Delhi High Court Reinstates HIV-Positive BSF Employee, Declares Termination Illegal

Court finds BSF's actions in violation of the HIV Act and Rights of Persons with Disabilities Act, directs reinstatement with conditions.

In a landmark decision, the Delhi High Court has quashed the termination of an HIV-positive Border Security Force (BSF) constable, ordering his reinstatement with continuity of service and other benefits, excluding back wages. The judgment, delivered by a division bench comprising Justices C. Hari Shankar and Om Prakash Shukla, emphasized the illegality of the BSF's actions under the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, and the Rights of Persons with Disabilities Act, 2016.

The petitioner, identified as Mr. ABC, was appointed as a Constable (GD) in the BSF in April 2017. Later that year, he was diagnosed with HIV and other health complications, leading to his discharge from service in April 2019 after a medical assessment declared him unfit. The petitioner's appeal against this decision was dismissed in October 2020, prompting him to approach the Delhi High Court for relief.

The court found that the BSF had failed to comply with Section 3(a) of the HIV Act, which prohibits employment termination of an HIV-positive individual unless a significant risk of transmission is documented by a qualified healthcare provider and a statement of administrative or financial hardship is provided by the employer. The absence of such compliance led the court to presume no significant risk or undue hardship, rendering the termination illegal.

Additionally, the court held that under the Rights of Persons with Disabilities Act, an HIV-positive individual is considered a person with a disability due to long-term physical impairment. As such, the BSF's action was deemed discriminatory, violating statutory provisions that mandate reasonable accommodation for employees acquiring a disability during service.

The court directed that Mr. ABC be reinstated with continuity of service and benefits, emphasizing reasonable accommodation, which could include reassignment or placement in a supernumerary post if necessary. However, the court clarified that he is not entitled to back wages.

The judgment underscores the judiciary's role in protecting the rights of individuals with disabilities and those living with HIV, reinforcing statutory protections against discrimination in employment.

Bottom Line:

Termination of an HIV-positive employee without compliance with statutory provisions under the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 and the Rights of Persons with Disabilities Act, 2016, held illegal.

Statutory provision(s): Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, Rights of Persons with Disabilities Act, 2016

Mr. ABC v. Border Security Force, (Delhi)(DB) : Law Finder Doc Id # 2823442