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Equal Pay For Equal Work In India

Introduction

Firstly, the question arises that what is the basic necessity for humans’ survival in this world, (called Earth)? So, the very expeditious answer comes in the respect of this question is food, shelter, and clothes. These three are the primary necessity for the survival of human beings and for fulfilling these needs, human beings have to earn money by giving their efforts on the production process of goods and services as a factor of production.

In economic terms, we can say that laborers, who act as a factor of production in the production process of goods and services can avail factor payment in the form of wages.  It means laborers by using factor payment as wages may fulfill the basic needs for their survival.

Are employees or laborers in India pay remittances according to their work? This is a very controversial topic till now because apart from various legislations in India for equal pay for equal work, the discrimination prevails i.e. there is a gender pay gap in India. Discrimination based on gender, caste, place, etc. the employee doesn’t get accurate remittance or payment for their work. E.g. both men and women employed in an organization and they work on the same foot (i.e. engaged in same activity) with the same dedication and also gave similar result but when there is a matter of remittance, the men employee gets higher than women employee. Similarly, in case of promotion the men employee will get priority.

For discouraging this type of activity, Article 39 of the Indian Constitution, 1950 clearly states, there should be equal pay for equal work for both men and women.

Conventions on Equal remuneration

The Equal Remuneration Convention (C100), 1951:

The Equal Remuneration Convention was adopted in 1951 and came into force in May 1953. The convention implementation was administered by the International Labour Organization (ILO). This convention focuses on the issue of gender discrimination in the workplace. They came with the measure of equal remuneration (i.e. equal pay) for the equal value of work irrespective it is performed by men or women.

The order to successful implementation of the idea of equal remuneration for the equal value of work, the parties to the convention are required to promote and implement this rule in their domestic laws which deal with employee remuneration.

Some other charters such as International Covenant on Economic, Social and Cultural Rights; African Charter on Human and People’s Rights, the European Social Charter, and International Labour Organization also focuses on the Doctrine of equal pay for equal work.

The doctrine of Equal pay for equal work under the Indian Constitution

According to the Doctrine of Equal pay for Equal work, every individual who has been employed for certain work under the employer and for that allotted work he or she was sufficiently paid, irrespective of gender, caste, or religion. There should be no discrimination between any employees regarding payment of wages. This doctrine saves the interest of employees and prohibits any kind of discrimination between the employees.

Under Equality Act, 2010, the employees (both men and women) get the Right to equal pay for equal work. The Phrase equal work is divided into three categories:

1. Like works: It is the same or broadly similar kind of work and includes similar task which requires similar kind of knowledge and skills.

2. Work rated as equivalent: This kind of work is being of equal value in terms of how demanding it is and it has been rated under a valid job evolution scheme.

3. Work of equal value: It is different from like work and work rated as equivalent, but it is of equal value in terms of demand such as knowledge, decision-making power, caliber, efforts, working skill, etc.

In the case of temporary employees, if they were performing similar duties and functions as discharged by the permanent employees, then they were entitled to remuneration at par with permanent employees in the government sector. But not paying the same for similar work, then, is a violation of Article 14 of the Indian Constitution.

However, daily wages workers are not entitled to equal pay as permanent employees based on equal pay for equal work because the daily wagers were not held any post. But, State has to ensure minimum wages which are prescribed to such workers and also paid them.[1]

The Constitution of India, 1950 does not expressly grant this doctrine of Equal pay for Equal right as a fundamental right but under various provisions in the Constitution, this doctrine is implementing impliedly. These provisions are:

Article 14– This Article states, there is equality before the law. It means in the eye of the law, both men and women have equal rights and opportunities in the matter of political, economic, and social affairs and also there is equal protection of the law for all.

Article 15– This Article states, there should not be any discrimination against an individual on the grounds of sex, caste, place of birth, religion, etc.

