V.P. Tipnis, J.
1. As these petitions raise common questions of law and fact they were heard together and are being disposed of by this common judgment.
2. In writ petition No. 1630 of 1994 the petitioner was employed with 1st respondent company M/s Neo Pharma Pvt. Ltd. from 16.3.1983. She was appointed to the post of Junior Executive in the accounts department. The petitioner was paid consolidated salary of Rs. 700/- per month. Ultimately by March 1991 her consolidated salary was raised to Rs. 1,475/- p.m.. It is the case of the petitioner that the work done by her and that done by one Mr. Vithal Shetty working with the 1st respondent company is similar in nature. However, for similar work when Shri Vithal Shetty was being paid Rs. 1,357/-, she was being paid only Rs. 700/- p.m.. The petitioner therefore filed claim under Section 7(1)(b) of the Equal Remuneration Act, 1976 claiming payment at the same rate at which her male counterpart i.e. Vithal Shetty was paid.
3. The Assistant Commissioner who has been appointed as an authority under the Equal Remuneration Act, 1976 by his judgment and order dated 25.6.1992 allowed the application holding that respondent No. 1 company has violated the provisions of Section 4 of Equal Remuneration Act and ordering the company to pay to the petitioner an amount shown in the application amended from time to time and also to pay the benefits arising out of payment like provident fund, bonus, gratuity, etc. He quantified the amount at Rs. 1,75,270.40 p.
4. Being aggrieved by the decision of the respondent No. 1 company preferred an appeal being appeal E.R.A. No. 4 of 1992 to the appellate authority i.e. Deputy Commissioner of Labour who by his judgment and order dated 2.4.1993 was pleased to allow the appeal and set aside the order passed by the 1st authority.
5. Being aggrieved by the said judgment and order the petitioner has filed this petition.
6. In writ petition No. 1781 of 1994 the petitioner was employed by the 1st respondent company M/s Neo Pharma Pvt. Ltd. as a secretary to the purchase manager from 1st July, 1981. The appointment order mentioned that she would be in Junior Executive cadre. However, the petitioner was paid consolidated wages at Rs. 550/- p.m.. From time to time ultimately petitioner's salary came to be raised to Rs. 1,033/- p.m.. It is the contention of the petitioner that though designated as secretary to the purchase manager or as Junior Executive, she was required to do the work of stenographer. The petitioner was taking dictation from several officers and directors of the company. She was required to take dictation, transcribe the same as also filing papers typed by her in the respective files. The petitioner contended that one Mr. N.S. Natarajan working with the 1st respondent company was doing the same work of stenographer. However Mr. Natarajan was paid Rs. 1,250/- p.m.. The petitioner therefore filed claim application under Section 7(1)(b) of the Equal Remuneration Act, 1976 claiming parity in wages with her male counterpart i.e. Shri N.S. Natarajan.
7. The authority under the Equal Remuneration Act, 1976 by its judgment and order dated 25.6.1992 allowed the application and directed the management i.e. respondent No. 1 to pay to the petitioner amount shown in the application as amended from time to time quantifying the amount at Rs. 1,88,816.15 p.
8. Being aggrieved by the said judgment and order the respondent No. 1 Management of M/s Neo Pharma Pvt. Ltd. preferred an appeal to the appellate authority being appeal No. ERA-2 of 1992. The learned Deputy Commissioner of Labour, appellate authority by his judgment and order dated 4.8.1993 was pleased to allow the appeal and set aside the order passed by the 1st authority.
9. Being aggrieved by the said judgment and order of the appellate authority the petitioner has approached this Court by way of this petition.
