Holding

The Supreme Court held that the employer breached Section 4(1) of the Equal Remuneration Act, 1976 and must pay equal remuneration to female stenographers, as the settlement cannot override the Act and sub‑section 3 and its proviso are inapplicable.

Summary

The case concerned a female confidential stenographer, Audrey D’Costa, who claimed that after the Equal Remuneration Act, 1976 came into force she was paid lower wages than male stenographers performing the same or similar work. The employer, Mackinnon Mackenzie & Co., argued that the business was not covered by the Act, that the work differed, and that a 1975 settlement with the employees’ union justified the pay disparity. The Supreme Court held that the establishment fell within the notified categories, that the work of the lady and male stenographers was substantially the same, and that the settlement could not override the mandatory provisions of the Act. It further ruled that Section 4(3) and its proviso were inapplicable because there was a common pay scale after the settlement, and that the employer could not rely on its financial inability to pay equal wages. Consequently, the petition under Article 136 was dismissed, affirming the High Court’s order that the employer must pay the difference in remuneration to the female employee.

Issues considered

Whether the employer violated Section 4(1) of the Equal Remuneration Act, 1976 by paying lower remuneration to female stenographers for the same or similar work as male stenographers.
Whether a collective settlement arrived at in 1975 can be invoked to justify differential pay despite the provisions of the Act.
Whether sub‑section (3) of Section 4 and its proviso are applicable in the present facts.
Whether the petitioner’s establishment falls within the categories notified under Section 1(3) of the Act.
Whether the employer’s claim of financial inability can exempt it from the duty to pay equal remuneration.

Legislation cited

Constitution of Indias. 14, s. 39(d)
Equal Remuneration Act, 1976s. 16, s. 2(h), s. 3, s. 4(1), s. 4(2), s. 4(3), s. 7

Subjects

Equal remunerationGender discriminationEqual Remuneration ActSection 4Collective settlementSame work or similar natureArticle 39(d)Wage equality

Judgment

MACKINNON MACKENZIE & CO. LTD.
A
v.
AUDREY D'COSTA & ANR.

MARCH 26, 1987

[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.] B

Constitution of India, 1950-Articles 14 and 39(d)-Equal
remuneration-Liability to pay i"espective of sex-Necessity for.

Equal Remuneration Act, 1976-Ss. 2(h), 4(1) and 7-Equal
work-'Same work or work of similar nature'-Co~iderations for C
determination of-Men and women workers-Performing same or
similar nature of work-Whether lower remuneration to women
workers discriminatory on ground ofsex and violative ofs. 4( 1).

Equal Remuneration Act, 1976-Ss. 2(g), 3 and 4( 1)-Equal
Pay-Settlement between management and employees-Whether a valid D
. ground for discriminating in payment of remuneration between men and
women workers performing same or similar nature of work.

Equal Remuneration Act, 1976-Proviso to s. 4(3)-Applica-
bility of-Settlement before commencement of Act-Provides common
pay scale for men as well as women workers-After implementation of E
Act-Women workers given lessor remuneration-Whether s. 4( J) or
proviso to s. 4(3) would apply-
•
Equal Remuneration Act, 1976-Ss. 3 and 4--Applicability of the
Act-Whether depends upon the financial ability of the management to
pay equal.remuneration. F

Statute Law-Proviso-Scope of-Cannot travel beyond the
section.

After the services of the respondent No_ 1, who was working as a
' Confidential Lady Stenographer with the petltioner-eompany, were G
terminated on Jone 13, 1977, she instituted a petition before the Au-
thority appointed nDller snb-s_ (1) of s. 7 of the Equal Remuneration
.,~- .J Ad, 1976 complaining that dnring the period of her employment, after
Che Ad came into force, she was being paid remuneration at the rates
~ · ' less favoumble thaJt tbooe paid to the Stenographers of lhe male seJ< in
, the petiaione:r's establishment for performing the same or similar wortl H

659
660 SUPREME COURT REPORTS [1987] 2 S.C.R.

A and claimed that she was entitled to recover the difference between the
remuneration paid to her and the male Stenographers.

The petitioner opposed the petition contending, inter alia, that the
business carried on by it was not one of those businesses notified under
sub-s. (3) ors. 1 or the Act; that there was no difference in the scales or
B grades or pay between lady Stenographers and male Stenographers;
that the respondent No. 1 and other lady Stenographers who had been
doing the duty as Confidential Stenographers attached to the Senior
Executives were not doing the same or similar work which the male
Stenographers were discharging; and that since there was no discrimi-
nation in salary on account of sex s.4 of the Act had not been violated.
c
The Authority found that the male Stenographers and the lady
Stenographers were doing the same kind of work, but rejected the
complaint holding that in view of a settlement arrived at between the
employee's Union and the management the respondent No. 1 was not
entitled to any relief and that the petitioner had not committed the
D breach of s. 4 as no discrimination on the ground of sex has been made.

