DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

EQUAL PAY FOR EQUAL WORK- AN INDIAN PERSPECTIVE

SUBJECT

LABOUR LAW-II

NAME OF THE FACULTY

DR. CH. LAKSHMI

NAME OF THE CANDIDATE

ASISH ANSUMAN MISHRA

ROLL NUMBER-2019LLB036

SEMESTER-06

1
 ACKNOWLEDGEMENT

I genuinely want to advance my sincere gratefulness to our regarded Dr. Ch. Lakshmi for
giving me a golden chance to take up this research project that is- “Equal Pay for Equal
Work- An Indian Perspective” I have attempted my best to gather data about the task in
different potential manners to portray a clear picture about the given project.

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 ABSTRACT

In this day and age, the voice against inequality and gender discrimination are on rise. In this
context it is very important to understand the concept of equal pay for equal work especially
because it affects the financial and economic position of individuals. It is not uncommon that
the people are getting paid in inequal manner, even after performing similar functions and
undertaking similar responsibilities. In the private sector, it is very evident that some of the
women employees are not getting similar pay scale as their male counterparts even after
performing similar functions. There is also discrimination between the pay scale of temporary
and permanent employees even after performing similar duties and functions.

The aim of the project is to understand the principle of equal pay and equal work in India
with the help of legislations and case laws. This project will discuss about the international
instruments which have a provision for equal pay for equal work. The constitutional
provisions in India related to the principle of equal pay for equal work will be highlighted in
this project. The provisions of the legislations which ensure the compliance with the principle
of equal pay for equal work has been highlighted in this project. The instances when the
principle of equal pay for equal work is not applicable have also been discussed in this
project. Case analysis of two cases which deal with this principle have been done in this
project. The current scenario in India in relation to the pay gap has also been highlighted in
this project.

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 TABLE OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
ILO International Labour Organisation
WEF World Economic Forum
art. Article
CONST. India Constitution
UDHR Universal Declaration of Human Rights
ICESCR International Covenant on Economic, Social
and Cultural Rights
DPSP Directive Principles of State Policy
UP Uttar Pradesh
A.P. Andhra Pradesh
P&H Punjab and Haryana
HC High Court
SC Supreme Court
SCC Supreme Court Cases
AIR All India Reporter
LLJ Labour Law Journal
No. Number
AIIMS All India Institute of Medical Sciences

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 TABLE OF CONTENTS

Objective of the Study 6

Scope of the Study 6
Research Question 6
Hypothesis 6
Research Methodology 6
Literature Review 6-7
Significance of the Study 7
Introduction 7-8
Current Scenario in India 8
International Perspective 9-10
Legal Provisions Related to Equal Pay for 10-14
Equal Work in India
Principle of Equal Pay for Equal Work in 15
India
Instances When Principle of Equal Pay for 15-17
Equal Work will not be Acceptable in India
Case Analysis of Cases Related to Equal 17-23
Pay for Equal Work
Conclusion 23
Bibliography 24

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OBJECTIVE OF THE STUDY-

The objective of the study is to understand the principle of equal pay for equal work and its
applicability in India with the help of the legislations and decided cases by the courts of this
country.

SCOPE OF THE STUDY-

The scope of the study is restricted to India. The main emphasis is on the principle of equal
pay for equal work in India. The major focus in this project are the cases decided by the SC
of the country which deals with the principle of equal pay for equal work.

RESEARCH QUESTION-

1. What are the legislative measures undertaken by the government in India to ensure
that principle of equal pay for equal work is followed in India?
2. What are the constitutional provisions which supports the principle of equal pay for
equal work?
3. What are the instances when the principle of equal pay for equal work is not
applicable?

HYPOTHESIS-

1. After analysing various reports by different organisations, the principle of equal pay
for equal work is not followed especially in the private sector of our country.
2. The temporary employees are eligible for minimum pay scale of similar to the regular
employees if they perform similar functions and undertake similar responsibilities.
3. There are certain instances when the principle of equal pay for equal work is not
applicable.

RESEARCH METHODOLOGY-

In this project doctrinal method of research has been adopted by the researcher. The primary
sources for the project are legislations and case laws. The secondary sources are articles,
reports and books.

LITERATURE REVIEW-

BOOKS-

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 1. LABOUR & INDUSTRIAL LAWS, S.N. Misra1- In this book the author has
discussed about various important Indian Labour law legislations with the help of
related case laws. The author has dedicated one chapter on Equal Remuneration Act,
1976 and that chapter have been great help for the researcher while undertaking this
project.
2. INDUSTRIAL RELATIONS AND LABOUR LAWS, S.C. Srivastava 2- In this
book the author has described about the equal pay for equal work in great detail with
the help of case laws. This book has been of great help while undertaking this project.

