SC dismisses FR petition filed by HIV diagnosed person | Daily News

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SC dismisses FR petition filed by HIV diagnosed person

A Fundamental Rights petition filed by a person who wishes to keep his HIV status undisclosed to the public, was dismissed by the Supreme Court.

The Supreme Court held that the petitioner failed to prove the allegation that SriLankan Airlines did not offer him employment on the basis that he was a HIV positive person.

Attorney Kamani Madhya Jinadasa on behalf of the victim (X) filed this petition seeking an order directing Sri Lankan Airlines to re-instate him as a cabin crew member at the Airlines since his employment was terminated after the company found he was HIV-positive.

The Supreme Court three-judge-bench comprising Justice Sisira de Abrew, Justice Priyantha Jayawardena and Justice Nalin Perera dismissed the petition and held that SriLankan Airlines cannot be found fault with when it withdrew the victim’s contract of employment on the basis that the victim petitioner had provided false information.

The petitioner cited Sri Lankan Airlines’ Group Medical Officer Dr. Anoma Jayasinghe, Transport and Civil Aviation Ministry Secretary Nihal Somaweera, National STD/AIDS Control Programme Director Dr. Sisira Liyanage and the Attorney General as respondents in the petition.

The Supreme Court observed that the petitioner in his petition admits that he became aware that he is a HIV positive person in 2013. Therefore, when he declared on October 10, 2016 in the medical form to Sri Lankan Airlines, that he did not have any sexual transmitted disease, his declaration was false.

“Citizen X in 2013 knew that he was a HIV positive person but did not disclose it in 2016 at least in a confidential manner that he is a HIV first positive person. But when the first respondent after medical test discovered that Citizen X is a HIV positive person, he wanted protection provided in ‘National Policy of HIV and AIDS in the World of Work in Sri Lanka’. When I consider the above matters, I feel that Citizen X is blowing hot and cold. Such a person is not entitled to get relief from court,” Justice Abrew observed.

The petitioner stated that in 2010 he made an application to Mihin Lanka and joined the in-flight cabin staff as a steward and continued to serve in the said airline, receiving appreciations for his services and as at August 2016, he was a confirmed employee of Mihin Lanka.

During his employment with Mihin Lanka he was diagnosed as being HIV positive at a voluntary testing done in 2013.

The petitioner stated that since Mihin Lanka did not require disclosure of HIV status and since he was under no obligation to disclose his HIV status to Mihin Lanka, his HIV status was not disclosed.

He said that in June 2016, it was announced by the government that Mihin Lanka would cease operations and would be amalgamated with SriLankan Airlines.

He stated that the staff of Mihin Lanka were advised that operations of Mihin Lanka would be wound up by December 30 2016, and were advised to seek alternative employment including in the SriLankan Airlines.

He stated that to the best of his knowledge, the entire staff of Mihin Lanka were given the opportunity to apply for employment with Sri Lankan Airlines.

He stated that on September 27 2016, he was called for an interview for the post of cabin crew member with SriLankan Airlines. He stated that he faced the said interview and was selected and thereafter was required report to the medical centre of Sri Lankan Airlines for basic assessment including height, weight, and eyesight.

The petitioner stated that during the said basic medical assessment he was required to fill a standard from which required him to disclose inter alia whether the applicat is the carrier of any sexually transmitted infection (STI).

The petitioner stated that he was well aware that the National Policy on HIV and AIDS in the World of Work in Sri Lanka contained policies which inter alia declared that HIV screening is not required for purposes of employment and confidentiality of his HIV status made it non-obligatory to disclose his HIV status in the said health form.

In 2016, he was notified by a person attached to the Human Resource Department of Sri Lankan Airlines of his selection as as a cabin crew member. Thereafter he was further requested to collect his uniforms and suitcases from the Sri Lankan Airlines and also to give measurements for his jackets.

The petitioner stated that on October 19, 2016, he was required to present himself at Nawaloka Hospital for certain tests including HIV screening. The petitioner stated that in October 2016, he reported to the Human Resource Department of Sri Lankan Airlines and signed the contract of employment and was issued a with a staff identity card and the in flight-bar cabinet access keys and name tags.

The petitioner further said the second respondent had contacted him via telephone and requested him to meet her at the Hilton Hotel, Colombo to discuss his HIV status.

The petitioner stated that the second respondent had thereafter requested him to hand over the appointment letter and the staff ID issued by Sri Lankan Airlines for safe keeping until the matter was resolved.

The petitioner said the decision of Sri Lankan Airlines to subject him for an HIV screening, the subsequent constructive withdrawal of the appointment letter, and termination thereof on account of his HIV status and such other grounds upon his HIV status being made aware to the second respondent is wrongful. He said he was informed that his services had been terminated as he failed his medical test.

Counsel Senany Dayaratne, Thishya Weragoda, Eshanthi Mendis, Nishadi Wickramasinghe instructed by Nilika Dissanayake appeared for the petitioner. Additional Solicitor General Sanjay Rajaratnam appeared for the Attorney General.

Counsel Sahanky Parathalingam with N. Parathalingam appeared for the first and second respondents.


 

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