Denying Appointment to women only on the ground that nature of the employment would require working during night hours is violative of Fundamental Rights: High Court of Kerala

Treasa Josfine vs State Of Kerala on 9 April 2021 Kerala High Court Treasa Josfine vs State Of Kerala on 9 April 2021 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY THE 09TH DAY OF APRIL 2021 19TH CHAITHRA 1943 WP(C).No.25092 OF 2020(J PETITIONER : TREASA JOSFINE AGED 25 YEARS D O.BRUNO KUNJUMON THYTHOPPIL HOUSE SAKTHIKULANGARA P.O. KOLLAM 691 581 BY ADVS SRI.P.R.MILTON SRI.GEORGE VARGHESEDEPARTMENT THIRUVANANTHAPURAM 695 001 2 THE MANAGING DIRECTOR THE KERALA MINERALS AND METALS LTD. SANKARAMANGALAM CHAVARA PIN 691 583 KOLLAM ADDL. 3 UNION OF INDIA REPRESENTED BY IT S SECRETARY DEPARTMENT OF LABOUR RAFI MARG NEW DELHI 110 011 25092 2020 R1 BY SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R2 BY ADV. SMT.LATHA ANAND R3 BY SRI.P.VIJAYAKUMAR ASGI THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 18 03 2021 THE COURT ON 09 04 2021 DELIVERED THE FOLLOWING WP(C).No.25092 OF 2020(J : 2 : Indian Kanoon JUDGMENT Treasa Josfine vs State Of Kerala on 9 April 2021 Dated this the 9th day of April 2021 The prayers in this writ petition are as follows : i) Issue a writ of mandamus or any other appropriate writ order or direction to call for the records relating to Exhibit P7 notification dated 24.10.2020 for the post of safety officer and quash the same as illegal and unconstitutional ii) Issue a writ of mandamus or any other appropriate writ order or direction to declare that section 66(1)(b) of the Factories Act 1948 is unconstitutional as violative of Article 14 15 and 16 of the Constitution iii) Issue a writ of mandamus or any other appropriate writ order or direction to the second respondent to issue a fresh notification to the post of safety officer incorporating the qualified Women Candidates 2. Heard the learned counsel for the petitioner the learned Government Pleader the learned Standing Counsel appearing for the 2nd respondent and the learned Assistant Solicitor General of India appearing for the 3rd respondent 3. It is submitted that the petitioner is an engineering graduate in Safety and Fire Engineering. The 2 nd respondent a public sector undertaking under the State of Kerala has engaged the petitioner as Graduate Engineer Traineeand the petitioner had worked as such for the period from 19.11.2018 to 18.11.2019 and from 26.11.2019 to 25.5.2020. It is submitted that there is a WP(C).No.25092 OF 2020(J) permanent post of Safety Officer available in the company. By Ext.P7 a notification was published inviting applications for the said post. However it is stated in the notification that only male candidates need apply for the post. The petitioner has approached this Court challenging the said provision in the notification on the ground that it is discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer is violated due to the said provision. The petitioner further contends that any provision as contained in Section 66(1)(b) of the Factories Act 1948 to the extent it denies the right of the petitioner to participate in the selection for appointment as Safety Officer is violative of the valuable rights guaranteed to the petitioner under Articles 14 15 and 16 of the Constitution of India and is therefore liable to be set 4. A counter affidavit has been placed on record by the 2 nd respondent. It is stated that the post of Safety Officer is a statutory post and the provisions of the Factories Act have to be complied with while issuing notification for filling up the said post. It is submitted that as per Section 66(1)(b) of the Factories Act 1948 women employees shall not be required or permitted to work except between 6 a.m. and 7 p.m. It is submitted that Graduate Engineer Traineeis required to work only from 9 a.m. to 5 p.m. However it is submitted that Safety Officer is a round the clock post and that the WP(C).No.25092 OF 2020(J) person engaged as Safety Officer will have to work even during night time if required. It is stated that the company had vide letter dated 22.7.2020 sought the opinion of the Director of Factories and Boilers Kerala about the possibility of including women Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 candidates in the recruitment process for selection to the post of Safety Officer by Ext.R2(a) letter However the Director had clarified that women cannot be engaged in factories beyond 7 p.m. and that therefore permission cannot be accorded for considering women for the appointment. It is therefore contended that there is no illegality in excluding women from applying for the post of Safety Officer. It is stated that Section 66(1)(b) is a social welfare measure intended to safeguard the security and health of employees and cannot be held to be discriminatory or violative of the petitioner s rights. It is further contended that the vires of Section 66(1)(b) had been considered by a