The Appellate Authority allowed the appeal of Respondent No. l
holding that there was clear discrimination between the male Steno-
graphers and the female Stenographers and the petitioner had commit- Y•
ted the breach of the provisions of the Act and directed the petitioner to
E make the payment of the dilJerence between the basic salary and dear-
ness allowances paid to respondent No. 1 and her male counter parts
from 26.9.1975 to 30.6.1977 and to contribute to the Employees Provi-
dent Fund.
-
In the petition under Article 226 the Learned Single Judge
F affirmed the order of the Appellate Authority but remanded the case _)./
for computing the amount due to the respondent No. 1 afresh. The
Division Bench dismissed the further appeal.

Dismissing the Petition,

G HELD: 1. To implement Art. 39(d) of the Constitution of India
and Equal Remuneration Convention, I951 (adopted by International
Labour Organisation), the Equal Remuneration Act, 1976 came to be
enacted providing for the payment or equal remuneration to men and
women workers and for the prevention or discrimination on the ground
or sex against women in the matter or employment and for matters
H connected therewith or incidental thereto. In so far as the establishment
MACKINNON MACKENZIE & CO. v. AUDREY 661

of the petitioner was concerned, the Act came into force with effect A
from October 8, 1976. [668B-F]

2. In order to grant relief under s. 4 of the Act the employees
should establish that the remuneration paid by the employer, whether
payable In cash or kind, is being paid at rates less favourable than those
at which remuneration is paid by him to the employees of the opposite B
sex In bis establishment for performing the same work or work of a
silnilar nature. [670D-E]

-.
~- 3. In deciding whether the work is the same or broadly similar
and whether any differences are of practical importance, the Authority
sbonld take an equally broad approach, for, the very concept of similar C
work implies differences in details, hut these should not defeat a claim
for equality on trivial grounds. It should look at the duties actually and
generally performed not those theoretically possible by men and
women. Where, however, both men and women work at inconvenient
times, there is no requirement that all those who work e.g. at night shall
be paid the same basic rate as all those who work normal day shifts. D
Thus a woman who works days cannot claim equality with a man on
higher basic rate for working nights if in fact there are women working
nights on that rate too, and the applicant herself would be entitled to
that rate if she changed shifts. [670E·H]

I. T. Smith and J.C. Wood; Industrial Law, 2nd Edition E
{Butterworths) page 308, referred to.
4. It cannot be suggested that there can be no discrimination at
all between men and women in the matter of remuneration on the basis
of nature of work which women may not be able to undertake but in
such cases there cannot be any discrimination on the ground of sex. F
Discrimination arises only where men and women doing the same or
similar kind of work are paid differently. Wherever sex discrimination
is alleged, there should be a proper job evaluation before any further
enquiry is made. If the two jobs in an establishment are accorded an
equal value by the application of those criteria which are themselves
non-discriminatory {i.e. those criteria which look directly to the nature G
and extent of the demands made by the job) as distinct from criteria
which set out different values for men and women on the same demand
and it is found that a man and a woman employed on these two jobs are
paid differently, then sex discrimination clearly arises. [671A-C)
Paul Davis and Mark Freedland: Labour Law, Text and Material
{1979) page 297, referred to. H
\
I
662 \ SUPREME COURT REPORTS (1987] 2 S.C.R.

A. S. In the instant case, the Authority, the Appellate Authority and
the Single Judge have found that the Confidential Lady Stenographers
were doing the same work or work of a similar nature as defined in s.
2(h) of the Act which the male Stenographers in the establishment of the
petitioner were performing. The respondent No. 1 was Wt rking as a
lady Stenographer. The lady Stenographers working in the establish·
B ment or the petitioner were called ''Confidential Lady Stenographers''
since they were attached to the senior Executive working in the
petitioner-company. In addition to the work of the Stenographers they
were also attending to the persons who came to interview the senior
Executives and to the work of filing, correspondence. etc. There was
practically no difference between the work which the Confidential Lady
c Stenographers were doing and the work of their male counter·parts. If
the Lady Stenographers were found by the management to be proper
persons to be Confidential Stenographers _it does not mean that they
. should suffer for their loyalty, integrity, sincerity and punctuality and
receive less pay for possessing those qualities when they are doing the
D same kind1 of work as men. Applying the true tests to the facts of the
instant case there is no ground to take a different view from the view
taken by the Authorities and the Single Judge. [6710-H]

6. Though a settlement was arrived at between the employee's
Union and the management in the year 1975 after negotiations, but
E after the settlement the respondent No. I was getting every month
Rs.730.20 paise less than the remuneration which her male counter·
part was gettiDg. In view of the provisions of s. 3 the management
cannot rely upon the settlement arrived at between the parties. The
settlement has to yield in favour of the provisions of the Act. The fact
that the management was not employing any male as a Confidential
F .._Stenographer attached to the senior Executives in the establishment and
that_ there was no transfer of Confidential Lady Stenographer to the
general pool of Stenographers where males were working ought not to
. make any difference l'br purposes of the application of the Act. Once it
is established that the lady Stenographers were doing practically the
same kind of work which the male Stenographers were discharging the
G employer is bound to pay the same remuneration to both of them
irrespective of the place where they were working unless it is shown that
the women are not fit to do the work of the male Stenographers. Nor
-- can the management deliberately create such conditions of work only
with the object of driving away women from a particular type of work
which they can otherwise perform with the object of paying them less
H remuneration elsewhere in its establishment. [672B·H; 673A·BJ
MACKINNON MACKENZIE & CO. v. AUDREY 663

