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Denying Appointment to women only on the ground that nature of the employment would require working during night hours is violative of Fundamental Rights: High Court of Kerala

A woman who is fully qualified cannot be denied 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. This remarkable judgment was passed by the Kerala High Court in the matter of TREASA JOSFINE V STATE OF KERALA & ANR. [WP(C). No. 25092 OF 2020] by Honourable Justice Anu Sivaraman.

This writ petition was filed to seek a writ of mandamus to call for the records for the post of safety officer and to declare Section 66(1)(b) of the Factories Act, 1948 as unconstitutional since it is violative of Article 14, 15 and 16 of the Constitution. Additionally, the petitioner also demanded the second respondent issue a fresh notification to the post of safety officer, incorporating the qualified Women Candidates.

The brief facts of the case are, petitioner is an engineering graduate in Safety and Fire Engineering whereas Respondent No. 2 is a public sector undertaking under the State of Kerala. The petitioner is engaged as Graduate Engineer Trainee (Safety) and the permanent post of Safety Officer was available for which applications were sought by the company but it was limited to only male candidates which were contended to be violative of Fundamental Rights.

Whereas the respondents stated that the post of Safety Officer is a statutory post and 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. Graduate Engineer Trainee (Safety) is required to work only from 9 a.m. to 5 p.m. whereas Safety Officer is around the clock post and person engaged as Safety Officer will have to work even during night time which was affirmed by the Director. Thus, there was no illegality in excluding women from applying for the post of Safety Officer.

The Court relied on Hindustan Latex Ltd. v. Maniamma [1994 (2) KLT 111] to contemplate upon the issue related to Section 66(1)(b) and stated that the provisions of Section 66(1)(b) can only be protected against exploitation of a woman worker by requiring her to work during night hours without her consent. The Court also observed the judgment in Omana Oomen v. F.A.C.T. Ltd. [1990 (1) KLT 614] and Leela v. State of Kerala [2004 (5) SLR 28] and observed that the provision of Section 66(1)(b) embodies a special provision in favor of women and does not suffer from the vice of discrimination.

It was further observed that “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 the 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 the night time could only be seen as exploitative and violative of her rights. But with development and advancement, women have been engaged in several professions requiring round the clock labor and have proved themselves quite capable of facing the challenges of such engagement.”

The Court also added that “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

Thus, the High Court held that the requirement ‘only male candidates can apply’ is violative of the provisions of Articles 14, 15, and 16 of the Constitution, and Section 66(1)(b) is only protective in nature. Hence, the court ordered the respondents to consider the women ‘s application as well.

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