In a recent case, the High Court of Kerala observed that a fully qualified woman could not be denied her right to be considered for employment merely because she was a woman, and due to the nature of job, she would be required to work during the night.
Hon’ble Justice Anu Sivaraman remarked that protective provisions could not hinder a woman who otherwise would be eligible for employment.
Observing this, the Court set aside the bar mentioned in a job notification released by Kerala Minerals and Metals Limited, allowing only male candidates to apply for the said post.
According to the Court, this bar violated Article 15,16 and 14 of the Constitution.
The petitioner ( Treasa Josefine ) is an engineering graduate engaged by Minerals and Metals Limited as a Graduate Trainee Engineer.
Before the Court, she challenged a notification that invited applications for the post of safety officer; however, the notification stated that only male candidates need to apply.
According to the petitioner, this bar was discriminatory, and her right to be considered for employment was violated because of the provision. She also prayed the Court to declare Section 66(1)b of Factories Act as unconstitutional and violative of Articles 16,15, and 14. according to Section 66(1)(b), women can only work in factories between 6 AM and 7 PM.
Observations of the Court
The Court remarked that Factories Act was enacted when women working in a factory during night hours would be seen as violative and exploitive of their rights. However, nowadays, women worked in different industries across the globe at all hours and have proven themselves very capable, and their contribution cannot be ignored.
The Bench also referred to Secretary, Ministry of Defence vs Babita Puniya and others wherein the Apex Court had observed that a bar on women seeking command appointments was violative of the right to equality guaranteed as per Article 14 of the Constitution.
Lastly, the Court remarked that even though Section 66(1)(b) was a protective measure, it cannot be used as an excuse to deny employment to a woman who doesn’t need protection.
Case Detail: Treasa Josfine vs State Of Kerala [ WP(C).No.25092 OF 2020]Coram: Justice Anu SivaramanCounsel: Adv PR Milton, Adv George Varghese