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EQUAL PAY FOREQUAL WORK-CONSTITUTIONALAND LABOURLEGISLATIONPERSPECTIVESUBMITTED TO-DR.SHAILENDRA NIGAMSUBMITTED BY-GROUP 6...
INTRODUCTIONThe topic of our project is Equal Pay for Equal Work-Constitutional and Labourlegislation perspective.In our p...
been made by the Supreme Court while adjudicating the cases, involvingthe concept of Equalpay for Equal work as enshrined ...
LITERATURE REVIEW:The principle of „equal pay for equal work‟ has an important place in India. It is read withArticle 39(d...
there should not be any discrimination in terms of pay on grounds of sex or gender of theperson.It has to be stated here t...
Thus it is merely an enactment of Article 39(d) of the Constitution in its strict sense, leavingthe scope of interpretatio...
CONSTITUIONAL PERSPECTIVEIt can be seen that considering and stating that all men are equal is not enough but a concretest...
CASES TO UNDERSTAND THE CONSTITUTIONAL PERSPECTIVE1. Randhir Singh v. Union of IndiaIn this case, the petitioner was a Dri...
equalpay for equal work was deducible from those Articles and could properly be applied tocases ofunequal scales of pay ba...
payment ofreasonable wages for the work taken from them and the Court is under duty toenforce theirclaim.There shall be eq...
hazards involvedetc. were some of the relevant factors which were to be taken intoconsideration while fixingthe pay scales...
scarcely knew what the „Tryst with Destiny‟ was all about. Victims of poverty, ignorance andoppressive social institutions...
classification with the apex court has pointed outfreely and exhaustively. The Act does not,also, lay any provision as to ...
once it was established, the Court said, that the lady Stenographers were doingpractically thesame kind of work which the ...
notbe made with their counter parts in other establishments in different geographicallocations, though it was owned by the...
It was held by the Supreme Court that Equal Pay for Equal Work has assumed thestatus of afundamental right in service juri...
nature asperformed by the squad teachers but they were denied the same scale of payandinstead they were paid a fixed salar...
SUGGESTIONS1. The equal remuneration act should not focus only on gender discrimination.2. Equal pay for equal work should...
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Equal pay for equal work labouor laws

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Equal pay for equal work labouor laws

  1. 1. EQUAL PAY FOREQUAL WORK-CONSTITUTIONALAND LABOURLEGISLATIONPERSPECTIVESUBMITTED TO-DR.SHAILENDRA NIGAMSUBMITTED BY-GROUP 6ASTHA BISHNOIDIKSHA UNIYALGARGI KARNATAKNIKHIL SHARMANIRANKAR ROYALSWIMMI ALASAKA
  2. 2. INTRODUCTIONThe topic of our project is Equal Pay for Equal Work-Constitutional and Labourlegislation perspective.In our project we have tried to understand the concept of equal payand work from the constitutional perspective and understanding the roots of the concept fromthe constitution, understanding how the concept emerged from the fundamental rights andthereon trying to understand the inclusion of the concept in various acts,eg EqualRemuneration Act, Contract Labour, Factories Act etc.The preamble of the Constitution of India is an introduction to the Constitution and laysdownin brief the aims and objectives of the policy framers of the Union of India. Itenunciates thosesocio-economic goals and ends which are to be achieved by theIndian Constitution. Thesegoals are multitudinous in nature and secure for the citizensof India (in some cases forforeigners as well) a variety of rights and ensure justice,liberty, equality, and fraternity to all.Part IV of the Constitution lays down the Directive Principle of State Policy. Thisnovelfeature, envisaged by our Constitution, was borrowed from the Constitution ofIreland,which itself had borrowed it from the Spanish Constitution. These DirectivePrincipleslay down the basic aims and objectives of the States, to be followed in thegovernanceof the country. They are more or less the guidelines, directing the government astowhat is to be kept in contemplation while framing the policies. They can also be termedas adistinct set of moral duties, to be implemented by the state, while giving shape tolegislationsand provisions of the State.In other words Directive Principles act as a device for making the Government conformto theideals, which the Constitution lays, for the attainment of democracy in its truesense i.e.political as well as economic. This can be done only when the Governmentcomplies withthese stated objectives and makes an attempt to make India welfare statein real as well aspractical terms.They are however non-justifiable rights on the people, which set out theeconomic,social and political goals of the Indian Constitutional system, and place thegovernmentunder a moral obligation to achieve and maximise social welfare and basic socialvalueslike education, employment, health etc.The reason for their non-enforceabilityis that they impose apositive obligation upon the stateand it is while taking actions for implementing theseobligations that there arise severallimitations to the Government, one such constraintbeing the availability of resources. Thepurpose for enunciating the extent ofenforceability of directive principles of state policy is ofrelevance in the present topicbecause the concept of equality of pay i.e. “equal pay for equalwork” being a part ofthese Directive Principles is to hold the same fate as other DirectivePrinciples.However, the Courts in India and the Supreme Court in particular have constantlyandconsistently regarded the principle of equal pay for equal work as a constitutionalgoal,much higher than being a mere Directive Principle, and have subsequently enforced itin-tandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18).Theprimary purpose of this research project is to study the various interpretationswhich have
