'Equal Pay for Equal Work'

Author(s): ALOK PRASANNA KUMAR

Source: Economic and Political Weekly, Vol. 51, No. 49 (DECEMBER 3, 2016), pp. 14-16
Published by: Economic and Political Weekly
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 The Comptroller and Auditor General's though they are supposed to be done on
Whether the report of this committee too
report for 2013 also pointed out the a quarterly basis every year. will go the way of previous ones is a
shortcomings in the inspection of ash- Despite the ^10 crore approved by
moot point. Meanwhile, the abused girls
the centre for the purchase of 1,794and their families will have to deal with
ram shalas and arrears in the audit. The
performance audit conducted in 2005 computers, 299 printers and 299 tables,the trauma as best as they can.
for the period 1999-2004 also mentions only 166 computers were bought for the
that no evaluation of the ashram shala ashram shalas. REFERENCES

scheme was ever done by the govern- The state government has set up Tehelka
a (2014): "Schools of Scandal," Novembe
ment since its inception. The report also
probe committee to look into the Buldhana
TISS (2015): Status of government aided ashr
schools in Maharashtra sponsored by the Tr
cases and also ordered an inspection Development Department, Government
states that no medical check-ups were
conducted between 1999 and 2004 evenof all ashram shalas across the state. Maharashtra, August.

the differences between "service law,"

'Equal Pay for Equal Work' where this principle has been well deve-
loped through judicial interpretation,
and "labour law," where this principle
ALOK PRASANNA KUMAR has not yet found much traction. This
section will also highlight the conceptual
"Equal pay differences between
for theequal
two areas of
Directive Principles of State Policy, law that might explain the difference in
envisioned as a conc
Part Directive lays
lays ivoutouttheofgoalsthetowards
Principleswhichthe goals Constitution, towards of State Policy, which the approaches. In the last section, I address
justice
the state must work. One of these is con- in the workp
the vacuum in terms of legislation and
more, has
tained in Clause (d) of Article shrunk
judicial interpretation on the aspects of to
39, namely,
jurisprudential
"equal pay for equal work for men and "equal pay for equal work"prin
from the point
women." Over the years, it has become a
service of view of gender equality.
disputes bet
principle of law used by the courts in India
employees and
The Jagjit Singh Casethe g
for purposes almost entirely unimagined
Even this
by the framers of the Constitution. The body of
The Jagjit Singh case came up to the c
while recent judgment
laudable
of the Supreme Court in in
Supreme Court by at
way of an appeal from
State of Punjab vJagjit Singh (2016), which
protecting multiple judgments
the rights of the Punjab and
applies the principle of "equal pay for Haryana High Court. The common issue
temporary employe
equal work" in the context of temporary in these cases was whether "temporarily
actually
employees of the Punjab government, is further the
engaged employees," including daily wage
one such instance.
principle in labourers,
the ad hoc appointees,
contcasual ap-
IndianWhile the Constituent Assembly debates pointees, contractual appointees,
worker, male and
seem to envision the principle expressed others who had not been engaged on a
who has been abandoned
in Article 39(d) as one which relates to full-time basis, could claim the same
by the state. gender equality in India,1 the large bulk minimum of the pay scale as those who
of cases where this principle has been were doing the same work but in perma-
applied relates to service law cases, that nent posts. A full bençh of the high court
is, cases relating to employees of the in Avtar Singh v State of Punjab (2013)
union or state governments. In this arti- had held that such temporary employees
cle, I argue that notwithstanding the were not entitled to the same pay, con-
judgment in the Jagjit Singh case, the tradicting an earlier division bench of
judicial approach to "equal pay for equal the same high court judgment in State of
work" is yet to explore the potential for Punjab v Rajinder Kumar.2
the application of this principle, and many Rejecting Punjab's contention, and over-
more facets to this principle require to turning the judgment in Avtar Singh ,
be elaborated in legislation. the Supreme Court held that the tempo-
The first section of this article places rary workers were entitled to the same
the Jagjit Singh case in the proper con- minimum pay scale that the permanent
text of the Supreme Court's jurisprudence employees of the Punjab government
Alok Prasanna Kumar ( alok.prasanna@ on the principle of "equal pay for equal carrying out the same tasks were being
vidhilegalpolicy.in ) is visiting fellow, work" being applicable to temporary paid. In doing so, it has ostensibly
Vidhi Centre for Legal Policy, New Delhi. workers. The second section examines followed a well-established precedent

