JUDGMENT Bilal Nazki, J.
1. The bone of contention in this writ petition is the restriction placed on employment of women in Factories under Section 66(1 )(b) 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 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 tilings become clear, that no woman 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 authorize the. employment of women between 10 p.m. and 5 a.m. Reading of this Sub-section (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 deterioration 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 night 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 mat 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.
4. In the light of these pleadings of the parties, the only question to be answered is, whether Section 66(1)(b) of the Act is violative of Articles 14 and 19 (1) (g) of the Constitution of India and is this Section creating a discrimination on the basis of sex. The learned counsel for the Respondents has taken certain preliminary objections, which can be summarised below.
5. That the petitioners have not furnished any document in support of the pleadings averred in the writ affidavit or even in the additional affidavit. He submits that the solitary letter dated March 29, 2001, said to have been given by 3rd respondent to the 1st petitioner does not disclose the complete cause of action with full particulars. He submits that the petitioner's pleadings are vague and imaginary. The letter to which a reference has been made is a letter by which the petitioners were informed that the company was willing to engage more women workers, but because of prohibition under Section 66(1)(b) of the Act for engaging women workers in the night shift, the company was not in a position to employ women workers. Besides this letter, the respondents in their counter-affidavit have nowhere stated that there are no restrictions on women being employed. In fact the restrictions are imposed by Section 66(1)(b) of the Act and they have defended the vires of Section 66(1)(b) of the Act. Reliance is placed by the learned counsel for the respondents on the judgments of the Supreme Court reported in Bharat Singh v. State of Haryana, . We do not think that this judgment can be used as it is not relevant for the purpose of present controversy. It is a fact that the women who have come to this Court have not been given employment by the respondents- factories because of the restrictions placed on them by Section 66(1)(b) of the Act. The learned counsel further submitted that Section 66(1)(b) of the Act was saved by Article 15(3) of the Constitution of India and was in consonance with the Convention No. 89 of ILO. In this connection, he referred to the decision reported in Pratap Singh v. Union of India, . This is a case in which Section 14(1) of the Hindu Succession Act (30 of 1956) was subject matter of the controversy. The Supreme Court was of the view that it was beneficial to the women, therefore it was protected under Article 15(3) of the Constitution of India. There cannot be any dispute that if any special legislation is made which is for the benefit of the women, that is protected under Article 15(3) of the Constitution of India and if a law is made which is not beneficial to women and is discriminatory in nature that cannot be protected under Article 15(3) of the Constitution of India. It is well settled under Article 15(3) of the Constitution of India only those laws can be protected which are beneficial to the women. He has also relied on the decision reported in Yusuf Abdul Aziz v. State of Bombay, . This decision is also in the same direction where Section 497 I.P.C. was held to be protected by Article 15(3) of the Constitution of India. This is also a Section which is for the benefit of the women. Another decision relied on by him is Shahdad v. Abdullah, AIR 1967 J & K 120. In this case, the case related to service of summons by a Civil Court on a male member of the family in terms of Order 5, Rule 15, C.P.C. and the argument put forth before the Court was that the service on a female member of the family should be as effective, a service as a male member, otherwise it creates discrimination only on the ground of sex. The Court took note of the fact that women only are doing the household jobs and held that the provision was saved by Article 15(3) of the Constitution of India. The learned counsel has also relied on the decisions reported in Makadeb Jiew v. Dr. B.B. Sen, , Thomas Goundan v. Kannu Ammal, Mullar v. Oregon, 208 US 412, Radice v. NewYork, 264 US 690, Goesaert v. Cleary, 335 US 464 and Ashok Leyland Employees Union v. Union of India, 1998-I-LLJ-594 (Madras). In all these Judgments it becomes clear that there can be a positive discrimination in favour of women in terms of Article 15(3) of Constitution of India, but the moot question is, whether the impugned legislation is beneficial to women or not. The women are aggrieved of the impugned legislation and the result is that they are not being able to get employment because of the restrictions under Section 66(1)(b) of the Act The learned counsel farther contended that Factories Act was also saved by Section 31(c) of the Constitution of India. According to him, no law giving effect to the policy of the State towards securing the principles of State policy shall be called in question on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14 or 19 of the Constitution of India. The learned counsel further contended that Section 66(1)(b) of the Act is a protective legislation in favour of the women workers to protect them from exploitation and to maintain the dignity of women in terms of Article 51-A(e) of the Constitution of India.
