Equal Pay For Equal Work

EQUAL PAY FOR EQUAL WORK

LABOUR LAW I PROJECT

SUBMITTED ON: 25th October, 2009

SUBMITTED TO: Mr. Rajnesh Yadav, Faculty of Law

SUBMITTED BY: Dhruvesh singh Yadav Roll No. 49 Fifth Semester B.A. LL.B. (Hons.)

Dr RML National Law University, Lucknow.

ACKNOWLEDGEMENT This project work could not be completed with out proper guidance and adequate information, which was very frankly provided by my labour law teacher and other teachers of university. At last but not least, my labour law teacher, respected teacher Mr. R.K.YADAV who guided in brief and helped me to choose my topic and put it forward on the paper.

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Table Of Contents:

1. List of Cases………………………………………………………03 2. Introduction…………………………………………………… …04 3. Critical Analysis of the Doctrine of Equal Pay for Equal Work……..06 4. Case Laws and their Analysis……………………………………...10 i. Kishori Mohanlal Bakshi v. Union of India……... ………………..10 ii. M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa and anr. ………………………………………………………12 iii. Air India v. Nergesh Meerza and Ors. ….. ……………………….16 iv. State of West Bengal v. P. K. Ghosh and Ors. …………………….18 v. Secretary, State of Karnataka v. Umadevi…………………………20 vi. Mahindra L. Jain v. Indore Development Authority………………...22 5. Current Day Scenario……………………………………………...24 6. Conclusion………………………………………………………. ..28 7. Bibliography…………………………………………………… …29

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List Of Cases:

CASE

CITATION

CITED

Andhra Pradesh v. G. Sreenivasa Rao Madhya Pradesh v. Pramod Bharatiya India Link Chain Manufacturers Ltd. v. The

(1989) II L.L.J. 149 AIR 1993 SC 286 (1971) II L.L.J. 581

AT 7 8 8

Workmen Kishori Mohanlal Bakshi v. Union of India M/s. Mackinnon Mackenzie & Co. Ltd. v.

AIR 1962 SC 1139 (1987) 2 SCC 469

10 12

(1981) 4 SCC 335 (2005) 10 SCC 339 (1994) 2 SCC 521 (1993) 1 SCC 539 (2006) 4 SCC 1 (1997) 2 SCC 1 (1992) 4 SCC 118 (1990) 2 SCC 396

16 18 18 18 20 20 21 21

(1996) 7 SCC 562

21

(1992) 1 SCC 498 (1979) 4 SCC 507

21 21

Audrey D’Costa and Anr. Air India v. Nergesh Meerza and Ors. State of West Bengal v. P.K. Ghosh and Ors. Shyam Babu Verma v. Union of India State of Madhya Pradesh v. Pramod Bhartiya Secretary, State of Karnataka v. Umadevi Ashwinikumar v. State of Bihar State of Haryana v. Piyara Singh Dharwad District PWD Literate Daily Wage Employees’ Association v. State of Karnataka State of Himachal Pradesh v. Suresh Kumar Verma State of Punjab v. Surinder Kumar B. N. Nagarajan v. State of Karnataka 4

Mahindra L. Jain v. Indore Development

AIR 2005 SC 1252

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Authority Peoples’ Union for Democratic Rights v. Union

(1982) 3 SCC 235

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of India

Introduction:

This simple phrase “Equal Pay for Equal Work” has a complex goal. The framers of the Constitution therefore introduced it as a Directive Principle rather than a Fundamental Right. This doctrine has universal acceptance but when it comes to implementation there is a different approach. Evolved in the context of gender and racial discrimination abroad it has slowly and steadily opened up various facets in India in the context of poverty, great unemployment, and ever eagerly awaiting exploiting employers. The concept has become so complex that the Supreme Court itself has rendered almost 50 judgments dealing with the doctrine Equal Pay for Equal Work. The basic features of this doctrine are a combination of equality under Article 14 of the Constitution of India and the goals to be achieved under the Directive Principles under Article 39 of the Constitution of India. There is rampant discrimination in the work place with regards to sex, creed, race and status of a person by the entrepreneurs who are expected to pay all persons equally who are employed in the same work and under similar conditions. There is a lot more to be done to achieve in reality the goal of Equal Pay for Equal Work particularly in a country like India where exploitation of labour is a principle.

