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2021 Supreme(Online)(KER) 45405
HIGH COURT OF KERALA
ANU SIVARAMAN, J
TREASA JOSFINE – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/25092/2020
SRI.P.R.MILTON, SRI.GEORGE VARGHESE (MANACHIRACKEL), SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN, ADV. SMT.LATHA ANAND, SRI.P.VIJAYAKUMAR, ASGI
Provisions protecting women from night work cannot be used to deny their employment opportunities, reflecting the evolving role of women in society.
Headnote:
Discrimination - Employment - Factories Act 1948, Section 66(1)(b) - The court ruled that the exclusion of women from applying for a Safety Officer position based on Section 66(1)(b) is unconstitutional and violates Articles 14, 15, and 16 of the Constitution.
Fact of the Case:
The petitioner challenged the exclusion of women from applying for the post of Safety Officer, arguing it violated her constitutional rights due to the provisions of the Factories Act, which restricts women’s working hours.
Finding of the Court:
The court found that the exclusion of women in the notification was unconstitutional, emphasizing that existing protective provisions could not bar eligible women from consideration for employment.
Issues: Whether the provisions in Section 66(1)(b) of the Factories Act prevent considering women for the post of Safety Officer.
Ratio Decidendi: The court held that while Section 66(1)(b) is intended to protect women, it cannot be used to deny qualified women opportunities based solely on gender.
Final Decision: The writ petition is ordered in favor of the petitioner, allowing her application for the Safety Officer position to be considered.
JUDGMENT
Dated this the 9 t h 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 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 (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 (1)(b) had been considered by a Division Bench of this Court inLeela 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 wo
