INDEX
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THE
EQUAL REMUNERATION ACT, 1976
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Section
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Description
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CHAPTER I : PRELIMINARY
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Introduction
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1.
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Short title,
extent and commencement
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2.
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Definitions
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3.
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Act to have
over riding effect
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CHAPTER II: PAYMENT OF REMUNERATION AT EQUAL RATES TO MEN AND
WOMEN WORKERS AND OTHER MATTERS
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4.
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Duty of
employer to pay equal remuneration to men and women workers for same work or
work of a similar nature
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5.
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No
discrimination to be made while recruiting men and women workers
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6.
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Advisory
Committee
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7.
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Power of
appropriate Government to appoint authorities for hearing and deciding claims
and complaints
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CHAPTER III : MISCELLANEOUS
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8.
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Duty of
employers to maintain registers
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9.
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Inspectors
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10.
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Penalties
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11.
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Offences by
companies
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12.
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Cognizance and
trial of offences
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13.
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Power to make
rules
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14.
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Power of
Central Government to give directions
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15.
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Act not to
apply in certain special cases
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16.
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Power to make
declaration
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17.
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Power to
remove difficulties
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18.
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Repeal and
saving
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THE EQUAL REMUNERATION ACT, 1976
INTRODUCTION
In Part IV relating to the Directive Principles of State Policy article 39 of the Constitution envisages that the State shall direct its policy, among other things, towards securing that there is equal pay for equal work for both men and women. In order to give effect to this provision, in the year which was being celebrated as the International Women’s Year, President of India promulgated the Equal Remuneration Ordinance, 1975 on 26th September, 1975 to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment. To replace the said Ordinance of 1975 the Equal Remuneration Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASON
Article 39 of the Constitution envisages
that the State shall direct its policy among other things, towards securing
that there is equal pay for equal work for both men and women. To give effect
to this constitutional provision, the President promulgated on the 26th
September, 1975, the Equal Remuneration Ordinance, 1975 so that the provisions
of article 39 of the Constitution may be implemented in the year which is being
celebrated as the International Women’s Year. The Ordinance provides for
payment of equal remuneration to men and women workers for the same work or
work of a similar nature and for the prevention of discrimination on grounds of
sex.
2.
The Ordinance also ensures that there
will be no discrimination against recruitment of women and provides for the
setting up of Advisory Committees to promote employment opportunities for
women.
3.
This Bill seeks to replace the
Ordinance.
ACT 25 OF 1976
The Equal Remuneration Bill was passed by
both the Houses of Parliament and it received the assent of the President on
llth February, 1976. It came on the Statute Book as THE EQUAL REMUNERATION ACT,
1976 (25 of 1976).
AMENDING ACT
The Equal Remuneration (Amendment) Act,
1987 (49 of 1987).
THE EQUAL REMUNERATION ACT, 1976
(25 of 1976)
[11th February, 1976]
An Act to provide for the payment of
equal remuneration to men and women workers and for the prevention of
discrimination, on the ground of sex, against women in the matter of employment
and for matters connected therewith or incidental thereto be it
enacted by Parliament in the Twenty-seventh year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1.
Short title, extent and commencement.—
(1) This Act may be called the Equal Remuneration
Act, 1976.
(2)
It extends to the whole of India
(3)
It shall come into force on such date*, not being later than three years from
the passing of this Act, as the Central Government may, by notification,
appoint and different dates may be appointed for different establishments or
employments.
2.
Definitions.—In
this Act, unless the context otherwise requires.—
(a)
“appropriate
Government”
means.—
(i) in relation to any employment carried on by
or under the authority of the Central
Government or a railway administration, or in relation to a banking company, a mine, oilfield or
major port or any corporation
established by or under a Central Act, the Central Government, and
(ii) in relation to any other employment, the State
Government;
(b) “commencement
of this Act” means, in relation to an
establishment or employment, the date on which this Act comes into force in
respect of that establishment or employment;
(c) “employer”
has the meaning assigned to it in clause (f) of section 2 of the Payment of
Gratuity Act, 1972 (39 of 1972);
(d) “man” and
“woman” means male and female human beings,
respectively, of any age;
(e) “notification”
means a notification published in the Official Gazette;
(f)
“prescribed”
means prescribed by rules made under this Act;
(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;
(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;
(i)
“worker”
means a worker in any establishment or employment in respect of which this Act
has come into force;
(j)
words and expressions used in this Act and not defined but defined in the
Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings
respectively assigned to them in that Act.