ARTICLES-

1. EQUAL PAY FOR EQAUL WORK IN INDIA, Megha Sahni 3- In this article the
writer has discussed about the principle of equal pay for equal work by focusing on
the principle of equal pay for equal work. The writer has described about various
constitutional provisions and legislative provisions which are present India to solve
this problem. The writer has also discussed about some important case laws.

SIGNIFICANCE OF THE STUDY-

This project will help in understanding the actual meaning of the concept of equal pay for
equal work in India. This project will also highlight the current prevailing situation in India
regarding the pay scale of employees engaged in the private sector. The important provisions
of the Equal Remuneration Act, 1976 have been highlighted in this project. The instances
when the principle of equal pay for equal work is not applicable have also been highlighted in
this project. Finally, the case analysis of two land mark cases also helps in understanding
different dimensions of the principle in a better manner.

INTRODUCTION-

Right to equality is one of the most important rights of a citizen of our country. The principle
of equal pay for equal work is one of the most important components of the principle of equal
pay for equal work. Previously, the workers were not getting paid same wage even after
performing the same work which was being performed by another work. But gradually with
increasing awareness about the rights of the individuals, the principle of equal pay for equal

1
S.N. MISRA, LABOUR & INDUSTRIAL LAWS (29th ed., Central Law Publications 2019).
2
S.C. SRIVASTAVA, INDUSTRIAL RELATIONS AND LABOUR LAWS (7 th ed., Vikas Publishing House
2020).
3
Megha Sahni, Equal Pay for Equal Work, Vol.2, Issue 1, International Journal of Law Management &
Humanities, 2018.

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work has been considered as one of the very important principles all around the world. It is
only logical that if two persons are doing the same work in similar capacity, they should be
paid the same amount of wage. But because of various factors, some of the workers are
discriminated on the basis of gender or in other manner when the employer pays their wages.
When the employer is paying different wage for employees performing similar works, there
must be some justifiable grounds.

This project will focus on different dimensions of the principle of equal pay for equal work in
India by analysing the legislations and the case laws.

CURRENT SCENARIO IN INDIA-

Despite various efforts by the government by enacting the laws ensuring equal pay for equal
work the situation has not changed much. In most of the government jobs there is provision
of equal wages for equal work but the same cannot be said about the private sector jobs.
There has been the prevalence of continuous discrimination in the private sector. For the low
paid jobs and in the unorganized sector the principle of equal pay for equal work is not being
followed in its truest sense. Various reports published by international agencies shows the
true picture about the equal pay for equal work in India.

Oxfam India report- Mind the Gap- State of Employment in India-

The report highlighted that there is lack of quality jobs in India and wage disparity is
prevalent in the Indian labour market. The report highlighted that the social norms of our
country are hampering the women’s participation in country’s economic work force. As per
the report, “women are paid 34% less than similarly qualified male workers performing the
same tasks.” This clearly shows that the women workers are not getting equal pay as their
male counterparts while performing same kinds of works.

WEF Global Gender Gap Report, 2021-

This index is made by WEF and it benchmarks 156 countries and analyse all the countries by
evaluating four different dimensions, that are- “economic participation and opportunity,
educational attainment, health and survival and political empowerment.” India as per the
latest report is ranked 140 among the 156 countries. As per this report, “the estimated earned
income of women in India is only one fifth of the men workers”. One of the main reasons is
that, there are significantly less number of women who are part of the work force in India.

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Another reason is even if the women are part of the work force, still they are not getting same
pay scale in comparison to the male workers.

These reports show that in India the principle of equal pay for equal work has not been
followed in true spirit. Because, the women especially in the private sectors are not getting
equal pay for equal work for doing the same work which is done by the men.

INTERNATIONAL PERSPECTIVE-

One of the most significant milestones in the promotion of principle of equal pay for equal
work was reached after the establishment of ILO in 1919. The preamble of the ILO stated
that equal remuneration should be provided for the work of equal value. Convention number
100 of ILO was about Equal Remuneration Convention 4. It was adopted in the year 1951.
Article 2(1) of this convention states that, “Each member shall, by means appropriate to
methods in operation for determining rates of remuneration, promote and, in so far as is
consistent with such methods, ensure the application to all workers of the principle of equal
remuneration for men and women workers for work of equal value.” This provision clearly
states that for two similar works of same value, the remuneration given to the male workers
and the female workers should also be the same. As per the convention the term equal
remuneration for men and women workers for work of equal value means, “rates of
remuneration established without discrimination based on sex.” This means the remuneration
paid by the employer for a work of same value should not be different for the male and
female workers. Discrimination based on sex should not be done. Article 2(2) of the
convention also states that the principle of equal remuneration can be applied in a state by
bringing out national laws and regulations.

