Denial of permanency on the basis of an employee's HIV status is arbitrary and violates principles of non-discrimination under the Industrial Disputes Act and the HIV-AIDS Act.

JUDGMENT :

SANDEEP V. MARNE, J.

1) Rule. Rule made returnable forthwith. With the consent of the parties, the Petition is called out for hearing and disposal.

2) By this petition, Petitioner assails the judgment and order dated 3 May 2023 passed by the Member, Industrial Court, Mumbai dismissing the Complaint (ULP) No. 312 of 2018. In the said complaint, Petitioner had prayed for declaration of permanency since the year 2006 and for payment of consequential benefits arising out of permanency during 2006 to 2017.

3) Petitioner was engaged in the Respondent-Hospital as a Sweeper in the year 1994. According to the Petitioner, he was medically examined in the year 1999 and his HIV test was negative. It appears that the recognised Union of the Hospital had filed Complaint (ULP) No. 187 of 2005 seeking grant of permanency to 188 temporary workmen working in the hospital. According to the Respondent-Hospital, the dispute in the complaint was amicably resolved and a Memorandum of Settlement dated 1 December 2006 was entered into. As per the said Settlement, the workmen whose names were included in Annexure-B, were to be declared permanent, subject to their medical fitness test carried out by the Chief Staff Medical Officer of the Hospital. According to the Respondent, case of the Petitioner was considered for permanency in accordance with the settlement, but during medical examination, he was detected HIV+ and was declared unfit and was hence not regularised. According to the Respondent, Petitioner was again subjected to medical examination in the years 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 w.e.f. 1 January 2017.

4) In the above background, Petitioner initially raised a demand before the Deputy Commissioner of Labour on 12 December 2017 seeking permanency since the year 2006. The Conciliation Officer recorded that the Respondent-Management did not co-operate in conciliation proceedings. Petitioner expressed desire to approach the Court and accordingly conciliation proceedings were closed. Petitioner thereafter filed Complaint (ULP) No. 312/2018 in the Industrial Court, Bandra seeking the benefit of permanency since the year 2006 and consequential benefits during the period from 2006 to 2017. The Complaint was opposed by the Respondent- Hospital by filing Written Statement. Petitioner examined himself to prove his case. A witness was examined by the Respondent-Hospital in support of its case. After considering the pleadings, documentary and oral evidence, the Industrial Court proceeded to dismiss the Complaint by judgment and order dated 3 May 2023, which is the subject matter of challenge in the present Petition.

5) Mr. Shaikh, the learned Senior Advocate appearing for the Petitioner would submit that the Industrial Court has erred in dismissing Petitioner’s Complaint despite rejecting the objections of approbation and reprobation, and delay. He would submit that the condition of medical examination imposed by the Respondent for grant of permanency is ab initio void. That application of principle of res judicata by the Industrial Court is clearly erroneous as mere execution of settlement cannot be a ground for violating statutory right of the Petitioner of permanency on completion of 240 days of services. He relies upon judgment of this Court in Madhu Fantasy Land Pvt. Ltd., Mumbai vs. Maharashtra General Kamgar Union, Mumbai , 2002 (3) Mh.L.J. 534 in support of his contention that the princip