7. The meaning of sub-s. (3) to s. 4 of the Act is that if for doing A
the same or similar work there are more than two or three rates of
remuneration, the higher or the highest of such rates shall be the rate at
which the remuneration shall be payable from the date of the com-
mencement of the Act to men and women workers doing the same or
similar kind of work in the establishment. The proviso provides that
nothing in the sub-section shall be deemed to entitle a worker to the B
revision of the rate of remuneration payable to him or her with refer-
ence to the service rendered by him or her before the commencement of
the Act. [673E-F]
8. Under the settlement of 1975 the male Stenographers came
under the category of "Clerical and Subordinate Staff''. Undisputedly
the terms regarding the fitment to lady Stenographers either In the 'A' c
~ JGrade or 'B' grade, referred to in the settlement Is less favourable to
· \. them and the same conditions were allowed to remain In force even after
the Act came into force. The very fact that the lady Stenographers are
treated differently and as a class different from the clerical and subordi-
nate staff by paying less remuneration even though they have put in the
D
same length of service and they are placed In the same s~ale of pay
smacks of discrimination. The discrimination thus brought about by the
terms of settlement only on account of the sex of the employees cannot
-· 'y . be allowed to persist in view of s. 4 of the Act. The work of the Confi-
1 dential Lady Stenographer cannot be said to be sex based one like the
work of air hostesses. There is no custom or rule that only ladles can be
E
Confidential Stenographers. If only women are working as Confidential
Stenographers it is because the management wants them there. Women
are neither specially qualified to be Confidential Stenographers nor
J- . disqualified on account of sex to do the work assigned to the male
1
Stenographers. Even if there is a practice In the establishment to
-). appoint women as Confidential Stenographers such practice cannot F
be relied on to deny them equal remuneration due to them under the
Act. [675B·E]
9. The management is liable to pay the same remnneration to all
the Stenographers on the same basis irrespective of their sex. The salary
and remuneration payable to the lady Stenographers should be com-
puted in accordance with the terms applicable to all the male Steno- G
_--1. graphers. When so computed, undisputedly the Respondent No. l
would be entitled to higher remuneration as observed by the Appellate
Authority and the Single Judge. The management cannot derive any
benefit from sub-s. (3) of s. 4 ot the Act and the proviso thereto because
sub-s. (3) would be attracted only where in an establishment or an
employment rates of remuneration payable before the commencement H
664 SUPREME COURT REPORTS [1987] 2 S.C.R.

A of the Act for the men workers and for the women workers for the same
work or work of similar nature are different. In the instant case, after
the settlement was arrived at there was a common pay scale , both for
men and women as can be seen from the settlement. The discrimination
was, however, brought about while carrying out the fitment of the lady
Stenographers in the said scale of pay. [675E-H; 676A]
B
10. The proviso to sub-s. (3) to s. 4 comes into operation only ....J _.
where sub-s. (3) is applicable. Since there are no different scales of pay I
in the instant case sub-s. (3) of s. 4 of the Act would not be attracted and
consequently, the proviso would not be applicable at all. The proviso .•.,_ -
cannot travel beyond the provision to which it is a proviso. This is a case
C to which sub-s. (1) to s. 4 of the Act applied because the impugned remune-
ration payable to lady Stenographers has been reduced on account of the
inequitable provision regarding titment in the common scale of pay which""')"' •
is applicable to both men and women Stenographers. [676A-C)

11. The Act does not permit the management to pay to a section
D of its employees doing the same work or a work of a similar nature
lesser pay contrary to s. 4(1) of the Act only because it is not able to pay
equal remuneration at all. The applicability of the Act does not depend
upon the financial ability of the management to pay equal remuneration
as provided by it. [676E) y -
E CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 1265 of 1987.

From the Judgment and Order dated 24.11. 1986 of the Bombay _._
High Court in Appeal No. 1042 of 1986. -~

F J.P. Cama and Raju Ramachandran for the Petitioner. .•
J..;•.

Miss Indira Jaisingh and Ravi P. Wadhwani for the Respondents.

The Order of the Court was delivered by

G VENKATARAMIAH, J. In this Special Leave Petition filed
under Article 136 of the Constitution of India, which is filed against
the decision dated November 24, 1986 of the High Court of Bombay in
· Appeal No. 1042 of 1986, the question whether the petitioner had
violated the provisions of section 4 of the Equal Remuneration Act,
1976 (No. 25 of 1976) (hereinafter referred to as 'the Act') arises for
H consideration.
MACKINNON MACKENZIE & CO. v. AUDREY [VENKATARAMIAH, J .1 665

