M J Antony: A doctrine in reverse gear

OUT OF COURT

The Supreme Court sets tough norms to invoke the equal pay principle

The principle of "equal pay for equal work" sounds simple and self-evident. However, its interpretation by the Supreme Court has seen several twists and turns in the past two decades. It took another spin recently in State of Haryana vs Charanjit Singh.

The equal pay doctrine is set as a constitutional goal in the directive principles of state policy. In 1982, the Supreme Court ruled in Randhir Singh vs Union of India that the principle could be treated as a fundamental right. It was the first and the only time when a directive principle was anointed as a fundamental right enforceable by court of law. It was applied in several disputes between casual and temporary workers and government undertakings.

In a leading case of that era, Dhirendra Chamoli vs State of UP (1986), the court observed: "It must be remembered that in this country where there is so much unemployment, the choice for the majority of the people is to starve or to take employment on whatever exploitative terms are offered by the employer." Therefore, the employer cannot be allowed to flout the mandate of equality enshrined in Article 14 of the Constitution. This was the strain of the judgements of that decade.

Later, the Supreme Court began to have second, third and more thoughts on this issue. In State of Haryana vs Jasmer Singh (1996), the court remarked that the principle was not easy to apply and there were many inherent difficulties in comparing and evaluating the work of different persons in different organisations or even in the same organisation. The principle could not be applied "mechanically" in every case of similar work.

More judgements were to follow, diluting the doctrine. In Associate Bank Officers' Association vs State Bank, the Supreme Court observed that the principle originated in the slogan of the women's rights activists fighting sex-based discrimination. If this principle is extended to compare pay scales in one organisation with pay scales of another, "stretching of the doctrine, if at all it is done, must be done with caution lest the doctrine snaps," the court warned. According to that judgement, the principle was designed to correct irrational and inexplicable differentiation in wages. It is easier to identify such discriminated groups when they are based on sex, caste or religion. But in other cases, it is difficult to arrive at a definite conclusion.

Labour leaders have complained that such judgements have taken away the substance of the right and left only a shell in its wake. The latest judgement has turned the table further against the workers. In this case, a large number of casual and temporary workers demanded parity with the regular employees who were doing in the same work. Since the law has been in a flux for the past decades, the issues were referred to a larger bench. This bench has now laid down some arduous conditions before the doctrine could be applied in a specific case.

It asserted that there could not be any mechanical application of the rule. For instance, if the educational qualifications are different, it may have no application. Even if the people may be doing the same work, the quality of their work may differ. The designation of the employee is no clue to the work in actual practice. The volume of work is no criterion to find out equality in work. There may be qualitative difference as regards reliability and responsibility.

The court then said: "Normally the applicability of this principle must be left to be evaluated by an expert body. These are not matters where a writ court can lightly interfere. In any event, the party who claims equal pay has to make necessary avernments and prove that all things are equal. Thus, before any direction can be issued by a court, it must first see that there are necessary averments and there is proof."

Thus, in future the employee in each case must convince the concerned court that the work and the conditions are equal. The burden of proof is on the employee. The court has a duty to satisfy itself that this burden is discharged by the aggrieved worker. The court shall then examine his averments, all relevant facts and decide whether "everything is identical and equal". This is a tall order, especially when they are addressed to casual and temporary hands who are generally illiterate. Therefore, the fears of the labour activists that there is nothing left in the so-called fundamental right seem to have come true.