Bhaskar Bhattacharya, CJ.
1. All these three Special Civil Applications were taken up and heard together as a common question of law is involved in all these matters, viz. whether Section 66(1) (b) of the Factories Act, 1948 [the Act hereafter] and it s proviso are ultra vires the Constitution of India being violative of Articles 14, 15, 16, 19(1) (g) and 21 of the Constitution of India.
1.1 In Special Civil Application No. 11533 of 2013, an additional, alternative prayer has been made for a direction upon the State-respondent to issue appropriate notification as provided in the proviso to sub-section (b) of Section 66(1) of the Act enabling the petitioners to permit / employ women employees to work up to 10.00 p.m.
2. The facts stated in Special Civil Application No. 2984 of 2012 may be summarized thus:
2.1 The petitioner is a Public Charitable Trust registered under the provisions of the Bombay Public Trust Act, 1950 and is engaged in the activity of upliftment of women and is active in the creation of employment for women and protection of their interest in general. The petitioner trust works for the creation of employment for women in the District of Amreli and is active in the filed of protection of interest of women in the matter of employment and social issues. Amreli District, and in particular, Damnagar Town, is the main centre of activity of the petitioner Trust. The economy of Amreli District is largely based on agriculture and agriculture-based industries. The main crop is cotton. Families which are having agricultural fields or are engaged in other ancillary activities are more or less well off. Male members of the rest of the families have to migrate to other major cities in search of employment, leaving their families at local level. Female folk are constrained to work either at small diamond polishing centres or cotton Gins or cottonseed oil extraction plants. Real difficulty arises because of the shifts on which they are supposed to work. Mostly the shifts are from 8.00 a.m. to 4.00 p.m., 4.00 p.m. to 12 midnight and 12 midnight to 8.00 a.m. . The area surrounding Damnagar is principally cotton-growing area. Therefore, during the season, the plants work 24 hours a day and this is the time during which there is an extreme dearth of workmen and because of the working in shifts, women cannot be engaged between 7.00 p.m. and 6.00 a.m. in view of the prohibition of section 66(1)(b) of the Act, and during the morning and noon hours, they have to take care of their school-going children. As a result of this, they are unable to engage themselves in any kind of economic activity. Women of that area, are thus, constrained to be unemployed only because of the statutory prohibition imposed by section 66(1)(b) of the Act.
3. The case made out by the petitioners in Special Civil Application No. 11532 of 2013 is as follows:
3.1 The petitioners are women of tribal areas of District Valsad. Some of the petitioners are unskilled labours whereas some others are qualified individuals. Respondent No.3 is a Company registered under the Companies Act, 1956 and is engaged in the manufacturing activities of various food products like wafers, etc. under the brand name Balaji . Respondent No.3 is having its factory near village Dungri of Valsad District. The respondent has been employing tribal women in its factories on a mass scale and has been providing special facilities to such women workers of the factory.
3.2 According to the petitioners, in the tribal areas of Valsad District dominated by Dhedia Patel and other small tribal communities, it is a known phenomenon that the major, and in some case, the sole breadwinner of the entire family are female members. The petitioners have to attend to their daily domestic activities and thereafter the petitioners search for some suitable job/employment so that they can earn livelihood for their family. As such, the petitioners keep on enquiring with the factories situated within close vicinity of their villages for job vacancies. However, time and again, it is informed by the management of such factories/establishments that in view of the embargo put by section 66(1)(b) of the Act, they are not able to engage the petitioners and other female workers as the timings prescribed in the said section is such that it comes in the way of the owners of the factories in employing them in more than one shifts. It has been conveyed that the rigour of the said section entailed criminal action and exposes the factory owners / management to criminal cases in case of slightest variation. This directly affects the job opportunities of the petitioners and results in the denial of employment on the ground of gender.
3.3 According to the petitioners, sometimes the shifts in the factories are fixed keeping in view the availability of electricity, transport facility, distance from the prime localities etc. in which case, the second shift may end beyond 7.00 p.m. while third shift starts and ends mainly during the night hours. Hence the embargo created by the impugned section makes it restrictive to employ women employees in such shifts. On the other hand, it may happen that all the women workers may not be able to work in the first shift owing to the capacity of a particular factory unit, as also because of domestic commitments of women including fetching water, milking animals, taking care of children, attending cultivation work etc. Hence, the petitioners make applications to the nearby factories to permit them to work in the night shifts. As a matter of fact, more than 200 women from tribal areas have made such applications to the respondent No.3 and like factories. However, the respondent has shown inability to permit the petitioners to work in the 2nd or night shift because of restrictions imposed by virtue of the impugned section.
4. Similarly, the case made out by the petitioners in Special Civil Application No. 11533 of 2013 may be summed up thus:
4.1 The petitioners, for its manufacturing activities, are engaging both male and female employees in its factory. Since the petitioners are engaged in the business of manufacturing food products, as a market trend and owing to various reasons, the petitioners are mainly engaging female workers. As such, out of approximately 825 direct employees, almost 535 employees are female. The work includes testing of the raw materials, mixing of ingredients, spices etc., supervising the cooking process, operating machineries at the appropriate time, packaging the products etc., which is performed by female employees better and more effectively and efficiently than male employees.
4.2 The factory of the petitioners is situated in a tribal area of Valsad District dominated by Dhedia Patel and other small tribal communities. It is a known phenomenon that in tribal communities, the major, and in some cases, the sole breadwinner of the entire family is the female members. Female employees of the petitioners are mainly from such tribal villages/areas in the vicinity of almost 30 to 50 kms. from the factory. Hence because of the employment with the petitioners, the socio-economic status of the said tribal families has witnessed a positive growth and change since the past few years.
4.3 Ever since the inception of the establishment of the factory in question, there has not been any untoward incident in the factory premises where any female worker has faced any problem of sexual harassment or of any other nature. This is also because of the fact that almost all the staff including workers, labourers, managerial and supervisory, and security personnel, etc. are women. Moreover, the petitioners by providing extra facilities are safeguarding measures to such women employees such as free transportation from their respective villages, providing free medical treatment at the factory as also, in almost five designated clinics in different villages. Moreover, for the women having children, a child-care-centre is also provided in the factory premises. The workers are provided with R.O. drinking water and are also given uniform by the Company. In case of ill-health of a worker during working hours, special transportation is also provided to drop the particular employee at his/her place. In addition thereto, the workers are provided with hygienic food at the rate of Rs.10/- per plate at the Canteen and free tea twice during a shift. This is the reason that the petitioner-Company is always flooded with applications from women from nearby villages who are willing to work in the petitioners factory in the day as well as in the night shifts.
4.4 The petitioners had also received written applications from almost 340 women employees requesting the management to permit them to work in night shift so that they can earn additional income and/or can come for work at their convenient timings. The petitioners, by communication dated 1st August 2012 addressed to the Director of Industrial Safety and Health, Ahmedabad, with a copy to other concerned authorities, sought permission to allow women workers to work in night shifts. However, no decision was taken by the concerned authorities on the said application. The petitioners were under a bona fide impression that the petitioners can employ women employees beyond 7.00 p.m. and not after 10.00 p.m. Hence, certain women employees were permitted to work till 8.00 p.m.
