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Judgment
JUDGMENT
P.D. Dinakaran, J.—The issue that arises for my consideration in the above writ petition is whether the petitioners are entitled to maintain an
application under 33-C (2) of the Industrial Disputes Act, 1947, to claim equal pay for their equal work. The undisputed facts of the case are, the
second respondent-management was a member of the Planters Association of Tamil Nadu, briefly known as P.A.T., and they entered into a
settlement, dated December 20, 1980, with the then permanent workers, working under them, u/s 12(3) of the Industrial Disputes Act, before the
Deputy Commissioner of Labour, Coimbatore, as per the industry-wise settlement.
The second respondent-management resigned from the membership of the P.A.T. on April 1, 1981. After the resignation, the second
respondent-management entered into a revised settlement, dated January 2, 1984, with the permanent workers who were parties to the settlement,
dated December 20, 1980, u/s 18(1) of the Industrial Disputes Act and the said settlement, dated January 2, 1984 was in operation from January
1, 1984 to December 31, 1986.
Thereafter, the second respondent-management entered into a fresh settlement, dated April 8, 1987, u/s 12(3) of the Industrial Disputes Act
with the same permanent workers who were parties to the settlements, dated December 20, 1980 and January 2, 1984, referred to above.
The second respondent-management recruited 35 workers on June 12, 1981, i.e., after resigning from P.A.T. and their terms of employment
are covered under an individual settlement, dated June 25, 1981, u/s 18(1) of the Industrial Disputes Act. As per the settlement, dated June 12,
1981, the 35 workers are paid only minimum wages, notified under the Minimum Wages Act, 1948, which is lesser than the wage that are paid to
the permanent workers, who were parties to the settlements, dated December 20, 1980, January 2, 1984 and April 8, 1987.
Aggrieved by the said disparity, the petitioners, namely, 12 workers out of the 35 workers recruited on June 12, 1981, filed a claim petition in
C.P. No. 143 of 1988 before the Labour Court, Coimbatore, the first respondent herein, claiming equal pay for their equal work on par with the
other employees, including their arrears as per the settlement, dated April 8, 1987. Similarly, out of the remaining 23 workers, 6 workers filed C.P.
No. 344 of 1988 and 3 workers filed C.P. No. 518 of 1988, for the same relief before the first respondent herein.
The first respondent, by a common order, dated April 23, 1990 made in C.P. Nos. 143, 344 and 518 of 1988, agreed with the principle of
equal pay for equal work, but still dismissed the claim petitions on the ground that the petitioners have not entered into a settlement for payment on
par with the other permanent workers governed under the settlement, dated April 8, 1987, and that the petitioners have agreed for the minimum
wage; and thus held that the petitioners are not entitled to claim the same wage as per the settlement, dated April 8, 1987, invoking Section 33-
C(2) of the Industrial Disputes Act, as there is no existing right as such, unless and until such rights are, determined by raising an industrial dispute
u/s 10(1) of the Industrial Disputes Act. Hence, the above writ petition.
Before the first respondent-Labour Court, the management relied upon the four documents, namely:
(i) Certificate, dated January 8, 1983, issued by P.A.T. marked as Exhibit Ml;
(ii) Settlement u/s 12(3) of the Industrial Disputes Act, dated December 20, 1980, marked as Exhibit M2;
(iii) List of 35 workmen who were recruited on June 12, 1981, marked as Exhibit M3; and
(iv) An individual settlement, dated June 28, 1981, entered u/s 18(1) of the Industrial Disputes Act, marked as Exhibit M4.
The petitioners have not examined any witness on their behalf. On the other hand, the second respondent-management examined their Manager
Sri Devadoss, as M. W. 1, who, in his cross-examination, had admitted that the petitioners and others are doing similar work, but their pay differ. :
Sri K. Chandru, learned senior counsel appearing for the petitioners, contends that the petitioners are enjitled for the same wage, as in the case
of other workers, who are governed under the settlement dated April 8, 1987, on the principle of equal pay for equal work, and the denial of the
same is discriminatory, attracting the fundamental right vested under Article 14 and contrary to the directive principles of State policy, envisaged
under Article 39(d) of the Constitution of India, requiring the State to direct its policy towards securing that there shall be equal pay for equal work
for both men and women, and claims the benefits of the provisions of the Equal Remuneration Act.
Per contra, Sri Ibrahim Kalifullah, learned counsel for the second respondent-management, contends that the Equal Remuneration Act was
enacted only for the-purpose of removing the discrimination on the basis of sex, and therefore, the reliance placed by the petitioners on the
provisions of the Equal Remuneration Act is inappropriate.
