Special Leave Petition Civil No 1265 of 1987
From the Judgment and Order dated 24111986 of the Bombay High Court in Appeal No 1042 of 1986
JP 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 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 Rs719667 paise which was the difference between the basic salary of the Respondent No 1 and the basic salary of her male counter parts from 269
1975 to 3061977 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 EEC Treaty article 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 EEC 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
52 paras 2011
to 2018
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 EEC 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 vs Smith 1981 QB180
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 39d 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 2b 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 13 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 eg 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 IT Smith and JC 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 ie 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 2h 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 Rs150 15 180 20 340 25 440 28 496 32 560 in addition to a fixed DA of Rs525 per month
Thus the Respondent No 1 was getting a remuneration to the tune of Rs1085 per month
Under the settlement her basic salary was reduced to Rs245 from Rs560 and the DA was increased to Rs93525 paise
In all she was getting a remuneration of Rs118025 paise per month under the settlement thus in creasing her gross salary by Rs9525 paise
On the other hand her male counter part who had put in service for an equal number of years was being paid Rs585 by way of basic pay and Rs132545 paise by way of dearness allowance under the settlement
In all he was being paid Rs191045 paise
Thus it is seen that the Respondent No 1 was getting every month Rs73020 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 673 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 1575 will get one increment in their respective scales with effect from 1575
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 1575
c In addition to this those who retire during the course of the Agreement ie during the period 1575 to 30478 will receive one increment in the year of their retirement
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 1575 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 1575 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 1575 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 1575
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 Rs50 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 Rs50 increase in gross salary
f The figures for comparison will be the gross salaries for the month of May 1975
765 g All other terms and conditions as applica ble to clerical and subordinate staff will also apply to lady stenographers with effect from 1575      
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 41 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
APJ Petition dismissed


Summary:
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 section
1 of section 7 of the 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 section
3 of section 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 s4 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 section 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 2691975 to 3061977 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 article 39d of the Constitution of India and Equal Remuneration Convention 1951 adopted by International Labour Organisation the 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 section 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 eg 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 IT Smith and JC 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 ie 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 section 2h 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
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 Rs73020 paise less than the remu neration which her male counterpart was getting
In view of the provisions of section 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 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 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 section 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 section
3 of section 4 of the Act and the proviso thereto because sub section
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 section
3 to section 4 comes into opera tion 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 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 section 41 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