Smt. Bimla Rani W/O Sh. Padam ... vs Appellate Authority Equal ...
2004 Latest Caselaw 754 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioners are ladies employed with Respondent No.2. They had filed a claim under Section 7(1)(b) of the Equal Remuneration Act, 1976 (the Act) claiming the same pay-scale as granted to men performing the same work.

2. Section 7(1)(b) of the Act reads as follows: -

''7. Power of appropriate Government to appoint authorities for hearing and deciding claims and complaints. -

(1) The appropriate Government may, by notification, appoint such officers, not below the rank of a Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and deciding.

(a) XXX XXX XXX

(b) claims arising out of non-payment of wages at equal rates to men and women workers and may, by the same or subsequent notification, define the local limits within which each such authority shall exercise its jurisdiction.

(2) to (8) XXX XXX XXX''

3. According to the Petitioners, they were working as Packers since sometime in 1978. By an order dated 8th October, 1984, they were appointed to a regular pay-scale with effect from 1st September, 1984, the pay-scale being Rs.150-240-360. Their male counterparts, who were doing the same or similar work were appointed in the pay-scale of Rs.185-305-440. According to the Petitioners, this was a violation of the provisions of the Act and they were entitled to the same remuneration as their male counterparts.

4. The contention of Respondent No.2 was that all the ladies were working as Packing Cleaners and their job was to clean pulses, mussel, etc. while the men folk were working as Packers and had to weigh the goods and pack them with the use of electrical a appliances. Since the nature of work was dis-similar, there was a difference in the pay-scales.

5. The Authority under the Act framed the following issues for its consideration: -

''(i) Whether the issue involved in the Plaint Proceedings are subjudiced before the Hon'ble Supreme Court in C.W.P. No.9161 of 1982 and if so, to what effect?

(ii) Whether the applicants are entitled to relief sought for and if so, what directions are necessary in this regard?''

6. In so far as the first issue is concerned, it was answered in the negative and is not the subject matter of any dispute before me.

7. With regard to the second issue, the Authority recorded evidence of the parties and concluded that the claim of the Petitioners was justified.

8. It was noted by the Authority that prior to October, 1984, the remuneration being given to both men and women was the same because they were doing the same or similar work. The difference in the matter of pay came up only after their regularisation in October, 1984, even though the work remained the same. In fact, it was noted that Respondent No.2 was not able to produce any evidence to show that the nature of work performed by men and women was different. On the contrary, the case of one Sujjan was highlighted. She is a lady but was included in the list of men workers and so was getting a higher remuneration; but when it came to be known that she was wrongly designated as a male worker, her remuneration was reduced.

9. The Authority noted that the educational qualifications of Packers and Packing Cleaners were different. Notwithstanding this, the nature of work continued to be the same as what they were doing from 1978 onwards and that it is only after regularisation that Respondent No.2 began to have two different designations and two different pay-scales.

10. After perusing the entire evidence on record, the Authority held that the work performed by the Petitioners is the same as their male counterparts and that the Petitioners had been discriminated only on the ground of their sex.

11. Feeling aggrieved, Respondent No.2 filed an appeal, which was heard by the Appellate Authority under the Act, that is, the Joint Labour Commissioner. By the impugned order dated 6th March, 1989, the appeal was allowed. The Appellate Authority held that the Authority under the Act had misdirected itself by assuming that the Petitioners are Packers but in fact they were Packing Cleaners, as mentioned in the order dated 8th October, 1984. Since the difference in designation was not challenged, the petitioners were bound by the same. It was held that unless and until the order dated 8th October, 1984 is impugned, no relief could be granted to the Petitioners . It is against the order dated 6th March, 1989 that the Petitioners have filed the preset writ petition under Article 226 of the Constitution.

12. The law on the subject has been laid down by the Supreme Court in M/s. Mackinnon Mackenzie and Co. Ltd. vs. Audrey D'Costa and another . In that case, lady stenographers were given a lesser scale than male stenographers and that was found by the Supreme Court to be violative of the provisions of the Act.

13. The concept of the equality in all its aspects is enshrined in Article 14 of our Constitution. There may be some discrimination on certain well defined principles but in the matter of pay-scales, there cannot be any inequality or discrimination only on the ground of sex. In fact, Article 39(d) of the Constitution also provides for equal pay for equal work. The constitutional basis for the claim of the Petitioners is, therefore, firmly established and needs no elaboration.

14. In so far as the statutory basis is concerned, it is necessary to point out that the General Conference of the International Labour Organisation (ILO) adopted on 29th June, 1951 the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (for short the Convention). India is one of the signatories to the Convention, which provides, inter alia, that each member State shall ensure the application to all workers, the principle of equal remuneration for work of equal vale. This principle may be applied through legislative means, by recognised machinery for wage determination, through collective agreements between employers and workers or a combination of these various means.

15. Most countries have acted upon the principles laid down in the Convention and on our part, Parliament enacted the Act which was promulgated on 26th September, 1975 as an Ordinance. That year incidentally, was celebrated as International Women's Year. The Ordinance was duly replaced by the Act which is intended to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination on the ground of sex against women in the matter of employment.

16. Remuneration is defined in the Act to mean the basic wage or salary and any additional emoluments whatsoever payable either in cash or in kind to a person employed in respect of employment if the terms of employment are fulfillled.

17. Similarly, same work or work of a similar nature has been explained to mean work in respect of which the skill, effort and responsibility required are the same when performed under similar working conditions by a man or a woman and the differences, if any, are not of any practical importance in relation to the terms of employment.

18. Section 4 of the Act places a duty upon the employer to pay equal remuneration to men and women for same work or work of a similar nature.

19. Reference may also be made to another convention, which came into effect in December, 1979, being the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Article 11 of this Convention provides, inter alia, for all States to take appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on the basis of equality of men and women, the same rights, in particular the right to equal remuneration, including benefits and to equal treatment in respect of work of equal value as well as equality of treatment in the evaluation of the quality of work. (see Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and another ).

20. The EEC Treaty also provides for the application of the principle that men and women should receive equal pay for equal work. Pay has been explained to mean (Article 119) the ordinary basic or minimum wage or salary and any other consideration whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer. (see Halsbury's Laws of England, Fourth Edition Vol. 52 Paragraph 21.11.)

21. Keeping the above general principles in the mind, what is to be seen in the present case is whether the Petitioners are performing the same or similar work as their male counterparts.

22. The Appellate Authority has placed emphasis only on one factor, namely, the designation given to the Petitioners (that is Packing Cleaners) and to their male counterparts (that is Packers). According to the Appellate Authority, the designation itself postulates a dis-similarity in the nature of work resulting in unequal wages.

23. I am afraid, this is a completely erroneous way of approaching the question in issue. What designation is given to an employee is of no consequence at all. It is the nature of work which is important and not the designation. The case of Sujjan vividly explains the point. She was given higher wages only because her name appeared in the list of male workers but the moment it was discovered that her name should have been brought in the list of female workers, her wages were reduced. This clearly shows that the work that she was doing was similar to the work being performed by her male counterparts and that it is only the designation which was the determining factor for fixing the pay-scales. This is obviously not permissible both under our constitutional schemes as well as under the provisions of the Act.

24. The entire evidence on record has been exhaustively discussed by the Authority under the Act and the conclusions arrived at by the Authority did not require any interference on merits and certainly not, as has been done by the Appellate Authority, on the basis of the designation of the employees.

25. Under the circumstances, the impugned order dated 6th March, 1989 passed by the Appellate Authority is set aside while the order dated 13th May, 1988 passed by the Authority under the Act is restored.

26. The writ petition is allowed but there will be no order as to costs.