Equal Pay for Equal Work in India
- Temporary employees performing similar
duties and functions as discharged by permanent employees entitled to draw
wages at par with permanent employees in the government sector.
- Mere difference in nomenclature would
not dis-entitle an employee from being paid the same wages as permanent
employees.
- Any act of paying less wages as compared
to others similarly situated, constitutes an act of exploitative
enslavement.
The constitutional principle of 'equal
pay for equal work' has been upheld by the Supreme Court of India
("SC") with respect to temporary employees' vis-à-vis permanent
employees in the government sector. In State of Punjab and Ors. v. Jagjit
Singh and ors.(Decided on October 26, 2016), the SC
has ruled that temporary employees performing similar duties and functions as
discharged by permanent employees are entitled to draw wages at par with
similarly placed permanent employees. The principle must be applied in
situations where the same work is being performed, irrespective of the class of
employees.
Facts:
The instant case arose out of
conflicting judgments of the Punjab & Haryana High Court ("P&H High
Court"). The P&H High Court has analysed the question as to
whether temporary employees (daily-wage employees, ad-hoc
appointees, employees appointed on casual basis, contractual employees and the
like) are entitled to the same wages as that of permanent employees, if
they discharge similar duties and responsibilities as that of permanent
employees.
The P&H High Court, in State
of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003,
decided on 7.1.2009), took the view that temporary employees would not be
entitled to the minimum of the pay-scale as was being paid to similarly placed
permanent employees.
However, the P&H High Court
in State of Punjab & Ors. v. Rajinder Kumar (LPA
no. 1024 of 2009, decided on 30.8.2010) took a contrary view and
held that temporary employees would be entitled to minimum of the
pay-scale,alongwith perm issible allowances (as revised
from time to time), which were being given to similarly placed permanent
employees.
Given the conflicting views, the
matter was referred to a full judge bench of the P&H High Court in Avtar
Singh v. State of Punjab & Ors (CWP no. 14796 of 2003). The
full judge bench of the P&H High Court, while adjudicating upon the issue,
concluded that temporary employees are not entitled to the minimum of the
regular pay-scale, merely on account of the reason that the activities carried
out by daily wagers and permanent employees are similar. However, this rule was
subjected to two exceptions, wherein temporary employees would be entitled to
wages at par with permanent employees:
- If the temporary employee has been
appointed in a regular sanctioned post after undergoing a selection
process based on fairness and equality of opportunity to all other
eligible candidates
- If the temporary employee has been
appointed in a post which is not a regular sanctioned post, however, their
services have been availed continuously, with notional breaks, for a
sufficient long period.
The instant case before the SC arises
out of a challenge raised against all the three aforementioned judgments.
Judgment:
Analyzing in length the principles
laid down by various courts, the SC observed that the issue at hand
necessitated a bird's eye view on the underlying ingredients which govern the
principle of 'equal pay for equal work'.
The principle has been extensively
deliberated in a catena of decisions. In order to make the determination, the
SC examined
- The situations where the principle was
extended to employees engaged on permanent basis and thereafter
- The situations in which the principle
was extended/declined to different categories of temporary employees.
Accordingly, various principles have been discerned and distinguished by
the SC. Analyzing claims by temporary employees under the principle, the
SC observed:
- Not
paying the same wages, despite the work being the same, is
violation of Article 14 of the Constitution of India (Article
14 of the Constitution guarantees the right to equality to every citizen
of India and embodies the general principles of equality before law and
prohibits unreasonable discrimination between persons.) and amounts
to exploitation in a welfare state committed to a socialist
pattern of society (Dhirendra Chamoli v. State of U.P; (1986)
1 SCC 637)
- The
right of equal wages claimed by temporary employees emerges, inter
alia, from Article 39 which deals with certain principles of
policies to be followed by the state. It specifically requires the state
to strive for securing equal pay for equal work of both men and
women. of the Constitution ( D.S. Nakara v. Union of India;
(1983) 1 SCC 304; Surinder Singh v. Engineer-in-Chief, CPWD; (1986) 1 SCC
639).
