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Section 4 in The Equal Remuneration Act, 1976
The Equal Remuneration Act, 1976
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Supreme Court of India
Mackinnon Mackenzie & Co. Ltd vs Audrey D'Costa & Anr on 26 March, 1987
Equivalent citations: 1987 AIR 1281, 1987 SCR (2) 659
Author: E Venkataramiah
Bench: Venkataramiah, E.S. (J)
           PETITIONER:
MACKINNON MACKENZIE & CO. LTD.

	Vs.

RESPONDENT:
AUDREY D'COSTA & ANR.

DATE OF JUDGMENT26/03/1987

BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
DUTT, M.M. (J)

CITATION:
 1987 AIR 1281		  1987 SCR  (2) 659
 1987 SCC  (2) 469	  JT 1987 (2)	 34
 1987 SCALE  (1)627
 CITATOR INFO :
 D	    1988 SC1291	 (10)
 RF	    1990 SC1480	 (52)
 R	    1992 SC   1	 (76)


ACT:
    Constitution   of	 India,	  1950--Articles   14	 and
39(d)--Equal remuneration--Liability to pay irrespective  of
sex--Necessity for.
    Equal   Remuneration  Act,	1976--Ss.  2(h),  4(1)	 and
7--Equal  work--'Same work or work of similar  nature'--Con-
siderations    for   determination   of--Men	and    women
workers--Performing same or similar nature of  work--Whether
lower remuneration to women workers discriminatory on ground
of sex and violative of s. 4(1).
    Equal   Remuneration   Act,	 1976--Ss.   2(g),   3	 and
4(1)--Equal  Pay--Settlement between management and  employ-
ees--Whether a valid ground for discriminating in payment of
remuneration  between men and women workers performing	same
or similar nature of work.
    Equal  Remuneration Act, 1976---Proviso to s.  4(3)--Ap-
plicability    of--Settlement	before	  commencement	  of
Act--Provides  common  pay scale for men as  well  as  women
workers--After	implementation of Act--Women  workers  given
lessor	remuneration--Whether s. 4(1) or proviso to s.	4(3)
would apply.
    Equal Remuneration Act, 1976--Ss. 3 and 4--Applicability
of  the Act--Whether depends upon the financial	 ability  of
the management to pay equal remuneration.
    Statute Law--Proviso--Scope of--Cannot travel beyond the
section.



