ORDER
G.H. Guttal, J.
1. The question for consideration is whether the policy of the Cochin Port Trust to exclude women from employment as shed clerks due to the hazardous nature of the duty, is violative of Articles 14 and 15 of the Constitution of India.
2. The Cochin Prot Trust and its officers are respondents 1, 2 and 3. The respondent Nos.4 and 5 are respectively the Divisional Employment Officer and the Director, Employment Exchanges, Trivandrum. The Ministry of Shipping and Surface Transport and the Law Society of India are respondents 6 and 7, respectively.
3. The Cochin POrt Trust, the respondent No. 1 herein in 'State' within the meaning of Article 12 of the Constitution of India. It employs over 50% women in various departments, such as the hospitals, telephone exchanges, offices and so on. The established policy of the Cochin Port Trust, hereinafter referred to as 'the Port Trust' which was never departed from in the past, is to exclude women from employment as shed clerks. The petitioners are women registered for employment with the employment exchanges. They urge that the policy of the Port Trust to exclude women from employment as shed clerks is violative of Articles 14 and 15 of the Constitution of India. They seek a direction that the petitioners be invited for appointment and appointed as shed clerks.
4. The Port Trust deny that the policy is discriminatory and urge that women have been excluded from appointment as shed clerks (a) with the object of protecting them from the hazardous work and (b) by reason of sensitiveness of their sex and peculiarities of social factors.
5. It is therefore necessary to understand the nature of the duties of the shed clerks. The shed clerk performs duties at various places in the port. While accepting cargo for shipment he is known as the receiving clerk. When he works in the shipment area he is known as the shipment clerk.
The special features of duties of shed clerks are outlined below.
(i) He has to work in shifts from 8.00 am to 5.00 p.m. and 6.00 p.m. to 6.00 a.m. If his reliever does not report he may have to continue till relieved.
(ii) The hazard involved in the work is illustrated by the following facts,
The shed clerk has to handle huge packages weighing approximately 30 tonnes. Such parcels/packages are not parcels; normally handled in the post offices or other places.
The delivery clerk has to deliver the cargo of such large sizes and weight and prepare the export manifest after noting their description.
As receiving clerk he has to receive the same packages after inspecting them and compare them with delivery record. The packages are then stored for shipment.
As shipment clerk he has to check each of the huge parcels, compare the entries with the receiving records, and deliver them at the shipment wharf. The shipment wharf is a place where cargo is moved by cranes, forklifts and other related equipments. It is an accident-prone area. It demands quick movement of feet in the midst of the moving cargo and the cargo handling equipment. It is therefore a hazardous job.
(iii) Lastly the work of a shed clerk involves presence not at the office but at various places in the port depending upon the place where the cargo has to be handled. The spots where the shed clerk has to work are away from the main building. They are isolated places. The shed clerk is alone at such spots for long periods of time.
6. The guarantee of equality before law and equal protection of the laws under Article 14 of the Constitution of India confers a general right on all 'persons'. But Article 15(1) of the Constitution guarantees the specific right that the State shall not discriminate against any 'citizen' only on the ground, inter alia of 'sex'. The right under Article 15(1) is a species of the generic right under Article 14. Sub article (3) of Article 15 which creates an exception to the right under sub-Article (1) permits the State to make 'any special provision for women and children' Such provision is not violative of the right under Article 15(1).
1. Article 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.
2. Article 15. Prohibition of discrimination on grounds of religion, race, caste, 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.
7. The petitioner's right under Article 14 and 15, considered together, may be perceived from two angles.
(i) Is the grouping of women in a separate class based on their physical structure, capacity for work and the conditions in which they may be required to work, valid?
(ii) Is the exclusion of women from specified jobs valid if it is designed to promote their well-being and to protect them from hazardous work and social and moral risks?
8. Equality between the sexes is a universally accepted right. The struggle by women for franchise, education and opportunities is a matter of the past. But then what is the content of the constitutional right of equality? Article 14 of the Constitution prohibits irrational discrimination between persons or groups of persons in the incidence of law. It does not seek to meet equal treatment to unequals. People who are different by nature attainment or circumstances need to be treated differently. This is done by the mechanism of classification of persons based on the differences of their circumstances. The classification of persons even when based on rational grounds may inevitably produce some inequality. While mere inequality is not enough to make a law or an action, unconstitutional, mere classification of persons into rational groups is not enough to place a law or action beyond the reach of the constitutional guarantee of equality. If, as alleged in this case, women belong to a class for the purpose of employment, such distinction must be based on rational connection with the object which the exclusion seeks to achieve. This is the content of the right under Article 14.
Article 15(1) of the Constitution creates a specific right that the State shall not discriminate against any citizen on ground only of sex. The State which includes the Port Trust cannot discriminate against the petitioner in the matter of employment solely on the ground of sex. Sub-article (1) of Article 15 implies that the State may limit the right to equality on the basis of circumstances other than sex. If it acts on the distinctions based on circumstances other than sex, the exclusion from employment may be out of Article 15(1), even if it strikes at the members of a particular sex. If women are excluded from employment of a particular category because of their physical structure and special susceptibilities, it means that women have been placed in a class by reason of the distinct circumstances. In such a case the denial of opportunity of employment, though it strikes at women ceases to be 'solely' on the ground of sex.
9. The question is whether the exclusion of women, from employment as shed clerks, is, in the circumstances, of their physical strength, nature of the work, sensitiveness of their sex and social factors violative of the right under Article 15(1) of the Constitution.
10. In the absence of judicial precedents applicable to a case exactly like this, the question has to be resolved on general principles.
The judicial pronouncements of this Court to which I will presently refer, arose out of different facts, and therefore are not of much assistance.