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For the first time to enforce this Directive Principle the Parliament enacted the Equal Remuneration Act, 1976. The main purpose and objective of this Act is to provide for the payment of equal remuneration to men and women workers and to prevent discrimination in the matter of employment. The objective of this research paper is to highlight the changing trend in the judicial decisions of The Supreme Court of India with respect to this Act. This paper aims to bring to light not just the positive actions taken by the Court but also to bring to light the various discrepancies in the implementation of this Act by the Court. The paper will bring to the forefront the current judicial position with respect to this Act and will show how the Court has failed to safeguard the interests of various categories of workers such as daily wage employees and casual labourers. Further, it will explain the judicial stand taken with regards to employees’ educational qualifications and will provide a critical analysis for the same. The question that this paper aims to provide an answer for is: To what extent has the implementation of The Equal Remuneration Act, 1976 and the doctrine of Equal Pay for Equal Work under Article 39(d), been successful?

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Critical Analysis Of The Doctrine Of Equal Pay for Equal Work:

As far back as 1948 the Universal Declaration of Human Rights was adopted and Article 23 thereof read as under1: “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to Equal Pay for Equal Work. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.”2 Almost 50 years thereafter in July 1997 the UN Human Rights Committee has submitted the report to the UN and in which the observations are as under: “The Equal Remuneration Act (ERA) of 1976 was designed to provide for Equal Pay for Equal Work, or similar work, and to prohibit discrimination in the recruitment of 1

Universal Declaration of Human Rights, 10th December 1948, Paris. Universal Declaration of Human Rights, 10th December 1948, Paris, Article 23. (Visited on: 28th January 2008). 2

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workers. Despite extensive legislation, women are under represented in the workforce, the practice of paying women lower wages for comparable work continues and women are often relegated to lower paying positions. According to the 1991 census, women constituted 16.83% of the workforce, and 94% of women workers were in the unorganized sector to which the labour laws do not apply.”3 The objects and reasons of the Equal Remuneration Act, 1976, read as under: “Article 39 of the Constitution envisages that the State shall direct its policy among other things, towards securing that there is Equal Pay for Equal Work for both men and women. To give effect to this constitutional provision, the President promulgated on the 26th September, 1975, the Equal Remuneration Ordinance, 1975 so that the provisions of Article 39 of the Constitution may be implemented in the year which is being celebrated as the International Women’s Year. The Ordinance provides for payment of equal remuneration to men and women workers for the same work or work of a similar nature and for the prevention of discrimination on grounds of sex.”4 Originally the doctrine of Equal Pay for Equal Work was only an unenforceable directive principle laid down under Article 39(d) of the Constitution of India which read as under: “The State shall direct its policy towards securing Equal Pay for Equal Work for both men and women”5 Subsequently the said Article has been enforced by the legislature by enacting the Equal Remuneration Act, 1976 and even the Supreme Court introduced the doctrine of directive principles into the fundament rights under Article 14 and 16 of the Constitution of India and held as under: “Doctrine of ‘Equal Pay for Equal Work’ cannot be put in a straight jacket. Although the doctrine finds its place in the Directive Principles but this Court, in various 3

Supra note 1. Gazette of India, 6-1-76, Pt 11, Section 2, Extraordinary, p.128 . 5 Article 39(d): Certain Principles of Policy to be followed by the State. The Constitution of India, Bare Text, 18, (New Delhi: Professional Book Publishers). 4

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judgments has authoritatively pronounced that right to ‘Equal Pay for Equal Work’ is an accompaniment of the equality clause enshrined in Articles 14 and 16 of the Constitution of India. Nevertheless the abstract doctrine of ‘Equal Pay for Equal Work’ cannot be read in Article 14. Reasonable classification based on intelligible criteria having nexus with the object sought to be achieved, is permissible.”6 O. P. Malhotra in his book The Law of Industrial Disputes has observed as under: “However, in subsequent cases, the Court has even gone to the extent of saying that the principle of ‘Equal Pay for Equal Work’ has assumed the status of a fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution. It has ceased to be a Judge-made law as it is a part of the constitutional philosophy which ensures a welfare socialistic pattern of a State providing equal opportunity to all and ‘Equal Pay for Equal Work’ for similarly placed employees of the State.”7 In the case of Madhya Pradesh v. Pramod Bharatiya8, The Supreme Court has enunciated the doctrine as under: “The doctrine of Equal Pay for Equal Work would apply on the premise of similar work but it does not mean that there should be complete identity for all respects. If the two classes of persons do some work under the same employer, with similar responsibility, under similar working conditions, the doctrine of ‘Equal Work for Equal Pay’, would apply and it would not be open to the State to discriminate one class with the other in paying salary.” In the case of India Link Chain Manufacturers Ltd. v. The Workmen9 the workmen enunciated in the Supreme Court while prescribing a consolidated wage scale of daily wages rejected the demand of the union that all the workers should be classified in consultation with the union and should be fixed in the wage scale claimed by it on a point to point basis with retrospective effect. 6

