EQUAL PAY FOR EQUAL WORKCONSTITUTIONAL AND LABOUR LEGISLATION PERSPECTIVE

SUBMITTED TO-DR.SHAILENDRA NIGAM SUBMITTED BYGROUP 6 ASTHA BISHNOI DIKSHA UNIYAL GARGI KARNATAK NIKHIL SHARMA NIRANKAR ROYAL SWIMMI ALASAKA

INTRODUCTION
The topic of our project is Equal Pay for Equal Work-Constitutional and Labour legislation perspective. In our project we have tried to understand the concept of equal pay and work from the constitutional perspective and understanding the roots of the concept from the constitution, understanding how the concept emerged from the fundamental rights and thereon trying to understand the inclusion of the concept in various acts,eg Equal Remuneration Act, Contract Labour, Factories Act etc. The preamble of the Constitution of India is an introduction to the Constitution and lays down in brief the aims and objectives of the policy framers of the Union of India. It enunciates those socio-economic goals and ends which are to be achieved by the Indian Constitution. These goals are multitudinous in nature and secure for the citizens of India (in some cases for foreigners 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. This novel feature, envisaged by our Constitution, was borrowed from the Constitution of Ireland, which itself had borrowed it from the Spanish Constitution. These Directive Principles lay down the basic aims and objectives of the States, to be followed in the governance of the country. They are more or less the guidelines, directing the government as to what is to be kept in contemplation while framing the policies. They can also be termed as a distinct set of moral duties, to be implemented by the state, while giving shape to legislations and provisions of the State. In other words Directive Principles act as a device for making the Government conform to the ideals, which the Constitution lays, for the attainment of democracy in its true sense i.e. political as well as economic. This can be done only when the Government complies with these stated objectives and makes an attempt to make India welfare state in real as well as practical terms. They are however non-justifiable rights on the people, which set out the economic, social and political goals of the Indian Constitutional system, and place the government under a moral obligation to achieve and maximise social welfare and basic social values like education, employment, health etc. The reason for their non-enforceability is that they impose a positive obligation upon the state and it is while taking actions for implementing these obligations that there arise several limitations to the Government, one such constraint being the availability of resources. The purpose for enunciating the extent of enforceability of directive principles of state policy is of relevance in the present topic because the concept of equality of pay i.e. equal pay for equal work being a part of these Directive Principles is to hold the same fate as other Directive Principles. However, the Courts in India and the Supreme Court in particular have constantly and consistently regarded the principle of equal pay for equal work as a constitutional goal, much higher than being a mere Directive Principle, and have subsequently enforced it in-tandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18).The primary purpose of this research project is to study the various interpretations which have been made

by the Supreme Court while adjudicating the cases, involving the concept of Equal pay for Equal work as enshrined in Article 39(d) of the Constitution. The topic is of great relevance on the contemporary world as it is being felt that considering and stating that all men are equal is not enough but a concrete step or rather a series of steps need to be taken to bring the concept of classless society into existence and the applicability of the concept of equal pay for equal work is one of such steps, taken to wipe out any scope of unreasonable discrimination as which may occur or may be followed in any form of society when it comes to payment of remuneration. This research project is an attempt to grasp the various interpretations the concept holds and the different analogies, which can be formed to save the people from the clutches of irrational discrimination. An equal pay legislation such as the Equal Remuneration Act in India, seeks to determine wages on the basis of a politically motivating or social justice related factor, in this case, gender. The mutual incompatibility of the two sets of factors is obvious. While the first set might generate an efficient labour force, the second set has absolutely no relation to productivity, and hence cannot work towards an efficient labour force. If a firm overpays, it would eventually have to close down since it would run out of money. At the same time, if a firm underpays, it is would still not be a profit yielding practise since it would lose employees to competitors. To add to it, it would suffer from over optimal quit-rates, and have to invest additionally in hiring, firing, and other training expenses. While clearly, the search for profit would cause some entrepreneurs to set aside their taste for discrimination, it is nevertheless true that others would be willing to incur the cost. These employers would then be paying the price of discrimination in the form of decreased profits.