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(i) The
words “under the authority of” in the definition of “appropriate Government” in
section 2(a) means pursuant to the authority. If the firm and its partners were
independent contractors, their employment cannot be said to be carried on by or
under the authority of Central Government and sanction of Central Government
would be invalid and incompetent; K.E. Koshy v. The State, (1987) 71 FJR 548 (Kant).
(ii) In section 2(h) the expression “same work or
work of similar nature” lays stress upon the similarity of skill, effort and
responsibility when performed under similar working conditions. The equality of
work may vary from institution to institution. It is a matter of proof and not
of assumption; State of
Madhya Pradesh v. Pramod Bhartiya, 1992 (65)
FLR 1991 (SC).
(iii) The question of equal work depends on various
factors like responsibility, skill, effort and condition of work; Ashok Kumar Garg v.
State of Rajasthan
(iv)
A broad approach should be taken in deciding whether the work is the same or of
a similar nature. In doing so the duties actually and generally performed by
men and women and not those theoretically possible, should be looked at; Mackinnon Mackenzie and Co. v,
Audrey D’ Costa, (1987) 2 SCC
469.
3.
Act to have over riding effect.—The
provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law or in the terms of any award, agreement or
contract of service, whether made before or after the commencement of this Act,
or in any instrument having effect under any law for the time being in force.
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A
settlement arrived at between the management and the employees cannot be a
valid ground for effecting discrimination in payment of remuneration between
male and female employees performing the same work or work of a similar nature;
Mackinnon Mackenzie and Co.
v.
Audrey D’ Costa, (1987) 2 SCC 469.
CHAPTER
II
PAYMENT OF
REMUNERATION AT EQUAL RATES TO MEN AND WOMEN WORKERS AND OTHER MATTERS
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 establishment 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 performing 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
remuneration 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.
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(i) The
principle of equal pay for equal work is not applicable in professional
services; C. Girijambal v.
Government of Andhra Pradesh, (1981)
2 SCC 155.
(ii) An employer cannot claim exemption on the
ground of financial incapability from the Equal Remuneration Act, 1976; Mackinnan Mackenzie and Co. v.
Audrey D’ Costa, (1987) 2 SCC 469.
(iii) The proviso to sub-section (3) of section 4
operates only where sub-section (3) is applicable and not elsewhere; Mackinnan Mackenzie and Co, v. Audrey D’ Costa, (1987)
2 SCC 469.
(iv) The benefit conferred on females under the Act
is not absolute and unconditional. Section 16 clearly authorises restrictions
regarding remuneration to be paid by the employer if a declaration under it is
made by the appropriate Government; Air India
5.
No discrimination
to be made while recruiting men and women workers.—On and from the
commencement of this Act, no employer shall while making recruitment for the
same work or work of a similar nature, [1][or
in any condition of service subsequent to recruitment such as promotions,
training or transfer,] make any discrimination against women except where the
employment of women in such work is prohibited or restricted by or under any
law for the time being in force:
Provided
that the provisions of this section shall not affect any priority or
reservation for Scheduled Castes or Scheduled Tribes, ex-servicemen, retrenched
employees or any other class or category of persons in the matter of
recruitment to the posts in an establishment or employment.
6. Advisory
Committee.—
(1) For the
purpose of providing increasing employment opportunities for women, the
appropriate Government shall constitute one or more Advisory Committees to
advise it with regard to the extent to which women may be employed in such
establishments or employments as the Central Government may, by notification,
specify in this behalf.
(2)
Every Advisory Committee shall consist of not less than ten persons, to be
nominated by the appropriate Government, of which one-half shall be women.
(3)
In tendering its advice, the Advisory Committee shall have regard to the number
of women employed in the concerned establishment or employment, the nature of
work, hoirs of work, suitability of women for employment, as the case may be,
the need for providing increasing employment opportunities for women, including
part-time employment, and such other relevant factors as the Committee may
think fit.
(4)
The Advisory Committee shall regulate its own procedure.
(5)
The appropriate Government may, after considering the advice tendered to it by
the Advisory Committee and after giving to the persons concerned in the
establishment or employment an opportunity to make representations, issue such
directions in respect of employment of women workers, as the appropriate
Government may think fit.
7.