HEADNOTE:
    After  the	services of the respondent No.	1,  who	 was
working	 as a Confidential Lady Stenographer with the  peti-
tioner-company, were terminated on June 13, 1977, she insti-
tuted a petition before the Authority appointed under sub-s.
(1) of s. 7 of the Equal Remuneration Act, 1976	 complaining
that during the period of her employment, after the Act came
into  force,  she was being paid remuneration at  the  rates
less favourable than those paid to the Stenographers of	 the
male  sex in the petitioner's establishment  for  performing
the same or similar work
660
and claimed that she was entitled to recover the  difference
between remuneration paid to her and the male Stenographers.
    The	 petitioner opposed the petition  contending,  inter
alia,  that  the business carried on by it was	not  one  of
those  businesses notified under sub-s. (3) of s. 1  of	 the
Act; that there was no difference in the scales or grades or
pay between lady Stenographers and male Stenographers;	that
the  respondent No. 1 and other lady Stenographers  who	 had
been  doing the duty as Confidential Stenographers  attached
to the Senior Executives were not doing the same or  similar
work which the male Stenographers were discharging; and that
since  there was no discrimination in salary on	 account  of
sex s.4 of the Act had not been violated.
    The Authority found that the male Stenographers and	 the
lady  Stenographers  were doing the same kind of  work,	 but
rejected the complaint holding that in view of a  settlement
arrived	 at between the employee's Union and the  management
the respondent No. 1 was not entitled to any relief and that
the  petitioner had not committed the breach of s. 4  as  no
discrimination on the ground of sex has been made.
    The Appellate Authority allowed the appeal of Respondent
No.  I holding that there was clear  discrimination  between
the .male Stenographers and the female Stenographers and the
petitioner had committed the breach of the provisions of the
Act  and directed the petitioner to make the payment of	 the
difference between the basic salary and dearness  allowances
paid  to  respondent No. 1 and her male counter	 parts	from
26.9.1975  to 30.6.1977 and to contribute to  the  Employees
Provident Fund.
    In	the  petition under Article 226 the  Learned  Single
Judge  affirmed	 the order of the  Appellate  Authority	 but
remanded  the case for computing the amount due to  the	 re-
spondent  No.  1 afresh. The Division  Bench  dismissed	 the
further appeal.
Dismissing the Petition,
    HELD: 1. To implement Art. 39(d) of the Constitution  of
India  and Equal Remuneration Convention, 1951	(adopted  by
International  Labour Organisation), the Equal	Remuneration
Act,  1976 came to be enacted providing 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. In so far as the establish-
ment
661
of  the	 petitioner was concerned, the Act came	 into  force
with effect from October 8, 1976. [668B-F]
    2.	In order to grant relief under s. 4 of the  Act	 the
employees should establish that the remuneration paid by the
employer, whether payable in cash or kind, 1s being paid  at
rates  less favourable than those at which  remuneration  is
paid  by  him to the employees of the opposite	sex  in	 his
establishment  for  performing the same work or	 work  of  a
similar nature. [670D-E]
    3.	In deciding whether the work is the same or  broadly
similar and whether any differences are of practical  impor-
tance, the Authority should take an equally broad  approach,
for, the very concept of similar work implies differences in
details, but these should not defeat a claim for equality on
trivial	 grounds. It should look at the duties actually	 and
generally performed not those theoretically possible by	 men
and women. Where, however, both men and women work at incon-
venient	 times, there is no requirement that all  those	 who
work e.g. at night shall be paid the same basic rate as	 all
those  who  work normal day shifts. Thus a woman  who  works
days  cannot claim equality with a man on higher basic	rate
for working nights if in fact there are women working nights
on  that rate too, and the applicant herself would be  enti-
tled to that rate if she changed shifts. [670E-H]
    I.T.  Smith and J.C.  Wood;	 Industrial Law, 2nd Edition
(Butterworths) page 308, referred to.
    4. It cannot be suggested that there can be no discrimi-
nation	at all between men and women in the matter of  remu-
neration on the basis of nature of work which women may	 not
be  able to undertake but in such cases there cannot be	 any
discrimination	on the ground of sex. Discrimination  arises
only  where men and women doing the same or similar kind  of
work  are paid differently. Wherever sex  discrimination  is
alleged, there should be a proper job evaluation before	 any
further enquiry is made. If the two jobs in an establishment
are  accorded  an equal value by the  application  of  those
criteria which are themselves non-discriminatory (i.e. those
criteria which look directly to the nature and extent of the
demands made by the job) as distinct from criteria which set
out  different values for men and women on the	same  demand
and it is found that a man and a woman employed on these two
jobs  are paid differently, then sex discrimination  clearly
arises. [671A-C]
    Paul  Davis	 and Mark Freedland: Labour  Law,  Text	 and
Material (1979) page 297, referred to.
662
    5.	In  the instant case, the Authority,  the  Appellate
Authority and the Single Judge have found that the Confiden-
tial Lady Stenographers were doing the same work or work  of
a similar nature as defined in s. 2(h) of the Act which	 the
male  Stenographers in the establishment of  the  petitioner
were performing. The respondent No. 1 was working as a	lady
Stenographer.  The lady Stenographers working in the  estab-
lishment  of the petitioner were called	 "Confidential	Lady
Stenographers" since they were attached to the senior Execu-
tive  working in the petitioner-company. In addition to	 the
work  of the Stenographers they were also attending  to	 the
persons	 who came to interview the senior Executives and  to
the  work of filing, correspondence. etc. There was  practi-
cally no difference between the work which the	Confidential
Lady  Stenographers  were doing and the work of	 their	male
