The Denial of Benefits of Permanency to an HIV+ Employee has been declared unconstitutional by the Bombay High Court, holding that refusal to grant permanent status solely on the ground of HIV status is arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution of India.

The Court made it clear that the denial of benefits of permanency to an HIV+ Employee cannot be justified when the employee has continuously discharged his duties without any adverse impact on institutional functioning.

HIV Status Cannot Be Ground to Deny Permanency

The writ petition arose from a challenge to an Industrial Court judgment that rejected a sweeper’s claim for retrospective permanency and consequential monetary benefits.

The petitioner had been serving a reputed Mumbai hospital since 1994 and was similarly placed with other workers who were granted permanent status under a 2006 settlement.

Despite completing the requisite period of service, permanency was denied to him after a medical examination found him HIV positive. Importantly, his service was never discontinued, and he continued to work alongside permanent employees performing identical duties.

The High Court found that the denial of benefits of permanency to an HIV+ Employee in such circumstances offends the constitutional guarantee of equality and equal opportunity in employment.

Court Finds Industrial Court Approach Legally Flawed

Justice Sandeep V Marne held that the Industrial Court adopted a narrow and technical approach by invoking delay, res judicata, and acquiescence, without addressing the core constitutional issue.

The Court observed that merely because a settlement prescribed medical fitness, it could not override statutory and constitutional protections. The real grievance was not the settlement itself, but the discriminatory denial of permanency based solely on HIV status.

The Court emphasised that the petitioner’s ailment never interfered with his ability to work as a sweeper, nor did it affect hospital operations in any manner.

HIV Discrimination In Employment Is Impermissible

While acknowledging that the HIV and AIDS Prevention and Control Act, 2017 operates prospectively, the Court held that even prior to the statute, constitutional principles prohibited discrimination on the basis of HIV status.

The judgment records that the hospital continued to extract the same work from the petitioner for nearly two decades while denying him permanency and equal wages. Such conduct, the Court held, amounts to unfair labour practice and hostile discrimination.

Accordingly, the Court ruled that the denial of benefits of permanency to an HIV+ Employee was unconstitutional and unsustainable in law.

Relief Granted With Limited Arrears

The High Court directed that the petitioner be granted permanency from the date it was extended to his co-workers under the 2006 settlement.

However, applying the doctrine of delay and laches, the Court restricted monetary arrears to a period of 90 days prior to the filing of the complaint before the Industrial Court.

The Court reasoned that while the denial was wrongful, the petitioner did not challenge it within the prescribed limitation period, and therefore the employer could not be burdened with arrears spanning over 12 years.

Constitutional Equality Reaffirmed

Concluding the matter, the Court held that if an employee could be continued in service for 19 years after being detected HIV positive, there was no lawful justification to deny him permanency when his colleagues were regularised.

The ruling decisively affirms that Denial Of Benefits Of Permanency To HIV+ Employee undermines constitutional morality, equality before law, and dignity of labour.

Case Details

• Case Title: Kumar Dashrath Kamble v. Bombay Hospital
• Neutral Citation: 2025:BHC-OS:26168
• Court: Bombay High Court
• Bench: Justice Sandeep V Marne

Appearances

• For Petitioner: Senior Advocate Arshad Shaikh with Advocates Vinsha Acharya, Rajendra Jain, Pranil Lahigade, Ranjit A. Agashe
• For Respondent: Senior Advocate Sudhir Talsania with Advocates Netaji Gawade and Sanjay Udeshi and Co.

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