Ker HC | S. 66(1)(5) of Factories Act: Protective Provision or not? Can this provision act as a hurdle in the way of a woman being considered for employment? Employment Opportunity only for Male Candidates v. Female Candidates [Detailed Report]

Kerala High Court

Kerala High Court: Anu Sivaraman, J., reiterated the provision of Section 66(1)(b) of the Factories Act, 1948 are protective in nature and further expressed that:

“…such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.”

Factual Matrix

Petitioner who was an engineering graduate in Safety and fore Engineering was engaged with respondent 2, a Public Sector Undertaking under the State of Kerala.

It was submitted that a permanent post of Safety Officer was available in the company and a notification stating that only male candidates shall apply, or the post was published.

Challenging the above-stated provision, petitioner approached the Court on the ground that it was discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer was violated due to the said provision.

Adding to the above, it was 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 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 it was liable to be set aside.

Issue for consideration in the present case was as follows:

Whether the provisions contained in Section 66(1)(b) of the Factories Act, 1948 would stand in the way of the 2nd respondent considering the application of the petitioner for appointment as Safety Officer?

Section 66 reads as follows:-

“66. Further restrictions on employment of women – (1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:-

(a) no exemption from the provisions of section 54 may be granted in respect of any woman;

(b) 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.;

(c) there shall be no change of shifts except after a weekly holiday or any other holiday.

(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish-curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to, or deterioration in, any raw material.

(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.”

Division Bench of this Court in Hindustan Latex Ltd. v. Maniamma, 1994 (2) KLT 111 held that the provisions of Section 66(1)(b) can only be protection against exploitation of woman workers by requiring her to work during night hours without her consent.

In the above-cited case, it was also held that:

“…in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b), the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for”

In Leela v. State of Kerala [2004 (5) SLR 28], a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. Division Bench held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision that enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories.

The decision of the Andhra Pradesh High Court in K.S. Triveni v. Union of India [2002 Lab.I.C. 1714] and that the Madras High Court in Vasantha R. v. Union of India [2001-II-LLJ 843] as well as of this Court in Rajamma v. State of Kerala [1983 KLT 457] were considered and it was held that in the case on hand, there was no discrimination based on sex. The contentions were, therefore, rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination.

Adding to the above, it was stated that Andhra Pradesh High Court had also an occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time.

Bench noted 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.

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.

It was also observed that 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.

Supreme Court’s decision in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469, declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution.

Coming to the present scenario, to say that a graduate engineer in safety engineering cannot be considered for the appointment because of an offending provision under Section 66(1)(b) of the Factories Act was completely untenable and unacceptable.

The above is evident from the fact that State of Kerala had approved an amendment to the Rules which permitted the engagement of women on the condition that all safety precautions and facilities for such engagement were arranged by the employer.

Division Bench of this Court has earlier in a case held that Section 66(1)(b) is only a protective provision.

Hence the above said Section cannot be an excuse for denying engagement to a woman who does not require such protection anymore.

Bench in view of the above discussion held that it is the bounden duty of respondents who are Government and Government Functionaries to take all appropriate steps to see that a woman was able to carry out the duties assigned to her at all hours, safely and conveniently.

Therefore, the embargo contained in exhibit 7 stating that “only male candidates can apply” was violative of the provisions of Articles 14, 15 and 16 of the Constitution of India. Hence it was set aside.

While concluding, Court directed 2nd respondent to consider the petitioner’s application for appointment to the post of Safety Officer.

The Petition was disposed of above terms. [Treasa Josfine v. State of Kerala, WP (C) No. 25092 of 2020 (J), decided on 09-04-2021]


Advocates before the Court:

For the petitioner: Sri P.R. Milton and Sri George Varghese (Manachirackel)

For the respondents:

R1 By Sr. Government Pleader and Sri Bijoy Chandran
R2 By Adv. Smt. Latha Anand
R3 By Sri P.Vijayakumar, ASGI

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