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PETITIONER: BOMBAY  LABOUR  UNION  REPRESENTING THE  WORKMEN  OF  MESSRS

       Vs.

RESPONDENT: MESSRS INTERNATIONAL FRANCHISES PVT.  LTD

DATE OF JUDGMENT: 03/11/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1966 AIR  942            1966 SCR  (2) 477  CITATOR INFO :  RF         1981 SC1829  (92)

ACT: Industrial  Dispute--Rule  terminating employment  of  women automatically   on  marriage--Validity  of   rule-Industrial adjudication whether should interfere.

HEADNOTE: The  respondent  concern  had  a rule  in  its  packing  and labelling  department that if a woman employee  got  married her  service  would  stand  automatically  terminated.   The appellant  union  raised  an  industrial  dispute  on   this question  and  it was referred to the  Industrial  Tribunal, Maharashtra.  The Tribunal held that the rule was  justified whereupon,  the  appellant  came to this  Court  by  special leave. The justification given on behalf of the respondent for  the said  rule was that in the particular department  where  the rule  operated  team  work was required  for  which  regular attendance  was  necessary, and married women,  for  obvious reasons, could not be expected to be regular in  attendance. It  was  also contended for the respondent  that  industrial adjudication should not interfere with the employer’s  right to impose any condition in the matter of employment when  he employs new workmen.  Rule 5(3) of the Indian Administrative Service  (Recruitment)  Rules,  1964,  was  referred  to  as carrying a similar condition. HELD:     (i)  There was nothing to show that married  women would by the  more likely to be absent than unmarried  women or widows. The only difference was that married women  would ask  for  maternity leave.  This could be  provided  for  by having  a  few  extra  women as leave  reserve.  So  far  as efficiency  was  concerned  it could  hardly  be  said  that married women would be less efficient than unmarried ones or widows.   The economic interest of the concern was also  not affected  in any material way.  There was thus no  good  and convincing  reason  why such a rule should continue  in  one department  of the pharmaceutical industry.  The  fact  that such   a  rule  existed  in  other  concerns  also  was   no justification, if the rule could not be justified on its own

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merits.  The rule, therefore, had to be abrogated. [495E, G- H; 496A-B, D] (ii) It  is  too  late in the day  to  stress  the  absolute freedom  of  an employer to impose any  condition  which  he likes   on  labour.   It  is  always  open   to   industrial adjudication  to  consider the conditions of  employment  of labour and to vary them if it is found necessary. [496 E-F] (iii)     Rule  5(3)  of the Indian  Administrative  Service (Recruitment)   an  unmarried  woman  marries  subself   the maintenance  of  the efficiency  her to resign.   This  rule does  on marriage as a matter of course as the case  of  the respondent concern. [497 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 274 of 1964. 494 Appeal by special leave from the award dated May 31, 1963 of the Industrial Tribunal, Maharashtra in Reference (I.T.) No. 59   of 1963. S.   B. Naik and K. R. Chaudhury, for the appellants. S.   V.   Gupte,  Solicitor-General,  G.  B.  Pal,   J.   B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent No. 1. A.   S. R. Chari, K. Raiendra Chaudhury, M. S. K. Aiyangar and M.    R. K. Pillai, for respondent No. 2. A.   S. R. Chari, M. K. Ramamurthi, for interveners. The Judgment of the Court was delivered by Wanchoo, J. The only question raised in this appeal by  spe- cial  leave is the propriety of a service condition  in  the respondent concern by which unmarried women in a  particular department  have  to  resign on their  getting  married.   A dispute  was raised about this condition by  the  appellant- union  on  behalf  of the workmen and was  referred  to  the Industrial Tribunal, Maharashtra, in the following terms "The  existing bar on ladies that on their  getting  married they  have  to leave the service of the  company  should  be removed." The respondent is a pharmaceutical concern.  It appears that there is a rule in force in the respondent-concrn  according to  which if a lady workman gets married, her  services  are treated as automatically terminated.  It appears that such a rule  is in force in other pharmaceutical concerns  in  that region  and  the  matter came up  on  two  occasions  before industrial  tribunals  for adjudication  with  reference  to other  pharmaceutical  concerns, and on both  occasions  the challenge  by  the workmen to such a rule  failed.   On  the first  occasion the dispute was between the Boots Pure  Drug Co.  (India) Limited v. Their Workmen(1) and a similar  rule was upheld in 1956.  On the second occasion the dispute  was between  Sandoz (India,) Limited v. Workmen  employed  under it(2).   There  was agitation in the respondent  concern  in connection  with  this rule and the  present  reference  was eventually made in February 1963.  The tribunal followed its earlier decision in Sandoz Limited case(2 ) and rejected the contention  that  the  rule  be  abrogated.   The  appellant obtained  special leave to appeal from this Court; and  that is how the matter has come up before us. (1)  B.G.G. Part I -L, dated Jan. 26,1966. (2)  (1962) Industrial Court Reporter 22. 495 Ordinarily  we see no reason for such a rule  requiring  un- married  women to give up service on marriage,  particularly when  it is not disputed that no such rule exists  in  other

