Equal Pay for Equal Work is constitutional right

Article of Secretary General of Confederation of Central Govt. Employees & Workers on Equal Pay for Equal Work as a constitutional right

Mr. M. Krishnan, Secretary General, Confederation of Central Govt. Employees & Workers article on Equal Pay for Equal Work is constitutional right.

“EQUAL WAGE FOR EQUAL WORK” IS A
CONSTITUTIONAL RIGHT
M. Krishnan
Secretary General,
Confederation of Central Govt. Employees & Workers.

Preface:

The working class of India has conducted innumerable struggles demanding “Equal wage for equal work” to casual, contract and daily-rated workers working in various establishments and the struggle is still continuing. Even though the Constitution of India ensures “equality in all respect”, the Central and State Governments never bothered to extend this principle to the casual and contract workers employed in their own departments and public sector undertakings owned by them. After the advent of neo-liberal economic policies, the situation worsened further and the exploitation continued unabated. Ban on recruitment, non-filling up of vacancies, outsourcing, contractorisation and casual appointment became the order of the day. About 40 to 50% of the regular posts in Central and State government departments and public sector undertakings are manned by employing casual and contract workers. In some public sector undertakings the casual, contract workers out-numbered the regular employees. The casual and contract workers are paid only a fixed amount as wages and no other benefits like pay scale, increments, pension, promotion etc. enjoyed by the similarly placed regular workers are extended to them. Thus they are exploited to the maximum extent by the BJP and Congress Governments in the name of “cheap labour” and “hire and fire”.

Landmark Judgement:

It is in the above background, the significance of the recent judgement of the Supreme Court is to be understood. Supreme Court of India delivered a landmark judgement on 20th October, 2016, directing the Punjab State Government to pay “equal wage for equal work” to thousands of casual, contract and daily-rated workers employed by the Government, quashing the full-bench judgement of the Punjab & Hariyana High Court delivered on 11th November 2011. The two judge bench of the Supreme Court consisting of Justice Jagdish Singh Khehar and Justice S.A.Bobde in its 102 page judgement ruled that the casual, contract and daily-rated mazdoors would be entitled to 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. It declared that the principle of “equal pay for equal work” is applicable to casual, contract and daily-rated workers.

Background of the case:

A single-bench of the Punjab & Haryana High Court delivered a judgement in 2003 granting “equal wage for equal work” to casual and contract employees such as Pump operator, Fitter, Helper, Driver, Plumber, Choukidars and the like, working in the Punjab State Government service, along with permissible allowances as revised from time to time, which are being given to similarly placed regular employees. Government went on appeal, but the Division Bench of the High Court upheld and confirmed the single bench judgement in 2009. Again the single bench delivered another similar judgement in 2009 in the case of casual, contract workers employed as ledger clerk, ledger keeper, Petrolman, Surveyor and the like. But another Division Bench set aside this judgement in 2010. When a third case came, it was decided to refer the case to Full Bench of the High Court, as two Division Benches has taken different position in similar cases. The Full Bench of the Punjab & Haryana High Court amended the single and Division Bench judgements and limited the principle of “equal wage for equal work” to (1) those employees selected and appointed on casual, contract basis after following the procedures of relevant Recruitment rules and (2) to those who are not recruited as per recruitment rules, but have completed more than ten years service as Casual/Contract workers. The Full Bench also made it clear that the minimum wage payable will be excluding Dearness Allowance. Punjab Government filed appeal against the Full Bench judgement in the Supreme Court. It is in this Civil Appeal No.213 of 2013, the two-judge bench of the Supreme Court has delivered the above judgement on 26-10-2016.

The issue which came up for consideration before the Supreme Court was, whether temporarily engaged employees such as daily wage employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like, are entitled to minimum of the regular pay scale along with allowances revised from time to time, on account of their performing the same duties, which are discharged by those engaged on regular basis against sanctioned posts.

Significance of the Judgment:

In the judgement the two-Judge Bench of the Supreme Court, analysed the circumstances ,under which an employee or worker is compelled to accept job with lesser wage and declared as follows:

“In our considered view, it is fallacious to determine artificial parameters to deny the fruits of labour. An employee engaged for 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. Anyone, who is compelled to work at a lesser wage, does not do so, voluntarily. He does so, to provide food and shelter to his family, at the cost of his self- respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wages. 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 coersive, as it compels involuntary subjugation.”