LITERATURE REVIEW:
The principle of equal pay for equal work has an important place in India. It is read with Article 39(d) and Article 14 of the Constitution of India.Article 39 (c) of the Constitution of India provides for Directive Principles of State Policy. This aims for equitable distribution of resources of production among all citizens. It also aims to prevent the concentration of wealth in the hands of a few. One such principle is Equal Pay for Equal Work. As the name itself suggests, its purpose is to ensure that individuals who are doing an equal amount of work shall be entitled to equal remuneration. The term equal pay includes basic salary, and also other benefits, such as bonuses and allowances. These clauses highlight the Constitutional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and has been used to support the nationalization of mineral resources as well as public utilities. However, the Courts in India and the Supreme Court in particular have constantly and consistently regarded the principle of equal pay for equal work as a constitutional goal, much higher than being a mere Directive Principle, and have subsequently enforced it in-tandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18). great relevance on the contemporary world as it is being felt that considering and stating that all men are equal is not enough but a concrete step or rather a series of steps need to be taken to bring the concept of classless society into existence and the applicability of the concept of equal pay for equal work is one of such steps, taken to wipe out any scope of unreasonable discrimination as which may occur or may be followed in any form of society when it comes to payment of remuneration. EQUAL PAY FOR EQUAL WORK UNDER THE CONSTITUTION OF INDIA The concept of Equality of pay was incorporated under the Directive Principles of State Policy by the framers of the Constitution so as to follow the principles of Equality and make India a welfare 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 the discrimination on basis of gender and sex as under the principle laid down under Article 39 which states as follows; 39. The State shall, in particular, direct its policy towards securing- (d) that there is equal pay for equal work for both men and women. Thus the framers of the Constitution incorporated this provision to wipe out any discrimination made against women or men in regards to the terms of pay. However on going strictly according to the provision, it nowhere states that this concept of equality of pay is to be followed even in terms of employment as of between man and man or woman and woman i.e. it does not grant a right that man must be paid equally among themselves and woman among themselves if they perform the same kind of work. The aforesaid provision also does not state any distinction between the capacity of these men and women and that has to be constructed by the Courts themselves. Thus it is clear that while framers of the Constitution incorporated this provision, they only kept in contemplation that

there should not be any discrimination 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 discriminate on the basis of sex (as made mandatory by the Supreme Court in recent judgments), the Constitution does not provide for any classification that the employer can make such as on the basis of qualification and level of skill of the employee i.e. if the workers perform the same task, they have to be treated equally without any discrimination thereof. Though the article speaks only as to discrimination between man and woman, the concept of equal pay for equal work has been applied in generality to all without any hint of gender or class. The Supreme Court continuously and consistently increasing the purview of this doctrine has gone far off to make new interpretations so that any sort of discrimination, unless based on reasonable grounds, does not go un-refuted. The very purpose and nature of the said article has been changed by the apex court and the article which was originally instilled to support woman in there right of equal status is now applied to now employed to nullify any sort of rule and provision which tends to affect the rights of workers to get equal pay if they perform the same kind of work in similar organizations. However the Supreme Court has added a new clause to the article in the way of reasonable nexus of discrimination. This reasonable nexus includes the qualifications of the employees, capacity of the workers and many more. The list is endless and new points of classifications are incorporated in it as and when the Supreme Court says so. EQUAL REMUNERATION ACT, 1976 For the purpose of incorporating and giving effect to the Constitutional directive of Equal pay for equal work, The Equal Remuneration Act, 1976 was passed. The objects and reasons of the Act states that President of India promulgated The Equal Remuneration Ordinance, 1975 on 26th September, 1975 so that the provision of Art. 39(d) was implemented in the year, which was being celebrated as the International Womans Year. The ordinance was brought to effect to provide for payment of Equal Remuneration to both man and woman workers for the same work or work of similar nature and for the prevention of discrimination on grounds of sex. The various provisions for the payment of remuneration at equal rates are provided in Chapter II of the Act and almost all the provisions point to similar ends and ultimately direct the employers not to practice discrimination while recruitment, while payment or even while considering employees for promotion. The Act also provides for maintenance of registers in the organizations, creation of posts of Inspectors and other related offices to keep a check on such prejudiced practices, which are likely to affect the provisions of the Act. It speaks extensively of what the employers have to follow but is silent on the point of reasonable classification 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 considered while framing paying packages or not. The only thing which the Act point to is that the employer must not discriminate on the basis of the sex of the worker if both man and woman are doing same or similar kind of work.