10. We have heard Mrs. Mhatre, the learned Counsel for petitioner in both the matters and Shri Kuldeep Singh learned Counsel for the respondent No. 1 company i.e. M/s Neo Pharma Pvt. Ltd. in both matters. Smt. Mhatre contended that on the basis of the record petitioners had clearly made out a case entitling them for the relief claimed as was rightly granted by the 1st authority. Smt. Mhatre contended that the judgment and orders in appeal reversing the correct orders passed by the 1st authority cannot be sustained as the same are not in accordance with law. On the basis of material Smt. Mhatre contended, the claim of both the petitioners will have to be allowed. Smt. Mhatre further contended that if the material on record is not found adequate in the facts and circumstances of the case the matter may be remanded so that adequate and relevant material could be brought on record.
11. Shri Kuldeep Singh learned Counsel for the respondent No. 1 company contended that on the basis of material on record, the learned appellate authority was more than justified in both the cases to allow the appeals and set aside the orders passed by the 1st authority and there is no reason why the said proper orders should be set aside. Shri Kuldeep Singh also contended that petitioners having an opportunity to adduce evidence and having failed to do so at proper stage, should not be granted indulgence of agitating their claims again by remanding the matters. Shri Kuldeep Singh also pointed out that in the case of Mrs. Irene Femandes the person with whom she had compared herself i.e. Shri Shetty is no more in the employment and it may not be possible for her to adduce evidence regarding the nature of work which was being done by said Shri Shetty.
12. We have heard both the learned Counsel at some length. With the assistance of the learned Counsel on both sides we have gone through the orders passed by both the lower authorities as well as part of the record which was brought to our notice. Both the learned Counsel also brought to our notice the decision of the Apex Court in the matter of Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa (1987) I LLJ 536 : Lab. IC 961 : (1987) 2 Bom. C.R. 662 : 89 Bom. L.R. 156 : 54 Fac L.R. 530 : 1987 Mah. L.R. 1019, Shri Kuldeep Singh also brought to our notice several other judgments of the Apex Court in the matter of Union of India v. N. Hargopal , judgment in the matter of
State of U.P. v. J.P. Chaurasia (1988) II CLR 597, judgment in the matter of State of Andhra Pradesh v. G. Sreenivasa Rao reported in 1989 I CLR 631; judgment in the matter of State of Madhya Pradesh v. Pramod Bharatiya (1992) II CLR 942 : 1993 Lab I.C. 2418 : (1995) 3 SCR 643, and the judgment of Ld. Single Judge of Rajasthan High Court in the matter of Ashok Kumar Garg v. State of Rajasthan (1994) I CLR 533.
13. The Equal Remuneration Act, 1976 is enacted 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 and for matters connected therewith or incidental thereto. As per Section 1(3) of the said Act, the Act shall come into force on such date, not being later than three years from the passing of this Act, as the Central Government may, by notification appoint and different dates may be appointed for different establishments or employments. Section 2(g) of the said Act defines 'remuneration' as under:
2(g) 'remuneration' means 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 or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled.
Section 2(h) of the said Act defines 'same work or work of a similar nature as under:
2(h) 'same work or work of similar nature' means 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, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.
Section 3 of the said Act states that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act, or in any instrument having effect under any law for the time being in force. Section 4 enjoins the employer with a duty to pay equal remuneration to men and women workers for same work or work of similar nature. Section 5 injuncts the employer from making any discrimination against women while making recruitment for the same work or work of similar nature or in any condition of service subsequent to recruitment such as promotions, training or transfer except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force. Section 7 empowers the appropriate Government to appoint authorities for hearing and deciding claims and complaints. Sub-section (1) of Section 7 of the said Act provides that such authority shall not be below the rank of Labour Officer. Sub-section (2) of Section 7 of the said Act provides that complaint or claim with regard to the contravention of any provision of the Act or claims arising out of non-payment of wages at equal rates to men and women workers for the same or work of a similar nature, shall be made in such a manner as may be prescribed. Sub-section (3) of Section 7 of the said Act, provides that if any question arises as to whether two or more works are of the same nature or of a similar nature, it shall be decided by the authority appointed under Sub-section (1) Sub-section (4) of Section 7 of the said Act provides that where a complaint or claim is made to the authority appointed under Sub-section (1) it may, after giving the applicant and the employer an opportunity of being heard, and after such inquiry as it may consider necessary, direct:
(i) in the case of a claim arising out of non-payment of wages at equal rates to men and women workers for the same work or work of similar nature, that payment be made to the worker of the amount by which the wages payable to him exceed the amount actually paid;
(ii) in the case of complaint, that adequate steps be taken by the employer so as to ensure that there is no contravention of any provision of the Act.