The petitioner is a company carrying on the business of render-
A
'~ ing supporting services to water transport, like operation and mainte-
nance of piers, docks, pilotage, light-houses, loading and discharging
of vessels etc. referred to as Item No. 12 under the heading 'Water
Transport' in the list of establishments and employments to which the
Act has been made applicable under sub-section (3) of section 1 of the
Act. Respondent No. 1 Audrey D'Costa was one of the employees B
~ ~- working under the petitioner till June 13, 1977 on which date her
services were termiRated. During the period of her employment under
the petitioner she was working as a Confidential Lady Stenographer.
- ~- After her services were terminated, she instituted a petition before the
Authority appointed under sub-section ( 1) of section 7 of the Act
complaining that during the period of her employment, after the Act
came into force, she was being paici remuneration at the rates less
c
~ .···( favourable than those at which remuneration was being paid by the
petitioner to the Stenographers of the male sex in its establishment for
performing the same or similar work. She claimed that she was entitled
to recover from the petitioner the amount equivalent to the difference
between the remuneration which she was being paid and the remune- D
ration which was being paid to the male Stenographer who had put in
the same length of service during the period of operation of the Act.

- ~,
The petitioner opposed the said petition. The petitioner contended
inter alia that the business which was being carried on by it was not one
of those businesses notified under sub-section (3) of section 1 of the
Act; that there was no difference in the scales or grades of pay between E
lady Stenographers and other male Stenographers at the time when the
case was pending before the Authority referred to above; that the
Respondent No. 1 and other lady Stenographers who had been doing
~ the. duty as Confidential Stenographers attached to the senior Execu-
.J lives of tI!e petitioner-company were not doing the same or similar
work which the male Stenographers were discharging; and that there F
was no discrimination in salary on account of sex. The petitioner con:
tended that section 4 of the Act had not been violated by it.

After hearing both the parties, the Authority which heard the
complaint of the Respondent No. 1, found that the male Steno-
___ _( graphers and the lady Stenographers were doing the same .kind of G
work, but it, however, rejected the complaint holding that in view of a
settlement which had been arrived at in 1975 between the employees'
Union and the management, the Respondent No. 1 was not entitled to
any relief. The Authority held that the petitioner had not committed
the breach of section 4 of the Act as no discrimination on the ground of
sex had been made. It accordingly rejected the complaint of the H
666 SUPREME .COURT REPORTS [1987] 2 S.C.R.

A Respondent No. 1 by its order dated March 30, 1982. Aggrieved by the
order of the Authority appointed under sub-section (1) of section 7 of
the Act, the Respondent No. 1 filed an appeal before the Deputy
Commissioner of Labour (ENF), Bombay, who was the Appellate
Authority appointed under sub-section (6) of section 7 of the Act. The
Appellate Authority came to the conclusion that there was clear dis-
crimination between the male Stenographers and the female Steno-
graphers working in the establishment of the petitioner and the
petitioner had committed the breach of the pr"'1isions of the Act.
Accordingly, the appeal was allowed by the Appellate Authority on
May 31, 1982. It c[irected the petitioner to make payment of
Rs.7,196.67 paise which was the difference between the basic salary of
c the Respondent No. 1 and the basic salary of her male counter-parts
from 26.9.1975 to 30.6.1977 on which date her services came to be
terminated. The petitioner was also directed to make payment of the
difference in the amount of dearness allowance paid to the Respon-
dent No. 1 and the dearness allowance paid to her male counter-parts
during the said period. The petitioner was also directed to contribute
0 to the Employees' Provident Fund account on the basis of the above
directions. Aggrieved by the decision of the Appellate Authority, the
petitioner filed a writ petition in the High Court under Article 226 of
the Constitution of India in Writ Petition No. 1624 of 1982. The
learned Single Judge who heard the writ petition found that there was
E no doubt that the work performed by the female Stenographers and
Work performed by the male Stenographers were indentical and that
the Respondent No. 1 and other female Stenographers were being
paid less than their male counter-parts who were in service for an
equal numbet of years and the Respondent No. 1 was entitled to the
difference between the pay ~\\,(allowances which had been paid to a
male Stenographer who had put in service for the same number of
F
years as the Respondent No. 1 and the amount of pay and allowances
actually paid to her for the period between October 8, 1976 and June
13, 1977. Since the Appellate Authority had committed an error as
regards the period in respect of which Respondeni No. 1 was entitled
to relief the case was remanded to the Appellate Authority for com-
puting the amount due to the Respondent No. 1 afresh. The order of
O the Appeltate Authotity was affirmed in other respects. Aggrieved by
the decision of the learned Single Judge, the petitioner filed an appeal
iii Appeal No. 1042 of 1986 before the Division Bench of the High
Court which came to be disrttlssed on November 24, 1986. Aggrieved
by the decision of the Division Bench, the petitioner has filed this
H 1Jetltlon under Article i:i6 of the Constitution of India.
MACKINNON MACKENZIE & CO. v. AUDREY [VENKATARAMIAH, J .] 66 7

-y Before dealing with the contentions of the parties, it is necessary
to set out the relevant legal provisions governing the case. Article 39
A

' (d) of the Constitution of India provides that the State shall, in particu-
lar, direct its policy towards securing that there is equal pay for equi!I
work for both men and women. The Convention Concering Equal
·Remuneration for Men and Women Workers for Work of Equal Value
(for short, Equal Remuneration Convention, 1951) was adopted by B
the General Conference of the International Labour Organisation on
June 29, 1951. India is one of the parties to the said Convention.