Thus it is merely an enactment of Article 39(d) of the Constitution in its strict sense, leaving the 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, even for long recognized forms such as discrimination against women. Discrimination at work will not vanish by itself; neither will the market, on its own, take care of it. Inequalities within discriminated groups were widening. Affirmative action policies, for example, helped create a new middle class of formerly-discriminated persons in some countries. A few rises to the top of the social ladder, while most remain among the low paid and socially excluded. Discrimination often traps people in low-paid, informal economy jobs. The discriminated are often stuck in the worst jobs, and denied benefits, social protection, training, capital, land or credit. Women are more likely than men to be engaged in these more invisible and undercounted activities. The failure to eradicate discrimination helps perpetuate poverty. Discrimination creates a web of poverty, forced and child labor and social exclusion, the report says, adding eliminating discrimination is indispensable to any viable strategy for poverty reduction and sustainable economic development. Everyone gains from eliminating discrimination at work - individuals, enterprises and society at large. Fairness and justice at the workplace boosts the self-esteem and morale of workers. A more motivated and productive workforce enhances the productivity and competitiveness of businesses.

AMENDMENTS: 42nd Amendment was passed during internal emergency by Indira Gandhi. Provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a "Socialist Secular" Republic.

CONSTITUIONAL PERSPECTIVE
It can be seen that considering and stating that all men are equal is not enough but a concrete step or rather a series of steps need to be taken to bring the concept of classless society into existence and the applicability of the concept of equal pay for equal work is one of such steps, taken to wipe out any scope of unreasonable discrimination as which may occur or may be followed in any form of society when it comes to payment of remuneration. The concept of Equality of pay was incorporated under the Directive Principles of State Policy by the framers of the Constitution so as to follow the principles of Equality and make India a welfare 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 the discrimination on basis of gender and sex as under the principle laid down under Article 39 which states as follows; The State shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. Thus the framers of the Constitution incorporated this provision to wipe out any discrimination made against women or men in regards to the terms of pay. However, going strictly according to the provision, it nowhere states that this concept of equality of pay is to be followed even in terms of employment as of between man and man or woman and woman i.e. it does not grant a right that man must be paid equally among themselves and woman among themselves if they perform the same kind of work. The aforesaid provision also does not state any distinction between the capacity of these men and women and that has to be constructed by the Courts themselves. Thus it is clear that while framers of the Constitution incorporated this provision, they only kept in contemplation that there should not be any discrimination 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 discriminate on the basis of sex, the Constitution does not provide for any classification that the employer can make such as on the basis of qualification and level of skill of the employee i.e. if the workers perform the same task, they have to be treated equally without any discrimination thereof. Article 14 of the Indian Constitution explains the concept of Equality before law. The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land. As Dr. Jennings puts it : "Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. It only means that all persons similarly circumstance shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same. Thus, the rule is that the like should be treated alike and not that unlike should be treated alike.

