of writs without disclosure of names and address of the plaintiff. After discussing the facts and circumstances in the case before him, the learned judge observed that were the matter untrammelled by precedent and dependent upon the application of established authority to the evidence before him, he would decline the application. However, the learned judge was influenced towards acceding to the application by the circumstance that there is now, in various courts throughout Australia, a large number of cases involving allegations of medically acquired HIV infection or AIDS in which judges have made orders permitting anonymity for the Plaintiff, at least at the stage of issue of writ. In particular, the learned judge thought that great weight should be given by a judge of his Court to the considered decision by the Chief Justice of each of Victoria and Western Australia and it is for the aforesaid reasons that the learned judge thought that great weight should be given by a judge of his Court to the considered decision by the Chief Justice of each of Victoria and Western Australia and it is for the aforesaid reasons that the learned judge formed the view that he should not depart from a commonly adopted judicial finding and that he should accede to the application of the Plaintiff. However, it is significant to notice that a similar appli cation by the defendant medical practitioner was rejected by the learned judge.

18. The decision of the Supreme court in Naresh v/s. State of Maharashtra, reported in AIR 1967, S.C. 1, though deals with the power of the High Court to order that the evidence of the witness in the open trial before it should not be published by the press, the discussion and observations therein may be fruitfully adverted to. In para 21, after having enunciated the universally accepted proposition in favour of open trials, the apex court considered whether this rule admits any exceptions or not. The court observed that cases may occur where the requirement of the administration the importance of public trial, observed the Supreme Court, it cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a judge trying a cause is satisfied that the very purpose of finding truth in case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? The apex court felt no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. In para 29, the apex court observed that the overriding consideration which must determine the conduct of proceedings before a court is fair administration of justice. The principle that all cases must be tried in public is really and ultimately based on the view that it is such public trial of cases that assists the fair and impartial administration of justice. The administration of justice is thus the primary object of the work done on courts; and so, if there is a conflict between the claims of administration of justice itself and those of public trial, public trial must yield to administration of justice.

19. We must notice that the judgment of the Supreme Court of New South Wales deals with the issue of permitting the suppression of the identity of the plaintiff in "medically acquired HIV or AIDS cases". However, whether HIV infection is acquired medically or otherwise, it is clear that the person who is infected with HIV is likely to be exposed to several embarrassments, including bad publicity and consequential discrimination making it difficult for him to prosecute the proceedings before a Court of law. On the basis of the judgment of the apex court in Naresh's case (supra), there is no difficulty in holding that the High Court in proper cases and in the interests of the administration of justice can always permit the plaintiff or the petitioner or the party before it to suppress its identity at proper stage and to prosecute or defend the proceedings in the assumed name.

20. Therefore, whether a particular petitioner should be allowed to prosecute his petition by suppressing his identity will depend on the facts of each particular case and as has been done in the present case, after filing the petition disclosing the full particulars of name and address of the petitioner as required under the rules, the petitioner may take out a Notice of Motion or make an application to the Court seeking orders from the Court to suppress his identity and to prosecute the petition in an assumed name. Whether the petitioner should be so permitted will obviously depend upon the facts and circumstances of each particular case.

21. On merits of the main petition, we have heard Mr. Grover, learned counsel appearing for the Petitioner, and Dr. Chandrachud, learned counsel appearing for the respondent corporation. Mr. Grover contended that the petitioner has satisfied all the medical tests and although the petitioner has tested positive for HIV antibodies, the competent Doctor certified that the petitioner is fit for performing the duty. Mr. Grover emphasized that HIV can be transmitted by only three knows modes: (I) by unprotected sexual intercourse from an HIV positive person; (ii) by transfusion of blood and transplant of organs from an HIV positive individual; and (iii) from an HIV positive mother to her child. Mr. Grover contended that by everyday casual contact, sharing of clothes, utensils, toilets, and working together does not transmit HIV. Mr. Grover further submitted that HIV positive persons remain asymptomatic and healthy for a considerable period of time which can even be up to 18 years and recent combination drug therapy has increased the life span even further. In the submission of Mr. Grover, such asymptomatic person is fit to perform all the functions. It is only when opportunistic infections set in that a person may be debilitated from performing some functions. Mr. Grover contended that under Article 21 of the Constitution of India, a person has a right to livelihood and depravation of the right of livelihood must satisfy the rigours of Article 14 of the Constitution. Mr. Grover submitted that Article 14 requires that State action must satisfy in the case of classification (a) that the classification must be base don an intelligible differentia and/or on a rational basis; and (b) that the intelligible differentia must have a rational nexus to the object sought to be achieved and be otherwise fair, just and reasonable. Mr. Grover further submitted that Articles 14 and 21 come into play both at the time of initial recruitment (pre-recruitment stage) and during the course of employment (post recruitment sate). Mr. Grover submitted that for the purpose of the physical or medical fitness for the job, it is not "general fitness" which is material, it is the fitness which relates to the actual job functions that are to be performed by the employee which is relevant. Mr. Grover thus submitted that the requirement can stipulate that the person must be able to carry out the job functions assigned to him or her. Conversely, if there is disability reported, such disability should not affect the person's ability to carry out the job functions and the person should not pose a substantial risk to others in the work force. In the submission of Mr. Grover, the aforesaid tests are universally accepted by the Courts and in that behalf, Mr. Grover relied upon the following authorities:-