11. The case of Rajamma v. State of Kerala, 1983 Lab IC 1388 is the nearest to the facts of this case. The prescription of cycling test for appointment as peons resulted in exclusion of women from applying for the post. In the present case the work of shed clerks involves physical hazards involving duty with heavy parcels, night shifts and working alone at isolated places. This case is of no assistance.
In Omana Oomen v. F.A.C.T. Ltd, (1991-II-LLJ-541)(Ker) women were excluded from employment by reason of the statutory provision of Section 66 of the Factories Act. Sujaya v. Director General 1991 Lab IC 2099 was the case of a nurse. These decisions too do not lay down a principle applicable to the present case.
Mariamma v. Hindustan Latex Ltd. (1994-I-LLJ-488) (Ker) was an obvious case of discrimination solely based on sex, for, she was denied: appointment as Assistant Security Officer, because she was a woman.
Vijayamma v. State of Kerala (1978-II-LLJ-323) (Ker) was the case of women U.D.clerks who were denied employment as stenographers on the sole ground that the duties involved touring with officers and working at odd hours. Touring with male officers no doubt involved the natural risk based on peculiarity of sex. This case no doubt raised the social and moral risk. But it differs from the case of shed clerks. In that case the female stenographers were not required to work at isolated places and the duties did not involve the physical hazards noticed in this case.
12. These cases from the United States were cited.
Employment, in bakeries beyond 10.00 p.m. was prohibited by an Oregon statute. In Curt Mutter v. The State of Oregon, (1908) 208 U.S. 412, the U.S. Supreme Court upheld the restriction on the women's right to employment, on four grounds. Firstly, the differences of physical structure, capacity for long hours of work, particularly when it is done standing and the natural function of motherhood places women in a separate class. Secondly, the restriction was meant to protect women and such legislation was not necessary for men. Thirdly, the well being of women is an object of public interest. Lastly, the legislation was justified as it protected women 'from the greed as well as the passion of man'
Valentine Goesaert v. Owen J. Cleary, (1948) 335 U.S. 464 was a case where a Michigan statute forbade women from being licensed as bartenders but created an exception in favour of wives and daughters of the owners of liquor establishments. The denial of licenses to women unless their husbands or fathers owned the liquor shop was upheld by Frankfurter J. The reasons were:
(i) Bartending by women gave rise to moral and social problems. Without the protective presence of a male member of the family a barmaid is exposed to moral and social hazards.
(ii) Women whose fathers or husbands are owners of bars, are a different class. The presence of the male members provides a protective circumstance.
(iii) The right to equality of women who fell outside the class of women protected by fathers or husbands, was not violated.
Joseph Radice v. People of the State of New York (1923) 264 U.S.292 considered the validity of a statute which prohibited the employment of women in restaurants between 6.00 p.m. and 6.00 a.m. Women working as singers and performers and those working in dining rooms were not so excluded. Two principles emerge from this case:
(i) Classification of employees based on conditions of work is valid.
(ii) It is not necessary for sustaining the validity of law that it should extend to all cases which it might possibly reach.
13. The principles that emerge from the judicial decisions referred to above may be summarized as under:
(i) Women cannot be excluded from employment by stipulating irrelevant and unnecessary qualification. Rajamma v. State of Kerala (supra)
(ii) The denial of promotion to women on the score that the job requires them to tour with men is discrimination on the ground only of sex and therefore unconstitutional. Vijayamma v. State of Kerala (supra)
(iii) The differences of physical structure the effect of long hours of work, and the natural function of motherhood place women in a separate class in the matter of employment. Curt Muller v. The State of Oregon, (supra)
(iv) The grouping of women as a separate class based on the conditions in which they may be required to work, is valid, Joseph Radice v. People of the State of New York (supra)
(v) A law which seeks to protect women from moral and social hazards, by denying bartending licence or denying employment at night does not offend equality and equal protection of the law. Valentine Goesaert v. Owen J. Cleary, (supra)
(vi) The well being of women is an object of public interest. A law meant to protect women 'from the greed as well as passion of man' is not discriminatory. Curt Muller v. The State of Oregon (supra)
14. Consider the petitioner's case in the light of the above principles.
No doubt women shed clerks are not required to lift the huge packages - each weighing about 30 tonnes. But they will have to tally them, move them around and read what is printed on them -all this may have to be done standing for the whole night or day, all alone. Secondly the movement amidst moving cargo and in the midst of huge cranes, forklifts etc. demanding quick movement of feet, exposes them to accidents. Thirdly presence at isolated spots particularly between 6.00 p.m. and 6.00 am. exposes them to what may be called risks peculiar to their sex.
While women cannot be excluded from employment only on the grond of sex, their right may be restricted, if the conditions in which they are required to work, are hazardous to their health and well being. The continuous work while standing or moving and the movement at the shipping wharf amidst the menacing movement of cranes and forklifts demand protective restriction on the right to employment. The policy of the Port Trust indeed protects women from the hazardous effect of such work on their well being. Therefore the policy is not based only on sex.
A woman working at the shipping wharf away from the main office, isolated and alone can be an object of violence on her person-especially at night. That is why Curt Muller v. The State of Oregon (supra) used the words' protect her from the greed and passion of man'.
The policy of the Prot Trust impugned in this case does not violate Articles 14 and 15(1) of the Constitution of India for these reasons:
The differential treatment of women in the matter of employment as shed clerks, is based on the nature of the work, the hazards involved and the need to protect them. It is not therefore based only on sex. Secondly, the policy of exclusion of women from employment as shed clerks is designed to protect them from the hazards already referred to.
15. For the reasons stated in the foregoing, paragraphs the O.P. is dismissed.