counter-parts.	If the Lady Stenographers were found by	 the
management to he proper persons to he Confidential Stenogra-
phers  it  does not mean that they should suffer  for  their
loyalty,  integrity, sincerity and punctuality	and  receive
less pay for possessing those qualities when they are  doing
the same kind of work as men. Applying the true tests to the
facts  of  the	instant case there is no ground	 to  take  a
different  view from the view taken by the  Authorities	 and
the Single Judge. [671D-H]
    6.	Though a settlement was arrived at between  the	 em-
ployee's  Union	 and the management in the year	 1975  after
negotiations, but after the settlement the respondent No.  1
was getting every month Rs.730.20 paise less than the  remu-
neration which her male counterpart was getting. In view  of
the  provisions of s. 3 the management cannot rely upon	 the
settlement  arrived at between the parties.  The  settlement
has  to	 yield in favour of the provisions of the  Act.	 The
fact  that  the management was not employing any male  as  a
Confidential Stenographer attached to the senior  Executives
in  the	 establishment	and that there was  no	transfer  of
Confidential  Lady Stenographer to the general pool of	Ste-
nographers  where males were working ought not to  make	 any
difference for purposes of the application of the Act.	Once
It  is	established that the lady Stenographers	 were  doing
practically  the same kind of work which the male  Stenogra-
phers were discharging the employer is hound to pay the same
remuneration to both of them irrespective of the place where
they were working unless it is shown that the women are	 not
fit  to do the work of the male Stenographers. Nor  can	 the
management deliberately create such conditions of work	only
with the object of driving away women from a particular type
of work which they can otherwise perform with the object  of
paying	them less remuneration elsewhere in  its  establish-
ment. [672B-H; 673A-B]
663
    7. The meaning of sub-s. (3) to s. 4 of the Act is	that
if  for doing the same or similar work there are  more	than
two or three rates of remuneration, the higher or the  high-
est  of such rates shall be the rate at which the  remunera-
tion  shall be payable from the date of the commencement  of
the  Act to men and women workers doing the same or  similar
kind of work in the establishment. The proviso provides that
nothing	 in  the sub-section shall be deemed  to  entitle  a
worker	to the revision of the rate of remuneration  payable
to him or her with reference to the service rendered by	 him
or her before the commencement of the Act. [673E-F]
    8.	Under the settlement of 1975 the male  Stenographers
came under the category of "Clerical and Subordinate Staff".
Undisputedly the terms regarding the fitment to lady Stenog-
raphers either In the 'A' Grade or 'B' grade, referred to In
the  settlement	 is  less favourable to them  and  the	same
conditions  were allowed to remain in force even  after	 the
Act  came into force. The very fact that the lady  Stenogra-
phers are treated differently and as a class different	from
the clerical and subordinate staff by paying less  remunera-
tion even though they have put in the same length of service
and  they  are	placed in the same scale of  pay  smacks  of
discrimination. The discrimination thus brought about by the
terms  of settlement only on account of the sex of  the	 em-
ployees cannot be allowed to persist in view of s. 4 of	 the
Act.  The work of the Confidential Lady Stenographer  cannot
be said to be sex based one like the work of air  hostesses.
There is no custom or rule that only ladies can be Confiden-
tial  Stenographers. If only women are working as  Confiden-
tial  Stenographers it is because the management wants	them
there. Women are neither specially qualified to be Confiden-
tial Stenographers nor disqualified on account of sex to  do
the  work assigned to the male Stenographers. Even if  there
is  a  practice	 in the establishment to  appoint  women  as
Confidential Stenographers such practice cannot be relied on
to  deny them equal remuneration due to them under the	Act.
[675B-E]
    9. The management is liable to pay the same remuneration
to  all the Stenographers on the same basis irrespective  of
their  sex. The salary and remuneration payable to the	lady
Stenographers  should  be computed in  accordance  with	 the
terms  applicable  to all the male  Stenographers.  When  so
computed,  undisputedly the Respondent No. 1 would be  enti-
tled  to  higher remuneration as observed by  the  Appellate
Authority and the Single Judge. The management cannot derive
any  benefit  from  sub-s. (3) of s. 4 of the  Act  and	 the
proviso	 thereto because sub-s. (3) would be attracted	only
where in an establishment or an employment rates of remuner-
ation payable before the commencement
664
of the Act for the men workers and for the women workers for
the  same work or work of similar nature are  different.  In
the instant case, after the settlement was arrived at  there
was a common pay scale both for men and women as can be seen
from  the  settlement.	The  discrimination  was,   however,
brought	 about	while carrying out the fitment of  the	lady
Stenographers in the said scale of pay. [675E-H; 676A]
    10. The proviso to sub-s. (3) to s. 4 comes into  opera-
tion only where sub-s. (3) is applicable. Since there are no
different scales of pay in the instant case sub-s. (3) of s.
4  of the Act would not be attracted and  consequently,	 the
proviso	 would not be applicable at all. The proviso  cannot
travel	beyond the provision to which it is a proviso.	This
is  a  case to which sub-s. (1) to s. 4 of the	Act  applied
because the impugned remuneration payable to lady  Stenogra-
phers has been reduced on account of the inequitable  provi-
sion  regarding fitment in the common scale of pay which  is
applicable to both men and women Stenographers. [676A-C]
    11.	 The Act does not permit the management to pay to  a
section of its employees doing the same work or a work of  a
similar	 nature	 lesser pay contrary to s. 4(1) of  the	 Act
only  because  it is not able to pay equal  remuneration  at
all.  The applicability of the Act does not depend upon	 the
financial  ability of the management to pay equal  remunera-
tion as provided by it. [676E]