4.5 On 20th July 2012, the officers from the office of the respondent No.3 inspected the factory premises of the petitioners and it was alleged that the petitioners are permitting women employees to work during night hours. Consequently, a notice dated 7th August 2012 came to be issued to the petitioners.
4.6 Thereafter, again on 10th September 2012, the officers from the office of the respondent No.3 visited the factory and found that certain female workers were engaged in the activity of packing of wafers. Therefore, another notice dated 10th September 2012 was issued to the petitioners alleging breach of section 54 of the Act, which prohibits any employer to make any employee work beyond nine hours. Written explanation in response to the same was sought from the petitioners. Accordingly, the petitioners had submitted their written explanation dated 20th September 2012 wherein it was clarified that no employee of the petitioners were allowed to work in excess of nine hours. However, it was stated that in the circumstances when the pick-up transportation services arrives late, such employees waiting for the transportation have to wait in the factory premises after their working hours but it does not mean that the petitioners are taking work from such employees after 5.00 p.m.
4.7 The explanation was not accepted by the respondent No.3, and accordingly, the same was communicated to the petitioners by the communication dated 27th September 2012. In view of non-acceptance of the explanation and alleging breach of section 54 of the Act, the respondent No.3 filed various criminal cases against the concerned persons of the petitioner-Company before the Court of the learned Judicial Magistrate, Valsad.
4.8 Since the respondents No.2 and 3 were not taking any decision on various applications/representations made by the petitioners to permit women employees in the night shift, ultimately, the petitioners made a detailed representation / application to the respondent No.2 under section 66(1) (b) of the Act, specifically requesting the Government to issue a notification declaring relaxation in the working hours of women employees permitting them to work in the night shift. The petitioners had also referred to the notification issued by the Madhya Pradesh State. In addition to the said application, the petitioners had also written to the Director, Industrial Safety and Health, Ahmedabad on 9th January 2013 contending inter alia that with effect from 1st January 2013, the petitioners are not taking any work from women employees in the night shift and the manufacturing process requires about 200 women employees to work up to 10.00 p.m. It was, therefore, requested to permit the petitioners to allow women employees to work up to 10.00 p.m. on condition that the petitioners would provide them free transportation and ensure fullest security measures.
4.9 A copy of the application dated 9th January 2013 given by the petitioners to the respondent No.2 was also sent by registered post AD to the respondent No.3 on 18th January 2013 and in response thereto, the respondent No.3 called upon the petitioners by communication dated 31st January 2013 to submit written consent of such women workers willing to work in night shift. In reply to the said letter, the petitioners responded on 1st February 2012 with consent letters of 484 women employees willing to work in night shift and requested the authority to issue a notification at the earliest.
4.10 Despite the above facts and circumstances and ignoring the willingness of the women employees to work in night shift and / or beyond 7.00 p.m., the respondent No.2, by communication dated 1st June 2013 rejected the request of the petitioners for issue of a notification as contemplated under section 66(1)(b) of the Act. The said decision has been passed, according to the petitioners, without recording any reasons for arriving at it. None of the representations of the petitioners appear to have been considered by the respondent No.2, according to the petitioners. The Government has, thus, refused to exercise the discretion which it possesses, without giving any cogent reasons for doing so.
4.11 In the above situation, the petitioners have approached this Court by way of the present petition by contending that the impugned section clearly discriminates women on the basis of gender and hence, violates the very fundamental rights of women. It has also been contended that the State Government does have the authority to issue appropriate notification relaxing the timings for female employees; however, none of the above contentions are considered by the authorities.
5. In all these matters, in addition to the notices issued upon the respondents, this Court also directed to issue notice upon the learned Attorney General of India as the prayer was for declaration that section 66(1)(b) of the Act and its proviso are ultra vires the Constitution of India. Pursuant to such notice, Mr. Anshin Desai has appeared for the Union of India. Mr. Parth Bhatt, the learned Assistant Government Pleader has appeared on behalf of the respondent-State.
6. Mr. Mihir Joshi, the learned Senior Advocate, has made submissions on behalf of the petitioners in Special Civil Applications No. 11532 of 2013 and No. 11533 of 2013 while Mr. Gautam Joshi, the learned advocate, has argued on behalf of the petitioner in Special Civil Application No. 2984 of 2012.
7. The submissions made on behalf of the petitioners may be summed up thus:
[a]. Section 66(1)(b) of the Act is ultra vires Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India inasmuch as it discriminates the factory workers based on gender only and such gender discrimination is absolutely irrational, arbitrary, outdated and without any base or nexus which can be related to the object sought to be achieved.
[b]. Section 66(1) (b) of the Act is a clear case of denial of employment only on the ground of gender. Even the proviso to Section 66(1)(b) of the Act, which enables the State Government to grant exemption only to a limited extent, also suffers from the vice of arbitrariness and the same is unreasonable, irrational, meaningless and hence, ultra vires Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India.
[c]. Gender classification indicated above, although appears to be superficially favouring the women, is nothing but a piece of legislation imposed by male-dominant society whereby the men want to restrict the women to household activities and impose artificial restrictions which is violative of Articles 15 and 16 of the Constitution of India.
[d]. Although the provision ostensibly appears to be beneficial to women, is only a pretext for sex-based discrimination, and, when women are recruited in the Police, Army, Air Force and various avocations and professions, there is no justification for not allowing women to work in the night shift in the factories as long as adequate safeguards and protections are afforded to them, and if the women voluntarily come forward to work in the night shift for their own reasons, the same cannot be denied only on the ground of gender.
[e]. Even assuming that Section 66(1)(b) of the Act is valid, the proviso to sub-section should have enabled the State Government to relax the rigour of the said section by varying the timings for women workers so that they are permitted to work in all factories even on night-shift subject to the safeguards to prevent exploitation of women. However, the said proviso empowers the State Government to relax the rigour of the section marginally and the exercise of the power of relaxation only with respect to a particular type of industry, and therefore, the said proviso also has to be declared as unconstitutional. The statutory provision itself confer powers to the State Government to frame rules to exempt women from working only in the fish-curing and fish-canning factories and thus, it has restricted the powers of the State Government to exempt women working in other factories from the purview of Section 66(2) of the Act.
[f]. Such classification between the women workers employed in fish-curing and fish-caning factories on one hand and the women workers employed in other factories on the other hand is discriminatory, and there is no reasonable nexus for such a classification with the object sought to be achieved and hence, the said proviso is also arbitrary and violative of Articles 14 and 15 of the Constitution of India and unconstitutional.
[g]. Such restriction is nothing but the reflection of the mentality of male chauvinism and it has not allowed women a fair share in power and attaining economic independence though various other constitutional amendments have been introduced providing reservation of seats to women in public life, such as election of women to Panchayats and Municipalities and for other local bodies.