  3. 3. been made by the Supreme Court while adjudicating the cases, involvingthe concept of Equalpay for Equal work as enshrined in Article 39(d) of theConstitution.The topic is of great relevance on the contemporary world as it is being felt thatconsideringand stating that all men are equal is not enough but a concrete step orrather a series of stepsneed to be taken to bring the concept of classless society intoexistence and the applicabilityof the concept of equal pay for equal work is one of suchsteps, taken to wipe out any scope ofunreasonable discrimination as which may occuror may be followed in any form of societywhen it comes to payment of remuneration.This research project is an attempt to grasp thevarious interpretations the conceptholds and the different analogies, which can be formed tosave the people from theclutches of irrational discrimination.An equal pay legislation such as the Equal Remuneration Act in India, seeksto determinewages on the basis of a politically motivating or social justice relatedfactor, in this case,gender. The mutual incompatibility of the two sets of factors isobvious. While the first setmight generate an efficient labour force, the second set hasabsolutely no relation toproductivity, and hence cannot work towards an efficientlabour force.If a firm overpays, itwould eventually have to close down since it would run out ofmoney. At the same time, if afirm underpays, it is would still not be a profit yieldingpractise since it would lose employeesto competitors. To add to it, it would sufferfrom over optimal quit-rates, and have to investadditionally in hiring, firing, andother training expenses.While clearly, the search for profitwould cause some entrepreneurs to set aside theirtaste for discrimination, it is neverthelesstrue that others would be willing to incur thecost. These employers would then be paying theprice of discrimination in the form ofdecreased profits.
  4. 4. LITERATURE REVIEW:The principle of „equal pay for equal work‟ has an important place in India. It is read withArticle 39(d) and Article 14 of the Constitution of India.Article 39 (c) of the Constitution ofIndia provides for Directive Principles of State Policy. This aims for equitable distribution ofresources of production among all citizens. It also aims to prevent the concentration of wealthin the hands of a few.One such principle is „Equal Pay for Equal Work.‟ As the name itself suggests, its purpose isto ensure that individuals who are doing an equal amount of work shall be entitled to equalremuneration. The term „equal pay‟ includes basic salary, and also other benefits, such asbonuses and allowances. These clauses highlight the Constitutional objectives of building anegalitarian social order and establishing a welfare state, by bringing about a social revolutionassisted by the State, and has been used to support the nationalization of mineral resources aswell as public utilities.However, the Courts in India and the Supreme Court in particular have constantly andconsistently regarded the principle of equal pay for equal work as a constitutional goal, muchhigher than being a mere Directive Principle, and have subsequently enforced it in-tandemwith the fundamental rights, enshrined under Right to Equality (Art. 14-18). great relevanceon the contemporary world as it is being felt that considering and stating that all men areequal is not enough but a concrete step or rather a series of steps need to be taken to bring theconcept of classless society into existence and the applicability of the concept of equal payfor equal work is one of such steps, taken to wipe out any scope of unreasonablediscrimination as which may occur or may be followed in any form of society when it comesto payment of remuneration.EQUAL PAY FOR EQUAL WORK UNDER THE CONSTITUTION OF INDIAThe concept of Equality of pay was incorporated under the Directive Principles of StatePolicy by the framers of the Constitution so as to follow the principles of Equality and makeIndia a welfare State i.e. a country aimed at creating an egalitarian society. However theapplication of the concept of Equality of pay was restricted only up to the discrimination onbasis of gender and sex as under the principle laid down under Article 39 which states asfollows;39. The State shall, in particular, direct its policy towards securing-(d) that there is equal payfor equal work for both men and women.Thus the framers of the Constitution incorporatedthis provision to wipe out any discriminationmade against women or men in regards to theterms of pay. However on going strictly according to the provision, it nowhere states that thisconcept of equality of pay is to be followed even interms of employment as of between manand man or woman and woman i.e. it does not granta right that man must be paid equallyamong themselves and woman among themselves if they perform the same kind of work. Theaforesaid provision also does not state any distinctionbetween the capacity of these men andwomen and that has to be constructed by the Courtsthemselves. Thus it is clear that whileframers of the Constitution incorporated this provision, they only kept in contemplation that
  5. 5. there should not be any discrimination in terms of pay on grounds of sex or gender of theperson.It has to be stated here that though it is the primary task of the employer not to discriminateonthe basis of sex (as made mandatory by the Supreme Court in recent judgments), theConstitution does not provide for any classification that the employer can make such as onthe basis of qualification and level of skill of the employee i.e. if the workers perform thesame task, they have to be treated equally without any discrimination thereof.Though the article speaks only as to discrimination between man and woman, the conceptofequal pay for equal work has been applied in generality to all without any hint of gender orclass.The Supreme Court continuously and consistently increasing the purview of thisdoctrine hasgone far off to make new interpretations so that any sort of discrimination, unlessbased on reasonable grounds, does not go un-refuted. The very purpose and nature of the saidarticle has been changed by the apex court and the article which was originally instilled tosupport woman in there right of equal status is now applied to now employed to nullify anysort of rule and provision which tends to affect the rights of workers to get equal pay if theyperform the same kind of work in similar organizations. However the Supreme Court hasadded a new clause to the article in the way of reasonable nexus of discrimination. Thisreasonable nexus includes the qualifications of the employees, capacity of the workers andmany more. The list is endless and new points of classifications are incorporated in it as andwhen the Supreme Court says so.EQUAL REMUNERATION ACT, 1976For the purpose of incorporating and giving effect to the Constitutional directive of Equalpayfor equal work, The Equal Remuneration Act, 1976 was passed. The objects and reasonsof the Act states that President of India promulgated The Equal Remuneration Ordinance,1975 on 26thSeptember, 