14 DECEMBER 3, 2016 VOL LI NO 49 liUÏI Economic & Political WEEKLY

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applying the "equal pay for equal work" and could be questioned in the future context of employment outside direct
principle in prior cases such as State for this reason. employment by the state government.
of Haryana v Charanjit Singh (2006) In discussing a vast array of judg- Here, the Court noted that there was no
(decided by a three-judge bench) and ments on the issue of equal pay for equal requirement in law, or in the Constitu-
State of Karnataka v Umadevi (2006). work, the Supreme Court lists out 17 tion, that the wage structure for em-
While the Umadevi case was concerned propositions on the matter. These can, ployees in the "public sector" be the
largely with the question of court man- however, be condensed and summarised same as those in the "private sector"
dated régularisation of temporary em- as follows: simply because the work being done
ployees, it did also address the issue of(i) Equal pay for equal work can only be was the same, given that the employers
the pay of such temporary workers,claimed if both sets of employees are were different.
holding that they are entitled to thebeing hired by the same employer, in the The distinction between "service law"
same wages as the permanent workers same geographical location. and "labour law" does not just relate to a
performing similar duties. (ii) Equal work means that, functionally, question of categorisation in the law
The earlier decision in the Charanjitthe duties of the two sets of employees reports. The Constitution has some of the
Singh case, on the other hand, involved are identical. most detailed and elaborate provisions
an almost identical claim as the one ad- (iii) The rank or designation of the em- relating to public employment and the
judicated in the Jagjit Singh case beingployee is irrelevant in assessing the obligations of the government to be a
claim.
made by the temporary employees of the model employer.3 It is a different matter
Haryana government. Here, using estab-(iv) The burden of proof to show that that the totality of service law jurispru-
lished precedents, the Court laid out thethere has been discrimination in pay dence suggests that the government is
parameters of how a claim related to rests on the person alleging it. far from being the "model employer,"
whether a temporary worker was enti-(v) Even where the same kind of work is but nevertheless there are important
tled to the same pay -as a permanentbeing performed by two sets of employees, distinctions to be kept in mind while
worker should be adjudicated. Though it
if different qualifications or experience thinking of a principle from the point
did not immediately grant relief to allare required for one set of employees, of view service law and from that of
the temporary workers, it sent the casesthe two sets of employees are not on the labour law.
back to the high court to adjudicate thesame footing. Service law relates exclusively to
same based on the facts of each case. (vi) Whether the employee has been employees of the union or state govern-
While relying on the Charanjit Singh hired on a permanent basis or a tempo- ments. As such, their terms and condi-
case, the Supreme Court in the Jagjit rary basis is irrelevant. tions of service are dictated by specific
Singh case has overlooked one aspect. In evaluating these principles, it is im- statutes and rules which are themselves
The three-judge bench in the Charanjit portant to keep in mind that they have governed by specific provisions of the
Singh case was categorical that contrac- been laid down in the context of "service Constitution, namely, Article 16 and
tual employees, hired on a specific con- law" and not in the context of "labour Part xiv (in addition to the rest of the
tract listing out their terms and condi- Constitution). The body of case law
law" or even employment law in general.
tions, would not be on the same footing This distinction is important and will be
interpreting these rules and the specific
as daily wage labourers and other tem- explored in the next section. concepts that have been evolved to
porary employees for equal pay. This is a regulate public employment are also
Service Law and Labour Law
somewhat flimsy distinction since, strictly part of service law.
speaking, even daily wage labourers The Jagjit Singh judgment was hailed In in
contrast, labour law regulates
the relations between employer and
are engaged on a contract, albeit a less some quarters as an important develop-
formal one. Nonetheless, it held that ment in the context of the problem employee
of of the much wider set of
such "contractual employees" would "casualisation" or "contractualisation" of employees and workers who are not
have to be held to their contracts. In the
labour in India (Sampath 2016). The lackin public employment. These include
Jagjit Singh case, however, the two- of permanent jobs being added in India's employees of public sector undertak-
judge bench of the Supreme Court does economy is a concern, and has wider ings, which are not governed by specific
not notice this distinction and proceedsimplications for India given its demo-statutes and rules. There is some over-
to hold, that even contractual employeesgraphy (Waghmare 2016). This judgment,lap in the principles guiding labour law
would be entitled to the same minimum however, has nothing to do with address-and service law, but overall the two are
of the pay scale to which the permanent ing that problem. distinct. The statutes governing the
employees of the state government As far back as in 1966, in Hindustan terms and conditions of service of em-
are entitled. Antibiotics Limited v Workmen (1967) inployees in the private sector are quite
While the ultimate finding in the the context of workers in a public sectordifferent from the statutes governing
Jagjit Singh case is right on first princi- undertaking, the Supreme Court held those in public employment.
One obvious example of the differ-
ples, it does ignore a contrary finding by that the principle of "equal pay for equal
a larger bench of the Supreme Court work" would have no application in theence: there is no statutorily prescribed
Economic & Political weekly DECS December 3, 2016 vol li no 49 15