CASES TO UNDERSTAND THE CONSTITUTIONAL PERSPECTIVE

1. Randhir Singh v. Union of India In this case, the petitioner was a Driver-Constable in the Delhi Police Force under Delhi Administration who claimed that his scale of pay should be the same as the scale of pay of other drivers in the service of the Delhi Administration as he discharged the same duties as the rest of the drivers in the other offices. He stated that there was no reason whatsoever to discriminate against the petitioner and other driver-constables merely because he and his ilk were described as constables belonging to the Police Force instead of ordinary drivers, who had a greater pay scale.In this landmark case the court conceded that, though the equation of posts and equations of pay were matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts to decide but persons holding identical posts were not to be treated differentially in the matters of pay merely because they belonged to different departments. It was this case in which the Court held for the first time that though the principle of equal pay for equal work was not expressly declared by the Constitution to be a fundamental right, it was certainly a constitutional Goal. The Court also first time contemplated the fact that the doctrine proclaiming Equal pay for equal work for both men and 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.14 of the Constitution enjoined the State not to deny any person equality before the law or the equal protection of the laws and simultaneously Art. 16 declared that there shall be equality of opportunity for all citizens.In matters relating to employment or appointment to any office under the State and it was in this context that the doctrine of equal pay for equal work was to be adjudged. 2. Dharwad District PWD Literate Daily Wages Employees Association v. State of Karnataka This case was brought before the Supreme Court through a series of writ petitions asking for quashing a notification of the government of Karnataka and for issuing directions to Government to confirm the daily rated and monthly rated employees as regular government servants and for payment of normal salaries to those workers employed under temporary terms. The petitions were made, pleading that about 50,000 daily-wage workers were employed in the different Government establishments and though many of them had put in 16 to 20 years of continuous service, they were not regularized in their service and were not being paid equally, violating the principle of equal pay for equal work as mandated by the Court. The petitions claimed for the pay of such workmen at the rates equivalent to the minimum pay in the pay-scales of the regularly employed workers. The Court laid that the equality clauses of the Constitution under Articles 14 and 16 were to be construed in the light of the Preamble and Article 39(d), and it followed that the principle

'equal pay for equal work' was deducible from those Articles and could properly be applied to cases of unequal scales of pay based on the classification or irrational classification.

3. Federation of All India Customs and Central Excise Stenographers v. Union Of India In this case, a petition for seeking parity in pay scales was filed before the Supreme Court. The petitioners were personal assistants and stenographers attached to the heads of the Customs and Central Excise Departments under the Ministry of Finance. They asserted that they were discriminated vis--vis personal assistants and stenographers attached to the joint secretaries and officers above them in the Ministry. They contended that the type of work was the same and in fact they had more work to be done. The Respondents in return emphasized that the difference in the functional requirements of the work done was one of the points for such discrimination. The respondents also stated that while devising the pay-scales of various posts and categories, the degree of skill, experience involved, training required, responsibility taken, strain, fatigue, risk and confidentiality undertaken, mental and physical requirements were factors borne in mind. The Respondent also emphasised that though the duties and works were identical between the petitioners and their counterparts attached to the Secretaries in the Secretariat, their functions were not identical with regard to their duties and responsibilities. The Supreme Court held that Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done and it cannot be judged by the mere volume of work. The Court reemphasised that equal pay for equal work was a concomitant of Article 14 of the Constitution and it naturally followed that equal pay for unequal work was a negation of that right. The Court also took a great step by laying down that the interpretation of Article 39(d) was to be read in the Fundamental Rights, under Articles 14 and 16 of the Constitution. So the principle of equal pay for equal work, though not expressly declared by our Constitution to be a fundamental right, was a constitutional goal. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), the Court laid that the principle of Equal pay for equal work was deducible from those articles and was to be applied to cases of unequal scales of pay, which were based on no classification or irrational classification. 4. Mewa Ram v. A.I.I. Medical Science Supreme Court has held that the doctrine of 'equal pay for equal work' is not an abstract doctrine. Equality must be among equals, unequals cannot claim equality. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of equal pay for equal work would not apply. Different treatment to persons belonging to the same class is permissible classification on the basis of educational qualifications. 5. In Deena v. Union of India It was held that labor taken from prisoners without paying proper remuneration was "forced labor" and violation of Art. 23 of the Constitution. The prisoners are entitled to payment of

