Mrs. Sujata V. Manohar, J. - (1.) "Equal pay for equal work for both men and women" is one of Directive Principles of State Policy laid down in Art. 39(d) of the Constitution. Article 37 makes it non-justiciable. Yet it must be borne in mind by the legislature while making laws. In Randhir Singh v. Union of India (1982) 1 SCC 618 , this Court construed Arts. 14 and 16 in the light of the preamble to the Constitution to read into their scheme the principle of equal pay for equal work. The principle has since been applied in cases of irrational discrimination in the pay-scales of workers doing the same or similar work in an organisation. It has not been applied when there is a basis or an explanation for the difference.
(2.) Historically equal pay for work of equal value has been a slogan of the women's movement. Equal pay laws, therefore, usually deal with sex-based discrimination in the pay-scales of men and women doing the same or equal work in the same organisation. For example, the Equal Remuneration Act, 1976 provides for payment of equal remuneration to men and women workers and is meant to prevent discrimination on the ground of sex against women in the matter of employment. The Equal Pay Act, 1970 and the Equal Pay (Amendment) Regulations, 1983 in Great Britain are for a similar purpose. The same doctrine has also sought to protect disadvantaged groups against similar discrimination. We have interpreted and applied the doctrine even more widely to prevent discriminatory pay-scales within an organisation which is owned by or is an instrumentality of the State, provided that the different pay-scales exist in one organisation, are applied to employees doing work of equal value, and there is no rational explanation for the difference.
(3.) When the same principle is sought to be extended to compare pay-scales in one organisation with pay-scales in another organisation, although between employees doing comparable work, the stretching of the doctrine, if at all it is done, must be done with caution lest the doctrine snaps. Many ingredients go into the shaping of wage structure in any organisation. Historically it may have been shaped by negotiated settlements with employees' unions, or through industrial adjudication. It may have been revised or reshaped with the help of expert committees. The economic capability of the employer also plays a crucial part in it; as also its capacity to expand business or earn more profits. If the employing organisation functions in a competitive area, it may, if it is economically strong, offer higher wages than its competitors doing similar work to attract better talent. Or it may offer higher wages to the better qualified. A simplistic approach, granting higher remuneration to other workers in other organisations because another organisation has granted them, may lead to undesirable results. Even within the same organisation, when the differential wage structure is based on similar considerations, the application of the doctrine would be fraught with danger, and may seriously affect the efficiency, and at times, even the functioning of the organisation. The doctrine is designed to correct irrational and inexplicable pay differentiation which can be looked upon as discrimination against an employee or a given set of employees. It is easier to identify such discriminated groups when the discriminated group is sex-based (women) or colour-based (Blacks in the USA) or caste-based (scheduled castes etc.):and more difficult to identify in other cases. But unless there is such identifiable discrimination, the doctrine should not be applied. Mere difference is not discrimination.;