Denial Of Benefits Of Permanency To Person On Ground Of His Status As HIV+ Is Violative Of Articles 14 And 16: Bombay High Court

​The Bench of Justice Sandeep V Marne observed, “In my view, in the present case also, denial of benefit of permanency to the Petitioner on the ground of his status as HIV+ is clearly arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. In my view therefore, Petitioner has made out a case for grant of benefit of permanency from the date the same was extended to his cohorts and the Industrial Court has clearly erred in dismissing the complaint.”

Senior Advocate Arshad Shaikh appeared on behalf of the Petitioner, whereas Senior Advocate Sudhir Talsania appeared for the Respondent.

Facts of the case

This writ petition challenges the judgment passed by the Industrial Court, which dismissed a complaint filed by the Petitioner who sought a retrospective declaration of permanency dating back to 2006, along with the consequential financial benefits for the period between 2006 and 2017.

The Petitioner began working as a sweeper at the Respondent-Hospital in 1994. In 2005, the hospital’s recognized Union filed a complaint seeking permanent status for 188 temporary workers. This dispute resulted in a Memorandum of Settlement, which stipulated that workers listed in the agreement would be granted permanency, provided they passed a medical fitness examination conducted by the hospital’s Chief Staff Medical Officer.

While the Petitioner was considered for permanency under the 2006 settlement, the Respondent-Hospital claims he was found medically unfit after testing HIV positive. Although the Petitioner submitted that he had tested negative in 1999, subsequent hospital screenings in 2011 and 2016 repeatedly declared him unfit. It was only after the intervention of the Mumbai District AIDS Control Society that the hospital eventually granted him permanent status, effective January 1, 2017.

Dissatisfied with the delayed regularisation, the Petitioner approached the Deputy Commissioner of Labour in 2017. When conciliation efforts failed due to a lack of cooperation from the hospital management, the Petitioner filed a complaint in the Industrial Court at Bandra.

Contentions of the parties

It was submitted by the Petitioner that the Industrial Court has erred in dismissing the Petitioner’s Complaint despite rejecting the objections of approbation and reprobation, and delay. He submitted that the condition of medical examination imposed by the Respondent for the grant of permanency is ab initio void. That application of the principle of res judicata by the Industrial Court is clearly erroneous, as mere execution of the settlement cannot be a ground for violating the statutory right of the Petitioner of permanency on completion of 240 days of services.

It was contended by the Respondent-Hospital that the Complaint filed by the Petitioner was hopelessly time-barred and was also barred by the principles of res judicata. It was stated that the Petitioner indulged in gross suppression of the filing of the previous Complaint by the Union and consideration of his case for permanency through the Settlement executed through the Union. He further added that the Complaint deserved rejection only on the ground of suppression of facts. It was submitted that the Petitioner subjected himself to medical examination in terms of Clause-114 of the settlement and acquiesced in the position of his not being declared medically fit.

Observations of the Court

“The Industrial Court has also erred in applying the principle of res judicata while dismissing the Complaint. The industrial Court ought to have appreciated the real grievance of the Petitioner rather than going by the frame of the Complaint. Merely because the Union agitated the issue of permanency in Complaint (ULP) No. 187/2005 and merely because the said complaint resulted into Memorandum of Settlement dated 1 December 2006, it cannot be contended that Petitioner was precluded from raising the issue of denial of permanency at least in accordance with the terms of the Memorandum of Settlement. Rather than adopting a pedantic and hyper-technical approach of examining the Complaint for grant of permanency on completion of 240 days of service, the Industrial Court ought to have considered the real grievance of the Petitioner in denial of benefit of permanency on account of failure in the medical examination test conducted in pursuance of Memorandum of Settlement dated 1 December 2006.”, the Court said.

The Court said that the Industrial Court ought to have walked a step further by examining whether the decision of the Respondent-Hospital in denying the benefit of permanency on account of the Petitioner’s status as HIV+ was proper or not.

It was said, “In the peculiar facts and circumstances of the present case, Petitioner is denied the benefit of permanency on the ground that he failed in medical examination conducted in accordance with Clauses-114 to 116 of the Memorandum of Settlement. However, it is not that the Petitioner was terminated from service on account of his medical unfitness. He continued performing the duties of Sweeper despite denial of the benefit of permanency. He worked alongwith his cohorts and performed same duties and responsibilities in the hospital. His ailment of HIV+ did not come in the way of performance of duties of sweeper. In a subsequent enacted legislation of the HIV-AIDS Act in 2017, discrimination against a protected person who is HIV+ in the matter of employment is prohibited.”

Another issue which was considered by the Court was whether the Petitioner was entitled to arrears arising out of the grant of permanency from the year 2006.

It was observed, “In my view therefore, though this Court is inclined to grant the benefit of permanency to the Petitioner from the year 2006, the principle of delay and laches would come into play in respect of arrears arising out of grant of such permanency. Petitioner slept over his rights for over 12 years. No doubt, he was wrongfully denied the benefit of permanency in the year 2006. Therefore, he ought to have raised the said grievance immediately after denial of benefit of permanency. His medical examination in pursuance of Memorandum of Settlement was held on 6 December 2006. He ought to have filed the complaint of unfair labour practice within 90 days of denial of benefit of permanency. In that view of the matter, the Respondent-Hospital cannot be saddled with the financial burden of paying difference in wages for unduly long period of 12 long years.”

Conclusion

The Court held, “No doubt, the provisions of the HIV-AIDS Act would be prospective in nature and would not cover the incident of Respondent declaring Petitioner as unfit for permanency in the year 2006. At the same time, this Court cannot be ignorant of the position that Petitioner is ultimately denied the benefit of similar treatment on account of the ailment being HIV+. Despite being detected HIV+ in the year 2006, Petitioner has worked successfully with the Respondent-Hospital for the last 19 long years. His ailment has not prevented him from discharging his duties nor has affected the activities of Hospital in any manner. What has happened in the present case is that HIV+ status of the Petitioner is being used by the Hospital for extracting same work from him by paying him lesser wages. If Petitioner could be continued in service for the last 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.”

Accordingly, the Court partly allowed the petition by directing the Respondent-Hospital to confer the benefit of permanency on the Petitioner from the date of execution of the Memorandum of Settlement. However, the court ordered that he would be entitled to the actual financial benefits in respect of the period 90 days before the date of filing of the complaint before the Industrial Court.

Cause Title: Kumar Dashrath Kamble v. Bombay Hospital [Neutral Citation:2025:BHC-OS:26168]

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.

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