Relying on the decision in State of Madhya Pradesh and Another Vs. Pramod Bhartiya and Others, , Sri Ibrahim Kalifullah further contends
that the object of the Equal Remuneration Act, being to remove the disparity in payment of wages on the basis of sex, the application of Section 3
of the Equal Remuneration Act to the instant case, as claimed by the petitioners, is inappropriate. Argued Sri Ibrahim Kalifullah further that the
original and appellate authorities appointed u/s 7 of the Equal Remuneration Act for the purpose specified therein, alone could hear and decide the
claims and complaints made under the Equal Remuneration Act.
Placing reliance on the decision in State of Andhra Pradesh and Others Vs. G. Sreenivasa Rao and Others, , Harbans Lal and Others Vs.
State of Himachal Pradesh and Others, and Mew Ram Kanojia Vs. All India Institute of Medical Sciences and Others, , Sri Ibrahim Kalifullah
contends that the petitioners, having the benefit of Equal Remuneration Act before the first respondent, are not entitled to raise the same before this
Court for the first time.
Referring to Sections 7, 8, 9, 10, 11, 12 and 15 of the Equal Remuneration Act read with Rules 3 and 4 of the Rules framed thereunder, Sri
Ibrahim Kalifullah contends that the authorities constituted under the Equal Remuneration Act alone could go into the issue of ""equal pay for equal
work"", by following the procedure prescribed under the said Act.
Sri Ibrahim Kalifullah contends that the petitioners are not entitled to the benefit of the provisions of Equal Remuneration Act, as they are
totally different groups by themselves, and their case cannot be compared with that of the permanent employees, who were governed under the
settlement, dated April 8, 1987, and therefore, the disparity in the payment of wages between the petitioners and the workers governed under the
settlement, dated April 8, 1987 is reasonable, and in any event, the right of the petitioners can be determined only by raising an industrial dispute
u/s 10(1) of the Industrial Disputes Act, but not by merely invoking Section 33 of the Act, which is applicable only in the case of existing rights.
I have given a careful consideration to the submissions of both sides.
Section 33-C(2) of the Industrial Disputes Act reads as follows:
Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and
if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject
to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government
within a period not exceeding three months:
Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in
writing, extend such period by such further period as he may think fit.
The Equal Remuneration Act is intended to give effect to Article 39(d) of the Constitution of India ; to provide equal remuneration to men and
women workers for the same work or work of a similar nature and to prevent discrimination on the ground of sex. The provisions of the Equal
Remuneration Act are notified as applicable to the employments in Plantations, to which the provisions of the Plantations Labour Act, 1951, apply.
As per Section 22(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.
As per Section 2(h) ""same work or work of a 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 declares 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.
Section 4 imposes a duty on the employer to pay equal remuneration to men and women workers for the same work or work of a similar
nature.
As per Section 4(1), no employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether
payable in cash or in land, 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 performing the same work or work of a similar nature.
As per Section 4(2), no employer shall, for the purpose of complying with the provisions of Sub-section (1), reduce the rate of remuneration of
any worker. 23. As per Section 4(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.
As per Section 5, the employer shall not make any discrimination against women, while making recruitment or promotions, training or transfer.
Section 7 enables the appropriate Government to appoint an authority for hearing and deciding claims and complaints under the Equal
Remuneration Act. As per Section 7(3), the authorities so appointed shall decide any question that arises as to whether two or more works are of
the same nature or of a similar nature. Section 7(4) of the Act requires the authority appointed to give an opportunity of being heard to the worker
and employer by holding an inquiry before deciding the claim arising out of non-payment of wages at equal rates to men and women workers for
the same work or for work of a similar nature. If any employer or worker is aggrieved by any order made by an authority so appointed he is
entitled to prefer an appeal within thirty days from the date of the order to the appellate authority, as per Section 7(6) of the Act.
Section 10 of the Act provides a penalty, which may be imposed on the employer for the omissions mentioned therein.
As rightly observed in People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, , it is the principle of equality
embodied in Article 14 of the Constitution which finds expression in the provisions of the Equal Remuneration Act, 1976. Assuming Article 39(d)
prescribes only the Directive Principles of the State Policy requiring the State to secure that there is equal pay for equal work for both men and
women workers ; such equal pay for equal work is enforceable as a fundamental right under Article 14 and any denial of such equal payment to
the workmen amounts to breach of Article 14. In other words, the right to seek equal pay for equal work is an independent fundamental right,
irrespective of the benefits provided under the Equal Remuneration Act.
