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2018 DIGILAW 105 (KER)

Kanchana Kumari v. State of Kerala

2018-01-30

P.V.ASHA

body2018
JUDGMENT : P.V.Asha, J. 1. The petitioners who are women Mazdoors working in the Malampuzha Gardens under the 2nd respondent, are aggrieved by the gender discrimination meted out to them in allotting work. 2. The case of the petitioners is that there are 280 women Mazdoors in the live register of casual labourers under the 2nd respondent in the Malampuzha Dam. The number of male workers under the 2nd respondent is only 130. The petitioners commenced their service under the 2nd respondent on various dates and years starting from 1996. Several of them are continuing with intermittent breaks. 3. It is pointed out that, even though the nature of job undertaken by both male and female workers is the same and though the wages paid are also at the same rates, the women workers are discriminated in allotment of work. It is also stated that, Mazdoors are engaged on batch basis and there would be two batches in a month. It is pointed out that, there would be 106 persons in each of the batch which would consist of 67 male workers and 39 women workers. They will work for 13 days and thereafter they would be replaced by the next batch for another 13 days. Thus, 67 male and 39 female workers work for 26 days in a month. 4. It is pointed out that since there are 219 women workers, a woman worker would be able to get engaged only once in 3 months. At the same time, the male counterparts would get work in every 13 days a month. It is submitted that even though the petitioners submitted several representations before the respondents requesting for equal distribution of work, there was no response. 5. Petitioners have also produced Ext.P4 order issued by the Government on 16.01.2013 which provides for regularisation of casual labourers as SLR, in case they have completed 500 days of work as on 01.01.2011. It is pointed out that one who has completed 10 years of service and 500 days of work and has not crossed 58 years of age, will be able to get the benefit of Ext.P4 order. It is pointed out that if the work is allotted in this manner, the benefit of Ext P4 order will not be available to persons like petitioners. Petitioners have filed this writ petition when there is no response to their representations. 6. It is pointed out that if the work is allotted in this manner, the benefit of Ext P4 order will not be available to persons like petitioners. Petitioners have filed this writ petition when there is no response to their representations. 6. The 2nd respondent had filed a counter affidavit stating that the practice of engaging male workers in the ratio of 67:39 has been in vogue for last more than 10 years and any deviation of the present practice would affect the present system of job pattern and smooth functioning of the maintenance of the dam. It is further stated that, the claim of women workers can be heeded to only if the quantity of job is increased in a large extent and in the present ratio, the working days available are insufficient to carry out work. 7. The petitioners have filed I.A. No.1307/2018, producing Ext.P5 order dated 18.01.2006 in which the Government had directed to ensure gender equality while making appointment of labourers on temporary basis. The learned counsel for the petitioner pointed out that even that Government order is not followed while engaging the workers under the 2nd respondent. 8. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 9. The only contention of the respondents is that, the distribution of work to male and female workers in the present ratio have been the regular practice for a long period and that cannot be deviated from at this stage. There is no dispute as to the fact that the number of women workers is more than the double of male workers. It is also not disputed that the male workers are getting engaged almost on all days. There is no reason why women workers doing the very same job should be discriminated, only because of of their gender. The denial of work to petitioners in this manner affects the dignity of women which in effect is deprivation of the right to life guaranteed to a woman under Article 21 of the Constitution of India when it is the fundamental duty of every citizen under Article 51(e) to renounce practices lowering the dignity of women. 10. The learned counsel for the petitioner relied on the judgment in Charu Khurana and Others v. Union of India and Others (2015) 1 SCC 192 . 