4 months ago
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The Bombay High Court has ordered Bombay Hospital to assistance permanency to a sweeper who was denied regular presumption for astir 2 decades aft being declared HIV-positive, terming the denial “arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution.”
Justice Sandeep V. Marne, successful a judgement pronounced connected December 23, acceptable speech an Industrial Court bid dated May 3, 2023, and directed the infirmary to state the petitioner, Kumar Dashrath Kamble, imperishable from December 1, 2006, the day of a colony that regularised 150 impermanent employees.
Mr. Kamble, employed since 1994, was initially recovered HIV-negative successful 1999 but declared “unfit” during a aesculapian introspection successful 2006 nether the colony terms. While his peers were confirmed permanent, helium continued arsenic a impermanent sweeper until January 2017, erstwhile helium was regularised connected “humanitarian grounds.” His plea for parity was dismissed by the Industrial Court successful May 2023.
Justice Marne powerfully criticised the denial and the Industrial Court’s approach, “Denial of payment of permanency to the Petitioner connected the crushed of his presumption arsenic HIV+ is intelligibly arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.”
“If Petitioner could beryllium continued successful work for the past 19 agelong years aft being detected HIV+, I bash not spot immoderate crushed wherefore the payment of permanency needs to beryllium denied to him erstwhile his coworkers were made permanent,” the bid said.
“What has happened successful the contiguous lawsuit is that the HIV+ presumption of the Petitioner is being utilized by the Hospital to extract the aforesaid enactment from him by paying him lesser wages. “Rather than adopting a pedantic and hyper-technical approach, the Industrial Court ought to person considered the existent grievance of the Petitioner successful denial of payment of permanency connected relationship of nonaccomplishment successful the aesculapian introspection test,” the bid read.
The justice added, “Petitioner is simply a mediocre sweeper who is wrongfully denied the payment of permanency connected relationship of his presumption of being HIV+, and the infirmary has extracted the aforesaid enactment from him by denying him the benefits admissible to imperishable workers.”
The High Court declared Mr. Kamble imperishable from December 1, 2006, but restricted fiscal benefits to July 5, 2018—90 days earlier helium filed his complaint—citing hold and regulation principles nether the MRTU & PULP Act, “Respondent-Hospital cannot beryllium saddled with the fiscal load of paying quality successful wages for an unduly agelong play of 12 agelong years.”
The infirmary indispensable wage arrears wrong 3 months, failing which involvement astatine 8% per annum volition apply, the tribunal said.
Justice Marne referred to the HIV-AIDS (Prevention and Control) Act, 2017, which prohibits favoritism successful employment, noting that portion its provisions are prospective, its principles cannot beryllium ignored. The tribunal besides cited the Allahabad High Court’s ruling successful Shailesh Kumar Shukla vs Union of India, which held that HIV presumption cannot warrant denial of employment oregon promotion.