1975 so that the provision of Art. 39(d) was implemented in the year,which was being celebrated as the International Woman‟s Year. The ordinance was broughtto effect to provide for payment of Equal Remuneration to both man and woman workers forthe same work or work of similar nature and for the prevention of discrimination on groundsof sex.The various provisions for the payment of remuneration at equal rates are provided inChapterII of the Act and almost all the provisions point to similar ends and ultimately directtheemployers not to practice discrimination while recruitment, while payment or even whileconsidering employees for promotion. The Act also provides for maintenance of registers inthe organizations, creation of posts of Inspectors and other related offices to keep a check onsuch prejudiced practices, which are likely to affect the provisions of the Act. It speaksextensively of what the employers have to follow but is silent on the point of reasonableclassification with the apex court has pointed out freely and exhaustively. The Act does not,also, lay any provision as to whether the qualifications of the employees are to be consideredwhile framing paying packages or not. The only thingwhich the Act point to is that theemployer must not discriminate on the basis of the sex of the worker if both man and womanare doing same or similar kind of work.
  6. 6. Thus it is merely an enactment of Article 39(d) of the Constitution in its strict sense, leavingthe scope of interpretation to the Courts.The need for such a directive was felt as:Progress in fighting discrimination at work has always been uneven and patchy, evenforlong recognized forms such as discrimination against women. Discrimination atworkwill not vanish by itself; neither will the market, on its own, take care of it.Inequalities within discriminated groups were widening. Affirmative action policies,forexample, helped create a new middle class of formerly-discriminated persons insomecountries. A few rises to the top of the social ladder, while most remain among thelowpaid and socially excluded.Discrimination often traps people in low-paid, “informal” economy jobs.Thediscriminated are often stuck in the worst jobs, and denied benefits, socialprotection,training, capital, land or credit. Women are more likely than men to beengaged in thesemore invisible and undercounted activities.The failure to eradicate discrimination helps perpetuate poverty. Discriminationcreates aweb of poverty, forced and child labor and social exclusion, the report says,adding“eliminating discrimination is indispensable to any viable strategy for povertyreductionand sustainable economic development”.Everyone gains from eliminating discrimination at work - individuals, enterprisesandsociety at large. Fairness and justice at the workplace boosts the self-esteem andmoraleof workers. A more motivated and productive workforce enhances the productivityandcompetitiveness of businesses.AMENDMENTS:42nd Amendment was passed during internal emergency by Indira Gandhi. Providesforcurtailment of fundamental rights, imposes fundamental duties and changes to the basicstructure of the constitution by making India a "Socialist Secular" Republic.
  7. 7. CONSTITUIONAL PERSPECTIVEIt can be seen that considering and stating that all men are equal is not enough but a concretestep or rather a series of steps need to be taken to bring the concept of classless society intoexistence and the applicability of the concept of equal pay for equal work is one of suchsteps, taken to wipe out any scope of unreasonable discrimination as which may occur or maybe followed in any form of society when it comes to payment of remuneration. The conceptof Equality of pay was incorporated under the Directive Principles of State Policy by theframers of the Constitution so as to follow the principles of Equality and make India awelfare State i.e. a country aimed at creating an egalitarian society.However the application of the concept of Equality of pay was restricted only up to thediscrimination on basis of gender and sex as under the principle laid down under Article 39which states as follows;The State shall, in particular, direct its policy towards securing that there is equal pay forequal work for both men and women.Thus the framers of the Constitution incorporated this provision to wipe out anydiscrimination made against women or men in regards to the terms of pay. However, goingstrictly according to the provision, it nowhere states that this concept of equality of pay is tobe followed even in terms of employment as of between man and man or woman and womani.e. it does not grant a right that man must be paid equally among themselves and womanamong themselves if they perform the same kind of work. The aforesaid provision also doesnot state any distinction between the capacity of these men and women and that has to beconstructed by the Courts themselves. Thus it is clear that while framers of the Constitutionincorporated this provision, they only kept in contemplation that there should not be anydiscrimination in terms of pay on grounds of sex or gender of the person.It has to be stated here that though it is the primary task of the employer not to discriminateon the basis of sex, the Constitution does not provide for any classification that the employercan make such as on the basis of qualification and level of skill of the employee i.e. if theworkers perform the same task, they have to be treated equally without any discriminationthereof. Article 14 of the Indian Constitution explains the concept of Equality before law. Theconcept of equality does not mean absolute equality among human beings which is physicallynot possible to achieve. It is a concept implying absence of any special privilege by reason ofbirth, creed or the like in favour of any individual, and also the equal subject of allindividuals and classes to the ordinary law of the land. As Dr. Jennings puts it: "Equalitybefore the law means that among equals the law should be equal and should be equallyadministered, that like should be treated alike. It only means that all persons similarlycircumstance shall be treated alike both in the privileges conferred and liabilities imposed bythe laws. Equal law should be applied to all in the same situation, and there should be nodiscrimination between one person and another. As regards the subject-matter of thelegislation their position is the same. Thus, the rule is that the like should be treated alike andnot that unlike should be treated alike.
