Women Can't Be Denied Employment Saying Work Involves Night Hours :Kerala HC Quashes 'Only Males Can Apply' Condition

The Kerala High Court observed 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, Justice Anu Sivaraman observed.

The court 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 court said that the said 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 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 Anu Sivaraman added in the order.

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). 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. She also prayed for declaring section 66(1)(b) of the Factories Act, 1948 is unconstitutional as violative of Article 14, 15 and 16 of the Constitution. The said provisions stipulates no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.

The court, in its judgment refers to various earlier judgments in which it was held that the provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. 

"In the factual situation involved, we have to consider the fact that Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during night time could only be seen as exploitative and violative of her rights. Apparently, the World has moved forward and women who were relegated to the roles of home makers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres. We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including Health Care, Aviation and Information Technology. 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 court said.

The court also referred to recent Supreme Court decision in Secretary, Ministry of Defence v. Babita Puniya and others [(2020) 7 SCC 469] has declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution. It was held, the court noted, 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 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 Judge said.

The court observed that, though Section 66(1)(b) is only a protective provision, 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.

"The 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. 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 while directing the Company to consider the application submitted by the petitioner for appointment to the post of Safety Office.

Case: Treasa Josfine vs State Of Kerala [ WP(C).No.25092 OF 2020]
Coram: Justice Anu Sivaraman
Counsel: Adv PR Milton, Adv George Varghese

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