Kochi: The Kerala High Court has held that a qualified woman cannot be denied employment on the ground that the nature of the employment would require her to work during night hours.
Setting aside an embargo contained in a job notification issued by public sector undertaking Kerala Minerals and Metals Limited, which allowed only male candidates to apply for the post, Justice Anu Sivaraman ruled that protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.
The court gave the verdict on April9 in a plea by a 25-year-old woman engineering graduate in Safety and Fire Engineering, challenging the male only provisions in a notification inviting applications for the permanent post of Safety Officer available in the company.
Treasa Josfine sought to set aside Section 66(1)(b) of the Factories Act, 1948,contending that it denies the right of the petitioner to participate in the selection for appointment as Safety Officer.
The petitioner also contended that the provision is violative of the valuable rights guaranteed to her under Articles 14, 15 and 16 of the Constitution.
The court observed 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 at night 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 homemakers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres".
"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 court said.
The court noted the decision in Hindustan Latex Ltd's case and the subsequent laying down of the law by the Apex Court, which made it abundantly clear that 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.
"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.
It opined that the embargo contained in the notification that 'only male candidates can apply' is violative of the provisions of Articles 14, 15 and 16 of the Constitution.
"The said provision in the notification is, therefore, set aside," the court said.
It also said the finding of the Division Bench that the provisions of Section 66(1)(b) of the Factories Act 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 and directed the Managing Director of KMML to consider her application for appointment to the post, notwithstanding the provisions of Section 66(1)(b) of the Factories Act, 1948.
The court also directed that appropriate action be taken without further delay.
