We have had an occasion to pen a paper on the concept and law relating to 'equal pay for equal work' as provided for under the Directive Principles of State Policy under Part IV of the Constitution of India in one of our papers on SSRN. However have gone through this recent decision we felt compelled to run this post revisited the law on the issue. In this recent decision the Supreme Court inter alia had the occasion to examine the growth and development of the law on the issue.
The decision inter alia observes as under;
65. The Equal Remuneration Act, 1976 and in particular its preamble declares the Act to provide for payment of equal remuneration and prevention of any kind of discrimination on the ground of sex or otherwise in the matter of employment. The Equal Remuneration Act, 1976 extends to the whole of India by virtue of Section 1(2) and there cannot be different pay scales for different employees carrying out exactly same work. Section 4(3) states that “where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, as the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remuneration shall be payable, on and from such commencement, to such men and women workers.”
66. In view of the above constitutional principles and Directive Principles of State Policy under the Constitution and the statutory and mandatory provisions of overriding Equal Remuneration Act, 1976, the following principles are evolved for fixing the governmental pay policy, whether executive or legislative on the recommendation of the Pay Commissions, Pay Committees by Executive Governments, which are broadly stated as under:-
(1) The governmental pay policy, whether executive or legislative, cannot run contrary to constitutional principles of constitutional law;(2) The governmental pay policy, whether executive or legislative, cannot run contrary to the overriding provisions of Equal Remuneration Act, 1976.xxx xxx xxx(12) The governmental pay policy must conform to the overriding statutory command under Sections 13 and 14 read with Section 1(2) of the Equal Remuneration Act, 1976, which supports for uniformity between the pay policy of the State Governments and the Central Government in the whole of India and such uniformity in the pay policy of the State Governments and the Central Government in the whole of India has already found further support from the Judgment of this Court in the case of Randhir Singh v. Union of India & Others (1982) 1 SCC 618. I must hasten to say that where all things are equal that is, where all relevant considerations are same, persons holding identical posts may not be treated differentially of their pay.
67. As early as in 1952, in a celebrated case decided by this court in State of West Bengal v. Anwar Ali Sarkar v. (1952) SCR 284, this court laid down that in order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that said differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.
68. In 1959, in a celebrated case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others (1959) 1 SCR 279 at p.296, this Court observed as under:
“………It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question………”
69. In The State of Jammu & Kashmir v. Triloki Nath Khosa and Ors. (1974) 1 SCC 19, this court observed as under:-
“……..Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis…...”
70. In Indira Nehru Gandhi (supra), the court observed as under:-
“This Court, at least since the days of Anwar Ali Sarkar's case, has consistently taken the view that the classification must be founded on an intelligible differentia which distinguishes those who are grouped together from those who are left out and that the differentia must have a rational relation to the object sought to be achieved by the particular law. The first test may be assumed to be satisfied since there is no gainsaying that in our system of Government, the Prime Minister occupies a unique position. But what is the nexus of that uniqueness with the law which provides that the election of the Prime Minister and the Speaker to the Parliament will be above all laws, that the election will be governed by no norms or standards applicable to all others who contest that election and that a election declared to be void by a High Court judgment shall be deemed to be valid, the judgment and its findings being themselves required to be deemed to be void? Such is not the doctrine of classification and no facet of that doctrine can support the favoured treatment accorded by the 39th Amendment to two high personages. It is the common man's sense of justice which sustains democracies and there is a fear that the 39th Amendment, by its impugned part, may outrage that sense of justice. Different rules may apply to different conditions and classes of men and even a single individual may, by his uniqueness, form a class by himself. But in the absence of a differentia reasonably related to the object of the law, justice must be administered with an even hand to all.
71. In Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248 it was observed as follows:
“….Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits…. Article 14 strikes at arbitrariness in state action and ensures fairness and quality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.”
72. In Randhir Singh (supra), it was held as under:
“8. ……..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 this 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………Construing Articles 14 and 16 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 Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.”
73. In Surinder Singh & Anr. v. Engineer-in-Chief, CPWD & Others (1986) 1 SCC 639 it was observed that the Central Government like all organs of State is committed to the Directive Principles of State Policy and Article 39 enshrines the principle of equal pay for equal work.