Similarly, article 23(2) of UDHR5 states that, “Everyone, without any discrimination, has the
right to equal pay for equal work.” In UDHR, the emphasis is not on the gender. This
provision states that irrespective of the gender the workers are entitled to equal pay for doing
equal work without any type of discrimination. Article 7(a)(i) of ICESCR 6 states that, “Fair
wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men,
with equal pay for equal work.” This covenant also highlights the concept of equal pay for
4
Equal Remuneration Convention, 1951, No. 100.
5
Universal Declaration of Human Rights, art. 23(2).
6
International Covenant on Educational, Social and Cultural Rights, art. 7(a)(i).

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equal work. Article 4(3) of the European Social charter also states that, “To recognise the
right of men and women workers to equal pay for work of equal value.”7

Equal pay for equal work is one of most basic components of right to equality.
Discrimination in giving remuneration should not be done especially two individuals are
performing the works of same value. All these international instruments shows that equal pay
for equal work has been accepted as a good practice around the world. Various international
organisations including the UN have recognised it. The provisions in UDHR, ICESR and
100th convention of ILO also shows that the international community is very much committed
in ensuring equal pay for equal work without any discrimination.

LEGAL PROVISIONS RELATED TO EQUAL PAY FOR EQUAL WORK IN INDIA-

In India, the Indian constitution is the law of the land. “The constitution does not expressly
mention equal pay for equal work as a fundamental or constitutional right. But there are
provisions in the DPSP which ensure that the principle of equal pay for equal work is
followed in India.”8 It is very important to note that the provisions of DPSPs are non-
justiciable in nature or in other words they cannot be enforced in the court of law.

India is a member of the international community and it can be seen that through various
statutory provisions and constitutional provisions, India is also committed to ensure that the
equal pay for equal work is given to the workers without any discrimination. By analysing the
constitutional provisions, it can be clearly seen that equal pay for equal work can come within
the fundamental rights, though it is not expressly mentioned in part III of the Indian
constitution. From article 14 and 16 it can be inferred that, “the principle of equal pay for
equal work has to be read into the fundamental rights as a matter of interpretation.” There
should not be any discriminations based on gender or otherwise while paying the
remunerations for equal work of same value done by similar individuals and that is the
essence of this principle.

CONSTITUTIONAL PROVISIONS

Various articles under the Indian constitution ensures that equal pay for equal work is given
in India. These articles are-

7
European Social Charter, 1961, art. 4(3).
8
INDIA CONST. part III.

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  Article 149- As per this article, “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.” This
article shows that the men and women shall be treated equally which also means they
should be given equal pay for equal work.
 Article 15(1)10- This article states that, “The State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
This article also indicates that there should be no discrimination based on any of the
above-mentioned grounds and this article also supports the principle of equal pay for
equal work.
 Article 1611- This article also states that, “There shall be equality of opportunity for
all citizens in matters of employment under the State.” This article also shows a
strong support to the principle of equal pay for equal work as it talks about the
equality of opportunity in employment given by the state.
 Article 39(d)12- This article states that, “The State shall, in particular, direct its policy
towards securing that there is equal pay for equal work for both men and women.”
This article also expressly mentioned that equal pay for equal work should be
provided to men and women and no discrimination shall be done on the basis of
gender.
 Article 4213- This article states that, “the state should make provision for ensuring just
and humane conditions of work.” This article also indirectly supports the principles of
equal pay for equal work by making a provision for just conditions of work.
 Article 51(A)(e)14- This is a fundamental duty. As per this article, “the citizens of
India should renounce the practices derogatory to the dignity of women.” Not paying
equal pay for the same work that is being done by a man, is a practice that is surely
derogatory to the dignity of women.

“The right to equal pay for equal work is only expressly given under the DPSP under article
39 of the constitution. These directive principles are not enforceable in the court of law but
they are surely crucial to the governance of the country and the state has an obligation to

9
INDIA CONST. art. 14.
10
INDIA CONST. art. 15(1).
11
INDIA CONST. art. 16.
12
INDIA CONST. art. 39(d).
13
INDIA CONST. art. 42.
14
INDIA CONST. art. 51(A)(e).

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consider them while enacting any laws in the country.”15 But is can be seen from the various
judgements given by the courts of this country now the right to equal pay for equal work is
considered as a fundamental right under right to equality under articles 14, 15 and 16 of the
Indian constitution. The courts have considered the principle of equal pay for equal work as
a part of the right to equality guaranteed under part III of the constitution.

In the case of Kishori Mohanlal Bakshi v. Union of India 16, which is the first case in relation
to the principle of equal pay for equal work, the SC held that, “The principle of equal pay for
equal work is incapable of being enforced in the court of law as it is a DPSP.” But in the
subsequent judgements the stance of the court has changed. In the case of Randhir Singh v.
Union of India17, the court held that, “Although the principle of equal pay for equal work is
not expressly declared by our constitution as a fundamental right, but it is certainly a
constitutional goal under articles 14, 16 and 39(c) of the constitution. This right can,
therefore, be enforced in the cases of unequal scales of pay based on irrational classification.”