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 1265 of 1987.

From the Judgment and Order dated 24.11.1986 of the Bombay High Court in Appeal No. 1042 of 1986.

J.P. Cama and Raju Ramachandran for the Petitioner. Miss Indira Jaisingh and Ravi P. Wadhwani for the Respond- ents.

The Order of the Court was delivered by VENKATARAMIAH, J. In this Special Leave Petition filed under Article 136 of the Constitution of India, which is filed against the decision dated November 24, 1986 of the High Court of Bombay in Appeal No. 1042 of 1986, the ques- tion whether the petitioner had violated the provisions of section 4 of the Equal Remuneration Act, 1976 (No. 25 of 1976) (hereinafter referred to as 'the Act') arises for consideration.

665

The petitioner is a company carrying on the business of rendering supporting services to water transport, like operation and maintenance of piers, docks, pilotage, light- houses, loading and discharging of vessels etc. referred to as Item No. 12 under the heading 'Water Transport' in the list of establishments and employments to which the Act has been made applicable under sub-section (3) of section 1 of the Act. Respondent No. 1 Audrey D'Costa was one of the employees working under the petitioner till June 13, 1977 on which date her services were terminated. During the period of her employment under the petitioner she was working as a Confidential Lady Stenographer. After her services were terminated, she instituted a petition before the Authority appointed under sub-section (1) of section 7 of the Act complaining that during the period of her employment, after the Act came into force, she was being paid remuneration at the rates less favourable than those at which remuneration was being paid by the petitioner to the Stenographers of the male sex in its establishment for performing the same or similar work. She claimed that she was entitled to recover from the petitioner the amount equivalent to the difference between the remuneration which she was being paid and the remuneration which was being paid to the male Stenographer who had put in the same length of service during the period of operation of the Act. The petitioner opposed the said petition. The petitioner contended inter alia that the business which was being carried on by it was not one of those businesses notified under sub-section (3) of section 1 of the Act; that there was no difference in the scales or grades of pay between lady Stenographers and other male Stenographers at the time when the case was pending before the Authority referred to above; that the Respondent No. 1 and other lady Stenographers who had been doing the duty as Confidential Stenographers attached to the senior Executives of the petitioner-company were not doing the same or similar work which the male Stenographers were discharging; and that there was no discrimination in salary on account of sex. The petitioner contended that section 4 of the Act had not been violated by it.

After hearing both the parties, the Authority which heard the complaint of the Respondent No. 1, found that the male Stenographers and the lady Stenographers were doing the same kind of work, but it, however, rejected the complaint holding that in view of a settlement which had been arrived at in 1975 between the employees' Union and the management, the Respondent No. 1 was not entitled to any relief. The Authority held that the petitioner had not committed the breach of section 4 of the Act as no discrimination on the ground of sex had been made. It accordingly rejected the complaint of the 666 Respondent No. 1 by its order dated March 30, 1982. Ag- grieved by the order of the Authority appointed under sub- section (1) of section 7 of the Act, the Respondent No. 1 filed an appeal before the Deputy Commissioner of Labour (ENF), Bombay, who was the Appellate Authority appointed under sub-seCtion (6) of section 7 of the Act. The Appellate Authority came to the conclusion that there was clear dis- crimination between the male Stenographers and the female Stenographers working in the establishment of the petitioner and ,the petitioner had committed the breach of the provi- sions of the Act. Accordingly, the appeal was allowed by the Appellate Authority on May 31, 1982. It directed the peti- tioner to make payment of Rs.7,196.67 paise which was the difference between the basic salary of the Respondent No. 1 and the basic salary of her male counter-parts from 26.9. 1975 to 30.6.1977 on which date her services came to be terminated. The petitioner was also directed to make payment of the difference in the amount of dearness allowance paid to the Respondent No. 1 and the dearness allowance paid to her male counter-parts during the said period. The petition- er was also directed to contribute to the Employees' Provi- dent Fund account on the basis of the above directions. Aggrieved by the decision of the Appellate Authority, the petitioner filed a writ petition in the High Court under Article 226 of the Constitution of India in Writ Petition No. 1624 of 1982. The learned Single Judge who heard the writ petition found that there was no doubt that the work performed by the female Stenographers and work performed by the male Stenographers were indentical and that the Respond- ent No. 1 and other female Stenographers were being paid less than their male counter-parts who were in service for an equal number of years and the Respondent No. 1 was enti- tled to the difference between the pay and allowances which had been paid to a male Stenographer who had put in service for the same number of years as the Respondent No. 1 and the amount of pay and allowances actually paid to her for the period between October 8, 1976 and June 13, 1977. Since the Appellate Authority had committed an error as regards the period in respect of which Respondent No. 1 was entitled to relief the case was remanded to the Appellate Authority for computing the amount due to the Respondent No. 1 afresh. The order of the Appellate Authority was affirmed in other respects. Aggrieved by the decision of the learned Single Judge, the petitioner filed an appeal in Appeal No. 1042 of 1986 before the Division Bench of the High Court which came to be dismissed on November 24, 1986. Aggrieved by the decision of the Division Bench, the petitioner has filed this petition under Article 136 of the Constitution of India.