[h]. The basis for the provisions of reservation of 1/3rd seats is found in the convention No. 89 of the International Labour Organization to which the Government of India is also a signatory. Even the conditions of work published by International Labour Office, Geneva with respect to the prohibition of the work during night, while summarizing the legal provisions, has clearly indicated that in several countries, laws prohibiting the work during night by the women workers have been repealed or significantly relaxed.
[i]. By way of reference to the provisions of the Act in Chapter VI, it appears that provisions have been made with respect to the regulation of working hours of adults. Section 51 prescribes that no adult worker shall be required or allowed to work in a factory for more than 48 hours in a week. Section 52 provides that no adult worker shall be required or allowed to work in a factory on the first day of the week which is subject to certain exemptions. Section 53 provides for compensatory holidays. Section 54 prescribes that subject to section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day. Section 55 provides for intervals for rest of at least half an hour. Section 57 provides where a worker in a factory works on a shift which exceeds beyond midnight for the purposes of sections 52 and 53, a holiday for a whole day shall mean in his case a period of 24 consecutive hours beginning when his shift ends. Section 58 prohibits overlapping of shifts and section 59 provides for payment of extra wages for over time. Section 61 provides for a notice board being maintained indicating the hours of work, shift etc. in every factory. Section 62 provides for maintenance of a register of adult workers. Section 65 enables the State Government to grant exemptions.
[j]. Except in section 66, the restriction or regulation or privileges or obligations imposed are identical in all respects and there is no difference from one worker to another, be it a male or a female. Only in section 66 of the Act, a discrimination is introduced and Section 66(1) (b) of the Act provides that no women shall be required or allowed to work in any factory except between the hours 6.00 a.m. and 7.00 p.m.
[k]. An analysis of section 66 would disclose that no exemption has been granted from the provisions of daily hours of work under section 54 and no women shall be required or allowed to work in any factory except between 6.00 a.m. and 7.00 p.m. which restriction is subject to grant of exemption by the State Government varying the limits between 10.00 p.m. and 5.00 a.m. .
[l]. By referring to the provisions of the Act, the learned advocates for the petitioners point out that the only factor which prohibits a woman worker being engaged during the night-shift or third shift is solely based on gender and not on any other factor which may come to the rescue of the respondents. Such an additional factor neither exists, nor is available, nor would it be even suggested by the respondents as to take the impugned provisions away from the clutches of Article 15 (1) of the Constitution.
7.1 The learned advocates for the petitioners, therefore, pray for a declaration that the above provision is ultra vires the provisions of Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution.
7.2 In support of their contentions, the learned advocates for the petitioners relied upon the following decisions:
1. TRIVENI K.S. v. UNION OF INDIA reported in 2002-III-ILJ 320 [ANDHRA PRADESH HIGH COURT].
2. VASANTHA R. v. UNION OF INDIA and ORS reported in (2001) II ILJ 843 [MADRAS HIGH COURT].
3. NATURAL TEXTILES PVT. LTD. v. THE UNION OF INDIAreported in 2007 (3) KAR LJ 286 [KARNATAKA HIGH COURT].
4. J.K. INDUSTRIES LTD. v. CHIEF INSPECTOR OF FACTORIES and BOILERS reported in (1996) 6 SCC 655.
5. VISHAKA v. STATE OF RAJASTHAN reported in (1997) 6 SCC 241.
6. ANUJ GARG V. HOTEL ASSOCIATION OF INDIA reported in AIR 2008 SC 663.
7. AIR INDIA CABIN CREW ASSOCN v. YESHAWINEE MERCHANTreported in AIR 2004 SC 187.
8. Mr. Desai, the learned advocate appearing on behalf of the Union of India, has, on the other hand, opposed the aforesaid contentions advanced on behalf of the petitioners and his submissions may be summarized thus:
[a]. The Kerala High Court in the case of LEELA V/S STATE OF KERALA [supra] has upheld the validity of section 66(1)(b) of the Act although the Madras High Court and Andhra Pradesh High Court have taken a different view holding that section 66(1)(b) of the Act is unconstitutional. Since the Kerala High Court has, after taking into consideration the decisions of both the Madras High Court and the Andhra Pradesh High Court decided not to accept the same, and the said decision of the Kerala High Court being the latest one, this Court should accept the decision of the Kerala High Court and declare the impugned provisions as intra vires the Constitution.
[b]. A proposal to amend section 66 of the Act is under active consideration of the Government of India and according to the proposed amendment, women workers will be allowed to work in factories in night shifts subject to conditions of adequate safeguards being provided to them.
[c]. The ILO adopted a protocol relating to Convention No.89, known as the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948. Under the provisions of the Protocol, the competent authority in a country under its national laws and regulations is authorized to modify the duration of the night shifts or to introduce exemption from prohibition within certain limits. Therefore, in view of the amendment to section 66 of the Act, a viable solution is in line and is awaiting final touches as per the principles laid down in ILO Protocol.
[d]. The contention of the petitioners that the impugned provision is ultra vires Articles 14, 15, 16, 19(1) (g) and 21 of the Constitution of India, gender discriminatory and irrational, arbitrary, outdated and without any base, is not tenable because the restrictions are only limited to night hours specified under provisions of section 66 of the Act, and during the day time, there is no restriction whatsoever imposed on employment of women in factories.
[e]. Further, the contention of the petitioners that the proviso to section 66(1)(b) of the Act restricting the State Government to authorize the employment of women workers between 10.00 p.m. and 5.00 a.m. is unconstitutional, is not tenable inasmuch as those have been incorporated in the larger interest for protecting the women workers, under the prevailing socio-economic conditions and also as per the ILO Convention 89 which was ratified by Government of India. Moreover, discretionary powers are vested with the State Governments to decide the same based on merits of every case.
[f]. The Parliament is contemplating to introduce an amendment to the Constitution of India for providing reservation of one third of seats to women in the Lok Sabha and also in all Legislative Assemblies and other Local Bodies at the State Level, as it has been realized that time has come for empowerment of women in the field of economy and employment. As the proposal to introduce the amendment to the Constitution of India for providing reservation to women being a protective measure, so is the restriction of women to work during night hours also intended for protection of women. Therefore, the petitioners contention that the impugned provisions of the Act are conservative, unconstitutional and ultra vires, is not correct. What has to be seen is the real intention of the Legislature of contemplating the prevailing conditions in the country at the time of enactment and as far as the protection of women is concerned, it cannot be said that the provisions, as has been sought to be challenged, has to be struck down by accepting a general principle of safety.
[g]. While enacting such provisions, public safety, safety of women etc. are all of prime consideration and historical reasons are behind the restriction of women being employed during night hours in order to afford protection to them and to prevent their exposure to danger at work place during night. The restrictions were necessitated to safeguard women and to protect them from exploitation and sexual harassment.
[h]. ILO adopted the convention No.89 concerning night work for woman in 1948. India ratified the convention on 27th February 1950. Article 3 of the Convention 89 states that women without distinction of all ages shall not be employed during the night hours in any public or private industrial undertaking or any branch thereof other than an undertaking in which only members of same family are employed.
