Kerala High Court
Omana Oomen, Attdt. Operator, Chemical ... vs The Fact Ltd. And Ors. on 27 February, 1990
Equivalent citations: AIR1991KER129, [1991(61)FLR346], (1991)IILLJ541KER, AIR 1991 KERALA 129, (1990) 1 KER LT 614, (1990) ILR(KER) 2 KER 542, (1990) 76 FJR 291, (1990) 61 FACLR 346, (1991) 2 LABLJ 541, (1990) 2 LAB LN 764, (1991) CURLR 48
ORDER V. Sivaraman Nair, J.
1. Petitioners are Postgraduates in Chemistry. They were selected as Attendant Operators, Chemical Plant, to undergo training in the first respondent-company under the Apprentices Act, 1961. The training commenced on 22-4-1967 and has a duration of three years. Ten other male trainees were also simultaneously appointed. Of them, five left the company for better prospects. The remaining five male trainees were absorbed as Technicians (Process/Process Control), during September, 1988 before the completion of the training period. Respondent-company conducted an internal examination for that purpose. It excluded the petitioners only because they were females. Petitioners filed representations dated 11-10-1988 claiming absorption as in the case of male trainees. The Government of India forwarded that representation to the Government of Kerala under Ext. P2 letter dated 16-11-1988. Petitioners also filed Ext. P3 representation before the third respondent for similar reliefs. Respondents did not take any further action pursuant to Exts. P2 and P3. In the meantime, 23 male candidates were appointed as trainee-attendants Chemical Operators. All such candidates were required to appear for an internal examination on 21-12-1989. Petitioners were, however, excluded. They, therefore, filed this Original Petition on 19th Dec., 1989 and obtained interim orders on 20-12-1989, directing the respondents to permit the petitioners to appear for the internal examination for selection to the post of Process Technicians scheduled to be held on 21-12-1989. Petitioners 1 and 2 appeared for the examination pursuant to that order, whereas the third petitioner could not.
2. Petitioners submit that they were excluded from appointment only by reason of sex, whereas even apprentice-trainees in the same category who were appointed in September, 1988 were allowed to take the internal examination leading to absorption. They submit that such discrimination is violative of Articles 14 and 15 of the Constitution of India. They, therefore, seek the issue of a writ of mandamus directing the first and second respondents to permit the petitioners to appear for the internal examination leading to regular absorption and in the alternative to direct respondents 1 to 3 to consider and dispose of Ext. P3 representation in accordance with law.
3. In a detailed counter-affidavit filed on behalf of respondents 1 to 3, it is admitted that they excluded the petitioners from internal examination leading to absorption as Technicians (Process/ Process Control) because of the provisions contained in Section 66 of the Factories Act, 1948, which enjoins, that -
"no woman shall be required or allowed to work in any factory except between the hours of 6.00 a.m. and 7.00 p.m."
Technicians (Process/Process Control) are required to work in shifts, one of which is from 4.00p.m. till 12.00 midnight and the other from 12.00 midnight till 8.00a.m. Reference is also made to the Certified Standing Orders of the Cochin Division of the first respondent-Company, which provides that an apprentice is a learner who has no claim for being absorbed in the company's establishment. Reference is also made to the contract executed by the apprentices to the effect, that the company has undertaken no obligation to absorb the apprentices after completion of the period of apprenticeship. It is therefore asserted that the petitioners have no right to insist upon regular absorption. It is further submitted that in the absence of any such right, petitioners cannot plead discrimination. Respondents submit further, that the petitioners are not entitled to seek the issue of a writ of mandamus contrary to the terms of the apprenticeship contract which they had signed with the respondent-company. Referring to the interim order of this Court, permitting the petitioners to sit for internal examination, respondents submit that only two of the petitioners appeared and both had failed to obtain the minimum marks in the examination. Respondents, therefore, assert that the petitioners would not have been appointed even if Section 66 (b) of the Factories Act was not to be taken into consideration.