reasonable wages for the work taken from them and the Court is under duty to enforce their claim. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall, on grounds only of religion, race,caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. They are however non-justifiable rights on the people, which set out the economic, social and political goals of the Indian Constitutional system, and place the government under a moral obligation to 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 a positive obligation upon the state and it is while taking actions for implementing these obligations that there arise several limitations to the Government, one such constraint being the availability of resources. However, the Courts in India and the Supreme Court in particular have constantly and consistently regarded the principle of equal pay for equal work as a constitutional goal, much higher than being a mere Directive Principle, and have subsequently enforced it in-tandem with the fundamental rights, enshrined under Right to Equality (Art. 14-18). Article 39(d)Thus it is clear that while framers of the Constitution incorporated this provision, they only kept in contemplation that there should not be any discrimination in terms of pay on grounds of sex or gender of the person. The Supreme Court continuously and consistently increasing the purview of this doctrine has gone far off to make new interpretations so that any sort of discrimination, unless based on reasonable grounds, does not go un-refuted. The Act does not, also, lay any provision as to whether the qualifications of the employees are to be considered while framing paying packages or not. The only thing which the Act point to is that the employer must not discriminate on the basis of the sex of the worker if both man and woman are doing same or similar kind of work. Persons holding identical posts were not to be treated differentially in the matters of pay merely because they belonged to different departments. It was this case in which the Court held for the first time that though the principle of equal pay for equal work was not expressly declared by the Constitution to be a fundamental right, it was certainly a constitutional Goal. The Court also first time contemplated the fact that the doctrine proclaiming Equal pay for equal work for both men and 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 senior and junior groups with different pay will be a violation of the principle of equal pay for equal work. The apex Court held that the scope of Equal Remuneration Act would be invited when there were any disparities of terms of pay within same levels even if the organisation had financial constraints. The Court laid that the applicability of the Act does not depend upon the financial ability of the management to pay equal remuneration as provided by it. . The Supreme Court gave a landmark decision and stating the various social and material requirements held that in addition to the principle of equal pay for equal work, the pay structure of the employees of the government was also to reflect other social values. 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 into consideration while fixing the pay scales. The method of recruitment, the level at which the recruitment was made in the hierarchy of service or cadre, minimum educational and technical requirements prescribed for the post, were also some of the relevant factors. The paying capacity of the government was also to be taken into consideration. Thus the Court laid the complete rational and logical nexus for determination of pays. The Court held that it could not be said that the doctrine of Equal pay for equal work was a mere abstract doctrine and that it was not capable of being enforced in a court of law. If the classification is proper and reasonable the doctrine of 'equal pay for equal work' will not have any application even though the persons doing the same work are not getting the same pay. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee. Similarly, the difference in mode of selection will not affect the application of the doctrine of "equal pay for equal work" if both the classes of persons perform similar functions and duties under the same employer.

LEGISLATIVE PERSPECTIVE
Major points of consideration that have come up during our study are: The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal 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 no discrimination between one person and another. The Supreme Court has held that although the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution.(Ref- Randhir Singh v. Union of India) it has been held that the principle of equal pay for equal work is also applicable to casual workers employed on daily wage basis.(REF- Dhirendra Chamoli v. State of U.P) the Supreme Court has held that different pay scales can be fixed for government servants holding same post and performing similar work on the basis of difference in degree of responsibility, reliability and confidentiality, and as such it will not be violative of the principle of equal pay for equal work, implicit in Article 14. The Court said, "Equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility.(REFF.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 a just society and hence, the issue of gender justice is of enormous magnitude and of mammoth ramification engulfing an all-embracing and illimitable canvas. In the midnight of August 15, 1947, when India awoke to life and freedom, most of its 170 million women

