Office Location

Delhi:

E-5, 2nd Floor, Defence Colony
New Delhi - 110024
Tel : 011-24336744

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Mumbai:

Office No. 1410, 14th Floor, Maker Chamber V, Nariman Point, Mumbai
Tel : +91 22-22873499

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Gurgaon:

Level 18, One Horizon Center, Golf Course Road, DLF Phase 5, Sector 43, Gurgaon 122002, India
Tel : +91 124 668 8146 / +91 124 668 8147

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Mumbai (Entertainment and Media Practice)

Office No. 213, 2nd Floor, A-wing, Crystal Plaza, Andheri Link Road, Andheri (W), Mumbai.
Tel : 022-62360762

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Mumbai (Corporate and Transactional Practice)

909/A, Capital Building, Bandra Kurla Complex, East Mumbai- 400098

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Bangalore:

21/2, 1st Main Road,
Opp Indian overseas Bank,
Gandhinagar,
Bengaluru - 560009

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Kanpur:

77A, Cantt., Kanpur - 208004

Equal Pay for Equal Work

On 26th October, 2016 the Hon’ble Supreme Court of India has held, in the case of State of Punjab & Ors vs Jagjit Singh & Ors that if equal work is carried out by the employees, they are entitled to equal pay.

The Hon’ble Supreme Court held that Equal Pay for Equal Work is a Constitutional Right and that any employer paying less wages to his temporary staff was indulging in 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 Bench of Justices J S Khehar and S A. Bobde further held that -

“In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity,”

This doctrine was settled particularly in the context of Temporary Engaged Employees (Daily Wage Employees, Ad-hoc Appointees, employees appointed on Casual basis, Contractual Employees and the like) and it has now been held that these Temporary Engaged Employees are entitled to same wages (with same Dearness Allowance as revised from time to time) as are payable to the regular employees against the sanctioned posts.  The Hon’ble Supreme Court has further held that this doctrine of ‘Equal Pay for Equal Work’ is not an abstract doctrine, for it is capable of being enforced in the Court of Law. But equal pay must be for equal work of equal value.      

The Hon’ble Supreme Court, after analysing all the decided cases, has made this doctrine applicable to all the concerned temporary employees, to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.  However, the ‘onus of proof’ of parity in the duties and responsibilities of the subject post with the reference post, under the said doctrine lies on the person who claims it.  It has been held that the claimant cannot be treated differently merely because he belongs to a different department when discharging functionally identical and equal duty, which is of the same quality and sensitivity.

The doctrine of ‘Equal pay for Equal work’ is thus applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities. For parity in pay-scales, under the principle of ‘Equal pay for Equal work’, similar nature of duties is of paramount importance.

The above judgement has settled a longstanding issue of stopping all those employers including the Government, Banks, Financial Institutions who hire people on Ad hoc basis or on temporary or casual basis instead of filling up the regular vacancies of the sanctioned position – merely with a view to save costs.

Even if one has to employ such temporary workers for doing the work of a regular employee, the said temporary worker shall – now onwards - be entitled to get equal pay; however, he / she will not be entitled to plead a case for permanency in the job. Therefore, this judgement will make the Employer think twice before hiring a temporary or casual worker to do a job of a permanent worker, for now onwards, the Employer shall have to pay Equal Pay for the Equal Work that is done by these employees.

Universal Applicability:
This doctrine is applicable across the board and does not distinguish between an employee of a private sector vis-à-vis that of public sector, provided the parameters of work done are the same by the applicable casual / temporary employee and the regular employee.  However, the private sector may like to alter or change the ‘Job Description’ of the Ad hoc / casual employee who is hired to do the work of the normal employee, to avoid paying him the equal / same pay scale. 

Of late, it has been found that the Government departments, Banks and Industries are hiring peons, security guards, drivers, gardeners, cleaners, etc. on a Contract basis, whereas they have not abolished such posts in their system, before hiring such people on contract basis.  Thus, in all such cases, the Contract Worker – if doing the same work as that of the Regular Worker – would, now onwards be entitled to pay that is equal to that of the Regular Worker.

Exceptions:

  1. Persons performing the same or similar functions, duties and responsibilities, may be placed in different pay-scales where they are vested with dissimilar powers, duties and responsibilities. But this difference must emerge out of a legitimate foundation, such as merit, or seniority, or some other relevant criteria like differential degree of responsibility, reliability and confidentiality.
  2. Where the volume of work and/or the level of responsibility is not the same.
  3. Where qualifications for recruitment to the post are different, for this would mean that they are not qualitatively similar or comparable.
  4. Where the reference post, with which parity is claimed, is NOT at the same hierarchy in the service, as the subject post. This refers to the channels of promotion that the rival posts may have.
  5. Where the establishments are in different geographical locations, though owned by the same master. Here the persons are said to have been engaged differently, and are paid out of different funds and therefore, they would not be entitled to pay parity.
  6. Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of ‘equal pay for equal work’, even if two organizations have a common employer. Similarly, if the management and control of two organizations is with different entities, which are independent of one another, the said doctrine of “Equal pay for Equal work” would not apply.

Incidentally, this doctrine of ‘Equal Pay for Equal Work’ is also covered by Article 7 of the International Covenant on Economic, Social and Cultural Rights, Article 4 of the European Social Charter and Article 15 of the African Charter on Human and People’s Rights.  The Constitution of International Labour Organisation (ILO) also proclaims the principles of Equal remuneration for Equal Value.

The said Article 7 of the International Covenant on Economic, Social and Cultural Rights, to which India is a signatory and had ratified it on 10th April, 1979 was also cited by the Hon’ble Supreme Court while passing the above judgment. The Apex Court held, “There is no escape from this obligation.”

This ruling re-affirms the concept of the Right to Equality enshrined in our Constitution.