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EQUAL PAY FOR EQUAL

WORK

LABOUR LAW I

PROJECT

SUBMITTED ON: 25th October, 2009

SUBMITTED TO: SUBMITTED BY:


Mr. Rajnesh Yadav, Dhruvesh singh Yadav
Faculty of Law 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

3
List Of Cases:

CASE CITATION CITED


AT
Andhra Pradesh v. G. Sreenivasa Rao (1989) II L.L.J. 149 7
Madhya Pradesh v. Pramod Bharatiya AIR 1993 SC 286 8
India Link Chain Manufacturers Ltd. v. The (1971) II L.L.J. 581 8
Workmen
Kishori Mohanlal Bakshi v. Union of India AIR 1962 SC 1139 10
M/s. Mackinnon Mackenzie & Co. Ltd. v. (1987) 2 SCC 469 12
Audrey D’Costa and Anr.
Air India v. Nergesh Meerza and Ors. (1981) 4 SCC 335 16
State of West Bengal v. P.K. Ghosh and Ors. (2005) 10 SCC 339 18
Shyam Babu Verma v. Union of India (1994) 2 SCC 521 18
State of Madhya Pradesh v. Pramod Bhartiya (1993) 1 SCC 539 18
Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 20
Ashwinikumar v. State of Bihar (1997) 2 SCC 1 20
State of Haryana v. Piyara Singh (1992) 4 SCC 118 21
Dharwad District PWD Literate Daily Wage (1990) 2 SCC 396 21
Employees’ Association v. State of Karnataka
State of Himachal Pradesh v. Suresh Kumar (1996) 7 SCC 562 21
Verma
State of Punjab v. Surinder Kumar (1992) 1 SCC 498 21
B. N. Nagarajan v. State of Karnataka (1979) 4 SCC 507 21

4
Mahindra L. Jain v. Indore Development AIR 2005 SC 1252 22
Authority
Peoples’ Union for Democratic Rights v. Union (1982) 3 SCC 235 28
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.

5
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.
2
Universal Declaration of Human Rights, 10th December 1948, Paris, Article 23.
<http://equalitynow.org/english/campaigns/un/unhrc_reports/unhrc_india_en.pdf> (Visited on: 28th
January 2008).

7
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.
4
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).

8
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.
7
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.

9
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.”

10
Section 4, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)
11
Section 5, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)
12
Section 6, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)
13
Section 11 and Section 12, The Equal Remuneration Act, 1976,
<http://nrcw.nic.in/shared/sublinkimages/26.htm> (Visited on: 30th January, 2008)
14
Section 15, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(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.
16
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).

11
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.

12
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.

13
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. The Supreme Court has analysed the

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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,
<http://nrcw.nic.in/shared/sublinkimages/26.htm> (Visited on: 30th January, 2008)
20
Section 3, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)
21
Section 4(3), The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)
22
Section 5, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)
23
Section 7, The Equal Remuneration Act, 1976, <http://nrcw.nic.in/shared/sublinkimages/26.htm>
(Visited on: 30th January, 2008)

15
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.

17
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.

18
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.

19
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.

26
Shyam Babu Verma v. Union of India, (1994) 2 SCC 521.
27
State of Madhya Pradesh v. Pramod Bhartiya, (1993) 1 SCC 539.

20
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.

21
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.

29
Ashwinikumar v. State of Bihar, (1997) 2 SCC 1.
30
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.

22
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.

23
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.

24
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
Jain, M.P., Indian Constitutional Law, 953,(Nagpur: Wadhwa Publications, 5th ed., 2007)
37
Basu, D.D., Shorter Constitution of India, 302,(Nagpur: Wadhwa Publications, 12th ed., 1999)

27
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. <http://nrcw.nic.in/shared/sublinkimages/26.htm>

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