scarcely knew what the Tryst with Destiny was all about. Victims of poverty, ignorance and oppressive 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 their dreams was to become a reality and not remain only a figment of imagination, it would need social engineering on a massive scale, in respect of the backward and oppressed sections of the society and above all, its women. It has to be stated here that though it is the primary task of the employer not to discriminate on the basis of sex (as made mandatory by the Supreme Court in recent judgments), the Constitution does not provide for any classification that the employer can make such as on the basis of qualification and level of skill of the employee i.e. if the workers perform the same task, they have to be treated equally without any discrimination thereof. Though the article speaks only as to discrimination between man and woman, the concept of equal pay for equal work has been applied in generality to all without any hint of gender or class. The Supreme Court continuously and consistently increasing the purview of this doctrine has gone far off to make new interpretations so that any sort of discrimination, unless based on reasonable grounds, does not go un-refuted. The very purpose and nature of the said article has been changed by the apex court and the article which was originally instilled to support woman in there right of equal status is now applied to now employed to nullify any sort of rule and provision which tends to affect the rights of workers to get equal pay if they perform the same kind of work in similar organizations. However the Supreme Court has added a new clause to the article in the way of reasonable nexus of discrimination. This reasonable nexus includes the qualifications of the employees, capacity of the workers and many more. The list is endless and new points of classifications are incorporated in it as and when the Supreme Court says so. In the coming part of the document, we have tried to study the Equal Pay for Equal Workfrom the Labour legislation perspective, by studying the different acts1. EQUAL REMUNERATION ACT, 1976 For the purpose of incorporating and giving effect to the Constitutional directive of Equal pay for equal work, The Equal Remuneration Act, 1976 was passed. The objects and reasons of the Act states that President of India promulgated The Equal Remuneration Ordinance, 1975 on 26th September, 1975 so that the provision of Art. 39(d) was implemented in the year, which was being celebrated as the International WomansYear. The ordinance was brought to effect to provide for payment of Equal Remuneration to both man and woman workers for the same work or work of similar nature and for the prevention of discrimination on grounds of sex. The various provisions for the payment of remuneration at equal rates are provided in Chapter II of the Act and almost all the provisions point to similar ends and ultimatelydirect the employers not to practice discrimination while recruitment, while payment or even while considering employees for promotion. The Act also provides for maintenance of registers in the organisations, creation of posts of Inspectors and otherrelated offices to keep a check on such prejudiced practices, which are likely to affect the provisions of the Act. It speaks extensively of what the employers have to follow but is silent on the point of reasonable

classification 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 considered while framing paying packages or not. The only thing which the Act point to is that the employer must not discriminate on the basis of the sex of the worker if both man and woman are doing same or similar kind of work. Thus it is merely an enactment of Article 39(d) of the Constitution in its strict sense, leaving the scope of interpretation to the Courts. CASES TO UNDERSTAND THE LABOUR PERSPECTIVE OF THE LAW U.P. Rajya Sahakari Bhoomi Vikas Bank Ltd. v. Workmen

The facts in the following case were as follows. In the given bank, some employees were promoted some time earlier while other set of employees were promoted later but both the senior and junior groups of the promotees were doing same type of work. However, higher wages were given to one group (seniors) of promotees from a particular back date. The Court held that the promotees of other group could not be denied that benefit.The Court also held that the classification of persons performing the same work into senior and junior groups with different pay will be a violate of the principle of equal pay for equal work. Thus the Court made an attempt to regularize the conduct of the organizations and also highlighted the fact that different schemes to evade the provision of equal pay for equal work will not be allowed and whenever there was a hint of woe, the Court would come to the rescue of the aggrieved workers. M/s Mackinnon Mackenzie & Co. Ltd. v. Audrey DCosta

This case was brought before the Supreme Court by way of a Special Leave Petition against the decision of the High Court. The case was registered by the respondent who was working as a Lady Stenographer in the said company and whose services had been terminated. She contended that her remuneration was less than her male colleagues and she was thus entitled to recover the amount equivalent to the difference between the remuneration she was paid and what was to be paid. The case was originally filed before the authority appointed under the Equal Remuneration Act, which held that the male and female workers were doing the same kind of work but no discrimination was made. The Respondent appeared before the appellate Authority, which reversed the order and stated that it was a clear case of discrimination and this was upheld by the High Court. Before the Supreme Court, the petitioner urged that the difference in pay i.e. difference between the remuneration of the male Stenographers and the remuneration of the Confidential Lady Stenographers was on account of the settlement between the employees and the organisation which was arrived at after proper negotiation and thereby the Court must have regard to it. The petitioner also contended that petitioner that the enforcement of the Act will be highly prejudicial to its management, since its financial position is not satisfactory and the it was not able to pay equal remuneration to both male Stenographers and female Stenographers. However, the apex Court held that the scope of Equal Remuneration Act would be invited when there were any disparities of terms of pay within same levels even if the organisation had financial constraints. The Court laid that the applicability of the Act does not depend upon the financial ability of the management to pay equal remuneration as provided by it.

