Equal remuneration under the Code on Wages

1. Constitutional basis

Article 39(d) directs the State to secure equal pay for equal work for both men and women. Articles 14, 15(1) and 16(1) forbid discrimination by the State, and Article 15(3) permits special provisions for women. The 1976 Act was passed in International Women’s Year and also gave effect to ILO Convention No. 100 (Equal Remuneration, 1951), which India has ratified.

The Supreme Court turned Article 39(d) into an enforceable principle. In Randhir Singh v. Union of India, 1982 INSC 24, (1982) 1 SCC 618, a driver-constable in the Delhi Police was paid less than drivers in other Delhi Administration departments doing the same driving work. The Court held that although “equal pay for equal work” is not expressly a fundamental right, it is a constitutional goal which, read with Articles 14 and 16, can be enforced where employees doing identical work under the same employer are paid differently without a rational basis. Later cases kept the principle alive. In State of Punjab v. Jagjit Singh, 2016 INSC 993, (2017) 1 SCC 148, temporary employees doing the same work as regular employees were held entitled to at least the minimum of the regular pay scale.

2. The prohibition: section 3

• Wages (section 3(1)) [s.4(1)]: there shall be no discrimination in an establishment or any unit among employees on the ground of gender in matters relating to wages by the same employer, in respect of the same work or work of a similar nature.
• No levelling down (section 3(2)(i)) [s.4(2)]: the employer cannot comply by reducing anyone’s wages. Equality must be reached by raising the lower rate.
• Recruitment and conditions (section 3(2)(ii)) [s.5]: no discrimination on the ground of sex in recruitment for the same or similar work, or in conditions of employment, except where the employment of women in that work is prohibited or restricted by law.

Two features of the comparison should be stated in any answer. It is made within the same establishment or unit and the same employer; a woman cannot compare herself with a man working for a different employer. And it covers all “wages”. For equal pay purposes the second proviso to section 2(y) brings back into wages four items otherwise excluded: conveyance allowance, house rent allowance, remuneration under an award or settlement, and overtime. An employer cannot hide discrimination in allowances.

3. “Same work or work of a similar nature”

Section 2(v) [s.2(h)] defines it as work in which the skill, effort, experience and responsibility required are the same, when performed under similar working conditions, and where any difference between the skill, effort, experience and responsibility required of employees of different genders is not of practical importance in relation to the terms and conditions of employment.

The test looks at what the employee actually does, not at the label. A different designation does not decide the matter, and minor differences in duties do not either, unless they are of practical importance.

Disputes on whether work is the same or similar are decided by the authority notified by the appropriate Government (section 4) [s.7]. Claims for unpaid wages go to the claims authority under section 45.

4. Mackinnon Mackenzie v. Audrey D’Costa

In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, 1987 INSC 81, (1987) 2 SCC 469, the respondent, a confidential lady stenographer, was paid less than male stenographers in the company. The company argued that the men did different and more onerous work, that the women formed a separate cadre, and that it could not afford to pay more. The Court rejected these arguments:

• The women did practically the same work as the male stenographers. Where the duties are similar, an employer cannot create a separate “female” cadre to pay less.
• The employer’s practice of fixing separate scales cannot override the statute, which has overriding effect (now section 61 of the Code).
• Financial incapacity is no defence to the duty to pay equal remuneration.

5. Advisory Boards and enforcement

• The Central and State Advisory Boards under section 42 [s.6] advise on increasing employment opportunities for women and on the extent to which women may be employed in particular establishments. One-third of their members must be women.
• Claims are filed before the authority under section 45 by the employee, a registered union or the Inspector-cum-Facilitator, within three years; the authority may award compensation of up to ten times the amount due.
• The burden of proving payment is on the employer (section 59), and any agreement by which the employee gives up her right is void (section 60).
• Paying less than is due is punishable with a fine of up to ₹50,000, and on a repeat within five years imprisonment up to three months or fine up to ₹1 lakh or both (section 54(1)(a), (b)).

6. Problem

A private bank pays its women cashiers ₹3,000 a month less than male cashiers. It says the men sometimes carry cash to the currency chest and that paying the women more would hurt its finances. Advise the women.

Issue. Whether the difference in pay is gender discrimination for the same or similar work under section 3 of the Code on Wages.

Law. Section 3(1) forbids discrimination on the ground of gender in wages for the same work or work of a similar nature. Section 2(v) treats work as similar where differences in skill, effort, experience and responsibility are not of practical importance. Mackinnon Mackenzie holds that financial incapacity is no defence and that similar duties cannot be split into a lower-paid women’s cadre.

Application. Both groups do the core work of a cashier. Occasionally carrying cash to the chest is a minor, incidental difference. If it mattered, the bank could pay a specific allowance for it to whoever does it, but it cannot justify a flat lower wage for all women. The plea of finances fails under Mackinnon Mackenzie, and section 3(2)(i) bars the bank from equalising by cutting the men’s pay.

Conclusion. The women are entitled to the male rate with arrears. They should file a claim under section 45 (individually, or through their union in a single application under section 45(5)), where compensation up to ten times may also be awarded. The bank may be prosecuted under section 54.

How this is examined

Usually a short note (“equal remuneration”, “equal pay for equal work”) or a problem on unequal pay for women. Structure: Article 39(d) and Randhir Singh; section 3 with its three limbs; the section 2(v) definition; Mackinnon Mackenzie and what it held; enforcement under sections 4, 45 and 54. Mention that the 1976 Act was repealed by section 69 of the Code and that the Code now covers all genders.