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Equal pay for equal work?

M J Antony in New Delhi | November 26, 2008

The founding fathers of the Constitution had set certain goals in the directive principles of state policy, but they are not enforceable in a court of law. These principles, however, are so attractive that there is consistent demand to make them work by drafting them into laws.

During election times like these, the call might be for the enforcement of the Uniform Civil Code, one of the directive principles. At other times, it is for free and compulsory education for all children up to 14 years.

In the field of labour, the aim is to provide for 'equal pay for equal work.' This last one is the only directive principle which was made enforceable so far, that too by a Supreme Court fiat. But the experiment has failed and the court has finally withdrawn from it.

The principle of equal pay for equal work for men and women embodied in Article 39(d) of the Constitution was first considered in Kishori Mohanlal Bakshi vs Union of India in 1962. The Supreme Court then said that it was not capable of being enforced in a court of law.

In 1982, when the affirmative adrenalin began to flow in the Supreme Court, the thinking changed and in Randhir Singh vs Union of India it was unequivocally ruled that the principle was not an abstract doctrine and could be enforced by reading into it the equality precepts enshrined in Articles 14 and 16. The court went so far as to say that even a daily wage employee who is performing duties similar to regular employees is entitled to the same pay.

However, the Supreme Court took another turn by 1988 and veered round to the view that the principle cannot be enforced and it should remain only as a guiding star for the law makers and judiciary.

Earlier this month, the Supreme Court reviewed the case law once again in Official Liquidator vs Dayanand and gave a virtual death blow to the equal pay principle as it was propounded. This case dealt with the status of those employed by the official liquidators in the high courts.

There are two kinds of staff under the official liquidators. One stream comes from the posts sanctioned by the Department of Company Affairs, Government of India, and the other group is employed under the Companies (Court) Rules. While the first category is paid from the Consolidated Fund of India, the latter is paid from the fund created by disposal of assets of companies in liquidation. The second group is paid less and there was constant clamour for parity in pay and their absorption in the first group. Schemes were being devised, with little result. Therefore, the aggrieved party moved high courts in several states for equal pay for equal work. The Calcutta High Court, for one, heard their plea and asked the Official Liquidator to absorb them into the first category. Therefore, the official liquidator appealed to the Supreme Court.

The high courts had invoked the principle of equality while ordering parity in remuneration. In their opinion, similarity in the nature of work of the company paid staff on the one hand and regular employees on the other hand, is by itself sufficient for invoking the principle of equal pay for equal work. However, the Supreme Court declared that 'the approach adopted by the high courts is clearly erroneous and the directions given for bringing about parity between the company-paid staff and the regular employees in the matter of pay, allowances, etc, are liable to be upset.'

The court stated that the Randhir Singh judgment cannot be followed blindly. 'Similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and before entertaining and accepting the claim based on equal pay for equal work, the court must consider factors like the source and mode of recruitment/ appointment, the qualifications, the nature of the work, the value judgement, responsibilities, reliability, experience, confidentiality, functional needs etc,' the judgement explained.

Some years ago, in Associated Bank Officers' Association vs State Bank of India [Get Quote], the court said that historically the principle originated in the slogan of the feminists who fought against gender-based discrimination in places of work. The Equal Remuneration Act of 1976 tackled that problem. But if the doctrine was stretched to other fields, it might snap.

Two times earlier, the Supreme Court had tried to give teeth to another directive principle, the Uniform Civil Code, but it had to drop the attempt hastily when there was political storm outside. In the case of equal pay principle, its affirmative spirit has died with a whimper.



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