50. "It is already seen that in D.T.C.'s case (supra), this Court had held that right to life to a workman would include right to continue in permanent employment which is not a bounty of the employer nor can its survival be at the violation and mercy of the employer. Rights and when work is the source of income, the right to work would become as such a fundamental right. Fundamental Rights can ill-afford to be consigned to the limbo of undefined premises and uncertain application. In Bandhu Mukti Morcha v/s. Union of India (1984) 3 SCC 161), this Court had held that the right to life with human dignity enshrined in Article 21 derives its life breach from the Directive Principles of State Policy and that opportunities and facilities should be provided to the people. In Olga Tellis's case, this Court had held that the right to livelihood is an important facet of the right to life. Deprivation of the means of livelihood would denude the life itself. In C.E.S.C . Ltd. & Ors. V/s. S. C. Bose & Ors. (1992) 1 SCC 441), it was held that the right to social and economic justice is a fundamental rights. Right to health of a worker is a fundamental right. The right to live with human dignity at least with aspects of life which would go to make a man's life complete and worth living, would form part of the right to life. Enjoyment of life and its attainment social, cultural and intellectual - without which life cannot be meaningful, would embrace the protection and preservation of life guaranteed by Article 21. In Life Insurance Corporation case, a Bench of two judges had held that right to economic equality is a fundamental right. In Dalmia cement Bharat Ltd. case, right to economic justice was held to be a fundamental right. Right to shelter was held to be a fundamental right in Olga Tellis's case; P. G. Gupta v/s.Stateof Gujarat & Ors. (1995 Supp. (2) SCC 182); M/s. Shantisar Builders v/s. Narayan Khimlal Totame & Ors. (1990) 1 SC C 520); Chameli Singh & Ors. State of U. P. & Anr. (1996) 2 SCC 549) etc."

53. Thus, no person can be deprived of his right to livelihood except according to procedure established by law. Obviously, such procedure established by law has to be just, fair and reasonable. In other words, such procedure also must pass the rigour of Article 14. The rule providing that a person must be medially fit before he is employed or to be continued while in employment is obviously, with the object of ensuring that the person is capable of or continues to be capable of performing his normal job requirements and that he does not pose a threat or health hazard to the persons or property at the work place. The persons who are rendered incapable, due to the ailment, to perform their normal job functions or who pose a risk to other persons at the work place, say like due to having infected with some contagious disease which can be transmitted through the normal activities at the work place, can be reasonably and justifiably denied employment or discontinued fro m the employment in as much as such classification has an intelligible differentia which has clear nexus with the object to be achieved, viz. To ensure the capacity to such persons to perform normal job functions as also to safeguard the interests of other persons at the work place. But the person who, though has some ailment, does not cease to be capable of performing the normal job functions and who does not pose any threat to the interests of other persons at the work place during his normal activities cannot be included in the aforesaid class. Such inclusion in the said class merely on the ground of having an ailment is, obviously arbitrary and unreasonable.

