-----
This article was written by Rudra Srivastava and Ritika Modee (Singhania and
Partners), one of our key authors for our best-selling Asia Pacific Employment
Law (HELP) subscription.
-----
One of the trends in the labour market of India that has been persistent
and has become a reason of worry is the practice by employers to keep large
section of workforce particularly the blue collar1 as
temporary workers. Recruited through an elaborate system of contractors, these
workers, though they are as competent as their “regular” counterparts, are
denied not only the same wages and emoluments for the same work done but also
other benefits. Such workers constitute almost 50%, sometimes more, of the
workforce in many organisations and even in government departments2.
Constitution of India in its preamble talks about equality in terms of both
status and opportunity. The Constitution does not categorically provide for
“Equal pay for equal work” with reference to the permanent and temporary or
contract labour. The Supreme Court of India in its landmark judgement State
of Punjab and ors v Jagjit Singh and ors , on 26th October, 2016
while taking a step in furtherance of social justice has conferred the right of
equal pay for equal work upon the temporary workers vis-a vis the
permanent workers. On a constructive reading of Article 143 ,
Article 15(1)4,
Article 16(1)5 and
Article 39 (d)6 it
may be said that the Hon’ble Supreme Court has expanded the application of
equal pay for equal work so as to cover within the ambit of the principle the
right of temporary labour to receive same wages/salary as their permanent
counterparts provided they are engaged in same work of equal difficulty and
responsibility.
The question that
arose for determination before the Hon’ble Supreme Court in the aforesaid
matter was:
- Whether
temporarily engaged employees (daily-wage employees, ad-hoc appointees,
employees appointed on casual basis, contractual employees and the like),
are entitled to minimum of the regular pay-scale, along with dearness
allowance (as 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?
For the purposes of
determination of this question the Court examined nearly 35 leading judgements
on the “principal of equal pay for equal work”. The Court after examining the
prior decisions on this issue held that “… the principle of equal pay
for equal work constitutes a clear and unambiguous right and is vested in every
employee-whether engaged on regular or temporary basis … There can be no doubt,
that the principle of ‘equal pay for equal work’ would be applicable to all the
concerned temporary employee, so as to vest in them the right to claim wages,
at par with the minimum of the pay-scale of regularly engaged Government
employee, holding the same post …” while holding the aforesaid the
court upheld the decision in rendered in State of Punjab & ors
v Ranjinder Kumar 7 with
modification that “the concerned employees would be entitled to the minimum of
the pay-scale, of the category to which they belong, but not entitled to
allowances attached to the posts held by them.
The Court
acknowledged the fact that India being a welfare state, could not have an
employee who is engaged for the same work, be paid less than another, who
performs the same duties and responsibilities. The Court was of the view
that “…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 … Any act, of paying les wages, as
compared to others similarly situate, constitutes an act of exploitative
enslavement, emerging out of domineering position. Undoubtedly, the action is
oppressive, suppressive and coercive, as it compels involuntary subjugation.”
Hon’ble Supreme
Court in order to arrive at the aforesaid judgment considered various cases
which included:
- Where
all relevant considerations are same then person holding the identical
posts ought not to be treated differently, in the, matter of pay. It is no
classification or irrational classification if the two sets of employees
who perform identical duties and responsibilities are paid different
wages, merely because one is engaged on temporary basis and the other on
regular8.
- Differentiation
of pay-scale is justified if the work discharged by the petitioners and
their counterparts is not the same and, it is due to the dissimilarity of
their responsibility and level of confidentiality involved.
- Equal
pay depends on nature of work done and cannot be judged by the mere
volume; for any disparity there has to be a difference with regard to
reliability and responsibility. So long as the judgment is bona fide,
reasonably on an intelligible criterion which has rational nexus with the
object of differentiation, such differentiation will not amount to
discrimination. Differentiation in pay scales of persons holding the same
posts and performing similar work on the basis of difference in the degree
of responsibility, reliability and confidentiality would be a valid
differentiation9.
- Where
temporary workers are doing the same work as the regular workers then they
cannot be denied parity in wages and cannot be thereby discriminated
against10.
- If
the duties and responsibilities of post are more onerous and exposed to
higher operational risk then the principle is not applicable.
The Hon’ble Supreme Court while dealing with the issue of equal pay for
equal work in the aforesaid matter also observed that pay parity and the
concept of equality cannot be invoked so as to make the temporary employees
permanent or for the regularisation of temporary labour. The principle of equal
pay for equal work cannot be unreasonably extended to hold that temporary
employees should be treated on par with regularly recruited candidate, and be
made permanent. Thus the principle of “Equal pay for equal work” is not the
same as regularisation of labour.
On the perusal of the judgment it is clear that the Court has followed the principle of intelligible differentia and reasonable classification. Since there is no reasonable ground for granting different wages or for pay parity if work of same nature and responsibility are being performed by temporary and permanent employees, the principle of “equal pay for equal work” has been interpreted so as to extend its applicability on the case in hand.
While an argument can be made that the outcome of the judgment of the
Hon’ble Supreme Court may have detrimental effects like extra financial burden
on the government exchequer and if made applicable to the private sector then
it might result in the reduction of basic salaries or change in the terms of
employment to the detriment of the permanent employees etc. But this decision
of the Supreme Court is definitely a socially progressive decision and would
ensure pay parity for same work. This will help in ensuring equality where
there is no reasonable ground for differentiation or classification. The
judgment has come as fresh breath of air and will definitely be a sigh of
relief for temporary and contract workers. However, it remains to be seen how
the various States will bring their departments in compliance with the
decision. The legislature will have to play an active role in developing wage
code to be attuned to the decision and provide a concrete framework for its
implementation.
-----------
Footnotes:
1. relating to manual work or workers,
particularly in industry
2.
www.frontline.in/the-nation/end-of-wage-disparities/article9373781.ece last
visited on 29/11/2016
3. The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India
4. The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them
5. There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State
6. The State shall, in
particular, direct its policy towards securing that there is equal pay for
equal work for both men and women
7. (LPA NO. 1024 of 2009, decided on
30.08.2010)
8. Randhir Singh v. Union of India
(1982) 1 SCC 618
9. State Bank of India v. M.R. Ganesh
Babu (2002) 4 SCC 556
10. Bhagwan Das v. State of Haryana (1987) 4 SCC 634
No comments:
Post a Comment