[i]. Section 66(1)(b) of the Act restricts the employment of women between 7.00 p.m. and 6.00 a.m. . The proviso under section 66(1)(b) empowers the State Government to vary the limits and restricts employment of women between 10.00 p.m. and 5.00 a.m. Section 66(2) empowers the State Government to exempt from the restrictions set out in section 66(1) (b) of the Act. This exemption is specially given to fish-curing and fish-canning factories where employment of women beyond the hours specified are necessary to prevent damage to or deterioration of the raw material (fish). The above reasoning cannot be adopted to cotton industry based on the exemption clause.
[j]. The intention of the Legislature in enacting the above provision is to protect the dignity of women and to see that the women are safe while working in a factory. The restrictions were necessitated to safeguard women and to protect them from exploitation and sexual harassment.
[k]. Under the provisions of the Protocol relating to Convention No.89, known as the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948, the competent authority in a country under its national laws and regulations is authorized to modify the duration of the night shifts or to introduce exemption from prohibition within certain limits. The Protocol has since been ratified by India and has come into effect on 21st November, 2004. Therefore, in order to provide flexibility in the matter of employment of women during night, it is necessary to amend section 66 of the Act. It is, therefore, proposed to amend the said section so as to provide certain flexibilities. However, the employer has to ensure certain occupational safety and adequate protection to the women so employed. The proposed amendment will also result in optimal utilization of the installed capacity, promotion in exports and generation of employment opportunities for women.
[l]. The Act is a piece of social welfare legislation. It was enacted primarily with the object of protecting women employed in factories against the industrial and occupational hazards. The provisions are calculated to ensure that the workers are not subjected to long hours of strain. The working conditions should be humane. The Act promotes safety, health and sanitary conditions at the place of work. An appropriate work culture conducive to safety, health and happiness of workers is evolved through the provisions of the Act.
[m]. The impugned provision merely represents a social reality. It is calculated to ensure that women shall be able to take care of their families, their children do not suffer and equally it is calculated to ensure dignity in work, and that the women are not exposed to the hazards of working in night hours.
8.1 Mr. Desai, therefore, submitted that there is no necessity for declaring the impugned provision as ultra vires any of the Articles of the Constitution of India.
9. The only question, therefore, that arises for determination in these writ-applications is whether the provisions contained in section 66(1) (b) of the Act is ultra vires the provision of the Constitution of India.
10. In order to appreciate the aforesaid question, it will be profitable to refer to the following provisions of the Act:
42. Washing facilities. (1). In every factory
(a). adequate and suitable facilities for washing shall be provided and maintained for the use of the workers therein;
(b). separate and adequately screened facilities shall be provided for the use of male and female workers;
(c). such facilities shall be conveniently accessible and shall be kept clean.
(2). The State Government may, in respect of any factory or class or description of factories or of any manufacturing process, prescribe standards of adequate and suitable facilities for washing.
43. Facilities for storing and drying clothing.
The State Government may, in respect of any factory or class or description of factories, make rules requiring the provision therein of suitable places for keeping clothing not worn during working hours and for the drying of wet clothing.
44. Facilities for sitting.
(1). In every factory suitable arrangements for sitting shall be provided and maintained for all workers obliged to work in a standing position, in order that they may take advantage of any opportunities for rest which may occur in the course of their work.
(2). If, in the opinion of the Chief Inspector, the workers in any factory engaged in a particular manufacturing process or working in a particular room are able to do their work efficiently in a sitting position, he may, by order in writing, require the occupier of the factory to provide before a specified date such seating arrangements as may be practicable for all workers so engaged or working.
(3). The State Government may, by notification in the Official Gazette, declare that the provisions of sub-section (1) shall not apply to any specified factory or class or description of factories or to any specified manufacturing process.
45. First-aid appliances.
(1). There shall in every factory be provided and maintained so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the prescribed contents, and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed at any one time in the factory.
(2). Nothing except the prescribed contents shall be kept in a first-aid box or cupboard.
(3). Each first-aid box or cupboard shall be kept in the charge of a separate responsible person who holds a certificate in first-aid treatment recognised by the State Government and who shall always be readily available during the working hours of the factory.
(4). In every factory wherein more than five hundred workers are ordinarily employed] there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed and those facilities shall always be made readily available during the working hours of the factory.
46. Canteens.
(1). The State Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.
(2). Without prejudice to the generality of the foregoing power, such rules may provide for
(a). the date by which such canteen shall be provided;
(b). the standards in respect of construction, accommodation, furniture and other equipment of the canteen;
(c). the foodstuffs to be served therein and the charges which may be made therefore;
(d). the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen;
(dd). the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuffs and which shall be borne by the employer;
(e). the delegation to the Chief Inspector, subject to such conditions as may be prescribed, of the power to make rules under clause (c).
47. Shelters, rest rooms and lunch rooms.
(1). In every factory wherein more than one hundred and fifty workers are ordinarily employed, adequate and suitable shelters or rest rooms and a suitable lunch room, with provision for drinking water, where workers can eat meals brought by them, shall be provided and maintained for the use of the workers:
Provided that any canteen maintained in accordance with the provisions of section 46 shall be regarded as part of the requirements of this sub-section:
Provided further that where a lunch room exists no worker shall eat any food in the work room.
(2). The shelters or rest rooms or lunch rooms to be provided under sub-section (1) shall be sufficiently lighted and ventilated and shall be maintained in a cool and clean condition.
(3). The State Government may
(a). prescribe the standards in respect of construction, accommodation, furniture and other equipment of shelters, rest rooms and lunch rooms to be provided under this section;
(b). by notification in the Official Gazette, exempt any factory or class or description of factories from the requirements of this section.
48. Crehes.
(1). In every factory wherein more than thirty women workers are ordinarily employed there shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such women.
(2). Such rooms shall provide adequate accommodation, shall be adequately lighted and ventilated, shall be maintained in a clean and sanitary condition and shall be under the charge of women trained in the care of children and infants.
(3). The State Government may make rules
(a). prescribing the location and the standards in respect of construction, accommodation, furniture and other equipment of rooms to be provided under this section;
(b). requiring the provision in factories to which this section applies of additional facilities for the care of children belonging to women workers, including suitable provision of facilities for washing and changing their clothing;
(c). requiring the provision in any factory of free milk or refreshment or both for such children; requiring that facilities shall be given in any factory for the mothers of such children to feed them at the necessary intervals.
49. Welfare officers.
(1). In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of welfare officers as may be prescribed.
(2). The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub-section (1).
51. Weekly hours .-
No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week.
54. Daily hours.-
Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day:
Provided that, subject to the previous approval of the Chief Inspector, the daily maximum hours specified in this section may be exceeded in order to facilitate the change of shifts.
57. Night shifts.
Where a worker in a factory works on a shift which extends beyond midnight,
(a). for the purposes of sections 52 and 53, a holiday for a whole day shall mean in his case a period of twenty-four consecutive hours beginning when his shift ends;
(b). the following day for him shall be deemed to be the period of twenty-four hours beginning when such shift ends, and the hours he has worked after midnight shall be counted in the previous day.