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method for hiring an employee in the compels involuntary subjugation. (State ofmen. It highlights the limitations of the
private sector, whereas the selection pro- Punjab v Jagjit Singh 2016: paragraph 79) judicial approach to "equal pay for equal
cess in public employment is governed The Supreme Court's lofty rhetoric on work" and its manner of application
by the relevant rules, non-compliance equal pay for equal work is, however, even in the context of service law. The
with which can see the whole process unlikely to find meaningful applicationgender connotations of the phrase have
set aside. in other contexts beyond service law inbeen lost over the years to the extent
It is no doubt true that some of the the absence of a proper statutory frame- that perhaps Article 39(d) effectively
concerns of employees of the governmentwork guaranteeing such right to equal reads, "Equal pay for equal work for
pay for equal work, whether on groundsall men."
and employees of private employers over-
lap, but the approaches to addressingof gender or permanence of work. The In sum, the Supreme Court's judg-
them are vastly different given the con-Contract Labour (Abolition and Regu- ment in the Jagjit Singh case represents
stitutional framework, which protects onelation) Act, 1970, for instance, while a very small step forward in a narrow
far more than the other. attempting to abolish the use of con- area of law that has not reached its
tract labour, or at least regulate thefull potential in ensuring social welfare
Where Next?
terms and conditions of their employ- of all workers due to the lack of legisla-
ment
After having initially dismissed it as an with the contractor, makes no tive action and the absence of judicial
"abstract doctrine" (A V D'Costa , Divi-
mention of equal pay for their work, on imagination.
the same terms and conditions as the
sional Engineer ; gip Railway v B C Patel
full-time employees.
1955), the first time the Supreme Court NOTES

even applied the doctrine of "equal pay

So also in the context of gender, there
1 See the speech of Ajit Prasad Jain on 22 Novem
are vseveral studies showing the wage ber 1949, Constituent Assembly Debates, Vol-
for equal work" was in Randhir Singh
ume 11, http://parliamentofindia.nic.in/ls/de-
Union of India (1982), where Justice
gap between men and women in India in bates/vnp8m.htm.
the same field of employment (Prasad
O Chinnappa Reddy read it to be a facet 2 Unreported judgment of the Punjab and Hary
2016). There is, however, no legislationana High Court in LPA No 1024 of 2009.
of the fundamental right to equality.
3 Article 16 and the entire Part XIV of the Const
In fact, Justice Reddy was a pioneer in the lines of the United States' Titletution.
along
the use of this doctrine in the context vii of the Civil Rights Act, 1964 in India
4 See, for instance, P Satyanarayana Raju v
of service law while he was a judge of guaranteeing women equal pay. While State of Andhra Pradesh (1974), which is argu-
ably the first case to expressly apply the
the Andhra Pradesh High Court,4 and,the rights of women to equal pay under doctrine of "equal pay for equal work" to
once elevated to the Supreme Court, government service have been ensured service dispute.
through adequate statutory rules and
applied this principle in the context of
service law. legislation, there is nothing that applies
REFERENCES

