Preponderance of probability suffices for COVID-19 duty death benefits via symptoms, hospital records despite no RTPCR; rejection ignoring evidence and delayed committee opinion set aside, directing compassionate employment and ex-gratia.

JUDGMENT :

R.I. CHAGLA, J.

1. By this Writ Petition, the Petitioner is seeking quashing Digitally and setting aside of the impugned decision communicated vide letter dated 23rd November 2021 (Exh.H to the Petition) passed by the Respondent No. 1. Further direction is sought against the Respondents directing them to forthwith give employment to the Petitioner on compassionate grounds by considering his case under Administrative Order No. 407 of 2020 dated 8th May 2020 issued by Personnel & Welfare Establishment of Respondent No. 1. Further direction is sought against the Respondents to forthwith give ex- gratia compensation by considering the Petitioner’s case under the Departmental Notification dated 10th June 2020 issued by the Personnel & Welfare Establishment of Respondent No. 1.

2. The Petitioner’s father Late Mr. Nayan Vasant Lakeshri was working as a Bus Conductor with Respondent No. 1 – Brihan Mumbai Electricity Supply and Transport Undertaking (“BEST”).

3. The Government declared Covid 19 as pandemic under under the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005 on 23rd March 2020 and imposed lockdown and restrictions with effect from 23rd March 2020.

4. During Covid 19, the Petitioner’s father was regularly reporting to work and rendering his services.

5. The Petitioner’s father was on duty on 4th June 2020 and during the working hours, he had informed his wife that he experienced weakness and body ache. He visited the doctor on the same day and the doctor examined him from a distance due to Covid-19 symptoms and he was prescribed medicines.

6. Due to suspected covid case, the Petitioner’s father was admitted to Seven Hills Hospital by afternoon of 4th June 2020. On 6th June 2020, the Petitioner’s father suddenly had a Myocardial Infarction / Heart Attack and was declared dead. As per the Medical Certificate of Cause of Death Report No. 009139 dated 6th June 2020, the provisional cause of death was mentioned as (a) Myocardial Infarction and (b) Suspected Case of Covid 19.

7. In the Post cause of Death Report issued by Seven Hills Post-Mortem Center, a handwritten statement mentioned “Post Mortem not done. Cause of death given on the basis of inquest, history, external examination as per Circular No. DMER/Death Certificate/No. PM/Covid 19/35/2020 dated 6th June 2020.”

8. As per prevailing Standard Operating Procedure (SOP) due to Covid 19 pandemic, Respondent No. 2 – Brihanmumbai Municipal Corporation (“BMC”) cremated the body of the Petitioner’s father without handing over the body to the relatives of the deceased.

9. The Petitioner addressed a letter dated 19th June 2020 to the Assistant Work Manager, BEST requesting them to give him employment on compassionate ground after the death of his father, who was the sole earner of the family.

10. The Petitioner submitted an application in the prescribed format for employment as Clerk on compassionate ground to Respondent No. 1 on 19th July 2020.

11. The Petitioner’s mother addressed a letter dated 22nd July 2020 to the Assistant Work Manager of Respondent No. 1 - BEST to employ the Petitioner on compassionate ground, as the Petitioner’s father was the sole earner of the family.

12. On 23rd November 2021, after more than a year, the Petitioner received a letter from the Senior Manager (M.S.) Employment Department of Respondent No. 1 – BEST rejecting his application for employment on compassionate grounds. The letter stated that his application was rejected, as RTPCR Test was not conducted on the Petitioner’s father and no documents of hi