While hearing the plea of a 55-year-old man who worked as a cleaning staffer at a hospital in Mumbai, the Bombay High Court has observed that the denial of the benefit of permanency to him on the ground of his HIV+ status was clearly “arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India”.
Justice Sandeep V Marne was hearing the plea of the staffer against an industrial court order, which dismissed his complaint for declaring him a permanent employee since 2006, and paying the consequential benefits during his employment between 2006 and 2017.
Justice Sandeep V Marne said denial of benefit of permanency to petitioner on ground of his status as HIV+ is clearly arbitrary and discriminatory.
“Denial of the 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 said.
The court added that the petitioner has made out a case for the grant of the benefit of permanency from the date the same was extended to his cohorts, and the Industrial Court has clearly erred in dismissing the complaint.
“Petitioner is a poor sweeper who is wrongfully denied the benefit of permanency on account of his status of being HIV+, and the hospital has extracted the same work from him by denying him the benefits admissible to permanent workers. Therefore, the petitioner deserves to be granted the benefit of permanency from the date the same was granted to similarly placed workers,” the court added.
The petitioner moved the high court against the Mumbai Industrial Court order that dismissed his complaint for declaration of his permanency since the year 2006 and for payment of consequential benefits arising out of permanency during 2006 to 2017.
The man was working at the hospital as a sweeper in the year 1994. He was medically examined in the year 1999, and his HIV test was negative.
Later, in 2006, the hospital declared some of the temporary workers permanent on the complaint of the recognised union of the hospital, subject to their medical fitness test carried out by the Chief Staff Medical Officer of the Hospital.
According to the hospital, the case of the petitioner was considered for permanency in accordance with the settlement, but during medical examination, he was found to be HIV+ and was declared unfit and was hence not regularised.
The hospital further said that the petitioner was again subjected to medical examination in 2011 and 2016, and again he was found medically unfit. After intervention by the Mumbai District Aids Control Society, the Petitioner was granted the benefit of permanency from January 2017.
The court said that it is inclined to grant the benefit of permanency to the Petitioner from the year 2006; the principle of delay and laches would come into play in respect of arrears arising out of the grant of such permanency.
Justice Marne added that no doubt, he was wrongfully denied the benefit of permanency in the year 2006. Therefore, he ought to have raised the said grievance immediately after the denial of the benefit of permanency.
“The hospital cannot be saddled with the financial burden of paying the difference in wages for an unduly long period of 12 years,” the court ruled.
“In respect of complaints of unfair labour practice under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (MRTU and PULP) Act, 1971, the prescribed period of limitation is only 90 days. Therefore, Petitioner would be entitled to actual arrears from 90 days before filing his complaint,” the court ruled.
The order said that the Petition deserves to be allowed partly by directing the hospital to confer the benefit of permanency on the petitioner from the date of execution of the Memorandum of Settlement, ie, December 1, 2006.
The court set aside the Industrial Court and said that the petitioner be declared as a permanent employee of the hospital from 1 December 2006.