The eventual expansion of the law to to the private sector, whether formal
A V D'Costa, Divisional Engineer, GIP Railway
Patel (1955): SCR, SC, 1, p 1353-
the 17 propositions laid down in theor informal.
Avtar Singh v State of Punjab (2013): ILR, P&
Jagjit Singh's case has taken the better An interesting contrast to the Supreme P 566.
part of four decades. All of this has been Court's jurisprudence in "equal pay for
Hindustan Antibiotics Limited v Workmen (1967):
SCR, SC, 1, p 652.
summed up by the Court in one para- equal work" comes from the approach
Prasad, Pallavi (2016): "India's Gender Wage Gap: 7
graph as follows: it adopts in its judgment in State ofCharts to Prove Feminists Aren't Lying," Quint,
In our considered view, it is fallacious to
Karnataka v Ameerbi (2007), where it 25 May, viewed on 18 November, https://www.
thequint.com/india/2016/05/25/gender-wage-
determine artificial parameters to deny denied anganwadi workers the status ofgap-in-india-7-charts-monster-survey-prove-femi-
fruits of labour. An employee engaged for an "employee" of the state governmentnists-arent-lying.
P Satyanarayana Raju v State of Andhra Pradesh
the same work, cannot be paid less than and the consequent benefits. Here, given
(1974): AIR, AP, p 65.
another, who performs the same duties the nature of their duties under the
Randhir Singh v Union of India (1982): SCC, SC, 1,
and responsibilities. Certainly not, in a
Integrated Child Development Services,p 618.
welfare state. Such an action besides being Sampath, G (2016): "On Parallel Tracks," Hindu,
demeaning, strikes at the very foundation anganwadi workers were considered3 November, viewed on 28 November 2016,
of human dignity. Any one, who is com- volunteers who were only paid an hono- http://www.thehindu.com/todays-paper/tp-
pelled to work at a lesser wage, does not rarium and therefore could not possiblyopinion/On-parallel-tracks/articlei6oi375i.ece.
do so voluntarily. He does so, to provide be employees of the state. State of Punjab v Jagjit Singh (2016): SCC OnLine,
SC, 1200.
food and shelter to his family, at the cost
The judgment is blind to the gender
State of Haryana v Charanjit Singh (2006): SCC,
of his self respect and dignity, at the cost
of his self worth, and at the cost of his inte- aspect of the anganwadi workers' claimSC, 9, p 321.
State of Karnataka v Ameerbi (2007): SCC, SC, 11,
grity. For he knows, that his dependents and blithely dismissed their case on ap 681.
would suffer immensely, if he does not narrow construction of the term "civil State of Karnataka v Umadevi (2006): SCC, SC, 4,
accept the lesser wage. Any act, of paying post." Underlying the judgment is a pl.
less wages, as compared to others similarly Waghmare, Abhishek (2016): "6 Indicators of
belief that childcare is not really employ- India's Looming Demographic Disaster," India
situate, constitutes an act of exploitative
enslavement, emerging out of a domineer-
ment and, being performed mostly by Spend, 2 May, viewed on 18 November 2016,
http://ww w. ind iaspend.com/cover-story/6-in-
ing position. Undoubtedly, the action is op- women, cannot be treated on par with dicators-of-indias-looming-demographic-disas-
pressive, suppressive and coercive, as it full-time jobs occupied (mostly) by ter-99797.

16 December 3, 2016 vol Li no 49 UUàïl Economic & Political WEEKLY

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