Mumbai, Dec 29: Denial of the benefit of permanency to an employee on the ground of his status as HIV-positive is clearly “arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India”, the Bombay High Court held, while directing Bombay Hospital to confer permanency on a sweeper with effect from December 1, 2006, while restricting actual monetary benefits to 90 days prior to the filing of his complaint.
The court underscored that an employer cannot continue to take the same work from an employee as his co-workers, yet deny him permanency and equal wages on the basis of his HIV status.
Employee Continued Same Work Despite Being Declared Medically Unfit
Justice Sandeep Marne, on December 23, partly allowed a petition filed by a man who has been employed as a sweeper with Bombay Hospital since 1994. The man’s name was included in the list of temporary workmen eligible for permanency under a Memorandum of Settlement dated December 1, 2006.
However, during a medical examination conducted under the settlement, he was found to be HIV-positive and was declared medically unfit, resulting in the denial of permanency.
Despite this, the man continued to perform the same duties as his co-workers who were granted permanent status. It was only in 2017, following intervention by the Mumbai District AIDS Control Society, that the hospital granted him permanency on a prospective basis.
Industrial Court Took Hyper-Technical View, HC Says
Aggrieved by the denial of permanency from 2006, the man approached the Industrial Court seeking a declaration of permanency and consequential benefits for the period between 2006 and 2017.
The Industrial Court dismissed his complaint, holding it to be barred by limitation and the principle of res judicata (a matter already decided). Following this, he approached the High Court.
Setting aside the Industrial Court’s order, the High Court held that it had adopted a “hyper-technical approach” and failed to examine the real grievance of the petitioner — that permanency was denied solely because of his HIV status.
HIV Status Did Not Affect Work Performance
The court clarified that merely because a settlement had been arrived at in 2006, the petitioner was not precluded from challenging the discriminatory denial of permanency.
The court noted that the petitioner’s ailment never came in the way of the discharge of his duties and that he had continued to work for nearly two decades after being detected as HIV-positive.
Referring to the HIV and AIDS (Prevention and Control) Act, 2017, the court emphasised that discrimination against HIV-positive persons in matters of employment is expressly prohibited.
“…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,” the court observed.
Arrears Restricted Due To Delay
On the issue of arrears, however, the court applied the principle of delay and laches, noting that the petitioner had “slept over his rights for over 12 years”.
While directing the hospital to grant permanency from December 1, 2006, the court restricted actual financial benefits to a period commencing 90 days prior to the filing of the complaint in July 2018.
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The court has directed Bombay Hospital to pay all admissible arrears within three months, failing which interest at 8 per cent per annum would be payable.
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