The Apex Court, then quoted the abstracts from the International Covenant, to which India is a signatory and also ratified the same on 10-04-1979. Article-7 read together with 7(a)(i) of the International covenant states as follows – “The state parties to the present covenant recognise the right to every one to the employment of just and favourable conditions of work which ensure in particular, remuneration which provides all workers, as minimum, with fair wage and EQUAL REMUNERATION FOR WORK OF EQUAL VALUES WITHOUT DISTINCTION OF ANY KIND, in particular, women being guaranteed conditions of work not inferior to those engaged by men, with equal pay for equal work”.

Parameters applicable:

While delivering the judgement, the Apex Court made it clear that the exercise to determine whether an employee is eligible for equal pay would require application of the parameters of the principle of “equal pay for equal work” laid down in various judgements of the Supreme Court, summarised as below:

(1) one who approaches the Court has to establish that the work discharged by him in his post is equal to the duties of the post to which he is comparing for equal pay. (2) persons discharging identical duties cannot be treated differently, in the matter of their pay, merely because they belong to different departments of the Government. (3) the concerned employee with whom equation is sought, should be performing work which besides being functionally equal, should be of the same quality and sensitivity. (4) persons having same rank/designation, in different departments, but having dissimilar powers, duties and responsibilities can be placed in different pay scales. (5) pay differentiation is permissible, if the posts are with difference in degree of responsibility, reliability and confidentiality. Posts should be similar both on sensibility and qualitatively. The work should not be less onerous and even the volume of work and level of responsibility should be same. (6) if qualifications for recruitment to the posts are different, principle of “equal wage for equal work” cannot be applied. (7) even if duties and responsibilities are same, parity would not be permissible against a superior post such as promotional post. (8) comparison is not permissible if the posts are under different establishments under different managements or when the establishments are in different geographical location, though owned by the same management. (9) if duties and responsibilities of one of the posts is more onerous or are exposed to higher nature of operational work/risk, the principle of parity would not be applicable. (10) placing different posts under different pay scales is permissible, if priority is given under the prevailing policies of the Government to certain posts. (11) parity cannot be claimed, merely because at an earlier point of time, both the posts were placed in the same pay scale. (12) for claiming parity the nature of duties of both posts should be same in all respects. (13) even if nomenclature is same, parity in pay cannot be claimed between those discharging duties of headquarters and others working at the field level, when the duties are qualitatively dissimilar. (14) parity cannot be claimed when one set of employees are in one organisation and another set in different organisation, even if the management and control of two organisations are with the common employer.

Legal position:

Supreme Court also laid down the legal position regarding “equal wages for equal work” as available in various judgements of the Apex Court, applicable to casual, contract and daily-rated workers. These are summarised below:-

(1) action of not paying the same wage to casual workers, despite the work being the same is considered as violation of Article-14 of the Constitution (2) Temporary employees are entitled to wages drawn by an employee on the regular establishment, as emerged from Article-39 of the constitution. (3) the duration of which an employee had remained engaged (whether one day, one month or one year) would not make any difference while applying the principle of parity. (4) 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. (5) daily wagers are entitled to be placed in the minimum of the pay scale of a regular employee. (6) employees appointed on contract basis, to perform the work of regular posts are entitled for the minimum of the pay scale of the regular post. (7) whether the selection of a temporary employee is made by open competition or limited to a cluster of villages, is inconsequential.

Legal and organisational fight required:

No doubt, the Judgement is a great set back to the Central and State Governments who are exploiting the casual, contract and daily-rated workers, by denying them “equal pay for equal work”. Government may try its best, not to implement the court orders in the case of other similarly placed workers. Service Organisations of Central Government and State Government employees and also Trade Unions representing public sector undertakings shall come forward to take up the case, both legally and organisationally, and shall continue their struggle for getting the principle of “equal pay for equal work” implemented by Government to all similarly situated workers and thereby putting an end to the “exploitative enslavement” and “involuntary subjugation”.

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Mobile: 09447068125).

Source : Confederationhq