- ~·
Article 2 of that Convention provides that each Member shall, by
means appropriate to the methods in operation for determining rates
of remuneration, promote and, in so far as is consistent with such
methods, ensure the application to all workers of the principle of equal
remuneration for men and women workers for work of equal value and
c
that this principle may be applied by means of (a) national laws or
regulations, (b) legally established or recognized machinery for wage
determination, (c) collective agreements between employers and
workers, and (d) a combination of these various means. Article 3 of
the Convention provides that where such action will assist in giving D
effect to the provisions of the Convention, measures shall be taken to
promote appraisal of jobs on the basis of the work to be performed.
The methods to be followed in this appraisal may be decided upon by
the authori.ties responsible for the determination of rates of remunera-
tion, or where such rates are determined by collective agreements, by

- the parties thereto. In England the above Convention is given effect to
by the enactment of Equal Pay Act, 1970. Almost all other European
community States have also signed the convention. The Europei!n
Economic Community Treaty also provided that during the first stage
that is before 31st December, 1961 each member State should ensur.e
and subsequently maintain the application of the principle that rnen
and women should receive equal pay for .equal work. (See E.E.C. F
Treaty Art. 119, Isl Para). Many cases have been since decided by the
national courts in those States and also in the European Court of
Justice on the basis of the several laws enacted by the said States in
implementation of the Equal Remuneration Convention, 1951. The
E.E.C. States are obliged to observe this Convention faithfully. A
short account of this branch of law is to be found in Halsbury's Laws of G.
England 4th Edn. Vol. 52, paras 20.11. to 20.18. Many interesting
cases are referred to in those paragraphs. In one case it is held that (i)
where a job classification system is used for determining pay, it must
be based on the same criteria for both men and women and so drawn
up as to exclude any discrimination on the ground of sex. In another
case concerning the pay of a woman who claimed equal pay with her H
<,

668 SUPREME COURT REPORTS [1987] 2 S.C.R.

A predecessor, a man, the European Court held that the concept of
equal pay in the E.E.C. Treaty was not restricted to cases where men
and women were employed contemporaneously but also applied where
a woman received less pay than a man employed prior to her by the
employer 6n equal work (See Macarthy's Ltd. v. Smith, 1981 O,B.
180.).
B
In order to implement Article 39 (d) of the Constitution of India
and the Equal Remuneration Convention, 1951, referred to above, the
President promulgated on the 26th September, 1975 the Equal
Remuneration Ordinance, 1975 so that the provisions of Article 39(d)
of the Constitution of India might be implemented in the year which
c was being celebrated as the International Women's Year. The said
Ordinance provided for payment of equal remuneration to men and
women workers for the same work or the work of a similar nature and
for the prevention of discrimination on account of sex. The Ordinance
also ensured that there was no discrimination against recruitment of
women and provided for the setting up of Advisory Committees to
D promote employment opportunities for women. The above Ordinance
was replaced by the Act which received the assent of the President on
February 11, 1976. The long title of the Act states that it is intended to
provide for the payment of equal remuneration to men and women
workers and for the prevention of discrimination on the ground of sex

-
against women in the matter of employment and for matters connected
E therewith or incidental thereto. Sub-section (3) of section l of the Act
provides that the Act shall come into force on such date, not being
later than three years from the passing of the Act, as the Central
Government may, by notification, appoint and different dates may be
appointed for different establishments or employments. Insofar as the
establishment of the petitioner was concerned, the Act came into force
F with effect from October 8, 1976. The expressions 'commencement of
this Act', 'remuneration' and 'same work or work of a similar nature'
are defined in section 2(b ), (g) and (h) respectively of the Act. 'Com-
mencement of this Act' means in relation to an establishment or emp-
loyment, the date on which the Act comes into force in respect of that
establishment or employment by the issue of the necessary notification
G under section 1(3) of the Act. 'Remuneration' means the basic wage or
salary and any additional emoluments whatsoever payable, either in
cash or in kind, to a person employed in respect of employment or
work done in such employment, if the terms of the contract of employ-
ment, express or implied, were fulfilled. 'Same work or work of a
similar nature' means work in respect of which the skill, effort and
H responsibility required are the same when performed under similar
MACKINNON MACKENZIE & CO. v. AUDREY [VENKATARAMIAH, J.] 669

working conditions, by a man or a woman and the differences, if ~ny, A
between the skill, effort and responsibility required of a man and those
required of a women are not of practical importance in relation to the
terms of condition3 of employment. Section 3 of the Act has given
overriding effect to the provisions of the Act. It provides that the
provisions of the Act shall have effect notwithstanding anything incon- B
sistent therewith contained in any other law or in the terms of any
award, agreement or contract of service, whether made before or after
the commencement of the Act, or in any instrument having effect
·under any law for the time being in force. The crucial section which
arises for consideration in this case is section 4 of the Act. It reads
thus:
c
"4. Duty of employer to pay equaf'remuneration to men
and women workers for same work or work of a similar
nature-(!) No employer shall pay to any worker,
employed by him in an establishment or employment, re-
muneration, whether payable in cash or in kind, at rates D
less favourable than those at which remuneration is paid by
him to the workers of the opposite sex in such establish-
ment or employment for performing the same work or
work of a similar nature.