6. Now before coming to this argument, it will be relevant to refer to the Convention No. 89 of ILO to which India is a signatory. article 2 of the convention lays down, for the purpose of this Convention the term "night" signifies a period of at least eleven consecutive hours, including an interval prescribed by the competent authority of at least seven consecutive hours falling between ten o' clock in the evening and seven o'clock in the morning, the competent authority may prescribe different intervals for different areas, industrial undertakings or branches of industries or undertakings, but shall consult the employers' and workers' organizations concerned before prescribing an interval beginning after eleven o' clock in the evening.
7. Article 3 lays down, women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof other than an undertaking in which only members of the family are employed.
8. Article 5(1) lays down, the prohibition of night work for women may be suspended by the Government after consultation with the employers' and workers' organizations concerned, when in case of serious emergency the national interest demands it.
9. Article 5(2) lays down, such suspension shall be notified by the Government concerned to the Director-General of the International Labour Office in its annual report on the application of the Convention.
10. There is no doubt that this International Convention being Convention No. 89, lays down that women shall not be employed during the night except in case of serious emergency where the National Interest demands employment of women during night. But one has to see as to whether the State is following this Convention and is Section 66 of the Act really a reflection of Convention No. 89. If that were so, then in our opinion, there would be no exception for women who are engaged in fish-curing or fish-canning factories. If one goes by Sub-section (2) of Section 66 of the Act, it becomes abundantly clear that the exception has been carved out for protecting the fish rather than protecting the women. The exception has been carved out with respect to these factories, which are engaged in a business, of which the nature of raw material is such that it will deteriorate. Therefore the fish-curing or fish-canning factory has been exempted from Section 66(1)(b) of the Act and this exception is only to save the raw material from damage. So in a way this is a concession granted to the factories, rather than to the women. If there were no Sub-section (2) of Section 66 of the Act, this Court would agree with the learned counsel for the respondents, but once they carved out an exception not for protecting the women, but for protecting 'the fish, it looks to us an absurd argument that women would be safe if they are working in a fish-curing or fish-canning factory during night but they would not be safe if they are working in a textile industry. The International Labour Organisation has also carved out an exception under Article 8 of the Convention No. 89, with regard to the women holding responsible positions of a managerial or technical character. Another exception was with respect to women employed in health and welfare services who are not ordinarily engaged in manual work. These two exceptions are understandable as the women who are holding managerial positions would have lesser chances of being exploited by their men counterparts, rather than those who are engaged in manual work. Similarly the exception with respect to women employed in health and welfare services who are not engaged in manual work was an exception where also the chances of exploitation are minimum. But we do not find how is a factory dealing with fish-curing or fish-canning different from any other factory like Textile factory. There are only two cases so far decided, which have been shown to us. One is a Judgment from the Madras High Court delivered in W.P. No. 4604 of 1999 and batch. The Madras High Court in a very long Judgment referred to almost all the arguments which have been raised before this Court. After considering the Indian judgments and some foreign judgments, the Madras High Court struck down Section 66(1)(b) of the Factories Act. Whereas the Kerala High Court by Judgment reported in M. Shaila v. Chairman, Cochin Port Trust upheld the constitutional validity of Section 66 of the Act. We find ourselves in agreement with the law laid down by the Madras High Court and allow this writ petition and strike down the Section 66(1)(b) of the Factories Act, 1948 as unconstitutional. We have been told that there is a G.O. by which certain safeguards have been provided to the women who are working in Fish industry during the night hours. The same safeguards shall be given to women workers in other industries during the night time. No costs.