Division Bench of this Court in Leela v. State of KeralaSLR 28] and it was held that the provision is only a protective measure intended for the welfare of women and that it does not deny opportunity or livelihood to women employees. It is submitted that there is every power in the Government to regulate working hours of employees to meet the concerns of welfare of the employees and the larger public interest and that therefore the provision is perfectly legal and valid It is submitted that the respondents have not denied WP(C).No.25092 OF 2020(J) opportunity to the petitioner and were only obeying the statutory mandate of the Factories Act. It is further contended that no provision in an enactment can be struck down as being arbitrary or unreasonable and that the issue stands covered against the petitioner. Several decisions of the Apex Court are also relied on in support of the said contention 5. A reply statement has been placed on record by the petitioner 6. A statement has been filed by the 1 st respondent as well wherein it is stated that the Labour Department has informed that draft ordinance for amendment of the Factories Act 1948 enabling women employees to work night shifts was approved by the Council of Ministers on 5.8.2020 and the Labour Department has issued a letter to the Secretary Ministry of Home Government of India for approval of the Hon ble President of India for the said amendment. It is submitted that the amendment has not been brought into effect and that therefore going by the present situation the restriction for women to be engaged in factories after 7 p.m. and before 6 a.m. continues in force 7. I have considered the contentions advanced. The issue is simply whether the provisions contained in Section 66(1)(b) of the Factories Act 1948 would stand in the way of the 2 nd respondent WP(C).No.25092 OF 2020(J) considering the application of the petitioner for appointment as Safety Officer. Section 66 reads as follows : 66. Further restrictions on employment of women. The provisions of this Chapter shall in their application to women in factories be supplemented by the following further restrictions namely: a) no exemption from the provisions of section 54 may be granted in respect of any b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 Provided that the State Government may by notification in the Official Gazette in respect of any factory or group or class or description of factories vary the limits laid down in clausebut so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M. c) there shall be no change of shifts except after a weekly holiday or any other 2) The State Government may make rules providing for the exemption from the restrictions set out in sub sectionto such extent and subject to such conditions as it may prescribe of women working in fish curing or fish canning factories where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to or deterioration in any raw material 3) The rules made under sub sectionshall remain in force for not more than three years at a time 8. A Division Bench of this Court in Hindustan Latex Ltd. v ManiammaKLT 111] considered the issue and held that the provisions of Section 66(1)(b can only be a protection against WP(C).No.25092 OF 2020(J) exploitation of a woman worker by requiring her to work during night hours without her consent. Construing the provisions of Article 15 the Division Bench held that what is meant by special provision for women provided in clausewhich are reasonable and do not obliterate or render illusory the constitutional guarantee enshrined under Article 16(2). It was further held that in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b) the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for 9. A learned Single Judge of this Court in Omana Oomen v. F.A.C.T. Ltd.KLT 614] had considered a challenge against denial of appointment to women employees on the ground that they have to work in night shifts. Considering the factual aspects where other women had been appointed to the same post earlier and where WP(C).No.25092 OF 2020(J) male employees were working in day shifts it was held that Section 66(1)(b) which is a protective provision cannot be relied on to deny appointment to the petitioners only on the ground that they are women. It was held that the company could have moved the Government for a permission as provided in the proviso to Section 66(1)(b) which was not done. It was therefore held that since it is possible for the company to accommodate male technicians exclusively in day shifts as asserted by the petitioners the denial of employment to the petitioners on the ground that they would have to work night shifts was not sustainable Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 10. In Leela v. State of KeralaSLR 28] a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. The petitioner therein had challenged the promotion given to a junior hand as Supervisoron the ground that she could not