(2) No employer shall, for the purpose of complying E
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 F
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 as 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 from
such commencement, to such men and women workers: G

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." H
670 SUPREME COURT REPORTS [1987] 2 S.C.R.

Section 5 of the Act prohibits any kind of discrimination being

·-
A
made while recruiting men and women workers. Section 6 of the Act ~
provides for the appointment of an Advisory Committee to advise the
appropriate Government with regard to the extent to which women
may be employed in such establishments or the employments as the
·Central Government may, by notification, specify in that behalf. Sec-
B tion 7 of the Act provides for the appointment of the adjudicating
Authority whenever a dispute arises between the management and the
employees as also an Appellate Authority which can hear an appeal
against the decision of the Authority. Section 16 of the Act provides
that where the appropriate Government is, on a consideration of all
the circumstances of the case satisfied that the differences in regard to
the remuneration or a particular species of remuneration of men and
c women workers in any establishment or employment is based on a
factor oth~r than sex, it may, by notification make a declaration to that
effect and any act of the employer attributable to such a difference
shall not be deemed to be a contravention of any provision of the Act.

D The point which arises for consideration in this petition is
whether the Respondent No. 1 is entitled to any relief within the scope
of section 4 of the Act. In order to grant such relief under section 4 of
the Act the employee should establish that the remuneration paid by 1-
the employer; whether payable iq cash or kind, is being paid at rates y
less favourable than those at which remuneration is paid by him to the
E employees of the opposite sex in such establishment for performing
the same work or work of a similar nature. Whether a particular work
is same or siriiilar in nature as another work can be determined on
three considerations. In deciding whether the work is the same or
broadly similar, the Authority should take a broad view; next, in as-
certaining whether any differences are of practical importance, the
F Authority should take an equally broad approach for the very concept
· of similar work implies differences in details, but these should not
defeat a claim for equality on trivial grounds. It should look at the
duties actually performed not those theoretically possible. In making
comparison the Authority should look at the duties generally per-
formed by men and women. Where however both men and women
G work at inconvenient times, there is no requirement that all those who
work e.g. at night shall be paid the same basic rate as all those who
.,,_.,
work normal day shifts. Thus a woman who works days cannot claim
equality with a man ou higher basic rate for working nights if in fact
there are women working nights on that rate too, and the applicant
herself would be entitled to that rate if she changed shifts. (See LT.
H Smith and J.C. Wood: Industrial Law, 2nd Edition, (Butterworths)
MACKINNONMACKENZIE&CO. v. ;\UDREY [VENKATARAMIAH,J.j 671

page 308). We do not suggest that there can be no discrimination at all
--...( between men and women in the matter of remuneration. There are
A
' some kinds of work which women may not be able to undertake. Men
do work like loading, unloading, carrying and lifting heavier things
which wome.n cannot do. In such cases there cannot be any discrimina-
tion on the ground of sex. Discrimination arises only where men and
I
women doing the same or similar kind of work are paid diferently. B
"-}- Wherever sex discrimination is alleged, there should be a proper job
evaluation before any further enquiry is made. If the two jobs in an

•
,.... establishment are accorded an equal value by the application of those
criteria which are themselves non-discriminatory (i.e. those criteria
which lbok directly to the nature and extent of the demands made by
the job) as distinct from criteria which set out different values for men
and women on the same demand and it is found that a man and ,a
c
r
·"1' woman employed on these two jobs are paid differently, then sex
discrimination clearly arises. {See Paul Davis and Mark Freedland:
Labour Law, Text and Material 1979 page 297).

It has been found by the Authority, the Appellate Authority and D
by the learned Single Judge that the Confidential Lady Stenographers
were doing the same work or work of a similar nature as defined by

-y section 2(h) of the Act which the male Stenographers in the establish-
ment of the petitioner were performing. The Respondent No. 1 was
working as a lady Stenographer. The lady Stenographers working in
the establishment of the petitioner were called 'Confidential Lady E
Stenographers' since they were attached to the senior Executives
working in the petitioner-company. In addition to the work of
~- Stenographers they were also attending to the persons who came to
interview the senior Executives and to the work of filing, correspon-
'
~.
dence etc. There was practically no difference between the work which
the Confidential Lady Stenographers were doing and the work of their F
male counter-parts. It was suggested that the lady Stenographers were
found ·by the management to be proper persons to be Confidential
Stenographers. It may be so. It, however, does not mean that they
should suffer for their loyalty, integrity, sincerity and punctuality and
receive less pay for possessing those qualities when they are doing the
same kind of work as men. In the circumstances of the case, applying G
·- -I, the true tests which are discussed above to the facts of this case, we do
not find any ground to take a view different from the view taken by the
learned Single Judge, the Appellate Authority and the Authority who
have dealt wi.th this case.