No doubt, as held in M/s. Mackinnon Mackenzie and Co. Ltd. Vs. Audrey D''costa and another, the financial ability of the management to
pay equal remuneration for equal work cannot be a consideration for the applicability of the provisions of the Equal Remuneration Act. The said
principle, in my considered opinion, is equally applicable in a claim for equal pay for equal work in general, not being a case for discrimination on
the basis of sex, as basically, what was complained is a discrimination that violates Article 14. If so, whether the workers can directly claim equal
pay for equal work, invoking Section 33-C(2) of the Industrial Disputes Act,. 1947.
The Apex Court in The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., as followed in Sahu Minerals and Properties Ltd. Vs. Presiding
Officer, Labour Court and Others, considered the scope of Section 33-C(2) elaborately and held as follows:
... The claim u/s 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some
cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination
which has been assigned to the Labour Court by Sub-section (2). As MAXWELL has observed:
''where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary
to its execution. (MAXWELL on INTERPRETATION OF STATUTES page 350).
We must accordingly hold that Section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled
should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.
Incidentally, it may be relevant to add that it would be somewhat odd that under Sub-section (3) the Labour Court should have been authorised to
delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task
assigned to the Labour Court under Sub-section (2). On the other hand, Sub-section (3) becomes intelligible if it is held that what can be assigned
to the Commissioner includes only a part of the assignment of the Labour Court under Sub-section (3):
''.... it is possible that claims not based on settlements, awards or made under the provisions of Chapter V-A may also be competent u/s 33-C(2)
and that may illustrate its wider scope.
In this connection it is relevant to mention that the issue before the Apex Court in Sahu Minerals Ltd. v. Labour Court, (supra), was whether
the Labour Court while exercising the jurisdiction u/s 33-C(2) could consider whether the workers are entitled to retrenchment compensation
payable u/s 25-K or closure compensation payable u/s 25-FFF. It is under such circumstances, the Apex Court has held that the Labour Court,
while disposing the claim petition u/s 33-C(2) can also decide whether the compensation payable to the workers is retrenchment compensation or
closure compensation, as referred to above. But, the said ratio cannot be applicable automatically to the facts of this case, as Sri Ibrahim Kalifullah
contends that the discrimination said to have been made between the petitioners and the workers who are governed under the settlement, dated
April 8, 1987, is reasonable in the sense that they were employed by the management when the management was a member of the P.A.T. which is
governed under the industry-wise settlement, whereas, the petitioners are employed by the management after resigning from the P.A.T. and are
paid the minimum wages as contemplated under the provisions of the Minimum Wages Act.
Similarly, the ratio laid down in Goverdhan Prasad and Others Vs. Management of Indian Oxygen Ltd., that the Labour Court is competent to
compute the monetary benefit in a claim for dearness allowance as per the award, to which the management and the workers were parties, is also
not applicable to the facts of the instant case, as the disparity in the remuneration between the petitioners and the workers governed under the
settlement, dated April 8, 1987 is based on reasonable classification, as referred to above, which is yet to be determined by a competent authority.
Of course, in Municipal Council, Latur v. Shivaji Vaijnath Kamble, 1998 III LLJ 201, the Bombay High Court has held as follows at p. 204:
9......when there is a disclosure of facts that unequal treatment is meted out towards the employees who are doing same duties and responsibilities,
then principle of equal pay for equal work should step in automatically to remove inequalities. It is the duty of any authority, both judicial or quasi-
judicial to obviate the instances of unequal treatment wherever it is noticed. That apart, in the instant case, Labour Court u/s 33-C(2) has power to
go into question of equal pay for equal work, because it is incidental to the computation of respondents'' wages that they are entitled to receive
under law. In other words, the right to claim equal pay for equal work should be treated as an implied term of an engagement or appointment as it
is a principle enshrined under the Constitution of India under Article 14 of the Constitution. Therefore, the right of the respondents in this case is
already there to claim equal wages for equal work. Only thing is that the said right has crystallised into one based on which computation of the
wages in terms of money is called for. The Labour Court is, therefore, wholly justified in crystallising rights of the respondents-sweepers which
were underlying under the terms of appointment.
Placing reliance on the decision in Municipal Council, Latur v. Shivaji Vaijnath Kamble, (supra), Sri K. Chandru, learned senior counsel for the
petitioners, contends that the management ought to have allowed the claim of the petitioners as prayed for, in view of the admission of MW1 that
the petitionersand others are doing similar work, but their pay differ. I am unable to appreciate his contention as the petitioners never pleaded
before the first respondent on the basis of the doctrine of equal pay for equal work. On the other hand, the petitioners, in their petition before the
first respondent, only contended that they are entitled for equal wages as is being paid to the other permanent workers as per the settlement, dated
April 8, 1987 arrived between the trade unions and the management of P.A.T. which is rightly sought to be justified by the management as a
reasonable classification, which is yet to be determined and could be exempted from the purview of Article 14.