  8. 8. CASES TO UNDERSTAND THE CONSTITUTIONAL PERSPECTIVE1. Randhir Singh v. Union of IndiaIn this case, the petitioner was a Driver-Constable in the Delhi Police Force underDelhiAdministration who claimed that his scale of pay should be the same as the scale of payof otherdrivers in the service of the Delhi Administration as he discharged the same duties asthe restof the drivers in the other offices. He stated that there was no reason whatsoever todiscriminateagainst the petitioner and other driver-constables merely because he and his ilkwere described asconstables belonging to the Police Force instead of ordinary drivers, whohad a greater pay scale.In this landmark case the court conceded that, though the equation ofposts and equationsof pay were matters primarily for the Executive Government and expertbodies like thePay Commission and not for Courts to decide but persons holding identicalposts were notto be treated differentially in the matters of pay merely because they belongedto differentdepartments. It was this case in which the Court held for the first time that thoughtheprinciple of equal pay for equal work was not expressly declared by the Constitution tobea fundamental right, it was certainly a constitutional Goal. The Court also firsttimecontemplated the fact that the doctrine proclaiming „Equal pay for equal work‟ for bothmenand women meant „Equal pay for equal work‟ or everyone as and between sexes.The Court extended the purview of the doctrine under Right of Equality and stated that Art.14of the Constitution enjoined the State not to deny any person equality before the law ortheequal protection of the laws and simultaneously Art. 16 declared that there shall beequality ofopportunity for all citizens.In matters relating to employment or appointment toany office under the State and it was in thiscontext that the doctrine of equal pay for equalwork was to be adjudged.2. Dharwad District PWD Literate Daily Wages Employees Association v. State ofKarnatakaThis case was brought before the Supreme Court through a series of writ petitions askingforquashing a notification of the government of Karnataka and for issuing directions toGovernmentto confirm the daily rated and monthly rated employees as regular governmentservants and forpayment of normal salaries to those workers employed under temporaryterms. The petitionswere made, pleading that about 50,000 daily-wage workers wereemployed in the differentGovernment establishments and though many of them had put in 16to 20 years of continuousservice, they were not regularized in their service and were notbeing paid equally, violatingthe principle of equal pay for equal work as mandated by theCourt. The petitions claimed forthe pay of such workmen at the rates equivalent to theminimum pay in the pay-scales of theregularly employed workers.The Court laid that the equality clauses of the Constitution under Articles 14 and 16 were tobeconstrued in the light of the Preamble and Article 39(d), and it followed that the principle
  9. 9. equalpay for equal work was deducible from those Articles and could properly be applied tocases ofunequal scales of pay based on the classification or irrational classification.3. Federation of All India Customs and Central Excise Stenographers v. Union OfIndiaIn this case, a petition for seeking parity in pay scales was filed before the Supreme Court.Thepetitioners were personal assistants and stenographers attached to the heads of theCustomsand Central Excise Departments under the Ministry of Finance. They asserted thatthey werediscriminated vis-à-vis personal assistants and stenographers attached to the jointsecretaries andofficers above them in the Ministry. They contended that the type of work wasthe same and infact they had more work to be done. The Respondents in return emphasizedthat the difference inthe functional requirements of the work done was one of the points forsuch discrimination. Therespondents also stated that while devising the pay-scales of variousposts and categories, thedegree of skill, experience involved, training required, responsibilitytaken, strain, fatigue, riskand confidentiality undertaken, mental and physical requirementswere factors borne in mind.The Respondent also emphasised that though the duties and works were identical betweenthepetitioners and their counterparts attached to the Secretaries in the Secretariat, theirfunctionswere not identical with regard to their duties and responsibilities.The Supreme Courtheld that „Equal pay for equal work‟ is a fundamental right. But equal paymust depend uponthe nature of the work done and it cannot be judged by the mere volumeof work.The Courtre-emphasised that equal pay for equal work was a concomitant of Article 14 oftheConstitution and it naturally followed that equal pay for unequal work was a negation ofthatright.The Court also took a great step by laying down that the interpretation of Article39(d) wasto be read in the Fundamental Rights, under Articles 14 and 16 of the Constitution.So theprinciple of equal pay for equal work, though not expressly declared by ourConstitution tobe a fundamental right, was a constitutional goal. Construing Articles 14 and16 in the lightof the Preamble and Article 39(d), the Court laid that the principle of „Equalpay for equalwork‟ was deducible from those articles and was to be applied to cases ofunequal scales ofpay, which were based on no classification or irrational classification.4. Mewa Ram v. A.I.I. Medical ScienceSupreme Court has held that the doctrine of equal pay for equal work is not anabstractdoctrine. Equality must be among equals, unequals cannot claim equality. Even if theduties andfunctions are of similar nature but if the educational qualifications prescribed forthe two postsare different and there is difference in measure of responsibilities, the principleof equal payfor equal work would not apply. Different treatment to persons belonging to thesame class ispermissible classification on the basis of educational qualifications.5.In Deena v. Union of IndiaIt was held that labor taken from prisoners without paying proper remuneration was"forcedlabor" and violation of Art. 23 of the Constitution. The prisoners are entitled to
