TMI Blog1987 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness allowance paid to the Respondent No. 1 and the dearness allowance paid to her male counter-parts during the said period. The petitioner was also directed to contribute to the Employees' Provident 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 Respondent 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 entitled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention. The European Economic Community Treaty also provided that during the first stage that is before 31st December, 1961 each. member State should ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. (See E.E.C. Treaty Art. 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 E.E.C. 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. Vol. 52, paras 20.11. to 20.18. 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 predecessor, a man, the European Court held that the concept of equal pay in the E.E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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. '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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any provision of the Act. The point which arises for consideration in this petition 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 ascertaining 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. There was practically 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, integrity, 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 different 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 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 counter-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its establishment and that there was no transfer of Confidential Lady Stenographers to the general pool of Stenographers where males were working. It, however, ought not to make any difference for purposes of the application of the Act when once it is established 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 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 establishment. 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 subsection (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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1.5.75. (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 ₹ 50, then, in such individual cases, the basic salaries in the respective scales will be stepped up in such a way, as to ensure a minimum of ₹ 50 increase in gross salary. (f) The figures for comparison will be the gross salaries for the month of May 1975. (g) All other terms and conditions as applicable to clerical and subordinate staff will also apply to lady stenographers with effect from 1.5.75 ................................ 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 settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsection (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 subsection (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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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