The reliance placed on the decision of Sri N.V. bALASUBRAMANIAN, J. in Centre of Indian Trade Unions v. State of Tamil Nadu, 1997
WLR 105, is again inappropriate and not applicable to the facts of the instant case. What was claimed in a proceeding u/s 33-C(2) in Centre of
Indian Trade Union v. State of Tamil Nadu (supra) was admittedly, the minimum wages which is notified for the purpose of the said Act. As there
was no dispute about such minimum wage it is held that the labour Court, while exercising the powers u/s 33-C(2) can consider the claims of
minimum wage on merits and pass an appropriate award to that effect.
The decision in Director-General, (Works) v. Ashok Kumar, 1998 S.C.C. 939 also cannot improve the case of the petitioners, because the
appellants therein had been admittedly paying the regular scale of pay, which was adjudicated in a proceeding u/s 33-C(2).
In the light of the above decisions, it is clear that the Labour Court is competent to pass appropriate orders in a claim petition either by taking
note of the admitted or existing rights of the workers or by holding an enquiry into the matter incidental thereto, but not a disputed right, much less
a claim which is never pleaded before it. On the other hand, it is well settled in law, as laid down in Randhir Singh Vs. Union of India (UOI) and
Others, that the difference of salary for persons belonging to different classes cannot be ignored and the principle of equal pay for equal work is
subject to the reasonable classification among workers of the same category. Further, as held in State of Andhra Pradesh and Ors. v. G. Srinivasa
Rao and Ors., (supra) the reasonable classification based on intelligible criteria is permissible. Even though the right of equal pay for equal work is
protected under Article 14 of the Constitution of India, the same cannot be enforced if the discrimination is based on the reasonable classification,
as held in Harbans Lal and Ors. v. State of Himachal Pradesh and Ors., (supra)
.
The equal pay for equal work is not an abstract doctrine, as held in Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors.,
(supra). The doctrine of equal pay for equal work is applicable only where the employees are equal in every respect, but not when they are denied
''equality based on reasonable classification in as much as equality must be among the equals and unequals cannot claim equality. In precise, as held
in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, the claim which is incidentally required to be computed
and sought to be awarded u/s 33-C(2) must be based on an existing right, but not disputed.
In the instant case, the permanent employees, who were covered under the settlement, dated April 8, 1987, were recruited when the second
respondent management was a member in P.A.T. whereas the petitioners were recruited only in 1986 after the management resigned from the
P.A.T. The petitioners are paid more than the minimum wage notified under the Minimum Wages Act; and they never pleaded ""equal pay for equal
work"" before the first respondent. Therefore, such a claim of equal pay for equal work cannot be raised for the first time before this Court, unless
their right is determined by a competent authority in an appropriate proceedings, even if the petitioners are entitled for equal pay for equal work
under Article 14 of the Constitution of India. Once the disparity in payment between the petitioners and the workers governed under the
settlement, dated April 8, 1987, is claimed to be based on reasonable classification by the management, the petitioners cannot claim equal pay as
an existing right; and the same cannot be awarded automatically by the first respondent without such a right of equal pay for equal work being
determined by raising an industrial dispute u/s 10(1) of the Industrial Disputes Act, as rightly held in the impugned proceedings. However, taking
note of the fact that the Equal Remuneration Act, 1976, was enacted remuneration to men and women workers for the same work or work of a
similar nature and to prevent discrimination on the ground of sex to give effect to Article 39(d) of the Constitution of India in order to secure that
there is equal pay for equal work for both men and women workers, it cannot be disputed that the said salient principle is intended to enforce
Article 14 in spirit and substance. Hence, I do not find any inconvenience or repugnancy in applying the provision of Equal Remuneration Act to
the case of the petitioners, particularly when some of the petitioners are admittedly women workers. Therefore I am unable to accept the
contention of Sri Ibrahim Kalifullah that the petitioners are not entitled to claim the benefit of the provisions of the Equal Remuneration Act.
Finding no merits in the above writ petition the same is dismissed without costs, but without prejudice to the rights of the petitioners to raise an
industrial dispute either u/s 10(1) of the Industrial Disputes Act, or u/s 7 of the Equal Remuneration Act, if they are so advised. The parties are at
liberty to raise their respective additional pleas before the authorities concerned under the Equal Remuneration Act.