'Denial Of Permanency To HIV Positive Employee Violates Articles 14 & 16 Of Constitution': Bombay High Court

The Bombay High Court has held that denial of permanency to a workman solely on the ground that he is HIV positive is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. The Court observed that when a workman continues to discharge the same duties as his co-workers without any impediment, his HIV status cannot be used as a ground to deny him the benefit of permanency while extracting the same work for lower wages. The Court emphasised that such a denial amounts to hostile discrimination and is contrary to constitutional values of equality and dignity.Justice Sandeep V. Marne was hearing a writ petition filed by a person employed as a sweeper with Bombay Hospital since the year 1994. The petitioner's name was included in the list of temporary workmen eligible for permanency. However, when subjected to a medical examination under the settlement, the petitioner was detected as HIV positive and was declared medically unfit, resulting in the denial of permanency. Despite this, the petitioner continued to perform the same duties as his colleagues who were made permanent. It was only in 2017, after intervention by the Mumbai District AIDS Control Society, that the petitioner was granted permanency prospectively. Aggrieved by the denial of permanency from 2006, the petitioner approached the Industrial Court seeking a declaration of permanency and consequential benefits from 2006. The complaint was dismissed, and hence the present writ petition. The Court held that in applying the principle of res judicata, the Industrial Court adopted a hyper-technical approach and failed to examine the real grievance of the petitioner, which was the denial of permanency solely due to his HIV status. It said that merely because a Memorandum of Settlement dated 1 December 2006 had been arrived on the complaint concerning permanency, the petitioner is not precluded from raising the issue of denial of permanency. The Court noted that the petitioner's ailment never came in the way of discharge of his duties and that he had continued to work for nearly two decades after being detected HIV positive. Referring to the HIV and AIDS (Prevention and Control) Act, 2017, the Court said 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.On the issue of the arrears arising out of the grant of permanency from the year 2006, the Court held that the principle of delay and laches would come into play in respect of arrears arising out of the grant of such permanency. The Court highlighted that the petitioner slept over his rights for over 12 years; he ought to have raised the said grievance immediately after the denial of the benefit of permanency.Accordingly, the High Court set aside the order of the Industrial Court and directed Bombay Hospital to grant permanency to the petitioner with effect from 1 December 2006. However, applying the principle of delay and laches, the Court restricted actual monetary benefits to a period commencing 90 days prior to the filing of the complaint. The Hospital was directed to pay all admissible arrears within three months, failing which interest at 8% per annum would be payable.Case Title: Kumar Dashrath Kamble v. Bombay Hospital [WRIT PETITION NO. 3766 OF 2024]Click Here To Read/Download Order

'Denial Of Permanency To HIV Positive Employee Violates Articles 14 & 16 Of Constitution': Bombay High Court

Saksham Vaishya

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