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The topic of our project is Equal Pay for Equal Work-Constitutional and Labor
legislation perspective. In our project we have tried to understand the concept
of equal pay and work...

Research · February 2020

DOI: 10.13140/RG.2.2.15096.88324

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 Topic: - Equal pay for equal work: Contemporary Judicial Approach

Subject: - Labour & Industrial Laws-I

Project Report

Submitted by: -Pranav Khosla

Registration Number: - 15040142005
BBALLB (2015-20) Section-A
Submitted to: - Prof. Gyanashree Dutta

1
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 Table of Contents
1. ABSTRACT ................................................................................................................. 4

2. OBJECTIVE OF STUDY ........................................................................................... 5

3. RESEARCH METHODOLOGY ............................................................................... 5

Research Design........................................................................................................................... 5

Research Approach ..................................................................................................................... 5

Data Analysis Method ................................................................................................................. 5

4. INTRODUCTION ....................................................................................................... 5

5. NATURE & SCOPE ................................................................................................... 6

CONSTITUIONAL PERSPECTIVE ......................................................................................... 8

CASES TO UNDERSTAND THE CONSTITUTIONAL PERSPECTIVE............................... 9

LEGISLATIVE PRESPECTIVE.............................................................................................. 14

CASES TO UNDERSTAND THE LABOUR PERSPECTIVE OF THE LAW ...................... 15

6. SUGGESTIONS ........................................................................................................ 21

7. BIBLIOGRAPHY ..................................................................................................... 21

8. WEBLIOGRAPHY ................................................................................................... 21

2
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
Equal pay for equal work: Contemporary
Judicial approach
TABLE OF CASES
Serial Case Name Citation Page
Number Number
1. Randhir Singh v. Union of India 1982 AIR 879, 1982 SCR (3) 9
298
2. Dharwad District PWD Literate 1990 AIR 883, 1990 SCR (1) 10
Daily Wages Employees Association 544
v. State of Karnataka
3. Federation of All India Customs and 1988 AIR 1291, 1988 SCR 10
Central Excise Stenographers v. (3) 998
Union of India
4. Mewa Ram v. A.I.I. Medical Science 1989 AIR 1256, 1989 SCR 11
(1) 957
5. Deena v. Union of India 1983 AIR 1155, 1984 SCR 11
(1) 1
6. U.P. Rajya Sahakari BhoomiVikas AIR 1990 SC 495, I (1990) 15
Bank Ltd. v. Workmen BC 52 SC
7. M/s Mackinnon Mackenzie & Co. 1987 (2) Bom CR 654, (1986) 88 15
Ltd. v. Audrey D’Costa BOMLR 516
8. Surinder Singh v. Engineer in AIR 1986 SC 584, 1986 16
Chief, C.P.W.D
9. HarbansLal v. State of Himachal 1989 SCR (3) 662, 1989 SCC (4) 17
Pradesh 459
10. GrihKalyan Kendra Workers Union 1991 AIR 1173, 1991 SCR (1) 15 18
v. Union of India
11. Supreme Court Employee’s Welfare 1990 AIR 334, 1989 SCR (3) 488 19
Association V. Union Of India
12. Jaipal v. State of Haryana 1988 AIR 1504, 1988 SCR Supl. 19
(1) 411
13. Karnataka State Private College 1992 AIR 677, 1992 SCR (1) 397 20
Stop-Gap Lecturers Association,
v. State of Karnataka

3
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
Equal pay for equal work: Contemporary
Judicial approach
1. ABSTRACT
The topic of our project is Equal Pay for Equal Work-Constitutional and Labor 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, example Equal Remuneration Act,
Contract Labor, 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 the sesocio-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 tremendous
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 conforms 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 maximize 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
the 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
4
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
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).

2. OBJECTIVE OF STUDY
The objective behind this study Is to know the current scenario of the concept called “Equal
Pay for Equal Work”. To know the implementation of the laws which are planned by
government and reality on the base level.

3. RESEARCH METHODOLOGY
Research Design: The purpose of this study is to know the implementation of the concept called
“equal pay for equal work” and making laws for the concept. For example, “a law is there a
person will work for 10 hours and company have employed two employees of different gender,
but now Male employee is getting Rs.200/hour but female employee is getting Rs.175/hour,
now this is not equal pay for equal work”, so this is the type of problems faced.
Research Approach: The approach used by us is “descriptive design”, this research seeks to
describe the current status of variable or phenomenon. We have tried to develop the data
collected. “Descriptive design” is observational in nature.
Data Analysis Method: The data of this research of this research is mostly qualitative in nature.
The data is gathered in-depth interview

4. INTRODUCTION

The concept of equal pay for equal work is one of the Directive Principles of State Policy
enshrined under Article 39 (d) of the Constitution of the India which envisages that the State
shall, in particular, direct it’s policy towards securing that there is equal pay for equal work for
both men and women. The principal implies that where all things are equal, that is, where all
relevant considerations are the same, persons holding identical posts may not be treated
differently in matter of their pay merely because they belong to different departments. Of
course, if officers of the same rank perform dissimilar functions and the powers, duties and
responsibilities of the
5
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
posts held by them vary, such officers may not be heard to complaint of dissimilar pay merely
because the posts are of the same rank and the nomenclature is the same. It was held in Randhir
Singh case by the Supreme Court that, “It is true that the Principle of ‘equal pay for equal work’
is not expressly declared by our Constitution to be a fundamental right. But it certainly is a
constitutional goal. Article 39(d) of the constitution proclaims ‘equal pay for equal work for
both men and women’ as a Directive Principle of State Policy. ‘Equal pay for equal work for
both men and women’ means equal pay for equal work for everyone and as between the sexes.

