THROUGH her judgment in the case –Treasa Josfine v. State of Kerala, delivered on April 9, 2021, Justice Anu Sivaraman at the Kerala High Court, Eranakulam, has done her bit to provide much needed substance to the much talked about, a little hollow concept of empowerment of women, which receives lot of lip-service without required visible progress, as it is suffering lot of sabotage from within due to our obsolete mindset. Referring to the basic contention of the State Government that the provisions of section 66(1)(b) of the Factories Act, 1948 are beneficial in nature and are intended to protect women from exploitation, the Court has commented that in the factual situation involved, the Court has 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 nighttime 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 them quite capable of facing the challenges of such engagement. The apex court has declared in its decision of the case- Secretary of Defence v. Babita Puniya and Others –(2020) 7 SCC 469, that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution.

 

It was held that submissions based on stereotypes premised on assumptions about socially ascribed roles result in gender discrimination against women and violates their fundamental rights. In the present scenario, to say that a graduate engineer in safety engineering cannot be considered for appointment as a Safety Officer in public sector undertaking because of an offending provision under section 66(1)(b) of the Factories Act, according to me (the Judge), 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 HC has conceded that another division bench of the HC in Kerala has 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. The subsequent decisions of the Supreme Court 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 of the nature of the employment would require her to work during night hours. It was submitted to the Kerala HC that the petitioner-woman is an engineering graduate in Safety and Fire Engineering. The respondent-State Undertaking – Kerala Minerals and Metals Ltd. has engaged her as Graduate Engineer Trainee (Safety) and she had worked as such for the period from November 19, 2018 to November 18, 2019 and from November 26, 2019 to May 25, 2020. It has been submitted that there is a permanent post of Safety Officer available in the company. By Exhibit 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 the HC, challenging the said provision in the notification on the ground that it is discriminatory and the right of the petitioner for being considered for appointment as Safety Officer is violated due to the said provision. The petitioner has also contended that any provision as contained in section 66(1) (b) of the Factories Act, 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.

 

In the counter-affidavit filed by the respondent-employer Company, it has been 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), women employees shall not be required or permitted to work except between 6 am and 7 pm. However, it was submitted that Safety Officer is a round the clock post. The HC has held in view of the facts and circumstances of the case that the embargo contained in Exhibit 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, has been set aside by the HC. The Single Judge reiterated the finding of the HC’s division bench that the provisions of section 66(1)(b) are only protective in nature.

 

Further, the HC made it clear that such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible. Further, the HC has directed the respondent –Company to consider the application submitted by the petitioner for appointment to the post of Safety Officer, notwithstanding the provisions of section 66(1)(b) of the Factories Act,1948. The HC has also directed that appropriate action should be taken without further delay.