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

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

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

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 26 th
September, 1975 so that the provision of Art. 39(d) was implemented in the year,
which was being

celebrated as the International Woman’s Year. The ordinance was brought to effect
to provide for payment of Equal Remuneration to both man and woman workers
for the same work or work of similar nature and for the prevention of
discrimination on grounds of sex. The various provisions for the payment of
remuneration at equal rates are provided in Chapter II of the Act and almost all the
provisions point to similar ends and ultimately direct the employers not to practice
discrimination while recruitment, while payment or even while considering
employees for promotion. The Act also provides for maintenance of registers in the
organizations, creation of posts of Inspectors and other related offices to keep a
check on such prejudiced practices, which are likely to affect the provisions of the
Act. It speaks extensively of what the employers have to follow but is silent on the
point of reasonable classification with the apex court has pointed out freely and
exhaustively. The Act does not also lay any provision as to whether the
qualifications of the employees are to be considered while framing paying
packages or not. The only thing which the Act point to is that the employer must
not discriminate on the basis of the sex of the worker if both man and woman are
doing same or similar kind of work.

CONSTITUTIONAL 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

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 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

1
1982 AIR 879, 1982 SCR (3) 298
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.

In Dharwad District PWD Literate Daily Wages Employees Association v.

State of Karnataka2 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.

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
2
1990 AIR 883, 1990 SCR (1) 544
3
1988 AIR 1291, 1988 SCR (3) 998
attached to the heads of the Customs and Central Excise Departments under the
Ministry of Finance. They asserted that they were discriminated vis-à-vis personal
assistants and stenographers attached to the joint secretaries and officers above
them in the Ministry. They contended that the type of work

was the same and in fact they had more work to be done. The Respondents in
return emphasized that the difference in the functional requirements of the work
done was one of the points for such discrimination. The respondents also stated
that while devising the pay- scales of various posts and categories, the degree of
skill, experience involved, training required, responsibility taken, strain, fatigue,
risk and confidentiality undertaken, mental and physical requirements were factors
borne in mind. The Respondent also 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.
  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.

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

 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 PERSPECTIVE

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 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

 In U.P. Rajya Sahakari BhoomiVikas Bank Ltd. v. Workmen 6, 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

6
AIR 1990 SC 495, I (1990) BC 52 SC
 whenever there was a hint of woe, the Court would come to the rescue of the
aggrieved workers.

 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 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

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

 In Surinder Singh v. Engineer in Chief, C.P.W.D 8 This case was brought

before the apex Court by way of Writ Petition. The prime contention of the
petitioners was that they were employed by the Central Public Works
Department on Daily Wage basis and their wages were less than those who
were employed by the Department on permanent basis but did the same kind
of work. In reply, the respondents stated that the doctrine of Equality of pay
was an abstract concept and could not be applied. However, the Court held
that it could not be said that the doctrine of “Equal pay for equal work‟ was
a mere abstract doctrine and that it was not capable of being enforced in a
court of law. On the point of terms of service i.e. temporary and permanent,

8
AIR 1986 SC 584, 1986
 the Court said that this doctrine was required to be applied to persons
employed on daily wages and they were entitled to the same wages as the
permanent employees. The Court specially referring to the government
stated that the

Central and the State Governments in all public-sector undertakings were

expected to function like model and enlightened employers and thus it
casted an additional duty on the State undertakings to initiate and enhance
the applicability of the doctrine of equal pay for equal work as it represented
the entire industrial framework of the country.

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

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

 In GrihKalyan Kendra Workers Union v. Union of India 10 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

10
1991 AIR 1173, 1991 SCR (1) 15
 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.

 In Supreme Court Employee’s Welfare Association V. Union Of India 11 In

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

11
1990 AIR 334, 1989 SCR (3) 488
 In Jaipal v. State of Haryana12 In this case, Supreme Court envisaged in
general that Art.39

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

 In Karnataka State Private College Stop-Gap Lecturers Association, v. State

of Karnataka13
12
1988 AIR 1504, 1988 SCR Supl. (1) 411
13
1992 AIR 677, 1992 SCR (1) 397
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.
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