667

Before dealing with the contentions of the parties, it is necessary to set out the relevant legal provisions gov- erning the case. Article 39 (d) of the Constitution of India provides that the State shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. The Convention Concering Equal Remuneration for Men and Women Workers for Work of Equal Value (for short, Equal Remuneration Convention, 1951) was adopted by the General Conference of the International Labour Organisation on June 29, 195 1. India is one of the parties to the said Convention. Article 2 of that Convention provides that each Member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value and that this principle may be applied by means of (a) national laws or regulations, (b) legally established or recognized machinery for wage determination, (c) collec- tive agreements between employers and workers, and (d) a combination of these various means. Article 3 of the Conven- tion provides that where such action will assist in giving effect to the provisions of the Convention, measures shall be taken to promote appraisal of jobs on the basis of the work to be performed. The methods to be followed in this appraisal may be decided upon by the authorities responsible for the determination of rates of remuneration, or where such rates are determined by collective agreements, by the parties thereto. In England the above Convention is given effect to by the enactment of Equal Pay Act, 1970. Almost all other European community States have also signed the convention. The European Economic Community Treaty also provided that during the first stage that is before 31st December, 1961 each. member State should ensure and subse- quently maintain the application of the principle that men and women should receive equal pay for equal work. (See E.E.C. Treaty Art. 119, 1st Para). Many cases have been since decided by the national courts in those States and also in the European Court of Justice on the basis of the several laws enacted by the said States in implementation of the Equal Remuneration Convention, 1951. The E.E.C. States are obliged to observe this Convention faithfully. A short account of this branch of law is to be found in Halsbury's Laws of England 4th Edn. Vol. 52, paras 20.11. to 20.18. Many interesting cases are referred to in those paragraphs. In one case it is held that (i) where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on the ground of sex. In another case concerning the pay of a woman who claimed equal pay with her 668 predecessor, a man, the European Court held that the concept of equal pay in the E.E.C. Treaty was not restricted to cases where men and women were employed contemporaneously but also applied where a woman, received less pay than a man employed prior to her by the employer on equal work (See Macarthy's Ltd. v. Smith, 1981 Q.B.180.).

In order to implement Article 39 (d) of the Constitution of India and the Equal Remuneration Convention, 1951, re- ferred to above, the President promulgated on the 26th September, 1975 the Equal Remuneration Ordinance, 1975 so that the provisions of Article 39(d) of the Constitution of India might be implemented in the year which was being celebrated as the International Women's Year. The said Ordinance provided for payment of equal remuneration to men and women workers for the same work or the work of a similar nature and for the prevention of discrimination on account of sex. The Ordinance also ensured that there was no dis- crimination against recruitment of women and provided for the setting up of Advisory Committees to promote employment opportunities for women. The above Ordinance was replaced by the Act Which received the assent of the President on Febru- ary 11, 1976. The long title of the Act states that it is intended to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimina- tion on the ground of sex against women in the matter of employment and for matters connected therewith or incidental thereto. Sub-section (3) of section 1 of the Act provides that the Act shah come into force on such date, not being later than three years from the passing of the Act, as the Central Government may, by notification, appoint and differ- ent dates may be appointed for different establishments or employments. Insofar as the establishment of the petitioner was concerned, the Act came into force with effect from October 8, 1976. The expressions 'commencement of this Act', 'remuneration' and 'same work or work of a similar nature' are defined in section 2(b), (g) and (h) respectively of the Act. Commencement of this Act' means in relation to an establishment or employment, the date on which the Act comes into force in respect of that establishment or employment by the issue of the necessary notification under section 1(3) of the Act. '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 employ- ment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled. 'Same work or work of a similar nature' means work in re- spect of which the skill, effort and responsibility required are the same when performed under similar 669 working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility re- quired of a man and those required of a women are not of practical importance in relation to the terms of conditions of employment. Section 3 of the Act has given overriding effect to the provisions of the Act. It provides that the provisions of the 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 the Act, or in any instrument having effect under any law for the time being in force. The crucial section which arises for consideration in this case is section 4 of the Act. It reads thus:

