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The Court observed that by making pregnancy a bar to continuance in service of an Air Hostess the Corporation seems to have made an individualized approach to a woman’s physical capacity to continue her employment even after pregnancy which undoubtedly is a most unreasonable approach. The termination of service of a Hostess under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood. It is extremely detestable, abhorrent to the notions of a civilized society and grossly unethical in disregard of all human values. Pregnancy is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction, therefore, made on the ground of pregnancy cannot but be held to be extremely arbitrary.
Mrs. Neera Mathur vs. Life Corporation of India (AIR 1992 SC 392)—In this case the Supreme Court recognised the right to privacy of a woman employee. Neera was appointed by the LIC without the knowledge that she was pregnant. After joining her post, she applied for maternity leave and when she came back, she was served with a termination notice. When she questioned her termination, the LIC took the plea that she had supplied them with the information which had been sought through a questionnaire from her. The Supreme Court Judges, after seeing the questionnaire were shocked to find that the questionnaire sought information about the dates of the menstrual cycles and the past pregnancies. The Supreme Court observed that such probes amounted to invasion of privacy of a person and could not be made. Since the right to personal liberty guaranteed by Article 21 of the Constitution included the right to privacy and here the woman’s right to privacy was recognised. The information sought in the instant case by the LIC amounted to making indoors into the privacy of Neera. The Supreme Court on examining the matter carefully that the reasons for termination of Neera was the false declaration given by her regarding the last menstrual period with a view to suppress her pregnancy. The Supreme Court held that she could not be blamed for giving false declaration when she was medically examined by the Doctor who was in the panel approved by the Corporation and was found medically fit to join the post and the Supreme Court gave direction to the LIC to delete such columns in the declaration and finally ordered the LIC to reinstate Neera into service.
M/s. Mackinnon Mackenzie and Co. Ltd., vs. Audrey D’Costa and Antoehr (AIR 1987 SC 1281)—In this case a petition was filled by an erstwhile employee of a company who during the period of her employment was working as a Confidential Lady Stenographer and she complained that during the period of her employment she was being paid remuneration at the rates less favourable than those at which remuneration was being paid by the company to the Stenographers of the male sex in its establishment for performing the same or similar work. The petitioner brought to the attention of the Court the provisions of Equal Remuneration Act (25 of 1976) and referred to Section 4. Section 4 of the Act requires the employer to pay equal remuneration to men and women workers for same work or work of a similar nature. The Supreme Court after considering the facts of the case and the provisions of law, held that the discrimination between male Stenographers and the Confidential Lady Stenographers was only on the ground of sex and the employer is bound to pay the same remuneration to both of them irrespective of the place where they were working unless it is shown that the women are not fit to do the work of male stenographers.
Ram Bahadur Thakur (P) Ltd., vs. Chief Inspector of Plantations {1982 (2) LLJ 20}—This is a case under Maternity Benefit act, 1961. A woman worker employed by the Pambanar Tea Estate claimed maternity benefit under the Maternity Benefit Act, 1961. But employer took the stand that the woman worker had actually worked for 157 days apart from four half days during 12 months immediately preceding the date of delivery. Under the Act the eligibility to claim maternity benefit is 160 days of actual working in the establishment. The Kerela High Court taking note of explanation to Section 5(2) of the Act which provided that the period during which a woman worker was laid off during the 12 months immediately preceding date of expected delivery should also be taken into consideration, and further, after taking note of the observations made by Supreme Court in B. Shah vs. Presiding Officer, Labour Court, Coimbatore {1978 (1) LLJ 29} held that:
“Computation of maternity benefit has to be made for all the days including Sundays and rest days which may be wageless holidays comprised in the actual period of absence of the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equaling 100 per cent of the wages which she was previously earning in terms of S.3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interests of both the woman worker and her employer.” Held that the Maternity Benefit Act will have to be given interpretation which will advance the purpose of the Act and therefore rejected the contention of the employer and held that the woman worker qualified herself to get Maternity Benefit Act”.
Omana Ooomen and Others vs. F.A.C.T. Ltd., {1991 (2) LLJ 541)—F.A.C.T. Ltd., employed number of Post-Graduates in Chemistry for the posts of Attendant Operators. Initially all those selected were asked to undergo training in the company for a period of three years. The trainees comprised of both males and females. Much before the training period got over, five male trainees were absorbed as technicians after an internal examination being held for that purpose. The female trainees were excluded from the internal examination only on the ground that they were females. Consequently the female trainees were not absorbed as technicians unlike their male counterparts. The matter was taken into the Court and the female employees challenged the decision of the employer in not permitting them from taking the internal examination only because they were females and contended that the said act of the employer amounted to sex discriminative violative of Articles 14 and 15. The employer relied on the provisions of the Factories Act, 1948 which provided that no woman shall be required or allowed to work in any factory except between the hours 6.00 a.m. and 7.00 p.m. The Kerala High Court taking note of Section 66(b) and in particular the proviso in the said section, came to the conclusion that by virtue of Sec. 66(b) of the Factories Act the State Government is entitled to relax the rigour of Section 66(b) so as to enable women employees to work between 5.00 a.m. and 10.00 p.m. Thus, after considering the provisions of law, the Court held that non-absorption of female trainees as technicians entirely on the basis of sex is violative of Articles 14 and 15 of the Constitution.
Vishaka & Others vs. State of Rajasthan & Others (1997) 5 SCC 241)—The high priority given by the Supreme Court to gender issue, reached its glorious moments in this land mark judgment and ultimately led to passing of a legislation by the parliament against sexual harassment of working women. Women’s Rights and in particular gender equality came to be included as an important aspect of human rights. The case centered on gang rape of a social worker in a village in Rajasthan. Several social activists and N.G.Os joined hands and moved the Supreme Court by way of Public Interest Petitition seeking judicial intervention and prayed for suitable methods for realising the true concept of gender equality and to prevent sexual harassment of working women in all working places.
The Court observed that “Each incident of sexual harassment of woman at workplace results in violation of the fundamental rights of “Gender Equality” and the “Right of Life and Liberty”. It is clear violation of the rights under Article 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1) (g). The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facts of gender equality including prevention of sexual harassment or abuse.”
The Supreme Court further held that gender equality includes protection from sexual harassment and right to work with dignity which is a usually recognised basic human right. The common minimum requirement of this right has received global acceptance. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international convention and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 9(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein and for the formulation of guidelines to achieve this purpose.
The Supreme Court further observed that in the absence of domestic law on the particular aspect, international conventions and norms consistent with the spirit of fundamental rights can be read into those rights for interpreting them in the larger context to frame objectives of the Constitution.
The decisions rendered by our Apex Court in the above mentioned cases goes to show that the Supreme Court has struck down rules, regulations which are discriminatory and which have the colour of sexual discrimination and the deep concern of the Court to restore gender equality.
Through various decisions, the judiciary in our country has ensured that there is no gender inequality between the sexes in the matter of employment and profession and the rights of women have now been brought within the broader canvas of human rights. The Supreme Court in interpreting Articles 14, 15 and 16 of the Constitution has ensured that complete gender justice is done to women and in a way our Supreme Court has shown the way to all concerned as to how gender issues have to be tackled and necessity of gender sensitiveness on the part of the Judges. This step would go a long way in bringing about necessary social transformation in the society and a deep study of the approach of the Supreme Court into the gender issue would certainly enable the Judicial Officers to become gender sensitive.
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