Power of appropriate Government to appoint authorities for hearing and deciding
claims and complaints.—
(1) The
appropriate Government may, by notification, appoint such officers, not below
the rank of a Labour Officer, as it thinks fit to be the authorities for the
purpose of hearing and deciding—
(a)
Complaints with regard to the contravention of any provision of this Act;
(b)
claims arising out of non-payment of wages at equal rates to men and women workers for the same work or work of a
similar nature, and may, by the same or
subsequent notification, define the local limits within which each such
authority shall exercise its jurisdiction.
(2) Every complaint or claim referred to in
sub-section (1) shall be made in such manner as may be prescribed.
(3) If any question arises as to whether two or
more works are of the same nature or of a similar nature, it shall be decided
by the authority appointed under sub-section (1).
(4) Where a complaint or claim is made to the
authority appointed under sub-section (1), it may, after giving the applicant
and the employer an opportunity of being heard, and after such inquiry as it
may consider necessary, direct,—
(i) in the
case of a claim arising out of non-payment of wages at equal rates to men and
women workers for the same work or work of a similar nature, that payment he
made to the worker of the amount by which the wages payable to him exceed the
amount actually paid;
(ii)
in the case of complaint, that adequate
steps be taken by the employer so as to ensure that there is no contravention
of any provision of this Act.
(5) Every
authority appointed under sub-section (1) shall have all the powers of a Civil
Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of
taking evidence and of enforcing the attendance of witnesses and compelling the
production of documents, and every such authority shall be deemed to be a Civil
Court for all the purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6)
Any employer or worker aggrieved by any order made by an authority appointed
under sub-section (1), on a complaint or claim may, within thirty days from the
date of the order, prefer an appeal to such authority as the appropriate
Government may, by notification, specify in this behalf, and that authority
may, after hearing the appeal, confirm, modify or reverse the order appealed
against and no further appeal shall lie against the order made by such
authority.
(7)
The authority referred to in sub-section (6) may, if it is satisfied that the
appellant was prevented by sufficient cause from preferring the appeal within
the period specified in sub-section (6), allow the appeal to be preferred
within a further period of thirty days but not thereafter.
(8)
The provisions of sub-section (1) of section 33C of the Industrial Disputes
Act, 1947 (14 of 1947), shall apply for the recovery of monies due from an
employer arising out of the decision of an authority appointed under this
section.
CHAPTER
III
MISCELLANEOUS
8.
Duty of employers to maintain
registers.—On and from the commencement
of this Act, every employer shall maintain such registers and other documents
in relation to the workers employed by him as may be prescribed.
9.
Inspectors.—
(1) The
appropriate Government may, by notification, appoint such persons as it may
think fit to be Inspectors for the purpose of making an investigation as to
whether the provisions of this Act, or the rules made thereunder, are being complied
with by employers, and may define the local limits within which an Inspector
may make such investigation.
(2)
Every Inspector shall be deemed to be a public servant within the meaning of
section 21 of the Indian Penal Code (45 of 1860).
(3)
An Inspector may, at any place within the local limits of his jurisdiction,—
(a) enter, at any reasonable time, with such
assistance as he thinks fit, any building, factory, premises or vessel;
(b) require any employer to produce any register,
muster-roll or other documents relating to the employment of workers, and
examine such documents;
(c) take, on the spot or otherwise, the evidence
of any person for the purpose of ascertaining whether the provisions of this
Act are being, or have been, complied with;
(d) examine the employer, his agent or servant or
any other person
found in charge of the establishment or any premises connected therewith or any person whom the Inspector has reasonable cause to believe to be, or to have been a worker in the establishment;
found in charge of the establishment or any premises connected therewith or any person whom the Inspector has reasonable cause to believe to be, or to have been a worker in the establishment;
(e) make
copies, or take extracts from, any register or other document maintained in
relation to the establishment under this Act.
(4) Any
person required by an Inspector to produce any register or other document or to
give any information shall comply with such requisition.
10. Penalties.—
(1) If
after the commencement of this Act, any employer, being required by or under
the Act, so to do—
(a) omits or fails to maintain any register or
other document in relation to workers employed by him, or
(b) omits or fails to produce any register,
muster-roll or other document relating to the employment of workers, or
(c) omits or refuses to give any evidence or
prevents his agent, servant, or any other person in charge of the
establishment, or any worker, from giving evidence, or
(d) omits or refuses to give any information, he
shall be punishable [2][with
simple imprisonment for a term which may extend to one month or with fine which
may extend to ten thousand rupees or with both.]