Andhra Pradesh v. G. Sreenivasa Rao, (1989) II L.L.J. 149. Malhotra, O.P., The Law of Industrial Dispute, 645, (London: Butterworths, vol.1, 2004). 8 Madhya Pradesh v. Pramod Bharatiya, AIR 1993 SC 286. 9 India Link Chain Manufacturers Ltd. v. The workmen (1971) II L.L.J. 581. 7

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One of the salient features of the Equal Remuneration Act, 1976 is one which prohibits an employer in an establishment run by him to provide for different remuneration for workers of the opposite sex.10 Section 5 of The Equal Remuneration Act, 1976, prohibits discrimination between the male and female workers at the time of its recruitment, promotion, training or transfer.11 Section 6 provides for the constitution of the Advisory Committee for giving advice to the Central Government for notifying the establishments to the extent to which women may be employed in such establishment.12 Section 11 and 12 provides for punishment for violation of the provisions of the said Act.13 Section 15 of the Act authorizes a favourable treatment for women employees notwithstanding anything contained in the Act. The said special treatment is in respect of birth of a child or expected birth of a child or relating to marriage or death.14 The Supreme Court has observed in the case of State of Haryana v. Jasmer Singh “At times, it may prove very difficult to the Court to apply the principle of Equal Pay for Equal Work as there are inherent difficulties in comparing and evaluating work done by different persons in different organization or even in the same organisation. Often the difference is a matter of degree and there is an element of the value judgment.”

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Section 4, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 11 Section 5, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 12 Section 6, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 13 Section 11 and Section 12, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 14 Section 15, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008)

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As the judgments of the Supreme Court analysed hereunder indicates that the simple phrase of Equal Pay for Equal Work has manifold facets thus it has become more complex to achieve than to state. Though the doctrine emerged on a simple principle of gender and racial bias it now requires to be looked into from many facets such as nature of employment qualifications of the employees the procedure of appointment whether casual, contractual, adhoc, daily wager or temporary. With the great leap in the employment of women the doctrine is further required to be looked into in relation to the bias against the male employees thus the doctrine has become a very complex goal to achieve.

Case Laws and Their Analysis: Kishori Mohanlal Bakshi v. Union of India15

Material Facts: In this case the petitioner, Income tax officer Kishori Mohanlal Bakshi filed a petition seeking enforcement of fundamental rights under Article 1416 and Article 16 17of the Constitution of India. The Petitioner who was an Income tax inspector became an income tax officer on promotion in 1946. On reconstitution of the income tax services the class of income tax officers was divided in two classes. One consisting of Income Tax officers Class I and the second of Class II. Class I was eligible for the post of Commissioner and Assistant Commissioner whereas Class II officers would not be eligible for direct promotion but they would have to get themselves promoted to the Class I officers first.

Arguments: 15

Kishori Mohanlal Bakshi v. Union of India AIR 1962 SC 1139. Article 14: Equality before law. The Constitution of India, Bare Text, 5, (New Delhi: Professional Book Publishers). 17 Article 16: Equality of opportunity in matters of public employment. The Constitution of India, Bare Text, 6, (New Delhi: Professional Book Publishers). 16

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It was contended that the splitting of the cadre of income tax officers in two classes and treating them differently though they are doing the same nature of work is violative of Article 16(1) of the Constitution of India. It was also contended that both the classes of Income Tax Officers form the same cadre and under the doctrine of Equal Pay for Equal Work and forming part of Article 14 of The Constitution of India the Petitioner is entitled to the same benefits and service conditions as Class I officers.

Decision of the Supreme Court: The Constitution Bench of the Supreme Court while deciding the case dismissed the petition stating that the main contention of the petitioner under Article 16(1) had not been violated and also the second contention of the petitioner under Article 14 also had not been violated and therefore the petition had failed. The Constitution Bench of the Supreme Court while interpreting Article 14 and 16 of the Constitution of India held that the doctrine of Equal Pay for Equal Work does not form an integral part of Article 14 and thus cannot be enforced. The Supreme Court also rejected the challenge under Article 16 of the Constitution of India and dismissed the Writ Petition.