The next question is whether the lady Stenographers were being H
672 SUPREME COURT REPORTS [1987] 2 S.C.R.

A paid the remuneration, which included bask pay, and any additional y-
emoluments whatsoever payable either in cash or in kind, less than
what was being paid to their male counter-parts who had put in service
for the same number of years. It is true that there was a settlement
arrived at between the employees' Union and the management in the
year 1975 and it had been arrived at after negotiations between the
B parties to the settlement. Prior to the settlement the Respondent No. 1
was getting as basic salary of Rs. 560 in the pay scale of Rs.150-15-180-
20-340-25-440-28-496-32-560 in addition to a fixed D.A. of Rs.525 per
month. Thus the Respondent No.1 was getting a remuneration to the
tune of Rs.1085 per month. Under the settlement her basic salary was
reduced to Rs.245 from Rs.560 and the D.A. was increased to
C Rs.935.25 paise. In all she was getting a remuneration of Rs.1180.25
paise per month under the settlement, thus increasing her gross salary
by Rs.95.25 paise. On the other hand, her male counter-part who had
put in service for an equal number of years was being paid Rs.585 by
way of basic pay and Rs.1325.45 paise by way of dearness allowance
under the settlement. In all he was being paid Rs.1910.45 paise. Thus it
D is seen that the Respondent No. 1 was getting every month Rs.730.20
paise Jess than the remuneration which her male counter-part was
getting. The question for consideration is whether the management
was justified in paying such remuneration to her. It was urged on
behalf of the management that the difference between the remunera-
tion of the male Stenographers and the remuneration of the Confiden-
E tial Lady Stenographers was on account of the settlement which was
arrived at after proper negotiation and that the Court must have re-
gard to it. Section 3 of the Act clearly provides that the provisions of
the Act shall have effect notwithstanding anything inconsistent there-
with contained in any other law or in the terms of any award, agree-
ment or contract of service, whether made before or after the comm-
F encement of the Act, or in any instrument having effect under any law
for the time being in force. The petitioner cannot, therefore, rely upon
the settlement arrived at between the parties. The settlement has to
yield in favour of the provisions of the Act. It was next contended on
behalf of the petitioner ·that the discrimination between the male
Stenographers and the Confidential Lady Stenographers had not been
G brought about only on the ground of sex. We find it difficult to agree
with this contention. It may be that the management was not employ-
ing any male as a Confidential Stenographers attached to the senior
Executives in its establishment and that there was no transfer of Confi-
dential Lady Stenographers to the gen~ral pool of Stenographers
where males were working. It, however, ought not to make any differ-
H ence for purposes of the application of the Act when once it is es-
MACKINNON MACKENZIE & CO. v. AUDREY (VENKATARAMIAH, J.] 673

tablished that the lady Stenographers were doing practically the same
A
kind of work which the male Stenographers were discharging. The
employer is bound to pay the same remuneration to both of them
irrespective of the place where they were working unless it is shown
that the women are not fit to do the work of the male Stenographers.
Nor can the management deliberately create such conditions of work
only with the object of driving away women from a particular type of B
work which they can otherwise perform with the object of paying them
less remuneration elsewhere in its establishment. In the present case
the place where the employees worked is irrelevant for purposes of
section 4 of the Act.

J We shall now proceed to consider the effect of sub-section (3) of C
section 4 of the Act on which much emphasis was placed by the
management. It provides that where in an establishment or an employ-
ment the rates of remuneration payable before the commencement of
the 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, as the case may be, the 0
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 from
such commencement, to such men and women workers. The meaning
of sub-section (3) to section 4 of the Act is that if for doing the same or
similar work there aie more than two or three rates of remuneration,
the higher or the highest of such rates shall be the rate at which the E
remuneration shall be payable from the date of the commencement of
the Act to men and women workers doing the same or similar kind of
work in the establishment. The proviso provides that nothing in the
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 the Act. F
The salient features of the settlement of 1975 are as follows:-

- "I. Clerical & Subordinate Staff:

Pay scales remain unaltered. However they will be
granted incremenis as under:- G

(a) All staff who have completed one or more than one
year's service as on 1.5.75 will get one increment in their
respective scales with effect from 1.5. 75.

(b) All staff who have reached the maximum of their H
674 SUPREME COURT REPORTS (1987] Z S,C.R.

A
respective pay scales including those in 'E' grade who have y-
completed 35 years of service will receive one increment as
· per the last increment of the scale, with effect from 1.5.75.

(c) In addition to this, those who retire during the
course of the Agreement, i.e., during the period 1.5.75 to
B 30.4. 78 will receive one increment in the year of their
retirement. -~~
,..,.
II. Lady Stenographers:

Their pay scales will pe brought on pi!r with their
-
c male counterparts in the following manner: ~
·y. . . ". .
(a) All those who have completed 7 years of service or less '"
on 1.5. 75 will be fitted to the starting figures of 'B' grade
clerical scale.

D (b) AU those with more than 7 years of service but less
than 10 years of service as on 1.5.75 will be fitted to that
stage of 'B' grade which is one step higher than the starting
figure.