Sub-section (5) of Section 7 of the said Act provides that every authority appointed under Sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and every such authority shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Civil Procedure, 1973. Sub-section (6) of Section 7 of the said Act provides that any employer or worker aggrieved by any order made by an authority appointed under Sub-section (1), on a complaint or claim may, within thirty days from the date of the order, prefer an appeal, to such authority as the appropriate Government may, by notification specify in this behalf, and that authority may, after hearing the appeal, confirm, modify, or reverse the order appealed against and no further appeal shall lie against the order made by such authority. Sub-section (7) of Section 7 of the said Act, provides for condonation of delay by a period of 30 days for preferring the appeal if the appellate authority is satisfied that the appellant was prevented by sufficient. cause from preferring the appeal within the period specified in Sub-section (6). Sub-section (8) of Section 7 of the said Act provides that provisions of Sub-section (1) of Section 33C of the Industrial Disputes Act, 1947 shall apply for recovery of moneys due from an employer arising out of the decision of an authority appointed under the said section. Section 8 enjoins the employer to maintain certain registers as may be prescribed. Section 9 provides for appointment of Inspectors and Section 10 provides for penalty for certain omissions and commissions by the employer. Section 11 makes a provision for offences by companies and Section 12 provides for cognizance and trial of offences.
14. In pursuance to the rule making power Equal Remuneration Rules, 1976, are framed by the Government, which merely provides forum in which a complaint under Clause (a) of Sub-section (1) of Section 7 of the said Act is to be made. It also provides for form B that every claim be made under Clause (b) of Sub-section (1) of Section 7 and it provides for form C for authorisation referred to in Sub-rule (3) of Rule 3 or Sub-rule (3) of Rule 4. Rule 6 provides for maintenance of registers uptodate in relation to the workers employed by him in form D. By notification in so far as the cases in hand are concerned the Government of Maharashtra has appointed Assistant Labour Commissioner. as the first authority and Dy. Commissioner of Labour as the appellate authority under Section 7 of the said Act.
15. The provisions of the Act clearly show that the authority appointed under the provisions of the said Act has all the powers of a Civil Court for the purpose of taking evidence, enforcing the attendance of witnesses and compelling the production of documents. The authority has to decide the complaint with regard to the contravention of any provisions of the said Act as also the claims arising out of non payment of wages at equal rates to men and women workers for the same work or work of a similar nature. The authority has to give an opportunity of being heard to the applicant and the employer and hold such enquiry as it may consider necessary and thereafter the authority has jurisdiction to direct in the case of a claim arising out of non payment of wages at equal rates to men and women workers for the same work or work of a similar nature, that payment be made to the worker of the amount by which the wages payable to him exceed the amount actually paid. These proceedings before the authority are clearly quasi judicial in nature. He has to record evidence, hear the parties and give final directions which are executable. The authority is expressly given all powers of a civil court. As such whenever any application is made under the provisions of the said Act or complaint is lodged, the authority will have to record evidence of witnesses and for that purpose administer oath. The other side will have to be given an opportunity to cross-examine the witnesses. Documentary evidence will have to be taken on record and appropriately exhibited and after hearing both sides, the authority will have to give reasoned order in support of his directions which ultimately it may give. As a regular appeal is provided to appellate authority against the order of the 1st authority, the authority will have to maintain roznama as also properly maintain record of notes of evidence properly exhibited documents by both sides. As stated earlier the authority must give reasoned order so that the appellate authority may be in a position to understand the grounds supporting the ultimate directions.
