Mackinnon Mackenzie and Co. Ltd. vs Audrey D''Costa of Bombay and Another

S.J. Pendse, J.—By this petition filed under Article 226 of the Constitution of India, the petitioner employer is challenging the legality of the order dated May 31, 1982 passed by the Deputy Commissioner of Labour (Enforcement). Appellate Authority under the Equal Remuneration Act, 1976. The facts giving rise to passing of this order are required to be briefly stated to appreciate the grievance of the petitioners.

The petitioners Mackinnon Mackenzie & Co. Ltd. is a Company registered under the Companies Act and the activities carried out are (a) ship owning/operation (b) ship agency (c) ship manning, (d) overseas recruitments, (e) travel and (f) clearing and forwarding by sea and air. The petitioner appointed respondent No. 1 as Confidential Lady Stenographer with effect from August 1, 1952. The Confidential Lady stenographers are attached to an executive and take the dictation and also does the work of filing and attending to telephone messages. There are about 8 to 9 Confidential Lady Stenographers employed by the petitioner and all of them are females. The petitioners also engage a large number of stenographers and they work in a general pool, that is they are required to take dictation from any officer of the Company and are not attached to a particular individual. The stenographers working in the general pool are all males and these stenographers in the general pool were always members of the union formed by the employees of the Mackinnon Mackenzie & Co. Ltd., while the lady stenographers joined the union only in the year 1973.

In may 1974 the Union raised demands, which inter alia, suggested that the Confidential Lady Stenographers should be included in the general pool for determination of the wages scales. There were several meetings between the management and the Union leaders to determine how the Confidential Lady Stenographers should be fitted in the pay scales of the employees. The suggestion made by the management was that the basic pay drawn by the Confidential Lady Stenographers should be reduced and the dearness allowance should be increased so as to enable them to draw higher wages of Rs. 50/- per month. The Lady stenographers by their letter dated July 3, 1975 protested against the proposed suggestion, but ultimately the Union and the management entered into settlement on August 8, 1975 whereby the basic wages drawn by the lady stenographers were reduced and the quantum of dearness allowances was increased so as to enable the lady stenographers to draw Rs. 50/- more per month towards gross wages. In view of the settlement, the lady stenographers accepted the revision in their salary.

On June 13, 1977 respondent No. 1 was dismissed form employment and the order of dismissal was upheld by the Labour Court on June 30, 1981. Thereafter on September 5, 1981 respondent No. 1 filed application for claim as contemplated by section 7 of the Equal Remuneration Act, 1976 before the authority appointed under the Act. Respondent No. 1 1976 before the authority appointed under the Act. Respondent No. 1 claimed that the basic salary was reduced and even though the dearness allowance was increased the total wages drawn by her were far less than what was drawn by the male stenographers in the general pool. Respondent No. 1 complained that the Confidential Lady Stenographers and the stenographers in the general pool perform the same duties and less wages are paid to the lady stenographers only because of their sex and the discrimination based on this ground is prohibited under the provisions of the Act.

The petitioner Company resisted the claim, inter alia, claiming that the application was filed by respondent No. 1 only because she lost her service and failed to secure reinstatement. The petitioner also claimed that the basic wages were reduced as per the written consent given by respondent No. 1 as a consequence of the settlement between the union and the Company. It was also claimed that the discrimination in respect of payment of wages is not based on the ground of sex, and therefore, the provisions of the Act would not be attracted. The Competent Authority under the Act came to the conclusion that respondent No. 1 was performing the same work or the work of the similar nature performed by the male stenographers in the general pool. The competent authority held that respondent No. 1 is not entitled to the relief because respondent No. 1 was not paid at rates less favourable than those which was paid to the workers of the opposite sex. The claim of the petitioner Company that provisions of the Act are not attracted was turned down. Respondent No. 1 feeling aggrieved preferred appeal before the Deputy Commissioner of Labour as prescribed u/s 7(b) of the Act and the appeal was allowed by order dated May 31, 1982. The Appellate Authority came to the conclusion that there was a clear discrimination between the male and female stenographers and the contention of the petitioner that it was permitted in view of the settlement cannot be accepted. The Appellate Authority held that respondent No. 1 is entitled to the difference in basic salary in addition to the difference in dearness allowance amount for the period commencing from September 26, 1975 to June 30, 1977. Certain other consequential reliefs were also granted and this order of the Appellate Authority us under challenge.