58. Prohibition of overlapping shifts
(1). Work shall not be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers is engaged in work of the same kind at the same time.
(2). The State Government or subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt on such conditions as may be deemed expedient, any factory or class or description of factories or any department or section of a factory or any category or description of workers therein from the provisions of sub-section (1).
59. Extra wages for overtime.
(1). Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
(2). For the purposes of sub-section (1), ordinary rate of wages means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work.
(3). Where any workers in a factory are paid on a piecerate basis, the time rate shall be deemed to be equivalent to the daily average of their full-time earnings for the days on which they actually worked on the same or identical job during the month immediately preceding the calendar month during which the overtime work was done, and such time rates shall be deemed to be ordinary rates of wages of those workers:
Provided that in the case of a worker who has not worked in the immediately preceding calendar month on the same or identical job, the time rate shall be deemed to be equivalent to the daily average of the earning of the worker for the days on which he actually worked in the week in which the overtime work was done.
Explanation. For the purposes of this sub-section in computing the earnings for the days on which the worker actually worked such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of food grains and other articles, as the worker is for the time being entitled to, shall be included but any bonus or wages for overtime work payable in relation to the period with reference to which the earnings are being computed shall be excluded.
(4). The cash equivalent of
the advantage accruing through the concessional sale to a worker of food grains and other articles shall be computed as often as may be prescribed on the basis of the maximum quantity of food grains and other articles admissible to a standard family.
Explanation 1. Standard family means a family consisting of the worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.
Explanation 2. Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.
(5). The State Government may make rules prescribing
(a). the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of food grains and other articles shall be computed; and
(b). the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.
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.
The rules made under sub-section (2) shall remain in force for not more than three years at a time.
10.1 At this stage it will also be appropriate to refer to the following Provisions of the Constitution which are quoted below:
14. Equality before law.-
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1). The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2). No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a). access to shops, public restaurants, hotels and places of public entertainment; or
(b). the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3). Nothing in this article shall prevent the State from making any special provision for women and children.
(4). Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5). Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.
16. Equality of opportunity in matters of public employment.-
(1). There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3). Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State a Union territory prior to such employment or appointment.
(4). Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A). Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.
(4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
(5). Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
19. Protection of certain rights regarding freedom of speech, etc.-
(1). All citizens shall have the right-
(a). to freedom of speech and expression;
(b). to assemble peaceably and without arms;
(c). to form associations or unions;
(d). to move freely throughout the territory of India;
(e). to reside and settle in any part of the territory of India; and
(f) e [*****]
(g). to practise any profession, or to carry on any occupation, trade or business.
(2). Nothing in sub-clause
(a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
(3). Nothing in sub-clause
(b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4). Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5). Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6). Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-
(i). the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii). the carrying on by the State, or by a Corporation owned or controlled by State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
11. In our opinion, in considering whether a particular legislation is invalid, the writ-Court should follow the principles as laid down by the Supreme Court in the case of STATE OF MADHYA
PRADESH V. RAKESH KOHLI AND ANOTHER reported in (2012) 6 SCC 312, wherein the Apex Court considered various earlier decisions of the said Court laying down the circumstances in which a writ-Court can declare a statutory provision as ultra vires in the following manner:
"24. While dealing with the aspect as to how and when the power of the Court to declare the statute unconstitutional can be exercised, this Court referred to the earlier decision of this Court in Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23] and held in para 46 of the Report as under: (P. Laxmi Devi case, [(2008) 4 SCC 720] SCC p. 740)
"46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under Schedule VII List I, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt.
Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23], SCC para 6 : AIR para 6.
Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise."
11.1 Then in paras 56 and 57, the Court stated as follows: (P. Laxmi Devi case [(2008) 4 SCC 720], SCC p.744)
"56. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges personal preferences. The Court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step. As observed by this Court in State of Bihar v. Kameshwar Singh [AIR 1952 SC 252] (AIR p. 274, para 52)
52. . . The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence. . .
57. In our opinion, the Court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality."
25. The Constitution Bench of this Court in Mohd. Hanif Quareshi v. State of Bihar [AIR 1958 SC 731] while dealing with the meaning, scope and effect of Article 14, reiterated what was already explained in earlier decisions that to pass the test of permissible classification, two conditions must be fulfilled, namely,
(i). the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and such differentia must have rational relation to the object sought to be achieved by the statute in question.
The Court further stated that classification might be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
26. In Mohd. Hanif Quareshi [AIR 1958 SC 731], the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. It stated in para 15 of the Report as under : (AIR pp. 740-41)
"15. . . The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation."
27. The above legal position has been reiterated by a Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi [AIR 1959 SC 942].
28. In Hamdard Dawakhana v. Union of India [AIR 1960 SC 554], inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. [AIR 1955 SC 661] and Mahant Moti Das [AIR 1959 SC 942], it was observed in para 8 of the Report as follows : (Hamdard Dawakhana case [AIR 1960 SC 554], AIR p. 559)
"8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy. . ."
In Hamdard Dawakhana, the Court also followed the statement of law in Mahant Moti Das and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India [AIR 1951 SC 318] and State
of Bombay v. F. N. Balsara [AIR 1951 SC 318] and reiterated the principle that presumption was always in favour of constitutionality of an enactment.
29. In one of the recent cases in Karnataka Bank Ltd., [(2008) 2 SCC 254] while referring to some of the above decisions, in para 19 of the Report, this Court held as under: (SCC pp. 262-63)
"19. The rules that guide the constitutional Courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve it in favour of its validity . Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the Court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a Court may think of it. (See State of Bombay v. F.N. Balsara. [AIR 1951 SC 318])"
12. Bearing in mind the above principle we now propose to consider whether Section 66 (1) (b) of the Act violates any of the provisions of the Constitution.
13. A plain reading of Section 66 of the Act quoted above will indicate that by sub-section 1(b) thereof, a restriction has been imposed upon the employment of women in factories between 7 p.m. and 6 a.m. with a proviso 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 above time-limit only to the extent of permitting the women to work up to 10 p.m. and not beyond that or from 5 a.m. in stead of 6 a.m. but not earlier than 5 a.m. Sub-section (2) of Section 66, however, permits the State Government to make Rules providing for the exemption from the restriction set out in sub-section (1) to such extent and subject to such condition as it may prescribe for the 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 with further condition that such rule should not remain in force for more than three years at a time.
14. The question before us is whether the above restriction of employment of women during night can be supported in the light of the Constitutional Provisions contained in Article 14, 15, 16, 19(1) (g) and 21.
15. In our opinion, after the decision of the Supreme Court in the case of ANUJ GARG VS. HOTEL ASSOCIATION OF INDIA reported in AIR 2008 SC 663, there is no scope of upholding the provisions of Section 66(1) (b) as a valid piece of legislation.
15.1 In the case of ANUJ GARG VS. HOTEL ASSOCIATION OF INDIA (supra), the question before the Supreme Court was whether Section 30 of the Punjab Excise Act, 1914, which is a pre-constitution legislation, prohibiting employment of "any man under the age of 25 years" or "any woman" in any part of such premises in which liquor or intoxicating drug is consumed by the public was a valid piece of legislation after the coming into operation of the Constitution.
