Jawahar Lal Gupta, C. J.
1. Does Section 66(1)(b) of the Factories Act, 1948 discriminate against women or does it embody a special provision in their favour? This is the short question that arises for consideration in these four writ petitions. Learned Counsel for the parties have referred to the facts as averred in O.P.No. 16017/1997. These may be briefly noticed.
2. The petitioner was appointed as a Binding Assistant with the Kerala Books and Publications Society on October 17, 1978. In the year 1982, the Society circulated a seniority list. The petitioner approached this Court through a petition under Article 226 of the Constitution with the grievance that the seniority had not been correctly fixed. This petition was registered as O.P. No. 7510/1982. It was disposed of with a direction that the petitioner may file a representation. She did so. Thereafter, she was promoted to the post of Machine Operator on December 2, 1982.
3. On June 20, 1997, Mr. K. Prabhakaran Pillai, the third respondent, was given charge of the post of Supervisor (Binding). The petitioner alleges that she is senior to the third respondent. She was entitled to be promoted as a Supervisor. It is on account of the provision embodied in Section 66(1)(b), which provides that 'no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.' that she has been denied promotion to the post of Supervisor. The petitioner alleges that the provision suffers from the vice of discrimination. It violates Articles 14, 15 and 16 of the Constitution. Thus, the provision should be declared unconstitutional.
4. The respondents contest the claim as made in this petition. Separate counter-affidavits have been filed on behalf of the State of Kerala and the third respondent. No reply has been filed on behalf of the Union of India.
5. Learned Counsel for the parties have been heard.
6. On behalf of the petitioners, Mr. K.M. Joseph has contended that the provision places an embargo on the right of women to work during the period from 7 p.m. to 6 a.m. This embargo amounts to discrimination based on sex. It is violative of Arts.15 and 16 of the Constitution. It suffers from the vice of arbitrariness. Thus, it should be annulled.
7. On the other hand, Mr. Roy Chacko, Senior Government Pleader appearing for the State of Kerala, has contended that the provision embodies a rule to regulate the working conditions of women. It falls within the ambit of Article 15(3) of the Constitution. Thus, it does not suffer from the vice of arbitrariness or discrimination. On behalf of the second respondent, it has been submitted by Dr. B.S. Krishnan that the Society is bound by the statutory provisions. Thus, it cannot force or allow women to work during night. In case the law did not prohibit, the Society would have allowed women to work even during night.
In the context of the contentions as raised by the Counsel for the parties, the short question that arises for consideration is- Does Section 66(1)(b) embody a special provision as contemplated under Article 15(3) of the Constitution?
8. The Factories Act is a piece of social welfare legislation. It was enacted primarily with the object of protecting workmen 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. It promotes safety, health and sanitary conditions at the place of work. The Act was initially promulgated in 1881. Thereafter, the Factories Act was enacted in the year 1934. After independence, the Parliament had promulgated the Act in 1948. Finding certain inadequacies, the Act was amended in the year 1976. The basic objective of the amendments made in 1976 was 'an appropriate work culture conducive to safety, health and happiness of workers has to be evolved in the factories.......The amendments proposed to be made in the Act by the Bill mainly relate to (1) the modification of the definition of the term 'worker' so as to include within its meaning contract labour employed in any manufacturing process, (2) improvement of the provisions in regard to safety and appointment of Safety Officers, (3) reduction of the minimum number of women employees, for the purpose of providing creches by employers.......and (4) provisions for inquiry in every case of a fatal accident'.
9. Section 66(1)(b) initially provided that 'no women shall be employed in any factory except between the hours of 6 a.m. and 7 p.m.'. By the 1976 amendment, it was amended to provide that 'no women shall be required or allowed to work in any factories except between the hours of 6 a.m. and 7 p.m.'. Substitution of the word 'employed' by 'required or allowed to work' clearly indicates that the provision is not calculated to deny employment. The basic objective is to regulate the working hours. It is to ensure that the women are not taken away from their families or exposed to the hazards of work in factories during night.
10. Mr. Joseph contends that the Victorian values have no place in the 21st Century. The provision per se bars the women from working in the factory. This amounts to discrimination which falls within the prohibition embodied in Articles 14, 15 and 16 of the Constitution.