The principal contention advanced by Shri Cama, learned Counsel appearing on behalf of the petitioner Company is that the provisions of the Act have no application to the facts of the case and the authorities below were in error in entertaining the application u/s 7 of the Act. The submission is that though there is difference between the wages drawn by the confidential lady stenographers on one hand and the male stenographers in the general pool on the other, still the difference is not on account of sex and therefore the provisions of the Act have no application. Before examining these submissions, it is necessary to refer to the provisions of the Act.

The Equal Remuneration Act, 1976 was enacted to provide for a payment of equal remuneration to men and women workers for the same work or work of a similar nature and for the prevention of discrimination on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto. The Act was passed by the Parliament on February 11, 1976, but section 1(3) prescribes that it shall come into force from such date as may be notified by the Central Government in respect of different establishments or employment as set out in the schedule. Section 4 of the Act reads as under :

"4. Duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature.---(1) No employer shall pay to the worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature.

(2) No employer shall, for the purpose of complying with the provisions of sub-section (1), reduce the rate of remuneration of any worker.

(3) Where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, and the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remuneration shall be payable, on and form of such commencement, to such men and women workers :

Provided that nothing in this sub-section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of this Act."

Shri Cama submitted with reference to sub-section (3) of section 4 of the Act that the rates of remuneration payable to men and women workers for the same work or work of the similar nature should not be different only on the ground of sex. The learned Counsel urged that the crucial test for determination of application of the fact are (a) whether the men and women are doing the same work or work of a similar nature; (b) whether the rates of remuneration are different: and (c) whether the difference is based on the ground of sex. It is the claim of Shri Cama that none of these tests or grounds are established by respondent No. 1. It is not possible to accept the submission of the learned Counsel. It is the claim of the petitioner Company that the confidential lady stenographers forms a separate cadre and the lady stenographers who are attached to an executive are not carrying out the same work of work of the similar nature that of the male stenographers in the general pool. The submission is not correct, because it is not in dispute that principal or dominant work carried out by both the lady stenographers and the male stenographers is that of taking dictation and transcribing what has been taken down. Shri Cama submitted that in addition to the work of taking down dictation the lady stenographers attached to the executive are expected to perform the work of filing and attending to telephone. Even assuming that the submission of the learned Counsel is correct and the lady stenographers are required to perform these additional duties, still it is difficult to appreciate any merit in the submission that the two categories of workers are not performing the same work or work of a similar nature. Indeed, if the submission of Shri Cama is correct that the lady stenographers are doing work which is in addition to that performed by the male stenographers, then surely the company could not pay less wages to these lady stenographers than to the male stenographers. Shri Cama urged that the lady stenographers are attached to a particular executive and in the nature of things the work of dictation would be far then less than that which the male stenographers in a general pool are required to be performed. In my judgment, the assumption of the learned Counsel is unwarranted. It is depends upon the nature of the work and the manner of work of a particular executive and it cannot be assumed that in every case a lady stenographer would not be required to perform hard work. Even otherwise, the question is not what is the quantum of work performed by a particular employee, but whether the same work or the work of a similar nature is performed by the male employees and the female employees. In my judgment, there cannot be any doubt that the work performed by the female stenographer and the male stenographer is identical and the first requirement for the application of the provisions of the Act is satisfied.

As regards the second requirement that there should be difference in rates of remuneration between the male employees and the female employees, it is not in dispute that the gross wages drawn by the female stenographers are far less than that drawn by the male stenographers. The male stenographers were drawing basic pay of Rs. 585/- and dearness allowance of Rs. 1325.45 in pursuance of the settlement reached between the union and the management, and thus the total pay packet of the male stenographer was Rs. 1910,45. On the other hand in pursuance of the settlement the basic pay drawn by the lady stenographer was reduced from Rs. 560/- to Rs. 245/- and in addition an amount of Rs. 935.25 was paid towards dearness allowance, making a total of Rs. 1180.25. It is, therefore, obvious that the female stenographers were paid Rs. 730,20 less than that drawn by the male stenographers. It is therefore, obvious that the rates of remuneration payable by the male and female employees were different and Shri Cama very rightly did not dispute this fact. The main submission urged by Shri Cama is that this difference is not based only on the ground of sex and, therefore, the provisions of the Act are not attracted. The contention was advanced by submitting that the difference in rates of remuneration was settled by taking into consideration the nature of the work performed by two sets of employees. It is impossible to accede to the submission of the learned Counsel on the facts and circumstances of the case in hand. As mentioned herein above, it is not in dispute that only female stenographers are appointed as confidential lady stenographers and in the general pool of stenographers no female stenographer is appointed. In other words, a clear distinction s made by the petitioner Company while appointing stenographers no female stenographer is appointed. In other words, a clear distinction is made by the petitioner Company while appointing stenographers in the Company, and that is, male stenographers in the general pool and female stenographers as Confidential Lady Stenographers. The nature of appointment and the fact that after appointment the stenographers are not transferred from the general pool to the cadre of Confidential Lady Stenographer or vice versa make it clear that the Company makes a clear distinction in respect of appointment on the ground of sex. In my judgement, the authorities below were perfectly right in coming to the conclusion that the provisions of the Act are squarely attracted and the petitioners had discriminated in respect of rates of remuneration between male and female employees.

