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The Principle of Equal pay for Equal work

Article written by Pooja, 4th year, BBA LLB(Hons) SASTRA Deemed to be University


Introduction

Our constitution plays a vital role in the growth and development of labour laws in India. The combined efforts of both Fundamental Rights and Directive Principles of State Policy enshrined in Part III and Part IV has corroborated the rights to the laborers in different sectors. Equal pay for equal work is one such right that ensures the individuals in the same workplace with equal pay. The concept of equal pay for equal work is accommodated in Clause (d) of Article 39 of the Directive Principles of state policy in the Indian Constitution. Article 37 of the Indian Constitution says that directive principles of state policy are not enforceable in the court, it is only considered as the basis for governance of the country. It also confers a duty on the state to frame laws according to these principles. The equal pay for equal work of the directive principles of state policy is an accompaniment of right of equality under Article 14 and 16, but the abstract of equal pay cannot be read under Article 14.


Article 14 – The Equality concept

Article 14 ensures equality, but that does not mean absolute equality among people. It is impossible to achieve absolute equality in all aspects. Dr. Jennings has observed that equality should be present among the equals and should be treated alike. Privileges and liabilities of the equals should be treated equally before the law. Alike should be treated alike, that is the basic rule of equality. The unequal cannot claim for equality under article 14.[1] The discriminations commonly found among employees are:

  • The difference in payment of wages for temporary employees and permanent employees discharging similar duties.

  • The difference in payment of wages for the male and female workers discharging similar duties.

  • Any other discrimination based on sex, caste, religion, etc.

The concept of equal pay for equal work was first considered in the year 1962 in a case, but the court held that it was incapable of being enforced in the court.[2] Then this principle received recognition through Mackinnon Mackenzie’s case,[3] this case was regarding the difference in remuneration of male and female stenographers. The court supported the equal pay for equal work and struck down the difference in payment. The act of paying less to employees belonging to the same category, discharging similar duties, will lead to exploitative enslavement.

The Supreme Court held that 'equal pay for equal work' has not expressly mentioned in the constitution as a fundamental right but it is considered as a constitutional goal under the concept of equality of Article 14 and other articles like 16 and 39 of the Constitution. This goal tries to bring justice where unequal scales of pay are given on unreasonable classification.[4] Article 16 of the constitution has provisions regarding the equality of opportunity in matters of public employment and the principle of equality enshrined in Article 14 of which Article 16(1) is a facet.[5]

It does not matter if employees were working in the sanctioned post or not, if they were doing similar work, they are entitled to equal pay for the work they do. This was pointed out in a case where the discrimination was faced by casual workers who didn't receive the same payment amount as employees appointed on regular basis, even though both the category of employees were discharging similar duties. The Court observed that such discrimination would amount to a violation of the right to equality conferred under Article 14 of the constitution.[6] The rule of equality in public employment conferred under article 14 and 16 are considered as one of the basic structure of the constitution, therefore the court cannot pass an order in violative of these fundamental rights.

In a few industries, the Pay Commission or Pay Revision Commission would have fixed and revised wages according to the materials. They would have differentiated among the equals, especially experts appointed even though they work similar jobs, they are treated differently. The claimant should prove to the court with materials that he is treated to be equal with the other person within the parameter of Article 14, then only he can demand equal pay. A clear case should be made and the court has to be satisfied by the claim based on the material produced.[7] The employees' sectors are classified irrationally sometimes, the nexus of classification are not on a reasonable basis. The employees classified as regular and casual employees for the need for payment of less than minimum payment of wages is violating the Article 24 and 16 and Article 7 of the International Covenant of Economic, Social and Cultural Rights 1966. The court directed the Government to frame a program for the absorption of daily rated casual laborers continuously working.[8]

In Bhagwati Prasad case,[9] the Court directed for the regularization of daily rated workers in different phases and the following seniority in the hierarchy of positions, this initiative was taken to treat casual laborers equally with the regular employers. In Dharwad's case,[10] the court directed the State of Karnataka to frame a scheme to solve the issue of 'equal pay for equal work'. The service of daily and monthly rated employees was regularized and it was held that they have to receive the same amount of payment as the regular workers.