11. The contention cannot be accepted. Firstly, there is a presumption in favour of the constitutionality. The Court has to assume that the Legislature is aware of the needs of the people. These needs have been made manifest by experience. It is to meet the needs that the Parliament has enacted the Factories Act and made a specific provision that women shall not be compelled or allowed to work in the factories between 7 p.m. and 6 a.m. It is undoubtedly true that according to the traditional view, all that a woman needed to know was the four walls of her house. Her knowledge of Chemistry was supposed to be confined to cooking in the kitchen. Today, things have changed. Women are occupying posts of responsibility in almost every field of life. They have even advanced to a stage where they can hold their own against men in different fields. Yet, the very nature of their commitment to the family and the social environment require that they cannot be entrusted with all those duties which men may be asked to perform. Normally, they are not sent to the borders to fight. Lady constables are not asked to go on patrol duty at night. Lady waitresses in hotels are not required to work during night. They may be good for managerial jobs. They may even work as waitresses up to certain hours. But, special provisions so as to ensure that they are not harassed can be and have been made. It is on account of this situation that the Constitution makers had made a provision in Article 15(3). The Legislature was permitted to make special provision for women and children. The purpose was to protect both of them against the hazardous jobs and to save them in spheres where the Parliament considered it necessary.
12. Mr. Joseph contends that the provision does not embody protection. It places a bar.
13. This contention cannot be accepted. Initially, the provision provided that the women shall not be employed in a factory except between the hours of 6 a.m. and 7 p.m. It was amended to provide that they shall not be required or allowed to work except between 6 a.m. and 7 p.m. Thus, it is clear that there is no bar against the employment of women. The provision only envisages a restriction regarding the working hours. The factory management has been precluded from posting women during night shift. The obvious purpose is to protect women and not to deny them an opportunity of employment. Still further, it is the admitted position that the petitioners in these cases have been employed in the factories. They are continuing on their jobs. They have not been denied employment merely because Section 66 places a restriction on the working hours. In fact, they are protected against being required to perform duty during the night.
14. Mr. Joseph submits that Victorian values have no place in the modem era.
15. It is true that modern age has resulted in de-valuation of values. But, it cannot be said that the protection for women is only a value emanating from the Westminster. The place of women has been recognized in the Indian society since the hoary past. The Constitution has made a special provision in Article 15(3). It is calculated to protect and promote the interest of women, The impugned provision clearly falls within the protective umbrella of Article 15(3). It does not embody a principle of discrimination on sex, but is calculated to save women from the hazards of working during night in factories.
16. Learned Counsel for the petitioners submit that under Clause (2), the Legislature has permitted the women to work 'in fish-curing or fish-canning factories'. If they may be permitted to work in one industry, there is no rationale for treating them differently in case of other jobs.
17. Clause (2) provides as under:
'(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.'
A perusal of the above provision shows that it embodies a power for the State to grant exemption. It is an enabling provision. It appears to have been made in view of the perishable nature of fish. This, however, cannot mean that the power conferred on the State Government to make rules for the grant of exemption or to reduce the rigor of Clause (1)(b) would suffer from the vice of discrimination. In fact, under Clause (3), it has been specifically provided that the Rule 8 made under Clause (2) shall remain in force only for a period of three years at a time. In other words, the State is required to review the situation periodically.
18. More than this, even the language of Clause (2) clearly shows that an exemption was made only on account of the necessity to 'prevent damage to or deterioration in the raw material'. This exception cannot mean that the restriction in Clause (1)(b) is ultra vires the Constitution.
19. Besides all this, it also deserves mention that the provision merely recognizes a social reality. It is calculated to ensure that women shall be able to take care of their families. Their children do not suffer. The mother is able to give love and affection to her children. Equally, it is calculated to ensure that women are not exposed to the hazards of working in a factory at night.
20. Mr. Joseph refers to the decision in Smt. R. Vasantha v. Union of India and Ors., 2001 (2) L.L.N. 354, to contend that the Madras High Court has already declared the provision to be invalid. He has also pointed out that a similar view had been taken by the Andhra Pradesh High Court in K.S. Triveni and Ors. v. Union of India and Ors., 2002 Lab.I.C. 1714.
21. We have carefully perused these decisions. We find that the Andhra Pradesh High Court has taken the view that the provision embodies protection to fish and not to women. Similarly, even the Madras High Court has expressed the opinion that the provision places an unreasonable restriction on the right of women to get employment. Regretfully though respectfully, we are unable to follow the view taken by Their Lordships. In our view, the provision embodies a protection for women. It does not discriminate against them on the basis of sex.
