At a time when women are no longer relegated to the role of home-maker, it is unacceptable and untenable to deny employment to a woman citing late work hours as part of the job description, the Kerala High Court ruled (Treasa Josfine v. State of Kerala and ors).
Justice Anu Sivaraman clarified that the restrictions on work timings beyond which a woman cannot be forced to work under Section 66(1) (b) of the Factories Act, 1948 cannot be an excuse to deny employment to a woman who does not require such protection anymore.
“True, a Division Bench of this Court considered the issue (in Leela v. State of Kerala) 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 anymore,” the judgment said.
The world appears to have moved forward and women who were relegated to the roles of homemakers when the Factories Act was enacted have taken up more demanding roles in society and in economic spheres, the Court observed. The contributions made by women in economic development cannot be ignored by any industry, it added.
“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 judge ruled.
Moreover, reference was also made to the Supreme Court’s decision in Secretary, Ministry of Defence v. Babita Puniya and others last year, wherein the top court had ruled in favour of granting Permanent Commission to women Short Service Commission officers at par with their male counterparts in the Indian Army.
In that case, the Supreme Court had declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution, Justice Sivaraman observed. In the same case, it was held that stereotypes and assumptions about socially ascribed roles result in gender discrimination against women and violate their fundamental rights.
Justice Sivaraman added that the Kerala High Court’s earlier decision in Hindustan Latex Ltd. v. Maniamma and the Supreme Court’s ruling in Babita Puniya’s case 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,” the judge emphasised.
Justice Sivaraman, therefore, ruled in favour of the woman-petitioner before the Court, who had challenged a “male candidates can only apply” job notification for a permanent post of safety engineer at the Kerala Minerals and Metals Ltd (a Public Sector Undertaking/ PSU).
The petitioner, Treasa Josfine, had earlier worked as a Graduate Engineer Trainee (Safety) at the PSU. A notification inviting job applications only from male candidates for the post of permanent safety officer at the PSU prompted Josfine to challenge the said notification as being discriminatory against women, thereby violating rights under Articles 14, 15 and 16 of the Constitution.
The respondent PSU defended the job notification by taking recourse to Section 66(1)(b) of the Factories Act. It was contended that this provision lays down that women employees shall not be required or permitted to work except between 6 am and 7 pm. While so, it was submitted that safety officer is a round-the-clock post and that a person engaged as safety officer will have to work even during night time if required.
The State of Kerala and the Union of India were also impleaded as respondents in the case.
The Central government informed the Court that an amendment via ordinance had been proposed to the Factories Act to enable women employees to work in night shifts, which had been approved by the Council of Ministers in August 2020. However, the amendment has not been brought into effect. As such, the restrictions on the working hours for women continue to be in force.
The respondents added that Section 66(1) (b) is a social welfare measure intended to safeguard the security and health of employees. Hence, it cannot be held to be discriminatory or violative of the petitioner’s rights, it was argued.
However, the Court rejected this stance, ruling that Section 66(1)(b) cannot place a complete bar on the engagement of women willing to take up the job.
“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 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,” the High Court ruled.
Therefore, the job notification, in so far as it allowed only male candidates to apply for the post, was quashed as being unconstitutional.
“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 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,” the Court said.
Advocates PR Milton and George Varghese appeared for the petitioner. Senior Government Pleader Bijoy Chandran appeared for the State of Kerala. Advocate Latha Anand appeared for the Managing Director of the Kerala Minerals and Metals Ltd. ASG P Vijayakumar appeared for the Central Government.