In this connection reference was made by Shri Cama to the decision of the Supreme Court reported in AIR India Vs. Nergesh Meerza and Others, and especially to paragraphs 62 to 66 of the judgment, I am afraid I am unable to appreciate how these paragraphs of the judgment support the claim of the petitioner Company.

Shri Cama then submitted that the provisions of the Act are not applicable, because the provisions are applicable asset out u/s 1(3) only to those establishments or employment which are set out in the Schedule. The learned Counsel urged that the establishment of the petitioner Company would not be covered by any of entries in the Schedule. The submission is not correct. Entry No. 12 deals with employment in land and water transport specified in the Schedule. Under the heading "Water Transport" is Item 12 which reads as under :

"Supporting services to water transport like operation and maintenance of piers, docks, pilotage, light-house, loading and discharging of vessels, etc."

Shri Grover, learned Counsel appearing on behalf of respondent No. 1, submits, and in my judgment with considerable merit, that the petitioner Company is carrying out the work of loading and discharging of vessels in Bombay Dock and, therefore, the establishment of the petitioner Company and the employment or respondent No. 1 would squarely fall within Entry 12, Item 12 of the Schedule. Shri Cama did not dispute that the petitioners are attending to the work of loading and discharging of vessels, but submitted that the said work is not predominant or principal work of the petitioner Company. It is difficult to appreciate any merit in the submission, because the provisions of the Act would be attracted irrespective of whether the nature of work is a predominant or principal work or not of the employer. Shri Cama also urged that as respondent No. 1 is not employed to perform work of loading or discharging of vessels, the provisions of the Act would not be applicable in her case. The submission is only required to be stated to be rejected. What is covered by provisions of the Act is the establishment and it is not necessary that every employee of the establishment must carry out the work of loading and unloading. An employer who carries on business of loading and unloading is required to employ large number of employees for performing administrative duties and those employees would certainly be covered by the provisions of the Act. In my judgment, the submission of Shri Cama that the provisions of the Act are not attracted to the facts of the case is misconceived, and therefore, deserves to be repelled.

Shri Cama finally contended that the Appellate Authority was in error in holding that respondent No. 1 is entitled to difference in basic, salary between the female stenographer and the male stenographer for the period commencing with September 26, 1975 to June 30, 1977. There is merit in this submission of the learned Counsel. The Appellate Authority proceeded to grant difference with effect from September 26, 1975 on the ground that Equal Remuneration Ordinance, 1975 was promulgated on that date. Shri Cama points out that though the Ordinance was promulgated on September 26, 1975, the provisions of section 1(3) of the Act prescribes that the Act shall come into force on such date as the Central Government by notification appoint in respect of a particular establishment. It is not in dispute that in respect of establishment of the petitioner covered under Entry 12, Item 12, the Act came into force with effect from October 8, 1976. It is there fore obvious that respondent No. 1 would be entitled to difference from October 8, 1976 till the date of her dismissal from employment, that is June 13, 1977. It is, therefore, necessary to remit the matter back to the Appellate Authority for computing the amount of difference payable to respondent No. 1 for the period commencing from October 8, 1976 to June 13, 1977. The Appellate Authority would compute the amount payable as difference in basic salary as well as difference in dearness allowance and also in respect of employer''s contribution to provident fund and payment of gratuity due under the settlement. The Appellate Authority shall pass the Appropriate order within a period of two weeks from the date of receipt of writ and after the amount is determined, respondent No. 1 will be entitled to withdraw the amount deposited by the petitioner with the Prothonotary & Senior Master as per the interim order passed by his Court. In case any amount is available after payment to respondent No. 1, then the Prothonotary and Senior Master to refund the said amount to the petitioner Company.

Accordingly, petition partly succeeds and the matter is remitted back to the Deputy Commissioner of Labour (Enforcement) Appellate Authority under the Equal Remuneration Act, 1976 for computing the amount payable to respondent No. 1 in the light of this judgment, The computation should be completed within two weeks from the date of receipt of the writ by the Appellate Authority and on such computation respondent, No. 1 shall be entitled to withdraw the amount lying with the Prothonotary & Senior Master.

The petitioner Company to pay the costs of respondent No. 1.