In Treasa Josfine v. State of Kerala & Ors., the Kerala High Court on 9^th April 2021 set aside an embargo contained in a job notification issued by Kerala Minerals and Metals Limited (Respondent No. 2) that ‘only male candidates can apply’, as being violative of the provisions of Articles 14, 15 and 16 of the Constitution and observed that “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 Respondent No. 2 had engaged the Petitioner as Graduate Engineer Trainee (Safety).  There was a permanent post of Safety Officer available in the company and a notification was published inviting applications for the said post which allowed only male candidates to apply.

The Petitioner approached the Court challenging the notification on the ground that it is discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer is violated due to the said provision. The petitioner further contended that any provision as contained in Section 66(1)(b) of the Factories Act, 1948 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.

The Respondent No. 2 filed a counter affidavit stating 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. They submitted that 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. Further, the Graduate Engineer Trainee (Safety) is required to work only from 9 a.m. to 5 p.m. However, the Safety Officer is a round the clock post and that the Safety Officer will have to work even during night time, if required.

The issue involved is simply whether the provisions contained in Section 66(1)(b) of the Factories Act, 1948 would stand in the way of the Respondent No. 2, considering the application of the Petitioner for appointment as Safety Officer.

The Court held that: –

1. 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 night time could only be seen as exploitative and violative of her rights.
2. We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry.
3. The Court relied on the decision of the Apex Court in Secretary, Ministry of Defence v. Babita Puniya and others [(2020) 7 SCC 469] and observed that 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, is completely untenable and unacceptable.
4. 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.
5. Therefore, the Court set aside set aside the embargo contained in a job notification as being violative of the provisions of Articles 14, 15 and 16 of the Constitution.
6. The provisions of Section 66(1)(b) are only protective in nature. Such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.

– Esha Shah, Paralegal