Reasons for the Judgement: The Supreme Court while considering the case rejected the contention of the appellant that his Fundamental Right under Article 16(1) was being violated giving a reason that if, of the Income Tax Officers of the same grade, only some were eligible for promotion to a superior grade, and others were not, this would amount to a contravention of Article 16(1). However, this is not the case and all Class II employees were eligible for the same promotions, and thus there is no denial of equality of opportunity in the present case.

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As far as the contention of the Fundamental Right under Article 14 was concerned, The Supreme Court, rejected the contention stating that this contention had no validity as if this was followed, then there could be no incremental scales of pay fixed dependent on the duration of an officer’s serve.

Ratio: The doctrine of Equal Pay for Equal Work has nothing to do with Article 14 of the Constitution of India.

M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa and anr.18

Material Facts: In the land mark judgment in the case of Mackinnon Mackenzie v. Audrey D’Costa and anr., The Supreme Court analysed the doctrine of Equal Pay for Equal Work as well as the Equal Remuneration Act 1976. An employee Audrey D’Costa who was a confidential lady stenographer was terminated from service.

She instituted

proceedings under Section 7 of the Equal Remuneration Act, 1976. She contended that she was paid a less remuneration than that which was paid by the company to the male stenographers. She contended that both are discharging similar work and are thus entitled to equal pay. She further contended that after the coming into force of the Equal Remuneration Act, 1976 she could not be discriminated against. The company denied that there was a discrimination and contended that both the male and female stenographers are not discharging similar work. s The Competent Authority constituted under the Act heard the complaint of Audrey D’Costa and held that both the lady and male stenographers were discharging the same kind of work but rejected the relief on the ground that in view of the settlement 18

M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa and Anr. (1987) 2 SCC 469.

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arrived at between the employees union and management in 1975 she was not entitled to the said relief. It was further held that the said settlement was binding on her and therefore she was entitled to the wages as per the said settlement.

Decision of the High Court: An appeal was preferred to the Deputy Commissioner of Labour against the said order, whom while allowing the appeal held that there is a gross discrimination between the pay scale of the male and female stenographer and the Company has committed a breach of Section 4 of the Equal Remuneration Act. The Deputy Labour Commission allowed the appeal accordingly. The Company thereafter preferred a Writ Petition in the High Court. The Hon’ble High Court held that there was discrimination but for the purpose of computation of the amount entitled, the matter was remanded back. The company thereafter filed an appeal which was dismissed and further moved the Supreme Court.

Decision of the Supreme Court: The Supreme Court while considering the appeal of the company traced the doctrine of Equal Pay for Equal Work to Article 39(d) of the Constitution of India. The Supreme Court further traced that a convention was held known as the convention concerning Equal Remuneration for Men and Women Workers for work of equal value was adopted by the general conference of International Labour Organization on 29th June 1951 and that India was a party to the said convention. The Supreme Court there after analysed the provisions of the said convention. It directed its member states to ensure the application to all workers of the principle of Equal Remuneration for male and female workers for work of equal value. It also suggested to the member states to pass appropriate Regulations and provide for implementation of the said doctrine. The government of India initially promulgated the Ordinance known as Equal Remuneration Ordinance 1975 and thereafter followed it up with the legislation titled as the Equal Remuneration Act, 1976. 14

The Supreme Court has analysed the

provisions of the Equal Remuneration Act, 1976 while considering the same work or work of similar nature under the provision Section 2(b), (g) and (h) of the Act and held that: “The same work or work of similar nature means work in respect of which the skill, effort and responsibility required are the same when performed under the similar working condition by a man or a woman and the differences, if any, between the skill, effort between the responsibility required by a man and those of a woman are not of practical importance in relation to the terms and conditions of the employment”19 Thereafter Section 3 and Section 4 were analysed. Section 3 of the Act prohibits any employer from paying any less remuneration than what is paid to the opposite sex for performing the same work or work of a similar nature.20 Under Section 4(3) it is provided that if there is any discrimination existing prior to the commencement of the Act then such discrimination will be removed with immediate effect. 21 Provisions of Section 5 of the Act prohibits discrimination at the recruiting stage between men and women workers.22 Section 7 of the Act provides for adjudication of the dispute if it arises between management and the employees.23 On the aforesaid analysis of the provisions of the Act the Supreme Court has held that while determining whether the work is same or of a similar nature as another work three factors should be taken into consideration: 1. The authority must take a broad view of the similar nature of the work. 2. While determining whether the work is similar or not the differences if any should be looked into broadly and whether they are of practical importance or not. The authorities must look into the duties performed and not theoretically possible. 19

Section 2(b), Section 2(g), Section 2(h), The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 20 Section 3, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 21 Section 4(3), The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 22 Section 5, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008) 23 Section 7, The Equal Remuneration Act, 1976, (Visited on: 30th January, 2008)

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3. It is further held that the question of discrimination will arise only where a man and a woman are doing same or similar work and are paid differently.

