Mumbai Court: Not unfair to deny a permanent position to HIV+ employees

A city industrial court has held that a south Mumbai hospital did not commit an unfair labour practice under the law by not giving an HIV-positive sweeper a permanent position as he was found medically unfit in the hospital’s physical fitness tests. The applicant had been working with the hospital as a temporary worker since 1994. He was made a permanent employee by the hospital after the intervention of the Mumbai District AIDS Control Society in 2017.

Denying HIV+ permanency is not unfair

He had then claimed payment of wages and benefits from 2006 onwards till 2017, on par with permanent employees. In the period, as a temporary employee, he had not only been paid wages based on a scale for temporary workers, but he was also not eligible for sick leave, casual leave, bonus and other such facilities.

In 2006, he was not granted permanency after testing HIV-positive. In his complaint before the industrial court, he alleged that the hospital had committed an unfair labour practice under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. 

Medical fitness obligatory

The court referred in its judgment that as per a settlement reached by a recognised union that had represented 188 employees and the hospital, there was a clause for ascertaining physical fitness before conferring permanency on a temporary employee. “It is evident that the criteria of medical fitness was obligatory for permanency of any employee…” Industrial Court Member S B Parate said.

The court also noted that in 2006 and then again in 2011, the worker was found HIV-positive in medical fitness tests. Member Parate said, during the period he was unfit for permanency and hence no unfair labour practice had been committed by the hospital under the law.