In the case of Frank Anthony Public School Employees Association v. Union of India 18,
The court struck down section 12 of the Delhi School Education Act as unconstitutional
stating that, “It was violative of article 14 as it made discrimination in pay and other
conditions of service of school teachers mainly on the ground of aided schools and unaided
minority schools.”

In the case of Dhirendra Chamoli v. State of UP19, the SC has held that, “The principle of
equal pay is also applicable to casual workers employed on daily wage basis. Thus, it was
held that persons employed in Nehru Yuwak Kendra in the country as casual workers on
daily wage basis were doing the same work as done by class IV employees appointed on
regular basis and therefore entitles to same salary and conditions of work.”

STATUTORY LEGAL PROVISIONS RELATED TO EQUAL PAY FOR EQUAL

WORK-

Apart from the constitutional provisions there are also certain statutory provisions in India
which ensure that equal pay for equal work is given to the workers. In Employees
Compensation Act, 192320, which is aimed at, “Providing financial protection to the
15
Supra Note 9.
16
Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139.
17
Randhir Singh v. Union of India, AIR 1982 SC 879.
18
Frank Anthony Public School Employees Association v. Union of India, (1986) 4 SCC 707.
19
Dhirendra Chamoli v. State of UP, (1986) 1 SCC 637.
20
Employees Compensation Act, 1923, No. 8.

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employee and his or her dependents in case of accidental injury by means of payment of
compensation by certain class of employers.” Without this statute there was a high chance
that because of lack of bargaining powers with the employees, the employer may have
discriminated against the women employees. The women employees might have faced
exploitation while receiving compensation. This statute helps in providing a remedy.

Similarly, the Minimum Wages Act of 194821 also helps in making statutory fixation of the
minimum wages of workers as the workers have less bargaining power in India. This statute
also ensures that women workers are also provided with the same minimum wage in
comparison to their men counterparts.

But the most significant step by the Indian legislature in ensuring equal pay for equal work
has been the Equal Remuneration Act of 1976. It is important to note that India ratified the
ILO convention on equal remuneration in the year 1958. This particular legislation of 1976
was enacted to show the compliance of Indian government towards the Equal Remuneration
convention of ILO, 1951.

Equal Remuneration Act, 197622- This act was enacted to give effect to the goal of equal
pay for equal work mentioned in article 39(d) of the constitution. In year 1975 first an
ordinance by the president was issued and in the year 1976 the ordinance was converted to an
Act in statutory form.

The aim of the act was to provide, “equal remuneration to men and women workers and to
prevent discrimination on the basis of gender in all matters which are related to
employment.” “The legislation not only provides women with a right to demand equal pay,
but any inequality with respect to the recruitment processes, job training, promotions and
transfers within the organisation can be challenged under the act.” The act ensures against the
discrimination in recruitment and promotion of men and women. The act also provides for
setting up of advisory committee to promote employment opportunities for women.

The companies and the individual employers who employ employees can be held
accountable under the act and they are also supposed to maintain the standards mentioned
under the act and show compliance to the provisions of the act. The SC in multiple cases has
held that, “ discrimination on the basis of gender only arises when men and women perform
the same work or work of similar nature.” The main objective of the act is to, “Provide for

21
Minimum Wages Act, 1948, No. 11.
22
Equal Remuneration Act, 1976, No. 25.

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payment of equal remuneration to men and women workers and for prevention of
discrimination, on the grounds of sex, against women in the matter of employment and for
matters connected therewith or incidental thereto.”

In the context of this act, it is very important to know the meaning of remuneration. The act
defines remuneration as, “The basic wage or salary and any additional emoluments
whatsoever payable, either in cash or in kind, to a person employed in respect of employment
or work done in such employment, if the terms of the contract of employment, express or
implied, were fulfilled.”

Section 323 of the act states that the act shall have an overriding effect. Section 4 24 of the act
talks about duty of employer to pay equal remuneration to men and women workers for the
same work. Section 525 of the act states that no discrimination shall be done while recruiting
men and women workers. Section 626 of the act talks about the institution of advisory
committee. Section 727 of the act talks about, “the power of appropriate government to
appoint authorities for hearing and deciding claims and complaints.” Section 9 28 of the act
talks about the inspectors. Section 1029 of the act provides for the imposition of penalties
when the employer has failed to act in consonance with the act. Section 11 30 provides for the
offences committed by companies under the act. Section 1531 of the act speaks about the
certain circumstances when act will not apply for provision of special treatment to the women
employees.

