The Treasa Josefine vs State of Kerala case has brought to light how some of our labour law rules are outdated, and also in direct violation of POSH guidelines.
Treasa Josefine, an employee of Kerala Minerals and Metals Limited is an engineering graduate working as a Graduate Engineer Trainee. The company issued a notification inviting applications for Safety Officer, a permanent post within the company. The job description mentioned how the position was only open to male candidates.
Treasa challenged the notification on grounds of discrimination, claiming that she was denied the opportunity of being considered for the said position. Her claim went on to state how Section 66(1)(b) of the Factories Act, which states that no woman may work in a factory unless between 6am and 7pm, is unconstitutional as it violates Articles 14, 15, and 16 of the Constitution.
The Kerala High Court noted that no woman fully qualified should be discriminated against because of her gender and denied her right to be considered. Moreover, the grounds that the nature of employment demands her to work night hours should not prove a point of contention. Justice Anu Sivaraman said that protective provisions cannot stand in the way of considering a woman when she is otherwise eligible.
The court further added that it is the binding responsibility of the respondents (Government functionaries and Government) to ensure adequate measures are provided for a woman to carry out her duties safely and conveniently at all hours. If that is the case, there is no reason to disqualify a qualified resource on the ground of her being a woman and because the nature of employment demands her to work during the night.
The court also alludes to the fact that the Factories Act was effected at a time when expecting a woman to work in a factory, especially during the night could be deemed exploitative, and as a violation of her rights. Today, the contributions made by women in every sphere including economic development cannot be overlooked. Women have consistently proven how they can work in varied professions that require round-the-clock labour, and have faced challenges of such employment gracefully. Section 66(1)(b) must only be viewed as a protective provision and certainly not as grounds to deny opportunity to women who do not need the protection any longer.
On the whole, this judgment opens up avenues for conversation and reflection. It is an important verdict that is bound to see an impact in many more areas than the state of Kerala.