CASE NAME: Kumar Dashrath Kamble vs. Bombay Hospital
CASE NUMBER: Writ Petition No. 3766 of 2024
COURT: Bombay High Court
DATE: 23 December 2025
QUORUM: Hon’ble Mr. Justice Sandeep V. Marne
FACTS
The Petitioner was appointed as a sweeper in Bombay Hospital in 1994. A complaint was filed by a recognized Union in 2005 for the permanency of 188 temporary workers, which led to a Memorandum of Settlement in December 2006. As per the settlement, workers were to be made permanent, subject to a medical fitness test. Though his name figured in the list, medical examinations conducted in 2006, 2011, and 2016 showed him to be HIV+, and he was declared unfit for regularization. After some intervention by the Mumbai District Aids Control Society, he was given permanency on humanitarian grounds with effect from 1 January 2017. He approached the Industrial Court for a declaration of his permanency from 2006 and consequent benefits, which was rejected on 3 May 2023.
ISSUES
- Whether the Model Standing Orders (MSO), which provide permanency after 240 days of service, will override the Memorandum of Settlement signed between the employer and the Recognized Union?
- Whether the denial of permanency based on HIV status arbitrary discrimination?
- Whether granting permanency of a job based on a medical examination is valid or it is void ab initio?
LEGAL PROVISIONS
- Section 18(1), Industrial Disputes Act, 1947 (Maharashtra Amendment)
States that the settlement which has been arrived at between the employer and the recognized union shall apply to the persons referred to under the section.
- Model Standing Orders (MSO)
Firstly, Clause 4(c) concerns the right to a permanency placement after 240 days of service.
- HIV-AIDS Act, 2017
Sections providing for the non-discrimination of persons affected with HIV.
ARGUMENTS
PETITIONER
The Petitioner argued that the right to permanency is a statutory right that must be conferred after a worker attains 240 days of service, as provided in the Model Standing Orders (MSO). The Petitioner submitted that no agreement/settlement or contract can legally restrict or waive this right, and thus any such agreement/settlement and contract cannot be considered valid. Furthermore, the particular requirement of having to undertake a medical examination to qualify to take up the position of permanency was ab initio void. The Petitioner also submitted that the hospital carried out illegal and arbitrary discriminatory practices against him on the grounds of his status as an HIV+ person. This was in contravention of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017. The Petitioner submitted that it would be inhuman to demand the same work from him as the other employees, yet pay him less compared to the other employees who are receiving the benefits enjoyed by the permanent staff.
RESPONDENT
The Respondent pointed out that the complaint of the Petitioner was essentially time-barred and liable to be rejected because of the inordinate delay. They further stated that the claim would not lie as per the principles of res judicata since the question of permanency for the workmen had already been answered on a complaint filed by the Union and a settlement reached. The hospital charged the Petitioner with gross suppression of facts-its complaint did not show the 2006 Memorandum of Settlement or even the fact that he was declared medically unfit on a medical examination conducted in the said year for the grant of permanency. They argued that the Petitioner had acquiesced in the position because over these years, he submitted himself to several medical examinations without demur. Lastly, the Respondent contended that Section 18(1) of the Industrial Disputes Act provides that a settlement arrived at with a recognized union is binding upon all workmen and overrides the general provisions of the MSO.
ANALYSIS
The Court analyzed the effect of the Maharashtra Amendment to Section 18(1) of the Industrial Disputes Act. It observed that while general judgments may emphasize the primacy of Standing Orders, the peculiar legal framework in Maharashtra renders a settlement with a recognized union binding and capable of overriding MSO clauses. The Court remarked that the Petitioner himself had withheld mentioning the said settlement and the particular grounds (medical unfitness) as to why he was denied permanency in the first instance.
JUDGEMENT
The Court explained that the said agreement, called the Memorandum of Settlement, made and entered into by the hospital and the union, was legally of greater force than the general labor norms contained in the Model Standing Orders. According to the special laws in Maharashtra, an agreement made by the recognized union representing the workers would qualify as the legal norm to be abided by everyone, including those who have additional requirements, such as a medical fitness test. Since the Petitioner was discovered to be HIV+ and medically unfit in the medical tests in 2006 and 2011, the Petitioner did not qualify under the special requirements in the said legal binding agreement at the time. Hence, the High Court declared the application of the general norm “permanency after 240 days” not applicable to circumvent the agreement made by the union, and the Petitioner was not legally due any retroactive benefits or a pronouncement of permanency from the years 2006 to 2017.
CONCLUSION
The order upholds that in the state of Maharashtra, a validly arrived at settlement agreement between the employer and recognized unions shall prevail over the Model Standing Orders. It also emphasizes the aspect that, although humanitarian considerations may give rise to future relief, as evidenced by regularization in 2017, the claims for past benefits can be limited by the terms of a valid collective bargaining agreement.
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WRITTEN BY: SHARANYA M