In the case of Dharwaa District P.W.D. Literate Daily Wage Employees Association &
Others v. State of Karnataka & Another 32, the SC held that, “The Equal Remuneration Act
was enacted for providing equality of pay for equal work between men and women which is a
part of the principle of equal pay for equal work. The daily rated and monthly rated
employees in the state of Karnataka are therefore entitled to pay like regular employees.
Therefore, the government must pay salary to such workmen at the rates equivalent to the
minimum pay in the pay scale of the regularly employed workers.”
23
Equal Remuneration Act, 1976, No. 25, § 3.
24
Equal Remuneration Act, 1976, No. 25, § 4.
25
Equal Remuneration Act, 1976, No. 25, § 5.
26
Equal Remuneration Act, 1976, No. 25, § 6.
27
Equal Remuneration Act, 1976, No. 25, § 7.
28
Equal Remuneration Act, 1976, No. 25, § 9.
29
Equal Remuneration Act, 1976, No. 25, § 10.
30
Equal Remuneration Act, 1976, No. 25, § 11.
31
Equal Remuneration Act, 1976, No. 25, § 15.
32
Dharwaa District P.W.D. Literate Daily Wage Employees Association & Others v. State of Karnataka &
Another, (1991) II LLJ 318 (SC).

14
The court while interpreting section 3 of the act in the case of M/s. Mackinnon Mackenzie &
Co. Ltd. v. Andrey D’ Costa & Another 33, held that, “In the view of section 3 of the act the
provisions of the act shall have effect notwithstanding anything inconsistent therewith
contained in any other law or in the terms of any award, agreement or contract of service
whether made before or after the commencement of the act, or in any instrument having
effect under any law for the time being in force. Therefore, the settlement arrived at must
yield to the provisions of the act.”

PRINCIPLE OF EQUAL PAY FOR EQUAL WORK IN INDIA-

The principle of equal pay for equal work is expressly mentioned in article 39(d) of the
constitution of India. “This principle implies that where all things are equal that us where all
relevant considerations are the same, persons holding identical posts may not be treated
differently in the matter of their pay merely because they belong to different departments.” 34
But if the officers of same rank perform dissimilar functions and the powers, duties and
responsibilities of the posts held by them vary, such officers may not be heard to complain of
dissimilar pay merely because the posts are of same rank and the nomenclature in same.35

In the case of Randhir Singh v. Union of India36, the SC held that, “The principle of equal
pay for equal work though not a fundamental right is certainly a constitutional goal and
therefore capable of enforcement through constitutional remedies under article 32 of the
constitution.” In the case of Surinder Singh v. Engineer in Chief C.P.W.D. 37, the court held
that, “The doctrine of equal pay for equal work is applicable to persons employed on a daily
wage basis. Daily wagers are entitled to the same wages as other permanent employees in the
department employed to do the identical work.”

The burden to prove the fact that there has been discrimination in the pay to the employee has
to proved before the court by producing relevant evidences by the petitioner. The SC in the
case of State of West Bengal and Others v. Hari Narayan Bhowal and Others 38, held that,
“Unless a very clear case is made out and the court is satisfied that the pay scale provided to a
group of persons on the basis of the material produced before it amounts to discrimination

33
M/s. Mackinnon Mackenzie & Co. Ltd. v. Andrey D’ Costa & Another, (1987) 1 LLJ 536 (SC).
34
INDIA CONST. art. 39(d).
35
Supra Note 2.
36
Id.
37
Surinder Singh v. Engineer in Chief C.P.W.D., AIR 1986 SC 534.
38
State of West Bengal and Others v. Hari Narayan Bhowal and Others, (1995) II LLJ 328 (SC).

15
without there being any justification, the court should not take upon itself the responsibility
of fixation of scales of pay.”

INSTANCES WHEN PRINCIPLE OF EQUAL PAY FOR EQUAL WORK WILL

NOT BE APPLICABLE-

The principle of equal pay for equal work is not applicable in all the circumstances. Though
there is no expressed mention of any such circumstances in any statute but the courts of our
country have pointed out certain circumstances when provision of equal pay is not possible.
Certain circumstances when the principle of equal pay for equal work will not apply have
been highlighted by the Indian courts in numerous judgements. Some of these cases are
discussed below-

In the case of F.A.I.C. and C.E.S. v. Union of India 39, the SC held that, “Different pay scales
can be fixed for government servants holding same post and performing similar work on the
basis of different degree of responsibility, reliability and confidentiality. The court further
said that equal pay depends upon the nature of work done and not mere volume of work.
There may be qualitative differences as regards reliability and responsibility.”

In Mewa Ram v. AIIMS40, the SC held that, “If the duties and functions are of similar nature
but if educational qualifications prescribed for the two posts are different and there is
difference in measure of responsibilities, the principles of equal pay for equal work would not
apply. Thus, different salaries can be given to hearing therapists and audiologists in AIIMS
due to difference in the educational qualifications.”