4. In the reply-affidavit, petitioners have asserted that it is not impossible to absorb them as Technicians (Process/Process Control) since four males in the same category had been working for the last more than three years in the day-shift between 8.00 a.m. to 4.00p.m. and it should therefore be possible to accommodate the petitioners in day-shifts only. Petitioners assert further, that six women apprentice-trainees were absorbed as Process Technicians in the Cochin Division-and Udyogamandal Division and two other women trainees were absorbed in the soil testing laboratory as a Chemist and as a Clerk in the office of the Managing Director of the Company. They explain the low marks which they obtained in the internal examination as due to the fact that they could obtain the interim direction only on the evening of 20-12-1989 and had to appear for the test on 21-12-1989, without any preparation. Petitioners have also indicated that the hostile attitude of the respondents was at least partly responsible for the low marks which they obtained in the internal examination.
5. The point which I have to consider in this Original Petition is as to whether the exclusion of the petitioners from the internal examination leading to regular absorption as Technicians (Process/Process Control) is the first respondent-company is violative of Articles 14 and 15 of the Constitution of India. The definite case of the respondents is that female candidates were eliminated for the reason that Technicians (Process/Process Control) have to work in three shifts, two of which are night-shifts. Section 66(b) of the Factories Act is said to completely exclude employment of women in any factory, except between the hours of 6.00 a.m. and 7.00 p.m. It is clear that but for the above provision, respondent-company would have considered the petitioners also for regular absorption.
6. There are three hurdles in the way of acceptance of this submission. First of all, Section 66(b) of the Factories Act is followed by a proviso, which is in the following terms:
"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 authorise the employment of any woman between the hours of 10.00 p.m. and 5.00 a.m."
It is clear, therefore, that the State Government is entitled to relax the rigour of Section 66(b) so as to enable women employees to work between 5.00 and and 10. p.m. That takes in 17 hours. It is possible to accommodate two shifts during this period. The only reason mentioned for eliminating women from employment is thefore unsustainable, because the employer can easily obtain permission of the State Government so as to enable women to be employed in two out of the three shifts.
7. The second aspect is that it may be possible for the company to device posting in the shifts in such a manner as to enable females to work as Technicians in the day-shifts exclusively. Petitioners have made a very definite assertion that four male Technicians (Process/Process Control) has been working exclusively in the day-shift from 8.00 a.m. to 4.00 p.m. for the last more than three years. If the shifts can be so arranged so as to accommodate these four male technicians, there is no reason why the three female trainees could not be considered for absorption.
8. The third aspect is the assertion of the petitioners that six female trainees were absorbed as Process Technicians in the Cochin Division and Udyogamandal Division of the Company and that the two female trainees were employed earlier, one as Chemist in the Chemical Project and the other as a Clerk in the Managing Director's office. This assertion is contained in the reply-affidavit alone; counsel for respondents was not able to controvert these submissions when the Original Petition was finally heard on 22-2-1990. If these assertions are correct, there is no justification for refusing the petitioners regular absorption after the conduct of an internal examination.
9. I am therefore satisfied that the petitioners were excluded from appearing for the internal examination leading to absorption on a regular basis in the first respondent-company for the only reason that they were women. The company was fully aware that it could have moved the Government and obtained permission as provided in the proviso to Section 66(b) of the Factories Act. Admittedly, they did not move the State Government. If it is possible for the company to accommodate male Technicians (Process/ Process Control) exclusively in day-shifts as asserted by the petitioners, it should not have been difficult for them to consider the case of the petitioners for regular absorption and retention in day-shifts. I do not suggest that this shall be done. What I point out is that that possibility could have been explored if the respondents were anxious to avoid discrimination on the basis of sex. I am also satisfied that if other women trainees were regularly absorbed in employment which involve working in shifts, there is no reason why the petitioners should have been eliminated.
10. I am of the opinion, that the refusal to admit the petitioners for internal examination for selection leading to regular absorption as Technicians (Process/Process Control) entirely on the basis of sex is violative of Articles 14 and 15 of the Constitution of India. Respondent-company shall permit the petitioners to appear for the internal examination without regard to the results in the internal examination which they took pursuant to interim orders of this Court. If they get qualifying marks, the respondents shall consider them for regular absorption, if need be after obtaining orders of Government as provided in Section 66(b) proviso of the Factories Act.
The Original Petition is allowed as above. Parties will bear their respective costs.