16. While going through the record we find that in the instant case the record is most unsatisfactory. It appears that no oath is administered to any of the witnesses and the evidence appears to have been recorded in question and answer form. Unfortunately original record is not produced before us at all and the record as was available with the appellate authority is only made available. We do not know whether the documents presented by both sides are properly exhibited by giving exhibit numbers. Most unsatisfactory feature is the order of the 1st authority. After referring to the case of both sides and points for determination the authority has merely mentioned that the work performed by the applicant and the stenographer Shri Natarajan were not of different nature though the applicant was designated as secretary to the purchase manager and was performing the work similar to that of Mr. Natarajan. This is the only reasoning or discussion for allowing the application. In the second case the authority has observed as under:
The applicant was working as Jr. Executive in the Accounts Department, whereas Shri Vithal Shetty was working in the Sales Department and doing the work of clerical nature. Though the applicant was designated as junior executive she was doing the work of clerical nature. Shri Vithal Shetty was paid wages as per settlement dated 28.11.1974. The applicant was not paid at par with Shri Vithal Shetty. Therefore it clearly shows wage discrimination on ground of sex.
Thereafter the authority has proceeded to pass the final order directing the company to make payment of a particular amount. The orders of the 1st authority in both the cases do not refer to any oral evidence or other documentary evidence adduced by the parties. It does not show any appreciation of evidence and there is no reasoning supporting the conclusion. Looking to the provisions of the said Act we are of the opinion that in the matters under this Act the authority must give reasons in support of its conclusions and then pass final orders which is totally lacking in the orders passed by the 1st authority in these cases.
17. So far as the appellate authority is concerned we must record that the appellate authority has discussed the material and given detailed reasonings and therefore so far as that aspect of the matter is concerned the judgments and orders of the appellate authority appear to be satisfactory. However, on merits in the case of Irene Fernandes, the learned appellate authority has observed that when asked about the work performed by Shri Shetty, Smt. Fernandes instead of explaining the nature of work of Shri Shetty, stated that she prepares delivery orders in absence of Shri Vithal Shetty. One Sri E. D'Costa, who has put in 7 months of service was produced as witness according to whom Shri Shetty performed the work mainly of a clerical nature doing writing work in sales department whereas the petitioner herein was writing ledgers in accounts department. No material was produced by either side in connection with the job performed by Shri Shetty. The appellate authority has observed that Smt. Fernandes has accepted the terms and conditions of appointment with open eyes. She was aware of the fact that she has been appointed as a junior executive on a consolidated salary along with other junior executives. The appellate authority further observed that Shri Shetty has put in 29 years of service and therefore he was drawing the salary of Rs. 1,455/- per month whereas Smt. Fernandes was drawing the salary of Rs. 1,450/- p.m. after putting in 7 years of service and difference in wages is due to length of service. The learned appellate authority also felt that the revision in payment of Shri Shetty was as per the settlement dated 28.11.1974 which settlement was applicable to employees employed prior to a particular date and as Smt. Fernandes does not fall in that group she is not entitled to the same wages as per the settlement. In paragraph 20 of the judgment the appellate authority has observed that assuming that Smt. Fernandes performs the similar type of work of writing but the work performed by a person of longer experience is superior than the work of new comer. Thus referring to settlement dated 28.11.1974 the learned appellate authority observed that the junior clerk is having the grade of Rs. 85-255 and senior clerk in the grade of Rs. 130-385. The classification made on the qualities and experience is reasonable classification and Smt. Fernandes is not entitled to revision of wages at par with Shri Shetty as she has failed to establish her claim.