In the case of Associated Bank Officers Association v. State Bank of India 41, the court held
that, “Officers of SBI and officers of the subsidiary banks of SBI are not in a comparable
position considering responsibilities of officers of the SBI. Thus, the principle of equal pay
for equal work could not be applied in this case.”

In the case of State of A.P. and Others v. G. Sreenivasa Rao & Others 42, the SC has held
that, “Equal pay for equal work does not mean that all the members of a cadre must receive
same pay packet, irrespective of their seniority, source of recruitment, educational
qualifications and various other incidents of service. Ordinary grant of higher pay to a junior

39
F.A.I.C. and C.E.S. v. Union of India, (1998) 3 SCC 91.
40
Mewa Ram v. AIIMS, AIR 1989 SC 1256.
41
Associated Bank Officers Association v. State Bank of India, AIR 1998 SC 32.
42
State of A.P. and Others v. G. Sreenivasa Rao & Others, (1989) II LLJ 149 (SC).

16
would ex-facie be arbitrary, but equality doctrine cannot be invoked where there are
justifiable grounds in doing so.”

In the case of Government of West Bengal v. Tarun K. Roy43, the SC held that, “The
principle of equal pay for equal work would not apply where educational qualifications and
other considerations such as source of recruitment and nature of work done vary between two
classes of employees.”

In the case of State of West Bengal & Others v. Madan Mohan Sen & Others 44, the question
before the court was that whether Agragamies in West Bengal Civil emergency force must be
placed on the scale on par with the firemen in the West Bengal fire service. The SC held that,
“The firemen are specialized fire fighting force while Agragamies are jack of all trades,
having been given elementary training in various fields. When called upon to assist,
Agragamies assist firefighting personnel just as they assist personnel of other departments. It
is idle to contend that they perform the same duties and functions as the firemen. They assist
not only the fire service department, but also police, municipal, medical, health, social service
department and so on. Merely because academic qualifications and physical requirements of
both are similar, it cannot be said that they perform similar duties, functions and
responsibilities as firemen. Therefore, the same pay scale cannot be granted to them.”

CASE ANALYSIS OF CASES RELATED TO EQUAL PAY FOR EQUAL WORK-

Analysis of three land mark cases decided by the SC of India will be done in this chapter to
highlight various aspects of the principle of equal pay for equal work.

M/s. MacKinnon Mackenzie & Co. Ltd. v. Andrey D’ Costa & Another45

Facts of the case-

In this case a female stenographer after the termination of her services filed a petition under
section 7(1) of the Equal Remuneration Act, 1976. In that petition she complained that during
the period of her service she was paid the remuneration at a lesser rate in comparison to the
male stenographers who were also performing same or similar work. The petitioner in this
case was the establishment and the respondent in this case was the woman stenographer. The
petitioner was getting around Rs. 730 less than a male stenographer performing similar work.

43
Government of West Bengal v. Tarun K. Roy, (2004) I LLJ 421 (SC).
44
State of West Bengal & Others v. Madan Mohan Sen & Others, (1993) II LLJ 654 (SC).
45
Supra Note 6.

17
The first authority before which the respondent filed the complaint ruled in favour of the
respondent but the appellate authority ruled in favour of the petitioner. Then the petitioner
filed an appeal before HC. The HC ruled in the favour of the female stenographer. After the
decision of the HC, the petitioner approached the SC under article 136 of the Indian
constitution.

The HC found that, “The work done by female stenographers and male stenographers were
identical and the female stenographers were being paid less than their male counterparts who
were in service for equal number of years.” There was also a settlement which was arrived at
by the establishment in 1975 as per which pay scales of female stenographers will be equal to
male stenographers.

The HC held that, “The respondent is entitled to difference between the pay and allowances
which had been paid to a male stenographer who had put ins service for the same number of
years as the respondent and the amount of pay and allowance which had been paid to her
between 8/10/1976 and 13/06/1977.” It is very important to know that the act was applicable
on the establishment of the petitioner from 8/10/1976.

Arguments of the petitioner-

The petitioner contended that, “difference between the remuneration of the male
stenographers and confidential lady stenographers was because of a settlement which was
arrived at after a negotiation.” The petitioner contended that the benefit should be given to
them as per proviso to section 4(3) of the act. The judgement of the HC was in contrary with
section 4(3) of the act.

The petitioner also contended that, “The enforcement of the act will be highly prejudicial to
the management, since its financial position is not satisfactory and the management is not
able to pay equal remuneration to both male and female stenographers.” The petitioner also
contended that, “The difference between the remuneration of the male Stenographers and the
remuneration of the Confidential Lady Stenographers was on account of the settlement which
was arrived at a after proper negotiation and that the court must have regard to it.”