22. Learned Counsel has also referred to the decision of Their Lordships of the Supreme Court in Government of A.P. v. P.B. Vijayakumar and Anr.,(1995) 4 S.C.C. 520. This was a case where the validity of Rule 22(2) which made a provision of 30 per cent reservation for women was challenged before the High Court. The challenge had been sustained. On appeal, the decision was reversed. It was held that the provision was within Article 15(3) of the Constitution. The rule embodied a special protection to women so as to ensure that their status was raised. The decision has no application to the facts of the present case. The counsel also referred to the decision of Their Lordships of the Supreme Court in John Vallamattom and Anr. v. Union of India, 2003 (3) KLT 66 (SC) = (2003) 6 S.C.C. 611. This was a case relating to the validity of the provision relating to law of succession. Their Lordships were pleased to hold that 'the world has witnessed a sea change. The right of equality of women vis-a-vis their male counterparts is accepted worldwide. It will be immoral to discriminate a woman on the ground of sex'. It is undoubtedly so. However, we find that in the present case, there is no discrimination against women. The provision only embodies a special provision for their protection. Reference has also been made to the decisions in A.L. Kalra v. Project and Equipment Corporation of India Ltd., (1984) 3 S.C.C 316, and A.R. Antulay v. R.S. Nayak and Anr., (1988) 2 S.C.C 602. These cases are clearly distinguishable. On facts, a detailed examination is not necessary.
23. Mr. Joseph has, lastly, referred to the decision of a Division Bench of this Court in Rajamma v. State of Kerala and Ors., 1983 K.L.T. 457. A perusal of the facts as mentioned in paragraph 2 shows that women applicants who had been duly selected, were denied employment only because of their sex. The Division Bench had taken the view that this was wrong. Such is not the position in the present case.
24. Ms. Ansu Varghese appearing for the petitioner in one of these four cases, has referred to the decisions of Their Lordships of the Supreme Court in P.K. Chinnaswamy v. Government of Tamil Nadu and Ors., A.I.R. 1988 S.C. 78, Council of Scientific and Industrial Research and Anr. v. K.G.S. Bhatt and Anr., A.I.R. 1988 S.C. 1972 and Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh, A.I.R. 1992 S.C. 1695.
25. The first was a case where a civil servant was posted, but not given anywork. In the second case, it was held that an employee should be given a chance toadvance his career. In the third case, there was discrimination in the grant of payscales and promotional avenues, which was solely based on sex. The factual positionin the present case is totally different. In any case, we have found that there was nodiscrimination based on sex. The male and female employees are placed in identicalscales of pay.
26. Faced with the situation, the Counsel have contended that the women employees are not considered for promotion to the posts of Supervisor for the night shift. Thus, there is denial of equality of opportunity in the matter of employment. Is it so?
27. A perusal of the writ petition shows that the employees and the employer had executed a settlement. Clause 31 of the settlement has been quoted in paragraph 5 of the petition. Under this settlement, such employees who are not given promotion to the post of Supervisor appointed for the night shift are granted additional financial benefit. Thus, the action is based on a settlement, which has been duly arrived at between the workmen and the employer. It has not even been suggested that the petitioner is not a member of the Union, which had executed the settlement. In any event, the settlement is binding on the parties. Its validity having not been challenged, the petitioner cannot complain. In this situation, the rule as laid down by Their Lordships of the Supreme Court in Air India Cabin Crew Association v. Yeshaswinee Merchant and Ors., 2003 (3) KLT (SC) (SN) 20 = (2003) 6 SCC 277, shall be attracted. The settlement that has been accepted cannot be annulled at the instance of the few who have come to the Court. Still further, it is the admitted position that at the time the third respondent was promoted, the petitioner in O.P. No. 16017/1997 was not the senior-most female employee. In fact, Ms. Thamkam, P.V. was admittedly senior to her. She has not complained. Thus, even if the order of promotion passed in favour of the third respondent were to be set aside, the benefit may have been due to Ms. Thamkam. The petitioner cannot claim the post of Supervisor. Still further, it has not been shown that the post of a Supervisor is under the State Government so as to bring in the provision of equality as embodied in Article 16 of the Constitution. In any case, nothing has been pointed out from the record to show that the petitioner has suffered adversely in the matter of emoluments or status. The third respondent was admittedly working as a Binding Machine Operator in the seniority list at Ext. P-1. The third respondent's name appears at Sl. No. 4 in the category of Binding Machine Operators. The petitioner's name does not figure in that list.
28. In O.P. No. 887/1993, an additional plea has been raised. It is stated that vide Order dated April 24, 1993, the persons who were given higher emoluments were denied the designation of Supervisor. The document is in Malayalam. No translation had been filed. Irrespective of that, it has not been shown that any one junior to the three petitioners had been given a higher post. Thus, no cause for complaint is made out.
29. No other point has been raised.
In view of the above, the question as posed at the outset is answered in the affirmative. It is held that the provision of Section 66(1)(b) embodies a special provision in favour of women. It does not suffer from the vice of discrimination. It is not violative of Articles 14, 15 and 16 of the Constitutions. Thus, the petitions are dismissed. No costs.