be required to work between 7 p.m. and 6 a.m. as provided under Section 66(1)(b). The Division Bench considered the issue and held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision which enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories. It was held WP(C).No.25092 OF 2020(J) that the proviso to Section 66(1)(b) is only an enabling provision and exemptions granted in certain industries cannot apply across the board. It was further held that the provision was calculated to ensure the women shall be able to take care of their families and that children do not suffer. The decision of the Andhra Pradesh High Court in K.S.Triveni & Ors. v. Union of India & Ors.and that the Madras High Court in Vasantha R. v. Union of India & Ors.as well as of this Court in Rajamma v. State of Kerala & Ors.were considered and it was held that in the case on hand there was no discrimination based on sex. The contentions were therefore rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination 11. The Madras High Court in Vasantha R. v. Union of India & Ors.had considered a similar challenge to Section 66(1)(b). It was held that the provision which denies an opportunity for women to work during night hours where they are desirous of doing so for betterment of their employment prospects would be violative of the provisions of Articles 14 15 and 16 of the Constitution and had struck down the said provision as being discriminatory WP(C).No.25092 OF 2020(J 12. The Andhra Pradesh High Court had also occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time 13. This Court in Sanuja v. Kerala State Beverages Corporation Ltd.KLT 44] had considered a challenge to Rule 7(37) of the Abkari ShopsRules 2002 which provided that women cannot be engaged to work in foreign liquor shops. After consideration of the case law on the point as also the changed circumstances this Court held that the restriction against women being employed in liquor outlets would violate the provisions of Articles 14 15 16 and 19 of the Constitution. The provisions were therefore held to be discriminatory and violative of the provisions of Articles 14 and 15 14. Having considered the contentions advanced I find that the basic contention urged by the respondent is that the provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. In the factual situation involved we have to consider the fact that Factories Act 1948 was enacted at a time when requiring a woman to work in an establishment of Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 any nature more so in a factory during night time could only be seen as WP(C).No.25092 OF 2020(J) exploitative and violative of her rights. Apparently the World has moved forward and women who were relegated to the roles of home makers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including Health Care Aviation and Information Technology. Women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement. The Apex Court in Secretary Ministry of Defence v. Babita Puniya and others7 SCC 469] has declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution. It was held that submissions based on stereotypes premised on assumptions about socially ascribed roles result in gender discrimination against women and violate their fundamental rights. In the present scenario to say that a graduate engineer in safety engineering cannot be considered for appointment as Safety Officer in a public sector undertaking because of an offending provision under Section 66(1)(b) of the Factories Act according to me is completely untenable and WP(C).No.25092 OF 2020(J) unacceptable. This is evident from the fact that the State of Kerala has approved an amendment to the Rules which permits the engagement of women on condition that all safety precautions and facilities for such engagement are arranged by the employer 15. True a Division Bench of this Court considered the issue and held that Section 66(1)(b) is only a protective provision. If that be so it can be operated and exercised only as a protection and cannot be an excuse for denying engagement to a woman who does not require such protection any more The decision in Hindustan Latex Ltd. s case cited supra and the subsequent laying down of the law by the Apex Court would make it abundantly clear that a woman who is fully qualified cannot be denied of her right to be considered for employment only on the basis of her gender. It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours safely and conveniently. If that be so there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours. I am therefore of the opinion that the embargo contained in Ext.P7 that only male candidates can apply is violative of the provisions of Articles 14 15 and 16 of the Constitution WP(C).No.25092 OF 2020(J) of India. The said provision in Ext.P7 notification is therefore set aside. I reiterate the finding of the Division Bench that the provisions of Section 66(1)(b) are only protective in nature. I make it clear that such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible There will accordingly be a direction to the 2 nd respondent to consider the application submitted by the petitioner for appointment to the post of Safety Officer notwithstanding the provisions of Section 66(1)(b) of the Factories Act 1948. Appropriate action shall be taken without further delay This writ petition is ordered accordingly Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 A N U S I V A R A M A N J U D G E J v t 3 0 . 