18. In so far as Mr. Leena D' Souza is concerned the learned appellate authority held that she is not entitled to the benefit of the settlement dated 28.11.1974 as she was appointed as secretary in junior executives cadre. The appellate authority also held that Smt. D'Souza admitted that Mr. Natarajan is senior stenographer and covered by the settlement. The appellate authority referred to the fact that there is only one male stenographer and Shri Natarajan has put in 28 years of service and is covered by settlement dated 28.11.1974. Smt. D'Souza on the contrary was appointed as junior executive on a consolidated salary and the company contended that the difference in salary of Shri Natarajan and the respondent was not because of. sex but because of length of service. The appellate authority also felt that difference in salary is also on account of settlement dated 28.11.1974 and the benefits of settlement are restricted to employees who were on permanent pay roll of the company on a particular date. It is for these reasons that the appellate authority has allowed, the appeal and dismissed the claims.
19. We find it difficult to uphold the reasoning of the appellate authority. Under the provisions of the said Act if the applicant by adducing adequate material proves that the worker of the opposite sex in the same establishment performs the work requiring the same skill, effort and responsibility, which is required for performing the work done by the applicant workman, when it is performed under similar working conditions, and difference if any between the skill, effort and responsibility required of a man and those of required of a woman, are not of practical importance in relation to the terms and conditions of employment, the applicant shall be entitled to the remuneration at the same rate meaning thereby entitled to basic wage or salary and any additional remuneration whatsoever payable either in cash or in kind, to a person employed in respect of an employment or work done in such employment; if the terms of the contract of employment express or implied were fulfilled. Thus what is of paramount importance is that the applicant must show that the skill, effort and responsibility required to carry out the work done by the applicant are the same which are required to be carried out by a member of a opposite sex. Once that is established then the provisions of the said Act oblige an employer to pay same salary or remuneration; meaning thereby same basic wage, or salary and additional emoluments payable either in cash or in kind to the applicant. Obviously number of years put in with the employment would make the total salary different even in cases of persons who are doing the same type of work due to increments or grades. Equality is not to be in total pay packet but equality is to be of the basic wage or salary. In view of what we have stated hereinabove, although the appellate authority was right in holding that the petitioners in both these petitions are not entitled to the benefit of the settlement dated 28.11.1974, the appellate authority was not right in denying the petitioners their entitlement under the Equal Remuneration Act, 1976. Once the requirements of the Equal Remuneration Act are satisfied the applicant has to be paid the same basic wage or salary. The entitlement under the provisions of the Equal Remuneration Act, 1976 is totally independent of any such settlement.
20. As indicated above, we are not satisfied with the reasoning of the appellate authority nor are we satisfied with the short orders of the 1st authority. After hearing both sides and in the facts and circumstances of the case we are of the opinion that interest of justice require to set aside orders passed by both the authorities and remand the matters to the 1st authority. Both parties shall be at liberty to adduce such material and such evidence as they deem fit. The 1st authority deciding the matters shall record evidence and shall after hearing both sides give a reasoned order in each case in the light of our observations in this judgment. Needless to say that any party aggrieved by the decision of the first authority shall be at liberty to prefer appeal to the appellate authority as provided in the said Act.
21. In the result both the petitions are allowed. The order dated 25.6.1992 passed by the authority under the Equal Remuneration Act, 1976 in application (ERA) No. 5 of 1989 as also the order passed on 2.4.1993 by the appellate authority, i.e. Dy. Commissioner of Labour in appeal ERA No. 4 of 1992 are hereby quashed and set aside and the application No. ERA 5 of 1989 is remanded to the authority under the Equal Remuneration Act for disposal in accordance with law in the light of the observations made by us in this judgment. Rule made absolute in aforesaid terms in writ petition No. 1630 of 1994 with no order as to costs.
22. In writ petition No. 1781 of 1994 the order dated 25.6.1992 passed by the authority under the Equal Remuneration Act in application ERA No. 3 of 1989 as also the judgment and order dated 4.8.1993 passed by the appellate authority in appeal ERA No. 2 of 1992 are quashed and set aside and application ERA No. 3 of 1989 is remanded to the authority under the Equal Remuneration Act for disposal in accordance with law and in the light of the observations made by us in this judgment. Rule is made absolute in aforesaid terms with no order as to costs.
23. Office to send back the record and writ forthwith to the trial Court. Certified copy expedited.