Two judgements on employment rights of PLWHAs

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Dear Friends,

This is to share with you all, two recent judgements pronounced by the Bombay

High Court dated 16th January 2004 in favour of our clients thereby recognising

their right of employment. The gist of the said cases is as follows -

a.. X Vs State Bank of India (SBI) - In the instant case, the petitioner was

working as sweeper with SBI on contract basis since 1987. After 9 years of

service, in 1996, SBI offered him a place for part time hamal cum sweeper,

subject to his medical fitness. He was found to be medically fit except for

blood test in which he was found to be HIV asymptomatic. The SBI rejected him on

medical grounds and even discontinued his temporary services. On further

inquiry, he was informed that SBI would consider his case only if his HIV tests

were negative, however, he was not appraised of the fact that for the same he

would have to undergo further medical tests. In the meanwhile, to make a living,

he had to do small casual jobs. In 2002, he again inquired about the status of

his application and was again informed about the Bank's policy of not employing

HIV positive persons unless found to be physically fit to carry out duties and

not endangering the lives of the others at the work place. Being aggrieved, he

filed a petition in the Bombay High Court to direct the Bank to absorb him as

hamal cum sweeper. Pronouncing the judgement in favour of the petitioner the

Court observed that -

" .Protection and dignity of the HIV infected persons is essential to the

prevention and control of HIV/AIDS. The workers with HIV related illness should

be treated the same as any other worker with an illness. Most people with

HIV/AIDS continue working which enhances their physical and mental well being.

They should be enabled to contribute their creativity and productivity in a

supportive occupational setting. HIV positive persons may have years of

constructive, healthy service ahead of them. To exclude them lacks a rational

foundation and its unfair. HIV infected persons need maximum understanding and

help wherever possible. "

The Hon'ble Court directed the Respondent Bank, to consider the case of the

petitioner and absorb him in the post of hamal cum sweeper or in any other class

IV post on first available vacancy subject to his medical fitness and till such

time, he be considered for the casual work as and when work is available.

2. G Vs. New India Assurance Co. - G, the petitioner, was the widow of the

employee of New India Assurance who died while in employment. Her application

for employment on compassionate ground was rejected by the Insurance company on

her finding HIV positive in the medical test. The Insurance company's Doctor had

found the petitioner medically unfit However the expert doctor found her to be

fit and capable of performing routine work. The division bench ordered the

defendant company vide its order dated 24 November 1999 to appoint G as class IV

employee depending on her medical fitness. She was absorbed as a temporary

employee on being found medically fit in compliance with the said order. On

further moving the court to make her employment permanent, the court ordered J J

Hospital to carry out the CD4 count test of G. The test established the fitness

of the petitioner and she was recommended for the permanent employment.

The Hon'ble Court observed that - only HIV positive status of an otherwise fit

person can not be a ground of denial of employment and it would be

discriminatory and violative of the principles laid down in the Articles 14, 16

and 21 of the Constitution.

These two judgements reinforce our faith in the judicial system and strengthens

our fight against the treatment of discrimination meted out to PLWHA.

We shall shortly be putting up the full text of the judgements on our website.

In solidarity,

Lawyers Collective HIV/AIDS Unit

E-mail: <aidslaw@...>