15.2 In the above context, Supreme Court made the following observations dealing with various contentions raised in support of such an enactment:
7. The Act is a pre-constitutional legislation. Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law.
While embarking on the questions raised, it may be pertinent to know that a statute although could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also international arena, such a law can also be declared invalid.In John Vallamattom and Anr. v. Union of India [(2003) 6 SCC 611], this Court, while referring to an amendment made in UK in relation to a provision which was in pari materia with Section 118 of Indian Succession Act, observed :
"The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretative changes of the statute affected by passage of time."
Referring to the changing legal scenario and having regard to the Declaration on the Right to Development adopted by the World Conference on Human Rights as also Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, it was held :
"33. It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26-1-1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation."
8. Changed social psyche and expectations are important factors to be considered in the upkeep of law. Decision on relevance will be more often a function of time we are operating in. Primacy to such transformation in constitutional rights analysis would not be out of place. It will be in fitness of the discussion to refer to the following text from "Habits of the Heart: Individualism and Commitment in American Life" by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S. Tipton, 1985, page 286 which suggests factoring in of such social changes.
"The transformation of our culture and our society would have to happen at a number of levels. If it occurred only in the minds of individuals (as to some degree it already has) it would be powerless. If it came only from the initiative of the State, it would be tyrannical. Personal transformation among large numbers is essential, and it must not only be a transformation of consciousness but must also involve individual action. But individuals need the nurture of crops that carry a moral tradition reinforcing their own aspirations.
These are commitments that require a new social ecology and a social movement dedicated to the idea of such a transformation."
15.3 While taking into consideration various International Treaties, the Supreme Court, in the above context made the following observations:
9. International treaties vis-Ã -vis the rights of women was noticed by this Court in a large number of judgments, some of which we may notice at this stage.
10. In Githa Hariharan v. Reserve Bank of India [(1999) 2 SCC 228], this Court was faced with construing Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of Guardians and Wards Act, 1890. The sections were challenged as violative of the equality clause of the Constitution, inasmuch as the mother of the minor is relegated to an inferior position on ground of sex alone since her right, as a natural guardian of the minor, is made cognizable only 'after' the father. The court relied upon the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ("CEDAW") and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. It was held by the court that the domestic courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them.
11. In Air India v. Nergesh Meerza [(1981) 4 SCC 335], this Court was faced with the constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations, it was provided that the services of the Air Hostesses would stand terminated on first pregnancy. The Court after considering various US Supreme Court judgments regarding pregnant women held that the observations made therein would apply to the domestic cases.
12. In Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr. [(2000) 3 SCC 224], the short question which was to be decided by this Court was whether having regard to the provisions contained in Maternity Benefit Act, 1961, women engaged on casual basis or on muster roll basis on daily wages and not only those in regular employment were eligible for maternity leave. The Court while upholding the right of the female workers to get maternity leave relied upon the doctrine of social justice as embodied in Universal Declaration of Human Rights Act, 1948 and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women held that the provisions of the same must be read into the service contracts of Municipal Corporation.
13. In Madhu Kishwar and Ors. v. State of Bihar and Ors. [(1996) 5 SCC 125], challenge was made to certain provisions of Chotanagpur Tenancy Act, 1908 providing succession to property in the male line in favour of the male on the premise that the provisions are discriminatory and unfair against women and, therefore, ultra vires the equality clause in the Constitution. The Court while upholding the fundamental right of the Tribal women to the right to livelihood held that the State was under an obligation to enforce the provisions of the Vienna Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which provided that discrimination against women violated the principles of equality of rights and respects for human dignity.
14. In Vishaka and Ors. v. State of Rajasthan and Ors. [(1997) 6 SCC 241], the writ petition was filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India with the aim of finding suitable methods for realization of the true concept of "gender equality"; and preventing sexual harassment of working women in all work places through judicial process to fill the vacuum in existing legislation. This Court while framing the guidelines and norms to be observed by the employers in work places to ensure the prevention of sexual harassment of women, inter alia, relied on the provisions in the Convention on the Elimination of All Forms of Discrimination Against Women as also the general recommendations of CEDAW for construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.
15. In Randhir Singh v. Union of India and Ors. [(1982) 1 SCC 618], this Court while holding that non-observance of the principle of 'equal pay for equal work' for both men and women under Article 39(d) of the Constitution amounted to violation of Articles 14 and 16, recognized that the principle was expressly recognized by all socialist systems of law including the Preamble to the Constitution of the International Labour Organization.
16. In Liverpool and London S.P. and I. Association Ltd. v. M.V. Sea Success I and Anr. [(2004) 9 SCC 512], this Court had to interpret the meaning and import of the word 'necessaries' used in Section 5 of the Admiralty Court Act, 1861. The Court while importing the meaning of the same through Foreign (American) Court decisions, opined - :
"It is true that this Court is not bound by the American decisions. The American decisions have merely a persuasive value but this Court would not hesitate in borrowing the principles if the same is in consonance with the scheme of Indian law keeping in view the changing global scenario. Global changes and outlook in trade and commerce could be a relevant factor. With the change of time, from narrow and pedantic approach, the court may resort to broad and liberal interpretation. What was not considered to be a necessity a century back, may be held to be so now."
15.4 While highlighting the ground reality of the post independence era, the Supreme Court further observed:
22. We may now look into the ground reality. In India, hospitality industry has grown by leaps and bounds. As noticed hereinbefore, liquor, in the hospitality industry, is being served not only in the bar but also in the restaurant. Service of liquor is permissible also in the rooms of a hotel.
23. The impugned provision provides for wide restrictions. It prohibits employment of any woman in any part of the premises where liquor is being served. It would prohibit employment of women and men below 25 years in any of the restaurants. As liquor is permitted to be served even in rooms, the restriction would also operate in any of the services including housekeeping where a woman has to enter into a room; the logical corollary of such a wide restriction would be that even if service of liquor is made permissible in the flight, the employment of women as air-hostesses may be held to be prohibited.
24. Hotel Management has opened up a viesta of young men and women for employment. A large number of them are taking hotel management graduation courses. They pass their examinations at a very young age. If prohibition in employment of women and men below 25 years is to be implemented in its letter and spirit, a large section of young graduates who have spent a lot of time, money and energy in obtaining the degree or diploma in hotel management would be deprived of their right of employment. Right to be considered for employment subject to just exceptions is recognized by Article 16 of the Constitution. Right of employment itself may not be a fundamental right but in terms of both Articles 14 and 16 of the Constitution of India, each person similarly situated has a fundamental right to be considered therefor. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grass root democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriage, pilots et. al. Women can be seen to be occupying Class IV posts to the post of a Chief Executive Officer of a Multinational Company. They are now widely accepted both in police as also army services.
