Kerala HC Rules Women can't be Denied Jobs citing Night Hours

By: WE Staff | Tuesday, 20 April 2021

The Kerala High Court ruled that a rightfully eligible woman cannot be refused jobs based on her gender simply because the nature of the job requires her to work at night.

Kerala Minerals and Metals, a state-owned company based in Kollam, posted a work advertisement for a permanent position of Safety Officer in the fire department, stating that only men are eligible to apply. Treasa Josfine, a twenty-five-year-old woman, challenged this in court. Josfine had also spent 1.5 years as a graduate engineer trainee with the same company.

Justice Anu Sivaraman who passed the order in the petitioner’s favour noted that this restriction violates Article 14 (equality for all persons), 15 (No discrimination based on religion, race, sex, caste, or place of birth), and 16 ( right to equal opportunity in the matters of public employment) of the Indian constitution.

In the counter affidavit, the PSU's counsel claimed that the position of Safety Officer is a statutory position and that Section 66 (1) (b) of the Factories Act, 1948 states that no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m. It took the help of Section 66(1)(b) of the Factories Act, which sets out social welfare guidelines and the safety of employees., to argue that the work of a safety officer is a 24-hour job.

“It is the bounden duty of respondents to take all appropriate steps to see that a woman worker is able to carry out duties assigned to her at all hours, safely and conveniently. Protective provisions cannot stand in the way of a woman not being considered for employment for which she is otherwise eligible,” the single bench of Justice Anu Sivaraman observed.

"If that be so, there would be no reason for denying appointments to a qualified hand only on the ground that she is a woman and because the nature of the employment world requires her to work during night hours," the order stated.

The court ordered the company to consider the petitioner's application for appointment to the post of safety officer, stating that Section 66(1)(b) of the Factories Act is a security provision that should not be used to refuse a job to a woman. For the petitioner, P R Milton and Adv George Varghese Manachirackel appeared.

The Madras & Gujarat High Court ruled Section 66(1)(b) of the Factories Act, 1948, unconstitutional in 2018, citing that it is discriminatory and violates Article 15 of the Indian constitution which guarantees Fundamental Right to Equality.