Equal Pay for Equal Work

India’s Constitutional position

The Indian Constitution recognized the principle of ‘Equal Pay for Equal Work’ for both men and women, and ‘Right to Work’ through Article 39(d) and 41. These Articles are inserted as Directive Principles of State Policy. This means that, they will serve as guidelines to the Central and State governments of India, which are to be kept in mind while framing laws and policies.

Efforts are employed even on legislative fronts – Equal Remuneration Act, 1976 being the prime one amongst them. The Act by means of Section 4 not only emphasizes on equal pay for equal work but even bars the employer from reversing the pay scales in order to attain equilibrium.

The principle of Equal Pay for Equal Work was first considered in Kishori Mohanlal Bakshi v. Union of India in the year 1962 where the Supreme Court declared it incapable of being enforced in the court of law. However, it received due recognition only in 1987 through Mackinnon Mackenzie’s case. Here the issue of concern was a claim for equal remuneration for Lady Stenographers and Male Stenographers. This was ruled in favour of lady stenographers as the Court was in favour of equal pay. 70 years after the passing of the Constitution and 45 years after the Forty Second Amendment proclaiming India as a socialist republic.

From the Directive Principles of State Policy

• Article 38(d) says that state shall strive to minimize the inequalities of income, status, facilities, opportunities etc.
• Article 39(d) the states that there is equal pay for equal work for both men and women.
• Part IV of the constitution also includes right to work under article 41.

From the Fundamental rights

• Article 14 of the indian constitution explains the concept of equality before the law.
• Article 16 declared that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the state.

Legislative Provision

• Equal Remuneration Act, 1976

Judgments

Dhrwad District vs. State of Karnataka :

• The court laid that the equality clauses of the Constitution under articles 14 and 16 were to be constructed 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.

Federation of All india Customs v Union of india :

• The court re-emphasised that equal pay for equal work was a concomitant of Article 14 of the indian constitution and it naturally followed that equal pay for unequal work work was a negation of that right.

Deena v Union Of India:

• The court 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.

Umadevi Judgement :

• In addition to article 14, article 16 has specifically provided for equality of opportunity in matters of public employment. (10)
• 19. In Dharwad case, The Court was actually dealing with the question of ‘equal pay for equal work’ and had directed the State of Karnataka to frame a scheme in that behalf. In paragraph 17 of the judgment, The Court stated that the precedents obliged the State of Karnataka to regularize the services of the casual or daily/monthly rated employees and to make them the same payment as regular employees were getting.

Randhir Singh v. Union of India & Ors., [1982] 1 SCC 618 observed

• “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. Directive Principles, as has been pointed out in some of the judgments of The Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory; whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions to people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. Construing Articles 14 and 16 of the Constitution in the light of the Preamble and Article 39(d), we are of the view that the principle ‘equal pay for equal work’ is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.”

Dhirendra Charnoli & Anr. v. State of U.P., [1986] 1 SCC 637,

• “the Central Government to accord to these persons who are employed by the Nehru Yuvak Kendras and who are concededly performing the same duties as Class IV employees, the same salary and conditions of service as are being received by Class IV employees, except regularisation which cannot be done since there are no sanctioned posts. But we hope and trust that posts will be sanctioned by the Central Government in the different Nehru Yuvak Kendras, so that these persons can be regularised. It is not at all desirable that any management and particularly the Central Government should continue to employ persons on casual basis in organisations which have been in existence for over 12 years.”

Surinder Singh & Anr. v. Engineer-in-Chief, C.P.W.D. & Ors., [1986] 1 SCC 639. Chinnappa Reddy, J.

• “In these two writ petitions, the petitioners who are employed by the Central Public Works Department on a daily wage basis and who have been so working for several years, demand that they should be paid the same wages as permanent employees employed to do identical work. They state that even if it is not possible to employ them on regular and permanent basis for want of a suitable number of posts, there is no reason whatsoever why they should be denied ‘equal pay for equal work’.

Jaipal & Ors. v. State of Haryana & Ors., [1988] 3 SCC 354

• “There is no doubt that instructors and squad teachers are employees of the same employer doing work of similar nature in the same department; therefore, the appointment on a temporary basis or on regular basis does not affect the doctrine of equal pay for equal work. Article 39(d) contained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women. Though Article 39 is included in the chapter on Directive Principles of State Policy, but it is fundamental in nature. The purpose of the Article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay. The doctrine of equal pay for equal work has been implemented by The Court in Randhir Singh v. Union of India, Dhirendra Chamoli v. State of U.P. and Surinder Singh v. Engineer-in-Chief, CPWD. In view of these authorities it is too late in the day to disregard the doctrine of equal pay for equal work on the ground of the employment being temporary and the other being permanent in nature. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee.”

H.P. Income Tax Department Contingent Paid Staff Welfare Association v. Union of India & Ors., [1987] Suppl. SCC 658

• “We accordingly allow this writ petition and direct the respondents to pay wages to the workmen who are employed as the contingent paid staff of the Income Tax Department throughout India, doing the work of Class IV employees at the rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres ….. “

State of U.P. & Ors. v. J.P. Chaurasia & Ors., [1989] 1 SCC 121 where a Division Bench of The Court reiterated:

• “Equal pay for equal work for both men and women has been accepted as a constitutional goal capable of being achieved through constitutional remedies.”

Secretary, State Of Karnataka And … vs Umadevi And Others on 10 April, 2006

• While it might be one thing to say that the daily rated workers, doing the identical work, had to be paid the wages that were being paid to those who are regularly appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its Executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the Constitution and the laws made thereunder concerning public employment.

State Of Haryana And Ors. Etc. Etc vs Piara Singh And Ors. Etc. Etc

• 1.1. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/Instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. [847 F-H]

Thus the several rulings of Supreme Court establish that The State must be a model employer. It is for this reason it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution and that a person should not be kept in a temporary or ad hoc status for long.