Arguments of the respondent-

The counsel for the respondent contended that the decision of the HC was absolutely correct.

Issues raised before the court-

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 1. “Whether the petitioner had violated section 4(1) of the act.”
2. “Whether the benefit of proviso to section 4(3) of the act can be given to the
petitioner.”
3. Whether the court must have a regard to the settlement arrived at by the management
after negotiation.

Legal provisions used by the court-

Section 3, 4 and 7(1) of the Equal Remuneration Act, 1976 were used by the court while
deciding the case.

Reasoning given by the court-

Regarding section 4(3) proviso of the act, the court stated that, “Section 4(3) of the act would
be applicable where in an establishment or an employment, rates of remuneration payable
before the commencement of the act for the men workers and for the women workers for the
same work or work of similar nature are different.” The court highlighting the situation of the
case stated that, “In this case the settlement after the settlement was arrived at, there was a
common pay scale for both men and women as can be seen from the settlement. The
discrimination was brought about while carrying out the fitment of lady stenographers in the
scale of pay.” The court further held that, “The proviso of 4(3) comes into operation when
section 4(3) is applicable. Since, there are no different scales of pay in the instant case section
4(3) would not be attracted and proviso will not be applicable.”

Regarding the question whether the petitioner violated section 4(1) of the act. The court
stated that, “The petitioner has violated section 4(1) of the act because the impugned
remuneration payable to lady stenographers has been reduced on account of the inequitable
provision regarding fitment in the common scale of pay which is applicable to both female
and male stenographers.” The court highlighted that there was discrimination towards the
lady stenographers and stated that, “The lady stenographers were treated differently and a
class different from the clerical and subordinate staff by paying less remuneration even
though they had put same length of service and they were placed in same pay scale.”
Regarding the question whether the court should have a regard to the settlement, the court
stated that, “As per the provision of section 3 of the act, “The settlements have to yield in
favour of the provisions of the Act.”

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The court stated that while considering whether the male and female stenographers were
performing similar work, three considerations must be kept in mind and they are- “The
authority should take a broad view as also a broad approach should be adopted in ascertaining
whether any differences are of practical nature. The actual duties performed should be looked
at and not those theoretically possible. In making comparison the authority should look at the
duties generally performed by men and women. Where both men and women work at
inconvenient times there is no requirement that all those who work at night shall be paid in
same basic rate as those who work during normal day shifts.”

The court further highlighting the position of the female confidential stenographers stated
that, “It may be that the management was not employing any male as a Confidential
Stenographer attached to the senior executives in its establishment and that there was no
transfer of Confidential Lady Stenographers to the general pool of Stenographers where
males were working. It, however, ought not to make any difference for purposes of the
application of the Act when once it is established that the lady Stenographers were doing
practically the same kind of work which the male Stenographers were discharging.”

Regarding the contention that the financial position of the company is not good to comply
with the provisions of the act, the court stated that, “The Act does not permit the management
to pay to a section of its employees doing the same work or a work of similar nature lesser
pay contrary to Section 4(1) of the Act only because it is not able to pay equal remuneration
to all. The applicability of the Act does not depend upon the financial ability of the
management to pay equal remuneration as provided by it.”

Decision of the court-

The court dismissed the appeal and upheld the decision of the HC. The court held that there
are no reasons to interfere with the decisions of the HC.

State of Punjab and Others v. Jagjit Singh and Others46

Facts of the case-

The judgements of P&H High court are challenged in this case before the SC. The decisions
of the HC in similar types of cases were in conflict with each other. The question which arose
before the HC was, “whether the temporary employees like daily wage employees, ad-hoc
appointees, employees appointed on casual basis and contractual employees are entitled to
46
State of Punjab and Others v. Jagjit Singh and Others, AIR 2016 SC 5176.

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the same pay scale as that of permanent employees if they are undertaking similar work and
similar responsibilities as that of the permanent employees.” The HC in the case State of
Punjab & Others v. Rajinder Singh & Others, held that, “The temporary employees would not
be entitled to the minimum pay scale as was being paid to similarly placed permanent
employees.” But in another case of State of Punjab & Others v. Rajinder Kumar, the P&H
HC took the view that, “Temporary employees would be entitled to minimum of the pay
scale, along with permissible allowances which were being given to the similarly placed
permanent employees.”

Because of the conflicting decisions of the HC in cases involving issues of similar nature, the
matter was referred to a higher bench of P&H High court in the case of Avtar Singh v. State
of Punjab & Others. In this case, the court held that, “Temporary employees are not entitled
to the minimum of the regular pay scale, merely on the account of the reason that the
activities carried out by the daily wagers and permanent employees are similar.” But the court
also gave two situations when the temporary employees will be entitled to wages as par with
permanent employees. Those situations are-

1. “If the temporary employee has been appointed in a regular sanctioned post after
passing through the selection process based on fairness and equality of opportunity to
all other eligible candidates.”
2. “If the temporary employee has been appointed in a post which is not a regular
sanctioned post, however, their services have been availed continuously with some
notional breaks for a sufficiently long period.”