  10. 10. payment ofreasonable wages for the work taken from them and the Court is under duty toenforce theirclaim.There shall be equality of opportunity for all citizens in matters relating toemployment orappointment to any office under the State. No citizen shall, on grounds only ofreligion, race,caste, sex, descent, place of birth, residence or any of them, be ineligible for, ordiscriminatedagainst in respect of, any employment or office under the State.They arehowever non-justifiable rights on the people, which set out the economic, social andpoliticalgoals of the Indian Constitutional system, and place the government under a moralobligationto achieve and maximize social welfare and basic social values like education,employment,health etc.The reason for non-enforceability, as M.P. Jain1 describes, is that they impose apositiveobligation upon the state and it is while taking actions for implementing theseobligations thatthere arise several limitations to the Government, one such constraint beingthe availability ofresources. However, the Courts in India and the Supreme Court in particularhave constantly andconsistently regarded the principle of equal pay for equal work as aconstitutional goal, muchhigher than being a mere Directive Principle, and have subsequentlyenforced it in-tandem withthe fundamental rights, enshrined under Right to Equality (Art. 14-18). Article 39(d)Thus it is clear that while framers of the Constitution incorporated thisprovision, they only keptin contemplation that there should not be any discrimination in termsof pay on grounds of sex orgender of the person. The Supreme Court continuously andconsistently increasing the purviewof this doctrine has gone far off to make newinterpretations so that any sort of discrimination,unless based on reasonable grounds, does notgo un-refuted.The Act does not, also, lay any provision as to whether the qualifications of the employeesareto be considered while framing paying packages or not. The only thing which the Actpoint tois that the employer must not discriminate on the basis of the sex of the worker if bothman andwoman are doing same or similar kind of work.Persons holding identical posts werenot to be treated differentially in the matters of pay merelybecause they belonged to differentdepartments. It was this case in which the Court held for thefirst time that though theprinciple of equal pay for equal work was not expressly declared by theConstitution to be afundamental right, it was certainly a constitutional Goal. The Court also firsttimecontemplated the fact that the doctrine proclaiming „Equal pay for equal work‟ for bothmenand women meant „Equal pay for equal work‟ for everyone as and between sexes.The Court also held that „the classification of persons performing the same work into seniorand junior groups with different pay will be a violation of the principle of equal pay for equalwork.‟The apex Court held that the scope of Equal Remuneration Act would be invited whentherewere any disparities of terms of pay within same levels even if the organisation hadfinancialconstraints. The Court laid that the applicability of the Act does not depend upon thefinancialability of the management to pay equal remuneration as provided by it. . TheSupreme Courtgave a landmark decision and stating the various social and materialrequirements held that inaddition to the principle of equal pay for equal work, the paystructure of the employees of thegovernment was also to reflect other social values.The degree of skill, the strain of work, experience involved, training required,responsibilityundertaken, mental and physical requirements, disagreeableness of the task,
  11. 11. hazards involvedetc. were some of the relevant factors which were to be taken intoconsideration while fixingthe pay scales. The method of recruitment, the level at which therecruitment was made in thehierarchy of service or cadre, minimum educational and technicalrequirements prescribed forthe post, were also some of the relevant factors. The payingcapacity of the government was alsoto be taken into consideration. Thus the Court laid thecomplete rational and logical nexus fordetermination of pays. The Court held that it could notbe said that the doctrine of „Equal pay forequal work‟ was a mere abstract doctrine and that itwas not capable of being enforced in a courtof law.If the classification is proper and reasonable the doctrine of equal pay for equal work willnothave any application even though the persons doing the same work are not getting thesame pay.A temporary or casual employee performing the same duties and functions isentitled to the samepay as paid to a permanent employee. Similarly, the difference in mode ofselection will notaffect the application of the doctrine of "equal pay for equal work" if boththe classes of personsperform similar functions and duties under the same employer.LEGISLATIVE PERSPECTIVEMajor points of consideration that have come up during our study are: The concept of equality does not mean absolute equality among human beings which isphysically not possible to achieve. It is a concept implying absence of any specialprivilege by reason of birth, creed or the like in favour of any individual, and also theequal subject of all individuals and classes to the ordinary law of the land. Equal law should be applied to all in the same situation, and there should be nodiscrimination between one person and another. The Supreme Court has held that although the principle of equal pay for equal work isnot expressly declared by our Constitution to be a fundamental right, but it is certainly aconstitutional goal under Articles 14, 16 and 39 (c) of the Constitution.(Ref-RandhirSingh v. Union of India) it has been held that the principle of equal pay for equal work is also applicable to casualworkers employed on daily wage basis.(REF-DhirendraChamoli v. State of U.P) the Supreme Court has held that different pay scales can be fixed for government servantsholding same post and performing similar work on the basis of difference in degree ofresponsibility, reliability and confidentiality, and as such it will not be violative of theprinciple of equal pay for equal work, implicit in Article 14. The Court said, "Equal paymust depend upon the nature of the work done. It cannot be judged by the mere volume ofwork. There may be qualitative difference as regards reliability and responsibility.(REF-F.A.I.C. and C.E.S. v. Union of India)Gender inequities throughout the world are among the most all-pervasive forms of inequality.Gender equality concerns each and every member of the society and forms the very basis of ajust society and hence, the issue of „gender justice‟ is of enormous magnitude and ofmammoth ramification engulfing an all-embracing and illimitable canvas. In the midnight ofAugust 15, 1947, when India awoke to “life and freedom”, most of its 170 million women