Reasons for the Judgement: On the analysis of the facts of that case the Supreme Court came to the conclusion that in fact the confidential lady stenographers were not only doing the similar work as the male stenographers but by virtue of the fact that they were attached to the executives they were doing additional work. They found that there was no ground to change the findings arrived at by the lower courts. The Supreme Court granted relief to the employee Audrey D’Costa even while brushing aside the argument of the company that it would affect the financial position of the company adversely.

Ratio: While considering Section 4(3) of the Act it was laid down that, even if there was dissimilarity before the enactment of the Equal Remuneration Act 1976 then also from the date of the commencement of the act equal work should be paid for by equal pay.

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Air India v. Nergesh Meerza and Ors.24

Material Facts: In this case the principle of Equal Pay for Equal Work and The Equal Remuneration Act, 1976 were pressed into service as an integral part of the Constitution in a slightly different context. The issue was hostile discrimination in the age of retirement. Air Hostesses who were a part and parcel of the cabin crew on the flight were treated differently in the case of retirement age. For air hostesses it was provided that they have to retire at the age of 35 years or if they get married within 4 years from joining the service or on first pregnancy. The age for retirement of all other employees was fixed at 58 years under Regulation 46 of Air India Service Employees’ Regulations. While challenging the aforesaid discrimination the provisions of Article 14 and The Equal Remuneration Act, 1976 was pressed in service.

Decision of the Supreme Court: The Supreme Court held that: “There is no doubt that the statutory mandate prohibits any employer from making a distinction in wages between male and female. Had the matter rested here, there could have been no option but to accept the argument of Mr. Setalwad. It would, however, appear that the benefit conferred on the females under the 1976 Act is not absolute and unconditional.”

Reasons for the Judgement: 24

Air India v. Nergesh Meerza and Ors. (1981) 4 SCC 335.

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The Supreme Court held that Section 16 of The Equal Remuneration Act, 1976 empowers the appropriate government that if they are satisfied that differences in regard to the remuneration between men and women workers in any establishment or employment is based on a factor other than sex then it may by notification make a declaration to that effect and in such cases the difference will not be a contravention of the act. Relying upon the said section and the notification issued there under the Supreme Court held that the provisions of the said Act cannot apply.

Ratio: If discrimination in the conditions of service or of pay scale is based more than on a mere consideration of sex then in that event the provisions of the Equal Remuneration Act has no application.

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State of West Bengal v. P. K. Ghosh and Ors. 25

Material Facts: In this case there were three categories of draftsmen each one being given a different pay scale. The first category was having overseers’ qualification, the second category was having sub-overseers qualification and the third category was having the pass certificate of government college of arts. Each of these categories was given different pay-scales. Two of the three categories, i.e. persons having overseers’ qualification and persons having sub overseers qualification were given one pay scale whereas the persons holding pass certificate of the government college of arts were treated differently. This category of employees filed a writ petition claiming Equal Pay for Equal Work wherein it was contended that all the draftsmen discharge an identical nature of work and their workload does not depend on the qualification of the draftsmen.

Decision of the High Court: The Division Bench of the High Court held that though the Draftsmen are of different categories they perform identical nature of work and therefore they are entitled to the benefits of equal pay under the doctrine of Equal Pay for Equal Work.

Decision of the Supreme Court: The Supreme Court considered the arguments of both the parties and went into the nature of work carried out by the draftsmen of different categories. The Supreme 25

State of West Bengal v. P.K. Ghosh and Ors. (2005) 10 SCC 339.

