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2021 Supreme(Ker) 395
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anu Sivaraman, J.
Treasa Josfine – Petitioner
Versus
State of Kerala, Represented by The Chief Secretary – Respondent
WP(C).No.25092 of 2020(J)
Decided On : 09-04-2021
Advocate Appeared:
For the Petitioner: Sri. P.R. Milton, Sri.George, Varghese (Manachirackel), Advs.
For the Respondent: Sri. Bijoy Chandran, Sr.Government Pleader, Smt.Latha Anand, Adv., Sri.P.Vijayakumar, ASGI
Point of Law: Service Law - An absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution - 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.
Headnote:
Constitution of India, 1950 – Article 14, 15 and 16 – Factories Act, 1948 – Section 66 – Post of safety officer – Women - To 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. – 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. – 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 –
Finding of the Court:
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 court, 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. – Court is 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. – Said provision in Ext.P7 notification is, therefore, set aside. – Court reiterate the finding of the Division Bench that the provisions of Section 66(1)(b) are only protective in nature. – Court 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. – 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. – 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. –
Result: Ordered Accordingly
JUDGMENT :
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 2nd respondent, a public sector undertaking under the State of Kerala, has engaged the petitioner as Graduate Engineer Trainee (Safety) and 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 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 aside.
4. A counter affidavit has been placed on record by the 2nd 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 Trainee (Safety) is 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 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 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 Kerala [2004 (5) SLR 28] and it was held that the provision is only a protective measure intended for the welfare of women and that it does no