  12. 12. scarcely knew what the „Tryst with Destiny‟ was all about. Victims of poverty, ignorance andoppressive social institutions, they hardly knew their destiny and who controlled it. However,the stalwarts who led India to its independence were aware that if the new India of theirdreams was to become a reality and not remain only a figment of imagination, it would needsocial engineering on a massive scale, in respect of the backward and oppressed sections ofthe society and above all, its women.It has to be stated here that though it is the primary task of the employer not todiscriminate onthe basis of sex (as made mandatory by the Supreme Court in recentjudgments), theConstitution does not provide for any classification that the employercan make such as on thebasis of qualification and level of skill of the employee i.e. ifthe workers perform the sametask, they have to be treated equally without anydiscrimination thereof.Though the articlespeaks only as to discrimination between man and woman, theconcept of equal pay for equalwork has been applied in generality to all without any hintof gender or class. The SupremeCourt continuously and consistently increasing thepurview of this doctrine has gone far off tomake new interpretations so that any sort ofdiscrimination, unless based on reasonablegrounds, does not go un-refuted. The verypurpose and nature of the said article has beenchanged by the apex court and thearticle which was originally instilled to support woman inthere right of equal status isnow applied to now employed to nullify any sort of rule andprovision which tends toaffect the rights of workers to get equal pay if they perform the samekind of work insimilar organizations. However the Supreme Court has added a new clause tothearticle in the way of reasonable nexus of discrimination. This reasonable nexusincludesthe qualifications of the employees, capacity of the workers and many more. The listisendless and new points of classifications are incorporated in it as and when theSupremeCourt says so.In the coming part of the document, we have tried to study the Equal Pay for Equal Work-from the Labour legislation perspective, by studying the different acts-1. EQUAL REMUNERATION ACT, 1976For the purpose of incorporating and giving effect to the Constitutional directive of Equalpayfor equal work, The Equal Remuneration Act, 1976 was passed. The objects andreasons ofthe Act states that President of India promulgated The Equal RemunerationOrdinance, 1975on 26th September, 1975 so that the provision of Art. 39(d) wasimplemented in the year,which was being celebrated as the International Woman‟sYear. The ordinance was brought toeffect to provide for payment of EqualRemuneration to both man and woman workers for thesame work or work of similarnature and for the prevention of discrimination on grounds ofsex.The various provisions for the payment of remuneration at equal rates are provided inChapterII of the Act and almost all the provisions point to similar ends and ultimatelydirect theemployers not to practice discrimination while recruitment, while payment oreven whileconsidering employees for promotion. The Act also provides formaintenance of registers inthe organisations, creation of posts of Inspectors and otherrelated offices to keep a check onsuch prejudiced practices, which are likely to affectthe provisions of the Act. It speaksextensively of what the employers have to follow butis silent on the point of reasonable
  13. 13. classification with the apex court has pointed outfreely and exhaustively. The Act does not,also, lay any provision as to whether thequalifications of the employees are to be consideredwhile framing paying packages ornot. The only thing which the Act point to is that theemployer must not discriminate onthe basis of the sex of the worker if both man and womanare doing same or similar kindof work. Thus it is merely an enactment of Article 39(d) of theConstitution in its strictsense, leaving the scope of interpretation to the Courts.CASES TO UNDERSTAND THE LABOUR PERSPECTIVE OF THE LAWU.P. RajyaSahakariBhoomiVikas Bank Ltd. v. WorkmenThe facts in the following case were as follows. In the given bank, some employeeswerepromoted some time earlier while other set of employees were promoted later butboth thesenior and junior groups of the promotees were doing same type of work.However, higherwages were given to one group (seniors) of promotees from aparticular back date. The Courtheld that the promotees of other group could not bedenied that benefit.The Court also heldthat „the classification of persons performing the same work intosenior and junior groupswith different pay will be a violate of the principle of equal payfor equal work.‟Thus theCourt made an attempt to regularize the conduct of the organizations and alsohighlighted thefact that different schemes to evade the provision of equal pay for equalwork will not beallowed and whenever there was a hint of woe, the Court would cometo the rescue of theaggrieved workers.M/s Mackinnon Mackenzie & Co. Ltd. v. Audrey D’CostaThis case was brought before the Supreme Court by way of a Special Leave Petitionagainstthe decision of the High Court. The case was registered by the respondent whowas workingas a Lady Stenographer in the said company and whose services hadbeen terminated. Shecontended that her remuneration was less than her malecolleagues and she was thus entitledto recover the amount equivalent to the differencebetween the remuneration she was paid andwhat was to be paid. The case wasoriginally filed before the authority appointed under theEqual Remuneration Act, whichheld that the male and female workers were doing the samekind of work but nodiscrimination was made. The Respondent appeared before the appellateAuthority,which reversed the order and stated that it was a clear case of discrimination andthiswas upheld by the High Court. Before the Supreme Court, the petitioner urged thatthedifference in pay i.e. difference between the remuneration of the male Stenographersandthe remuneration of the Confidential Lady Stenographers was on account of thesettlementbetween the employees and the organisation which was arrived at afterproper negotiation andthereby the Court must have regard to it. The petitioner alsocontended that petitioner that theenforcement of the Act will be highly prejudicial to itsmanagement, since its financialposition is not satisfactory and the it was not able to payequal remuneration to both maleStenographers and female Stenographers.However, the apex Court held that the scope of Equal Remuneration Act would beinvitedwhen there were any disparities of terms of pay within same levels even if theorganisationhad financial constraints. The Court laid that the applicability of the Actdoes not depend uponthe financial ability of the management to pay equalremuneration as provided by it.When
