"Protectionism Operating Against Women's Interest To Be Viewed With Reservation": Kerala HC Declines Stay On Quash Of 'Men Only' Job Condition

A Division Bench of Justices Devan Ramachandran and MR Anitha were considering an appeal preferred by the Managing Director of the Kerala Minerals &Metals Limited against the judgment.

The appellants argued that since Section 66(1)(b) of the Factories Act remained in force, the Single Judge could not have directed that the employment application of the woman, Treasa Josfine, be considered for a position involving 'work during night hours'.

Section 66(1)(b) reads –
no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.: 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 clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.

The Division Bench, however, emphasized its prima facie opinion that the provision was not intended to curb opportunities available to women.

In any case, the Court opined, protectionism prescribed seemingly in favour of women would have to be viewed with serious reservation, despite how 'lustrous' such provisions seemed 'at first look'.

"On account of the change of circumstances over the last several years, protectionism prescribed seemingly in favour of women, to the extent to which it operates against their interests, will certainly have to be viewed with serious reservation," the Court said.

The Bench went on to impress that it was imperative upon employers to provide workplaces with sufficient protection so that women employed by them could work at all times.

"Otherwise, Women will continue to be under the proverbial "glass ceiling" for all time," the Court pointed out.

Holding that the Bench would not be justified in staying the judgment, it proceeded to admit the appeal nevertheless, since a question of law was invoked.

The matter was therefore directed to be posted for consideration on June 14, 2021.

A Single Judge Bench comprising of Justice Anu Sivaraman recently held that a woman who is fully qualified cannot be denied of her right to be considered for employment on the ground that she is a woman and because the nature of the employment would require her to work during night hours.

Protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible, the Judge had ruled.

With these observations, the Single Judge set aside an embargo contained in a job notification issued by Kerala Minerals and Metals Limited which allowed only male candidates to apply for the post. The Single Judge took the view that the embargo is violative of the provisions of Articles 14, 15 and 16 of the Constitution.

"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 Court had said.

"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", Justice Sivaraman additionally stated.

Treasa Josfine, an engineering graduate in Safety and Fire Engineering was engaged by Kerala Minerals and Metals Limited, a public sector undertaking under the State of Kerala, as Graduate Engineer Trainee (Safety). In her writ petition, she challenged a notification inviting applications for the permanent post of Safety Officer available in the company to the extent it stated that only male candidates need apply for the post, on the ground that it is discriminatory and that her right for being considered for appointment as Safety Officer is violated due to the said provision.