(2)
If, after the commencement of this Act,
any employer—
(a)
makes any recruitment in contravention of
the provisions of this Act, or
(b) makes any payment of remuneration at unequal
rates to men and women workers, for the same work or work of a similar nature,
or
(c) makes any discrimination between men and women
workers in contravention of the provisions of this Act, or
(d)
omits or fails to carry out any direction
made by the appropriate Government under sub-section (5) of section 6, he shall
be punishable [3][with
fine which shall not be less than ten thousand rupees but which may extend to
twenty thousand rupees or with imprisonment for a term which shall be not less
than three months but which may extend to one year or with both for the first
offence, and with imprisonment which may extend to two years for the second and
subsequent offences.]
(3) If any
person being required so to do, omits or refuses to produce to an Inspector any
register or other document or to give any information, he shall be punishable
with fine which may extend to five hundred rupees.
11. Offences by companies.—
(1) Where
an offence under this Act has been committed by a company, every person who, at
the time the offence was committed, was in charge of, and was responsible to,
the company for the conduct of the business of the company, as well as the
company, shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly:
Provided
that nothing contained in this sub-section shall render any such person liable
to any punishment, if he proves that the offence was committed without his
knowledge or that he had exercised all due diligence to prevent the commission
of such offence.
(2)
Notwithstanding anything contained in sub-section (1), where any offence under
this Act has been committed by a company and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to, any
neglect on the part of any director, manager, secretary or other officer of the
company, such director, manager, secretary or, other officer shall be deemed to
be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation.—For
the purposes of this section,—
(a)
“company” means any body corporate and includes a firm or other association of
individuals; and
(b)
“director”, in relation to a firm, means a partner in the firm.
[4]
[12. Cognizance and trial of offences.—
(1) No
court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence punishable under this Act.
(2)
No court shall take cognizance of an offence punishable under this Act except
upon—
(a)
its own knowledge or upon a complaint made by the appropriate Government or an
officer authorised by it in this behalf, or
(b)
a complaint made by the person aggrieved by the offence or by any recognised
welfare institution or organisation.
Explanation.—for
the purposes of this sub-section “recognised welfare institution or
organisation” means a social welfare institution or organisation recognised in
this behalf by the Central or State Government.]
13.
Power to make rules.—
(1) The
Central Government may, by notification, make rules for carrying out the
provisions of this Act.
(2)
In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:—
(a)
the manner in which complaint or claim referred to in sub-section (1) of
section 7 shall be made;
(b)
registers and other documents which an employer is required under section 8 to
maintain in relation to the workers employed by him;
(c)
any other matter which is required to be, or may be, prescribed.
(3)
Every rule made by the Central Government under this Act shall be laid, as soon
as may be after it is made, before each House of Parliament, while it is in
session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
14. Power of Central Government to give
directions.—The Central Government may
give directions to a State Government as to the carrying into execution of this
Act in the State.
(a)
to cases affecting the terms and conditions of a woman’s employment in
complying with the requirements of any law giving special treatment to women,
or
(b)
to any special treatment accorded to women in connection with—
(i) the birth or expected birth of a child, or
(ii) the terms and conditions relating to
retirement, marriage or death or to any provision made in connection with the
retirement, marriage or death.]
16. Power to make declaration.—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 employer
attributable to such a difference shall not be deemed to be a contravention of
any provision of this Act.
17. Power to remove difficulties.—If
any difficulty arises in giving effect to the provisions of this Act, the
Central Government may, by notification, make any order, not inconsistent with
the provisions of this Act, which appears to it to be necessary for the purpose
of removing the difficulty:
Provided
that every such order shall, as soon as may be after it is made, be laid before
each House of Parliament.
18. Repeal and saving.—
(1) The
Equal Remuneration Ordinance, 1975 is hereby repealed.
(2)
Notwithstanding such repeal, anything done or any action taken under the
Ordinance so repealed (including any notification, nomination, appointment,
order or direction made thereunder) shall be deemed to have been done or taken
under the corresponding provisions of this Act as if this Act were in force
when such thing was done or action was taken.
* 8-3-1976, vide S.O. 175(E), dated 6th March,
1976.
[1] Ins. by Act 49
of 19S7, sec. 2 (w.e.f. 16-12-1987).
[2] Subs, by Act 49
of 1987, sec. 3, for “with fine which may extend to one thousand rupees”
(w.e.f. 16-12-1987).
[3]
Subs, by Act 49 of 1987, sec. 3, for
“with fine which may extend to five thousand rupees” (w.e.f. 16-12-1987).
[5] Subs, by Act 49 of 1987, sec. 5, for
section 15 (w.e.f. 16-12-1987).
Comments