10. The learned counsel for the petitioner relied on the judgment in Charu Khurana and Others v. Union of India and Others (2015) 1 SCC 192 . The Apex Court, referring to Article 51-A and Article 39- A(d) of the Constitution of India, had specifically pointed out the need for equal distribution of work. Apex Court was considering the case of Cine Costume Make-up Artists and Hair Dressers, complaining the unequal access to employment by not permitting women workers to work as Make-up Artists despite their qualification and eligibility and confining the permission only to work as Hair Dressers. Tracing the history of the battle of women for equality from 1792 onwards, referring to the words of Ralf Waldo Emerson, Alex De Tocqueville, etc about the influence of good women, Lord Denning's Due Process of Law stressing the right to freedom of women on par with men and to develop her personality, the international conventions and treaties on gender equality, Universal Declaration of Human Rights (1948), Convention on the Political Rights of Women (1952), International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), Declaration on the Elimination of All Forms of Discrimination against Women (1967), Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974), Inter-American Convention for the Prevention, Punishment and Elimination of Violence against Women (1995), Universal Declaration on Democracy (1997), Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999), etc, the apex court analysed the relevant provisions in CEDAW as follows: 11. Article 1 of CEDAW reads as follows: “1. For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” 12. Sub-article (1) of Article 11 of the Convention, which has its own signification, is as follows: “11. Sub-article (1) of Article 11 of the Convention, which has its own signification, is as follows: “11. (1) State parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to work as an inalienable right of all human beings; (b) the right to the same employment opportunities; including the application of the same criteria for selection in matters of employment; (c) the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) the right to equal remuneration, including benefits, and to equal treatment in respect of women of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.” 13. On a perusal of the articles of the aforesaid Convention, it is clear as crystal that apart from right to work being an inalienable right of all human beings, it has commended the right to same employment opportunity, including the application of same criteria for selection in matters of employment and all steps to be taken to eliminate discrimination against women in the field of employment in order to ensure equality among man and woman. It is founded on social security and many other facets.” 11. Under Article 39(a), (d) and (e) of the Constitution of India, State shall direct its policies towards securing equal rights to men and women the right to adequate means of livelihood, equal pay for equal work and to see that health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced to enter into avocations unsuited to their age or strength, by economic necessity. Following the Constitution Bench judgments in Minerva Mills Ltd. v. Union of India: (1980) 3 SCC 625 and Pramati Educational and Cultural Trust v. Union of India: (2014) 8 SCC 1 and the judgment in Society for Unaided Private Schools of Rajasthan v. Union of India: (2012) 6 SCC 1 the Apex Court in Charu Khurana's case reiterated that the Court is required to interpret the fundamental rights in the light of the directive principles. Referring to the fundamental duties of citizens under Articles 51A(e) to renounce practices derogatory to the dignity of women and in clause (j) to strive towards excellence in all spheres of individual and collective activity it was held as follows in para 41: “41.xxxx The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity. It was reiterated that gender equality is a fundamental right.” 12. In the present case of women mazdoors, the respondents defend their action saying that this practice has been continuing for several years. If the present practice is allowed to continue none of the women workers, will attain the eligibility for regularisation while the male workers who commenced service much after them would be able to enjoy such benefits of regular engagement every month, more monetary benefits as well as the benefit of regularisation as SLR and upwards, merely for the reason that they happen to be men, blessed with allocation of excess work. When such a practice discriminates the women workers; results in denial of work defeating even their right for regularisation, for want of requisite number of 500 days of work, which in effect derogates the dignity of women, deprives their right to equality and right to livelihood, the respondents have to be directed to stop such practice and modify the same in tune with their seniority and eligibility. 13. It is seen that respondents 6 and 7 who are male workers, have not entered appearance, though notice is served on them. 13. It is seen that respondents 6 and 7 who are male workers, have not entered appearance, though notice is served on them. In the above circumstances, it is declared that the allocation of work to 67 out of 130 male workers as against 39 out of 280 female workers is arbitrary and illegal. There shall be a direction to the 2nd respondent to see that the work available in Malampuzha Gardens under the 2nd respondent is distributed in accordance with seniority of mazdoors without any discrimination on the basis of gender and at any rate to see that the representation of the women workers in each batch is proportionate to their total strength. Appropriate modification in allocation of work shall be made accordingly within two months from the date of receipt of a copy of this judgment. Accordingly, this writ petition is disposed of.