  14. 14. once it was established, the Court said, that the lady Stenographers were doingpractically thesame kind of work which the male Stenographers were discharging, theemployer was boundto pay the same remuneration to both of them irrespective of theplace where they wereworking unless it was shown that the woman was not fit to do thework of the maleStenographers.Thus the Court, in the case, which can be said to be an authority on interpretation ofEqualRemuneration Act, held that the Act had overriding powers over any agreementwhich tendedto violate the principle as enshrined in Art. 39 (d) and any such agreementwhich allowed theemployer to practice discrimination without any reasonablejustification would be held voidand inconsequential.Surinder Singh v. Engineer in Chief, C.P.W.DThis case was brought before the apex Court by way of Writ Petition. The primecontention ofthe petitioners was that they were employed by the Central Public Works Department onDaily Wage basis and their wages were less than those who were employed by theDepartment on permanent basis but did the same kind of work. In reply, the respondentsstated that the doctrine of Equality of pay was an abstract concept and could not be applied.However, the Court held that it could not be said that the doctrine of „Equal pay for equalwork‟ was a mere abstract doctrine and that it was not capable of being enforced in a court oflaw. On the point of terms of service i.e.temporary and permanent, the Court said that thisdoctrine was required to be applied to persons employed on daily wages and they wereentitled to the same wages as the permanent employees. The Court specially referring to thegovernment stated that theCentral and the State Governments in all public sectorundertakings were expected tofunction like model and enlightened employers and thus itcasted an additional duty onthe State undertakings to initiate and enhance the applicability ofthe doctrine of equalpay for equal work as it represented the entire industrial framework ofthe country.HarbansLal v. State of Himachal PradeshIn this case, the petitioners were carpenters of 1st and 2nd grade employed at aHandicraftCorporation owned by State of Himachal Pradesh, termed as daily rated employees and werepaid remuneration, which was less than that of regular employees. They appeared before theSupreme Court for the enforcement of their fundamental right to have equal pay for equalwork, demanding payment in terms paid to their counterparts in regular services. They alsosought regularization of their services with the benefits of pension, gratuity, etc.TheCorporation, in turn, resisted the petitioners claim by stating that there were no regularemployees of the petitioners categories in the said establishment and therefore the questionof payment to the petitioners i.e. the pay admissible to regular employee did not arise at all.However the petitioners retaliated by stating that though there wereno permanent employeesin their establishment, but the pay scale of the permanent employees in other establishmentsunder the same government was much higher and they were entitled for the same.Herein, theCourt held that a claim for equal pay could only be sustained if the discrimination made waswithin the same establishment owned by the same management and a comparison could
  15. 15. notbe made with their counter parts in other establishments in different geographicallocations, though it was owned by the same master.The court declared that the principle of Equal pay was to depend upon the nature of the workdone and was not to merely judged by the volume of the workand there could bequalitativedifferences in the type of work undertaken and the responsibility. The Courtheld that thoughthe functions would be same but the responsibilities were different andit was not to be deniedthat the difference is a matter of degree and that there is anelement of value judgment bythose who are charged with the administration in fixingthe scales of pay and other conditionsof service. So long as such value criterion has arational nexus with the object ofdifferentiation, such differentiation will not amount todiscrimination. The Court directlystating the relationship of laid down that equal pay forequal work is a concomitant of Art.14 of constitution and it follows naturally thatequal pay for unequal work will be a negationof that right.Commenting on the case, the Court held that it was to be noted that the petitioners werecarpenters and a form of craftsman and merely by the general description of their job, onecould not come to the conclusion that every carpenter or craftsman was equal to the other inperformance work. The two jobs by the mere nomenclature or by thevolume of workperformed could not be rated as equal as it was not a mere comparisonof physical activity. Itrequired considerations of various dimensions related to the jobsuch as the accuracy of theworker, the dexterity entailed etc. It could not be evaluatedby normal parameters andtherefore the Court left it to be evaluated and determined byan expert body and accordinglydismissed the petition.Thus the judgement pronounced was novel on two grounds. Firstly the Court heldthatemployees working in different establishments of the same owner could not hold thepleaof equal pay for equal work and secondly the court accepted its constrainsregarding theassessment of skill of the employees.GrihKalyan Kendra Workers Union v. Union of IndiaIn this given case, a petition was filed under Art. 32 of the Constitution to directtherespondents to pay regular pay scales in parity with other employees performingsimilarwork under the Union of India under other Departments. The Petitioner wasanorganisation working under Ministry of Home Affairs and its employees were classifiedasregular and temporary staff, where regular employees drew salaries in regular payscaleasother Central Government employees whereas the employees who employedon ad hoc basisworked for an honorarium and their services were terminable at anytime at the sweet will ofthe officers. The petitioner asserted that its employees werepaid low wages and their salarieswere far less than what was paid to the employeesdoing similar nature of work in otherorganisations under the same government.The respondents asserted that it was a welfare association and there was no intentiontoprovide regular employment. It contended that employees working in the Kendrawere notregular employees and the duties performed by them were not comparable toany of theemployees under other Departments.
