Bombay High Court: In a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (‘MRTU & PULP Act’), a Single Judge Bench of Sandeep V. Marne, J., held that denial of permanency to a sweeper on account of being HIV+ was arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. The Court observed that the employee continued to perform his duties despite his medical condition and that refusal of permanency amounted to unfair labour practice. Accordingly, the employee was declared permanent, though financial benefits were confined to the period prior to filing of the complaint in view of limitation.
Background:
The employee had been engaged as a sweeper in the hospital since 1994 and was medically examined in 1999, when his HIV test was negative. In 2005, the recognised Union of the Hospital filed a complaint seeking permanency for 188 temporary workmen, which culminated in a Memorandum of Settlement dated 01-12-2006. As per the settlement, workers named in an annexure were to be declared permanent subject to medical fitness. The employee’s name was included, but upon medical examination he was detected HIV+ and declared unfit, hence not regularised. He was again examined in 2011 and 2016 and found medically unfit. Only after intervention by the Mumbai District Aids Control Society was, he granted permanency from 01-01-2017.
In 2018, the employee approached the Industrial Court seeking permanency since 2006 and consequential benefits. The employee argued that the condition of medical examination was void, that res judicata did not apply, and that the Model Standing Orders prevailed over settlement. It was submitted that denial of permanency on account of HIV status was arbitrary and contrary to the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (‘HIV-AIDS Act’).
However, the hospital opposed the complaint as time-barred, suppressed facts, and contended that the settlement was binding under Section 18(1) of the Industrial Disputes Act, 1947 (‘ID Act’). It was argued that permanency was granted only on humanitarian grounds in 2017 and arrears for the past period could not be claimed.
Analysis and Decision:
The Court emphasised that the Industrial Court erred in dismissing the complaint by applying res judicata and delay. The Court observed that the real grievance was the denial of permanency on account of medical unfitness due to HIV status, and further noted that the employee continued performing the duties of a sweeper despite the denial of permanency, and his ailment did not affect his work.
It was highlighted that the HIV-AIDS Act prohibits discrimination against protected persons in employment. However, the Court observed that denial of permanency amounted to extracting the same work while paying lesser wages, which was arbitrary and discriminatory. The Court further relied on Shailesh Kumar Shukla v. Union of India, 2023 SCC OnLine All 429, wherein it was held that employment or promotion cannot be denied only on the ground of a person’s HIV status.
However, considering the twin factors of the petitioner being a mere sweeper and his ailment being HIV+, the Court emphasised that in the interest of justice strict rules of pleadings should not be insisted upon, and instead the real grievance expressed through the complaint must be deciphered. Accordingly, the Court proceeded to consider the real grievance of the petitioner.
The Court highlighted that the Industrial Court ought to have considered whether denial of permanency on account of HIV+ status was proper. It was observed that the principle of res judicata was wholly irrelevant, since the complaint was not for permanency on completion of 240 days but for denial of permanency in 2006. Ultimately, the Court held that 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.
On limitation, the Court analysed that in respect of complaints of unfair labour practice under the MRTU & PULP Act the prescribed period of limitation is only 90 days. Therefore, the petitioner would be entitled to actual arrears from 90 days prior to filing of the complaint.
The Court therefore set aside the judgment of the Industrial Court and declared the employee permanent from 01-12-2006. Consequently, the financial benefits arising out of permanency were extended only from 05-07-2018, i.e., ninety days before filing of the complaint, and all arrears arising out of notional grant of permanency from 01-12-2006 were denied.
[Kumar Dashrath Kamble v. Bombay Hospital, Writ Petition No. 3766 of 2024, decided on 23-12-2025]
Advocates who appeared in this case:
For the Petitioner: Arshad Shaikh, Senior Advocate with Vinsha Acharya, Rajendra Jain, Pranil Lahigade i/b Ranjit A. Agashe
For the Respondent: Sudhir Talsania, Senior Advocate with Netaji Gawade i/b Sanjay Udeshi & Co.
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