E
(c) All those with more than 10 years of service .as on
1.5.75 will be first fitted to the starting salary of grade 'A'
1
and then given one increment in the scale for every 5 years
of service or a fraction thereof, over and above 10 years of
. I
service.
~
(d) The revisions will come into effect with effect from A-
F 1.5.75.

(!') While effecting fitments as explained in (a), (b) and (c)
above, if the revised gross emoluments happen to be less
lhilll lhl' ioxisting gross salary, or, if the enhancement of
gross emoluments as a resuJt of the revision works out to
G less than Rs.50, then, in such individual cases, the basic
salaries in the respective scales will be stepped up in such a
way, as to ensure a minimum of Rs.50 incre.ase in gross
salary.

(f) The figures for comparison will be the gross salaries for
H the month of May 1975.
MACKINNON MACKENZIE & CO. v. AUDREY (VENKA1ARAMIAH, J,] 675

{g) All other terms and conditions as applicable to clerical A
and subord.inate staff will also apply to lady stenographers
with effect frorn 1. 5. 75 ............................... .

It is not disputed that the male Stenographen came under the
categ!lry of 'Clerical & Subordinate Stttff'. tt is also Mt disputed that
the terms regarding the fitment of lady Stenographers either in the 'A'
grade or 'B' grade, referred to in the settlement is less favourable to
them and the same conditions were allowed to remairt in force even·
after the Act carne int<J force. The vety fact that the lady Sterto-
gtaphers ate treated diferently and as a class different from the clerical
and sub<Jrdinate staff by paying less rertlunerati<Jn evert though they c
have put ill the same length of service and they are placed in the same .
seal~ of pay smacks of discrimination. the discrimination thus brought
about by the terms of settlement only on account of the sex of the
employees cannot be allowed to persist in view of section 4 of the Act.
We do not agree that the work of the Confidential lady Stenographers
is a sex based one like the work of air hostesses. there is no custom or D
rule that only ladies can be Confidenti~l Stenograph,ers. If only women
are working as Confidential Stenographers it is because the rnauage-
ment wants them there. Women ate neither specialiy qualified to be
Confidential Stenographers nor disqalified on acoount of sex to do the
work asslgrted to the male Stenographers. Even if there is a practice in
the establishment to appoint W!lmen as Confidential Stenographers E
such practice cannot be relied on to deny them equal remuneration
due to them under tile Act. tile m:1Ht1gement is liable to pay the same
Ji.· remuneration to all tile Stenographers on the same basis irrespective
of their sex. The salary and remuneration payable to the lady
Stenographer~ should be computed in accordance with the tel'!lls appli·
cable to 1111 the male Stenographers. When so computed, it is not F
disputed, that the Respondent No. 1 would be entitled to higher re-
muileraiiofi as observed by the Appellate Auth<lrlty and the learned
Single Judge of the High Court. We are of the view that the petitioner
cannot derive any benefit from sub·section (3) ofsectiotl 4 of the Act
and the proviso thereto because sub-section (3) would be attracted
only where in an establishment or an ernployrnent rates of remu11era- G
( ..J. tion payable before the commencement of the Act for the men
workers and for the women workers for the same work or work ()f
similar nature ate different. tn the instant case after the settlement was
arrived at there was a comttltln pay scale both for met! and women as
can be seen from the settlement, referred to above. 'the discrimination
was, however, brought about while carrying out the fitment of the lady 1-1
676 SUPREME COURT REPORTS [1987] 2 S.C.R.

A Stenographers in the said scale of pay. The proviso to sub-section (3)
to section 4 comes into operation only where sub-section (3) is appli-
cable. Since there are no different scales of pay in the instant case
.sub-section (3) of section 4 of the Act would not be attracted and
consequently, the proviso would not be applicable at all. The proviso
cannot travel beyond the provision to which it is a proviso. This is a
B
case to which sub-section (I) to section 4 of the Act applies because
the impugned remuneration payable to lady Stenographers has been
reduced on account of the inequitable provision regarding fitment in
the common scale of pay which is applicable to both men and women
Stenograph,ers. Having stated that there was a common pay scale for
both male Stenographers and female Stenographers it is not open to
c the petitioner to contend that the order of the High Court was contrary
to the prov. iso to sub-section (.3) to section 4 of the Act. We, therefore,
reject the contention that the order passed by the High Court is con- 'y- ~
trary to the proviso to sub-section (3) of section 4 of the Act.

It is lastly urged on behalf of the petitioner that the enforcement
0
of the Act will be highly prejudicial to the management, since its
financial position is not satisfactory and the management is not able to
pay equal remun'eration to both male Stenographers and female
Stenographers. The Act does not permit the management to pay to a
section of its employees doing the same work or a work of similar -y' "'
E nature lesser pay contrary to section 4(1) of the Act only because it is
not able to pay equal remuneration to all. The applicability of the Act
does not depend upon the financial ability of the management to pay
equal remuneration as provided by it.
··~
We do not find any ground to interfere with the judgment of the '
High Court. The petition, therefore, fails and it is dismissed. There
F
shall, however, be no order as to costs.·

A.P.J. Petition dismissed.

-~- J