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Court found that the distinction is made on the basis of the qualifications of the draftsmen. The Supreme Court relied upon the judgment in the case of Shyam Babu Verma v. Union of India26 as well as State of Madhya Pradesh v. Pramod Bhartiya27. The Supreme Court after consideration came to the conclusion that if the employees in the same service in different categories are paid different pay scale on the basis of the qualification possessed by them then there is no discrimination since the person having different qualification form different classes. It has been held as under: “So far as the proposition of law is concerned there cannot be nor is there any dispute that one would be entitled to Equal Pay for Equal Work but that alone is not and cannot be the sole criterion much less where it has also not been established that all the persons of subordinate engineering services constitute one class of draftsmen performing identical nature of duties. Even though there may be similar nature of work yet distinction is permissible based upon their educational qualifications.” The Supreme Court ultimately allowed the appeal of the State of West Bengal and the order passed by the High Court are set aside.

Ratio: It is permissible to treat the employees differently and provide for different service conditions on the basis of the qualifications they possess and there would be no violation of the principles of Equal Pay for Equal Work even if the nature of work discharged is similar.

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Shyam Babu Verma v. Union of India, (1994) 2 SCC 521. State of Madhya Pradesh v. Pramod Bhartiya, (1993) 1 SCC 539.

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Secretary, State of Karnataka v. Umadevi28

Material Facts: In this case two appeals were filed against two judgments of the Karnataka High Court. In one bunch of appeals the daily wage employees who were temporarily engaged in the commercial taxes department of the state of Karnataka had made representation to be regularized since they were in service for more than ten years ad daily wagers. The director of Commercial Taxes recommended their absorption but the government did not exceed to the said recommendation. Thereupon the employees approached the Administrative Tribunal who rejected their claim. Against the said order a writ petition was filed in the Karnataka High Court which was allowed and the High Court directed the state to consider the case of these employees for regularization within a period of four months from the date of the said order. In the second bunch of appeals the Association of Employees filed a writ petition in the High Court of Karnataka challenging the validity of the order issued by the government directing the cancellation of appointments of all casual workers or daily rated workers which are made after 1.7.1984 in contravention of the government order prohibiting the employment on the basis of daily wages and as a casual worker. The Division Bench of the High Court held that the employees are not entitled to the benefit or regularization if they are appointed after 1.7.1984. Against this order the Association preferred an appeal to the Supreme Court.

Decision of the Supreme Court: The Supreme Court while considering the abovementioned case found a conflict of opinions among various benches. On the one hand the view was taken that such 28

Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1.

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regularization is not permissible in the cases of Ashwinikumar v. State of Bihar29, State of Haryana v. Piyara Singh30 and Dharwad District PWD Literate Daily Wage Employees’ Association v. State of Karnataka31 whereas on the other hand the view was taken that such regularization of casual worker or daily worker ought to have been granted in the cases of State of Himachal Pradesh v. Suresh Kumar Verma32, State of Punjab v. Surinder Kumar33 and B. N. Nagarajan v. State of Karnataka34. The Supreme Court therefore constituted the Constitution Bench to resolve the said controversy. The Supreme Court while considering the doctrine of Equal Pay for Equal Work held that this doctrine is different from the concept of conferring permanency on those employees who are appointed on ad hoc basis, temporary basis or based on no process of selection as contemplated by the rules. It was held that no doubt the principle of Equal Pay for Equal Work is a constitutional mandate and enshrined in the directive principles but it cannot be extended to the appointments which are made without following the due procedure established by law. In fact the Supreme Court held that by doing so it would be a negation of the principle of equality of opportunity.

Ratio: The Constitution bench went through the entire issue and held that the doctrine of Equal Pay for Equal Work cannot apply to these categories of the workers on the basis of regular employees holding regular posts. The Supreme Court further held that the daily wage earners, casual employees, would be entitled to the equal pay which is equivalent to the lowest grade employee in the cadre of the employment but they will not be entitled to other allowances.

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Ashwinikumar v. State of Bihar, (1997) 2 SCC 1. State of Haryana v. Piyara Singh, (1992) 4 SCC 118. 31 Dharwad District PWD Literate Daily Wage Employees’ Association v. State of Karnataka , (1990) 2 SCC 396. 32 State of Himachal Pradesh v. Suresh Kumar Verma, (1996) 7 SCC 562. 33 State of Punjab v. Surinder Kumar, (1992) 1 SCC 498. 34 B. N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507. 30

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A casual worker daily wager temporary or contractual employee cannot demand the same pay scale and benefits as regularly appointed employees.