Article 16– This Article guarantees all the citizens and equal opportunity in the matter of employment or appointment to any post under the state. The citizens are not discriminated against or ineligible on the grounds of sex, caste, place of birth, religion, etc.

This Article grants special rights to women and children and also has a provision that the state can make laws for their benefit.

Article 39 (d) – This Article directs its policies regarding equal pay for equal work for both men and women to adequate means of livelihood.

Article 42– This Article directs the State to make policies for securing just human conditions for women in the workplace and ensure proper provisions for maternity relief.

Article 51- A (e) – To repudiate practices derogatory to the dignity of women.

Various Legislations on Equal pay for equal work

Workmen’s Compensation Act, 1923

  • This legislation was enacted to provide proper financial assistance to the employee or workers and also to their dependents in case of any injury due to an accident during their course of employment.
  • The financial protection was given through payment of compensation by the employers.
  • Due to the difference in bargaining power, there may be some chances that women may be subject to violation, but this Act helps to reduce or avoid that risk.

Minimum Wages Act, 1948

  • To prevent the exploitation of workers in an industry or an organization, this Act ensures statutory fixation of minimum wages.
  • This act also ensures periodical revision of the fixation of minimum wages.
  • This Act ensure social justice to the workmen
  • To ensure workers have a minimum standard of life and they can fulfill their necessities in their daily life activities.

Equal Remuneration Act, 1976

  • This Act makes an employer liable or an employer must pay equal remuneration to men and women for a similar nature or the same work.
  • The employer cannot discriminate against any employee based on gender, in the matter of remuneration.
  • This Act also ensures that there should be no discrimination while recruiting any employee based on gender.

Thus, this Act was implemented with the view of giving equivalent remuneration or compensation to men and women employees for their similar kind of work.

Code on Wages, 2019

  • The Equal Remuneration Act, 1976 was replaced by the Code on Wages, 2019.
  • This Act recognizes the need for equal pay for equal work for all genders. It means transgender are also included.
  • This Code aims to discourage the gender pay gap.
  • This Act also ensures the nature of recruitment of an employee should be the same for the same work or similar kind of work

Measures were taken by the Employer for Equal remuneration

(1) An employer must pay equal remuneration to their employees if they performed the same or similar kind of job.

(2) The employer should not discriminate against any employee based on gender, caste, religion, place of birth, etc.

(3) The remuneration and recruitment of an employee for a particular post were done without any discrimination.

(4) The employer has to set- up an Advisory and Check committee in his organization, who will ensure that there is no gender discrimination in the organization. The committee also ensures that the employees were getting at least minimum wages set by the central and state government.

(5) Every employee should know their rights of getting equal pay for equal work.

(6) The employed has to pay equal remuneration to temporary or casual workers who discharge the same responsibility as a permanent employee.

Case laws

Kishori Mohanlal Bakshi v. Union of India,[2]

The doctrine of equal pay for equal work was first considered, in this case the Supreme Court declared this doctrine incapable of being enforced in the Court of law.

Mackinnon Mackenzie & Company Ltd. v. Audrey D Costa & Others,[3]

This is popularly known as Mackinnon Mackenzie’s case. In 1987, the doctrine of equal pay for equal work was received recognition the very first time through this case.

In this case, there was an issue raised on equal remuneration for Lady Stenographers and Male Stenographers. The Court held that Lady Stenographer paid equal remuneration as Male Stenographer based on the Doctrine of Equal pay for Equal work.

Randhir Singh v. Union of India,[4]

The Constitution of India, 1950 does not expressly grant this doctrine of Equal pay for Equal right as a fundamental right but under various provisions in the Constitution, this doctrine is implementing impliedly. It is certainly a constitutional goal and therefore being capable of enforcement through constitutional remedies under Article 32 of the Indian Constitution.

Markendeya v. State of Andhra Pradesh,[5]

In this case, a graduate supervisor is holding a degree in Engineering and a non-graduate supervisor, being a diploma and license holder. There is a difference in their pay scale. The Court held that discrimination in pay scale based on the difference in educational qualification was justified and it was not a violation under Articles 14 and 16 of the Indian Constitution.