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industries.   It  is also not in dispute that no  such  rule exists in other departments of the respondent-concern itself and it is only in one department that the rule is in  force. It can only be upheld if the respondent shows that there are good   and  convincing  reasons  why  in   this   particular department of the pharmaceutical industry it is necessary to have such a rule.  The only reason given for enforcement  of this  rule in this department of the  respondent-concern  is that  the workmen have to work in teams in  this  department and that requires that they should be regular and that  this cannot  be expected from married women for obvious  reasons, and  that there is greater absenteeism among  married  women than  among unmarried women or widows against whom there  is no bar of this kind. We  are not impressed by these reasons for retaining a  rule of  this kind.  The work in this department is  not  arduous for  the  department is concerned with  packing,  labelling, putting  in phials and other work of this kind which has  to be   done   after  the  pharmaceutical  product   has   been manufactured.  Nor do we think that because the work has  to be  done as a team it cannot be done by married  women.   We also  feel that there is nothing to show that married  women would necessarily be more likely to be absent than unmarried women  or widows.  If it is the presence of  children  which may be said to account for greater absenteeism among married women,  that would be so more or less in the case of  widows with  children also.  The fact that the work has got  to  be done  as a team and presence of all those workmen is  neces- sary,  is  in  our opinion no  disqualification  so  far  as married  women  are concerned.  It cannot be  disputed  that even unmarried women or widows are entitled to such leave as the  respondent’s rules provide and they would  be  availing themselves  of these leave facilities.  The only  difference in the matter of absenteeism that we can see between married women on the one hand and unmarried women and widows on  the other is in the matter of maternity leave which is an  extra facility  available to married women.  To this extent  only, married  women are more likely to be absent  than  unmarried women  and widows.  But such absence can in our  opinion  be easily  provided  for by having a few extra women  as  leave reserve  and can thus hardly be a ground for such a  drastic rule  as  the present which requires an unmarried  woman  to resign  as  soon  as she marries.  We have  been  unable  to understand  how it can be said that it is necessary  in  the interest of efficient ope- 496 ration and in the company’s economic interest not to  employ married women.  So far as efficient operation is  concerned, it  can  hardly  be said that married women  would  be  less efficient  than  unmarried women or widows so  far  as  pure efficiency  in work is concerned, apart of course  from  the question of maternity leave.  As to the economic interest of the  concern, we fail to see what difference the  employment of  married  women  will make in that  ,connection  for  the emoluments  whether of an unmarried woman ,or of  a  married woman are the same.  The only difference between the two  as we have already said is the burden on account ,of  maternity leave.   But  as to that the respondent  contends  that  the reason  for having this rule is not the respondent’s  desire to -avoid the small burden to be placed on it on account  of maternity  leave.   If  that  is so,  we  fail  to  see  any justification  for  a rule ,of this kind which  requires  an unmarried woman to give up service immediately she  marries. We  are  therefore  of opinion that there  is  no  good  and convincing  reason  why such a rule should continue  in  one

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department  of the pharmaceutical industry.  The  fact  that such   a   rule  exists  in  other  such  concerns   is   no justification,  if the rule cannot be justified on  its  own merits. Then  it is urged that the employer was free to  impose  any condition in the matter of employment when he employs a  now workman   and  that  industrial  adjudication   should   not interfere with this right of the employer.  AR that need  be said  in this connection is that it is too late in  the  day now to stress the absolute freedom of an employer to  impose any  condition which he likes on labour.  It is always  open to  industrial  adjudication to consider the  conditions  of employment  of  labour  and  to vary them  if  it  is  found necessary, unless the employer ran justify an ,extraordinary condition like this by reasons which carry conviction.   In- the  present  case  the reasons  which  the  respondent  has advanced  and  which  were the basis of  the  two  decisions referred  -to  earlier do not commend themselves  to  us  as sufficient  for such -a rule.  We are therefore  of  opinion that  such  a rule should be abrogated in  the  interest  of social justice. Lastly  it  is urged that a similar rule exists  in  certain government services and in this connection our attention  is drawn   in  particular  to  r.  5(3)  of  the  1954   Indian Administrative Service (Recruitment) Rules.  That rule reads as follows :-               "No  married  woman shall be  entitled  as  of               right  to  be appointed to  the  Service,  and               where   a  woman  appointed  to  the   Service               subsequently  marries, the Central  Government               may, if the maintenance of the                                    497               efficiency  of the Service so  requires,  call               upon her to resign." It will be seen that this rule for the Indian Administrative Service  is  not unqualified like the rule in force  in  the respondent’s  concern.   It  only lays down  that  where  an unmarried woman marries subsequently, the Central Government may, if the maintenance of the efficiency of the Service  so requires call upon her to resign.  Therefore this rule  does not compel unmarried women to resign on marriage as a matter of  course as is the case in the respondent concern.  It  is only when the Central Government considers that marriage has impaired  the  efficiency of the woman  concerned  that  the Central  Government may call upon her to resign.   The  rule which is in force in the respondent-concern however  assumes that merely by marriage the efficiency of the woman-employee is  impaired  and such an assumption in our opinion  is  not justified.    At   any  rate  this  rule  for   the   Indian Administrative Service which has been brought to our  notice only  for  purposes.  of comparison  does  not  justify  the drastic  rule  that  we have in the present  case  where  an unmarried  woman  is  compelled to  resign  immediately  she marries without regard to her continued efficiency. On a careful consideration of the reasons advanced on behalf of the respondent in support of the existing rule we are  of opinion that the reasons do not justify such a drastic rule. We  therefore allow the appeal and direct that the  rule  in question  in  the  form in which it  exists  at  present  be abrogated.   The abrogation shall take effect from the  date of this judgment.  The appellants will get their costs  from the respondent-company. Appeal allowed. 498

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