Mahindra L. Jain v. Indore Development Authority35

Material Facts: In the case of Mahindra L. Jain v. Indore Development Authority once again the Supreme Court was called upon to consider the doctrine of Equal Pay for Equal Work. In this case some of the employees who were degree holders and diploma holders in civil engineering applied for a job without an advertisement. They were appointed by the Indore Development Authority on an overseas project known as Indore Habitat Project as daily wagers. A dispute arose as to whether the employees so appointed by the said Authority were required to be regularized and were entitled to the equal pay as per the scale of the permanent employees.

Decision of the Supreme Court: It was contended by the plaintiff that there was no difference in the work performed by the daily wagers and the workers of the Indore Development Authority and thus they are entitled to equal remuneration on the doctrine of Equal Pay for Equal Work. The Supreme Court, however, rejected this contention of the plaintiff.

Reasons: The Supreme Court while rejecting the aforesaid argument has held that since the employees were on daily wages they were not holding any post in the organization and were not appointed in accordance with the provisions of the statute and therefore 35

Mahindra L. Jain v. Indore Development Authority AIR 2005 SC 1252.

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they were not entitled to take recourse to the doctrine of Equal Pay for Equal Work. It was held that since their services were not regularized they are not entitled to the pay packet of the regular employees who are appointed by following the process of regular employment.

Ratio: A daily wager who does not hold any post in an organization or who is not a regularized worker, is not entitled to an equal pay packet as that offered to regularized, permanent employees of the organization under the doctrine of Equal Pay for Equal Work.

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Current Day Scenario:

The Equal Remuneration Act, 1976 has proved to be fairly effective in achieving certain of the goals it was enacted for. A close observation of the cases analyzed reveals the change in the mental thought process and reasoning of the Hon’ble Judges of The Supreme Court of India over time. In the case of Kishori Mohanlal Bakshi v. Union of India, the Hon’ble Judges had interpreted the case and passed a decision which was to the effect that it excluded the doctrine of Equal Pay for Equal Work out of the ambit of Article 14 of The Constitution of India stating that this doctrine had nothing to do with Article 14. This decision was, however, passed before the enactment of the Equal Remuneration Act, 1976. The passing of this piece of legislation brought a sea change in the reasoning of the Hon’ble Judges of The Supreme Court of India. In the following judgements passed by the Supreme Court, the Court went on to enforce this Act with a retrospective effect in the case of M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa and anr. The Supreme Court of India further went on to state in the case of Air India v. Nergesh Meerza and Ors., that if there is discrimination in the conditions of service or pay scale purely based on the sex of the employee then such discrimination is considered to be against the provisions of the Equal Remuneration Act,1976. However, if such discrimination is based more than on a mere consideration of sex then in that event, the provisions of the Equal Remuneration Act would have no application. Further in the case of Secretary, State of Karnataka v. Umadevi and in the case of Mahindra L. Jain v. Indore Development Authority, the Supreme Court laid down the principle that the doctrine of Equal Pay for Equal Work cannot apply to workers

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under the categories of daily wage workers and casual employees and such employees cannot demand the same pay scale as regular employees nor are they entitled to any other allowances that regular employees get the benefit of. The Supreme Court also went on to say in the case of State of West Bengal v. P. K. Ghosh and Ors., that there can be discrimination in the pay scale of employees on the basis of the educational qualifications they possess without violating the principles of Equal Pay for Equal Work, even if the work they carry out is of a similar nature.

The Judicial position has certainly changed from before the enactment of The Equal Remuneration, 1976 and has shown positive signs to remove the bias in the pay scale in organizations. But this move has mainly focused on removing the disparity in the salaries between the male and female employees performing work of a similar nature. The Judiciary has, however, failed to enforce this legislation in other fields such as in respect of casual and daily wage workers. The Courts are still of the stand that such employees are not entitled to receive the benefits of pay as well as perks as other regularized employees do, despite the fact that both categories of workers discharge duties of a similar nature. On the issue of providing a different pay scale, for employees holding the same position in an organization, on the basis of educational qualifications, the Judiciary is of the opinion that such discrimination in pay scale is justified and not contrary to the law. This however, is a controversial issue as it can also be argued that such difference is arbitrary from the point of view that two people holding the same position in an organization cannot be discriminated against in terms of their pay scale. Possessing an educational qualification can enable a person to join an organization at a higher position but his pay scale, however, cannot be higher than that of a person already holding a similar position in that organization. A person who without holding any educational has reached a certain position in an organization, has done so by promotion and in the process has gained practical experience in the firm’s business. This attribute cannot be subdued by the possession of an educational qualification. This view has not been considered by the Judiciary.

