K S TRIVENI Vs. UNION OF INDIA

JUDGEMENT

(1.) The bone of contention in this writ petition is the restriction placed on employment of women in Factories under Section 66(1 Xb) of the Factories Act, 1948 (hereinafter referred to as "the Act"). The restriction imposed has been challenged primarily on the ground that it is discriminatory on the basis of sex and is therefore ultra vires. Section 66(1 )(b) of the Act lays down : "(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 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 authorise the employment of any woman between the hours of 10 p.m. and 5 a.m."

(2.) On perusal of Section 66 of the Act the following things become clear : That no women shall be required or allowed to work in any factory except between hours of 6 a.m. and 7 p.m. There is an exception to this provision that State Government may, by notification in the Official Gazette, in respect of any factory or group of factories, vary the working hours of women, but such variation shall not authorise the employment of women between 10 p.m. and 5 a.m. Reading of this subsection (b) of Section 66 of the Act with the proviso together, it is laid down that normally working hours of women would be between 6 a.m. and 7 p.m. However, the State Government may, by notification in the Official Gazette, vary the working hours from 5 a.m. to 10 p.m. That means, in no case the women can be allowed or required to work in a factory from 10 p.m. to 5 a.m. There is complete bar for working women in the factories from 10 p.m. to 5 a.m. However, under sub-section (2) of Section 66 of the Act this restriction has been lifted and the State Government has been authorised to prescribe hours of working without any restrictions for women who are 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 detrioration in any raw material.

(3.) Counter-affidavit has been filed on behalf of Union of India by Director (Safety), Regional Labour Institute, Chennai, Ministry of Labour, Government of India. It is contended that prohibition for women being employed during right hours was, in fact, in public interest and for the interest of women themselves, and employing the women during night hours would expose them to danger of various kinds. It is further submitted that as early as in the year 1940 the International Labour Organisation (for short "ILO)" opined that, "it was evident that the physique and cultural level of the community as a whole would suffer unless steps were taken to protect these weaker members against the worst effects of over work." It is further submitted that even the ILO has laid down in its Convention No.89 that women should not be forced to work during the nights. Since this country is a signatory to the ILO convention, therefore Section 66 of the Act was introduced with the intention of protecting the women from over exploitation and is based on ILO Convention No.89. It is neither violative of Article 14 nor 19(l)(g) of the Constitution of India. The purpose of the provision is not to keep the women away from work, but, as a matter of fact, it is for the purpose of protecting the women. It is further submitted that even under the provisions of Constitution of India the State can make laws especially for women.