(Emphasis supplied by us)
15.5 The Supreme Court in the above decision, explained the topics of Right to employment vis-Ã -vis Security: Competing Values by observing as follows:
32. The instant matter involves a fundamental tension between right to employment and security.
33. The fundamental tension between autonomy and security is difficult to resolve. It is also a tricky jurisprudential issue. Right to Self-Determination is an important offshoot of Gender Justice discourse. At the same time, security and protection to carry out such choice or option specifically, and state of violence-free being generally is another tenet of the same movement. In fact, the latter is apparently a more basic value in comparison to right to options in the feminist matrix.
34. Privacy rights prescribe autonomy to choose profession whereas security concerns texture methodology of delivery of this assurance. But it is a reasonable proposition that that the measures to safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship.
35. At the same time we do not intend to further the rhetoric of empty rights. Women would be as vulnerable without State protection as by the loss of freedom because of impugned Act. The present law ends up victimizing its subject in the name of protection. In that regard the interference prescribed by State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging the proportionality should be a standard capable of being called reasonable in a modern democratic society.
36. Instead of putting curbs on women's freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modelling done in this behalf.
37. Also with the advent of modern State, new models of security must be developed. There can be a setting where the cost of security in the establishment can be distributed between the State and the employer.
38. Gender equality today is recognized by the European Court as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe.
In the case of Abdulaziz, Cabales and Balkandali v. United Kingdom, [1985] ECHR 7, the Court held:
"As to the present matter, it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention."
Following Abdulaziz (supra) the European Court of Human Rights once again observed in Van Raalte v. The Netherlands, [1997] ECHR 6:
"In the applicant's submission, differences in treatment based on sex were already unacceptable when section 25 of the General Child Care Benefits Act was enacted in 1962. The wording of Article 14 of the Convention (Art. 14) showed that such had been the prevailing view as early as 1950. Moreover, legal and social developments showed a clear trend towards equality between men and women. The applicant drew attention to, inter alia, the Court's Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A No. 94), which stated explicitly that "the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe" and that "very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention" (loc. cit., p. 38, para. 78)."
(Emphasis supplied)
(See also Schuler-Zgraggen v. Swizerland, [1993] ECHR 29; and Petrovic v. Austria, [1998] ECHR 21)
Stereotype Roles and Right to Options
39. Professor Williams in
"The Equality Crisis: Some Reflections on Culture, Courts, and Feminism" published in 7 WOMEN'S RTS. L. REP. 175 (1982) notes issues arising where biological distinction between sexes is assessed in the backdrop of cultural norms and stereotypes. She characterizes them as "hard cases". In hard cases, the issue of biological difference between sexes gathers an overtone of societal conditions so much so that the real differences are pronounced by the oppressive cultural norms of the time. This combination of biological and social determinants may find expression in popular legislative mandate. Such legislations definitely deserve deeper judicial scrutiny. It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislations world over.
40. Therefore, one issue of immediate relevance in such cases is the effect of the traditional cultural norms as also the state of general ambience in the society which women have to face while opting for an employment which is otherwise completely innocuous for the male counterpart. In such circumstances the question revolves around the approach of State.
41. Instead of prohibiting women employment in the bars altogether the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is State's duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under section 30) from societal conditions would be oppressive on the women and against the privacy rights.
(Emphasis supplied by us).
15.6 The only difference in the facts of the present cases from the one involved in the above decision of the Supreme Court is that in the above case, there was total prohibition for the entry of the women whereas in the present case, there is prohibition during the nighttime. But the reason in both the cases appears to be the same, for the alleged security of the women. If the total prohibition for the alleged security of the women is found to be unreasonable by the Supreme Court, for the selfsame reason, even the partial prohibition should also be held to be unreasonable encroachment on the fundamental right of women. In such a situation, it is State's duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow and with the advent of modern State, new models of security must be developed. There can be a setting where the cost of security in the establishment can be distributed between the State and the employer as pointed out by the Supreme Court in the above decision.
16. We have no doubt in our mind that the provision of the Act impugned in these applications has definitely infringed the fundamental right of a female citizen not only in the matter of equal opportunity of employment but also in carrying on with her own business with the same privileges a male citizen enjoys unless she decides to employ male workmen for the night shift for overcoming the above statutory provision. A female owner of a business, howsoever competent and qualified she may be, even herself, will not be entitled to supervise the job of either the male workers or the female ones engaged by her during the night shift for the restriction imposed by the Section 66(1) (b) in spite of making adequate arrangement for her safety and that of her female workers. Even if she decides to employ only the female employees and makes adequate arrangement for safety of her employees in the factory and also makes arrangement for transportation of her employees from their residence to the factory and again back to the residence, law will not permit her to expand her business by introducing night shift unless all the employees during that shift happen to be male and she entrusts the supervision of her own business to some qualified male employee against her wish.
17. We also find substance in the contention of the learned counsel for the petitioners that after introduction of sub-sections (2) and (3) of Section 66, the basis of the restriction originally imposed has lost its significance. The above provisions permit participation of the female workers in the factory even during the night shifts for a continuous period of three years at a time if the business happens to be one of fish-curing or fish-canning as if in those types of business, there is no necessity of the safety and security of the female employees during the night shifts.
18. Mr. Desai placed strong reliance upon a decision of the Supreme Court in the case of MANOHAR LAL VS. THE STATE OF PUNJAB reported in AIR 1961 SC 418 in support of his contention that the restriction imposed under section 66(1)(b) of the Act is not unreasonable.
18.1 In the case of MANOHAR LAL VS. THE STATE OF PUNJAB [supra], Section 7(1) of the Punjab Trade Employees Act, 1940 provided that Save as otherwise provided by this Act, every shop or commercial establishment shall remain closed on a closed day . Sub-section 2(1) provided that the choice of a close day shall rest with the occupier of a shop or commercial establishment and shall be intimated to the prescribed authority within two months of the date on which this Act came into force . The appellant in that case had chosen Friday as a closed day, i.e. the day of the week on which his shop would remain closed. The Inspector of Shops and Commercial Establishments, Ferozepore Circle, visited the appellant s shop on Friday, the 29th January 1954, and found the shop open and the appellant s son selling articles. He was, therefore, prosecuted and ultimately convicted and sentenced by the Additional District Magistrate, which was also confirmed by the High Court of Punjab. In such context, the matter came up to the Supreme Court. Before the Supreme Court, the learned advocate for the appellant restricted his attack on one point. He urged that the provision violated the appellant s right to carry on his trade or business guaranteed by Article 19(1)(g) and that the restriction imposed was not reasonable within Article 19(6) because it was not in the interest of the general public. The learned counsel also drew the attention of the Supreme Court to the long title of the Act reading An Act to limit the hours of work of Shop Assistants and Commercial Employees and to make certain regulations concerning their holidays, Wages and terms of service and submitted that the insistence on the appellant to close his shop, in which there were no employees , was really outside the purview of the legislation and could not be said to sub-serve the purpose for which the Act was enacted. In other words, the submission of the learned counsel was that the provision for the compulsory closure of his shop for one day in the week served no interests of the general public and that it was unduly and unnecessarily restrictive of his freedom to carry on a lawful trade or business, otherwise in accordance with law, as he thought best and in a manner or mode most convenient or profitable. The Supreme Court, however, turned down the aforesaid contention after taking into consideration the entire provisions of the Act. In that context, the Supreme Court made the following observations in paragraphs 5 and 6 of the judgment:
5. It will be seen that while under sub-cl. (4) employers are injuncted from employing persons who had already worked for the maximum number of permitted hours in another establishment, sub-cl. (5) lays an embargo on the worker himself from injuring his health by overwork in an endeavour to earn more. From this it would be apparent that the Act is concerned-and properly concerned-with the welfare of the worker and seeks to prevent injury to it, not merely from the action of the employer but from his own. In other words, the worker is prevented from attempting to earn more wages by working longer hours than is good for him. If such a condition is necessary or proper in the case of a worker, there does not seem to be anything unreasonable in applying the same or similar principles to the employer who works on his own business. The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public. The legislation is in effect the exercise of social control over the manner in which business should be carried on-regulated in the interests of the health and welfare not merely of those employed in it but of all those engaged in it. A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19(6).
6. Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. The provisions could, therefore, be justified as for securing administrative convenience and for the proper enforcement of it without evasion. As pointed out by this Court in Manohar Lal v. The State, 1951 SCR 671 at p. 675 : (AIR 1951 SC 315 at p. 316) (when the appellant challenged the validity of this identical provision but on other grounds) :
"The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected..........To require a shopkeeper, who employs one or two men, to close and permit his rival, who employs perhaps a dozen member of his family, to remain open, clearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed."
18.2 In our opinion, the observation of the Supreme Court in the facts of that case cannot have any application to the present one inasmuch as in the above case before the Supreme Court, there was compulsion upon the shop owner to close at least one day in the interest of the health and welfare not merely of those employed in it but also of those engaged in it and the Supreme Court held that such restriction is saved by Article 19(6) of the Constitution.
19. In the case before us, there is no restriction of closure of factory if male workers are employed, and the only restriction is on the night shift if female workers are employed, and as pointed out by the Supreme Court in the case of ANUJ GARG VS. HOTEL ASSOCIATION OF INDIA [supra], we may borrow the language of the Supreme Court with slight modification by observing that instead of prohibiting women employment in the factory during night-shift the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is State's duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under section 66(1) (b)) from societal conditions would be oppressive on the women and against the privacy rights.
Even in the case of MANOHAR LAL VS. THE STATE OF PUNJAB [supra], as pointed out by the Supreme Court in paragraph 6 of the judgment, to require the factory owner who employs only female workers to close and permit his rival who employs male workers to remain open clearly places the former at a grave commercial disadvantage. Thus, the above decision relied upon by Mr. Desai is of no help to his client and rather supports the decision we propose to take.
20. Mr. Desai also relied upon another decision of the Supreme Court in the case of RAMDHANDAS AND ANOTHER v. STATE OF PUBJAB reported in AIR 1961 SC 1559 dealing with a similar provision of the Punjab Shops and Commercial Establishments Act, 1958, which put limitation as to hours of work of employees and specification of opening and closing hours. The Supreme Court, by relying upon the above decision in the case of MANOHAR LAL VS. THE STATE OF PUNJAB [supra], upheld the said legislation.
21. In the above two cases relied upon by Mr. Desai, there is no unreasonable restriction on female workers regarding scope of employment or running of a trade but the said provision lays an embargo on the worker himself from injuring his health by overwork in an endeavour to earn more be such worker a male or a female. We, thus, find that those decisions are irrelevant for our purpose.
22. As regards the decision of the Kerala High Court in the case of LEELA V/S STATE OF KERALA [supra], it appears from paragraph 19 of the judgment that the Division Bench was of the view that the provisions of section 66(1) (b) of the Act merely recognizes a social reality and that it was calculated to ensure that women shall be able to take care of their families and that their children do not suffer. According to the said Division Bench, it was calculated to equally ensure that women are not exposed to the hazards of working in a factory at night.
22.1 With great respect to the Division Bench of the Kerala High Court, we are unable to accept the aforesaid proposition in view of the subsequent decision of the Supreme Court, which we have quoted above.
23. So far as the decision of the Karnataka High Court in the case NATURAL TEXTILES PVT. LTD. v. THE UNION OF INDIA [supra], it appears that the said High Court independently did not consider the question of vires but relied upon the decision of the Madras High Court in the case of VASANTHA R. v. UNION OF INDIA and ORS[supra], and in paragraph 6 made the following observations:
It is needless to say in the circumstances that when once any of the High Courts in the territory of India while dealing with the central legislation if it strikes down a particular provision as unconstitutional and the same being removed from the statute, the submission that it is applicable only to the particular area is without any basis, unless and until the said order is set aside by the higher Court or by the larger bench and the effect of removal of a particular provision from the statute will have a bearing on the entire territory of India. In that view of the matter once again declaring Section 66(1)(b) of the Factories Act as unconstitutional is redundant and such a prayer may not survive for consideration, rather, it is to be clarified that if the authorities without knowing the implications try to enforce the said provision which is declared as unconstitutional and removed from the statute, unless it is shown that such an order is passed that it is applicable only to the particular territory, it amounts to enforcement of a provision without there being a statute and without there being any authority of law.
23.1 We are, however, unable to agree with the above observations in paragraph 6 that once any of the High Courts in India declares a statutory provision as ultra vires, the said decision will be binding even beyond the territorial limit of that Court and also upon other High Courts. Therefore, we do not accept the contention of Mr. Gautam Joshi, the learned advocate appearing on behalf of the petitioner in one of the matters, that in view of the said decision, there is no scope of even adjudicating the above question at our instance.
24. We, however, respectfully agree with the views taken by the Madras High Court and the Andhra Pradesh High Court that section 66(1) (b) of the Act is ultra vires the Constitution of India.
25. In view of what have been stated above, we hold that the provisions contained section 66(1)(b) of the Act is ultra vires Articles 14, 15, 16, and 19(1)(g) of the Constitution of India.
25.1 We, however, observe that while permitting female employees to work during the night shift, it will be a condition precedent upon the employer to make adequate measures for the safety and security of the female employees who would work during the night shift and the entire provisions of the Act including the ones relating to welfare and working hours should be strictly followed even during the night shifts. In addition, it will be also the duty of the employer to make arrangements for transportation of the female employees who work in the night shift from their respective residence to the factory before the work commences and from the factory to their respective residence after the duty hours of the night shift if the same ends before 6.00 a.m. Moreover, as indicated above, the arrangements should also be made for opening adequate medical unit for such female employees and the provision for Cr¿ches as provided for in section 48 of the Act should also be strictly adhered to even during the night-shift. The owners / occupiers of the factories who intend to run night-shift with women workers shall, before starting such shift, inform the respondents in writing of their intention and such night-shift with women workers shall start only after the authorities of the State Government, after inspection, is satisfied with the arrangement of safety and security measures made by the owners / occupiers and even after starting such shifts, if during subsequent inspection any deficiency is found, it will be open to the State Government to pass order stopping such night-shift.
26. With the above observations and directions, these writ-applications are disposed of. In the facts of the case, there shall be, however, no order as to costs.