  16. 16. It was held by the Supreme Court that Equal Pay for Equal Work has assumed thestatus of afundamental right in service jurisprudence having regard to the constitutionalmandate ofequality in Articles 14 and 16 and was applicable in all fields of employmentwhere there wasdiscrimination on terms of pay under similar conditions of work.The Court held that therewas no discrimination being followed in the organisation anddismissed the petition.Supreme Court Employee’s Welfare Association V. Union Of IndiaIn this case, the Court held that though the doctrine of equal pay for equal work does notcome within Art. 14 as an abstract doctrine, but if any classification made relating to the payscales is unreasonable, then Art. 14 would be attracted and such classification would be setaside and equal pay will be directed to be given for equal work. TheSupreme Court explainedthat where unequal pay brought discrimination within themeaning of Art. 14 it will not be aviolation of equal pay for equal work i.e. if theclassification is proper and reasonable thedoctrine of equal pay for equal work will nothave any application even though the personsdoing the same work are not getting thesame pay.In this case, the Court also restricted itself from getting in executive matters and heldthat itlaid on the government or the management to fix the pay scales after consideringvarious othermatters and the court were only to consider whether such fixation of payscales resulted in aninvidious discrimination or was arbitrary.The case was initiated by the petitions of the ministerial staff belonging to the Registryof theSupreme Court. They claimed for increase in their pay scales after the pay scalesof respectivestaff of the High Court of Delhi were increased i.e. they were entitled forequal pay underprovision of „equal pay for equal work‟ and therefore they approachedthe Court for redressalof their grievances.Jaipal v. State of HaryanaIn this case, Supreme Court envisaged in general that Art.39 (d) ordained the State todirect itspolicy towards securing equal pay for equal work for both men and women forthe purpose ofavoiding any discrimination amongst the people doing similar work inmatters relating topay.Commenting on the case, the Court held that though the doctrine of equal work equalpaywould apply on the premises of similar work but it does not mean that there shouldbecomplete identity in all respects. To disregard the doctrine of equal pay for equalwork on theground of one employment being temporary and the other being permanentin nature isunreasonable. A temporary or casual employee performing the same dutiesand functions isentitled to the same pay as paid to a permanent employee. Similarly,the difference in mode ofselection will not affect the application of the doctrine of "equalpay for equal work" if boththe classes of persons perform similar functions and dutiesunder the same employer.The factsin this case were that the petitioners were employed under a scheme ofHaryana Government as District Adult Education Officers for the purpose ofimpartingeducation to village adults. However there was also a similar scheme with similartypeof work but with a higher pay scale, under the same government. Thepetitionersgrievance was that although they performed functions and duties of the same
  17. 17. nature asperformed by the squad teachers but they were denied the same scale of payandinstead they were paid a fixed salary.Karnataka State Private College Stop-Gap Lecturers Association, v. StateofKarnatakaIn this case, the cause of action was that the order of the State government ofKarnataka whichstated that the teacher, appointed on ad-hoc basis would be paid afixed salary which would beten rupees less than that payable to a regular employee.However the issuing authority did notgive the basis for this discrimination. The orderalso provided that “such temporaryappointments would be continued for a furtherperiod of not more than three months, with onedays break”. The Supreme Court heldthe order to be void and held it a violation of Art. 39(d)and also declared the payment offixed salary to temporary teachers as invalid, making it atpar with the regular employees.The Court held the payment of fixed salary to the temporaryemployees less than theminimum payable to regular employee was violative of the principleof equal pay forequal work and was to be condemned.
  18. 18. SUGGESTIONS1. The equal remuneration act should not focus only on gender discrimination.2. Equal pay for equal work should be mentioned as constitutional goal in writing so that itcan be implemented strictly.3. The degree of skill, the strain of work, experience involved, training required,responsibility undertaken, mental and physical requirements, disagreeableness of the task,hazards involved etc. were some of the relevant factors which were to be taken intoconsideration while fixing the pay scales. The method of recruitment, the level at which therecruitment was made in the hierarchy of service or cadre, minimum educational andtechnical requirements prescribed for the post, were also some of the relevant factors.4. The criteria to define equal work should be clearly mentioned.

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