Different pay scales can be framed for employees working similar duties, if they differ in the degrees of responsibility, reliability, and confidentiality, this will not be held violative of Article 14 of the Indian Constitution. Even though the functions are the same but the difference occurs in the responsibility undertaken by the employees. Even equal pay for equal work is implicit under article 14, equal pay for unequal work will be the negation of this right.[11]

If there was no difference like work and responsibilities then they should be treated equally. The difference in the pay scale of staff working in headquarters and battalions with equal work violates article 14. There was also no difference in the qualification of both the posts.[12] Equal pay for equal work does not mean that everyone in the same cadre should receive equal amount irrespective of their seniority and educational qualifications. If there justifiable grounds in giving differential pay rates, then equality doctrine cannot be invoked for challenging the pay rates.[13]


The Equal Remuneration Act, 1976

To give effect to the concept of 'equal pay for equal work' enshrined in Article 39(d) of the Indian Constitution, the President promulgated the Equal Remuneration ordinance, 1975. The parliament converted the ordinance into the act and enacted the Equal Remuneration Act in 1976. Therefore it can be enforceable by the court. The Equal Remuneration Act was mainly established for bringing equal payment among the men and women in society. The act provides for equal payment of wages to both men and women workers and protects women from any discrimination based on sex in her employment period. The act ensures that there is no discrimination in the process of recruitment and promotion of men and women workers. It also establishes an advisory committee for promoting opportunities for women. The equal remuneration Act gives shape to rule of 'equal pay of equal work', it lays stress on the similarity of work, responsibility, and effort under the same conditions.[14] Section 2(g) of the Act defines remuneration and section of the Act elaborate on the principle of equal pay for equal work with similar duties.

In the State of West Bengal v. Madan Mohan Sen,[15] the question arose if “Agragamies" in West Bengal Civil Emergency Force and Firemen in West Bengal Fire Service were entitled to equal remuneration. The court held that merely they have a similar educational qualification and physical requirement, they cannot claim equal remuneration because their duties differ from firemen. In Mackinnon Mackenzie's case,[16] a female stenographer files a petition under section 7 of the Equal Remuneration Act, 1976 demanding that during her service she was paid lesser rates compared to male stenographers who were performing similar duties. It was held that according to Section 3 of the Act, the provisions of the act shall effect notwithstanding any other law or contract of service made before or after the commencement of the Act. It was also held that the Act does not permit Management to pay lesser to a section of employees who perform similar work like others. The applicability of this act does not depend on the financial ability of the management; therefore, women workers and men workers should receive equal remuneration for equal work. Section 5 of the Act provides for the protection of men and women workers from discriminating in the recruitment process. Section 6 of the Act establishes an advisory committee and Section 7 specifies the powers of the appropriate government for hearing claims and complaints of the workers.


Conclusion

The Equal Remuneration Act has pointed out extensively about the rules that the employer has to follow, but has not yet considered the reasonable classification in the employment. The only thing the act lays provisions on is that the employer should not discriminate man and woman while giving remuneration. Therefore, it has been an enactment of Article 39(d) of the Indian Constitution in the strict sense but has not properly interpreted the orders of the Court regarding other aspects. The equal pay for equal work should not concentrate only on gender equality, there are also other types of discrimination faced by employees in the remuneration process. The criteria based on which work is defined has to be mentioned in the Act. The 'equal pay for equal work' should become a constitutional goal in every industry.

[1] Mewa Ram Kanojia v. All India Institute of Medical, A.I.R. 1989 S.C. 1256. [2] Kishori Lal Mohan Lal Bakshi v. Union of India, A.I.R. 1962 S.C. 1139. [3] Mackinnon Mackenzie v. Audrey D'Costa, (1987) 2 S.C.C. 469. [4] Randhir Singh v. Union of India, A.I.R. 1982 S.C. 879. [5] Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477. [6] Dhirendra Chamoli v. State of Uttar Pradesh, (1986) 1 S.C.C. 637. [7] State Of West Bengal v. Hari Narayan Bhowal, (1994) S.C.C. (4) 78. [8] Daily Rated Casual Labour v. Union of India, A.I.R. 1987 S.C. 2342. [9] Bhagwati Prasad v. Delhi State Mineral Development Corporation, A.I.R. 1990 S.C. 371. [10] Dharwad Distt. P.W.D. Literate Daily Wage Employees Association v. State of Karnataka, A.I.R. 1990 S.C. 883. [11] F.A.I.C. and C.E.S. v. Union of India, (1988) S.C.C. 91. [12] Gopika Ranjan Chawdhary v. Union of India, A.I.R. 1990 S.C. 1212. [13] State of Andhra Pradesh v. G. Sreenivasa Rao, (1989) S.C.C. (2) 290. [14] State of Madhya Pradesh v. Pramod Bhartiya, A.I.R. 1993 S.C. 286. [15] State of West Bengal v. Madan Mohan Sen, 1993 S.C.R. (1) 397. [16] Mackinnon Mackenzie v. Audrey D'Costa, (1987) 2 S.C.C. 469.

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