The Bombay High Court ruled that denying permanency benefits solely due to an employee’s HIV-positive status is arbitrary and discriminatory. The Court held that such action violates the fundamental rights to equality and equal opportunity guaranteed under Articles 14 and 16 of the Constitution of India.
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MUMBAI: In a ruling reinforcing workplace equality and non-discrimination, the Bombay High Court has held that denial of permanency benefits solely on the ground of an employee being HIV-positive is arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution of India.
The judgment was delivered by Justice Sandeep V. Marne, who set aside the order of the Industrial Court that had dismissed the employee’s complaint seeking retrospective permanency.
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Background of the Case
The petitioner had been working as a sweeper at a respondent hospital since 1994. In 2005, the hospital’s recognised union filed a complaint seeking permanent status for 188 temporary workers. This resulted in a Memorandum of Settlement dated 1 December 2006, under which eligible workers were to be granted permanency, subject to passing a medical fitness examination conducted by the hospital’s Chief Staff Medical Officer.
Although the petitioner was considered for permanency, the hospital declared him medically unfit after he tested HIV-positive and consequently denied him permanent status. Despite this, the petitioner continued to work uninterrupted, performing the same duties as his permanent co-workers.
Repeated medical screenings in 2011 and 2016 continued to declare him unfit. It was only after the intervention of the Mumbai District AIDS Control Society that the hospital granted him permanency, effective 1 January 2017.
Aggrieved by the delayed regularisation, the petitioner approached the Deputy Commissioner of Labour and subsequently filed a complaint before the Industrial Court, Bandra, seeking permanency from 2006 with full back wages.
Arguments Presented
Petitioner’s Arguments
The petitioner argued that:
- The medical fitness condition imposed for the grant of permanency was void ab initio.
- The Industrial Court erred in applying the principles of res judicata, as the settlement could not override statutory rights.
- Denial of permanency despite completion of 240 days of service amounted to unfair labour practice.
- His HIV status had no impact on his ability to discharge duties.
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Respondent-Hospital’s Arguments
The hospital contended that:
- The complaint was hopelessly time-barred and hit by delay and laches.
- The issue was barred by res judicata, as permanency had already been addressed through the 2006 settlement.
- The petitioner had suppressed material facts regarding the union’s earlier complaint.
- By submitting himself to medical examination, the petitioner acquiesced to the outcome of being declared unfit.
Observations of the Bombay High Court
The High Court strongly criticised the approach of the Industrial Court, observing that it had adopted a hyper-technical and pedantic view, instead of examining the real grievance of discrimination.
Justice Marne noted that:
- The petitioner was not terminated due to medical unfitness and continued working alongside permanent employees.
- His HIV-positive status never interfered with his duties as a sweeper.
- The hospital used his medical condition to extract the same work while paying him lesser wages, which amounted to exploitation.
The Court further observed that although the HIV and AIDS (Prevention and Control) Act, 2017, was prospective, it clearly reflects the constitutional principle that discrimination in employment on the grounds of HIV status is impermissible.
“If the Petitioner could be continued in service for 19 long years after being detected HIV+, I do not see any reason why the benefit of permanency needs to be denied to him when his co-workers were made permanent,”
the Court held.
On Arrears and Delay
While allowing the claim for permanency from 2006, the Court declined to grant full arrears for the entire period, invoking the doctrine of delay and laches.
The Court held that:
- The petitioner should have challenged the denial of permanency within 90 days of the medical examination in December 2006.
- Since the grievance was raised after 12 years, the hospital could not be burdened with payment of arrears for the entire duration.
Accordingly, the petitioner was held entitled to monetary benefits only for the period commencing 90 days before the filing of the complaint before the Industrial Court.
The Bombay High Court partly allowed the writ petition and directed:
- The respondent-hospital to grant permanency to the petitioner retrospectively from 1 December 2006 (date of settlement).
- Financial benefits are to be restricted to 90 days before the filing of the complaint, due to the delay.
Appearances:
Petitioner: Senior Advocate Arshad Shaikh, Advocates Vinsha Acharya, Rajendra Jain, Pranil Lahigade, Ranjit A. Agashe
Respondent: Senior Advocate Sudhir Talsania, Advocates Netaji Gawade and Sanjay Udeshi & Co.
Case Title:
Kumar Dashrath Kamble v. Bombay Hospital
WRIT PETITION NO. 3766 OF 2024
READ JUDGMENT
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