The case came before the SC as a result of the challenge against the above-mentioned cases
decided by the P&H High court.

Arguments of the petitioner-

The petitioner contended that the judgement of the HC in Avatar Singh case was correct and
the temporary employees are not entitled to the same pay scale as the regular employees even
after performing similar functions and undertaking similar responsibilities.

Arguments of the respondent-

The respondent contended that, “the temporary employees are entitled to minimum of pay
scale given to the regular employees for performing similar functions.” The respondent
contended that the decision of the HC in the case of Rajinder Singh was correct.

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Issues raised before the court-

1. “Whether temporarily engaged employees are entitled to minimum regular pay scale,
along with dearness allowance on account of their performing the same duties, which
are discharged by those engaged on regular basis against sanctioned posts.”

Reasoning given by the court-

The SC in this case highlighted the following points after going through numerous previous
decisions of the SC.

 Non payment of same wages, even if the work done is same is against the provisions
of article 14 of the constitution and it amounts to exploitation in a welfare state in
India.
 “The right to equal wages as claimed by the temporary employees emerges from
article 39 of the constitution.”
 “The claim for equal wages will be sustainable when a temporary employee is
required to discharge similar duties and responsibilities as permanent employees and
the employee has the qualifications which is required for the post.”
 “In a claim for equal wages, the duration for which an employee remains or has
remained engaged, the manner of selection would be inconsequential, insofar as the
applicability of the principle of equal pay for equal work is concerned.”
 “The classification of workers (as unskilled, semi-skilled and skilled), doing the same
work, into different categories, simply for payment of wages at different rates is not
acceptable. Such an act of the employer would amount to exploitation and shall be
arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the
Indian constitution.”
 “If daily-wage employees can establish that they are performing equal work of equal
quality, and that all the other relevant factors are fulfilled, a direction by a court to pay
such employees equal wages from the date of filing the writ petition, would be totally
justified.”

The court further highlighted that, “An employee engaged for the same work cannot be paid
less than another who performs the same duties and responsibilities and certainly not in a
welfare state. Such an action besides being demeaning, strikes at the very foundation of
human dignity. Any act of paying less wages as compared to others similarly situated,

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constitutes an act of exploitative enslavement, emerging out of a domineering position.
Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary
subjugation.”

The court giving emphasis on the ICESCR and the constitutional provisions stated that,
“India is a signatory to the ICESCR, 1966, there is no escape from the obligations thereunder
in view of the different provisions of the Constitution. Thus, the principle of 'equal pay for
equal work' constitutes a clear and unambiguous right and is vested in every employee,
whether engaged on a permanent or temporary basis.”

Decision of the court-

The court set aside the decision of the P&H High court in the case of Avatar Singh and
Rajinder Singh. But the court upheld the decision of the HC in the Rajinder Kumar case. The
court held that, “The concerned employees would be entitled to the minimum of the pay-scale
of the category to which they belong but would not be entitled to allowances attached to the
posts held by them.”

CONCLUSION-

After analysing various reports by different organisations, the principle of equal pay for equal
work is not followed especially in the private sector of our country. The temporary
employees are eligible for minimum pay scale of similar to the regular employees if they
perform similar functions and undertake similar responsibilities. There are certain instances
when the principle of equal pay for equal work is not applicable. Equal pay for equal work is
one of the most basic tenets of right to equality. If someone is doing the same work and
undertaking similar responsibility in comparison to another, then he should be eligible to get
the similar amount of pay. The government sector employers are following the principles of
equal pay for equal work, but it can be seen that in the private sector, though some
organisations are working in consonance with this principle, but still there are certain
organisations which do not act in consonance with the principle of equal pay for equal work.
All the organisations should strive to follow this principle which will encourage the work
force and which will ultimately help our economy.

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 BIBLIOGRAPHY

BOOKS-

1. INDUSTRIAL RELATIONS AND LABOUR LAWS, S.C. Srivastava, 7 th edition,

Vikash Publishing House, 2020.
2. LABOUR & INDUSTRIAL LAWS, S.N. Misra, 29 th edition, Central Law
Publications, 2019.

ARTICLES-

1. EQUAL PAY FOR EQUAL WORK IN INDIA, Megha Sahni, Vol. 2, Issue 1,
International Journal of Law Management & Humanities, 2018.

WEB SOURCES-

1. https://www.legitquest.com/
2. https://legislative.gov.in/

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