"4. Duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature--(1) No employer shall pay to any worker, employed by him in an estab- lishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for per- forming the same work or work of a similar nature.
(2) No employer shall, for the purpose of complying with the provisions of sub-section (1), reduce the rate of remunera- tion of any worker.
(3) 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:
Provided that nothing in this sub- section 'shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of this Act."
670
Section 5 of the Act prohibits any kind of discrimina-

tion being made while recruiting men and women workers. Section 6 of the Act provides for the appointment of an Advisory Committee to advise the appropriate Government with regard to the extent to which women may be employed in such establishments or the employments as the Central Government may, by notification, specify in that behalf. Section 7 of the Act provides for the appointment of the adjudicating Authority whenever a dispute arises between the management and the employees as also an Appellate Authority which can hear an appeal against the decision of the Authority. Sec- tion 16 of the Act provides that where the appropriate Government is, on a consideration of all the circumstances of the case satisfied that the differences in regard to the remuneration or a particular species of remuneration of men and women workers in any establishment or employment is based on a factor other than sex, it may, by notification make a declaration to that effect and any act of the employ- er attributable to such a difference shall not be deemed to be a contravention of any provision of the Act. The point which arises for consideration in this peti- tion is whether the Respondent No. 1 is entitled to any relief within the scope of section 4 of the Act. In order to grant such relief under section 4 of the Act the employee should establish that the remuneration paid by the employer, whether payable in cash or kind, is being paid at rates less favourable than those at which remuneration is paid by him to the employees of the opposite sex in such establishment for performing the same work or work of a similar nature. Whether a particular work is same or similar in nature as another work can be determined on three considerations. In deciding whether the work is the same or broadly similar, the Authority should take a broad view; next, in ascertain- ing 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 details, 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. Where however both men and women work at inconvenient times, there is no requirement that all those who work e.g. at night shall be paid the same basic rate as all those who work normal day shifts. Thus a woman who works days cannot claim equality with a man on higher basic rate for working nights if in fact there are women working nights on that rate too, and the applicant herself would be enti- tled to that rate if she changed shifts. (See I.T. Smith and J.C. Wood: Industrial Law, 2nd Edition, (Butterworths) 671 page 308). We do not suggest that there can be no discrimi- nation at all between men and women in the matter of remu- neration. There are some kinds of work which women may not be able to undertake. Men do work like loading, unloading, carrying and lifting heavier things which women cannot do. In such cases there cannot be any discrimination on the ground of sex. Discrimination arises only where men and women doing the same or similar kind of work are paid difer- ently. Wherever sex discrimination is allegeo, there should be a proper job evaluation before any further enquiry is made. If the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non-discriminatory (i.e. those criteria which Iook directly to the nature and extent of the demands made by the job) as distinct from criteria which set out differ- ent values for men and women on the same demand and it is found that a man and a woman employed on these two jobs are paid differently, then sex discrimination clearly arises. (See Paul Davis and Mark Freedland: Labour Law, Text and Material 1979 page 297).

It has been found by the Authority, the Appellate Au- thority and by the learned Single Judge that the Confiden- tial Lady Stenographers were doing the same work or work of a similar nature as defined by section 2(h) of the Act which the male Stenographers in the establishment of the petition- er were performing. The Respondent No. 1 was working as a lady Stenographer. The lady Stenographers working in the establishment of the petitioner were called 'Confidential Lady Stenographers' since they were attached to the senior Executives working in the petitioner-company. In addition to the work of Stenographers they were also attending to the persons who came to interview the senior Executives and to the work of filing, correspondence etc. There was practical- ly no difference between the work which the Confidential Lady Stenographers were doing and the work of their male counter-parts. It was suggested that the lady Stenographers were found by the management to be proper persons to be Confidential Stenographers. It may be so. It, however, does not mean that they should suffer for their loyalty, integri- ty, sincerity and punctuality and receive less pay for possessing those qualities when they are doing the same kind of work as men. In the circumstances of the case, applying the true tests which are discussed above to the facts of this case, we do not find any ground to take a view differ- ent from the view taken by the learned Single judge, the Appellate Authority and the Authority who have dealt with this case.