3 . 2 0 2 1 W P. N o . 2 5 0 9 2 O F 2 0 2 0A P P E N D I X PETITIONER S EXHIBITS E X H I B I T P 1 T R U E C O P Y O F T H E D E G R E E C E R T I F I C A T E O F T H E F A C U L T Y O F ENGINEERING ISSUED BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REGISTER NO.16143048. EXHIBIT P2 TRUE COPY OF THE CALL LETTER DATED 26 9 2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 26 9 2018 EXHIBIT P3 TRUE COPY OF THE OFFER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER NO.TP PD R44(A) 18 DATED 22 10 2018 EXHIBIT P4 TRUE COPY OF THE PERSONNEL ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER NO.TSP PD RS 93 18 DATED 19 11 2018 EXHIBIT P5 TRUE COPY OF THE REENGAGEMENT LETTER ISSUED BY THE 2ND RESPONDENT COMPANY TO THE PETITIONER NO.TSP PD RS 93 19 DATED 19 11 2019 EXHIBIT P6 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 10 11 2020 EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 24 10 2020 ISSUED BY THE 2ND RESPONDENT S EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE LETTER DATED 22.07.2020 ISSUED BY KMML TO THE DIRECTOR OF FACTORIES AND BOILERS KERALA EXHIBIT R2(b) TRUE COPY OF THE REPLY LETTER RECEIVED FROM THE DIRECTOR OF FACTORIES AND BOILERS KERALA DATED 24.08.2020 EXHIBIT R1(a) TRUE COPY OF LETTER No.LBRD b2 118 2020 LBRD DATED 28.10.2020 ALONG WITH THE PROPOSED AMENDMENT ORDINANCE TRUE COPY P.A. TO JUDGE Indian Kanoon 

Summary: A woman who is fully qualified cannot be denied her right to be considered for employment only on the basis of her gender. It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. This remarkable judgment was passed by the Kerala High Court in the matter of TREASA JOSFINE V STATE OF KERALA &amp; ANR. [WP(C). No. 25092 OF 2020] by Honourable Justice Anu Sivaraman. This writ petition was filed to seek a writ of mandamus to call for the records for the post of safety officer and to declare Section 66(1)(b) of the Factories Act, 1948 as unconstitutional since it is violative of Article 14, 15 and 16 of the Constitution. Additionally, the petitioner also demanded the second respondent issue a fresh notification to the post of safety officer, incorporating the qualified Women Candidates. The brief facts of the case are, petitioner is an engineering graduate in Safety and Fire Engineering whereas Respondent No. 2 is a public sector undertaking under the State of Kerala. The petitioner is engaged as Graduate Engineer Trainee (Safety) and the permanent post of Safety Officer was available for which applications were sought by the company but it was limited to only male candidates which were contended to be violative of Fundamental Rights. Whereas the respondents stated that the post of Safety Officer is a statutory post and as per Section 66(1)(b) of the Factories Act, 1948, women employees shall not be required or permitted to work except between 6 a.m. and 7 p.m. Graduate Engineer Trainee (Safety) is required to work only from 9 a.m. to 5 p.m. whereas Safety Officer is around the clock post and person engaged as Safety Officer will have to work even during night time which was affirmed by the Director. Thus, there was no illegality in excluding women from applying for the post of Safety Officer. The Court relied on Hindustan Latex Ltd. v. Maniamma [1994 (2) KLT 111] to contemplate upon the issue related to Section 66(1)(b) and stated that the provisions of Section 66(1)(b) can only be protected against exploitation of a woman worker by requiring her to work during night hours without her consent. The Court also observed the judgment in Omana Oomen v. F.A.C.T. Ltd. [1990 (1) KLT 614] and Leela v. State of Kerala [2004 (5) SLR 28] and observed that the provision of Section 66(1)(b) embodies a special provision in favor of women and does not suffer from the vice of discrimination. It was further observed that “provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. In the factual situation involved, we have to consider the fact that the Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during the night time could only be seen as exploitative and violative of her rights. But with development and advancement, women have been engaged in several professions requiring round the clock labor and have proved themselves quite capable of facing the challenges of such engagement.” The Court also added that “It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. If that be so, there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours”