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Gujarat High Court
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Mahila Utkarsh Trust Thro Its President & Ors.
Versus
Union of India Thro Secretary & Ors.
Special Civil Application No. 2984 of 20121—Decided on 13/12/2013
Factories Act, 1948 — Section 66(1)(b) and Proviso — Working hours of women employees to work in night shift — Constitutional validity of the provision — Finding of — Having considered the number of decision cited and the relevant provision under the Act Court held that provisions contained in Section 66(1)(b) of the Act is ultra vires Articles 14, 15, 16 and 19(1)(g) of the Constitution of India — However Court observed that while permitting female employees to work during night shift — It will be condition precedent upon the employer to make adequate measures for safety and security of the female workers who would work during night shift and the entire provisions of the Act including the ones relating to welfare and working hours should be strictly followed even during the night shifts — In addition it will be also duty of the employer to make arrangements for transportation to them opening adequate medical units and make provision for creches — The employers shall inform in writing of their intention and such night shift with women workers shall start only after the authorities of the State Government after inspection is satisfied with the arrangements made — If during subsequent inspection any deficiency is found it will be open to the Government to pass order stopping such night shift.
Held :
Court, however, respectfully agree with the views taken by the Madras High Court and the Andhra Pradesh High Court that Section 66(1) (b) of the Act is ultra vires the Constitution of India. [Para 24]
In view of what have been stated above, Court hold that the provisions contained Section 66(1)(b) of the Act is ultra vires Articles 14, 15, 16, and 19(1)(g) of the Constitution of India. [Para 25]
Court, however, observe that while permitting female employees to work during the night shift, it will be a condition precedent upon the employer to make adequate measures for the safety and security of the female employees who would work during the night shift and the entire provisions of the Act including the ones relating to welfare and working hours should be strictly followed even during the night shifts. In addition, it will be also the duty of the employer to make arrangements for transportation of the female employees who work in the night shift from their respective residence to the factory before the work commences and from the factory to their respective residence after the duty hours of the night shift if the same ends before 6.00 a.m. Moreover, as indicated above, the arrangements should also be made for opening adequate medical unit for such female employees and the provision for Crèches as provided for in Section 48 of the Act should also be strictly adhered to even during the night-shift. The owners / occupiers of the factories who intend to run night-shift with women workers shall, before starting such shift, inform the respondents in writing of their intention and such nightshift with women workers shall start only after the authorities of the State Government, after inspection, is satisfied with the arrangement of safety and security measures made by the owners / occupiers and even after starting such shifts, if during subsequent inspection any deficiency is found, it will be open to the State Government to pass order stopping such night-shift. [Para 25.1]
Law Laid Down :
There is one and only one ground for declaring an Act of the Legislature to be invalid and that is if it clearly violates provision of the Constitution — In so evident a manner as to leave no manner of doubt.
Bhaskar Bhattacharya, CJ.—All these three Special Civil Applications were taken up and heard together as a common question of law is involved in all these matters, viz. whether Section 66(1) (b) of the Factories Act, 1948 [the Act hereafter] and it’s proviso are ultra vires the Constitution of India being violative of Articles 14, 15, 16, 19(1) (g) and 21 of the Constitution of India.
1.1 In Special Civil Application No. 11533 of 2013, an additional, alternative prayer has been made for a direction upon the Staterespondent to issue appropriate notification as provided in the proviso to Sub-section (b) of Section 66(1) of the Act enabling the petitioners to permit / employ women employees to work up to 10.00 p.m.
2. The facts stated in Special Civil Application No. 2984 of 2012 may be summarized thus:
2.1 The petitioner is a Public Charitable Trust registered under the provisions of the Bombay Public Trust Act, 1950 and is engaged in the activity of upliftment of women and is active in the creation of employment for women and protection of their interest in general. The petitioner trust works for the creation of employment for women in the District of Amreli and is active in the filed of protection of interest of women in the matter of employment and social issues. Amreli District, and in particular, Damnagar Town, is the main centre of activity of the petitioner Trust. The economy of Amreli District is largely based on agriculture and agriculture-based industries. The main crop is cotton. Families which are having agricultural fields or are engaged in other ancillary activities are more or less well off. Male members of the rest of the families have to migrate to other major cities in search of employment, leaving their families at local level. Female folk are constrained to work either at small diamond polishing centres or cotton Gins or cottonseed oil extraction plants. Real difficulty arises because of the shifts on which they are supposed to work. Mostly the shifts are from 8.00 a.m. to 4.00 p.m., 4.00 p.m. to 12 midnight and 12 midnight to 8.00 a.m. The area surrounding Damnagar is principally cotton-growing area. Therefore, during the season, the plants work 24 hours a day and this is the time during which there is an extreme dearth of workmen and because of the working in shifts, women cannot be engaged between 7.00 p.m. and 6.00 a.m. in view of the prohibition of Section 66(1)(b) of the Act, and during the morning and noon hours, they have to take care of their school-going children. As a result of this, they are unable to engage themselves in any kind of economic activity. Women of that area, are thus, constrained to be unemployed only because of the statutory prohibition imposed by Section 66(1)(b) of the Act.
3. The case made out by the petitioners in Special Civil Application No. 11532 of 2013 is as follows:
3.1 The petitioners are women of tribal areas of District Valsad. Some of the petitioners are unskilled labours whereas some others are qualified individuals. Respondent No. 3 is a Company registered under the Companies Act, 1956 and is engaged in the manufacturing activities of various food products like wafers, etc. under the brand name “Balaji”. Respondent No. 3 is having its factory near village Dungri of Valsad District. The respondent has been employing tribal women in its factories on a mass scale and has been providing special facilities to such women workers of the factory.
3.2 According to the petitioners, in the tribal areas of Valsad District dominated by Dhedia Patel and other small tribal communities, it is a known phenomenon that the major, and in some case, the sole breadwinner of the entire family are female members. The petitioners have to attend to their daily domestic activities and thereafter the petitioners search for some suitable job/employment so that they can earn livelihood for their family. As such, the petitioners keep on enquiring with the factories situated within close vicinity
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