5. NATURE & SCOPE

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
6
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
Article 39 which states as follows, “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 regard to the terms of pay. However, ongoing strictly according to the
provision, it nowhere states that this concept of equality of pay is to be followed even interim
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 26thSeptember,
1975 so that the provision of Art. 39(d) was implemented in the year, which was being

7
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
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.
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 maybe
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 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 regard 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

8
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
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 favor
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 a like.
CASES TO UNDERSTAND THE CONSTITUTIONAL PERSPECTIVE
In Randhir Singh v. Union of India1 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

1
1982 AIR 879, 1982 SCR (3) 298

9
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
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.
Ø In Dharwad District PWD Literate Daily Wages Employees Association v. State of Karnataka 2
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.
Ø In Federation of All India Customs and Central Excise Stenographers v. Union of India3 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

2
1990 AIR 883, 1990 SCR (1) 544

3
1988 AIR 1291, 1988 SCR (3) 998

10
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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 emphasized
that though the duties and works were identical between the petitioners and their counter
parts 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-emphasized 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 Article39(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 tobe a
fundamental right, was a constitutional goal. Construing Articles 14 and16 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.
Ø In Mewa Ram v. A.I.I. Medical Science4 Supreme Court has held that the doctrine of equal pay
for equal work is not an abstract doctrine. Equality must be among equals, un equals 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.
Ø In Deena v. Union of India5 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

4
1989 AIR 1256, 1989 SCR (1) 957
5
1983 AIR 1155, 1984 SCR (1) 1

11
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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,
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 organization 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

12
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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. 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 dream 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 Labor
legislation perspective, by studying the different acts. “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

13
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 Ordinance, 1975on 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 it 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.
LEGISLATIVE PRESPECTIVE
Major points of consideration that have come up during my study are as follow: -
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 favor 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 constitutional goal
under Articles 14, 16 and 39 (c) of the Constitution. It has been held that the principle of equal
pay for equal work is also applicable to casual workers employed on daily wage basis. 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

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EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
of the work done. It cannot be judged by the mere volume of work. There may be qualitative
difference as regards reliability and responsibility. 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.
CASES TO UNDERSTAND THE LABOUR PERSPECTIVE OF THE LAW
Ø In U.P. Rajya Sahakari BhoomiVikas Bank Ltd. v. Workmen6, 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
promotes were doing same type of work. However, higher wages were given to one group
(seniors) of promoters from a particular back date. The Court held that the promoters 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.
Ø In M/s Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa 7, 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

6
AIR 1990 SC 495, I (1990) BC 52 SC

7
1987 (2) Bom CR 654, (1986) 88 BOMLR 516

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EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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 organization 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 organization 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.
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 in consequential.
Ø In Surinder Singh v. Engineer in Chief, C.P.W.D 8This 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

8
AIR 1986 SC 584, 1986

16
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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.
Ø In HarbansLal v. State of Himachal Pradesh 9 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 petitioner’s 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 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,

9
1989 SCR (3) 662, 1989 SCC (4) 459

17
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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 jobs 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.
10
Ø In GrihKalyan 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 organization working under Ministry of Home Affairs
and its employees were classified as regular and temporary staff, where regular employees
drew salaries in regular pay scale 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 organizations 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 organization and dismissed the petition.

10
1991 AIR 1173, 1991 SCR (1) 15

18
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
Ø In Supreme Court Employee’s Welfare Association V. Union Of India 11In 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 approached
the Court for redressal of their grievances.
Ø In Jaipal v. State of Haryana 12In 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

11
1990 AIR 334, 1989 SCR (3) 488

12
1988 AIR 1504, 1988 SCR Supl. (1) 411

19
EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 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 petitioner’s 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.
Ø In Karnataka State Private College Stop-Gap Lecturers Association, v. State of Karnataka 13
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.

13
1992 AIR 677, 1992 SCR (1) 397

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EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH
 6. 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.

7. BIBLIOGRAPHY
o P.R.N Sinha, InduBala and Priyadarshini, Industrial Relations, Trader Unions and
Labour Legislations, (1st edition, Pearson,2017)
o S.N. Misra, Labour & Industrial Laws, (28th edition, Central Law Publication,2013)
o VN Shukla, Constitution of India, (13th end, EBC, 2017)

8. WEBLIOGRAPHY

o www.manupatra.com
o www.scconline.com
o www.jstor.org
o www.indiankanoon.com

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EQUAL PAY FOR EQUAL WORK: CONTEMPORY JUDICIAL APPROACH

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