- The
claim for equal wages would be sustainable where an employee is required
to discharge similar duties and responsibilities as
permanent employees and the concerned employee possesses the qualifications
prescribed for the particular post.
- In a
claim for equal wages, the duration for which an employee
remains or has remained engaged, the manner of
selection/appointment etc. would be inconsequential, insofar as the
applicability of the principle is concerned (Bhagwan Dass v. State of
Haryana; (1987) 4 SCC 634)
- Based
on the principle flowing from Article 38(2) of the Constitution, the
Government cannot deny a temporary employee at least the minimum wage
being paid to an employee in the corresponding regular cadre, alongwith
dearness allowance and additional dearness allowance, as well as all
other benefits which are being extended to casual workers.
- The
classification of workers (as unskilled, semi-skilled and skilled), doing
the same work, into different categories, for payment of wages at
different rates is not tenable. Such an act of the employer would amount
to exploitation and shall be arbitrary and discriminatory, and therefore,
violative of Articles 14 and 16 of the Constitution (deals with
equality of opportunity in matters of public employment.)
- If
daily-wage employees can establish that they are performing equal work of
equal quality, and that all the other relevant factors are fulfilled, a
direction by a court to pay such employees equal wages (from the date of
filing the writ petition), would be justified (Daily Rated Casual
Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor
Manch v. Union of India; (1988) 1 SCC 122)
The SC observed that an employee
engaged for the same work cannot be paid less than another who performs the
same duties and responsibilities and certainly not in a welfare state. Such an
action besides being demeaning, strikes at the very foundation of human
dignity. Anyone who is compelled to work at a lesser wage does not do so
voluntarily - he/she does so to provide food and shelter to his/her family, at
the cost of his/her self-respect and dignity, at the cost of his/her
self-worth, and at the cost of his/her integrity. Any act of paying less wages
as compared to others similarly situated, constitutes an act of exploitative
enslavement, emerging out of a domineering position. Undoubtedly, the action is
oppressive, suppressive and coercive, as it compels involuntary subjugation.
The SC further observed that India being a signatory to the International
Covenant on Economic, Social and Cultural Rights, 1966, there is no escape from
the obligations thereunder in view of the different provisions of the
Constitution. Thus, the principle of 'equal pay for equal work' constitutes a
clear and unambiguous right and is vested in every employee, whether engaged on
a permanent or temporary basis.
Accordingly, the SC set aside the
decisions rendered by the full judge bench of the P&H High Court in Avtar
Singh v. State of Punjab & Ors. and the division bench in State
of Punjab & Ors. V. Rajinder Singh while the decision of the
division bench in State of Punjab & Ors. v. Rajinder Kumar was
upheld, subject to the modification that the concerned employees would be
entitled to the minimum of the pay-scale of the category to which they belong
but would not be entitled to allowances attached to the posts held by them.
Analysis
This judgment is indeed a welcome
step and provides the right direction in terms of ensuring equality. Non-permanent
employees are meant to be used only for business exigencies and not for wage
arbitrage. Unfortunately, there continues to be instances of discrimination of
such non-permanent staff in India, especially contract labour, which
discrimination must be avoided at all costs. Infact, the Contract Labour
(Regulation & Abolition) Act, 1970 ("CLRA") requires the
contractor to ensure that the rates of wages payable to the workmen of the
contractor are not less than the rates prescribed under the Minimum Wages Act,
1948. The SC judgment should, in our view, help change the way employers
approach such non-permanent staff leading to significant reduction in wage
discrimination.
Having traversed the legal parameters
with reference to the application of the principle of 'equal pay for equal
work', in relation to temporary employees, the most important factor that would
require determination is whether the concerned employees are rendering similar
duties and responsibilities as are being discharged by permanent employees,
holding the same/corresponding posts. This judgment of the SC makes it clear
that a mere difference in nomenclature is not sufficient to dis-entitle a
temporary employee from being paid wages at par with permanent employees.
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