When once it was established, the Court said, that the lady Stenographers were doing practically the same kind of work which the male Stenographers were discharging, the employer was bound to pay the same remuneration to both of them irrespective of the place where they were working unless it was shown that the woman was not fit to do the work of the male Stenographers. Thus the Court, in the case, which can be said to be an authority on interpretation of Equal Remuneration Act, held that the Act had overriding powers over any agreement which tended to violate the principle as enshrined in Art. 39 (d) and any such agreement which allowed the employer to practice discrimination without any reasonable justification would be held void and inconsequential. Surinder Singh v. Engineer in Chief, C.P.W.D

This case was brought before the apex Court by way of Writ Petition. The prime contention of the petitioners was that they were employed by the Central Public Works Department on Daily Wage basis and their wages were less than those who were employed by the Department on permanent basis but did the same kind of work. In reply, the respondents stated 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 equal work was a mere abstract doctrine and that it was not capable of being enforced in a court of law. On the point of terms of service i.e. temporary and permanent, the Court said that this doctrine was required to be applied to persons employed on daily wages and they were entitled to the same wages as the permanent employees. The Court specially referring to the government stated that the Central and the State Governments in all public sector undertakings were expected to function like model and enlightened employers and thus it casted an additional duty on the State undertakings to initiate and enhance the applicability of the doctrine of equal pay for equal work as it represented the entire industrial framework of the country. Harbans Lal v. State of Himachal Pradesh

In this case, the petitioners were carpenters of 1st and 2nd grade employed at a Handicraft Corporation owned by State of Himachal Pradesh, termed as daily rated employees and were paid remuneration, which was less than that of regular employees. They appeared before the Supreme Court for the enforcement of their fundamental right to have equal pay for equal work, demanding payment in terms paid to their counterparts in regular services. They also sought regularization of their services with the benefits of pension, gratuity, etc. The Corporation, in turn, resisted the petitioners' claim by stating that there were no regular employees of the petitioners' categories in the said establishment and therefore the question of 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 were no permanent employees in their establishment, but the pay scale of the permanent employees in other establishments under the same government was much higher and they were entitled for the same. Herein, the Court held that a claim for equal pay could only be sustained if the discrimination made was within the same establishment owned by the same management and a comparison could not

be made with their counter parts in other establishments in different geographical locations, 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 work done and was not to merely judged by the volume of the work and there could be qualitative differences in the type of work undertaken and the responsibility. The Court held that though the functions would be same but the responsibilities were different and it was not to be denied that the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value criterion has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The Court directly stating the relationship of laid down that equal pay for equal work is a concomitant of Art. 14 of constitution and it follows naturally that equal pay for unequal work will be a negation of that right. Commenting on the case, the Court held that it was to be noted that the petitioners were carpenters and a form of craftsman and merely by the general description of their job, one could not come to the conclusion that every carpenter or craftsman was equal to the other in performance work. The two jobs by the mere nomenclature or by the volume of work performed could not be rated as equal as it was not a mere comparison of physical activity. It required considerations of various dimensions related to the job such as the accuracy of the worker, the dexterity entailed etc. It could not be evaluated by normal parameters and therefore the Court left it to be evaluated and determined by an expert body and accordingly dismissed the petition. Thus the judgement pronounced was novel on two grounds. Firstly the Court held that employees working in different establishments of the same owner could not hold the plea of equal pay for equal work and secondly the court accepted its constrains regarding the assessment of skill of the employees. Grih Kalyan Kendra Workers Union v. Union of India

