EQUAL PAY FOR EQUAL

WORK-
CONSTITUTIONAL AND
LABOUR LEGISLATION
PERSPECTIVE
SUBMITTED TO-DR.SHAILENDRA NIGAM

SUBMITTED BY-
GROUP 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 Woman‟s 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-à-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 re-
emphasised 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.(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 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 Work-
from the Labour legislation perspective, by studying the different acts-
1. 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 Woman‟sYear. 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 D’Costa
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 Employee’s 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.