The next question is whether the lady Stenographers were being 672 paid the remuneration, which included basic pay, and any additional emoluments whatsoever payable either in cash or in kind, less than what was being paid to their male coun- ter-parts who had put in service for the same number of years. It is true that there was a settlement arrived at between the employees' Union and the management in the year 1975 and it had been arrived at after negotiations between the parties to the settlement. Prior to the settlement the Respondent No. 1 was getting as basic salary of Rs. 560 in the pay scale of Rs.150-15-180-20-340-25-440-28-496-32-560 in addition to a fixed D.A. of Rs.525 per month. Thus the Respondent No. 1 was getting a remuneration to the tune of Rs.1085 per month. Under the settlement her basic salary was reduced to Rs.245 from Rs.560 and the D.A. was increased to Rs.935.25 paise. In all she was getting a remuneration of Rs.1180.25 paise per month under the settlement, thus in- creasing her gross salary by Rs.95.25 paise. On the other hand, her male counter-part who had put in service for an equal number of years was being paid Rs.585 by way of basic pay and Rs.1325.45 paise by way of dearness allowance under the settlement. In all he was being paid Rs.1910.45 paise. Thus it is seen that the Respondent No. 1 was getting every month Rs.730.20 paise less than the remuneration which her male counter-part was getting. The question for considera- tion is whether the management was justified in paying such remuneration to her. It was urged on behalf of the manage- ment that the difference between the remuneration of the male Stenographers and the remuneration of the Confidential Lady Stenographers was on account of the settlement which was arrived at after proper negotiation and that the Court must have regard to it. Section 3 of the Act clearly pro- vides that the provisions of the 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 com- mencement of the Act, or in any instrument having effect under any law for the time being in force. The petitioner cannot, therefore, rely upon the settlement arrived at between the parties. The settlement has to yield in favour of the provisions of the Act. It was next contended on behalf of the petitioner that the discrimination between the male Stenographers and the Confidential Lady Stenographers had not been brought about only on the ground of sex. We find it difficult to agree with this contention. It may be that the management was not employing any male as a Confi- dential Stenographers attached to the senior Executives in its establishment and that there was no transfer of Confi- dential Lady Stenographers to the general pool of Stenogra- phers where males were working. It, however, ought not to make any difference for purposes of the application of the Act when once it is es-

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tablished that the lady Stenographers were doing practically the same kind of work which the male Stenographers were discharging. The employer is bound to pay the same remunera- tion to both of them irrespective of the place where they were working unless it is shown that the women are not fit to do the work of the male Stenographers. Nor can the man- agement deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establish- ment. In the present case the place where the employees worked is irrelevant for purposes of section 4 of the Act. We shall now proceed to consider the effect of sub- section (3) of section 4 of the Act on which much emphasis was placed by the management. It provides that where in an establishment or an employment the rates of remuneration payable before the commencement of the 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 remunera- tion shall be payable, on and from such commencement, to such men and women workers. The meaning of sub-section (3) to section 4 of the Act is that if for doing the same or similar work there are more than two or three rates of remuneration, the higher or the highest of such rates shall be the rate at which the remuneration shall be payable from the date of the commencement of the Act to men and women workers doing the same or similar kind of work in the estab- lishment. The proviso provides that nothing in the sub- section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of the Act. The salient features of the settle- ment of 1975 are as follows:-

