HIV status can’t be grounds to deny job permanency: HC
The Bombay High Court ruled that denying job permanency to an HIV-positive sanitation worker was discriminatory, ordering the hospital to grant benefits retroactively.
MUMBAI: The Bombay High Court has held that denial of job permanency to a hospital sanitation worker solely on the ground that he is HIV-positive is “arbitrary, discriminatory and violative of constitutional rights,” observing that his medical condition never affected his work performance.
A single-judge bench of Justice Sandeep V. Marne ruled on December 23 that the hospital had “wrongfully denied” permanency to the 55-year-old man, who has been working as a sweeper since 1994. The court noted that the employee continued to perform his duties for years despite being denied regularisation and was paid lower wages for the same work.
In December 2006, the hospital and its recognised union had entered into a Memorandum of Settlement to regularise several temporary employees, subject to medical fitness. Though the petitioner was found eligible for permanency, he was declared medically unfit after testing HIV-positive during a medical history examination, leading to denial of regularisation.
More than a decade later, following the intervention of the Mumbai District AIDS Control Society, the hospital granted him permanency benefits in January 2017. However, the benefits were extended only prospectively. Aggrieved, the man approached the Industrial Court in December 2017 seeking permanency from 2006 and consequential benefits, but his plea was dismissed in May 2023 on technical grounds.
Challenging this, he moved the high court in 2024, contending that discrimination on the basis of his HIV status violated the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017. He submitted that his illness had never hindered his ability to discharge his duties and that it was unjust to extract the same work while paying him lesser wages.
{{/usCountry}}Challenging this, he moved the high court in 2024, contending that discrimination on the basis of his HIV status violated the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017. He submitted that his illness had never hindered his ability to discharge his duties and that it was unjust to extract the same work while paying him lesser wages.
{{/usCountry}}The hospital argued that the employee had undergone medical examination and was later granted permanency on humanitarian grounds. Rejecting this contention, the high court observed that the Industrial Court should have addressed the real grievance instead of adopting a hyper-technical approach.
{{/usCountry}}The hospital argued that the employee had undergone medical examination and was later granted permanency on humanitarian grounds. Rejecting this contention, the high court observed that the Industrial Court should have addressed the real grievance instead of adopting a hyper-technical approach.
{{/usCountry}}“Considering the twin factors of the Petitioner being a mere sweeper and his ailment being HIV+, it would be in the interest of justice not to insist on strict rules of pleadings and instead decipher his real grievance expressed through the complaint,” the court said.
{{/usCountry}}“Considering the twin factors of the Petitioner being a mere sweeper and his ailment being HIV+, it would be in the interest of justice not to insist on strict rules of pleadings and instead decipher his real grievance expressed through the complaint,” the court said.
{{/usCountry}}Setting aside the Industrial Court’s order, the high court directed the hospital to grant the employee permanency from December 1, 2006 — the date of the Memorandum of Settlement — and to clear all arrears arising from the notional grant of permanency within three months. The court further ordered that failure to comply would attract interest at 8 per cent per annum.
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