Article (April-2017)

Articles

Concept of Pay Parity-Front and Center

S.M.Jain

Designation : -   Advocate

Organization : -  Rajasthan Textile Mills, Bhawanimandi

Other Writers : -  P.C. Chaturvedi, Sr. Manager (IR), Rajasthan Textile Mills, Bhawanimandi

01-Apr-2017

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The concept of equal pay for equal work is all abstract and defies definition. Its enunciation and interpretation is ticklish and vexed. So whenever we come across any case law of High Court or Supreme Court on this proposition, we just learn, unlearn and relearn as to what it actually connotes or what are its implications. There is paradigm shift in the implementation side and key to this ongoing transition must make us alert and cautious because of its new emerging area which requires comprehensive and all encompassing knowledge of the concept.


It is correct to say that our Supreme Court is probably the strongest in the world and that its verdicts usually display a rare jurisprudential vision but then sometimes its elaboration of a concept confuses instead of illustrating. This seems to have happened when it must have delivered the judgment in the case of State of Punjab and others V/s Jagjit Singh and Ors 2017 (1) SCC 148. Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold set of facts which may arise, and it if were, it is not possible to provide for them in terms free from all ambiguity. Obviously and at first flush the aforesaid Supreme Court Case seems to have delivered comprehensive and elaborate guide lines and yardsticks to under stand the principle of equal pay for equal work and its practical application. The court again appears to have ruled that temporary, casual or contractual employees doing work with the same quality responsibility and transparency as of regular employees would be entitled get equal Pay. In this perception this judgment ought to have far reaching consequences and implications for industries which employ maximum number of contract labour with a view to save cost on wages. This may not now be worth doing. It is said that law does not countenance that similarly placed two constituencies and pay them differently. Such an exercise might be termed to be an act of oppressive, suppressive and coercive in nature as it results in voluntary subjugation. In this resultant back drop we have to refer to the decisions of Supreme Court State of Orrisa V/s Balaram Sahoo 2003 (1) SCC 250, State of Haryana V/s Tilak Raj 2003, LLJ 823 Uttar Pradesh Electricity Board V/s Ajeej Ahmed 2009 (2) SCC 606 and Official Liquidator V/s Dayanand 2008 (10) SCC 1 Cumulatively these decisions support the preposition that simply performing the same task or duties as those regularly   employed would not entitle, the casual workers to parity of Pay with regular employees. On the principles as enunciated by Supreme Court decision, the Delhi High Court in the case of Air India Ltd. V/s Presiding Officer, CGIT & anrs. 2011 LLR 951ruled that the principle of equal pay for equal work can not be extended to the workman appointed on casual basis even when they are performing the same or similar duties as the regular employee since the casual workers are not required to possess the same qualification as prescribed for regular ones. However this Delhi case does not hold ground.

Precisely speaking the law on this vexed question must be held to mean that the claimant for equal pay must prove that subject post occupied by him requires him to discharge equal work of equal value and sensitivity as reference post that subject post occupied by him is in different department vis-a-vis reference post would be in consequential. It is also held that this principle of parity in pay would not be invoked simply because subject and reference post have same nomenclature. The law would permit differentiation of pay scale for post with different in degree or responsibility reliability and confidentiality. The law would also permit that persons performing similar functions duties and responsibilities could be placed in different pay scales such as "Selection Grade" in same post but such difference must have legitimate foundation such as merits, seniority etc. It is also envisaged that the post with which parity is claimed must be in same hierarchy as subject post. Similarly the principle would not be applicable where subject post and reference post are in different establishment having different management or even where establishment are in different geographical locations though owned by same master.


The Government can also have a prevalent policy of placing different post and different scales. Lastly the principle would be inapplicable where differential higher pay scale is extended to person discharging same duties and holding same designation with a objective of ameliorative stagnation or decrees of   lack of promotional avenues.


For the last about three decades we have had several pronouncements delivered by the Hon'ble Supreme Court on this pay parity concept or on substantially similar one. The present matter was also the subject matter of full bench of Punjab High Court and it seems that the Hon'ble Supreme Court reviewed about 35 Judgments and even went to the extent of tracing a debatable point   from the preamble and Article 14,16 and 39 (a) of  the constitution of India and as we mentioned in the earlier part of my this article instead of perfect answer to the existing controversies it would create more confusion. A debate has already started whether the temporarily engaged employees viz- daily wager, adhoc appointees etc who were picked up on casual and contractual basis are entitled to minimum of the regular pay scale along-with  DA because they too perform the similar duties and that there are voluminous conclusions that the judgments hand over to us would not come in conflict to each other because of the neck-deep competitiveness in the industries, the employers are very much conscious of cutting cost to stay viable. So we are in for some more confusion.