"I. Clerical & Subordinate Staff: Pay scales remain unaltered. However they will be granted increments as under:-
(a) All staff who have completed one or more than one year's service as on 1.5.75 will get one increment in their respective scales with effect from 1.5.75.
(b) All staff who have reached the maximum of their 674 respective pay scales including those in 'E' grade who have completed 35 years of service will receive one increment as per the last increment of the scale, with effect from 1.5.75.
(c) In addition to this, those who retire during the course of the Agreement, i.e., during the period 1.5.75 to 30.4.78 will receive one increment in the year of their retirement.
II. Lady Stenographers:
Their pay scales will be brought on par with their male counterparts in the fol- lowing manner:
(a) All those who have completed 7 years of service or less on 1.5.75 will be fitted to the starting figures of 'B' grade clerical scale.
(b) All those with more than 7 years of serv- ice but less than 10 years of service as on 1.5.75 will be fitted to that stage of 'B' grade which is one step higher than the start- ing figure.
(c) All those with more than 10 years of service as on 1.5.75 will be first fitted to the starting salary of grade 'A' and then given one increment in the scale for every 5 years of service or a fraction thereof, over and above 10 years of service.
(d) The revisions will come into effect with effect from 1.5.75.
(e) While effecting fitments as explained in
(a), (b) and (c) above, if the revised gross emoluments happen to be less than the existing gross salary, or, if the enhancement of gross emoluments as a result of the revision works out to less than Rs.50, then, in such individ- ual cases, the basic salaries in the respec- tive scales will be stepped up in such a way, as to ensure a minimum of Rs.50 increase in gross salary.
(f) The figures for comparison will be the gross salaries for the month of May 1975.
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(g) All other terms and conditions as applica- ble to clerical and subordinate staff will also apply to lady stenographers with effect from 1.5.75 ................................

It is not disputed that the male Stenographers came under the category of 'Clerical & Subordinate Staff'. It is also not disputed that the terms regarding the fitment of lady Stenographers either in the 'A' grade or 'B' grade, referred to in the settlement is less favourable to them and the same conditions were allowed to remain in force even after the Act came into force. The very fact that the lady Stenographers are treated diferently and as a class differ- ent from the clerical and subordinate staff by paying less remuneration even though they have put in the same length of service and they are placed in the same scale of pay smacks of discrimination. The discrimination thus brought about by the terms of settlement only on account of the sex of the employees cannot be allowed to persist in view of section 4 of the Act. We do not agree that the work of the Confiden- tial lady Stenographers is a sex based one like the work of air hostesses. There is no custom or rule that only ladies can be Confidential Stenographers. If only women are working as Confidential Stenographers it is because the management wants them there. Women are neither specially qualified to be Confidential Stenographers nor disqalified on account of sex to do the work assigned to the male Stenographers. Even if there is a practice in the establishment to appoint women as Confidential Stenographers such practice cannot be relied on to deny them equal remuneration due to them under the Act. The management is liable to pay the same remuneration to all the Stenographers on the same basis irrespective of their sex. The salary and remuneration payable to the lady Stenographers should be computed in accordance with the terms applicable to all the male Stenographers. When so computed, it is not disputed, that the Respondent No. 1 would be entitled to higher remuneration as observed by the Appellate Authority and the learned Single Judge of the High Court. We are of the view that the petitioner cannot derive any benefit from sub-section (3) of section 4 of the Act and the proviso thereto because sub-section (3) would be at- tracted only where in an establishment or an employment rates of remuneration payable before the commencement of the Act for the men workers and for the women workers for the same work or work of similar nature are different. In the instant case after the settlement was arrived at there was a common pay scale both for men and women as can be seen from the settlement, referred to above. The discrimination was, however, brought about while carrying out the fitment of the lady 676 Stenographers in the said scale of pay. The proviso to sub- section (3) to section 4 comes into operation only where sub-section (3) is applicable. Since there are no different scales of pay in the instant case sub-section (3) of section 4 of the Act would not be attracted and consequently, the proviso would not be applicable at all. The proviso cannot travel beyond the provision to which it is a proviso. This is a case to which sub-section (1) to section 4 of the Act applies because the impugned remuneration payable to lady Stenographers has been reduced on account of the inequitable provision regarding fitment in the common scale of pay which is applicable to both men and women Stenographers. Having stated that there was a common pay scale for both male Stenographers and female Stenographers it is not open to the petitioner to contend that the order of the High Court was contrary to the proviso to sub-section (3) to section 4 of the Act. We, therefore, reject the contention that the order passed by the High Court is contrary to the proviso to sub- section (3) of section 4 of the Act.

It is lastly urged on behalf of the petitioner that the enforcement of the Act will be highly prejudicial to the management, since its financial position is not satisfactory and the management is not able to pay equal remuneration to both male Stenographers and female Stenographers. The Act does not permit the management to pay to a section of its employees doing the same work or a work of similar nature lesser pay contrary. to section 4(1) of the Act only because it is not able to pay equal remuneration to all. The ap- plicability of the Act does not depend upon the financial ability of the management to pay equal remuneration as provided by it.

We do not find any ground to interfere with the judgment of the High Court. The petition, therefore, fails and it is dismissed. There shall, however, be no order as to costs.

A.P.J.						    Petition
dismissed.
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