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The trend of the judgments indicates that the doctrine of Equal Pay for Equal Work is being diluted by many exceptions. The basic reason is that it is difficult for the court to apply the said principle because of difficulties in comparing and evaluating work done by different persons in different organizations or even in the same organization. In U.K. or U.S.A. the task of evaluating and ascertaining whether there is discrimination in the treatment is vested with the commissions under the Act who are well equipped with ascertainment with the nature of job and service conditions. M. P. Jain in his book36 has stated as under: “Often the difference is a matter of degree and there is an element of value judgment.” Durga Das Basu in his book37 puts it as under: “There is, however, no discrimination where though the function may be the same the responsibility or the quality of work of two employees may be different. The problem of equal pay cannot be translated into a mathematical formula and certain amount of value judgment must be left with the administrative authorities with which the Court can interfere only if the differentiation is irrational, without any basis or malafide.” Thus the implementation of the doctrine of Equal Pay for Equal Work has not been satisfactory because the courts are ill equipped to ascertain and screen the nature of work carried out by two sets of employees and therefore with thin distinctions most of the employers get away from making payment to two sets of employees. To have an effective implementation of the doctrine and to give true meaning to the right of equality in employment it is necessary that the provisions of the Equal Remunerations Act must be amended and a provision should be provided for the constitution of a commission before whom complaints can be filed on the ground of discrimination and unequal remuneration. This commission under the Act must be empowered to scrutinize the complaint, go into the nature of work, qualifications and

36 37

Jain, M.P., Indian Constitutional Law, 953,(Nagpur: Wadhwa Publications, 5th ed., 2007) Basu, D.D., Shorter Constitution of India, 302,(Nagpur: Wadhwa Publications, 12th ed., 1999)

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the nature of appointment to determine whether there is any discrimination and whether the doctrine of Equal Pay for Equal Work is violated. The Court thereafter should scrutinize the orders of the Commission in Writ Jurisdiction on the basis of the facts already evaluated by the experts in the commission. This would assist the Court in arriving at an appropriate decision to give effective meaning to the equality of employment by trying to eliminate the discrimination among two employees which are sought to be discriminated on the flimsy grounds such as casual appointment, contractual appointment or on the ground of gender bias or on the ground of slight variation in nature of duties. In India there has been a lot of discrimination in the employment sector because of cheap labour available most of which is in the unorganized sector. An establishment of a Commission under the Remuneration Act would also provide easy accessibility to poor employees to get their grievances redressed effectively and without much expense.

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Conclusion:

Though in the International Women’s Year in India, 1975, the doctrine of Equal Pay for Equal Work was embodied in The Equal Remuneration Ordinance, which has been enacted in an act known as Equal Remuneration Act, 1976; it has still failed to achieve equalities among the female gender with the male gender. In the matter of employment particularly in the unorganized sector there is a still vast discrimination in the pay scales of the males and females in discharging the same work. In a country like India where unemployment is rampant this goal of Equal Pay for Equal Work is more a myth than a reality. In the farming sector, construction sector and various other unorganized sectors the provisions of The Equal Remuneration Act, 1976 have been rampantly violated. People are appointed as casual, contractual, temporary and daily wagers to escape the net of labour laws. The situation has been aptly put up in the apex court in the Peoples’ Union for Democratic Rights v. Union of India and Ors. where The Supreme Court observed as under: “The Rule of Law does not mean that the protection of the law must be available to only a fortunate few or that the law should be allowed to be prostituted by the vested interest for protecting and upholding the status quo under the guise of enforcement under their civil and political rights. The poor too have civil and political rights and the rule of law is meant for them also though today it exists only on paper and not in reality”38 38

Peoples’ Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.

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Though the passing of twenty five years to the aforesaid observation of The Supreme Court, the situation on ground has not yet changed much. Even today due to the vast population, the large number of work force is still in an unorganized sector and rampantly deprived the welfare labour legislations including the benefits of the doctrine of Equal Pay for Equal Work.

Bibliography:

Books: 1. Malhotra, O.P., The Law of Industrial Disputes, (London: Butterworths, vol. 1, 2004) 2. V.G.Goswami , Labour Industrial Laws,(Central Law Agency) 3. Avtar singh, Labour and Industrial Laws, (Wadhwa Publication) 4. By Mr. Rajnesh Yadav, Study material on labour law 5. S.N.Misra, labour and Industrial Laws,(Central Law Publication,Alld)

Websites: 1. <www.manupatra.com> 2. <www.equalitynow.org> 3.

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