74. In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’ Costa & Another (1987) 2 SCC 469 it was observed that the term “same work” or “work of similar nature” under Section 2(h) of the Act that “whether a particular work is same or similar in nature as another work can be determined on the three considerations. In deciding whether the work is same or broadly similar, the authority should take broad view; next in ascertaining whether any differences are of practical importance, the authority should take an equally broad approach for the very concept of similar work implies differences in detail, but these should not defeat a claim for equality on trivial grounds. It should look at the duties actually performed, not those theoretically possible. In making comparison the authority should look at the duties generally performed by men and women.”
75. In Bhagwan Dass & Others v. State of Haryana & Others (1987) 4 SCC 634 this court held that the mode of selection and period of appointment is irrelevant and immaterial for the applicability of equal pay for equal work once it is shown that the nature of duties and functions discharged and work done is similar.
76. In Inder Singh & Others v. Vyas Muni Mishra & Others 1987 (Supp) SCC 257 this court also held the view that when two groups of persons are in the same or similar posts performing same kind of work, either in the same or in the different departments, the court may in suitable cases, direct equal pay by way of removing unreasonable discrimination and treating the two groups, similarly situated, equally.
77. In Haryana State Adhyapak Sangh & Others v. State of Haryana & Ors. (1988) 4 SCC 571 this court enforced the principle of equal pay for equal work for Aided School teachers at par with government school teachers and held that the teachers of Aided Schools must be paid same pay scale and dearness allowance as teachers of the government schools.
78. In U.P. Rajya Sahakari Bhoomi Vikas Bank Ltd. v. Workmen 1989 Supp (2) SCC 424, this court observed as under:-
“The Tribunal’s finding that both the groups were doing the same type of work has rightly not been challenged by the employer Bank as it is a pure finding of fact. If irrespective of classification of junior and senior groups, the same work was done by both, the principle of equal pay for equal work is definitely attracted and on the finding of fact the Tribunal was justified in applying the principle to give the same benefit to those who had been left out.”
79. In the case of Sita Devi & Others v. State of Haryana & Others (1996) 10 SCC 1 this court held: “The doctrine of “equal pay for equal work” is recognized by this Court as a facet of the equality clause contained in Article 14 of the Constitution.”
80. In Sube Singh & Ors. v. State of Haryana & Ors. (2001) 7 SCC 545 (para 10), this court observed as under:-
“….whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held arbitrary and discriminatory”.
81. In John Vallamattom & Another v. Union of India (2003) 6 SCC 611, the constitutionality of Section 118 of the Indian Succession Act, 1925 was challenged. Section 118 was declared unconstitutional and violative of Article 14 of the Constitution. In that case, this court observed thus:-
“Although Indian Christians form a class by themselves but there is no justifiable reason to hold that the classification made is either based on intelligible differentia or the same has any nexus with the object sought to be achieved. The underlying purpose of the impugned provision having adequately been taken care of by Section 51, the purport and object of that provision must be held to be non-existent.”
82. In State of Mizoram & Another. v. Mizoram Engineering Service Association & Another (2004) 6 SCC 218 while dealing with case of this nature, this court observed as under:-
“The fact that the revised pay scale was being allowed to Mr Robula in tune with the recommendations of the Fourth Central Pay Commission, shows that the State Government had duly accepted the recommendations of the Fourth Central Pay Commission. Having done so, it cannot be permitted to discriminate between individuals and not allow the same to the rest.”
In this case, this Court clearly stated that the State cannot be permitted to discriminate similarly placed persons.
83. This court in Union of India v. Dineshan K.K. (2008) 1 SCC 586 at page 591 (para 12) observed as under:-
“The principle of “equal pay for equal work” has been considered, explained and applied in a catena of decisions of this Court. The doctrine of “equal pay for equal work” was originally propounded as part of the directive principles of the State policy in Article 39(d) of the Constitution. In Randhir Singh v. Union of India a Bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Articles 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara v. Union of India. Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of “equal pay for equal work” has assumed status of a fundamental right.”
84. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
85. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive.
86. The classification must not be arbitrary but must be rational, that is to say, it should be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.
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