54. The decision of the apex court in Anand Bihari's case (supra) although is in the context of the "continued ill-health" as used in section 2(oo) of the Act is also relevant to test the validity of the impugned rule. In the aforesaid case, the apex court has observed that the expression "ill-health" used in sub-clause © has to be construed relatively and in its context. It must have a bearing on the normal discharge of duties. It is not only illness but that which interferes with the usual orderly functioning of the duties of the post which would be attracted by the sub-clause. Conversely, even if the illness does not affect general health or general capacity and is restricted only to a particular limb or organ but affects the efficient working of the work entrusted, it will be covered by the phrase. For it is not the capacity in general but that which is necessary to perform the duty for which the workman is engaged which is releva nt and material and should be considered for the purpose. Therefore, any disorder in health which incapacities an individual from discharging the duties entrusted to him or affects his work adversely or comes in the way of his normal and effective functioning can be covered by the said phrase. The phrase has also to be constructed from the point of view of the consumers of the concerned products and services. If on account of a workman's disease or incapacity or debility in functioning, the resultant product or the service is likely to be affected in any way or to become a risk to the health, life or property of the consumer, the disease or incapacity has to be categorised as ill-health for the purpose of the said sub-clause. In our opinion, the criteria which have been applied by the apex court in the aforesaid case for determining whether a person suffers from ill-health can justifiably and reasonably apply even to judge "medical fitness" of the person prior to his emplo yment. So tested, the impugned rule which denies employment to the HIV infected person merely on the ground of his HIV status irrespective of his ability to perform the job requirements and irrespective of the fact that he does not pose any threat to others at the work place is clearly arbitrary and unreasonable and infringes the wholesome requirement of Article 14 as well as Article 21 of the Constitution of India. Accordingly,. We hold that the circular dated April 8, 1993 in so far as it directs that if the employee is found to be HIV positive by ELISA test, his services will be terminated is unconstitutional, illegal and invalid and, therefore, is quashed.

55. However, though an employee or prospective employee may not be medically unfit merely by virtue of he having been infected by HIV that he is capable of discharging the normal job functions can be legitimately insisted upon before the person employer for a particular job. Further, whether by virtue of his ailment, he poses any health hazard to others at the work place also can be investigated. But then in such a case, there cannot be any generalization and the issue will have to be decided in respect of each individual case. For example, a person may be HIV positive and may also be afflicted by opportunistic disease rendering him disabled to perform the job requirements or rendering him a potential risk or threat to other persons who may come in his contract at the work place. Whether it is so is always a question of fact and these aspects should be determined on the basis of not merely the result of the medical test but on the basis of the opinion of compete nt medical expert in that behalf.

56. Dr. Chandrachud emphasized that when a person having HIV infection is almost certain to deteriorate in health progressively and the progress of the disease is "inexorable" and without any remedy, the employer will be justified in not employing a person who almost certainly cannot be fit to perform the duties during the entire span from appointment till superanuation and the court should not disturb the policy decision of the employer not to recruit such a person. Undoubtedly, the person who is infected with HIV is most likely to suffer AIDS and, ultimately, sooner or later is also most likely to be victim of the opportunistic disease which may cause his death. He may also contact a disease which is communicable or contagious creating a risk and a threat to other persons who come into his contact at the work place. Therefore, the right of such a person to livelihood and employment, the interests of the employer, co-workers at the work place and the publ ic which may come into contact with such a person at work place have to be balanced. In our opinion, the State and public Corporations like Respondent No. 1 cannot take a ruthless and inhuman stand that they will not employ a person unless they are satisfied that the person will serve during the entire span of service from the employment till superannuation. As is evident from the material to which we have made a detailed reference in the earlier part of this judgment, the most important thing in respect of persons infected with HIV is the requirement of community support, economic support and non-discrimination of such person. This is also necessary for prevention and control of this terrible disease. Taking into consideration the widespread and present threat of this disease in the world in general and this country in particular, the State cannot be permitted to condemn the victims of HIV infection, many of whom may be truly unfortunate, to certain economic death. It is not in th e general public interest and is impermissible under the Constitution. The interests of the HIV positive persons, the interests of the employer and the interests of the society will have to be balanced in such a case. If it means putting certain economic burden on the State or the public Corporations or the society, they must bear the same in the larger public interest.

57. Therefore, in every such case, the test of medical fitness prior to employment of even during employment has necessarily to be co-related with the person's ability to perform the normal job requirements and any risk of health hazard he may pose to others at the work place.

58. Coming to the facts of the case, it is relevant to notice that the petitioner has been working as a casual labourer admittedly from 1986 onwards till he was removed from the list of casual labourers by order dated 16.2.1994. In the year 1993, the petitioner was subjected for several tests and excepting the test for HIV (1&2) antibodies, which revealed presence of HIV (1&2) antibodies in respect of all other tests, the petitioner was found medically fit. However, it is relevant to notice that Dr. Alka Deshpande of the J. J. Hospital in the certificate though stated the HIV positive status of the petitioner, also certified that the petitioner is fit for duty. The petitioner was advised a follow up once a year. The certificate clearly mentioned that the disease is a prolonged one and the patient after acquiring the infection can remain asymptomatic for a long time extending upto one to 12 years and the petitioner is presently asymptomatic. The Doctor speci fically mentioned that as per the Government policy, an employee cannot be discontinued because of his seropositivity. It is further relevant to notice that the Addl. Director of Health Services (AIDS), Government of Maharashtra, by his letter dated 7th May 1994 addressed to the Director of the respondent Corporation pointed out that though the petitioner is at present HIV positive, he may take 8 to 10 years for symptoms of AIDS. In fact, it was stated that it cannot bee emphatically stated as to when he will develop the symptoms but it is not likely to be earlier than 8 to 10 years. The Addl. Director took care to point out that HIV/AIDS is not transmitted by casual contact or by working together. It is transmitted only if blood of HIV positive is transfused to other person of if there is sexual intercourse with such a person. The letter pointed out that barring these two modes of transmission, the petitioner is not going to pose any risk to any of his colleagues where h e is working or where is likely to work in future. The letter mentions that guidelines of the Government of India under the National, AIDS Control Programme are not to sack or remove anybody from the services, whether private or public, only because of HIV status. Keeping this scientific view in mind and also the need of support to the HIV positive person, the Director requested the Corporation to allow the petitioner to work in his capacity as a drum casual labourer as he was working previously.