The court also held that, if two employees perform similar duties and carried out the same functions with the same measure of responsibilities and duties, and having the same academic qualification, then they were entitled to equal remuneration.

Supreme Court Employee’s Welfare Association v. Union of India,[6]

The Supreme Court held that the unequal pay to the employees is a violation of Article 14 of the Constitution, but it may not be a violation of the Doctrine of Equal pay for Equal work if the classification is proper and reasonable in the eye of law. Even though the persons are engaged in same kind of work, then also there is no violation of the law.

State of Haryana v. Rajpal Sharma,[7]

The Court held that the teachers employed in a privately managed school aided by the State government were entitled to the equal remuneration as paid to the teachers employed in Government schools.

State of Punjab v. Jagjit Singh,[8]

The Court held that the responsibilities discharge by temporary employees (i.e. ad hoc employees, employees appointed on a casual basis, contractual employees) are the same as being the responsibilities discharged by permanent employees, then, the Doctrine of Equal Pay for Equal work would be applicable on these temporary employees.

Food Corporation of India v. Anil Kumar,[9]

In this case, there is a regular Hindi typist and a casual Hindi typist, who are doing the same and similar job as a regular Hindi typist. There is no difference in work between a regular Hindi typist and a casual Hindi typist. There was the strength of seven regular Hindi typists in the organization, but existing six permanent typists and one casual typist. Also, management has no definite reason to keep one post vacant for a long indefinite period. This account malice in- law.

The High Court of Jharkhand observed that the casual typist was in long continuous service of more than 25 years. Under the FCI Management circular issued by FCI Headquarter dated 06.05.1987, more than 75 to 80 such casual workers who worked more than 90 days on or before 02.06.1986, were regularized as per norms.  Despite that, the respondent, a casual Hindi typist doesn’t avail the benefits of a regular typist till his long continuous service of more than 25 years. The court held that the workman has already superannuated from his service in 2018, but he is entitled to all the benefits as a retired regular typist and the court also dismissed the petition of management and said that the workman is entitled to equal pay for equal work.

Conclusion

We live in a country like India where male dominant society exists. It means men have more privileges than women in every aspect, such as in terms of employment, decision making, remuneration in an organization, etc. Women are always facing discrimination based on gender since the pre-independence era, but the most deplorable thing is, this practice continues still after post-independence. Not only women are facing discrimination, but the transgender (LGBT) are also oppressed in terms of gender inequality.

The major impact of gender inequality was seen in the working sector of the country. The employees are discriminated against based on gender in an organization for paying remuneration for their performance, irrespective they were engaged in a similar kind of job. To discourage this practice the parliament enacted various legislations such as the Minimum Wages Act, Factories Act, Workmen Compensation Act, Equal Remuneration Act, Code on Wages, etc. Due to these legislations it leads to considerable improvement in the working sector.

The most important measure was taken by these legislations is “Equal pay for Equal work”. According to this Doctrine, employees are getting equal wages for their similar or same kind of work and no discrimination ground-based on gender, caste, religion, place of birth, etc. The employees are even entitled to remedies whenever they face any discrimination. The organization should adopt proper policies for the benefit of its employees.

References

Books Referred

  • J.N. Pandey, Constitutional Law of India, 56th edition

[1] State of Haryana v. Tilak Raj, AIR 2003 SC 2658

[2] Writ Petition (civil) 20 of 1959

[3] 1987 AIR 1281

[4] AIR 1982 SC 879

[5] 1989 AIR 1308

[6] 1990 AIR 334

[7] AIR 1997 SC 499

[8] AIR 2016 SC 5176

[9] (2020) 3 CLR 434

This article has been written by Aditi Sahu, 3rd Year (B.B.A.LL.B.) at Banasthali Vidyapith.

Also Read – An Overview of The Minimum Wages Act, 1948

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