In this given case, a petition was filed under Art. 32 of the Constitution to direct the respondents to pay regular pay scales in parity with other employees performing similar work under the Union of India under other Departments. The Petitioner was an organisation working under Ministry of Home Affairs and its employees were classified as regular and temporary staff, where regular employees drew salaries in regular payscaleas other Central Government employees whereas the employees who employed on ad hoc basis worked for an honorarium and their services were terminable at any time at the sweet will of the officers. The petitioner asserted that its employees were paid low wages and their salaries were far less than what was paid to the employees doing similar nature of work in other organisations under the same government. The respondents asserted that it was a welfare association and there was no intention to provide regular employment. It contended that employees working in the Kendra were not regular employees and the duties performed by them were not comparable to any of the employees under other Departments.

It was held by the Supreme Court that 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 and was applicable in all fields of employment where there was discrimination on terms of pay under similar conditions of work. The Court held that there was no discrimination being followed in the organisation and dismissed the petition. Supreme Court Employees Welfare Association V. Union Of India

In this case, the Court held that though the doctrine of 'equal pay for equal work' does not come within Art. 14 as an abstract doctrine, but if any classification made relating to the pay scales is unreasonable, then Art. 14 would be attracted and such classification would be set aside and equal pay will be directed to be given for equal work. The Supreme Court explained that where unequal pay brought discrimination within the meaning of Art. 14 it will not be a violation of 'equal pay for equal work' i.e. if the classification is proper and reasonable the doctrine of 'equal pay for equal work' will not have any application even though the persons doing the same work are not getting the same pay. In this case, the Court also restricted itself from getting in executive matters and held that it laid on the government or the management to fix the pay scales after considering various other matters and the court were only to consider whether such fixation of pay scales resulted in an invidious discrimination or was arbitrary. The case was initiated by the petitions of the ministerial staff belonging to the Registry of the Supreme Court. They claimed for increase in their pay scales after the pay scales of respective staff of the High Court of Delhi were increased i.e. they were entitled for equal pay under provision of equal pay for equal work and therefore they approachedthe Court for redressal of their grievances. Jaipal v. State of Haryana

In this case, Supreme Court envisaged in general that Art.39 (d) ordained the State to direct its policy towards securing equal pay for equal work for both men and women for the purpose of avoiding any discrimination amongst the people doing similar work in matters relating to pay. Commenting on the case, the Court held that though the doctrine of equal work equal pay would apply on the premises of similar work but it does not mean that there should be complete identity in all respects. To disregard the doctrine of equal pay for equal work on the ground of one employment being temporary and the other being permanent in nature is unreasonable. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee. Similarly, the difference in mode of selection will not affect the application of the doctrine of "equal pay for equal work" if both the classes of persons perform similar functions and duties under the same employer. The facts in this case were that the petitioners were employed under a scheme of Haryana Government as District Adult Education Officers for the purpose of imparting education to village adults. However there was also a similar scheme with similar type of work but with a higher pay scale, under the same government. The petitioners' grievance was that although they performed functions and duties of the same nature as performed by the

squad teachers but they were denied the same scale of pay and instead they were paid a fixed salary. Karnataka State Private College Stop-Gap Lecturers Association, v. State of Karnataka

In this case, the cause of action was that the order of the State government of Karnataka which stated that the teacher, appointed on ad-hoc basis would be paid a fixed salary which would be ten rupees less than that payable to a regular employee. However the issuing authority did not give the basis for this discrimination. The order also provided that such temporary appointments would be continued for a further period of not more than three months, with one day's break. The Supreme Court held the order to be void and held it a violation of Art. 39(d) and also declared the payment of fixed salary to temporary teachers as invalid, making it at par with the regular employees. The Court held the payment of fixed salary to the temporary employees less than the minimum payable to regular employee was violative of the principle of equal pay for equal work and was to be condemned.

SUGGESTIONS
1. 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 it can 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 into consideration while fixing the pay scales. The method of recruitment, the level at which the recruitment was made in the hierarchy of service or cadre, minimum educational and technical requirements prescribed for the post, were also some of the relevant factors. 4. The criteria to define equal work should be clearly mentioned.