59. This material, in our opinion, clearly showed that even according to medical opinion, the petitioner was found fit for his normal duties viz. Loading of drums in trucks and he did not pose any threat or risk to any persons at work place. Therefore, on the basis of the facts and circumstances and the material on record, the order dated 16th February 1994 deleting the name of the petitioner from the panel of casual labourers to be regularized or absorbed is clearly arbitrary, unjust and unlawful and the same is hereby quashed.

60. That brings us to the question of further consequential orders or directions to be given in the matter. Mr. Grover fairly stated that so far as the consideration of the Petitioner for permanent employment is concerned, undoubtedly, due to passage of time, he may have to submit himself to all the reasonably required medical tests, including for HIV. However, the respondent Corporation shall have to consider whether to employ him permanently or not on the basis of medical opinion regarding the petitioner's fitness to work and his ability to perform the duties and satisfy the job requirement is also whether he poses any risk or health hazard to others at the workplace. Hence, we direct that the petitioner may submit himself to the routine pre-employment medical test again and the respondent corporation shall, on the basis of the medical opinion on the aforesaid aspects in respect of the petitioner, consider appointing him in the regular post if found medically fit .

61. In any case, we find absolutely no justification for deleting the name of the petitioner from the list of casual labourers. The petitioner has been requesting that at least he should be continued to be employed as a casual labourer and it was highly improper and thoroughly unjustifiable on the part of the respondent Corporation not to permit the petitioner even to work as a casual labourer. We direct that till such time as the petitioner is considered for regular employment as per the aforesaid directions, the petitioner shall forthwith be put on the panel of casual labourers and given work as and when available.

62. As the deletion of the name of the petitioner from the casual labourer's panel and denial of work to the petitioner as a casual labourer merely because of HIV states is thoroughly unjustified and illegal, we are also of the opinion that the petitioner will be entitled to the payment of the amount from the respondent corporation which he could have reasonably earned from 16.2.1994 till today as a casual labourer with the respondent corporation. In the very nature of things, it is impossible to determine the said amount accurately, but in such cases, we feel justified in making a broad calculation on the basis of the average number of days per year for which the petitioner has worked from 1986 till his removal in 1994. Mr. Grover, learned counsel appearing for the petitioner, ha filed an affidavit of the petitioner wherein the petitioner has asserted that prior to February 1994, he was earning from his work with the respondent organization an average earnings of Rs. 3,500/- per month with additional benefits towards clothes, medicines and in yearly bonus of Rs. 4,000/- approx. He has further stated that since February 1994 till April 1995, he had no source of employment. Since April 1995 till today from time to time, he has been running an autorickshaw on hire, as and when available and that he has been earning on average an amount of Rs. 1,500/- per month. Dr. Chandrachud, for obvious reasons, was not in a position to ascertain whether the assertions are factually correct. However, on instructions, he has stated that the petitioner was working as a casual labourer for a maximum of 19 days in any month and the wages were Rs. 79/- per day. Accordingly, the petitioner was earning an amount of Rs. 1,500/- per month on an average. As stated earlier, it is impossible to determine the accurate figure. However, after hearing both the sides and after taking into consideration the aforesaid submissions and assertions, we hold that the petitioner s hall be entitled to an amount of Rs. 1,000/- per month for forth months, the period approximately calculated from the date when he was removed from the list of casual labourers till the end of March 1997 and, accordingly we direct that the Petitioner shall be entitled and respondent No. 1 - corporation shall pay to the petitioner an amount of Rs. 40,000/- by way of back wages.

63. In the result, the rule is made absolute in terms of directions in paras 54, 55, 57, 59, 60, 61 and 62. There shall be no order as to costs.